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Full text of "A treatise on wills"

Cornell University Law Library 

The Moak Collection 



PURCHASED FOR 

The School of Law of Cornell University 

And Presented February 14, 1893 

/ IN HEnORY OF 

'f-^ JUDGE DOUQLASS BOARDMAN 

FIRST DEAN OF THE BCKO'OL 

• By his Wife and Daughter 

A. M. BOARDMAN and ELLEN D. WILLIAMS 



Cornelt University Library 
KF 755.J37 1881 

V.1 

A treatise on wills / 




3 1924 018 798 664 




Cornell University 
Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924018798664 



TREATISE ON WILLS. 



BY 

THOMAS JAKMAN, Esq. 



THE FIFTH AMERICAN 

FBOM 

THE FOURTH ENGLISH EDITION. 



By MELVILLE M. BIGELOW, Ph.D. 

OF THE BOSTON BAK. 



IN TWO VOLUMES. 

Vol. I. 



BOSTON: 
LITTLE, BROWN, AND COMPANY. 

1881. 




Copyright, 1881, 
By Little, Brown, and Company. 



University Pkess: 
John Wilson and Son, Cambkidge. 



NOTE 

TO THE FIFTH AMERICAN EDITION. 



In the present volume, authorities are brought down to 
October, 1880 ; in the second volume, now in the press 
and soon to follow this one in publication, they will be 
brought down to the present time. The notes of the pre- 
vious American editions have for the most part been re- 
written and made one with the new matter. The Editor 
takes this occasion to make suitable acknowledgment to 
Mr. William E. Spear, of the Boston Bar, for valuable aid 
on both volumes, especially in the collection and arrange- 
ment of the statutes of the different states, and in making 
the indexes and tables of cases. It should be mentioned 
that reference to passages in this work is always made to 
the top paging, when not otherwise stated. 

Boston, January 1, 1881. 



PREFACE 

TO THE FIRST EDITION. 



Sixteen years have now elapsed since the writer diffidently pre- 
sented to the profession his first publication on Testamentary Law, 
in the form of an edition of Powell on Devises, with a supplemen- 
tary treatise on the Construction of Devises. The reception given 
to this work was such as abundantly to compensate for the severe 
labor which it exacted, and under which the health of its Editor 
more than once sank. This was followed, after the interval of a few 
years, by the Tenth Volume of the Precedents in Conveyancing, 
being the portion of that work which was devoted to the same sub- 
ject. The materials afforded by these publications have been freely 
used LQ the present work ; but considering the very large accessions 
since made to the adjudications on testamentary law, and that it has 
not escaped the activity of modern legislation, it will be obvious 
that many of the various subjects embraced by so extensive a range 
of disquisition, now present themselves under a different aspect, 
requiriag, not only very large additions to the matter which com- 
posed the former works, but the rejection of no inconsiderable por- 
tion of that matter ; and the writer is not ashamed to avow, that 
another, though certainly a less extensive, head of alteration arises 
from the changes which experience has wrought in some of the 
opinions of his earlier days. The result is, that probably more than 
one-half of the present treatise is entirely original ; and the writer 
therefore feels that he has to subject his performance (as partially 
new) to the criticism of his professional brethren, whose kind con- 
sideration he again bespeaks, convinced that those who are the most 
competent to detect error, will be the most generous and indulgent 
in the appreciation of the difficulties which beset the inquirer iato 



VI PREFACE. 

the principles of one of the most intricate branches of the law. To 
those difficulties have been added the daily iaterruptions of profes- 
sional avocation, which have long delayed, and have sometimes 
threatened wholly to prevent, the present publication. The recent 
Act has created some additional embarrassment to a writer on WUls, 
by introducing new principles of construction, partial in their appli- 
cation ; for, by drawing a line between wills of an earlier and those 
of a later date, the legislature has diminished the importance, with- 
out permitting the rejection or the neglect of the old law. On these 
subjects, conciseness and compression have been specially aimed at, 
and some additional labor has been willingly incurred,, in order to 
avoid incumberiiig the present work unnecessarily with matter 
which every passing day tends to render less practically useful. 



THOMAS JAEMAN. 



New Square, Lincoln's Inn, 
December, 1843. 



TABLE OF CONTENTS. 



Page 
Table of Cases xiii 



CHAPTER I. 
By what Local Law Wills are Regulated 1 

CHAPTER II. 
Form and Characteristics of the Instrument 17 

CHAPTER III. 
Personal Disabilities of Testators 32 

CHAPTER rV. 
What mat be Devised or Bequeathed 46 

CHAPTER V. 
Who may be Devisees or Legatees 65 

CHAPTER VI. 

execution and attestation of wills. 

Sect. 1. Of Wills made before 1838. — As to Freeholds of Inheritance 77 

2. As to Personal Estate and Copy- 

holds ........ 97 

3. Of Wills made since the year 1837 105 

4. Defective Execution supplied by reference, express or implied 114 



VIU TABLE OF CONTENTS. 

CHAPTER VII. 

REVOCATION OF WILLS. 

Page 
Sect. 1. By Marriage and Birth of Ciiildren, or Marriage alone . . . 122 

2. By Burning, Cancelling, Tearing, or Obliterating 129 

3. By Alteration of Estate 147 

4. By void Conveyances 165 

5. By a subsequent Revoking, inconsistent Will, Codicil or 

Writing 168 

CHAPTER VIII. 
Republication 193 

CHAPTER IX. 

KESTKAINTS ON THE TESTAMENTARY POWER. 

Sect. 1. Gifts to Superstitious and Charitable Uses 205 

2. Rule against Perpetuities 250 

3. For what Period Income may be accumulated 302 

CHAPTER X. 
From what Period a Will speaks 318 

CHAPTER XL 
Doctrine of Lapse ■ , . . . 338 

f 

CHAPTER XII. 

GIFTS WHEN VOID FOR UNCERTAINTY. 

Sect. 1. General Doctrine . , 353 

2. Uncertainty as to Subject of Disposition 357 

3. Objects of Gift 37O 

4. Effect of Mistake in Locality or Occupancy of Lands and of 

Misnomer generally as to Subjects or Objects 376 

5. What Words sufficient to create a Trust 383 

CHAPTER Xin. 

Paiiol Evidence, how far Admissible 409 



TABLE OF CONTENTS. IX 



CHAPTEK XIV. 

Page 

Election 443 



CHAPTER XV. 

Effect of Repugnancy or Contradiction in Wills, and as to 

REJECTING Words 472 



CHAPTER XVI. 
as to supplying, transposing, and changing words. 

Sect. 1. As to supplying Words 486 

2. As to the Transposition of Words and Clauses' 500 

3. As to changing Words 503 

CHAPTER XVn. 

estates arising by implication. 

Sect. 1. Effect of Recitals 525 

2. Implication from Devises and Bequests, to take effect on Death 

of a Person simply 532 

3. Implication from Devises and Bequests, to take effect on Death 

combined with some Contingency, and under other varieties 

of Context 546 

4. As to implying Trust from Devise of Legal Estate .... 550 

5. Implication from Powers of Selection and Distribution . . . 551 

6. of Estates Tail 554 

7. of Gifts to Children 563 

CHAPTER XVin. 

RESULTING TRUST TO THE HEIR. 

Sect. 1. Resulting Trust to the Heir, in Real Estate not beneficially 

disposed of 565 

2. Effect where particular Estates are void in their Creation . . 574 



CHAPTER XIX. 

DOCTRINE OP CONSTRUCTIVE CONVERSION. 

Sect. 1. Money considered as Land, and vice versd. Distinction be- 
tween absolute and qualified Converting Trusts .... 584 
2. Electidn to take Property in its actual State 598 



X TABLE OF CONTENTS. 

Page 
Sect. 3. Kule, where Legatee's Enjoyment is apparently postponed 
until Conversion, and, generally, as to relative Rights of 
Legatee for Life, and ulterior Legatee, under residuary 

Clauses > 604 

4. Destination of undisposed-of Interests in Property directed to 
be converted. Doctrine of Conversion as between Claimants 
under Will and real and personal Representatives of Testator 619 
,5. Effect of Failuie, by Lapse, or otherwise, of pecuniary Gifts 

out of Proceeds of Land 632 



CHAPTEK XX. 

OPERATION OF A GENERAL DEVISE OF REAL ESTATE. 

Sect. 1. In regard to void,: lapsed, and partial specific Devises . . . 645 

2. Reversions 654 

3. Copyholds 664 

4. Leaseholds 668 

5. Powers of Appointment 676 



CHAPTER XXI. 

DEVISES BY MORTGAGEES AND TRUSTEES. 

Sect. 1. In regard to the beneficial Interest in Mortgages. As to the 
Extinction of the Charge by Union of Character of Mortga- 
gor and Mortgagee 689 

2. Operation of General Devite on the Legal Estate of Mortgagee 

or Trustee 694 

3. Whether Devisee of Trustee can exercise the powers given to 

the Trustee 709 



CHAPTER XXII. 

WHAT GENERAL WORDS CARRY REAL ESTATE. 

Sect. 1. Words "Estate" and "Property," and other such terms, 
where restrained by association with more limited expres- 
sions, to Articles ejusdem generis 716 

2. Where not restrained by such association 721 

3. Whether restrained by collocation with Executorship , . . 729 

4. by the nature of the Limitations .... 732 

5. General untechnioal Words held to Pass Lands 738 

6. Words descriptive of Personalty only held, by force of Context, 

to include Real Estate 743 



TABLE OF CONTENTS. XI 

CHAPTER XXIII. 

WHAT WORDS WILL COMPKISE THE GENERAL PERSONAL ESTATE. 

Page 
Extent of words " Goods," "Chattels," "EfEects," "Things." Re- 
strictive efiect of association with more limited terms. Residuary 
bequest. General residue held to pass byword "Money," and 
other informal words 751 

CHAPTER XXTV. 
Force and Extent of Particular Words of Desceiption . . 778 

CHAPTER XXV. 

DEVISES AND BEQUESTS WHETHER VESTED OR CONTINGENT. 

Sect. 1. General Rule in regard to Vesting 799 

2. Devises construed to be vested, notwithstanding expressions of 

a contrary aspect 805 

3. Devises contingent by express terms, notwithstanding absurd 

consequences 821 

4. Question, whether Contingency applies to one or all of several 

Limitations 831 

5. Vesting of Legacies charged on Land 834 

6. Personal Legacies 837 

7. Residuary Bequests 851 

CHAPTER XXVI. 
Executory Devises and Bequests 864 



TABLE OF CASES. 



Aaron ». Aaron 
Abadam v. Abadam 
Abbot V. Massie 
». Peters 
Abbott V. Bradstreet 
V. Fraser 
V. Middleton 
Abell V. Douglass 



Page 

116, 118 

188 

442 

101 

320 

250 

424, 489, 521 

2 



Abercrombie v. Abercrombie 412 

Abington v. Boston 12 

V. N. Bridgewater 12 

Abney v. Miller > 318 

Abraham v. Alman 392 



y. Joseph 


78, 79, 80, 141 


Abram v. Ward 




563 


Abrams v. Winship 




569 


Acherley v. Vernon 




193 


Acheson v. Fair 




720 


Ackerman v. Burrows 




843 


V. Gorton 




807 


V. Vreeland 




285 


Ackers v, Pliipps 




550, 653 


Ackroyd u. Smithson 


565 


622, 642 


Adair v. Adair 




36 


Adams, In re 


18 


104, 364 


V. Adams 


458, 


527, 528 


V. Austen 




683 


' V. Chaplin 




82, 255 


V. Gierke 




476 


V. Field 




80,81 


V. Gillespie 




339, 574 


V. Jones 




382, 755 


V. Roberts 




842 


V. Winne 




148, 417 


Adamson, In re 




143 


Addie v. Brown 




308, 313 


Addington v. Cann 




227, 234 


Addis V. Clement 




671 


Addison v. Bowie 




443 


V. Busk 




563 


Addy V. Grix 




81,82 


Adge V. Smith 




209 


Adie V. Comwell 




472 


Adnam v. Cole 


210, 211, 


213, 359 


Adshead v. Willetts 




515 


Adsit V. Adsit 




458 





Page 


Affleck V. James 


529, 589 


Agnew V. Pope 


177, 182 


Aiger v. Pool 


837 


Aikin v. Weckerly 


38,89 


Ains worth, In re 


106 


Aislabie v. Rice 


832 


Albee v. Carpenter 


879 


Albemarle v. Rogers 


568, 798 


Alchin's Trusts, In re 


376, 379 


Alcock V. Sloper 


615, 617, 618 


Aldrich V. Gaskill 


785, 780, 787 


Alexander, In re 


11 



V. Alexander 177, 265, 388, 806, 817 

V. Brame - 22, 221, 222 

V. Mills 108 

Alford V. Earle . 199 

AUanson v. Clitheroe 326 

Allardice v. Onslow 15 

Allen, In re 89, 110 

V. Allen 64, 71 

V. Anderson 9, 449 

V. Bewsey 185 

li. Callow 343 

V. Everett 80 

V. Harrison 327 

V. Lyons , 423, 431 

V. Maddock 19, 20, 92, 116, 118, 120 

V. Manning 98, 103 

V. McPherson 28, 36 

V. Parham 255 

V. Pray 458 

V. Public Admr. 35, 36 

u. Richards 793 

V. Scott 781 

AUeyne v. Alleyne 642, 744 

AUhusen v. Whittell 606, 607 

Allison V. Allison 18, 21, 80, 81, 82, 90, 

130, 171 

AUiston V. Chappie 663 

Allnut, In re 119 

AUoway v. AUoway 552 
All Soul's College v. Codrington 318 

AUum ti. Fryer 476 

Allyn V. Mather 298 

Almosnino, In re 92 

Alt V. Gregory 177 

Ambler v. Norton 458 



XIV 



TABLE OP CASES. 



Ambre v. Weishaar 89 

Ambrose v. Hodgson 888 

American Bible Soc. v. Marshall B5 

V. Pratt 418 

American Tract Soc. v. Atwater 208 

Ames, In re 36, 88 

Amesbury v. Brovpn 650 

Amhurst v. Donelly 803 

Amiss, In re 82 

Amory v. Fellows 90 

V. Meredith 676, 683 

V. Lord 266 

Amphlett v. Parke 584, 636, 637, 639, 640, 

642, 643 

Amson v. Harris 516 

Anderson v. Anderson 74, 645 

V. Jackson 866 

V. Miller 41 

-K. Parsons 342 

V. Read 610 

V. Welch 81 

Anding v. Davis 18, 160 

Andress v. Weller 34, 35, 38, 412, 414 

Andrew I). Andrew 161,338,364,554, 

676, 806, 816, 817, 

818 881 

V. New York Bible Soc' 65,' 219 

V. Trinity Hall 450 

Andrew's Will 798 

Andrews v. Brunefield 676, 722 

V. Dobson 439 

V. Emmot 679 

V. Partington 404 

V. Turner 143, 204 

Angerstein v. Martin 606, 607 

Annable v. Patch 864 

Anshutz V. Miller 318, 324, 864 

Anstee v. Nelms 421, 431 

Anstruther v. Chalmer 2 

Apperson v. Cottrell 31 

Applegate v. Smith 826 

Appling V. Eades 133 

Apreece v. Apreece 897 

Archer, In re 107 

V. Deneale 717 

V. Jegon 851 

V. Legg 747 

Ardersoife v. Bennett 446 

Arkell v. Fletcher 671 

Arraitage v. Coates 296 

V. Wilkinson 850 

Armstrong v. Armstrong 78, 80, 115, 193 

285, 839, 401 

V. Berreman 551 

». Buckland 761 

V. Eldridge 648, 544 

V. Huddlestone 35 

Arnald v. Arnald 162 

Amdt V. Arndt 78 

Arnold, In re 163, 531 

W.Arnold 1,8,754,759,872 

V. Brown 866 

V. Chapman 227, 347, 849, 565 

V. Congreve 272, 295 

V. Dixon 163 



Arnold v. Ennis 611, 615 

V. Kempstead 458, 466 

Arnold's Estate, In re 493 

Arrington v. McLemore 31 

Arrowsmith's Trust 179, 345, 700, 702 

Arthur, In re 107 

V. Arthur 414 

V. Thackinson 863 

Asay V. Hoover 103 

Ash, In re 91 

V. Ash 17, 127 

Ashburner v. Macguire 147, 152 

V. Wilson 370, 375, 434 

Ashby V. Palmer 586, 894, 599 

Asher w. Whitlock 61 

Ashley v. Ashley 280, 283, 801 

V. Waugh 198, 198 

Ashling V. Knowles 480 

Ashmore, In re 81, 82, 110, 810, 844 

Ashton V. Adamson 798 

V. Jones 220 

V. Langdale 211, 222, 223, 226 

V. McDougal 40 

V. Wood 212, 713 

Ashwell V. Lomi 36 

Ashworth v. Outram 40 

Aspinall v. Andus 481, 828 

V. Bourne 222 

V. Duckworth 269, 842 

i;. Petvin 639 

Assay v. Hoover 78 

Astell, In re 91 

Aston V. Wood 384, 566 

Astor, In re 18, 98 

Astley V. Essex 840 

Atchison v. Lindsey 2 

Atherton v. Langford 685 

Atkins V. Atkins 486 

V. Hiccocks 835, 840, 851 

Atkinson v. Jones 765 

V. Paiee 548 

0. Turner 843 
Atkyns v. Atkyns 654 
Atlee V. Hook 40 
Attenborough v. Attenborongh 291 
Att.-Gen. v. Acland 233 

V. Andrew 240, 244 

V. Aspinal 211 

V. Baines 116 

V. Baxter 207, 214 

V. Beatson 3 

V. Boultbee 244 

V. Bouwens 8 

V. Bovill 210 

V. Bowles 233 
V. Bowyer 240, 693, 707 

1). Brackenbury 684 

V. Bristol 578 

V. Brunning 598 

1. Buller 695, 696 
V. Burdett 219 
V. Bury 818 
V. Caldwell" 221 
V. Campbell 8 
V. Carlisle 211 



TABLE OF CASES. 



XV 



Att.-Gen. v. Chester 


232, 251 


■.. Clarke 


210 


I . Cock 


207, 210 


V. Cockerel! 


3 


I . Comber 


208, 210, 214 


V. Coopers' Co. 


S73 


!'. Davies 


227, 231, see 


V. Dimoiui 


3 


V. Doyley 


218, 553, 709 


V. Drapers' Co. 


573 


I' Dnimmond 


233, 423, 425 



0. Duteli Reformed Church 250 
u. Eastlake 208 

1. Exeter 210 
u. Federal St. Meeting House 

208 
V. Fishmongers' Co. 205 



V. Fletcher 

V. Forbes 

V. Giles 

t. Gill 

V. Gladstone 

V. Glegg 

V. Glynn 

V. Goddard 

V. Goulding 

D. Graves 

V. Grote 

V. Guise 

V. Haberdashers' Co 



244, 250, 454 
9 

223, 242 
256 

210, 250 
214 
244 
229 
233, 244, 366, 767 
221 
425 
244 

211, 317, 
572 
221 
209 
598 
598 
244 

207, 210 

233. 366 



V. Harley 

V. Heelis 

V. Henniker 

V. Hertford 

V. Herrick 

V. Hickman 

V. Hinxman 

V. Hodgson 228, 230, 231, 233, 

250 
V. Holford 597 

V. Hope 3 

V. Hull 230 

V. Hurst 221 

V. Ironmongers' Co. 244, 246, 

573 



!• Jackson 
I. Johnson 
V. Johnstone 
V. Jones 
V. Jordan 
V. Kell 
V. Kent 
V. Lanes 
V. Lepine 
V. Lloyd 
I'. Lomas 
V. London 
1'. Lonsdale 
V. Mangles 
V. Matthews 
v. Jletcalfe 
V. Mill 
V. Jliller 
V. Milner 



3 

572 

763 

21, 23, 24 

229 

210 

15 

207, 210 

250 

136, 183, 185 

598 

207, 211, 244, 246 

209. 211 

586, 597, 598 

244 

598 

240 

255 

345 



Att.-Gen. u. Moor 

V. Mountmorris 

I'. Munby 

V. Myrick 

r. Najiier 

V. Nash 

!'. Northumberland 

t. Oglander 

V. Oxford 232 

V Parnther 

V. Parsons 

V. Pearson 

V. Pickard 

V. Pottinger 

V, Poulden 

V. Power 

V. Pratt 

B. Price 

V. Ramsay 

V. Ranee 

V. Rowe 

V. Rye 

I'. Shrewsbury 

V. Sibthorpe 

V. Sidney Sussex Coll 

V. Sinicox 

V. Skinners' Co. 

V. Smith 

r. Southgate 

V. Sparks 

V. Staff 

V. Stepney 

V. Stewart 

V. Sturge 

V. Sutton 

V. Syderfen 

V. Tancred 

V. Tonna 

V. Trinity Church 

V. Tyndall 

t'. Vigor 50, 57, 59, 

152, 655, 

698, 

V. Vint 

I/. Vivian 

V. Wallace 

V. Wansay 

V. Ward 

V. Wax Chandlers' Co 

V. Webster 

V. Weymouth 

V. Whitchurch 

V. Whiteley 

i^. Whorwood 

V. Wilkinson 

V. Williams 

V. Wilson 

f. Wiltshere 

r. Winchelsea 

i\ Windsor 
Atwood t'. Cornwall 
Attree v. Attree 
r. Ha we 
Attridge, In re 
Attwater v. Attwater 541, 



233 

237 

232 

221, 691 

3 

209 

214 

244, 250 

, 245, 240 

38 

2:^8, 232 

207 

598 

14, 15 

304, 312 

240 

3 

214 

697 

244 

14 

219, 378 

211 

378, 379 

211 

597 

573 

597 

236 

572 

3 

211, 233 

242 

207, 250 

554 

244 

240, 250 

672 

219 

236, 250 

150, 151, 

661, 677, 

707, 708 

244 

205 

866 

573 

96, 185 

573 

209. 293 

226, 227 
2-i3 
2JS 

240, 24y 

210, 67SI 

227, 2:50 
250, 573 

7(U 
221, 2:;ii 

56-5 

144 
719, 728 

226 

87 

794, 816 



XVI 



TABLE OF CASES. 



Attwell V. Attwell 588 

Attwood V. Alford 397 

Auburn Sem. ii. Kellogg 472 

Audley's Case 19 

Auldjo V. Wallace 747 

Aulick V. Wallace 486 

Aurand v. Wilt 99 

Austen v. Graham 38 

Austin V. Cambridgeport Parish 6ii3 

V. Willes 31 

Auther v. Auther 424 

Avelyn v. Ward 332, 803 

Avern v. Lloyd 282, 283 

Avery v. Chappell 414, 417 

u. Pixley 78, 135, 141 

Avison V. Simpson 759 

Awbrey v. Middleton 722 

Ayer v. Ayer 798 

Aylett V. Aylett 62 

Ay res v. Methodist Church 219 

V. Waite 708 
Ayrey v. Hill 34, 35, 58 

Axford, In re 35 



B, 

Babb V. Harrison 
Back V. Kett 
Bacon, In re 

V. Gassett 

V. Proctor 
Baddeley v. Baddeley 

V. Gingell 
Badger v. Lloyd 
Badham v. Mee 
Badrick v. Stevens 
Bagley v. Blackman 

V. Francis 
Bagshaw v. Spencer 
Bagster v. Fackerell 
Bagwell V. Dry 

V. Elliot 
Bailey, In re 

V. Bailey 

V. Boult 

V. Lloyd 

!'. Stiles 
Baily, In re 

V. Duncan 
Bain v. Lescher 



21 

322 

92 

162 

276, 306 

40 

378, 423, 795 

255, 262, 661 

400 

147 

80 

6 

820 

631 

339 

81, 193 

43 

2, 6, 20, 31, 78 

188 

681 

31 

176 

458 

343 



Bainbridge v. Ashburton 
V. Bainbridge 
V. Cream 
Baines v. Dixon 
Baird v. Baird 
Baker v. Batt 

u. Butt 

V. Clarke Institution 

V. Dening 

V. Dodson 

V. Parmer 

V. Hacking 

V. Mason 

V. Morley 

V. Newton 



697 
770 
805 
798 
472, 476 



207 
80,82 

98 
766 

60 
759 
388 
356 



Baker v. Sutton 208, 211, 228, 240 

Baker's Will 35 
Baldwin v. Baldwin 181, 228, 230, 242, 

378 

V. Parker 35, 38 

V. Rogers 273, 829 

Balfour v. Scott 2, 9 

Ball, In re 523 

Ballard v. Ballard 338 

V. Carter 156, 707 

Baltimore v. Williams 21 

Bamfield v. Popham 531, 554 

Bamforth v. Bamforth 390 

Bancroft v. Ives 123, 129, 417 

Bangham, In re 18 

Bangs V. Smith 676 

Bankes v. Holme 256, 258, 262 

Banks v. Banks 146 

V. Braithwaite 188 

V. Denshaw 668 

V. Goodfellow 38 

V. Holme 800 

V. Thornton 143, 326, 329, 761 

Bannatyne v. Bannatyne 37 

Bannerman v. Clarke 699 

Baptist Association v. Hart 213, 219 

Barber, Ex parte 699, 702 

V. Barber 342, 747 

V. Wood 441 

Barclay i: CoUett 740 

V. Maskelyne 178, 185, 770 

Barden, In re 28 

Bardswell v. Bardswell 390 

Barford v. Barford 78 

». Street 392 

Barker v. Barker 879 

V. Comins 38 

V. Lea 857, 858 

V. McPerran 31 

V. Rayner ' 147 

V. Suretees 506 

Barksdale v. Gilliat 187, 424 

V. White 473 

Barkworth v. Young 354 

Barlow v. Grant 397 

V. Orde 6 

V. Salter 281 

Bamaby v. Tassell 750, 756 

Barnacle v. Nightingale 492 

Barnard v. Bailey 879 

Barnardiston v. Carter 820 

Barneby v. Tassell 27 

Barnes v. Allen 837, 861 

V. Barnes 86 

V. Brashear 2 

V. Crowe 189, 195 

V. Grant 388, 399 

V. Irwin 41 

u. Rowley 397 

V. Vincent 12, 80 

Barnet v. Barnet 536, 850 

Barnett, In re 207, 250 

V. Blake 43 

V. Tugwell 340 

Barnitz v. Casey 866 



TABLE OF CASES. 



XVU 



Barnum v. Barnum 
Barr v. Graybill 
Barrack v. McCullock 
Barraclough b. Greenhough 
Barrett o. White 762, 

Barrington v. Hereford 

«. Liddell 309, 
Barrow v. Methold 
V. Wadkin 
Barrs v. Fewkes 404, 

Barry v. Butlin 

V. Crundall 
Bartholomew, In re 

V. Henley 
Bartlett v. King 219, 371 



V. Nye 
Barton v. Bigelow 

B. Cook 

V. Croxall 

B. liobins 
Barwick b. MuUings 
Basan v. Brandon 
Baskin b. Baskin 
Bassett's Estate, In re 
Bassil V. Lister 
Bastin v. Watts 
Bate V. Amherst 
Bateford u. Kebbell 
Bateman b. Hotchkin 
0. Mariner 
B. Pennington 
Bateman's Trust, In re 
Bates V. Dewson 

B. Webb 
Batt V. Arms 
Batteley v. Windel 
Battersbee, In re 
Battison v. Bromley 
Battle B. Speight 
Batton B. Watson 
Battyl V. Lyles 
Baud B. Fardell 
Baugh 0. Read 
Baxter, In re 

V. Abbott 

V. Bowyer 

V. Brown 

B. Dyer 
Bayley, In re 

V. Bailey 
I). Bishop 
Baylis v. Att.-Gen. 

f. Sayer 
Bayne v. Crowther 
Baynes v. Prevost 
Beachcroft v. Broome 
Beal V. Wyman 

V. Symonds 
Beales v. Crisford 
Beall V. Cunningham 
V. Deale 
B. Mann 
Bean b. Halley 
Beane b. Yerby 
Bear v. Bear 

VOL. I. 



65, 





288 


290 1 




31,78 1 






40 






29 


771 


772, 


773 
349 


310 


311 


312 

417 
68 


565 


569 


570 




36,37,38 1 






179 




839, 


854 
24 


472, 


473, 


'481 


207, 


214, 


219 
800 
397 




151, 


152 

35 

105 

152 

80 




358 


776 




314 


317 
806 
434 


837 


843, 


844 


276, 


306, 


317 

81 

18 

43 

504 

803 

359 

565 

93 

72 


51 


193 


327 
130 
133 
612 
431 




850, 


860 

38 

504 




223 


225 

152 

79 

17 




398 


841 




244 


441 

87 




397, 


400 
841 
509 
372 
68 
770 
115 
505 




36, 81 1 






554 




So, 81 1 






787 



Beard b. Beard 165 

u. Rowan 69, 864, 865 

V. Westcott 252, 284, 288, 302 

Beardsley v. American Miss. Soc. 431 



Bearpark b. Hutchinson 


62 


Bear's Case 


75 


Beasley b. Macdonald 


715 


Beaty b. Beaty 


102 


Beatty v. Lalor 


769 


Beaubien v. Cicotte 


36,38 


Beauclerk v. Mead 


179 


Beaufoy, In re 


619 


Beaumont v. Fell 


441 


B. Keim 


146 


V. Oliveira 209, 


237, 238, 242 


Beaumont's Trust, In re 


222 


Beavan, In re 


140, 142 


Bebb B. Penoyre 


719 


Beck B. Burn 


842 


Beckett v. Harden 


97, 177 


B. Howe 


108 


Beckford v. Parnecott 


195 


Bective v. Hodgson 


314, 653 


Bedell b. Constable 


34 


Bedford, In re 


142 


V. Bedford 


623 


Beech v. St. Vincent 


S08, 309 


Beekman b. Bonsor 


207, 250 


Beevor b. Partridge 


398 


Belaney B. Belaney 


748 


Belden v. Carter 


168 


Belk V. Slack 


828 


Bell V. Armstrong 


31, 443, 471 


V. Fothergill 


141, 146 


B. Hewitt 


160 


B. Phyn 


520, 521 


Bellis, In re 


697, 703 


Belt V. Mitchelson 


798 


Bempde b. Johnstone 


2,14 


Bender b. Dietrick 


532 


Bending v. Bending 


461, 465 


Benet College v. London 


66 


Bengough v. Eldridge 


96, 252, 504 


Benn v. Dixon 


612, 827 


Bennett, In re 


829 


i^. Aburrow 


679 


B. Bachelor 


756, 759 


B. Bittle 


780, 781 


V. Blair 


223 


B. Davis 


410 


V. Hayter 


245, 248, 376 


B. Jackson 


98 


V. Lowe 


280, 647 


B. Marshall 


4.S3 


B. Sharp 


31, 81, 87 


V. Slierrod 


130, 134 


V. Tankerville 


160 


Bennett's Trusts, In re 


273 


Benoist b. Murrin 


38 


Benson v. Benson 


99, 143 


■;. Whittam 


404 


B. Wright 


320 


Bentinck v. Portland 


273 


Bentley v. Meech 


513 


Benyon v. Maddison 


837, 843 



XVIU 



TABLE OP CASES. 



Berkeley v. Swinburne 


405 


850 


Bizzey V. Flight 


91, 92, 450 


Bernal v. Bernal 




5,6 


Black V. Ellis 




35, 418 


Bernard v. MinshuU 391, 396, 


397, 


552, 


V. Hill 




431 


684 


,687 


763 


V. Jobling 




145 


V. Mountague 




840 


Blackburn v. Edgley 




554, 780 


Bernasconi v. Atkinson 


381 


437 


Blacket v. Lamb 




296, 44!) 


Bernett v. Taylor 




31 


Blackman, In re 




380, 437 


Berry v. Uslier 




625 


Blackwell, In re 




371 


Bessant v. Noble 




747 


V. Bull 


409 


536, 545 


Best V. Conn 




302 


Blagge V. Miles 


130 


676, 727 


(J. Standeven 




676 


Blagrove v. Hancock 




265, 806 


Bethel v. Moore 




170 


Blague V. Gold 




377, 785 


Betliell V. Moore 


130 


132 


Blaiklock v. Grindle 




123, 447 


Bethlehem i\ Persev. Co. 




208 


Blaine v. Chambers 




782 


Betlmn v. Dinmure 




31 


Blair, In re 




79 


Bethune v. Kennedy 614, 616 


618 


619 


Blake, In re 




545 


Bertie v. Falkland 




410 


V. Bunbury 


446, 


451, 458 


Bettisworth's Case 




779 


u. Hawkins 




423 


Belts V. Jackson 


133, 


134 


V. Knight 




81,87 


Betty V. Moore 




879 


V. Luxton 




64 


Beverley v. Att'.-Gen. 


219 


573 


V. Shaw 




758 


Beverley's Case 




35 


Blakemore, In re 




850 


Bibb V. Thomas d. Mole 




130 


Blakeney v. Blakeney 




399, 553 


Bibbens i;. Potter 




364. 


Blakey v. Blakey 




35 


Bibby v. Thompson 




399 


Blamire v. Geldart 




476, 841 


Bibin v. Valker 




528 


Blanchard v. Blanchard 




87, 132 


Bickford v. Clialker 


846 


851 


Bland v. Lamb 


319 


758, 762 


Bickleyu. Bickley 




76 


V. Wilkins 




347, 349 


Biddle v. Perkins 




292 


V. WiUiams 




857, 860 


Biddle's Appeal 




385 


Blaney v. Blaney 327 


339 


351,646 


Biddies v. Biddies 




405 


Blanford !;. Fackerell 




233, 240 


Biddulph V. Biddulpli 


586 


599 


Blann v. Bell 


616, 


617, 798 


Bide V. Harrison 




770 


Blease v. Burgh 




293, 818 


Biederman v. Seymour 




75 


Blennerhasset-r. Day 




80 


Bigelow V. Gillott 




1.35 


Blethen v. Dwinal 




708 


Bigge V. Bigge 




142 


Blewitt, In re 




140 


Biggs V. Andrevvs 




589 


V. Blewitt 




38, 171 


Eilhng V. Billing 




872 


Bligh V. Brent 




225 


Billinghurst v. Vickers 




36 


Blinkliorn v. Feast 




572 


Billingsley o. Harris 




339 


Bliss V. American Bible Soc. 


207 


V. Tongue 




338 


V. Lee 




31 


V. Wills 




844 


V. Smith 




499 


Bingham's Appeal 




677 


Blocher v. Hostetter 




86 


Birch V. Dawson 




753 


Blommart v. Player 




454 


Birch V. Wade 




386 


Bloomer v. Bloomer 




2, 123 


Birchard v. Scott 




208 


Blundell v. Chapman 




516 


Bird V. Bird 




34 


V. Dunn 




318 


V. Harris 


567 


569 


V. Gladstone 423 


436 


437, 442 


u, Hunsdon 




545 


Blundell's Trusts, In re 




205, 208 


V. Maybury 




843 


Blunt V. Clitherow 




6G6 


Birds B. Askey 




840 


V. Gee 




458 


Birdsall v. Applegate 


716, 


719 


Board of Education v. Ladd 


318 


V. Hewlett 


338 


835 


Boardman i: Boardnian 




38 


Birkett, In re 


359 


370 


I'. Woodman 




38 


Birkhead u. Bowdoin 




141 


Bodenham v. Pritchard 




783 


Birks i'. Birks 


176 


425 


Bogardus i'. Clark 




27,31 


Birmingham v. Kirv^an 443, 


458, 


459, 


Bogert V. Hertell 


665 


584, 585 






4ti0 


Bohanon v. Walcot 




132, 137 


Birt, In re 




107 


BoUlry v. Paris 




88 


Birtwliistle v. Vardill 




2 


BoUinif V. Boiling 




227, 887 


Bishop V. Bishop 


327 


338 


Bolton v. Bolton 




808 


V. Curtis 




51 


V. De Peyster 




676 


V. Sharpe 




33 


Bonard's Will 




38 


V. Wall 




40 


Bond, In re 




388 


Bishop's Fund v. Eagle Bank 




208 


V. Seawell 




79, 84, 85 



TABLE OP CASES. 



XIX 



Bonelli, In re 




6 


Bonner v. Bonner 




96, 186 


u. Matthews 




34 


Bonser v. Bradshaw 




28 


V. Kinnear 


388 


391, 395 


Booclier i'. Samford 




782, 794 


Boofter v. Hogers 




99 


Booker «. Allen 




200 


V. Booker 




866 


Boon V. Cornforth 


481 


537, 751 


Boosey v. Gardener 




833, 834 


Booth u. AUington 




766 


0. Booth 


837 


840, 851 


■ V. Carter 




232 


V. Coulton 




616 


Bootle, In re 




28 


V. Blundell 




81 


Bor V. Bor 




446, 469 


Boraston's Case 


805 


843, 849 


Boreham v. Bignall 




325 


Borlase v. Borlase 




37, 130 


Borrell v. Haigh 




665 


Borton v. Borton 




864 


I'. Dunbar 




771 


Bosley v. Bosley 




148, 176 


Boson V. Statham 




233 


Bostick V. Lawton 




505 


Botliamley v. Sherson 




320, 332 


Botsford V. Burr 




417 


Boudinot v. Bradford 


130 


136, 168 


Boughey v. Moreton 




137 


Boughtou V. Boughton 




448 


u. James 


302 


306, 840 


V. Knight 




38 


Boulcott V. Bouloott 




146, 177 


Boulton V. Beard 




861 


V. Pitcher 




843 


Bourne !'. Bourne 




163 


K. Buckton 


309 


311, 313 


Bovey v. Smith 




1 


Bowaman v. Reece 




1 


Bowden v. Bowden 




617 


V. Mount 




615 


V. Laing 




400 


Bowditch V. Andrew 




266, 504 


Bowen 0. Barlow 




692 


u. Bovv^n 




444 


u. Johnson 




148 


Bowers v. Porter 




503, 798 


Bowes, Ex parte 




698 


t/. Bowes 




193, 198 


Bowker o. Bowker 




835, 837 


Bowman v. Millbanke 




357, 358 


Bowra v. Rhodes 




632 


Box V. Barrett 


446, 450, 527 


Boyce v. Boyce 




366 


V. Banning 




292 


Boyd V. Boyd 


24, 26, 36 


0. Cook 


31, 


130, 170 


b. Eby 




38 


V. Latham 




176 


V. McLean 




417 


Boyer v. Frick 




98 


Boyes v. Bedale 




2 


V. Cook 




677 



Boylan v. Meeker 35 

Boys V. Boys 614 

V. Mo'rgan 767 

V. Williams 425 

Boyse v. Rossborough 35, 36 

Brackenbury v. Gibbons 265, 819 

Brackett v. Norton 6 

Braddock, In re 84, 85 

Bradford v. Belfield 711, 713, 728, 735 

c. Foley 814, 825, 831 

Bradish v. Gee 599 

V. Gibbs 41, 677, 679 

Bradley v. Barlow 820, 860 

V. Bradley 410, 418 

V. Cartwright 553 

V. Gibbs 176 

V. Holdsworth 225 

V. Lowry 2, 12 

V. Westcott 679 

Bradshaw v. Bradshaw 378, 437 

V. Ellis 632, 786 

V. Tasker 208 

</. Thomson 379 

Bradshear i\ Macey 255 

Bradstreet v. Clarke 472, 476, 497 

V. Supervisors 69 

Bradwin v. Harpur 503 

Brady v. Cubit 125, 128 

V. Cubitt 193, 744 

Bragge v. Dyer 102, 104 

Braham v. Burchell 31, 41 

Brailsford v. Heyward 481, 503, 652 

Brain v. Brain 154 

Brainerd v. Cowdrey 422 

Braman v. Stiles 422, 472 

Bramhall v. Ferris 584 

Branstrom v. Wilkinson 837 

Brant v. Willson 171, 173, 176 

V. Wilson 137 

Brasher v. Marsh 385 

Brattle Square Church v. Grant, 252, 253, 

255, 266, 297, 663, 866, 869, 878 

Braxton v. Freeman 458 

Braybrook v. Inskip, 689, 695, 696, 697, 

698, 709 



Brearley v. Brearley 


423, 584 


Breathilt v. Whittaker 


18 


Breckenbridge v. Duncan 


409, 431 


Bree v. Perfect 


860 


Breed v. Pratt 


36 


Breedon v. Tugman 


837, 848 


Bremer v. Freeman 


2,6,7 


Brenehley v. Still 


87 


Brest V. Offley 


386 


Breton v. Mochett 


881 


Brett V. Brett , 


72 


V. Rigden 


338 


Brettell, Ex parte 


695, 697 


Brewis, In re 


91 


Brewster, In re 


142 



V. McCaU 51, 99, 327, 338, 379 

Brice v. Brice 471 

V. Smith 86 

Brick V. Brick 35 

Brickenden v. Williams 687 



TABLE OP CASES. 



Bridge v. Abbott 


344 


V. Bridge 


754, 761 


Bridges v. Strachan 


179 


Bridgman v. Dove 


319 


Bridgnortli v. Collins 


814 


Briggs V. Chamberlain 


237, 604 


o. Hartley 


211 


V. Hosford 


458, 467, 551 


V. Oxford 


276 



V. Penny 94, 384, 388, 396, 475, 572 

V. Sharp 401, 606 

V. Watts 150, 153 

Brigbamv. Shattuck 663 

V. Stewart 565 

V. Winchester 51, 166, 707 

Bright, In re 841 

V. Larcher 625 

Brimmer v. Sohier 46, 115, 327 

Brinckerhoff v. Bemsen 80, 86 

Brine v, Ferrier 476 

Brisco V. Brisco 471 

Bristol ». Hungerford 672 

Bristow V. Boothby 256, 262 

V. Bristow 186, 381 

V. Sequeville 6 

V. Skirrow 687 

V. Ward 290, 302 

». Warde 446 

British Museum v. White 82, 209, 211, 

227, 242 

Broach v. Sing 99 

Broad v. Bevan 352, 387 

Brocklebank v. Johnson 400, 475, 482, 

887, 852, 861 

Broderick v. Broderiok 90 

Brodie v. Barry 2, 9, 448 

V. Chandos 23? 

Brogden v. Brown 88 

Brograve v. Winder 71 

Brokan v. Hudson 339 

Bromfield v. Crowder 811, 812, 817 

Bromhead v. Hunt 829 

Bromley v. Wright 628, 837, 841, 842 

Bronson ». Burnett 98 

Brook V. Badley 222 

V. Bradley 148, 227 

V. Brook 888, 552 

V. Chappell 99 

Brooke, In re 140 

V. Brooke 40 

V. Kent 129, 140, 142, 143, 204 

V. Turner 753 

Brooker v. Allen 193 

Brookman v. Hales 565 

Brooks, In re 709 

V. Barrett 88 

V. Brooks 775 

Broome v. Monck 51, 53, 56, 446, 595, 645 

Brothers v. Cartwright 684 

Brotherton v. Bury 489 

Brower v. Fisher 36 

Browers v. Fromm 208 

Brown, In re 652, 684, 694 

v: Att.-Gen. 24 

V. Baptist Soc. 208 



Brown v. Beaver 77, 102 

V. Betts 17 

V. Bigg 604, 623, 626 

V. Brown 98, 133, 184, 146, 178, 

443, 487, 600 

V. Cannon 177 

V. Casamajor 402, 404 

V. Clark 19, 86, 115, 122, 193 

V. Concord 210 

V. Cutter 802 

V. Dale 212 

V. DeXaet 542 

V. DeSelding 80, 87 

V. Dyer 60 

V. Dysinger 721 

V. Gellatly 606, 607, 610, 611, 615 

V. Gibson 31 

V. Gilman 442 

V. Grimes ' 834 

V. Higgs 219, 351, 518, 551, 638, 

646 

V. Jones 580 

V. Kelsey 207, 210 

V. Lapham 693 

V. Lawrence 800, 807 

V. Longley 377 

V. McAIister 82 

V. McGuire 147, 152 

V. MoUeston 36 

V. Parry 469 

V. SaltonstaU 409, 417, 418, 780, 

793 

V. Selwin 410 

V. Shand 18 

V. Smith 14 

V. Thompson 124, 125 

V. Thorndike 147, 168, 172, 409, 

423 

V. Torrey 38 

V. Williamson 302 

V. Wood 31 

V. Wooler 836 

Brown & Sibly, In re 283, 290, 297 

Brown's Case 60 

Will, In re 130, 185, 397 

Browne v. Browne 819 

V. De Laet 533 

V. Hammond 364, 804 

V. Hope 340 

.;. Kenyon 828 

u. Paull 400 

V. Stoughton 276, 306 

Brownell v. De Wolf 171, 193 

Browning v. Budd 36 

Brownsword v. Edwards 507, 509, 510, 

511, 512, 521 

Bruce, In re 3 

V. Bruce 2, 9, 18 

V. Charlton 836, 837 

Brudenell v. Boughton 95, 96, 186 

V. Elwes 302 

Brudnell's Case 524 

Brummett v. Barber 879 

Brunei v. Brunei 12 

Brunsden v. Woolredge 214 



TABLE OF CASES. 



XXI 



Brunson v. Hunter 


386 


V. King 


385 


Brunt V. Brunt 


130 


Brush V. Brush 


147 


V. Scribner 


6 


V. Wilkina 6, 123 


126, 128, 130 


Bryan v. Collins 


805, 314 


V. Twig 


543 


V. White 


86, 110 


Bryan's Trust 


375 


Bryant v. Easterson 


881 


Bryce, In re 


78 


Brydges v. Chandos 


148, 161, 159 


liubb V. Yelverton 


179 


Buccleugh V. Hoare 


11 


Buchanan v. Harrison 274, 


783, 738, 748, 




798 


V. Matlock 


31 


Buck V. Newton 


427 


V. Nurtou 


782 


V. Pike 


417 


Buckell V. Blenkhorn 


31 


Buckeridge v. Ingram 


95, 97, 448 


Buckingham v. Cook 


61,59 


Buckland v. Barton 


679 


V. Charlemont 


15 


Buckle V, Bristow 


385 


V. Buckle 


102 


Buckley v. Gerard 


417 


Buckmaster v. Harrop 


62 


Buckridge v. Ingram 


77 


Buckworth v. Thirkell 


878 


Budd V. Brooke 


31 


Buffar V. Bradford 


341 


Bugbee v. Sargent 


443 


Buggens v. Yeates 


388 


Buist V. Dawes 


443, 867 


Bull V. Bull 


385, 391 


V. Church 


458 


V. Johns 


848 


V. Kingston 


392 


ji.Pritchard 266,819, 


858, 859, 860 


V. Vardy 


392 


BuUard v. Carter 


51 


V. GofEe 


716, 720, 722 


BuIIey, In re 


846 


BuUin V. Fletcher 


157 


Bullock, In re 


80, 108 


V. Bennett 


337 


V. Stones 


652, 865 


Bulwer v. Norris 


225 


Bunco V. Vandergrift 


584 


Bunch V. Hurst 


837 


Bundy v. McKnight 


87 


Bunn V. Winthrop 


753 


Bunny v. Bunny 


182 


Bunter v. Coke 


50, 61, 150 


Bunting w. Marriott 


222 


Burbank v. Whitney 


65, 219, 879 


Burch V. Stovall 


98 


Burchett v. Durdant 


819 


Burdett v. Hopegood 


76 


V. Spilsbury 


110 


Burdus V. Dixon 


698, 707 


Burford v. Burford 


78 



Burfort v. Burfoots 
Burgess v. Burgess 
V. Wheate 
Burgoigne v. Fox 
Burgoyne v. Showier 
Burke v. Valentine 
Burkett, In re 
Burleigh v. Clough 
Burley v. Evelyn 
Burls V. Burls 
Burnaby v. Barsby 
Burnet i;. Burnet 
V. Foster 
Burns u. Burns 
Burr V. Smith 
Burrell v. Baskerfield 

V. Egremont 
Burrill v. Boardman 
Burritt v. Silliman 
Burrough v. Foster 

jj. Philcox 
Burrows v. Burrows 
V. Cottrell 
Burt V. Burt 
•>. Herron 
V. Sturt 
Burthe v. Dennis 
Burton v. CoUingwood 
V. Conigland 
V. Gowell 
V. Hillyar 
V. Horton 
V. Mount 
V. Newbery 19, 
Burtonshaw v. Gilbert 
Burtt, In re 
Burwell v. Corbin 
Bush V. Cowen 

V. Sheldon 
Butcher v. Kemp 
V. Leach 
Bute V. Harman 

o. Stuart 
Butler V. Baker 
V. Benson 
V. Butler 
V. Gray 
V. Greenwood 
Butricke a. Broadhurst 
Butterfleld v. Hamant 
V. Raskins 
Button V. Araer. Tract 
Buzby's Appeal 
Byam v. Munton 
Byas V. Byas 
Byne v. Blackburn 

V. Currey 
Bynum v. Bynum 
Byrd, In re 
Bym V. Godfrey 
Byrom v. Brandreth 

C. 

Cadburyi-. Smith 222 

Cadell V. Palmer 252, 255, 269, 280, 290 



866 

179 

68 

150 

86, 87, 143 

265 

370 

866 

280, 668 

133 

220 

431, 645, 652 

565 

130, 132, 133, 168 

65 

616, 692, 594 

186 

208, 251 

73 

265 

518, 552 

38 

188, 189 

176 

385 

309, 312, 313 

427 

18 

863 

172 

618 

644 

615, 616 

117, 190, 460, 651 

130, 135, 137 

714 

31,81 

684 

31 

460 

837, 848 

860 

386 

61 

108 

252, 255, 318, 324 

552, 681, 873 

178 

443 

486 

506 

See. 378, 417, 431 

320 

627 

666 

405 

188 

18 

82, 84, 89, 110 

415 

770 



xxu 



TABLE OF CASES. 



Cadge, In re 




144, 759 


Carrington v. Payiie 31, 


180, 


181, 183 


Cailman i;. Cadman 




163, 748 


Carroll v. Carroll 51 


,99, 


326, 327 


Cadogaii v, Kennett 




880 , 


V. Norwood 




50 


Oadywold, In re 




125 


Carte v. Carte 199, 


321, 


322, 339 


Cafe V. Bent 




616, 618 


Carter v. Balfour 




378 


Cagney v. O'Brien 




417 


.;. Bentall 




255 


Cain V. Teare 




851 


V. Church 




581 


Caldecott v. Caldecott 


611 


613, 61C 


V. Green 




228, 250 


Caldwell v. Kinkead 




885, 837 


V. Haswell 




644, 651 


V. Willis 


266 


486, 504 


V. Taggart 




767 


Calhoun v. Furgeson 




378, 776 


V. Thomas 




51, 147 


Calloway v. Doe 




2 


Cartledge, In re 




836 


Calm, In re 




431 


Cartwright v. Cartwright 




87,38 


Calthorpe v. Gough 




823 


V. Shepheard 




179 


Calverlye's Case 




41 


Gary v. Abbott 


205, 


207, 244 


Calvert v. Armitage 




23, 237 


V. Gary 




386 


V. Davis 




35 


Carver, In re 




80 


V. Johnston 




365 


V. Bowles 




296, 449 


Camac's Trust, In re 




399 


V. Burgess 




859 


Cambridge v. Rous 


286,645,646,759, 


Gasborne v, Scarfe 




689, 695 






762, 828 


Case V. Drosier 




259, 275 


Camden v, Benson 




400 


Casement v. Fulton 




• 110 


Camfleld v. Gilbert 


725, 731 


738, 745 


Casey's Case 




12 


Camoys v. Blundell 




383, 442 


Gasmore, In re 




106 


Campbell v. Bouskell 




371, 481 


Gassell v. Gooke 




546 


u. Brownrigg 




874 


Gassels v. Vernon 




31 


V. Cowdrey 




612 


Casson v. Dade 




88 


V. French 




183 


Gasterton v. Sutherland 




653 


V. Garven 




31 


Castle V. Castle 




400 


V. Harding 




281 


u. Eate 




582, 839 


u. Lucy 




28 


V. Fox 




327, 880 


V. Prescott 




758 


Castleton v. Turner 




419 


V. Radnor 




29, 240 


Gastner's Appeal 




503 


V. Rous 




284, 285 


Gaswall, Ex parte 




677 


V. Sandys 




64 


Catclimay v. Nicholas 




879 


V. Sheldon 




2 


Gate V. Cranor 




769 


Canfield v. Bostwick 


46, 818, 326, 409 


Gathrow v. Eade 




51 


Cant's Estate 




163 


Gatlett V. Gatlett 




80 


Cantley, In re 




700 


Catlin V. Brown 255, 269, 


270, 272 


Capel V. Girdler 




52 


Gaton V. Caton 




18 


V. Robarts 




431 


V. Ridout 




39 


Caplin, In re 




552, 688 


Gator V. Gator . 




186 


Car V. Ellison 




58 


Gattley v. Vincent 




831 


Card V. Grinman 




168 


Cattrall, In re ' 




120 


Garden v. Tuck 




779 


Caulfield v. Maguire 




611 


Carder v. Fayette Co. 




444 


Cavan v. Pulteney 


444, 


446, 454 


Careless v. Careless 




435 


Gave i>. Cave 




424 


Carey, In re 




122 


V. Holford 




50, 150 


V. Askew 


101 


, 108, 447 


Cavendish v. Cavendish 




751 


V. Dennis 




21 


Gavett's Appeal 




78 


Carleton v. Griffin 




115 


Gawood V. Thompson 




23, 571 


Carlton v. Carlton 




112 


Cawthorn, In re 




18 


V. Griffin 




84 


V. Haynes 




36 


I). Thompson 




799 


Cesar v. Chew 


412, 417, 418 


Came v. Long 




212, 293 


Chace v. Ghace 




418 


Carnegie v. Morrison 




6 


Ghadwick v. Greenall 




860 


Carpenter, In re 




706 


Ghatfee v. Baptist Miss. Soe. 


82,86 


V. Heard 


340 


, 505, 506 


Chaffers v. Abell 




837, 841 


Carr v. Collins 




631, 632 


Chalmers v. Storil 462, 464 


465 


466, 761 


V. Ellison 




599, 665 


Ghaloner v. Butcher 




599 


V. EJrroU 




256, 866 


Chamberlain v. Chamberlain 


2, 207 


V. Living 




400 


V. Stearns 




209 


V. Lowe 




5 


V. Turner 


835 


377, 788 


V. M'Camm 




36,37 


Chamberlayne v. Brookett 


231 


248, 250 


Carrick v. Errington 




565, 574 


Chambers v. Atkins 




899 



TABLE OP CASES. 



XXUl 



Chambers v. Brailsford 483 


565 


576, 583 


Choppin V. Dillon 


139 


t). Chambers 




612 


Choyce i: Ottey 


761 


(,. Hutchinson 




687 


Christian, In re 


82 


V. McIJaniel 




19,20 


Christie v. Gosling 


275 


V. Minchiii 




409 


V. Ovington 


709 


V. Queen's Proctor 


87 


Christmas v. Whingates 


141, 144 


V. Wilson 




865 


Christopher v. Christopher 


124 


V. Yatraan 




38 


Christ's Hospital v. Grainger 


2a2 


Chamney, In re 




84 


Chrystie v. Pliyfe 


500, 511 


Ohampney v. Davy 




766 


Church V. Bull 


454 


Chance v. Chance 




848 


V. Crocker 


122 


Chandler «. Barrett 




38 


u. Hubbart 


6 


u. Ferris 




37,38 


V. Kemble 


296, 449 


V. Howell 




222, 226 


V. Mundy 


661, 662 


Chandless v. Price 




473 


Church Building Soc. v. Coles 


242 


Cliandos v. Talbot 




834, 837 


Church's Will, In re 


40 


Chapin V. School District 




208 


Churchill V. Churchill 


449 


Chaplin v. Leroux 




75 


V. Dibben 39 


679, 724 


Chaplin's Trusts, In re 




269 


Churchman v. Ireland 


322, 448 


Chapman, In re 146, 


189, 


191, 411 


Cilley V. Cilley 


80 


V. Blisset 




263 


Circuitt V. Perry 


527, 651 


V. Brown 298, 


359, 


366, 367, 


Clancy, In re 


230 






369, 370 


Clapp V. Fullerton 


38 


V. Chapman 




756 


V. Stoughton 


65, 837 


V. Gibson 




664 


Clarendon v. Barham 


693 


V. Gilbert 




481 


ClaringbuU, In re 


120 


V. Hart 


665 


669, 670 


Clark V. Clark 77, 79, 828, 880 


V. Prickett 




720 


V. Dounorant 


86 


a. Reynolds 




772 


V. Eborn 


170 


Chappel V. Avery 




802 


V. Fisher 


27, 38 


Chard v. Tuck 




779 


V. Hyman 


716, 7-21 


Charlton v. Hindmarsh 83, 89 


110, 111 


... Piatt 


288 


V. Miller 




161 


0. Phillips 


269, 342 


Charman v. Charman 




753 


V. Smith 


134 


Charter v. Charter 


381, 


382, 437 


V. State 


38 


Chase v. Cockerman 




473 


V. Taylor 212, 246 


247, 248 


0. Kittredge 80, 


82, 


36, 87, 89 


V. Wright 


31 


V. Lincoln 




31 


Clark's Will 


141 


V. Plummer 




385 


Clarke, In re 


78 


Chatfield v. Berchtoldt 




8 


I: Abbott 


691 


Chatteris «. Young 




188 


V. Burgh 


154 


Chaunter v. Chaunter 




31 


V. Burgoine 


162 


Chaworth v. Hooper 




887 


w. Butler 


178, 823 


Cheeney v. Arnold 




31 


V. Clemmans 


341 


Cheese v. Lovejoy 




142 


V. Clemmens 


4i)9 


Cheney's Case 




410 


V. Colls 


521, 523 


Cherry v. Mott 


237, 


246, 248 


V. Dunnavant 


31 


Chestnut v. Strong 




613, 837 


V. Franklin 


631 


CHiester o. Chester 242, 


654, 


655, 791 


u. Guise 


4ol 


V. Urwiek 




417 


V. Hilton 


569, 671 


Chevaux v. Aislabie 




842 


V. Lubbock 


827 


Chew's Appeal 




807 


V. Scripps 131, 132 


141, 142 


Chichester v. Biekerstaff 




600 


V. Smith 


75, 865 


Child V. Ellsworth 




29 


V. The Panopticon 


710 


V. Elsworth 




499 


Clarke's Estate, In re 115,212, 


320, 327 


Children's Aid Soc. v. Loveridge 


35 


' Clarkson v. Clarkson 


133, 135 


Childs V. Russell 




835 


Clavering v. Ellison 


480 


Chinn v. Respass 




532 


Clay V. Hart 


458,-584 


Chipchase v. Simpson 




616 


Clayton v. Greyson 


421 


Chisholm v. Ben 




80 


V. Lowe 


478 


Chitty V. Parker 




565, 632 


V. Nugent 


421 


Cholmley's Case 




207 


17. Somers 


854 


Cholmondeley, In re 




598 


Clements v. Cassye 


730 


V. Cholmondeley 


386, 391 


V. Kyles 


326 


Cholmondley v. Clinton 




75 


V. Paske 


492 



XXIV 



TABLE. OP CASES. 



Clementston v. Gandy 


420, 


452, 454 


Collard v. Sampson 




81 


Clencli V. Cudmore 




34 


Collett y. Collett 




613 


Clendening v. Clymer 




147 


Colleton V. Garth 




469 


Cleoburey v. Beckett 




172, 1»2 


Col ley, In re 




850 


V. Cleoburey 




176 


Collier y. Collier 




46 


Clere's Case 




676, 677 


y. Langebear 




92 


Clergy Soc, In re 245, 248, 376, 


379, 441 


y. Kivaz 




6,7 


Cleveland o. Lyne 




38 


y. Squire 




753, 772 


Cliffie V. Gibbons 




717 


Collier's Will 676, 799, 806 


807, 835 


Clifford 0. Arundell 




769 


Collin V. CoUin 




46 


V. Clifiord 




693 


Collingwood u. Pace 




67,70 


11. Francis 




264 


V. Row 




57 


V. Koe 




503 


Collins V. Collins 


616 


617, 775 


Clifton V. Haig 




879 


V. EUiott 




31 


V. Murray 




37 


t. Janey 




443 


V. Robeson 




35 


V. Nichols 




31,82 


Clingan v, Mitcheltree 




' 148 


V. Wakeman 347, 


565, 


624, 626, 


Cloberry c. Lampen 




837 


632, 


635, 


638, 639, 


Clogstoun V. Walcott 




145, 681 






640, 647 


Clough V. Clough 122, 


123, 


155, 324 


CoUinson v. Girling 




419 


Cloves B. Awdry 




688 


V. Pater 




221 


Clowes V. Clovfes 




762 


Collis V. Robins 




667, 626 


Cluft V. Cluff 




222 


CoUison's Case 




219 


Clulow's Trusts, In re 




311, 312 


CoUyer v. Burnett 




250 


Coales, In re 




3 


Colpoys y. Colpoys 




425, 430 


Coalter v. Bryan 




74 


Colshead, In re 




177, 747 


Coard v. Holderness 




737 


Colson, In re 




397, 576 


Coates V. Hart 




524 


Colt y. Hubbard 




806, 854 


V. Hughes 


31 


123, 127 


Colton V. Ross 




27 


V. Needham . 




581 


Colvin V. Fraser 




27 


V. Woodworth 




708 


y. Frazer 




134, 137 


Coates's Appeal 




391 


Combe v. Hughes 




312, 874 


Cobbold V. Baas 




102 


Combe's Case 




38 


Cock V. Cooke 




25, 545 


Comber, In re 




681 


Cockayne, In re 




133 


Combs y. Jolly 




80,81 


V. Harrison 




881 


Comfort y. Mather 


838 


409, 431 


Cockcraft v. Eawles 




36 


Commissioners of Charitable Dona- 


Cockran v. Cockran 




820, 613 


tions y. Devereux 




3 


Cockrell v. Coekrell 




12, 15 


Commissioners of Inland Revenue v. 


Cocks V. Manners 


210 


211, 212 


Gordon's Executors 




15 


Cockshott !). Cockshott 




536 


Commissioners of Donations v 


De 


CofSn V. Coffin 




36, 80, 87 


Clifford 




252 


Cofield V. Pollard 


200 


337, 677 


Commonwealth v. Kiel 




339 


Cogan V. Stephens 




620 


V. Martin 




69 


Cogbill V. Cogbill 




144 


V. Nashe 




838, 341 


Cogdell V. Cogdell 193, 443 


689, 694 


V. Rich 




38 


Coggeshall v. Pelton 




209 


Company of Pewterers v 


Christ's 


Cogswell ". Armstrong 




651 


Hospital 




257 


Coit V. Patchen 




35 


Comport V. Austen 


266 


849, 850 


Coke V. Bullock 




476 


Compton V. Bloxham 




29 


Colberg, In re 




133 


V. Oxendon 




693 


Colburn v. Hadley 




339 


Comstock V, Hadlyme 38 


,74, 


412, 414, 


Cole, In re 




188 






417 


V. Fitzgerald 




753, 758 


Conduitt y. Soane 




582 


V. Rawlinson 




500 


Cong. Soc. V. Hatch 




878 


V. Scott 




327, 334 


Coningham v. Mellish 




665, 670 


V. Sewell 256, 258 


262 


263, 292 


Conklin y. Conklin 




255 


V. APade 


181 


484, 709 


Connolly v. Pardon 




431 


Colegrave v. Manby 




321 


Conolly V. Farrell 




401 


Coleman, In re 


88, 89, 564 


Conover v. Chapman 




2 


V. Robertson 




36,88 


Constable y. Bull 




864 


Cpleman & Jarrom, In re 




342 


Constantine v. Constantine 




472, 473 


Coles V. Treoothick 




80 


Converse v. Converse 




88 


Colgate V. Colgate 




461 


Converse v. Wales 




417 


CoUagan v. Burns 




134 


Cook V. Cook 




632 



TABLE OF CASES. 



XXV 



Cook V. Farrand 




363, 365 


Courtoy v. Vincent 


187 


V. Gerrard 537, 


647 


654, 798 


Cousins V. Schroder 


842 


V. Holmes 




473 


Coutts V. Ackworth 


447 


V. Hutchinson 




565 


Covenhoven v. Shaler 


472 


V. Jaggard 




748 


V. Shuler 472 


486, 500, 880 


V. Oakley 




751 


Coventry v. Lauderdale 


523 


V. Parsons 




80,81 


CoTcrdale v. Lewis 


97 


V. Stationer's Co. 


846 


347, 565 


Coward, In re 


40 


Cooke, In re 




141, 142 


V. Marshal 


175 


V. Bowler 




282 


Cowden v. Dobyns 


31 


V. Cholraondely 




37, 798 


Cowdin V. Perry 


806 


V. Crawford 20, 710, 


713 


714, 715 


Cowley V. Hartstonge 


588, 594 


V. Cunliffe 




683 


Cowling V. Cowling 


770 


V. Dealey 




163 


Cowman v. Harrison 


401 


V. Lambert' 




79 


Cowper V. Mantel! 


200, 398 


V. Mirehouse 




507, 513 


V. Scott 


446, 887 


Cookes, In re 




592, 594 


Cowx V. Foster 


681 


V. Hellier 




446 


Coxw. Bennett 164, 327, 329, 785 


Cookson V. Cookson 




588, 601 


0. Chamberlain 


685 


V. Hancock 




175, 177 


V. Cox 


610 


V. Reay 




588, 601 


V. Davie 


231, 232 


Coombes v. Gibson 




666 


V. Marks 


879 


Coombs, In re 




107 


Cox's Note 


642 


V. Queen's Proctor 




40 


Cox's Will, In re 


84,89 


Cooper, In re 




147 


Coxe V. Bassett 


96 


V. Bockett 84, 87, 89, 


110 


143, 144 


Cozzens's Will 


80 


V. Cooper 445, 447, 


449 


584, 863 


Crabb v. Crabb 


454 


V. Day 




186, 189 


Crabtree v. Bramble 


595, 599 


V. Maodonald 




39 


Cradock v. Owen 64, 69, 571, 625 


V. Pitcher 




663 


Grafton v. Frith 


210, 229 


V. Thornton 




401 


Craig V. Beatty 


397, 565 


V. Williams ' 




S6i 


V. Craig 


302, 312 


Cooper's Estate, In re 




18 


V. Leslie 


69, 584 


Cooper's Trusts, In re 




845, 347 


V. Seobie 


704 


Cope, In re 




83 


V. Wheeler 


617, 618 


V. Wilmot 




359 


Craighead v. Given 


339 


Coppin V, Coppin 




839 


Craigie v. Lewin 


12,15 


V. Dillon 




105 


Cramer v. Crumbaugh 


36 


V. Fernyhough 




195, 321 


Cramp V. Playfoot 


227, 370 


Corbet's Case 




877 


Crane v. Crane 


467 


Corbett, In re 




872 


Cranley v. Dixon 


546 


Corbyn v. French 232, 


245, 246, 618 


Cranswick v. Pearson 


543 


Cormaek v. Copous 




851 


Cranvel v. Sanders 


169 


Corneby v. Gibbons 




18 


Craven, In re 


516 


Corneck v. Wadman 




829 


V. Brady 


574, 581 


Cornelison r. Browning 




2 


Cravens v. Faulconer 


80 


Cornelius's Will 




78,80 


Crawhall, In re 


758 


Cornick v. Pearce 




590 


Crawley v. Crawley 312, 


313, 610, 611, 


Cornwell v. Isham 




71 




612 


Cory Society v. Beatty 




208 


Creagh v. Blood 


37 


Coryell v. Dunton 




677 


Creasy v. Alverson 


377 


Coryton v. Helyar 




481 


Cregreen v. Willoughby 


87 


Cosnahan, In re 




5 


Cremorne v. Antrobus 


753 


Costabadie v. Costabadie 




401 


Cresson's Appeal 


209, 327, 489 


Cotter V. Layer 




122, 161 


Cresswell v. Cheslyn 


171,203 


Cotton V. Cotton 


616 


618, 834 


V. Cresswell 


74, 232 


V. Heath 




280 


V. Lawson 


443, 486 


V. Smitliwick 




356 


Crichton v. Grierson 


208 


V. Ulmer 




38 


V. Symes 


735, 756 


Cottrell V. Cottrell 




176 


Crickett v. Dolby 


837 


Couglilin V. Ponlson 




38 


Crisp V. Walpole 


100 


Coultliurst V. Carter 




823, 851 


Crispell v. Dubois 


36 


County Commrs. v, Rogers 




208, 210 


Crissman v. Crissman 


476 


Court V. Buckland 




627 


Crittenden v. Brainard 


708 


Courtier v, Oram 




296, 870 


Crocker v. Crocker 


418 



XXVI 



TABLE OP CASES. 



401, 402 

87 

86 

345, 679 

2, 99 

7, 118, 143 

285 

708 

473 

688 

516, 767 

548 

236 

193 

117, 189, 190, 200 

20 

27, 31 

318, 417 

68 

551 

474 

444 

186, 542 

614, 617 

655 

706 

31 



Crockett v. Crockett 
Croft V. Croft 
V. Pawlett 
V. Slee 
Crofton V. Ilsley 
Croker v. Hertford 
Crompe v. Barrow 
Cromwell a. Banks 
Crone v. Odell 
Cronin v. Roche 
Crooke v. De Vandes 
Cropton V. Davies 
Crosble v. Liverpool 
V. McDouall 
V. Maodoual 
Crosby v. Mason 
Crosland v. Murdock 
Crosley a. Clare 
Crosse v. De Valle 
Crossling v. Crossling 
Crossman v. Bevan 
Crostwaight v. Hutchinson 
Crowder v. Clowes 
Crowe V. Crisford 

V. Noble 

Crowe's Mortgage, In re 

Crowell V. Kirk 

Crowley v. Crowley 

Crbwninshield v. Crowninshield 38 

Crozier v. Crozler 480, 553, 581 

Cruger v. Heyward 654 

Cruse 0. Barley 347, 565, 623, 632, 637, 

640, 642, 647, 837 

o. Howell 343 

Crutclier v. Crutcher 77 

Cruwys v. Colman 651 

Cryps V. Grysil 699 

Cudney v. Cudney 35 

Cud worth 0. Hall 879 

Cuff V. Hall 692 

Cull V. Showell 445 

CuUey V. Doe 50 

V. Doe d. Taylerson 50 

Culpepper v. Aston 565 

Culsha V. Cheese 341, 651 

Cuming, In re 706 

Cumraings «. Shaw 390 

Cunliffe v. Brancker 874 

Cunningham, In re 82, 83, 145 

V. Butler 788 

V. Moody 685 

u. Murray 762 

Cunynghame's Settlement, In re 296 

Curling v. May 689 

Curnick v. Tucker 390 

Curre v. Bowyer 160 

Current v. Current 632 

Currie v. Bowyer 65 

V. Pye 221, 236 

Curteis v. Kenrick 677 

V. Wormald 632 

Curtis V. Graham 388 

V. Hutton 227, 236, 240 

V. Lukin 283 

u. Rippon • 392 



Cushing V. Aylwln 
Cust V. Goring 

V. Middleton 
Custance v. Bradshaw 
Cuthbert v. Lampriere 
Cutter V, Butler 
Cutto V. Gilbert 
Cutts V. Haskins 



D. 



99, 327 

11 

798 

598 

476 

41 

146, 171, 173 

15 



Da Costa v. De Pas 244 

Dacre, v. Patrickson 671 

D'Aglie V, Fryer . 614 

Daintry v. Daintry 557, 560 

Dalby v. Champernon 654 

Dale V. Bartley 651 

V. White 799 

Daley, In re 12, 15 

Dallow, In re 91, 107 

D'Almaine v. Moseley 721, 728, 736 

Daly V. Daly 177 

Damer v. Janssen 414 

Dan V. Brown 31, 130, 133, 411 

Dancer v. Crabb 135 

Danforth v. Talbot 807 

Daniel v. Gossett 831 

V. Nockolds 170 

V. Warren 615 

Daniel's Trusts, In re 493 

Darby In re 92 

V. Darby 831 

u. Mayer 27, 31 

Darkin v. Darkin 40 

Darley v. Darley 150, 179 

V. Langworthy 160, 179 

V. Martin 532 

Darlington v. Pulteney 18 

Darlow v. Edwards 326 

Darrington v. Borland 27 

Dashiell v. Attorney-General 219, 665 

V. Dashiell 879 

Dashwood v. Peyton 446, 627, 535 

Da Silva, In re ' 17 

Daubeny v. Coghlan 3t<3 

Davell V. New River Company 68 

Davenhill ». Davenhill 845 

Davenport u. Coltman 425, 541, 665, 632 

671, 717, 731, 741 

V. Hambury 516 

V, Mortimer 229 

Davers v. Dewes 551, 763 

David, In re 680 

V. Rees 576 

Davidson, In re 599, 600 

V. Dallas 860 

V. Foley 679 

V. Procter 842 

V. Rook 519 

V. Toby 566 

Davidson College v. Chambers 65 

Davies, In re 108, 684, 687 

V. Ashford gOO 

V. Beavershani 58 



TABLE OP CASES. 



XXVll 



Davies v. Davies 


31, 82, 678 


V. Kislier 




845, 860 


V. Goodhew 




893 


V. Hopkins 




545, 747 


u. Richards 




829 


V. Tliorns 




679 


Davis, In re 


80, 


108, 110 


V. Barrett 




693 


V. Bennet 




476, 480 


V. Boggs 




481, 504 


V. Calvert 




35, 36, 38 


V. Davis 


31,36 


133, 547 


V, ELmes 




339 


V. Estey 




2 


V. Gibbs 




669 


0. Kemp 




341 


V. Nevfton 




747, 831 


V. Norton 




808 


V. Parker 




863 


V. Rogers 




35, 101 


V. Sigourney 




31, 134 


V. Williams 




77 


Davy V. Smith 




87 


Dawes v. Boylston 




2 


V. Head 




2 


Dawkins v. Tatham 




187 


Dawson v. Bourne 




872 


V. Clarke 




565, 571 


u. Dawson 




27 


V. Hearn 




397 


V. Killet 




835, 837 


V. Small 




211, 369 


V. Smith 




134 


Day, Ex parte 




18 


V. Barnard 




523 


u. Croft 




186 


V. Daveron 


684, 731 


740, 743 


V. Daveson 




717 



V. Day 31, 35, 37, 398, 518, 

543, 841 

V. Trig 378, 673, 785 

Dayrell v. Glasscock 31 

Deakins v. Hollis 486 

Dean v. Dean 31, 80 

V. Gibson 761 

V. Negleg 35 

De Bathe v. Fingal 115 

De Beauvoir, In re 164 

V. De Beauvoir 587 

De Bonneval v. De Bonneval 14 

De Bruler o. Ferguson 210 

De Chatelain c. De Pontigny 30 

De Costa v. De Pas 208 

De d'Gord v. Needs 417 

Deerhurst v. St. Albans 277 

Deering v. Adams 532, 533 

o. Tucker 716 

Deford o. Deford 288, 646 

Deg V. Deg 451 

D'Huart v. Harkness 30 

Deighton, In re 851 

Delhi 0. King 876 

Delacherois v. Delacherois 59, 326 

Delafield v. Hand 6 

V. Parish 87, 38 



DeLancey, In re 




598 


De la Saussaye, In re 




173, 190 


Dela.y v. Vinal 




471 


De Lisle v. Hodges 




767 


Delmare v. Rebello 


883 


417, 438 


Demarest v. Winkoop 




708 


Dempsey v. Lawsou 


175 


182, 183 


Deneh v. Dench 




143 


Denison v. Hyde 




6 


Den V. Ayers 




27 


V. Bolick 




417 


V. Cooper d. Wills 




705 


V. Drew 




719, 798 


V. English 




505 


V. Flora 




422 


V. Johnson 




38 



V. Kemeys d. Wilklns 785 

V. Manners 798 

V. JWilton 31, 80, 81, 82 

V. M'Mutrie 356 

V. Mugway 505 

V. Page 280 

V. Payne 721 

V. Roake 678 

V. Satterthwaite 806 

V. Taylor 866 

V. Trout 533, 747, 760 

Denn v. Bagshaw d. Eadcliffe 821 

Denne v. Wood 72 

Dennis v. Weeks 35 

Denny v. Barton 24, 173 

Denson v. Beazley 38 

Dent V. AUcroft 228, 231 

Denton v. Franklin 35, 81 

o. Manners 227, 228, 242 

Denyer v. Druce 244, 250 

Denyssen v. Mostert 18 

De Peyster v. Clendining 327, 613, 880 

De Rosaz, In re 442 

Desesbats v. Berguire 2 

Despard v. Churchill 2 

De Themines v. De Bonneval 208, 250 

De TrafEord v. Tempest 765 

Deupree v. Deupree 86, 129 

Deveaux v. Barnwell 443 

Dew V. Clark 38 

Dewar v. Brooke 810 

0. Maitland 449 

Dewell, In re 110 

Dewey v. Dewey 31, 81, 87 

V. Van Deusen 707 

De Windt v. De Windt 498 

Dewitt V. Baley 38 

V. Yates 422 

D'Eyneourt v. Gregory 576, 653 

Dexter y. Arnold 708 

u. Gardner 251 

Dicken v. Clarke 823 

Dickens, In re 92, 93 

Dickenson v. Blissett 34 

Dickenson v. Dickenson 77, 135 

Dickey v. Malechi 31 

Dickie v. Carter 82 

Dickinson v. Barber 38 

V. Purvis 338 



XXVlll 



TABLE OP CASES. 



Dickinson v. Swanton 




136 


Doeti. Challis 


287, 


288, 876 


Diuks V. Lambert 




551, 693 


V. Chapman 




733, 735 


Dickson In re 




86 


V. Chichester 




452 


V. Robinson 




458, 464 


V. Clarke 




647 


Diez's Will 




18 


V. Collins 




427, 780 


Digby V. Legard 




565, 642 


V. Considine 




800, 807 


Dilkes, In re 




85 


V. Cooke 


507, 


522, 827 


Dilworth's Case 




225 


V. Cooper 




50 


Dillaye v. Greenough 




565 


V. Copestake 




213,227 


Dillon V. Dillon 




64 


V. Cranstoun 


378, 673, 785 


V. Grace 




39 


V. Cross 




19,26 


' V. Harris 


91 


521, 747 


V. Cundall 




806 


!'. Parker 




445,471 


V. Dacre 




800 


Dimes v. Grand Junction Canal Co. 707 


V. Danvers 




58, 381 


V. Scott 


606, 607 


608, 610 


V. Davies 




86, 474 


Dimond v. Bostook 




342 


V. Davis 




82 


Dingle v. Dingle 




105 


V. Davy 




193, 506 


Dingwell v. Askew 




155 


V. Deakin 




31 


Dinmore, In, re 




106 


V. Dring 


725, 735, 745 


Di Sora v. PluUippa 




6 


V. Earles 


725, 


745, 750 


Ditclibourn v. Fearn 




38 


w. Edlin 




344, 645 


Dixon V. Butler 




281 


V. Evans 


115, 118, 


183, 728 


V, Dawson 


625 


631, 671 


V. Ewart 




806 


V. Dixon 




401 


V. Byre 


296, 868, 


869, 870 


V. Gayfere 




599 


V. Flemming 




371 


V. Ramsay 




2,31 


V. Fonnereau 


262, 


865, 876 


V. Sampson 




452 


V. Ford 




831 


Dixon's Appeal 




135 


V. Fossick 




649, 655 


Doane v. Lake 




129 


V. Freeman 




805 


Dobson, In re 




18 


V. Fyldes 




485 


ti. Banks 




762 


V. Gallini 




504 


V. Bowness 


718 


728, 729 


V. Galloway 




787, 792 


Dqckum v. Robinson 




98, 103 


V. Cell 




744 


Dodd V. Wake 




264 


V. Gilbert 




735 


Dodge V. Dodge 




458 


V. Gillard 


424, 


730, 792 


V. Pond 




595 


V. Girard 




46 


V. Williams 


210, 220, 250, 595 


V. Greathed 




787 


Dodger v, Williams 




251 


V. Greening 




418, 794 


Dbdgson, In re 




839 


V. Gunnis 




280 


Dodson V. Green 




377 


V. Hardy 




415 


V. Hay 




585, 852 


V. Harris 


81 


131, 227 


Doe V. Aldridge 




212 


V. Harvey 




473 


1). AUcock 




500 


V. Haslewood 




542 


V. Allen 


415, 425, 


433, 438 


V. Hawthorn 




207 


V. Ashley 




789 


V. Hazlewood 




731 


V. Barford 




123 


V. Heneage 




866 


V. Bartle 




58, 657 


V. Hersey 




70 


V. Beauclerk 




866 


V. Hickman 




58 


V. Bell 




778 


V. Hicks 




177 


V. Bennett 




699, 700 


V. Hiscocks 


418, 422, 486 


437, 4-11 


V. Beynon 




423 


V. Hole 




200 


V. Biggs 




472, 473 


V. Holtom 




419, 783 


V. Bird 




666 


V. Hopkinson 




819 


V. Bower 


674, 


794, 796 


V. Howell 




210. 877 


V. Bowling 




539, 744 


V. Hubbard 




781, 788 


</. Brabant 




340 


V. Hull 




60 


V. Brazier 




639 


V. Huntington 




58 


V. Brown 


418, 428 


780, 793 


V. Hurrell 


732 


733, 737 


v. Buckner 


732 


735, 737 


V. Hutton 




878 


V. Burdett 




81 


V. Jersey 


420, 428, 429 


787, 788 


V. Burt 




423 


V. Jessep 


511 


512, 827 


V. Carleton 




865, 867 


V. Jeyes 




668 


V. Carpenter 


, 


795 


V. Johnson 




677, 795 


V. Cavendish 




443 


V. Joinville 




871, 434 


V. Chaffey 




509 


V. Kett 




200 



TABLE OP CASES. 



XXIX 



Doe V. Lainchburg 




717, 726 


Doe V. Taylor 




492, 792 


V. Lakeman 




798 


u. Thomas 


482 


651, 655 


17. Lancashire 




124 


V. Thompson 




58 


V. Langlands 




717, 720, 727 


V. Timins 




75 


V. Langton 




420, 428, 783 


V. Tomkinson 




49 


V. Lawes 




60 


V. Topfield 




59, 748 


V. Lea 




806 


V. Turner 




491 


V. Lewis 




31 


V. Underdown 


646, 649, 806 


V. Lightfoot 




698, 702, 703 


V. Uthwaite 


381 


437, 502 


V. Llandaff 




167 


o. VardiU 




2 


V. Llewellin 




58, 665 


V. Vaughan 




280 


V. Luoan 




670, 671, 785 


... Walker 195, 198, 


203, 


328, 330, 


u. Ludham 




665, 666 




335 


655, 726 


V. Luxton 




64 


V. Ward 




177, 811 


V. Lyford 




419, 789, 792 


V. Watson 




511 


V. Manifold 




88 


V. Weatherby 




655 


V. Marchant 




178, 195 


V. Westlake 


382 


433, 440 


V. Martin 409 


423 


782, 791, 794 


V. Westley 




498 


V. Maxey 




747 


V. Wetton 




563 


t>. Meakin 




779 


V. White 


725 


745, 750 


V. Meyrick 




792 


V. Wilkinson 


527 


824, 832 


i>. Micklem 




490 


V. Willetts 




779 


V. Mills 




72 


V. Williams 




668 


V. Moore 




810, 818, 819 


V. Wolley 




31 


V. Morgan 431, 


717, 


728, 729, 741, 


V. Woodall 




747 






865 


u. Wright 




496 


V. Needs 




430, 433, 441 


V. Wrighte 




227 


V. Nevill 




476 


V. Wroot 




67 


V. Nickless 




788 


Doglioni v. Crispin 




5,6 


V. Nowell 




293, 811 


Doker v. Goff 




102 


V. Oxenden 


418 


427, 428, 429 


V. Voff 




102 


V. Palmer 




143 


Dolan V. Macdermot 




209, 217 


V. Parkin 




792 


Dole V. Johnson 




716 


V. Parratt 




692 


Don V. Sullivan 




244 


V. Pattison 




78 


Donaldson, In re 




98 


V. Pearce 




496 


V. Winter 




27,31 


V. Perkes 




133 


Doncaster v. Doncaster 




604 


V. Perratt 




258, 263, 280 


Donisthorpe v. Porter 




693, 694 


V. Phillips 




798 


Donn V. Penny 




351 


V. Pigott 




796 


Donner's Appeal 




346, 835 


V. Pitcher 




211, 227 


Donohoe v. Lea 




160, 163 


V. Pott 




147 


Donohue v. McNichol 




266 


V. Pratt 




731 


Donohugli's Appeal 




208 


V. Rawding 




472, 522, 827 


Donovan v. Van de Mark 




385 


V. Roach 




875 


Doo V. Brabrant 




823 


V. Roake 




678 


Doody V. Higgins 




516 


V. Roberts 


378, 


423, 744, 795 


Doolan v. Smith 




527 


V. Roe 




431 


Dorksey v. Dorksey 




565 


V. Rout 


718 


719, 720, 739 


Dormer y. Thurland 


80, 81, 89 


V. Royle 




544 


Dormoy, In re 




6 


V, Scarborough 




260, 864 


Dornick n. Reichenback 




38 


V. Scott 


688 


647, 649, 803 


Dorsey ;;. Clarke 




417 


V. Scudamore 




490,812 


u. Horsey 




2 


V. Selby 




506, 876, 877 


t'. Hammond 




377, 786 


V. Sheffield 201, 


203, 


342, 646, 647 


V. Sheppard 




98 


V. Shippliard 




831 


r. Warfield 




73 


V. Sloggetf 




478, 779 


Doswell V. Earie 




879 


V. Sotheron 




781 


Doucet V. Geogliegan 




12, 15 


V. Sparkes 




654 


Douglierty v. Snyder 




6 


u. Staple 




122 


Doughty V. Bull 




502 


V. Stenlake 




481 


V. Saltwell 




747 


u. St. Helen's 




225 


V. Stillwell 




544 


V, Stopford 




744 


Douglas V. Blackford 




378 


V. Strickland 




138, 415 


u. Congreve 606 


607, 


613, 770 


V. Summerset 




544, 545 


V. Cooper 


27 


, 30, 123 



XXX 



TABLE OF CASES. 



Douglas V. Douglas 
Douglass V. Douglass 

V. Fellows 
Doutty V. Laver 
Dove V. Terr 
Dow V. Dow 

V. Doyle 

I'. Jewell 
Dowling V. Dowling 
Down V. Down 

V. VVorrall 
Downer, In re 

I', Ohurch 
Downey v. Murphey 
Downie's Will, In re 
Downing v. Marshall 
Downs V. Collins 
Dowse, In re 
Dowset V. Sweet 
Dowson V. Bell 

u. Gaskoin 
Drake v. Att.-Gen. 
V. Drake 
V. Martin 
Drakeford v. Drakeford 

V. Wilkes 
Drakeley, In re 
Draper r. Hitch 
Draut V. Vause 
Drayton's Appeal 
Drew V. Drew 

V. Killick 

V. Wakefield 
Drewett t'. Pollard 
Drinkwater v. Falconer 
Driver v. Frank 



341, 
563, 



14 

334 

376, 417, 433 

831 

503 

504 

,342 

87S) 

564 

787 

216 

130 

571 

36,37 

89 

207, 338, 339 

317 

78 

380, 434 

459, 466 

771 

3 

382 

329 

269 

415 

653 



543, 



Druce v. Denison 



57 

595 

376, 377 

539 

208 

309 

193, 200 

325, 825 



Drummond v. Drummond 
Drury v. Natick 
Drusadow v, Wilde 
Drybutter v. Hodges 
Dunne, In re 
Dublin Case 

u. Cliadbourne 
Dubois V. Dubois 

!). Ray 
Duckle V. Baines 
Duckmanton v. Duckmanton 
Dudley v. Grayson 
Dudleys v. Dudleys 
Dufaur v. Croft 
Dnfiie V. Corridon 
Duffieid V. Currie 

V. Duffleld 

V. Elwes 

u. Robeson 
Dufour V. Pereira 
Dugan V. Hollins 
Duggins, In re 
Duhamel v- Ardovin 
Du Hournielin v. Sheldon 
Duninier v. Pitcher 
Duncan v. Beard 

u. Duncan 
Duncuff V. Albrecht 



422, 451, 452, 467 



2 9 

208, 209 

798 

24 

414 

210 

2, 5, 31 

27,31 

504 

52 

362 

68 

31,81 

36 

89 

186 

177, 652, 819 

653 

35, 36, 38 

18 

162 

82 

2, 364, 775 

69, 123, 200 

454 

31 

417, 458 

226 



Dundas, In re 93 

u. Dundas 449 

V. Wolfe d. Murray 849 

Dundee v. Morris 359 

Dungammon v. Smith 274, 278 

Dunliam r. Averill 170, 431 

Dunlap r. Dunlap 78, 95, 193, 285, 338 

Dunn, In re 18 

V. Bank of Mobile 866 



Bownas 
V. Dunn 
V. Sargent 
Dunnage v. White 
Duplessis V. Att.-Gen. 
Durance, In re 
Durant v. Ashmore 
Durfee v. Durfee 
Durham, In re 

V. Morice 
Durling v. Loveland 
Durnell v. Corfield 
Durour v. Motteux 



230, 231 

85, 86, 106, 204 

879 

565, 738 

67 

171 

133, 134 

31, 134 

92 

213 

36,37 

36 

210, 632, 688, 639, 

640, 642, 643, 644 

Dutch Reformed Church v. Brandon 302 

Dutton, In re 145, 212, 293 

Dyer, In re 77, 142 

V. Dyer 539 

V. Smith 6 



E. 

Bales V. Cardigan 
V. Conn 
c^. Drake 
V. England 
Earl, In re 

V. Rowe 
Earl's Trust, In re 
Earle v. Barker 

V. Wood 
Earlom v. Saunders 
Early v. Benbow 
East V. Cook 
Eastern Counties Railway 

V. Tuffnell 
Eastman v. Baker 
E.TStwood V. Lbckwood 
Easum v. Appleford 
Eaton V. Barker 

I/. Hewitt 

V. Straw 

V. Watts 
Eavestaffw. Austin 
Eby V. Eby 
Eccard v. Brooke 
Eccles >\ Birkett 

V. Clieyne 
Eccleston v. Petty 
''. Speke 
Eckersley v. I'latt 
Eckert r. Eckert 

I.'. Flowery 
Eddel, In re 
Eddowes, In re 



543 

259 

766 

386 

5 

798 

193 

521 

207, 418 

587 

96, 188 

469, 470, 500 

Co. 

699 

506 

490 

766 

827, 872 

805, 821 

807 

388 

576 

860 

514 

845 

355 

88 

89 

87, 133, 134 

35 

35 

653, 819 

552 



TABLE OF CASES. 



XXXI 



Eddy's Case 


35 


Ely V. James 


Edelen v. Hardey 


87,89 


Ely's Case 


Eden v. Wilson 


602 


Kmanuel u. Constable 


Ellens V. Williams 


422 


Emblyn c. Freeman 


Edgington, In re 


851 


Emerson i). Bovidle 


Edgworth i. Edgworth 


808 


Emery u. Neighbor 


Edmonds, In re 


102 


V. Wasou 


Edmondson, In re 


850 


Ernes V. Hancock 


Edmunds v. VVaugh 


529, 837 


Emuss V. Smith 


Edwards, In re 


92 


England v. Downs 


u. Astley 


77, 135 


Englefried v. Woelpart 


u. Barnes 


665, 717 


English, In re 


c. Champion 


58,64 


V. Orde 


V. Finuliam 


36 


Ennis v. Smith 


t). Hall 223,227 


228, 230, 236 


Enohin v. Wylie 


V. Hammond 


810, 811 


Entwistle v. Davis 


V. Morgan 


458, 471 


V, Markland 


V. Pike 


233 


Etches K. Etches 


V. Richards 


431 


Etheridge v. Corprew 


u. Smith 


21 


Eure V. Pittman 


V. Symonds 


806 


Eustace, In re 


V. Tuck 236, 311 


312, 313, 623 


Eustis V. Parker 


V. Warwick 


592, 599 


Euston V. Seymour 


V. West 


57 


Evans, In re 


Edwards's Appeal 


123, 129 


V. Angell 


Eelbeck v. Cranberry 


■ 81 


V. Arnold 


Eells V. Lynch 


818 


V. Crosbie 


Egerton v. Jones 


800 


V. Dallon 


V. Massey 


650, 651 


V. Iglehart 


Eggleston v. Speke 


170 


V. Evans 


Eiohelberger v. Barnetz 


879 


V. Field 


Eilbeek v. Wood 


167 


V. Hellier 


Ela V. Edwards 80, 


82, 86, 87, 89 


V. Hudson 


Elborne v. Goode 


313 


V. Jones 717, 


Elbourne v. Goode 


314 


V. Kingsberry 


Elcock, In re 


837 


V. Pilkington 


Eldridge v. Eldridge 


835, 851, 852 


V. Smith 


Eliot V. Carter 


782 


V. Walker 


V. Eliot 


86 


Evans's Appeal 


Ellice, In re 


146 


Everall v. Browne 


Ellicombe v. Gompertz 


485 


Everett v. Carr 


Elliot 0. Davenport 


339 


V. Everett 


Elliott V. Elliot 


681, 688 


Evers v. Challis 


V. Fisher 


686, 603 


Ewens v. Franklm 


Elliott's Will 


35, 38 


Ewer V. Heydon 


Ellis, In re 


88 


Ewin, In re 


V. Bartrum 


183, 376 


V. Ewin 


V. Eden 


615 


Eynon, In re 


V. Ellis 


840 


Eyre v. Eyre 


V. Maxwell 304, 305 


312,313,850 


V. Marsden 309, 


V. Merrimack Bridge 


422, 503, 879 


V. Storer 


u. Lewis 


468, 461 




V. Page 


75 


F. 


V. Selby 213, 216, 217, 565, 566, 761 




V. Smith 


78, 81, 82, 89 


Fahrney v. Holsinger 


Ellison V. Miller 


327 


Fairburn, In re 


Elmendorffi). Carmichael 


31 


Fairfax v. Hunter 


V. Taylor 


708 


Fairfield v. Morgan 


Elms V. Elms 


133 


Falkland v. Lytton 


Elsei). Else 


487 


Falkner v. Butler 


Elton V. Elton 


843 


V. Somerset & 


Elwee V. Ferguson 


38 


Co. 


Elwes V. Canston 


766 


V. Wynford 


Elwin V. Elwin 


605, 840 


Fallon V. Chidester 


Ely V. Ely 


144 


Farmer v. Brock 



88 

72 

565, 632 

127 

41 

755 

837 

57, 329, 331, 789 

785 

606 

25 

228 

2,6 

2, 5, 761 

223, 225 

608, 809 

805, 829 

31 

31 

173 

71,90 

98 

597 

418, 782, 794 

38 

717, 744 

141 

613, 879, 880 

173, 178, 180, 679 

765 

812, 314 

472 

, 740, 743, 762, 764 

684, 585 

839 

18 

282 

106, 130, 134 

761 

208, 318 

332, 336, 426 

288 

80,84 

778 

3 

717 

82 

121 

, 312, 313, 566, 623 

1,2 



46, 476 

78 



68 
508 
654 
766 



652, 553 

129 

87 



xxxu 



TABLE OF CASES. 



Farmer v. Francis 293, 806, 858 

Fane, Ex parte 39 

V. Fane 476 

Farncombe's Trusts, In re 291 

Farr v. Thompson 35 

Farrar v. Ayres 418 

Farrer, In re 204, 328 

i). St. Catherine's College 117, 

182, 191, 210, 381, 411, 529 

V. Winterton 163 

Farwell v. Jacobs 227, 387 

Fary, In re 180, 142 

Fatheree v. Lawrence 86 

Faulds V. Jackson 108, 110 

Faulkener v. Daniels 255 

V. Hollmsworth 605, 840 

Faversham v. Ryder 228 

Fawcett v. Jones 193, 414 

Fay V. Cheney 707 

V. Haven 2 

V. Sylvester 800 

Fearn's Will, In re 879 

Fearns v. Young 611, 612 

Fearon u. Fearou 449 

Fell V. Biddolph 342 

Fellow V. Jermyn 163 

Fellows V. Miner 2, 207, 209 

Fells V. Read 880 

Feltham v. Feltham 837 

Feltham's Trusts, In re 382, 418 

Fenny v. Ewestace d. Collings 499 

Fenton v. Farrington 186 

V. Hawkins 396 

Fenwick, In re 30, 129 

V. Green well 552 

Ferguson «. Hedges 338 

Fergusson v. Brighton Bail. Co. 779 

Fernandes' Ex.'s Case 3 

Ferrand v. Wilson 276 

Ferraris v. Hertford 3, 7, 20, 94 

Ferrierti. Jay 677,681 

Ferson v. Dodge 799, 803, 834, 864, 866 

Festing v. Allen 265, 818, 820, 849, 874 

u. Taylor 188 

Festor v. Simpson 20 

Fetherly v. Waggoner 31 

Fettiplace «. Gorges 39, 40, 41 

Field, In re 36, 78, 111, 699 

V. Hitchcock 879 

V. Pickett 625, 753 

V. Wilson 708 

Fillingham v. Bromley 798 

Finch V. Finch 133, 134, 451 

V. Hollingsworth 553 

V. Lane 811, 812 

V. Squire 222 

Fincbam v. Edwards 35 

Finden v. Stephens 408 

Findon v. Findon 873 

Fink V. Fink 210 

Finlason v, Tatlock 516 

Finley )). Hunter 775 

Finney, In re 698 

Fischer v. Popham 110 

Fish V. Klein 70 



Fisher, In re 171 

V. Banta 585 

V. Brierley 189, 220, 232, 233, 242 

V. Hepburn 759 

V. Hill 338 

)). Kimball 38, 41 

Fisk V. Attorney-General 211, 247, 248, 

359, 367, 369, 370 

V. Keene 252, 255, 554, 866 

Fitch V. Weber 313, 565, 624 

Fitzgerald, In re 238 

V. Field 97, 187, 753 

V. Jervoise- 607 

Fitzhenry v. Bonner 550, 831 

Fitzherbert v. Fitzherbert 31 

Fitzpatrick w. Fitzpatrick 377, 417 

Fitzroy v. Howard 672 

In re 129 

Fitzsimons v. Fitzsimons 457 

Flamank, Ex parte 163 

Flannery's Will 2, 78 

Fleeger v. Pool 5, 31 

Fleming v. Boiling 653 

V. Brook 756 

Flemming v. Burrows 756, 758 

V. Flemming 433 

Fletcher v. Ashburner 585, 620 

V. Chapman 622 

V. Smiton 725 

Flinn v. Owen 87 

Flint w. Hughes 358, 364 

V. Warren 376, 383, 565, 624 

Flippin V. Banner 443 

Flood's Case 66, 219 

Florance v. Florance 98 

Florey v. Florey 35 

Floyer v. Bankes 275 

Fluke V. Fluke 51 

Foley V. Burnell 880 

V. Parry 387 

Fonda v. Penfield 288, 290 

Fonnereau v. Fonnereau 844 

V. Poyntz 409, 425, 430 

Foot V. Stanton 34, 36, 87 

Footner v. Cooper 729 

Forbes v. Ball 386, 551 

V. Forbes 12, 14, 45 

V. MofEatt 693 

V. Stevens 598 

Ford a. Battey 380, 397 

V. De Pontes 168 

V. Ford 132, 657 

V. Fowler 370, 386, 392 

V. Porter 397 

V. Rawlins 839, 841, 844 

V. Ruxton 188 

Ford's Case 71 

Fordyce v. Bridges 219, 552, 709 

Forman's Will 38 

Forsbrook w. Forsbrook 298, 302 

Forse and Herabling's Case 122 

Forset's Case 67 

Fortune v. Buck 31, 73 

Fosdick V. Cornell 255, 864 

». Fosdick 302 



TABLE OF CASES. 



xxxill 



Foss V. Crisp 


68, 69, 70 


Frith, In re 


82 


Foster, In re 


872 


V. Spra'gue 


6 


V. Banbury 


72 


Froggatt V. Wardell 


179 


V. Blagden 


236 


Froutbeck v. Boughey 


39 


V. Cook 


324 


Fry V. Coppee 


296 


V. Cooke 


462, 466 


V. Fry 


177, 179 


u. Craige 


61 


Frye v. Corporation 


231 


V. Foster 


163 


Fryer v. Buttar 


612 


V. Holland 


834 


V. Morris 


147 


V. Ley 


188 


Fullarton v. Watts 


155 


V. Romney 


280 


Fuller, Ex parte 


6,31 


V. Walter 


379 


V. Fuller 


338, 574 


Foudrin v. Gowdey 


70, 236 


V. Hooper 


96, 117, 188 


Fouke V. Kemp 


409 


V. Winthrop 


835, 843 


Fouvergne v. New Orleans 


31 


V. Yeates 


454, 456 


Fowler v. Depau 


285 


FuUerton v. Martin 


736, 737, 874 


V, Fowler 


211, 359 


Fulton V. Andrew 


36 


V. Garlike 


386, 396, 565 


V. Fulton 


458 


V. Hunter 


399 


V. Moore 


443 


V. Willpughby 


369 


Funk V. Eggleston 


676 


Fowler's Trusts, In re 


451 


Furness b. Fox 


835, 837 


Fowlis V. Davidson 


38 


Furguson v. Zepp 


725 


Fownes-Luttrell v. Clarke 


174 


Fursaker v. Robinson 


664 


Fox V. Collins 


382 


Fychte v. Fychte 


444, 445, 470 


V. Fox 390, 810, 844, 845, 860 






V. Lownds 


220 






V. Marston 


125, 128 


G. 




i;. Southack 


68 






Fox's Will 


65 


Gable v. Daub 


327, 337 


Foy V. Foy 


231 


Gage V. Gage 


18,25 


Framlingham v. Brand 


507 


Gains v. Gains 


131 


Frances's Estate 


357, 798 


Gainsford v. Dunn 


680 


Francis «. Collier 


180 


Gaither v. Gaither 


36, 416 


V. Grover 


134, 135 


Gale V. Drake 


423, 769 


V. Minton 


668 


V. Gale 


147, 163, 200, 684 


V. Ocean Ins. Co. 


6 


Gallego V. Attorney-General 213, 219 


Frank v. Frank 


443, 447 


Galley v. Barrington 


492 


V. Standish 


666 


Galliers v. Moss 


689, 699 


Frankfield ;;. Armfield 


209 


Gallini v. Noble 


94, 772 


Franks, In re 


40 


Galliver v. Ashby 


255 


V. Bollans 


604 


Gaily, In re 


8 


V. Brooker 


325 


Gambler v. Garabier 


2 


V. Price 


809 


Gann v. Gregory 


27, 28, 30, 74, 143 


Fransen's Will 


122 


Gardiner v. Barber 


400 


Frazer, In re 


171 


Gardiner v. Fell 


448 


Frazier v. Frazier 


339, 341 


V. Gardiner 


35 


Frederick v. Hall 


628 


V. Slater 


840 


Frederick's Appeal 


21 


V. Stevens 


649 


Freeland v. Pearson 


563 


Gardner, In re 


87, 133 


Freeman v. Chandos 


657 


V. Astor 


693 


V. Freeman 


173, 175, 664 


V. Harden 


880 


V. M'Gaw 


693 


V. Hooper 


821, 879 


V. Paul 


693 


V. Lamback 


38 


Freemantle v. Banks 


162 


, V. London, Chatham & 


Freke v. Barrington 


446 


Dover 


Railway 226 


y. Carbery 


4,304 


V. Sheldon 


657 


French v. Caddell 


800 


Garland v. Beverley 


381 


V. Davies 458, 460, 465, 466, 467 


V. Mead 


60 


t)._ Hatch 


879, 880 


V. Rowan 


2 


Frenehe's' Case 


170 


Garner v. Garner 


381 


Frere v. Peacncke 


38 


Garnett v. Garnett 


38 


Freslifield /•. Reed 


110 


Garrand's Estate 


418 


Frewen v. Frewen 


163 


Garret v. Rex 


798 


Frier v. Peacock 


244 


Garrison v. Garrison 


327, 357 


Frierson v. Beale 


99 


Garth v. Meyrick 


380 



XXXIV 



TABLE OF CASESi 



Garvey v. Hibbert 
Gascoigne v. Barker 
Gaseoyne w. Chandler 
Gaskell v. Harman 
V. Holmes 
Gaskin v. Rogers 
Gaskins v. Gaskins 
Gass V. Ross 

V. Wilhite 
Gatenby v. Morgan 
Gates V. Jacob 
V. Jones 
Gauntlett v. Carter 
Gause v. Gause 



505 

668 

31 

776, 839 

851 

74, 238 

103 

431 

214 

868 

708 

207 

29, 428 

2 

Gawler v. Standerwioke 27, 29, 834, 835 

Gaylor's Appeal 87 

Gaynor, In re 5 

Gaze V. Gaze 81, 82, 110, 111 

Geale, In re 34, 35 

Geaves v. Price 176 

Geddis's Appeal 193 

Gee w. Liddell 281 

Geer v. Winds 417 

Gelirke v. State ' 38 

Geiger v. Brown 486, 879 

General Lying-in Hospital v. Knight 378 

Genery t\ Fitzgerald 653 

Gennings v. Lake 783 

Gentry, In re 170 

George v. Bussing 41, 443 

V. Green 51 

V. Jew 39 

Georges v. Georges 31 

German v. German 879 

Gerrard v. Butler 296 

Gerrish v. Nason 87, 82 

Gest V. Flock 443 

Geyer v. Wentzel 357 

Gibbens v. Cross 128 

V. Shepard 890 

Gibbes v. Holmes 694 

Gibbon v. Gibbon ' 327, 448 

Gibbons v. Caunt 124, 127, 128 

Gibbs V. Lawrence 755, 762 

V. Ougier 624 

V. Rumsey 347, 385, 565, 571, 632, 

635, 642, 643, 647 

V. Tait 645 

V. Tate 364 

GiWett V. Hobson 231 

Gibson, In re 331, 332, 343 

V. Bott 608, 611, 613, 615 

V. Carrell 819, 326 

V. Cooke 585 

V. Crehore 693 

0. Gibson 35, 38, 99, 461, 465 

V. Hale 764 

V. Harmer 859 

V. Lane 31 

V. M'Call 65, 214 

,A McNeely 298 

V. Montfort 52, 58, 193, 500, 653 

Gibsgn's Trusts 177 

Gibson's Trusts, In re 180 

Giddings v. Giddings 471 



Gifford V. Choate 


503, 551 


V. Dyer 


183 


V. Rockett 


418 


V. Thorn 


835, 839 


Gilbert v. Bennett 


400 


V. Chapin 


385 


V. Knox 


80, 81, 87 


Gilbertson v. Richards 


276, 282 



Giles I'. Boston Fatherless Society 293 

V. Giles 132, 380 

V. Melsom 747 

V. Warren 130, 142 

Gill, In re 20, 92 

V. Barrett 851 

V. Bradshaw 371 

V. Grand Tower Mining Co. 358 

Gill's Will 90 

Gillam v. Taylor 212, 214 

Gillespie, In re 35 

V. Miller 879 

Gillett V. Gane 381 

Gillham v. Mustin 21 

Gilliam v. Brown 414 

V. Chancellor 417 

Gilliat V. Gilliat 793 

Gillies V. Louglands 586 

Gillon V. Bomne 104, 171 

Gilman v. Gilman 2, 472 

Gilmer v. Gilmer 326 

Gilreath v. Gilreath 35 

Ginder v. Farnum 79 

Girard v. Philadelphia 51 

Girdlestone v. Creed 220 

V. Doe 518 

Gist V. Robinet 50 

Gittings w. McDermott 339,616 

Gittins V. Steele 233 

Given v. Hilton 632 

Gladstone v. Tempest 25 

Glaney v. Glancy 106 

Glanvillw. Glanvill 653,849,850 

Glass V. Hulbert 415 

Glendening t>. Glendening 774 

Glengall v. Barnard 611 

Gloucester v. Wood 29,186, 384, 396, 565 

Glover, In re 78 

V. Hayden 422 

V. Hearst 775 

V. Spendlove 654, 655, 662, 663 

Glubb V. Attorney-General 2^)2 

Glynn v. Morris 223 

u. Oglander 26 

Goble V. Grant 88 

Goblet V. Beechey 181, 421 

Goddard v. May 340 

Godfrey v. Godfrey 388, 401 

V. Humphrey 497, 716, 720, 722, 

725, 732 

Going V. Emery 208,. 210, 219 

Gold V. Judson 46, 318, 3g6 

Goldring v. Inwood 552 

Golds V. Greenfield 339 

Goldsborough v. Martin 251, 288, 297 

Gombault v. Public Admr. 35 

Gompertz v. Gompertz 874 



TABLE OF, CASES. 



XXXV 



Gooch V. Assoc, for Aged Females 209 


Gouldie v. Murray 


33 


V. Gooch 


755 


Gove V. Gawen 


87 


Goodall V. Marshall 


2 


Gover v. Davis 


756, 701 


Goodell V. Hibbard 


255 


Gower v. Gower 


751 


Goodenough v. Goodenough 


879 


u. Towers 


498 


V. Tremamonbo 


617 


Gowers v. Moor 


410 


Goodfellow V. Goodfellow 


464, 542 


Grabill v. Barr 


20, 103 


Goodhue v. Clark 


423 


Graham v. Graham 


88, 89, 179 


Goodkre v. Lloyd 


565 


V. O'Fallan 


31 


Goodlad v. Burnett 


320, 329 


V. Paternoster 


228 


Goodman v. Drury 


836 


Granby v. Amherst 


12 


V. Edwards 


671 


Grange v. Tiving 


39 


Goodright v. Cornish 


864 


Grant v. Bridger 


151 


u. Forrester 


50 


V. Dalliber 


13 


V. Glazier 


136, 174 


V. Dyer 


613, 518 


V. Goodridge 


557 


V. Grant 


45, 438 


V. Harwood 


173, 548 


V. Hapgood 


532 


V. Hoskins 


646, 648 


V. Lyman 


678 


V. Jones 


801 


V. Mussett 


615 


V. Opie 


646 


V. Wimbolt 


543 


V. Parker 


806 


Grant's Case 


806 


V. Pears 


795 


Grantley v. Garthwaite 


135 


V. Searle 


878 


Grattan v. Appleton 


2 


V. Wright 


338 


Gratton, In re 


523 


Goodtitle v. Knott 


649 


Gratwick, In re 


680, 688 


V. Meredith 


193 


Gravenor v. Hallum 211 


347, 349, 617 


V. Miles 655 


660, 663 


V. Watkins 


473 


V. Otway 128 


, 147, 150 


Graves v. Bainbridge 


829 


V. Pugh 


826 


Gray v. Bailey 


147 


V. Southern 


427, 428 


u. Golding 


831 


V. Southern d. Badford 786 


V. Minnethrope 


472 


17. Welford 


71,72 


V. Patton 


2 


V. Whitby 


806 


Graydon v. Graydon 


595 


V. Wood 


48 


Grayson v. Atkinson 


80, 725, 735 


V. WoodhuU 


747 


V. Deakin 


461 


Goodwin v. Clark 


255 


Greated v. Created 


609, 652 


Goodyar, In re 


761 


Greatorex v. Carey 


467 


Goold V. Teague 


57, 706 


V. Gary 


458 


Gordon, In re 


599, 600 


Gregg V. Bethea 


837 


K. Adolphus 


803 


Green v. Britten 


178, 615 


V. Atkinson 


624 


V. Grain 


81 


V. Gordon 


29, 499 


V. Davidson 


803 


V. HofEman 


182, 529 


V. Dikeman 


99, 327 


V. Hope 


829 


V. Dunn 


651 


Gordon v. Reay 117 


, 118, 190 


V. Ekins 


653 


V. Stevens 


458 


V. Gascoyne 


312 


Gore, In re 


80 


V. Green 


446 


V. Gore 


864 


a. Harvey 


509 


B. Knight 


40,41 


0. Hayman 


500 


V. Stevens 


338 


V. Howard 


417 


Gorfett, Ex parte 


699 


V. Jackson 


642, 643, 644 


Gorham v Springfield 


9 


V. Johnson 


586 


Goring v. Howard 


286 


V. Marsden 


300 


Gorst V. Lowndes 


304 


V. Pertivee 


764 


Gosden v. Dotterill 


187, 772 


V. Pigot 


837 


Gosling V. Gosling 275, 293, 302, 852 ] 


V. Proude 


19 


Goss V. Nugent 


409 


V. Smith 


62,55 


V. Tracey 


72 


V. Stephens 


586 


Gotch V. Foster 


849 


V. Tribe 


117, 190 


Gott V. Cook 


584 


Greene v. Dennis 


213,'3:^8 


V. Nairne 


312 


V. Greene 


12 


Gough V. Bult 


359, 397 


V. Potter 


811 


V. Davies 


40,43 


V. Ward 


563 


Goulboum V. Brooks 


346 


V. Windham 


12 


Gould V. Mansfield 


18 


Greenhlll v. GreenhiU 


62,68 



XXXVl 



TABLE OF CASES. 



Greenough v. Greenough 81, 78 

V. Martin 182, 191 

Greenway v. Greenway 515, 590, 596 

Greenwich Hospital, In re 729 

Greenwood v. Greenwood 493 

V. Penny 446 

V. Koberts 268, 269, 270, 272 

V. Sutcliffe 485 

V. Wakeford 695 

Greet v. Greet 293, 849 

Gregory's Settlement, In re 418 

Greig v. Martin 37 

Greisley v. Chesterfield 606 

Gresley v Mousley 51 

Greswold v. Marsham 693 

Gretton v. Haward 446 

Greves, In re 92 

Greville v. GreTille 363 

v. Tylee 76, 140, 144 

Grey v. Pearson 512, 513, 521, 524, 832 

Griesbach jt Fremantle 599, 603 

Grieves v. Case 210, 212, 228, 233 

Grleveson v. Kirsopp 651, 595 

Griffin v. Ferard 26 

V. Griffin 80, 104, 172 

V. Pringle 476 

Griffith V. Blunt 264, 850 

V. DifEenderffer 35 

V. Griffith 82 

V. Pownall 267 

Griffiths V. Evan 888 

V. Gale 365 

V. Griffiths 85 

V. Penson 792 

V. Pownall 269 

V. Pruen 628 

V. Rickett 632 

V. Robins 34 

V. Vere 306 

Grigby V. Cox 41 

Griggs V. Dodge 879 

Grimain ». Draper 38 

Grimes v. Harmon 250 

Grimson v. Downing 499 

Grimke v. Grimke 41 

Grimmett v. Grimmett 229 

Grimshaw, In re 845 

Grimshawe v. Pickup 613 

Grimwood v. Cozens 146 

Griseom v. Evens 423, 431 

Grissell v. Swinhoe 444 

Grosvenor v. Durston 771 

V. HampsteSid Junction 

Rail. Co. 779 

Grout V. Hapgood 533 

Grove, In re 846 

Grove's Estate 857 

GroverB. Raper 532 

Groves v. Wright 881 

Growcock v. Smith 666 

Gryle v. Gryle 82 

Guallagher v. Guallagher 415 

Gude V. Mumford 188 

V. Worthington 365 

Guernsey ». Guernsey 866 



Guest V. Willasey 


120, 189, 193 


Guidot V. Guidot 


586 


Guier v. O'Daniel 


15 


Guillamore v. O'Grady 


86, 414 


GuUan, In re 


141 


V. Grove 


30, 141 


Gulliver ». Poyutz 


735, 780 


Gully V. Cregoe 


390, 391 


V. Davis 


676 


Gunn V. Brantley 


708 


Gurley v. Gurley 


467, 469 


Gurney v. Goggs 


872 


V. Gurney 


74 


Guthrie v. Price 


35,78,80 


Guy V. Sharp 


423 


Gwillim V. Gwillim 


87, 110 


V. Holland 


693 


Gwinn v. Radford 


31 


Gyett V. Williams 


729, 738 


Gynes v. Hemsley 


380 



H. 

Haberfield v. Browning 102 
Habergham v. Vincent 19, 20, 90, 94, 

95, 666 

Haddock v. Trotman 36 

V. Whilmarth 50 

Haddon v. Fladgate 40 

Hadow V. Hadow 400 

Hagar v. Neatby 359 

Hains, In re 137 

Haines v. Haines 130 

Hairston v. Hairston 136 

Hakewill, In re 91 

Hale V. Hale 273 

V. Pew 802 

V. Tokelove 142, 146, 191 

Hales V. Freeman 188 

Haley v. Bannister 186, 304, 305, 306 

Halfliead v. Shepherd 553 

Halford v. Stains 309, 313 

Halifax v. Wilson 841 

HaU, In re 121, 135, 881 

V. Ashby 31 

V. Bragg 21 

V. Chaffee 255, 800 

V. Dench 152 

V. Dewes 713 

V. Fisher 789 

I). Gittings 81 

V. Hall 31. 38, 81, 90, 458 

V. Hall d. Goodright 483 

V. Hill 417, 458, 461, 466 

V. Leonard 431 

V. Lietch 628 

V. May 713 

V. Priest 866, 879 

V. Robertson 523 

V. Severne 187 

V. Sims 31 

V. Sprigg 417 

V. Warren 37, 88 

V. Waterhouse 40 



TABLE OF CASES. 



XXXVU 



Halley v. Webster 
Halliday v. Hudson 
Halliwell, In re 
Hallowell v. Saco 
Hallyburton, In re 
Ham's Trusts, In re 



565, 566, 568, 569 

145 

12 

11,30 

344 



Hambledon v. Hambledon 372 

Hamblett v. Hamblett 31, 443, 471 

Hamilton v. Buckmaster 729, 786, 738 

V. Dallas 12 

V. Hoosdon 721, 726, 736 

V. Peace 25 

V. Porter 613 

Hamilton's Estate 169 

Hamley v. Gilbert 400 

Hammond, In re 106, 107 

V. Neame 402, 404 

V. Kidgely 377, 786 

Hampshire v. Peirce 434, 441 

Hampton v. Cowles 786, 793 

V. Holman 280, 293 

Hanbury v. Cockrell 867 

V. Tyrell 481 

Hance v. Truewliitt 322, 448 

Hancock v. Titus • 807 

Hand v. Hoffman 409, 431 

V. Marcy 339 

Hands v. Hands 364 

V. James 86, .89 

Handy v. State 31 

Hanel v. Hanel 36 

Hannam, In re 142 

V. Sima 423 

Hannan v. Osborn 879 

Hannis v. Packer 95 

Hansel! u. HubbeU 554 

Hanson v. Graham 843, 846, 851 

V. Lake 699 

Hanswick v. Wise 78 

Hapgood V. Houghton 443, 451 

Happy's Will 31 

Harbin v. Masterman 312 

Harcourt v. Seymour 601 

Hardacre v. Nash 717, 744 

Hardcastle «. Hardcastle 843 

Harden v. Hayes 31, 38 

Hardham v. Roberts 664 

Harding v. Glyn 886, 551, 553 

V. Harding 37, 598 

u. Metropolitan Railway 163 

</. Nott 255 

V. Trotter 596, 604 

Hardwick v. Thurston 523 

V. Hardwick 788 

Hardwicke v. Douglass 174 

V. London 566 

Hardy, Ex parte 163 

In re 143 

V. Hardy 31 

V. Merrill 38 

Hare, In re 87 

V. Cartridge 376 

^. Hare 179 

u. Nasmyth 5, 133 

Hargroves v. Redd 99, 134, 337 



Harkness v. Bayley 152 

Harland v. Trigg 884 

Harley v. Moon 766 

Harmon v. Clark 82 

Harmood v. Oglander 153, 159 

Harper, In re 34 

u. Blean 722, 729 

V. Morley 188 

V. Phelps 385 

Harper's Will 35 

Harries, In re 767 

Harrington, In re 40 

V. Atherton 610 

Harris, In re 18, 93, 142, 400 

u. Alderson 807 

V. Barnes 232, 865 

V. Bedford 101, 102 

V. Berral 134 

V. Cutler 69 

V. Davis 171, 255, 351, 515 

V. Fly 346, 835 

V. James 759 

V. Poyner 617 

V. Watkins 471 

Harrison, In re 81, 108 

V. Burgess 77 

V. Elvin 82 

0. Foreman 827, 870 

V. Grim wood 293, 845, 860 

.,. Harrison 6, 11, 82, 221, 391, 

458, 459, 571 

V. Hyde 428 

W.Morton 412,417 

V. Naylor 834 

V. Nixon 2, 3 

V. Rowan 27, 31, 35, 38 

V. Southampton 242 

Harrison's Will 35 

Harrop, In re 163 

Harrop's Estate, In re 44 

Hart, In re 834, 837 

V. Hart 227, 387, 392 

V. Thompson 866 

u. Tribe 391, 401, 405 

V. Tulk 504 

Harter v. Harter 413 

Hartley v. Hurle 670 

Hartley's Trusts, In re 326 

Hartop V. Hoare 879 

V. Whitmore 162 

Hartop's Case 565 

Hartshorne v. Nicholson 229, 245 

Harvard v. Davis 137, 171 

Harvard College v. Gore . 12 

Harven v. Spring 31 

Harvey v. Ashton 586 

V. Chouteau 19 

V. Harvey 274, 482, 615, 619, 

837, 851 

V. Richards 2 

V. Stracey 296, 680 

V, Sullcus 36 

Harvy v. Choteau 116 

Harwood v. Baker 36, 38 

V. Goodright 51, 137, 174, 176 



XXXVIU 



TABLE OF CASES. 



Harwood v. Hingham 782 

Hasker v. gutton 607, 613 

Haskill V. Bailey 708 

Haslewood v. Green 766 

Hasluek v. Pedley 337 

Hastead v. Searle 377 

Hastilow V. Stobie 36 

Hastings v. Hane 774 

V. Rider 38 

Hatch o. Bassett 798 

V. Straight 162 

Hatfield v. Pryme 631, 854 

V. Sneden 476 

V. Thorp 74 

Hathaway's Will 31 

Hatheway v. Saukett 208 

Hathorn v. King 38 

Hattatt V. Hattatt 105 

Hatton V. May 398 

Haughton v. Harrison 85|0 

Haus V. Palmer 98 
Haven v. Foster 6, 193, 196, 326 

V. Hilliard 71, 90 

Havens v. Sackett? 443, 454, 457 

V. Van Den Burgh 123, 125, 126, 

127, 130 

Hawkes v. Hawkes 77, 135 

Hawkin's Trusts, la re 232 

Hawkins, In re 163 

V. Chappel 606 

V. Hawkins 613 

Hawksley v. Barrow 40, 45, 171 

Hawksworth v. Hawksworth 514, 729 

Hawley v. James 252, 266, 302, 312, 

666, 866 

V. Northampton 252, 473, 866 

Haws V. Haws 619 

„. Humphrey 31, 90, 112, 147 

V. Wyatt 168 

Hawthorn v. Shedden 684, 688 

Haxturn t'. Corse 302, 312 

Hay V. Coventry 280, 496 

V. Fairlie 3 

Hayden b. Stoughton 338, 532, 663 

Haydon v. Ewing 409, 431 

Hayes, In re 98 

V. Foorde d. Foorde 529 

0. Hayes 147, 262, 280 

V. West 35 

Hayle v. Hasted 27 

Haynes v. Haynes 55, 163, 188 

V. Hill 119, 120 

Haynsworth v. Pretty 75 

Hays V. Harden 106 

V. Jackson 81, 51, 75 

Haysradt v. Kingman 87 

Hayter v. Tucker 223, 225 

V. Trego 244, 247, 250 

V. Joinvill 371 

Hayward v. Pile 615 

Headen v. Rasher 41 

Heard v. Horton 319, 866 

Hearle v. Greenbank 39, 447 

Hearn v. Allen 780, 782, 783 

Hearue v. Wigginton 758, 758 



Heasman v. Pearse 

Heath, In re 

V. Chapman 
V. Heath 
V. Knapp 
V. Perry 



263, 747, 851 

861 

205, 208, 212, 217 

864 

689, 694 

840 



V. Sampson 14 

Hebdeu, Jn re 99 

Helyar v. Helyar 127 

Hemming v. Clutterbuck 29 

V. Gurrey 29 

Hempstead v. Reed - 6 

Henchman v. Attorney-Gen. 68, 347, 349 

Henderson v. Constable 545 

V. Farbridge 18, 743 

V. Ryan 327 

V. Vaulx 879, 880 

Henfrey v. Henfrey 176 

Hennersholz, In re 666 

Hennessey v. Bray 801 

Henniker v. Henniker 366 

Henning v. Varney 474 

Hentey v. Phillips 41 

Henry, Ex parte 80, 101 

V. Felder . 879 

Henry Co. it. Winnebago Drainage Co. 

209 

Henshaw, In re 571 

V. Atkinson 232 

V. Foster 18 

Hensloe's Case 31 

Hepburn v. Skirving 335 

Hepworth v. Taylor 620 

Herbert v. Herbert 41 

V. Torball 44 

V. Wren 458 

Herbert's Trusts, In ro 423 

Hereford v. Adams 210, 672 
V. Ravenhill 687, 620, 622 

Heron v. Stokes 29, 860 

Herrick v. Stover 417 

Herringlon v. Bradford 25 

Hervey v. McLauglilin 616, 872 

Hess V. Singler 885 

Hester v. Hester 36 

Hetherington v. Oakman 519, 851 

Heuser v. Harris 210 

Hewitson v. Todhunter 340 

Hewitt V. Morris 606, 612 
V. Wright 665, 668, 603, 631 

Hewlett V. Cook 31 

Heydon's Will 778 

Heyer v. Burger 679 

Heylin v. Heylin 59 

Heyward v. Hazard 82 

Heywood v. Heywood 304, 523 

Hibon I). Hibon 779, 788 

Hibbert v. Hibbert 406 

Hick V. Mors 168 

Hickman v. Bacon 686 

Hicks, In re 171 

V. Doe 177 

Hickson v. Wolfe 684 

Higden i'. Williamson 821 

Higginbotham v. CornweU 468 



TABLE OP CASES. 



XXXIX 



Higgins V. Carlton 




80 


Hockley v. Mawbey 


658, 778 


V. Waller 




799 


Hodges V. Bauchman 


31 


Higginson v. Carlton 




88 


V. Grant 


188, 841 


High, App. 




2,80 


V. Green 


153, 154 


Higham v. Baker 




788, 789 


Hodgkinson v. BarrOw 


775 


Hight V. Wilson 




77, 78, 89 


V. Wood 


148 


Hildreth v. Schillinget 




134 


Hodgson V. Ambrose 


803 


Hill V. Bacon 




327 


V. Bective 


652, 653, 654 


i;. Barge 




89 


V. Clark 


382 


o. Bell 




77 


V. De Beauchesne 


15 


V. Bowman 




378 


V. Halford 


870 


V. Burns 


^ 


208 


V. Jex 


759 


V. Cock 




620, 645 


V. Rawsoii 


837 


V, Downes 




486 


V. Wheaton 


68 


V. Grange 




779, 783 


Hodgworth v. Crawley 


188 


V. Hens worth 




458 


Hodsden v. Lloyd 


41, 123 


V. Hill 


31, 76, 867 


Hodsdon v. Dancer 


837, 677 


u. London 




569 


Hodson V. Ball 


274, 798 


0. Packard 




6 


• Hoffman v. Hankey 


359, 372 


V. Thomas 




532 


V. Hoffman 


99 


V. Walker 




178 


Hogan V. Grosvenor 


81 


Hill & Baker's Case 




371 


V. Jackson 709, 717, 718, 724 


Hilleary v. Hilleary 




866 


Hogg V. Lashley 


4,20 


Hillersdou v. Grove 




177 


Hoil V. Clark 


89 


V. Lowe 




485 


Hoke V. Herman 


147 


Hilliard v. Kearney 




863 


Holbrook v. Harrington 


341, 342 


Hills V. Downton 




664, 668 


Holcomb V. Lake 


505 


w. Worley 




345 ' 


Holder v. Howell 


181 


HiUyard v. Miller 




302 


V. Preston 


292 


Hilton 0. Giraud 




223 


Holdfast V. Dowsing 


72 


V. King 




80 


V. Pardoe 


478 


Hinchcliffe y. Hinohcliffe 


177 


, 178, 451 


Holdioh V. Holdich 


466 


u. Westwood 




340 


Holdsworth v. Davenport 


226 


Hinckley v. Simmons 




33 


Holford V. Wood 


767 


Hind V. Selby 




614 


Holgate, In re 


87 


Hinder v. Streeter 




699 


V. Jennings 


606, 616 


Hindmarch, In re 




143 


Holland v. Adams 


585 


Hinds, In re 




113, 140 


V. Cruft 


585 


Hindson v. Kersey 




28,31 


V. Ferris 


133 


0. Weatherhill 




36 


v. Hughes 


612 


Hinves v. Hinves 610, 612, 614, 615 


V. Wood 


516 


Hinxman v. Poynder 




388 


Holley V. Larrabee 


177 


Hipkin V. Wilson 




154 


HoUier v. Burne 


615 


Hippesley v. Homer 


36, 78, 414 


Hollins V. Coonan 


472, 475 


Hiscocks V. Hiscocks 




409 


Hollister v. Shaw 


676 


Hise V. Fincher 




130, 131 


Holloway v. Clarke 


127 


Hitch V. Wells . 




86 


V. Holloway 


320 


Hitchings w. Wood 




36 


V. Radcliffie 


603 


Hix V. Whittemore 




38 


Holm V. Low 


864, 866 


Hixon V. Oliver 




392 


Holman v. King 


6 


V. Wytham 




18 


V. Perry 


28, 31, 41, 42 


Hoare v. Barnes 




523 


Holmes v. Barker 


52 


V. Osborne 210, 211, 


218, 228, 


V. CoghiU 


200 






343, 687 


V. Cradock 481, 


808, 820, 823 


V. Parker 




879 


V. Custance 


383, 440 


Hoath V. Hoath 


835 


843, 844 


V. Holmes 


506 


Hobart v. Suffolk 




367, 566 


V. Mead 


251 


Hobbs V. Knight 129, 


141 


142, 143 


</. Prescott 


652, 819, 874 


Hobby V. Allen 




604 


V. Eemsen 


2 


Hobson V. Blackburn 17 


,18, 


236, 363, 


Holraesdale v. West 


181 






671, 782 


Holsten v. Jumpson 


423 


0. Neale 




598 


Holt V. Rice 


443, 471 


V. Yancey 




806 


V. Tyrrell 


72 


Hock V. Hock 




31 


Holyland, Ex parte 


38 


Hocker v. Hooker 




21, 105 


Holyoke v. Haskins 


15 



xl 



TABLE OF CASES. 



Home V. Pillans 807, 863 

Homer v. Gould 841 

V. Homer 418, 793, 796 

V. Shelton 176, 391, 472, 476, 613, 

879, 880 

Hone 17. Medcraft 321 

V. Van Sliaick 252 

Honywood, In re 27, 139 

V. Foster 454, 456 

u. Honywood 657 

Hood V. Archer 41 

li. Harrington 4 

V. Clapham 616, 617 

V. Oglander 385 

Hooker v. Axford 415 

Hoope, In re 758 

Hooper ;;. Goodwin 94, 95, 565 

V. Hooper 302, 341, 342 

Hoopes's Appeal 753 

Hope V. Hope 200, 681 

V. Liddell 697 

V. Potter 371, 486, 490, 829 

V. Taylor 744 

Hopewell v. Acland 499, 684, 718, 720, 

739, 743 

Hopkins j). Albertson 31 

V. De Graffenreid 31 

V. Hopkins 263, 301, 566, 574, 

652, 663, 865, 875, 876, 877 

V. Phillips 230 

V. Ramage 64 

Hopkins's Trust, In re 518 

Hopkinson v. Ellis 624 

Hoppock V. Tucker 480 

Hop wood V. Hop wood 423 

Horde v. Suffolk 208, 218 

Hornberger v. Hornberger 208 

Home V. Home 38 

Horner, In re 163 

Horridge v. Ferguson 515 

Horsefall, In re 698 

Horsfall, In re 703 

Horsford, In re 79, 106, 107, 135, 142 

Horton v. Horton 544, 545, 879 

Horton v, Johnson 82 

V. Whittaker 831 

Hortwitz V. Norris 503, 504 

Horwood y. Griffith 425, 438. 680 

V. West 386, 395 

Hosea v. Jacobs 327 

Hoshauer v. Hoshauer 37 

Hoskins v. Matthews 16 

Hoste V. Blackman 678 

Hotham v. Sutton 731, 756, 759, 770 

Hough's Estate, In re 173 

House V. Way 616, 618 

Houston V. Houston 337 

How V. Vigures 691 

Howard, In re 176 

V. Braithwalte 31 

V. Conway 377 

V. Digby 40 

V. Howard 472 

V. Kay 615 

Howard American Peace Soc. 682 



Howard's Case 


45 


Howard's Will 


87,88 


Howarth v. Dewell 


405 


Howden, In re 


93 


Howe, In re 


66 



V. Dartmouth 610, 611, 613, 616, 

645 

V. Howe 616 

Howell V. Barden 36 

V. House 31 

Howells V. Jenkins 444, 447, 457 

Howes V. Herring 829, 886 

Howland v. Howland 721, 726 

Howse V. Chapman 209, 222, 236 

Hoxton V. Archer 554 

Hoy V. Master 392 

Hoysradt v. Kingman 80, 89 

Hubbard, In re 91 

V. Alexander 138 

V. Hubbard 98 

V. Rawson 75 

V. Young 614, 619 

Ruber's Appeal 357 

Huble V. Clark 31 

Huckvale, In re 87, 106, 110 

Huddleston v. Gouldsbury 553 

Hudson V. Cook 55 

V. Parker 82, 108, 110, 112 

V. Wardsworth 880 

Hudson's jCase 31 

Hudsons, In re 834 

Huff V. Huff 80 

Hughes V. Boyd 803 

V. Edwards 566, 708 

</. Evans 569, 570, 571 

V. Hosking 196 

V. Hughes 129, 148, 810 

V. Jones 336 

V. Meredith 36 

V. Murtha 36 

V. Pritchard 736, 744 

V. Turner 173, 193, 196, 418, 680 

Hugo, In re 17, 18 

V. Williams 481 

Huie V. McConnell 73 

Hull, In re 758 

V. Bray 160 

Ji. Hull 812 

Hulme V. Hey gate 195 

V. Hulme 827, 872 

Humberston v. Humberston 298 

Humberstone v. Stanton 340 

Humble v. Shore 171, 203, 765 

Hume V. Richardson 606, 610 

V. Rundell 28 

Humes v. M'Farlane 50 

Humphrey v. Humphrey 798 

V. Richards 40 

I). Tayleur 341 

Humphreys v. Humphreys 147, 545 

w. Taylor 135 

Hunloke v. Gell 679 

Hunt, In re 78, 92, 415 

V. Berkeley 766 

V. Hort 442 



TABLE OF CASES. 



Xli 



Hunt V. Hunt 24, 107, 505, 693, 717, 722 
V. Mootrie 
V. Scott 
Hunt-Foulston v. Furber 
Hunter, In re 

t>. Bryson 

V. Bullock 

u. Judd 

V. Pugh 
Huntington v. Huntington 
Hurd V. Coleman 
Hurdle v. Outlaw 
Hurlstone v. Asliton 
Hurrill, In re 
Hurst V. Winchelsea 
Huskisson v. Bridge 

V. Lefevre 
Huss's Appeal 
Hussey v. Grills 
Hutcheon v. Mannington 
Hutcheson v. Hammond 



Hutchins v. Osborne 

d. State Bank 
Hutchinson v. Barrow 
Hutton, In re 

V. Simpson 
Huxtep V. Brooman 
Hyatt V. Pugsley 
Hyde v. Baldwin 

V. Hyde 

V. Price 
Hyer v. Sliobe 
Hyley v. Hyley 
Hylton V. flylton 
Hyman v. Gaskins 



2,80 

615 

398 

846, 863 

2 

369 

840, 866 

736 

103 

708 

721, 728, 755 

684 

102 

76 

390 

593 

36 

58, 101 

607, 839 

565, 634, 635, 

636, 637, 688 

685 

31 

318, 327, 335 

120 

338, 534, 574, 803 

718, 739, 741 

412, 441 

443 

33, 95, 135, 146 

422 

60, 51, 327 

656 

134, 173 

6 



Ibbetson, In re 

V. Ibbetson 
Iddings V. Iddings 
Ide V. Ide 
Idley V. Bowen 
Igleliart v. Kirwan 
Ilchester, Ex parte 



140, 142, 596 

274 

417 

864, 866, 879 

130, 171 

472, 476 

125, 168, 169, 170, 

192 

371 

81, 82, 108 

189 



Illingworth v. Cooke 
llott V. Genge 
Ince, In re 

Inchiquin v. French 95, 424 

Inchley v. Robinson 778 

Incorporated Soo. v. Price 244 

Incorporated Soc. «. Richards 66, 212, 

509, 655 

Ingelby v. Dobson 232 

Ingell V. Nooney 716 

Ingersoll's Appeal 255 

Ingilby v. Ancotto 46, 48 

Ingils V. Sailors' Snug Harbor 251 

Ingle V. Richards 55, 585 

Ingle's Trust, In re 383, 440 

Inglefield v. Coghlan 174 

Inglesant v. Inglesant 110 



Ingoldby v. Ingoldby 

Ingraham v. Hart 

Ingram ;>. Fraley 
V. Porter 
V. Suckling 

Innes v. Jackson 

Ion V. Ashton 

Ireland's Mill, In re 

Irvine v, Sullivan 

Irving V. M'Lean 

Irwin's Appeal 

Isaac V. Defriez 

Isaacs, In re 

Isaacson v. Van Goor 

Israeli v. Rodon 

Ives V. Allen 
V. Allyn 
V. Dodgson 
i>. Ives 

Ivison V. Gassiot 

Izard V. Hurst 

V. Middleton 

Izod V. Izod 

Izon V. Butler 



119 

6 

385 

18 

860 

154 

222 

242 

388, 399, 571 

2 

2 

214 

39 

545 

124, 125, 128 

31 

2 

529 

177 

754 

200 

18 

552 



J. 

Jacob, In re 
Jacobs V. Jacobs 
Jack V. Fetherston 
Jackman v. Ringland 
Jacks V. Henderson 
Jackson v. Beach 

V. Belts 31, 

V. Blanshan 
V. Boneham 
V. Bull 
V. Chew 
V. Christman 
V. Churchill 
V. Coleman 
V. Craig 
V. Culpepper 
V. Delancy 

V. Denniston 
V. Dover 
V. Durland 
V. Farrand 
V. Feller 
V. Forbes 
II. Goes 
V. Hamilton 
, V. Hammond 
V. Hart 
u. Hasbrouck 
V. HoUoway 
V. Housel 
V. Hurlock 
V. Jackson 
V. Kelly 
V. Kniffien 
V. Le Grange 



143, 852 

516 

256 

417 

18, 125 

68,69 

130, 131, 133, 137, 

411 

31, 505, 506 

431 

864, 866, 879 

866 

31, 86, 89, 864 

458 

879 

356, 530 

21 

689, 694, 695, 699, 

716, 864, 879 

70 

851, 861 

73 

834 

417 

3,475 

431 

358 

65, 214 

431 

31 

130, 136, 144 

720, 721, 722, 726 

49, 199, 349 

18, 24, 81, 82, 837 

645 

35, 133, 134, 411 

31 



xlii 



TABLE OF CASES. 



Jackson v, Lunn 68 

V. Luquere 31 

V. Majoribanks 293, 806, 811 

V. Malin 144 

V. Merrill 842, 716 

». Moore 103 

V. Moyer 793 

V. Noble 551, 665, 828, 868, 870 

V. Parker 152 

V. Phillips 207, 208, 209, 200, 

285, 573 

V. Potter 193 

V. Keeves 506 

». Roberts 341, 342 

V. Robins 864, 879 

V. Russell 31 

V. Sill 410, 417, 418, 431, 793 

V. Staats 342, 864 

V. Stanley 431 

V. Thompson 31, 864 

V. Van Deusen 31 

V. Van Dusen 38, 78, 82 

V. Varick 50 

V. Vickory 31 

V. Winne 887 

V. Woods 73 

Jacques v. Chambers 363 

James, In re 141, 142, 143 

V. Allen 211, 215, 216, 565 

w. Cohen 137 

V. Dean 62, 322 

». Gammon 618 

V. Irving 764 

V. James 838 

V. Johnson 693 

V. Marvin 137 

V. Morey 693 

0. Parnell 31 

V. Richardson 319 

V. Shrimpton 133 

V. Williams 31 

V. Wynford 267, 806, 858 

Janey v. Latane 219, 378 

Janney v. Sprigg 505 

Jansen v. Jansen 189, 193 

Jarman v. Vye 504 

Jarman's Estate, In re 211, 216 

Jarvis v. Butrick 422 

Jauncey v. Att.-Gen. 96, 117, 188, 338 

V. Thome 31, 81 

JeafCreson, In re 766 

Jebbw. Tugwell 615 

Jee V. Audley 281, 288, 294 

Jeffery, In re 552 

Jeffreys v, Conner 615 

Jeffries v. Alexander 22, 221„237 

V. Michell 434 

Jenkins v. Freyer 76 

V. Hughes 821 

Jenkins's Will 79 

Jenkyns v. Gaisford 79 

Jenner v. Fflnch 182, 183 

Jennings v. Jennings 446 

V. Looks 834 

Jennison v. Hapgood 2, 12 



Jepson V. Key 


328 


Jermy v. Preston 


163 


Jermyn v. Hervey 


80 


Jerningham v. Herbert 


11, 365 


Jerram, In re 


102 


Jesse I'. Parker 


82 


Jesson V. Wright 


473, 482 


Jessopp V. Watson 


565, 623, 631 


Jillard v. Edgar 


72 


Jocelyn v. Nott 


251 


Jodrell V. Jodrell 


40 


Joel V. Mills 


552 


Johnson, In re 


86 


Johnson v. Arnold 586 


587, 593, 798 


V. Baker 


837 


V. Ball 


31,94 


V. Brailsford 130, 


131, 135, 141 


V. Castle 


879 


u. Clarkson 


19, 20, 115 


V. Durant 


31 


V. Foulds 


853 


V. Johnson 82, 


338, 340, 354, 




417, 613, 616 


u. Lyford 


133 


V. Routh 


610 


V. Simcock 


513 


V. Stanton 


677 


V. Swann 


227, 229 


V. Telford 


449 


V. Valentine 


866 


V. Webster 


693 


V. Woods 


236 


Johnson's Trusts, In re 


302 


Will, In re 


184 


Johnston v. Glasscock 


08 


V. Hunly 


61 


V. Swann 


208, 209 


V. Wells 


125 


Johnstone, In re 


9 


c. Baber 


568, 606 


V. Harrowby 


187 


V. Moore 


607 


V. Rowlands 


389, 391 


Johnstone's Settlement, In 


re 147 


Joiner v. Joiner 


181 


Jones, In re 


84,110 


V. Arterburn 


31 


u. Bradley 


234, 415, 566 


V. Collier 


466 


V. Curry 


678 


V. Davies 


163 


V. Doe 


472 


V. Goodrich 


35, 36 


V. Greatwood 


405 


V. Gregory 


28 


V. Hancock 


359 


V. Hartley 


153, 193 


0. Jones 


454 


V, Larrabee 


73 


V. Mackilwain 


322, 852 


V. Maggs 


310, 812 


V. Massey 


799 


V. Mitchell 347, 565 


634, 635, 647 


V. Morgan 


21, 532, 800 


V. Moseley 


134, 189 



TABLE OP OASES. 



xliii 



Jones V. Murphy 


138 


134 


,173 


Kempsey v. McGuinis 


88 


V. Newman 






431 


Kempton, App. 


458, 467, 551 


V. Nicholay 






24 


Kendall v. Granger 


212, 216 


V. Powell 






458 


V. Kendall 198, 


755, 759, 771 


V. Price 


481 


519 


,856 


In re 


747, 759 


V. Randall 






543 


Kene v. Allen 


780 


V. Robinson 


337, 377 


724 


,748 


Kenebel v. Scrafton 


125, 128 


V. Shewmaker 






327 


Kennedy v. Keily 


755, 784 


i;. Skinner 






655 


V. Kingston 


552 


i;. Sothoron 






879 


I'. Medrow 


458 


V. Soutliall 


337 


841 


,677 


V. Mills 


458 


V. Stiles 






798 


Kennell v. Abbott 634, 639, 640, 642 


II. Torin 




518 


,551 


Kenney v. Van Home 


6 


V. Tuck 






88 


Kensey v. Langham 


798 


V. Tucker 






679 


Kent V. Barker 


130 


V. Westcorab 






287 


V. Mahaffey 


132. 134 


V. Williams 






209 


Kenyon v. Sutton 


153, 155 


Jones's Appeal 






477 


Kenzie v. Roleson 


473 


Jongsma v. Jongsma 






724 


Ker V. Wauchope 


532 


Jordan, In re 






28 


Kericke v. Bransbey 


566 


V. Fortescue 






529 


Kerlin v. Bull 


837 


V. Holkham 






804 


Kermode u. Macdonald 


97, 174 


Jorden v. Jorden 






92 


Kerr v. Chislin 


472, 480 


Jortin, In re 






573 


V. Moon 


2,6 


Josh !,'. Josh 






784 


Kerr's Trusts, In re 


341 


Joslin V. Hammond 






870 


Kerry v. Derrick 


798 


Josselyn v. Josselyn 






848 


Kessinger v. Kessinger 


35 


Jowett V. Board 






200 


Kettle V. Townsend 


663 


Joys, In re 






173 


Key V. Gamble 


864 


Jubber v. Jubber 


858, 


399 


523 


V. Key 


524, 808 


Jurld V. Judd 






853 


Kibler v. Whiteman 


835, 837 


Judson V. Lake 






31 


Kidney v. Coussmaker 451, 


458, 471, 624 


Juler !>. Juler 






571 


Kilburn v. Bennett 


12 


JuU V. Jacobs 


574, 577. 


769 


,816 


Kilcher, In re 
Killam v. Allen 


82 
302 


K. 








Kilpatriok v, Johnson 


302,- 312 








V. Kilpatriok 


2,5 










Kilvert'a Trusts, In re 


379 


Kachline v. Clark 






38 


Kilvington v. Gray 


359, 608 


Kalbfleisch v. Kalbfleisch 




505 


Bamball v. Crocker 


302 


Kampf V. Jones 






296 


V. Ellison 


64 


Kane v. Astor 




176, 472 


V. Morell 


409 


V. Bloodgood 






708 


V. Story 


339 


Kavanagh v. Morland 






839 


•Kimberley v. Tew 


827 


Kay V. Laxton 






798 


Kimpton, In re 


107 


Kean v. Roe 






866 


King V. Cleaveland 


518 


Kearns v. Kearns 






31 


... Cullen 


489. Rsn 


Keates v. Burton 
Keating v. Brooks 






874 
87 


V. Denison 566, 569, 570, 571,' 572, 

fif(7 


Keen v. Keen 






133 


V. Foxwell 


12 


Keene v. Dickson 






801 


V. George 
V. Hardwick 


761 


Keigwin v. Keigwin 


81, 110, 


111, 


143 


266 


Keily v. Monck 






844 


V. Isaacson 


839, 853 


Keith V. Perry 






503 


V. King 


58, 799, 800 


Kell V. Charmer 




18, 


421 


V. Mitchell 


570 


Kelland v. Fulford 






163 


V. Parker 


207 


Kellett V. Kellett 


566, 568, 


630 


874 


V. Portington 


207 


Kelley v. Kelley 




356, 


417 


V. Ringstead 


640, 541 


Kellogg V. Blair 






732 


V. Shrives 


724 


Kellum, In re 






86 


' V. Tootel 


186 


u. Powlet 






753 


V. Turner 


60 


Kelly V. Kelly 






98 


V. Withers 


861 


Kelso V. Dickey 




505, 


879 


V. WoodhuU 


632 


Kemble v. Church 






35 


V. Wycombe Rail Co. 


780 


Kemp V. McPherson 






51 


King's College Hospital v. \ 


Vheildon 424 



xUt 



TABLE OP OASES. 



King's Head Inn Case 




668 


Lambert v. Thwaites 


553 


King's Mortgage, In re 




699 


Lambe v. Eames 393 


402, 405 


King's Proctor v. Daines 




26 


Lampett's Case 


879 


King (The) v. Boys 




67 


Lamphier v. Despard 


762 


Kinleside v. Harrison 


81, 34, 35 


Lancashire v. Lancashire 


365 


Kinnard v. "Williams 




458 


Lancaster Canal, In re 


225 


Kinne v. Kinne 




38 


V. M'Bryde 


2 


Kinsella v. CaiTrey 




564 


Landon v. Nettleship 


31 


Kinsey v. Rliem 




409 


Lane v. Goudge 


843, 849 


Kinter v. Jeuka 




385 


V. Stanhope 


671 


Kirk, In re 




793 


V. Wilkins 


201, 527 


V. Eddowes 




417 


Lanesborough v. Fox 


255 


V. State 




77 


Lang V. Pugh 


489 


Kirby, In re 




18 


Langdale v. Whitfield 


772, 775 


Kirkbank v. Hudson 


227, 


229, 230 


u. Briggs 


198, 335 


Kirkbride, In re 




521, 524 


Langdon v. Astor 20, 161, 162 


193, 200 


Kirkcudbright v. Kirkcudbright 


137 


V. Little 


158 


Kirke v. Kirke 




136, 170 


Langford v. Auger 


697 


Kirkman v. Miles 




586, 600 


V. Gowland 


247, 248 


Kirkpatrick, In re 




135 


V. Little 


129, 165 


V. Kilpatrick 




487 


V. Pitt 


51 


Kirkwood v. Gordon 




34,38 


Langham v. Nenny 


679 


Kittredge v. Folsom 




31 


V. Saudford 


438, 475 


Kline v. Baker 




6 


Langham's Trust, In re 


222, 223 


Knabb's Estate 




162 


Langley v. Baldwin 


554 


Knapp V. Knapp 




134 


«. Sneyd 


76 


V. Williams 




222 


V. Tliomas 26 


356, 484 


Knapping v. Tomlinson 


269, 


270, 272 


Langslow v. Langslow 


450, 527 


Knight, In re 




25 


Langston v. Langston 412 


492, 529 


V. Boughton 




391, 395 


V. Pole 


492 


V. Cameron 




840 


Langworthy v. Chadwick 


879, 880 


V. Gould 




342 


Lanning v. Cole 


326 


V. Knight 386, 


392, 


395, 417, 


Lansdowne, In re 


93 




845, 


848, 849 


Lansing v. Wiswall 


782 


V. Robinson 




699 


Lantsbery v. Collier 


292 


Knollys v. Alcock 




152, 160 


Lantz V. Trusles 


800 


V. Shepherd 57 


, 163, 692, 704 


Larkin, In re 


480 


Knotsford v. Gardiner 




669 


Larkins v. Larkins 


135, 341 


Knott V. Cottee 




386 


Lamer v. Larner 


770, 773 


Knowles v. Sadler 




186 


Larrabee v. Van Alstine 


458 


Knox V. Hotham 




397 


Lasher v. Lasher 


458, 472 


V. Jones 




2 


Lassence v. Tierney 


870, 873 


V. Waldoborough 




12 


La Terriere v. Bulmer 606 


607, 608 


V. Wells 




853, 859. 


Lathrop v. American Board 


38 


I^orn V. Cutler 




722 


u. Borden 


38 


Krumbaar v. Burt 




821 


Lattimer v. Eglin 


6 


Kuhu V. Wester 




326 


Laughton i'. Atkins 6, 31 


, 136, 170 


Kurtz V. Hibner 




377 


Lavender v. Adams 

Law V. Thompson 

V. Thorp 


77 
840 
513 


L. 






Lawes v. Bennet 
Lawless v. Shaw 


57 
406 


Lacey v. Hill 




61, 469 


Lawrence v. Bayard 


46 


Lachlan v. Reynolds 


281 


518, 653 


V. Beverly 


585 


Lacon v. Merlins 




52 


V. Dodwell 


410 


Lacroix, In re 




8 


V. Kitteridge > 


2 


Ladd V. Harvey 




879 


V. Lnwrence 


458, 465 


Tjade v. Halford 




275 


o. Lindsay 


1B2 


Laing v. Barbour 




717, 722 


V. Wallis 


167 


V. Cowan 




684 


Lawrie v. Bankes 


398 


Lainson v. Lainson 




574, 576 


Laws V. Bennett 


704 


Lake V. Currie 425, 685 


687, 688 


Lawson v. Morrison 


136, 168 


Lamar v. Jones 




708 


Lawyer v. Smith 


134 


Lambell v. Lambell 


133, 135, 141 


Laxton v. Eedle 


582, 849 


Lambert, In re 




142 


Lea V. Grundy 


744 



TABLE OP CASES. 



xlv 



Lea V. Libb 




85 


Lewis V. Boetefeur 


238 


Leach v. Bates 




86 


V. King 


443 


V. Leach 




400 


V. Lane 


58 


V. Jay 




51, 652 


V. Lewis 27, 31, 


35, 80, 81, 87, 


Leacroft v. Maynard 




186, 239 


130, 133, 


134,409,411, 


Leadbeater v. Cross 




808 




446 


Leadenham v. Nicholson 




684 


V. Llewellyn 


678 


Leake v. Robinsbn 265, 266, 


267, 269, 


V. Maris 


31 


270, 


274, 


285, 287, 


V. Mathews 


698 


288, 


822, 


762, 819, 


V. Pead 


34 




840 


844, 857 


V. Puxley 


747 


V. Gilchrist 




2 


V. Rogers 


759 


Leathers v. Greenacre 




18,80 


V. Scofield 


18 


Leavens v. Butler 




472 


V. Smith 


866 


Le Breton v. Fletcher 




31 


V. Waters 


801 


Leche v. Kilmorey 




397 


Lewis's Estate 


472 


Lechmere v. Carlisle 




593, 601 


Lichfield v. Baker 


612, 617 


V. Lavie 




393 


V. Eyres 


785 


c'. Lechmere 




601 


Liddard v. Liddard 


363, 388 


Ledyard u. Garland 




31 


Lide V. Lide 


35 


Lee, In re 




87 


Liggat V. Hart 


326 


V. Bank of England 




31 


Lightfoot V. Burstall 


765 


V. Busk 




563, 564 


Liley «. Hey 


212 


V. Colston 




36 


Lilford V. Keek 


335 


V. Delane 




174 


Lill V. Lill 


541 


V. Dill 




36 


Lillard v. Reynolds 


356 


V. Libb 




89 


Lillie I'. Lillie 


133 


V. Pain 343, 376, 382, 417, 422 


Limbrey v. Gurr 


233, 367 


V. Woodward 




782 


Limerick, In re 


93 


Lee's Case 




878 


Lincoln v. Battelle 


6 


Leeds v. Freeport 




15 


V. Hapgood 


12 


V. Munday 




689, 698 


Lincoln's Case 


151 


V. Wakefield 




854 


Lindsay, In re 


542 


Leeming v. Sherratt 841 


,846 


, 861, 863 


V. Lindsay 


18, 551 


Leese, In re 




176 


V. M'Cormack 


31 


Leet V. Randall 




831, 851 


Lindsell v. Thacker 


689, 698 


Lefevre v. Freeland 




684, 687 


Lines v. Darden 


385 


I.-. Lefevre 




454 


Lingan v. Carroll 


338 


Lefroy v. Flood 




393, 395 


Lingdren i: Lingdren 


424 


Legge V. Askill 




771 


Lingen v. Sowray 


586, 599 


Le Gros v. Cockerell 




707 


Linley v. Taylor, 


223, 461 


Leigli V. Leigh 


342 


343, 405 


Linstead v. Green 


500 


Leighton v. Bailie 




753, 775 


Linton v. Laycock 


807 


Leiper v. Irvine 




52, 598 


Lister i'. Bradley 835 


837, 840, 849 


Leniage v. Goodban 




173, 176 


V. Pickford 


782, 794 


Le Marchant v. Le Marchant 


390, 391 


V. Smith 


415 


Lemayne v. Stanley 




78,80 


Listen V. Jenkins 


486 


Lempriere v. Valpy 




679 


Little V. Little 


38 


Lendopp v. Eborall 




664 


Littlejolins v. Household 


828 


Lenox v. Lenox 




823 


Littleton's Case 


694 


Leonard v. People 




665 


Lively v. Harwell 


133 


V. White 




782 


Livesey v. Livesey 


839, 845 


Lepine v. Ferrard 




255 


Livingston v. Greene 


80G, 807 


Leslie v. Devonshire 




373, 565 


u. Livingston 


148 


V. Marshall 




866 


V. Newkirk 


51,53 


Lester v. Garland 




45, 304 


Livock, In re 


143 


Letlibridge v. Kirkman 




748 


Llewellyn, In re 


611, 615 


V. Lethbridge 




779 


Lloyd V. Bran ton 


186 


V. Thurlow 




188 


u. Davies 


325 


Lethieuillier v. Tracy 


555 


832, 833 


.. Lloyd 211, 736, 


764, 845, 846, 


Lett V. Randall 




274, 468 




863 


Levet V. Needham 


566 


568, 581 


V. Loaring 


880 


Lewes ;;. Lewes 




397 


V. Roberts 


87 


Lewis, In re 82 


133, 


141, 181 


V. Spillett 


566 


V. AUenby 




228 


Locke V. James 97 


136, 144, 170 



xlvi 



TABLE OP CASES. 



liocke V. Lamb 




8i0 


Lucas V. Brandeth 




590, 596 


LockViart v. Hardy 




397 


V. Carline 




839 


Loder v. Hatfield 




835, 837 


V. James 




18 


Loffus V. Man 




28 


V. Jones 




221 


Logan V. Bell 




123 


V. Lucas 




221 


I). Fairlie 




3 


V. Parsons 




88 


V. Ludson 




879 


Luokcraft v. Pridham 




242 


V. Watt 




31 


Ludlow, In re 




751 


Login V. Coorg 




6 


V. Stevenson 




763 


Lomas v. Wright 




577 


LufEman, In re 




86 


Lomax v. Holmedon 




582 


Lugg ». Lugg 




124 


V. Ripley 




234, 571 


Lumley v. May 




727 


Lomber v. Stoughton 




781 


V. Robbing 




747 


London v. Garway 




565 


Lunn V. Osborne 




481 


London tTniversity v. Yarrow 


211, 228, 


Lushington v. Boldero 




177 






230 


V. Onslow 


121, 


142, 143 


Long V. Aldred 




122, 193 


Luther v. Kidby 




151 


V. Dennis 




614 


Luxford V. Cheeke 




803, 804 


V. Goodfellow 




35 


Lyddon v. Ellison 




298, 872 


V. Wilkinson 




340 


Lyles V. Lyles 




21,26 


V. Zook 




78 


Lynch a. Hill 


255, 


486, 487 


Longdon v. Simson 


305, 


306, 747 


V. Paraguay 




2 


Longford v. Eyre 




87 


Lyne's Trust, In re 




826 


Longhead u. Phelps 




285 


Lynes v. Townsend 




327 


Longley v. Longley 


565, 


733, 738 


Lynn v. Risberg 




442 


Longmore v. Broom 




518 


V. Kerridge 




772 


V. Elcam 




400 


Lyon V. Smith 




87 


Longstaff u. Renneson 




230 


Lyon's Trusts, In re 




381 


Longworth v. Bellamey 




320 


Lyons v. Bengal 




245 


Lonsdale v. Berchtoldt 




397 


V. East India Co. 


207 


242, 250 


Lord I'. Godfrey 




614, 616 


Lysaght v. Edwards 55, 


337, 


702, 706 


V. Lord 82 


112 


458, 874 


Lytle i). Beveridge 




856 


V. Wightwick 




592 


Lytton V. Lytton 




533, 800 


Lorieux v. Keller 




417 








Loring v. Blake 




266, 293 








V, CooUdge 




341 


M. 






V. Park 




7 








Lorings v. Marsh 




417 


Maas V. Sheffield 




39,41 


Lorrillard v. Coster 




252, 866 


Maberly v. Strode 




520, 621 


Losoombe v. Wintringham 


210 


244, 248 


MoAdam v. Logan 




49 


Louch V. Peters 




188 


McAllister v. McAllister 




208 


Lovat V. Leeds 




177, 188 


McBride v. Elmer 




878 


Love V. Gaze 




417, 571 


v. McBride 




136 


Love V. Johnston 




193 


McBride v. Smyth 




472 


V. L'Estrange 




843, 849 


McCabe, In re 


142 


191, 192 


Lovell V. Knight 




679 


V. Swap 




694 


Loveren v. Lamprey 46, 51 


326, 327 


McCall V. McCall 




448 


Lovering v. Minot 




612, 


McCall's Appeal 




799 


V. Worthington 


266 


297, 302 


McCartee v. Orphans' Asylum 


65 


Lovett V. GUIender 




472 


McCarty v. Hoffman 




78 


Lowe, In re 




176 


MeChesney v. Bruce 




716 


V. Carter 




431 


McClanahan v. Kennedy 




787 


V. Huntingtower 




442 


Macclesfield v. Davis 




880 


i;. Jolliffe 




81, 71, 72 


McClure v. Evans 




417 


V. Pennington 




680 


McClure's Appeal 




585 


V. Thomas 


770, 772, 773 


McConnell v. Wilcox 




2 


V. Williamson 




34, 38 


McCord !.-. Ochiltree 




210 


Lowes V. Lowes 




461, 466 


M'Corniick v. Grogan 23^ 


,388.415.417 


Lowfield V. Stoneham 




409 


McCoy V. Hugus 




418 


Lowndes v. Norton 




164 


McCray v. Lipp 




417 


V. Stone 




373 


McCreery v. Allender 




69 


Lowther v. Cavendish 




672 


McCuUoch v., McCulloch 




390, 874 


V. 'Condon 




836 


McCuUum V. McKenzie 




129 


V. Lowther 




880 


McDermot v. United Ins. Co. 


371 


Loy V. Kennedy 




31 


McDermott v. Wallace 




543 



TABLE OF CASES. 



xlvii 



Macdonald v. Bryce 312, 313 


314, 828 


Maitland v. Adair 




339, 743 


V. Irvine 


614 


V. Mackinnon 




783, 792 


V. Macdonald 


14, 240 


Major V. lies 




146 


V. Walker 


714, 715 


V. Knight 




30 


McDonald v. Mass. Hospital 


208, 210 


V. Williams 




146 


McDonougli V. LougUlin 


80 


Majoribanks v, Hovenden 




24 


V. Murdock 


2tf2 


Makeham v. Hooper 




236, 242 


McDowall V. Peyton 


27 


Malcolm v. Malcolm 


298 


624, 829 


McEU'resh v. Guard 


89 


V. O'Callaghan 




811 


McElwaine's Will, In re 


78 


Maiden v. Maine 




514 


Macey v. Shurmcr 


386 


Malim v. Keighley 




886, 391 


McGavock v. Pugsley 


827 


Malin v. Malin 




53, 144 


McGee v. Porter 


105 


Mallabar y. Mallabar 417 


639 


640, 642 


McGirr v. Aaron 


207, 208 


Mallahar v. Mallahar 




566 


McGuire v. Evans 


477 


Mallett t). Sackford 




879 


V. Kerr 


106 


Maloue v. Harper 




103 


Machell v. Temple 


90 


V. Hobbs 




31, 130 


u. Weeding 


555 


V. O'Connor 




386, 395 


Macliin i>. Grindon 


100 


Maltass v. Maltass 




12, 16 


McKeehan ». Wilson 


486 


Manbridge v. Plummer 




75 


Mackell v. Winter 


837, 857 


Manchester & Southport 


Rail 




Mackenzie v. Bradbury 


531 


way. In re 




163, 699 


V. Handasyde 


31,34 


Manderson v. Lukens 




866 


V. King 


620 


Manfield v. Dugard 




582, 806 


V. Mackenzie 


51 


Manice v. Manice 




302 


Mackett v. Mackett 


391, 402 


Manigault v. Deas 




533 


Mackie v. Alston 


856 


Manly v. Lakin 




18,24 


V. Mackie 


607 


Mann, In re 




106 


Mackinnon v. Peach 


351 


V. Burlingham 




228 


M'Kinnon v. Thompson 


51, 53 


V. Fuller 


182 


186, 529 


Mackintosh v. Townsend 


240 


V. Mann 410, 414, 


417, 


418, 431, 


Macknet v. Macknet 


340, 574 






769 


Maclareu v. Stainton 


798 


Manning v. Manning 




163 


McLahlan v. Taitt 


841, 861 


V. Purceli 




29 


McLean o. Barnard 


71 


Manning's Case 




879 


V. McLean 


104 


Mannox v. Greener 




798 


M'Leroth v. Bacon 


418 


Manuel v. Manuel 




2 


McMahon v. Ryan 


85 


Mapp V. EUcock 




566, 571 


McMasters v. Blair 


38 


Mappin v. Mappin 




851, 861 


Macnab v. Whitbread 


.385 


Maraver, In re 




4,5 


Macnamara v. Whitworth 


725, 747 


Marchant v. Twisden 




717 


McNaughton w. McNaughton 51 


, 147, 482 


Margitson v. Hall 




516 


McNeeley v. McNeeley 


867 


Markham v. Ivatt 




762 


McNinch v. Charles 


37 


Marks u. Bryant 




98 


Macpherson v. Macpherson 


606 


V. Solomon 




473 


V. Stewart 


304, 314 


i;. Solomons 




761 


M'Queen v. M'Queen 


443 


Marlborough v. Godolphin 


280, 288, 600, 


McRainy v. Clark 


147 






551 


M'Rea v. Mattoon 


6 


Marlow v. Smith 




694 


McRee v. Means 


866 


Marnelt v. Walton 




24 


MoTaggart v. Thompson 


38 


Marret ». Sly 




730 


Mc Vicar, In re 


129 


Marriott v. Turner 




565, 653 


Madden v. Ikin 


853 


Marris v. Burton 




188 


Maddison v. Chapman 457, 


458, 518, 


Marsden, In re 




24 


809, 


828, 839, 


Marsh v. Attorney-General 




221, 248 




845 


V. Marsh 79 


137 


146, 171 


Maddox, In re 


82, 83 


V. Means 


211 


247, 248 


Maddy v. Hale 


615 


V. Tyrrell 




35,38 


Magdalene College v. Att. Gen. 


251 


0. Wheeler 




584, 837 


Maguire, In re 212 


248, 376 


Marshall, In re 




698 


Mahon v. Morgan 


445, 471 


u. Bentley 




753, 841 


V. Savage 210 


212, 215 


v. Bremmer 




617 


Main v. Ryder 


35,78 


V. Conrad 




68 


Mainwaring v. Baxter 


252 


V. Crowther 




606 


Mair v. Quilter 


840 


V. HoUoway 




276, 306 



xlviii 



TABLE OP CASES. 



Marshall v. Hopkins 500, 731, 783 

Marshall's Appeal 422 

Case 363 
Marson v. London, Chatham & 

Dover Rail. Co. 779 

Marston d. Carter 879 

V. Fox 53, 125 

V. Gowan 664 

V. Norton 41, 42 

V. Roe 126, 126, 128 

Martelli v. HoUoway 275 

Martin, In re 18, 40, 80, 82, 85 

V. Bowker 708 

V. Douch 392 

V. Drinkwater 186 

o. Glover 754, 759 

V. Hamlin 79 

V. Hatton 233 

V. Hobson 770 

V. Johnston 35 

V. Lachasse 841 

0. Lavertoh 694, 698 

V. Lee 2, 6 

V. Long 879 

V. Margham 244 

V. Martin 568, 798, 874 

V. Mitchell 35 

V. Moulin 691 

V. Smith , 689 

V. Swannell 551 

V. Wellstead 229 

Martineau v. Briggs 179 

V. Rogers 850 

Martins v. Gardiner 135 

Marwood v. Darrell 372 

V. Turner 99, 324 

Maskell ». Farrington 196 

Maskelyne v. Maskelyne 392 

Mason, In re 355, 770, 772 

v. Bateson 371 

V. Dun man 98, 99, 103 

V. Lineberg 387 

V. Robinson 357, 501 

Mason v. Tuckerman 798 

Massey v. Hudson 281, 808 

V. Sherman ' 386 

Massey's Appeal 646 

Master v. De Croismar 69 

V. Stone 98 

Masterman v. Maberley 25 

Masters v. Masters 95, 421, 441 

V. Scales 827 

Mather v. Scott 230 

V. Thomas 699 

Mathes v. Smart 769 

Mathew v. Mathew 793 

Mathews v. Daniel 879 

V. Kel>le 308, 309, 313, 314 

V. Warner 102 

Matson v. Magrath 124, 125, 128 

V. Swift 598, 632 

Mattliew V. Osborne 59 

Matthews v. Venables 167 

Maud V. Maud 396 

Maude v. Maude 615 



Maugham v. Mason 

V. Vincent 
Maundy v. Maundy 
Maxee v. Shute 
Maxwell, In re 

V. Maxwell 
May V. Bradlee 

V. Roper 

V. Wood 
Maybank v. Brooks 
Maybery v. Brooking 
Mayer v. Gowland 

V. Townsend 
Maynard v. Woodard 

V. Wright 
Mayo V. Jones 
Mazyck v. Vanderhorst 
Mead, In re 
Meador v. Sorsby 
Mealing v. Pace 
Means v. Means 
V. Moore 
Mebane v. Womack 
Medley v. Wood 
Medlicott v. Bowes 
Medlycptt v. Assheton 
Meeds v. Wood 
Meek v. Devenish 

V. Perry 
Meeker v. Meeker 
Meese v. Keefe 
Megginson v. Moore 
Mehrtens v. Andrews 



625 

523 

798 

24 

37 

11, 332, 449 

38 

664 

834, 839 

340, 440 

. , 793 

160 

872 

208 

519 

38 

255, 879 

83 

51 

18 

18 

130 

339, 341 

27 

841 

139 

729, 805 

599, 603 

86 

35 

2,31 

386 

607, 608, 611, 

613 

275, 314 

211 

414, 483 

28 

879 

134, 135 

. 20, 92 

173, 767 

389, 390 

747 

699 

291 

170 

266, 274 

274 



Meller v. Stanley 
Mellish V. Asjlum 
V. Mellish 
Melnish v. Milton 
Melson v. Cooper 
Mence v. Mence 
Mercer, In re 
Meredith, In re 

V. Heneage 
Meredith v. Meredith 

V. Vick 
Meredith's Trusts, In re 
Meredyth v. Maunsell 
Merlin i'. Blagrave 
Merrick's Trusts, In re 
Merril v. Johnson 
Merrill v. Emery 879 

Merritt, In re 173, 3,^7 

0. Farmers' Fire Ins. Co. ' 704 
Merry v. Hill 853 

Merryman v. Merryman 603 

Meserve v. Meserve 827 

Messeeva v. Carr 3U9 

Messenger v. Clark 40 

Metham v. Devon 94 

Methodist Church v. Remington 260 
V. Warren 252 

Methuen v. Methuen 182 

Meure v. Meure 687 

Meyer v. Eisler 806 

V. Fogg 74 



TABLE OP CASES. 



xlix 



Meyer v. Simonsen 




611 


MinshuU V. Minshnll 




356 


MiftU V. Brain 


460, 462, 466 


Minter v. Wraith 




285, 286 


Miohell V. Michell 




753, 758 


Minton v. Kirwood 




747 


Michell's Trusts, In re 




208 


Minuse v. Coxe 




51 


Mick V. Mick 




68 


Missionary Soc. v. Chapman 


207, 504 


Mickle V. Matlack 




80, 81, 89 


V. Reynold 




439 


Mieklestone v. Brown 




233 


Missionary Society's Appeal 


439 


Midland Counties Railway, In 


re 327, 


Mitchell V. Colls 




523 






335, 788 


V. Long 




866 


Midland Counties Eailway 


Co. 


V. 


V. M'Isaac 




■ 765 


Oswin 


163 


, 722, 729 


V. Mitchell 




105, 431 


Midland Counties Railway 


Co. 


V. 


V. Smith 




24 


Westcomb 




699 


V. Thomas 




35,38 


Middlebrook v. Bromley 




448 


V. Walker 




417 


Middleton v. Cater 




342 


Mitchell's Estate, In re 




226 


I). Clitherow 




227 


Mitcheson, In re 




136 


V. Losh 




310, 311 


Mitford B. Reynolds 208, 


209, 


250, 359, 


V. Spicer 




69,236 






367, 369 


Milbank v. Lambert 




210, 221 


Moase v. White 




676 


Mildmay v. Quicke 




163 


Mocatta v. Murgatroyd 




693 


Miles V. Boyden 




193 


Moffatt V. Burnie 




543 


V. Dyer 


605, 507, 513 


V. Strong 


864 


, 866, 879 


V. Harrison 




237, 238 


Moflfett V. Bates 




450, 458 


17. Miles 




827, 329 


Mogg V. Hodges 




230, 242 


Miles's Will . 




80 


V. Mogg 76 


259 


, 875, 877 


Mill's Appeal 




38 


Moggridge v. Thackwell 


244, 


245, 250, 


Millard v. Bailey 




363, 417 






391 


Milledge v. Lamar 




18 


Mohun V. Mohun 




358, 500 


Miller v Brown 




42, 193 


Molineaux v. Molineaux 




90 


V. Chittenden 




865, 866 


Molyneux v. Rowe 




721 


V. Flournoy 


472, 473, 476 


Monck V. Monck 




200 


V. Huddlestone 




766 


Monday, In re 




30 


V. James 




3 


Monk V. Mawdsley 




741 


V. Macomb 




255 


Monkhouse v. Holme 




835, 851 


V. McNeill 




89 


V. Monkhouse 




606, 514 


V. Miller 




31,35 


Monroe v, Douglass 




9 


V. Phillips 




122 


Montagu v. Nucella 




516 


V. Rowan 




208, 212 


1). Sandwich 




775 


V. Springer 




417 


Montague v. Jeffries 




165 


V. Teachout 




208 


Montefiore v. Montefiore 




104 


V. Thurgood 




457 


Montgomerie v. Woodiey 




852 


V. Travers 409, 418, 


423 


424, 441 


Montgomery v. Perkins 




89 






795 


Monypenny v. Bristow 




193, 198 


Millican v. Millican 




21 


Monypenny v. Bering 


263, 


285, 286, 


Mills, In re 




144 




298 


301, 561 


V. Brown 




614, 619 


Moody V. King 




879 


V. Farmer 




244 


V. Walters 




831 


V. Fogal 




2 


Mooers v. White 


68 


115, 201 


V. Mills 608, 612, 614 


615, 618 


Mooltrie v. Hunt 




80 


Milne v. Parker 




614 


Mooney v. Olsen 




85,36 


Milner v. Milner 




529 


Moore v. Blauvelt 




35 


Milnes v. Sla'.er 




51 


V. Budd 




6,15 


Milroy v. Milroy 


293 


806, 845 


0. Darrell 




t 


Milsom V. Awdry 




747 


V. Dimond 




874 


Milsome v. Long 




745 


«. Greene 




31 


Milsone v. Long 




29 


V. Gwynn 




6 


Miner v. Atherton 




162 


V. Hawkins 




48 


Mining v. Batdorff 




807 


i;. Howe 


864, 865, 866 


Minkler v. Minkler 




1.33 


V. King 83, 89 


108, 110 


Minnis v. Aylett 




672 


V. Lyons 




799, 807 


Minor, In re 




829 


V.Moore 80, 8fi, 89, 


137, 


210, 219 


V. Thomas 




38 


250, 673, 


756, 770 


Minot V. Boston Asylum 




378, 417, 


V. Parker 




265, 864 






418 


t). Raisbeck 




163 


V. Lappan 




820, 503 


V. Smith 




854 


VOL. I., 




d 









TABLE OF CASES. 



Moore v. Tanner 
V. Weaver 
V. Wilkins 

Moore's Trust, In re 

Mordecai v. Boglan 

Morgan, In re 

Ex parte 
V. Edwards 
V. Gaines 
u. Gardiner 
V. Gronon 
V. Holford 



31 

842 

12 

186 

417 

25, 176 

697, 698 

458 

2 

835 

291 

52 



V. Morgan 255, 311, 312, 313, 314, 
607,612,616,618,840,848 



V. Surman 
V. Swansea 
V. Tliomas 
Moriarty v, Martin 
Morice v. Durham 
Morley, In re 
u. Bird 
V. Croxon 
Morrall v. S,utton 
Morrell v. Dictey 
V. Fisher 
Morres ?>. Hodges 
Morrice v. Aylmer 
Morris v. Burroughs 
V. Henderson 
V. Howse 
V. Lloyd 
V. Maule 
V. Stokes 
Morrison v. Campbell 
V. Hoppe 
V. Morrison 
V. Semple 
Morritt v. Douglass 
Morrow v. Williams 
Morse, In re 

V. Faulkner 
V. Mason 
V. Morse 
Morse v. Ormonde 

V. Thompson 
Mortimer v. Hartley 
V. Ireland 
V. Moffatt 
V. West 
Morton v. Barrett 
V. Funk 
V. Ingram 
V. Onion 
V. Perry 
Morwan v. Thompson 
Mory V. Michael 
Moseley's Trusts, In re 
Moser v. Piatt 
Moss V. Cooper 
V, Barter 
Mosser v. Mosser 
Mostyn v, Champneys 

V, Mostyn 
■Moultrie v. Hunt 
Mounsey v. Blamire 



650, 655 
709 
320 
449 
212, 215, 391, 565 
698 
341 

228, 230 

483, 506 
24, 27, 31 

785, 793 
615 

382, 793 
446 
722 
51 



497 


,736 




371 




35 




2 




736 




177 




722 




110 




879 




850 




60 


318, 320 


838 




129 


255, 262 


800 




41 


485 


511 




711 


879 


880 


97 


298 


473, 


503 




865 




74 




122 


422, 


769 


122, 


123 




677 




273 


794, 


795 




234 




685 




21 


658, 


660 




388 




2 




417 



Mountain v. Bennett 

V. Young 
Mousley v. Carr 
Mower v. Orr 
Mowlem, In re 
Mowry v. Selbu 
Moye V. Kittrell 
Muckleston v. Brown 
Mudway v. Croft 
Muir V. Leake 
Mules V. Jennings j 
Mullen V. Bowman 

V. McKelvy 
MuUins V. Smith 
Mullock V. Souder 
Mundy, In re 

V. Mundy 
Munro v. Holmes 

V. Merchant 
Murkin v. Phillipson 
Murphy v. Murphy 
Murray v. Addenbrook 

V. 'Johnston 

V. Jones 

V. Murphy 

o. Oliver 

V. Tancred 
Murry v. Murry 
Murton v. Markby 
Musgrave v. Down 
Muskett V. Eaton 
Musser v. Curry 
Muston, In re 
Mutlow V. Bigg 
Mutter's Estate 
Myers v. Perigal 

V. Vanderbelt 
Mytton V. Boodle 



N. 



35 

747 

619 

854, 355, 590 

652 

86 

21 

565 

38 

31 

597 

571 

31, 99, 337 

762 

327 

24,29 

130, 134, 136 

505 

68 

810, 836 

74,86 

293 

177 

512 

84 

193 

840 

101, 104 

589, 747 

24 

817, 819 

198 

86 

599, 603 

476 

222, 223 

18 

507 



Nailing v. Nailing 


34 


Nalle V. Fenwick 


27,31 


Napier v. Napier 


678 


Napper v. Sanders 


831 


Nash V. Hunt 


38 


V. Morley 


208, 209. 212, 215 


V. Nash 


821 


V. Read 


71 


V. Smith 


566 


Nason v. First Bangor Church 378 


Nat V. Coons 


2 


Neate v. Pickard 


135 


Neathway v. Ham 


878 


Neave's Estate 


75 


Needles v. Martin 


208, 209, 252 


Neeld v. Neeld 


381 


Neely v. Grantham 


595 


Neif' s Appeal 


193 


Negus V. Coulter 


222 


1;. Negus 


129 


Neighbor v. Thurlow 


563, 564 


Neil V. Neil 


87, 88 


Nelson v. Bridport 


2.6 



TABLE OF OASES. 



Nelson v. Callow 292 

V. Hopkins 425, 67S, 676 

V. McGiftert 31, 87, 171, 173, 176 
V. Moore 341 

Nethersole v. Indigent Blind School 242 



Nettleton v. Stephenson 




304, 312 


Nevill V. Boddain 




177, 874 


V. Nevill 




397 


Neville v. Fortescue 




618 


Nevinson v. Stables 




7 


New V. Bonaker 




246, 250 


Newberry, In re 




632 


Newbold v. Boone 




472 


V. Pritchett 




338 


Newburgh v. Newburgh 


412, 


413, 492, 

629 

31 


Newburyport Bank v. Stone 


Newby v. Skinner 




584 


New England Jewebry Co. i 


. Merriam 694 


Newell V. Homer 




134 


V. Weeks 




27 


Newell's Case 




41 


Newhouse v. Godwin 


31, 


35, 36, 38 


Newland v. Attorney-General 


211 


V. Majoribanks 




735 


V. Shephard 




548 


Newlin v. Freeman 




41 


Newman, In re 




88 


V. Lade 




179 


V. Newman 266, 


753, 


767, 774, 
819, 854 


V. Nightingale 




516, 756 


Newson v. Starke 




208, 210 


Newton v. Barnardine 




557 


V. Clarke 




88,89 


V. Griffith 




487, 879 


V. Lucas 




794 


V. Newton 




185, 191 


Niblock !!. Garratt 




325,523 


Nicholas v. Chamberlain 




782 


0. Nicholas 




761 


NichoU V. Nicholl 


298 


301, 866 


NichoUs V. NichoUs 




26 


V. Tolley 




514 


Nichols V. Binns 




35, 37, 38 


V. Lewis 




427 


Nicholson v. Patrickson 




343 


Nickerson v. Bowly 


458, 467, 551 


V. Buck 




86,89 


Niekisson v. Cockill 




237, 594 


NicoUs V. Sheffield 


256 


257, 866 


Niell V. Morley 




38 


Nightingale v. Burrell 152 


654, 


864, 866 


V. Goulbourn 




211 


Nightingall v. Smith 




795 


Nitzell V. Paschall 




782 


Noble V. Willock 




45, 687 


Nock V. Nock 




88 


Noel V. Henley 608 


635 


636, 637 


0. Hoy 


717 


730, 731 


V. Jones 




397 


V. Noel 




636 


Norcott V. Gordon 




468 


Norfolk V. Giffi)rd 




837 


Norfolk's Case 




295 



Norman, In re 




523 


V. Kynaston 


177, 872, 873 


1). Morrell 




421 


Norris v. Beyea 




473 


V. Beyer 




339 


V. Chambres 




44 


V. Clark 




458 


V. Frazer 




417 


V. Johnston 




866 


V. Thomson 




208 


North, In re 




147 


u. Compton 




666, 568 


V. Valk 




684 


North Adams Univ. Soc. » 


Fitch 207 


Northcutt V. Northcutt 




78 


Norton v. Bazett 




88 


Nottley V. Palmer 




469 


Nowlan v. Nelligan 




387 


Nowlin V. Scott 




98 


Noyes, In re 




87 


V. Barber 




31 


Noys V. Mordaunt 




469 


Nugee V. Chapman 




759 


Nunn's Trusts, In re 




382, 411 


Nunnery v. Carter 




867 


Nutt «. Nutt 




414 


0. 






Oakeley i>. Kitchener 




835 


Oakes v. Chalfont 




287 


V, Oakes 




793 


V. Strachy 




405, 619 


Gates V. Cooke 




532 


Oberle w. Lerch 




632 


O'Bierne, In re 




386 


O'Brien v. Galagher 




84,89 


V. Gallagher 




80 


II. Heeney 




605 


V. People 




38 


Ockleston v. Heap 




713 


Oddie V. Brown 




359, 849 


Odell V. Odell 207, 


251 


292, 302 


O'DriscoU v. Koger 




458, 837 


O'Dwyer v. Geare 




28 


OfEut V. Offut 




99, 103 


Ogden's Appeal 




357 


Ogle V. Cook 




31, 620 


Ognell's Case 




41 


O'Hara v. Chaine 




461, 462 


Oke V. Heath 


345 


646, 767 


Okeden v. Clifden 




441 


Old V. Old 




71 


Oldham v. Hughes 




590 


V. Litchfield 




416, 417 


V. Pickering 




62 


Olding, In re 


84, 89, 110 


Old South Soc. V. Crocker 




208 


Oliphant v. Hendrie 




240 


Olivier v. Towns 




2 


Olney v. Bates 




354, 851 


V. Hull 




799, 803 


O'Mahoney v. Burdett 




870 


Onimanney v. Butcher 


208 


212, 773 


O'NeaU v. Farr 35, 


115, 


137, 193 



lii 



TABLE OF CASES. 



O'Neil V. Lucas 




813 


Palmer v. Holford 


254, 283 


, 306, 314 


». Smith 




98 


V. Newell 


337, 417, 684 


Ongley v. Chambers 




428, 783 


V. Simmonds 




390 


V. Peale 




374, 375 


V. Voorliis 




458 


Onions v. Tyrer 89 


,135 


, 146, 169 


V. Whitmore 




3 


Onslow V. South 




837 


Panaud v. Jones 




71 


V. Wallis 




672, 


Pare v. Clegg 




211 


Oppenheim v. Henry 




29,848 


Parfitt V. Hember 




298, 300 


Ord, In re 




335 


Park, Ex parte 




179 


V. Ord 




747 


Parker, In re 




853 


Orrell v. Orrell 




448 


V. Bogardus 




327 


Osborn v. Bank of U. S. 




880 


V. Bolton 




388 


V. Cook 


80, 


81, 82, 86 


V. Briscoe 




197 


Osborne, In re 




4,6 


V. Brooke 




39 


0. Varney 




4J7 


V. Brown 




31,80 


Osgood V. Breed 




31, 41, 42 


V. Carter 




454 


V. Lovering 




503 


V. Downing 




462 


O'Shea v. Howley 




53,606 


V. Hodgson 




835 


Osmond v. Fitzroy 




88 


V. Lamb 




148 


Oswald, In re 




173, 414 


V. Marchant 


626, 669, 


674, 753, 


Otis V. MoLellan 




266, 293 






759 


V. Smith 




782 


V. May 




208 


O'Toole V. Brown 


328 


729, 733 


V. Kickson 




357, 530 


Ould V. Washington Hospital 


208, 251 


V. Parker 31, 108, 476, 505, 554, 


Ouseley v. Anstrutlier 




529 






866 


Outlaw V. Hurdle 




102 


V. Plumraer 




798 


Overall v. Overall 


81 


, 130, 136 


V. Sowerby 


458, 461, 


841, 842, 


Overbury v. Overbury 




124 






863 


Overend v. Gurney 




186 


V. Tootal 


492 


528, 660 


Overing v. Russell . 




68 


Parker's Appeal . 




798 


Overton v. Tracey 




415 


Parkin v. Bainbridge 




77 


Owen V. Boyle 




6 


V. Hodgkinson 




850 


V. Smyth 




492 


V. Knight 




515, 806 


Owens V. Bean 




377 


Parkison v. Parkison 




99 


V. Missionary Soc. 


207 


, 213, 219 


Parmitter v. Parmitter 




410 


Owing's Case 




415 


Parnall v. Parnall 




290 


Owston, In re 




34,35 


Parr, In re 




142, 851 


Oxenforth v. Cawkwell 




668 


11. Parr 




842 


Oxley V. Lane 




472 


V. Swindels 
Parramore v. Taylor 
Parrish v. Vaughan 




554 

80,89 

605 


P. 






Parry v. Warrington 
Parsons v. Baker 




608 
386 


Packard v. Hill 




6 


V. Freeman 




155, 159 


Packer v. Scott 




273 


u. Lanoe 


17, 18, 


124, 410 


Packman, In re 


694 


698, 703 


V. Lyman 




2 


V. Gregory 




841 


V. Parsons 


98, 


380, 823 


Padbury v. Clark 




457, 471 


V. Winslow 




75, 803 


Padfield v. Padfield 




160 


Pascall, In re 




91,92 


Page V. Donovan 




106 


Paske V. OUatt 




86 


v. Hughes 




443 


Pasmore v. Huggins 




482, 504 


V. Leaping well 227, 


347, 


565, 632, 


Passmore v. Passmore 




24 






634, 766 


Patch V. Graves 




177 


V. May 




828 


V. Patch 




725 


V. Page 




339, 347 


V. Shore 


26, 160 


337, 677 


V. Young 




765 


Paton V. Sheppard 




753, 758 


Paglar v. Tongue 




30 


Patrick v. Yeatherd 




775 


Pain V. Ridout 




654 


Patridge v. Patridge 




152 


Paine w. Hall 




233, 415 


Patten, In re 




14 


V. Parsons 




200 


V. Poulton 




138 


Paine's Case 




878 


V. Tallman 




31 


Paisley's Appeal 




385 


Patterson v. Devlin 




879 


Palmer, In re 




747 


V. Ellis 




255, 798 


V. Crauford 




397 


V. Hickey 




134, 143 


V. Flower ^ 




899 


V. Huddart 




729, 733 



TABLE OP CASES. 



liii 



Patterson v. Leith 409, 431 

V. Patterson 38 

V. Kansom 83 

Pattison v. Pattison 326, 331, 552, 553 

Patton V. Allison 36 

V. Randall 632 

Paul V. Compton 388 

V. Paul 786 

Pawlet V. Clark 251 

Payliss's Trust, In re 504 

Paylor «. Pegg 499, 883 

Payne, Ex parte 395 

In re 851 

V. Samms 878 

V. Trappes 189, 191, 411 

Peach, In re ' 120 

I'. Phillips 152 

Peacock v. Monk 19, 41 

Pearce v. Edmeades 543, 544 

v. Gardner 592 

V. Graham 355 

V. Loman 835 

Peard v. Kekewich 255, 816 

Pearman v, Pearman 859 

Pearn, In re 106 

Pears v. Weightman 694 

Pearsall v. Simpson 490, 808, 823 

Pearse, In re 85 

ii. Pearse 3 

Pearson v., Dolman 849, 860 

!;. Lane 586, 605 

V. Pearson 110, 458, 466, 467 

V. Rutter 832 

V. Wiglitman 31 

Peat V. Powell 548 

Pechell, In re 133 

v. Hilderley 8 

V. Jenkinson 99 

Peck V. Cary 81, 87, 89 

V. Hasley 358, 303 

Pedder, In re 586, 599 

Pedley v. Dodds 788 

Pedratti's Will 359 

Peebles, Appeal of 27 

Peek, In re 843 

Peillon V. Bi-ooking 2 

Peisch V. Dickson 431 

Pelham v. Anderson 210, 231 

Pells V. Brown 874 

Pembroke, In re 91 

V. Pemberton 133, 137, 138 

Penfold V. Bouch 565 

Penley v. Penley 516 

Penn Life Ins. Co. v. Stokes 443 

Pennant v. Kingscote 87 

Penniman i>. Barremore 442 

V. French 755, 769 

Pennock's Estate 385 

Penny v. Turner 518, 552 

People V. Conklin 68, 69, 70 

V. Lambert 6 

Pepper v. Dixon 461 

Perceval v. Perceval 650, 819 

Perin i>. Carey .209, 251 

Perkins v. George 327 



Perkins v. Little 

V. Micklethwaite 

V. Perkins 

V. Walker 
Perrin v. MoMicken 
Perring v. Trail 
Perrott v. Perrott 
Perry v. Phelips 
V. Rhodes 
V. Whitehead 
Perry's Ex'rs v. The Queen 
Petchell, In re ^ 
Peter v. Beverley 
Peters v. Dipple 
Petre v. Petre 
Pett V. Hake 
Pettes V. Bingham 
Pettinger v. Ambler 
Petty V. Willson 
Petway v. Powell 
Pewtner, In re 
Peyton v. Lambert 
Pfleger, In re 
Phelps, In re 

V. Pond 
V. Robbins 
Phene, In re 
Pheysey v. Vicary 
Philadelphia v, Davis 
V. Elliott 
V. Girard 



458 

200, 324 

38 

152 

2 

242 

135 

51, 645 

837 

664 

355 

173 

584 

827 

766, 767 

102, 104 

37 

337, 677, 686 

770 

76 

92,93 

301 

615 

120 

312 

645 

551, 553 

782 

326 

219 

209, 297, 312 



Philanthropic Soc. ». Kemp 237 

Philipps V. Allen 177 

V. Chamberlaine 359 

V. Barker 423, 433 

V. Beal 738, 740, 745, 881 

V. Chamberlaine 414, 504, 531 

V. Eastwood 771 

u. PhiUips 58, 59, 339, 566, 624, 

625 

0. Serjent 619 

V. Sinclair 708 

V. Turner 152 

Phillips Academy v. King 65 

Philp's Will, In re 518 

Philpot, In re 110 

Philpott u. St. George's Hospital 231,251 

Phipps V. Ackers 806, 811, 812, 818 

u. Anglesea 175 

V. Hale 85 

V. Mulgrave 834 

V. Pitcher 72 

V. Williams 811 

Phoebe v. Boggess . 98, 103 

Piatt V. McCuUough 78 

Picken v. Matthews 264 

Pickering v. Langdon 176, 472, 473, 476, 

486 

n. Pickering 379, 610, 616 

V. Stamford 340, 467 

V. Vowles 695 

Pickersgill v. Grey 263 

V. Rodger 355, 446 

Pickford v. Brown 266, 850 

Pickup V. Atkinson 617, 618 



Uv 



TABLE OP CASES. 



Picquet v. Swan 




31,41 


Postell V. Postell 


255 


704, 879 


Pidgely v. Pidgely 




681, 688 


Postlethwait^s Appeal 




423 


Piercy, In re 




87,90 


Potter V. Chapin 




219 


Pierpont v. Patrick 




176 


V. Potter 




193 


Pierson v. Garnet 




228, 386 


V. Titcomb 




2 


Pieschel v. Paris 




245 


V. Webb 




31 


Pigot V. Penrice 




730 


Pottinger v. Wightman 




15 


Pigott V. Bagley 




458 


Potts V. House 




34, 35, 38 


V. Waller 




192 


Poulson w. Wellmgton. 




527 


V. Wilder 




117, 747 


Povall, Ex parte 




2 


Pike V. Stephenson 799 


800 


807, 879 


Powdrell v. Jones 




469 


V. White 




58 


Powell, In re 




684, 771 


Pilcher V. Hole 




183, 423 


V. Attorney-General 


210 


V. Randall 




399 


u. Biddle 




438 


Pile V. Salter 




805 


V. Brown 




879 


Pilkington v. Boughey 


227 


387, 565 


V. Cleaver 




31, 162 


Pinbury v. Elkin 




46, 861 


V. Davis 




375 


Pinckard's Trust, In re 




385 


V. Evans 




608 


Pinney v. Hunt 




28 


V. Jessop 




225 


Pinson v. Ivey 




431 


V. Mouehett 




173, 414 


Pistol V. Riccardson 




669, 671 


V. Manson Manuf. Co. 


417 


Pitcairne v. Erase 




380 


V. Merrett 




571 


Pitman v. Stephens 




718 


V. Merritt 




64,69 


V. Stevens 


717 


739, 744 


V. Morgan 




694 


Pitt V. Jackson 




300, 301 


V. Powell 136, 


141, 


146, 192 


Pitts V. Snowden 




466 


Powell's Trust, In re 




291 


V. Routh 




3,598 


Power V. Hayne 




399 


Playne v. Scriven 




83,89 


V. Power 




150 


Plenty v. West 


175 


476, 798 


Powerscourt v. Powerscourt 


211, 244 


Plowden v. Hyde 


156 


157, 448 


V. Capron 




292 


Plumpstead's Appeal 




24 


Powys V. Mansfield 193, 


200, 


417, 664 


Pocock V. Att.-Gen. 




217 


Pratt V. Beaupree 




565 


V. Lincoln 




735 


V. Church 




401 


Podmore v. Gunning 




386, 417 


V. Felton 




458 


V. Whatton 




133 


V. Harvey 




231 


Pogson V. Thomas 


733 


794, 795 


V. Mathew 


324, 


380, 523 


Polden V. Bastard 




783 


V. Pratt 




182 


Pole V. Somers 




452, 454 


V. Rice 




472, 475 


V. Ralston 




69 


V. Sladden 




565 


Pollen V. Huband 




151 


Pray w. Waterson 




99, 327 


PoUey V. Seymour 




596 


Prendergast i;. Prendergast 




612 


Pollock V. Glassell 




20,78 


Presant o. Goodwin 




3117 


Pomfret v. Perring 




337 


Prescott V. Barker 




674 


Pond V. Bergh 




46, 327 


1). Prescott 338, 


340, 


341, 851, 


Pool V. Bott 




850 






646 


V. BufEum 




79 


Press V. Parker 




791 


Poole ». Coates 




157, 321 


Preston v. Melville 




2,615 


Poor v! Miall 




227 


V. Merger 




262 


Pope ». Pope 




386 


Prestwidge c Groombridge 




375 


V. Whitcombe 




553, 754 


Prevost «. Clarke 




387 


Poplin V. Hawke 




31 


Price V. Dewhurst 




2,4 


Popple !'. Cunison 




105 


V. Gibson 




693 


Port ti. Herbert 




835 


V. Hall 




812 


Porter^ In re 




18 


V. Hathaway 




221, 233 


V. Baddeley 




615 


V. Hunt 




506 


V, Fox 


266, 269, 272 


V. Lockley , 




518 


V. Haydock 




2 


V. Maxwell 175, 


209 


213, 338 


V. Porter 




68 


V. Page 




436 


V. Tournay 




751, 881 


V. Parker 


42 


123, 337 


i». Turner 




26 


V. Powell 




135, 141 


Porter's Appeal 




99 


V. Warren 




357 


Trust 




889, 516 


Prichard v. Prichard 




771, 773 


Portland v. ProdgerB 




40 


Pride v. Atwicke 




357 


Portman v. Willis 




751 


V. Bubb 




89 


Post V. Hover 




285, 585 


V. Fooks 


813 


869, 823 



TABLE OF CASES. 



Iv 



Pridgen v. Pridgen 


82 


Pridie v. Field 


188 


Priester v. Priester 


716 


Prince v. Hazleton 


98 


Pring, Ex parte 


565 


Pringle v. M'Plierson 


193 


Pritchard v. Arbouin 


227, 228, 231 


V. Hicks 


481 


Probate, Judge of, v. Hardy 880 


Proby V. Landor 


417 


Proctor V. Bath 


274, 283, 288 


V. Ferebee 


684 


Provis V. Reed 


31 


Prowse V. Abingdon 


834 


Pruden v. Pruden 


51, 476 


Pryce v. Newbolt 


381 


Pryor v. Coggin 


130, 131 


V. Pryor 


82 


Prytarch v. Havard 


699 


Public Administrator v. Watts 104, 105 


Puddepliatt, In re 


106 


Puller V. Puller 


409 


PuUin V. Pullin 


668, 793 


Pulsford V. Hunter 


835, 844 


Pulteney v. Darlington 


451, 452, 601 


Purchase v. Shalliss 


877, 428 


Purefoy v. Rogers 


546, 864 


Purser v. Darby 


699, 706 


Pusey V. Pusey 


879 


Pusie V. Desbouvrie 


471 


Putnam v. Emerson 


716 


Pye, Ex parte 


162 


(J. Linwood 


487 


Pym V. Lockyer 


417 


Q. 




Quarles v. Garnett 


458 


Quayle v- Davidson 


395, 406 


Queen's College v. Sutton 


379 


Quennell v. Turner 


793 


Quick V. Quick 


188 


Quicke v. Leach 


826, 833 


Quidhampton v. Going 


98 


Quincey v. Quincey 


146, 411 


Quincy v. Rogers 


176, 177 


Qainn t>. Butler 


170 


V. Hardenbrook 


318, 327 



K. 



Eabbeth v. Squire 


798 


Rackham v. Siddall 


697 


Radburn v, Jervis 


96, 118, 188 


Radford v. Radford 


487 


V. Willis 


325, 521 


Radley v. Lees 


487 


Raffenell, In re 


12 


Ragland v. Huntington 


89 


Ragsdale v. Booker 


18 


Eaikes v. Ward 


401 


Raine, In re 


18,74 


Raines v. Barker 


326 



Raines v. Corbin 




448 


Rainier v, Rainier 




136 


Ralph V. Carrick 


534, 535 


536, 545 


V. Watson 




627 


Ralston v. Telfair 




671 


Rambler v. Tryon 




36,38 


Ramsay v. Calcot 




98 


Ramsdell v. Ramsdell 




866, 879 


Ramsden v. Hassard 




553 


RamsdiU v. Wentworth 




417 


Ramsey v. Ramsey 




80 


Ranclifi v. Parkyns, 86 


89, 447 


457, 458 


Randall v. Beatty 




139 


V. Bookey 


566, 566, 


567, 570 


V. Daniell 




418 


V, Hodges 




31 


V. Russell 




879, 881 


Randfield v. Randfleld 


74, 818 


480, 482 


Randolph v. Wendel 




866 


Ranelagh v. Ranelagh 




563 


Raney v. Heath 




' '810 


Rankin v. Rankin 




36,98 


Rash V. Parnel 




81 


Rashleigh v. Master 




586 


RatclifE V. RatclifE 




31 


Rathbone v. Dyckman 


532 


533, 879 


Ravens v. Taylor 




177 


Ravenscroft, In re 




170 


Ravrlings v. Jennings 


751, 


753, 758 


Rawlins, In re 




81 


V. Burgis 


152, 


156, 158 


V. Goldfrap 




879 


V. Richards 




173 


Ray V. Enslin 




505 


V. Hill 




78,87 


V. Walton 


81, 


168, 172 


Rayfleld v. Gaines 




473 


Rayman v. Gold 




544 


Raynham v. Canton 




6 


Rea V. Twilley 




646 


Read, In re 




5 


V. Backhouse 




183 


V. Crop 




455, 462 


V. Gooding 


266, 


829, 861 


V. Hodgens 


759, 


762, 770 


V. Hodges 




207 


V. Snell 




515 


V. Stedman 


69, 


566, 571 


Reading v. Blackwell 




584 


V. Royston 




75 


Reay, In re 




39 


V, Croucher 




104 


Redding, In re 




78 


V. Allen 




472 


Redfern, In re 




496 


Reding v. Stone 




865 


Reece v. Pressey 




36 


V. Steele 




482 


Reed v. Braithwaite 




624 


V. Buckley 




837 


V. Dickerman 




458, 471 


V. Reed 




798 


V. Watson 




80 


V. Woodward 




18 


Reed's Will 




34 



Ivi 



TABLE OF CASES. 



Reek's Appeal 


856 


Riddell v. Jenner 


61 


Keennant v. Hood 


856 


0. Johnson 


36 


Kees V. Kees 


79 


Rider v. Kidder 


417 


Reese v. Court of Probate 


169 


V. Wager 


147, 152, 161 


0. Hawthorn 


98, 103 


Ridge V. Newton 


793 


Reeve, In re 


142 


Ridgeway v. Munkittrick 


484, 650, 656 


V. Att.-Geu. 


244, 250 


u. Underwood 


51 


Reeves v. Baker 885, 


392, 665, 761 


Ridgway v. Ridgway 


859 


V. Long 


864 


V. Woodhouse 


869 


V. Reeves 


31, 409, 417 


Ridout V. Dowling 


476 


RefEell v. Reffell 


410 


V. Pain 


477, 484 


Reg. V. London 


241 


Rigg V. Wilton 


31 


Regan, In re 


108 


Riggs V. Myers 


431 


Reid, In re 


8 


Right V. Banks 


59,60 


V. Borland 


170 


V. Compton 


497 


V. Reid, 449, 552, 581, 


681, 758, 873 


V. Day 


506 


Reilly v. Chouquette 


676 


V. Price 


80,87 


Renvoize v. Cooper 


699 


V. Sidebotham 


496 


Renwick v. Smith 


422 


Rigley's Trust, In re 210, 211, 218, 228, 


Re wait V. Ulrich 


422 




242, 367 


ReX V. Bettesworth 


41 


Riley v. Garnett 


819 


V. Bridger 


44 


V. Riley 


78 


V. Holland 


68 


Ring V. Hard wick 


296, 872 


V. Netherseal 


31 


Ringrose v. Bramham 


319 


V. Willes 


44 


Rinington v. Cannon 


649 


Reynard v. Spence 


461, 471 


Ripley, In re 


87, 133 


Reynolds, In re 


191, 192 


V. Waterworth 


62, 99, 704 


V. Godlee 


632 


Rippen v. Priest 


699 


V. Kortwright 


2,762 


Rippin, In re 


140 


V. Reynolds 


35, 87, 88 


Ripple V. Ripple 


6 


0. Sliirley 


81, 193 


Rippon, In re 


8 


V. Thriipp 


27 


Risley v. Baltinglass 


151 


V. Torin 


448, 457, 466 


Ritch V. Sanders 


777 


V. Wlielan 


431 


Rittson V. Stordy 


68 


V. Wright 


64,69 


River's Case 


880 


Rhett V. Mason 


385 


Rivers v. Fripp 


806, 807 


Rhodes v. Vinson 


81, 130 


V. Rivers 


18 


V. Whitehead 


819 


Rivett's Case 


219 


Rice V. Dwight 


37 


Roach V. Haynes 


180 


V. Jones 


2 


V. Trood 


449 


V. Satterwhite 


255 


Roadley v. Dixon 


460, 462 


Rich V. Cockell 


89, 41, 447 


Roake v. Denn 


688 


V. Whitfield 


689, 604 


Robards v. Jones 


872 


Richards v. Attorney-General 163, 586 


Roberts v. Brinker 


837 


V. Davies 


410, 652 


V. Cooke 


762 


V. Dutch 


2, 5, 418 


V. Johnston 


505 


<,-. Mitchell 


632 


V. Kuffin 


755 


V. Queen's Proctor 173, 175, 176 


V. PliiUips 


84,86 


V. Richards 


693 


V. Roberts 


18, 268 


V. Swansea Improvement 


V. Round 


138 


Co. 


779 


V. Smith 


464; 465 


Richardson v. Barry 


169, 170 


V. Walker 


623 


V. Hall 


753 


I'. Welch 


80 


V. Power 


531 


Roberts's Will, In re 


2,12 


V. Richardson 


74, 193 


Robertson ;;. Barbour 


2,31 


V. Spraag 


514 


V. Collier 


175 


V. Watson 


421, 422 


V. Powell 


176, 177 


V. Wheatland 


799 


V. Smith 


25 


Richmond ». Aiken 


708 


V. Stevens 


443 


Rickards v. Mumford 


133, 137 


Robeson v. Kea 


102 


V. Rickards 


359 


Robey v. Hannon 


25 


V. Robson 


211 


Robins v. Dolphin 


2, 15 


Ricketts v. Loftus 


110 


Robinson, In re 


18, 26, 104 


V. Turquand 


428 


V. Adams 


38 


Kickit's Trust 


382 


V. Allen 


31 



TABLE OP CASES. 



Ivii 



Eobinson v. Bishop 


417 


Rose V. Bartlett 




668, 673 


V. Crandall 


31 


V. Cunynghame 




56, 94, 96 


V. Dusgate 


392 


V. Hill 




733 


0. Fife 


708 


V. Quick 




26 


V. GelJart 


237 


V. Rose 




753 


V. Hardcastle 


284, 290, 300 


Eosewell v. Bennett 




417 


V. King 


89 


Ross V. Bartlett 




703 


V. Knight 


650 


V. Drake 




585, 800 


V. London Hospital 237, 624, 


V. Ewer 




31,81 




626, 63B 


V. McQuiston 




38 


V. Robinson 250 


592, 599, 610 


V. Ross 


318 


664, 747 


V. Sciily 


18,27 


V. Veal 




428, 779 


V. Smith 


81 


RoBsborough-v. Boyse 




85 


V. Taylor 


565, 566, 620 


Rosser v. Franklin 




78, 80, 81 


V. Ticlcell 


401 


Rossetter v. Simmons 




722 


V. Waddelow 


384 


Rosslyn's Trust, In re 




304, 306 


V. Webb 


733 


Rotch V. Emerson 




208, 209 


V. Wheelwright 


863 


Rothmahler v. Myers 357, 


414 


417, 441 


V. Wood 


868, 869 


Rouse's Estate 




846, 849 


Rochelle v. Rochelle 


102, 103, 104 


Routledge v. Dorril 280, 


282 


291, 302 


Roddy V. Fitzgerald 


552 


Rountree v. Talbot 




476, 482 


Roe V. Aistrop 


747 


Rowbotham v. Dunnett 




234 


V. Avis 


663, 473, 660 


Rowe V. Rowe 




39, 615 


V. Bell 


792 


Rowland v. Gorsucli 




318 


V. Bird 


672 


V. Tawney 




266, 850 


V. Clayton 


747 


Rowley v. Eyton 




196 


V. Fludd 


646 


V. Merlin 




144 


fc. Foster 


484 


Roy V. Rowzie 




208 


V. Gilbert 684, 724, 726, 743 


Royall V. Eppes 




879 


V. Heyhoe 


102 


Rucker v. Lambdin 




90 


V. Jeffirey 


57 


,;. Scholefield 




874 


V. Jones 


48 


Ruddon ». McDonald 




89 


u. Reade 


697 


Ruding, In re 


425 


677, 686 


V. Summersett 


879 


Rudland v. Crozier 




398 


V. Vernon 788 


787, 792, 798 


Rudstone v. Anderson 




321 


V. Walker 730, 748, 750,780 


Rudy V. Ulrich 




85, 169 


V. Wegg 


59 


Rumbold v. Rumbold 




668 


V. Tend 


720, 723 


Runkle v. Gates 




132 


Rodgers v. Rodgers 


177 


Ruoff's Appeal 




77 


Rofe V. Sowerby 


837 


Rupp V. Eberly 




866 


Rogers, Appellants 


18 


Ruscombe ». Hare 




154 


Ex parte 


564 


Rush V. Megee 




38 


V. Diamond 


36 


V. Parnell 




31 


V. Goodenough 


411 


Eusing 0. Rusing 




551 


V. Greenough 


191 


Russell, In re 




706 


V. Jones 


445 


V. Buchanan 




819, 850 


V. Pittis 


189, 193 


V. Clowes 




764 


V. Rogers 31, 566, 


570, 571, 799, 


V. Dickson 




27, 186 




807 


V. Falls 




87,88 


V. Ross 


806, 879 


V. Jackson 211 


234 


415, 565 


V. Smith 


162, 780, 781 


V. Kellett 210 


214 


247, 248 


V. Thomas 


210, 754, 771 


Rutherford v. Green 




584 


Rolirer v. Stehman 


18, 89, 103 


V. Maule 




100 


RoUfe V. Budder 


41 


V. Morris 




85 


RoUwagen v. Rollwagen 


35 


V. Rutherford 




80 


Romilly v. James 


558, 559 


Rutledge v. Rutledge 




471 


Roney v, Stiltz 


327 


Rutter V. McLean 




451, 452 


Rooke V. Rooke 


647, 655, 680 


Ryall V. Hannam 




382 


V. Worrall 


96 


Ryerss v. Wheeler 410 


417 


, 418, 431 


Roome v. Phillips 


806, 807, 810 


Rymes v. Clarkson ' 




77 


Roosevelt v. Fulton 


532 








Roper V. Constable 


170 


S. 






V. Radcliffe 


170 






V. Ratcliffe 


565 


Sabine v. Goate 




24 


Rose, In re 


142 


Sacket's Case 




12 



Iviii 



TABLE OF CASES. 



Sadler v. Rickards 


188 


V. Turner 


735 


Sale V. Moore 


392 


Salisbury v. Petty 


516, 518, 872 


Salmon v. Green 


841 


V. Hayes 


31 


V. Salmon 


873 


V. Stuyvesant 


414 


Saloway v. Strawbridge 


713 


Salt V. Chattaway 


565, 643 


Salter v. Cavanagh 


566 


V. Fary 


179 



V. Metropolitan E. R. Co. 779 

Saltmarsh v. Barrett 565, 569, 572 

Saltonstall v. Saltonstall 208 

V. Sanders 208 

... Saunders 208 

Salusbury v. Denton 218, 228, 230, 363, 

388, 552 

Sampson v. Bradley 31 

V. Hutton 467 

V. Sampson 665, 669 

Sanders, In re 829 

V. Asliford 841 

ti. Earle 755 

V. Kiddell 188 

V. Miller 846 

Sanders' Appeal 446 

Sanderson, In re 365, 398, 653, 844 

V. Dobson 718, 729 

V. White 207, 219, 251 

Sandford v. Irby 779 

». Eaikes 29, 427 

V. Sandford 177 

Sansbury v. Read 844 

Sarle v. Court of Probate 645 

Saumarez v. Saumarez 647, 660. 736, 

737, 743 

Saunders, In re 623 

V. Lowe 642 

V. Rotherham 406 

V. Vautier 846, 849 

Saunderson v. Stearns 880 

Savage, In re 146 

V. Burnham 458, 685 

V. Hall 693 

V. Tyers 549, 560, 874 

Savory, In re > 78 

Sawrey v, Rumney 182 

Sawyer v. Sawyer 193 

Sayer v. Sayer 425, 442, 680 

Sayer's Trusts, In re 294 

Sayward v. Sayward 506, 506 

Scales V. Baker 40 

Scammell v. Wilkinson 48 

Scanlan v. Wright 69 

Scarborough, In re 755 

V. Doe d. Saville 256 

Scarisbrick v. Shelmersdale 276, 306 

Scarth, In re 337 

Scawin v. Watson 874 

Schaffer v. Kettell 342 

Schauber v. Jackson 632 

Scliettler v. Smith 285 

Schneider v. Norris 18 



Schofleld V. Cahuao 177, 179 

V. Redfern 607 

School Directors v. James 16 

Schroder i;. Schroder 156, 444, 447, 448 

Schuebly v. Ragan 443 

Schultz V. Damburan 2 

V. Pulver 2 

V. Schultz 134 

Schumaker v. Schmidt 18 

Scoby V. Sweatt i 165 

Scot V. Scot 135 

Scott V. Alberry 684, 721, 722, 743 

V. Calvit 31 

V. EorristaU 236 

V. Guernsey 46 

V. Josselyn 365 

«. Key 395, 400, 401, 402 

V. Logan 806 

V. Price 837, 879 

V. Rhodes 101, 102 

Scrape v. Rhodes 557, 560 

Scribner v. Crane 31 

Seriven v. Sandora 684 

Scrivener v. Smith 744 

Scrope's Case 371 

Scruby v. Fordhara 31, 130 

Seade v. Pattison 63 

Seagram, In re 86 

Seale v. Scale 369 

Seaman v. Woods 52, 58, 156, 273, 454, 665 

Seaman's Soc. v. Hopper 38 

Searles v. Harvey 88 

Sears v. Boston 12 

V. Dillingham 31, 90 

V. Putnam 266, 297, 338 

V. Russell 266, 297 

Seaward v. Will cock 302 

Seccombe v. Edwards 521 

Sechaest v. Edwards 35, 80 

Sedgwick v. Minot 75 

Seeley v. Jago 603 

Seguine v. Seguine 35, 80, 81, 87 

Seivert v. Wise 504 

Selby V. Whittaker 831, 850 

Seldon v. Coalter 80 

Selwood V. Mildmay 409, 424 

Semmes v. Semmes 130, 135 

Sennet v. Herbert 261 

Seton V. Slade 704 

Seymor v. Nosworthy 173 

Seymour v. Van Wyck 81 

Sewell, In re 614 

V. Crewe-Read 232 

V. Denny 313, 668 

Shadbolt v. Thornton 222 

V. Waugh 104 

Shaftsbury v. Marlborough 186 

V. Russell 880 

V. Shaftsbury 147 

Shaftsbury's Case 34 

Shalloross v. Wright 624 

Shaller v. Brand 81 

Shand v. Kidd 518 

Shanley v. Baker 207, 646, 747 

Sharman, In re 74 



TABLE OF CASES. 



lix 



Shapleigh v. Pilsbury 


210 


Sibthorpe, In re 


93 


Sharp V. St. Sauveur 


42, 67, 68 


V. Moxton 


839 


u. Sharp 


105 


Sicloff V. Redman 


423, 476 


Sharpe v. Crispin 


14,15 


Sidebotham v. Watson 


484 


V. Sharpe 


697 


Sidney v. Shelley 


565, 579, 580 


Shattuck V. Maynard 


12 


V. Sidney 


332 


V. Stedman 


799, 837 


V, Vaughan 


837 


Shaw, Ex parte 


697 


V. Wilmer 


S76, 653 


In re 


130 


Siegwald v. Siegwald 


482 


V. Bull 


729 


Silberschildt v. Sehiott 


699, 700, 707 


v. Cunliffe 


653, 747 


Sillick V. Booth 


850 


V. Lawless 


392, 408 


Simmonds, In re 


89, 110 


V. MeMahon 


171, 342 


V. Cook 


806, 817 


V. Nevillt! 


81, 108 


V. Rudall 


143 


V. PickthaU 


232 


Simmons v. Pitt 


312 


V. Rhodes 


304, 308, 314 


V. Rudall 


539, 764 


V. Shaw 


458 


V. Simmons 


171 


Shea V. Boschetti 


143 


Simms v. Garrot 


319 


Sheath v. York 


126 


Simon v. Barber 


245, 376 


Sheddon v. Goodrich 


94, 95, 97, 448 


Simpson, In re 


133, 141 


Slieets's Estate 


472 


V, Ashworth 


588 


Sheetz's Appeal 


473 


V. Cook 


255 


Sheffield v. Coventry 


833 


V. Davis 


144 


V. Mulgrave 


672 


V. Earls 


616, 618 


a. Kennett 


861 


V. Hornby 


634, 540 


V. Orrery 


762, 803, 804 


V. Hornsby 


537 


Sheldon v. Sheldon 


91,93 


V. Lester 


615 


Shelford v. Aukland 


679 


V. Peach 


850 


Shelley ;;. Shelley 


387 


V. Simpson 


77,79 


Shelmer's Case 


769, 770 


Sims V. Doughty 


473 


Shelton v. Shelton 


422, 653 


Sinclair v. Hone 


17 


Sliepard v. Wright 


505 


Sing V. Leslie 


18 


Shepheard v. Beetham 


221, 238 


Singleton v. Bremar 


18,21 


Shepherd v. Nottidge 


388 


V. Singleton 


31 


Sheppard v. Lessingham 


487 


V. Tomlinson 9] 


, 93, 425, 628, 


Sherer v. Bishop 


187 




744 


Slierrard v. Harborough 


666, 568, 798 


Sinnett v. Herbert 


228, 242 


Slierrat v. Bentley 


472, 473, 477 


Sisson V. Giles 


599, 603 


Sherratt v. Mountford 


424 


V. Seabury 


532 


Sherwood v. American Bible Soc. 207, 208 


Sisters of Charity v. Kelly 


80 


Shingler v. Pemberton 


25 


Sitwell V. Bernard 


607, 608, 839 


Shipperdson v. Tower 


475 


Skair, In re 


91 


Shirley, In re 


129 


Skeggs, In re 


586 


V. Ferrers 


598 


Skerratt v. Oakley 


530 


Shires v. Glasscock 


87 


Skerrett v. Burd 


147 


Shoots V. Poe 


320 


Skey V. Barnes 


829, 860 


Shore v. Wilson 


417, 421, 423 


Skinner v. Ogle ' 


193, 204, 354 


Shorer v. Shorer 


586 


Skinner's Trusts, In re 


397 


Short V. Smitli 135, 136, 142, 169, 341 


Skip with V. Cabell 


136, 185 


Shotwell V. Dedham 


458 


Skirving v. Williams 


615, 617 


V. Mott 


208 


Skrymacher v. Northcote 


203, 313, 652 


Shove V. Pinke 


167 


Slade V. Pattison 


63 


Shovelton v. Shovelton 


390 


Slark V. Dakyns 


291 


Showers v. Showers 


77, 108 


Slatter v. Noton 


822, 467 


Shreiner's Appeal 


472 


Sledds V. Carey 


443 


Shrewsbury v. Hornbury 


207 


Slee V. Manhattan Co. 


708 


a. Hornby 


210 


Slingsby v. Grainger 


761, 793 


Shrimpton v. Shrimpton 


842 


Sloan V. Maxwell 


31, 34, 38 


Shropshire v. Reno 


38 


Slocomb V. Slocomb 


2,17 


Slmldam v. Smith 


823 


Small h. Small 


31, 85, 81, 82 


Shum V. Hobbs 


831, 837, 852 


V. Wing 


839, 840 


Shumway v. Holbrook 


31 


Smart v. Clark 


504 


Shuttleworth v. Greaves 


342, 454 


V. King 


76 


Sibley v. Cooke 


340 


V. Prujean 


19, 20, 212 


V. Perry 


250, 424, 747 


Smartt, In re 


92 



Ix. 



TABLE OF CASES. 



Sraee v. Smee 88 

Smelie v. Reynolds 41 

Smell w. Dee 837 

Smilej' V. Gambill 1-30, 131, 132 
Smith, In re 18, 40, 116, 120, 148, 163, 
187, 531, 546, 698, 702, 
808, 861, 863 

V. Adams 469 

V. Anderson 187 

V. AttersoU 81, 94 
V. Bell 423, 472, 476, 800, 879 

V. Bonsall 31 

V, Bryan 50 

V. Caraelford 300 

V. Claxton 631, 632 

V. Codron 81 
V. Coffin 724, 725, 735, 740 

V. Conder 417 

V. Coney 380 

V. Crabtree 481 

V. Cunningham 191 

V. Daniel 552, 880 

V. Dearmer 193, 198 

V. Dolby 37, 78 

V. East 136 

V. Edrington 327 

V. Elder ' 6 

V. Evans 78 

V. Fenner 133, 134 

V. Eitzgerald 531 

V. Fleming 371 

V. Guild 443 

V. Hunter 866 

V. Hutchinson 827 

V. Jersey 423 

V. Jones 31, 53, 81, 327 

V. King 572 

V. Knishern 458 

w.Lomas 203,312,647 

V. Lyne 454 

V. Maitland 527 

V. McChesney 171 

V. Martin 779 

V. Oakes 513 

V. Oliver i31, 233, 340 

V. Palmer 841 

V. Pugh 612 

V. Pybus 482 

V. Ridgway 782, 794 

V. Saunders 650 
V. Smith 81, 87, 108, 266, 273, 
878, 886, 401, 431, 
443, 722 

V. Spencer 806, 879 

V. Starr 598 

e. Steele 81 

V. Strong 162 

V. Tebbitt 38, 207 

V. Triggs 59, 60, 76 
V. Union Bank of Georgetown 2 

V. Wait 130 

V. Wells 417 

V. Wilson 421 

V. Zaner 68 

Smith's Appeal 367 



Smither v. Willoek 810, 872 

Smock V. Smock 130, 134 

Smyth V. Smyth 719, 728, 745 

Snelgrove v. Snelgrove 458 

Snook V. Watts 37 

Snow V. Snow 854 

Snowe V. Cutler 865 

Snowhill V. Siiowhill 565, 584 

Snyder v. Bull 74 

Soames v. Martin 400 

Soar D. Dolman 140,142 
Society for Propagation of Gospel 

V. Attorney-General 250, 292 

Sohier v. Inches 351 

r. St. Paul's Church 210 

Somerset v. Cookson 879 

Somerville v. Lethbridge 252, 302 

V. SomerviUe 2, 4, 9, 12 

Sondes' Will, In re 285, 296, 873 
Sonley v. Clockmakers' Company 66 

Sopwith V. Maughan 471 

Soresby v. Rollins 228 

Sotheron, In re 92 

SouUe V. Gerrard 506, 611 

South V. AUeine 798 

V. Williams 339 

Southall V. Jones 18 

Southampton v. Hertford 276, 276, 306 

Southerland v. Cox 866 

Southern v. Wallaston 256, 266, 860 
South Newmarket Sem. v. Peaslee 378, 
379, 480, 439 

Southouse V. Bate 565, 571 

Soward v. Soward 18, 83 

Sowell V. Garrett 606 

Sowerby's Trust, In re 339 

Spalding v. Huntington 409 

V. Spalding 486, 489, 4rO 

Sparhawk !-■. Sparhawk 71, 112 

Sparke v. Purnell 600 

Sparks v. Restal 616, 063 

Sparling v. Parker 223, 607 

Speakman v. Speakman 264, 615 

Spence v. Handford 474 

Spencer v. Ward 505 

V. Wilson 627, 844 

Sperling In re 82, 83 

V. Toll 586 

Spink V. Lewis 665 

Spirt !). Bence 4y6 

Spong V. Spong 645 

Spooner, In re 684 

Spraage r. Stone 124 

Sprague !-. Luther 80 

Spread v. Morgan 471 

Sprig V. Sprig 646 

Spriggs V. Spriggs 134 

Spring V. Biles 59 

V. Parkman 31 

Springett v. Jennings 234, 662, 684 

Stackhouse v. Horton 88 

Stackpole v. Arnold 431 

V. Stackpole 300 

Stagg V. Jackson 684 

Staines v. Stewart 133 



TABLE OP CASES. 



1x1 



Stair V. McGill 608 

St. Amour v. Rivard 298 

Standen v. Macnab 677, 680 

V. Standen 379, 677, 680, 683 

Stanhope's Trusts, In re 269 

Stanhouse v. Gaskell 554 

Stanley v. Bernes 7, 9 

a. Kean 31 

u. Lennard 554 

V. Stanley 413, 425, 794, 811, 866 

Stapleton v. Cheales 837 

V. Chule 843 

V. Palmer 608 

V. Stapleton 579 

Staring v, Bowen . 31 

Stark V. Cannady 417 

V. Hunton 468 

Starkey v. Brooks 666, 566, 567 

Starr w. Ellis 693 

Starrett v. Douglass 35 

State V. Adams 613 

V. Hallet 9, 12 

V. Jackson 6 

V. Joyce 504 

V. M' Glynn 2 

V. Norcom 879 

V. Pace 31 

V, Pike 38 

V. Walter 213 

V. Wiltbank 213 

Stead V. Mellor 884, 397 

V. Newdigate 586, 599 

Steadman v. Powell 41 

Stearns v. Burnham' 31 

Steb'oins v. Lathrop 31 

Stedraan w. Priest 342 

Steed V. Galley 37 

u. Preece . 163 

Steel V. Cook 654, 663 

Steele, In re 191 

V. Fisher 458 

V. Levisay 385 

1!. Midland EaU. Co. 779, 781, 782 

V. Price 31, 130 

Steer, In re 9 

Steere v. Steers 417 

Stehman v. Stehman 866 

Steignes v. Steignes 731, 755 

Stent V. McLeod 2 

Stephen v. Swann 68 

Stephens v. Frencli 31 

V. Gadsden 296 

V. Gaylord 2 

V. Powys 377 

u. Stephens 468, 652, 865 

V. Taprell 140, 142 

Stephenson v. Dowson 770 

u. Heathcote 424 

V. Jandle 584 

Stevens, In re 698, 702, 703 

V. Austen 714 

V. Bagwell 30, 41 

V. Ely . 565 

V. Hale 541, 545 

V. Pyle 643 



Stevens v. Vanclevo 34, 35, 38, 78 

Stevenson v. Huddleson 21 

V. Masson 14 

Stewart, In re 163 

V. Lispenard 37, 88 

V. Stewart 101 

St. Helens v. Exeter 193 

Stickle 's Appeal 472, 473 

Still V. Hoste 436 

Stillman v. Weedon 337 

Stirling v. Lydiard 618 

St. Lewis Hospital v. Wegman 77, 78, 79 

V. WUUams 77, 78, 79, 

379 

Stock V. Pox 796 

Stockdale v. Bushby 381 

Stocker v. Harbin 97 

Stocks V. Barre 771 

Stockwell V. Ritherden 147 

Stoever v. Whitman 50 

Stokeley v. Gordon 431 

Stokes V. Cheek 397 

V. Holden 43 

V. Salomons 717, 736, 737, 738 

Stoleworthy v. Bancroft 663 

Stone V. Evans 339, 373 

V. Greening 676, 789 

V. Massey 835 

V. Parker 758, 798 

Stonehouse v. Evelyn 81, 89, 565 

Stooke V. Stooke , 761, 774 

Storer v. Freeman 431 

Storrs V. Benbow 267 

Stover V. Kendall 134, 135, 136 

Stowe V. Davenport 187 

St. Paul V. Heath 310 

Stracey, In re 18 

Strafford v. Berridge 753, 754 

Strahan v. Sutton 460 

Straker v. Wilson 607 

Strathmore v, Bowes »■ 193 

Stratton v. Hillas 769, 769 

Strauss v. Schmidt 18 

Straw V. East Maine Con. 378 

Streaker, In re 99, 143 

Streatfield v. Cooper 736 

Stretch v. Watkins 848, 852 

Strevens v. Bayley 329 

Strieker v. Groves 77, 80, 103 

Strickland j>. Aldridge 233, 415 

V. Strickland 75 

Stringer v. Gardiner 380, 411, 424, 429 

Stringer's Estate, In re 364 

Strode v. Falkland 52, 371, 410 

V. Russell 417, 654, 689 

Strong V. Converse 694 

V. Ingram 90 

ti. Perkins 31 

V. Teatt 657, 658 

Strother v. Dutton 829, 841 

V. Lucas 6 

Stroud V. Gwyer 607 

Struthers v. Struthers 164, 329 

Strutt V. Finch 668 

Stuart V. Bruere 839 



Ixii 



TABLE OP CASES. 



Stuart V. Bute 751, 758, 762 

V. Cockerell 273, 829 

Stubbs V. Houston 148 

..■. Sargon 94, 95, 274, 384, 391, 

396, 429, 519, 650, 565 

Stuckey v. Stuekey 751 

Stukeley v. Butler 787 

Stulz V. Schaefle 86 

Stump V. Gaby 51 

Sturdivant v. Birchett 88, 89 

Sturge V. Dirasdale 237 

Sturgess v. Pearson 827 

Sturgis V. Corp 41 

Sturtevant v. Jaques 565 

Suarez v. New York 2 

Sugden v. St. Leonards 104, 133, 145, 146 

Sullivan v. Sullivan 73, 127 

Summers, In re 110 

Sumner v. Partridge 879 

Sunderland, In re 20, 91 

Surman v. Surman 645 

Surtees v, Hopkinson 747 

Sutcliffe V. Cole 644 

Sutherland v. Cooke 612, 616, 618 

Sutton Colefield's Case 573 

Sutton V. Chenault 99 

V. Cole 65, 378 

I). Craddock 880 

V. Sadler 36 

V. Sharp 735, 758 

V. Sutton 135, 136 

Swabey v. Swabey 698 

Swails V. Wood 722 

Swain v. Bushart 21 

V. Eascoe 879 

Swaine v. Burton 75 

Swan V. Holnaes 457 

Swasey v. American Bible Soc 208 

Swazey v. Blackman 31 

Sweet V. Beal 582 

V. Chase 472, 473 

Sweetapple v. Bindon 585 

Sweeting v. Prideaux 495, 747 

V. Sweeting 227, 598 

Sweetland v. Sweetlaad 80, 106 

Swete V. Pidsley 92 

Swett V. Boardman 82 

Swift i;. Edson 51, 156, 707 

V. Nash 96 

V. Roberts 46 

V. Swift 670, 671, 747 

V. Wiley 80, 82, 84, 89 

Swinfen v. Swinfen 755 

Swinford, In re 108 

Swinton v. Bailey 135 

Sviroope's Appeal 162 

Sword V. Adams 339 

Sydnor v. Sydnors 228, 387 

Sykes, In re 143 

i). Sykes 172, 259, 341, 468, 024 

Sylvester v. Jarman 699 

Symes v. Green 36 

Symmes v. Arnold 18, 21 

Symondg v. Marine Soc. 226 



T. 

Taaffe v. Ferrall 656, 663 

Taber v. Packwood 879 

Tagart v. Squire 133, 189 

Taggart v. Murray 470 

V. Thompson 147 

Tait V. Lathbury 586, 589 

Talbot V. Jevers 812, 653 

V. Eabnor 450, 458 

V. Seeman 6 

«. Talbot 125 

Tally i;. Butterworth 98 

Tanner v. Elworthy 678 

V. Morse 717, 727 

V. Wire 719 

Tappenden v. Walsh 31, 41 

Tapscott V. Neweombe 806, 858 

Tardiff v. Robinson 615 

Tarrant v. Ware 80 

Tarver v. Tarver 31 

Tate B. Tate 77 

.Tatham v. Drummond 230 

V. Vernon 846 

V. Wright 81, 37 

Tatnall v. Hankey 11, 30 

Tator V. Tator 255 

Tawney v. Long 35 

Tayloe v. Moslier 807 

Taylor, In re 85, 98, 163, 593, 596, 598 

V. Bacon 399, 844 

V. Bank of Illinois 6 

V. Benham 68 

V. Clark 606, 607, 610, 611 

V. Creagh 504 

V. Creswell 38 

^. Dodd 717 

V. Frobisher 850, 859 

t). George 388 

V. Graham 799 

V. Haygarth 68, 565, 625 

V. Johnson 504 

V. Kelly 27 

V. Lambert 836 

V. Langford 870 

V. Lucas 338 

!),. Miles 747 

V. Meads 31, 39 

V. Mitchell 337 

V. Richardson 441, 504 

V. Taylor 81, 91, 163, 464, 624, 

669, 866 

V. Webb 357, 530, 739 

V. Wilburn 36 

Taylor's Appeal y8 

Taylor's Will 38 

Teague's Settlement, In re 2H6 

Teape, In re (jgl 

Tebbott V. Voules 160, 161 

Tebbs V. Duval ' 322 

Tee v. Ferris 234,415,417 

Tefft w. Tillinghast 763 

Tegg, In re 121 

Telfair v. Howe 878 

Tempest v. Tempest 74 238 



TABLE OP CASES. 



Ixiii 



Temple v, Chandos 158 

V. Mead 18 

V. Walker . 31 

Templeman v. Warrington 829 

Tench v. Cheese 314 

Tennant v. Tennant 448 

Tennell v. Sprigg 505 

Tennent v. Tennent 425, 654, 663, 664 

Tenny v. Agar 558, 559 

Terrel v. Page 722, 724 

Terrell v. Cooke 829 

Terrible, In re 120 

Terry v. Wiggins 717 

Tewart v. Lawson 276, 308 

Thackeray v. Hampson 505 

Tharp, In re 31, 40 

Thatcher, In re 285, 288, 850 

Thayer v. Boston 418 

V. Wellington 20, 351, 646 

Thelluson v. Rendlesham 410 

V. Woodford 211, 322,445, 446 

Theobalds v. DufEoy 879 

Thetford School Case 573 

Thistle V. Vaughan 698 

Thistlethwayte, In re 521, 523 

Thomas, In re 87 

V. Evans 172 

V. Flint 374 

V. Howell 183, 214, 227 

V. Jones 49, 337, 677, 687 

V. Kemish 693 

V. Lane 780 

V. Phelps 731, 732, 741 

V. Tanner 2 

V. Thomas 291, 437, 438, 532 

V. Wall 102 

17. Wilberforce 860 

Thomason v. Anderson 554 

V. Moses 375 

Thompson, In re 143 

V. Burra 61, 461, 464, 466 

V. Casby 209 

V. Farr 35 

V. Grant 698, 707 

V. Hempenstall 189 

V, Johnson 25, 27 

V. Kyner 35, 38 

V. Lawley 669, 671, 672, 692 

V. MaGaw 458 

V. Nelson 459 

• V. Quimby 20, 38 

V. Schenck 798 

V. Swoope 65 

V. Teulou 513 

V. Thompson 31, 210, 219, 223, 

324, 359 

V. Tonson 377 

V. Watts 469 

V. Whitelock 484, 504, 529, 

762 

V. Wilson 81 

Thompson's Trust, In re 43, 373 

Thomson, In re 411, 811 

V. Att'y Gen. 3 

V, Hempenstall 437 



Thomson e. Hull 


87 


V. Ludington 


803 


V. Scott 


51 


V. Shakespear 


212, 216 


Thornber v. Wilson 


210, 212 


Thorndike v. Boston 


12 


V. Lovering 


302 


V. Reynolds 


319, 827 


Thorne, In re 


18 


</. Rooke 


182 


V. Watkins 


, 2 


Thornton v. Curling 


5,29 


V. Ellis 


612, 613, 617 


V. Hawley 


580, 593, 594 


0. Hempson 


222 


V. Howe 


207, 211 


V. Thornton 


36, 681 


Thorold v. Thorold 


18 


Thorp V. Owen 


359, 404 


Thrasher v. Ingram 


472, 807 


Throop V. Williams 


800 


Thrupp V. Collett 


209 


Thruston, In re ' 


848, 850 


V. Anstey 


849 



Thrustout V. Cunningham 150 

Thursby v. Tlmrsby 614, 615 

Tibbits";;. Tibbits 406, 446 

Tickner v. Old 616 
V. Tickner 153, 155, 156, 207 

Tiddy v. Simms 724 

Tidwell V. Ariel 516 

Tiernan v. Rowland 448 

Tifton V. Tif ton 147 

Tilghman Estate 565 

V. Steuart 18, 102 

Tilley v. Collyer 530 
V. Simpson 721, 722, 724, 725, 751 

Tilton V. Tilton 423 
Tily V. Smith 592, 594, 631, 839 
Timewell v. Perkins 455, 719, 720, 

754, 879 

Timins v. Stackhouse 516 

Tindall v. Tindall 645 

Tingley v. Cowgill 35 

Tipton V. Tipton 147 

Tisdale v. Mitchell 475 

Titchfield v. Horncastle 745 

Titley v. Wolstenholme 711, 713 

Todd V. Fenton 36 

V. Winchelsea 87 

Todd's Will 17 

Toldervy v. Colt 831 

Tollemache v. Coventry 277 
Tomkins v. Tomkins 36, 37, 38, 549 

Tomkyns v. Blane 449 

V. Ladbroke 19 

Tomlinson v. Tomlinson 222 

Tompkins v. Tompkins 6, 27, 31 

Tompson v. Browne 25 

Toms V. Williams 304, 799 

Tongue v. Nutwell 646 

Tonnele v. Hall 19, 20, 79 

Tootal, In re 618 

Toplis V. Baker 839 

Toppin V. Lomas 221, 222 



Ixiv 



TABLE 01" CASES. 



Torre v. Brown 


665 


Tupper V. Tupper 




170 


V. Castle 


105 


Turbett v. Turbett 


497 


, 716, 722 


Torrington v. Bowman 


724 


Turner, In re 




145 


Toulmin v. Steere 


693 


.;. Buck 




834 


Townley v. Bedwell 


57, 209 


V. Cheesman 




85 


V. Bolton 


482, 543 


V. Cook 




89 


V. Watson 


140, 142 


V. Fenner 




2 


Towns V. Wentworth 


481 


V. Husler 




672 


Townsend v. Downer 


356, 378 


i;. Martin 




339 


V, Ives 


.31 


V. Millineux 




188 


V. Wilson 


711, 713 


V. Newport 




610 


Townshend v. Carus 


211 


V. Ogden 




210 


V, Duncan 


31 


V. Probyn 




837 


V. Townshend 


31,38 


V. Turner 




675 


Tozer, In re 


142 


V. Wliitted 




605 


Tracey v. Butcher 


853 


Turnipseed v. Hawkins 




31 


V. Kilborn 


732 


Turpin v. Turpin 




50,51 


Traver v. Schell 


339 


Turton v. Lambarde 




676, 653 


Travers v. Blundell 


788 


Turvin v. Newcombe 




275 


V. Travers 


671 


V. Newcome 




806 


Treat's Appeal 


208 


Tuttesham v. Koberts 




787 


Trecothick v. Austin 


31 


Twining i;. Powell 143, 


177, 


417, 756, 


Treeby, In re 


113, 135, 143 






881 


Tregonwell v. Sydenham 


260, 277, 278, 


Tyler i: Gardiner 




35, 36, 38 


285, 345, 


565, 566, 577 


V. Mapes 




^ 81 


Trevanion, In re 


83,89 


Tynan v. Paschal 




134 


V. Vivian 


663 


Tyrwhitt v. Tyrwhitt 




694 


Trevelyan v. Trevelyan 


31 


Tyson i-. Blake 




255, 473 


Trevor v. Trevor 


529 








Tribe v. Tribe 


36,90 








Trickey v. Trickey 


312 


U. 






Trimelstbwn v. D'Alton 


414 








Trimleston v. D'Alton 


36,78 


Udny V. Udny 




12,14 


Trimmell v. Fell 


42, 123 


Ulricli V. Litchfield 410, 


441, 


473, 475, 


Trimmer v. Danby 


211 






477 


Trinder v. Trinder 


329 


Underbill i;. Eoden 




804, 805 


Trippe v. Frazier 


338, 357 


Underwood v. Wing 




340 


Triquet v. Thornton 586 


593, 600, 603 


United States ». Crosby 




2 


Trott V. Trott 


86, 106 


V. McRae 




6 


Trotter v. Trotter 


2 


Universalist Soc. v. Kimball 


210 


Trumbull v. Gibbons 


38, 866 


Upchurch v. Upchurch 




78, 82, 89 


Truro, In re 


92 


UpfiU V. Marshall 




130, 147 


Trustees v. Gray 


68,69 


Upjohn V. Upjohn 




650 


V. Peaslee 


378, 379 


Uppington v. BuUen 




51 


Tuck V. Frenchman 


485 


Upshaw V. Upshaw 




458 


Tucker v. Billings 


516 


Upton V. Nortlibridge 




15 


V, Boswell 


606, 608 


Usticke V. Bawden 


137 


, 139, 665 


V. Kayess 


349, 644 


I'. Peters 


456 


458, 476 


V. Loveridge 


693 


Utterson v. Utterson 




138 


V. Phipps 


31 


Utterton v. Robblns 


116 


117, 193 


V. Seaman's Aid Soc. 207, 410, 






« 




417, 418, 










422, 431, 


V. 








438, 439, 










441 


Vachell v. Koberts 




617 


V. Tucker 


74 


"Vail t'. Lindsay 




122 


Tuckerman v, Jeffries 


543 


Valentine v. Borden 




75 


Tudor V, Anson 


664 


V. Ruste 




618 


V. Terrel 


417, 431 


Van V. Barnett 586 


589 


693, 599 


Tuer V. Turner 


604, 808 


Van Alst v. Hunter 




34 


Tuffnell V. Page 


. 101 


Van Amee v. Jackson 




385, 391 


Tugman v. Hopkins 


28 


Vancil v. Evans 




476 


Tuller, In re 


122 


Van Cortlandt v. Kip 


115, 


193, 839 


Tungley v. Rooh 


548 


Vandergrift's Appeal 




613 


Tunison v. Tunison 


80 


Vanderplank v. King 255, 269, 298, 301 



TABLE OP CASES. 



Ixv 



Vandiest v. Fynmore 8 

Vandruff !). Rinehart , 78 

Van Dyck v. Van Beuren 227, 387, 392 

Van Kleeck v. Dutch Church 99, 326, 

838, 339, 532, 645 

Van Nostrand v. Moore 476 

Van Orden v. Van Orden 468 

Van Pelt v. Van Pelt 38 

Van Rensselaer v. Dunkin 798 

V. Morris 27 

Vansant v. Boileau 74 

V. Roberts 65 

Van Straubenzee v. Monck 91 

Vantilburgh v. HoUinshead 337 

Van Vechten v. Keator 475 

V. Pearson 866 

V. Van Veghten 46, 252, 

584, 866 

Van Wagenen v. Brown 707 

Van Wert v. Benedict 676 

Varick v. Edwards 46 

V. Jackson 50 

Varner v. Bevil 2 

Varner's Appeal 486 

Vaughan v. Buck 619 

II. Bunch 176 

u. Burford 89 

V. Farrer 231 

V. Foakes 531 

V. Vaughan 89 

Vaux V. Henderson 344 

V. Nesbit 68, 70 

Vauxhall Bridge Co., Ex parte 225 

Vawdry v. Geddes 266, 293, 856, 858, 

860 
Vawser v. Jeffrey 150, 169, 160, 167 

Veale's Trusts, In re 518 

Vedder v. Evertson 864, 866 
Verdier v. Verdier 31, 80, 155 

Verdin v, Slocum 385 

Vernon v. Jones 153 
". Kirk 81, 36, 37, 78 

V. Vernon 387 

Vernon's Case • 410 

Vernor v. Henry 431 

Vesey v. Jamson 215 

Vezey v. Jamson 565 

Vick V. Sueter 649, 821 

Vickers v. Scott , 608 

Vidal V. Girard 209 

V. Philadelphia 219 

Vigor V. Harwood 608 
Villa Real v. Galway 446, 458, 466 

Vincent v. Newcorabe 613 

Viner v. Francis 342 

Vines v. Clingfort 78, 80 

Violett V. Brookman 337 

Viteto V. Atkins 645 

Vivian i'. Mortlock 767 

Vize V. Stoney 837, 844 

Von Straubenzee v. Monck 20 

Voorhees v. Voorhees 132 

Vorley v. Richardson 846 

VuUiamy v. Huskisson 827 

Vussell u. Marriott 100 



W. 

Wace V. Mallard 385 

Waddell v. Rattew 866 

Wade V. American Col. See. 219 

V. Nazer 190, 414 

Wade-Gerry v. Handley 576, 653 

Wadley v. North 837 

Wadsworth v. Wadsworth 68 

Wagner, Estate of 41 

V. McDonald 17 

Wagner's Appeal 162 

Wagstaffw. Crosby 829 

V. Wagstafi 326, 334 

Wainewright v. Wainewright 542 

Wainman v. Field 274, 764 

Wainwright v. Elwell 59 

Wainwright's Appeal 35 

Wait V. Belding 51, 326, 327 

Waite V. Coombes 772 

V. Templer 373 

V. Webb 222 

Waitt V. Belding 46 

Wake V. Wake 458, 466, 471 

Wakefield v. Dyott 849 

V. Phelps 327 

Walcott V. Hall 835, 837, 844 

0. Ouchterlony 170 

Waldo V. Cayley 215 

Walke V. Bank of CircleviUe 12 

Walker, In re 106, 699 

Ex parte 163 

V. Armstrong 150, 158 

V. Banks 684 

V. Bartlett 223, 225 

V. Denne 68, 686, 588, 589 

"• Hall 123, 129 

V. Hunter 81 

V. Jones 21 

V. Milne 222, 226 

V. Mower 265, 840, 853 

V. Shore 611 

V. Simpson 827, 850 

V. Smith 36 

V. Tipping 498 

V. Walker 18, 80, 101, 127, 

472, 500 

Wall V. Bright 689, 704 

V. Colshead 594, 627 

V. Tomlinsou 827 

V. Wall 188, 447 

Wallace v. Att.-Gen. 2, 3, 383 

V. Blair 193 

Waller v. Childs 876 

V. Waller 80, 102 

Wallgrave v. Tibbs 234 

Wallinger w. Wallinger 450 

Wallis V. Freestone 292 

Wallop V. Darby 477 

V. Portsmouth 677 

Walls V. Ward 21 

Walmsey v. Foxhall 480 

V. Vaughan 808 

Walpole V. Apthorpe 766 

V. Cholmondeiy 146, 189, 411 



Ixvi 



TABLE OP CASES. 



Walpole V. Orford 


18, 189 


Walsh V. Gladstone 


25, 29, 250 


V. Peterson 


506, 747 


V. Wallinger 


551, 553 


Walter v. Mackie 


680 


Walton V. Shelley 


31 



V. Walton 147, 148, 162, 165, 826, 

566, 571 

Walton's Estate, In re 518 

Wampler v. Wampler 35 

Wankford v. Wankford 31 

Warbrick v. Varley 187 

Warbutton v. Warbutton 461, 467 

Ward V. Arch 594 

V. Baugh 443, 446 

V. Heame 2 

V. Mallard 890 

V. Moore 152, 156, 158 

V. Waller 505 

V. Ward 30, 443 

Ward's Trusts, In re 399 

Warde v. Warde 69 

Warden v. WardeU 58 

Warden, In re 81 

Wardraper v. Outfield 806 

Ware v. Cumberlege 223 

V. Polhlll 292 

V. Rowland 820 

V. Ware 38 

Wareham v. Sellers 25, 26 

Wargent v. Hollings 133 

Waring v. Coventry 292 

V. Jackson 60 

V, Waring 38 

Warneford v. Warneford 78 

Warner v. Bates 385, 391 

V. Beach 123, 124, 129, 155 

V, Hawes 152 

V. Svrearingen 826 

V. Warner 130, 135, 717, 740 

Warren v. Baxter 71 

V. Harding 98 

V. Newton 740 

V. Postlethwaite 82 

V. Rudall 250, 460 

Warter ii. Hutchinson 806 

Warwick v. Hawkins 186 

Washburn b. SewaU 65, 207, 214, 219 

Washington's Estate 802, 306 

Water Communication, In re 782 

Waterborough v. Newfield 12 

Waterhouse v. Holmes 232 

Waterman v. Waterman 36 

Waters v. Howard 443 

V. Stickney 75 

V. Waters 874 

V. Wood 424 

Watkins, In re 91 

V. Cheek 836 

V. Dean 21 

V. Lea 669, 672 

V. Lee , 62 

V. Quarles 799, 807 

V. Watkins 468 

V. Weston 798, 874 



Watraough's Trusts, In re 281, 232 

Watson, In re 861 

V. Boylston 431 

V. Hayes 367, 565, 632, 887, 845 

V. Lincoln 646 

V. Pipes ' 80 

V. Spratley 222, 225 

V. Watson 34, 162, 443, 471, 

841 

Watt V. Wood 311 

Watterson v. Watterson 86 

Wattington v. Waldron 481 

Watts, In re 37 

V. Cole 60 

V. Public Adm'r 80, 102 

V. Watts 163 

Waugh V. Riley 661 

Way V. East 220, 233 

Weakly v. Rugg 563 

Wearing v. Wearing 617 

Weatherell v. Thomburgh, 313, 663 

Weatherhead v. Sewell 31 

Webb, In re 110 

V. Byng 830, 428 

V. Fleming 80 

V. Hearing 490, 807, 823 

V. Honnor • 680 

V. Kelly 397 

V. Neal 209 

V. Shaftesbury 446 

V. Temple 151 

V. Webb 304, 417 

». Wools 390 

Webb's Case 371 

Webber v. Corbett 433, 435 

V. Stanley 794 

Webley v. Langstaff 409, 422 

Webster v. Atkinson 431 

V. Boddington 270, 272, 278 

V. Mitford 446 

V. Parr 563, 870 

V. Webster 339 

Weddell v. Munday 509, 747 

Wedgwood v. Denton • 327, 329 

Weeden v. Bartlett 98 

Weeding v. Weeding 57 

Weeks v. McBeth 133 

V. Patten 443 

Weigall V. Brome 665, 672 

Weigel V. Weigel 31 

Weir V. Pitzgerald 35 

Welby V. Welby 445, 446, 458, 662, 

664, 786 

Welch V. Phillips 133 

V. Welch 31, 81 

Weld V. Acton 175 

V. Putnam 613 

Wellbeloved v. Jones 260 

Welle's Will 31 

Welling V. Owings 98 

Wellington v. Wellington 800 

Wells V. Doane 208, 892 

V. Heath 251, 297 

V. Ritter 864, 865 

"■ Wells 147, 177, 488 



TABLE OF CASES. 



Ixvii 



Welty V. "Welty 31 

Wenlock, In re 102 

Wentworth v. Cox 664 

Werkheiser v. Werkheiser 98 

West, In re 79 

V. Culliford 627 

V. Lawday 778 

V. Ray 31 

V. Shuttleworth 205, 207, 208 

V. West 31, 41, 840, 851 

V. Williams 389 

West's Case 18 

Westbeach v. Kennedy 81 

Westoott V. Cady 531, 879 

Weston, In re 133 

V. Johnson 147 

V. Weston 800 

Westwood V. Southey 844 

Wetherell v. Wetherell 563, 869 

V. Wilson 399 

Wetmore v. Parker 208 

Wharran v. Wharran 146 

Whately v. Spooner 417, 774, 785 

Wheable v. Withers 487 

Wheeler v. Alderson 85 

V. Bent 136, 144 

V. Dunlap 722 

V. Durant 18, 21 

V. Buthven 612 

V. Sheer 217 

V. Smith 405 

V. Waldron 647 

V. Wheeler 122 

Whelan v. Eeilly 266 

Wheldale v. Partridge 565, 585, 586, 

692, 623 

Whicker v. Hume 208, 210, 242, 738 

Whipple V. Adams 391 

Whistler v. Webster 445, 446, 449 

Whitacre, Ex parte 698 

Whitaker v. Ambler 669 

Whitbread v. May 418 

Whitcher v. Penley 516 

White, In re 83, 107, 143, 553 

V. Baker • 828 

V. Barber 542 

V. Birch 792 

V. Briggs 390 

V. British Museum 82 

V. Casten 131 

». Curtis 800, 807 

V. Driver 38 

V. Evans 221 

V. Fisk 208 

V. Green 632, 644 

V. Hicks 417, 676 

V. Howard 65, 207, 208, 302 

V. Lake 188 

V. Smith 631 

V. Vitty 649, 666 

V. White 214, 244 

V. Williams 417 

V. Wilson 88, 551 

V. Winchester 147 

White's Trust, lo re 518 



White's Will 135, 141 

Whitehead v. Bennett 568 

V. Jennings 176 

V. Rennett 874 

Whitenack v. Stryker 34, 38 

Whitfield V. Faussett 46 

u. Langdale 786, 791 

Whiting V. Force 839 

Whitley v. Whitley 456 

Whitlock V. Harding 409 

V. Wardlaw 414 

Whitmore v. Weld 33 

Whitney v. Whitney 75, 803 

Whittaker v. Whittaker 62, 65, 56 

Whittell V. Dudin 296, 872 

Whittemore v. Bean 50, 51 

Whitter v. Bremridge " 811, 859 

Whittome v. Lamb 798 

Whytall V. Kay 94 

Wickham v. Bath 220 

Widdicombe v. MuUer 851 
Widmore v. Governors of Queen 

Anne's Bounty 228 

V. Woodroffie 214, 227 

Wiegel V. Wiegel 77 

Wigan V. Rowland 74, 82 

Wigg V. NichoU 238 

V. Wigg 346 

Wiggins V. Wiggins 775 

Wight V. Shaw 880 

Wightwick V. Lord 612 

Wigsell V. Wigsell 693 

Wikoff's Appeal 20, 143 

Wilbur 0. Tobey • 68 

Wilce V. Wilce 720, 735, 740, 743 

Wild V. Reynolds 354 

Wilday v. Barnett 676, 684 

V. Sandys 615 

Wildbore v. Gregory 678 

Wilde V. Armsby 144 

V. Holtzineyer 319, 720, 767 

Wildeman v. Baltimore 208, 218, 219 

Wilder, In re 747 

V. Thayer 838 

Wildes V. Davies 101, 309, 310, 313, 628, 

744 

Wilkes V. Collins 693 

V. Lion 864 

Wilkinson, In re 676, 683, 684 

V. Adam 20, 94, 95 

V. Barber 228 

V. Bewicke 792 

V. Chapman 610 

V. Dent 450, 457, 470 

V. Duncan 267 

V, Leiand 31 

V. Lindgren 211 

V. Merrvland 699, 717, 719 

V. Schneider 686, 687 

Wilks V. Groom 188 

V. Williams 649 

Willan V. Lancaster 101 

Willard, In re 645 

V. Ware 676 

Willesford, In re 92 



Jxviii 



TABLE OP CASES. ^ 



Willett V. Sandford 




185, 227 


Wilson V. Smith 


6 


V. Sliepard 




144 


V. Spencer 


837 


William v. Thomas 




657 


V. Squire 


379, 440 


Williams, In re 


106 


107, 369 


V. Tappan 


31 


V. Arkle 




571 


V. Thomas 


239 


V. Ashton 




143 


V. Thornbury 


471 


V. Burnett 




78 


V. Townsend 443 


445, 446, 447 


V. Clark 




837 


V. Weddell 


59 


V. Coade 




565 


V. Wilson 75, 272, 


273, 804, 313, 


V. Corbet 




406 


314, 375 


444, 448, 767 


V. Crary 




417 


Winants v. Terhune 


632 


V. Evans 


19 


176, 178 


Winch V. Brutton 


890 


V. Goodtitle 195, 


198, 


203, 579, 


Winchelsea v. Garetty 


11 




581 


647, 650 


V. Wauchope 


87,90 


V. Goude 




85 


Winchester v. Foster 


327 


V. Haythorne 




851 


V. Westminster 


221 


V. Hughes 




186, 188 


Winchester's Case 


88 


V. Jones 




138, 141 


Winckworth v. Winckworth 872 


V. Kershaw 208 


216 


236, 565 


Wind V. Jekyl 


62 


V. Lewis 




308 


Winder v. Smith 


356 


V. Owens 




159, 335 


Windsmore v. Hobard 


874 


I). Roberts 




569, 572 


Windus V. Windus 


744 


II. Teale 




255 


Wingfieid v. Wingfield 


518 


V. Tyley 




136, 141 


Wingrave v. Palgrave 


821 


V. Williams 207, 250, 


251, 302, 


Wingrove, In re 


113 


312; 385, 


890, 


391, 395, 


Winkley v. Kaime 


378, 431 


624 


770, 


772, 773 


Winn, In re 


18 


Williamson v. Att.-Gen. 




597 


V. Bobb 


98, 99, 103 


V. Naylor 




839 


V. Fenwiok 


553 


V. Robinson 




88 


Wilt V. Cutler 


2 


V. Williamson 




612 


Winslow V. Cummings 


207, 219, 418 


Willis V. Brown 




211 


r. Goodwin 46, 


799, 821, 861, 


V. Bucher 




866 




879 


V. Curtois 




498 


V. Kimball 


73 


V. Jenkins 




417 


Winsor v. Pratt 


79, 132, 135 


V. Kymer 




402 


Winter v. Winter 


854 


V. Lowe 




110 


Wintour v. Clifton 


458, 471, 663 


i». Lucas 




584 


Wisden v. Wisden 


354 


V. Mott 




80,87 


Withington v. Withington 


82 


0. Plaskett 




772, 829 


Witman v. Lex 


207, 214, 219 


Willmott, In re 




120 


Witter V. Mott 130, 


168, 172, 193 


Willock V. Noble 89, 42 


123, 337 


Wittman v. Goodhand 


134 


Willows V. Lydcot 




647, 656 


Witts' w. Boddington 


551 


Wills V. Bourne 




288 


Wolf V. Bollinger 


184, 136 


V. Sayers 




, 792 


• V. Van Nostrand 


866 


V. Wills 


567, 


652, 653 


Wolford V. Herrington 


415 


Wilmot, In re 




18 


WoUaston, In re 


29, 851 


Wilson, In re 




85, 841 


V. King 


450 


V. Atkinson 




523 


Wolrerton's Estates, In re 


882 


V. Bayly 




519, 861 


Womrath v. McCormick 


800, 807 


V. Bell 




887 


Wood V. Cone 


565, 684 


V. Beddard 




78 


V. Cox 


899, 571, 572 


V. Bennett 




714 


V. George 


755 


V. Coles 




594, 631 


V. Goodlake 


92, 100, 105 


V. Dent 




101 


V. Ingersole 


871 


V. Eden 


678 


674, 676 


V. Medley 


104 


f. Fosket 


129 


417, 481 


V. Penoyre 


839 


V. Hamilton 




458 


V. Richardson 


401 


V. Maddison 




400 


V. Teague 


38 


V, Major 




620 


V. While 


292, 414 


V. Moran 




86 


V. Wood 


144, 146 


V. Morley 




528 


Wood's Will, In re 


208, 269. 841 


V. Mount 


446 


668, 793 


Woodbridge v. Austin 


6 


V. O'Leary 




186 


Woodburne v. Woodburne 


489 


V. Figgott 




527 


Woodcock V. Renneok 


663 



TABLE OF OASES. 



Ixix 



Woodcock V. 'Woodcock 


879 


Wusthofft). Dracourt 


431 


Wooden v. Osbourn 


787 


Wyatt, In re 


121 


Woodhouse v. Meredith 


691, 692 


Wych V. Packington 


568, 570 


V. Okiil 


322 


Wykham v. Wykham 


473 


Woodington, In re 


80 


Wylie V. Wylie 


529 


Woodley, In re 


106 


Wyman v. Gould 


38 


WoodrufE V. Cook 


253 


ti. Symmes 


74 


V. Migeon 


410 


Wyneh, Ex parte 


629 


Woods, In re 


615 


V. Wynch 


845 


V. Moore 


878, 694 


Wyndham v. Chetwynd 


51 


V. Ridley 


98 


V. Egremont 


694 


V. Wooda 


377, 401, 422 


V. Wyndham 


653 


Woodward, In re 


131, 142 


Wynn v. Heveningham 


134 


V. Glasbrook 


510 


V. Wynn 


358 


Woolcomb V. Woolcomb 


478, 761 


Wynne v. Hawkins 


386, 398 


Woolery v. Woolery 


147; 148 


V. Littleton 


697 


Woollam V. Kenvvorthy 


718 


V. Walthall 


482 


WooUett V. Harris 


565 






Woolmer's Estate 


338 






Woolridge v. Stone 


397 


Y. 




V. Woolridge 


440 






Wootton V. Redd 356 


, 357, 422, 434 


Yard v. Murray 


646 


Workman v. Dominick 


90 


Yard's Appeal 


250, 293 


V. Workman 


338 


Yardley v. Holland 


62, 707 


Worley v. Worley 


179 


V. Yardley 


747 


Wortliain v. Dacre 


699 


Yarlo V. Faden 


308 


Wortliington v. Wiginton 


471 


Yarnall's Will 


98 


Wotton, In re 


107 


Yarnold v. Wallis 


195 


Wrangham's Trust, In re 


837, 860 


Yates V. Compton 


397 


Wrench v. Jutting 


763 


V. Thompson 


6,528 


Wrey v. Smith 


607 


V. Yates 


697 


Wright V. Atkins 


386 


Yeap V. Ong 


205 


V. Atkyns 


730 


Yeaton v. Roberts 


674, 646 


V. Cadogan 


39 


Yelverton v, Yelverton 


15 


V. Hall 


646 


Yeomans v. Stevens 


654 


V. Hammond 


527 


Yerby i>. Yerby 


125, 130 


V. Home 


646 


Yoe V. McCord 


35,80 


v. Howe 


36 


York V. Walker 


193 


V. Kemp 


509 


V. Waller 


196 


V. Lambert 


610 


Youde V. Jones 


155 


V Littler 


160 


Young, In re 


872 


V. Methodist Epis. 


Ch. 65, 339, 


V. Davies 


341 




565, 584 


f. Grove 


227 


V. Minshall 


584 


V. Hassard 


177 


V. Netherwood 


127 


V. Martin 


388 


V. Rogers 


86 


V. Robinson 


645 


V. Rose 


67, 163 


Younge v. Coombe 


747 


ii. Shelton 


748 


V. Sheppard 


374 


V. Wakeford 


78 


Younghusband v. Gieborne 


397 


V. Weston 


766 


Youngs V, Youngs 


327 


V. Wilkin 


227 


Youse V. Forman 


134, 136 


V. Wright 40, 46, 81, 82, 144, 


Yunt's Appeal 


163 


515 


565, 623, 631, 
808, 867 






V. Wyvell 


524 


z. 




Wright's Appeal 


162, 163, 356 






Trust, In re 


754 


Zacharias v. Collis 


98 


Wrightman v. Calvert 


605 


Zimmerman v. Anders 


214, 219 


Wriglitson v. Macaulay 


593 


V. Zimmerman 


20,35 


Wurt V. Page 


686 


Zrisweiss v. Jones 


207 



THE LAW 



WITH RESPECT TO 



WILLS. 



CHAPTER I. 

BY WHAT LOCAL LAW WILLS ARE REGULATED. 

To ascertain by what local law a will is regulated is an inquiry which 
necessarily precedes all others relating to the instrument, „ , . . 
and which seems, therefore, properly to form the commenc- law wills are 
ing subject of the present treatise. After showing to what '■'=S"iaM- 
wills the English law applies, we shaU. proceed to discuss the nature 
of such law. 

A will of fixed or immovable property is generally governed by the 
kx loci rei sitce ; and hence the place where such a wiU hap- -p .^ , , 
pens to be made and the language in which it is written are by lex loci rei 
wholly unimportant, as affecting both its construction and ^'^' 
the ceremonial of its execution ; the locality of the devised property is 
alone to be considered. Thus, a will made in Holland (a) and written 
in Dutch must, in order to operate on lands in England, contain expres- 
sions which, being translated into our language, would comprise and 
destine the lands in question, and must be executed and attested 
in precisely the same manner as if the wiU were made in Eng- 
land (6).^ And, of course, lands in England * belonging to a *2 
British subject domiciled abroad, who dies intestate, descend 
according to the English law (c) . 

(or.) In Holland the Code Napoleon prevails, subject to modifications which have been 
ingrafted thereon by Dutch legislatioij. See Gambler e. Gambler, 7 Sim. 263. 

(6) Bovey v. Smith, 1 Vern. 85; see also Bowaman v. Reece, Pre. Ch. 677; Drummond 
V. Drummond, 3 B. P. C. Toml. 601 ; Brodie v. Barry, 2 V. & B. 131. 

(c) See Doe d. Birtwhistle v. VardlU, 5 B. & Cr. 438. [As to land in Italy, see Earl Nelson 
V. Earl Bridport, 8 Beav. 547.] 

1 The American common law is in accord authorities to this effect are very numerous, 
with the text ; the law of the state or country The following contain useful illustrations: 
in which the land lies governs the will. The Eyre v. Storer, 37 N. H. 114 ; Knox v. Jones, 

vol.. I. I 1 



BY WHAT LOCAL LAW 



In regard to personal, or rather movable property, the lex domicilii 



47 N. Y. 389 ; Abell v. Douglass, 4 Denio, 305 ; 
Calloway v. Doe, 1 Blackf. 372, and notes; 
Story, Confl. Laws, § 474 and notes j 4 
Burge, Comm. Col. & for. Law, pt. 2, c. 15, 
pp. 217, 218; 4 Kent, 513; 2 ib. 429; Robert- 
son V. Barbour, 6 T. B. Men. 527; Crofton 
V. Ilsley, 4 Greenl. 138 ; Potter v. Titcomb, 
22 Me. 303, 304 ; Bailey v. Bailey, 8 Ohio, 
239 ; Kerr v. Moon, 9 Wheat. 565 ;" Darby v. 
Majer, 10 Wheat. 465 ; Morrison v. Campbell, 
2 Kand. 209 ; U. S. v. Crosby, 7 Cranch, 115 ; 
Varner v. Bevil, 17 Ala. . 286 ; Cornelison 
V. Browningj^ 10 B. Mon. 425. A different 
rule has been adopted by statute in some of 
the states, as in Massachusetts, where by 
Gen. Stat. ch. 92, § 8, it is provided that a 
will made out of the state, which might be 
proved and allowed according- to the laws of 
the state or country in which it was made, 
may be proved, allowed, and recorded in 
Massachusetts, and shall thereupon have the 
same effect as if it had been executed accord- 
ing to the laws of Massachusetts. See Bay- 
ley V. Bailey, 5 Cush. 245 ; Slocomb ». 
Slocomb, 13 Allen, 38. In the latter case 
the law finds a good illustration. It was de- 
cided under the foregoing statute that a nun- 
cupative will made in another state, which 
would not have been valid had ■ it been exe- 
cuted in Massachusetts, but might be proved 
and allowed in the state in which it was made, 
might be proved, allowed, and recorded in 
Massachusetts, having the same effect as any 
valid will, duly proved in that state. Li 
many other states provision has been made by 
statute for allowing and recording foreign 
wills or wills made in sister states, according to 
the laws of the place where made. Thus, the 
record of a will, with the proof of it and the 
letters issued thereon, constitutes the probate 
of it in New Jersey, and entitles a New J,ersev 
will to be filed for "probate in Michigan. Wilt 
V. Cutler, 38 Mich. 189. See Irwin's Appeal, 
33 Conn. 128; Manuel v. Manuel,13 Ohio St. 
458; State v. M'Glynn, 20 Cal. 233. And 
statutes also often provide that no effect shall 
be given to such wills unless made and^exe- 
cuted according to their own laws. Such is the 
law of Maine, Alabama, North Carolina, and 
some other states. See Potter v. Titcomb, 22 
Me. 300; Varner v. Bevil, 17 Ala. 286; Ward 
V. Hearne, 3 Jones, 326. In Michigan, wills 
made by persons domiciled within that 
state, but abroad at the time of execution, 
are required to be executed with no other for- 
malities than those required at common law. 
High, App. 2 Douglass, 515. A will made 
in another state, and not executed in con- 
formity with the laws of South Carolina, can- 
not be admitted to probate in South Carolina. 
Gause v. Cause, 4 McCord, 382. A will made 
in another state, if admitted to probate in 
Ohio, will pass lauds in Ohio, though not 
executed according to the laws in Ohio. Bai- 
ley V. Bailey, 8 Ohio, 239 ; Meese v. Keefe, 
10 Ohio, 362. The same principle was held 
in Dublin v. Chadbourn, 16 Mass. 433. This, 
however, is on the ground of the conclusive- 
ness of the probate on all questions relating 



to the due execution of wills. In Vermont, 
a will made in another state cannot be read 
in evidence on trial of the title derived under 
it to lands in that state, unless a copy of 
such will is filed and recorded in the probate 
court in that state. Ives v. Allyn, 12 Vt. 
589. See also Ex parte Povall, 3 Leigh, 816; 
Lancaster v. M'Bryde, 5 Ired. 421. Wills 
made in Virginia, and there proved and re- 
corded, before the separation of Kentucky, 
will pass lands in the latter state. Gray v. 
Patton, 2 B. Mon. 12 ; Morgan v. Gaines, 3 
A. K. Marsh. 613. In Virginia, it has been 
held that a will of lands in that state may be 
proved there, although it has been declared 
void in another state, where the testator re- 
sided. Rice V. Jones, 4 Call, 89; Morrison 
V. Campbell, 2 Rand. 217. A will executed 
in Pennsylvania, according to the laws of 
California, by a person domiciled in Califor- 
nia, may be proved in Pennsylvania, and let- 
ters testamentary there granted. Flannery's 
Will, 24 Penn. St. 502. If, by the law of the 
country in which the land lies, a posthumous 
child, not provided for bj' the testator, is en- 
titled to part of the estate, his rights will pre- 
vail, notwithstanding t)he law of the country 
in which the testator resided. Eyre V. Storer, 
37 N. H. 114. It is not to be understood from 
the text that the foreign law will, in any case, 
be invoked as to the construction of ambig- • 
itous language; though, as to the interpre- 
tation of language wliich is not ambiguous, 
but which has a peculiar meaning m the 
foreign state or country where the land lies, 
the foreign law will govern. On the other 
hand, when the land lies within the stale or 
country of the testator, the fact that the will 
was written and executed elsewhere will af- 
ford no ground for doing more than translat- 
ing it (if in a foreign language) into equivalent 
English. Technical terms must be rendered in 
their equivalent, as such, unless they appear 
to have been used in tlieir ordinary or popular 
sense ; — then in their popular equivalent ; and 
any real ambiguitj' found In the original must, 
it is apprehended, be treated like ambiguity 
in any ordinary case. See Wallace v. Att.- 
Gen., 35 Beav. 21; Martin v. Lee, 14 Moore, 
P. C. 142 ; Duhamel v. Ardovin, 2 Ves. Sr. 
162. If at last the will, expounded accord- 
ingljr, conform to the law where the land lies, 
it will be valid ; otherwise not. And the in- 
validity will go to the whole or to but part 
of the will, according to the facts proved. 
See Story, Confl. Laws, § 479 h ; Trotter v. 
Trotter, 3 Wils. & S. 407; S. C. 5 Bligh (N. S.), 
502, 505. If the will of a party is made in 
the place of his actual domicile, "but he is, in 
fact, a native of another country ; or if it is 
made in his native country, but in fact his 
actual domicile at the time is in another 
country; still it is to be interpreted by ref- 
erence to the law of the place of his actual 
domicile. Story, Confl. l^aws, § 479/; Har- 
rison V. Nixon, 9 Peters, 483. Of course, no 
executor or administrator has any authoritv, 
as such, out of the state in which he has quali- 
fied. Campbell v. Sheldon, 13 Pick. 8. 



"WILLS AEB REGULATED. *2 

prevails (d) ,^ [that is to say, the law of the country in which Movables by 
the testator or intestate was domiciled at the time of his '«" domicilii. 
death (e). By a modern statute, indeed (/) some material exceptions 
(affecting chiefly the mode of execution by British subjects dying after 
6th August, 1861, of wills of personal estate) are made to the gen- 
eral rule ; but in most respects the rule still holds good, and will, 
therefore, be most conveniently dealt with before adverting in detail to 
the statutorj' exception.] 

If, then, a British Or foreign subject dies domiciled in England, his 
personal property in England, in case he was intestate, will Domiciled 
be distributed according to the English law of succession {g) ; Englishman. 
and if he left a will, his testamentary capacity [(both as regards 
personal status {h) and the bequeathable quality of the property 
willed (i) ) ] and the construction of the instrument {k) , (whether this be 

{d) This position respects only the devolution of the property, and not the court of admin- 
istration, wJiich, by our law is regulated by the lex loci rei sitae. [Enohin v. Wylie, 10 
H. L. Ca. pp. 19, "24, per Lords Cranworth and Chelmsford, following Preston v. Melville, 
8 CI. & F. 1, diss. Lord Westbury. 

(e) Bremer ». Freeman, 10 Moo. P. C. C. 306 ; i.e. the law as it stood at the' death ; subse- 
quent changes between death and the grant of probate or administration being disregarded. 
Lynch v. Paraguay, L. R. 2 P. & D. 268. 

(/) 24 & 25 Vict. c. 114. 

(jr) Thorne ii. "Watkins, 2 Ves. 35 ; Bempde v. Johnstone, 3 Ves. 198 ; Balfour v. Scott, 6 
B. P. C. Toml. 550 ; Bruce v. Bruce, id. 566, 2 B. & P. 229, n. 

Uh) Price v. Dewhurst, 8 Sim. 299, 4 Mv. & Cr. 76 ; Robins v. Dolphin, 1 Sw. & Tr. 
37, 7 H. L. Ca. 390. 

(i) Kilpatrick v. Kilpatrick, 6 B. P. C. Toml. 584, cit.] 

(jfc) Anstruther v. Chalmer, 2 Sim. 1; [Reynolds v. Kortwright, 18 Beav. 417; Boyes 
V. Bedale, 1 H. & M. 798; Peillon v. Brooking, 25 Beav. 218.] 

1 Moultrie v. Hunt, 23 N. Y. 394 ; Parsons home and domicile. Dawes v. Boylston, 9 

». Lvman, 20 N. Y. 103 ; Knox «. Jones, 47 Mass. 355 ; Stephens v. Gavlord, 11 Mass. 

N. Y. 389 ; Chamberlain D. Chamberlain, 43 264; Olivier ». Townes, "14 Martin, 99; 

N. Y. 424; Lawrence v. Kitteridge, 21 Conn. Schultz ». Pulver, 3 Paige, 182 ; Holmes v. 

577; Fellows v. Miner, 119 Mass. 541; Perin Remsen, 4 .Johns. Ch. 460; Harvey v. Rich- 

». McMicken, 15 La. Ann. 154; High, Appel- ards, 1 Mason, 381; Jennison v. Hapgood, 

lant, 2 Dougl. (Mich.) 515; Mills v. Fogal, 4 10 Pick. 100; Davis v. Estey, 8 Pick. (2d 

Edw. (N. Y.) 559; Hunts. Mootrie, 3 Bradf. ed.) 476, note (1); Porter v. Havdock, 6 

(N.Y.)322;BloomerB. Bloomer, 2 Bradf. 339; Vermont, 374; Fay v. Haven, 3 flet. 109; 

Schultz «. Dambmann, 3 Bradf. 379 ; Despard Goodall v. Marshall, 11 N. H. 88; Camp- 

D. Churchill, 53 N. Y. 192; Nat ». Coons, 10 bell v. Sheldon, 13 Pick. 8 ; Dawes v. Head, 

Mo. 543; Gilman v. Oilman, 52 Me. 165; 3 Pick. 128; Potter ». Titcomb, 22 Me. 300; 

Story, Confl. Laws, § 465; Crofton v. Ilsley, Dixon v. Ramsay, 3 Cranch, 319; U. S. v. 

4 Greenl. 138; Potter v. Titcomb, 22 Me. Crosby, 7 Cranch, 116; Stent u. McLeod, 2 
304; 4 Kent, 513^ 514; Irving v. M'Lean, McCord, Ch. 354, 359; Richards v. Dutch, 8 
4Blackf. 53; McConnell ». Wilcox, 1 Scam- Mass. 506; Hunter v. Bryson, 5 Gill & J. 
mon, 373; Conover v. Chapman, Bailey, 2 483; Kern). Moon, 9'Whe"at. 565; Grattan ». 
436; Smith v. Union Bank of Georgetown, Appleton, 3 Story, C. C. 755, 765; Garland 

5 Peters, 519; Barnes v. Brashear, 2 B. Mon- v. Rowan, 2 Smedes & M. 617; Bradley v. 
roe, 382; Meese v. Keefe, 10 Ohio, 362; In Lowry, 1 Speers, Eq.3, 13; Suarez v. Ma3'or 
re Roberts's Will, 8 Paige, 519; Bempde of New York, 2 Sandf. 174, 177; Thomas 
». Johnstone, 3 Vesey (Sumner's ed.), 198, ii. Tanner, 6 T. B. Monroe, 52, 58; Dorsey 
note (a) and cases cited; Desesbats ». Ber- v. Dorsey, 5 J. J. Marsh. 280; AtchisoB «. 
quier, 1 Binn. 336 : Harrison v. Nixon, 9 Lindsey, 6 B. Monroe, 86. 89 ; Leake v. Gil- 
Peters, 483, 504, 505; Somerville v. Somer- christ, 2 Dev. 73; Ennis v. Smith, 14 How. 
ville, 5 Vesey (Sumner's ed.), 750, and note 400. A clause, however, granting both real 
(a); Turner i. Fenner, 19 Ala. 355. As to and personal property upon the same trust, 
personal property, the rights of legatees, as is generally severable, the validity of one not 
well as the rights of the next of kin, in a depending upon the validity of the other; and 
case of intestacy, depend upon the laws of though the real estate be situated in another 
the country where the deceased, from whom country, the trust, so far as it relates to 
the bequest or succession is claimed, had his personalty within the countiy of the forum, 



*3 BY WHAT LOCAL LAW 

made in the testator's native or in his adopted country, or elsewhere, 
and wherever he may have died) must be tried by the law of England.-' 
And it is scarcely necessary to observe, that stock in the public funds 
is undistinguishable in this respect from other personal prop- 
*3 erty (Z) . And the movable property * of such a person, which 

(I) Domicile m affecting legacy duty. — In re Ewin, 1 Cr. & J. 151. In this case the ques- 
tion was, as to the liabihty of property to legacy duty, the discussion of which sometimes 
indirectly involves points as to domicile, alienage, &c. [Where the domicile of the testator 
is foreign, it is now settled beyond question that under no circumstances whatever is legacy 
duty payable; Re Bruce, 2 Cr. & J. 436, 2 Tyr.475; Hay v. Fairlie, 1 Euss. 117; Logan v. 
Kairlie, 1 My. & Cr. 59, reversing the decision 2 S. & St. 284 ; Arnold v. Arnold, 2 My. & Cr. 
256 ; Commissioners of Charitable Donations «. Devereux, 13 Sim. l4 ; Thomson v. Adv.- 
Gen., 12 CI. & Fin. 1, 13 Sim. 153, 9 Jur. 217 ; Ee Coales, 7 M. & Wels. 390. The cases 
of Att.-Gen. ». Cockerell, 1 Pri. 165, and Att.-Gen. v. Beatson, 7 Pri. 560, are now clearly 
overruled. 'Where the testator is domiciled in this country' three cases arise: 1. If neither 
his personal representatives nor his effects ever come within the jurisdiction of the courts 
of this country, no question as to liability to duty can ever be raised. 2. Where a personal 
representative is constituted in this country for the purpose of recovering the testator's 
effects situated here, duty is payable not on that part alone which rendered representation 
necessai-v, but on the whole of the testator's effects. Att.-Gen. ». Napier, 6 Exch. 217 ; 
Ee Ewiii, 1 Cr. & J. 151; Ee Coales, 7 M. & Wels. 390. 3. fhe third case is where the 
property is found in this country in the hands of the foreign representative, but no repre- 
sentative has been constituted in this country. This was the case in Jackson v. Forbes, 2 Cr. 
& J. 382, 2Tvr. 354; S. C. in D. P. Att.-Gen. «. Forbes, 2 CI. & Fin. 48, nom. Att.-Gen. v. 
Jackson, 8 fili. 15, 3 Tyr. 982; the duty was held not payable, but the decision seems to 
have been rested by Lord Brougham on"the fact that the property was appropriated in India 
as well as on the fact of the absence of a representative in this country. Lord Cottenham 
(Logan V. Fairlie, 1 My. & Cr. 59) referred it solely to the former ground; but in Att.-Gen. 
V. Napier, it was said appropriation had nothing to do with the question, and that Att.-Gen. 
«. Jackson went upon a mistaken notion of the testator's domicile, which was supposed in 
D. P. to have been in India, whereas in fact it was in England; at the same time, if Att.- ■ 
Gen. V. Jackson really proceeded on the question of appropriation, it is equally difficult to 
reconcile it with the doctrine of Att.-Gen. v. Napier. The only way of reconciling the 
cases taken upon their respective facts is by referring the decision inAtt.-Gcn.w. Jackson 
to the absence of an English representative, though here again we are met by the dictum of 
Lord Cottenham, in Arnold v. Arnold, 2 My. & Cr. 273, to the effect that it was impossible 
that the liability of the legatee to duty could depend on an act of the executor in proving 
or not proving the will in this countrj' ; yet if Lord Cottenham be correct, it is difficult to 
see how the law could be enforced. ■ The amount of duty, the fact whether any duty is pay- 
able, the person from ' whom it is to be recovered, in short, everything necessarv to found 
a specific claim on the part of the Crown, depends on whether the will is valid or invalid, or 
whether revoked or altered by subsequent codicils ; these are matters to be determined by 
the English law (the testator's domicile being English), and thej' remain undetermined if 
the will has not been proved in this country. 

Estates pur autre vie are realty ; the question whether they are liable to duty is therefore 
independent of the question of domicile. Chatfield «. Berchtoldt, L. E. 7 Ch. 192. 

Succession duty, like legacy duty, is payable only where the deceased was domiciled in 
this country (Wallace v. Att.-Gen., L. K. 1 Ch. 1); but the property once received by 
the executor and invested here upon the trusts of the will, anj' subsequent devolution (as 
on the death of a tenant for life) confers a succession which atti-acts the duty. Att.-Gen. v. 
Campbell, L. E. 5 H. L. 524. 

The question of probate duty does not depend on domicile, but (except in tlie case of 

Personal estate appointed under a general power, which is expressly made subject to pro- 
ate duty by 23 & 24 Vict. c. 15, s. 4) is pavable on so much only of the testator's property 
as, but for the will, the ordinary would iiave been entitled to administer. Att.-Gen. v. 
Dimond, 1 Cr. & J. 356, 1 Tyr. 243; Atti-Gen. v. Hope, 1 Cr. M. & E. 630, 4 Tyr. 878, 

2 CI. & hn. 84, 8 Bli. 44; Drake v. Att.-Gen., 10 CI. & Fin. 257, affirming Piatt v. Routh, 

3 Beav. 257, 6 M. & Wels. 756 ; and overruling Att.-Gen. v. Staff, 2 Cr. & M. 124, 4 Tyr. 14; 
and Palmer v. Whitmore, 5 Sim. 178. Compare Att.-Gen. «. Bouwens, 4 M. & Wels. 171, 
as to foreign securities transferable in this country by delivery, which were held liable to duty 
aa ordinary chattels. And see Pearse v. Pearse, 9 Sim. 430; Vandiestu. Fynmore, 6 Sim. 
570; Fernandes' Executors' case, L. E. 5 Ch. 314; Att.-Gen. v. Pratt, L. E. 9 Ex. 140. 
As to certain Indian securities, see 23 & 24 Vict. c. 5.] 

will be enforced. Knox v. Jones, 47 N. Y. Comm. Col. & For. Law, part 2, c. 12, pp. 

3g9 590, 591 ; Ferraris v. Hertford. 3 Curteis, 468 ; 

1 Story, Confl. Laws, §§ 479/, 479",ff ,• Har- Westlake, International Law (2d ed.), §§ 106, 

rison D. Nixon, 9 Peters, 483, 504, 505; 4 Burge, 107. 

i 



■WILLS AEB EEGULATBD. *4 

is out of England at the time of his death, will also, it seems, gener- 
allj- speaking, follow the domicile ; but this, of course, depends on 
the laws of the state in which the property is situate, which maj- not 
(though the codes of many civilized states do (m) ) accord with our own 
in this particular. Sometimes, however, a difficulty occurs in the 
application of the principle, from the fact that the foreign state, 
though it recognizes * the general doctrine, yet imposes restric- *4 
tions on the testamentary power unknown to the law of the 
adopted country, and from which it may not permit its citizens to 
escape, in regard to property within its jurisdiction, by a mere change 
of domicile. For instance, the French law does not, like our own, per- 
mit a man to bequeath his entire property away from his wife and chil- 
dren (m) . Now, if a Frenchman dies domiciled in England, is it quite 
clear that his movable property in France would be subject to British 
law, so as to pass by such a will ? In such cases the Code Napoleon 
seems to draw a distinction between the acquisition of a foreign domi- 
cile by mere residence, and some other more decided acts of self-expa- 
triation, such as that of becoming the naturaUzed subject of another 
state (o). 

It follows, from the same rule, that if any person, whether a British 
subject or a foreigner, dies whilst domiciled abroad, the law Domiciled 
of the place which at his death constituted his home will foreigner, 
regulate the distribution of his movable (p) property in England, in 
case of intestacy, i.e. should he happen to have left no instrument 
which, according to the law of his adopted country, would amount to a 
testamentary disposition of such property (q) ; and if he left a will, the 
same law will determine its validity [both as regards personal com- 
petence in the testator (r) and the Ipequeathable nature of the prop- 
Cm) See Price v. Dewhurst, i My. & Cr. 83. 

in) Vide post, p. 6, note (y). 

(o) Liv. 1, tit. 1, chap. 2, sect. 17. 

Ip) Leaseholds are governed by the lex loci. — Tlie word movable is here used advisedly 
instead of personal, as the distinction between real and personal estate is peculiar to our own 
policy, and is not known to any foreign system of jurisprudence that is founded on the civil 
law, m which the only recognized distinction was between movable and immovable property. 
Leaseholds for years, therefore, which obviouslj' belong to the latter denomination, though 
they are with us transmissible as personal estate, are governed, by the lex loci, and do not 
follow the person ; so that, if an Englishman domiciled abroad dies possessed of such prop- 
erty, it will devolve according to the English law. [See Freke v. Lord Carbery, L. R. 16 
Eq. 461. It is shown in Bacon's Abr. tit. Leases, how it happened that leaseholds were held 
to pass to the executor. A lease for years was only a contract between lessor and lessee; 
and lessee, if evicted, could only recover damages in a personal action against lessor, not the 
possession. The benefit of such a contract of course passed to the executor; and though 
lessees were afterwards held entitled to recover the possession itself, no change was made in 
the rule of succession. 

Since then the rule mobilia sequuntur personam is inapplicable to leaseholds, it follows 
(subject to 24 & 25 Vict. c. 114, s. 2, presently stated, and which speaks of " personal " es- 
tate) that to dispose of leaseholds a will must be executed according to 1 Vict. c. 26, and that 
the will of a domiciled foreigner not so executed, though it may be proved here, and will 
enable the executor to sell leaseholds (Hood ». Lord Barrington, L. R. 6 Eq. 218), will never- 
theless not operate on the beneficial interest. The title of the executor is from the probate : 
the beneficial interest will devolve as undisposed of.] ^ m i » 

(o) Somerville ». Lord Somerville, 5 Ves. 750 ; and see Hogg v. Lashley, 6 B. P. C. Toml. 577. 

[()•) Re Osborne, 1 Deane, 4, 1 Jur. N. S. 1220; Re Maraver, 1 Hagg. 498. 

5 



*5 BY "WHAT LOCAL LAW 

*5 erty willed (s)], and will also regulate *the construction (t) 
of such will, of which, therefore, an Enghsh court will not grant 
probate unless it appear to be an effectual testamentary instrument 
according to the law of the domicile.* And, by parity of reasoning, 
the English court will grant probate bf an instrument ascertained to be 
testamentary according to the law of the foreign domicile, though invalid 
and incapable of operation as an English will. Thus («), probate was 
granted of the will of a married lady, who at the time of her death was 
domiciled in Spain (of which country she was, it seems, also a native) , 
on its being shown that by the Spanish law a feme covert ma}-, 
under certain limitations, dispose of her property by will as a feme 
sole. 

And it is the constant practice of the court here to grant [ancillarj'] 
Ancillary probate of wiUs of [testators domiciled in foreign countries] 
probate. which have been previously proved there, without inquiring 
[or permitting inquiry] into the grounds of the [foreign] proceeding, 
though the bulk of the property of the deceased testator should happen 
to be in England (a;).^ 

Where probate has been granted of an instrument eventually ascer- 
Effect where tained not to be testamentarj' according to the law of the 
granted in domicile, this proceeding (though it vests the whole personalty 
errur. which is within the jurisdiction of the court in the executor, 

as to whose leffal title the grant of probate is conclusive ') does not regulate 
or affect the ultimate destination of the property, which, therefore, the ex- 
ecutor will be bound to distribute according to the law of the domicile (y) . 

Where the construction of the will is to be regulated by foreign law, 

(.9) Kilpatrick i>. Kilpatrick, 6 B. P. C. 68+, cit. ; Doglioni t'. Crispin, L. E. 1 H L. 301.1 

(t) Bernal v. Bernal, 3 Mr. & Cr. 559 n. [Barlow v. Orde, L. R. 3 P. C. 164 (lex loa 
admitting illegitimate with legitimate children).] 

(m) Re Maraver, 1 Hagg. 498. As to the law of Spain respecting testamentary disposi- 
tions, vide Moore v. Budd, 4 Hagg. 346. 

(K) Re Read, 1 Hagg. 474; [Hare v. Nasmyth, 2 Add. 25; Re Gaynor, 4 No. Cas. 696; 
Enohin v. Wylie, 10 ~H. L. Ca. 1; Re Earl, L. R. 1 P. & D. 450 ; Miller r. James, L. R. 3 
P. & D. 4 ; Re Cosnahan, L. R. 1 P. & D. 183.] 

(y) Thornton v. Curling, 8 Sim. 310. In this case, an Englishman went to reside in 
France, where he was domiciled at his death, and left a will providing for an illegitimate 
child and its mother, to the exclusion of hi- wife and legitimate child, which the French 
law does not permit. Donations bv a Frenchman (whether testamentary or by act inter 
vivos) must not exceed a moiety if fie leave at his decease one legitimate child, a third if he 
leave two, and a fourth if he leave three or more; the descendants of a deceased child being 
considered as one. Moreover, a Frenchman cannot dispose of the whole of his property, if he 
leaves only ascendants. 

1 Hj'man v. Gaskins, 5 Ired. 267; In re 2 A person claiming under a will executed 

Osborne, 33 Eng. Law & Eq. 625. If after and proved in one State cannot sue for or 

making a will, valid by the laws of the place claim a legacy in another State, unless the 

where the testator was'domiciled, he changes will be proved' in the latter State, or unless 

his domicile to a place by the laws of which the action be authorized W some statute of 

the will thus made is not valid, and there the latter State. Carr v. Lowe, 7 Heisk. 84; 

dies, the will is void. If, however, before Kerr v. M^on, 9 Wheat. 565; Richards v. 

his death, he should return and resume his Dutch, 8 Mass. 506. See, further, Fleeger 

former domicile, where his first will or testa- v. Pool, 1 M'Lean, 189. 

ment was made, its original validitj' will re- s The same is ti'ue of real estate, where 

vive also. Story, Confl. Laws, § 473; 2 the probate court has exclusive jurisdiction 

Greenl. Ev. § 608'; 4 Burge, Comm. Coll. & over wills of both real and personal estate. 

For. Law, 550, 581. Bailey v. Bailey, 8 Ohio, 239; Dublin t). 

6 



WILLS ABE BEGX7LATED. 



*6 



the opinion of an advocate versed in such law is obtained, Foreign law 
for the information and guidance of the English court on ^°y a^cer- 
whlch devolves the task of construing it (z) ; [or the '*'°^''' 
English * court may remit a case for the opinion of a court in *6 
any other part of the British dominions (a) , or of a court in any 
foreign country with which there is a convention for that purpose (&).] 
But if the point in dispute depend upon principles of construction com- 
mon to both countries, the court will adjudicate upon the question, 
according to its own view of the case, without having recourse to the 
assistance of a foreign jurist (c).^ 

As a will, in regard to movable property, is construed according to 
the law of the domicile, there is, it will be observed, nothing on the 
face of it which gives the peruser the slightest clue as to the nature of 
the laws by which its construction is regulated ; it may have been made 
in England, be written in the English language, the testator may have 

[(«) Harrison v. Harrison, L. R. 8 Ch. 346 : i. e. of an advocate practising in the particular 
foreign country — study elsewhere of its laws is insufficient. Bristow v. Sequeville, L. K. 5 
Ex. 2T5 ; Re Bonelli, l"P. D. 69. , 

(a) 22 & 23 Vict. c. 63: acted on in Login v. Princess of Coorg, 30 Beav. 632. 

(6) 24 Vict. c. 11.] 

(c) Bernal v. Berrjal, 3 Mj'. & C. 559. [Collier v. Rivaz, 2 Curt. 855; Earl Nelson v. Earl 
Bridport, 8 Beav. 527, 547; Yates v. Thompson, 3 CI. & Fin. 586; Martin v. Lee, 9 W. K. 
522. But the court here is bound by a previous judgment in re of the foreign court. Doglioni 
V. Crispin, L. R. 1 H. L. 301.] 



Chadbourn, 16 Mass. 433 ; Ex parte Fuller, 
2 Storj-, C. C. 327, 328, 329; Laughton v. 
Atkins, 1 Pick. 548. 549 ; Tompkins v. Tomp- 
kins, 1 Story, C. C. 554. 

1 Concerning proof of the foreign law, the 
following are the conclusions of the courts: 
1 . Evidence as to the unwritten law is to be 
proved as matter of fact by persons skilled in 
that law, ('. e. by experts. Klj' v. James, 123 
Mass. 36; Kline )'. Baker, 99 Mass. 253; Hol- 
man v. King, 7 Met. 384; Dyer v. Smith, 12 
Conn. 384; Moore i'. Gwynn, 5 Ired. 187; In- 
graham V. Hart. 11 Ohio, 255 ; Ennis v. Smith, 
14 How. 400, 426; Story, Confl. Laws, § 642; 
Church u. Hubbart, 2 Cranch, 238; Brush v. 
Wilkins, 4 Johns. Ch. 520; Francis v. Ocean 
Ins. Co., 6 Cowen, 429; Delafield v. Hand, 3 
Johns. 310 ; Smith v. Elder, 3 Johns. 105. See 
Haven v. Foster, 9 Pick. 130; Talbot v. See- 
man, 1 Cranch, 12, 38; Strother v. Lucas, 6 
Peters, 763; Hill v. Packard, 5 Wend. 375; 
Brackett v. Norton, 4 Conn. 517 ; Denison v. 
Hvde, 6 Conn. 508; Ripple «. Ripple, IRawle, 
386; Raynham v. Canton, 3 Pick. 293, 296; 
Carnegie v. Morrison, 2 Met. 404, 405 ; Kenny 
V. Van Home, 1 Johns. 385, 394; Woodbridge 
V. Austin, 2 Tyler, 364, 367; Lincoln v. Bat- 
telle, 6 Wend. 482 ; Bagley r. Francis, 14 Mass. 
453; M'Rae v. Mattoon, 13 Pick. 53, 59; Wil- 
son V. Smith, 5 Yerger, 398, 399; Frith ». 
Sprague, 14 Mass. 455; Hempstead v. Reed, 
6 Conn. 480; Dyer v. Smith, 12 Conn. 384; 
1 Greenl. Ev. §§ 486-489; Packard v. Hill, 2 
Wend. 411. The unwritten law of a foreign 
country, or of another State, may also be 
proved" bv books ui Reports and oases decided. 
Raynham v, Canton, 3 Pick. 293, 296 ; M'Rae 



V. Mattoon, supra; Dougherty ». Snyder, 15 
Serg. & Rawle, 87 ; Lattimer v. Eglin, 4 De- 
saus. 26, 32; Brush ti. Scribner, 11 Conn. 407. 
So b}' public history. Dougherty v. Snyder, 
supra. Sometimes certificates of persons of 
high authority have been allowed as evidence, 
without other proof. In re Dormoy, 3 Hagg. 
Eccles. 767, 769; Story, Confl. Laws, § 642. 
2. The same appears to be true when the ques- 
tion is of the peculiar construction of a statute. 
Kline v. Baker, supra ; Ely i). James, 123 Mass, 
36. 3. The statute or written law must be 
proved bv the law itself. Francis v. Ocean 
Ins. Co., 6 Cowen, 429; Delafield v. Hand, 3 
Johns. 310; Lincoln v. Battelle, 6 Wend. 482; 
Ennis «. Smith, 14 How. 400, 426 ; Nelson v. 
Bridport, 8 Beav. 527. 4. The qualifications 
of the experts, or other questions of compe- 
tency, are of course questions of law. lb. 5. 
When the evidence admitted consists entirely 
of a written or printed document, statute, or 
judicial opinion, and no peculiar local con- 
struction is alleged to govern it, the question 
of its construction and effect must be deter- 
mined by the court. Kline ». Baker ; United 
States 1). McRae, L. R. 3 Ch. 86; Di Sora v. 
Phillipps, 10 H. L. Cas. 624; Biemer v. Free- 
man, 10 Moore, P. C. 306; People v. Lambert, 
5 Mich. 349; Owen ». Boyle, 15 Maine, 147; 
State V. Jackson, 2 Dev. 563. 6. As to the 
laws of the sister states, Congress has provided 
a mode for their authentication; but they 
may be admitted without such authentication, 
if otherwise proved to the satisfaction of the 
court. Taylor v. Bank of Illinois, 7 T. B. 
Mon. 576. 



*7 BY WHAT LOCAL LAW 

described himself as an Englishman {d) , and it may have been proved in 
an English court ; and yet, after all, it may turn out, from the extrinsic 
fact of the maker being domiciled abroad at his death, that the wiU is 
■wholl}' withdrawn from the influence of English jurisprudence. 

[As in other respects, so with regard to its execution, a will of mov- 
Execution of ^^^^s must, as a general rule, be tried by the law of the tes- 
wiii of mov- tator's domicile at his death. So that an English court will 
^ ^^" not grant probate of the will of a testator domiciled in Eng- 

land, unless it be executed according to the law of England (e) ; nor 
of a testator domiciled abroad, unless it be executed according to the 
law of the foreign domicile (/) . In Bremer v. Freeman (^) , 
*7 the testatrix was an English subject resident at Paris, *and exe- 
cuted a will conformably to, English law ; but probate of it 
was refused on the ground that she was domiciled in France, and that 
the will was not valid according to French law.^. 

To obviate such questions with regard to testators dying after 6th 
Lord King- August, 1861, it is enacted by 24 & 25 Vict. c. 114, that 
down's Act. (g ]^) every will and other testamentary instrument made 
out of the United Kingdom by a British subject (whatever maj- be the 
domicile of such person at the time of making the same, or at the time 
of his death) shall as regards personal estate be held to be well exe- 
cuted for the purpose of being admitted to probate, if the same be made 
according to the forms required either by the law of the place where 
the same was made, or by the law of the place where such person was 
domiciled when the same was made, or by the laws then in force in that 
part of her Majesty's dominions where he had his domicile of origin : 
and (s. 2) that every will and other testamentary instrument made 
within the United Kingdom by any British subject (whatever may be 
the domicile of such person at the time of making the same, or at the 
time of his death) , shall as regards personal estate be held to be well 
executed, and shall be admitted to probate if the same be executed 
according to the forms required by the laws for the time being in force 
in that part of the United Kingdom where the same was made. By 
s. 3 no will or other testamentary instrument shall be held to be revoked 
[or to have become invalid, nor shall the construction thereof be altered, 

(rf) This of course is not conclusive (as to which see Nevinson v. Stables, 4 Rnss. 210), 
though the fact of a testator being described as resident abroad would produce suspicion and 
inquiry as to the foreign domicile. 

[(e) Countess Ferraris i). M. of Hertford, 3 Curt. 468, 7 Jur. 262, 2 No. Cas. 230; Croker 
V. M. of Hertford, 4 Moo. P. C. C. 339, 8 .Jur. 863, 8 No. Cas. 150. 

( f) Stanley v. Bernes, 3 Hagg. 373 ; Moore w. Darell, 4 Hagg. 346. 

(fl) 10 Moo. P. C. C. 306. The case was a curious one ; for the law of France does not 
permit a foreigner to acquire a domicile there, so as to affect the mode of malting a will, 
without license from the government; in other words, without such license the foreigner 
may make a will according to the law of his original domicile. In France, therefore, the 
English will would have been held good (see Sug. R. P. S., p. 404; Collier v. Eivaz, 2 Curt. 
855; secus as to intestate succession, 1 Ch. D. 270), and it had in fact been pi-onounced valid 
on that ground by the Prerogative Court (1 Deane, 192). 

1 But see Hamilton ». Dallas, L. R. 1 Ch. D. 257; Wharton, Confl. Laws (2d ed.) § 77a. 
Contra, Dupuv v. Wurtz, 53 N. Y. 556. 

8 



"WILLS ABE KEGITLATED. *8 

by reason of any subsequent change of domicile of the person making 
the same {h) ; nor (s. 4) is the act to invalidate any will or other tes- 
tamentary instrument as regards personal estate which would have 
been valid if the act had not been passed, except as such will or instrti- 
ment maj^be revoked or altered by any subsequent will or testamentary 
instrument made valid by the act. 

Thus, for the purpose of British probate, a choice is given among 
several forms of execution, all in addition (s. 4) to that — itseffecton 
which alone was formerlj' sufficient ; and, in terms, the act is operatfon of 
directed only to modes of execution ; but it has been held wiHs. 
that a testamentary instrument, depending on the act for the validity 
of its execution, must also depend for its legal effect on the 
local *law on which its execution is rested. Thus, in Pechell *8 
V. Hilderley (k) , a British subject with an English domicile died 
in 1867, leaving a will and codicil, neither of which was executed 
according to the law of England, but the codicil (though not the 
will) was well executed according to the law of Italy, where it was 
made. By that law, as proved in the case, it could not stand alone 
without the will, and did not set up the will, although indorsed upon 
and referring to it. It was argued that the codicil being well executed 
according to the act, its legal effect must be determined by the lex 
domicilii, and that according to that law the codicil republished and 
made good the will (Z). But Lord Penzance held otherwise. Whether 
such would be the effect of appljing the English law in the manner pro- 
posed, he said it was not necessary to discuss, for he was of opinion that 
in determining the question whether any paper was testamentary, regard 
could be had to the law of one country only at a time, and that the 
mixing up of the legal precepts of two different countries could only 
result in conclusions conformable to neither. The court therefore pro- 
nounced against both documents. 

The act affects British subjects only (w) , and can only be enforced 
where the property in question is locally situate within Brit- _j,f[(,cts 
ish jurisdiction. Foreign courts are not bound to recognize British sub- 
the act in determining whether a given instrument is a vahd •'^° ^ "° 3 • 
will of personal property within their own jurisdiction : and thus the 
personal property, British and foreign, of a British subject may be dis- 
tributable according to two distinct laws (n) . Therefore] , Suggestions 
the necessity of conforming in the testamentary act to the as to wills of 
law of the ultimate domicile is still an important doctrine to domiciled 
the numerous British residents in foreign countries ; and abroad. 

(*) Re Rippon, 32 L. J. Prob. 141, 3 Sv,: & Tr. 177; Re Reid, L. R. 1 P. & D. 75. 
This section also excludes the further question whether resumption of the former domicile 
restored the will. Story, Confl. c. xi. s. 473; Williams, Exec. p. 352, n. (h), 6th ed. 

(k) L. E. 1 P. & D. 673. 

(0 Vide post, Ch. VI., Sect. 4. ^. „^ 

(m) Including subjects bv naturalization, Re Gallv, 1 P. D. 438; EeLacroix, 2 P Div. 94. 

(re) See Sug. R. P. S. 405-6 : being the very [result which the rule mobilia se^uurdur per- 
sonam was established to prevent. 1 H. L. Ca. 15.] 



*9 BY WHAT LOCAL LAW 

it appears that the circumstance of the contents of the will indicating 
that the testator contemplated returning to England (but which inten- 
tion he never executed (o),) [or even an express declaration that he 
intends to retain his domicile of origin (jo),] is insufficient to exclude 
the law of his domicile ascertained by the facts of the case {q) .^ 

If an Englishman, domiciled abroad, has real estate (including 
*9 *in this definition property held by him for terms of years) in 
his native country, and also personal property there or else- 
where, he ought to make two wills, one devising his English lands, 
duly framed and executed for that purpose according to the forms of 
the English lavF, and the other bequeathing, if permitted, his personal 
(or rather his movable) estate conformably to the foreign law. Wills 
made under such circumstances require more than ordinary care, in 
order to avoid some perplexing questions arising out of the conflict in 
the laws governing the real and personal property respectivelj'' (r) . 

Such questions may arise, and indeed have most frequently arisen, 
As to Scot- ^1 regard to the property of Englishmen domiciled in Scot- 
land, land, or of Scotchmen domiciled in England ; the law of suc- 
cession and testamentary disposition being, in some respects, different 
in these two sections of the United Kingdom (s) . Thus, in Balfour v. 
Scott (/), where a person domiciled in England died intestate, leaving 
real estate in Scotland, the heir was one of the next of kin, and claimed 
a share of the personal estate. To this claim it was objected, that, by 
the law of Scotland, the heir cannot share in the personal propertj' with 
the other next of kin, except on condition of collating the real estate ; 
that is, bringing it into a mass with the personal estate, to form one 
common subject of division («) . It was determined, however, that he 
was entitled to take his share without complying with that obligation, 
the case being regulated as to the movable property by the English law. 

In Drummond v. Drummond (a:) a person domiciled in England had 
real estate in Scotland, upon which he granted a heritable bond to 
secure a debt contracted in England. He died intestate ; and the 

(o) Stanley ». Bernes, 3 Hagg. 375. 

[(p) Ee Steer, 3 H. & N. 594?) 

(o) As to the animus revertendi, see also Bruce v. Bruce, 2 B. & P. 229, n. 

(r) See Brodie v. Barry, 2 T. & B. 130. 

Is) In Scotland there [was formerly] no direct power of disposing of real estate by will, 
but if there was a conveyance previously executed according to the proper feudal forms, the 
party might by will declare the use and trust to which it should inure. Per Sir W. Grant, 
in Brodie v. Barry, 2 V. & B. 132. [But by 31 & 32 Vict. c. 101, s. 20, land in Scot- 
land may now be disposed of directly bv will.] Where a domiciled Scotchman dies intestate, 
leaving infant children, and possessed of property in Scotland and England, the Court of 
Session, it seems, appoints a factor to tlie children, to whom the English court grants 
administration. (Re Johnston, 4 Hagg. 182.) 

(() Stated in Somerville v. Lord Somerville, 5 Ves. 750, and cited 2 V. & B. 131; [and 
see Allen v. Anderson, 5 Hare, 163.] 

(u) Ersk. Inst. Law of Scotland, 701, 5th ed. 

(a;) Cit. 2 V. & B. 132. 

1 If a party die initinere from one domi- icile. State v. Hallett, 8 Ala. 150; Story, 
cile to another, his property will be distrib- Confl. Laws, § 481 n, hi note. See Monroe v. 
uted according to the law of the former dom- Douglas, 5 Madd. 379. 

10 



WILLS ARE REGULATED. *11 

question was, by which of the estates this debt was to be borne ? It was 
clear that, by the English law, the personal estate was the primary 
fund for the payment * of debts. It was equally clear that by the *10 
law of Scotland, the real estate was the primary fund for the pay- 
ment of the heritable bond. It was said for the heir, that the personal 
estate must be distributed according to the law of England, and must 
bear all the burdens to which it is by that law subject. On the other 
hand, it was contended that the real estate must go according to the law 
of Scotland, and bear all the burdens to which it is by that law subject. 
It was determined that the law of Scotland should prevail, and that the 
real estate must bear the burden (x) . , 

Speaking of these two cases. Sir W'm. Grant has observed (y) — 

" In the first case, the disability of the heir did not follow him to 
England ; and the personal estate was distributed as if both the domi- 
cile and the real estate had been in England. In the second, the disa- 
bility to claim exoneration out of the personalty did follow him into 
England ; and the personal estate was distributed as if both the domi- 
cile and the real estate had been in Scotland." ^ 

[But by the law of Scotland, as of England, real estate is only a 
subsidiary fund for the payment of movable debts ; and if the Scotch 
heir of a domiciled Englishman has paid them, the law of the domicile 
allows him to recover against the personal estate (2;). Conversely, 
English rules of marshalling in favor of legatees will not be applied so 
as to throw on Scotch real estate debts of a domiciled Englishman, to 
which it could not be made liable by the lex loci («) . 

In all these cases the claim of the Scotch heir to exoneration or his 
liability to be charged was enforced by English courts in distributing 
the personal estate only where the laws of both countries agreed in con- 
ceding the claim or imposing the charge. 

Even before Lord Kingsdown's Act a will of personalty made under 
a power formed an exception to the general rule, moUlia ^jh ^^^^^^ g^ 
seauuntur personam ; for if executed in the particular power is not 

form * required by the power, it was, as it will still be, *11 fex domicilii. 
good without reference to the testator's foreign domi- 
cile, because the appointee takes, not under the instrument exercising, but 
under the instrument creating the power (5) ; and the latter instrument is 

[(k) But an express direction by a testator domiciled in England for payment of all his 
debts out of a specified fund will include the heritable bond, Maxwell v. Maxwell, L. E. 
4 H. L. 606. Locke King's Acts (post, Ch. XL VI.) do not extend to Scotland. A herita- 
ble bond will not pass by an English will; Jemingham v. Herbert, 4 Euss. 388; but where 
there is an English security, and the debt is further secured by a Scotch heritable bond, the 
debt will pass bv an English will ; Buccleugh v. Hoare, 4 Mad. 467 ; Oust v. Goring, 18 
Beav. 383. See" further, as to the nature of heritable bonds, Bell's Commentaries on the 
Laws of Scotland, 206 ; Ersk. Inst. 194.] 

(y) 2 V. & B. 132. , [(z) Earl of Winchelseao. Garetty, 2 Keen, 293. 

(a) Harrison «. Harrison, L. R. 8 Ch. 342. „„,„„.„„ t 

(6) Tafnall v. Hankey, 2 Moo. P. C. C. 342 ; Ee Alexander, 1 Sw. & Tr. 454, n., 29 L. 
J. Prob. 93; Ee Hallyburton, L. E. 1 P. & D. 90. 

1 See Story, Confl. Laws, §§ 485-489. 
11 



*12 BY WHAT LOCAL LAW 

to be construed according to the law of the place where it is executed, 
'if it deals with movables, and according to the lex loci rei sitce if with 
immovables (c) . However, in D'Huart v. Harkness, (rf) , where, by an 
English instrument, power was given to appoint a money fund ' ' by will 
duly executed," it was held that tMs did not mean any one particular 
form of will recognized by the law of this country, but any will entitled 
to probate here, and that the will of the donee, having been admitted 
to probate, was, therefore, a good exercise of the power. Thus it came 
back to trying the validity of the will by the law of the testatrix's 
domicile (e) . She was domiciled abroad, and her will conformed to the 
law of her domicile. If she had b^en domiciled here, the will would not 
have been a valid appointment (/) . But if a power requires a will 
to be executed in a particular form, a will executed in that form may 
be a valid appointment, though not executed according to the law of 
the domicile (g). 

Another exception to the general rule exists where by treaty between 
nor where this country and the country of domicile it is agreed that the 
treafy to^the English law shall prevail. Thus subjects of the Ottoman 
contrary. Empire Cannot dispose of their property by will, but by 
treatj' English subjects domiciled there are allowed to do so, and their 
wills must be executed according to the English law (h) . 

A statement of some of the more important rules for ascertaining the 
Domicile how domicile of a testator or intestate, and a reference to some 
ascertained, of ^\^g, gases of most frequent occurrence, may here be 
Domicile of made (i) . The law attributes to everj"^ one as soon as 

origin #12 he is * bom the domicile of his father if he be legiti- 

mate, and the domicile of the mother if illegitimate. 
— of choice. This is the domicile of origin, and is involuntary. Other 
domiciles, including domicile by operation of law, as on marriage, are 
domiciles of choice. For, as soon as an individual is sui juris, it is com- 
petent to him to elect and assume another domicile, the continuance of 
. which depends upon his will and act. When another domicile 

RpPutTPTicft Or 

domicile of is put on, the domicile of origin is for that purpose relin- 
ongin. qmshed, and remains in abeyance during the continuance of 

(c) story, Confl. c. viii. ; 3 Burge, pt. 2, c. 20. 

(d) 34 Beav. 324 (case before Lord ICingsdown's Act). 

(c) It is presumed that the will was proved in the ordinarj' way, and not merely on an 
allegation that it was in execution of a power (Barnes v. Vincent, 5 Moo. P. C. 201). The 
latter proceeding would have decided nothing, and would have given the Court of Construc- 
tion no ground on which to build its argument. Vide post, Ch. II. 

(/■) Re Daly's Settlement, 25 Beav. 456. (g) Per Eomillv, M. E., 34 Beav. 328. 

(h) Maltass v. Maltass, 3 Curt. 234, I'Rob. 67, 7 Jur. 135, 8 J'ur. 860, 2 No. Cas. 33, 3 No. 
Cas. 257. 

(»■) See Lord Westbury's judgment, Udny v. Udny, L. E. 1 H. L.^Sc. 441. By stat. 24 & 
25 Vict. c. 121, rules are made for determining the question of 'domicile as between this 
country and any other witli which the sovereign may have entered into a convention for 
that purpose. As to the operation of this act see Sugd. E. P. S j. 405. 

Domicile is distinct from allegiance or nationality, per Lord Westbury, L. R. 1 H. L. So. 
459; Brunei v. Brunei, L. E. 12 Eq. 298. 

12 



"WILLS AKE EEGULATED, *12 

[the domicile of choice, but it revives and exists whenever there is no 
other domicile (as when the domicile of choice is in fact abandoned (k) 
with the intention of never returning), and it does not require to be 
regained or reconstituted animo et facto in the manner which is neces- 
sary for the acquisition of a domicile of choice {l) . Domicile of choice 
is constituted by residence freely chosen and intended to continue for a 
non-limited period ; and length of residence is a most important ingre- 
dient from which to infer the animus manendi {m).'\ 

Where an Englishman or Scotchman divides his time about equally 
between the two countries, the actual domicile is sometimes Divided 
difficult to be ascertained, from the absence of preponder- residence. 
ating evidence in favor of either.^ Such was the case of Lord Somer- 
ville (ra) , a Scotchman by birth and extraction, originally domiciled in 
Scotland, who [was elected a representative peer for Scotland] took a 
house in London, and lived there half the year, the remainder of which 
he spent in Scotland, where he still had an establishment : he died at 
his house in London. Sir R. P. Arden, M. R., after an elaborate argu- 
ment, held that the original domicile remained unchanged, and, conse- 
quently, the succession to the personal property of the deceased noble- 
man (who had died intestate) was to be governed by the law of 
Scotland. The argument in favor of the EngHsh domicile was urged 

(J!;) The intention without the act of abandonment is insufficient, Re Eaffenell, 3 Sw. & Tr. 
49, 32 L. J. Prob. 203. 

(Z) King 1-. Foxwell, 3 Ch. D. 518. 

{m) Cockrell V. Cockrell, 25 L. J. Ch. 732; Doucet v. Geoghegan, 9 Ch. D. 441.J 

(re) 5 Ves. 750, [and see Forbes si. Forbes, Kay, 353. The duties of an English peer aa 
such do not prevent his acquiring a foreign domicile, Hamilton, t). Dallas, 1 Ch. D. 257. For 
the purposes of succession a man cannot have more than one domicile. lb. 

1 The question of a person's domicile or domicile. Somerville i). Somerville, 5 Ves. 
place of abode is a question of fact. It is 750. See Harvard College v. Gore, 5 Pick, 
in hiost cases easily determined by a few 372, 373. Two things must concur to consti- 
decisive facts; but cases may be 'readily tute a domicile ; first, residence ; and, second- 
conceived where the circumstances tending ly, the intention to make it the home of the 
to fix the domicile are so nearly balanced party. Harvard College v. Gore, supra. See 
that a slight matter will turn" the scale. Jeniiison t). Hapgood, 10 Pick. 77 ; Hallowell 
There are certain well-settled maxims on e. Saco, 5 Greenl. 143; Casey's case, 1 Ash- 
this subject. These are, that every person mead, 126; Greene v. Windham, 13 Me. 225, 
has a domicile somewhere ; and no person 228 ; Gorham v. Springfield, 21 ib. 58 ; State 
can have more than one domicile for one ji. Hallett, 8 Ala. 159. Actual residence is not 
and the same purpose at the same time, necessary to retain a domicile once acquired. 
It follows from these maxims that a man It is retained bj' the mere intention not to 
retains his domicile of origin till he changes change it. Ib. Sackett's case, 1 Mass. 58; 
it by acquiring another; and so each sue- Abington d. Boston, 4 Mass. 312 ; Granby ». 
cessive domicile continues until changed by Amherst, 7 Mass. 1 ; Lincoln v. Hapgood, 11 
acquiring another. And it is equally obvi- Mass. 350; Sears «. City 6f Boston, 1 Met. 
ous that the acquisition of a new domicile 250; Bradley v. Lowry, supra; Thorndike v. 
does, at the same instant, -terminate the old City of Boston, supra; Know v. Waldo- 
one. Opinion of the Judges at the Supreme borough, 3 Greenl. 455 ; Waterborough v. 
Court of Massachusetts, in Supplement to 5 Newfield, 8 ib. 203, 205 ; Shattuck «. May- 
Met. 588, 589. See Abington v. North Bridge- nard, 3 N. H. 123 ; Cadwalader k. Howell, 3 
water, 23 Pick. 170; Thorndike 1). City of Harrison, 138. In regard to the subject of 
Boston, 1 Met. 242 ; Kilburn u. Bennett, 3 Met. domicile, see Story, Confl. Laws, ch. 3,^39, 
199; Moore v. Wilkins, 10 N. H. 455, 456; et seq. ; 2 Williams, Executors (6th Am. ed.), 
Greene v. Greene, 11 Pick. 411, 416; Waike 1516 et seq., and notes; Somerville t'.Somer. 
V. Bank of Circleville, 15 Ohio, 288, 289; ville, 5 Ves. (Sumner's ed.) 760, and notes; 
Bradley v. Lowiy, 1 Speers, Eq. 3, 15; In Greene v. Greene, 11 Pick. 410; Craigie » 
re Roberts's Will, 8 Paige, 519. The mere Lewin, 4 Curteis, 435. 



place of birth or death does not constitute the 



13 



*14 BY WHAT LOCAL LAW 

on behalf of the relations of the half-blood, whom the law of Scot- 
*13 land excluded. Had the deceased nobleman had no * original 
domicile in either of the two countries which in his later life he 
alternately made his home, the difficulty of applying the principle adopted 
by the M. K. as the ground of his decision would have been greatly 
increased ; in such a case the question would be, whether this state of 
things did not let in the original (z. e., in the case supposed, the foreign) 
domicile. [In cases of residence equally divided between two places, 
it has been said that the wife's constant residence in one of them is 
strong evidence of animus in favor of domicile in that place (o) .] 

'' The question of domicile," said Lord Loughborough, in the case of 
Bempde v. Johnstone (p) , ^^ prima facte, is much more a question of fact 
than of law.' The actual place where a person is, is prima facie, to a 
great many purposes, his domicile. You encounter that, if you show 
it is either constrained,^ or from the necessity of his aifairs, or transi- 
tory, that he is a sojourner, and you take from it aU character of per- 
manency. If, on the contrarj', you show that the place of his residence 
is the seat of his fortune, or the place of his birth, upon which I lay the 
least stress ; but, if the place of his education, where he acquired all 
his early habits, friends and connections, and all the links that attach 
him to society are found there ; if you add to that, that he had no 
other fixed residence upon an establishment of his own, you answer the 
question." ' 

[If the residence is " constrained" by external necessity, as by the 
duties of military or naval service (q) ; or of a temporary 
necessity, political (r) or judicial (s) office ; by imprisonment (i) , or 
— inpuWio by flight from civil commotion or revolution (m) ; it 

' ' *14l wiU not confer * a domicile. So, neither an ambassa- 
dor (a;) , nor a consul (y) , loses his original domicile by residence in the 
foreign country where he is accredited. But if a consul engage in 

Uo) Forbes v. Forbes, Kav, 364. But see per Wickens, V. C, Douglas v. Douglas, L. E. 
12 Eq. 647.1 

(») 3 Ves. 201 [Udny v. Udny, sup.; Sterenson v. Masson, L. R. 17 Eq. 78. 

(o) Fhillim. Domicile, p. 79. Fersons entering the military service of a foreign state 
acquire the domicile of that state. lb. Where, as in the United Kingdom, iifferent laws 
prevail in different parts, a domicile in one, as Jersey or Scotland, is not altered by enter- 
ing the military or naval service of the kingdom. Be Patten, 6 Jur. N. S. 151; Brown v. 
Smith, 15 Beav. 444. But service under the East India Company gave an Indian domicile, 
Bruce v. Bruce, 2 B. & P. 229 ; Forbes v. Forbes, Kay, 356. However, with a few immaterial 
differences, the stat. 1 Vict. c. 26, was made law in India by an act of council, No. 25, a. r>. 
1838, and applies to all wills made on or after 1st February, 1839. And by the Indian Suc- 
cession Act {Act X.), 1865, succession to immovable property in India is regulated by the 
law of India ; that to movables by the law of the domicile. See Macdonald v. Macdonald, 
L. E. 14 Eq. 60. 

{r) Att.-Gen. V. Pottinger, 6 H. & N. 733, 747, Governor of the Cape and of Madras. 

(«) Att.-Gen. v. Eowe, 1 H. & C. 31, Chief Justice of Ceylon. 

(O Fhillim. Domicile, p. 87. («) De Bonneval v. De Bonneval, 1 Curt. 856. 

(x) Story, Confl. s. 48; Phillim. Dom. p. 79. 

ly) Sharpe v. Crispin, L. E. 1 P. & D. 611. 

1 Opinion of the Judges of the Supreme ^ See Grant v. Dalliber, 11 Conn. 234, 238. 

Judicial Court of Massachusetts in Supple- 8 gee the note of Mr. Chancellor Kent on 

ment to 5 Met. 588. this subject, 2 Kent, 430. 

14 



WILLS ARE EBGtTLATBD. *15 

trade there, his character of consul is, for some purposes at least, 
merged in that of merchant («). And if, being already domiciled 
in a foreign countrj', a man be appointed by his own sovereign am- 
bassador (a) or consul (5) in that country, his original domicile is 
not thereby restored quoad succession to personal property. On the 
other hand, a life employment abroad in the pubhc service alters the 
domicile (c). 

One who settles as a trader in a foreign country will thereby com- 
monly acquire a domicile in that country (rf) ; nor is the —as trader. 
contrary to be inferred merely because, being a British subject, he has 
the benefit of treaties which, without making special provision for testa- 
mentary questions (e) , secure to him certain immunities and privileges, 
and because he invariably acts and regards himself as an Englishman (/) . 
Nor wiU his being an officer in the British service on half- officer on 
pay, and ( in order to retain his paj' ) requiring and obtain- talf-pay. 
ing leave of absence (gr), nor being an officer on unlimiited furlough, 
subject to a positive obligation to return to duty when ordered (A), 
prevent his acquiring a domicile other than British ; though such an 
obUgation would be strong to rebut any presumption that a domicile 
was contemplated in a foreign country where the obligation cquld ncc 
be enforced, for an intention contrary to duty is not to be presumed (i). 

Residence in any place for health's sake is of dubious import ; and 
further manifestation of intention is requisite before such J^^'^^Ym 
residence can be assumed to be permanent (^).J sake. 

* It has been made a question, whether infant children, *15 

who, after the death of the father, remain under the care of Domicile of 
their mother, follow the domicile which she may from time to children, 
time acquire, or retain that which their father had at his death, until 
they are capable of gaining one by acts of their own. The weight of 
authority in such cases seems to be in favor of the mother's domicile ; 
and, therefore, where an Englishman, domiciled in Guernsey, died 
there, and the widow came to and took up her residence in England, 
bringing her children with her ; it was held that the succession to the 

(z) Phillim. Domicile, pp. 124, 125. By the rules of their service British Consuls are 
forbidden to take part in mercantile affairs. Sharpe v. Crispin, L. R. 1 P. & D. 617. 
(o) Heath », Sampson, 14 Beav. 441; Att.-Gen. v. Kent, 1 H. & C. 12. 
(4) Sharpe v. Crispin, L. R. 1 P. & D. 611. 

(c) Commissioners of Inland Revenue v. Gordon's Executors, 12 Cas. Court Sess. 657. 
The cases decided on service with the East India Company, sup. n. (}), are to the Mke 

(d) Cockrell v. Cockrell, 2 Jur. N. S. 727; 25 L. J. Ch. 730; Allardice v. Onslow, 12 
W. R. 397; Doucet v. Geoghegan, 9 Ch. D. 441. 

(e) Maltass v. Maltass, 3 Curt. 231, 1 Rob. 67, 7 Jur. 135, 8 Jur. 860, 2 No. Cas. 33, 3 
TSo, Cas. 257. 

(/) Moore v. Budd, 4 Hagg. 346. 

Ig) Cockrell v. Cockrell, 25 L. J. Cii. 730. See also Commissioners of Inland Revenue 
». Gordon's Executors, 12 Cas. Court Sess. 657. 

(A) Att.-Gen. v. Pottinger, 6 H. & N. 733, 747; Forbes v. Forbes, Kay, 359. Secus, it the 
furlough be for a limited period; Craigie v. Lewin, 3 Curt. 435, 7 Jur. 519, 2 No. Cas. 185. 

(j) Hodgson V. De Beauchesne, 12 Moo. P. C. C. 285. 

to See Hoskins v. Matthews. 8 D. M. & G. 13; and per Wood, V. C, Kay, 367.] 

15 



*15 BY WHAT LOCAL LAW WILLS ABE BBGULATED. 

personal property of two of her children, who died there at an early 
age, was to be governed by the law of England, there being no gi'ound 
to impute the removal to fraudulent intention (l) .^ 

(I) Pottinger v. Wightman, 3 Mer. 67 ; but see Story, s. 46. [The general rule is well 
known that infants and married women cannot change their domicile hy their own acts. 
See Kay, 353, Robins v. Dolphin, 1 Sw. & Tr. 37, in D. P. 29 L. J. Prob. 11; Ee Daly's 
Settlement, 25 Beav. 456 ; Yelverton ». Yelverton, 29 L. J. Matr. 34. So in the caSe of one 
lunatic from infancy, Sharpe v. Crispin, L. R. 1 P. & D. 611. But the scope of this treatise 
does not admit of a full exposition of the law of domicile; this will be found in books 
specially devoted to the subject; and see Hayes & Jarman, Cone. Forms of Wills, p. B43, 
8th ed. by Dunning.] 

1 See 2 Macpherson, Infants (Lond. ed. Pick. 20; Leeds v. Freeport, 1 Fairf. 356; 

1842), 678, 579; Story, Confl. Laws, § 46. 2 Kent, 227, note. See Upton v. North- 

Whether a minor can gain a new domicile bridge, 15 Mass. 239; Ciitts v. Haskins, 9 

with the consent of his father, who does not Mass. 543 ; Buckland v. Charlemont, 3 Pick, 

change his own, see 2 Macpherson, supra; 173; Guier v. O'Daniel, 1 Binn. 349, note; 

Story, Confl. Laws, note. The domicile of a Story, Confl. Laws, 46, note. But the domi- 

minor or of a person non compos mentis, under cile of a guardian was held not necessary to 

guardianship may be changed by the direc- , be the domicile of his minor ward, in School 

tion or with the assent of the guardian, ex- Directors v. James, 2 Watts & S. 568. See 2 

press or implied. Holyoke v. Haskins, 5 Kent, 227, in note. 

16 



FORM AND CHAEACTEEISTICS OP THE INSTRUMENT. *1T 



CHAPTER II. 

FORM AND CHARACTERISTICS OF THE INSTRUMENT. 

A WILL is an instrument by which a person makes a disposition (a) 
of his property, to take effect after his decease, and which Ambulatory 
is in its own jiaiure ambulatory and revocable during his life.-' wills. 
It is this ambulatory quality which forms the characteristic of wills ; for, 
though a disposition by deed may postpone the possession or enjoyment, 
or even the vesting, until the death of the disposing party, yet the 
postponement is, in such case, produced by the express terms, and 
does not result from the nature of the instrument. Thus, if a man, by 
deed, limit lands to the use of himself for life, with remainder to the 
use of A. in fee, the effect upon the usufructuary enjoyment is pre- 
cisely the same as if he should, hy his wUl, make an immediate devise 
of such lands to A. in fee ; and yet the case fully illustrates the dis- 
tinction in question. ; for, in the former instance, A., immediately on the 
execution of the deed, becomes entitled to a remainder in fee, though 
it is not to take effect in possession until the decease of the settlor, 
while, in the latter, he would take no interest whatever until the de- 
cease of the testator should have called the instrument into operation. 

[A will may be made so as to take effect only on a contingency, and 
if the contingency does not happen, the will ought not to Contingent 
be admitted to probate (6).^ The contingency will gener- ■>^'^'^- 
ally attach to every part of the will, e.g. to a clause revoking former 
wills (c) . But a codicil in other respects contingent will be admitted 
to probate if it expressly confirms the will, for this operates as a re- 
execution of the will {d) . A reference to some impending dan- 
ger is common to most of these cases, *and the question is *17 
whether the possible occurrence of the event is the reason for the 
particular disposition which the testator makes of his property, as where 

[(a) Where one by will said, " I propose to give the residue by codicil, or otherwise to 
let it devolve as if I had died intestate," and he left no codicil, he was held not to have dis- 
posed of the residue, A^ v. Ash, 10 Jur. N. S. 142. 

(b) Parsons i'. Lanoe, 1 Ves. 190, 1 Wils. 243; Sinclair v. Hone, 6 Ves. 607. 

(c) Re Hugo, 2 P. D. 73. (d) Ee Da Silva, 30 L. J. Prob. 171. 

1 Brown v. Betts, 9 Cow. 208. The term tinct writing revoking awill, when duly exe- 

includes every kind of testamentary act cuted, is itself a will. Bayley v. Bailey, 

emanating from a sound mind and mj(nifested supra. 

by writing (Bayley v. Bailey, 5 Cush. 245) 2 Warner v. M'Donald, 2 Har. & .1. 346; 

or by nuncupation. Slocomb v. Slocomb, 13 Todd's Will. 2 Watts & S. 145; Dougherty v. 

Allen, 38. It follows that a separate and dis- Dougherty, i Met. (Ky .) 25 ; Vol. 2, p. 2, n. 

VOL. I. 2 17 



*18 FOEM AND CHAEACTEEISTICS 

he says, ' ' Should anything happen to me on mj' passage to "W. , I leave," 
&e. (e) ; or only the reason for making a will, as where he says, " In case 
of accident, being about to travel by railway, I bequeath," &e. (/). A 
will may also be made contingent on the assent of another person (g) . 
A will intended to take effect as an exercise of a power, is not neces- 
sarily conditional on the existence of the power, if the testator has an 
interest independent of the power (/;), or a power not expressly referred 
to (i) , sufficient to support the disposition : for, if an intention appears 
to dispose of the property, it matters not that the testator mistook the 
origin or nature ol' his dispositive power. 

' Where the will is, in terms, clearlj' contingent, and the contingency 
has failed, the will cannot, either as to real estate {k), or, since 1 Vict. 
c. 26, as to personal estate (Z), be set up but by some act amounting 
to a re-execution of it (m) . Without some such act it is a nullity, and 
a previous will stands unrevoked (n). When on the death of the tes- 
tator the event is still in suspense, general probate will be granted at 
once (o). Of course, the question still remains open what effect the 
will is to have. 
Two or more persons may make a joint will, which, if property exe- 
cuted by each, is, so far as his own property is concerned, 
as much his will, and is as well entitled to probate upon the 

death of each, as if he had made a separate will (p) . But a 
*18 joint will made by two persons, to take effect after the * death of 

both, will not be admitted to probate during the hfe of either (q) .^ 

(e) Roberts v. Roberts, I Sw. & Tr. 337, 3t L. J. Prob. 46; Re Porter, L. E. 2 P. & D. 
22; Ke Robinson, ib. 171; Lindsav v. Lindsay, ib. 459; Re Hucio, 2 P. D. 73. 

( /■) Re Thome, 4 Sw. & Tr. 36, 34 L. J. Prob. 131 ; Re Dobson, L. R. 1 P. & D. 88 ; Re 
Martin, ib. 380. (g) Re Smith. L. R. 1 P. & D. 717. 

- {h) Southall V. Jones. 1 Sw. & Tr. 298, 28 L. J. Prob. 112, 30 Beav. 187; Sing v. Leslie, 
2 H. & M. 68. (i) Re Wilmnt, 29 Beav. 644; Bruce v. Bruce, L. E. 11 Eq. 371. 

(i) Larsons V. Lanoe, 1 Ves. 190, 1 Wils. 243. 

ll) Roberts v. Roberts, supra; Re Winh, 2 Sw. & Tr. 147. Secus, before 1 Vict.c. 26. Bur- 
ton ». CoUingwood, 4 Hagg. 176; Sti<iuss v. Schmidt, 3 Phillim. 209. 

(m) Re Cawthron, 33 L. J. Prob. 23. (n) Re Robinson, L. R. 2 P. & D. 171. 

(o) Re Cooper, 1 Deane, Eccl. R. 9. It is presumed, though it is not so stated in the re- 
port, that the children were minors. See also Re Bangham, 1 P. D. 429. 

(p) Be Stracey, 1 Deane, Eccl. R. 6, 1 Jur. N. S. 1177. 

Iq) Re Eaine, 1 Sw. & Tr. 144. 

' 1 The text scarcely discloses tbe difBcul- dent's part of the compact; but it was not a 

ties which the coui'ts have found in the con- will, because it was irrevocable by any one 

sideration of joint wills. In Darlington v. of the testators. In this case of " Hobson ». 

PuUeney, 1 Cowp. 260, 268, Lord Mansfield Blackburn, the joint will had previously been 

observed that there could not be a joint probated on the death of one of the three tes- 

will; but whether he meant this as an abso- talors as to his estate. Then, on the death of 

lute proposition of law, or as an assertion one of the survivors, a separate will of that 

merely that a joint will would not accomplish party was offered by donees under it, while 

the requirement of the power of which he was one of the executors of the original will of- 

speaking, or something else, is not clear. fered that ^vill for probate as to the estate of 

Howeve'i-, Sir .John NichoU declared in Hob- this second decedent. The separate will was 

son V. Blackburn, 1 Addams, 274, upon an in effect a revocation of the testator's dis- 

offer to make probate of a joint will, that he position of property in the joint testament, 

must reject the offer on the gi-ouud that such tfpon these two authorities, probate of a joint 

an instrument was unknown to the testamen- will was refused in Clayton v. Liverman, 2 

tarj' law of England. It might be valid in Dev. & B. 658, Daniel,' J., dissenting. On 

equity to the extent of making the devisees the other hand, probate as to one of two 

of the will trustees for performing the dece- parties to a joint will was admitted in Eng- 

18 



OF THE INSTRUMENT. 



•^18 



If a testator makes separate wills of separate parts of Ms property, 



land in In re Stracey, 1 Deane & S. 6, the 
case of Hobson v. filackburn, supr.i, being 
thought (for reasons not stated) distinguish- 
able. And see Denvssen v. Mostevt, L. R. 
4 P. C. 236 ; S. C." 8 Moore, P. C. N. S. 
502, as to the law prevailing in the Cape of 
Good Hope. It has been held in iVXaine that 
a will made and executed jointly by hnsband 
and wife, devising estate of which the hus- 
band was sole owner, might on his death be 
probated as the will of the husband alone. 
Rogers, Appellant, 2 Fairf. 303. This was 
put upon the ground that the wife was amere 
cipher in the transaction; and the expres- 
sion above mentioned of Lord Mansfield was 
referred to as merely implying that a will 
could not operate jKiftrfy. The instant, it was 
said, that either testator died, the principle of 
joint ownership, if that existed, was termi- 
nated. At this point, a distinction begins to 
appear between a joint and a mutual will ; a 
distinction sufficiently vague and unsatisfac- 
tory. It is laid down in Lewis v- Scotield, 26 
Conn. 452, that, though the instrument in 
point of form be joint, yet, if it only dispose 
of the estate of the one who may die first, its 
legal operation is the same as if each had 
made a separate will disposing of the estate 
of each to the other in case of that other sur- 
viving. Such a case was deemed different 
from that of an attempt to dispose of a joint 
estate to some third party, becoming opera- 
tive only upon the death of both. The dis- 
tinction made in Lewis v. Scofield, and 
equally applicable to Evans v. Smith, 23 Ga. 
98, was followed in Walker v. Walker, 14 
Ohio St. 1.57;, and it was there held that 
where separate owners (husband and wife) of 
property assumed by will to treat the same 
as a joint fund, and to dispose of it to third 
persons, the instrument could not be admit- 
ted to probate, either as the joint will of both 
parties or a,s the separate ^^■ill of either. The 
same distinction was taken in Schumaker 
V. Schmidt, 44 Ala. 454, in favor of a will 
of two persons, disposing of the sepai'ate 
property of each testator in favor of the 
other; the instrument being treated as the 
separate will of the first decedent and revo- 
cable like other wills. See Diez's Will, 50 
N. Y. 83. This supposes that no contract 
has been made between the parties of which 
the will is an execution. To this extent, 
the law appears- to be settled. But other 
cases do not stop here. In Ex parte Day, 
1 Bradf. 476, it ,was held that a mutual 
or conjoint will might be admitted to pro- 
bate; and this, too, though it was irrevo- 
cable as a contract (" compact " is the word 
started by Sir .John NichoU in Hobson v. 
Blackburn, and adopted by all the judges 
since); for it would still be revocable as a 
will by either, on notice, during the com- 
mon life of the testators. Alter the death of 
either, it would bo binding upon the other, 
pufour V. Pereira, 2 Harg. Jurid. Arg. 304; 
S. C. 1 Dick. 419. But see amtra as to the 
right of either to revoke (except as to him- 
self) without the act of the other in the case 

19 



of a will by husband and wife executed un- 
der authority of a power, Breathitt v. Whit- 
taker, 8 B. Mon. 530, 534 The attempted 
distinction between joint and mutual wills, 
by which if the will only professes to dispose 
of the estate of the one joint testator in favor 
of the other, without any valid contract for 
the purpose, the testamentary provision is 
good and may be probated as a will, and if it 
attempts to "make a disposition in favor of 
others, or is based upon a valid contract, the 
provision is not good as a will, has little to 
commend itself to favor. In either case, there 
must have been a contract: the .very idea of 
the arrangement supposes an agreement that 
the one party will execute a will of his prop- 
erty in the particular manner if the other will 
do the like. This is a contract upon a good"" 
consideration. If a will made jointly is good 
as a will, a will made mutually must, there- 
fore, be good as such. The ' fact that the 
property may be wholly or partly given to 
third persons can in reason make no differ- 
ence. No attention was given to such a cir- 
cumstance in In re StraceyJ Deane & S. 6. 
The real difficulty is that to treat a ioiut or a 
mutual will as a testament is to declare that 
a will may be irrevocable; unless it be true 
as above intimated that the joint or mutual 
will mav he revoked by either testator on no- 
tice to the other, a suggestion which will not 
be readily accepted. It appears to be settled | 
that a contract to execute an ordinary will J 
{i. e. not a joint or mutual will), if based/ 
upon a good consideration, is binding upon i 
the death of the party so agreeing, and may I 
be specificall.v enforced against his represeii-) 
tatives. Walpole v. Orford, 3 Ves. Jr. 402;' 
Caton V. Caton, L. R. 1 Ch. 137; S. C. 
L. R. 2 H. L. 127 ; Gould v. Mansfield, 103 
Mass. 408; Bynum v. Bynum, 11 lied. 6.32; 
Anding v. Davis, 38 Miss. 574; Izard v. Mid- 
dleton, 1 Desaus. 116 ; Rivers v. Rivers, 3 
Desaus. 190. Though, if the agreement re- 
late to land, it must be in writing, or there I 
must have been a part performance, to take/ 
the case out of llio Statute of Frauds. Gould' 
V. Mansfield, supra. If then the agreement 
be specifically enforceable against the default- 
ing party's representatives, it would seem 
that it might have been enforceable against 
the party himself during his lifetime; refusal 
or attempted revocation as to that party not 
being ground merely for an action for breach 
of contract. Hence there is here in effect a 
case of an irrevocable will, whether the agree- 
ment be carried out or not. It may then 
be doubted if revocability is so essential to 
the validity of a will as is commonly be- 
lieved. Awill is none the less a ivill because 
it may be based upon a binding contract ; 
and yet the will in such a easels irrevocable, 
as we have just seen (though innocent third 
persons, taking for value from the testator, 
without notice, would no doubt obtain a good ] 
title). If this is true in the case of an ordi- 
nary will, the mere fact of irrevocability 
should not be fatal to a joint or a mutual will. 
Indeed, the doctrine of the revocability of a 



*18 



FORM AND CHAEACTEEISTICS 



Separate 
■wills of sepa- 
rate proper- 
ties. 



Will in pen- 
cil or with 
blanks valid 



they need not all be proved together (r) , unless one incor- 
porates another, as by expressly eonflrraing it («) . 

A will may be written in pencil (f) .■" But where a printed' 
form was filled up partly in ink and partlj' in pencil, and 
the writing in ink made sense with the form without help 
from the writing in pencil, part of which was written over by the ink, 
the ink writing alone was held to be the wUl (m) . A will is not invahd 
by reason of blank spaces having been left in it (a;).] ^ 

The law has not made requisite to the validity of a will, that it should 
Form of assume any particular form, or be couched in language tech- 

wills, nically appropriate to its testamentary character. It is suf- 

ficient that the instrument, however irregular in form or inartificial in 
expression, discloses the intention of the maker respecting the posthu- 
mous destination of his propertj' ; and, if this appear to be the nature 
of its contents, anj' contrary title or designation which he may have 
given to it will be disregarded." 

Thus (y) , a deed-poll, and even an agreement or other instrument 
Instruments between parties, has repeatedly been held to have a testa- 
mentary operation.* As in Hixon v. W3'tham (z) , where A., 
by indenture made between him on the one part, and B. and 
C. of the other part, in consideration of 5Z., bargained and 
sold to them certain lands in trust to sell after his decease, 
and du-ected the money to arise by the sale to be emploj'ed 
in the payment of certain sums therein mentioned, and the 

(r) Re Aster, 1 P. D. 150. 

(s) Re Harris, L. R. 2 P. & D. 83. See further on incorporation, post, Chap. YI. 

(n Bateman v. Pennington, 3 Moo. P. C. C. 223; Kell v. Charmer, 23 Beav. 195 ; and see 
Lucas V. James, 7 Hare, 419. (u) Re Adams. L. R. 2 P. 4: D. 367. 

, (x) Comeby v. Gibbons, 1 Rob 705, 6 No. Cas. 679 ; Re Kirby, 1 Rob. 709, 6 No. Cas. 693.] 

(y) West's case. Mo. 177, pi. 314; Manly v. Lakin, 1 Hagg. 130 ; Re Dunn, ib. 488; Hen- 
derson V. Farbridge, 1 Russ. 479. 
■ (z) 1 Ch. Cas. 248; S. C. Finch, 195. 



in the form 
of 4Eeds, 
agreements, 
&o., held to 
be testa- 
mentary. 
Instrument 
commencing 
as an inden- 



will amounts merely to this, that a will is 
ambulatory during the lifetime of the testa- 
tor, provided he has not bound himself not to 
change it. The mere fact that the surviving 
party of two testators who had made mutual 
and separate wills had in bad faith revoked 
or not executed his will before the death of 
the other will not, it seems, bar him from 
taking under the will of such other ; because 
if there was a valid contract for the surviv- 
or's will, the engagement could have been 
I enforced against his representative had he 
died first, and if there was no valid con- 
tract the revocation or non-execution would 
have been immaterial in any view. Bynum 
». Bynum, 11 Ired. 632. 

1 Myers v. "Vanderbelt, 84 Penn. St. 510. 
It has been held, however, that a will written 
upon a slate cannot be admitted to probate, as 
a written will. Reed v. Woodward, 32 Leg. 
Int. 337. But it has long been settled that, 
where a statute requires the formalitj' of 
writing, printing is a sufficient compliance. 
Schneider v. Norris, 2 M. & S. 286; Temple 



V. Mead, 4 Vt. 536 ; Henshaw v. Foster, 9 
Pick. 312. And, if a portion of the will or 
the whole of it be engraved or lithographed, 
the statute is probably complied with. 1 
Redf. Wills, 166 (4th ed.), referring to 2 
Black. Com. 376, Chittv's notes. 

2 See Soward v. Soward, 1 Duv. 126; 
Tilghman v. Steuart, 4 Har. & J. 156. 

^ Leathers v. Greenacre,, 53 Me. 561; 
Mealing r. Pace, 14 Ga. 590 ; Jacks v. Hen- 
derson, 1 Desaus. 554; Jackson v. Jackson, 
6 Dana, 257 ; Brown v. Shand, 1 M'Cord, 
409; Alli.son v. Allison, 4 Hawks, 141; 
Rohrer v. Stehman, 1 Watts, 442; Wheeler 
V. Durant, 3 Rich. Eq. 452; Symmes v. Ar- 
nold, 10 Ga. 606 ; Means ». Means, 5 Strob. 
167; Ragsdale ». Booker, 2 Strob. Eq. 348; 
Robinson v. Schly, 6 Ga. 515. 

* Milledge v. Lamar, 4 Desaus. 617; Gage 
V. Gage, 12 N. H. 371: Ingram v. Porter, 
4 M'Cord, 198; Thorold f.Tliorold, 1 Phillim. 
1, and cases cited; Singleton v. Bremar, 
4 M'Cord, 12; Symmes v. Arnold, 10 Ga. 
506; Wheeler v. Durant, 3 Rich. Eq. 452. 



20 



OF THE INSTBUMENT. : *19 

rest thereof, and all his personal estate, he gave and be- t"''«.i but 
queathed (for the language was here changed to the first ™u"^ "* * 
person), in favor of certain persons. A. made B. and C. executors 
of his will: and signed, sealed, published, and declared the instrument 
as his will in the presence of several witnesses. The court declared 
this to be a good will. 

So, in Green v. Proude (a) , where, by instrument 
entitled *" Articles of Agreement," made between *19 eStitied^lr- 
A. of the one part, and B. of the other part : it was tj<=l«s of 

agreed between them that A. , being sick in body, gives, &c. ; 
in consideration whereof B. promised to paj' several sums of money. 
The instrument concluded in the ordinary manner of deeds, i.e. "in 
witness whereof the parties have hereunto interchangeably set their 
hands and seals." This instrument was delivered as a deed ; but it 
was held to be testamentary, and as such revocable, and the court 
seems to have been influenced by the circumstance, that the person 
who prepared it was instructed to make a wiU. 

Again, in Peacock v. Monk {b), where A., being about to settle his 
affairs, upon the same day made two instruments ; one he „ ^ ; 

' ^ •' , . ■, -r. Contempora- 

called a deed, by way of agreement between him and B. , neous deed 
and the other he called a will. By the deed he put i,OOOL Zfitebl''^^ 
into the hands of B., to pay to A. himself an annuity for testamen- 
life of 160Z., and afterwards to pay 1,000^. apiece to C. and ''^' 
D. if they survived him, and an annuity of 100/. to E. for life if she sur- 
vived him, the residue to B. There was a proviso, that if the 160?. 
annuity was in arrear, B. should repay the 4,000/. to A. to be placed out 
in the joint names of A. and B. (c). By the will B. was appointed 
executor and made residuary legatee. Lord Hardwicke said, " B. being 
both executor in the will and contractor in the deed, and both instru- 
ments being executed at the same instant (as it must be taken, being 
on the same daj') , it speaks the whole to be a testamentary act. In 
several cases, the nearness of one act to another makes the court take 
them as one ; so that it is a testamentary act, though not strictly so, 
because not revocable" (rf).^ The case of Tomkyns v. Ladbroke {e), 

(a) 3 Keb. 310; S. C. 1 Mod. 117. (b) 1 Ves. 127 ; Belt's Suppl. 82. 

(c) This clause showed that the instrument was designed to operate in tlie donor's lifetime. 
In a much earlier case (Audley's case, 4 Leon. 166), it appears to have been considered as con- 
clusive against the construing of an instrument as a will, that by it an estate was to be taken 
bj' the malcer, " who could not take by his own will." 

(rf) By this observation it should "seem that his Lordship thought that the instnmient 
might be testamentary, for some purposes, but not for others ; [as to which see Doe v. Cross, 8 
Q. B. 714, stated post, p. 26.] (e) 2 Ves. 591. 

1 Any document in existence at the time of Pruiean, 6 Ves. Jr. 565 ; Williams «. Evans, 

the execution of a will may by reference be 1 Cromp. & M. 42; Allen v. Maddock, 11 

incorporated into and become part of the will, Moore, P. C. 427; Burton v. Newbery, L. 

provided the reference is distinct and clearly E. 1 Ch. D. 2-34; Tonnele v. Hall, 4 Comst. 

identifies, or renders capable of identification 145 : Chambers v. McDaniel, 6 Ired. 226 ; 

by extrinsic proof, the document referred to. Johnson v. Clarkson, 3 Rich. Eo. 305; Har- 

B"rown». Clark, 77 N. Y. 369; Habergham vy v. Chouteau, 14 Mo. 587. This is the 

V. Vincent, 2 Ves. Jr. 204, 228; Smart a rule both at common law and in equity ; the 

21 



»20 



POEM AND CHAKACTEEISTICS 



before the same judge, was very similar in its circumstances. A., a 
freeman of London, two daj's before his death, executed a will and a 
deed, by the last of which he assigned 5,000Z., part of his personal 
estate, to trustees, to the separate use of his daughter. Lord Hard- 
wicke held that this was a testamentary act, and, as such, a fraud on 
the custom, which allows a freeman to give awaj- his personal 
*20 estate by act * in extremis, provided he divest himself of all 
propertj' in it ; but not if he reserve to himself a power over it. 
Hogg V. Lashley, decided in D. P. (/) , is confirmatory of the same 
principle ; an instrument, executed in the form of a Scotch settlement 
(for lands in Scotland were not then disposable by will) , but containing 
dispositions intended for the most part to take eifect after the decease 
of the maker, having been by the House adjudged to be testamentary. 

Again, in Habergham v. Vincent (g), where A., by his will dul3- exe- 

Instniment cuted and attested, devised his freehold and copj-hold estates 

to certain uses, with remainder to such persons and for such 

estates as he by any deed or instrument in writing, to be 

, executed by him and attested by two witnesses, should 

By an instrument executed on the following daj-, under the 



in form, of 
deed-poll, 
Leld testa- 
mentary. 

appoint. 

{/) 7th of May, 1792, stated 3 Hagg. 415 n. 

instrument being considered as identified 
with and foi-ming part of tlie will duly exe- 
cuted in the same manner as if it had been 
repeated totidem verbis in the will itself. 
Ferraris v. Hertford, 3 Curteis, 468, 493. But 
the paper must be both distinctly referred to,/ 
and must have been in existence at the time 
of the execution of the -will. Habergham v. 
Vincent, 2Ves. Jr. 204, 228; Ferraris v. 
Hertford, supra ; Wilkinson v. Adam, 1 Ves. 
.& B. 422, 445 ; Von Straubenzee v. Monck, 3 
Swab. & T. 6, 12; Smart v. Pruiean, 6 Ves. 
565; Chambers v. McDanicl, 6 Ired. 226; 
Johnson v. Clarkson, 3 Rich. Eq. 305; Ton- 
nele!!. Hall, 4Corast. 145 : Thayer r. Welling- 
ton. 9 Allen, 283. It is held, in accordance 
with this proposition, that a testator cannot by 
will reserve a power to dispose of an estate at 
a future time by an instrument not executed 
as required bv the statute, so that it may take 
■effect under his will. Thayer v. Wellington, 
9 Allen, 283 ; Larigdon v. Astor, 3 Duer, 477 ; 
S. C. 16 N. Y. 9; Thompson v. Quimby, 2 
Bradf. 449. The reason for this is, not that 
there may not be a sufficient reference to the 
instrument to be executed to identify it, but 
that an attempt is virtually made by the tes- 
tator to express what his will shall be in the 
future ; Habergham v. Vincent and Ferraris 
V. Hertford, supra; and as the will, under 
the statute, must be a good will at the time of 
its execution, making a final disposition then, 
the future document cannot be probated with 
it unless itself executed as a will. Audit 
makes no difference that it can be shown that 
the testator had not changed his mind at the 
time of his death. Indeed the authorities 
have gone further, and declared that the refer- 
ence must be to a document as then existing, 



(S) 2 Ves. Jr. 204, 4B. C. C. 355. 

in order to admit of its incorporation into the 
will; and that if the reference is to a docu- 
ment to be executed, as to furniture which 
*' shall be ticketed or described in a paper in 
my own handwriting," parol evidence will 
not be received to show that the paper was 
already in existence, though its identification 
be perfsctlv clear. In re Sunderland, L. E. 
1 P. & I). 198; Allen v. Haddock, 11 
Moore, P. C. 427, 454. In re Hunt, 2 Robt. 
Eccl. 622, appears to be in conflict with these 
cases. The question there was, whether un- 
executed papers (duly described) "to be an- 
nexed " to the will, but executed afterwards 
before the making of a codicil duly signed 
and attested, which however contained no 
reference to those papers, could be incorpo- 
rated into and probated with the will. No 
decision was known in point, but the papers 
were admitted to probate. In view of the 
later cases, this one is of doubtful authority. 
As to what amounts to a sufficient reference 
and act to incorporate an existing unattested 
instrument into a will, see In re Gill, 
L. R. 2 P. & D. 6; In re Mercer, ib. 91; 
Pollock V. Glassell, 2 Graft. 439; Bailey i). 
Bailev, 7 Jones 44; Zimmerman r. Zimn'ier- 
man.23 Penn. St. 375. And see Grabill v. 
Barr, 5 Penn. St. 441; Wikofl's Appeal, 15 
I'enn. St. 281; Crosby u. Mason, 32 Conn. 
482. As to how far the documrnt (sufficient- 
ly) referred to is incorporated into the will, 
see Tnnnele v. Hall, 4 N. Y. 140, 144; Fesler 
V. Simpson, 68 lud. 83. Tlie case of Thomp- 
son ji Quimby, 2 Bradf. 449, which declares 
that reference can be made only for the pur- 
pose of description, is opposed to the authori- 
ties, and is expressly denied ill Fesler i>. 
Simpson, supra. 



22 



OF THE INSTRUMENT. *21 

hand and seal of the testator, stamped and concluded like a deed, the 
testator recited this power in his will, and then proceeded thus : — 
"Now know j'e, that, by this mj' deed-poll, I do direct and appoint 
that my trustees (naming them) shall imraediatelj- after," &c., convey 
to certain uses, &c. It was held by Lord Loughborough, assisted by 
Wilson and BuUer, JJ., that the second instrument was testamentary. 
Buller, J., said, that the cases had established that an instrument in 
any form, whether a deed-poll or indenture, if the obvious purpose is 
not to take place till after the death of the person making it, shall oper- 
ate as a will. In one of the cases there were express words of imme- 
diate grant, and a consideration to support it as a grant ; but as, upon 
the whole, the intention was that it should have a future operation after 
his death, it was considered as a will.'^ 

The consequence in this case of holding the instrument to be a codicil 
to the will was, that it operated on the copyholds, but not on Remark upon 
the freeholds, for want of an adequate attestation ; the court Habergham 
being decidedly of opinion that a testator could not, bj* a ' 
will attested by three witnesses, reserve to himself a power to dispose 
of freehold estates by an unattested codicil. 

The question, whether an instrument in the form of a deed operated 
as a will, was much discussed in Att.-Gen. v. Jones (h) , Att.-Gen. v. 
where A., by indenture dated March 25, 1813, assigned, Jones. 

* ^VhctliGr 

for a nominal pecuniary consideration, certain lease- property pro- 

hold property to * C. and D. ; also certain stock in *21 tJg^""-'^!^'^ 
the funds, with the dividends which should be due was liable to 

thereon at his decease, the arrears of any pension that might '"^sa^y duty. 
be due to him at his death, and his household furniture, &c., and all 
other his personal estate then belonging to him, or which should belong 
to him at his decease, upon trust for himself for life, and after his 
decease, for B. (an illegitimate daughter). The instrument reserved to 
A. a power of revocation by deed or will. By will, dated April 16, 
1813, A. confirmed the deed except as to certain particulars, which he 
specified, and ai^pointed the same persons as were trustees in the deed 
. executors. A. did not transfer the stock, or part with the possession 
of the assigned propertj^, or even communicate to the trustees the exist- 
ence of the deed, which he retained in his own custody. The question 
was, whether the propertj' assigned by it was liable to the legacy dutjr ; 
and three of the Barons of the Exchequer decided in the affirmative, 

(A) 3 Price, 368. 

1 Allison V. Allison, 4 Hawks, 141; Hall v. Bragg, 28 Ga. 330; Symmea v. 

Wheeler v. Durant, 3 Rich. Eq. 452; Fred- Arnold, 10 Ga. 506; Watkins ii. Dean, 10 

erick's Appeal, 52 Penn. St. 338; Carev ». ^erg. 321. See Walls «. Ward, 2 Swan, 648; 

Dennis, 13 Md. 1; Singleton v. BremaV. 4 Swails v. Bushart, 2 Head, 561; Jackson «. 

M'Covd, 12; Bahb «, Harrison, 9 Rich. Eq. Culpepper, 3 Ga. 569; Jones w. Morgan. 13 Ga. 

]ll;lIillicani-.Millican. 24 Texas, 426; Ste- 515; Move );. Kittrell, 29 Ga. 677 ; Baltimore 

ven^oin). Huddleson, 13iB.Mon.299;Gillham v. Williams, 6 Md. 235 ; Edwards ». Smith, 

». Muptin, 42 Ala. 365; Mosseri). Mosser, 32 35 Miss. 197; Hocker v. Hocker, 4 Gratt. 

Ala. 551; Walker v. Jones, 23 Ala. 448; 277; Lyles v. Lyles, 2 Nott & M'G. 531. 

23 



*22 I"OEM AND CHAEACTEEISTICS 

adverting, in tlie course of very long judgments, to the circumstance that 
the consideration was nominal ; that the trust for the grantor was not 
to receive the dividends merely, but implied a power in him to dispose 
of the property as he should think proper (i) ; that he kept the deed in 
his own possession ; never transferred the stock to the trustees, nor 
invested them with the control of the property, or even informed them 
of it ; that, though the legal estate was in the trustees (for this with singu- 
lar inconsistency was admitted) , the actual ownership remained with the 
grantor ; that the deed professed to grant the propertj' of which the 
maker should be possessed at the time of his decease, which, otherwise 
than as a will, it could not do ; that it contained a power of revocation 
by the most informal instruments ; and, lastly (on which great stress 
was laid), that the will, hj referring to and confirming the deed, 
" threw a testamentary character over the whole." Wood, B., in sup- 
port of his contrary opinion, relied not only on the form of the instru- 
ment, which was perfect as a deed, but on its efiect ; which, he said, 
was to vest the legal estate in the leasehold property in the trustees 
instanter ; and was there, he asked, a case where the estate passed by a 
will in the lifetime of the testator ? He argued, that the confirmation 
of it in the subsequent will made no difference. " Suppose," he said, 
" there had been no power of revocation, would it not have been valid 
as a deed ? and suppose, in that case, the party had made a will, 
*22 * disposing of the property differently, that will would not avail 
against a deed ; but the deed, notwithstanding the alteration 
of the wiU, if he had not reserved the power, would prevail against the 
wiU. That shows it as a deed. If, on the other hand, he had made a 
will, and then another, the second would have been a revocation of the 
first." 

The principle of this decision has been generally condemned : indeed, 
Remarks the reasoning of some of the learned barons seems very in- 
G«n" «^" " conclusive and unsatisfactory. The reliance placed on the 
Jones. power of revocation was especially unfortunate ; for the in- 

sertion of such a clause, so far from indicating an intention to make a 
will, imparts quite a contrary color to the transaction, as a wiU wants 
not an express power to render it revocable. The fact, too, of the 
assignment being extended to all the property of which the grantor 
should happen to be possessed at his decease, shows onlj- that he 
attempted to include what he could not, and not that he meant to resort 
to a different species of disposition. Nor do the arguments founded on 
the retention of the custody of the deed (A) and the possession of the 
property appear to be more convincing ; for, though these circumstances 
are often very important when the claims of creditors and purchasers are 
under consideration, yet it has never been ruled, that in order to render 

(i) It was merely for the use and benefit of A. for life. 

(A) [See Alexander v. Brame, 7 D. M. & G. 530 ; S. C. nom. Jeffries v. Alexander, 8 H. L. 
Ca. 594.1 

24 



0¥ THE INSTEUMBNT. *23 

a settlement binding on the settlor's own representatives the deed must 
be disclosed, and the possession of the property relinquished by him ; 
on the contrary, dispositions of property by a deed taking effect inter 
vii-ns, have often been supported under such circumstances. Still more 
difficult is it to accede to the position, that the reference to the settle- 
ment in the subsequent wUl " threw a testamentary character over the 
whole." Testators frequently refer to, for the purpose of confirming, 
some antecedent disposition of property by deed ; and it has never been 
surmised that such confirmation rendered the instrument referred to 
testamentary. If testamentarj' for one purpose, it must be so for every 
purpose ; and hence we are forced to conclude that if B., the cestui que 
trust, had died in her putative father's lifetime, the property in question 
would have gone, not to her representatives (which if she had died 
intestate and unmarried would have let in the title of the crown) , but 
to those of the settlor, who would necessarily have been entitled, under 
the doctrine of lapse, if the instrument were to be construed as a will ! 

* A similar question arose in Tompson v. Browne (l) , which *23 
was as follows : By an indenture of settlement dated 
August 19, 1823, made between A. of the first part, B. of Browne, 
the second part, C. and D. (natural daughters of A. and B.) Settlement 

/ ^ ' ^ " ' reserving life 

of the third part, and E. and F. of the fourth part, after recit- interest to 
ing that A. was desirous of making some provision for their power 'o7iev- 
chUdren C. and D., and had therefore lately transferred ocation, 
into the joint names of E. and F., the sum of 6,090?. new 4 property was 
per cent. Bank Annuities ; it was then witnessed, that E. ™t I'ab'ie to 
and F. and the survivor, &c., should stand possessed of the 
said stock, upon trust, to permit A. or his assigns to receive the divi- 
dends during his life ; and after his decease, upon trust, to appropriate 
so much of the stock as would produce 80/. per annum, and pay the 
dividends thereof, to B. for her life ; and as to the residue of the stock, 
and also, after the decease of B., as to the appropriated fund, upon 
trust, to transfer the same to C. and D., in equal shares, at the age of 
twentj'-flve or marriage. The settlement contained a power to A. to 
revoke the trusts and appoint any others in lieu thereof. A. and B. 
being both dead, the cestuis que trust claimed a transfer of the fund ; 
and the question raised by the trustees was, whether the instrument was 
not testamentarj', and the fund accordingly subject to legacy duty? 
The affirmative was attempted to be maintained on the authoritj' of 
Att.-Gen. «;. Jones ; but Sir C. C. Pepj's, M. R., decided that the legacy 
diit}' did not attach. "The decision inAtt.-Gen. v. Jones," he said, 
" seems to have proceeded upon the ground that, under the circum- 
stances of that case, nothing passed from the maker of the instrument, 
so as to entitle any other person to interfere with his property in his 
lifetime. If there be anything in that decision to support the notion, that 

{I) 3 My. & K. 32. 
25 



*24 FOEM AND CHAEACTEEISTICS 

where a person hy deed settles 'property to his own use during his life, and 

after his decease, for the benefit of other persons, a power of revocation 

reserved in such a deed alters the character of the instrument, and renders it 

testamentary, and consequently subject to legacy duty, I can only say that if 

this were law, a great number of transactions, of which the validity has 

never been doubted, would be liable to be impeached." 

Although the remarks of the M. R. are expressed with gi'eat caution, 

thej' leave no doubt of his opinion of Att. -Gen. v. Jones [and when that 

case was cited to Lord St. Leonards in D. P. (rn), he said, " That case 

is quite wrong.'' 

*24 * In Majoribanks tJ. Hovenden (ra), an instrument commencing 

. , ^ with a recital, and having an attestation clause, like a deed- 
Instrument , , . 
sealed, poll, and sealed, stamped, and registered, was held by the 

rerisferea*"'^ Same learned Lord not to be invested with a testamentary 
not testa- character by the mere nature of the power (a power to ap- 
"len aiy. poijjt by will, misrecited as a power to appoint by deed or 
will) under which it purported to be made. The fact of registration as 
a deed appears to have been deemed almost conclusive against its testa- 
mentary character.] 

The Probate Court (before which, of course, questions of this kind 

are most frequently agitated) act fullj' up to the principle 

bate Court as which regards as testamentary' anj' instrument that is de- 

to nistru- signed not to take effect until the maker's decease, though 

nients testa- = ' ° 

mentary in assuming the form of a disposition inter vivos ; and more 
substance: especially' if it be incapable of operation in the intended 
form (o) ; and accordinglj', in repeated instances, probate has been 
granted of such irregular documents, as the assignment of a bond by 
— bills indorsement^ '{p)i receipts for stock and bills indorsed {q), 

notes, &c. a letter ^ (;•), marriage articles (s), and promissory notes, 
and notes payable by executors, in' order to avoid the legacy duty' (i), 
[and cheques on a banker (m) , even though the testator made a subse- 

[(m) Brown v. Att.-Gen., 1 Macq. Sc. Ap. 85. (re) 1 Dru. 11.1 

(o) But now that all wills require attestation by two witnesses, the validity of an instru- 
ment as an actual disposition of property would, if not so attested, depend on the mainte- 
nance of its non-testamentary character; [jlitchcll v. Smith, 33 L. J. Ch. 596.] 

I.p) Musgravei). Down, t. T. 178+; eit. 2 Hagg. 247. 

(n) Sabine «. Goatc and Church, 1782; cit. 2 Hagg. 247. 

()■) Drvbutter v. Hodges, E. T. 1793; cit. 2 Hagg. 247; [and see Passmore v. Passmore, 
1 Phillim." 218; Ee Mundv, 7 .lur. N. S. 52, 30 L. J.Prob. 85.] 

(s) Maruell i'. Walton,' T. T. 1796; cit. 2 Hagg. 247. 

(() Maxee v. Slmte, H. T. 1799; cit. 2 Hagg. 247; [and see 4 Tes. 605; Jones i;. 
Nicolav, 2 Rob. 288, 14 .Tur. 675 ; Ee Marsden, 1 Sw. & Tr. 542. 

(u) "Bartholomew ». Henley, 3 Phillim. 317. 

1 Where the payee of a note made on it son ». Jackson, 6 Dana, 257. See Plump- 

the following indorsement, — " H I am not stead's Appeal, 4 Serg. &E. 545. 
living at the time this note is paid, I order 2 Boyd v. Boyd, 6 Gill & .1. 25; Denny v. 

thecontentstobepaidto A.H.."— and, hav- Barton, 2 Phillhn. 575; Manly i'. Lakin, 1 

ing signed it, afterwards died before the note Hagg. 130 ; Morrell v. Dickey, 1 Johns. Ch. 

■yfas paid, it was held that the indorsement 153. 

was testamentary, and entitled to probate as s go drafts on bankers. Bartholomew v 

a win. Hunt u. Hunt, 4 N. H. 434; Jack- Henlev, 3 Phillim. 317; Jones u. Nicolav, 8 



Eng. Law & Eq. 591. 



26 



OF THE INSTRUMENT. *25 

quent will containing a clause revoking any former will or codicil (v) ] . 
On the same principle, Sir J. NichoU admitted to probate, as testa- 
mentary, the drafts of three bonds, prepared in the lifetime of the 
deceased, and intended to be executed by him, to the trustees of the 
marriage settlement of his three daughters, in substitution for legacies 
which he had, by a revoked will, bequeathed for the benefit of the 
daughters, and the execution of which bonds was prevented by his 
death (x) . 

[So papers in these words, " I wish A. to have my bank book for her 
own use"(v); "I hereby make a free gift to A. of . ^ 

^«'' ' •^ ° Instruments 

the * sum deposited," &c.{z); "I have given all to *2o in the form 
A. and her sons: they are to pay" certain weekly pLTg^fe "'^ 

sums to "X. and Y., and to divide the residue among iieidtusta- 
themselves " (a) ; have been held testamentary, chiefly upon ™'^" ^'^'' 
collateral evidence, which is always admissible (6), that they were 
executed with that intent. 

So, as at common law, instruments in the form of deeds inie}- partes, 
and purporting to convey propertj' to trustees, but providing Lj,.|,^jgg 
that the trusts should not take effect until after the death deeds inter 
of the donor, have been held testamentary in the Probate P"''*^- 
Court (f).] 

But if the instrument is not testamentary either in form or in sub- 
stance (none of the gifts in it being expressed in testamen- paper con- 
tarj' language, or being in terms postponed to the death of *aniing 
the maker) and if no collateral evidence is adduced to show present gift 
that it was intended as a will,'' probate will not be granted JJo['\e°ta-^ 
of it as a testamentary document.^ Thus, where a minor mentar.y; 
aged nineteen (at a period when minors of such an age were capable 
of making wills of personal estate), wrote a paper in these words : 
"I, A. B., of &c., in the presence of the two under-mentioned wit- 
nesses, C. D. of &c., and E. F. of &c., do give all my goods and chat- 
tels to M. D. of , spinster." This paper was dated, and witnessed 

(m) Gladstone v. Tempest, 2 Curt. 630. B\it the Court of Chancery declared the checks to 
be in effect revoked. Walsh v. Gladstone, 1 Phil. 294.] 

[X) Jlasterman v. Maberley, 2 Hagg. 235. [(i/) Cock »). Cooke, L. R. 1 P. & D. 241. 

(z) Robertson i). Smith, L. R. 2 P. & D. 43. (a) Re Coles, L. R. 2 P. .& D. 362. 

(6) J!o English, 3 Sw. & Tr. 588, 34 L. J. Prob. 5. 

(c) Re Morgan, L. R. f P. & D. 214. And see cases, p. 18,. nn. ()/) (s).] See also Re 
Knig'it, 2 Hagg. 054; Shingler v. Pemberton, 4 Hagg. 356 ; both of which cases were before 
Tompson v. Browne, stated above. 

^ Warcham u. Sellers, 9 Gill & J. 98; ^ A paper, though containing some tech- 
Ga,»:i:e v. Ga;^c, 12 N. II. 371; "Witherspoon v. nical expressions, which might embrace the 
Witiior.ipooii, 2 M'Cord, 520. Where it was idea of a testamentary disposition of prop- ' 
doubtfal Vi'Iictlicr an instrument oifered in erty. is not considered in the nature of a will, 
evidence was a deed or a will, the facts of its if t.he acts to be done by the person named in 
execution and doli^xry, and the declarations it are to be executed as speedily as possible, 
of the maker at the time, together with the and in the lifetime of the maker. Hamiltoa 
instrument, were held to be proper for the v. Peace, 2 Desaus. 92 ; Thompson v. John- 
consideration of the jury, in Herringtun v. son, 19 Ala. 59 ; Kobey v. Uaunon, 6 Gill, 
Bradford, Walker, 520; Gage v. Gage, supra. 463. 

27 



*26 FOKM AND CHAEACTEKISTICS 

by the two persons referred to in the body of it. The court was of 
opinion that, as the paper bore upon the face of it no evidence of its 
being intended to be testamentary, but it rather appeared, both from 
its contents and the evidence dehors (though the latter was rather con- 
flicting) , to have been intended as a present gift, probate ought not to 
be granted {d). 

So probate was refused of a letter addressed by the deceased to a 
— so as to friend, directing the sale of stock in the public funds, and 
^n'foinfo"^ the distribution of the proceeds, on the ground that it re- 
letters, ferred to an immediate and not to a posthumous sale («).■' 
And in another case, a paper addressed by a testator to his executors 
was held not to be testamentarj-, the same not being dispositive in 
terms, nor shown by extrinsic evidence to have been so intended (/). 
In this case Sir Herbert Jenner observed that there was this distinction 

in the consideration of papers which are in their terms disposi- 
*26 tive, and those which are of an equivocal * character, that the 

first will be entitled to probate, unless, as in MchoUs v. Nicholls (^), 
they proved not to have been written animo testandi ; whilst, in the 
latter, the animm must be proved by the party claiming under it.^ 

[But, as already observed, an instrument is not testamentary merely 
Instrument because actual enjoyment under it is postponed until after 
not made tes- the donor's death. If it has present effect in fixing the 
postponing terms of that future enjoyment, and therefore does not re- 
enjoyment, quire the death of the alleged testator for its consummation, 
it is not a will. Therefore where there was an agreement for a lease, 
which contained a provision for the distribution of the rent after the 
lessor's death among his grandchildren, of whom the lessee was one, it 
was held that this provision being part of the consideration for which 
the lessee was to pay his rent was irrevocable ; it was therefore not tes- 
tamentary (h) . The court was asked to grant probate only 
^lirtofanin- of a part of the document, namely, that which contained the 
strument, provision in question : and as to this. Sir J. P. Wilde said 
he had met with no case where it had been done, although he by no 
means said it could not be done. And in fact in the case (there cited) 
—of a power of Doe d. Cross V. Cross (t), where ah instrument in the 
of attorney, form of a ppwer of attorney was given by a person abroad, 
whereby he appointed his mother to receive the rent of his lands for 
her own use, until he might return to England ; or in the event of his 
death, he " thereby assigned and delivered to her the sole claim to his 

(d) King's Proctor v. Daines, 3 Hagg. 218; [and see Langler »• Thomas, 26 L. J. Cli. 
609.] (c) Glvnn i'.' Oglander, 2 Hagg. 428. 

( f) Griffin v. Ferard, 1 Curt. 97. (g) 2 'Phillim. 'l80. 

((h) Re Robinson, L. R. 1 P. & D. 384. And see Patch v. Shore, 2 Dr. & Sm. 589. 
(«■) 8 Q. B. 7H.] 

1 A letter disposing of personal property, Porter v. Turner, 3 Serg. & R. 108 ; Rose v. 
in case of the writer's death, was held a good Quick, 30 Penn. St. 225. 
will in Boyd v. Boyd, 6 Gill & J. 25. See 2 gee Wareham k. Sellers, 9 Gill & J. 

98; Lyiea v. Lyles, 2 Nott & M'C. 531. 

28 



OF THE INSTRUMENT. 



*27 



lands," but her occupancy was to cease on his return : this instrument 
was properly executed as a will, and was held to be a good will of the 
lands in question. The court was clear that there was no objection to 
one part 'of an instrument operating in prasenti as a deed, and another 
in futuro as a will.] -^ 

The granting of probate is conclusive as to the testamentary character 
of the instrument in reference to personalty, {j) ^ [Every- 
thing included in the probate copy {k) , but no word far conc'lu-°^ 
* besides (I), must be taken by the Court of Construe- *27 
tion to be part of the will, and the original will cannot be 



sive as to 
personalty, 



(./) See Douglas v. Cooper, 3 My. & K. 378. The executors are considered as represent- 
ing the legatees, in regard to the litigation respecting the validity of the will ; and unless a 
case of fraud and collusion can be made out against them, the legatees are bound by the adju- 
dication in the suit to which the executors are parties; Colvin v. Fraser, 2 Hagg. 292; Med- 
ley I!. Wood, 1 Hagg. 6i5; Newell v. Weeks, 2 Phillim. 22i ; and that, too, though the same 
pereons are executors under two conflicting testamentary mstruments. Hayle v. Hasted, 
1 Curt. 236. The court, however, sometimes directs the parties interested to be brought before 
It. Reynolds v. Thrupp, 1 Curt. 570. [(i) Gann v. Gregory, 3 D. M. & G. 777. 

(I) Barneby ». Tassell, L. R., 11 Eq. 368. As to omission from "the probate of scurrilous 
imputations on character, see Re Honywood, L. R. 2 P. & D. 251. 



1 In Thompson v. Johnson, 19 Ala. 59, the 
court made the suggestion that it may be 
collected from a variety of cases that one 
and the same instrument cannot be both a 
will and a deed. The suggestion is liable to 
mislead, and appears to be true only in the 
sense in which it was applicable to the case 
before the court ; to wit, that if the true in- 
tention of the person who executed the instru- 
ment be to make a testamentary disposition 
(a disposition to take effect upon his death), 
then, notwithstanding the fact that in its 
external aspects the instrument resembles a 
deed, it must be treated as a will alone. It 
cannot be considered "both a will and a 
deed." But, if upon a true construction of 
the instrument (in the light of surrounding 
circumstances, when the language requires 
the aid of external evidence), it appears to 
have been the intention of the signer that a 
distinct part of its provisions should oper- 
ate as a will, and another part take effect in 
his lifetime, there can be no reasonable ob- 
jection to carrying out the intention and 
admitting to probate that part of the instru- 
ment intended to operate as a will. This 
view is sanctioned by the text, and by Rob- 
inson V. Schly, 6 6a. 515. See Taylor v. 
Kelly, 31 Ala. 59 ; Dawson v. Dawson, 2 
Strob. Eq. 34. It is apprehended there is no 
authority opposed to this position. 

2 See Colton v. Ross, 2 Paige, 396; Van 
Rensselaer v. Morris, 1 Paige, 13; Nalle «. 
Fenwick, 4 Rand, 585; Morrell v. Dickey, 1 
Johns. Ch. 153; Darrington v. Borland, 3 
Porter, 11; Kussell v. Dickson, 1 Con. & Law. 
284; 2 Greenl. Ev. § 672 ; 1 Williams, Ex. 
(6th Am. ed.) 549 et seq.; Appeal of 
Peebles, 15 Serg. & R. 42 ; Tompkins v. 
Tompkins, 1 Storv, C. C. 547; Bogardus 
V. Clark, 4 Paige, 623. In most of the 
states, the granting of probate in the courts, 
bv well settled authority, is as conclusive 
upon the testamentary character of the instru- 



ment in reference to real as to personal estate. 
Independent of statute modifications, the pow- 
ers of the Court of the Surrogate, Judge of 
Probate, Orphans' Court, Ordinary, or of 
whatever officer, coming in the place of the 
English Ecclesiastical Court (and such a 
court exists in everv state), are the same 
with those of the finglish Ordinary, in re- 
spect to the wills and estates of testators and 
intestates, and their decrees are to be re- 
ceived as conclusive evidence under the same 
limitations. See Crosland v. Murdock, 4 
M'Cord, 217; Bogardus v. Clark, 1 Edwards 
Ch. 266-270; S. C. 4 Paige, 623; Harrison v. 
Rowan, 3 Wash. C. C. 580, 582; Den v. 
Avres.'l Green, 153; Darbv v. Mayer, 10 
Wheat. 465, 469; Donaldson v. Winter, 1 
Miller (La.), 137, 144; Lewis v. Lewis, 5 
Miller (La.), 387, 393; Dubois v. Dubois, 6 
Cowen, 494. Probate of a will determines all 
questions of fraud, imposition, and undue in- 
fluence in procuring such wills, as well as the 
general question relative to the capacity of 
the testator. Clark v. Fisher, 1 Paige, 176. 
See M'Dowall v. Peyton,_2 Desaus. 313. But 
by reason of its jurisdiction as a court of con- 
struction, equity may, under particular cir- 
cumstances, so construe an instrument of 
which probate has been obtained as to ren- 
der it ineffectual. Gawler v. Standerwick, 
2 Cox, 16. In this case, a paper, it appeared, 
had been proved in the Spiritual Court as a 
codicil of the testator, which was signed by 
the executors and others, and purported to be 
an acknowledgment of what they understood 
to be the will of the testator, when he was 
unable to speak, in favor of certain legatees ; 
and a bill having been filed in equity, a 
question was raised whether they were enti- 
tled to their legacies under this paper proved 
as a codicil. Sir Lloj'd Kenyon, Master of 
the Rolls, said that as it had been proved in 
the Spiritual Court, he was bound to receive 
it as a testamentary paper, but, having ao 



29 



*28 POEM AND CHAKACTERISTICS 

appealed to for the purpose of showing that such copy is erroneous. 
Thus where probate was granted, with cross lines drawn over the be- 
quests of certain legacies, Lord Cran worth held that it was to be taken 
as conclusively settled by the probate, that the will was at its execution 
in the state in which it was then found ; i.e. that the testator had exe- 
cuted the instrument with the cross lines drawn over it {m). That being 
so, the onlj- question for him to determine was, what did the instrument 
mean? and he thought the meaning was, that the testator's original 
intention to give the legacies had ceased, and that he had placed the 
lines there to show this. Tlie result was that the legacies were struck 
out («). Neither was it competent for the Court of Chancerj-, on the 
ground that legacies given by a codicil were fraudulentlj- obtained, to 
declare the legatee a trustee for the person who would otherwise have 
taken. The objection on the ground of fraud should be taken in the 
Probate Court, which, on being satisfied of the fraud, would direct pro- 
bate to issue, omitting that part containing the bequest complained 
of (o). And practically this division of jurisdiction is continued as be- 
tween the Chancery and Probate divisions of the High Court of Jus- 
tice (jo), the judges of the former Division declining (in their discretion) 
to exercise the jurisdiction of the latter in matters of probate {q). 

The Court of Probate Act, 1857 (r), gives to probate, after citation 
—as to re- of the heir and other persons interested, and proof in sol- 
alty, emn form, the same effect with regard to realt}- as it had 

before with regard to personalty (s) . But the granting of probate 
*28 in common form has no effect as regards] real estate, either * free- 
hold or copyhold {i) : [except (under the Act of 1857) to fur- 

(tb) The general presumption is that alterations in a will were made after its execution ; 
see post, Chap. VII. s. 2, aajin. ; but that was for the consideration of the Court of Probate. 

(n) Gann v. Gregory, 3 D. M. & G. 777. 

(o) Allen V. Macpherson. 1 H. L. Ca. 191, 11 .Tur. 785, affirming 1 Phil. 133, and reversing 
5Beav. 469; Hindson v. Weatherill, 5 D. M. & G. 301. So the Court of Chancery had no 
jurisdiction to set aside a will of lands for fraud. The remedy was by ejectment. ' Jones v. 
Gregory, 2 D. J. & S. 83. (;;) Meluish ))". Milton," 3 Ch. D. 27, 35. 

((y) tinney v. Hunt, (i Ch. D. 98. (r) 20 & 21 Vict. c. 77, ss. 61, 62. 

(s) To bring a will within the purview of this enactment, it must be one which both as to 
realty and personalty is to be tested by the same considerations. For if there were any dif- 
ference between them it would be absurd to enact that probate of one should be concfusive 
evidence of the validity of the other. Consequently it must be a will executed since and ac- 
cording to the Stat. 1 X^ict. c. 26. Campbell v. Lucy, L. R. 2 P. & D. 209.] 

(() Hume V. Rundell, 6 Madd. 331. (See also Bonser v. Bradshaw. 5 .fur. N. S. 86; 
Loffus «. Maw, 3 GifE. 592. A will disposing of real estate only is not entitled to probate. 
Re Bootle, L. R. 3 P. & D. 177. Sacm, if it appoints executors, thougli they afterwards 
renounce. Re Jordan, L. R. 1 P. & D. 555. If a will appointing executors bo made in exe- 
cution of a power, the appointment of executors taking effect under the power docs not enti- 
tle the will to probate ; for here the executors take notliing jure representationis. Tugmau 
V. Hopkins, 4 M. & Gr. 383; O'Dwyeri). Geare, 29 L. J. Prob. 47; Re Barden, L. R. 1 P. 
& D. 325. 

done, the Court of Equity was to construe it. paper, though testamentary, operated noth- 

Now the effect of this codicil was only that ing. See 1 Williams, Ex. (6th Am ed.), 549- 

the parties mii/f7-stoo(Ht to be the will of the 570, where the jurisdiction of Probate and 

testator tliat the asserted legatees should Equily Courts is considered. Of course, the 

have legacies, and the heir promised to per- probate of a will settles no question of the 

form this; but the court could not convert title of property, Holman v. Perry, 4 Met. 

the promise of the heir into the will of the 492. 
testator; and it was therefore decided that the 

30 



OF THE INSTKUMENT. , *29 

nish prima facie evidence of the validity and contents of tlie will (m) . 
And, even with respect to personal estate, the granting pro- —as toper- 
bate of any paper has no other effect than to establish gen- so^alty. 
erally its claim to be received as testamentary ; and it remains for the 
Court of Construction to determine the meaning and effect of the in- 
strument thus stamped with a testamentary character (a;).] The adju- 
dication of this court ma_y, and often does, render the paper wholly 
nugatory. It may be found not to contain any intelligible disposition 
of the deceased's property (y) ; or to be in substance the same as [or 
in substitution for] another paper of which probate has been granted {z) ; 
or that its provisions are invalid according to the law of a foreign 
country which constituted the domicile of the maker at the time of his 
decease (a) ; in all which cases the instrument so proved operates 
merely as an appointment of an executor, who distributes the property 
as under an intestacy. 

[And to determine the constntctipn, the original will, both of real and 
personal property, may be looked at. It was said, indeed, original will 
by Sir W. Grant {b) , that his decision on the construction '"^.T ^^ ^^- 
of the will before hihi could not depend on the grammatical court of 
skill of the writer, in the position of the characters expres- Construction. 
sive of a parenthesis : that it was from the words and from the con- 
text, not from the punctuation, that the sense must be collected. And 
there are, probably, few imaginable cases in which punctuation could 
exercise a very important influence upon the construction («) . But it 
seems a little unreasonable to refuse all effect to " grammatical skill," 
when employed in fixing a position for parenthetical characters, 
when that same skill is the * foundation of all testamentary, con- *29 
struction. Certainly, in recent times," no hesitation has been 
felt by the courts, in following what is stated to have been Lord Eldon'a 
practice, viz. in examining original wills " with a view to see whether 
anything there appearing, — as, for instance, the mode in which it was 
written, how ' dashed and stopped,' — could guide them in the true 
construction to be put upon it " (d) . It is true that LoM Cranworth 
expressed an opinion that it was not competent for the Court of Con- 
struction on every occasion to look at the original will. But that was 

(m) Barraclough v. Greenhough. L. R. 2 Q. B. 612. 

(x) Re IMundy, 30 L. J. Prob. 85.] 

(«) See Gaivler v. Standerwicli, 2 Cox, 16 ; [Mayor, &c. of Gloucester v. Wood, 3 Hare, 
131,' 1 H. L. Ca. 272.] 

(z) See Hemming J). Clutterbuck, 1 Bli. N. S. 479; \&. C. nom. Hemming v. Gurrey, 1 
D. & CI. 35; Walsh 1-. Gladstone, 1 Phil. 290, 13 Sim. 261; Campbell v. Radnor, 1. B. C. C. 
271.] 

(ri) Thornton «. Curling, 8 Sim. 310. 

[(b) Sandford v. Raike«, 1 Mcr. 651. 

(c) See per Sir E. Sugden, Heron «. Stokes, 2 Dr. & War. 98; and per Lord Westbury, 
Gordon v. Gordon, L. R. 5 H. L. 276. 

(d) Per K. Bruce, L. J., in Manning «. Purcell, 24 L. J. Ch. 523, n. ; also reported 7 D. 
M. & G. 55. See also Compton «. Bloxham, 2 Coll. 201; Child v. Elsworth, 2 D. M. & G. 
681; Oppenheim f. Henry, 9 Hare, 802, n.; Gauntlett ». Carter, 17 Beav. 590; Milsome v. 
Long, 3 Jur. N. S. 1073. 

31 



*30 FORM AND CHAEACTEEISTICS 

in a case where the object proposed was, by looking at an original will 
of personal property, virtual]}' to procure a reversal of the decision 
come to by the Probate Court with respect to the form of the probate 
copj' in question (e).] 

"Where a paper professed to be an appointment under a power, the 
As to probate Ecclesiastical Court applied to it the ordinary principles of 
taiy appoint- testamentary law, without attempting, in that proceeding, to 
nients. pronounce on its sufficiency as a due execution of the power 

under which it purported to be made (/). [This practice was indeed 
temporarily departed from, but was ultimately restored by the decision 
in Barnes v. Vincent (5-), in which it was held that probate ought to be 
granted of every paper professing to be executed under a power, if in 
other respects its testamentary character was established ; and further, 
that, if the power was alleged, the probate should be granted without 
production of the power, and without reference to the question whether 
the power existed or not (Ji). This, it was said, restored the ancient 
and laudable practice of the Ecclesiastical Courts.] The granting of 
probate precluded the Court of Chancery from questioning the testa- 
mentary character of the paper. * It remained for that court to deter- 
mine whether the formalities prescribed by the power had been complied 
with (i) , [and whether in other respects besides the testamen- 
*30 tarj' character of the paper the power * had been duly exer- 
cised Qc) . But if no special formalities were prescribed, the 
granting of probate was final on that head {I). 

Judges of the Probate Court have pronounced the practice described 
above to be inconvenient, since it required them to grant probate of 
an instrument which, but for the existence and due execution of the 
alleged power (into which they were forbidden to inquire) , did not 
amount even to the appointment of an executor (m). It is proba- 
ble, therefore, that under the Judicature Act, 1873, which gives equal 
jurisdiction to all the judges of the High Court, and directs that all 
questions "■ properly brought forward by the parties in any cause or 
matter " shall be completely disposed of in that cause or matter {n) , 
the judges of the Probate Division wiU, in a proceeding for probate, 
themselves determine whether the power has been well executed when- 

(e) Gann v. GresoiT, 3 D. M. & G. 780, already referred to-l 

(/) Draper v. Hitch, 1 Hags- 674. See also Stevens v. Bagwell, 15 Ves. 139. 

Uq) 5 Moo. P. C. C. 201, 10 Jur. 233, 4 No. Cas. Supp. xxxi.; Tatnall v. Hankey, 2 
Moo. P. C. C. 342: De Chatelain «. De Pontignv, 1 S. W. & Tr. 411, 29 L. J. Prob. 147; 
Paglar v. Tongue, L. R. 1 P. & D. 158 ; Re Fenwick, ib. 319. 

{/() The case of Re Monday, 1 Curt. 590, seems therefore overruled.] 

(j) Douglas V. Cooper, 3 My. & K. 378. 

\Ck) Paglar v. Tongue, L. R. 1 P. & D. 168, where the question left was, whether the 
will,, dated 1844, of a married woman who died 1865, was a due exercise of testamentary 
powers given to her in the mean time. 

[I) Ward V. Ward, 11 Beav. 377. In Gullan v. Grove, 26 Beav. 64, the questions whether 
the third and fourth sheets of a will constituted a "will," or whether they were "in the 
nature of or pui-porting to be a will " were held to be identical. See also D''Huart v. Hark- 
ness, 34 Beav. 324, ante, p. 8. 

(m) Re Hallyburton, L. R. 1 P. & D. 90 ; Paglar v. Tongue, ib. 158. 

(«) Sect. 24,''subs. 7. , 

32 



OF THE INSTKUMENT. *31 

ever the necessary parties are before them (o) . But where any of the 
parties entitled to be heard on those quesllions are not before the court 
{e.g. persons who, under the instrument creating the power, claim in 
default of appointment), the former practice must be followed]. 

The question whether any particular fund forms part of the separate 
estate of a testatrix, a feme covert, is differently situated. Probate of 
[There can be but two parties to this question, namely, the ried women." 
husband and the executor (p). Both claim through th^ feme covert, 
and both are necessarily before the Court of Probate ; and since the 
Judicature Act, 1873, if not before {q), that court ought to decide the 
question, whether there is separate estate or not, in all cases where 
the question is ready and properly presented for decision : and probate 
wUl be granted, not confined to the property decided to be separate, 
but including all over which the testatrix had a disposing power, and 
which she has disposed of ; * thus lea\ang the question as it regards 
other items of property " to be decided at a future period " (»")•] ^ 
If no executor *is appointed, the court commonly grants a gen- *31 
eral administration to the husband, and not a limited adminis- 
tration to the legatees under the appointment {ra) , the effect of which 
would be that if the deceased left other property, a further administra- 
tion, i.e. a general administration to the husband, would be requisite. 

The facility with which loose papers were proved in the Ecclesiastical 
Courts was sometimes complained of by the judges of other courts, on 
whom has fallen the duty of expounding the jargon thus pronounced to 
be testamentary (s) . It has been, doubtless, induced by the consid- 
eration that a leaning on this side is less injurious than the opposite 
excess ; the effect of rejection often being to debar parties from the 
further litigation of their rights under the contested instrument (<) . 
The exclusion, however, bj'' the statute 1 Vict., of all testa- Effect of 
mentary papers which are not attested by two witnesses, ;„ checMng 
has materially checked the evil which has been the subject informal and 
of complaint ; for it rarely happens that these informal and ^mlntary^'" 
irregular papers are attested. The occurrence will also papers. 

(o) See per Jessel, M. R., Re Tharp, 3 P. D. 76. 

\p) The executor represents the legatees, ante p. 26, n. (/). 

Iq) See cases cited Ke Tharp, 3 P. D. 79, in all of which the decision affirmed that the 
property in question was separate property; but in Ledyard ». Garland, 1 Curt. 286, it 
appears that this was not thought to be the proper forum. 

()■) Re Tharp, 3 P. D. 79.] (ra) Salmon e. Hayes, 4 Hagg. 386. 

(s) See Matthews ». Warner, 4 Ves. 208, 210. 

(<) As to the admissibility in evidence of paper writings, not proved as testamentary, vide 
Doug. 707, 1 Cox, 1, 15 Ves. 153, 2 East, 552; Smith v. AttersoUj 1 Russ. 266. [This case 
shows that there is a distinction where a paper declaring trusts is signed by the legatees in 
trust, and not by the testator only. Johnsons. Ball, 5 De G. & S. 89; Consett v. Bell, 1 Y. 
&C. C. C. 577.] 

1 SeeHolman v. Perry, 4 Met. 492. have exclusive jurisdiction of such questions. 

2 The will of a feme covert under a power Picquet v. Swan, 4 Mason, 4+3 ; See Tappen- 
reserved to her in a settlement must be den v. Walsh, 1 Phillim. 353; Temple v. 
proved in our Courts of Probate before it can Walker. 3 Phillim. 394; West v. West, 3 
be acted upon elsewhere, exactly as the wills Kand. 374; Osgood v. Breed, 12 Mass. 525. 
of persons suijura. The Courts of Probate 

VOL. I. 3 33 



*S1 



FORM AND CHAEACTEKISTICS 



be [genefally] prevented of the question whether the execution of a 
testamentary appointment conforms to the requisitions of the power, 
for which will be substituted the more simple inquiry, whether or not 
the donee has complied with the requisitions of the statute; so that, 
instead of the partial entertainment of the question, as heretofore, by 
the Probate Court, the whole matter relating to the suflBcienc3- of the 
execution (so far at least as the personal estate is concerned) will 
[even independently of the Judicature Act, 1873] be brought within 
the jurisdiction of that court (a) .^ 

[(m) a power to appoint by "writing" with certain stated solemnities, tlioagh exerria- 
-able .according to'tlie general law by wiU executed in eonftynnity with the requirements of the 
^power^ is not within the terms of the statute 1 Vict. c. 26, s- 10, which speaks of a power to 

be executed "by will," West v. Kay, Kay, 385, following the doubt expressed in Collardu. 

Sampson, 4 D. M. & G. 224, and overruling Buckell ». JBlenkhorn,. 5 Uare, 131. See, also 
. Taylor e. Meads, 4 D. J. & S. 597.] 

1 [The following note was prepared by the 
editor of the last American edition, the late 
Hon. J. C. Perkins, and there printed as a sep- 
arate chapter. In order to preserve the Eng- 
lish text intact, and at the same time to retain 
the valuable work of the' late editor, the 
chapter is now printed as a note.] In Eng- 

' land, wills of pereonalty must be proved in 
the Ecclesiastical Court. It appeal's to have , 
been a subject of much controversy, whether 
the probate of wills was originally a matter 
of exclusive ecclesiastical jurisdiction. Bac. 
Abi'. Ex. (c). But whatever may havfe been 
the case in earlier times, Jt is certain that, at 
this day, the Ecclesiastical Court is the only 
court in which, except by special prescrip- 
tion, the validity of wills of personal-ty, or of 
any testamentary paper whatever relating to 
personalty, can be established or disputed, 
fonbl. Treat- Eq. Ft. 2. c. 1, § 1, n. a. ; Bnc. 
Abr. Ex. (e) 1 ; Gascoyne v. Chandler, 2 Cas. 
Temp. Lee, 241. Equity indeed considers 
an executor as trustee for the legatees in 
respect to their legacies, and as trustee for 
the next of kin .of the undisposed surplus ; 
2 Storv. Eq. Jur. § 1208; Hays v. Jackson, 6 

-Mass."i53; Hill v. Hill, 2 itayw. 298; and 
as all trusts are the peouliat objects of equi- ■ 
table cognizance, courts of equity will compel 
the executor to perform these nis ■ testamen- 
tary trusts with propriety. Hence, although, 
in those courts, as well as in courts of law, 
the seal of the Ecclesiastical Court is conclu- 

csive evidence of, the factum of a will of per- 
sonal property, an equitable jurisdiction has 
arisen of comtruing the will, in order to en- 
force a proper performance of the trusts of 
the executor. The courts of equity are ac- 

. cordingly sometimes courts of construction, 
in contradistinction to the spiritual courts, 
which, although they also are courts of con- 
struction, are the only courts of probate. 1 
Williams, Ex. (6th Am. ed.) 294, 295. 

The consequence of this exclusive ecclesi- 
astical jurisdifition is, that an executor can- 
not assert or rely on his right in any other 
court, without showing that he has previously 
established it in the spn-itual court ; Hensloe's 
case, 9 Co. 88, a. ; Fonbl. Treat Eq. b. 4, Pt. 
2, c. 1, § 2; Chaunter v. Chaunter, 11 Viner, 



Abr. 205; the usual proof of which is, the 
production' of a copy of the will by which he 
IS appointed, certified under the seal of the 
ordinary. This is usually called the probate, 
or the letters testamentary. In other' words, 
nothing but the probate (or letters of admin- 
istration with the will annexed, when no 
executor is therein appointed, or the ap- 
pointment of execiitor fails) or other proof, 

' tantamount thereto, of the' admission of the 
will in the spiritual coui't, is legal evidence 
of the will in anv question respecting per- 
sonalty. Kex »."Neth6rseal, 4 T. R. 260 ; 1 
Williams, Ex. (6th Am. ed.) 293. 

An executor in England may perform al- 
most all the acts incident to his office, except 
only some of those which relate to suits, 
before he proves the will in the spiritual 
courts. Godolph. Pt. 2, c. 20, § Ij Wank- 
ford V. Wankford, 1 Salk. ,301; Bagwell v. 
Eiliott, 2 Rand. 194, per Green, J. ; 1 Wil- 
liams, Ex. (6th Am. ed.) 303.^10; Strong 

- V. Perkins, 3 N. H. 517; 1 Arnould, Ins. 
233. Where one named as executor in a 
will paid a debt in full before probate of 
the will, under an erroneous belief that the 
estate was solvent^ and afterwards took out 
letters testamenta,ry, it was held that he was 
entitled to recover back the difference be- 
tween the sum thus paid and the sum allowed 
by the Judge of Probate on the report of 
Commissioners of .Insolvencj-. Bliss «■ Lee, 
17 Pick. 83. 

In Strong v. Perkins, 3 N. H. 517, it was 
held that an executor derives his authority 
from the testator, and may commence an 
action as such before probate of the will. 
But in Kittradge v. I'olsom. 8 N. H. 111. it 
seems to have been doubted, whether, under 
Stat. N. H. July 2, 1822, rcouiring bonds to 
be given by tfie executor before he inter- 
, meddled with the estate, an individual named 
as executor could do any act as such uiitil 
after probate of the will. 

In Massachusetts, Maine, Vermont, and 
New Hampshire, it ia expressly pro-vided by 
statute, .that " no will shall te effectual to 
pass either real or personal estate, vmless it 
shall have been duly proved and allowed in 
the Probate Court.'?' Gen.. Stat. Mass. c. 92, 



34 



or THE INSTKUMENT. 



•^31 



§ 38; Eev. Stat. Mo. 1871, c. 74, § 15; Gen. 
Stat. Vt. ]8ii-2, c. 49, § 20; Gen. Laws, N. H. 
c. 194, § 1. A will may be proved in the 
Probate Court at any time, even after the 
lapse of twenty years, for the purpose of 
establishing a title to' real estate. Shumway 
V. Holbvook, 1 Pick. 114. In Massachusetts 
and Maine, this is merely affirmative of the 
law as it stood in those States before this 
legislative provision, on the construction of 
former statutes. Shumwaj' v. Holbrook, 1 
Pick. 114; Dublin v. Chadbourn, 16 Mass. 
433 ; Ex parte Fuller, 2 Story, C. C. 327, 332 ; 
Spring V. Parkman, 3 Fairf. 127 ; Hutchins v. 
State Bank, 12 Met. 421. Such is also the 
hiw in Ohio, Swazevi). Blackman, 8 Ohio, 5; 
Bailey v. Bailey, ih. 245 ; Hall v. Ashby, 
9 Ohio, 95; Wilson v. Tappan, 6 Ohio, 172: 
in Rhode Island, Moore v. Greene, 2 Curt. 
C. C. 202; Tompkins v. Tompkins, 1 Story, 
C. C. 355; Wilkinson v. Leland, 2 Pet. 655; 
and probably in some other states. See Budd 
V. Brooke, 3 Gill, 198; Eatcliff v. Ratcliff, 
12 Smedes & M. 134. In Connecticut, the 
Probate Court is the only tribunal competent 
to decide the question of the due execution of 
a will. Fortune*). Buck, 23 Conn. 1. 

A will cannot be used as evidence in any 
court of common law in New Hampshire, 
until it has been duly proved and allowed in 
a probate court. Strong v. Perkins, 3 N. H. 
617, 518; Kitti-edge v. Folsom, 8 N. H. 111. 
A will made in a sister state must be re- 
corded, in Ohio, before any title under it can 
vest in the devisee, Wilson «. Tappan,' 6 
Ohio, 172; Bailey o. Bailey, 8 Ohio, 239. In 
Yirginia, it is held not necessary that a will 
should be proved in a court of probate, in 
order to give it validity as a will of land, in 
Bagwell V. Elliott, 2 Rand. 190. So in Ar- 
kansas, Campbell v. Garven, 6 Pike (Ark.), 
458. But if proved in that court, it seems that 
it will be binding as to the authenticity of the 
will, with respect to both the real and the per- 
sonal estate. 2 Rand. 196, 200, per Green, J. 

A will made in execution of a power, by a 
married woman or other person, must be 
proved in the Court of Probate, before it can 
be acted on elsewhere, exactly as any other 
will. Picquet v- Swan, 4 Mason, 443 ; Hol- 
man v. Perry, i Met. 492, 498; Osgood v. 
Breed, 12 Ma.ss. 525; Newburvport Bank v. 
Stone, 13 Pick. 423 ; Ross v. Ew'er, 3 Atk. 160. 

Probate is, however, operative merely as 
the authenticated evidence, and not at all as 
the foundation, of the title to the property 
disposed of by the will. The title passes to 
the devisee, or legatee at the death of the 
testator, and the probate of the will relates 
back to that time. Fuller, Ex parte, 2 Story, 
C. C. 327; Spring v. Parkman, 3 Fairf. 127; 
Strong V. Perkins, 3 N. H. 517, 518; Hall 
V. Ashby, 9 Ohio, 96 ; Fleeger 'v. Poole, 
2 M'Lean, 189, The will before probate is, 
in no just juridical sense, a nullity. The 
probate ascertains nothing but the original 
validity of the will as such, and that the 
instrument, in fact, is what it purports on its 
face to be. Ex parte Fuller, 2 Story, C. C. 332. 
Rights are not lost by failure to make probate. 
Arrington v. McLemore, 33 Ark. 759; Janes 
V. Williaois, 31 Ai-k. 175. 



In England, the Ecclesiastical Courts have 
no jurisdiction whatsoever over wills, except- 
ing such as relate to personal estate; and 
consequently the probate thereof by the sen- 
tence or decree of those courts is wholly in- 
operative, and void, except as to personal 
estate; it is not, as to the realty, even evi- 
dence of the execution of the will. The 
validity of wills of real estate is solel_v cog- 
nizable by courts of common law, in the 
ordinary iorms of suits ; and the verdict of 
the jury in such suits, and the judgment 
thereon, are, by the very theory of the law, 
conclusive only as between thp parties to the 
suit and their privies. But the sentence or 
decree of , the proper Ecclesiastical Court is, 
in reference to the personalty, final and con- 
clusive as to the validity or invalidity of the 
will. The same question cannot be re-exam- 
ined or litigated in any other tribunal. The 
reason of this is, that it being the sentence or 
decree of a court of competent^ jurisdiction, 
directly upon the very subject-matter in con- 
troversy, to which all persons who have any 
interest are, or may make themselves, par- 
ties, for the purpose of contesting the valid- 
ity of the will, it necessarily follows that it 
is conclusive between all parties. Tompkins 
V. Tompkins, 1 Storv, C. C. 552, 553; 1 Wil- 
liams, Ex. (6th Am" ed.) 288-292; 1 Greenl. 
Ev. § 550 ;, 2 Greenl. § 672; Muir v. Leake & 
Watts Orphan House, 3 Barb. Ch. 477; 
Thompson v. Thompson, 9 BaiT, 88; Fou- 
vergne v. New Orleans,18 How. 470. But if the 
Court of Probate had not jurisdiction, or if the 
testator should turn out to be alive, of course 
the probate of the will would be void. 2 Greenl. 
Ey. § 339 ; Moore v. Tanner, 5 B. Mon. 42. 

But in many of the United States, courts 
have been established by statute, under the 
title of Courts of Probate, Orphans' Courts, 
Courts of Surrogate, Ordinary, Register's 
Court, or other names, with general power to 
take the probate of wills, no distinction being 
expressly mentioned between wills of per- 
sonal, and wills of real, estate; and where 
such power is conferred in general terms, it is 
understood to give to those courts complete 
jurisdiction o%'er the probate of wills,- as well 
of real as of personal estate, and hence 
their decrees have been held to be conclusive 
upon the cruestion of the validity of such 
wills, in relation both to real and personal 
estate, and not re-examinable in any other 
court. Potter r. Webb, 2 Greenl. 257; Small 
V. Small, 4 Greenl. 220, 225; Ex parte Ful- 
ler, 2 Storv, C. C. 327. 328, 329; Patten v. 
Tallman, 27 Me. 17 ; Osgood v. Breed, 12 Mass. 
533, 534; Dublin i). Chadbourn, 16 Mass. 
433, 441; Laughton v. Atkins, 1 Pick. 548, 
549; Brown v. Wood, 17 Mass. 68, 72; Par- 
ker V. Parker, 11 Cush. 519; Tompkins v. 
Tompkins, 1 Storv, C. C. 554; Poplin v. 
Hawke, 8 N. H. 124; Strong v. Perkins, 3 
N. H. 517, 518; Judson v. Lake, 3 Day, 318; 
Bush V. Sheldon. 1 Day,170 ; Fortune v. Buck, 
23 Conn. 1 ; Lewis v. Lewis, 5 La. 388, 393, 
394; Donaldson v. Winter, 1 La. 137, 144. 
In Dublin v. Chadbourn, 16 Mass. 433, 442, it 
was held that, in no case can the due execu- 
tion of a will, the sanity of the testator, the 
attestation of the witnesses, or any question 



35 



*31 



POEM AND CHAEACTEEISTICS 



of the kind, be tried in the courts of common 
law. The probate of the will, so long as it 
remains unreversed, is conclusive upon such 
questions. See Poplin v. Hawke, 8 N. B. 
124. So the probate of the will of a maiTied 
woman, unappealed from and iinreversed, is 
final and conclusive upon the heirs-at-law of 
the testator, and they cannot, in' a court 
of common law, deny the legal capacity of 
the testatrix to make such will. - Parker v, 
Pai'ker, 11 Cash. 519. See also Judaoh «. 
Lake, 3 Day, 318; Robinson v. Allen, 11 
Graft. 785; Poplin v. Hawke, 8 N. H. 124; 
Cassels v. Vernon, 5 Mas. 332; Picquet v. 
Swan, 4 Mas. 443, 461, 462.- This is true 
even in regard to a will .made and admitted 
to probate in another state or country, which 
has also been allowed and recorded in Massa'- 
chusetts according to the mode prescribed by 
the statute of that state. Parker v. Parker, 
11 Gush. 519 ; Dublin B. Chadbourn, 16 Mass. 
433. So it is held in Ohio, that a ivill made 
in another state, according to the Inw of the 
latter state, if admitted to probate in Ohio, will 
pass lands in Ohio, though not executed ac- 
cording to the laws of Ohio. Bailev v. Bailev, 
8 Ohio, 239. See Meese ». Keefe, l6 Ohio, 382. 

In some of the states the probate of wills 
of real estate is not held conclusive until after 
the lapse of a certain number of years; as in 
Virginia, after seven years, Parker ». Brown, 
ff Gratt. 554 ; see Bagwell o. Elliott, 2 Rand. 
190, 200 : In Alabama, after five yeai*s, Dar- 
rington v. Borland, 3 Port. 37, -38; Hardy 
V. Hardy, 26 Ala. 524; Tarver u. Tarver, 9 
Pet. 180: In Mississippi, after five years, 
Scott «. Calvit, 3 How. (Miss.) 157, 168: In 
Ohio (unless' reversed in manner prescribed 
by statute in that state), after two years, 
Bailey ». Bailey, 8 Ohio, 246; Swazej' ». 
Blackman, ib. 18, 19. See Hathaway's will, 
4 Ohio (N. S.), 383. In Pennsylvania, awill 
of lands may be given in evidence on due 
proof of its execution, notwithst-anding a ver- 
dict and judgment against the willj upon a 
feigned issue out of the Register's Court. 
Smith V. Bonsall, 5 Rawle, 80. In this latter 
state, and in North Carolina, the probate of 
a will of lands is prima facie evidence of the 
due execution of the wiil, but not conclusive, 
ib. ; Coates i). Hughes, 3 Binn. 498, 507 ; Loy 
V. Kennedy, 1 Watts & S. 396; Logan v. 
Watt, 8 Serg. &R.22; Barker v. McFerran, 
26 Penn. St. 211; Stanley v. Kean, 1 Tavl. 
93; Rev. Stat. N. C. (lS-37) p.621: Havven 
V. Spring, 10 Ired. 180. So in Maryland, 
Townshend v. Duncan, 2 Bland, 45 ; Randall 
V. Hodges, 3 Bland. 47 ; Stat. Md. 1831, c. 315, 
§ 1. See Smith ■». Steele, 1 Harr. & McH. 
419 : Darbey v. Mayer, 10 Wheat. 470. So 
in Florida, Thompson's Dig. 193. See as to 
Kentuckv. Robertson v. Barbour, 6 B. Mon. 
527;. Welles's will, 5 Lift. 273; Singleton «. 
Singleton, 8 B. Mon. 340. In Delaware, the 
record of the probate of a will is sufficient 
evidence, both as to real and personal estate. 
Del. Rev. Code, 1874, c. 89, p. 539. 

But in New York, Mr. Chancellor Wal- 
worth remarked, in Bogardus ». Clark, 4 
Paige, 623, 626, 627: "The law appears to 
be well settled, that the sentence of the Sur- 
rogate, or of a higher coiu-t, having power to 



36 



review his decision, In relation to the compe- 
tency of the testator to make a will of per- 
sonal property, is not conclusive upon the 
parties to the litigation in a subsequent suit 
as to the validity of a devise of real estate 
contained in the same will." See Jackson v. 
Le Grange, 19 Johns. 386; Jackson d. Thomp- 
son, 6 Cowen, 178 ; Rogers v. Rogers, 3 Wei d. 
614, 515; Dubois v. Dubois, 6 Cowen, 494. 
So in New Jersey, Sloan v. Maxwell, 2 
Green, Ch. 566 ; Harrison v. Rowan, 3 Wash. 
C. C. 580. So in South Carolina, Crosland v. 
Murdock, 4 M'Cord, 217; Taylor v. Taylor, 
1 Rich. 5.33,534. 

In Maine, Massachusetts, Vermont, and 
New Hampshire, it is expressly provided by 
statute, that *' the probate of a will devising 
real estate shall be conclusive as to the due 
execution of the will, in like manner as it is 
of a will of personal estate." Rev. Stat. 
Me. c. 74, § 15; Gen. Stat. Mass. c. 92, § 38; 
Rev. Stat. Vt. c. 49, § 20; Gen. Laws, N. H. 
c. 194, J 1. • 

A party who has received a legacy under 
a will . cannot be permitted to contest the 
validity of such will, without repaying the 
amount of the legacy, or bringing the money 
into court. And the rule applies even if the 
party was a minor when the legacy was re- 
ceived. Hamblett v. Hamblett, 6 N. H. 333;- 
Bell ». Armstrong, 1 Addams, 365 ; Braham 
V. Burchell, 3 Addams, 243. 

The general rule of law, both in England 
and the United States, is, that letters testa- 
mentary granted abroad, give no authority 
to sue or to be sued in another jurisdiction, 
though they may be suificient ground for new 
probate authority. Lee v. Bank of England, 
8 Ves. 44; Dixon v. Eamsav, 3 Crauch; 
319; Morrell v. Dickey, 1 .lo'hns. Ch. 153; 
Thompson v. Wilson, 2 N. H. 291; Stearns 
V. Burnham, 5 Greenl. 261; Ives v. Allen, 12 
Vt. 589 ; Story, Confl. Laws, § 617. This 
rule does not apply, except where the party 
sues in right of thV deceased. If he sues in 
his own right, though the right be derived 
under a foreign will, no new administration 
need be ' taken out, if it does not affect real 
estate passed by the will. Trecothick «?, Aus- 
tin, 4 Mason, "16; Story, Confl. Laws, § 517 ; 
EobinsOTi ». Crandall, 9 Wend. 425. But see 
Steams V. Burnham, 5 Greenl. 261; Thomp- 
son V. Wilson, 2 N. H. 291. A derivative 
right to personal property may be proved 
under a foreign will, without probate in the 
State where it is sought to be established. 
Trecothick «. Austin, 4 Mas.- 16 ; Hutching 
V. State Bank, 12 Met. 421 An executor, 
who has proved the will in the probate court 
of another state, may legally convert bank 
shares, belonging to the estate, into money, 
in Massachusetts, without the aid of the Pro- 
bate Court of the latter state, if he can do so 
without, legal process. Hntchins v. State 
Bank, 12 Met. 421. 

A will may be proved in two ways ; either 
in Common i?orm, or by Form -of Law; the 
latter mode is also called the Solemn Form, 
and, sometimes, proving per testes. Swinb. 
Pt. 6. § 14, pi. 1 ; GodoTph. Pt. 1, c. 20, § 4; 
IWilliams, Ex. (8th Am. ed.) 325. 

A will is proved in coin'iion /arm, when 



OF THE INSTBUMENT. 



*31 



the executor presents it before the judge, and 
in the absence of, and without citing, the par- 
ties interested, produces witnesses to prove 
the same. Upon the testimony of these wit- 
nesses tliat the will exhibited is the true, 
whole, and last will and testament of the de- 
ceased, and sometimes upon less proof, and 
even upon the oath of the executor alone, the 
judge grants probate thereof. 1 Williams, Ex. 
(Gth Am. ed.) 325; Swinb. Pt. 6, § 14, pi. 2; 
Godolph. Pt. 1, c. 20, § 4; 2 Black. Comm. 
508 ; 1 Greenl. Ev. § 518. This mode of proof, 
though not in very common use (1 Greenl. 
Ev. § 518), is still adopted and practised 
in some of the United States. In New 
Hampshire, if the probate of a will is not con- 
tested, the judge may allow and approve the 
same in common fonn, upon the testimony 
of one of the subscribing witnesses thereto, 
though the others may be living, and within 
the process of the court. Gen. Laws, N. H. 
c. 194, § 6. In Mississippi and Virginia; 
by Code of Virginia, 1873, provision is made 
for proof of wills and testaments upon no- 
tice to all parties, and it is made the duty of 
courts to appoint guardians ad litem in case 
of infants and persons of unsound mind be- 
ing interested. Personal, notice is required 
to be given to an infant resident of the state 
above the age of fourteen years. After no- 
tice, the court must proceed to a hearing, and 
any person interested has a right to an issue 
to a jury. The court has power to require 
the production of all testamentari' papers of 
the same testator, so as to decide finally what 
is the true, last will of the testator. Any 
sentence or tinal order made in such case is a 
bar to any farther proceeding in equity, sav- 
ing to infants one year after they come of 
age, and to persons residing out of the com- 
monwealth, or not having been actually sum- 
moned, two years af tersuch sentence or order. 
The court in which the will is to be proved 
is authorized to proceed, immediatel3% on the 
will being exhibited for proof, to receive pro- 
bate thereof and grant letters testamentary; 
Miss. Rev. Code, 187], c. 9, p. 213; Rev. 
Code Va. 1873, c. 118, pp. 915, 91B; and in 
Mississippi, this first probate of the will is 
regarded as a mere incipient step, necessary 
to enable the court to carry the will into exe- 
cution; but it is not conclusive upon heirs 
and distributees, and may be opened and set 
aside, if necessary, and applied for within due 
time. Co.wden v. l)obyns, 5 Snvedes & M. 82. 
The law of North Carolina is very similar on 
this point. Etheridge v. CorpreV, 3 .Jones,' 
14. In case of probate in common form, if 
actual notice of the will and probate is relied 
upon as barring the right to probate in solemn 
forni, it must be alleged and proved. Ethe- 
ridge V. Corprew, supra.- 

At common law, when a will had been 
proved only in commmi form without notice 
to those interested, the probate might be re- 
examined within thirty vears after probate. 
Noves V. Barber, 4 N. ii. 406; 1 Williams, 
Ex' (6th Am. ed.) 335. 

In Tennessee, it has been decided that 
where a paper purporting to be a will, has 
been proved in common form^ by the ex parte 
exainination of witnesses, the probate may be 



set aside after the lapse of eighteen years, 
and an issue devisavlt vel nonhe directed to 
try its validity ; Gibson v. Lane, 9 Yerg. 475. 
See Hodges i. Bauchman, 8 Yerg. 186; and 
in South Carolina, Johnson, J., remarked 
in Brown v. Gibson, 1 Nott & M'C. 326, 
"The probate of a will in common form may 
be revoked either on a suit by citation, or on 
appeal, and that at any time within thirty 
years." The period within which probaie 
may he contested, has been prescribed by 
statute in some of the states. Thus, in the 
states of Alabama and Missouri, any person 
interested may contest the validity of a will 
within five years, and infants, married wo- 
men, and persons absent f i om the state or npn 
compotes^ have five years after the removal of 
the disability for the same purpose. Alabama 
Code, 1876, c.2, p. 594; Missouri, R. S. 1880, 
c. 71, p. 683. In Arkansas, a period of three 
years is allowed. Digest, 1871, c. 135, p. 
1015. In Mississippi, two years are allowed 
for contesting the probate of a will, and in 
cases of disability, two vears after it is re- 
moved. Kev. Code, 187"l, c. 9, p. 213. In 
Delaware, provision is made by statute for 
review of probate of a will by any person who 
shall not have appeared, or had iiotice, within 
seven years, and, in case of disability, within 
three years after its removal. Rev. Code 
Del. 1874, c. 89. p. 339. In Virginia, again, 
five years are allowed for contesting a will. 
Rev. Code, 1873, c. 118, p. 915; Nalle v. 
Fenwick, 4 Rand. 418. If not contested 
within that time, it stands, though informal. 
Parker v. Brown, 6 Gratt. 554. In New 
Hampshire, any party interested may have 
the probate of any will, proved without no- 
tice, re-examined, and the will proved in sol- 
emn form, at any time within one year of 
such probate, if there has been no appeal, 
and, in such case, persons under disability 
have one year for the same purpose after the 
removal of the disability. Gen. Laws, N. H. 
1878. c. 194, §§ 7, 8, 9. In most of the above 
States, provisions are made for using the 
evidence taken on the first probate, or the 
proceedings on a former trial, in case the sub- 
scribing witnesses are deceased, or cannot be 
produced, at the subsequent trial or hearing. 

Where the validity of a will has been once 
fully contested in manner pointed out by 
statute for contestation, review, or re-exam- 
ination, that is conclusive on all persons. 
Scott V. Calvit, 3 How. (Miss.) 157, 158; 
Nale V. Fenwick, 4 Rand. 588; Hodges v. 
Bauchman, 8 Yerg. 186; Malone v. Hobbs, 
1 Robinson, 346. 

In New Hampshire (Noyes v. Barber, 4 
N. H. 406), where the heirs" at law were un- 
der the age of thirteen years, when a will was 
proved, and the executor named in the will 
was made residuary legatee and testamentary 
guardian of the heirs, a probate of the will 
before any other guardian of the heirs was 
appointed, was not allowed to have the effect 
of a probate in solemn form. In New Hamp- 
shire, no decree allowing or disallowing any 
will can be made in solemn form, until guar- 
dians have been appointed for all minors and 
others interested therein who are incapaci- 
tated to take care of their estates, and agents 



37 



*31 



FOEM AND CHABACTERISTICS 



appointed by the Judge of Probate for all 
persons interested who reside out of the 
State or are unknown. Gen. Laws, N. H. 
1878, c. 194, § 11. 

As to the probate of wills in solemn form 
or ptr testes, Richardson, C. J., in Noyes v. 
Barber, 4 N. H. 409, said: " We understand 
a probate in solemn form to be a probate 
made by the judge, after all the persons, 
whose interests are to be affected by the will, 
have been duly notitied, and had an opportu-- 
nitv to be heard ou the subject." Lovelass on 
Wills, 211-213; Godolph. Pt. 1. c. 20, § 4, p. 
60 ; 1 Greenl. Ev. § 518; 2 Black. Comra. 508. 
This is the mode of proof now very generally 
required in the United States; 2 (Jreenl. Ev. 
§ 692; 1 Greenl. Ev. § 518, and generally 
after the will is proved in this form and ad- 
mitted to record, the probate is forever bind- 
ing. 1 Williams, Ex. (6th Am. ed.) 334, 335; 
2 Greenl. Ev. § 692. 

Any person interested in a will has a right 
to apply for probate of it, and the Judge of 
Probate, or other person having authority for 
the probate of a will, on such application may, 
summon the executor, or other person hav- 
ing the custody of the will, to exhibit it for, 
probate. Steboins v. Lathrop, 4 Pick. 42; 1 
Williams, Ex. (6th Am. ed.) 311. This right 
is given by statute in Indiana. ' Stat. Ind. 
1877, c. 3," p. 576. This authority in the 
Judge of Probate is incident to his general 
jurisdiction of the probate of wills, and the 
power of granting administrations. Stebbins 
V. Lathrop, 4 Pick. 42; 3 Bac. Abr. 34, Ex- 
ecutors, &c. (e) 1; 1 Williams, Ex. (6th Am. 
ed.) 311, Swinb. Pt. 6, § 12, pi. 1; Godolph. 
Pt. 1, c. 20, § 2. This power is conferred by 
statute in Mississippi. Miss. Rev. Code, 1871, 
c. 9, p. 211. It is said that the Judge of Pro- 
bate may ex officio, or at the instance of any 
one, cite the executor to prove the will, be- 
cause the applicant may be ignorant of the 
contents of the will, and may expect a legacy, 
and has a right to be informed. Stebbins v. 
Lathrop, 4 Pick. 42; Godolph.- Pt. 1, c. 20, 
§ 2 ; 3 Bac. Abr. 40, Executors, &c. (e) 8. Be- 
sides, the legatees or devisees may be absent 
or unknown, in which case it is proper for the 
Judge of Probate to proceed ex officio, and to 
prevent the concealment, suppression, or loss 
of the will. Stebbins v. Lathrop, 4 Pick. 
42; 1 Williams, Ex. (6th Am. ed.) 311. See 
per Lord Hardwicke in Tucker v. Phipps, 3 
Atk. 360. 

In Massachusetts, whoever has a right to 
offer a will in evidence, or to make title un- 
der it, may insist on having it proved. A 
creditor of a devisee has this right for the 
purpose of obtaining satisfaction of his debt. 
Stebbins v. Lathrop, 4 Pick. 33. In some of 
the states the executor is required by statute 
to present the will to the Probate Court hav- 
ing jurisdiction of the same within a certain 
period (in New Hampshire, Vermont, and 
Connecticut, this period is thirty days) of 
time after the death of the testator; in de- 
fault of which, he is liable to a penalty. But 
the statute penalty is merely cumulative, 
and does not take" away the rights of_ any 
party claiming under the will, nor the juris- 
diction of the Judge of Probate. Stebbins 



V. Lathrop, 4 Pick. 33, 42. See State v. Pace, 
9 Rich. (S. C.)355. 

If the executor has not the custody of the 
will, but some other person has it, such per- 
son may be compelled to exhibit it. Swinb. 
Pt. 6, c. 12, pi 2; Godolph. Pt. 1, e. 20, § 2; 
Bethun v. Dinmure, 1 Oas. temp. Lee, 158; 
Ex parte Law, 2 Ad. & E. 45; Georges v. 
Georges, 18 Ves. 294. By statute in Massachu- 
setts and in other states, persons having the 
custody of wills are requii'ed, within a certain 
period after notice of the death of the testator, 
to deliver the same into the Probate Court 
which has jurisdiction of the case, or to the 
executors named in the will, under a penalty 
If they neglect so to do. Gen. Stat. Mass. 
c. 92, § 16. So in Vemiont, New Hampshire, 
and Maine. Gen. Stat. Vt. (1862) c. 49, 
p. 378; Gen. Laws. N. H. c. 194, § 2; Rev. 
Stat. Me. (1871) c. 64, p. 505. The time 
within which, after the testator's death, the 
will is to be proved, is said, in England, to 
be somewhat imcertain, and left to the di^- 
cretion of the judge, according to the dis- 
tance of the place, uie weight of the will, the 
quality of the executors, the absence of the 
witnesses, the importunity of the creditors 
and legatees, and other circumstanpes inci- 
dent thereto. 1 Williams, Ex. (6th Am. ed.) 
319; Godolph. Pt. 1, c. 20, § 3. In Massa- 
chusetts, a will may be proved in the Probate 
Court at any time, even after twenty years; 
in order to establish the title to real estate. 
Shumway i: Holbrook, 1 Pick. 117. lli 
Georgia, wills are required to be registered 
within three months from the death of the 
testator, on failure of which they shall be ' 
deemed and construed to be void, and of no 
effect. Laws of Georgia, Code by Hotch- 
kiss (1845), pp. 456, 457, c. 17, § 13. What 
constitutes sufficient evidence of the execution' 
of a will is said to be a matter of law for the 
court. Vernon v. Kirk, 30 Penn. St. 218. 

Ihe attesting witnesses to a will are re- 
garded in the law as placed around the testator, 
in order that no fraud may be practised upon 
him in the execution of the will, and to judge 
of his capacity and whenever a will is to 
be proved in the more ample or solemn form, 
any person interested has a right to insist on 
the -testimony of all the attesting witnesses, 
if living and within reach of the process of 
the court. Chase v. Lincoln, 3 Mass. 236; 
Burwell v. Corbin, 1 Rand. 131, 141; Sears 
V. Dillingham, 12 Mass. 358; Apperson v.. 
Cottrell, 3 Porter, 51; Brown v. Wood, 17 
Mass. 72, 73; 2 Greenl. Ev. § 692: Bailev v. 
Stiles, 1 Green, Ch. 231, 232; Nalle i-. Fen- 
wick, 4 Rand. 685; Rush v. Parnell, 2 Har- 
rington, 448; Jones v. Arterburn, 11 Humph. 
97 ; Patten v. Tallman, 27 Me. 29. This is 
required bv statute in Illinois. Rev. Stat. 
(1880) c. 148, p. 1108. In Kentucky, a 
will, though of land, is admitted to pro- 
bate' on proof by one witness, as on a 
trial at common law, provided he is able to 
speak to all the requisite solemnities. Over- 
all 1). Overall, Litt. Sel. Ca. 503; Hall v. 
Sims, 2 J. J. Marsh. 511. So in Georgia. 
Walker v. Hunter, 17 Ga. 364. In Doe v. 
Lewis, 7 Carr. & P. 574, the attestation to a 
will of lands purported that the will had been 



38 



Of the instetjment. 



*3r 



si^ed by the testator in the presence of three 
witnesses, who, in his presence, and in the 
presence of each other, signed the attesta- 
tion. To prove the execution of the will, 
one of the three witnesses was called, and he 
stated, that he and one of the other witnesses 
saw the testator sign the will, but that the 
third witness was not then present, though 
the signature to the attestation was in his 
handwriting. It was held that this was not 
sufficient proof of the will, without either 
calling the third witness, or accounting for 
his absence. 

In a case where one of the subscribing wit^ 
uesses was called, and proved the signature 
of himself, and the two other subscribing 
witnesses, and stated that he could not re- 
member particularly whether the other wit- 
nesses subscribed m the presence of the 
testator, but presumed they all did so, as he 
would not have subscribed his name as a 
witness, unless the requisites of the statute 
had been complied with; but it appeared that 
the other witnesses were living and within 
the jurisdiction of the court. It was held that, 
although such evidence would have been suf- 
ficient, if the other witnesses had been dead, 
to authorize the jury to believe that all the 
formalities had been complied with, yet, in 
this case, it was not sufficient. Jaclcson v, 
Vickory, 1 Wend. 406; Fetherly v. Wag- 
goner, 11 Wend. 59&; Smith v, Jones, 6 
Sand. 32. See Welch ». Welch, 9Rich. (S.C.) 
133. But if any of those witnesses, from 
death, or absence from the country, or other 
cause, cannot be produced at the trial, any 
of them have become infamous, insane, or 
interested, since the time of their attesta- 
tion, the will may be proved by the other 
subscribing witnesses, and by proof of the 
handwriting of those who are thus absent or 
rendered incompetent to testify. Smith v. 
Jones, 6 Rand. 32; Sears v. Dillingham, 12 
Mass. 358, 361, 363; 1 Phill. Ev. (Cowen & 
Hill's ed.) 601; Bernett v. Taylor, 9 Ves. 
381; Chase v. Lincoln, 3 Mass. 236; Wilde, 
J., in Hawes v, Humphrey, 9 Pick. 357; 
Miller j). Miller, 2 Bing. N'. C. 76 ; Carring- 
ton V. Payne, 5 Ves. 411; Jones v. Arter- 
burn, 11 Humph. 97; Jauncey i). Thome,- 
2 Barb. Ch. 40 ; Patten v. Tallman, 27 Me. 
29 ; Dean ». Dean, 1 Williams (Vt.), 746 ; 
Verdier v. Verdier, 8 Rich. (S. C.) 135; 
Greenough v. Greenough, 11 Penn. St. 489; 
Barker 1). McFerran, 26 Penn. St. 211; Vernon 
V. Kirk, 30 Penn. St. 218. The competency 
of an attesting witness to a will is not to be 
determined upon the state of facts existing 
at the time when the will is presented for 
probate, but upon those existing at the time 
of attestation. Patten v. Tallman, 27 Me. 
17. In New Hampshire it is enacted, that 
if the attesting witnesses shall, after the 
execution of any will, become incompetent 
from any cause, the same may be proved and 
allowed upon other satisfactory evidence. 
Gen. Laws, N. H. 1878, c. 194. § 12. A 
similar provision exists in Massachusetts, 
Gen. Stat. Mass. c. 92. § 6. The recent 
Act of 1 Vict. c. 26, § 14,. provides that, if 
any person, who shall attest the execution 
of a will, shall at the time of the execution 



thereof, or at any time afterwards, be incom- 
petent to be admitted a witness to prove the 
execution thereof, such will shall not on that 
account be invalid. 

Where all the witnesses to a will are dead, 
out of the jurisdiction of the court, or cannot 
be found, or have become incompetent to tes- 
tify since their attestation, the handwriting 
of all of them should be proved. Hopkins 
V. Albertson, 2 Bay, 484; Jackson u. Luquere, 
5 Cowen, 221 ; Crbwell v. Kirk, 3 Dev. 355 ; 
Sampson v. Bradley, 1 M'Cord, 74. It ap- 
pears that in such case the handwriting of 
the testator should be proved also. Hopkins 
V. De Graffenreid, 2 Bay, 187; Jackson u. 
Luquere, 5 Cowen, 221; Chase, C. J., in Col- 
lins V. Elliott, 1 Harr. & J. 2; 2 Stark. 
Ev. (5th Am. ed.) 923; Jackson v. Le 
Grange, 19 Johns. 288, 289. In Anderson v. 
Welch, 1 Ca. temp. Lee, 577, in the Ecclesi- 
astical Court, it was held, that, under certain 
circumstances, the validity of a will may be 
established by proving the handwriting of 
the attesting witnesses, though no evidence 
can be given of the handwriting of the de- 
ceased. 1 Williams, Ex. (6th Am. ed.) 352. 
Where the witnesses have set their marks to 
a will, there must be proof that such marks' 
are the marks of the witnesses. Collins y. 
Nichols, 1 Harr. & J. 399 ; Jackson v. Van 
Deusen, 5 Johns 144. See Davies v. Davies, 
9 Q. B. 648. 

"The degree of diligence in the search tor 
the subscribing witnesses is the same," says 
Mr. Greenleaf (1 Greenl. Ev.§ 574) "which, 
is required in the search for a lost paper, ■ 
the principle being the same in both cases. 
IGreenl. Ev. § 558. It mustbe astrict, dili- 
gent, and honest inquiry and search, satisfac- 
tory to the court, imder the circumstances of' 
the case. It should be made at the residence 
of the witness, if known, and at all other 
places where he may be expected to be 
found ; and inquiry "should be made of his 
relatives, and others, who may be supposed 
to be able to afford information. And the 
answers given to such inqiuiries may be given 
in evidence, they not being hearsay, but parts 
of the res gesUs. If there is more than one 
attesting witness, the absence of them all 
must be satisfactorily accounted for, in order 
to let in the secondary evidence." Miller v. 
Miller, 2 Bing. N. C. 76; James v. Parnell, 
1 Turn. & R. 417. 

Where there is a failure of recollection on 
the part of an attesting witness, less strict- 
ness of proof is sometimes required; as where 
one of the attesting witnesses to a will had 
no recollection of having subscribed it, but 
testified that the signature of his name thereto 
was genuine,' the testimony of another attest- 
ing witness that the first did subscribe his 
name in the testator's presence was held 
sufficient evidence of the fact. , Dewey ». 
Dewev, 1 Met. 349. Dewey, J., said: " The 
question is not whether this witness now 
recollects the circumstanoe of the attes- 
tation, and can state it as a matter within his 
memory. If this were requisite, the validity 
of a will would depend, not upon the fact 
whether it was duly executed, but whether 
the testator had been fortunate in securing. 



39 



*31 



FOKM AND CHAEACTEBISTICS 



witnesses of retentive memory. The real 
question is, whetlier tlie witness did m fact 
properly attest it." See Dudleys v. Dudleys, 
3 Leigli, 443 ; Clarke v. Dunnavant, 10 Leigh, 
13; Nelson v. McGiffeit, 3 Barb. Ch. 158; 
Da vies v. Davies, 19 Q. B. 648; Welty v. 
Welty, 8 Md. 15; Newhousei). Godwin, 17 
Barb. 236; Choeney v. Arnold, 18 Barb. 434. 

In Clarke v. Dunnavant, 10 Leigh, 13, 
Tucker, President, said: "That on a ques- 
tion of probate, the defect of memory .of the 
witnesses will not be permitted to defeat the 
will, but that the court may, from circum- 
stances, presume that the requisitions of the 
statute have been observed ; and that they 
ought to presume from the fact of attestation, 
unless the inferences from that fact are re- 
butted by satisfactory evidence." See also 
Daj'rell i. Glasscock, Skinn. 413; Smith v. 
Jones, 6 Rand. 32; Bovd v. Cook, 3 Leigh, 
32; Gwinn v. Eadford,"2 Litt. 137'; Dudleys 
ii. Dudlevs,^3 Leigh, 443; Jackson v. Le- 
Grange, 19 Johns. 386; Welty v. Welty. 8 
Md. 15; Lewis B.Lewis, 1 Kern. (N. Y.) 
220; Vernon v. Kirk, 30 Penn. St. 218. If 
the memory of the witness be partially or 
wholly gone, the law presumes, after proof 
of attestation, that ^verytliing else neces- 
sary to give the instrument validity existed. 
The rule is different if the witness is able to 
recollect that things essential were posi- 
tively wanting. Then the presumption is 
changed. Barr v. Graybill, 13 Penn. St. 
396. 

If the subscribing witness should deny the 
execution of the will, he may be contra- 
dicted, as to that fact, bj' another subscrib- 
ing witness ; and even if they all swear that 
the will was not duly executed, the party in- 
terested to sustain the will would be allowed 
to go into circumstantial evidence to prove 
the due execution. 1 Phill. Ev. (Cowen & 
Hill's ed.) 502; Austin v. Willes, Bull. N. P. 
264; Jackson v. Christnian, 4 Wend. 277, 
283; Pearson v. Wightman, 1 Const. Ct. 
Kep. 336; Rush ». Purnell, 2 • Harrington, 
448; Rigg v. Wilton, 13111. 15; Jauncev v. 
Thome, 2 Barb. Ch. 40. The subscribing 
witnesses to a will differed in the account 
they gave of the execution, one not recollect- 
ing whether the deceased signed or not, the 
other deposing that she did not see the de^ 
ceased sign. They agreed that the signa^ 
ture was not acknowledged in their presence. 
A witness present at the time deposed that 
the deceased signed her name in the presence. 
of the subscribing witnesses; and on this 
evidence the will was held to be duly exe- 
cuted. Bennett ». Sharp^ 33 Eng. L. & Eq. 
618. But the evidence m favor of the will 
must be clear and full to substantiate it.. 
Handy v. State, 7 Harr. & J.. 42; Pearson v. 
Wightman, 1 Const. Ct. 336; MacKen- 
zie V. Handasyde, 2 Hagg. 211; 2 Stark. 
Ev. (5th Am. ed.) 922; Vernon v. Kirk, 30 
Penn. St. 218. 

If one of the subscribing witnesses, impeach 
the validity of the will on the ground of 
fraud, andaccuse other witnesses, who are 
dead, of being accomplices in the fraud, it 
has been held that evidence, may be given of 
their general good character. 1 Phill. Ev. 

40 



(Cowen & Hill's ed.) 308, 502; 2 Stark. Ev. 
(5th Am. ed.) 922. See Provis v. Reed, 5 
Bing. 435; Doe v. Harris, 7 Carr. & P. 330. 

By placing his name to the instrument,, the 
witness, in effect, certifies to his knowledge 
of the mental capacity of the testator, and 
that the will was executed by him freely and 
understandingly, with a fuU'knowIedge'of its 
contents. ^^Iworth, Chancellor, in Scrib- 
ner v. Crane, 2 Paige, 147. But in Marv- 
land, where an attesting witness to a will 
(who died before the trial) declared, on the 
same day the will was executed, that he had 
witnessed the will, that he did not believe 
the testator, at the time he executed the will, 
to be a sane person, and that he had signed 
the will as a witness merely to gratify the 
testator, it was held that these declarations 
were admissible in evidence, on the ground 
that the attestation of a witness imparts all 
that is requisite to make the will good and 
valid, so fai' as his signature can go; and not 
only convenience and necessity, but justice 
would seem to require that his declarations, 
almost, simultaneous with the act, should be 
admitted to rebut the presumptions of law. 
Townshend v. Townshend, 9 Gil), 506 ; Har- 
den V. Hays, 9 Barr, 151. See Weatherhead v. 
Sewell, 9 Humph. 272. 

Should such witness afterwards attempt to 
impeach his own act, and to prove that the 
testator did not know what he was doing 
when he made his will, though such testi- 
mony will be far indeed from conclusive, 
Hudson's case, Skinn. 79; and Lord Mans- 
field even held that a witness impeaching hia 
own acts, instead of finding credit, deserved 
the pillory, Walton v. Shell v, 1 T. E. 300; 
Lowe V. Jolliffe, 1 Sir Wm. Bl. 366; yet 
Lord Eldon has not gone so far in exclusion 
of such evidence, admitting, however, that 
it is to be received with the most scrupu- 
lous jealousy. Bootle v. Blundell,. 19 Ves. 
504; Howard •». Braithwaite, 1 Ves. & Bea. 
208. Sir John Nicholl .has perhaps laid 
down the most distinct rule, namely, that 
such testimony is not to be positively re- 
jected ; but, at the same time, no fact stated 
by a witness open to such just suspicion can 
be relied oh, where he is not corroborated by 
other evidence. Kinleside v. Harrison, 2 
Phill. 499. It has lately been decided that a 
will may be pronounced for, though both the 
attesting witnesses depose to the incapacity 
of the testator. Le Breton v. Fletcher, 2 
Hagg. 568; 1 Williams, Ex. (6th Am. ed.) 
348; Jauncey v. Thome, 2 Barb. Ch. 40; 
HalU. Hall, 18 Ga. 40. ' So in Landon ». 
Nettlefhip, 2 Addams, 245, a will was pro- 
nounced for against the testimony of two out 
of three of the subscribing witnesses, on the 
question of capacity. 

When the subscribing witnesses to a will 
are dead, and no proof of their handwriting 
can be obtained, as must frequently happi'U 
in the case of old wills, it has been consid- 
ered suflicient to prove the signature of the 
testator alone. 1 Phill. Ev. (Cowen & Hill's- 
ed. ) 503. This was held in a case where the 
will was over thirty vears old. Duncan v. 
Beard, 2 Nott &. M'C."400. 

It is said by Mr. Gieenleaf (1 Greenl. Ev. 



OF THE INSTRUMENT. 



*31 



§§ 21, 570 (see Doe v. Wolley, 8 Barn. & 
0. 22; Jackson v. Christmau, "i Wend. 277, 
282; Hall v. Gittinss, 2 Harr. & J. 112) 
that, '• where deeds and wills are over thirtj' 
years old, and are unblemished by any 
alterations, they are said to prove "them- 
selves ; the bare production thereof is sufii- 
cieut, the subscribing witnesses being pre- 
sumed to be dead. This presumption, so far 
as this rule of e\'idence is concerned, is not 
affected by proof that the witnesses are living. 
But it must appear tliat the instrument comes 
from such custody as to afford a reasonable 
presumption in favor of its genuineness, and 
that it is otherwise free from just grounds 
of suspicion." Proof of possession or other 
acts of ownership under the will, has, liow- 
ever, been held necessaiy, in some cases, in 
connection with the antiquity of the will. 
Jackson v. Luquere, 5 Cowen, 221, 225; 1 
Phill. Ev.. (Coweii & Hill's ed.) 503, 504; 
Fetherley v. Waggoner, 11 Wend. 599; 
Jackson v. Christman, 1 4 Wend. 277, 282, 
283; Shalleri). Brand, 6 Binn. 435; Jackson 
V. Thompson, 6 Cowen, 178; Hewlett D. Cook, 
7 Wend. 374; Staring v. Bowen, 6 Barb. 
Sup. Ct. 109. There is a difference be-, 
tween the English and the American cases 
as to the period from which the thirty years 
are to run, whether from the date of the will 
or from the death of the testator, the English 
cases holding the former and the Amevieaa 
the latter. See Doe v. Wolley, 8 Barn. & 
C- 22; Doe v. Deakin, 3 Carr. & P. 432; 
Jackson v. Blanshan, 3 Johns. 232; Jack- 
son V. Luquere, 5 Cowen, 221, 224 ; Nel- 
son, J., in Hewlett v. Cook, 7 Wend. 374. 
In those states where the probate of a will is 
conclusive in an action at law to try the title 
to the land devised, the will, however old, 
would probably not be received in evidence, 
at common law, unless it had been admitted 
to probate. But, under the statute of 1852 in 
North Carolina, a will dated in 1741, found 
in the office of the Secretary of State, and 
having three subscribing witnesses, and other- 
wise in proper form to pass land, is admis- 
sible in evidence, though there is no other 
evidence of its probate. Stephens v. French, 
3 Jones, 359. 

It is ordinarily held sufficient in courts of 
common law (in those states in which the 
probate of a will is not regarded as conclu- 
sive in respect to lands), to call only one of 
the subscribing witnesses, if he can speak to 
all the circumstances of the attestation ; but 
he must be able, alone, to prove all the facts 
necessary to a full and perfect execution of 
the will," in order to dispense with the other 
witnesses, if they are alive and within the 
jurisdiction of the court. 1 Phill. Ev. (Cowen 
& Hill's ed.) 496; Jackson v. Le Grange, 19 
Johns. 336; Dait v. Brown, 4 Cowen, 483; 
Jackson v. Vickory, 1 Wend. 406; Jackson 
V. Betts, 6 Cowen, 377; Tumipseed ». Haw- 
kins, 1 M'Cord, 272; 2 Greenl. Ev. § 694; 
Howell 17. House, 2 Const. 80; Lindsay v. 
McCormack, 2 A. K. Marsh. 229; Elmendorff 
V. Carmichael, 3 Litt. 479; Denn v. Milton, 7 
Halst. 70. In Pennsylvania, to entitle a will 
to be read to a jury, both witnesses must tes- 
tify as to all that the law requires. Mullen 

41 



V. M'Kelvy, 5 Watts, 399 ; Hock v. Hock, 6 
Serg. & K. 47; Lewis v. Maris, 1 Dall. 278; 
Weigel V. Weigel, 5 Watts, 486. If the ad- 
verse party would impeach the will, he may 
examine the others. 1 Phill. Ev. (Cowen & 
Hill's ed.) 496. 

But on a bill in chancery to establish a 
will, the rule is, that all the witnesses ought 
to be examined by the plaintiff. '■ It is the 
invai'iable practice in chancery," said Lord 
Camden, in the case of Hindson v Kersey, 
4 Burn, Eccl. Law, 93 (see Burwell v. Corbia, 
1 liand. 131, 141; Ogle v. Cook, 1 Ves. 
177; Bailev v. Stiles, 1 Green, Ch. 220; 
Townsend v. Ives, 1 Wils. 218; S. P. Fitz- 
herbert v. Fitzherbert, 4 Bro. C. C. 231; 
Powel V. Cleaver, 2 Bro. C. C. 504) "never 
to establish a will, unless all the witnesses are 
examined, because the heir has a right to 
proof of sanity from every one of those whom 
the statute has placed about his ancestor." 
And, on the trial of an issue directed by the 
Court of Chancery to examine the validity 
of a will, all the attesting witnesses ought to 
be examined ; for the issue , is a part of the 
proceedings of the court. When the court 
sends an issue to be tried, it reserves to itself 
the review of all that passes ; and there would 
be an inconsistency in requiring that all the 
three witnesses should be examined in the 
Court of Chancery yet dispensing with their 
examination on tne trial of an issue at law. 
Bootle V. Blundell, 1 Coop. Ch. 136; 1 
Phill. Ev. (Cowen & Hill's ed.) 496, 497. 
'; There is, however," said Lord Brougham, 
in Tatham v. Wright, 2 Russ. & M. 1, "a 
broad line of distinction between cases where 
the moving party seeks to set the will aside, 
and cases where the moving party is a de- 
visee seeking to establish it ; the rule which 
makes it imperative to call all the witnesses 
to a will must be considered as applicable to 
the latter only." And although the general 
rule is, that upon every issue directed out of 
chancery and trial at law to ascertain the 
validity of a will, all the witnesses to the 
will should be examined, if practicable, un- 
less the heir should waive the proof, yet this 
rule is not absolutely inflexible, but it will 
yield to peculiar circumstances. 2 Story, Eq. 
Jur. § 1447; Tatham v. Wright, 2 Russ. & 
M. 1; Bootle v. Blundell, 19 Ves. 499, 502, 
505, 609. 

If a Tvill duly executed, and not revoked, 
is lost, destroyed, or mislaid, either in the 
lifetime of the testator, without his knowl- 
edge, or after his death, it ma}' be admitted 
to probate upon satisfactory proof being given 
of its having been so lost, destroyed, or mis- 
laid, and also of its contents. Trevelyan v. 
Trevelvan, 1 Phillim. 149; Davis v. Davis. 2 
Addanis, 224; Graham v. O'Fallan, 3 Mo. 
507 ; Jackson v. Betts, 9 Cowen, 208 ; 
Dickey v. Malechi, 6 Mo. 177; Bailey v. 
Stiles, 1 Green, Ch. 220 ; Reeves v. Reeves, 
2 Const. 334; Clark v. Wright, 3 Pick. 67 ; 1 
Edw. Ch. 148; Dan v. Brown, 4 Cowen, 483; 
2 Dana, 106; Jackson v. Russell, 4 Wend. 
543; Kearns v. Kearns, 4 Harrington, 83; 
Buchanan V. Matlock, 8 Humph. 390. 

Where the testator handed his will to a 
person to keep for him, and four years after- 



*31 POEM AND CHAEACTEEISTICS OF TBEE INSTEUMENT. 



wards died, when the will was found gnawed 
to pieces by rats, and in part illegible; on 
proof of the substance of the will, by the 
joining of tbe pieces, and the memory of wit- 
nesses, the probate . was granted. " 1 Wil- 
liams, Ex. (6th Am. ed.) 380. 

If a will be wholly or partiallv cancelled, 
or destroyed, by the testator whilst of un- 
sound mind, probate will be granted of it, as 
it existed in its integral state, that being 
ascertainable. Scruby v. Fordham, 1 Ad-' 
dams, 74 ; Apperson v, Cottrell, 3 Port. 51 ; 
Rhodes v. Vinson, 9 Gill, 169. But to entitle 
a party to give parol evidence of the contents 
of a will, afieged to be destroj^ed, where there 
is not conclusive evidence of its absolute 
destruction, the party must show that he has- 
made diligent search and inquiry after the 
will^ in those places where it would most 
probably be found, if in existence. Jackson 
V. Hjisbrouck, 12 Johns. 192 ; Dan v. Brown, 
4 Coweh, 483; Fetherley ». Waggoner, 11 
Wend.' 599; Jackson v. Belts, 9 Cowen, 208; 
Eure V. Pittman, 3 Hawkes, 364. The evi- 
dence must be most clear and satisfactory of 
the whole contents of the will so lost, de- 
stroyed, or mislaid, or it cannot he admitted 
to probate. Uavis v. Sigourney, 8 Met. 487 ; 
Durlee v. Durfee, ib. 49(), note ; Huble i>. 
Clark, 1 Hagg. Eccl. 115; Rhodes v. Vinson; 
9 Gill, 169. Sometimes a copy of the origi-' 
nal will in the hands of the scrivener is the 
only evidence, and sometimes a will is set up 
solely from the recollection of those who read 
it before it was destroyed. 2 Caiues, 363; 



Jackson v. Russell, 4 Wend. 543 ; Harr. Eq.' 
243: Smith «. Steele, 1 Harr. & M'H.419; 
2 Harr. & J. 112; Happy's will, 4 Bibb, 553. 
In Steele v. Price, 5 B. TVIon. 58, it was held 
that where awill is proved to have been duly 
published, but is lost or destroyed, and only 
a part of the contents is proved, it may be 
established as far as proved. It would seem 
that, independent of statute, a single witness 
is sufficient to prove a lost or destroyed will. 
Lewis V. Lewis, 6 Serg. & R. 497. "One wit- 
ness to a will lost or destroyed has been held 
enough to establish the due execution thereof, 
if he could, declare that he saw the other wit- 
ness subscribe it in the testator's presence. 
Graham v. O'Fallan, 3 Mo. 507. But in 
Bailej' v. Stiles, 1 Green, Ch. 231, it is as- 
sumed, that the subscribing witnesses to a 
lost will must be produced as in other cases, 
with -the same exceptions in case of death, 
absence from, the state, &c., and this is un- 
doubtedly the true rule. In Johnson v. 
Durant, 2 Rich. 184, it was held, on the 
trial of a suggestion to set up a lost or 
destroyed will, that a subscribing witness to 
the Will, who was named one of the execu- 
tors, but who had renounced the executor- 
ship, was competent to prove the contents of 
the will. Where a prior will has been re- 
voked by a subsequent one, and both are 
imprbpet"ly destroyed, the first instrument 
canpot be set up "as the testator's will by 
proof of its contents, although the contents 
of the second cannot be ascertained. Day v. 
Day, 2 Green, Ch. 549. 



42 



INFANCY. *32 



* CHAPTER III. *32 

PEESONAL DISABILITIES OP TESTATORS (a). 

The general testamentary power over freehold lands of inheritance 
was originally- conferred bj^ the statute of 32 Hen. 8, o. 1, into the pre- 
cise import of which it is now unnecessary to inquire, as it was quickly 
followed by the explanatory' act of 34 & 35 Hen. 8, c. 6 (b) , which, 
after reciting the former statute, enacted, "That all and pei-sons hav- 
singular person and persons having a sole estate or interest jngsoiees- 
in fee simple, or seised in fee simple in coparcenary, or in enabled to 
common in fee simple, of and in any manors, lands; tene- devise. 
ments, rents, or other hereditaments, in possession, reversion, or re- 
mainder, [or of rents or services incident to anj^ reversion or remainder, 
and having no manors, lands, tenements, or hereditaments, holden of 
the king, his heirs or successors, or of any other person or persons bj' 
knight's service .(c),j shall have full and free liberty, power, and author- 
ity to give, dispose, will, or devise to any person or persons (except 
bodies politic and corporate) , by his last will and testament in writing, 
as much as in him of right is. or shall be, all his said manors, lands, 
tenements, rents, hereditaments, or any of them, or anj^ rents, com- 
mons, or other profits or commodities out of or to be perceived of the 
same, or out of any parcel thereof, at his own free will and pleasure." 
[The statute then proceeds to empower persons holding by knight's ser- 
vice to devise two parts of their lands.] 

Sect. 14 provides that wills or testaments made of any manors, &c., 
by any woman coverte, or person within the age of twentj'- Exception as 

1 . T , 1 ■ J, to feme.s co- 

one years, ^ idiot, or bj- any person of non-sane memory, ^ertes, in- 
sliall not be taken to be good or effectual in law. This f?"ts, luna- 
clause did not create any disability- that was unknown, or, idiots. 

f(n) Tlie subject of this chapter, especially with reference to the decisions in the Ecclesi- 
astical Courts, is very fullv treated of in Williams on Executors, Pt. I.- Bk. II. c. 3.] 

(A) Ir. Pari. 10. Car. 1,'sess. 2, c. 2. 

[(c) The statute 12 Car. 2, c. 24; by changing tenure by knight's service into free and 
common socage tenure, in effect abolished this exception.] 

1 There is great lack of uniformity as to Delaware. Rev. Code, 1874, ch. 84, p. 508. 

the age of capacitj' for making wills under Florida. Bush's Digest, 1872, ch. 4, p. 75. 

the laws of the several states. In some Indiana. Stat. 1876, Vol. 2, ch. 3, p. 570. 

of, the states the testator, whether male or Iowa. Rev. Code, 1880, Vol. 1, ch. 2, 
female, must be of the age of twenty-one p. 607. 

years, to make a will either of personalty or Kansas. Comp. Laws, 1879, ch. 117. p. 1001. 

of realty: — Keiituckj'. Gen. Stat. 1873, ch. 113, p. 831. 

43 



*33 PEESONAL DISABILITIES OP TESTATOES. 

indeed, comprise all that were known to the common law ; but 
*33 seems to have been * dictated bj- an apprehension that the general 

terms of the prior act of the thirtj'-second year of the same reign 
might possibly have had the effect of removing pre-existing disabilities, 
according to the construction given to the nearly contemporary Statute 
of Jointures (d) . That the disqualifications in question were not the 
As to wills of creation of the statute, is evident from the fact that they all 
infants. extended equally to the bequeathing of personal estate, ex- 

cept that infants of a certain age, namely, males of fourteen and females 
of twelve, were, at the period now under consideration, competent to 
dispose by will of personalty (e) ; and such a will was valid, although 
the testator or testatrix afterwards lived to attain majority without 
confirming it (/). On the other hand, infants of every age were (as 
they still are) incompetent to alien any portion of their property, real 
or personal, by deed. In some places a custom exists, or rather did 
exist (for it is to be remembered we are now speaking of the old law) , 
enabling infants to devise even real estate ; but it was essential to the 
validity of such a- custom, that it prescribed some definite and reasona- 
ble age ; for a custom authorizing the making of a will by persons 
too young to be capable of exercising a discretion would be no less 
absurd than one which should empower lunatics or idiots to devise 
their property (ff) . 

.{d) 27 Hen. S.c. 10. 

(6) Bishop u. Shavpe, 2 Vern. 469; Whitmore v. Weld, 2 Ch. Rep. 383 ; Hyde v. Hyde, 
Pre. Ch. 316 ; [Co. Lit. 896, n. (6).] (/) Hinckley v. Simmons, i Yes. 160. 

{(/) 2 Anders. 12. Fourteen, it seems, would be considered a proper age. 

Maine. -K. S. 1871, ch. 74, 564. Oregon. Gen. Laws, 1843-1872, ch. 64, 

Massachusetts. Gen. Stat. 1860, ch. 92, p. 788. 

p. 476. Rhode Island. Gen. Stat. 1872, ch. 171, 

Michigan. Comp. Laws, 1871, Vol. 2, ch. pp. 373, 374. 

154 pp. 1371, 1372. Virginia. Code, 1873, ch. 118, p. 910. 

Minnesota. Stat. 1878, ch.'47. pp. 567, 568. West Virginia. R. S. 1878, ch. 201, p. 1168. 

. Mississippi. Rev. Code, 1871, ch. 54, The laws of some of the other States make 

p; 525. ' a distinction in respect of age between males 

Nebraska. Gen. Stat. 1873, ch. 17, pp. 299, . and females. 

300. Colorado. Gen. Laws, 1877, ch. 103, p. 929. 

New Hampshire. Gen. Laws; 1878, ch. Illinois; R. S. 1880, ch.'148, p. 1108. 

193. p. 454. ,, Maryland. Rev. Code, 1878, art. 49, p. 419. 

New Jersey. Revision, 1709-1877, p. 1244. In New York, males of eighteen and fe- 

North Carolina. Battle's Revisal, 1873. males of sixteen years may dispose of per- 

p. 847. sonaltv, R. S. 1875, Vol. 3, "ch. 6, p. 60. 

Ohio. R. S. 1880, Vol. 2, ch. 1, p. 1424. In Colorado, Gen. Stat. 1877, ch. 103, 

Pennsylvania. Bright. Purd. Digest, p. 929, persons, over seventeen years of age 

1700-187^, Vol. 2, p. 1474. mav dispose of personal estate. 

South Carolina. R. S. 1873, ch. 86, p. 442. In Wisconsin, a dis'inction is made in 

Texas. R. S. 1879, Title 99, p. 712, or if favor of an infant married woman of the age 

lawfully married. of eighteen years, R. S. 1878, ch. 103, p. 650. 

Vermont. Gen. Stat. 1862, ch. 49, p. 377. Every person over the age of eighteen 

In other States a distinction is made con- years may dispose of both real and personal 

cerning wills of personalty and of realty, the estate, in California, Codes & Slat. 1876, 

age of twenty-one being generally, but not Vol. 1., ch. 1, p. 719. So in 

universally, ' required for the execution of Connecticut. Gen. Stat. 1875, ch. 2, 

wills of realty, while personalty may be dis- p. 368. 

posed of by younger persons, generally of Dakota. Rev. Code, 1877, Title 5, ch. 1, 

the age of eighteen years. p. 343. 

Alabama. Code," 1876, ch. 2, pp. 585, 586; Nevada. Comp. Laws, 1873, Vol. 1 ch. 37. 

Arkansas. Digest, 1874, ch. 135, p. 1012. p. 199. ' ' 

Missouri. E. S. 1879, Vol. 1, ch. 71, p. 679. Utah. Comp. Laws, 1876, ch. 2, p. 271. 

44 



INFANCY. *34 

The disability of infancy was expressly taken away, in regard to the 
paternal appointment of testamentary guardians, by the stat- ^g to testa- 
ute of 12 Car. 2, c. 24, s. 8, which enabled any father, within mentary op- 
the age of twenty-one, or of full age, who should leave any guardLns by 
child under twenty-one, and not married, hy deed or will, mfants. 
executed in the presence of two witnesses, to dispose of the custody of 
such child or children during such time as he or they should continue 
under twenty-one, or any less time, to any person or persons other than 
Popish recusants {li) ; and it gave to such person the custody of the 
infant's estate, both real and personal, and the same actions as guar- 
dians in .socage. 

The guardianship draws after it the custody of the land which 
the infancy of tlie father would have prevented him from devising di- 
rectly (i) ; and it is observable, that though the authority' of guar- 
dians, appointed under the statute of Charles, does not * extend *34 
to infant children who are married at the father's death, yet as 
to children who are then unmarried, the guardianship is not determined 
by subsequent marriage {J). The statute has been held not to interfere 
with the lord's right [by special custom] to the guardianship of his 
infant copyhold tenant {k). 

The will of an idiot is of course void {I). Mental imbecility arising 
from advanced age, or produced permanently or temporarily wills of 
bj'' excessive drinking, or any other cause, may destroy tes- ■diu's- 
tamentarj' power (m)} 

(A) This exception seems to be now inoperative : see Simpson on Infants,, p. 201, and 
stats, cited. (i) Bedeil v Constable, Vaiigh. 178. 

(j) Earl ot Shaftsbury's Case, cit. 3 Atk. 625, [2 P. W. 102; but see contra as to daugli- 
ters, 1 Ves. 91, per Lord Hardwicie.] (k) Clench v. Cudmore, 3 Lev. 395. 

(/) Dyer, 143 b. 

(m) See Swinb. P. II. ss. 5, 6. [And as to the difference in proof of lucid intervals in 
case of imbecility from drinking and ordinary imbecility, see Ayrev v. Hill, 2 Add. 206. In 
Foot V. Stanton, 1 Deane, 19, the will of a person subject to epileptic fits was admitted to 
probate, although there was no evidence that the testatrix knew its contents, the memory of 
the attesting witnesses failed, and a third person declared she was unfit to make a will. 

1 Extreme old age does not of itself dis- v. Williamson, 1 Green, Ch. 82, a will was 

qualify a person from making a will, since it sustained, although the testator was eighty 

is not the soundness of the bod.v but of the years of age, very deaf, and his eyesight was 

mind that is requisite in testaments. Ex- (iefective when he made his will. In Reed'' s 

treme age may raise some doubt of capacity. Will, 2 B. Mon. 79, the testator was eighty 

but only so far as to excite the vigilance of years of age, and was afflii'ted with the palsy 

the court. Kinleside ». Harrison, 2 Phillim. so that he could neither write nor feed him- 

461; Griffiths v. Robins, 3 Madd. 192; Potts self, and his will was held valid. See also 

V. House, 6 Ga. 324; Kirkwood «. Gordon, Watson v. Watson, 2 B. Mon. 74; White- 

7 Rich. 474. Yet if a man in his old age nack v. Stryker, 1 Green, Ch. 8; Andress 

become a very child again in his understand- v. Weller, 2 Green, Ch. 605; Stevens v. Van- 

ing, or is become so forgetful that he knows cleve, 4 Wash. C. C. 262; Bird v. Bird, 2 

not his own name, he is then deemed no more Hagg. 142; Mackenzie v. Handasyde, 2 

tit to make his testament than a natural fool, Hagg. 211 ; Nailing v. Nailing, 2 Sneed, 630. 

or a child, or a lunatic person. Swinb. Pt 2, " He that is overcome by drink," says Swin- 

§ 5, pi. 1; Godolph. Pt. 1, c. 8, § 4; Birds. burne, Pt. 2, § 6, "during the time of his 

Bird. 2 Hagg. 142; Lewis t>. Pead, 1 Ves. drunkenness is compared to a madman, and 

Jr. 19; Shelf. Lunacy, 276. See Van Alst therefore, if he make his testament at that 

(I. Hunter, 5 Johns". Ch. 148; Sloan v. time, it is void in law, Duffield i'. Robeson, 

Maxwell, 2 Green, Ch. 581; B(mner v. 2 Harrington, 375, 383; which is to be under- 

Matthews, cited Shelf. Lunacy, 327. In Lowe stood, when he is so excessively drunk that 

45 



*34 



PERSONAL DISABILITIES OP TESTATORS. 



Of persons 
deaf and 
blind. 



A person who has been from his nativity blind, deaf, and dumb, is 
intellectually incapable of making a wiU, as he wants those 
senses through which ideas are received into the mind (w). 
Blindness .or deafness alone, however, produces no such in- 
capacity. [It seems, however, that a person born deaf and dumb, but 
not blind, though prima facie incapable (o), may be shown to have 
capacity, and to understand what is written down {p) ; ^ and this of 

(71) See Co. Lit. 42 b. (ol Swinb. P. II. s. 10. 

(/>) Diclienson «. Blissett, 1 Dick. 268; In re Harper, 6 M. & Gr. 731, 7 Scott, N. K. 431. 
Aa to the evidence required, see Ke Owaton, 31 L. J. Prob. 177 ; Ee Geale, 33 L. J. Prob. 
125. 



he is utterly deprived, of the use of reason 
.and understanding, otherwise, albeit his un- 
derstanding is obscured, and his memory- 
troubled, vet he may make his testament, 
being in tliat case." On one occasion, where 
it appeared that the testator was a person not 
properly insane or deranged, but habitually 
addicted to the use of spirituous liquors, 
under the actual excitement of which he 
talked and acted in most respects like a mad- 
man, it was held that, as the testator was 
not under the excitement of liquor at the time 
of making his will, he was not to be consid- 
ered as insane. The will was aecoi'dingly 
established; and the court pointed out the 
dilfereuce between such a case and one of 
"actual insanity. Insanity, it was said, might 
often be latent, whereas there can scarcely 
be such a thing as latent ebriety; and conse- 
quently in a case like tlie one under consid- 
eration, all that was to be shown was the 
absence of the excitement at the time of the 
;act done ; at least, the absence of excitement 
in any such degree as would vitiate the 
act done. Ayrey v. Hill, 2 Addams, 206; 
Shelf. I.unacv, 276. See also Wheeler v. 
Alderson, 3 "Hagg. 602, 608; Starrett v. 
Douglass, 2 Yeates, 43 ; Black v. Ellis, 3 Hill 
(S. C), 68; Shelf. Lunacy, 304. In An- 
dress v. Weller, 2 Green, Uh. 6Q4, 608, it was 
held that, if the testator's habits of intoxica- 
tion were, not such as to render him habit- 
ually incompetent for the transaction of 
business, it was necessary for the party set- 
ting up the incapacity of the testator on the 
ground of casual intoxication, to show its 
existence at the time of executing his will. 
See Harper's Will, 4 Bibb, 244. Hence, 
where no fixed and settled delusion is shown, 
and consequently no decided insanity, and 
ah extravagant "act of a party can be ac- 
counted for by the excitement of liquor, 
while at all other times his mind was sound; 
in order to avoid a will made by him, it must 
be proved that he was so excited by liquor, 
or so conducted himself during the particular 
act. as to be at that moment legallv disquali- 
ijed from giving effect to it. >(\''heeler «. 
Alderson, 3 Hagg. 606; Shelf. Lunacy, 
276. In a suit to set aside a will on the 
ground that the testator was intoxicated at 
the time of executing it, his declarations, 
Bubsenuenlly made, "' that he never made 
the will ; that if he signed it, thi'y got him 
druuk and made him do it ; that he had no 



46 



recollection of it ; " have been held inadmis- 
sible. Gibson v. Gibson, 24 Mo. 227. 

1 In a case of mere blindness, with no 
allegation of fraud, midue influence, or the 
like, the court will grant probate of the will 
upon satisfactory evidence that the testator 
knew and approved of the contents of the 
instrument. In re Axford, 1 Swab. & T. 
540. The evidence naturally expected in 
such a case is that of the reading over the 
contents to the testator, perhaps in the pres- 
ence of those who witness the will. Fineham 
V. Edwards, 3 Curteis, 63 ; Weir v. Fitzger- 
ald, 2 Bradf. 42. But other evidence show- 
ing that he was acquainted with the contents 
may be received. lb.; Barton v. Robins, 

3 Phillim. 455, n.; Harrison v. Rowan, 3 
Wash. C. C. 580, 583; Clifton v. Murrav, 
7 Ga. 564; Wampler.u. Wampler, 9 Md. 540 
(where the will was read to the testator, but 
not before the attesting witnesses); Long- 
champ V. Goodfellow, 2 Bos. & P. N. E. 415 
(to (he same effect); Martin w. Mitchell, 
28 Ga. 382 (the same); Davis v. Rogers, 
1 Houst. 44. See further, Lewis ». Lewis, 
6 Serg. & E. 489. The case of one who can- 
not read appears to stand upon similar foot- 
ing. It should be shown that he was aware 
of the contents of the will ; but it is not nec- 
essary that the will should be read over to 
him if the fact of the testator's knowledge 
can be otherwise clearly shown. Guthrie v. 
Price, 23 Ark. 396 i, Day v. Day, 2 Green, 
Ch. 551 (where the inabilitj' to read was due 
to the physical weakness of the testator). 
Deafness, though absolute, cannot, of course, 
create incapacity to make a will. See Gom- 
bault V. Public Admr., 4 Bradf. 226. Nor is 
the case different, though the person be both 
deaf and dumb from birth. Brower i). Fisher, 

4 Johns. Ch. 441; Potts v. House, Ga. 324, 
356. Though it was formerly considered 
that such a person was to be pres"umed. in-ima 

facie, to be an idiot. Potts r. House supra. 
That perhaps woidd not now be the case. 
The modern authorities go no further than 
to require very great scrutiny, in suth cases, 
into the testator's knowledge and approval 
of the contents of the will. In re (ieale, 3 
Swab. & T. 431; In re Owston, 2 Swab. & 
T. 461. The difference in legal effpct is little 
less than one of words; for the party's tes- 
tamentary capacity must be proved. " So far 
as any question of absolute incapacitv is con- 
cerned, no intelligent court would" at the 



INSANITY, WEAKNESS OF MIND. *35 

course applies more strongly to a person deaf and dumb from acci- 
dent (gi).] Indeed, it has even been held that a will need not be read 
over to a blind testator previously to its execution, [provided there be 
proof aliunde of a clear knowledge of the contents of the instrament (r) ; 
but] it is almost superfluous to observe, that, in proportion as the 
infirmities of a testator expose him to deception, it becomes imper- 
atively the duty, and should be anxiouslj' the care, of all persons 
assisting in the testamentarj"^ transaction, to be prepared with the 
clearest proof that no imposition has been practised. This remark 
especiallj- applies to wills executed by the inmates 
of lunatic asylums («),* or any other persons habitu- *35 
allj- or occasionally afflicted with insanity. 

A mad or lunatic person cannot, during the insanity of his mind, 
mal':e a testament of land or goods ; but if, during a lucid interval, he 
make a testament, it will be good {t). Lord Hard wi eke has _ 
observed that fraud and imposition upon weakness may be 
a sufficient ground to set aside a will of real, much more a wiU of per- 
sonal estate {sed qucere as to this distinction?) although such weakness 
is not a sufficient ground for a commission of lunacy («). And in 
Mountain v. Bennett (a;). Lord C. B. Ej're laid it down, that u„j„g j^au. 
although a man may have a mind of sufficient soundness and ence over a . 
discretion to manage his affairs in general, j'et if such a do- ^"^'^ '^ '"'" 
minion or influence be obtained over him as to prevent his exercising 
that discretion in the making his will, he cannot be considered as hav- 
ing such a disposing mind as will give it effect. In this case the will 
was attempted to be invalidated on the ground that it was obtained by 
the undue influence of the testator's wife, whom he had married from an 
inferior station ; but the will was finally supported, amidst much con- 
flicting testimonj' as to the state of the testator's mind, principally on 
the evidence of the attesting witnesses, who were persons of high char- 
acter and respectability, and were unanimous as to the testator's sanity 
and freedom from control.^ 

(?) Swinb. P. IL s. 10.] 

(»■) Longchamp d. Goodfellow «. Fish, 2 B. & P. N. R. 415 ; [Edwards v. Fincham, 3 Curt. 
63, r Jur. 25; and see Mitchell ». Tliomas, 6 Moo. P. C. C. 137, 12 Jur. 967.] 

(s) Lord Eidon once mentioned his having been concerned in a cause, in which a gentle- 
man who had been some time insane, and was confined at Richmond, had made a will. It 
was, his Lordship observed, of large contents, proportioning the different divisions with the 
most prudent care, with a due regard to what he had previously done for the objects of his 
bounty, and in every respect pirrsuant to what he declared before his maladv he intended to 
have done; and it was held that he was of sound mind at the time. See 1 Dow, 179; [Mar- 
tin «. Johnston, 1 Fost. & Finl. 122; Nichols r. Binns, 1 Sw. & Tr 239.] 

(() Swinb. P. II. s. 3, pi. 1. 4; Beverley's case, 4 Rep. 123 b; Kemble v. Church, 3 
Hagg. 273. (m) Vide 2 Ves. 408. {x) 1 Cox, 355. 

present dav affirm such incapacity even of a was the necessary consequence of the peculiar 

person dea'f, dumb, and blind. See Reynolds formulary system of that law: they could 

V. Reynolds, ] Speer, 256, 257. It may, be not do the physical acts required. G4ius, ii. 

added that the disability, under the Roman 102-104 ; Inst. ii. 12, 3. 

law, of persons deaf or dumb to execute wills, 1 The question whether a Will is the free 

like the disability of such persons to contract and voluntary act of the testator, or the re- 

(explained, 2 Kent, Com. 451, n., 12th ed.), suit of fraud or of influences operating upon 

■ 47 



*35 



PEESONAL DISABILITIES OP TESTATORS. 



[In cases of weakness of mind arising from the near approach of 



him in consequence of which his will was 
made sabordinate to that of another, depends 
upon the question, whether he had sufficient 
intelligence to detect the fraud or strength of 
will to resist the influences brought to bear 
upon hira. Griffith v, Diffenderffer, 50 Md. 
4f)6, 480. The state of mind and of body of 
the testator, at the time of executing the will, 
accordingly becomes material upon a ques- 
tion of fraud or of undue influence. What 
would, tor example, be improper influence in 
a person of feeble health, might not be such 
in tlie case of one in robust health ; and it is 
thought that, in some cases, the declarations 
of the testator may be satisfactory evidence 
tliereof, as where they are made soon after the 
execution of the will. lb. But there is much 
conflict of authority as to the admissibility of 
such evidence. lb. ; Waterman v. Whitney, 
1 Kern. 188; Bovlan v. Meelcer, i Dutch. 2f4. 
If a testator, after executing a will, should 
say that the will was forced from him, or 
that it was executed by him under pressure 
of undue influence, such evidence, of course, 
would be hearsay, and inadmissible. Mooney 
«. Olsen, 22 Kans. 69, 76 ; Cudney v. Cudnev, 
68 N. Y. 148; Jaclcson u. Kniiien, 2 Johns. 
31; Stevens o. Vancleve, 4 Wash. C. C. 265; 
Haves ». West, 37 Ind. 21. But while the 
declarations of the testator are not admis- 
sible tor such a purpose, they are admissible 
for the purpose of showing the state of his 
mind. Mooney r. Olsen, supra; Watermnn 
V. Whitney, 11 N. Y. 157. The difference 
appears to be the difference between declara- 
tions concerning some external fact, such as 
fraud or undue mfluence, which itself is com- 
monly mere matter of inference from other 
facts, and the effect of those declarations (or 
rather statements, facts, acts, and conduct of 
the testator), in showing the party's mental 
condition at the time he executeS the will, 
lb. See further, as to the admissibility of 
the testator's declarations on the question of 
undue influence, Allen v. Public Admr., 1 
Bradf. 378; Dennis v. Weekes, 51 Ga. 24. 
When it has been proved that a will has been 
executed with due solemnities, the burden of 
proving that it was executed under undue 
influence rests upon the party who make's the 
objection. Boyse ». Rossborough, 6 H. L. Gas. 
2, 49 ; Tyler v. Gardiner, 35 N. Y. 559; Davis 
1). Davis,' 123 Mass. 590; Baldwin u. Parker, 
99 Mass. 79. He. must, at least, show facts 
from which the court will be justified in 
treating the circumstances attending the exe- 
cution of the will as suspicious. Further, in 
order to set aside the will of a person of 
sound mind, it is not sufficient that the cii'- 
cumstances are consistent with the hypothesis 
that it was obtained by undue influence. It 
must be shown that "they are inconsistent 
with a contrary hypothesis. lb. p. 51. A 
distinction is made in some authorities between 
control and undue influence. Control is con- 
sidered more easily capable of description 
approaching deflnition, because it imports 
sometliing of the nature of duress or fear. 
On the question of undue influence, such defi- 

48 



niteness cannot be predicated. lb. The 
books, however, afford the general guide. 
For example, it has been observed that im- 
portunity must be such as to take away the 
testator's free agency. Kinleside v. Harrison, 
2 Phillim. 551; Davis ». Calvert, 6 Gill & J. 
302; Wampler 0. Wampler, 9 Md. 540; Small 
«. Small, 4 Greenl. 223; Eckert v. Flowry, 43 
Penn. St. 46; McMahon v. Kyan, 20 Penn. 
St. 329; Blakevi!. Blakev, 33 Ala. 611'; Hall 
I). Hall, 38 Ala'. 131; Turner c. Cheesman, 15 
N. J. Eq. 243. In other words, the influence 
necessary to vitiate the will must amount to 
force ^and coercion in its effect upon free 
agency. Williams v. Goude, 1 Hagg. 577; 
Morris v. Stokes, 21 Ga. 562; Eollwagen o. 
Eollwagen, 63 N. Y. 504; Armstrong v. 
Huddlestone, 1 Moore, P. C. 478 ; Children's 
Aid Soc. ». Loveridge, 70 N. Y. 387, 394; 
Gardiner v. Gardiner, 34 N. Y. 155, 162; 
Seguine v. Seguine, 3 Keyes, 663, 669 ; Brick 
». Brick, 66 N. Y. 144 ; "Coit o. Patchen, 77 
N. Y. 394. In other cases, it is said that 
undue influence, in the legal sense, must be 
influence which can justly be described, by 
a person looking at the matter judicially, to 
have caused the execution of a paper pre- 
tending to express the testator's mind, which 
really did not express his mind, but ex- 
pressed something else, something which he 
did not really mean. Bovse v. Rossborough, 
6 H. L. Cas. 2, 34. In "this case, the I-ord 
Chancellor observed that, in a popular sense, 
we often speak of a person exercising undue 
influence over another when the influence is 
not of a nature to invalidate a will. And his 
meaning was thus illustrated : A young man 
is sometimes led into dissipation by following 
the example of a- person of maturer years, 
to whom he looks up, and who leads him 
to consider habits of dissipation, perhaps, as 
creditable. The companion is then said to 
exercise undue influence. But if, in these 
circumstances, the young man, influenced by 
his regard for the person who had thus led 
him astray, were to make a will and leave 
him everything he possessed, the will cer- 
tainly could not be impeached for undue in- 
fluence. Nor would the case be altered 
merely because the companion had urged 
or even importuned the testator so lo dis- 
pose of his property ; provided only the young 
man was really carrying into effect his own 
intention, formed without either coercion or 
fraud. If, however, the will be really the 
will of anotlier, as where the testator has as- 
sented from mere habit of yielding to the 
person, and that habit has been produced by 
prostration of mind and body, the supposed 
will is invalid. Newhou.se r. Godwin, 17 
Barb. 236. The difficulty of fixing upon the 
point at which influence exerted over the 
mind of a testator becomes legally undue, is 

freatly enhanced when the question arises 
etween husband and wife. It is both diffi- 
cult to inquire and impolitic to permit in- 
quiry into all that may have passed in this 
intimate relation. But the difficulty is one 
of fact ; and the general criterion is probably 



"WEAKNESS OF MIND. 



•^35 



death, strong proof is required that the contents of the will were 

case for a person by honest intercession and 
persuasion, or by fair and flattering speech, 
to procure a will in favor of himself or of an- 
other person. Calvert i-. Davis, 5 Gill & J. 
301. See HaiTison's Will, 1 B. Mon. 351; 
Sechrest v. Edwards, 4 Met. (Ky.) 163; El- 
liott's Will, 2 J. J. Marsh, 340; Gilreath «. 
Gilreath, 4 Jones, Eq. 142 ; Yoe v. McCord, 
74 111. 33; Tyler v. Gardiner, 35 N. Y. 559. 
It maybe added that undue influence is more 
readily inferred of a husband over his wife 
than the reverse. Marsh v. TjTrell, 2 Hagg. 
84, and that neither kindness of action, 
Eddy's case, 32 N. J. Eq. 701; In re Gil- 
lespie, 26 N. J. Eq. 523; Tawney v. Long, 
76 Penn. St. 106, nor bad treatment can 
alone show undue influence, Tawnev v. 
Long, supra. See Tingley v. Cowgill, 48 
Mo. 291. It will be correctly inferred, from 
what has been stated, that to invalidate a. 
will for undue influence (and the same is true 
of fraud) it must be shown that this was ex- 
ercised with respect to the will itself, or so 
contemporaneously, or so connected with it, 
as by almost necessary presumption to affect 
it. Other acts not retating to the bounty in 
question, even though contemporaneous, are 
only evidence to raise suspicion against any 
act done under the superintendence or by 
the interference of those committing it. 
Jones V. Godrich, 5 Moore, P. 0. 16, 40; 
Rutherford v. Morris, 77 111. 397; Eckert w. 
Eckert, 40 Penn. St. 46; McMahon v. Rvan, 
20 Penn. St. 329. Thus threats, violence, or 
undue influence long past, cannot be shewn 
to impeach a will. ' Wainwright's Appeal, 
89 Penn. St. 222: McMahon v. Rvan, 21 
Penn. St. 329; Eckert ». Elowry, 43 Penn. 
St. 417; Thompson v. Kyner, 65 Penn. 
St. 368. Secus of contemporaneous throats, 
though only of estrangement and non-inter- 
course. M'oore v. Blauvelt, 15 N. J. Eq. 367.. 
But this rule as to past acts should not bft' 
cai-ried too far. Where a jury, for instance,, 
see that, at and near the time when the wiill 
sought to be impeached was executed, the^ 
alleged testator was, in other importajit 
transactions, so under the influence of the- 
person benefited by the will that as to him^ 
lie was not a frpe agent, but was acting-; 
under control, the cn-cumstances may he', 
such as fairlj' to wan'ant the conclusion, even 
in the absence of evidence bearing' directly 
upon the execution of the will,, that, iu regard 
to that also, the same undue iviftuenoewas ex- 
ercised. Boysec Rossbor,ougli, 6HI L, Cas.2, 
51 ; Rossborough v. Boyse, 3 Ii-ish (Jh. 489, 
510. It is upon the general principlfe that fraud 
or undue influence must be practised; towards 
the will, that it is held that frauds orundue 
influence in procuring one Itegacy willl not 
perse invalidate other legacies;, but if the 
fraud or undue influence affect the whole' 
will, the whole will be void, though the- 
wrongful conduct was the conduct of but one- 
of several beneficiaries. Florey v. Florey,. 
24 Ala. 241. And if the portion affected by- 
undue influence be inseparable from the i-est 
of the will, it seems that the whole is invalid. 
See Baker's Will, 2 Kedf. 179. Nor will a 



the same as in other cases. It has been laid 
down in the House of Lords, that the influ- 
ence in such a oase must amount to coercion 
or fraud. Boyse i: Rossborough, supra. It 
was observed, for example, in this case, that 
if a wife, by falsehood, raise prejudice in the 
mind other hu.sband against those who would 
be the natural objects of his bounty, and, by 
contrivance, keep him from intercourse with 
his relatives, to the end that these impres- 
sions which she knows he has thus formed to 
their disadvantage may not be removed, such 
acts ma}' avoid the will. But a will cannot 
be set aside on account of any persuasions or 
representations of the testator's -wife, even 
while the testator is at the point of death, to 
induce him to make a more liberal provision 
than he is disposed to make, though it should 
appear that such persuasions had prevailed 
npon him to comply with her wishes; pro- 
vided it appear that the testator was of sound 
mind, and was not imposed upon by false 
representations, and that the provision made 
for the wife is not greatly disproportionate to 
that of others near of kin, nor unreasonable. 
Lide V. Lide, 2 Brev. 403. Indeed, it has 
been declared that when a wife has, -by her 
virtues, so gained the affection of her hus- 
band that " her good pleasure is a law to 
him," the result cannot be undue; and 
though the husband, while thus situated, 
should by will give his whole property to his 
wife, there would be no legal ground for im- 
peaching the disposition. Small v. Small, -4 
Greenl. 223. Nor, according to the authtn-- 
ities, would it be proper to set aside a will 
of the husband in favor of his wife, on the 
ground of influence, importunity, or un- 
due advantage taken by the wife, though it 
should appear that she possessed a powerful 
influence over his mind and conduct in the 
general concerns of life; unless there should 
be evidence that such influence was exerted 
in a special degree to procure a will pecul- 
iarlj' acceptable- to her, and to the pre.iudice 
and disappointment of others naturally ex- 
pecting the testator's favor. lb. ; Miller v. 
Miller, 3 Serg. & R. 267 ; Meeker v. Meeker, 
75 111. 260; Rankin v. Rankin, 61 Mo. 295; 
O'Neall V. Farr, 1 Rich. (S. C.) 80; Thomp- 
son V. FaiT, 1 Speer,' 93; Zimmerman v. 
Zimmerman, 23 Penn. St. 375; Hughes v. 
Mui-tha, 32 N. J. Eq. 701. But such latitude 
of influence should, it seems, be allowed only 
in favor of a wife, or perhaps of a child ; it cer- 
tainly should not be extended to a woman not 
the wife, with whom the testator has been con- 
sorting in shame. Kessinger v. Kessinger, 
37 Ind 341; Denton D. Franklin, 9 B. Mon. 
28. But mere unlawful cohabitation with the 
mother of an illegitimate child is not alone 
evidence of undue influence in a contest w^ith 
the child as legatee of his father. Wain- 
wright's Appeal, 89 Penn. St. 222; Rudv v. 
Ulrich, 69 Penn. St. 177. Though with 
otlier facts it maj' be such evidence. lb.; 
Dean v. Negleg, 41 Penn. St. 317; Main v. 
Ryder, 84 Penn. St. 217. See Farr v. Thomp- 
son, Cheves, 37 ; S. C. 1 Rich. 80, supra. 
And, in general, it is not unlawful in any 

VOL. I. 4 49 



•36 



PERSONAL DISABILITIES OP TESTATORS. 



In case of known to the testator (y),* and that it was his spontaneous 
m?n(i,"rtronff ^'^^ (^)* -^ suspicion is justly entertained of a will con- 
pvoof required ferring large benefits on the person by whom or by whose 
agent it was prepared («)» or of a will in favor of a medical 
attendant in whose house the testator resided (5) ; but it 
seems that this suspicion goes no further than to necessitate 
somewhat stricter proof as to the testator's capacity, though 
not as to his knowledge of the contents of the will (c) . 
*36 Such knowledge is of course * requisite (rf) ; but 
it will be presumed if there is no evidence to the 
\k proved, contrary (e), and if capacity is duly proved (/). 

Where undue influence is supposed to have been exercised in obtain- 



as to knowl- 
edge of con- 
tents of will. 
Suspicion 
when will 
prepared bj^ 
legatee, or in 
favor uf medi- 
cal attendant. 
In such cases 
capacity must 



[(y) Mitchell V. Thomas, 6 Moo. P. C. C. 137, 12 Jur. 967; Dumell i). Corfield, 1 Rob. 51, 
8 Jur. 915. But see Eeece v. Pressey, 2 Jur. N. S. 380. 

(z) Tribe v. Tribe, 1 Kob. 775, 13 Jur. 793; and see Dufaur V. Croft, 3 Moo. P. C. C. 136; 
Harwood v. Baker, ib. 282; Re Field, 3 Curt. 752. 

(a) Paske v. Ollatt, 2 Phillim. 323; Durling ji. Loveland, 2 Curt. 225; BakJr ». Batt, 2 
Moo. P. C. C. 317. 

(6) Jones v. Godrich, 5 Moo. P. C. C. 16 ; and see Major v. Knight, 4 No. Cas. 661 ; Cock- 
croft V. Kawles, ib. 237. 

(c) Barry ». Butlin, 2 Moo. P. C. C. 480, 1 Curt. 614, 637. If a will rational on the face 
of it is shown to have been duly executed, it is presumed in the absence of any evidence to 
the contrary that it was made ty a person of competent understanding. But if "there are cir- 
cumstances not merely opposed" to, (Foot v. Stanton, 1 Deane, 19, ) but sufficient to counter- 
balance that presumption, the decree of the court must be against its yaliditj', unless the 
evidence on the whole is sufficient to establish affirmatively that the testator was of sound 
mind when he executed it. Sutton v. Sadler, 3 C. B. (N. S.) 87; Symes v. Green, 1 Sw. & 
Tr. 401, 5 Jur. N. S. 742, 26 L. J. Prob. 83. 

(d) Hastilow v. Stobie, L. E. 1 P. & D. 64. (e) Fulton v. Andrew, L. E. 7 H. L. 448. 
{./ ) Browning v. Budd, 6 Moo. P. C. C. 435. As to the nature of yr(md necessary to 

invalidate a will, see 5 Moo. P. C. C. 40. As to the nature of undue injmence necessary" for 
that purpose, see Stulz v. Schajfle, 16 Jur. 909. And on both points, B"o3'se v. Eossboro^ugh, 
6H.L. Ca. 1, 3Jur. N. S. 373. 



prohibition in the will from questioning it 
prevent an interested party from impeaching 
It for fraud or undue mfliience. Lee v. Col- 
ston, 6 T. B. Mon. 246. If, in a question 
of the mental strength of the testator, it be 
shown that the disposition of the property 
runs along the line of his established friend- 
ships and previously expressed intentions, 
this tends strongly against the alleged exer- 
cise of undue inAuence; while, if the con- 
trary be shown, there will be some ground 
for "a diiferent inference. Mooney v. Olsen, 
supra, referring to Howell D. Barden, 3 Dev. 
442 ; Hester ». Hester, 4 Dev. 228 ; Rambler 
V. Tryon, 7 Serg. & R. 90; Beaubien v. Ci- 
ootte, 12 Mich. 469; Cawthorn v. Haynes, 24 
Mo. 236 ; Davis v. Calvert, 5 Gill & J. 269 ; 
Allen V. Public Admr., 1 Bradf. 378. It is 
error, under the law of Indiana, to ask the 
jury " if the testator was of sound mind when 
lie "executed the will, if he was then under 
duress, and if the will was duly executed, or 
was obtained by fraud," in the face of a re- 
quest to ask them whether the testator had 
mind and memory sufficient to understand 
the ordinary affairs of life, and to act with 
discretion tlierein. whether he knew his chil- 
dren and grandchildren, and wliether he had 
a general knowledge uf his estate. Todd r. 



Fenton, 66 Ind. 25. As to instructions to the 
jury concerning undue influence, see In re 
Anies, 51 Iowa, 596, 604; Mowry v. Selbu, 

2 Bradf. 133, 147 ; Hanel v. Haiiel. 1 Duv. 
203; Coleman v. Robertson, 17 Ala. 84; 
Rogers v. Diamond, 13 Ark. 474 ; Tavlor ». 
Wilburn, 20 Mo. 306 ; Brown v. Mol'liston, 

3 Whart. 129 ; Thornton v. Thornton, 39 Vt. 
122. 

1 But it is not necessary, in ordinary ca.ses, 
to prove that the will was read to the testa- 
tor. HuRs's Appeal, 43 Penn. St. 73. Or- 
dinarily, the execution of the will constitutes 
sufficient evidence (unless there is counter- 
evidence) of the testator's knowledge of the 
contents. Beall ». Mann, 5 Ga. 456; Gaither 
V. Gaither, 20 Ga. 709; Vernon v. Kirk, 30 
Penn. St. 208. But special circumstances 
may exist requiiing express evidence of the 
testator's knowledge, even, it seems, before 
any evidence is adduced of his want of 
knowledge. Such are the cases referred to 
in the text where a relation of confidence 
is shown to have existed between the tes- 
tator and legatee or devisee. The same is 
true when the draftsman of the will claims 
a cousiderable gift luider the iustruniuut. 
H ughes i>. Meredith, 24 Ua. 325. 



50 



TINDUE INFLUENCE. 



*36 



ing a will, it seems that the whole will is not necessarily Part of a will 
void, but it will be left to a jury in the case of real estate {g), ^Jthe resf 
and to the Judge of the Court of Probate in the case of per- valid. 
sonalty (/i), to determine what gifts were obtained by undue inilueuce, 
and such gifts only will be declared void.] * 

(7) Trimleston v. D' Alton, 1 D. & CI. 85; Hippesley v. Homer, T. & R. 48, n.; Lord 
Giiillamore v. O'Grady, 2 J. & Lat. 2i0; Haddoclc e. Trotman, 1 Fost. & Finl. 31. See post, 
Cliap. XIII. (A) See Allen v. Macphersou, 1 H. L. Ca. 191, 11 Jur. 785.] 



1 Where a confidential relation exi.sts, 
sucli as that of client and attorney, or patient 
an, I physician, between a testator and a large 
b.'.nefi;;iary under the will, far less will be 
deemed undue influence than in other cases. 
Indeed, when the relation is once shown to 
liave existed, it appears to devolve upon the 
beneficiary to show a clear intention or that 
no pressure was brought to bear by him 
or by his procurement upon the testator. 
Barrv o. Butlin, 1 Uurteis, 637; Walker e. 
Smith, 29 Beav. 394 ; Kiddell «. Johnson, 26 
(Jratt. 152; Wilson v. Moran, 3 Bradf. 172; 
Meek ». Perry, 36 Miss. 190 ; Crispell ». Du- 
bois, 4 Barb. 393; Breed u. Pratt, 18 Pick. 
115; Paske v. Ollat, 2 Phillim. 323; Greville 
o. Tvlee, 7 Moore, P. C. 320 ; Ashwell v. Lo- 
mi, Law Rep. 2 P. & D. 477; Harvey ». Sul- 
lens, 46 Mo. 147; Bovd 11. Boyd, 66 Penn. St. 
283; Wright «. Howe, 7 Jones, 412; Dow- 
ney 0. Murphey, 1 Dev. & B. 82, 90. 
Testamentary provisions in favor of a 
party occupying the superior position of 
conridence, have, however, been thought 
to stand upon somewhat more favor- 
able ground than gifts inter vivos in favor 
of such a person. Hindson v. Weatherill, 5 
DeG. M. & G. 301. But see Walker v. 
Smith, 29 Beav. 394. Perhaps it is better in 
all cases of confidence merely to say that 
proof of intention is very strictly required 
than that a presumption of wrong -doing arises. 
The mere existence of a confidential relation 
between the testator and devisee or legatee 
certainly never operates to bar the right of 
the beneficiary to receive the bounty : at most 
it only affords ground for suspicion, requir- 
ing tliie party to show that the testator was of 
sound mind, that lie clearly understood the 
contents of the will, and that he was at the 
time under no restraint. Barry v. Butliii, 
1 Curteis, 637; Eiddell v. Johnson, 28 Graft. 
152. But see Downey v. Murphey, supra, in 
which the learned court (1 Dev. & B. 90) ap- 
pear to have lost sight of the true rule upon the 
point of knowledge of the contents of the 
instrument. (It is never necessary to show 
that the will was read over to the testator, if it 
can be shown in other ways that the testator 
was fully aware of its contents and ap- 
proved thereof. Infra.) A confidential rela- 
tion, within this rule, exists wherever a 
continuous trust is reposed in the skill or 
integrity of another, or the property or pecu- 
niarj' interest in whole or in part, or the 
bodily care of one person is entrusted to 
another. Bigelow, Fraud, 190. Closely re- 
lated to questions arising upon confidential 
relations stands the effect of large bomities 



bestowed in the will upon the draftsman. 
Indeed, it often happens that the superior 
person in the relation of confidence is also the 
draftsman of the will ; as in Barri- v. Butlin, 

1 Curteis, 637; in Eiddell v. Johnson, 26 
Graft. 152; in Paske v. Ollat, 2 Phillim. 323; 
in Newhouse v. Godwin, 17 Barb. 236; in 
Durling u. Loveland, 2 Curteis, 225, and in 
other cases supra. But the only result of 
such a fact, it is clear, is to require greater 
scrutiny into the circumstances attending 
the particular bequest. When no further 
relation of confidence exists than is implied 
in employing a draftsman (the relation 
between a testator and his draftsman is not 
per se a confidential relation in the proper 
legal sense, it is apprehended), the suspi- 
cion of undue influence is probablj' weaker 
than in like cases of confidence ; but the 
suspicion still eScists. Cramer v. Crum- 
baugh, 3 Md. 491 ; Baker v. Batt, 2 Moore, 
P. C. 317; .4.dair v. Adair, 30 Ga. 102; Duf- 
field V. Robeson, 2 Harr. (Del.) 375, 384; 
Tomkins «. Tomkins, 1 Bailey, 92; Pat- 
ton V. Allison, 7 Humph. 320. It will be 
slight or strong according to the amount of 
the bountv and the subject of it. Butlin v. 
Barry, 1 Curteis, 637 ; Darnell ». Corfield, 1 
Robt. Eccl. 51, 63; Lee v. Dill, 11 Abb. Pr. 
214. Or it may be overcome entirely b_v the 
language of the will. lb. ; Coffin v. CofKn, 
23 N. y. 9. See further, Billinghurst v. 
Vickers, 1 Phillim. 187; Hitchings v. Wood, 

2 Moore, P. C. 355, 436; Watterson v. Wat- 
terson, 1 Head, 1; Harvev v. Sullens, 46 
Mo. 147; Beall f. Mann, 5"Ga. 456; Tj'leru. 
Gardiner, 35 N. Y. 559 ; Carr v. McCamm, 
1 Dev. & B. 276. That the draftsman is not 
incapacitated as such to take under the will 
is perfectly clear. Barry v. Butlin, Coffin v. 
Coffin, and other cases supra. And this 
though the will was written while the tes- 
tator was in extremis. Downev ». Murphey, 
1 Dev. & B. 82. But see the criticism upon 
this case, supra. The rule of increased strict- 
ness of scrutiny in cases where the person by 
whom, or bv whose procurement and direc- 
tion, a will is drawn, receives a large benefit 
under it, and, in cases of doubtful capacity, 
appears to be satisfied by proof to the full and 
entire satisfaction of the court or jury that the 
testator was not imposed upon, that he knew 
what he was doing, and understood the dis- 
positions he was making when he made his 
will. Duffield v. Robeson, 2 Harrington, 
384, 385; Barry v. Butlin, 1 Curteis, 637; 
Durnell v. Corfield, 1 Robt. Eccl. 51. The 
law presumes, in general, that the will was 
read over by or to the testator. But if evi- 



51 



•37 



PEESONAL DISABILITIES OF TESTATOES. 



It appears, that though an inquisition finding a man a lunatic is primd 
Inquisition facie evidence of lunacy during the whole period covered by 
pnmafndt guch inquisition, yet it does not preclude proof that the 

GVjclencG of x • */ *. * 

testamentary execution of a wiU, Or any other act, occurred during a lucid 

incapacity. jnteiTal (l) . 

The principle is very ably stated by Sir W. W3-nn in his judgment 
Lucid inter- in Cartwright V. Cartwright (k): "• If you can establish 
™'^- that the party -afflicted habitually by a malady of the mind 

has intermissions, and if there was an intermission of the disorder 
at the time of the act, that being proved, is sufficient, and the gen- 
eral habitual insanity will not affect it ; but the effect of it is this — 
it inverts the order of proof and of presumption ; for, until proof of 
habitual insanity is made, the presumption is, that the partj', like all 
human creatures, was rational ; but where an habitual insanity in the 
mind of the person who does the act is established, then the partj' who 
would take advantage of the fact of an interval of reason, must prove it." 
In what un- [I* h^s been laid down that the test of a person 

soundness of *37 being of * unsound mind in a legal sense is the ex- 
sists. istence of a delusion (T) , or a belief in facts which an 

(0 Hall V. Warren, 9 Yes. 605; Ee Watts, 1 Curt. 594; [and see Creagh v. Blood, 2 J. & 
Lat. 50a; Snook v. Watts, 11 Beav. 105; Cooke v. Cliolniondely, 2 Mac. & G. 22; Bannatyne 
V. Bannatvne, 16 Jur. 804.] 

(it) 1 P'hillim. 100; [and see 2 Phillim. 465, 2 Add. 209; Steed v. Calley, 1 Keen, 620; Tat- 
ham V. Wright, 2 K. & Jly. 1 ; Borlase v. Borlase, 4 No. Cas. 106. , 
(/) But see Nichols D. Bi'nns, 1 Sw. & Tr. 239. 



dence be given that the testator was blind, or 
from any cause incapable of reading, or if a 
reasonable ground is laid for believing that it 
was not read to him, or that fraud or impo- 
sition of any kind was practised upon him, 
it is incumbent on those who would support 
the will, to meet such proof by counter evi- 
dence, and to satisfy the jury either that the 
will was read or that the contents were 
known to the testator. Day ». Day, 2 Green, 
Oh. 549. In this. case, it was held that if it 
appears affirmatively that the testator did not 
read tlie will himself, and that it was not read 
to him, it must then be satisfactorily shown 
that he was in some way made acquainted with 
the contents of the instrument, and approved 
them. Thus, if it appear that the will in 
question was truly copied from a previous 
will with the contents of which the testator 
was acquainted, the instrument will be ad- 
mitted to probate although it was neither read 
by him nor in his hearing. lb. So, if it 
can be shown that the will is substantially in 
accordance with the instructions of the testa- 
tor, it may be considered as sufficient evi- 
dence that he was acquainted with its con- 
tents. But if, in drawing up a will from 
instructions, they arc materially departed 
from, the testator must be made acquainted 
with the deviations and alterations; if the 
will is not read over to him, or its contents 
and variations otherwise made known to him, 
it camiot be sustained. Chandler v. Ferris, 
1 Harrington, 454, 464. See Tomkins v. 



Tomkins, 1 Bailey, 92; Gerrish v. Nason, 22 
Me. 438 ; Harding v. Harding, 18 Penn. St. 
340; Clifton u. Murray, 7 Ga. 564; Vernon v. 
Kirk, 30 Penn. St. 218. In ordinary cases, 
where the testator Is in health, and of testable 
capacity, it is not necessary to give evidence 
in the first instance of a knowledge of the 
contents of the will. Pettes v. Bingham, 10 
N. H. 514 ; Downey v. Murphey, 1 Dev. & B. 
82 ; Carr v. M'Camm, ib. 276 ; Smith v Dolby, 
4 Harrington, 350. The burfen imposed on'a 
party propounding a will is discharged by 
proof of capacity and the fact of execution ; 
from this proof, the knowledge of, and assent 
to, the contents of the will are presumed. 
Barrv v. Bptlin, 1 Curteis, 637 ; McNinch v. 
Charles, 2 Rich. 229; Day v. Day, 2 Green, 
Ch. 549; Stewart i;. Lispenard, 26 Wend. 287, 
288; Hoshauer v. Hoshauer, 26 Penn. St. 404; 
In re Maxwell, 4 Halst. Oh. 251; Vernon v. 
Kirk, 30 Penn. St. 218. See Rice ». Dwight 
Manuf. Co. 2 Gush. 80. But where the 
capacity of the testator is shown to be doubt- 
ful, otlier proof of knowledge is required. 
McNinch v. Charles. 2 Rich. 229; Tomkins 
V. Tomkins, 1 Bailev, 92, 96 ; Day v. Dav, 
2 Green, Ch. 549; Gerrish v. Nason, 22 M'e. 
438. Still, proof of instructions for making 
the will, or reading it over, is not indispen- 
sable ; other evidence of knowledge or assent 
may be given. Barry v. Butlin, 1 Curteis, 
637; Diji-ling v. Loveland, 2 Curteis, 225; 
McNinch v. Charles, 2 Rich. (S. C.) 229; 
Day V. Dav, 2 Green, Ch. 549. 



52 



UNSOUNDNESS OF MIND. *38 

ordinary person would not credit, or a belief which one cannot under- 
stand how any person in his senses should hold ; and that mere eccen- 
tricity of habits or perversion of feeling and conduct, forming what is 
termed moral insanity, do not constitute legal incapacity (m). General 
iusanity must be distinguished from partial insanity or monomania. In 
case of the former, a lucid interval, a real absence, at the time of mak- 
ing the will, of the disease itself, and not of its apparent delusions 
only, must be shown (n) . In case of the latter, opinions have differed. 
In Waring v. Waring (o), it was laid down by Lord Brougham, that it 
was incorrect to speak of partial insanity ; that a mind unsound on one 
subject could not be called sound on any ; and that unless a lucid inter- 
val (as explained above) could be shown, testamentarj' incapacity was 
the necessarj' consequence, although the subject on which the unsound- 
ness was manifested might be quite unconnected with the testamentary 
disposition in question. It is not perfect sanity, however, a disposing 
but only a mind that comprehends the testamentary act that '"'""^ suffices. 
is required ; and in Banks v. Goodfellow (p) , Lord Brougham's doc- 
trine, which it was observed was unnecessary to the decision of tl^e 
cases in which it was stated, was rejected ; and it was decided that 
monomania, which had not, and was not capable of having, any in- 
fluence on the provisions of a will, did not destroy the capacity to 
make one ; that the inquiry whether the monomania has or not had 
any such effect might be difficult, but was not impracticable ; and that 
if, in the result, the court was convinced that it had, the conclusion 
must be against the will. The case of Greenwood is, on this point, 
ambiguous. It is thus stated by Lord Erskine] (q): "He was bred 
to the bar, and acted as chairman at the quarter sessions ; but becoming 
diseased, and receiving in a fever a draught from the hands of his 
brother, the delirium taking its ground then, connected , itself with that 
idea : and he considered his brother as having given him a 
potion with a view to destroy * him. He recovered in all other *38 
respects, but that morbid image liever departed ; and that idea 
appeared connected with the will, bj' which he disinherited his brother ; 
nevertheless, it was considered so necessarj' to have some precise rule, 
that though a verdict was obtained in the Common Pleas against the 
will, the judge strongly advised the jurj', on a second trial, to find the 
other wa3' ; and they did aceordinglj- find in favor of the will. [Further 
proceedings took place afterwards, and concluded in a compromise." 
But] in Dew v. Clarke (qa), where the Prerogative Court was called up- 
on to decide as to the testamentary capacity of a gentleman named Stott, 

(m) Frere ». Peacocke, 1 Rob. 442, 11 Jur. 247; see S. C. in a previous stage, 3 Curt. 664, 
7 .lur. 998, where a plea of liereditar\- insanity was disallowed. See also Grimani v. Draper, 
12 Jur. 92j; Mudwav i>. Croft, 3 Curt. 67i; 7 Jur. 979; Ditchbourn v. Fearn, 6 Jur. 201; 
G.4die o. Murray, ib."608; Austen v. Graham, 8 Moo. P.O. C. 493. 

(n) Waring o. Waring, 6 Moo. P. C. C. 341, 12 Jur. 947; Smith v. Tebbitts, L. R. 1 P. & 
D. 398. (o) 6 Moo. P. C. C. 341, 12 Jur. 947. 

(/)) L. R.. 5 Q. B. 549.] (?) In White «. Wilson, 13 Ves. 89. 

(2 n) 3 Add. 79, [5 Buss. 163 j and see Fowlis v. Davidson, 8 No. Cas. 461. 

53 



»38 



PERSONAL DISABILITIES OF TESTATORS. 



an eminent electrician, who had an onlj- child, against whom he had 
conceived a strong and groundless aversion, exhibited in a series of 
absurd acts of harshness and severity, and which he followed up bj- 
making a will in favor of some collateral relations, to the almost total 
exclusion of such only child ; Sir J. NichoU and the Court of Delegates, 
successively pronounced against the validity of the will, after the deliv- 
er^' of very able and elaborate judgments, which should be perused by 
all inquirers into this interesting subject. [And a like decision was 
made in the somewhat similar case of Boughton v. Kuight (r)].^ 

()•) L. R.3P. &D. 64.] 



1 The term "testamentary capacity" has 
had an unfortunate use, and has come to be 
arabisuous. Without overlooking the fact 
tliat it may often be difficult, if not impossi- 
ble, to distinguish between loss or "want of 
intellect and perversion of the same as in- 
dicated by delusions or by madness, it is still 
apprehended that the term "testamentary, 
capacity" is applicable properly only to 
issues of decay or of want of mind; the "true 
question in such cases being whether the sup- 
posed testator had sut!icient mental ability at 
the time to exercise will. In fact, however, 
the term is often applied to issues of insanity 
in the sense of perverted (diseased) intellect; 
■where the real question is, not vhether.the 
decedent had capacity to will, but whether he 
did (normally ) will. Now it may be remarked 
that it appears improper in any case to aslc 
a jury whether the decedent possessed testa- 
mentary capacity in the abstract at the time 
of the supposed will, even upon an i-sue of 
mental imbecility; for there is no ideal 
standard by which a man's testamentary 
capacity can be judged. But see Delafield 
»>. Parish, 25 N. Y. 9. A man of weak mind 
may have mental ability sufficient to enable 
him to dispose of his property in a simple 
way, and not have mental ability sufficient 
to dispose of it in a complicated way. He 
may not, for example, have power to grasp 
tile arithmetic of a complicated disposition. 
The true question ui>on an issue of decay or 
of want of mind, it is conceived, notwith- 
standing the language of Delafield v. Parish, 
is tvhether the supposed testator had mental 
capacity sufficient for the particular alleged 
will. But the term "capacity" becomes 
wholly improper upon an issue of insanity, 
when that word is used in its common sense 
of perversion (and not want or weakness) of 
intellect, i. e. lunacy. Ability to will in the 
particular manner in question may be quite 
consistent with such insanity. A lunatic is 
not necessarily a man of weak mind, much 
less an imbecile. A person merely affected 
with delusions, and not a maniac, wills when 
he takes the steps necessary for disposing of 
his property, though his will may have acted 
abnormally; heexpresses/»swill. An imbe- 
cile, however, in taking such steps, if he has 
taken them propTly, does not, generally 
speaking, will. The will is that of another:' 
the case is almost always one of fraud or of 
undue influence ; the very fact of orderly dis- 



54 



positions, if at all complicated clearly telling 
that way. Now the will of a lunatic may 
or may not have been aiiected by his insanity ; 
but where the insanity is deemed total, or 
where it runs along the line of the dispositions 
attempted, it must he impossibleto say that 
his action was not influenced by his insanity. 
In this impossibility to find the actual fact, 
the law is compelled to look to probabilities 
and to substitute presumption for fact. The 
decedent, being found to have had a perverted 
intellect in respect of some or all of the dis- 
positions of his alleged will, is presumed not 
to have exercised true will. The question, 
therefore, to be asked is, not whether the 
decedent had capacity to make the will in 
question, much less whether he possessed 
testamentary capacity in the abstract, but 
whether the supposed testator was of sound 
and disposing mind in respect of the subject- 
matter of the will when he executed it. 
Until recently it was supposed, in England, 
that insanity, even in one particular, was 
sufiicient to prevent the execution of a will ; 
upon the extremely narrow hypothesis that, 
as the mind is a "unit, what "affects a part 
affects the whole. Waring v. AVaring, 6 
Moore, P. C. 341; Smith ». Tebbitt, L. K, 
1 P. & D. 398. But the fallacy of this posi- 
tion has recently been shown by the Queen's 
Bench, and it is now held that insanity not 
running in the direction of the will does not 
invalidate the testament. Banks v. (Jood- 
fellow, L. R. 5 Q. B. 549 ; Smee v. Smec, 
L. R. 5 P. D. 84. See Boughton v. Knight, 
L. R. 3 P. & D. 64. And this appears to be 
the law in the United States. Siackhouse v. 
Horton, 15 N. J. Eq. 202; Lathrop r. Bor- 
den, 5 Hun, 560; Lathrop v. American 
Board, 67 Barb. 590; Evans v. Arnold, 52 
Ga. 1G9; Gardner v. Lamback, 47 Ga. 133; 
Lucas II. Parsons, 24 Ga. 640; Benoist v. 
Murrin, 58 Mo. 307 ; Denson v. Beazley. 34 
Texas, 191 ; Cotton v. Ulmer, 45 Ala. 378. 
Or, to .state the law in the language of late 
authority (though the language is somewhat 
objectionable), if delusions existing in the 
mind of the testator cannot reasonably be 
conceived to have had any thing to do 'with 
his power of considering "the claims of his 
relatives upon him, and tlie manner in which 
he should dispose of his property, the pres- 
ence of such delusions will not incapacitate 
him from making a will. Smec ». Smee, 
supra. But it is well settled that if insanity, 



UNSOUNDNESS OF MIND. 



»38 



Lord Thurlow is said to have intimated an opinion, that where lunacy 
is once established by clear evidence, the party ought to be restored 



not caused by violent disease or accident 
(Hix V. Whittemore, 4 Met. 545, and cases 
infra), be once shown to liave existed before 
tile execution of tlie will, it will be presumed, 
prima facie, to liave existed when the will 
was made; and the will in such a case cannot 
be admitted to probate unless this presump- 
tion is clearly removed. Boughton v. Knight, 
supra; Nichols w. Binns, 1 Swab. & T. 239: 
Rush V. Megee, 36 Ind. 69 ; Chandler v. Bar- 
rett, 21 La. An. 58. Thus, when general 
insanity antedating the will is established, it 
must be proved, if the will is to stand, either 
that such insanity had ceased to exist when 
the will was executed, o^ that the will was 
executed during a lucid interval. Chandler 
V. Barrett, supra; Cartwright v. Cartwright, 

1 Phillim. 100; Clark v. Fisher, 1 Paige, 171, 
174; Jackson v. Van Dusen, 5 Johns. 144, 
159; Boyd v. Ebv, 8 Watts, 66; Harden v. 
Hays, 9 Barr, 151 ; Halley v. Webster, 21 
Me. 461; Whiteuach v. Stryker, 1 Green, 
Ch. 8; Goble v. Grant, 2 Green, Ch. 629. 
But the courts look with great scrutiny into 
evidence of lucid ii.tervals; and the facts 
should be clear to make out such a case. 
White 1). Driver, 1 Phillim. 88; Brogden ». 
Brown, 2 Addams, 445; A\Tey v. Hill, ib. 
210. The rule, no doubt, is similar as to cases 
of partial insanity, whether shown to exist 
before or at the time of the execution of the 
will. Inasmuch as the burden of showing 
that the testator was a person of sound and 
disposing mind and memory is upon him 
who propounds the will (Delafield v. Parish, 
25 N. Y. 9; Crowninshield ». Crowninshield, 

2 Gray, 524; Baker v. Butt, 2 Moore, P. C. 
317; Barry ». Butlin, ib. 480), it appears to 
follow that any satisfactory evidence of in- 
sanity will be considered prima facie as 
fatal "to the supposed will. It is then for the 
party who wishes to maintain the instrument 
to prove that the partial insanity did not 
exist in respect of the dispositions made in 
the will. Indeed, the burden of proof is 
deemed by high authorities to rest through- 
out upon the party who propounds the will. 
The court must be satisfied that the testator 
was of sound mind and disposing memory; 
and if, upon the whole evidence, there be any 
doubt upon this point, the will cannot be con- 
sidered to have been proved. Crowninshield 
II. Crowninshield, supra; Delafield «. Parish, 
supra; Robinson v. Adams. 62 Me. 369. 
See Baker v. Butt, supra; Perkins v. Per- 
kins, 39 N. H. 163 ; Boardman v. Woodman, 
47 N. H. 120, 132; Mayo v. Jones, 78 N. C. 
402; Beaubien ». Cicotte, 8 Mich. 9; Taff ». 
Hosmer, 14 Mich. 309 ; Aikin «. Weckerly, 
19 Mich. 482; Kempsev v. McGinnis, 21 
Mich. 123; Turner v. Cook, 36 Ind. 129; 
Thompson v. Kyner, 65 Penn. St. 368 ; Wil- 
liamson V. Robinson, 42 Vt. 658. But see 
Higgins V. Carlton, 28 Md. 415, in which the 
distinction commonly taken between the 
proof of deeds and" of wills is criticised, 
and the cun-ent of authority supposed to 

55 



favor the rule that the burden of proof rests 
upon the person who avers insanity. There 
is, bv nearly all the authorities (contra 
Robinson v. Adams, 62 Me. 369; Wil- 
liamson V. Robinson, supra), a presumption 
of sanity; and in the absence of evidence 
the case may be decided, according to the 
better opinion, upon this presumption. So, 
no doubt, the presumption must be considered 
in considering the evidence. But when evi- 
dence of insanity is once introduced and 
counter evidence brought forward, the case 
cannot, by the better authorities, be decided 
upon the "mere existence of the presumption 
of sanity. See cases last cited. (Comp. an 
analogous case of the burden of proof con- 
cerning the doctrine of presumption of con- 
sideration in the law of bills and notes. 
Bigelow's Bills & Notes, 90.) There is then, 
between cases like Higgins v. Carlton, supra, 
which make much of the presumption of 
sanity, and cases like Robinson v. Adams, 
supra, in which the, existence of the presump- 
tion is wholly denied, a large and, it is con- 
ceived, a better class of authorities which 
treat the burden of proof as resting in all 
cases upon the proponent of the will; which 
bui'den is probably sustained by a presump- 
tion of sanity in the (unusual) case of an 
absence of evidence, but not sustained by 
that presumption in a case left doubtful 
upon evidence adduced. Where there is 
doubt, there is not proof ; and the will should 
be proved. Baker «. Butt, supra ; Baxter o. 
Abbott, 7 Gray, 71, 83 ; Baldwin v. Parker, 
99 Mass. 79, 84; Crowninshield v. Crownin- 
shield, supra; Delafield v. Parish, supra. 
It may be added that almost the only case, 
under the practice in Massachusetts, of an 
entire absence of evidence concerning sanity, 
would be where the attesting witnesses were 
all dead or had removed to parts unknown : 
when their testimony can be had, they are 
uniformly asked concerning the testator's 
mental condition. Crowninshield v. Crown- 
inshield, supra. But still, in (he absence of 
evidence of unsoundness, the will must stand. 
Baxter v. Abbott, 7 Gray, 71, 83. (The bur- 
den of proof as to undue influence, however, 
after proof of soundness of mind, is upon him 
who alleges it. Baldwin v. Parker, 99 Mass. 
79; Tyler v. Gardiner, 35 N. Y. 559.) With 
regard to what facts may be shown upon an 
issue of insanitj', it may be stated by way 
merely of illustration, that delusion with re- 
spect to a devisee may be shown. Mill's 
Appeal, 44 Conn. 484; Cleveland v. Lyne, 
5 Bush, 383. So of delusion with respect to 
the testator's daughter. Clapp ». Fullerton, 
34 N. Y. 190. And all facts concerning the 
personal history of the testator mentally and 
physically, Ross v. McQuiston, 45 Iowa, 145; 
or of his parents, and perhaps remoter ances- 
tors, are admissible. Baxter v. Abbott, T 
Gray, 71; Coughlin v, Poulson, 2 .McArth. 
308." Whether (he insanity of an uncle or 
aunt alone would be admissible is doubtfuL 



•38 



PERSONAL DISABILITIES OF TESTATORS. 



to as perfect a state of mind as he had before ; but Lord Eldon has 
expressed his dissent from this notion; suggesting the case of the 



In Baxter v. Abbott, supra, the insanity of 
the testator's parents and of an uncle was 
admitted. The question would seem to be 
determinable only on the evidence of experts 
in mental disease. Prejudice, however 
strong or unjust, is no evidence of insanityy 
if not founded on delusion. Trumbull v. 
Gibbons, 2 Zabr. 117. So, too, neither pe- 
culiar beliefs as to a future state (Bonard's 
Will, 16 Abb. Pr. N. S. 128), nor peculiar 
beliefs in other matters, without delusion, 
lire evidence of insanity. Denson v. Beazley,' 
Ai Texas, 191; Thompson v. Quimby, '2 
Bradf. 449. Nor is the existence of foolish 
and absurd ideas evidence of insanity if the 
testator was still in the possession of his fac- 
ulties. Thompson v. Thompson, 21 Barb^ 
107. Nor is suicide alone evidence thereof. 
IClwee V. Ferguson, 43 Md. 479 ; Brooks ». Bar- 
rett, 7 Pick. 94; Duffield J). Robeson, 2 Har- 
rington, 375; Burrows ». Burrows, 1. Hagg. 
109. The same may be said of the existence 
of insanitv some years afttr the execution of 
the will.' Taylor ». Creswell, 45 Md. 422. 
Moral insanity not impairing the intellect is 
not fatal to a will, unless accompanied by 
delusions, Frere ». Peacocke, 1 Robt. Eccl. 
442; Boardman v. Woodman, 47 N. H. 120; 
Forman's Will, 54 Barb. 274; delusion being 
deemed a true test of insanity ; Boardman v. 
Woodman, supra; Seamen's Soc. v. Hopper, 
33 N. Y. 619. Indeed the finding of insanity 
upon a commission de lunatico mquirtjido is 
thought not conclusive against a will. Tay- 
lor's WilV, Edm. Sel. Cas. 375. See Searles 
V. Harvey, 6 Hun, 658. So guardianship as of 
an insane person is but pnnid facie evidence 
ofinsanity. Crowninshield v. Crowninsliield, 
2 Gray, 524; Little v. Little, 13 Gray, 264; 
Garnett ». Gamett, 114 Mass. 379. And it 
appears to be the result of authority that evi- 
dence of insanity considerably prior to the will 
may be rebuttecl by evidence tuat the misfor- 
tune was caused "by violent sickness; the 
presumption of continued insanity being 
deemed not to prevail in such cases. Hix v. 
Whittemore, 4 Met. 545; McMasters v. Blair, 
29 Penn. St. 298; Halley v. Webster, 21. 
Me. 461. And the same" is perhaps true 
where the insanity was caused by an ac- 
cident, lb.; Swinb. Wills, Pt. 2, § 3; 
1 Collins. Lunacy, 55; Shelf. Lunacy, 
275; Cartwright v. Cartwright, 1 Phillim. 
100; Little v. Little, 13 Gray, 264, 266; 
Townshend v. Townshend. 7 G'ill, 10. But, 
of course, the nature of the disease or acci^ 
dent must be taken into account in determin- 
ing whether the presumption of continued 
insanity must prevail. And the question 
whether the presumption must stand cannot, 
it should seem, in all cases be decided by the 
court as matter of law, since it must often 
depend upon facts the bearing of which can 
be understood onlv by medical men. In 
such cases it should be left to the jury to 
find whether the presumption ought to stand. 
See Hix ». Whittemore, supra. The foro- 



56 



going observations consider insanity in the 
ordinary sense of perverted intellect, mani- 
fested in common cases by delusion, in dis- 
tinction from want or decay of intellect. 
The distinction upon which the separation of 
lunatics from imoeciles in the a.=yluins for 
such unfortunate persons is made, must be 
accepted as sound; and the like distinction 
should, it is conceived, be kept in mind in 
declaring the law as to non compotes mtnlisy so 
far as possible. But it may happen that 
there is an issue both of weakness and of 
lunacy, or that the two questions are so 
blended as to be inseparable Irom each other ; 
a situation which must, of course, complicate 
the inquiry. It is apprehended, however, 
that the distinction stated should still be kept 
in mind. The jury should be asked at least 
two questions : whether the decedent was, at 
the time of executing the will, affected with 
delusions upon the subject of the dispositions 
in question, and, if not, whether he had ca- 
pacity at the time to call to mind the prop- 
erty to be disposed of, the persons to be 
benefited or disappointed, and to grasp the 
dispositions professed to be made. And then 
there may be another question, in case this 
second should be answered in the affirmative ; 
to wit, if, supposing the testator possessed 
such capacity, the will was still Ins will, or 
that of another; that is, if undue influence 
was exercised or fraud practised upon liiin. 
Upon the mental condition of the testator 
at the time of executing the will, in the 
sense {it seems), either of idiocy, decay, or 
lunacy, it is generally agreed that the at- 
testing witnesses to the will may state their 
opinions, though they may not be experts in 
mental pathology. The reasons for this may 
not be very satisfactorv. The effect may be 
to permit the testator Iiimself to express an 
■opinion upon his own sanity; for he, of 
course, has the selection of the attesting wit- 
nesses. Still the law permits such to express 
their opinions. Hastings v. Rider, 99 Mass. 
622; Barker v. Comins, 110 Mass. 477, 487; 
Nash V. Hunt, 116 Mass. 237, 251; May ». 
Bradlee, 127 Mass. 414, 421; Robinson v. 
Adams, 62 Me. 369;Dewitt v. Barley, 9 
N. Y. 371. The attesting witnesses may 
further state their opinions without stating 
the facts upon which they base them. Rob- 
inson V. Adams, supra. It is settled law in 
Massachusetts that (besides the witnesses to 
a will) the physician who has been the usual 
or occasional medical adviser of the deceased, 
or who attended him in a sickness during 
which he executed the will, and witnesses 
who, by special skill and experience, are 
qualified as experts in the knowledge and 
treatment of mental diseases, are alone com- 
petent to give opinions in evidence as to 
the mental condition of a testator when he 
executed the wUI. The testimony of other 
witnesses cannot extend beyond a statement 
of such facts and declarations manifesting 
mental condition, as Ihey have kuuwledga at. 



UNSOUNDNESS OF MIND. 



*38 



strongest mind reduced by the delirium of a fever, or some other cause, 
to a very inferior degree of capacity ; and he observed that the conclu- 
sion was not just, that, as that person was not what he had been, he 
should not be allowed to make a will of personal [qu., or real?] 
estate (s).-' 

(s) Ex parte Holyland, 11 Ves. 10. See further as to lunatics and their acts, Lord Ely's 
case in D. P. in Ireland, 1784; 1 Ridg. P. C. 16; and tlie six appendices; Lord Thurlow's 
celebrated judgment in Attorney-General v. Parnther, 3 B. C. C. 441; particularly the case 
of Mr. Greenwood, cited p. 444; 1 Fonbl Eg. 46; see also Niell j). Morley, 9 Ves. 478; Hall ti. 
Warren, ib. 603; [Chambers v. Yatnian, 2 Curt. 415; and see 2De G. & S. 620.] 



Hastines o. Eider, 99 Mass. 622, 625 ; Barker 
V. Comins, HO Mass. 477, 487; Nash v. Hunt, 
116 Mass. 237, 251; May «. Bradlee, 127 
Mass. 414, 421. In the last case, it was 
deemed proper, under a suitable explanation 
by tlie judge, to ask a general witness (guar- 
dian ot the testator) whether he had ever 
obser%'ed any fact which led him to inter that 
there was in the testator an\' derangement of 
intellect. So in Maine, general witnesses are 
limited to stating facts. W3'man v. Gould, 
47 Me. 159. See Eobinson v. Adams, 
62 Me. 369, 410. So in Texas, Gehrke v. 
State, 13 Texas, 568. In New York, also, 
general witnesses are permitted in actions at 
law to state facts oiilv. Dewitt v. Barley, 
9 N. Y. 371. See S. "C. 17 N. Y. 340; Vin 
Pelt V. Van Pelt, 30 Barb. 134, 141 ; Clapp v. 
Fullerton, 34 N. Y. 190, 195; O'Brien v. 
People, 36 N. Y. 276, 282. In most of the 
states, however, general witnesses are al- 
lowed to give their opinions upon facts stated 
by them to the court (not otherwise), on the 
ground of the difficulty of ^separating fact 
from opinion in respect of evidence concern- 
ing mental condition. The authorities are 
collected and examined in State » Pike, 49 
N. H. 399, in the dissenting opinion of Mr. 
Justice Doe, and in Hardy v. Merrill, 56 
N. H. 227, adopting the dissenting opinion 
mentioned, and overruling Boardman v. 
Boardman, 47 N. H. 120, and State v. Pike, 
supra. Opinions of medical experts as to 
sanity, based on hypothetical facts not shown 
to exist in the particular case, are held inad- 
missible. In re Ames, 51 Iowa, 596 ; Hurst 
I). C. R. I. & P. R. Co., 49 Iowa, 76. See 
Harrison v. Rowan, 3 Wash. C. C. 587; 
Duffield V. Robeson, 2 Harr. 385; Gibson v. 
Gibson, 9 Yerg. 329; Potts v. House, 6 Ga. 
324; Commonwealth v. Rich, 14 Gray, 335. 
It seems that, when medical witnesses give 
their opinions upon facts observed by them- 
selves, they should, with their opinions, state 
the facts upon which such opinions are 
founded. Hathorn v. King, 8 Mass. 371 ; 
Dickinson v. Barber, 9 Mass. 227; Hastings 
V. Rider, 99 Mass. 622: Clark v. State, 12 
Ohio, 483; Gibson v. Gibson, supra. See 
Baxter v. Abbott, 7 Gray, 71, 80. Medical 
books should not be admitted. Ware v. 
Ware, 8 Greenl. 42. It is not necessary to 
the statement of an opinion by a physician 
that he should be an expert in mental dis- 
eases; it is enough that he is a physician and 
has attended the decedent as such, even 
though he was not the decedent's regular 

57 



medical adviser. Baxter v. Abbott, 7 Gray, 

1 There seems to be no distinction in 
the degree of mental capacity requisite for 
the execution of a will of real estate, and 
that requisite for the execution of a will of 
personal estate. Sloan v. Maxwell, 2 Green, 
Ch. 563, 566; Winchester's case, 6 Co. 23. 
Still in those states where the probate of a 
will in the Probate Court is not conclusive of 
the title to real estate, it is clear law that 
though the probate of a will of both real and 
personal estate is conclusive evidence of the 
sanity of the testator to make such will of 
personrtlty, yet it is by no means conclusive 
evidence of "his capacity to dispose of his real 
estate. This, however, is upon the principle 
that the capacity of a party to do one act is 
not conclusive as to his capacity to do an- 
other, if his capacity as to the other be triable 
by a different jurisdiction. Shelf. Lunncv, 
66, 67; Wood v. Teage, 6 Barn. & C. 335. 
In Winchester's case, supra, it is said that it 
is not sufficient that the testator be of mem- 
ory, when he makes his will, to answer fa- 
miliar and usual questions, but he ought to 
have a disposing memory, so that he is able 
to matte a disposition of his lands with under- 
standing and reason; and that is such a 
memory as the law calls sane and perfect 
memory. See Combe's case, Moore, 759; 4 
Burn's Ecc. L. 49; Harrison v. Rowan, 3 
Wash. C. C. 586. It was observed by Sir 
John Nicholl, in Marsh v. Tyrrell, 2 Klagg. 
122, that it is a great but not an uncommon 
error to suppose, that, because a person can 
understand a question put to him, and can 
give a rational answer to such question, he is 
of perfect, sound mind, and is capable of mak- 
ing a will for any purpose whatever, whereas 
the rule of law, and it is the rule of common 
sense, is far otherwise; the competency of 
mind must bo judged of by the nature of the 
act to be done, and from a consideration of all 
the circumstances of the case. See also Blew- 
itt V. Blewitt. 4 Hagg. 419; Boyd v. Etjy, 8 
Watts, 70 : Shropshire v. Reno, 5 J. J. Marsh. 
91; McTaggart r. Thompson, 14 Penn. St. 
149; Brown v. Torrey, 24 Barb. 583; Hall v. 
Hall, 18 Ga. 40. A man in whom this fac- 
ulty of memory is wholly extinguished cannot 
be said to possess an unclerstanding to any de- 
gree whatever, or for any purpose. But his 
memory may be very imperfect ; it may be 
greatly impaired by age or disease; he may 
not be" able at all times to recollect the names, 
the persons,or the families of those with whom 



»38 



PERSONAL DISABILITIES OF TESTATORS. 



The disability of coverture ^ diflfers materially from that of infancy, 
Disability idiocv, or lunacy. It does not arise from natural infirmity, 
whenra'ai^s- ^^^ ^^ ^^^ creature of civil policy, and may be dispensed 
ing) with at the pleasure of the contracting or disposing parties 



he had been intimately acquainted (see Brooks 
1). Barrett, 7 Pick. 98); he may at times ask 
idle question^, and repeat those which had 
before been asked and answered; and yet 
his understanding be sufficiently sound for 
many of the ordinary transactions of life. 
He may not have sufficient strength of mem- 
ory an& vigor of intellect to make and digest 
ali the parts of a contract, and yet be compe- 
tent to direct the distribution of his property 
by win. Comstock v. Hadlyme, 8 Conn. 264 ; 
Rambler ». Tryon, 7 Serg. & R. 95; Kiune 
e. Kinne, 9 Conn. 105; Converse©. Converse, 
21 Vt. 168; Kirkwood v. Gordon, 7 Rich. 
(S. O:) 474. But in Maryland, by the testa- 
mentary system of that State, he, who is not 
competent" to make a valid deed or contract, is 
incompetent to make a valid will or testa- 
ment. Davis V. Calvert, 5 Gill & Johns. 269, 
2M, 300. See also Coleman v. Robertson, 17 
Ala. 84; Minor v. Thomas, 12 B. Men. 106. 
The question is not so much what was the 
di'gree of memory possessed by the testator, 
as. Had he a disposing memory V Was he 
capable of recollecting the property he was 
about to bequeath, the manner of distribut- 
ing it, and the objects of his bounty ? In a 
word, were his mind and memory suificiently 
sound to enable him to know and understand 
the business in which he was engaged, at the 
time when he executed his will? Stevens u. 
Vancleve, 4 Wash. C. C. 262, Washington, 
.T. ; Harrison v. Kowan, 3 Wash. C. C. 385. 
See Converse v. Converse, 21 Vt. 168; Home 
V. Home, 9 Ired. 99; Lowe v, Williamson, 

1 Green, Ch. 82, 85 ; Sloan v. Maxwell, 2 
Green, Ch. 563; Andress v. Weller, ib. 604; 
Verplanck, Senator, in Stewart v. Lispenard, 
26 Wend. 255, 306, 311, 312 ; Comstock v. 
Hadlyme, 8 Conn. 265 ; Kinne v. Kinne, 9 
Conn. 105 ; Brown v. Torrey, 24 Barb. 583 ; 
Hall V. Hall, 18 Ga. 40; McMasters v. Blair, 
2D Penn. St. 298. Something more is re- 
quired than a mere passive, memory • There 
must be an active power to collect and retain 
the elements of the business to be performed 
for a sufficient time to perceive their obvious 
relation to each other. Converse v. Con- 
verse, 21 Vt. 168. It is not then essential 
to the legal capacity of a testator to make 
a will, that he should* be capable of managing 
business generally; it is enough, it, in the 
making of his will, and at the time of mak- 
ing it, he understands what he is doing. Kin- 
ne I). Kinne, 9 Conn. 102. See Hathorn v. 
King, 8 Mass. 371 ; Comstock i'. Hadlvme, 8 
Conn. 254 ; Boyd v. Eby, 8 Watts, 66"; Doi<- 
nick V. Reichenback. 10 Serg. &. R. 84 ; Go- 
ble V. Grant, 2 Green, Ch. 630; Chandler v, 
Ferris, 1 Harrington, 454, 484 ; Kachline v. 
Clark, 4 Whart. 320; Den v. Johnson, 

2 South. 454 ; Shelf. Lunacy, 283. In a 
case wlv re the will was executed at the time 
of the testator's being in a feeble and almost 
unconscious state, only five hours before 



58 



death, occasioned by a recent accession of 
disease affecting the brain and producing tor- 
por, the will was set aside. Harwood v. Ba- 
ker, 3 Moore, P. C. 282. Mere weakness of 
understanding is no objection to a man's dis- 
posing of his property by will ; for courts 
cannot measure the degree of people's under- 
standings and capacities, nor examine into 
the wisdom or prudence of men in disposing 
of their estates. Duffield v. Robeson, 2 Har- 
rington, 379; Elliott's will, 2 J. J. Marsh. 
340 ; Dornick v. Reichenback, 10 Serg. & K. 
84; Osmond v. Fitzroy, 3 P. Wins. 129; 
Newhouse v. Godwin, 17 Barb. 236. See 
Clark II. Fisher, 1 Paige, 171 ; Patterson v. 
Patterson, 6 Serg. & R. 56 ; Tomkins ». Tom- 
kins, 1 Bailey, 92 ; Stewart v. Lispenard, 26 
Wend. 313. "If a man," says Swinburne, 
Pt. 2, § 4, pi. 3, " be of a mean understanding 
(neither of the wise sort or the foolish) 
but indifferent, as it were betwixt a wise 
man and the fool, yea, though he rather in- 
cline to the foolish sort, so that for his dull 
capacity he might worthily be termed gros- 
sum caput, a dull pate, or a dunce, such a one 
is not prohibited from making his testa- 
ment " Shep. Touch. 403 ; Shelf. Luna- 
cy, 275, 276. For a case where a will was 
established, though made by a person of very 
inferior capacitv, see Stewart v. Lispenard, 26 
Wend. 255. But see Delafield v. Parish, 25 
N. Y. 9, 27. 

1 States iu which married women may 
dispose of general propertv by will : — 

Alabama. Code, 1876," ch". 1, p. 647. 

Arkansas. Digest, 1874, ch. 135, p 1012. 

California. Codes and Stats. 1876, Vol. 1, 
Title 6, ch. 1, p. 720. 

Colorado. Gen. Laws, 1877, ch. 64, p. 614. 

Dakota. Rev. Code, 1877, Title 5, ch. 1, 
p. 343. 

Delaware. Rev. Code, 1874, ch. 84, p. 508; 
Act for Protection of Women, see ch. 76, 
p. 479. 

Florida. Bush's Digest, 1872, ch. 118, 
p. 580. 

Georgia. Code, 1873, ch. 2, p. 415. 

Illinois. R. S. 1880, ch 148, p. 1108. 

Indiana. Stat. 1876, Vol. 2, ch. 3, p. 570. 

Iowa. Rev. Code, 188U, Vol. 1, Title 15, 
ch. 2, p. 588. 

Kansas. Comp. Laws, 1879, ch. 117, 
p. 1004. 

Kentucky. Gen. Stat. 1873, ch. 113, p. 832. 

Maine. R. S. 1871, ch. 61, p. 491. 

Maryland. Rev. Code, 1878, Art. 49. p. 421. 

Massachusetts. Gen. Stat. 1860, ch. 108. 
p. 538. 

Michigan. Comp. Laws, 1871, Vol. 2, 
ch. 154, p. 1371. 

Minnesota. Stat. 1878, ch. 47, p. 567. 

Mississippi. Rev. Code, 1871, ch. 23, 
p. 378. 

Mjssouri. R. S. 1879, Vol 1, ch. 7. p. 680. 

Nebraska. Gen. Stat. 1873, ch. 17, p. 299. 



COVERTURE. *39 

through whom the property is derived, so far, at least, as the Jus 
disponendi is concerned ; while the contrarj' has been decided 
* with respect to infanc}', which alone of the other enumerated *39 
disabilities could admit of anj' question being raised on the sub- 
ject (t) : as, of course, any attempt to give a power of disposition to an 
idiot or lunatic would be abortive. 

[No contract can enable a married woman to pass the legal interest 
in her lands at common law by an ordinary will ; since being _(.an„pt ^e 
excepted out of the statute 34 & 35 Hen. 8, c. 5 (which ex- dispensed 
ception is preserved by the 1 Vict. c. 26, s. 8), she was, as ^tateTat" 
we have seen, left subject to her pre-existing disabilities, common law; 
Every will of a married woman passing a legal estate must —but may 
operate as an appointment of an use ; but a mere contract *' '" "*^^ ' 
before marriage, as to specified lands, will be sufficient to give the wife 
an equitable power (m) to devise, and the legal estate must _oras t,, 
be obtained by convej'ance from the heir. In the case of equitable 
personal estate, the will of a married woman will be valid ' 

T„ 1 . n . 1 /. • — or as to 

if made in pursuance of an agreement before marriage, or personaltr 
of an affi'eement made after marriage for consideration (x) , "-^ contract 

o ° ^ -" or with Ims- 

or if the husband assents to the particular will and survives band's as- 
her (y). A married woman can also, in equitj', dispose b}' ^'"^'' 
will of the fee-simple of real estate (z) , and of the absolute interest 
in personal estate (a) , which belong to her for her sepa- or property 
rate use (S), whether vested, or contingent on her sur- separate" use- 

(t) Hearle v. Greenbanlc, 3 Atk. 897, 2 Ves. 298. [Contra of a power simply collateral, 
Grange v. Tiving, Bridg. by Ban. 107, 2 Sug. Pow. App. 7th ed.] 

[(M) Wright)). Lord Cadogan, 2 Ed. 239; and see Churchill v. Dibben, 9 Sim. 447, n.; 
Dillon V. Grace, 2 Sch. & Lef. 463. As to copyholds, see George v. Jew, Amb. 627. 

(X) 1 Hop. Hush. & Wife, 170. 

(y) Willock V. Noble, L. E. 7 11. L. 580, 590, 697; Ex parte Fane, 16 Sim. 406; Ee Eeav, 
4Sw.&Tr.215, 31L. J. Prob. 154; Ee Isaacs, 31 L. J. Prob. 158. The assent mar be retracted 
at anv time before probate, unless it has been given or confirmed after the wife's death, MaaH 
V. Sheffield, 1 Eob. 364, 10 Jur. 417. 

(z) Taylor v. Meads, 4 D. J. & S. 597; Pride v. Bubb. L. E. 7 Ch. 64. And the will de- 
feats the husband's equitable right to curtesy. Cooper v. Macdonald, 7 Ch. D. 288. In Trout- 
beck V. Boughev, L. E. 2 Eq. 534, the separate use was attached onlv to the annual rents. 

(a) Eich" B. 'Cockell, 9 Ves. 369: Parker v. Brooke, ib. 583; Fet'tiplace v. Gorges, 1 Ves. 
.Tr. 46, 3 B C. C. 8; Caton ». Ridout, 1 Mac. & G. 599, 2 H. & Tw. 33; Eowe v. Eowe, 
2 De 6. & S. 294. 

ib) A declaration in the husband's will is sufficient to show that the property is the wife's 
separate estate, and does not merely operate as an assent, which, as we have' seen, would be 

Nevada. Comp. Laws, 1873, Vol. 1, Ehode Island. Gen. Stat. 1872, Title 20, 

ch. 37, p. 200. ch. 152, p. 331. 

New Hampshire. Gen. Laws, 1878, ch. South Carolina. E. S. 1873, ch. 100, 

183, p. 435. p. 482. 

New Jersey. Eevision, 1709-1877, Vol. 1, Tennessee. Stat. 1871, Vol. 2, Title 3, 

p. 6-38. ■ ch. 1, p. 1001. 

New York. N. Y. 1875, Vol. 3, ch. 8, Texas. E. S. 1879, Title 99, p. 712. 

p. 160. Utah. Comp. Laws, 1876, ch. 2, p. 271. 

North Carolina. Battle's Eevisal, 1873, Vermont. Gen. Stat. 1862, ch. 71, p. 471. 

ch. 69, p. 592. Virginia. Code, 1873, ch. 118, p. 910. 

Ohio. E. S. 1880, Vol. 2, ch. 1, p. 1424. West Virginia. E. S. 1878, ch. 122, 

Oregon. Gen. Laws, 1843-1872, ch. 64, p. 774. 
p. 788. Wisconsin. E. S. 1878, ch. 103, p. 649. 

Pennsylvania. Brightl. Purd. Digest, 
1700-1872, Vol. 2, p. 1477. 

59 



*40 PERSONAL DISABILITIES OP TESTATORS. 

viving her husband (c) ; since, in respect of such property, 
*4.0 * she is a feme sole ; and it is immaterial that the legal estate is 

not vested in trustees, since the husband, and all persons on 
whom the legal estate may devolve, will be deemed trustees for the per- 
— and its ^^"^^ ^° whom the wife has given the equitable interest (rf ) . 
produce and And this Separate trust of the principal attaches on all the 
tkins?" "' produce or accumulations of such principal (e) . Savings 
Savings out of an allowance made by a husband for the separate 
out of maintenance of his wife are in equity treated as her separate 

estate (/) ; of which, therefore, she may dispose by will. 
Pin-money, gyj- gayings out of pin-money are said to belong to the hus- 
band (g) ; on the principle that pin-money is an allowance made for a 
particular purpose, and, if not applied for that purpose, reverts to the 
donor.] 

A woman, whose husband has been banished for life by act of parlia- 
ment {h) , may dispose by will of her real and personal es- 
cxile niav* *^*^ ' ^^i'' ^® ^^ ^^ civilly defunct, she is restored to the 
nialie a will, rights and privileges of discoverture. [This doctrine was 
—or wife of l^eld to be applicable to the case of a felon-convict trans- 
a feion-cou- ported for life, so as to enable his wife to dispose by will 
™)fte™for °^ personalty acquired by her after the conviction (i) , al- 
iife. though the felon had received a conditional free pardon (k)'] ; 

insufficient if the liusband died first, Ee Smith, 1 Sw. & Tr. 125, 27 L. J. Prob. 39. A dec- 
laration of trust by the husband in favor of his wife for her separate use may be either ex- 
press (Baddeley v. Baddeley. 9 Ch. U. 113) or implied by his acts, as, where with his assent 
slie carries on a separate business, and the profits and stock in trade are treated as her separate 
property, Haddon v. Fladgate, 1 Sw. & Tr. 125, 27 L. J. Prob. 39 ; Ashworth v. Outrani, 5 
<,'h. D. 923; and sec Married Women's Property Act, 1870. Although a married woman may 
have no power to make a will, it .seems that she may by "writing " under 1 Vict. c. 26, s. 20, 
revoke one alreadv made. Hawksley i). Barrow, L. R. 1 P. & D. 147, 152. 
(r) Bishop v. Wall, 3 Ch. D. 394. 

(d) See Hall v, Waterhouse, 5 GifE. 64, as to realty; and cases in n. (a) as to personalty. ' 

(e) Fettiplace «. Gorges, supra; Gore )). Knight, Pre. Ch. 255, 2 Vern. 535; Ashlon v. 
McDougal, 5 Beav. 56; Uarkin v. Darkin, 17 Beav. 578; Humphery i'. Richards, 25 L. J. 
Ch. 442; Scales v. Baker, 28 Beav. 91. But the wife's dealings with the produce may show 
an intention to put an end to the separate trust, W]"ight -y. Wright, 2 J. & H. 647. 

(/) Brooke v. Brooke, 25 Beav. 342; Re Tharp, 3 P. D. 76 (separate allowance to wife of 
lunatic). Secus at law. Messenger v. Clark, 6 Exch. 388. 

(fy) Jodrell v. Jodrell, 9 Beav. 45; Howard v. Digby, 2 CI. & Fin. 634; and per Wood. 
V.-C., Barrack v. M'Culloch, 3 K. & J. 114. See, however, Sugdeu's Law of Propertv, 
p. 163, coTs^m] 

(k) Countess of Portland v. Prodgers, 2 Vern. 104. [The report speaks only of a bequest 
of legacies. 

(>) Re Martin, 2 Roberts. 405, 15 Jur. 686 ; Re Coward, 4 Sw. & Tr. 46, 34 L. J., Prob. 
120. In the latter case sentence of death had been recorded, so that the felon was attainted, 
and being thus dead in the eye of the law, was incapable of claimingjuce mariti (per Wood, 
V.-C, Gough V. Davies, 2 K. & J. 627). However, the court did not take this ground, but 
relied expressly on Ex parte Franks, 1 M. & Sc. 11, 7 Bing. 762, where the felon was trans- 
ported for a term of years. See also Atlee v. Hook, 23 L. J. Ch. 776 (where a legacy be- 
queathed, after the conviction, to the wife of a felon transported for life, Ijut so far as appears 
not attainted, was ordered to be paid to her); and per Romilly, M. R., Re Harrington's Trust, 
29 Beav. 24. Attainder for felony is now abolished and the status of a felon-convict regulated 
by 33 & 34 Vict. c. 23, as to which see post. 

(fc) Under 5 Geo. 4, c. 84, s. 26, a convict was entitled to retain against the crown and to 
recover in the courts of the United Kingdom personalty acquired bv nim after receiving such 
a pardon. Gough v. Davies, 2 K. & J. 623. But see and consider Re Church's Will, 16 Jur. 
B17; Coombs 7'. Queen's Proctor, 2 Roberts. 547, 16 Jur. 820(transport»tioo fortermofyeai-s), 
and see now the act referred to in the last preceding uute.] 

60 



COVERTURE. 



*41 



and when a felon was transported for a definite term of years, 

his marital rights (and therefore it * should seem his wife's con- *41 

jugal disabilities) were suspended for that period (/).^ 

(I) Ex parte Franks, 1 M. & Sc. 11, 7 Bing. 762 [where it was held that the wife could be 
made baiilirupt. But where the wife of a felon transported for years had died intestate in tlie 
husband's lifetime, it was held that the crown and not lier next of kin was entitled to her 
personal property acquired after the conviction. Coombs v. Queen's Proctor, 2 Roberts. 5i7, 
16Jur. 820.] 

1 [The following note prepared as text by 
the editor of the last American edition, will 
show the common-law doctrine of testament- 
ary disability by coverture; much of which, 
however', is now obsolete in many states :] The 
English Statute of Wills, 32 Hen.So. 1, author- 
ized every person having lands, &c,, to devise 
them; and it seems to have been the better 
opinion on the construction of that statute that 
a married woman could not make a valid will 
of lands. Calverlve's case, Dver354b; Mar- 
ston «. Norton, 6 S. H. 211. But as " divers 
doubts, questions, and ambiguities" had 
arisen, or were apprehended on that and 
other points, the statute of.34& 35 Hen. 8, 
c. 5, was made to remote them; and this last 
statute (§ 14) expressly prohibits such devises 
by married women. Osgood v. Breed, 12 
Mass. 525. A married woman cannot, at 
common law, make a will of personal, any 
more than of real estate, except under a 
settlement, or maiTiage contract, or by her 
husband's license, 2 Black. Comm. 4U8; 4 
Kent, 506; Steadman v. Powell, 1 Addams, 
68; Hood v. Archer, 1 M'Cord, 225; New- 
lin V. Freeman, 1 Ired. 514; 1 Williams, 
Ex. {6th Am. ed.) 53; for all her personal 
chattels are absolutely his; and he may dis- 
pose of her chattels real, or shall have them 
to himself, if he survives her. It would 
therefore be extremely inconsistent to give 
her a power of defeating that provision of the 
law, bv bequeathing those chattels to others. 
1 Williams, Ex. (6th Am. ed.) 53; Ognell's 
Case, 4 Co. 51 b ; 2 Black. Comm. 498. Since 
the husband has no beneficial interest in the 
personal estate which the wife takes in the 
character of executrix, and as the law permits 
her to take upon herseh' that office, it enables 
her, in exception to the general rule that a 
married woman cannot dispose of property, 
to make a will in this instance, without the 
consent of her husband; restricted, however, 
to those articles to which she is entitled as 
executrix. Scammell v. Wilkinson, 2 East, 
.552; 1 Williams, Ex. (6th Am. ed.) 54 ; Cutter 
V. Butler, 5 Fost. 363. The effect of such 
an instrument is merely to pass, by a pure 
right of representation, to the testator or prior 
owner, such of his personal assets as remain 
outstanding, and no beneficial interest which 
the wife may have in any part of them; and 
with respect to the assets which may have 
been received by the feme executrix, during 
the marriage, and not disposed of, they imme- 
diately become the husband's pi'operty, and 
are not affected by the will. Hodsden v. 
Lloyd, 2 Bro. C. C. 534, 543; Scammell v. 
Wilkinson, 2 East, 556, 567; 1 Williams, Ex. 
(Btli Am. ed.) 54. As the husband may waive 



the interest which the law bestows on him, he 
may empower the wife to make a will to dis- 
pose of her personal estate. Osgood v. Breed, 
12 Mass. 525, 632 ; Estate of Wagnei', 2 Ashm. 
448; Newlin r. Freeman, 1 Ired. 514; Fisher 
V. Kimball, 17 Vt. 323; 2 Black. Comm. 498; 
Emery v. Neighbor, 2 Halst. 142; Cutter v. 
Butler, 5 Fost. 354, 355. In Osgood v. 
Breed, 12 Mass. 532, Jackson, J., spealiingof 
the will of personal property by a mari'ied 
woman with the consent of her husband, said : 
" Upon a bequest by her of money or other 
chattels, his assent alone will make it valid, 
because he alone is interested to question her 
authority. The gift, if it is effectual, is his 
gift; and the property passes from him." 
Thus a husband may assent to his wife's will, 
and such assent entitles the wife's executor to 
claim such articles of her personal estate 
as would have been her husband's as ad- 
ministrator. 1 Williams, Ex. (6th Am. ed.) 
54; 1 Rop. Husb. and Wife (2d ed.), 170; 
George v. Bussing, 15 B. Mon. 558. But m 
order thus to establish the will, a general 
assent that the wife may make a will is not 
sufficient; it should be shown that he has 
consented to the particular will that .'^he has 
made. Rex v. Bettesworth, 2 Strange, 8.)l; 1 
Williams, Ex. (6th Am. ed.) 54; 2 Black. 
Comm. 498; Cutter v. Butler, 5 Fost. (N. H.) 
357; George v. Bussing, 15 B. Mon. 558; and 
it has been held that his consent should be 
given when it is proved, Henlev v. Phillips, 
2 Atk. 49; Swinb. Pt. 2, § 9, pi 10, and that 
he may therefore revoke his consent at any 
time during his wife's life, or after her deatii 
before protate. Swinb. Pt. 2, § 9, pi. 10; 
1 Rop. Husb. and Wife, 170; 4 Burn's Ecc. 
L. 52; George v. Bussing, 15 B. Mon. 558. 
In Estate of Wagner, 2 Ashm. 448, it was 
held, that the husband may revoke his assent 
to a will made by his wife of her personal es- 
tate; but it must be done before probate of 
the will. But the better opinion appears now 
to be, that if the husband acts upon the will 
or agrees to it, after the death of the wife, he 
is not at liberty to retract his assent and op- 
pose the probate. Cutter u. Butler, 5 Fost. 
357; 1 Rop. Wills. 23; Maas v. Sheffield, 10 
Jur. 417. The assent of the husband may be 
implied from circumstances. Cutter v. But- 
ler, 5 Fost. 357, 358. If the will is in the 
handwriting of the husband, this is evidence 
of his assent. Grimke v. Grimke, 1 Desaiis. 
366. See Smelie v. Reynolds, 2 Uesaus. 66; 
1 Rop. 169 ; Lov. Wills, 266. And when the 
will is made in pursuance of an express agree- 
ment or consent, it is said that a little proof 
will be sufficient to make out the continuance 
of the consent after her death. 1 Williams, 



61 



*41 



PERSONAL DISABILITIES OF TESTATORS. 



A will made during any personal disabilitj', of course, is not [since 
Subsequent the act 1 Vict. c. 26] rendered valid by the fact of the tes- 
of 'wm^OTis^ tator having outlived such disability, unless its removal were 
Daily void, followed by some act of confirmation or adoption amounting 



Ex. (6th Am. ed.) 55. See Smelie v. Rey- 
nolds, 2 Desaus. 66. This assent on the part 
of the husband is no more than a waiver of 
his rights as his wife's administrator. 1 Rop. 
Husb. and Wife, 170. It therefore can only 
give validity to the instrument in the event 
of his being the survivor. Hence it follows, 
that if he die before his wife, her will is void 
against her next of kin, so far as it derived 
its effect from his consent; and it therefore 
does not pass the right to property bequeathed 
to her during the coverture. Stevens v. Bag- 
well, 15 Ves. 156. A married woman maj', 
without the assent of her husband, dispose by 
will of her separate personal estate, settled 
upon her, or held in trust for her, or the sav- 
ings of her real estate given to her separate 
use, whether the instrument under which she 
takes it determines as to the power of dispo- 
sition or not. Rich v. Cockell, 9 Ves. 375, 
376 ; and this she may do without the inter- 
vention of trustees, for the power is incident 
to such an ownership. 2 Kent (5th ed.), 
170, 171; Kettiplace v. Gorges, 1 Ves. Jr. 
(Sumner's efl.) 46, 48, 49, and notes; S. C. 3 
Bro. C. C. 8, and ndtes; Rich ». Cockell, 9 
Ves. 375; Tappenden v. Walsh, 1 Phillim. 
352; Grigby v. Cox, 1 Ves. Sen. 518; 
Braham ». Burchell, 3 .\ddams, 243; Peacock 
(?. Monk, 2 Ves. Sen. 190 ; Picquet v. Swan, 
4 Mason, 455; West v. West, 3 Rand. 373; 
Barnes v. Irwin, 2 Dallas, 199. The princiiile 
upon which the above doctrine is foundea is 
this: that when once the wife is permitted to 
take personal property to her separate use, as 
SL feme sole, she must so take it with all its 
privileges and incidents, 6ne of which is the 
.JUS disponendi. 1 Williams Ex. (6th Am. ed.) 
61. And this rule prevails without regard 
to the circumstance whether the property 
be in possession or reversion. Sturgis V. 
Corp. 13 Ves. 190; Headen v. Rasher, 1 
M'Glell. & Y. 89. And when she has such a 
power over the principal, it extends also to 
Its produce and accretions, e.g. the savings 
of her pin-money. Gore v. Knight, 2 Vern. 
535; Herbert v. Herbert, Prec. Ch. 44; 
Picquet v. Swan, 4 Mas. 454, 455. Nor 
does it make any difference whether the 
property be given to trustees for the wife's 



540, it was decided that a mere agreement 
entered into before marriage by a female with 
her intended husband, that she should have 
power to dispose of her real estate during 
coverture, will enable her to do so; and it is 
not necessarv in such case that the legal es- 
tate should lie vested in trustees. This doc- 
trine has received the approbation of the 
Supreme Court of Pennsylvania. West v. 
West, 10 Serg. and R. 447. Whether a mar- 
ried woman can make a de\'ise of real estate 
which has not been conveyed to a trustee, 
but of which she and her husband are seised in 
her right, was made a question and discussed, 
but left undecided in Holman v. Perry, 4 
Met. 492, 497. Equity will carry into effect 
the will of a married woman disposing of her 
real estate in favor of her husband (see Hol- 
man V. Perry, 4 Met. 492, 495; Picquet v. 
Swan, 4 Mas' 443. But see Morse v. Thomp- 
son, 4 Cush. 562), or "other persons than her 
heirs at law, provided the will be in pur- 
suance of a power reserved to her in and by 
the ante-nuptial agreement with her hus- 
band. Bradish v. (Jibbs, 3 Johns. Ch. 523; 
2 Kent, 172. But in the absence of any 
agreement between them, that the wife should 
hold her personal property to her separate 
use, a testamentary disposition by her of such 
estate in favor of her husband has been held 
void, though made with his assent. Hood i'. 
Archer, 1 M'Cord, 225, 477 ; Newell's case, 
2 M'Cord, 453. A power to make a testamen- 
tary disposition of her estate may be conferred 
upon a married woman by a settlement either 
before marriage or subsequently thereto. 
4 Kent, 505. It may emanate either from 
her husband or from a third person. A 
post-nuptial settlement, made by a stranger 
upon the wife, is good, unless expressly dis- 
sented from by the husband, ticquet v. 
Swan, 4 Mas. 443. This subject has been 
discussed in a recent case, Holman v. Perrv, 
4 Met. 492, in Massachusetts. The impoV- 
tant facts were these : A woman, before mar- 
riage, conveyed to a trustee, with the assent 
of her intended husband, all the property, real 
and personal, which she then had, or might 
acquire after marriage, to be held by such 
trustee for her sole and separate use, and re- 
eeparate use, or, without the intervention of / served to herself in the mstrument of con- 



trustees, to the wife herself, for her own sep- 
arate use and benefit. , See Braham v. Burch- 
ell, 3 Addams, 263. For in the latter case a 
court of equity would decree the husband to 
stand as a trustee to the separate use of the 
wife. Tappenden v. Walsh, 1 Phillim. 352; 
Eollfet). Budder, Bunb. 187; 1 Williams, Ex. 
(6th Am. ed.) 62. A married woman may 
make a testamentary disposition of her real 
estate under a power by wav of execution of 
such power. 2 Kent, 17"l, 172: 4 Kent 
50, 506; Bradish v. Gibbs, 3 Johns. Ch. 
523; Anderson ». Miller, 6 J. J. Marsh. 
573. lu Bradish v. Gibbs, 3 Johns. Ch. 523, 



62 



veyance, full power to dispose of all such 
property by will or otherwise; after maiTiage 
she purchased and took a deed of real es- 
tate, which slie, jointly with her husband, 
conveyed to the same trustee, for her sole 
and separate use ; she afterwards executed 
her last will, therebv disposing of all the 
real estate, which had been reserved by her, 
and also of all such real estate as she might 
die seised and pos.'iessed of, which she might 
thereafter purchase. There was a. devise in 
the will, of a part of the estate reserved by 
her, in favor of her husband. After the exe- 
cution of the will, she purchased real estate 



DEVISES BY ALIENS. *42 

in law to [re-execution (m) . Before the act] the delivery by a widow 
of an instrument executed during coverture into the custody of another, 
as the will of the depositor, was held to be a suffl-cient republication of 
a will of personal estate (n) . 

[At common law, a] devise of lands by an alien was at least void- 
able (o) ; the crown being entitled, after office found, to Devises by 
seize them in the hands of the devisee, as it might have aliens, 
done in those of the alien during his life. Until office, the lands of an 
alien remained in him with all the incidental qualities belonging to such 
estates ; on which ground it has been held, that an alien tenant in tail 
in possession might suffer a common recovery (p) ; and he might, of 
course, execute its substitute, an enrolled conveyance, and thereby bar 
the issue in tail and remainders : and, by parity of reasoning, the will 
of an alien vested his defeasible title in the devisee {q) ; though, if he 
died intestate, the land escheated to the crown, or other lord, pro de- 
feciu tenentis, without any inquest of office, because an alien could have 
no heirs (r). [But by the Naturalization Act, 1870 (s), " real and per- 
sonal property of every description maj' be taken, acquired, held, and 
disposed of by an alien in the same manner as bj* a natural-born British 
subject ; and a title to real and personal property of every description 
may be derived through, from, or in succession to an alien in the same 
manner in all respects as through, from, or in succession to a natural- 
born British subject. Provided that . . . this section shall not af- 
fect (t) any estate or interest in real or personal property to which any 
person has or may become entitled either mediately or immedi- 
ately in possession * or expectancy in pursuance of any disposi- *42 
tion made before the act, or in pursuance of any devolution 
by law on the death of any person dying before the act."] 

Persons attainted of high treason [were formerly] incompetent to 
devise their lands, since, by several old statutes (m), the Devises by- 
real estates of a traitor were, by the attainder, ipso facto f™^|"J? ^'^^ 
vested in the crown. —realty. 

(m) 1 En. Ca. Ab. 171, pi. .3; [Price v. Parker, 16 Sim. 198; Trimmell v. Fell, 16 Beav. 
537; Willoclc v. Noble, L, R. 7 H. L. 580.] 

(m) iVIiller v. Bi-own, 2 Hagg. 209. (o) See Shep. Touch. 404. (p) 4 Leon. 84. 
(?) See Shep. Touch. 404. (r) Co. Litt. 2 b. 

[(«) 33 Vict. c. 14, s. 2 : not confined to alien friends, as 7 & 8 Vict. c. 66, a. 3. 
(t) J. e., shall not validate or invalidate, Sharp v. St. Sauveur, L. K. 7 Ch. 343.] 
(«) See 4 Jarm. Conv. 2d ed. 186. 

of which she was the legal owner at her de- pass under the will was raised, but not de- 
cease. The court held that as to the real cided. There is a distinction between the 
estate which was convej-ed to the trustee, power of a mariied woman to dispose of her 
under the ante-nuptial a^creement, and as to separate real estate, and her power to dis- 
the real estate which the testatrix afterwards pose of her separate personal estate, by will, 
jointly with her husband conveyed to the As to the personal estate, she has the .;us djs- 
trustee, for her sole and separate use, she had ponendi as a necessary incident to a separate 
the power to dispose thereof by will; and estate; but a married woman cannot devise 
that the will ought to be allowed and ap- her real estate except under a power. See 
proved, so far as would be necessary to give Holman ». Perry. 4 Mel. 496, per Dewey, .1. ; 
effect to her disposal of the same. The ques- Osgood v. Breed, 12 Mass. 525 ; Marston v. 
tion whether the real estate which she pur- Norton, 5 N H. 205. 
chased after the execution of her will would 

63 



*43 PERSONAL DISABILITIES OP TESTATORS. 

The lands of all persons attainted for petit treason and felony, for- 
merly escheated to the king or other feudal lord (x) , bj- reason of the 
corruption of blood consequent on attainder, which of course prevented 
the descent to the heir ; and the devises of such persons were absolutely 
void, or rather, by the better opinion, were voidable, as in the case of 
an alien (y) ; and such [until 1870 was] still the case as to persons not 
entitled to the benefit of the statute 54 Geo. 3, c. 145, which provided, 
that no attainder for felony, except in cases of high treason, or of the 
crimes of petit treason (afterwards abolished bj- statute (z) ) , or mur- 
der, or of abetting, procuring, or counseEing the same, " shall extend 
to the disinheriting of any heir, nor to the prejudice of the right or title 
of any person or persons, other than the right or title of the offender or 
offenders, during his, her, or their natural lives only ; and that it shall 
be lawful to every person or persons to whom the right or interest of 
any lands, tenements, or hereditaments, after the death of auj' such 
offender or offenders, should or might have appertained, if no such 
attainder had been, to enter into the same." 

There was some ground to contend, that the concluding words of this 
provision enabled persons convicted of, or rather attainted for, any other 
than the excepted offences, to alien their real estate bj^ will, [and this 
ground was strengthened by the statutes (a), which in all cases where a 
title had accrued to the crown by escheat for want of heirs,- or by reason 
of any forfeiture, empowered the sovereign (notwithstanding the stat- 
ute (b) which had restrained the alienation of the roj^al demesnes in 
general to leases for thirty-one years) to make grants to any person for 
the purpose of restoring the land to the family of the former owner, or 
carrying into effect anj- grant, conveyance, or devise of it which he might 

have intended to make. 
*43 * But the point is now of the less importance, since, by stat. 

33 & 34 Vict. c. 23, attainder (which, and not the conviction, 
caused the disability) is thenceforth abolished, and express jyovisions 
(presently noticed) are made regarding the real estate both of traitors 
and felons.] 

Treason and felony incapacitated persons from making a will of 
Wills of personal estate, which [if vested (either in possession or re- 
traitors and maiuder),] became forfeited to the crown on conviction (c) ; 
^ °"^ ' an(^ this incapacity extended to a felo de se, who was, how- 

— personalt}'. gyer, capable of devising his real estate, as there was in such 

[Ix) Subject to the right of the crown to hold the lands vested in the person attainted at the 
period of the attainder for a year and a day. 1 Steph. Com. 417.] 

(V) Shep. Touch. 404. (2) 9 Geo. 4, c. 31, s. 2. 

[■(ffl) 39 & 40 Geo. 3, c. 88, s. 12; 47 Geo. 3, sess. 2, c. 24; 69 Geo. 3, c. 94; 6 Geo. 49, c. 17. 

(b) 1 Ann. st. 1, c. 7, s. 6J 

(c) 2 Bl. Comm. 499; Re Thompson's Trusts, 22 Beav. 506; Re Bateman's Trust, L. R. 
15 En. 355. Contra as to goods which he has as executor of another, of which he may make 
a will. Re Bailey, 2 Sw. & Tr. 156, 31 L. .T. Prob. 178. Contra, also, as to contingent inter- 
ests, where the felony was not capital, Stokes v. Holden, 1 Keen, 145 ; Barnett i'. Blake, 2 Dr. 
& Sm. 117, 128; and' as to personalty acquired by him after a conditional free pardon, Gough 
17. Davies, 2 K. & J. 623. 

64 



TRAITORS AND FELONS. *44 

case no attainder (d). In every case of felony in which sentence of 
death was not recorded, [that is to say, in which there was no attain- 
der,] the prisoner's competency to devise or otherwise dispose of his 
real estate was not affected (e) . 

[But the law as to both real and personal property is now regulated 
by Stat. 33 & 34 Vict. c. 23, which enacts (s. 1) that after Attainder 
the passing of it, " no confession, verdict, inquest, convic- and forfeiture 
tion, or judgment of or for any treason, or felony, or felo de felony abol- 
se, shall cause any attainder or corruption of blood, or any '*''^''' 
forfeiture or escheat ; provided that nothing in this act shall affect the 
law of forfeiture consequent on outlawry." The statute, then, after 
defining (s. 6) "convict" to mean any person against whom sentence 
of death, or of penal servitude, shall have been pronounced or recorded 
upon any charge of treason or felony ; and after providing (s. 7) that 
when any convict shall die, or become bankrupt, or shall have suffered 
his punishment, original or commuted, or have been pardoned, he shall 
thenceforth, as to. the provisions thereinafter contained, cease to be 
subject to the act, enacts (s. 8) that no action or suit for the recovery 
of any property shall be brought by any convict during the time that 
he is subject to the act, and that every convict shall be incapable dur- 
ing that time of alienating or charging any property^ or of making any 
contract, save as thereinafter provided. Sect. 9 provides for the ap- 
pointment of an administrator, in whom, upon his appointment, 
(s. 10) all the real and personal property (including *choses *44 
in action) to which the convict was at the time of his convic- 
tion, or shall afterwards, while subject to the act, become or be enti- 
tled, vests all the convict's estate and interest. And the adminis- 
trator has fuU power (s. 12) to let, sell, and mortgage the property, and 
thereout (ss. 13 to 17) to pay costs, debts, damages, &c., and to make 
allowances for the support of the convict and his family. Subject 
thereto, the administrator is (s. 18) to hold the property in trust, and may 
accumulate the mcorsnz, for the benefit of the convict and his heirs, or legal 
personal representatives, or such other persons as may be lawfully en- 
titled thereto, according to the nature thereof ; and the same is to revest 
in the convict on his ceasing to be subject to the act, or in his heirs or 
representatives, or such other persons. The convict is to be entitled as 
against the administrator to all property acquired by him while at large 
under license, and, during the same time, his disabilities under s. 8 are 
suspended (s. 30). 

Subject, therefore, to the temporarj' estate of the administrator, and 
to the charges imposed bj- the act, the real and personal prop- ^ffget of the 
erty of a traitor or felon remains his own, and he may dis- abolition. 
pose of it by his will ; for the prohibition against alienation during the 

(d) Norris v. Chambres, 29 Beav. 258. 

(e) Kex V. Willes, 3 B. & Aid. 510, 3 Inst. 55; Rex v. Bridger, 1 M. & Wei. 147; Ee Har- 
rop's estate, 3 Drew. 726. 

VOL I. 5 65 



*45 PERSONAL DISABILITIES OF TESTATORS. 

time that he is subject to the act can have no application to his will, 
whensoever executed ; a will being no alienation until the testatoi-'s 
death.] 

The statute of 1 Vict. c. 26, has left all personal disabilities affecting 
Effect of the testamentary power as they stood under the pre-existing 
1 Vict. c. 26 law ( f), with the exception of infancy, which formerly (we 

upon the dis- , ^ \ ,■■, ^- -4. i. c t • t 

abilities of have seen) did not mcapacitate persons or a certain age from 
testators. bequeathing personal estate ; whereas that statute (s. 7) has . 
provided, in general terms, that no will made by anj- person under the 
age of twenty-one years shall be valid ; thus destroying at a blow the 
long-existing distinction between wills of real and wills of personal 
estate in regard to the age of testamentary competencj'. The statute 
has even carried this principle so far as to abolish, in regard to infant 
testators, the paternal power of appointing guardians, conferred by the 
act of 12 Car. 2, c. 24 ; so that a person under age is now not compe- 
tent by will to appoint a guardian to his children. In short, the disa- 
bility of infancj' affects the testamentary power, under the new law, no 

less universally than it does the power of disposition hy deed ; and, 
*45 with respect to the appointment of guardians just referred * to, 

is even more extensive {g) , for the power of nominating guar- 
dians by deed given to an infant fathet by the statute of Charles seems 
to be stiU in force ; and this will go far towards preventing any prac- 
tical inconvenience which might otherwise have resulted from the 
abolition of the power of infant fathers to appoint guardians hy will. 

It may not be quite superfluous to remark, in conclusion of this 
„ , , branch of the subject, that in computing the age of a person 
computing for testamentary or other purposes, the day of his birth is in- 
^^' eluded : thus, if he were born on the 1 6th of January, 1800, 

he would have attained his majority on the 15th of January, 1821 (h) ; 
and as the law does not recognize fractions of a day (i) , the age would 
be attained at the first instant of the latter daj'. 

[( /) See as to coverture Noble v. Willock, L. E. 7 H. L. 580. But as to revocation bj' 
" writing," see Hawksley «. Barrow, L. K. 1 P. & D. 152.] 

(f/) Infants, too, of the age of fifteen, are, in certain cases, competent to convey gavelkind 
lands by feoffment. 

(J.) Herbert v. Torball, 1 Sid. 162, Raj-m. 84, [8 Vin. Dev. G. pi. 20: Anon. 1 Salk. 44; 
Howard's case, 2 ib. 625. But a person attains "his 25th year " when he becomes 24 years 
old. Grant v. Grant, 4 Y. & C. 256. 

(s) See Lester v. Garland, 15 Ves. 257.] 

66 



WHAT MAY BE DEVISED OR BEQUEATHED. *46 



CHAPTER IV. 

WHAT MAT BE DEVISED OE BEQUEATHED. 

The power of testamentary disposition extends to all interests in real 
and personal estate, which, at the decease of the testator, 
would, if not so disposed of, devolve to his general real, or dispose o™^^ 
personal representatives (a), whether the testator be the whatever 
legal or the beneficial owner only, or unite in himself both voire upon 
these characters.! Tried by this rule, it is obvious that a •"^ general 

•' ' represent- 

devise or bequest by a joint tenant of real or personal estate atives., 
is void, in the event of the testator dying in the lifetime of joint estates 
his co-proprietor, whose title bj' survivorship takes prece- not devis- 
dence of the claim of the devisee or legatee, as it would of 
that of the heir or administrator, of the pre-deceased joint tenant, in 
case he had died intestate (b) . If, on the other hand, the testator sur- 
vives his companion in the tenancy, the efficacy of the devise or bequest 
formerly depended on the nature of the propertj' ; in the case of a free- 
hold interest, the devise was void as not authorized by the statute 34 
Hen. 8, c. 5, the testator not having a sole estate when he njade his 
will ; and, by paritj' of reasoning, any divided part or share which, 
after the execution of the will, he might have acquired on [a severance 
of the jointure, or] a partition of the property, would not pass there- 
by (c) . But this reasoning, it is obvious, did not apply to leasehold 
property or other personal estate ; a future interest in which, devolving 
by survivorship or acquired b}' partition, would, like all other after- 
acquired personalty, pass by a general or residuary bequest ; and such, 



ivi 



(a) Or, if he become entitled by descent, on the heir or customary heir of his ancestor, 
let. c. 26, s. 3. And see Ingilby ». Amcotts, 21 Beav. 585.] 
(4) Co. Litt. 185 a. 
(c) Swift d. Neale v. Roberts, 1 W. Bl. 476, 3 Burr. 1488. 



1 Canfield v. Bostwiclt, 21 Conn. 550 ; Gold 391; Wright ». Wright, ib. 411 : Lawrence i-. 
V. Judson, ib. 616 ; Brimmer v. Sohier, 1 Bayard, 7 Paige, 76 ; Variclc v. Edwards, 1 
Cush. 118; Waitt v. Belding, 24 Piclc. 129, Hoif. Ch. 383, 395-405; Pond v. Bergh, 10 
136 ; Loveren v. Lamprey, 2 Post. 431; CoHin Paige, 141. But in the case of a possibility, it 
V. Collin, 1 Barb. Ch. 630; Van Vechten v. the person to take be not ascertained, there 
Van Veghten, 8 Paige, 104; Fahmey v. Hoi- can be no valid devise thereof, 4 Kent, Com. 
singer, 65 Penn. St. 388 ; Scott v. Guernsey, 262. Vested estates are. of course, devjsable, 
60 Barb. 163 ; S. C. 48 N. Y. 106. All con- though liable to be defeated by the non-per- 
tingent estates of inheritance, including formance of conditions subsequent, or the 
springing and executory uses and possibili- happeniiig of subsequent events. Pinburv v- 
ties, coupled with an interest, if the person to Elkin, 1 P. Wins. 563, 666; Winsloww. Good- 
take be ascertained, are devisable, 4 Kent, win, 7 Met. 363; Doe d. Ingram ». Girard, 1 
Com. 261; Whitfield v. Fausset, 1 Ves. Sen. Houst. 276; 1 Eedf. Wills, 390 (4th ed.). 

67 



*48 WHAT MAY BE DEVISED OK BEQUEATHED. 

it will be remembered, is now the rule with respect to real estate de- 
vised by wills made since the year 1837. In regard to such a wiU, 
therefore, it is unnecessary to inquire whether the devising joint tenant 
had become solely seised by survivorship at the period of its exe- 
*47 * cution ; it is enough that he had acquired a devisable interest 
in the estate at the time of his decease {d ) ^ 

Where the several co-prbprietbr's ' are tenants in common, or copar- 
ceners, each has [a sole estate, and therefore] an absolute power of 
testamentary disposition over his or her undivided share. ■ 

An executory interest in real or personal estate was (and of course 
Execuwry still is) disposable by will, if the nature of the contingency 
when devis- *"^ which it is dependent be such that the interest does not 
able. cease with the life of the testator ; in other words^ if it be 

descendible or transmissible. This doctrine, in regard to real estate, 
was recognized in Goodtitle v. Wood (e), and was iinally established in 
Roe d. Perry v. Jones (/), where an estate was devised by will (on 
failure of certain limitations to the younger sons of A.) to the only son 
of A. in fee, in case he should have but one son who should live to 
attain twenty-one. A. had an only son B., who, in the lifetime of 
his father, after; he had attained his majority, made a will, devising all 
his estate in possession or reversion ; and the question was, whether this 
will operated to pass the executory use which B. had during his 
*48 father's lifetime. * The court of K. B. held that it did; Lord 
Kenyon, C. J., drawing a distinction between such an interest 
and a mere possibility, like that which an heir has from his ancestor. 

(d) The doctrine respecting joint tenancies comes under consideration in practice most 
frequently in regard to trust estates -which, where vested in a plurality of persons, are com- 
monly limited to them as joint tenants, on account of the obvious convenience attending the 
devolution of the estate to the survivors or survivor for the time being, instead of the title to 
the respective shares being deducible through the representatives of the several deceased 
trustees. The testacy or intestacy of any trustee, who at his decease leaves a co-trustee (be- 
tween whom and himself there existed a joint tenancy), it is unnecessary to inquire into; but 
in case he were the sole trustee at his death, his will, if he left any, should be examined, in 
prder to'ascertain whetlier it contains an express device of, or a devise capable of operating on 
freehold Interests vested in the testator as trustee ; and if the will (being made before the 
year ]8.38) were subject to the old law, it would be also proper to sefe that the sm*viving trus- 
tee had become solely entitled by sur\'ivorship before the making of the will. Where the 
deceased trustee was a female under covertui-e, or was uninterruptedly subject to any other per- 
sonal disability affecting the testamentary capacity, of course the necessity of an inquiry' into the 
existence of a will is superseded. It is" then only requisite to ascertain who is the common- 
law heir (as to freehold interests), cir the customary heir (as to copyholds) of the deceased 
trustee ; though it is to be observed that, if the trustee in question were a man'ied woman, and 
the subject of the trust were a freehold of inheritance, the legal title would not be complete 
without the junction of her surviving husband, in case she had had issue by him capable of 
inheriting the property; the husbaftd having, under such circumstances, an'estate for life as 
tenant by the curtesy. This is a point which is sometimes overlooked. Dower also attaches 
on a mere legal ownership, but as it is uot an Actual estate, being only a legal right, the 
enforcement of which Would be restrained in Equity, the concurrence of the widow of a 
deceased trustee is never required. 

(e) Willes, 211; S. C. cited 3 T. E. 94. 

(/) 1 H. Bl. 30; S. C: in B. R. 3 T. R. 88; [and see Moore ». Hawkins, 2 Eden, 342, 
Fearne, C. R. 366 ; Ingilby v. Amcotts, 21 Beav. 685, which also explains the sense in which 
" descendible " is to be here understood.] 

1 4 Kent, 513. 
68 



■WHAT MAY BE DEVISED OE BEQUEATHED. *49 

BuUer, J., observed, that if it was such an interest as was descendible^ it 
was also devisable, as they must both be governed by the same principle. 
The converse of the proposition of the learned judge is equally true, 
namely, that an interest which is not transmissible cannot be devised. 
An instance of this species of interest occurred in Doe v. Tomkinson {g) , 
where a testator devised his real estate to A. and B. and the survivor 
of them, and to be disposed of by the survivor as she might, by will, 
devise. A. survived B., having in the lifetime of B. made a will, de- 
vising her contingent interest -, but which interest was held not to pass 
by the devise, on the ground that the person who was to take was not- 
in any degree ascertainable before the contingency happened. The 
reasoning of the court merely assigns a ground for the decision which is 
common to executorj' interests of every description ; for it is the uncer- 
taintj', who wiU become entitled, which renders the interest contingent. 
The true ground, it is submitted, is, that the contingency, depending 
on sur^'ivorship, necessarily takes effect in the lifetime of the testator, 
and, therefore, the interest cannot be the subject of a devise-, which is 
inoperative until death (h) . If the reason assigned by the court of 
K. B. in Doejj. Tomkinson were the correct reason, it.would follow that, 
in the case of a limitation to several persons, and the heirs of the one 
first d3'i'ng, such interest would, under the old law, not be devisable,' 
since it differs from the limitation which occurred in that case, 
only in regard to the nature of the * contingency, the person to *49 
take being, in the one case no less than in the other, wholly 
unascertainable before the contingency happens ; and yet the conclusion 
that such an interest may be disposed of by will, seems indisputable. 
The point is not now of much practical importance, as it cannot arise 
under a wiU made since the year 1837, the statute of 1 Viet. c. 26 
having expressly provided (no doubt with a special view, to meet- the 
particular case now under consideration) that the testamentary power 
conferred by it "shall extend to all contingent, executory, or other 
future interests in any real or personal estate, whether the testator may^ 
or may not be ascertained as the person or one of the persons in whom 
the same respectively may have become vested." 

(0) 2 M. & Sel. 165. 

f(A ) It is presumed that the meaning of this passage in the text is, that the interest at the 
date of the will being contingent, but the interest that the will would actually operate upon 
being vested, there is in fact a new interest acquired after the date of the will, which cannot- 
pass by it; in other words, the will is re-yoked oy. the alteration of estate consequent upon the 
happening of the contingency. To this view the case of Jackson v. Hurlock, 2 Ed. 263, 
seems directly opposed. In that case a testator devised lands, then conveved them to uses 
which were to arise on his intended marriage, and under which he would tate a remainder in 
fee; then made a codicil republishing nis will^ and afterwards married and died without issue 
of that marriage ; and it was held, thai the lands, in which, under the settlement, his interest 
at the date of the codicil was contingent, but became vested on his marriage, passed by the 
■will and codicil. In Sug. Pow. p-- 269, 8th ed., the decision in Doe v. Tomkinson is referred 
to the ground that the interest of the survivor was a power, and not an estate, and could not 
be exercised until the donee actually answered the description tinder which the power was 
given to him, that is, became the survivor. And see McAdam v. Logan, 3 B. C. C. 310, 
and Mr. Eden's note; Feame, C. E. 370. But see per Lord Westbury, Thomas v. Jones, 
1 D. J. & S. 78, 79.] 

69 



*50 , WHAT MAr BE DEVISED OE BEQUEATHED. 

A right of action was not, under the old law, devisable. Thus, a 
As to rights reversion in fee expectant on an estate tail which had been 
of action. discontinued by the act of the tenant in tail, could not be 
devised (i). 

And the same doctrine was applicable to rights of entry. This point 
Eights of was much discussed in Goodright v. Forrester (k), where A. 
entry. being tenant for Ufe, with reversion to B. in fee, A. levied a 

fine come ceo, &c., after which, and when his estate had been thus re- 
duced to a mere right of entry, B. made a will devising the property in 
question, the validity of which devise was the point in dispute. The 
case was eventually decided on another ground, after an energetic pro- 
test from Sir J. Mansfield, C. J., against the doctrine which affirmed 
the invalidity of the devise ; but which seems nevertheless to be sound 
law. Such, it is evident, was the opinion of Ej-re, C. J., in Cave v. 
Holford (/), of Lord Eldon,in Att.-Gen. v. Vigor (m), and of the Court 
of K. B., in Doe d. Souter v. Hull (?j) [and Culley v. Doe d. Tayler- 
son (o)} ; and Lord Eldon, moreover, intimated an opinion, that a 
will made during disseisin was invalid, though the testator happened to 
die seised, on the ground that the testator was not seised at the date of 
the will ; but that if he then had the land, and was disseised afterwards, 
the devise was good, as a disseisee after re-entry is bj- relation seised 
ab initio; which certainly appears to be more consistent with princi- 
ple than the contrary position advanced in the early case of Bunter v. 

Coke (p).i 
*50 * [When it is said that rights of entry were not devisable, this 

extends only to rights of entry, properly so called, created by 
actual disseisin, and not to a right to recover possession of the land 
from a mere adverse > possessor, or a person holding over after the 
determination of his lawful title, for in such cases the freehold was in 
the testator, and of course might have been devised by him (?).] ^ 

All such questions, however, are precluded as to wills made since the 
year 1837 by the statute 1 Vict., which has expressly extended the tes- 

({) Baker v. Hacking, Cro. Car. 387, 40.5 ; see also Doe d. Cooper v. Finch, 1 Kev. & M. 
130, [i B. & Ad. 283.] (k) 8 East, 564, 1 Taunt. 578. (0 3 Ves. 669. 

(m) 8 Ves. 282. (re) 2 D. & Ry. 38. [(o) 1] Ad. & Ell. 1020.] In) Salk. 237. 
[(2) Doe V. Hull, 2D. & Ey. 38; Culley*. Doe, 11 Ad. & Ell. 1021.] 

1 See Humes v. McFarlane, 4 Serg. & E. roll v. Norwood, 4 Har. & M'H 287. The 

435; Mass. Gen. Stats, c. 92, § 3. In New settled test of a devisable interest in some 

York, in Varick v. Jackson, 2 Wend. 166, parts of the United States is, whether the 

it was held that a right of entry is devisable, mterest in the land is descendible. 4 Kent, 

though at the time of the devise, and of the 512, 513. The reasoning of the court in 

testator's death, the land was held adversely. Whittemore v. Bean, 6 N. H. 47, very much 

Such a right would pass by descent, and there favors the power of devising a right ot entry, 

are no reasons of policy to create a distinction Aright of entry will pass bv deed in New 

in this respect between descent and devise. Hampshire, ib. ; Hadduck d." Whilmarth, 6 

Jackson D. Vavick, 7 Cowen, 238. A right of N. H. 181. It is now provided by-statute there 

entry is devisable in Virginia. Watts v. Cole, that no devise or bequest of any property shall 

2 Leigh, 664. See Turpin v. Turpin, 1 Wash. be defeated by any disseisin or wrongftil dis- 

Va. 75; Hyeru. Shobe, 2 Munf. 200; Stoever possession thereof by any other person. 
V. Whitman, 6 Binn. 416 ; Waring «. Jackson, 2 See Smith v. Bryaii, 11 Ired. 418. 

1 Pet. 571 ; Gist v. Eobinet, 3 Bibb, 2; Car- 

70 



WHAT MAY BE DEVISED OE BEQUEATHED. *51 

tamentarj'' power to "all rights of entry for conditions broken and other 
rights of entry" (r). [And as to rights of action, the questpn cannot 
recur since the statute 3 & 4 WiU. 4, c. 27, s. 36, abolishing real 
actions, on which alone it is conceived the question could have 
arisen. 

Where a conveyance has been executed under circumstances which 
would give the grantor a right in equity to have it set aside and recon- 
vej'anee decreed, such right is clearly devisable (s) . 

Conversely, possession without title confers a devisable interest which 
may be defended and recovered by the devisee against all possession 
but the true owner (<). de facto. 

Personal property limited by settlement merely to the executors or 
administrators of the settlor may be disposed of by his will, since he 
himself takes absolutely under such a limitation (m) . 

In Bishop v. Curtis {v) it was argued that under the third section of 
the 1 Viet. c. 26, a bequest of a chose in action would pass cimge j^ 
to the legatee the right to sue in his own name ; but the action. 
court of B. R. decided that the act did not make anything bequeathable 
as personal estate, which might not have been bequeathed previously to 
the passing of that act.] 

A wiU disposing of any interest in real estate of which the testator 
was seised, operated, under the old law, in the nature of a ^ftg,..ag. 
conveyance, and, consequently, extended only to heredita- quired free- 
ments belonging to the testator when he made the devise, fol-meriy'not' 
This rule was early established, in relation as well to de- devisable, 
vises by custom, as to devises under the statutes of Hen. 8, which 
shows that * it did not (as commonly supposed) arise from the *51 
mode of penning those statutes, but resulted from principles com- 
mon to both species of devises. As equity follows the law, the doctrine 
extended no less to equitable than to legal interests. If, therefore, a 
testator before the year 1838 devised all the real estate of which he 
should be seised at the time of his decease, and after the making of his 
will he purchased lands in fee-simple, such after-acquired property, 
whether it was conveyed to the testator himself, or to a trustee for him, 
did not pass by the will, but descended, as to the legal inheritance in 
the former case, and as to the equitable inheritance in the latter, to the 
testator's heir-at-law (x). 

Where a testator had an equitable interest in the devised lands when 

(r) The devise must be by apt words: " real estate of which I may die seised" has been 
held not to nass land of which, though entitled thereto, the testator was not seised. Leach ». 
Jay, 9 Ch. D. 42. 

(«) Uppington v. Bullen, 2 D. & War. 184, 1 Con. & L. 291 ; Stump v. Gaby, 2 D., M. & G. 
623 ; Greslev v. Mousley, 4 De G. & J. 78. 

(() Ashef V. Whitlock, L. R. 1 Q. B. 1. 

(m) Morris v. Howse, 4 Hare, 599 ; Mackenzie v. Mackenzie, 3 Mac. & G. 659. 

(») 21 L. J., Q. B. 391. 

Ix) Bunter v. Coke, 1 Salk. 237, Holt, 248, nom. Buckingham v. Cook, 3 Bro. P. C. Toml. 
19; Langford v. Pitt, 2 P. W. 629; [Harwood v. Goodright, Cowp. 90.] 

71 



»51 



"WHAT MAY BE DEVISED OE BEQUEATSED. 



Operation of he made his will, and afterwards acquired the legal owner 
equltabieTn- ^"^'P' ^^ equitable interest passed by the wiU, and the sub- 
terests. sequently acquired legal estate descended to the heir, who, 

of course, became a trustee for the deviseej Ifj on the other hand, the 
testator were seised only of the legal estate, at the time of the execu- 
tion of his will, and afterwards acquired the equitable interest (being 
the converse case), as where, being a mortg^ee in fee at the date of the 
wUl, he subsequently purchased the equity of redemption, the devisee 
was a trustee of the legal estate, which he derived through the wiU, 
for the heir-at-law to whom the equitable inheritance descended (3?).' 
Cases of the former description frequently occurred, where a man con- 
tracted to purchase a freehold estate, then dfevised it, and, subsequent^ 
to the execution of his will, took a convej^ance of the property, and then 
died without republishing his will (z). The testator being equitable' 

(y) Strode v. Lady Falkland, 3 Ch. Rep. 187. [In Tardley; v. Holland, L. E. 20 Eq. 428,; 
a mortgagee in fee devised " all hereditameiits whereof he was seised' as mortgagee " (without 
any specific description of the mortgaged estate), and afterwards purchased the equity of 
redemption : this was ademption, and the devise failed both at law and in equity.] 

(z) Greenhilli). Gieenhill, Pre. Ch. 320, [2 Vem. 679, Gilb.Eq. E. 77;] Green v. Smith, 
1 Atk. 572; Gibson v. Lord Montfort, 1 Ves. 494; Capel v. Girdler, 9 Ves. 509 ; Holmes v. 
Barker, 2 Madd. 462. [Same law as to copyholds, Seaman v. Woods, 24 Beav. 372. A valid 
contract will not be premmed to have been entered into before the date of the will for the 
purchase of lands conveyed to the testator immediately after that datfe,' Cathro*r v. Eade, 
4 De G. & S. 527. 



1 See Perry v. Phelips, ITea. Jun. 254, 255 ; 
Milnes v. Slater, 8 Ves. Jr. 295; Broome v. 
Monck, 10 Yes. Jr. 597, 605 ; 4 Kent, 510, 511 ; 
Johnston v. Hunly, 1 Tavlor, 305; George 
V. Green, 13 N. H. 521; Brewster v. McCall, 
15 Conn. 274; Carter ». Thomas, 4 Greenl. 
341; Minuse v. Coxe, 6 Johns. Ch. 441; 
M'Kinnon v. Thompson, 3 Johns. Ch. 307, 
310; Livingston v. Newkirk, 3 Johns. Ch. 
312; Thomson v. Scott, 1 M'Cord, Ch. 32; 
Kemp V. M'Pherson, 7 Harr. & J. 320; 
Carroll v. Carroll, 16 How. 275; Hays v. 
Jackson, 6 Mass. 149; Wait v. Belding, 
24 Pick., 129; Bullard v. Garter, 5 Pick. 114. 
This rule was strictly held in Pennsylvania, 
in the case of Girard v. City of Philadelphia, 
4 Eawle, 323, although the testator declared 
in a codicil that it was his wish a«d intention, 
that all the real estate he should thereafter 
purchase, should pass by the said will. Such 
seems to have been the law of Alabama, 
Meador v. Sorsby, 2 Ala. 712'; 'and of North 
Carolina, Foster v. Craige, 2 Ired, 633 ; Bat- 
tle V. Speight, 9 Ired. 288. The rule of law 
upon this subject has been changed by statute 
in many of the states. Where a testator at the 
time of mating his will, before the Revised 
Statutes of Massachusetts, changing the rule 
in reference to after-acquired land, took ef- 
fect, held land in mortgage, and deviled all 
his real estate, and afterwards foreclosed the 
mortgage, it was decided that such land did 
not pass by the will. Brigham v. Winches- 
ter, 1 Met. 390. See Swift i). Edson; 5 Conn. 
531. So where the mortgagee perfects his 
estate by taking an absolute deed of the 
premises on which he holds the mortgage. 



Bullard v. Carter, 5 Pick. 112; 117, 118. 
These cases proceed on the ground, that to 
give effect to a devise of real estate, the tes- 
tator must be the owner thereof at the time 
of making the devise, as well as at the time 
of his decease; and that it must be the same 
interest at these different periods of time. 
But since the change made'in the law by the 
Revised Statutes of Massachusetts, respect-' 
ing the operation of devises on real estate ac- 
quired after the execution of the will, and in 
all those states where a will may be made to 
operate on after-acquired real estate, a devise 
of the estator's land may be made to operate 
as well on lands acquired by foreclosure of a 
mortgage, or release of an equity, as bv any 
other means. See further as to the general 
rule that after-acquired property will puss 
by the testator's will : Carter v. Thomas, 4 
Greenl. 341; Brewster «. M'Call, 15 Conn. 
274 ; Foster i). Craige, 2 Dev. & B. Eq. 209 ; 
Whittemore v. Bean, 6 N. H. 47 ; Turpin v. 
Turpin, 1 Wash. (Va.) 75; Hver ». Shobe, 2 
Munf. 200. As to personal estate, it is well 
settled that it will pass under general expres- 
sions in the will showing the testator's in- 
tent to bequeath it, although acquired after 
making the will. Loveren v. Lamprey,' 2 
Foster, 434, 442; per Shaw, Ch. J., in Wait 
V. Belding, 24 Pick. 136; Butler v. Baker, 
2 Coke, 68 ; Wyndham V. Chetwynd, 1 Burr. 
429; McNaugfiton v. McNnughton, 41 Barb. 
50; S. C. 34 N. Y. 201; Pruden v. Pruden, 
14 Ohio N. S. 251. And see Fluke v. Fluke, 
1 C. E. Green, 478; Ridgewav v. Under- 
wood, 67 111. 419. The statutes of the states as 
to after-acquired estate will be cited later. 



72 



"WHAT MAY BE DEVISED OR BEQUEATHED. *52 

owner under the contract (a) , Ms interest pas&ed bj' the will to the 
devisee, whose equitable right the'heir was bound to clothe with 
the legal title. In these and many other cases, great * incon- *52 
venience occurred from the incompetency of a testator to dis- 
pose by will of his after-acquired real estate ; and questions jj^j^^.^ ^^ ^^_ 
often arose as to the actual state of the rights and obliga- completed 
tions of the parties under the contract, on which the valid- ™°'™'^'- 
ity of the devise depended (6), and also as to the effect of certain 
modes of conveyance, in producing ; a revocation of the devise of the 
equitable interest. The removal of this incapacitj', therefore, is not 
the least of the advantages conferred by the statute 1 Vict. c. 26, which 
has expressly extended the testamentary power to such real and per- 
sonal estate as the testator may be entitled to at the time of his death, 
notwithstanding he may become entitled to the same subsequently to 
the execution of his will. But it ma}', of course, be necessary, even 
under the new law, to go into the inquiry, whether . the circumstances 
attending a contract for purchase or sale by a deceased person, are such 
as to render the contract obligatory ; for upon this fact would depend 
the question (which has lost none of its importance), whether, as 
between the representatives of the deceased testator or intestate, it is 
to be regarded as real or personal estate ; and this may and often does 
depend on extrinsic circumstances, ascertainable by parol testimony. 
In Lacon v. Mertins (c). Lord Hardwicke decreed a parol contract to 
be carried into execution as' between the real and personal representa- 
tives of the deceased vendor, the purchaser submitting to perform it, 
and acts of part performance, sufficient, to take it out of the Statute of 
Frauds, being proved. In Buckmaster v. Harrop {d), a bill by the pur- 
chaser's heir-at-law for a similar purpose was dismissed by Sir Wm. 
Grant, M. R., on the ground that a binding contract had not been 
proved. 

Where the contract is binding on the purchaser at the time of his 
death, his heir or devisee. is entitled to the benefit of it; in CQnj^act 
other words, is entitled to consider the contract as having binding on 
converted the personal estate, quoad the purchase-money, h"s death, 
into real estate ; although from subsequent events, arising subsequently 

.. /., -,, , rendered in- 

out of the situation of the deceased purchaser s estate, the capable of 
contract should, as against the vendor, be rescinded.^ Thus, <=o»ipietion. 
in Whittaker v. Whittaljer (e), where W., having contracted for the 
purchase of an estate, afterwards by his will devised certain real 

(rt) It was sufficient if the vendor alone was bound by the contract, Morgan v. Holford, 
1 Sm. & Gif. 101, semb.] 

(6) Duclvle V. Baines, 8 Sim. 525. (c) 3 Atk. 1. 

(d) 7 Ves. 341. (e) 4 B. C. C. 30. 

1 But where the owner of real estate died in tlie land as the will or the law would have 

after malting a contract for the sale of it, the given him in the proceeds after payment of 

recission of the contract after his death was the debts of the deceased. Leiper v. Irvine, 

held to be a reconversion of the estate into 26 Penn. St. 54. 
land, each legatee acquiring the same interest 

73 



*53 WHAT MAY BE DEVISED OB BEQUEATHED. 

estates to trustees to certain uses, and then reciting the contract, he 
gave to the trustees all the residue of his property*, upon trust (inter 
alia) to dispose of a sufficient part thereof, and therewith to pay 
*53 * the remainder of the purchase-monej', and complete the con- 
tract, and thereupon take a convej-ance to the uses of the there- 
Effect of un- "^before devised estates. Before the contract was com- 
compieted pleted the testator died, and the executors not being able 
con ract. ^ collect sufficient assets to carry the contract into execu- 
tion within the necessary time, the vendor instituted a suit against 
them , and the contract was eventually cancelled under a decree of the 
court. The devisee then filed a bill to have the amount of the pur- 
chase-money laid out in the purchase of land to be settled to the same 
uses, and Sir E. P. Arden, M. E. , decreed accordingly, being of opin- 
ion that the acts of the executors could not affect the rights of the par- 
ties ; and relying, also, on the general principle, that devisees to whom 
a contracted-for estate is given, are, if the contract i&Wsfrum, any cause, 
entitled to have the money laid out for their benefit, and that the case 
of an heir-at-law was less favored. This doctrine, however, we shall 
presently see, was overruled by Lord Eldon in the case next stated. 

The true principle is, that where the contract is such as could have 
If not bind- been enforced against the purchaser at the time of his de- 
ing on de- cease, the estate, which is the subject-matter of the con- 

risor, devisee ' „ ... , , - , 

cannot insist tract, or, failing that, the purchase-monej', belongs to his 

bei'ng'TOm- ^^^^ *''' ^evisee ; ^ but if, from a defect of title or any other 
pleted. cause, the contract was not obligator}' on the purchaser at 

his death, his heir or devisee is not entitled to say he wiU take the 
estate with its defects, or have the purchase-money laid out in the pur- 
chase of another.^ 

Such is the doctrine of Broome v. Monck (/), where a bill was filed 
by the devisee of a purchaser of a contracted-for estate against the 
vendor and the personal representative of his own devisor, pra3-ing a 
specific performance of the contract, or that the purchase-money might 
be laid out in the purchase of another estate, and it appeared that a 
good title could not be made ; Lord Eldon, after great deliberation, 
dismissed the bill. The contract expressed, in the usual manner, that 

(/) 10 Ves. 597. See also 1 Ves. 218; [O'Shea ». Howley, IJ. & Lat. 398.] 

1 An equitable interest in land, founded benefit of the heir or devisee. Livingston v. 
on articles of agreement for a purchase, will Newkirk, 3 .lohns. Ch. 312. But in order to 
pass to the heir or devisee. Malin v. Malin, entitle the devisee, the agreement to purchase 
1 Wend. 625; Marston ». Fox, 8 Add. & E. must be made before the execution of the 
14, perTindal, C. J. It is well established, will. M'Kinnon v Thompson, 3 Johns. Ch. 
that an estate contracted for will pass under 307. See 2 Story, Eq. Jur. § 790 et seq. 
general words of devise in a will, even 2 x ^f\i\ made in Ohio in 1811, bv one in 
though the agreement to purchase is not to possession of real estate under a verbal con- 
be carried into execution until a future day, tract, and for which he afterwards obtained 
which does not occur until after the time a deed, was held good to pass the legal as 
when the will bears date. Marston v. Fox, well as the equitable title ia Smith v. Jones, 
nbi supra, per Tindal, C. J. And the execu- 4 Ohio, 116. 
tor must pay the purchase-money for the 

74 



"WHAT MAY BE DEVISED OK BEQUEATHED. *55 

the remainder of the purchase-mone}' should be paid upon a good title 
being made, and the codicil directed that the contract should be carried 
into execution ; but the decision was founded on the general principle, 
and not on the particular terms of the contract. In adverting to Whit- 
taker V. Whittaker, which was urged as an authority j,~ , 
for the plaintiff, Lord Eldon observed, * that it was *S4 completed 
very difficult to maintain the doctrine in it, which contract. 
went beyond what was necessary for the decision. The case was no 
more than this : The vendor had a good title. The estate at the death 
of W. in equity belonged to the devisees of his real estate. The ven- 
dor objected he was not to be held to the contract for ever, and the 
embarrassment of W.'s affairs gave him a right to be off. But as to the 
devisees of the land and the legatees of the monej', their interests were 
completelj' fixed at the death of the testator, and the only question was, 
whether the embarrassment of his affairs giving that right to the ven- 
dor, should vary the rights as between them ; and it was quite clear, 
that if the real representative had been an heir instead of a devisee, 
the question would have been just the same. The cases g^ j,j.^_ 
establish, that whatever is the state of liability of the party bility of the 
himself at his death, must be the state of liability to be ^fhi^ de™thl* 
considered upon questions between those representing him governs the 
after his death {g) ; and if at his death he could not be com- tween"those 
pelled to take, clearly the heir could not say to the execu- claiming 
tor, " I will have the estate and j-ou shall pay for it." " I 
have not found an}"^ case that has induced me to suppose that if this 
were between the heir and the personal representative, it would be pos- 
sible for the heir to say, though the title was doubtful, yet being the 
real representative, he. is entitled to take it as it is, though the ancestor 
never meant so to take it, or intimated any purpose of retiring from 
that situation in which he had a right either to insist upon a good title, 
or to refuse the estate ; and though there is no proof that the ancestor 
would have paid for the estate with a bad title, j'et the heir shall insist 
that the personal estate shall pay for it out of the assets. None of the 
cases give any color for that; Green v. Smith (A), indeed, seems to 
state a doctrine quite inconsistent.'' He therefore held that, as no title 
could be made, the devisees were not entitled to take this estate, 'or to 
have another estate bought for them. 

It will be observed, that Lord Eldon adverted to the circumstance 
of the purchasing de\'isor not having himself shown an in- 
tention to take the estate with a bad title. It is conceived ^*^ ^^V^_ 
he alluded to such evidence of intention as would have tention by 
amounted to an acceptance of the title. Nothing accept title 

short of * this, it is presumed, could have any effect ; *55 necessary. 

. Un) See ace. Curre ». Bowyer, 5 Beav. 6, u.; Hudson v. Cook, L. R. 13 Eq. 417; Ingles. 
Richards, 28 Beav. 365: Haynes ». Haynes, 1 Dr. & Sm. 451, 452; Lysaght v. Edwards, 
2 Ch. D. 516.] (A) 1 Atk. 572. 

75 



*56 WHAT \MAy BE DEVISED OE BEQUEATHED. 

for, to admit parol evidence of intention as such: would be liable 
to the objection attaching to the reception of extrinsic evidence in 
aid of, or in oppositioa to, a .written will (j)ij It is true that, under 
the doctrine in question, the devise is, incidentall3- affected by this, evi- 
dence, since, as already observed, the inquiry whether the contract was 
obligatory on the testator at his decease, lets in any evidence which, 
would be admissible, in a suit between the vendor and vendee, of cir- 
cumstances discharging the vendee, as a difference in the, estate from 
that contracted for, not capable of being the subject of compensation, 
or the like. Of course the vendor could not take advantage of, the 
waiver by the heir or devisee of objections toithe title which his ancestor^ 
or devisor might have advanced^ he {i. e. the heir or devisee) haying ia 
that event no interest in the estate. 

In Whittaker I). Whittaker, and Broome v.. Monok, the contract seems 
Question, to have been binding on the vendor, and therefore, those 
cfeasedmir^^' ^^^^^ ^° ^^^ decide what would be the effect, where the de- 
chaser was ceased purchaser was bound at his decease, but the vendoi: 
the vendor "^^^ 'lot, a case which clearly maj' and often dofis arise ; as 
was not., where a written contract has been entered into, which is 
duly signed by one party and not by the other, and the signing party 
dies before there has been any act of part performance, which would, 
render the contract obligatory on the other. It is clear, that in such a 
case, the surviving (k) party may choose or not to enforce the perform- 
ance of the contract against the representatives of the deceased ; should 
he decline, of course the contract is at an end, and the property remains 
unconverted aS' between the real and personal representatives of th& 
deceased party. If, on the other hand, the surviving party choose to 
compel performance, the question arises between the respective repre- 
sentatives of the deceased, whether such conversion has taken place. 
For instance, suppose the deceased party to be the vendor ; if the sur- 
viving party, i.e. the purchaser, should (as he may) call upon the heir 
or devisee of the deceased vendor, to convey to him the property in 
pursuance of his ancestor's or testator's contract — upon the doctrine^ 
in question would depend the destination of the purchase-money, which,' 
if the contract is to be considered as effecting an absolute con- 
*56 version of the property, * would belong to the personal repre- 
sentatives (I) ; if not, to the heir or devisee of the deceased- 
vendor. The writer is not aware of any direct authority on the point ; 
Cases where but, perhaps it would be considered as governed by the cases 
opdon to"''' (which seem to be analogous in principle) , in which, there 
purchase. being in a lease of a freehold estate a clause entitling the 
lessee pending the term to purchase the demised property, and the 

Ui) See Rose v. Cunyngharae, 11 Ves. 550.] 

(k) The fact of survivorship is introduced merely for the convenience of distinction; it 
would, of course, be immaterial whether the .party represented as the survivor were living or 
not. [(0 See post, Chap. VII. s. 3 ad Jin.} 

76 



-WHAT MAY BE DEVISED OB BEQUEATHED. *57 

lessor having died before the option of the lessee has been declared, the 
latter has subsequently elected to purchase the property. Under such 
circumstances, it was held by Lord Eldou, in Townley v. Bedwell (m), 
on the authority of a previous decision of Lord Kenyon (m) (but with- 
out, it should seem, approving the principle) , that the rents, until an 
election to purchase should be made, belonged to the heir or devisee ; 
but that when it was made, the purchase-money went to the personal 
representative of the vendor. 

[There is at least equal reason for holding that conversion has 
taken place in cases where, at the testator's death, the contract, though 
unilateral, is unconditional and complete without a further act by one 
of the parties. But, whether contract or option, the vendor's will may 
show an intention inconsistent with the notion of conversion. In 
KnoUj-s I'. Shepherd (o) (a case of contract), a specific devise to the 
testator's "dear wife" of the estate " which he had lately contracted to 
sell,'' was held not to show such an intention, but to give the wife only _ 
the legal estate, the purchase-money passing by the residuary bequest. 
But in. the case of an optioii, a will made or repubhshed after the date 
of the contract, and specifically devising the property in strict settle- 
ment, has been held to take the case out of the rule in Townley v. Bed- 
well-; and, upon the option being exercised after the testator's death, to 
carrj' the purchase-money to the devisees ( p) . 

By the common law, copyholds could hot be devised 
except * by virtue of a special custom of the manor *57 copyholds. 
of which they were held, nor were they afifected by the 
Statutes of Wills passed in the reign of Hen. 8 [q) . When a copyholder 
wished to devise his copj'hold, it was originally necessary that he should 
make a surrender to the use of his last will ; the estate then passed by 
the surrender and not by the will, which was Only a direction of the 
uses of the surrender (/•) ; the testator till his death, and afterwards his 
heirs, continued to have the legal copyhold interest till the devisee was 
admitted (s) ; and accordingly upon a surrender without admittance by 
way of mortgage, the mortgagor having the whole legal estate, and not 
a mere equity of redemption (which we shall hereafter see was devisable 
without surrender) , must have made a second surrender to the use of 
his will in order to enable him to devise (<) . 

(m) 14 Ves. 591. [See also Collingwood c. Row, 26 L. J. Ch. 649, 3 Jar. N. S. 785.] 

(») Lawes v. Bennet, 1 Cox, 167. [Compare Wright d. Rose, 2 S. & St. 323, which is 
-very similar to cases of option to purchase, and in that view opposed to Townley v. Bedwell. 

(o) 13. kW. 499, cit., affirmed in D. P. Sug. Law of Prop. 223. As to whether a gen- 
eral devise includes an estate which the testator has contracted to sell, see post, Chap. XXI. 
s. 2. 

(p) Dranf!). Vause, 1 Y. & C. C. C. 580; Emuss v. Smith, 2 De G. & S. 722. Neither a 
specific devise executed before (Weeding v. Weeding, 1 J. & H. 42), nor a general devise 
executed after the contract (Goold v. Teague, 5 Jur. N. S. 116), is sufficient for the purpose. 
The rule applies only as between the real and personal representatives of the vendor, and will 
not be extended. See Edwards v. West, 7 Ch. D. 858. 

iq) 1 Watk. Cop. 122, 2.Rol. Rep. 383. (?•) Att.-Gen. o. Vigor, 8 Ves. 286. 

(«) 1 Watk. Gopp. 122; and see Roei;. Jeffereys, 2 Wils. 13. 

It) Doe d. Sheweu v. Wroot, 5 East, 132. 

77 



*68 -WHAT MAY BE DEVISED OR BEQUEATHED. 

The surrender, and not the will, being the operative part, so to speak, 
Will of a of the devise, one joint tenant could, by surrendering to the 
copyholder in ^gg ^f ]j|g ^[u g^jjfj ^jjg^ devising to a stranger, sever the 
joint tenancy ' i i 

a severance, jointure (m) , and, in most manors, also bar his widow of 
Stat 55 Geo ^eebench. By the statute 55 Geo. 3, c. 192, all devises 
3, dispensing thereafter to be made of copyhold lands, though not surren- 
der to'usfeof dered to 'the use of the testator's will, were rendered as valid 
the will. as if a surrender had been, made. This statute merely sup- 
plied the omission of a surrender ; and it was immaterial that a sur- 
render had, in fact, been made" to the use of the will, but that the will 
could not operate upon it, not being properly executed according to the 
Only dis- terms of the surrender since the statute supplied a second sur- 
Emnal Tur^ render {x)'. But this statute supplied formal surrenders only, 
renders. and therefore did not dispense with a particular mode of sur- 
render required by the custom to give validity to a devise by a married 
woman (y) , such surrender being considered as a protection to her. 

It seems the better opinion, that a custom in a manor that the copy- 
Custom not hold tenant shall not devise through the medium of a 
to use'of a"" *^^ * surrender to the use of his will, is bad (z) : at all 
will bad. events, such a custom will not be presumed from the 
fact that no entry is to be found on the court rolls of any such sur- 
render (a) . 

An equitable interest in copyholds under a trust or right of redemption, 
Equitable *"" * contract for purchase, being incapable of surrender, was 
interests in devisable withbut anj' such formality, and it was immaterial 
devLable^ in the last case that a surrender had been made to the use 
without sur- of the purchaser, so long as he had not been admitted (b) ; 
and the right of the equitable owner to devise his interest 
could not be controlled by the custom of the manor (c) . 

Customary freeholds, though not held at the will of the lord, yet 
Customary if alienable by surrender and admittance, were devisable in 
freeholds. ^]^q same manner as copyholds (cf).] 

(u) Co. Litt. 59 b.; Porter v. Porter, Cro Jac. 100; 2 Cox, 156; 2 Ves. 609. In Edwards 
V. Champion (1 De G. & S. 75)j it was held by K. Bruce, V.-C, that a surrender by one 
joint tenant to the use of the will of a stranger whose will did not come into operation until 
after the death of the surrenderor produced a severance; but on appeal (.3 D., M. & G. 202) 
this was doubted by Lord Cranworth, Parke, B., and Cresswell, J., seeing that the right by 
survivorship had actually accrued. 

(x) Doe d. Hickman v. Hickman, 4 B. & Ad. 56. 

(y) Doe V. Bartle, 5 B. & Aid. 492, 1 D. & Ev. 81. 

(z) Warden v. Wardell, 3B. C. C. 117; Pike v. White, ib. 28T; but see 1 Evans' Stat. 
p. 450. 

(a) Doe d. Edmunds v. Llewellin, 2 C. M. & E. 503, 5 Tyr. 899; Doe d. Dand v. Thomp- 
son, 7 Q. B. 897. 

(6) Davies o. Beversham, 2 Freem. 157, 3 Ch. Eep. 76; Car v. Ellison, 3 Atk. 73: King 
V. King, 3 P. W. 3B8; Gibson v. Lord Montfort, 1 Ves. 489; Greenhill «. Greenhill, 2 Verji. 
679 ; Phillips v. Phillips, 1 My. & K. 664; Seaman v. Woods, 24 Beav. 372, where the pur- 
chaser took under a power of sale in a vyill. 

(c) Lewis V. Lane, 2 My. & K. 449. 

(d) Doe V. Huntington, 4 East, 288; Doe d. Cook v. Danvers, 7 East, 299; Doe d. Dand v. 
Thompson, 7 Q. B. 897. These cases appear to overrule Lord Hardwicke's apparent opinion 
to the contrary in Hussey v. Grills, Amb. 299.] 

78 



WHAT MAY BE DEVISED OR BEQUEATHED. *59 

Copyholds, equallj with freeholds, were subject to the rule, which, 
under the old law, restricted a devise to lands of which the As to devises 
testator was seised when he made his will (e) . A devise of "^ "^f^"^ 

1-111^1 acquired 

copyholds, therefore, however comprehensive in its terms, copyholds. 
did not pass an after-acquired copyhold estate (/), except so far as 
such estate might have been brought within its operation by a subse- 
quent surrender to the use of the will (which could not be the case 
where the testator's interest was only equitable) , the surrender being 
construed to« have the effect of extending a general devise of copyholds 
to lands acquired in the interval between the will and the surrender (g) ; 
and it was decided that a surrender to such uses as the testator " shall" 
by will appoint applied to a will antecedently executed, it being con- 
sidered that the surrenderor referred to that wilj which should be in 
existence at his death (A). 

And here it may be observed, that as every copyhold is parcel of the 
manor to which it belongs, a devise of the manor was held After-ac- 
to comprise such copj'holds, though acquired by the quired copy- 

lord after *the making of his will(t). [Freeholds *59 part ofT* "^ 
held of the manor coming to the lord by act or oper- manor. 

ation of law, as bj' escheat or descent, also passed by a previously 
executed devise of the manor ; but not if he acquired them by purchase, 
for when so acquired they do not become parcel of the manor (_;) .] It 
is clear, too, upon a principle somewhat analogous, that if a person 
having a remainder or reversion in fee, expectant on an estate for life, 
devised that remainder or reversion, and then by anj- means acquired, 
and by such acquisition extinguished, the estate for life, the devise car- 
ried the estate thus acquired, the merger of which merelj' had the effect 
of accelerating the ulterior estate (k) . ' 

Under the old law, too, a devisee or surrenderee of copj'holds before 
admittance, was wholly incapable of devising them (l) . The r, • u j 
same doctrine was at one period considered to apply to an visee or sur- 
heir, whose incompetency to devise was supposed to have g^pyhd^sbe- 
been established by Smith v. Triggs (m) ; but which ease, fore admit- 
rightly understood, seems not to have warranted any such """^^ ^°' 
doctrine. It was frequently cited, however, as an authority on this 
point («) , but as such it has been completely overruled by Devise by an 
Right d. Taylor v. Banks (o), the facts of which were as iJ°?.'^^i"'to 
follow: On the 13th of February, 1781, John Taylor was be good. 

(e) Harris v. Cutler, cit. 1 T. R. 438, n. ; Spring v. Biles, ib. 435, n. 
[(/) Phillips V. Phillips, 1 Mv. & K. 664.] 
(«) Hevlin v. Hevlin, Cowp. 1.30; Att.-Gen. v. Vigor, 8 Ves. 287. 

(h) Spring v. Biles, 1 T. E. 435, n., overruling Warde v. Warde, Amb. 299, which is 
contra. (i) Roe d. Hale ». Wegg, 6 T. R. 708. 

[( / ) Delacherois v. Delacherois, 11 H. L. Ca. 62. (k) Buckingham v. Cook, Holt, 253.] 
(J) Wainwright v. Elwell, 1 Mad. 627; [Phillips v. Phillips, 1 Mv. & K. 664; Matthew v. 
Osborne, 17 .Jur. 696.] (m) 1 Str. 487. 

(H) See Sir T. Plumer.'s judgment in Wainwright v. Elwell, 1 Mad. 632 ; and Sir L. Shad- 
well's judgment in Kingi). Turner, 2 Sim. 548, [reversed, 1 My. & K. 456-] 
(0) 3 B. & Ad. 864. 

79 



*60 WHAT. MAT BE DEVISED OE BEQUEATHED. 

admitted tothe copyholds in question, whicJi he afterwards, surrendered 
to the use of his will, and then by. his will devised part to his son 
Samuel (who was his heir-at-law) in fee, and part to his daughter 
Mary, in fee. Mar}' Taj'lor, on the death of the testator, entered, but 
was never admitted ; she died, leaving her brother Samuel her cus- 
tomary heir; Samuel Ta3'lor, who, as heir of his father, was entitled to 
the whole (for the devise to him by the former did not break the 
descent, [and Mary never having, been admitted, he took her share 
also, as heir to his father, and not as heir to her (jb),]) entered,, but 
was never admitted. By his will he devised the copyholds in question 

— the validity of which devise was the point at issue. The court 
*60 * held that the devise was good, relying much on the doctrine iu 

Coke's Copyholder, s. 4i , that the heir is tenant immediately 
after the death of his ancestor, and may, before admittance, surrender 
into the hands of the lord; and also on Brown's case (9), Brown r. 
Dyer (r), Morse v. Faulkner («), Doe n. Tofield (<)^ Wilsop w. Wed-, 
dell (11) , which severally support the same doctrine, and were considered 
by Lord Tenterdea and the rest of the. court to outweigh the recent 
dicta to the contrary, which were all, founded on a mistalsen yie\y 
of Smith V. Triggs. The point was again agitated, and received a 
similar determination in [King v. Turner (a:)] and Doe d. Perry v. 
Wilson {y). 

The actl Vict. c. 26, s. 3, has precluded any question of this nature 
J, . , in regard to wills which are subject to. its operation, by exr 
unadmitted pressly affirming the testamentary power of an unadmitted 
suSendeKie ^"^^ '■ indeed it goes much further, by extending the devis- 
.nndfir Wills ing power to an unadmitted devisee or surrenderee. [It 
'^ ■ repeals the 55 Geo. 3, c. 192, which only supplied a sur- 

render, and makes the will itself, without any surrender, confer a right 
to admittance («), notwithstanding that the testator has not surrendered 
to the use of his will, or notwithstanding that the copj'holds, in conse- 
quence of the want of a custom to devise or surrender to the use of a 
will or otherwise, or in consequence of there being a custom that a will 
or 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 the will previously to the passing of the act. Thus all questions 
arising under the former act respecting the validity of a devise, in con- 
sequence of the power to, devise being still left dependent on the power 
to surrender to the use of the will (though the surrender itself was not 

[{/)) Smith' ». TriRgs, ] Str. 487, and observations of Lord Tenterden in Eight v. Banks, 
p. 670. It is material to notice this point, as otherwise the case would be an authority, that 
the heir of an unadmitted devisee could devise, though the devisee herself could not.] 

(?) 4 Rep. 22 b. (r) 11 Mod. 7-3. 

(s) 1 Anst. 13. (t) 11 Eiist, 251. 

(M) Telv. 144. [(a;) 1 Mv. & K. 456,] 

(j/) 5 Ad. & Ell. 321/; [and see Doe d. Winder v. Lawes, 7 Ad. & Ell. 195. 

(z) This view was adopted by the court in Garland v. Mead, L. R. 6 Q. B 441. Admit- 
tance is still necessary to vest the estate. 

80 



WHAT MAY BE DEVISED OB BEQUEATHED. *61 

required) are now set at rest. But in Lacey v. Hill (a), it Laceyo.HUl. 
was held that the new act does not merely dispense with the Ji^^j!J^,ui^^3 
surrender and the custom, but gives the devise the same bars free- 
effect as if there actually had been both ; and that conse- '^^'^''• 
quently a * general devise of the testator's "real estate," with- *61 
out more, bars his widow of her freebeneh. Reading the act, 
Sir G. Jessel, M. R., said, " That means that a testator is to liave the 
same power of devising copyhold estate, as if he had done all the things 
there mentioned ; as if there had been a surrender, or as if there had. 
been a custom, and so forth. It breaks in upon the customary law of 
copyholds for the purpose of giving an unlimited power of devise. I 
am of opiniisn that the same effect is to be given to a devise of copyholds 
under the new law, as under the law as it stood before the Wills Act, 
and consequently the widow is not entitled to freebeneh." It is to be 
presumed that in this ease the custom gave freebeneh of lands of which 
the copyholder was seised at his death, and not, as is the eustorh in 
some manors (J) , of those of which he was seised at any time during 
the coverture ; since, in the latter case, notwithstanding a custom to 
surrender to the use of the will, neither a devise nor an actual sur- 
render by the husband would under the previous law have barred the 
freebeneh.] 

Copyholders also participate in the benefit of the enactments which 
extend the devising power to after-acquired real estate, and o£her inter- 
ests not before devisable, and are, on the other hand, bound by those 
which (as we shall see) regulate the ceremonial of execution. Copy- 
holds are also, in common with freeholds, subject to the several clauses 
by which the legislature has propounded certain new canons or rules 
of construction, which in general appear to be of a nature to admit of 
application to copyhold estates (e). 

Bequests of chattel interests in land are governed by principles wholly 
different from those which regulate devises of freehold estates: ^ . , 
they do not, like the latter, pass directly to the legatee, as chattel inter- 
the alienee of the testator, but, forming part of his personal ®*'* '° '*'"^' 
estate, they devolve to the executor or other general personal repre- 
sentative, who is bound, in subordination to the paramount claims of 
creditors, to give effect to any bequest in the wUl, specific or residuary, 
comprising the property in question ; and, liierefore, even under the 
old law, it was quite unnecessary, as regarded the testator's competency 
of disposition, to go into the inquiry, whether he was, at the time of 

(a) L. R. 19 Eq. 346. The contrary must have been assumed in Thompson v. Hurra, 
L. R. 16 Eq. 592. It was needless there to argue that the widow must elect between her 
freebeneh and the benefits given her by the will if the freebeneh was defeated by the devise. 
It need scarcely be observed that a. devise by one joint tenant will not work a severance, since 
the power of devising under the act is givenonly where the property if not devised would go 
to the customarv heir. 

(6) Riddell v. Jenner, 10 Bing. 29 (Manor of Cheltenham). 

(c) The form of admittance of a devisee of copyholds is now somewhat simplified by stat, 
'4 & 5 Vict.' c. 35, ss. 88, 89, 90.] . ^ . ; . .; 

VOL. I. 6 31 



^62 -WHAT MAY BE DEVISED OE BEQUEATHED. 

making the will, possessed of a term of years which formed part of his 

property at his decease, (d) ; such an inquiry being no less irrele- 

*62 vaut * in the case of a hequest of leaseholds held by a chattel 

lease, than in that of a horse or a watch, or any other personal 

chattel; 

Freeholds pur autre vie * require a distinct consideration in connection 
Freeholds with the testamentary power. This species of estate stands 
pur autre vie. distinguished from all other interests, freehold or chattel^ 
,by this peculiar quality, that it is capable of being rendered transmissi- 
ble to either real or personal representatives, according to the terms of 
the instrument creating the estate, or rather the instrument vesting it 
in the deceased owner, or in the person, under whom he derived his 
title by act of law : for it seems now to be admitted that the devolution 
of the estate is regulated by the words of limitation contained in the 
last conveyance, without regard to the mode of its original creation. 
Estates pur autre vie are devisable by the express terms of the Statute 
of Frauds, 29 Car. 2, c. 3 (s. 12), the act of Henry 8 being (accord-- 
ing to the prevalent and probably the better opinion) confined to 
estates of inheritance in fee-simple (^ . 

■ Though the Statute of Frauds required three witnesses to the devise 
Devolution of ^^ ^" estate pur autre vie, yet where the property devolved 
estates (mr otherwise than to the heirs of the owner («. e. where it was 
limited either to his executors or administrators, or to the 
last taker indefinitely, without any express mention of either class of 
representatives), it was distributable as part of his personal estate, 
Whether he died testate or intestate ; and by a necessary consequence 
of this principle, an executor taking it as such was bound to give effect 
to any bequest or direction in the will affecting such propertj', though 
the will might not have been attested in the manner required by the 
statute iri question (/). By the 1 Vict. c. 26, s. 3, [the previous 
enactments respecting estates pur autre vie were repealed, and] the tes-" 
tamentary power is expressly extended to such estates, whether there 
^hall 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 other tenure, and whether the same shall be a cor-: 
poreal or an incoi'poreal hereditament ; [and by sect. 6 it is enacted, 
that if no disposition shall be made of any esttite pur autre vie of a free- 
hold nature, it shall be assets in the hands of the heir, and that in case 

(d) See Wind K.'jekyl, 1 P. W. 575; see also James ». Dean, 11 Ves. 388. 

(e) Anon., Cart. 211. 

, (/) Eipley D. Waterworth, 7 Ves. 425; [in connection with wliich case, see Bearpark v. 
Hutchinson, 7 Bing. 178, 4 M. & Pay. 848, as to rents ^mt- autre vie. 

1 See Ripley v. Waterworth, 7 Ves. (Sum- any estate pur autre vie shall be devisaWe 

ner's ed;) 425, 453, Hovenden'.s note (4); by will executed aa in other cases ; St. 1876, 

Watkins «!. Lee, 6 Ves. (Sumner's ed.) 63.3, Vol. 2, ch. 3, p. 571. In New Jersey, express 

644, Hovenden's note (3); Oldham v. Pick- provision is mad,e by statute for' deviling 

eving,.Carth. 376i'Avlett v. Aylett, 1 Wash, estates pur autre vie. Revision, 1709-ia77, 

300 i 1 Hoff. Ch. R. 204, 225. In Indiana, Vol. 2, p. 1243. 

82 



"WHAT MAY BE DEVISED OE BEQUEATHED. '^fil 

there shall he no special occupant of a.ny estate pvr autre vie, 
whether freeliold or * customary freehold, tenant-right, custom- *63 
ary, or copyhold, or of any other tenure, and whether a corpo- 
real or incorporeal hereditament, it shall go to the executor or adminis- 
trator of the party that had the estate thereof by virtue of the grant ■; 
and if the same shall come to the executor or administrator, either' by 
reason of a special occupancy or by virtue of the act, it shall be assets 
in his hands, and shall go and be applied and distributed in -the' same 
manner as the personal estate of the testator or intestate. So that 
where a bastard having the trust of an estate pur autre vie limited to 
hini and his heirs, dies without heir, there- being thus nb special oeeu- 
pant, the property goes, in case of intestacy to the administrator in 
trust for the crown (g) : or if there be a will appointing an executor 
but not disposing of the lease, the executor will hold for his own bene- 
fit, unless the will be such as before the act 1 WiU. 4, c. 40, s. 2, con- 
stituted him a trustee (/*)•] 

A question often agitated, but never entirely settled, in regard to the 
devising power over estates of this description, was whether Devise by 
where they were limited to the tenant pur autre vie, and the ?««! tenant 
heirs of his body, they could be devised without some act on estates pur 
his part to bar the entail. It was admitted on all hands that ''"'''^ "'*■ 
if the propertj' were undisposed of, it would devolve to the heir special 
per formam doni ; it was equally clear that an alienation hy deed, [if 
made by the quasi tenant in tail in possession (»'),] was an effectual bar 
to the entail ; but the doubt was, whether the estate was devisable by 
will alone, without any such previous alienation.- The authorities on 
the point are few and contradictory. In Doe v. Luxton(i), Lord 
Kenyon inclined to think that the devise was good ; but his Lordship's 
dictum stands opposed to that of Lord Redesdale, in Campbell v. 
Sandys (/) ; and to [the opinion of the court of B. R. in Ireland, in 
Hopkins v. Ramage (m), who thought that a quasi tenant in tail 
could not * hf will exclude the title of the issue or remainder- *64 
men, j and such was evidently the impression of Sir T. Plumer 
in Blake v. Luxton (w) [and of Sir E. Sugden in Allen v. Allen (o).j 
The statute 1 Vict, does not in terms dispose of this debatable point, 
but has, it should seem, done so in effect, by the language of the general 
enabling clause, sect. 3, which extends the devising power to "all real 



(ff) Reynolds v. Wright, 25 Beav. 100. 2 D., F. & J. 590. 

(h) Powell V. Merritt, 1 Sm. & Gif. 381.; Cradock ». Owen, 2 ib. 241. 

(i) ii made by tenant in tail in remainder, it must b^ with the concurrence of the owner of 
the previous estate in possession (Slade v. Patfison, 5 L. .J. (N. S.) Ch. 51; 'Allen v. Allen, 
2 D. & War. SOT, 332 ; Edwards V. Champion, 3 D., M. & G. 202), and could never, there- 
fore, be made by will.] 

(ft) 6 T. R. 293. (I) 1 Schef. & Lef. 294. 

[(m) Batty, 365. The decision of Lord Manners in Dillon v. Dillon, 1 Ba. & Be. 77, does 
not touch the question, for the quasi tenant in tail died without issue, and therefore, at her 
death, there was nothing for the will to operate upon, and the learned Judge expressly 
rested his decision on this fact. In Hopkins v. Ramage, the circumstances were precisely 
similar, but the opinion of the court was expressed in general terms.] 

(«) Coop. 185. [(0) 2 D. & War. 307, 326.] 

83 



^64 WHAT MAT BE DEVISEB OB BEQUEATHEp. 

estate and all personal estate which he (the testator) shall he entitled 
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, 
or upon his executor or administrator." 

1 The terms of this enactment evidently restrict it to cases in which 
property, in the absence of disposition, would devolve to the general 
real or personal representatives of the testator, as distinguished from 
the case now under consideration, in which the devolution would be to 
the heir special^ 

1 Ajs to language which will pass after-acquired estate, see Kimball v. Ellison, 128 Mass. 41. 

84 



WHO MAY BE DEVISEES OK LEGATEES. 



»65 



* CHAPTER V. 



*65 



"WHO MAT BE DEVISEES OR LEGATEES Qo). 



The statute of 34 Hen. 8, c. 5, expressly excepted out of its enabling 
clause devises to bodies politic and corporate ; and, accord- _ 
ingly, it was held, that a devise to a corporation, whether can take by 
aggregate or sole, either for its own benefit or as trustee, cannot hold 
was void ; and the lands so devised descended to the heir, without 
either beneficially or charged with the trust, as the ease "',^°"'- 
might be.'' The statute 1 Vict. c. 26, contains no such prohibition, the 
legislature having contented itseK with regulating and defining the 
powers and capabities of testators, without in any manner interfering 

[(n) See also Chap. III. on the personal disabilities of testators. 



1 The New York Revised Statutes have 
turned the simple exception in the English 
statute, and in the former statute of New 
York, into an express prohibition by declar- 
ing that no devise to a corporation shall be 
valid unless the corporation be expressly 
authorized to take by devise. 4 Kent, 507 ; 
Wright V. Meth. Epis. Church, 1 Hoff. Ch. 
225 ; Andrew v. New York Bible Society, 4 
Sandf. 156. The same construction prevailed 
as to the pre-existing statutes. Jackson v. 
Hammond, 2 Gaines's Cas. in Error, 3-37; 
M'Cartee v. Orphans' Asylum, 9 Cow. 437. 
Indeed, where a legacy was given to a cor- 
poration, in New Vork, in trust, for an au- 
thorized pious use, and also for a use foreign 
and extrinsic to those which the corporation 
could execute by law, the trust, being entire 
and indivisible, was held void. Andrew v. 
New York Bible Soc.„ 4 Sandf. 156. Corpo- 
rations are not excepted out of the Statute 
of Wilis in Massachusetts, or prohibited from 
taking land by devise. Tlie same is also the 
case in many other states. The common- 
law right of taking personal propertiy by be- 
quest, has, it seems, always been enjoyed by 
corporations equally with individuals. Phil- 
lips'. Academy ». King, 12 Mass. 546; In re 
Jlowe, 1 Paige, 314; M'Cartee v. Orphans' 
Asylum, 9 Cowen, 437; Bnrr v. Smith, 7 
Vt. 241; Burbank V. Whitney, 24 Pick. 
151; Gibson v. M'Call, 1 Richardson, 174. 
•The word "person" in the provision of the 
Statute of Wills of New York (2 B. S. 57, 
§ 3) does not include a state or a nation ; and a 
devise of lands to the United States is there- 
fore void. Fox's Will, 52 N. Y. 530. Where 
an act of afsembly, incorporating the trustees 
of a college, provided that their property 



should not exceed a certain amount, in a suit 
brought for a legacy so large that the whole 
being added to the ftind then held, the limited 
amount would be exceeded, the court held 
that only so much as would raise the amount 
to the sum limited in the charter could be 
recovered, and that the overplus of the per- 
sonalty vested, at the testator's death, in the 
next of kin. Davidson College v. Chambers^- 
3 Jones, Eq. 253. When the terms of the 
charter of a corporation, created by the legis- 
lation of another state, are sufficiently broad 
to confer upoti it a capacity to take and hold 
real estate by devise, although not expressly, 
authorize^ so to take, a provision of the 
Statute of Wills of that state that "no devise 
of real estate to a corporation shall be valid, 
unless such corporation is expressly author- 
ized by its charter, or by statute, to take by 
devise," is operative only to the extent of dis- 
abling the corporation to, take by devise real 
estate situate in that state, and does not affect 
its power to take by devise real estate in Ohio. 
American Bible Society v. Marshall, 15 Ohio 
St. 5-37. See White v. Howard, 46 N. Y. 
144; Fox's Will, 52 N. Y. 530; Vansant u. 
Roberts, 3 Md. 119. A bequest ia good to a 
domestic or to a foreign corporation in Massa- 
chusetts. Burbank «. Whitnev, 24 Pii'k. 
151. See Sutton v. Cole, 3 Pick." 232; Clapp 
V. Stoughton, 10 Pick. 463; Washburn A 
Sewall, 9 Met. 280; Bartlett v. Nye, 4 Met. 
378. Eleemosynary corporations' of other 
states may take" land in Pennsylvania by de- 
vise, although prevented _by the Statutes of 
Wills of the states where they are incorporated 
from so taking lands in those states. Thomp- 
son V. Swoope, 24 Penn. St. 474. As to gifts 
tu unincorporated societies, see Chap. IX. ' : 



85 



*G6 WHO MAT BE DEVISEES OK LEGATEES. 

with, or attempting to define, the capacities of persons to take under 
testamentary dispositions, which it has left to be ascertained and deter- 
mined by the application of the general principles of law. [Now, 
according to those principles, corporations have capacity to take lands, 
though, without a sufficient license in that behalf, they cannot retain 
thepi(4). Their incapacity to toie land by .devise was a consequence 
of the exception in the statute of Henry ; and since the act 1 Vict. 
c. 26, has repealed that statute without reviving the prohibitioq, they 
are now as Capable of taking by devise as natural persons.' But, as in 
cases of acquisition by other means, a proper license is needed to enable 
them to liold.] The disability of corporations to hold real property was 
created by various statutes (c) before 34 Hen. 8, which appear to have 
been founded on the principle, that, by allowing lands to become vested 
in objects endued with pe;-petuity of duration, the lords were deprived 
of escheats, and other feudal profits. Hence, the necessity of obtaining 
the king's license,' he being the ultimate lord of every fee in the king- 
dom ; but this license only remitted his own rights, and did not 
*66 * prevent the right of forfeiture accruing to intermediate lords. 
Doubts having arisen, however, at the Eevolution, how far such 
license was valid (rf)., as being an exercise of the dispensing power 
formerly claimed by the crown (but which, it is pretty evident, it was 
iiot, but merely a waiver of its own right of forfeiture), the statute 
7 & 8 Will. 3, c. 37, was passed, which provides that the crown for the 
future, at its own discretion, may grant licenses to alien or take in 
mortmain, of whomsoever the tenements shall be holden. At this day, 
therefore, the license from the crown protects against forfeiture to any 
intermediate lord. 

But where [before 1 Vict. c. 26] real estate was devised upon trust 
Devises to *" ^ corporation not empowered to take lands [by devise, 
corporations although] the devise was, of course, void at law [under the 
in trust. statute of Henry, j'et] the estate descended to the heir 
chiirged with the trust (supposing that it was not illegal, under stat. 
i9 Geo. 2, c. 36, as being in favor of charitj'), in the same manner as 
where a devise to a trustee fails by the death of the devisee in trust in 
the testator's lifetime (e). [And since the stat. 1 Vict. c. 26, the trust 
would equally be upheld ; the only difference being that the corporation 
trustee is now capable (unless incapacitated by the stat. 9 Geo. 2) of 
taking by devise, though not, without licensej of holding.] 

(5) Co. Litt. 2 b. See the stat. de Religiosis and otlier acts cited in the margin there.] 

(c) Magna Charta, c. 36 ; 9 Hen. 3, c. 36; 7 Edw. 1, c. 1; [13 Edw. 1, c. 32, &c. 33:1 34 
Edw. 1, St. 3; 18 Edw. 3, st. 3, c. 3; 15 Rich. 2, c. 5; 23 Hen. 8, c. 10. 

(tf) 2 Hawlc. P. C. 391, [Co. Litt. 99 a, n. (1), by Butler.] 

(e) Sonley w. Cloclimakers' Company, 1 B. C. C. 81; [Incorporated Society ti. Richards, 
1 D. & War. 258 (where the lands being in Ireland, the charitable trust was valid). The 
statute 43 Eliz. c. 4, did not, as sometimes supposed, render devises to charitable corporations 
valid at law. In Flood's case (Hob. 136, 1 Eq. Ca. Ab. 96, pi. 6), it was expressly "agreed 
that the devise was void in law," though the charitable use was upheld in equity. Benet 
iCoUege 17. Bishop of London,- 2 W. Bl. 1182, holding such a devise good at law, " rests on no 
solid foundation; " see per Lord St. Leonards, 1 D. & War. 305.] 

86 



"WHO MAY BE DEVISEES OB LEGATEES. *67 

It should be observed, however, that devises to some corporations 
are authorized by act of parliament. For instance, the stat. 43 Geo. 3, 
c. 107, enables persons to devise lands to- the Governors of Queen 
Anne's Bounty, and the stat. 43 Geo. 3, c. 108, authorizes, under certain 
limitations, the devise to any persons or bodies politic or corporate of 
land not exceeding Ave acres, for the erection, repaii;, purchase, or pro- 
viding of churches or chapels, where the Liturgy of the United Clmrch 
of England and Ireland shall be used, or of the mansion-house for the 
residence of the minister, or of any out-buildings, offices, churchj'ard, 
or glebe for the same respectivelj*. And similar enactments have 
been made in favor of many other charity * corporations (/). *67 
And although generally devises for charitable uses are forbidden 
by the act of 9 Geo. 2, c. 36, yet the 4th section of that statute, which 
excepts out of its operation gifts to the Colleges in the two English 
Universities, and the Colleges of Eton, Winchester, and Westminster, 
[leaves devises to those corporations to be dealt with by the general 
law as settled b}' the stat. 1 Vict. 

The incapacitj' of alienage has been removed, as we have already 
seen, bj' the Naturalization Act, 1870 (jr). But the act not Devises to 
being retrospective, and giving no protection to rights ac- aliens. 
quired by an alien before it was passed (A) , it is still necessary to con- 
sider the old law. J Alienage could not, strictly speaking, be ranked 
among the incapacities to take real estate by devise, as the property 
remained in the alien till office found, when it devolved to the crown (i). 
On this principle, where lands were devised to an alien and another 
concurrently as joint tenants, the en-tirety did not vest in the latter (as 
would have been the effect if the devise to the alien had been absolutely 
void) , but in both jointly ; and if the crown did not during the joint 
lives seize the alien's undivided moiety (as it might do after office 
found if) ), then, on the decease of the alien, leaving his co-devisee 
surviving, such moietj' devolved to the latter by virtue of the jus accre- 
srendi, which is incidental to every joint tenancy, subject, of course, 
to the crown's right of seizure, after office : which would, by relation, 
have overreached the title of the surviving joint tenant to the alien's 
moiety (k). If, however, the alien survived his co-devisee, he did not, 
in the opinion of some persons, thereb}' become entitled to the entiret}', 
he being disabled from acquiring a title by operation of law, even for 
the benefit of the crown, on the principle that the law, by its own act, 
never gave an estate to one whom it did not permit to retain it {1} ; but 
though the principle is unquestionable, perhaps this application of it 

(f) Vide Cliurcli BuildlnR Act, 9 Geo. i, c. 42, and otiifir statutes stated post, Cliap. IX, 
ana in Shelford on Charitable Uses. 

Ui/) 33 Vict. c. U, 8. 2, stated ante, p. 41. 

(A') Sharp V. St. Sauveur, L. R., 7 Ch. 351.] 

(s) Duplessis v. Att.-Gen., 1 B. P. C, Toinl. 415. 

0') King V. Boys, Dy. 283 b. 

(e> Forset's case, cit. 1 Leon. 47, 4 I^on. 82. 

(/) See Collingwood v. Pace, 1 Vent. 417; [Bridg. by Ban. 414. 

■ ■ ■■ ■ 'S? 



*68 WHO MAY BE DBVTSEES OE LEGATEES. 

may fee fairly excepted to, aig the survivor seems to have been in by the 
original gift.* 

[Where a trast in lands for' life or any greater estate was created 
A trust of i"^ favor of an alien by will or otherwise, it wa^ 

freehoM or *QS * doubted whether as " the Chancery could not com- 
lanlade- pcl One to execute a trust for an alien" (m), the 

ciaied in crowH could get the benefit of it. The doubt, however, had 

1H.V01* Or nn 

arienwentto. HO better foundation with regard to a trust estate than with 
the crown ; yggard to a legal estate ; for an alien could never sue in a 
real or mixed action (n), and could never, therefore, recover the pos- 
session of land which he had purchased. Yet, as the estate was cer^ 
tainly in him, it was never doubted that the crown, on office found, 
might seize this legal estate (o) . And where a trust declared in favor 
of an outlaw or person attainted was forfeited ; although he could not 
sue for it, yet the crown, claiming through him, could. Accordingly 
the question was finally decided in favor of the crown ( p) . The crown 
took, not for any reason arising out of the doctrine of tenures (y), but 

(m) Per Rolle, J., Rex. v. Holland, Sty. 20. But see per Hatherlev, C., L. E. 7 Ch. 354. ■ 

(») Co. Litt. 129 b. (0) Ante, p. 67. 

(/>) Barrow ». Wadkin, 24 BeaV. 1; Sharp v. S£. Sauveur, L. K., 7 Ch. 343: overruling 
Eittson I). Stordy, 3 Sm. & Gi£. 230. 

(?) Escheat or forfeiture. Forfeiture there was not : and the crown cannot take the trust 
of realty bv escheat. Burgess «. Wheate, 1 Ed. 177; 1 W. Bl. 123; Davall v. New Rivet 
Company, '3 De G. & S. 394; Beale v. Symonds, 16 Beav. 406. In Co. Litt. 191 a, n. vi, 11, 
Mr. Butler suggests that a better ground in favor of the claim of the crown might, perhaps, 
have been found by resorting to its acknowledged prerogative of being entitled to the btmti 
vacantia, or every species of property of which no owner is discoverable: but the suggestion 
was never acted upon. As to Lord Loughborough's often-cited dictum, that "the crowii 
comes under no head of equity," Walker ». Dernie, 2 Ves. Jr., 179, see per Romilly, M. K., 
in Barrow v. Wadlcin. The dictum appears to be warranted when used with reference to a 
fipuat for conversion in a case where there is a total failure of the objects of the trust. " Thuff; 
in Walker v. Denne, the crown was held not entitled to enforce iigainst the next of kin a ti'u^t 
for laying out money in land where there was a total failure of ctstuu que. irustent, and the 
only result would be to enable the crown to claim by escheat: and in Taylor 1). Hayaarth, 14 
Sim. 8, where real and personal estate was devised to trustees on trust for sale, and the sur- 
plus proceeds were left undisposed of, artd all legacies and annuities had been satisfied out of 
the personalty, Sir L. Shadwell. V.-C., held, on a failure of heirs and next of kin, that the 
trustee was entitled for his own benetlt, and that the crown was not entitled to a decree fnr 
sale merel3' that it might take the produce as bona micantia. But it does not follow "because 
the crown could not enforce the execution of a trust to sell in favor of a non-exiating person, 
that therefore the crown could have no benefit of a trust for an existing person, the beneficfal 
interest in which had thi-ough that person become vested' in the crown; " per M. R. 24 BeaV. 
17. In Henchman 11. Att.-Gen., 3 My. & K. 483, the claim of the Grown to a sum of money 
provided by the will to be paid by the devisee of lands to a charity, and assumed to be an 
exception from the devise (see post, Ch. XL), was negatived, and the money held to sink for 
the benefit of the devisee. The diffietence between this case and that of the ijlien is, that in 
the latter there is a person who can take though he cannot hold ; in the former the object can- 
not take. 

1 Art alien may take lands by grant. Orr Munro v. Merchant, 28 N. Y. 9 ; O vering' v. 

e. Hodgson, 4 Wheat. 553; Jackson ». Beach, Russell, 32 Barb. -263; People v. Conklin, 

1 Johns. Cas. 399; Jackson v. Lunn, 3 Johns. 2 Hill, 67; Ifoss v. Crisp, 20 Pick. 121; Wil- 

Gas. 109;, Dudley v. Grayson, 6 T. B. Monr. bur «.. Tobev, 16 Pick. 179; Crosse ». De 

260;Marshatt».Conrad, 5 Call, 364; Trustees yalle, t Wa]l. 1,13; Taylor r. Benhara, 5 

1). Gray, 1 Litt. 149. And he may take by de- How. 233; Stephen c. Swanrt, 9 Leigh, 40i; 

vise as well as by grant, ib. : Fox v. Southack, Smith v. Zaner, 4 Ala. 99. But an alien can- 

12 Mass. 143; liooers v. White, 6 Johns. Ch. not at common law hold against the state. 

360; Fairfax v. Hunter, 7 Crunch, 603; Vaux He therefore takes under a devise a defeasi- 

1). Nesbit, 1 M'Cord, Ch. 3.52; Marshall i'. ble estate, good against all except the state. 

Conrad, 6 Call, 364; Mick v.. Mick, 10 Wend. Wilbur 0. Tobey, sup1-a; Frtss ». Crisp, su- 

379 i Wadsworth v. WadsWorth, 2 Kern. 376 ; pra ; Wadsworth ». Wadsworth, supra. See 



"WHO MAY BE DEVISEES OE LEGATEES. *69 

by its prerogative an grounds of public policy (r), a title _ 
which extended, a fortiori^ to the trust of chattel trust of chat- 

interests in land (s), except such as an * alien might *6& '®'' ''^'' 
himself hold (<). But} the proceeds of real estate, — butnotthe 

which was impressed with a trust for conversion, could be S S'tate^ 
given to an aUen, [and the crown had no claim,] this not directed to 
being a trust conferring on the alien an interest in land, but 
merely a right to have the land converted into money ; and the policy 
of the law in regard to mortmain (which had been much pressed im 
argument as analogous in principle) depending upon considerations 
entirely different (w). " It was argued," said Lord Cottenham, " that 
the legatees might elect to take the estate in land ; but they have not 
done so ; and what the Attorney-General claims is money and not land. 
The incapacity to hold land is founded upon reasons not applicable to 
money. The testatrix has given to her legatees no option to take the 
land ; and if she had, or if the law had given the option, it would be no 
reason why the legatee should forfeit money which he can enjoy, be- 
cause, instead thereof, he might have elected to take land which he 
cannot enjoy." 

The disabilities of alienage might be removed partially by a grant 
of letters of denization from the crown, or wholly by an act -^^^^^Xviar- 
of parliament investing the alien with the rights and privi- tionand 
leges of a British subject. [Such acts, in favor of the par- ^^'^atio"" 
ticular individual, were superseded bj" the act 7 & 8 Vict. c. 66 (now 
repealed) which (sect. 6) empowered the Secretary of State to grant 
certificates of natui'alization, having the same effect as the ordinary 
acts of naturalization; and enacted (sect. 5), that every alien friend 
might, by grants lease, assignment, beqttest, representation, or otherwise ^ 
take and hold any lands or tenements for the purpose of residence, 
occupation, or trade, for any term not exceeding twenty-one years, as it 
he were a natural-born subject.] '• 

(r) Co. Litt. 2 b. 

fir) See Middlefon ». Spieer, 1 B. C. C. 201; Tavfor ». Havgarth, 14 Sim. 8; Cradock v. 
Owen, 2 Sm. & Giff. 211; Powell v. Merrltt, 1 Sm. & Giff." 381: Reynolds v. Wright, 25 
Beav. 100, 2 D., F. & J. 590; Read v. Stedman, 26 Beav. 495. These cases relate to a total 
failure of next of kin; and if they differ in principle from the point noticed in the text> 
go rather beyond what is needed to establish that point. 

(<) Co. Litt. 2 b, and infra.J 

(a) Dn Hourmelin «. Sheldon, 1 Beav. 79, [4 My. & Cr. 525; and see Master v. De Crois- 
mar, 11 Beav. 184.] 

1 Kent, Com. 54, 70. In Kentucky, an alien An alien may also take and hold a Icg- 

who has resided in the state two years may acy of personal estate for hia own benefit, 

take land by purchase or descent. Trustees Craig v. Leslie, 3 Wheat. 563 ; Common- 

V. Gray, 1 Litt. 149. See Beard v. Rowan, wealth v. Martin, 5 Munf. IIT; Polk v. Ralsr 

1 McLean, 135. And until the land is seised ton, 2 Humph. 537. 

by the state, the alien has complete dominion i Where an alien having acquired lands 

oi-er it, and may convey it to a purchaser, or By purchase is afterwards naturaKzed before 

maintain an action to recover it. M'Creery office found, his title, it seems, becomes 

V. Allender, 4 Har. & M. 409; Bradstreet thereby confirmed, so that he may hold even 

V. Supervisors, &c;, 33 Wend. 546; Scanlan against the state in New York. People v. 

V. WriMit, 13 Pick. 523; People ». Conklin, Conklin, 2 Hill, 67; Jackson ». Beach, 1 

2 Hill, 67; Foss v. Crisp, 20 Pick. 121. Johns. Caa 399. It is otherwise where the 

89 



"TO 



WHO MAY BE DEVISEES OR LEGATEES". 



An act of naturalization was alwaj's so framed as not to render valid 
—were not antecedent convej'ances of the alien, the terms of the enact- 
retrospective, ment being, that he shaU he and is henceforth naturalized, 
— biitdeni- ^^- i^) ' [.^"^^ the act 7 & 8 Vict, is in equivalent terms, 
zation was. Eut] letters of denization expressly authorize the denizen to 
hold lands theretofore granted (y) , and he may even hold such 
*70 * as devolve to him by act of law, except, of course, that [for- 
merly he could] not claim by descent from or through his father, 
if an alien (z) . 

Another disqualification, which the policy of the law, in its whole- 
As to devises some anxiety to remove temptations to perjurj', has created, 
to attef^ng^ arises from the fact of the devisee or legatee being made an 
witnesses. attesting witness of the will.* It is obvious that nothing 
could be more dangerous than to allow a will to be supported by the 
testimony of persons who are beneficially interested in its contents. 
When, therefore, the Statute of Frauds required to the validity of a 
devise of land, that it should be attested bj' credible witnesses, persons 
having a beneficial interest under the will were held not to sustain this 
character ; and, accordingly, a will of freehold estate attested by such 
persons was invalid ; and that, too, riot only as to the part which created 
Period of the interest of the attesting witness, but in regard to the 
credibility, •^(rhole. In applying this principle it was long a question, 
whether the witness could be rendered competent by destroying his 
interest by means of a release or payment before his examination ; in 
other words, whether the credibility of the witnesses was to exist at the 
period of the attesting act, or of tlie judicial inquiry into its suflBciency. 
Against the latter hypothesis Lord Camden, in Doe d. Hindson v. 
Hersey (a), madeian able and energetic protest. "A will," he said, 
"is often executed suddenljMU a last sickness, and sometimes in the 
article of death, and a great question to be asked in such cases is,- 
whether the testator were in his senses when he made the will, and, 
consequently, the time of the execution is the critical moment which required 
guard and protection: What is the emplojTnent of the witnesses ? — it is 
to attest, and to judge of the testator's sanity when they attest ; and 
if he is not capable, the}' ought to refuse to attest. In some eases the 
witnesses are passive ; here they are active, and, in truth, the principal 
parties to the transaction ; the testator is intrusted to then* care." [The 
majority of the court were, however, against Lord'Camden's opinion.] 

(a;) Fish v. Klein, 2 Mer. 431. (y) Foudrin v. Gowdey, 3 My. & K. 383. 

Iz) Sir M. Hale in Collingwood v. Pace, 1 Vent. 417. Otherwise if the father was a deni- 
zen at the son's birth. (a) 4 Burn's Eccl. Law, 27. 

claim is by descent. People v. Conklin, 2 death, is not entitled to her land as tenant bv 
Hill, 67; Vaiix ». Nesbit, 1 M'Cofd, Ch. the curtesy. Foss e. Crisp, 20 Pick. 121. " 
370. An alii'n husband who malses the pre- i AdeVise or legacy to a witness is abso- 
liminary declaration of his intention to he- Iiitely void, so that a conveyance by tlie de- 
come a citizen before the death of his wife, visee to a third person is inoperative. Jack* 
and completes his naturalization after hri- son v. Denniston, 4 Johns. 311. 

30 



.•WHO MAY BE DEVISEES OR LEGATEES. 



»71 



The doctrine contended for bj' tWs distinguished judge; seeiris event* 
nally to have prevailed (6), and is evidently more reasonable 
* than the alternative rule, which would have led to this absurd *71 
and mischievous consequence, that a will might have been in- 
validated : by the subsequent conduct of a witness affecting his credi- 
bility of character, and occurring, it might be, after the death of the 
testator, when there was no possibility of repairing this disaster to 
the will. 

It was soon found that the holding a will of freeholds to be invalid on 
account of the existence of an interest, however remote or minute, in 
any one of the attesting witnesses, was productive of much inconven- 
ience ; and it being apparent that to render the witness competent, by 
depriving him of the benefit which affected Ms disinterestedness, was far 
better than to sacrifice the entire will, the statute 25 Geo. Stat. 25 Geo. 
2, c. 6 (c),' was passed, which, after reciting the 29 Car. 2, jjeneficiai de- 
c. 3, s. 5, provided, that if any person should attest the exe- vises and 
cution of any will or codicil, to -whom any beneficial devise, awest'tag wit- 
legacy, estate, interest, gift, or appointment of or affecting "«sses void ; 

(b) Brograve v. Winder, 2 Ves. Jr. 636.' [It must be observed that this case only de- 
cided that a witness disinterested at the time of the execution of the will and the death of the 
testator was a good witness, notwithstanding that he was interested at the time of his exami- 
nation, and that Lord Camden's opinion is directly opposed to the cases of Low« r. JollifEe 
<1 W. Bl. i)65) and Goodtitie 0. Welford (Ddugl. 139), where a legatee after release was held 
a competent witness. ' (c) Ir. Pari. 25 Geo. 2, c 11.] 



1 Witnesses to a will are incapable of 
taking any beneficial interest under the will, 
unless there Tje the statutory number of wit- 
nesses besides the one so taking an interest, 
in 

Arkansas. Digest, 1874, eh. 135, p. 1018. 
See ib. p. 1019. 

■ California. Codes & Stat. Vol. 1. ch. 1, 
p. 721. 

Colorado. Gen. Laws, 1877, ch. 103, p. 930. 

Connecticut. Gen. Stat. 1875, ch. 11, p. 
369. 

Dakotah. Rev. Code, 1877, Title 5, ch. 
1, p. 347. 

Illinois. R. S. 1880, ch. 148, p. 1110. 

Indiana. Stat. 1876, Vol. 2, ch. 3, 
p. 678. 

I(i«'a. Rev. Code, 1880, Vol. 1, Title 16, 
ch. 2, p. 608. 

Kansas. Comp. Laws, 1878, ch. 117, p. 
1002. 

Kentucky. Gen. Stat. 1873, ch. 113, 
p. 835. 

Massachusetts. Gen. Stat. 1860, ch. 92, 
p. 477. 

Slichipan. Comp. Laws, 1871, Vol. 2, ch. 
154, p. 1372. 

Minnesota. Stat. 1878, ch. 47, p. 568. 

Mississippi. Rev. Code, 1871, ch. 9, 
p 214. 

Missouri. E. S. 1879, Vol. 1, ch. 71, 
p. 685. 

, Nebraska. Gen. Stat. 1873, ch. 17, 
p. 301. 

Nevada. Comp. Laws, 1873, Vol. 1, ch. 
37, p. 200. 

9.1 



New Hampshire. Gen. Laws, 1878, ch. 
193, p. 455. 

, New York. R. S. 1875, Vol. 3, ch. 6, 
p. 64. 

Ohio. R. S. 1880, Vol. 2, ch. 1, 
p. 1426. 

Oregon. Gen. Laws, 1843-1872, ch. 64, 
p. 789. 

Texas. R. S. 1879, Title 99, p. 713. 
. Utah. Comp. Laws, 1876, ch. 2, p. 271. 

Virginia. Code, 1872, ch. 118, p. 912. 

West Virginia. R. S. 1878, ch. 201, 
p. 1172. 

Wisconsin. R. S. 1878, ch. 103, p. 650. 

The statute of New York provides that if 
the witness who has a beneficial interest 
under the will would be entitled to a share of 
the estate had the will not been made, so 
much of such share shall be saved to him! 
and he shall recover that share of the devi- 
eees'or legatees. Rev. Stats. (N; Y.) 1875, 
Vol. 3, ch. 6, p. 64. And like prorisions exist 
in the states of 

Arkansas. Digest, 1874, ch. 135, p. 1018. 

California. Code & Stat. 1876, Vol. 1, 
ch. 1, p. 721. 

Colorado. Gen. Laws, 1877, ch. 103, p. 
930. 

Dakotah. Rev. Code, 1877, Title 5, ch. 1, 
p. 347. 

Illinois. R. S. 1880, ch. 148, p. 1110. 

Indiana. Stat. 1876, Vol. 2, ch. 3, p. 578: 

Iowa. Rev. Code, 1880, Vol. 1, Title 16, 
ch. 2, p. 608. • 

Kansas. Comp. Laws, 1879, ch. 117. p. 
1002. ■ , . ■ ^ 



*n 



WHO MAY BE DEVISEES OE LEGATEES, 



any real or personal estate, other than aisd' except efaargeS on lands, 
tenements, or hereditaments, for payment of any debt or debtav should 
be therfeby given, or made, such devise, &c., should, so far only as con- 
cerned such person attesting the execution of such will or codicil, or 
any person claiming under him, be utterly null and Toid ; and such per- 
— and wit- ®*"^ should be admitted as a witness to the execution of such 
nessescom- will or codicil within the intent of the said act, notwith- 
petent. standing such devise, &c. ; but it was enacted (secfc 2)^ 

that in case by any' will or codicH any lands, tenements, or heredita- 
ments were or should be charged with any debt or debts, and any 
Creditors creditor, whose debt was so charged, had attested, or should 
whose debts attest, the execution of such will or codicil, every such 
'^6dwi?' ' creditor, notwithstanding such charge, should be admitted 
nesses. as a witness to the execution of such will or codicil^ withiri 

the intent of the said aet. Sects. 3, 4, and 5, relate only to willg made 



Kentucky. Gen. Stat. 1873, ch. 113, p. 835. 

Michigan. Comp. Laws, 1371, Vol. 2, eh. 
154, p. 1372. 

Minnesota. Stat. 187S, ch. 47, p. 568. 

Mississippi. Bev. Code, 187i, ch. 9, p. 
214. 

Missouri. E. S. 1879, Vol. 1, ch. 71, 
p. 685. 

Nebraska. Gen. Stat. 1S73, ch. 17, p. 
301. 

, Ohio. K. S. 1880, Vol. 2, «h. 1, p. 
1426. 

. Oregon. Gen. Laws, 1843-1872, ch. 64, 
p. 790. 

Texas. R. S. 1879, Titl*99, p. 713. 

Virginia. Code, 1873, ch. 118, p. 912. 
. West YiiEinia, E. S. 1878> ch. 201, p. 
1172. 

Wisconsin. R. S. 1878, oh. 103, p, 650. 

See also the following: Georgia Code, 
1873, ch. 2, p- 417; Maine, Rev. Stat. 
1871. ch. 74, p. 563; New Jersey, Revi.iion, 
1709-1877, Vol. 2, p. 1244; North Carolina, 
Battle's Revisal. ch. 119,' p. 848; Pennsvlva- 
bia. Bright. Pard. Digest, 1700-1872. Vol. 2, 
p. 1475 ; Rhode Island, Gen. Stat. 1872, ch. 
171, p. 376; South Carolina, R. S. 1873, ch. 
86, p. 443; Tennessee, Stat. 1871, Vol. 2, 
ch. 1, p. 997 ; Vermont, Gen. Stat. 1862, Title 
16, ch. 49, p. 378. 

If a legatee die before the testator he is 
considered a legal witness to a will in 

Arkansas. Digest, 1874, ch. 135, p. 
1019. . 

Missouri. R. S. 1879, Tol. 1, ch. 71, p. 
685. 

New Jersey., Revision, 1709-1877, Vol. 2, 
p. 1245. 

Oregon. Gen. LaWs, 1843-1877, ch. 64, 
p. 720. 

Rhode Island. Gen. Stat. 1872, oh. 171, 
p. 375. 

States in which a. legatee is competent if 
he release or have been paid or refuse to ac- 

igest,'l874, ch. 136, p. 1019 , 



E. S. 18T9, To!. 1, ch. 71^ 
Revision, 1709-1877, Vol. 2, 



cept such legacy.: 
Arkansas. Di{ 



92 



Missouri. 
p. 685. 

New Jersey, 
p. 1244. 

Oregon. Gen. Laws, 1843-1877, cht 64, 
p. 790. 

A witness of the execution of a will is not 
rendered incompetent by the facts that lie re- 
ceived a deed of land from the testator at the 
time of the execution of the will, and tliat 
bis ritother was the principal devisee. Nash 
V. Reed, 46 Me. 168. 

An heii-at-law, who is disinherited by a 
will, is also a competent subscribing witness 
thereto. Sparhawk ». Sparhawk, 10 Allen, 155. 

A witness to a will of land, who was at 
the time of his attestation a presumptive 
heir to the devisor, is not interested in the 
devise within the meaning of section 11 of 
the North Carolina act of 1774. Old v. Old, 
4 Dev. 600. 

In Tennessee, the sons of a devisor are 
competent witnesses to the will, if none of 
the lands of the devisor be devised to them. 
Allen V. Allen, 2 Overt. 172. 

By the Mexican law an ntoMe appointed 
executor in the will, but not named therein as 
heir or legatee, ar\d deriving no advantage 
under it, and being allowed nothing by law 
for his serviqesj is competent to authenticate 
the will in his judicial capacity. Panaud v. 
Jones, 1 Cal. 488. 

The judge of probate is a good witiftss 
to a will. McLean «. Barnard, 1 Root, 462; 
Ford's case. 2 Root, 232. In Illinois, a county 
judge is competent. Rev. Stat. 1880, ch. 
148, p. 1109. ' 

The inhabitalits of an incorporated town 
to whom property is devised for the support 
of a school are competent witnesses to attest 
a will. Comwell v. labam, 1 Day, 36. So of 
towns and corporations under the New Hamp< 
shire statutes of 1789. Eustis «. Parker, 
1 N. H. 273 ; S. P. Warren v. Baxter, 48 Me^ 
183; Haveh ». Hilliard, 23 Pick. 10; Loriiig 
V. Park, 7 Gray, 42. \ . 



WHO MAY BE PEVISBES OR liEGATEBS. *73 

OM ©r before the 24th of June, 1752, and the remaining sections are not 
very important. 

On the statute it was decided: 1st. That it extended exclusively 
to persons beneficially interested, and not to a devisee or Pointade- 
^xecutor ia trust (d). 2dly. That it applied only where cidedonthe 
tiie witness took a direct interest under tiie will, and not 
where his uitercst * arose consequentially. Thus in Hatfield v. *72 
Thorp («) , where one of the three attesting witnesses to a will 
was the husband of a devisee in fee of a freehold estate, and would 
jure uxoris have claimed an interest in the devised lands, it was held 
thai the devise was not within the statute (/) , and, consequently, that 
the attestation was insufiScient. 3dly. That the act did not apply to 
\yills of j[copy holds (^) or of] personal estate (A), for as such wills did 
not require an attestation at aE, there was no ground for invalidating 
the gift to the witness ; but that in regard to wills of freehold lands, 
the fact that the witness was not wanted to make up the statutory num> 
ber (there being three others) did not render valid a gift to such super-, 
numerary witness (4) . 

[Where a testator by will devised property to his widow, and by 
codicil, to which she was a witness, confirmed his will, it , . 
was held that the gift to her by the wiU remained unaffected : a codicil con- 
but she was of course held not to be entitled to property ^^'"^ 'f\ 
purchased after the date of the will, and which would have ujider the 
passed to her by force of the republication, if she had not '^' ' 
been a witness to the codidl (i).] ' 

, By the act 1 Viet, c, 26, tiie legislature has adopted the principle, 
and extended the operation, of the enactments in the statute stat. 1 Vict 
25 Geo. 2, c. 6 (which it repeals, except as to the colonies "■• ^^• 
in America). ■ 

Sect. 14 provides. That if any person, who shall attest tiie execution 

(d) Anon., 1 Mod. 107; Lowe v. Jolliffe, 1 W. Bl. 36S; Holt e. Tyrrell, 1 Bam. K. B. 12: 
Battison «. Bromley, 12 East, 250; Phipps ». Pitcher, 6 Taunt. 220, 1 Mad. 144; see also 
Gpss e. Tracey, 1 P. W. 290; Goodtitle «. Welford, Doug. 139. 
■ <e) 5 B. & Aid. 589. ' 

[(/) Tlie court certified, on a case from Chancery, that " the will was not duly attested so 
ds to pass any estate to " the wife; referring to no statute, and not expressly denying that the 
rest of the will was valid. Of course, it could only have been valid (if at all)' by virtue of 
Hie statute Geo. 2; upon which the argument would be that the words " person to whom any 
estate should bethereby given," occurring itt the former part of the clause, meant "taking 
any estate in consequence of the devise," and that the words " such devise shall, so far as 
ccincems such person attesting," occurring in the latter part of the clause, meant "so far as it 
creates an interest in such person." Such an interest, and even a gift to the wife for her 
separate use, would have disqualified the husband as a witness nnder 29 Car. 2 (Holdfast i>. 
bowsing, 2 Str. 1253); and it might have seemed not unreasonable to suppose that the act 
Geo. 2 was intended to include such a case. But there is no trace of such an argument in tha 
case, and the form of the certificate was probably determined without reference to it, and 
simplvby the form of the question proposed, which it precisely follows. 

(o)" Jillard 1). Edgar, 3 DeG. & S. 502.] 

(h). Emanuel e. ConsUble, 3 Euss. 436; Brett ». Brett, 1 Hagg. 58, n. ; Foster «i. Banbury,. 
3 Sim. 40. 

ii) Doe V. MiUs, 1 Mood. & Rob. 288. 

[(A) Denne B. Wood, 4 L. J. (0. S.)57, V. C. Leach.] 



•73' 



WHO MAY BE DEVISEES OK LEGATEES'. 



Will; not to of a will, shall at the time of the execution thereof, or at any' 
account of in- time afterwards, be incompetent to be admitted a 

competency #73 » witness to prove the execution thereof* such will 

of attesting '^ -i • i- t 

witnesses. shall not on that account be invalid. 

Sect. 15, That if any person shall attest the execution of any will' 
G'ft t t- ^^ whom, or to whose wife or husband, any beneficial devise,- 
testing wit- legacy, estate, interest, gift, or appointment, of or affectipg 
orlmsban'dof ^''y ^^^^ '^^' Personal estate (other than and except charges 
witness to be and directions for the pajTnent of any debt or debts) , shall 
J ' be thereby given or made, such devise, legacy, estate, inter- 

est, gift, or appointment, shall, so far only as concerns such person 
attesting the execution of such will, or the wife or husband of such per- 
son, or any person claiming under, such person, or wife or husband, 
be utterly null and void ; and such person so attesting shall be admit- 
ted as a witness to prove the execution of such wiU, or to prove the validiti/ 
or invalidity thereof, notwithstanding such devise, legacy, estate, inter-^ 
est, gift, or appointment, mentioned in such will.^ 

Sect. 16, That in case by anj- will any real or personal estate shall- 
Creditor at- ' be chained with any debt or debts, and any creditor, or liie 
admitted" a* wife or husband of any creditor, whose debt is so charged, 
witness. shall attest the execution of such will, such creditor, not- 
withstanding such charge, shall be admitted a witness to prove the exe- 
cution of such will, or to prove the validity or invalidity thereof.' 
Executor to Sect. 17, That no person shall, on account of his being an 
be admitted executor of a will, be incompetent to be admitted a witnesa 
a wi nesb.- ^ prove the execution of such will, or a witness to prove the 
validity or invalidity thereof.' 



1 Sullivan ». Sullivan, 106 Mass. 474; 
Jackson V. Woods, ,1 Joiins.^Cjvs. 163; Jaclc- 
son ». DurJand, 2Johns. Cas. 314; Wihslow 
V. Kimball, 25 Me. 493. See Fortune ». 
Buck, 23 Conn. 1. 

2 States in which creditors are competent 
Vritnesses to a will :, — 

Arkansas. Digest,' 1874, ch. 1^5, p. 1018. 

California. Codes and Stat. 1876, Vol. 1, 
ch. 1, p. 721. 

Colorado. Gen. Laws, 1877, ch. 103, p. 930. 
. Dakotah. Rev. Code, 1877, Title 5, ch. 1, 
p. 347. 

Delaware. Rev. Code. 1874, ch. 84. p. 509. 

Illinois. R. S. 1880, ch. 148, p. 1112. 

Kcntuckv. Gen. Stat. 1873, ch. 113, 
p. 835. 

Massachusetts. Gen. Stat. 1860, ch. 92, 
p. 477. 

' Michigan. Comp. Laws, 1871, Vol. 2, 
ch. 154, p. 1372. 
' Minnesota. Stat. 1878, ch. 47, p. 568. 

Mississippi. Rev. Code, 1871, ch. 9, p. 214. 

Missouri^ R. S. 1879, Vol. 1, ch. 71, 
I*. -685. --■-•■ 

Nebraska. Gen. Stat. 1873, ch. 17, p. 301. 

Nevada. Comp. Laws, 1873, Vol. \ ch. 37, 
p. 200. 



94 



New Hampshire. Gen. Laws, 1878, 
ch. 193, p. 455. 

New Jersey. Revision, 1709-1877, Vol. 2, 
p. 1244. 

New York. R. S. 1875, Vol. 3, ch. 6, 
p, 58. , . , 

Oregon. Gen. Laws, 1843-1877, ch. 64,. 
p. 790. 

Rhode Island. Gen. Stat. 1872, ch.' 171, 
p. 375. 

South Carolina. R. S. 1873, ch. 86, p. 443. 

Virginia. Code, 1873, ch. 118, p. 913. ' 

■West Virginia. R. S. 1878, ch. 201, 
p. 1172. 

Wisconsin. R. S. 1878, ch. 103, p. 650. 

s The law varies somewhat in the differ-' 
ent states as to the competency of execu- 
tors. An executor who has declined or 
renounced the trust is no doubt universally 
competent, supposing of course he has no 
other interest under the will. Jones v. Lar- 
rabee, 47 Me. 474. Burritt v. Silliman, 3 
Kern. 93. See Dorsey v. Warfield. 7 Md.' 
65. But it has been decided in North Caro- 
lina that a renunciation by the executor will 
not render his wife a competent, witness to"" 
prove the will. Huie v. MeConnell, 2 Jones, 
455. Seii farthfer as'to the lavt of that istAte, 



"WHO MAY BE DEVISEES OK LEGATEES. *74 

These enactments, it will be observed, [preclude, as to wills coming 
within their provisions, all questions arising under the old law Remarks 
as to the effect of a gift to the husband or wife of an attesting "pon new- 
witness, and thej'J extend the disqualification of the witness intlerested 
to take beneficially to wills of every description ; the act hav- witnesses. 
ing, bj' assimilating the execution of wills of real and personal estate, de- 
stroyed all ground for distinguishing between them in regard to this point. 

[Upon the construction of the 15th section it has been decided that 
a legatee under a will does not lose his legacy by attesting point, ^^f.^^. 
a codicil which confirms the will (I) : , and further, that a ed on i Vict. 

G 26 s 15 

residuary legatee, by so doing, does not lose his share of ' ' ' 
the * residue, although the codicil in fact increases that share by *74 
revoking some particular legacies (w). Each witness attests only 
the instrument to which he puts his name. Again, where a will attested 
by a legatee is republished by a codicil attested by other witnesses, the 
gift to the legatee is made good (n). But where by will a legacy was 
bequeathed in a contingency which failed, and by a codicil attested by 
the legatee, the legacy was made absolute, the legatee was held dis- 
qualified to take the absolute legacy (o). And, following the rule 
regarding wills of real estate under the pre-existing law, a witness is 
held to be disqualified to take as legatee although he is a supernu- 
merary (p). But the court of probate receives evidence quo ammo the 
supernumerary signed ; and if it appear that he did not sign as a wit- 
ness, his signature will be omitted from the probate (q).'] 

In allowing an attesting witness to be appointed executor, whether 
he be or be not in terms made an executor in trust (r), re- Executor 
gard is evidently had to the statute of 1 Will. 4, c. 40, now not en- 
■which, it will be remembered, precludes executors from claim- disposed-of 
ing, by virtue of their office, the beneficial interest in the personalty. 

[(l) Gurney v. Gurnej', 3 Drew. 208 ; Tempest ». Tempest, 2 K. & J. 642, 7 D. M. & G. 
470; in conformity, witli the rule respecting real estate before the act, see p. 72. 

(m) Gurnev » "Gurney, supra. (») Anderson v. Anderson, L. E. 13 Eq. 381. 

(o) Gaskin" v. Rogers, L. K. 2 Eq. 284. 

(p) Wigan V. Rowland, llHare, 157; Randfield v. Randfield, 32 L. J. Ch. 668. 

(y) Re Sharman, L. R. 1 P. & D. 6611 Its presence in the probate would appear to be 
conclusive of its character in the case of personalty. In a case where the superfluous name 
was struck thr lugh in the original, probate issued in fac-simile, leaving it for the court of con- 
struction to determine the effect, Re Raine, 34 L. J , Prob. 125 : as to which see Gann v. 
Gregory', 3 D. M. & G. 777, stated above p. 27. But since the Judicature Act, 1873, it 
should seem the Probate Division ought itself to determine tiie question. As to real estate 
the probate will be equally conclusive if the proper parties have \)een cited under the Court 
of Probate Act, 1857; see also Randfield v. Randfield, 30 L. J. Ch. 179 n. 

(r) A , gift to the witness as trustee of course is not invalidated. Cresswell ». Cressii^ell, 
L. R. 6 Eq. 69.] 

Tucker v. Tucker, 5 Ired. 161; Morton v. p. 913). Meyer ». Fogg, 7 Fla. 292 ; Murphy 
Ingram, 11 Ired. 368 ; and see Laws of 1873, v. Murphv, 24 Mo. 526; Richardson v. Rich- 
cited infra. By the law of several -of the ardson, 35 Vt. 238; Gen. Stat. Ky. 1873, 
states an executor is competent notwithstand- ch. 113, p. 835; Battle's Revisal, N. C. 1873, 
ing acceptance of the trust if he take no in- ch. 119, p. 843; R. S. S. Car. 1873, c. 86, 
terest under the testament. Wyman ». p. 443 ; 2 R. S W. Va. 1878, ch. 201, p. 1172. 
Symmes, 10 Allen, 153 (Gen. Stat. ch. 131, But acceptance of the trust is, or has been, 
§5 13-15); Comstnck v. Hadlvme, 8 Conn. a disqualification to the executor in some 
254(Gen. Stat. 1875. ch. n, p.'369); Coalter states. Vansant r. Boileau, 1 Binn. 444; 
t>. Bryan, 1 Gratt. 18 (Code, 1873, c. 118, Snyder ». Bull, 17 Penn. St. 5^. 

95 



*75 WHO MAY BE DEVISEES OB li^EgATEBS. 

,undisposed-of personal estate of their testator, to which, by the, pre- 
existing law, an executor was entitled, where the will did not afford 
any presumption of a contrary intention, a point which was often diffi- 
cult of solution.^ 

The great change, however, effected by the statute 1 Vict, in regard 
to the witnesses, is in expressly dispensing with all personal qualiflcar 
tions ; bat, on this subject (a discussion of which would be out of plac^ 
■ here), the reader is referred to some remarks in a future chapter which 
treats of the execution of wills. 

In conclusion, it is proper to notice another disability to take by 
Devise to devise, which formerly arose out of the doctrine, that 

fTct'u^ef" *^^ where * a title by descent and a title by devise con- 
theoldiaw. curred in tiie same individual, the former predomi- 

nated, and the heir was in by descent and mot by purchase ; " and it 
was held, that neither the itapositioa of a pecuniary charge («), nor 
even the engrafting on the devise to the heir an executoiy devise (*), 
had the effect of inteiTupting the descent. If, however, the quality of 
tiie estate which the heir took by the devise differed from that which 
would have descended upon him, he of course acquired the property as 
idevisee. On this principle a devise for life to the testator's heir, with 
remainder over, conferred on him an estate by purchase (u). 

So, if a testator devised freehold lands to his two daughters (being 
Devises to ^'^ co-heiresses at law) to hold to them and their beu'S, they 
testator's both took by purchase, because under the devise they were 
'^"'' joint-tenants and not co-parceners, as tJiey would have been 

by descent (x) ; and the rule was the same if the devise were to tiiem 
as tenants in common ; a tenancy in common (though making some- 
what nearer approach to) being different from an estate in co-parce- 
nary (y) . Of course a devise to one of several co-heirs or co-heiresses 
made the devisee a purchaser («) ; [and so it seems would a contingent 
remainder devised to the person who at a stated time should be the 
testator's heir-at-law (a).] 

. (*) Haymsworth ». Prettv, Cro. El. 833, 919, Moo. 644; Clarke v. Smith, 1 Sallc. 241. 
•. it) Chaplin ». Leroax, S'M. & Sel. 14; Doe ». Timins, 1 B. & Aid. 530; Manbridgeu. 
Pluimmer, 2 My. & K. 93. [So in case of copyholds, Smith v. Triggs, 1 Str. 487. 

<«) That in" cases o{ marshalling, the heir, under an express devise to hun, had the rights 
of a devisee, see Biederman «. Seymour, iS Beav. 368 ; a fortiori, since the stat. 3 & 4 Will. 
A, c. 106, s. S; see Strickland i;. Strickland, 10 Sim. 374.] 
, . (a;) Cm. EI. 431. {And see Swaine V. Burton, 16 Ves. 36B.1 

(y) Bear's case, 1 Leon. 112, 315. 

(z) Co. Litt. 1«3 b; [Reading v. Hoyston, 1 Salk. 242.1 

(a) 1 Sanders Uses, 133 n., 4th ed., citing Cholmondeley v. Clinton, 2 J. & W. 1. 

1 The English deeiBioM respecting the Binn. 567; Jfeaves's estate, 9 Sere. & E. 

circumstances Which will make an executor 186, 189, 190; 2 Williams, Ex. (6th Am. ed'.) 

trustee for the nexit of kin are for the most 1050 et seq. 

part inapplioablc in America, where the sur- . 2 EHis ». Page, 7 CusIl 161 ; Parsons «. 

plus undisposed of by the testator is univer- Winslow, 6 Mass. 178; Whitney v. Whitney, 

(ally distributable among the next of kin. 14 Mass. 90. See Hubbard i. Eawson, 4 

See 1 SJiory, En. Jur.^ 1208; 3 Phill. Ev. Gray, 242; Sedgwick *. Minot, 6 Allen, 171; 

:<Cowen and Hill's notes, ed. 183.1) 1486. Waters ». Stickney, 12 Allen, I, 17; Valen- 

1495: Hayis v. Jackson, 6 Uaan. 153; Hill tine v. Bprden, 100 Mass. 273. 
II. Hill, 2 Uayw. 298; WiUo»:«., WUepB, 3 

?6 



WHO MAT BE DEVISEES OB LEGATEES. *76 

Whether the doctrine in question extended to testamentary appoint- 
ments was a point of some nicety, and occasioned much discussion (b), 
into which, however, it is not now proposed to enter, as questions of 
this nature cannot arise under any will, future or recent ; the „ „ „ . 
statute of 3 & 4 Will. 4, c. 106, s. 3, having provided that. Will. 4, 
when any land shall have been devised by any testator who njaking Imit- 
shall die after the 31st day of December, 1833, to the heir, devisee a 
or to the person who shall be the heir of such testator, such ^"° ^^^'' 
heir shall be considered to have acquired the land as a devisee, and not 
by descent (c). 

♦[Infants (including infants en ventre sa mere(d)),^ femes *76 
coverte and insane persons are not incapacitated from taking 
by devise or bequest though they cannot manifest their ac- Infant, f. c. 

■' ^ 1 ■■ 1 . 1 1 <"^ lunatic, 

ceptance ; for acceptance will be presumed unless it would may take 
work injury to the devisee or legatee. The disability of ^y devise. 
coverture,. though invalidating a conveyance at common law from the 
husband to the wife, does not prevent her from taking under his will, 
the coverture having in fact ceased when the wiU takes effect (e). J 

(6) See Hurst v. Earl of Winchelsea, 1 W. Bl. 187, [2 Ld. Ken. 444, 2 Burr. 879;] Lang- 
ley V. Sneyd, 7 J. B. Moo. 165, [3 Br. & B. 243, 1 S. & St. 45. 

(c) The negative words seem to exclude the claim of a devisee-heir of copyholds (which 
are expresslv included in the act) to disclaim the devise and take as heir. Bickley v. Bick- 
lev, L. R. 4"Eq. 216. 
" (d) Burdett v. Hopegood, 1 P. W. 486 ; Mogg v. Mogg, 1 Mer. 654. (e) Litt. s. 168.] 

1 See Jenkins v. Freyer, 4 Paige, 67; Petway v. Powell, 2 Dev. & B. Eq. 308; Smarts. 
King, Meigs, 149. 

VOL. I. 7 97 



•77 



EXECUTION AND ATTESTATION 



*77 



* CHAPTER VI. 



EXECUTION AND ATTESTATION OP WILLS MADE BEFORE THE 

YEAE 1838. 



Section I. 

As to Freeholds of Inheritance. 

The 5th section of the Statute of Frauds (29 Car. 2, c. 3) required 
Enactment in that all devises and bequests of any lands or tenements (a), 
the Statute of devisable either by force of the Statute of Wills, or by that 
the execution statute, Or by force of the custom of Kent, or the custom of 
of wills, g^jjy borough, or any other particular custom, should be in 

writing ^ and signed by the party so devising the same, or by some 
other person ^ in his presence and by his express direction, and should 
be attested and subscribed in the presence of the said devisor, by three 
or four credible witnesses.' 

(a) [Observe that the word hereditaments is omitted in this clause, though occurring in 
the next, see Buckridge v. Ingram, 2 Ves. Jr. 662; but no question seems ever to have been 
raised on this omission.] 



1 It should be observed at the outset that 
though a will be not properly executed as a 
will with subscribing witnesses, it may still 
be good as a holograph, where that kind of 
will is allowed, M it answer the requirements 
of the statute as to holographs, though it 
contain .something more than the statute re- 
quires. Brown «, Beaver, 3 Jones, 516; Har- 
rison V. Burgess, 1 Hawks, 384; Hill v. Bell, 
Phill. (N. C.) 122. A will, though writti-n 
with a pencil instead of ink, would be good. 
In re Dyer, t Hagg. 219. But when the 
question "is whether the testator intended the 
paper as a final declaration of his mind, and 
as testamentary, or whether it was mei'ely 
preparatory to a more formal disposition, the 
material with which it was wi-itten becomes 
■ a most important circumstance. Rymes v. 
Clarkson, 1 Phill. 35; Parkin v. Baiubridge, 
3 Phill. 321. Alterations in pencil by the 
testator on a rtgularly executed will have 
been admitted to probate, but it has been 
laid down in two cases in the Prerogative 
Court in England, that the general presump- 
tion and probability are, that where altera- 
tions in pencil only are made, they are 
deliberative ; when in ink, they are final and 
absolute. Hawkes v. Hawkes, 1 Hagg. 322; 
Edwards v. Aatley, 1 Hagg. 490 : Dickenson 



V. Dickenson, 2 Phill. 173; Lavender «. 
Adams, 1 Addams, 406. So, too, a man may 
perhaps write his will on any material he 
pleases; still the material might become a 
most important circumstance in determining 
the animus iestandl. Rj-mes v. Clai'kson, 
1 Phill. 35. 

2 In re Clark, 2 Curteis, 329, the testator, 
being too ill to sign his will, requested the 
drawer thei-eof to sign it for him, which ha 
did in his own name, not in that of the testa- 
tor, and it was held sufficient. 

5 States in which there must be at least 
three witnesses to a will : — 

Connecticut. Gen. Stat. 1875, ch. U, 
p. 369. 

Florida. Bush's Digest, 1872, ch. 4, p. 75. 

Georgia. Code, 1873, Title 6, ch. 2, p. 416. 

Maine. R. S. 1871, ch. 74, p. 563. 

Maryland. Rev. Code, 1878, art. 49, p. 420. 

Massachusetts. Gen. Stat. 1860, ch. 92, 
p. 476. 

Mississippi. Rev. Code, 1871, ch. 54, 
p. 625. 

New Hampshire. Gen. Laws, 1878, ch. 
193, p. 455. 

South Carolina. R. S. 1873, ch. 86, p. 
442. 

Vermont. Gen. Stat. 1862, ch. 49, p. 377. 



98 



OF WILLS BEFOEB 1838. 



*77 



[Before proceeding to discuss this enactment, it should be premised, 
that though by the statute 1 Vict. c. 26, the ceremonial of is illustrated 
execution is somewhat varied, yet several of its details re- ^^ ivlct""* 
main unaltered, so that the cases decided under the later «■ 26. 



In Mississippi wills, if not wholly written 
by the testator, must be attested by three 
witnesses in case of real estate, and by one in 
case of personalty. Miss. Rev. Code, 1871, 
c. 54, p. 525. See Kirk v. State, 13 Smedes 
& M. 406. Holograph wills are good there 
without witnesses. Uavis v. Williams, 57 
Miss. 843, 847. 

States in which there must be two attest- 
ing witnesses to a will : — 

Alabama. Code, 1876, Title 4, ch. 2, p. 588. 

Arkansas. Digest, 1874, c. 135, p. 1012. 

California. Codes and Stat. 1876, Vol. 1, 
ch- 1, p. 720. 

Colorado. Gen. Laws, 1877, ch. 103, p. 929. 

Dakotah. Rev. Code, 1874, Title 5, ch. 1, 
p. 344. 

Delaware. Rer. Code, 1874, eh. 84, p. 509, 

Illiaois. R. S. 1880, ch. 148, p. 1108. 

Indiana. Stat. 1876. Vol. 2, ch. 3, p. 575. 

Iowa. Rev. Code, 1880, Vol. 1, Title 16, 
ch. 2, p. 608. 

Kansas. Comp. Laws, 1879^ ch. 2, p. 1001. 

Kentucky. Gen. Stat. 1873, ch. 113, 
p. 832. 

Michigan. Comp. Laws, 1871, Vol. 2, 
ch. 154, p. 1372. 

Mhmesota. Stat. 1878, ch. 47, p. 568. 

Missouri. R. S. 1879, Vol. 1, ch. 71, 
p. 680. 

Nebraska. Gen. Stat. 1873, ch. 17, 
p. 300. 

Nevada. Comp. Laws, 1873, Vol. 1, ch. 
37, p. 200. 

New Jersey. Revision, 1709-1877, Vol. 2, 
p. 1247. _ 

New York. R. S. 1875, Vol. 3, ch. 6, 
p. 63. 

North Carolina. Battle's Revisal, 187-3, 
ch. 119, p. 846. 

Ohio. R. S. 1880, Vol. 2, ch. 1, p. 1425. 

Oregon. Gen. Laws, 1843rl872, ch. 64, 
p. 788. 

Rhode Island. Gen. Stat. 1872, ch. 171, 
p. 374. 

Tennessee. Stat. 1871, Vol. 2, ch. 1, 
p. 937. 

Texas. R. S. 1879, ch. 99, p. 712. 

Utah. Comp. Laws, 1876, ch. 2, p. 271. 

Virginia. Code, 1873, ch. 118, p. 910. 

West Virginia. E. S. 1878, ch. 201, 
p. 1168. 

Wisconsin. R. S. 1878, eh. 103, p. 650. 

In Texas, wills, if not wholly written by 
testator, shall be attested by two witnesses 
above the age of fourteen vears. R. S. 1879, 
ch. 99, p. 712. 

Witnesses must sign in the presence of the 
testator, and in the presence of each other, in 

Connecticut. Gen. Stat. 1875, ch. 11, 
p. 369. 

Utah. Comp. Laws, 1876, ch. 2, p. 271. 

Vermont. Gen. Stat. 1862, ch. 49, p. 377. 

In some of the states,. the provision as to 



attestation is more special. In Pennsylvania, 
a devise of lands in writing will be good 
without any subscribing witnesses, provided 
the authenticity of it can be proved by two 
witnesses ; and, if the will be subscribed by 
witnesses, proof of it may be made by others. 
Hight V. Wilson, 1 Dallas, 94; Huston, 
Judge, 1 Watts, 463. Proof of the signature 
of the testator to a will by two witnesses, 
is prima facie evidence of its execution, 
although the body of it be not in the hand- 
writing of the testator. Wiegel u. Wiegel, 5 
Watts, 486. In that state, unless the testa- 
tor is prevented by the- extremity of his last 
sickness, his will must be signed by him at 
the end thereof, or by some person in his 
presence and by his express direction, and in 
all cases must be proved by the oaths of two 
or more competent witnesses. Act of 8th 
April, 1833 ; Strieker v. Groves, 5 Whart. 386. 
Where the testator, having given directions 
for drawing his will, and being just about to 
sign the same, became suddenly unable either 
to do so himself or to request another to do so 
for him, and immediately died, it was held 
that the case was witliin the exception to the 
Penn. Act of 18-33, and that the will was 
valid. Showers v. Showers, 27 Penn. St. 
485. See Ruoff's Appeal, 26 Penn. St. 219. 
In North Carolina, two witnesses are required 
to a will of real estate, unless the will is in 
the handwriting of the deceased person, and 
is found among his valuable papers, or lodged 
with some person for safe-keeping. The 
name of the testator in such case must be 
proved by the opinion of three witnesses. 
IRev. Law, N. C. 619, 620, c. 122, § 1, 
Act of 1840; Battle's Rev. 1873. c. 119, 
p. 846. So in Tennessee, u-nder Stat. 1784, 
c. 10 ; Stat. 1871, c. 1, pp. 998, 999 ; Crutctier 
». Crutcher, 11 Humph. 377; Tate v. Tate, 
11 Humph. 465. In Virginia and in West 
Virginia, if the will is not wholly written by 
the testator, it must be attested by two or 
more credible witnesses, &c. 1 Rev. Code, 
Va. 375; Code, 1873, c. 118, p. 910. W. Va. 
R. S. 1878, c. 201, p. 1168. In Arkansas, 
a will written through by the testator needs 
no subscribing witness, but the will must 
be proved in such ease by three disinter- 
ested witnesses, swearing to their opinion. 
Still, a will in due form subscribed will he 
effectual as against one not so subscribed. 
R. S. c. 157, §§ 4, 5; Digest, 1874, ch. 135, p. 
1012. Everj' person in that state who sub- 
scribes the testator's name must sign as wit- 
ness, and state that he signed the testator's 
name at his request. lb. The same rule 
prevails in Missouri. St. Louis Hospital v. 
Wegman, 21 Mo. 17; Simpson v. Simpson, 
27 Mo. 288; St. Louis Hospital v. Williams, 
19 Mo. 609. A will executed in South Carr,- 
lina in the presence of two witnesses, wlio 
alone subscribe it, is not sufficiently ex- 



99 



*78 



EXBCITTION AND ATTESTATION 



statute bearing upon the interpretation of the words "signature," 
"presence," "direction," "other person," "attested," "subscribed," 
wliich are conimon to both enactments, bear equally upon the interpre- 
tation of the same words in the statute 29 Car. 2, c. 3 ; and thus (since 
the execution of bequests of personal estate is now assimilated to that 
of devises of real estate) , the construction of the older statute, although 
never within the sphere of the Ecclesiastical Courts, is nevertheless 
illustrated by manj' of their decisions on the statute of Victoria.] 

The first inquiry suggested by the statute 29 Car. 2 is, what amounts 
Mark.asufja- to a " signing" by the testator? It has been decided that 
cient signing. ^^ ^^^^^^ jg suflBcient,^ and that, notwithstanding the testa- 
*78 tor is * able to write (J),'' [and though his name does not appear 

(4) Taylor e. Dening, 3 Nev. & P. 228; S. C. nom. Baker v. Dening, 8 Ad. & Ell. 94. 



ecuted under the statute to pass real estate, 
although the scrivener was also present at 
the execution ; and a codicil executed in 
tile presence of two subscribing witnesses, 
one of whom was different from the two 
wilnesses to the will, does not give effect 
to the will as to real estate. Dunlap v. 
Duulap, i Desaus. 305. The laws of South 
Car Una, at the time of the above decision, 
required three witnesses to a will of real es- 
tate only; but now' they require three wit- 
nesses to a will of personal estate also. 
Statutes at Large of S. C, Vol. 3, p. 342, 
No. 844, § 2; ib. Vol. 4, p. 106, No. 1455, 
§ 2; ib. Vol. 6, p. 238, No. 2334, § 8; 
R. S. 1873, c. 86, p. 442. 

1 Bailey v. Bailey, 35 Ala. 687; Guthrie v. 
Price, 23 Ark. 396 ; Smith v. Dolby, 4 Hair. 
(Del. 350); St. Louis Hospital K.Williams, 19 
Mo. 609 ; St. Louis Hospital v. Wegman, 21 Mo. 
17; Long!). Zook, 13 Penn. St. 400; Flan- 
nery's Will, 24 Penn. St. 602 ; Barford v. 
Barford, 29 Penn. St. 221; Hanswyck v. 
Wiese, 44 Barb. 494. See also infra, in the note 
concerning the testator's signature, and com- 
pare Main v. Ryder, 84 Penn. St. 217 ; St. 
Ivouis Hospital v. Williams, 19 Mo. 609 ; Nortli- 
cutt V. Northeutt, 20 Mo. 266; Greenough v. 
Greenough, 11 Penn. St, 489; McCarty i). 
Hoffman, 23 Penn. St, 507; Eosser v. Frank- 
lin, 6 Gratt. 1. 

2 Jackson v. Van Dusen, 5 Johns. 144; 
In re Field, 3 Curteis, 752; Smith v. Dolby, 
4 Harrington, 350; Ray v. Hill, 3 Strobh. 
297 ; St. Louis Hospital v. Williams, 19 Mo. 
609; St. Louis Hospital v. Wegman, 21 
Mo. 17. Where a paper was produced 
by the testator wilh his name already sub- 
scribed in the handwriting of anotlier, to 
which he affixed bis mark in the pres- 
ence of the witnesses, and acknowledged 
it to be his last will and testament, it was 
held a suificient subscription and publication 
of the will, in Kentuckv. Unchurch v. Up- 
church, 16 B. Mon. 102. See Flannerv's 
will, 24 Penn. St. 502. But see St. Louis 
Hospital V. Williams, 19 Mo. 609 ; St. Louis 
Hospital V. Wegman, 21 Mo. 17 ; North- 
eutt V. Northeutt, 20 Mo. 266; Will of 
Cornelius, 14 Ark. 675. A will signed by 
a mark, without the name of the deceased 



100 



appearing in it, is held sufficiently signed 
under the Stat. 1 Vict. c. 26, § 9, th6 will 
being identified aliunde. In re Bryce, 2 
Curteis, 325, In Pennsylvania it has been 
held that the will must be signed with the 
testator's own name, either by himself or by 
some person in his presence and by his ex- 
press direction. His mark is insufficient. 
Purdon's Dig, 971; Assay i). Hoover, 7 Penn. 
Law Jour. 21 ; Cavett's Appeal, 8 Watts & 
S. 21; Greenough ». Greenough, 11 Penn. St. 
489. This, however, seems to be doubted in 
a late case in that state^ Vernon v. Kirk, 30 
Penn. St. 218, where it is said: "It was only 
by judicial construction that our statute of 
wills, passed April 8, 1833, was made to re- 
quire at the end of the will the testator's 
signature by his name. Our act was taken 
from 29 Car, 2, sec. 2, under which it had re- 
peatedly been decided that a signature by a 
mark was sufficient. When therefore the 
legislature adopted words liaving a recog- 
nized judicial signification, it might fairly 
have been presumed that they intended by 
the words that sense in which they were 
understood at the time of adoption. It is 
probable that they looked less to the mode of 
the signature than to its place, wliich they 
required to be at the end of the will. If a 
mark was not a signature within the meaning 
of the statute, then those unable to write 
could not sign, and signing by another was 
permitted only when inability to sign was 
caused by the extremity of the last sickness. 
This seems to have been overlooked when 
Barr t),-Graybill, Assay v. Hoover, and other 
kindred cases were decided," Under the 
Pennsylvania Act of 1848, signing by a cross 
or mark merely is sufficient. See Burford u. 
Burford, 29 Penn, St, 221. In Vernon e. Kirk, 
supra, it was decided that it was a sufficient 
execution of a will, where the testatrix hav- 
ing requested another to sign a paper as her 
will, he complied by signing "E, N., for 
E, D,, at her request," When the signature 
of a testator is effected by another person 
guiding his hand with his consent, and he 
afterwards acknowledges it, this is, in point 
of law, the act of the testator. Stevens v. 
Van Cleve, 4 Wash, C, C. 262 ; Vandruff v. 
Rinehart, 29 Penn, St, 232. 



OF WILLS BEFOEE 1838. *78 

on the face of the will (c). A mark being sufficient, of course tho 
initials of the testator's name would also suffice (d) ; and it would 
be immaterial that he signed by a wrong ^ or assumed name wrong 
(since that name would be taken as a mark (e) ) , or that name, 
against the mark was written a wrong name (/) , and that the testator 
was also wrongly named in the body of the wUl (g) , or that his hand 
was guided in making the mark (A). But where two sisters made 
mutual wiUs in favor of each other, the words mutatis mutan- 
dis being precisely the same, and by mistake each signed 
the will of the other, both signatures were held invalid, neither sister 
having in fact executed her own will, but merely a paper, which, if it was 
a will, gave all her property to herself, and was therefore void (i) ; 
and even if the gift had been to a third person, evidence would have 
been admitted to show that the paper, though executed by the testatrix 
with due formality, was not in fact her will (/), though such evidence 
could not have been used to give effect to the gift to the sister. The 
mere fact of signing a paper, with due formality as a will, does not, 
therefore, per se show that the paper was the testator's will.] 

At one time it appears to have been thought, that even sealing ^ 
alone, without signing, would suffice (k) ; the contrary, how- sealing in- 
ever, is indisputable ; not indeed from positive decision, but sufficient. 
from the unanimous opinion of every judge who has referred to the 
point, from Parker, C. B., and his Qoadjutors in Smith v. Evans (?) 
(though the C. B., on another occasion (m), erroneously supposed it to 
have been decided the other way), down to Lord Eldon in Wright v. 
Wakeford (ra) . 

[Both statutes expressly permit the testator's signature to be made 
by some other person by his direction.' That other person may, 

[(c) Re Bryce, 2 Curt. 325. (d) Re Savory, 15 Jur. 1042. 

(e) Re Redding, 2 Rob. 339, 14 Jur. 1052; Re Glover, ]1 Jur. 1022, 5 No. Gas. 553; and 
see the corresponding cases as to signature of a witness, post, n. 82. 

(/) Re Clarke, 27 L. J. Prob. 18, 4 Jur. N. S. 243, 1 Sw. & Tr. 22. 

(g) Re Dowse, 31 L. J. Prob. 172. (A) "Wilson v. Beddard, 12 Sim. 28. 

(i) Anon. 14 Jur. 402; Re Hunt, L. R. 3 P. & D. 250. 

(/) See Hippesley v. Homer, T. & R. 48, n.; Trimleston v. D'Alton, 1 D. & CI. 85, no- 
ticed in Chap. XIII. ; Re Fairburn, 4 No. Cas. 478.] 

(h) See Lemayne v. Stanley, 3 Lev. 1, [1 Freem. 538 ; Wameford v. Warneford, 2 Str. 
764.] (/) 1 Wils. 313; [and see 2 Ves. 559.] 

(m) Ellis V. Smith, 1 Ves. Jr. 12. (») 17 Ves. 458. 

1 Long ». Zook, 13 Penn. St. 400. act, as evidence of revocation, would be vital. 

2 A will is valid without being sealed, Avery ». Pixlej', 4 Mass. 460, 462. As to 
unless a seal is required by statute. Piatt v. what is sufficient sealing, see Pollock i;. Glas- 
M'CuIlough, 1 M'Lean, 70; Avery ». Pixley, sell, 2 Gratt. 439. 

4 Mass. 460, 462 ; Hight V. Wilson, 1 Ball. » Riley v. Riley, 36 Ala. 496 ; Abraham ». 

94 ; Arndt v. Arndt, 1 Serg. & R. 256 ; Doe Wilkins, 17 Ark. 292 ; Vines v. Clingfost, 21 

V. Pattison, 2 Blackf. 355; Williams v. Bur- Ark. 309; Vaudruff s. RineWrt, 29 Penn. St. 

nett, Wright, 53. Sealing is required to a 232. The signing may be bv the hand of a 

will of real estate in New Ilampshire. R. S. subscribing witness. lb. But see In re Mc- 

N. H. 1842, c. 156, § 6. See 1 Greenl. Ev. Elwaine's Will, 3 C. E. Green, 499. And 

§ 272. A seal is not unfrequently annexed see as to when such signing is permitted in 

to a will where not required; and i"f the testa- Pennsylvania, Greenough v. Greenough, U 

tor, considering the seal an essential part of Penn. St. 489; Main v. Rvder, 84 Penn. St. 

the execution, should tear it off with the ex- 217. Further, Vernon «. Kirk, 30 Penn. St. 

press design thereby to revoke the will, this 218; Armstrong v. Armstrong, 29 Ala. 5-38; 

101 



•79 EXECTTTfON AND ATTESTATION 

Signature by ^* ' seems, be One of the witnesses (o) ,^ and it is 

another for *79 immaterial * that he signed his own name instead of 

tsstfltor 

the name of the testator (p). And where the testa- 
tor directed a person to sign the will for him, which that person did by 
writing at the foot, " this will was read and approved by C. F. B., by 
C. C. in the presence of, &c.," and then followed the signatures of the 
witnesses, the will was held good (q) . And on the ground that what- 
ever would be good as a signature, if made by the testator, must be 
equally good if made by his direction, an impression of his name 
stamped by his direction was held good, as a mark would also have 
been (r).] 

One signature, of course, is sufficient, though the will be contained 
One signa^ in several sheets of paper ; '■' and [it will generally be pre- 
eraf shee^ts' sumed that all the sheets were put together in the same 
sufficient. order at the time of execution as at the testator's death (s) ; 
and that any apparent alteration in their order and paging was made 
before execution (i) . The signature maj' also be on a piece of paper 
stuck or tied on at the end of the will, and containing nothing but the 
signature and attestation (m) ; but in such case the fact of the piece of 
paper having been so attached before execution must be proved (a;).] 
Where the testimonium at the end referred to the preceding sides of the 
sheet of letter paper as being subscribed by the testator, the fact of 
those sides not being so signed was held not to affect the validitj- of the 
will, as the testator evidently intended the signing and sealing of the 
As to posi- last side to apply to the whole ( y) . It was immaterial, 
tion of name, under the Statute of Frauds, in what part of the will the 
testator's name was written ; and where the whole will was in the tes- 
tator's handwriting, the name occurring in the body, as the usual 
exordium — " I, A. B., do make," &c., was decided to be a sufficient 

[(o) Ee Raylej-, 1 Ciirt. 914; Smith v. Harris, 1 Eob. 262. 

(jo) Re Clark, 2 Curt. 329. 

(j) Re Blair, 6 No. Cas. 528. 

(r) Jenkyns v. Gaisford, 32 L. J. Prob. 122. 

(s) Marsh v. Marsh, 1 Sw. & Tr. 528, 30 L. J. Prob. 77. And see Bond ». Seawell, 
3 Burr. 1776. 

(() Rees V. Rees, L. R. 3 P. & D. 84: agreeing with the presumption regarding other 
alterations, post, Chap VII. § 2, cul fin. 

(u) Cooke «.. Lambert, 32 L. J. Prob. 93; Re Horsford, L. E. 3 P. & D. 211. 

(a:) Re West, 32 L. J. Prob. 182.] 

(y) Winsor v. Pratt, 5 J. B. Moo. 484, 2 Br. & B. 650. 

Abraham v. Wilking, 17 Ark. 292 ; Jenkins's Appeal, 15 Penn. St. 281; Cinder «. Farnum, 

Will, 43 Wis. 610; Simpson v. Simpson, 27 10 Barr, 98; Martin v. Hamlin, 4 Sirnbh. 

Mo. 288. 188. When a will is written on eeveral 

1 In Missouri, such person must be a wit- sheets of paper, fastened together by a string, 
ness. And he should add that he wrote the proof, by two witnesses, of the signature of 
testator's name by his request. St. Louis the testator at the end thereof is sufficient. 
Hospital V. Weenian, 21 Jlo. 17; St. Louis under the Pennsylvania Act of Assemblv; 
Hospital V. Williams, 19 Mo. 609; Simpson and the question whether all the sheets we're 
V. Simpson, 27 Mo. 288. The same is true attached at the time of signature, or whether 
in Arkansas. Digest, 1874, ch. 135, p. 1012. there had been a subsequent fraudulent addi- 
Compare Pool «. Buffum, 3 Greg 438. tion to the instrument, is a question of fact 

2 Tonnele ». Hall, 4Comst. 140; Wikoff's for the jury. Ginderu. Farnum, supra. 

102 



OF WILLS BEFORE 1838. 



*80 



signing (2) .^ But the signature, whatever were its local position, must 
have been made with the design of authenticating the instrument ; for 
it sliould seem ihiat if the testator contemplated a further signa- 
ture which he never made, * the will must be considered as un- *80 
signed (a) , though it should be observed, that in Eight v. Price 
the point was not decided ; and the reasoning seems onlj' to apply where 
the intention of repeating the signature remained to the last unchanged ; 
for a name originally written with such design might afterwards be 
adopted by a testator as the final signature ; and such, it is probable, 
would be the presumed intention, if the testator acknowledged the in- 
strument as his will to the attesting witnesses, without alluding to any 
further act of signing.^ 



(z) Lemayne 1;. Stanlev, 3 Lev. 1, Freem. 538, 1 Eq. Ca. Ab. 403, pi. 9; Cook v. Parsons, 
Pre. Oh. 184. See also liilton v. King, 3 Lev. 86; Grayson v. Atkinson, 2 Yes. 454; Coles 
V. Trecothick. 9 Ves. 249; [compare Slennerhasset 1). Day, 2 Ba. & Be. 104, 119. The rule 
is different under 15 & 16 Vict. c. 24, post.] 

(re) Right!). Price, Dougl. 241. See also Griffin v. Griffin, 4 Ves. 197, n.; Coles ». Tre- 
cothick, 9 Ves. 249; Walker v. Walker, 1 Mer. 503; Sweetland v. Sweedand, 4 Sw. & Tr. 9, 
34 L. J. Prob. 42 ; and cases cited post. 



1 Armstrong v. Armstrong, 29 Ala. 538 ; 
SeUlon V. Coalter. 2 Va. Cas. 653; Adams 
V. Field, 21 Vt. 256. In Kentucky, the tes- 
tator's name may be in any part of the will, 
if the same be signed by him or by another, 
and acknowledged by him as his signature. 
Miles's Will, 4 Uana, I. See Allen v. Everett, 
12 B. Mon. 371. It has been held in Virginia, 
that where the testator's name was written 
only at the commeni'ement of the will, and 
nothing on the face of the paper indicated 
atSi'marively that it was intended as his sig- 
nature, the requirements of the law of that 
state had not been complied with. Ramsey 
V. Ramsey, 13 Gratt. 664. A paper not 
sicrned at the bottom, but having the testa- 
tor's name at the top, having a seal attached, 
and manifesting much deliberation and fore- 
sight 'in the disposition of the testator's prop- 
erty, was, however, held to be a good will 
of personalty in Watts v. Public Admr., 4 
Wend. 168. The statutes of New York now 
require the signatures of the testator and of 
the witnesses to be at the end of the will, 
both of real and of personal estate. Watts v. 
Pulilic Admr., supra; Lewis v. Lewis, 13 
Barb. 17; jVIcDonough v. Loughlin, 20 Barb. 
238. So the statutes of Arkansas require the 
sub-^cription at the endoi the will to be made 
and acknowledged, &c. Ark. Digest, 1874, 
ch. 135, p. 1012. So in Pennsvlvania, the will 
must be signed at the end. See Act of April, 
1833 ; Strieker v. Groves, 5 Whart. 386. So 
in Oiiio. !5tat. of 1 Vict. c. 26, § 9, requires 
the signing to be at the foot or end of the 
will. Probate under the Stat. 1 Vict, c 26, 
was allowed of a will concluding, " signed 
aii,d sealed and as for the will of me, C. E T. 
W., in the presence of us, T. H. and E. H.," 
as being signed at the foot or end thereof. 
In re Vvoodington, 2 Curteis, 324. For other 
decisions showing what will be regarded as a 
sufficient signing at the foot or end of a will, 



see Tn re Carver, 3 Curteis, 29 ; In re Davis, 
ib. 748; In re Bullock, ib. 750; In re Martin, 
ib. 754; In re Gore, ib. 758; Jermyn v. Her- 
vey, 1 Eng. L. & Eq. 633. Although the 
act, 1 Vict. c. 26, does not specify any par- 
ticular place where the witnesses are to sign, 
but declares that the will shall be signed at 
the foot or end thereof by the testator, that 
such signature shall be made or acknowl- 
edged by the testator, in the presence of two 
or more subscribing witnesses, and such wit- 
nesses shall attest and subscribe the will in 
the presence of the testator, it is held not 
to be sufficiently complied with where a will 
was signed by the testntor and the attesting 
witnesses on each of the sheets that contained 
it, but the signature of the testator alone ap- 
peared at the end of the will, and there was 
no evidence to show that the witnesses at- 
tested that signature. Ewens v. Franklin, 
33 Eng. L. & Eq. 626. 

2 The intention to sign again may, per- 
haps, be shown by parol evidence. Waller 
V. Waller, 1 Gratt. 454; Eight v. Price, 1 
Dougl. 241 ; Ramsey v. Ramsey, 13 Gratt. 
664. It has generalfv been held that in order 
to the validi'y of a will not subscribed at the 
conclusion or foot of the instrument (where 
the statute does not prescribe that the signa- 
ture shall be at the end of the will), but the 
testator's name appears at the commencement 
or in the body of the will, the will must be in 
the handwriting of the testator, and he must 
have intended the signature, wherever in- 
serted, to be the authentication of the instru- 
ment, and have contemplated no further 
signing. Catlett «. Catlett, 55 Mo. 330. See 
Waller v. Waller, 1 Gratt. 454. If the will 
close with the words, " In witness whereof I 
have hereunto set my hand," or words to 
that effect, a subscription is clearly intendi-d, 
and without it the instrument, as a will, is 
incomplete. Catlett v. Catlett, supra. The 



103 



*80 



EXECUTION AND ATTESTATION 



It will be observed that the testator is merely required by the statute 

of Car. 2, to " sign; " but it was formerly considered that, 

whether ""'' independently of this enactment, publication was necessary 

requisite. to complete the testamentary act.' Lord Hardwicke, in par- 



New York statute requires the signature to be 
at the end of the will and the end of the will, 
therefore,'i9 not necessarily where the signa- 
ture is. The matter previous to the signature 
must at least be sufEcient to constitute a com- 
plete will. See Sisters of Charity v. Kelly, 
67 N. Y. 409, where a signature within the 
attestation clause, written after the witnesses 
had signed their names, was held insufficient. 
Signature to a will may be made by mark 
even under the statute. Chase v. Kittredge, 
11 Allen, 49; Baker v. Dening, 8 Ad. & E. 
94 ; Sprague v. Luther, 8 K. I. 252 ; Guthrie 
e. Price, 23 Ark. 396; In re Cornelius's Will, 
14 Ark. 675; Cozzens's Will, 61 Pcnn. St. 
196; Higgins v. Carlton, 28 Md. 115. And 
where the testator holds the pen while an- 
other guides it, the signature is good, and 
the latter need not attest it. Vines v. Cling- 
fost, 21 Ark. 309. It is a good subscription 
to a will under the New York statutes, that 
the testator acknowledges to the witnesses 
that the will was subscribed by him, or for 
him, and adopted by him. Sisters of Charity 
V. Kelly, 67 N. Y. 409 ; Hovsradt ». King- 
man, 22 N. Y. 372; Lewis «."Lewis, 11 N. Y. 
220. See Baskin v. Baskin, 36 N. Y. 416: 
Willis V. Mott, 36 N. Y. 486. Nor need the 
testator sign in the presence of the witnesses 
in Massachusetts, acknowledgment being 
sufficient. Chase v. Kittredge, 11 Allen, 49 ; 
Ela V. Edwards, 16 Gray, 91. So in Ken- 
tucky. Sechrest v. Edwards, 4 Met. 163. 
So in Indiana. Reed v. Watson, 27 Ind. 443. 
So in Georgia. Webb v. Fleming, 30 Ga. 
808. So in Missouri. Cravens «. laulconer, 
28 Mo. 19. So in Virginia. Parramore ». 
Taylor, 11 Gratt. 220; Eosser v. Franklin, 
6 Gratt. 1. So in Illinois. Crowley v. Crow- 
ley, 80 111. 469 ; Yoe *. McCord, 74 III. 33. 
So in Vermont. Adams v. Field, 21 Vt. 256; 
Roberts v. Welch, 46 Vt. 164. Contra in 
New Jer.sey. Den v. Milton, 7 Halst. 70; 
Combs V. Jolly, 2 Green, Ch. 625; Mickle ». 
Matlack, 2 Harr. 86. And in Arkansas. 
Abraham v Wilkins, 17 Ark. 292. And in 
wills of personalty in Alabama. Ex parte 
Henry, 24 Ala. 638. The acknowledgment 
need not be made in language. ' Allison t'. 
Allison, 46 111. 61. Where all sign together, 
as part of one transaction, it may not be 
material that the signature of the testators is 
made after that of the witnesses. Sechrest 
V. Edwards, supra; O'Brien v. Gallagher, 25 
Conn. 229. But in England and in some of 
the states the rule is strict that the testator's 
signature must precede in time the subscrip- 
tion of the witnesses. Chase v. Kittredge, 
11 Allen, 49. See also Chisholm ft Ben, 
7B. Hon. 408; Swift v. Wiley, 1 B. Men. 
114; Reed v. Watson, supra; post, p. 89, 
note. Bj' the common law, a will of per- 
sonal property, written in the testator's own 
band, without seal or witnesses, is good. 



104 



Leathers v. Greenacre, 53 Me. 561. See also 
High, Appellant, 2 Dougl. (Mich.) 515; 
Parker v. Brown, 6 Gratt. 554. 

1 Publication, the act, that is, of declaring 
the instrument to be the last will of the testa- 
tor, is, in the absence of statute, unnecessary 
in this country as well as in England. Os- 
born V. Cook, 11 Cush. 532 ; Adams v. Field, 
21 Vt. 256 ; Dean v. Dean, 27 Vt. 746 ; Wat- 
son 1). Pipes, 32 Miss. 451; Verdier v. Ver- 
dier, 8 Rich. 135 ; Huff v. Huff, 41 Ga. 696. 
See Beane v. Yerby, 12 Gratt. 239; Cilley 
D. Cilley, 34 Me. 162. But, on the othfer 
hand, when the testator has not signed the 
will in the presence of the attesting witnesses 
(as to which see infra), it is probably uni- 
versally necessary for him to acknowledge 
his signature by word or act. In New York, 
publication and acknowledgment are both 
made necessary by statute. Each must be 
distinctly proved : neither alone is deemed to 
prove the other. Thus, the publication is not 
of itself sufficient evidence of the acknowl- 
edgment. Baskin v. Baskin, 36 N. Y. 416 ; 
Lewis V. Lewis, 11 N. Y. 220. Direct ac- 
knowledgment of the signature in words is 
not necessary ; but when there is no direct 
acknowledgment, the circumstances must un- 
mistakably, or at least clearly ,'imply such an 
act. lb. On the otheir hand, there "is no pre- 
scribed form of publication. Any communi- 
cation of the testator to the witnesses, where- 
by he makes known to them that he intends 
tlie instrument to take effect as his will, will 
satisfy the requirement. Coffin v. Coffin, 23 
N. Y. 9; Lewis I). Lewis, 1 Kern. 226; Brinck- 
erhoff V. Eemsen, 8 Paige, 488; S. C. 26 
Wend. 325. Accordingly, where one of the 
witnesses, in the presence of the other, ashed 
the testator if he wished the witness to sign 
or witness the paper as his will, and received 
an affirmative answer, this was held to be a 
good publication. Coffin v. Coffin, supra. 
See Tarrant v. Ware, 25 N. Y. 425. But 
some act or declaration should be shown 
whereby the testator, at the time of the exe- 
cution," indicated the instrument to be his la.-t 
will, and desired the witnesses to sign it as 
such. Baglev v. Blackman, 2 Lans. 41 ; 
Hunt V. Moolfrie, 3 Bradf. 322 ; Tunison v. 
Tunison, 4 Bradf. 138; Seguine D. Seguiue, 
2 Barb. 385; Rutherford k. Rutherford. 1 
Den. -33; Brown v. De Selding, 4 Sandf. 
10. The mere knowledge of the witnesses 
concerning the nature of the instrument does 
not satisfy the statute. Gilbert v. Knox, 52 
N. Y. 125; Mooltrie v. Hunt, 3 Bradf. 322; 
S. C. 26 Barb. 252, and reversed, 23 N. Y. 
394. Reading the will before the testator and 
the witnesses, followed by all signing at the 
time, is enough. Moore ». Moore, 2 Bradf. 
261. The act or declaration need not proceed 
directly from the testator, however; it is 
enough if the publication is by another on 



OP WILLS BEFOEE 1838. *81 

ticular, in Ross v. Ewer (J) , strenuously insisted on the necessity of a 
will of freehold lands being published. On the other hand, in Moodie 
V. Reid (c), Gibbs, C. J., expressed a decided opinion that publication 
was not an essential part of a will ; not being, as he conceived, neces- 
sary to devises by custom at common law, nor made so by the statutes 
of Hen. 8 and Car. 2 ; and subsequent judges have virtually adopted 
the latter opinion, having (as we shall presently see) decided that a 
will of freehold lands may be duly executed by a testator, without any 
formal recognition of, or allusion to, the testamentary act; indeed, 
without his uttering a syllable declaratory of the nature of the instru- 
ment. 

Another question under the same act was, whether the attesting wit- 
nesses ought to see the testator actually sign, or whether his . , , 
acknowledgment of the signature was sufficient ; as to which edgment of 
it was decided, not only that an acknowledgment would suf- before w^t- 
fice, but that it might be made before each witness sepa- nesses suffi- 
rately, and need not take place in the simultaneous presence "^" ' 
of all. The point, though doubted in some of the early cases (ef), was 
decided by Sir J. Jekyl, M. R., in Smith v. Codron (e), where A. signed 
and published a wiU in the presence of two witnesses, then a third per- 
son was called in, to whom the testator showed his name, telling him 
that was his hand, and bidding him witness it, which the witness 
did in the testator's presence, who, two hours afterwards, * told *81 
him that the paper he had subscribed was his will : this was held 
to be a good execution,^ and the doctrine was confirmed in a series of 
subsequent decisions (/)." 

As it was sufficient for the testator to sign before some, and acknowl- 
edge the signature before the rest of the witnesses, so by Acknowledg- 
necessary consequence an acknowledgment before all was ^c^'^ritneTa 
equally effectual.^ This was decided in Ellis v. Smith {g) sufflcient. 

(S) 3 Atk. 156. 

(c) 7 Taunt. 361. [And see Doe d. Spilsbury v. Bardett, 4 Ad. & Ell. 14, 6 M. & Gr. 386, 
10 CI. & Fin. 340.] 

(d) Cook ». Parsons, Pre. Ch. 184, and Dormer «. Tharland, 2 P. W. 506. ' 

(e) 2 Ves. 455, cit. 

( f) Stonehouse v. Evelvn, 3 P. W. 253 ; Grayson v. Atkinson, 2 Ves. 454; Ellis v. Smith, 
1 Ves. Jr. 11; Addv ». Grii, 8 Ves. 504; Westbeaoh v. Kenned v, 1 Ves. & B. 362; Wright 
V. Wright, 5 M. & Pay. 316, 7 Bing. 457. (g) 1 Vgs. Jr. 11. 

his behalf and authority, as by the scrivener. California (Codes & Stats. 1876, Vol. 1, Title- 
Gilbert V. Knox, supra; Smith ». Smith, 2 6, ch. 6, p. 720); Dakotah (Rev. Code, 18r4, 
Lans. 266; Peck v. Cary, 27 N. Y. 9. But Title 5, ch. 1, p. 344); New Jersey (Eevi.sioii, 
the agency of the person so acting should 1709-1877, Vol. 2, p. 1247). 
clearly appear. Peck v. Carj-. And the l But see Tvler v. Mapes, 19 Barb. 4-18".. 
publication, as well as the acknowledgment, See Allison v. Allison, 46 111. 61. 
should be made before all the witnesses. ^ Gaze «. Gaze, 3 Curteis, 451; Keiswin 
Sevmour v. Van Wyck, 2 Seld. 120; Tvler v. Keigwin, ib.607; Beane v. Yerbv, 12Grait. 
». Mapes, 19 Barb. 448. The testator's' as- 2-39; Green «. Grain, ib. 252; Webbu. Fleni- 
sent merelv is doubtless sutficiently signified ing, 30 Ga. 808; Seguine v. Seguine, 2 Barb, 
bvhis signature. Beall v. Mann, 5 Ga. 456. 385; Robinson v. Smith, 13 Abb. Pr. 359. 
T'he testator must declare the instrument to 8 Where a testator, in tlie interval between 
be his last will also in the following states: the attestation of the first and second witness 
Arkansas (Digest, 1874, ch. 135, p. 1012); to his will, inserted some immaterial words, 

105 



*81 



EXECUTION AND ATTESTATION 



by Lord Harflwlcke, with the assistance of Sir J. Strange, M. R., 
Willes, C. J., and Parker, C. B. Lord Hardwicke considered the suf- 
ficiency of the testator's declaration to have been virtually decided by 
the cases establishing that the witnesses might attest at different times ; 



and then acknowledged the execution of the 
will in the presence of both witnesses, it was 
held to be a valid execution. Bateman v. 
Mariner, 1 Murph. 176. In New Jersey, a 
will of real estate, to be valid, must be actually 
signed in the presence of the subscribing wit- 
nesses; a mere acknowledgment of his signa- 
ture, by the testator, is not sufficient. Combs 
V. Jolly, 3 N. J. Eq. 625; Mickle i). Matlack, 
2 Harr. 86. An acknowledgment or recogni- 
tion by the testator, express or implied, in the 
presence of the attesting witnesses, of the sig- 
nature of the will, is equivalent to actual 
signing. Hall v. Hall, 17 Pick. 373; Dewey 
V. Dewey, 1 Met. 349; Osborn v. Cook, 11 
Cush. 53"2; Beane v. Yerby, 12 Graft. 239; 
Small V. Small, 4 Greenl. 220; Eelbeck v. 
Cranberry, 2 Hayw. 232; Kav i'. Walton, 2 
A. K. Marsh. 74; EejTiolds v. Shirlev^, 7 Ohio, 
363 ; Adams v. Field, 21 Vt. 256. The acknowl- 
edgment of a will may be made by the testa- 
tor, without having the si£;nature before him. 
Elbeek v. Grauberry, 2 Havw. 2-32. In Welch 
i>. Welch, 2 T. B. Mon. 83, it was held that 
to prove a will devising lands, evidence by one 
subscribing witness that he signed the festa- 
trix,'s name and subscribed his own as witness 
at her request, and in the presence of her and' 
another subscribing witness, and evidence by 
the other subscribmg witness, that he heard 
her acknowledge it, and subscribed it as a 
witness at her request, and in her presence, 
is sufficient. Rash v. Parnel, 2 Harrington, 
448. See Smith v. Jones, 6 Kand. 33; Dud- 
leys V. Dudleys, 3 Leigh, 436 ;. Burwell v. 
Corbin, 1 Rand. 13i, 468; Beane «. Yerby, 12 
Gratt. 239 ; Green v. Crain, 12 Grjitt. 252. A 
will subscribed by three attesting witnesses, 
at the testator's request, and in his presence, 
he declaring it to be his will, is well attested, 
within the Gen. Stat, of Mass. c. 92, § 6, al- 
though neither of the witnesses saw him sign it 
or heard him acknowledge his signature there- 
to, and only one of themsawthe testator's name 
thereon, bewey v. Dewey, 1 Met. 349. The 
case of Hogan v. Grosvenov, 10 Met. 54, was 
in substance the same as that of Dewey v. 
Dewey, and a verdict in favor of the will was 
sustained. See Blake ». Knight, 3 Curteis, 
547. The statutes under which the above 
cases were decided do not provide in express 
terms for the making of such acknowledg- 
ment. , But the statutes of New York and of 
other states expressly provide for the acknowl- 
edgment by the testator of bis signature in 
the presence of the witnesses. See Lewis «. 
Lewis, 13 Barb. 17; Jauncey v. Thome, 2 
Barb. Ch. 40. So, also, Stat. 1, Vict. c. 26, 
§ 9. provides that the signature of the testator 
shall be made or achiwuiledffed by the testator 
in the presence of the witnesses. In In re 
Kawlins, 2 Curtei?, 328, the deceased signed 
her will not in the presence of witnesses, and 
subsequently produced her will before two 



witnesses, and said to them, " Sign your 
names to this paper." This was held not to 
be a sufficient acknowlecQ^ment of her signa- 
ture under the above section of 1 Vict. c. 26. 
See In re Warden, 2 Curteis, 334. Under 
the same section of 1 Vict. c. 26, probate was 
refused of a paper produced by the deceased 
to three witnesses, who subscribed their names 
thereto, two of the witnesses not seeing the 
signature to the paper, nor knowing that it 
was signed, the third witness deposing that 
she saw the signature of the deceased. In re 
Harrison, 2 Curteis, 863. But see Bennett v. 
Sharp, 33 Eng. L. & Eq. 618. In another 
case, which was much considered, it appeared 
that the deceased requested two persons, pres- 
ent at the same time, "to sign a paper for 
him," which they did in his presence. The 
paper was so folded, that the witnesses did 
not see any writing whatever on it; and the 
deceased did not state what was the nature of 
the paper in question. On the death of the 
deceased it was found to be his intended will. 
The will was refused probate, because the 
Stat. 1, Vict. c. 26, § 9, had not been complied 
with. Ilott V. Genge, 3 Curteis, 160 ; Jackson 
V. Jackson, cited ib. See Gaze v. Gaze, 3 
Curteis, 451; Shaw v. Neville, 33 Eng. L. 
& Eq. 615; Lewis v. Lewis, 1 Kern. 220. 
Still, under this statute it has been held that 
it is not necessary that the part)- should say, 
in express terms, "That, is my signature ; " 
it is sufficient if it clearly appears that the 
signature was existent on the will when it 
was produced to the witnesses, and was seen 
by the witnesses when they subscribed the 
w"ill. Blake v. Knight, 3 Curteis, 547 : Keig- 
win V. Keigwin, ib. 607; In re Ashmore, ib. 
756., In. New Jersey, however, by construc- 
tion of the statute "(1714) in that state for 
devising real estate, which required that the 
testator should si^n his name in the presence 
of -the witnesses, it has been held that no' 
mere acknowledgment by the testator, in the 
presence of the witnesses, of his signingthe 
mW, is sufficient. Mickle v. Matlack, 2 Har- 
rison, 86, Horublower, C. J., dissenting; Den 
V. Milton, 7 Halst. 70; Combs v. Jolly, 2 
Green, Ch. 625. A will is not regardeti as 
properly executed in New Y^ork, where neither 
of the attesting witnesses saw the deceased 
subscribe his name thereto, and neither heard 
him acknowledge tlie signature to be his, or 
heard him say what the paper was. Lewis -tf. 
Lewis, 13 Barb. 17. See further Shaw !>. Nev- 
ille 33 Eng. L. & Eq. 615; Hall c. Hall, 17 
Pick. 373, 379, 380; Dewev «- Dewey, 1 Met. 
349; Smith c. Jones, 6 Rand. 33; Dudleys v. 
Dudleys, 3 Leigh, 436; Small v. Small, 4 
Greenl. 220; Eelbeck ». Granberrv, 2 Havw. 
232; Burwell v. Corbin, 1 Rand". 131, 408; 
Rosser v. Franklin, 6 Gratt. 1; Denton e. 
Franklin, 9 B. Mon. 28; Jauncey v. Thorue, 
2 Barb. Ch. 40. 



106 



OF WILLS BEFOBE 1838. *82 

for, if the testator signed three times, there were three executions, and 
none of them good. 

The next question was, what constituted a sufficient acknowledgment 
before the witnesses.^ In Grjle v. Grj-le (h), Lord Hard- What 
wicke doubted whether it was enough for the testator to say ^"''""tecl to 
before the witness, " This is my will," without a resealing edgment. 
(for the instrument in that case had the unnecessary appendage of a 
seal) , or unless the testator had declared it to be his handwriting ; but 
the doubt appears to have vanished in Ellis v. Smith (i) , where the 
question is stated in general terms to be, whether a testator's declara- 
tion before three witnesses, that it is his will, was equivalent to signing ; 
and the conclusion, therefore, of the judges who decided that case in 
favor of the validity of the will, amounted to an affirmation of the sutH- 
cienc3' of such a declaration. 

Later adjudications placed the point beyond all doubt by going much, 
farther ; these cases having decided that where a testator, witnesses 
who had previously signed his will, merelj' requested the need not be 
witness to subscribe the memorandum of attestation, though the nature of 
they neither saw his signature, nor were made acquainted instrument, 
with the nature of the instrument they attested, the will, neverthelessy 
was duly executed according to the statute (^).^ "When we find," 
said Tindal, C. J., in British Museum v. White, " the testator 
* knew this instrument to be his will : that he produced it to the *82 
three persons, and asked them to sign the same ; that he in- 
tended them to sign it as witnesses ; that they subscribed their names 
in his presence, and returned the same identical instrument to him ; we 
think the testator did acknowledge in fact, though not in words, to the 
three witnesses, that the will was his." 

The next statutory requisition is, that the will be " attested and 
subscribed" by three witnesses.' A mark has been decided to 

(h) 2 Atk. 176. (i) 1 Ves. Jr. 11. 

(A) British Museum v. White, 3 M. & Pay. 689, 6 Bing. 310 : Wright v. Wright, 5 M. & 
Pav. 316, 7 Bing. 457; Johnson v. Johnson, 1 Cr. & M. UO, [3 Tvrw. 73; Hudson v. Parlier, 
1 Kob. 14, 8 Jur. 780 ; Gaze v. Gaze, 3 Curt. 451, 7 Jur. 803 : but'see Ilott i). Genge and other 
cases noticed post, with reference to the late Act, under which a stricter aclcnowledgment is 
required.] 

1 Tlie acknowledgment may, in New York, Missouri Statute of Wills requires that the 
precede the signing by the testator. Jackson subscribing witnesses to a will should attest, 
». .Tackson, 39 N. Y. 153. not only the act of signing, but the sanity 

2 Chase f. Kittredge, 11 Allen, 49; Elav. of the testator at the time. Withington v. 
Edwards, 16 Gray, 91 ; Harmon v. Clark, 13 Withington, 7 Mo. 589. So in Illinois it is 
Gray, 114; Osbo'rn v. Cook, 11 Gush. 532; required by statute, in order to the proof of d 
Brown t). McAlister, 34 Ind. 375; Dickie v. will, that the witnesses should state that they 
Carter, 42 111. 376; Allison v. Allison, 46 111. believed the testator to be of a sound mind 
61. and memory. R. S. 1880, ch. 148, p. 1108. 

3 Attesting means more than barely sub- Heyward v'. Hazard, 1 Bay, 335. The wit- 
scribing the name to the paper. It implies nesses, in view of the law, are placed around 
knowledge of a publication, and of the facts the testator, in order that no fraud mav be 
necessary to a legal publication. Swift v. practised upon him in the execution of the 
Wilev, 1 B.Mon. 117; Griffith v. Griffith, 5 will, and to judge of his capacity. 2 Greenl. 
B. Mon. 511. See Gerrish v. Nason, 22 Me. Ev. § 691. 

438; Sweet o. Boardinan, 1 Mass. 258. The 

107 



*82 



EXECUTION AND ATTESTATION 



What a suffi- 
cient signa- 
ture by the 
witnesses ; 

— a mark; 

— initials; 



be a Bufflcient subscription (l),^ but it is never advisable, 
where it can be avoided (and, now that the art of writing is 
so common, seldom necessary) , to employ marksmen as wit- 
nesses. [The initials of the witnesses also amount to a suf- 
ficient subscription, if placed for their signatures, as attesting 
the execution (m) ; but not if they are placed in the margin opposite to, 
and apparently for the purpose only of identifying alterations («) . A 
witness need n6t sign his own name, if the name actuall3' subscribed 
be intended to represent his name (o) : or if he write a description 
— wrong (without any name) intended to identifj- him as witness ( p) . 
name; By^ if ^ wrong name be signed with the intention of making 

it appear that the will was attested by the person to whom that name 
—sealing- belongs, instead of the actual witness, the subscription is 
— euidine insufficient (9). Putting their seals to the will is not suffl- 
the hand. cient (r) . If the witness cannot write, his hand maj- be 
guided by another person (s) ,^ or another person maj' write the wit- 
ness's name while the witness holds the top of the pen (t) ; in fact, 



(/) Harrison v. Harrison, 8 Ves. 185 ; Addy u. Grix, ib. 504 ; [Re Amiss, 2 Eob. 116, 
7 No. Cas. 274; Ee Ashmore, 3 Curt. 756. 

(m) Re Christian, 2 Rob. 110, 7 No. Cas. 265. 

(n) Re Martin, 6 No. Cas. 694, 1 Rob. 712; Re Cunningham, 1 Searle & S. 132, 29 L. J., 
Ch. 71. See the former case mentioned again p. 85. (0) Ee Olliver, 2 Spinks, 57. 

(p) Re Sperling, 33 L. J. Prob. 25. Whatever is written, it must be with the intention 
that it shall represent the writer's name or otherwise identify him. Ee Eynon, L. R. 3 P. & 
D. 93; Re Maddock, ib. 169. 

(?) Prvor v. Pryor, 29 L. J. Prob. 114. 

(r) Re'Byrd, 3 Curt. 117, 1 No. Cas. 490. 

(s) Harrison V. Elvin, 3 Q. B. 117, 2 (i. & Dav. 769; Ee Frith, 1 Sw. & Tr. 8, 27 L. J. 
Prob. 6, 4 Jur. N. S. 288. 

(0 Ee Lewis, 31 L. J. Prob. 153. But prima facie not so if the witness can write. Re 
Kilcher, 6 No. Cas. 15. 



1 Davies v. Davies, 9 Q. B. 648; White 
V. British Museum, 6 Bing. 310; Wright v. 
Wright, 7 Bing. 457; Warren v. Postle- 
thwaite, 9 Jur. 721 ; In re Maddock, L. E. 3 
P. &D. 169; Osborn v. Cook, llCush. 532; 
Small V. Small, '4 Greenl. 220; Lord ». Lord, 
58 N. H. 7; Jackson v. Van Dusen, 5 Johns. 
144; ChafEee v. Baptist Miss. Con., 10 Paige, 
85 (although the New York statute requires 
that each witness shall subscribe his name); 
Adams .». Chaplin, 1 Hill, Ch. 266; Pridgen 
V. Pridgen, 13 Ired. 259; Den v. Milton, 7 
Halst 70. It must,, however, be proved to be 
the mark of the witness. Collins ». Nicdols, 
1 Hiirr. & J. 399. Probate was granted of a 
codicil which had been produced by the testa- 
trix, all in her own handwriting, and with 
her signature thereto made, to two witnesses 
present at the same time, who at her request 
made their marks thereto, although the testa- 
trix wrote the names of the witnesses opposite 
their respective marks, and, by mistake, gave 
a wrong surname to one of them. In re Ash- 
more, 3 Curteis, 756. See 2 Greenl. Ev. 
I 677 ; Baker v. Dening. 8 Q. B. 94 ; Harrison 
V. Elvin, 3 Q. B. 117; Doe ». Davis, 11 Jur. 
182; 1 Greenl. Ev. (4th ed.) § 272; Wigani). 



Eowland, 21 Eng. L. & Eq. 132. In Vir- 
ginia it is held that one witness may sign 
the name of another witness, the latter being 
present and requesting it. iTesse v. Parker, 6 
Gratt. 57. So in Kentucky. Upchurch v. 
Upchurch, 16 B. Mon. 102. The contrary 
was decided in Horton v. Johnson, 18 Ga. 3!)6, 
unless the witness, unable to write, makes his 
mark. The validity of the attestation depends 
upon the signing of the name by the authority 
of the witness, and in his presence, and not 
(according to the rule laid down in several of 
the states) upon the fact of his making a mark 
or doing any other manual act in connection 
with the signature. Lord v. Lord, 58 N. H.7; 
Jesse 1;. Parker, 6 Gratt. 67; Upchurch c. Up- 
church, 16 B. Mon. 102. But the rule is otlier- 
wise in some of the courts, ib. The act must, 
of course, be rmlmo testnvdi. Ib.; In re Mad- 
dock, L. R. 3 P. & D. 169; In re Duggiug, 
39, L. J. P. & M. 24. 

2 Lord V. Lord, 58 N. H. 7. But acknowl- 
edgment of a previous signature is not a 
sufficient attestation; though it would be 
suJHcient in most states as to the execution 
by the testator, lb.; Chase 0. Kittredge, 11 
Allen, 49. ^ 



108 



OF WILLS BEFORE 1838. *83 

there seems to be no distinction in these respects between the Difference 
words " sign" and " subscribe ; " any act, therefore, which, between sig- 
as before noticed, would be a good signature by a testator, wkneL'^and 
would be a good signature by a witness, — with, however, ^y testator. 
these exceptions, that the subscription of the witness is required to be 
made in the presence of the testator, and must not, as in the case of a 
testator, be a signature made by some other person for the wit- 
ness, or by *the witness himself at some other time, and merely *83 
acknowledged b}^ him in the presence of the testator (m) . 

Where the will has been once attested by a witness, it is not sufficient 
for him, on a re-execution, to go over his name with a dry jj^^ ^ . 
pen ; he must do some act apparent on the face of the paper act apparent 
(x) ; otherwise it is no more than an acknowledgment.^ And ""^ ""^ p^'^^r, 
where a witness to a former execution, on attesting a will for the second 
time, did not again write her name, but after her name written on the 
first execution, wrote the name of her residence, "Bristol," Sir H. J. 
Fust considered that to be no proof of the attestation, and decided that 
the will was not properly re-executed (y) . So where a witness to a 
former execution, on attesting a re-execution of a will, wrote the day 
of the month against his former signature, and crossed one of the let- 
ters in it, not intending that the mark made by crossing the letter 
should stand for his signature ; but supposing that the addition of the 
date was equivalent to a repetition of the signature, it was held by Sir 
C. Cresswell that the wiU was not duly re-executed (z). In these cases 
the attestation was insufficient, because there was no proof that the 
word " Bristol" in the one case, and the mark across the letter in the 
other, were intended to represent the witness's signature. _ qj j 
They were nothing more than acknowledgments of the scriptive of 
former signatures. The signature must be such as is de- ^ witness. 
scriptive of the witness, whether by a mark, or by initials, or by his 
full name (a) , or by a description without name (6) ; a view which 
necessarilj' denies efficacy as a signature to the writing of the date. 

The signature of the witnesses may be placed in any part p(,g;ti„„ „( 
of the will ; ^ for instance, the will ending on the first side witness's sig- 
of a sheet of letter paper, the witnesses may sign on the °* ""^^^ 

(a) Moore v. King, 3 Curt. 2«, 2 No. Cas. 45, 7 Jur. 205; Re Cope, 2 Eob. 335; Be 
White, 2 No. Cas. 461, 7 Jur. 1045; Re Mead, 1 No. Cas. 456. 

{X) Playne v. Scriven, 1 Kob. 772, 7 No. Cas. 122, 13 Jur. 712; Ee Cunningham, 1 Searle 
& S. 132, 29 L. J. Prob. 71; Re Maddocli, L. R. 3 P. & D. 169. 

(m) Re Trevanion, 2 Eob. 311. 

(z) Charlton u. Hindmarsh, 1 Sw. & Tr. 433, 8 H. L. Ca. 160. 

(a) Per Lord Chelmsford, 8 H. L. Ca. 171. (b) Re Sperling, 33 L. J. Prob. 25. 

1 An indorsement upon the back of a will, at the end of the will ; and any unnecessary 

four years after the execution of the latter, or unreasonable blank between the testator's 

in wfiieh the testator ratifies the contents, is signature and the attestation will be fatal, 

not a re-execution ; and hence no attestation Soward ». Soward, 1 Duv. 126. The addi- 

to the indorsement will amount to an attesta- tion of a certificate of acknowledgment such 

tion of the will. Patterson v. Ransom, 55 as is made to deeds, though superfluous, is 

Ind. 402. good so far as the signature of the officer is 

i Attestation must, in Kentuckj', be made concerned as one of the witnesses to the exe- 

109 



*84 BSECUTION AND ATTESTATION 

fourth side (c) ; and the will ending on the middle of the third side, and 

two of the witnesses signing at the end, and another signing in a vacant 

space on the second side opposite the other two, was held a sufficient 

attestation by three witnesses under the Statute of Frauds {J). 

*84 But it niust of course be proved that any part * of the will which 

follows the signatures of the witnesses was written before they 

signed (e).J 

A wiU may be composed of several clauses written at distinct inter- 

Applicabiiity vals, and One memorandum of attestation subscribed to 

of attesiatioa the last part may apply to the whole, including as well what 

tiuct parts o£ was long before written as what had been recently added, 

a will; though the antecedent part bears a different date from, 

— to several and is complete in itself independently of the latter (/). 

testamentary And the same general doctrine applies to a will whose con- 
papers ; ^ 

tents are distributed through several sheets of paper, which, 

would be adequately attested by a single memorandum, provided all 

the detached parts were present when the act of attestation took place ; 

and which fact it seems would be presumed unless the contrary were 

distinctly proved {g), as would also that of the attestation being intended 

—to will and to apply to the whole. The presumption would be somewhat 

codicil. less strong, of course, when each of the several papers has 

a distinct independent character, as where one-is a will and the other 

a codicil, or where they consist of two separate codicils : [and would 

Sifi) Re Chamney, 1 Rob. 757, 7 No. Cas. 70: Re Braddock, 1 P. P. 433. 

(d) Roberts i). Phillips, 4 Ell. & Bl. 460, 24 L. J. Q. B. 171. 

(e) Re Jones, 1 tfo. Cas. 396.] (/) Carlton v. Griffin, 1 Burr. 549. 
(g) Bond v. f eawell, 3 Burr. 1775. 

cation of the will, if the other formalities re- wa« an attesting clause subscribed by two 
quired of him as a witness were performed. witnesses, and the signature of the testator; 
Murray «. Murphy, 39 Miss. 214. Under the on the second page was written the name of 
present statute in England, 1 Vict. c. 26, § 9, a fourth person, w. B. ; there was nothiug 
jt is held not to be suiBcient attestalimi for on the face of the will to indicate in what 
the witnesses to sign before the signature of capacity *' W. B." signed the will. On tlie 
the testator is affixed. Cooper ». Bockett, 3 trial, which involved the question of the va- 
Curteis, 648 ; In re Olding, 2 Curteis, 865 ; In re lidity of the will, parol evidence of its execu- 
Byrd, 3 ib. 117; In re Cox's will, 1 Jones, 321. tion was given, and (he jury found that " W. 
But in Swift v. Wiley, 1 B. Mon. 117, it was B. signed at the same time as the others, as 
held that the order of time in which the testa- an attesting witness, and that the olhei-s 
tor and witnesses subscribed their names is signed at the same time with him," and Ihat 
not material. So in Connecticut, where wit- "all three attesled the will as attesting wit- 
nesses called to witness the execution of a nesses." It was held that the same was duly 
will subscribed their names as witnesses attested so as to pass real estate, under the 
thereto, and the testator afterwards in their Statute of Frauds; that it was not necessary 
presence duly executed the same, all of which that anything should appear on the face of 
was done at one time, and for the purpose of the will to designate W. B. as a witness: 

fierfecting it as a will, the will was held to be and that it was not necessary that the sigua- 

egally executed. O'Brien v. Galaghet, 25 ture of W. B. should be under the signa"iure 

Conn. 229. In reference to the meaningand of the testator. Lord Campbell, C. J., after 

force of the word " subscribed " in the Eng- an elaborate discussion of the subject, le- 

Ksh statute, and the position upon the will in marked: " The mere requisition that the will 

which the subscribing witness's nanje should shall be siAscnbed by the witnesses, we 

appear, the case of Roberts t). Phillips, 4 Ellis think, is complied with by the witne.sses, 

& B. 450, is important. In that case it ap- who saw it executed by the testator, imme- 

peared that a testator, before 1838, made his diately signing their names on any part of it, 

will devising lands. The will was written on at his request, with the intention of attesting 

three sides of a sheet of paper; on the last it." 4 Ellis & B. 459. 

110 



OP WILLS BEFORE 1838. •SS 

fail altogether where the memorandum does not follow the whole. 
Thus where will and codicil were on different sheets found pinned 
together, an attestation clause written on the back of the will was not 
held to be applicable to the codicil without proof that it was so 
intended, and that the sheets were pinned together at the time of sub- 
scription (h). So where there is an evident intention that each paper 
or sheet shall be separately attested ; as, where a testator signed five 
sheets, and the witnesses subscribed the first four, and the fifth sheet 
contained an attestation clause only, and there was no evidence to show 
that the witnesses attested the last signature, the will was held not to 
have been properly executed («} ; and where two instruments purporting 
to be a will and codicil were written on different pages of the same 
sheet of paper, and both were signed by the testatrix, but the first 
alone was attested, the codicil was rejected (A).] 

It was held under the devising clause of the Statute of Frauds, that 
if a testator made a will attested by two witnesses, and afterwards 
made a codicil also attested by two witnesses, neither the will 
nor the codicil was adequate to the devise of freehold * lands ; for *85 
though the attesting witnesses to the respective testamentary 
papers together made up the requisite number, j^et, as the memorandum 
of attestation subscribed to the codicil was evidently not intended to 
apply to the will, it could not be so construed (I). If, however, evidence 
were adduced of such actual intention, the attestation to the codicil 
Would apply to both (m). 

[And in every case the court must be satisfied that the names were 
written animo attestandi ; and their position may for this pur- Animus at- 
pose be material : where, for instance, on one page the will testandi. 
was written, signed by the testator, and subscribed by one witness, 
and on the next page a memorandum or inventory of property was 
written, to which three names were subscribed, it was held that these 
names could not be deemed to have been so placed animo attestandi' (n) : 
though it would not necessarily follow that a person did not sign as a 
witness because he also intended his signature to serve another pur- 
pose, e.g. his acceptance of the executorship (o). 

' Where an executed will was altered, and the witnesses put their ini- 
tials in the margin opposite the alterations, it was held that the will 
was not properly re-executed (q). But this decision seems question- 
able, for the initials were intended to represent the signatures, and it 

Uh) Ee Braddock, 1 P. D. 433. 

(j) Ewens v. Franklin, 1 Deane 7, 1 Jur. N. S. 1220; Re Dilkes, L. R. 3 P. & D. 164; 
Phipps i\ Hale, ib. 166. 

(/!;) Re Taylor, 2 Rob. 411; and see per Lord Campbell, 24 L. J. Q. B. 175; Ee Pearse, 
L. R. 1 P. & D. 382.] 

(/) Lea V. Libb, Carth. 35, 3 Salk. 395. 

(m) Bond v. Seawell, 3 Burr. 1775. [But now the witnesses must be present at the same 
time. 

(n) Re Wilson, L. R. 1 P. & D. 269. See also Dunn v. Dunn, ib. 277. 

(o) Griffiths V. Griffiths, L. K. 2 P. & D. 300. (?) Ee Martin, 6 No. Gas. 694. 

Ill 



*86 EXECUTION AND ATTESTATION 

was proved (extrinsic evidence being admissible on this question (r)) 
that they were written with the intent to attest the will.] 
What consti- No particular form of words was essential to constitute 
dent atteS- ^^ attestation (s).^ It was not requisite that the memo- 
tion. randum subscribed by the witnesses should mention their 

having subscribed in the presence of the testator, though such fact, of 
course, must be clearly and distinctly proved by oral testimony, when 
-^ the validity of the wiU is called in question, whether the 

Due execu- ^ . . 

tion when memorandum of attestation records it or not (t). Where the 
presumed. death [or absence] of the witnesses prevents the obtaining 
actual proof, a compliance with the statutory requisition in all its parts 
would, it seems, even in the absence of express 
Even against *86 statement, generally be * presumed (u) ^ : [and since 
Se w?tmiss*es. ^^^ passing of the act 1 Vict, probate has been granted 

of a wiU where both the witnesses deposed that the require- 
ments of the act had not been compUed with, the court being satisfied 
by the circumstances that the evidence was mistaken (x) ; and in 
another case, where the witnesses so deposed, but not positively, their 
evidence was allowed to be rebutted by that of another person present 
at the execution, assisted by the attestation clause, whence it appeared 



(r) lb. ; Dunn ». Dunn, L. E. 1 P. & D. 277. 

(«) Under the act 1 Vict. c. 26, s 9] it is expressly dispensed with. 

(«) Hands v. James, Com/n, 531; Croft v. Pawlett, 2 Str. 1109; S. C, 8 Vin. Ab. 128, 



pi. 1; Brice v. Smith, Willes, 1; Rancliff v. Parkvns, 6 Dow, 202; [Doe v. Davies, 9 Q. B. 648; 
Hitch V. Wells, 10 Beav. 8i.] 

(«) Hands v. James; Croft i). Pawlett, supra; [Re Seagram, 3 No. Cas. 436; Ee Mustow, 
4 No. Cas. 289; Ee Johnson, 2 Curt. 341; Re Luffman, 6 No. Cas. 183; Ee Dickson, 6 ib. 
278: Trott v. Trott, 29 L. J. Prob. 156, 6 Jur. N. S. 760. 

(k) Leach v. Bates, 6 No. Cas. 699. A fortiori, where the adverse evidence of one wit- 
ness is opposed by the affidavit of the other, deceased, witness ; Wright v. Sogers, L. E., 

I P. & D. 678. 

1 2 Greenl. Ev. § 677; Jackson v. Christ- is not sufficient to rebut the presumption of 
man, 4 Wend. 277; Burgoyne v. Showier, 1 due publication arising from the attestation 
Eobertson, Eccl. 5. A will without any clause. Brown v. Clark, 77 N. Y. 369; 
words of attestation was held good in Brvan Brinckerhoof v. Eemsen, 8 Paige, 499; S. C. 
V. White, 5 Eng. L. & Eq. 579. In "Os- 26 Wend. 332; In re Kellum, 52 N. Y. 517. 
bom V. Cook, 11 Cush. 532, a will was held So, too, on the death of the witnesses, the proof 
to be well executed, although there was no of the fact of execution begets a presump- 
attestation clause except the single word tion that all the details of the fact 'were such 
"witness" preceding the signatures of the as the law requires, unless the contrary ap- 
witnesses. See Murphy v. Murphy, 24 Mo. pears on the face of the will. Deupree ». 
626; Roberta v. Phillips, 30 Eng. L. & Eq. Deupree, 45 Ga. 415, 442; Eliot v. Eliot, 10 
147. Allen, 367; Ela v. Edwards, supra; Barnes 

2 Ela 1). Edwards, 16 Gray, 91; Nickerson v. Barnes, 66 Me. 286; Chaffee ». Baptist 
V. Buck, 12 Cush. 344; Chase v. Kittredge, Miss. Con., 10 Paige, 85; Clark v. Dounorant, 

II Allen, 49; Blocker v. Hostetter, 2 Grant's 10 Leigh, 22; Fatheree v, Lawrence, 33 Miss. 
Cas. 288. The assent of a testator and a re- 622. There are, however, cases in which 
quest to attest will be inferred from a read- wills have been executed under powers pre- 
ing of the will and subsequent subscription in scribing certain forms, in which it has been 
the presence of the testator and other wit- held the evidence must show that the fonns 
nesses. Moore u: Moore, 2 Bradf. 261. It is have been complied with; and then, even 
laid down in this country that when the at- though the witnesses be dead, or cannot re- 
testation clause contains an assertion of all memoer, the presumption of compliance does 
that the law requires, it is immaterial that the not arise unless the will itself or the attesta- 
witnesses cannot swea^' affirmatively to (he tion clause so states. Deupree v. Deupree, 
facta stated therein. Mere lack of memory 45 Ga. 416, 442 ; 1 Redf . Wills, 238, 239. 

112 



OF WILLS BEFOEE 1838. *87 

that the requirements of the statute had been complied with {y). But 
where there was nothing but a formal attestation clause on one side, 
and the adverse testimony of both witnesses on the other, probate 
was refused («). And in no case will the presumption of compliance 
with the statutory requirements be made unless the will appears on the 
face of it to have been dulj- executed. If the will is lost, due execu- 
tion must be proved (a) and the testator's written declarations of the 
fact are insufficient, though accompanied by a document referred to by 
him as a copy of his will, and representing the will as duly executed (S). 
The presumption of due execution is clearly rebutted where it is sworn 
by competent persons that the names of the seeming witnesses are ficti- 
tious, and are in the testator's own handwriting (c).' 

The will, it will be observed, was [and still is] required to be sub- 
scribed by the witnesses in the presence of the testator. "Presence" 
The design of the legislature, in making this requisition, evi- "o^ whaf' 
dently was, that the testator might have ocular evidence of amounts to it. 
the identity of the instrument subscribed by the witnesses ; and this 
design has been kept in view by the courts in fixing the signifi- 
cation * of the word " presence." To constitute " presence," in *87 
the first place, it was (and, of course, still is) essential that the 
testator should be mentally capable of recognizing the act which is 
being performed before him ; for, if this power be wanting, his mere 
corporal presence would not suffice. Thus, if a testator, after having 
signed and published his will, and before the witnesses subscribe their 
names, falls into a state of insensibility (whether permanent or tempo- 
rary) the attestation is insufficient (d). 

And the testator ought not merely to possess the mental power 
of recognizing, but be actually conscious of, the transaction in 

(y) Baj'li3 s. Saver, 3 No. Cas. 22; see also Gove v. Gawen, 3 Curt. 151; Blake v. Knight, 
ib. 547 ; Pennant v. Kingscote, ib. 642 ; Re Hare, ib. 54 ; Cooper v. Bockett, ib. 648, 2 No. Caa. 391, 
10 Jiir. 931; Bvenchley «. Still, 2 Rob. 162; Chambers v. Queen's Proctor, 2 Curt. 433 ; Keating 
V. Brooks, 4 No. Cas. 253; Re Noves, ib. 284; Burgovne v. Showier, 1 Rob. 5; Thomson 
V. Hull, 16 Jur. 1144, 2 Rob. 426;"Re Attridge, 6 No." Cas. 597; Bennett v. Sharp, 1 Jur. 
N. S. 456; Foot v. Stanton, 1 Deane, 191, 2 .Jur. N. S. 380; Fanner v. Brock, 1 Deane, 187, 
2 Jur. N. S. 670; Re Holgate, 1 Sw. & Tr. 231, 5 .Jur. N. S. 251, 29 L. ,J. Prob. 161; Llovd 
0. Roberts, 12 Moo. P. C. C. 158; Re Thomas, 1 Sw. & Tr. 255, 28 L. J. Prob. 33; Gwillim 
V. Gwillim, 3 Sw. & Tr. 200, 20 L. J. Prob. 31; Cregreen ». Willoughby. 6 ,Iur. N. S. 590; 
Re Huckvale. L. R. 1 P. & D. 375 ; Smith v. Smith, ib. 143 {where witness saw testatrix 
writing, but did not see her signature). 

(0) Croft V. Croft, 4 Sw. & Tr. 10, 34 L." J. Prob. 44. 

(") As in Re Gardner, 27 L J. Prob. 55; Eckersley v. Piatt, L. R, 1 P. & D. 281. The 
contents of the will, and its existence at the testator's death, must also be proved, post, Chap. 
VII. s. 2. 

(i) Re Ripley, 1 Sw. & Tr. 68. (c) Re Lee, 4 Jur. N. S. 790.] 

(d) Right V. Price, Dougl. 241. 

1 It is not necessary that the witnesses v. Kingman, 22 N. Y. 372; Flinn v. Owen, 

should subscribe the will in each other's 58 III. Ill; Webb v. Fleming. 30 Ga. 808. 

presence. Ela ». Edwards, 16 Gray, 91; Nor is it necessary that the testator's signa- 

Dewey v. Dewey, 1 Met. 349; Chase v. Kit- ture should be shown to the witnesses at the 

tredge. 11 Allen, 49, 52; Gavlor's Appeal, time of the acknowledgment of execution. 

43 Corin. 82; Blanchard v. Blanchard, 32 Vt. Willis v. Moot, supra; Uewey v. Dewey, su- 

62; Willis v. Moot, 36 N. Y. 486; Haysrait pra; Ela v. Edwards, supra. 

VOL. I. 8 113 



*87 EXECtTTION AND ATTESTATION 



Mental con- which the witnesses are engaged ;> for if a will were at- 

SCI0USn6SS 6S" 

senti^i. tested in a secret and clandestinte manner, without the knowl- 

^edge of the testator, the fact of his being in the room in which it was 
done would not avail (e).^ Nor, on the other hand, would the circum- 
stance of the testator not being in the same room invalidate the attesta- 
tion, if it took place within his view. Thus, in Shires v. Glasscock (_/) , 
where, the testator being in extreme illness, the witnesses after he had 
signed his will withdrew into a gallery, between which and the testator's 
chamber there was a lobby with glass doors, and the glass broken in 
some places ; in this gallery the witnesses subscribed the will. It was 
proved that the testator might have seen from his bed, through the 
lobbj- and the broken glass window, the table in the gallery where 
the witnesses subscribed ; and this was adjudged to be sufficient ; 
for (it was observed) the statute required attesting in his presence to 
prevent obtruding another will in place of the true one ; it was, there- 
Sufficient if fore, enough if the testator micfht see ; ' it was not necessary 
^^iTh"''"^ that he should actually see the signing ; because if that were 
seen. the case, if a man did but turn his back, or look off, it would 

vitiate a will ; here the signing was within view of the testator ; he 
might have seen it, and that was enough. 

So, in Davy v. Smith (g) , where the testator lay in bed in one room, 
and the witnesses went through a small passage into another room, and 
there subscribed their names on a table in the middle of the room and 

(e) See Longford v. Eyre, 1 P. W. 740. (/) 2 Sallt. 688, cit. Garth. 81. 

(g) 3 Salk. 395. 

1 It follows that the witnesses must sign at he must be in a position to admit of his 
the request, actual or implied, of tlie testator. seeing them sign. Reynolds v. Reynolds, 1 
But it is no objection to the signature of wit- Speers (S. C.) 253. It is sufficient primd 
nesses under the laws of New York that the facie evidence that the attesting witnes.^es to 
witnesses are requested to sign the will by a will subscribed it in the presence of the tes- 
the draftsman, tne testator being present, tator, if he were so situated that he might 
and approving the act. Gilbert ». Knox, 52 have seen them subscribe it. Dewev ». 
N. Y. 125; Pecli v. Gary, 27 N. Y. 9. No Dewey, 1 Met. 349 ; Winchilsea »). Wauchope, 
precise form of words, addressed to each of 3 Russell, 443 ; Tod v. Winchelsea, 2 Carr. 
the wifnesses at the very time of the attestar & P. 488; Nell v. Neil, 1 Leigh, 6. An at- 
tion. is required. Any communication im- testation made in the same room with testator 
porting such request, addressed to one of the is prima fade in his presence. Neil v. Neil, 
witnesses in the presence of the other, which 1 Leigh, 6; Howard's Will, 5 T. B. Mon. 199. 
by a just interpretation of all the circum- An attestation not made in the same room is 
stances is intended for both, is sufficient, primd facie not an attestation in his presence. 
Coffin V. Coffin, 23 N. Y. 9. Further, as to Neil v. Neil, 1 Leigh, 6 ; Edelen ». Hardev, 7 
what is meant by the request of the testator Harr. & J. 61 ; 1 Greenl. Ev. § 272. The New 
to witness and subscribe the will, see Bundy York Revised Statutes have dropped the di- 
V. McICnight, 48 Ind. 502. rection in the English statute that the wit- 
2 In the case of one blind the witnesses nesses are to subscribe in the presmce of the 
must sign where the testator, if able to see, testator, and the doctrine of constructive pres- 
could see them. In re Piercy, 1 Robt. Eccl. ence is therefore rejected. 4 Kent, 515 ; Lvon 
278. It seems that tlie witnesses in such case ». Smith, 11 Barb. 124. But in New York 
sliould be within the cognizance of testator's each of the attesting witnesses must sign his 
remaining senses. Ray v. Hill, 3 Strobh. 297. name at the end of the will at the request of 
See Neil v. Neil, 1 Leigh, 6, 23; Reynolds v. the testator. Lewis v. Lewis, 13 Barb. 17. 
Reynolds, 1 Speer, 253. This request may be implied as well as ex- 
's See Russell ». Falls, 3 Harr. & M. pressed. Brown v. DeSelding, 4 Sandf. 10; 
457; Edelen i). Hardey, 7 Harr. & J. 61; Nelson v. McGifTert, 3 Barb. Ch. 158; Doe 
4 Kent, 515. 516. The testator need not f. Roe, 2 Barb. 200 ; Seguiiie ». Seguine, ib. 
actually see the witnesses sign the will, but 385. 

114 



OP "WILLS BEFORE 1838. *88 

opposite to the door, and both that door, and the door of the room 
where the testator lay, were open, so that he might have seen them 
subscribe their names if he would ; this was held to be sufficient, though 
there was no proof that the testator did see them subscribe.^ 
And if the witnesses subscribe * their names in the same room *88 
where the testator hes, though the curtain of the bed be drawn 
close, it is a good subscribing, because it is in his power to see them, 
and what is done shall be construed to be in his presence (ff) .^ 

It is not even necessary that the testator should be in the same house 
with the witnesses ; for, in Casson v. Dade (h), where a. feme Testator and 
coverte, having power to malte a writing in the nature of a witnesses 
*ill, ordered such an instrument to be prepared, and went same house. 
to her attorney's office to execute it ; but, being asthmatical, and the 
office verj- hot, she retired to her carriage to execute the will, the wit- 
nesses attending her; after having seen the execution, they returned 
into the office to subscribe it, and the carriage was put back to the win- 
dow of the office, through which it was sworn by a person in the car- 
I'iage the testatrix might have seen what passed ; Lord Thurlow was of 
opinion that the will was well executed. 

Upon the same principle it is clear, that the mere contiguity of the 
places occupied by the testator and the witnesses respec- j, ,._ 

tively will not suffice, if the testator's view of the witnesses' guity not 
proceedings is necessarily obstructed. Thus, in Eccleston tiie testator's 
V. Pettj' {{) , where the witnesses proved that the testatrix view be inter- 
signed the will in her bed-chamber, and they subscribed it in ^'^^ ' 
the hall, and it was not possible from her chamber to see what was done 
at the table in the hall, there being a passage and eight or ten turning 
stairs between those places, the will was held not to be duly attested.' 

And it was not enough, that in another part of the same room the 
testator might have perceived the witnesses, if in his actual Testator 
position he could not.* And, therefore, in Doe d. Wright mustbecapa- 

DlS of S66inff 

V. Manifold (k) , where the testator was in bed in a room in his actual 
from one part of which he might, by inclining his head into position. 

[(y) Newton v. Clarke, 2 Curt. 320.] (ft) 1 B. C. C. 99, Dick. 586. 

(j) Carth. 79, Comb. 156, 1 Show. 89, Ca. t. Holt, 222 ; [and see Re Colman, 3 Curt. 118 ; 
Ee Ellis, 2 Curt. 395: Re Newman, 1 Curt. 914.] 

(k) 1 M. & Sel. 294; [Norton v. Bazett, 1 Deane, 259, 3 Jur. N. S. 1084. 

1 See Sturdivant v. Birchett, 10 Gratt. 67 ; their names ; and more especially if by thus 
Nock V. Nock, 10 Gratt. 108. raising himself the testator/ would endanger 

2 In Russell «. Falls, 3 Harr. & M. his life. .Tones v. Tuck, 3 Jones, 202. It is 
463, 464, which was very fully considered, it not sufficient that the testator was able 
was held necessary that the testator, being ill, merely to, see the witnesses, if he was not 
should have been able to see the attestation able to see their proceedings in the attesta- 
without leaving his bed. See Doe v. JIani- tion. Graham ti. Graham, 10 Ired. 219. See 
fold, 1 M. & S. 294. It is not sufficient that further note 1, next page. 

the testator would, bv raising himself upon s Reynolds v. Reynolds, 1 Specr, 253; In 

his elbow, have the "physical ability to see re Ellis, 2 Cnrteis, 395 ; In re Colman, 3 

the subscribing witnesses to his will, if he Curteis, 118 ; Boldi-y v. Parris, 2 Cush. 433. 
could not, in fact, see them from the position ■* Neil v. Neil, 1 Leigh, 6 ; Russell v. Falls, 

in which he was lying when they subscribed 3 Harr. & M. 463. See Howard's Will, 

115 



BXECTJTION AND ATTESTATION 



the passage, have seen the witnesses attest the will, but not in the situ- 
ation in which he was, the attestation was decided not to be good. 
Lord Ellenborough said : "In favor of attestation it is presumed, 
that if the testator might see, he did see ; but I am afraid, that if we 
get beyond the rule which requires that the witnesses should be actu- 
ally within reach of the organs of sight, we shall be giving effect 
*89 to an attestation out of the devisor's * presence, as to which the 
rule is, that where the devisor cannot by possibility see the act 
doing, that is out of his presence." ^ 

[If the testator be unable to move without assistance, and have his 



5 T. B. Monr. ]99; Newton ». Clarke, 2 Cur- 
teis, 320 ; Edelen v. Hardey, 7 Harr. & J. 61 j 
In re Coleman, 3 Curteis, 118; Moore «. 
Moore, 8 Gratt. 307; Robinson v. King, 6 Ga. 
'539; Hill ». Barge, 12 Ala. C87. 

1 Under the statutes of Michigan, the 
condition and position of the testator when 
his will is attested, in reference to the act of 
signing by the witnesses, and their locality 
when signing must be such that he has 
knowledge of what is going forward, and is 
observant of the specific act in progress, and 
(unless he is blind) the signing of the wit- 
, nesses must occur where the testator, as he is 
then situated, may see them sign if he choose. 
Aikin v. Weckerly, 19 Mich. 482. And this 
is a widely prevailing rule. Chase v. Kit- 
tredge, 11 Allen, 49 ; Turner f. Cook, 36 Iiid. 
129; McElfresh v. Guard, 32 Ind. 408; Am- 
bre V. Wei.shaar, 74 III. 109 ; In re DowTiie's 
Will, 42 Wis. 66; note 2, p. 88. In Ken- 
tucky, a literal adherence to the words of the 
statute requiring that the witnesses "shall 
subscribe the will with their names in the 
presence of the testator" is not required, 
and a substantial conformity with the spirit 
of the statute is sufficient. Montgomerj' v. 
Perkins, 2 Met. (Ky.) 448. In Wisconsin, 
the signature of attesting witnesses made be- 
yond the range of the testator's yision is bad, 
though a witness, after signing, calls the tes- 
tator's attention to the act. and the act is ap- 
proved. Inre Downie's Will,42Wis. 66. And 
this appears to be the general rule. But while 
an acknowledgment of his signature is suffi- 
cient as to the testator, it is held under the 
statutes of Massachusetts, requiring witnesses 
to attest in the presence of the testator, that 
the law is not complied with by an acknowl- 
edgment on the part of a witness that a sig- 
nature made in the testator's absence is that 
of the witness. Chase v. Kittredge, 11 Allen, 
49. And the learned judge who delivered the 
opinion in this case, Mr. Justice Gray, shows 
that this is the English doctrine. Hoil v. 
Clark, 3 Mod. 219, 220; Lee v. Libb, 1 Show. 
69; Dormer v. Thurland, 2 P. Wnis. 510; 
Stonehouse ». Evelvn, 3 P. Wms. 264 ; Bac. 
Abr. Wills, D. 2; 2 Bl. Com. 377; Eccleston 
V. Speke, Garth. 81; S. C. Comb. 158; On- 
ions «. Tyrer, IP. Wms. 344; Ellis v. Smith, 
1 Ves. Jr. 10; S. C. 1 Dick. 225; Hands v. 
James, Comyns, 5^)2; Kancliffe v. Parkyns, 6 
Dow, 202, Lord Eldon. The following" deci- 
sions under the English act of 1837 (1 Vict. 



c. 26, § 9) were cited as being to the same 
effect : Re Allen, 2 Curt. Eccl. 331 ; Ke Sim- 
monds, 1 No. Cas. 409; S. C. 3 Curt. Eccl. 
79; Moore v. King, ib. 243; S. C. 2 No. Cas. 
45; riayne v. Scriven, 1 Rub. Eccl. 775; 
S. C. 7 No. Cas. 122; Re Trevanion, 2 
Rob. Eccl. 311. Other English cases were 
cited to the effect that in England the testa- 
tor must have signed the will before the wit- 
nesses signed. Re Olding, 2 Curt. Eccl. 865; 
Ke Byrd,3 Curt. Eccl. li7; Cooper ?). Bnck- 
ett, it). 659; Charlton v. Hindmar^h, 1 Swab. 
& T. 433: S. C 8 H. L. Cas. 160; and other 
cases. This is also true in Massachuselts. 
Chase v. Kittredge, 11 Allen. 49, 63. The 
Massachusetts rule, as above declared, pre- 
vails also in New York. Jackson r. Christ- 
man, 4 Wend. 282; Peck r. Car;-, 27 N. Y. 
31, 32. And, it seems, in Georgia. Duffie ». 
Corridon, 40 Ga. 122 {witness signing the 
day before the testator signed not good). . 
And in New Jersev. Mickle v. Mallack.' 2 
Harr. 86, 96, 116. 'And in North Carolina. 
Ragland v. Huntington, 1 Ired. 561; Graham 
V. Graham, 10 Ired'. 219; In re Cox"s Will, 1 
Jones, 321. And in Kentucky; Swift v. 
Wiley, 1 B. Mon. 117; Upchurch v. Up- 
church, 16 B. Mon. 102. And in Connecti- 
cut. O'Brien v. Galagher, 25 Conn. •<:29. 
Contra. Sturdivant v. Birchett, 10 Gratt. 67; 
Parramorc v. Taylor, 11 Gratt. 220; 13 Am. 
Law. Reg. 741. But an acknowledgment 
merely would be good under a statute requir- 
ing merely that the attesting witness " sign 
his name as a witness, at the end of the will, 
at the request of the testator," omitting any 
requirement of signing in the presence of the 
testator. Chasei-. Kittredge, 11 Allen, 49,61; 
Kuddon v. McDonald, 1 Bradf. 352; Vaughan 
V. Burford, 3 Bradf. 78; Hoysradt i'. Knig- 
nian, 22 N. Y. 372 ; Vaughan v. Vaughan, 
13 Am. Law Reg. 735. In Pennsylvania, 
the witnesses need not subscribe the will at all. 
Hights. Wilson, 1 DalV. 94; Rohrer «. Steh- 
man, 1 Watts, 463. Of coui-se when in tknt 
state they do sign it is inmiaterial whether 
they sign, in point of time, before the testa- 
tor or afterwards. Miller i;. McNeill, 35 
Penn. St. 217. When the witnesses are dead 
or out of the state, proof of their handwriting 
is sufficient evidence of a compliance with 
the statute. Ela v. Edwards, 16 Gray, 91; 
Nickerson v. Buck, 12 Cush. 344; Chase v. 
Kittredge, supra. 



116 



OF WILLS BEFORE 1838. *90 

face turned from the witnesses, so that it is out of his power where a tes- 
te see them, if he so wished, the attestation will be insuffl- tator is un- 
dent (l) ; and where the testator is blind, it has been de- without™ ^^ 
cided that the position of the witnesses must be such, that assistance; 
the testator, if he had had his ej-esight, might have been able j^bihid! '^^ 
to see them sign (m).] 

Where the evidence fails to show in what part of the room the sub- 
scription took place, it would be presumed that the most convenient 
was- the actual spot, and the ordinary position of a table, likely to have 
been used, would be taken into consideration (n). 

It is scarcely necessary to add, as a concluding remark on this sub- 
ject, that the nature of the occasion of the witnesses' absence, whether 
for the ease or at the solicitation of the testator or otherwise, is whoUy 
immaterial (o). 

The statute of Car. 2, it will be observed, required the witnesses to 
be ' ' credible : " which was held to mean such persons as Credibility 
were not disqualified by mental imbecility, interest, or crime, of witnesses. 
from giving testimony in a court of justice.^ The disqualification 
arising from interest has been noticed in a former chapter (p). With 
respect to crime, it will be sufficient to refer the reader to the numerous 
and valuable treatises on evidence, which are in the hands of the pro- 
fession. 

A testator may so construct his disposition as to render it necessary 
to have recourse to some document (as to anj- other extrinsic Reference 
matter), in order to elucidate or explain his intention. [The to extrinsic 
document is then said to be incorporated in the will.] As allowable.^ 
where a person by his will devises all the lands which were incorporation 
conveyed to him by a certain indenture (specifying the "'' document. 
deed), or devises lands to the uses declared by a particular indenture 
of settlement, it is clear that the indentures so referred to may be con- 
sulted for this purpose, without violating the principle of the enactment, 
.which requires an attestation by witnesses, the testator's intention to 
adopt the contents of such instrument being manifested by a will duly 
attested (g) ; and it would, it is conceived, be immaterial whether 
the paper so referred to was in * the testator's handwriting, or *90 

(I) Tribe v. Tribe, 1 Rob. 775, 13 Jur. 793, 7 Ko. Cas. 132. 

(m) Re Piercy, 1 Rob. 278, 4 No. Cas. 250.] (m) Winchilsea v. Wauchope, 3 Russ. 444. 

(0) Broderick v. Broderick, 1 P. W. 239; Machell o. Temple, 2 Show. 288. 

ip) Vide ante, p. 70. 

(q) See Habergham v. Vincent, 2 Ves. Jr. 204; also Molineux v. Molineux, Cro. Jac. 144. 

1 Under statutes of Massachusetts, 1783, lor, 1 Rich. 531 ; Workman v. Domlnick, 3 

ch. 25, "credible" witnesses means compe- Strobh. 589. So in Mississippi. Rucker ». 

tenl at the time of attestation. Hawes v. Lambdin, 12 Smed. & M. 230. See Allison 

Humphrey, 9 Pick. 350: Haven v. Hilliard, v. Allison, 4 Hawks, 141. And in Georgia, 

23 Pick. 10 : Amorv v. Fellowes, 5 Mass. 219; Hall v. Hall, 18 Ga. 40. This is probably 

Sears v. Dillingham, 12 Mass. 358. In New the universal rule. The General Statutes of 

Hampshire also. Eustis v. Parker. 1 N. H. Massachusetts now require that there shall be 

273. So in Kentuckv. Gill's Will. 2 Dana, three or more competent witnesses. Ch. 92, 

447. So in South Carolina. Taylor v. Tay- § C. 

117 



*91 EXECUTION AND ATTESTATION 

Inc rn r f ^^ ^^^^ of anj' Other person, and whether it professed to be 
of unattested testamentary or not, as it founds its claim to be received as 
document. ^^^ ^^ ^^^ ^jj^ ^^^ ^^^ j^g ^^^ independent eflfleacj', but 

on the fact of its adoption hy the attested will. But whatever be the 
precise nature of the document referred to, it must be clearly identified 
as the instrument to which the will points. In Dillon v. Harris (r), a 
paper was rejected on account of a defect of identification. The tes- 
tator had by his will referred to a certain paper,: as being in the hand- 
writing of the devisee, and which he stated himself to have placed in 
the custodj- of his executors. And it was held, that a paper found in. 
the testator's custody, and which had not been delivered by him to the 
executors, was not suflScientlj- identified, though in the devisee's hand- 
writing, as he might have written several papers ; and though it was in 
the testator's custody at his decease, there was no evidence of its having 
been in his custody when he made his will. 

[Questions similar to that raised in the last case have since the act 
1 Vict. c. 26, frequently come before the probate court. Three things 
are necessary : first, that the will should refer to some document as 
then in existence (s) ; secondly', pi'oof that the document propounded 
for probate was, in fact, written before the will was mad^ ; and, thirdly,; 
proof of the identity of such document with that referred to in the will. 
As to the first point, a clause which "ratifies and confirms a deed, 
dated, &c., and made between," &c., answers this requirement and 
incorporates the deed (<) . But there should be no ambiguity. A refer- 
ence to a document as " made or to be made " gives strong ground for 
concluding that the document had not already been made (u) . So a 
reference to persons or things "hereinafter named "(a:), or to "the 
annexed schedule " (y), is not so clear a reference to any document as 

then existing as to incorporate writings that follow the signature 
*91 of the testator and of the * witnesses, although it be proved that, 

in fact, such writings were in existence before the will was exe- 
cuted ; much less if the evidence on this last point is hesitating (z). 
But although the document was written after the execution of the will, 
it may be incorporated if the testator afterwards executes a codicU, for 

(!•) 4 BJigh, N. S. 329. 

Us) Van Straubenzee ». Monck, 3 Sw. & Tr. 6, 32 L. J. Prob. 21; Re Sunderland, L. R. 
1 P. & D. 198; Re Pascal!, lb. 606. 

(t) Sheldon it. Sheldon, 1 Rob. 81, 3 No. Cas. 254, 8 Jiir. 877; Bizzev v. Flisfht, 3 Ch. D. 
269. But sie Re Hubbard, L. R. 1 P. & D 63. and qu. ; but as the "deed referred to was 
valid per se, its rejection from the probate peems to have been immaterial. 

(u) Re Skair, 5 No. Cas. 57 ; Re Astell, ib. 489. n. See also Re Hakewill, 1 Deane, 14, 
2,Tur. N. S. 168; and Re Countess of Pembroke, 1 Sw. & Tr. 250, 1 Deane, 182, 2 Jur. N. S. 
526, is perhaps referable to this ground. 

(x) ReWatkjns, L. R. 1 P. & D. 19; Re Brewis, 33 L. J. Prob. 124; Re Dallow, L. R. 1 
P. & D. 180, 

(y) Singleton v. Tomlinson, 3 App. Ca. 413.414, per Lord Cairns. Moreover the schedule 
was not annexed but indorsed (being on tlie fourth side of a sheet of paper on which the will 
was written), a discrepancy pointed out by Lord Blackburn, ib. 425. But aa to this see Re 
Ash, 1 Deane, 14, 2 Jur.N. S. 526. 
(z) Ante, note (j). 

118 



OF WILLS BEFOBB 1838. *92 

the codicil republishes the will, and makes the will speak from the date 
of the codicil (a). The will must be so worded that, so speaking, it 
shall refer to the document as then existing (b). 

With regard to the evidence necessary to prove that the document 
propounded for probate was in existence at the date of the will, and 
that it is the same as that which is referred to therein ; if the reference 
is distinct, e. g. to date, heading, and other particulars, and if the docu- 
ment propounded agrees in these particulars with the description con- 
tained in the will, its previous existence and identity will, in the absence 
of circumstances or evidence tending to a contrary conclusion, be as- 
sumed (c). Where the reference is less distinct, yet if it be in terms 
sufHciently definite to render it capable of identification, extrinsic 
evidence is admissible, together with such internal evidence as may 
be found in the document itself, to supplj' the necessary proof. 

Thus, in Allen v. Maddock (d), an unexecuted will was held to have 
been incorporated in a duly executed codicil by the heading : " This is 
a codicil to my last will and testament," no other document having been 
found to answer to the reference. And where a document headed 
" Instructions for the will of J. Wood," disposed of the residue " in 
such manner «s I shall direct by my will to be indorsed hereon," and 
the testator afterwards made a will, which, though not indorsed on the 
" instructions," was expressed to be made in "pursuance of the instruc- 
tions for his will," no other instructions being found ; it was held that 
the " instructions" in question were incorporated in the will(e). 
The evidence in the latter case was certainly slight. * It is a *92 
circumstance frequently relied on that the document proposed 
for probate was shown to some person before execution of the wiU, as 
the paper therein referred to (ea). 

Although an incorporated document is entitled to probate — i. e. to 
be set out at length therein — there is no necessity for iso _ . , , 

. . 1 J 1 . ■ .ii . >, . „ , Probate of 

provmg it in order to bring it withm the cognizance of the incorporated 
court of construction ; for if it is not proved, the court wUl documents, 
look at the original document. Thus, in Bizzeyt;. Flight (/), —not neces- 
where A. made a voluntary settlement which, as to certain jurl^'dicti?n^ 
bank shares and mortgages, was incomplete, so that the to the court of 
shares still belonged to A. at her death, and she by wiU 

(a) Re Hunt, 2 Eob. 622; Ke Truro, L. R. 1 P. & D. 20i. 

(6) L. R. 1 P. & D. 204. (c) Swete v. Pidsley, 6 No. Cas. 190. 

(d) 11 Moore, P. C. C. 427. See also fie Countess of Durham, 3 Curt. 57, 1 No. Cas. 365, 
6 Jur. 176; Re Pewtner, i No. Cas. 479; Re Darby, ib. 427, 10 Jur. 164; Jorden v. Jorden, 
2 No. Cas. 388 ; Re Dickens, 3 Curt. 60, 1 No. Cas. 398 ; Re Ahnosnino, 1 Sw. & Tr. 508, 
29 L. J. Prob. 46 ; Re Willesford, 3 Curt. 77, 1 No. Cas. 404 ; Re Bacon, 3 No. Cas. 644 ; Re Mei- 
cer, L. R. 2 P. & D. 01 ; Re Grevea, 1 Sw. & Tr. 250, 28 L. J. Prob. 18 (where the evidence 
of identity failed); but see Re Edwards, 6 No. Cas. 306; Collier v. Langebear, 1 No. Cas. 
369; Ee Hotheron, 2 Curt. 831, 1 No. Cas. 73, would not now be followed. 

(c) Wood V. Goodlake, 4 Monthlv Law Mag. 155, 1 No. Cas. 144. Compare Re Pascall, 
L. K. 1 P. & U. 606; Ke Gill, L. R."2 P. & D. 6. 

(en) Re Smartt, 4 No. Cas. 38: Re Bacon, 3 No. Cas. 644. 

(/■) 3 Ch. D. 269. The trusts that were invalid under the settlement being incorporated ia 
and made part of the will, assumed the testamentary character in all respects, and became 
subject to ademption, &c. 

119 



*93 EXECUTION AND ATTESTATION 

" confirmed the settlement, dated," &c. : the settlement was not proved. 
Sir C. Hall, V.-C, said: "If a will confirms an instrument which is 
sufficiently identified, and probate passes leaving in the clause contain- 
ing the confirmation, the instrument must, I consider, be had regard to 
as if it were set out in the probate." He held that the effect was as 
if the testatrix had declared ' ' that the shares specified in the settle- 
ment should be held on the following trusts," and had then set out the 
trusts. So in Quihampton v. (jroing(g), where a testator referred to 
certain entries he had made in his ledger, as explaining his will, Sir G. 
Jessel, M. R., held that the ledger was incorporated with the will, and, 
though not admitted to probate, could be looked at by a court of con- 
struction, and that the entries therein were for the purposes of distribu- 
tion of the estate conclusive — i. e. the M. R. treated them as part of 
the will, and not merely as evidence. These cases remove the doubt 
regarding the competence of the court of construction expressed by Dr. 

Lushington in Sheldon v. Sheldon (A).] 
*93 * Cases in which there is reference to an existing paper, it is 

obvious, stand upon quite a different footing from those in which 
Testator can- a testator (as often occurred under the old law) attempts to 
will empower create, by a will dulj- attested, a power to dispose by a fu- 
himseif to ture unattested codicil. To allow such a codicil to become 
unattested "" supplementary to the contents of the will itself, would, it is 
codicil. obvious, tend to introduce all the evils against which the 

Statute of Frauds was directed, and, indeed, give to the will an opera- 
tion in the testator's lifetime, contrary to the fundamental law of the 
instrument. Accordingly, where a testator by a will, attested bj' three 
witnesses, devised his real estate to trustees, upon trust (subject to 
certain limitations thereby created) to convej' the same to such persons 
and for such estates as he by deed or will, attested by two witnesses, 
should appoint ; and the testator, professing to exercise this assumed 
power, executed an instrument attested by two witnesses, which he 
styled a deed-poll, and thereby carried on the series of limitations 
commenced in his will : it was decided, after much consideration, that 
this instrument operated as a codicil to the will, and, consequently, was 

(g) W. N. 1876, p. 209. See also Singleton v. Tomlinson, 3 App. Ca. 404, where probate 
had been refused: but this was not relied on. 

(A) 1 Rob. 81, 3 No. Cas. 254, 8 Jur. 877. But as the regular practice ot the Court of Pro- 
bate is to require every paper entitled to probate to be proved, and the original (Re Pewtner, 
4 No. Cas. 479), or, if" it cannot be procured, an authenticated copy (Re Dickens, 3 Curt. 60, 
1 No. Cas. 398 j Re Howden, 43 L. J. Prob. 26), to be deposited, it is inexpedient to declare 
trusts of personalty by reference to another instrument. And although where the paper is 
in the hands of strangers who refuse even to produce it (Re Battersbee, 2 Rob. 439; Re Sib- 
thorpe, L. R 1 I". V. 106) the rule is wholly dispensed with; and where the paper is of 
excessive length probate has been granted omitting the whole (Re Marquis of Lansdowne, 
3 Sw. & Tr. 194, 32 L. J. Prob. 124; Re Dundas, 32 L. J. Prob. 165), or the immaterial parts 
(Re Countess of Limerick, 2 Rob. 313), — showing that the question is one of convenience; 
yet it apijears by the foregoing cases that special application is generally necessary to procure 
a relaxation of the rule. 

The question of including documents in the probate often arises where a testator has made 
distinct wills, one of property here, another of properly abroad. Generally the former only 
need be proved here (Re Astor, 1 P. D. 150). But if one confirms the other so as to incoi-- 
porate it, Doth will be included, Re Harris, L. R. 2 P. & D. 83 ; Re Howden, 43 L.J. Prob. 26.] 

120 



OF WILLS BEFORE 1838. *94 

incapable of affecting the freehold lands, for want of an attestation by- 
three witnesses («') . 

On the same principle, it was decided, when personal property was 
disposable by a will not sufficient in point of execution to operate on 
freehold estates, that a testator could not so convert his real estate into 
personalty by a will duly attested, as to render it disposable by an un- 
attested codicil, as personal estate {k) . 

[In Stubbs V. Sargon (/) it was contended, that on the same princi- 
ple a devise of realty to " the persons who shall be in co- „, ..^ „ 
partnership with me at the time of my decease, or to gon. bevi- 

whom * I shall have disposed of my business," was *94 ce?t'a°ined*bY 
void, as leaving it for the testator by some further future event 

act, not authorized by the Statute of Frauds, to select the 
devisee. But Lord Langdale, and on appeal Lord Cottenham, held 
the devise good. Lord Cottenham said that Habergham v. Vincent (m) 
was different, because there was in that case no disposition of the prop- 
erty', but onlj' a power for the testator himself to dispose of it by 
instrument not attested according to the Statute of Frauds ; but that 
here the disposition was complete. That the devisee, indeed, was to be 
ascertained by a description contained in the will, but that such was the 
ease with many unquestionable devises where the devisees were to be 
ascertained by future natural events — e. g. devises to a second or third 
son, or by the act of a third person — e. g. where a father having two 
sons devises to such one of them as should not become entitled to an 
estate from a third person. In the latter case, the act of the third per- 
son determined who should take the father's estate. But the act was 
not testamentary ; if it was, one man would be making another man's 
will. And if not testamentary when done by a third person, it could 
not be so when done by the testator himself ; otherwise a testator could 
not devise to such person as, at his death, should be his wife or ser- 
vant. And Lord Langdale said, if the description was such as to 
distinguish the -devisee from everj- other person, it was sufficient with- 
out entering into the question whether the description was • acquired by 
the devisee after the date of the will, or by the testator's own act in the 
ordinaiy course of his affairs, or in the management of his property. 

The question is, therefore, Is the supplementary act testa- ^j^^ ^^^ ^^^^ 
mentary ? If it is, the devise is void ; if it is not, then, not be testa- 
although it is the sole act of the testator, the devise is good.] '"^"''"'y- 

(0 Habergham e. Vincent, 2 Ves. Jr. 204, 4 B. C. C. 363; Rose v. Cunvnghame, 12 Ves. 
29 ; Wilkinson v. Adam, 1 V. & B. 422 ; Whytall v. Kav, 2 Mv. & K. 765 ; [Countess FeiTaris 
». Marquis of Hertford, 3 Curt. 468, 7 Jur. 262, 2 No. Cas. 230 ; Briggs ». Penny, 3 DeG. & S. 
546 ; Jolinson v. Ball, 5 DeG. & S. 85. These cases are to be distinguished from Smith _«. 
AttersoU, 1 Russ. 266, where the paper was signed bv the trustees, and operated as an admis- 
sion of the trusts. In Metham v. Duke of Devon, 1 P. W. 530, a testator directed his exec- 
utors to pav a sum of monev as he should by deed appoint; and subsequently, by a deed 
refei-ring to the will, he inade an appointment, which the court held to be valid, on the ground 
that the deed was a part of the will, and in the nature of a codicil. The report does not state 
whether the deed was admitted to probate, as of course it ought to have been.] 

(k) See Sheddon v. Goodrich, 8 Ves. 481 ; Hooper v. Goodwin, 18 Ves. 156; Gallini v. No- 
ble, 3 Mer. 691. [(0 2 Keen, 255, 3 My. & C. 507. (m) 2 Ves. Jr. 204.] , 

121 



'*95 EXECUTION AND ATTESTATION 

In one instance > only, and that founded upon special grounds, not 
interfering with the principle in question, the freehold estate of a testa- 
General tor was, under the Statute of Frauds, indirectly liable to be 
leguMes ex- effected by an unattested codicil.^ This occurred where a 
tends to lega- testator had by a will', duly attested, charged his real estate 
unatfest^ed ^ ^ith legacies ; which charge, it was held, extended not 
codicil. merely to the legacies bequeathed by that wUl, but also to such 

as were subsequently bequeathed by an unattested codicil (n) . 
*95 * This doctrine was considered to be warranted by the rule 

applicable in the case of a general charge of debts ; for, since a 
testator may, after charging his real estate with debts, increase the 
burthen on the land to an indefinite extent, by contracting fresh debts, 
without any further direct act of oneration, it was thought that a 
charge , of legacies ought, upon the same principle, to include legacies 
given by an unattested codicil ; in short, that as a charge of debts 
extends to all debts which may happen to be owing at the testator's 
decease, so a charge of legacies' extends to all legacies which shaU- 
then appear to be bequeathed. 

If, however, a testator, instead of creating a general charge of tegaeies 
I ■ 't f th (l^^vi'ig i* *° the ordinary rule to determine what are such), 
riile which subjected his freehold estate expressly to such legacies as 
eeneraf * he should thereafter bequeath by an unattested codicil, and 
charge to direct to be paid out of his real estate, this was considered as 
q^ueathed by amounting, in eflfect, to the reservation of a power by will 
an unattested to charge, the estate ^3J an unattested codicil; and, conse- 
quently, the legacies bequeathed by such codicil did not 
affect the land. It will be perceived that such a case differs from that 
of a charge of legacies generally, in this respect, that, unless the 
codicil bequeathing a legacy expressed that the land should be charged 

(m) Hyde v. Hvde, 3 Ch. Rep. 83, 1 Eq. Ca. Ab. 409; Masters ». Masters, 1 P. W. 421; 
S. C. 2 Sq,. Ca. Ab. 192, pi. 7; Lord Inchiquiu v. French, Amb. 33; [Hannis v. Packer, ib. 
556:] Brudenell v. Houghton, 2 Atk. 268; Habergham ». Vincent, 2 Ves. Jr. 204; S. C. 4 
B. C. C. 353; Buckeridge v. Ingram, 2 Ves. Jr. 652; Sheddon ». Goodrich, 8 Ves. 481 ; Wil- 
kinson,);. Adam, 1 V. &,B. 445. [It is remarkable that this singular exception, which later 
judges have professed not to understand, formed one of the instances by which Lord Cotten- 
ham supported his reasoning in Stubbs v. Sargon.] 

1 It is clear, that where a testator creates a those obligations. Ib; 457. But see Ram on As- 
genera! charge of legacies upon his lands, in sets, c. 6, § 6, pp. 110, 111 : Hooper i>. Goodwin, 
and of the personal estate, by a will properly 18 Ves. 187. It follows that he may by the like 
executed and attested under the Statute of imperfect instrument alter or revoke all or 
Frauds, and afterwards by a codicil, not duly anv of the legacies contained in the will, and 
executed and attested to affect real estate, substitute others. Ib. The rules on this sub- 
bequeaths additional legacies, if the personal ject ai-e too well established to be disturbed, 
assets be insufficient to pay the whole, then though it may well be doubted whether thej' 
the legacies by the codicil will be charges are perfectly consistent with the Statute of 
upon the real estate, equally with those given Frauds; for, in effect, the testator disposes 
by the will. See 1 Rop. Legacies by White, of his land by an unattested codicil, when he 
456, c. 12, §2. Consistency of principle is at liberty to burden it with legacies so giv- 
would require that the testator might, by an en. See 2 Madd. Ch. 602, and cases cited; 
unattested codicil, dispose of a part or the Dunlap «. Dunlap, 4 Desaus. 305, 322. But 
whole ofhis personal estate, exempt from debts these distinctions have lost their importance 
and legacies; although such a power, like the in England, and in all states where wills of 
former, would enable him by circuity to make personal and of real estate are placed on tha 
the real estate the primary fund to answer same footing. 

122 



OF WILLS BEFORE 1838. *96 

therewith, it could not be charged ; and, therefore, it was not chargie- 
able on the land as legacy merely, but by the special onerating terms 
of an unattested testamentary instrument (o). K the testator had 
contented himself with charging his real estate with such legacies as he 
should bequeath by an unattested codicil, this would have been effect- 
ual. Thus, in Swift v. Nash (p), where a testator by his • 
will directed the produce of real estate, which he had devised charge of 
in trust for sale, to be applied in payment of the legacies jSeathed'^ 
which he might bequeath by anj' codicil or codicils to his by codicil, 
will, it was held that an annuity given by an unattested ™ 
codicil was a charge on the fund. Of course, where a testator by his 
will charges his lands with the payment of the legacies "Uerein- 
'■^ hereinafter " bequeathed, the charge does not extend to after: "iiow 
legacies bequeathed by a codicil (^r). :, construed. 

* It is to be observed also that a general charge, eitlier *96 
of debts or legacies, onerates the land only as an auxiliary 
fund, the personalty being still primarily liable ; which cir- -y^rhetiier the 
cumstance has been so often mentioned as an ingredient doctrine ap- 
in cases of this nature, as to suggest a doubt whether the reaTertatels 
rule under consideration would not be repelled by the ab- primarily 
sence of it (r), though, certainly, the analogy to a charge ' '^''''^ ' 
of debts suggests no such limitation of the doctrine ; for if a person 
bj- his will charges his real estate with his debts, the charge will extend 
to all the debts which he owes at his decease, whether the personalty 
be exempted therefrom or not. At all events, it is clear that a testa- 
tor, after having charged his real estate with legacies, without exempt- 
ing the personal estate from its primary liability, may, by an unattested 
codicil, bequeath any portion of his personalty exempt from such 
liability, which, of course, would have the same effect in augmenting 
the burthen upon the land as an increase in the amount of the leg- 
acies («). 

In accordance with the suggested limitation of the doctrine to legacies 
payable out of the general personal estate, it seems to have ^^^ chareod 
been decided that, though such legacies once charged, by a specifically 
will daly attested, might be revoked or modified bj' an un- siveiy apon 
attested codicil (t), yet, that a sum, whether annual or in 'ogabie"bv''^" 
gross, Which was charged specifically and exclusively upon unattested 
land, was susceptible of no alteration in regard to the sub- 
ject or object of the devise by means of an unattested codicil ; and the 
circumstance that a certain portion of personalty was combined with the 
real estate in the charge would not vary the principle. And, therefore, 

(o) Rose V. Cunvnghame, 12 Ves. 29. (p) 2 Kee. 20. 

(?) Bonner 1). Bonner, 13 Ve"!. -379! [Strongw. Ingram, 6 Sim. 197; Radhurn ». Jervis, 3 
Beav. 450; Earlv K. Benbow, 2 Coll. 355;] see al?o Bengongh ». Edridge, 1 Sim. 173; [Kooke 
T. Worrall. 11 Sim. 216; Fullerw. Hooper, 2 Ves. 212; Janncey i'. Att.-Gen., 3 Giff. 308. 

(r-) See however per Lord Cairns, L. R. Cli. 587.] (.5) Cbxe v. Basaett, 3 Ves. 155. 

(() Brudenell v. Boughton, 2 Atk. 268; Att.-Gen. v. Ward, 3 Ves. 327. 

123 



•97 EXECUTION AND ATTESTATION 

where a testator devised an annuity out of a certain estate, stock and 
uteiisils, it was held not to be aflfected by an unattested codicil expressly 
revoking it (m). And even where a testator by a will, dul^' attested, 
gave all his real and personal estate to trustees, upon trust, out of the 
rents of the real and the produce of the personal estate, to pay his 

debts and funeral and testamentary expenses and legacies, and, 
*97 in the next place, *to pny two life annuities ; and the testator, 

by a codicil, attested by one witness only, revoked one of the 
annuities, it was held that such annuity continued a charge upon the 
real estate (x) . It seems difficult to saj' that the annuities were not 
payable in the first instance out of the personal estate (y) ; and in this 
point of view the case stands alone (z). 

But, even where the charge on the land was confessedl}- auxiliary, 
yet it seems that if a testator, instead of expressly revoking the lega- 
cies bequeathed by his will, attempted b3'^ an unattested will to make an 
entirely new disposition of his freehold and personal estate, as this 
was operative on the personalty onlj-, the legacies continued to be a 
charge on the real estate ; because the effect of what the testator had 
done, was merely' to withdraw one of the funds on which the legacies 
were charged, and not the legacies themselves (a). And it would be 
immaterial in such a case that the will contained an express clause of 
revocation of all former wills (A). 

[Where a portion of a mixed fund, consisting of personal estate and 
Nor a mixed of the proceeds of realtj' directed to be sold, was given by 
fund. attested will, and the gift was revoked by an unattested 

codicil, it was held that the legatee was entitled to such proportion of 
the legacy as the realty bore to the personalt}' (c).] 

(u) Beckett i). Harden, 4 M. & Sel. 1. [See also Locke v. James, 11 M. & "W. 901, where a 
testator devised land charged with 600i. a year, "which he gave to " A , and gave the residue 
of his estate, after paving annuities, &c., to B. ; he then erased the " 6 " and interlined "3," 
and by ill-attef-ted codicil recognized the alteration. A. distrained, and was held entitled to 
recover the full sum. In form, perhaps, this was rather an attempt to free the land, than a 
partial revocation of the annuity ; but Parke, B., said that whether the amount had been re- 
duced or not in equity^ it made no difference at law ] 

(a;) Mortimer ». West, 2 Sim. 274. («/) See Fitzgerald i). Field, 1 Euss. 428. 

(z) See Sheddon v. Goodrich, 8 Ves. 500. See also per Lord Cairns in Kermode v. Mac- 
donald, L. R. 3 Ch. 584 (where by attested codicil personalty only was expressed to be with- 
drawn); and Coverdale v. Lewis, 30 Beav. 409, where the land was held auxiliary only. 

{«) Buckeridge v. Ingram, 2 Ves. Jr. 652. (b) Sheddou v. Goodiich, 8 ves. 499. 

[(c) Stocker v. Harbin, 3 Beav. 479] 

124 



OP WILLS BEFORE 1838. 



•97 



Section II. 



As to Personal Estate and Copyholds, 

Nuncupative wills ^ were not forbidden by the Statute of Frauds, 
but were placed under such restrictions as practically abol- gtat. 29 Car. 
ished them : it being provided (sect. 19) that no nuncupative 2, c. 3, s. 19, 

couccvmii*' 

will should be good, where the estate bequeathed exceeded nuncupative 
the value of thirty pounds, that was not proved bj' the ^'"'• 
oaths of three witnesses present at the making thereof; nor unless it 



1 States in which nuncupative wills may 
be made : — 

Alabama. Code, 1876, Title 4, ch. 2, p. 589. 

Arkansas. Digest, 1874, ch. 135, p. 1014. 

California. Codes & Stat. 1876, Vol. 1, 
Title 6, ch. 1, p. 722. 

Colorado. Gen. Laws, 1877, ch. 103, 
p. 929. 

Dakota. Rev. Code, 1877, Title 5, ch. 1, 
p. 343. 

Delaware. Rev. Code. 1874. ch. 84, p. 509. 

Florida. Bush's Digest, 1872, ch. 4, p. 76. 

Georgia. Code, 1873, Title 6, ch. 2, p. 427. 

Illinois. R. S. 1880. ch. 148, p. 1111. 

Indiana. Stat. 1876, Vol. 2, ch. 3, p. 576. 

Iowa. Rev. Code, 1880, Vol. 1, Title 16, 
ch. 2, p. 607. 

Kansas. Comp. Laws, 1879, ch. 117, 
p. 1009. 

Kentucky. Gen. Stat, 1873, ch. 113, p. 834. 

Maine. 'R. S. 1871, ch. 74, p. 565. 

Maryland. Rev. Code, 1878, art. 49, p. 421. 

Massachusetts. Gen. Stat. 1860, ch. 92, 
p. 477. 

Michigan. Comp. Laws, 1871, Vol. 2, 
ch. 154, p. 1372. 

Minnesota. Stat. 1878, ch. 47, p. 568. 

Mississippi. Rev. Code, 1871, ch. 54, 
p. 527. 

Missouri. R. S. 1879, Vol. 1, ch. 71, 
p. 08 k 

Nebraska. Gen. Stat. 1873, ch. 17, 
p. 300. 

Nevada. Comp. Laws, 1873, Vol. 1, ch. 
37, p. 200. 

New Hampshire. Gen. Laws, 1878, ch. 
193, p. 455. 

New Jersey. Revision, 1709-1877, Vol. 2, 
p. 1245. 

New York. R. S. 1875, Vol. 3, Title 1, 
ch. 6, p. 61. 

North Carolina. Battle's Revisal, 1873, 
ch. 119, p. 849. 

Ohio. R. S. 1880, Vol. 2, Title 2, ch. 1, 
p. 1440. 

Oregon. Gen. Laws, 1843-1872, ch. 64, 
p. 783. 

Peiinsvlvania. Bright. Purd. Digest, 
1700-1872, Vol. 2, p. 1475. 

Rhode Island. Gen. Stat. 1872, Title 24, 
ch 171, p. 374. 

South Carolina. R. S. 1873, Title 3, 
ch. 83, p. 447. 

Tennessee. Stat. 1871, Vol. 2, Title 3, 
ch. 1, p. 099. 



Texas. R. S. 1879, Title 99, p. 712. 

Utah. Comp. Laws, 1876, Title 14. ch. 1, 
p. 265. 

Vermont. Gen. Stat. 1862, ch. 49, p. 377. 

Virginia. Code, 1873, Title 33, ch. 118, 
p. 910. 

West Virginia. R. S. 1878, ch. 201, 
p. 1169. 

Wisconsin. R. S. 1878, ch. 103, p. 651. 

States in whicli only soldiers in actual 
service, or mariners at sea, can make nuncu- 
pative wills : — 

Kentucky. Gen. Stat. 1873, ch. 113, 
p. 834. 

Massachusetts. Gen. Stat. 1860, ch. 92, 
p. 477. 

Mmnesota. Stat. 1878, ch. 47, p. 568. 

New York. R. S. 1875, Title 1. ch. 6, p. 61. 

Oregon. Gen. Laws, 1843-1872, ch. 64, 
p. 789. 

Rhode Island. Gen. Stat. 1872, Title 24, 
ch. 171, p. 374. 

Virginia. Code, 1873, Title 33, ch. 118, 
p. 910. 

West Virginia. E. S. 1878, ch. 201, 
p. 1169. 

In California, nuncupative wills can be 
made only by soldiers in service or sailors at 
sea, or by a decedent who has been injured 
and is in immediate expectation of death 
from injuries received the same dav. Cal. 
Codes & Stats. 1876, Vol. 1, Title 6, ch. 1, 
p. 722. Also in Dakota, R. C. 1874, Title 5, 
ch. 1, p. 343. 

Slates in which nuncupative wills are 
invalid if exceeding the sums named : — 

Texas. S30. R. S. 1879, Title 99, p. 912. 

.South Carolina. $50. R. S. 1873, Title 3, 
ch. 86, p. 447. 

New Jersev. 
Vol. 2, p. 1245. 

Indiana. $100. 
p. 576. 

Maine. $100. 
565. 

Mississippi. $100. Rev. Code, 1871, ch. 
54, p. 527. 

New Hampshire. $100. Gen. Stat. 1878, 
ch. 193, p. 456. 

Nebraska. $150. Gen. Stat. 1873, ch. 
17, p. 300. 

Wisconsin. $150. E. S. 1878, ch. 103, 
p. 651. 

Delaware. $200. Rev. Code, 1874, ch. 84, 
p. 509. 



Revision, 1709-1877, 
Stat. 1876, Vol. 2, ch. 3, 
R. S. 1871, ch. 74, !>. 



125 



'98 



EXECUTION AND ATTESTATION 



were proved that the testator, a.t the time of pronouncing the same, did 
bid the persons present, or some of them, bear witness that 
*98 such was his will, or to that effect ; nor unless such * nuncupa- 
tive will were made in the last sickness of the deceased, and in 
■ the house of his or her habitation or dwelling, or where he or she had 
been resident for ten days or more next before the making of such 
will, except where such person was surprised or taken sick, being from 
his own home, and died before he returned to the place of his or. her 
dwelling. It was also enacted that after six months passed after the 
speaking of the pretended testamentary words, no testimony should be 
received, to prove any will nuncupative, except the said testimony, or 
the substance thereof, were committed to writing within six days after 
the making of the said will.^ It was nevertheless provided that any 



, Missouri. $200. R. S. 1879, Vol. 1, ch. 
71, p. 684. 

North Carolina. $200. Battle's Eevisal, 
1873, ch. 119, p. 849. 

Vermont. $200. Gen. Stat. 1862, ch. 49, 
p. 377. 

Tennessee. $250. Stat. 1871, Vol. 2, 
Title 3, ch. 1, p. 999. 

Iowa. S300. Rev. Code, 1880, Vol. 1, 
Title 16, th. 2, p. 607. 

Indiana. S300. Stat. 1876, Vol. 2, ch. 3, 
p. 576. 

Maryland. $300. Rev. Code, 1878, art. 
49, p. 421. 

Michigan. $300. Comp. Laws, 1871, Vol. 
2, ch. 154, p. 1372. 

Alabama. $500. Code, 1876, Title 4, 
ch. 2, p. 589. 

Arkansas. $500. Digest, 1874, ch. 136, 
p. 1014. 

California. $1,000. Codes & Stat. 1876, 
Vol. 1, Title 6, ch. 1, p. 722. 

Dakota. $1,000. Rev. Code, 1874, Title 
5, ch. 1, p. 343. 

Nevada. $1,000. Comp. Laws, 1873, Vol. 
1, ch. 37, p. 200. 

States in which three witnesses are required 
for nuncupative wills : — . 

Florida. Bush's Digest, 1872, ch. 4, p. 76. 

Georgia. Code, 1873, Title 6, ch. 2, p. 427. 

Maine. R. S. 18T1, ch. 74, p. 565. 

Marj'land. Kev Code, 1878, art. 49, 
p. 421. 

Nebraska. Gen. Stat. 1873, ch. 17, p. 300. 

New Hampshire. Gen. Laws, 1878, ch. 
193, p. 4SB. 

New Jersey. Revision, 1709-1877, Vol. 2, 
p. 1245. 

South Carolina. R. S. 1873, Title 3, ch. 
86, p. 447. 

Texas. R. S. 1879, Title 99, p. 712. 

Wisconsin. R. S. 1878, ch. 103, p. 651. 

States in which two witnesses are required 
for nuncupative wills : — 

Arkansas. Digest, 1874, ch. 135, p. 689. 

California. Codes & Stat. 1876, Vol. 1, 
title 6, ch. 1, p. 722. 

Colorado. Gen. Laws, 1877, ch. 103, 
p. 929. 

Dakota. Rev. Code, 1877, Title 5, ch. 1, 
p. 343. 



126 



Delaware. Rev. Code. 1874, ch. 84. p. 609. 

Illiuois. E. S. 1880, ch. 148, p. lUl. 

Indiana. Stat. 1876, Vol. 2, ch. 3, p. 
57a 

Iowa. Rev. Code, 1880, Vol. 1, Title 16, 
ch. 2. p. 607. 

Kansas. Comp. Laws, 1879, ch. 117, 
p. 1009. 

Kentucky. Gen. Stat. 1873, ch. 113, 
p. 834. 

Michigan. Comp. Laws, 1871, Vol. 2, 
ch. 154, p. 1372. 

Mississippi. Rev. Code, 1871, ch. 54, 
p. 527. 

Missouri. R. S. 1879, Vol. 1, ch. 71, 
p. 684. 

Nevada. Comp. Laws, 1873, Vol. 1, ch. 
37, p. 200. 

North Carolina. Battle's Revisal, 1873, 
ch. 119, p. 849. 

Ohio. R. S. 1880, Vol. 2, Title 2, ch. 1, 
p. 1440. 

PeunsvJvania. Bright. Purd. Digest, 
1700-1872, Vol. 2, p. 1475. 

Tennessee. Stat. 1871, Vol. 2, Title 3, 
ch. 1, p. 999. 

Utah. Comp. Laws, 1876, Title, 14 ch. 1, 
p. 265. 

In Vermont, Gen. Stat. 1862, ch. 49, 
p. 377, a memorandum must be made in 
writing by some jwrson present. 

^ Great strictness of proof is required in 
case of a nuncupative will, to show that all 
the requisites of the law have been complied 
with. Parsons v. Parsons, 2 Greenl. 298; 
Welling V. Owings, 9 Gill. 467 ; Bronson v. 
Burnett, 1 Chand. (Wis.) 136; Rankin v. 
Rankin, 9 Ircd. 156; Woods v. Ridley, 27 
Miss. 119. Thus it has been held that it 
must be made when the testator is in such 
extremity of his last sickness that there is no 
time or opportunity to make a written will. 
Yarnall's Will, 4 Eawle, 46 ; Prince v. Hazle- 
ton. 20 Johns. 502; Boyer v. Frick, 4 Watts 
& S. 357; Werkheiser r. Werkheiser, 6 Watts 
& S. 184; Reese u. HaAvthorn, 10 Gratt. 548; 
Hans ». Palmer, 21 Penn. St. 206. A nun- 
cupative will made by a consumptive person, 
nine davs before her death, was held not 
to b^ valid, in Yarnall's Will, 4 Rawle, 46. 
So where it was made the day before 



OP ■WILLS BEFOKE 1838. 



soldier, being in actual military service, or any mariner or seaman, 
being at sea (which was held to apply to seamen on board merchants' 
vessels), might dispose of his movables, wages, and personal estate, 
as before the act.^ Such wills have been subjected to peculiar regula- 
tions by various statutes (d). 

The enactment which prohibited, or rather, as we have seen, regu- 
lated nuncupative wills, was considered not to apply to a What a good 
will which was reduced into writing during the lifetime and a^wm'it'Mr- 
by the direction of the testator ; such a will, therefore, was sonaity. 
sufficient for the disposition of personal estate, though it had not been 
signed, and was never actually seen by the testator (e)." In two in- 

(d) 26 Geo. 3, c. 63; 32 Geo. 3, c. 34, s. 1; 11 Geo. 4. c. 20, ss. 48,49, 50j and2 & 3 Will. 
4, c. 40, ss. 14 & 15 [which are not affected bv 1 Vict. c. 26, see ss. ll and 12.] 

(e) See Allen v. Manning, 2 Add. 490; Ke" Taylor, 1 Hagg. 641. 



death, O'Neill v. Smith, 33 Md. 569. If 
nuncupative wills can be admitted at all in 
the case of chronic disorders, which make 
silent and slow but sure and fatal approaches, 
it is only in the very last stage and ex- 
tremity of them. Prince V. Hazleton, 20 
Johns. 502. Still, the words "last sick- 
ness " have not in all cases been held to 
mean in the very last extremity of life. 
The rule was somewhat relaxed in John- 
ston V. Glasscock, 2 Ala. 218. It must 
strictly appear that the testator specially 
called upon the witnesses to bear witness to 
the act. Bennett v. Jackson, 2 Phillim. 190; 
Winn V. Bob, 3 Leigh, 140; Haus v. Palmer, 
21 Penn. St. 296; Taylor's Appeal, 47 
Penn. St. 31. But see Baker v. Dodson, 
4 Humph. 342. Where words are drawn 
from the testator by the person interested to 
establish them, they will not constitute a 
good nuncupative will. Brown v. Brown, 
2 Murph. 350. But see Parsons v. Parsons, 
2 Greenl. 298. A nuncupative will cannot 
be established upon proof, by one witness at 
one time, how the testator desired his prop- 
erty to be disposed of, and upon proof by 
another witness at a different time, that the 
testator made the same declaration to him. 
The requisite number of witnesses must be 
present at the same time; and the ruynlio 
texfium must also be at that time. Yarnall's 
Will, 4 Rawle, 64 ; Weeden v. Bartlett, 6 
Munf. 123; Tally v. Butterworth, 10 Yerg. 
501. Where a nuncupative will was not 
made at the "habitation" of the deceased, 
nor where he had resided for " ten " davs 
next preceding, but was authenticated as the 
law required, it was held in Virginia that it 
ought to be deemed good, notwithstanding the 
deceased was very unwell when he left home, 
if afterwards he became more dangerously 
ill, and died at the place where the will was 
made. Marks v. Bryant. 4 Hen. & M. 91. 
The Virginia statute differs slipthtly in the 
wording from that of Car. 2. 'I'he Virginia 
act excepts the case " where the deceased is 
itikeii sick from home and dies," &c. The 
ijtatute of Car. 2 excepts the case where he is 
"■mrm-ised or taken sick," &o. In the act 
of Virginia (1 Kev. Code, c. 104), respecting 



nuncupative wills, the word "habitation" 
means dwelling-house. Nowlin «. Scott, 10 
Gratt. 64. See further, as to the proof of 
nuncupative wills, Dorsey v. Shepnard, 12 
Gill & J. 192; Kellv v. Kelly, 9 B. Mon. 
553 ; Burch o. Stovafl, 27 Miss'. 725. 

1 In reference to wills of seamen and those 
in actual military service, see' Florance v. 
Florance, 2 Lee, '87; Zacharias v. Collis, 3 
Phillim. 176 ; Ramsay «. Calcot, 2 Lee, 322 ; 
Euston 1). Seymour, 2 Curteis, 339; In re 
Hayes, ib. 338 ; In re Donaldson, ib. 386 ; 
Master v. Stone, 2 Lee, 339; Warren «. 
Harding, 2 R. I. 133. A nuncupative will 
mav be made by the captain of a coaster, 
while on a voyage, and at anchor in the 
mouth of a bay, and where the tide ebbs and 
flows. Hubbard v. Hubbard, 4 Seld. 196. 
A mariner at sea, being of sound mind and 
memory, and under no restraint, during his 
last sicliness and within an hour of his death, 
was inquired of as to what disposition he 
wished to make of his property. He replied 
by declaring, in the presence of four wit- 
nesses, that he wanted his wife to have all 
his personal property, and this was allowed 
as a good nuncupative will. Hubbard v. 
Hubbard, 12 Barb. 148. And in such case 
it is not necessary that he should name an 
executor. Hubba'rd v. Hubbard, 4 Seld. 
196.. 

2 See Mason v. Dunman, 1 Munf. 456; 
Phoebe t). Boggess, 1 Gratt. 129. In order to 
the validity of a nuncupative will, the 
statute of New Hampshire requires that 
three witnesses present must be requested 
to bear witness to tlie will of the testator. 
The words must be spoken by the testa- 
tor, with the intention thereby' to make a 
flnal disposition of his properly. And 
therefore verbal directions and iustnictions 
for drawing up a written will, although 
spoken in the presence of the proper number 
of witnesses required to bear witness thereto, 
and reduced to writing, and offered for pro- 
bate according to the statute, do not, in that 
state, constitute a nuncupative will. Dockum 
V. Robinson, 6 Post. 372. So in Virginia, it 
must appear that the deceased, at the time he 
spoke the alleged testamentary words, had 



127 



*99 EXECUTION AND ATTESTATION 

stances, however, the legislature imposed additional formalities of exe- 
cution, namely, in regard to estates pur autre vie, as to the devise of 
which (though transmissible as personalty, unless where the heir takes 
as special occupant) the Statute of Frauds required three witnesses, 
and stocli in the public funds, which, it was provided bj' certain acts of 
Paiiiament, should pass outy by wills attested by two witnesses. But 
these exceptions to the general rule were, in a great measure, ren- 
dered nugatory, by the doctrine established by Ripley t». Waterworth (/), 
that an executor, taking freeholds pur autre vie as special occupant 
or even in the absence of spf^cial oecupancj'^, under the statute of 
14 Geo. 2, was bound to deal with them as part of the general personal 
estate of the deceased lessee, though bequeathed by a will not attested 

bj' three witnesses. The same principle would, it is conceived, 
*99 apply to estates pur autre vie and stock * specifically bequeathed, 

which an executor would unquestionably' not be allowed to hold 
in opposition to a specific legatee claiming under an unattested will. 
Such a question, of course, cannot arise under a will which is subject 
to the present law, as the statute 1 Vict, has abolished all distinctions 
in regard to the mode of execution between the various species of 
property.^ 

Although the law, until altered bj' that statute, did not require a will 
Pvincipies of personal estate to be authenticated by an attestation, or 
adopted by exeii by tlie signature of the testator, yet, in deciding on 
courts in ad- the validity of a will whose antiquity of date {g) brings it 
thf vaUdfty" within that law, the Probate Courts do not confine them- 
of wills. selves to the mere proof of the handwriting of the testa- 

(/) 7 Ves. 425 [and see 18 Ves. 273, I Euss. 589. H M. & Wels. 323. But where the 
heir would have taken as special occupant, three witnesses were still required. Marwuod v. 
Turner, 3 P. W. 166. 

{(/) In Pechell v. Jenkinson, 2 Curt. 273, an undated and unattested codicil was found to 
a will dated in 1830. The testatrix died in January, 1839. There was no evidence to show 
when the codicil was made, and it was held that, in such a case where the deceased was as 
likely to do what she had done before as after 1 Vict. c. 26, the presumption should rather 
be that it was done before, and was therefore valid. In Re Streaker, 4 Sw. & Tr. 192. 28 L. J. 
Prob. 50, the like presumption was made regarding unattested alterations. I5ut cf. Benson 
V. Benson, L. E. 2 P, & D. 172] 

the present intention to make his will, and ' It was held in Mullen v. McKelvy. 5 

spoke the words with such intention. Winn Watts, 399, that the legality of the execution 

«. Bob. 3 Leigh, 140. See also Gibson v. of a will must be judged by the law as it wa.f 

Gibson, Walker, 364; Eeese v. Hawthorn, when it was executed, and'not as it was at the 

10 Gratt. 548. But it has been held, ifi some death of the testator. See Croften v. Illsley, 4 

coui'ts, that a paper not completed as a writ- Greenl. 134. The contrarj' is held in Georgia, 

ten will maybe established as a nuncupa- Sutton u. Chenault, 18 Ga". 1. See Hargroves 

tive will, wliere its completion is prevented v. Redd, 43 Ga. 142. A law passed after the 

by the act of God. Mason v. Dunman, 1 making of a will, and before the death of 

Munf. 456; Offut ». Offut, 3 B. Mon. 162; the testator, was regarded as not affecting 

Boofter v. Rogers, 9 Gill, 44; Frierson v. the nperalioa of the will in Brewster ». Mc- 

Beale, 7 Ga. 4.38; Parkison v. Parkison, Call, 15 Conn. 274. See Carroll v. Carroll, 

12 Smed. & M. 673; Aurand v. Will, 9 16 How. 275,281. But this rule has many 

Barr, 54. See, however. In re Hebden, 20 lintitations, and is by no means generallv 

N. J. Eq. 473; Porter's Appeal, 10 Barr, adopted. See Van Kleeck v. Dutch Churcli, 

254. As to what amounts to the anlmiis 20 Wend. 49!); Hoffman ». Hoffman, 26 Ala. 

Uilandi in the case of a nuncupative will, 535; Gr^en v. Dikeman, 18 Barb. 535; Har- 

see Broach ». Sing, 57 Miss. 115. A written groves v. Redd, supra; Gushing c. Aylwiu, 

will cannot be partly revoked by a nuncupa- 12 Met. 169; Pray ti. Waterson, ib. 2B2. 
tive codicil. Brook v. Chappell, 35 Wis. 405. 

128 



OF "WILLS BEFORE 1838, *100 

tor (A) : the history of the instrument is carefully and diligently scru- 
tinized, and with more or less jealousy in proportion as its contents 
appear to be conformable to, or irreconcilable with, the moral obliga- 
tions of the testator, and any previously avowed scheme of testamen- 
tary disposition. In tracing such history, the custody in which the 
instrument is found is, of course, most important. If the will is dis- 
covered carefully preserved among the papers of the testator, or has 
been by him deposited in the hands of a confidential and disinterested 
friend, there is a strong presumption in its favor ; while, on the other 
hand, should it come out of the custody of a person who is interested 
in its contents, suspicion is excited, and still more, if (as has some- 
times happened) the alleged depositary remains in concealment, con- 
tenting himself with transmitting the document anonymously to some 
part}' interested in maintaining its validity ; under such circumstances, 
indeed, the Ecclesiastical Courts have invariably rejected the alleged 
testamentary paper {i) . Nothing, it is obvious, could be more dan- 
gerous than to assume and recognize the validitj' of a document, thus 
stamped with every mark of suspicion, on the mere strength of evi- 
dence as to the genuineness of the signature of the deceased, see- 
ing with how much skill and success handwriting is frequently 
imitated ; and this danger though * diminished, is not excluded *100 
where the entire will (not the signature only) purports to be 
in the handwriting of the deceased (k). Where, however, the evi- 
dence of handwriting is in favor of the genuineness of the signature, 
and there is corroborative evidence, derived from circumstances, show- 
ing the probability of such a document having been executed, its valid- 
ity will be recognized (l) , 

Copyholds were held not to be within the clause of the Statute of 
Frauds which required wills to be attested by three wit- Copyholds 
nesses ; and this seems to have been the result of the nar- JJJ'g gl^^^^^g 
row construction which that section of the statute received of Frauds. 
from the courts of judicature, rather than of anj' restrictive terms in the 
enactment itself, the language of which, in the opinion of some judges 
of later times, was sufficiently comprehensive to have warranted its 
application to copyholds (tn) . It seems to have been thought, how- 
ever, that as copyholds passed bj- the surrender and will taken together, 
and not by the will alone (the. will merelj' declaring the uses of the 
surrender, and the eflect being the same as if the devisee's name had 
been inserted in the surrender) , a will of copyholds was not a devise 
or bequest of lands or tenements, within the 5th and 6th sections of the 
statute (n). The consequence was, that anj^ instrument which was 

(h) Machin v. Grindon, 2 Lee, 406; Crisp v. Walpole, 2 Hagg. 531; and other cases cited 
4 Hagg. 224. 

(i) Rutherford V. Maule, 4 Hagg. 213; Vussell v. Marriott, 1 Cnrt. 9. 

Ik) Rutherford ». Maule, 4 Hagg. 213. (/) [Wood ». Goodlake, 1 No. Cas. 144.] 

(m) See 2 P. W. 258, 1 Ves. 227, 7 East, 322. (») See 7 East, 322. 

VOL. I. 9 129 



*101 EXECtTTION AND ATTESTATION 

adequate to the testamentary disposition of personal estate was held to 
be sufficient for the devise of copyholds. 

Accordingly not only did an unattested writing, signed by the testa- 
What const!- ^"^i Operate as an effectual devise of copyholds, but testa- 
tutes a will mentary papers, neither authenticated by the signature, nor 
ancf copy-" ^ even in the handwriting of the testator, were adjudged to be 
holds. sufficient, if reduced into writing during the life of the tes- 

tator, by his direction. And though the ground upon which copyholds 
were held, originally, not to be within the statute, — namely, that the 
estate passed by the combined operation of the surrender and will, — 
did not apply to equitable interests, which cannot be the subject of a 
surrender, yet, the well-known maxim, equitas sequitur legem, required 
that they should be governed by the same rule (o) . [Equitable inter- 
ests in customary freeholds passing by surrender (or deed having the 

effect of a surrender) , and admittance, seem to have stood on 
*101 the same * footing : though on this point the authorities are not 

quite distinct (jo).] 
Cases, however, sometimes occurred under the old law, and may 
As to incom- possibly arise under the present, in which something more 
piete papers, tij^n a mere compUance with legal requirements was made 
necessary to the efficacy of the will by the testator himself; he having 
chosen to prescribe to himself a special mode of execution ; for in such 
case, if the testator afterwards neglects to complj' with the prescribed- 
formaUties, the inference to be drawn from these circumstances is, that 
he had not fully and definitively resolved on adopting the paper as his 
will.' Thus, if there is found among the papers of a testator a will, 
written in his own handwriting, and concluding with the usual words 
" In witness," &c., but to which the testator's signature is not attached, 
it is clear that such paper, bearing as it does such evident marks of 
incompleteness, is not entitled to be treated as the final will of the 
deceased {q) ; though adequate as a will in writing to satisfy the requi- 
sitions of the old law. On this ground, too, the prerogative court in 
several instances refused to grant probate of a paper, which the de- 
ceased had signed, and to which he had added a memorandum of attes- 
tation : he having died without ever making use of such memorandum, 
though he had abundant opportunitj' of doing so. Thus, in Beaty v. 
Beaty (r), where the deceased, who died on the 21st of March, 1822, 

(o) Tuffnell v. Page, 2 Atk. 37, 2 P. W. 261, n.; Carey v. Askew, 1 Cox, 244; [Wildes «. 
Davies, 1 Sm. & Giff. 475. 

(p) See Wilson »). Dent, 3 Sim. .'585, ^»'o,- contra, Hussey v. Grills, Amb. 299, which case 
is doubted, 2 Scriv. Cop. p. 569 ; Willan r. Lancaster. 3 Russ. 108, seems to have gone on the 
question, whether the requisites of the power were complied with.] 

(q) Abbott V. Peters, 4 HagR. 380. 

(r) 1 .\dd. 154; fee also Walker v. Walker, 1 Mer. 503; [Scott v. Rhodes, 1 Phillim. 12; 
Harris v. Bedford, 2 Phillim. 177 ; Stewart v. Stewart, 2 Moo. P. C. C. 193.] 

1 See MuiTv ». Murrv, 6 Watts, 353; Ex tions from the instructions, it is invalid if 

parte Henry, 24 Ala. 638. Instructions for a such variations were not made known to the 

will may properly be amplified in the will testator before execution. Davis v. Rogers, 

Itself; but, if- the will contams essential varia- 1 Houst. 44. 

130 



OF WILLS BEFORE 1838. *102 

left a testamentary paper, dated the 6th of June, 1820, signed by him, 
containing an attestation clause in the following words : 
'•Signed, sealed, and delivered in the presence of," but jectedon' 
which clause was not subscribed by any witnesses.^ A per- accouutof an 

•J J i- uncompleted 

son who had attested a former will of the deceased, proved fovm of at> 
a con\ersation with him, in which the deceased said, that he ''=^"'"'"- 
had destroyed the will formerly attested by him, and had made another 
(meaning, it should seem, the paper in question) ; Sir J. NichoU said : 
" As the natural inference to be drawn from an attestation clause at 
the foot of a testamentary paper is, that the writer meant to execute it 
in tlie presence of witnesses, and that it was incomplete, in his appre- 
hension of it, till that operation was performed, the presumption 
of law is against a testamentary paper with an * attestation *102 
clause not subscribed by witnesses." ^ The learned judge pro- 
ceeded to observe, that "the presumption against an instrument so 
circumstanced was a slight one,^ where the instrument, lilie that before 
the court, was perfect in all other respects (s) . Slight as it was, how- 
ever, it must be rebutted by some extrinsic evidence of the testator 
intending the instrument to operate in its subsisting state, before it 
could be admitted to probate." * In reference to tlie deceased's con- 
versation with the attesting witness of the former will, the learned judge 
observed, that the mere vague declarations of testators that they have 
made their wills, are not always to be implicitly relied on ; and can 
never, standing singly, supplj' proof of due execution, or, consequently, 
of what is to be taken in lieu of it. In common parlance, a man may 
well say, that he has made a will, when he has written a testamentary 
paper, though unfinished (<). 

(s) See also Doker «. Goff, 2 Add. 42. 

{t) Tiieso cases appear to have overruled some early decisions, in which imperfect papers 
were admitted to probate as wills; unless. those decisions can be referred to the principle next 
adverted to in the text, which seems doubtful, as but little allusion is made in them to the 
point now so much regarded, — whether the non-completion of the instrument was the conse- 
quence of the voluntary neglect of the deceased, or of inevitable accident. See Cobbold v. 
Baas, 4 Ves. 200, n. ; Haberfield v. Browning, ib. In Roe d. Oilman v. Heyhoe, 2 W. Bl. 
1114, an instrument which was signed only was held to be a valid will for devising copv- 
holds (having been proved in the Ecclesiastical Court), though in the testimonium clause it 
was referred to as being under the hand and seal of the testator. From the evidence, how- 
ever, it appeared that the testator had subsequently treated it as his will. [See further on 
this subject, 1 Wms. Exors. pt. i., bk. ii., c. ii., s. 2.j 

' Pett ». Hake, 3 Curtois, 612. A holo- ris v. Bedford, 2 Phillim. 177; Matthews v. 

graph will, with the name of a testator in the Warner, 4 Ves. 180; 5 Ves. 23; Thomas v. 

tommencement, but not subscribed, with a Wall, 3 Phillim. 23; Robeson v. Kea, 4 Dev. 

blank left for the date, and containing an at- 301; Waller ». Waller, 1 Gratt. 454: Rochelle 

testation clause, but without witnesses, was v. Rochelle. 10 Leigh, 125; Watts v. Public 

held not to be well executed in Waller e. Admr., 4 Wend. 1G8. 

Waller, 1 Gratt. 454. See Tilghman v. SteUr 3 Harris w. Bedford, Thomas i'. Wall, su- 

art, 4 Harr. & J. 156; Watts ii.-public Admr., pra; Buckle ». Buckle, 3 Phillim. 323 ; In re 

4 Wend. 108. An in^trament with the requi- Jerram, 1 Hagg. 550 ; Doker v. Voff, 2 Add. 

site number of witnesses, one of whom is Eccl. 42. 

ducided to bo incompetent, may, nevertheless, < Harris v. Bedford, Beaty s. Beaty, supra ; 

be proved as a holograph wiU'in North Garo- In re Hurrill, 1 Hagg. 252; In re Wenlock, 1 

lina. Brown v. Beaver, 3 Jones, 516. See Hagg, 551; In re Edmonds, 1 Hagg, 698; 

Outlaw V. Hurdle, 1 Jones, 150. Bragge r. Dyer, 3 Hagg. 207. 

2 See Scott o, Rhodes, 1 Phillim. 19 ; Har- 

131 



*103 EXECTJTIOK AND ATTESTATION 

Where, however, the testator's design of perfecting the paper is frus- 
_^. . . trated by sudden death, or insanity, or any other involuntary 
where the preventing cause, no inference of the absence of matured 
testator is testamentary intention arises from the imperfect state of 
from per- the document, which, therefore, notwithstanding its defect, 
conducing^ will be accepted as the will of the deceased, provided it fully 
act of authen- dlscloses his testamentary scheme.^ As where an attorney 
ica ion. j^^^ taken down from the deceased's own mouth a statement 
of his intentions respecting his property, which was read over to, and 
approved by him, and a fair copy directed to be made, and brought to 
him the next morning, to be executed as a will ; but the testator died 
in the course of the night. Sir J. NichoU held the direction to the 
attorney to make a fair copy, and to bring it the next morning for exe- 
cution, to be conclusive of the testator having fullj' made up his mind 
on the subject of his will ; and accordingly' pronounced in favor of the 
testamentary paper (?«) ? 

Whatanade- In order to warrant the reception of the unfinished 

venthig™" *103 paper, it *is not necessary' that there should have 
cause. been a physical impossibility of the testator's com- 

pleting it before his dissolution ; it is enough that the obstacle was such 
as to account for its being left incomplete, without having recourse to 
the supposition of an immaturity or change of testamentarj^ intention.' 
Thus, where a person went to the office of his attornej-, on the 10th of 
December, and gave instructions for his will, promising to call and 
execute the will when prepared, which he never did, though he lived 
to the 15th ; but, as it appeared that the deceased did not afterwards 
leave, his house, the state of his health being such as to render his doing 
so inconvenient, though not impossible ; and as an anxietj', expressed 
to the attorney, to conceal it from his (the deceased's) wife, supplied a 
reason for his not sending for the will to be executed at home, the court 
pronounced in favor of the written instructions taken down by the attor- 
ney, on the oral dictation of the deceased (x) . 

(a) Huntington e. Huntington, 2 Phillim. 213; see also Carey v. Askew, 1 Cox, 241. 
\x) Allen ». Manning, 2 Add. 490. 

1 Gaskins ». Gaskins, 3 Ired. 158. See be a physical cause. The existence of such 

Rohrer ». Stehman, 1 Watts, 442. mental cause as delirium incapacitates the tes- 

'2 A paper not completed as a written will tator from completing the will. Jackson c. 
may, as has elsewhere been stated (ante,p. 98, Moore, 14 La. Ann. 213. See furtlier, Asay 
note 2), sometimes be established as a nuncu- ti. Hoover, 5 Barr, 21 ; Grabill «. Barr, ib. 
pative will. Offut v. Oftut, 3 B. Mou. 162; 441; Dunlopj). Dunlop. 10 Watts, 153; Stick- 
Phoebe i). Bo'ggess,lGratt. 129: Masons. Dun- er V. Groves, 5 Whart. 38G, as to signatures 
man, 1 Munf . 456. Still it must appear to con- made on behalf of the testator. Though 
tain the final determination of the testator as some short time has elapsed between tlie 
to the disposition of the estate, and his whole period when it was in his power to have exc- 
will respecting it. Rochelle v. Rochelle, 10 cuted formally such writing and that when 
Leigh, 125 ; Malone v. Harper, 2 Stew. & P. he was so incapacitated, vet if such delav 
454; Doekum «. Robinson, 6 Foster, 372; ijroceeded merely from convenience, and mil 
Winn 1). Bob, 3 Leigh, 140; Reese ». Haw- from any hesitancy as to the disposition he 
thorn, 10 Graft. 548. wished to make, or any desire to make 

> Gaskins v. Gaskins, 3 Ired. 158. The changes therein, the paper-writing is a good 

cause which excuses a testator from signing will. Showers v. Showers, 27 Penn. St. 

his name, when he knows how to sign, must 485. 

132 



OF WILLS BEFOiRB 1838. *104 

But this doctrine in favor of imperfect papers obtains only, where 
the defect is in regard to some formal or authenticating act, Contents of 
and not where it applies to the contents of the instrument : ^^^ ^^^^ 

„ .„ . . , , must be 

tor, II in its actual state the paper contains only a partial complete. 
disclosure of the testamentary scheme of the deceased, it necessarily 
fails of effect, even though its ^completion was prevented by circum- 
stances bej'ond his control.* And, therefore, where a person while 
dictating his will to an amanuensis, is stopped by sudden decease, or 
the rapid declension of his mental or physical powers, such paper can- 
not be admitted to probate, as containing his entire will, without the 
most unequivocal testimonj^ that the deceased considered it as finished ; 
and the fact that the paper professes to dispose of the deceased's whole 
estate is not conclusive as to its completeness, because testators not 
unfrequently begin with such a universal disposition, and then proceed 
to bequeath specific portions of their propertj?, by way of exception 
thereout. And the inference that the alleged wlU discloses part only 
of the intended disposition, would be strengthened by the circumstance 
of its not embracing persons, who, from their intimate relationship to 
the deceased, and from the contents of a prior revoked will, it was 
rather to be expected would have been primary objects of his consider- 
ation (y). 

* In short, the presumption is always against a paper which *104 
bears self-evident marks of being unfinished ; ^ and it be- 
hoves those who assert its testamentarj' character distinctly against un-" 
to show either that the deceased intended the paper in its finished 
actual condition to operate as his will, or that he was pre- P^f"""*' 
vented by involuntary accident from completing it (z) .' And probate 
will not be granted of such defective papers, without the consent or 
citation of the next of kin (a) . 

It ought to be observed, however, that we are not to rank among 
inchoate or unfinished testamentary papers, one which is informal 
shown to have been intended to perform the oflSce of a fe'lfded as a 
present wiU (if the expression may be allowed), though present will. 
executed for a temporary purpose, as appears by the testator having 
designated it a " memorandum of an intended will," or " head of in- 

(y) Montefiore v. Montefiore, 2 Add. 354; see also Griffin v. Griffin, 4 Ves. 197, n. This 
case afforded two sufficient grounds for the rejection of the paper : first, that it was not the 
whole will; and, secondly, that its completion was not prevented by inevitable circumstances. 
[But loss of part of a will once complete does not necessarily exclude the remainder from 
probate, Sugden v. Lord St. Leonards, 1 P. D. 154.] 

(z) Reay v. Cowcher, 1 Hagg. 75, 2 Hagg. 249; Wood v. Medley, 1 Hagg. 661; Re Rob- 
inson, ib. 643; Bragge v. Dyer, 3 Hagg. 207; Gillow v. Bourne, 4 Hagg. 192. As to the 
contrary presumption in favor of a regularly executed and apparently complete will, vide 
Shadbolt V. Waugh. 3 Hagg. 570; Blewitt v. Blewitt, 4 Hagg. 410. 

(«) He Adams, 3 Hagg. 258. 

1 See Rochelle v. Rochelle, 10 Leigh, 125 ; Admr. v. Watts, 1 Paige, 347, where Mr. Chan- 
Murry v. Murry, 6 Watts, 353. cellor Walworth reviews many of the cases 

2 Pett w. Hake, 3 Curteis, 612; McLean!), on unfinished and incomplete testamentary 
McLean, 6 Humph. 452. papers. S. C. 4 Wend. 168. 

3 McLean v. Mcl^ean, supra. See Public 

133 



*105 EXECUTION AND ATTESTATION 

structions," or " a sketch of an intended will which I intend to make 
when I get home," &c. And it has frequently occarred that a testator 
has ultimately adopted as his final will a paper so originally designed as 
instructions for, or in contemplation of, a more formal testament (J) . 

In all such cases, however, the Ecclesiastical Court required very 
distinct evidence of a testator eventually adhering to and adopting, as 
his deliberate will, the preliminary document, in case he afterwards 
lived long enough to have executed a more complete instrument (c). 
But cases of this kind depend so much upon their particular circum- 
stances, that little is to be learnt from general positions ; and the in- 
quirer into the subject is recommended to consult the cases referred 
to below, a fuU statement of which the limits of the present work do 
not allow.* 



*105 * Section III. 

Execution and Attestation of Wills made since the Tear 1837. 

The statute 1 Vict. c. 26 (s. 9), provides, "That no will shall be 
Execution of valid unless it shall be in writing, and executed in manner 
since the year hereinafter mentioned ; (that is to say) it shall be signed at 
183T. the foot or end thereof by the testator, or by some other 

person in his presence, and by his direction,^ and such signature shall 
be made or acknowledged by the testator in the presence of two or 
more witnesses present at the same time ; and such witnesses shall 
attest {d) and shall subscribe the will in the presence of the testator, 
but no form of attestation shall be necessary." 

[The provision in this enactment requiring the signature of the tes- 
Provision re- tator to be at the ' ' foot or end " of the will (which was evi- 
quiring the dentlv intended only to do away with the rule before noticed, 

sie;nature to '' „ , ... 

be at the foot that the name of the testator written m the commencement, 
or end; thus: "I, A. B., do make, &c.," was a sufficient signa- 

ture) , seems at first to have answered the purpose intended ; sub- 
sequently, however, the Ecclesiastical Courts came to the conclusion 
that the words "foot or end" were to be construed strictly, and that 

(b) Barwick v. Mullings, 2 Hagg. 225 ; Hattatt ». Hattatt, 4 Hagg. 211 ; Torre v. Castle, 
1 Curt. 303; [1 Wms. Exors. 62 et seq., 6th ed.] 

(c) Dingle v. Dingle, 4 Hagg. 388; Coppin ». Dillon, ib. 361. [A subsequent complete 
will of course supersedes "Instructions for a Will." But sometimes the subsequent will 
refers to and incorporates the instructions ; see Wood v. Goodlake, 1 No. Cas. 144.] 

(d) The word " attest " is omitted from the corresponding Act of the Indian Council, see 
6 iVIoo. P. C. C. 137. 

1 See Popple u. Cunison, 1 Add. 377; " Under the Statute of Missouri, the per- 

Sharp V. Sharp, 2 Leigh, 249; Mitchell v. son signing the name of the testator, at his 

Mitchell, 2 Hagg. 74; Public Admr.i;. Watts, request, must himself witness it, and state 

1 Paige, 347; S. C. 4 Wend. 168; Hocker v. that fact, or the will is void. McGee v. Por- 

Hocker, 4 Gratt. 277. ter, 14 Mo. 611; ante, p. 79, note 1. 

134 



OP WILLS SINCE 1837. *106 

if the signature did not immediately follow under the dispositive part 
of the will, and in such a manner that nothing could be written be- 
tween the signature and the last words, the will was not properlj^ exe- 
cuted (e) .^ To obviate the inconveniences arising from these decisions, 
it was enacted by stat. 15 & 16 Vict. c. 24 : — 

" 1. That where by an act of 1 Vict. (c. 26), it is enacted that no 
will shall be valid unless it shall be signed at the foot or end _i.epeaied 
thereof by the testator or by some other person in his pres- % 15 & 16 
ence and by his direction, every will shall so far only as "^'■"' ' 
regards the position of the signature of the testator, or of the person 
signing for him as aforesaid, be deemed to be valid within the said 
enactment, as explained by this act, if the signature shall be so 
placed at (/), or after, or following, or under, or beside, or 
* opposite to (g) the end of the will, that it shall be apparent *106 
on the face of the will that the testator intended to give effect, 
by such his signature, to the writing signed as his will (h), and that 
no such will shall be affected by the circumstance that the signature 
shall not follow or be immediately («') after the foot or end of the will, 
or by the circumstance that a blank space shall intervene between the 
concluding word of the will and the signature, or by the circumstance 
that the signature shall be placed among the words of the testimonium 
clause (k) , or of the clause of attestation {I ) , either with or without a 
blank space intervening, or shall follow, or be after, or under, or be- 
side, the names (m) or one of the names of the subscribing witnesses, 

[(e) See the decisions on this point collected and observed iipon, Sugd. R. P. Statutes. 

(/) Ke Woodley, 33 L. J. Prob. 154. 

((/) Re Williams, L. R. 1 P. & D. 4, and cases there cited; Re Ainsworth, L. R. 2 P. & 
D. 151. 

(7i) Re Hammond, 3 Sw. & Tr. 90, 32 L. J. Prob. 200. In Trott v. Trott, 29 L. J. Prob. 
156, 6 Jur. N. S. 760, the testator's name, occurring as the last words of a holograph ■will, 
was held a sufficient signature. In Sweetland v. Sweetland, 4 Sw. & Tr. 9, 34 L. J. Prob. 
42, the lirst five sheets were signed and attested, but not the sixth and last, and the whole 
was rejected. 

Parol evidence is admissible to show quo ammo the testator signed his name. Dunn v. 
Dunn, L. R. 1 P. & D. 277. 

(0 Page V. Donovan, 3 Jur. N. S. 220, where the signature was at the end of a notarial 
certificate, immediately following the will, and detailing the circumstances under which it 
was made, and it was held good. 

(k) Re Mann, 28 L. J. Prob. 19; Re Dinmore. 2 Rob. 641. 

(0 Re Walker, 2 Sw. & Tr. 354, 31 L. J. Prob. 62; Re Huckvale, L. R. 1 P. &D. 375; 
Re Casmore, ib. 653; Re Pearn, 1 Prob. D. 70. 

(m) Re Jones, 34 L. J. Prob. 41 ; Re Puddephatt, L. R. 2 P. & D. 97; Re Horsford, L. R. 
3 P. & D. 211. 

^ If a will be signed several times, the .California. Codes and Stat. 1876, Vol. 1, 

last signature, at least if at the end, is the Title 6, ch. 1, p. 720. 

efficient one, and erasure of this constitutes a Dakota. Rev. Code, 1877, Title 5, ch. 1, 

revocation. Evans's Appeal, 58 Penn. St. p. 344. 

238. A signature of testatrix followed by ap- Kansas. Comp. Laws, 1879, ch. 117, p. 1001. 

pointment of executors and signature of wit- Minnesota. Stat. 1878, ch. 47, p. 568. 

nesses, and followed again by further pro- New York. R. S. 1875, Vol. 3, ch. 6, p. 63. 

visions, and signature of testatrix is not a Ohio. R. S. Vol. 2, ch. 1, p. 1425. 

signature at the end of the will. McGuire Pennsvlvania. Bright. Purd. Digest, 1700- 

V. KeiT, 2 Bradf. 244; Glancv V. Glancv, 1872. Vol. 2, p. 1474. 

17 Ohio St. 134; Hays v. Harden, 6 Penii. In New Hampshire wills must be sealed, 

St. 409. ' Gen. Stat. 1878, ch. 193, p. 445; also in 

Wills must be signed at the end in Nevada, Comp. Laws, 1873, Vol. 1, ch. 37, 

Arkansas. Digest, 1874, ch. 135, p. 1012. p. 200. 

135 



*107 EXECUTION AND ATTESTATION 

or by the circumstance that the signature shall be on a side or page or 
other portion of the paper or papers containing the will, whereon no 
clause or paragraph or disposing part of the wiU shall be written above 
the signature (n) , or by the circumstance that there shall appear to be 
sufficient space (o) on or at the bottom of the preceding side or page, 
or other portion of the same paper, on which the will is written, to con- 
tain the signature, and the enumeration of the above circumstances 
shall not restrict the generality of the above enactment ; but no signa- 
ture under the said act or this act shall be operative to give effect to 
any disposition or direction which is underneath, or which fol' 
*107 lows it (p) : * nor shall it give effect to auy disposition or 
direction inserted after the signature shall be made (g) . 

"2. The provisions of this act shall extend and be applied to every 
will already made, where administration or probate has not already 
been granted or ordered by a court of competent jurisdiction, in conse- 
quence of the defective execution of such will, or where the property, 
not being within the jurisdiction of the Ecclesiastical Courts, has not 
been possessed or enjoyed by some person or persons claiming to be 
entitled thereto, in consequence of the defective execution of such 
will, or the right thereto shall not have been decided to be in some other 
person or persons than the persons claiming under the will, by a court 
of competent jurisdiction, in consequence of the defective execution of 
such will." 

The wording of this statute may perhaps seem needlessly particular 
to the reader who has not consulted the decisions which led to its en- 
actment ; but it is unnecessary to treat of those decisions here, since 
the 2d section of the statute renders it almost impossible that the va- 
lidity of any will should hereafter come to be determined by them. 

The points in which these enactments coincide with the Statute- of 
Alterations Frauds have already been noticed, and the decisions thereon 
bv tife"?efent ^^''^ ^^en placed before the reader. 

enactments. It remains to notice in what respects the law has been 
placed upon a new footing : , — ] 

(n) Re Hovsford, L. E. 3 P. & D. 211; Ee Williams, L. R. 1 P. & D. 4, If, however, at 
the tin^e of execution the paper is so folded that no -writing is visible, it must be proved that 
the will was written before the testator signed. Re Hammond, 3 Sw. & Tr. 90, 32 L. J. Prob. 
200, 

(o) Re Williams, L. R. 1 P. & D. 4 ; Hunt v. Hunt, ib. 209 ; Ee Archer, L. R. 2 P. & D. 252. 

(p) Re Dallow, L. E. 1 P. & D. 189 ; Re Woods, ib. 556 (in which the appointment of 
executors followed the signature). But in a few cases the court has been satisfied by the 
mode of writing or by the context that a pjirt which physically followed the signature be- 
longed properly to that which preceded it. As where a sentence, which want of space pre- 
vented being completed at the bottom of a page, was continued, with an asterisk of reference, 
on a previous page, or at the back, Re Kimpton, 33 L. J. Prob. 153 ; Re Birt, L. R. 2 P. & 
V. 214. So where the will was written on the first and third sides, which it filled, and the 
signature was written crossways on the second (Re Coombs, L. E. 1 P. & D. 302). And 
where, a lithogi'aphed form occupying the first page, the will was written on and filled tlia 
second and third, but was signed in the form, this was held good. Re 'Wotton, L. R. 3 P. Ik 
D. 159. In all these cases it was proved that the part iu question was written before exe- 
cution. This proof failed in Re White, 30 L. J. Prob. 55, and the part was rejected. 

(g) Ee Arthur, L. E. 2 P. & D. 273. 

136 



OP WILLS SINCE 1837. *108 

1. Wills of real and personal estate are subject to the same rule [as 
to the ceremonial of execution] , and such rule differs from Two witness- 
that which previously obtained in regard to either species of ^^ required. 
property ; two witnesses, instead of three, as formerly, are required to 
a will of freehold land, and two witnesses are also necessary to a will 
of personal estate or copyholds, which formerly required no attestation. 

2. [The signature of the testator must be somewhere near the end of 
the instrument,^ and so as not to be immediately over, or 
preceding any of the dispositive parts of the instru- Position of 
ment, but it * need not immediately follow or be *108 testator's 
under any of the dispositive parts ; whereas formerly 

the signature might be in any part of the instrument. 

3. The signature of the testator is to be "made" or "acknowl- 
edged" (the " signature" and not, as formerly, the " wiU," 

being the subject of acknowledgment) ] ^ in the simulta- 
neous presence of the witnesses (r) , whereas formerly the signature 
might be " made" before one, and [the will] acknowledged before the 
rest, or acknowledged before all the witnesses separately, [without any 
of them having seen the signature.] 

4. A form of attestation is expressly dispensed with. 

5. The witnesses are not required, as heretofore, to be "credible," 
and some modification has taken place in regard to the disqualification 
arising from interest. 

[As to the 1st point : no question arises. 

As to the 2d point: Lord St. Leonards' Act has left little room for 
question. The decisions will be found noted to the various clauses of 
the act in a previous page. 

As to the 3d point: the following decisions have been made with 
regard to acknowledgment : — Aclcnowledg- 

(a) The signature to be acknowledged maj^ be made by U^™'.°by^" 
the testator, or hj another for him («) . testator. 

(b) A testator, whether speechless or not, may acknowledge his sig- 
nature by gestures (t) . 

(c) There is no sufficient acknowledgment unless the witnesses either 
saw or might have seen the signature (m), not even though the testator 
should expressly declare that the paper to be attested by them is his 
will («). 

(r) Moore ». King, 3 Curt. 243, 2 No. Gas. 45j 7 Jut. 205. As to what is the " presence " 
of tlie witnesses, see Smith v. Smith, L. E. 1 P. & D. 143; and the cases supra on the " pres- 
ence " of tlie testator. (s) Re Regan, 1 Curt. 908. 

(() Re Davies, 2 Rob. 337; and see Parlcer v. Parker, Milw. Ir. Eccl. Rep. 545. 

(m) Re Harrison, 2 Curt. 863; Ilott v. Genge, 3 Curt. IBO, 4 Moo. P. C. C. 265, 8 Jur. 323; 
Ee Swinford, L. R. 1 P. & D. 631; and see Faulds v. Jackson, 6 No. Cas. Supp. ]. 

{») Hudson V. Parker, 1 Rob. 14, 8 Jur. 786; Shaw v. Neville, 1 Jur. N. S. 408; Beckett 
V. Howe, L. R. 2 P. & D. 1, is contra : sed <ju. 

1 Seein re Bullock, 3 Curteis, 750; In re ler v. Benson, 1 Barb. 526. So in other 
Davis, 3 Curteis, 748. The testator's signa- states. See ante, p. 105. 
ture must be at the end in New York. But- 2 Uott v. Genge, 3 Curteis, 160. 

137 



*110 EXECUTION AND ATTESTATION 

(d) When the witnesses either saw or might have seen the signature, 
an express acknowledgment of the signature itself is not necessary, a 

mere statement that the paper is his will (x), or a direction to 
*109 them to put their names under his (y), or even a * request by 

the testator (z), or by some jperson in his presence (a), to sign 
the paper, is sufficient. 

(e) When the signature is seen or expressly acknowledged it is not 
material that the witnesses are not told that the instrument is a will (b), 
or are deceived into thinking that it is a deed (c) . 

(f ) It is of course sufficient, on a re-execution, merely to acknowl- 
edge the signature made on a former execution (d). 

It follows from what has been above stated that the will must be 
Simultaneous ^^S^^^ ^J or for the testator, and his signature must be 
presence of acknowledged before either of the witnesses signs (e). The 
wi nesses. signature must be made or acknowledged in the presence of 
the witnesses simultaneouslj-, and not at different times (/), and they 
must themselves subscribe their names in the presence of tlie testator, 
though not necessarily in the presence of each other (ff). 

As to the 4th point of difference : the clause enacting that no form of 
Attestation attestation shall be necessary, has been much observed upon ; 
clause is un- but it seems to mean only that no clause need be appended 
necessary. ^^ ^j^g ^yj^ stating that the requirements of the act have 
been complied with (//) ; and is not inconsistent with the provision that, 
the witnesses are to "attest," as well as subscribe the will, the 
word " attest ". meaning merely to act as a witness, which might 
in fact be done without subscription (i) ; although upon the con- 
struction of the act it may be that no attestation will satisf}- its 
*110 requirements, except through the outward mark * of subscrip- 

(x) Re Davis, 3 Curt. 748; Re Ashmore, ib. 756, 7 Jur. 1045; Gwillim v. Gwillim, 3 Sw. &' 
Tr. 200, 29 L. J. Prob. 31; Re Huckvale, L. R. 1 P. &. D. 375. 

(!/) Re Pliilpot, 3 No. Cas. 2; Gaze v. Gaze, 3 Curt. 451, 7 Jur. 803; and see other cases 
mentioned by Lord St. Leonards, R. P. Stat. p. 338 et seq. (who seems to think that some of 
the decisions above cited are conflicting^, or the earlier ones ovei'ruled b^"" the later ones), and 
by Wms. Exors. Pt. L, Bk. II., ch. II."^s. 2. 

(z) Keigwin v. Keigwin, 3 Curt. 607, 7 Jur. 840. 
• (a) Re Bosanquet, 2 Rob. 577 ; Faulds ». Jacltson, '6 No. Cas. Sup. 1; Re Jones, 1 Deane 
3, 1 Jur. N. S. 1096; Inglesant v. Inglesant, L. R. 3 P. & D. 172. But see Morritt v. Doug- 
las, ib. 1. 

(b) Keigwin v. Keigwin, supra; Faulds v. Jackson, 6 No. Cas. Sup. 1. 

(c) Sugd. R. P. Stat. p. 340; but see the observations of Sir H. J. Fust in Willis V. Lowe, 
5 No. Cas. 4-32. (d) Re Dewell, 17 Jur. 1130. 

(e) Re Olding, 2 Curt. 865; Re Byi-d, 3 Curt. 117; Cooper v. Biickett, ib. 648; Charlton v. 
Hindmarsh, 1 Sw. & Tr. 433, 8 H. L. Ca. 160. See also Re Summers, 7 No. Cas. 562. H ,Iur. 
791, 2 Rob. 295, where, however, the testator acknowledged the will (if anything) and not his 
signature. As to what is sufficient evidence that the testator signed before the witnesses in 
cases where there is no direct proof that thev saw the testator's signature, see Cooirer v. 
Bockett, supra; Gwillim v. Gwillim, 3 Sw. & Tr. 200, 29 L. J. Prob. 31; Pearson v. Pearson, 
L. R. 2 P. & D. 451; Fischer u. Popham, L. R. 3 P. & D. 246. 

(/) Re Allen, 2 Curt. 331; Re Simmonds, 3 Curt. 79; Moore v. King, ib. 243, 2 No. Cas. 45, 
7 Jur. 205. 

(r/) Faulds v. Jackson, 6 No. Cas. Sup. 1, Sugd. R. P. S. 342. The dlclum amlrn in Case- 
ment «. Fulton, 5 Moo. P. C. C. 140, has not been followed, Re AVebb. 1 Deane, 1, 1 Jur. N. S. 
1096. (/') Brvan «. White. 2 Rob. 315, 14 Jur. 791. 

(j) Ricketts V. Loftus, 4 Y. & C. 519: and see Freshfield i>. Reed, 9 M. & Wels. 404; Bur- 
dett V. Spilsbury, 10 CI. & Fin. 340; Hudson «. Parker, 1 Rob. 14, 8 Jur. 788. 

138 



OF WILLS SINCE 1837. *111 

tion (^). The "subscription," "attestation," and "form of attesta- 
tion," thus refer to matters essentially different.] 

Still, it will be the duty of persons who superintend the execution of 
wills, not to be content with a bare subscription of the witnesses' 
names, but to make them subscribe a memorandum of attestation, 
recording the observance of all the circumstances which the statute 
makes necessary to constitute a valid execution (i.e. that the signa- 
ture was made, or acknowledged, by the testator in the presence of the 
witnesses, both being present at the same time, and that they sub- 
scribed their names in his presence) ; for, though such statement in the 
memorandum of attestation is not conclusive, and does not preclude 
inquirj' into the fact, it would afford a much stronger presumption that 
the statutory requisition had been complied with, than where it is want- 
ing ; [and in the absence of such a memorandum, the witnesses are 
always called upon by the Court of Probate to make an affidavit that 
the statute was in fact complied with.] It will not be As to testa- 
advisable for a testator, [except where absolutely 'neces- ^y tiie'fiailif 
sar}-,] to avail himself of the privilege, which the new act oi auother. 
expresslj^ confers (as the Statute of Frauds, according to the con- 
struction which it received from the judicature, also did), of ac- 
knowledging the signature before the witnesses,^ instead of signing it 
in their presence, or of the permission to sign by the hand of another. 
The latter expedient, indeed, ought to be restricted in practice (though 
the legislature has not so limited it) to cases of extreme physical 
weakness, rendering it impossible or difficult for the testator to write 
his name ; in such cases, even the exertion of making a mark might 
be oppressive. Where a testator is unable to write from As to signing 
ignorance, perhaps a mark is to be preferred to a signature ^^' "[^aii^'.' 
bj' the hand of another, as being the more usual mode of ensis. 
execution by illiterate persons ; ^ for in regard to this and all other 
particulars, the prudent course is to make the execution of the will 
conform as much as possible to the testatpr's ordinary mode of exe- 
cuting instruments. Where the will is signed by a third person 
on behalf of the testator, the signature, of course, should [though, as 
we have before seen, it need not necessarily] be in the name, of the tes- 
tator, rather than that of the amanuensis, who should merely be 
designated in the memorandum of attestation ; where it * would *111 
Idc proper (though not necessary) that the peculiar mode of 
execution should be stated. 

As to the 6th point: it will be observed, that in the clause above 

(i) See per Sir C. Cresswell, Cliarlton v. Hindmarsh, 1 Sw. & Tr. 439, 5 Jur. N. S. 581, 
28 L. J. Prob. 132.] 

1 See Gaze v. Gaze, 3 Curteis, 451; Keig- a will with a mark, and it was duly attested, 
win V. Keigwin, ib. 607. probate was granted, in In re Field, 3 Cur- 

2 "Where the testator, having by paralysis teis, 752. 
lost the use of his speech and limbs, signed 

139 



*112 EXECUTION AND ATTESTATION 

Attesting stated, which regulates the attestation of wills, the legis- 
miuTrel^to"' l^tii'^ ^^^ dropped the requisition of credibilitj', as an 
be eiedibie. ingredient in the qualification of the witnesses ; and has, 
moreover (s. 14), expressly provided, That if any person who shall 
attest the execution of a will, shall, at the time of the execution thereof, 
or at any time afterwards, be incompetent to be admitted a witness, 
to prove the execution thereof, such will shaE not on that account 
be invahd.^ 

It seems to have been generally considered, that this provision not 
Persons in- Only qualifies persons who have been rendered infamous by 
competent to gonviction for crime to be attesting witnesses (as it clearly 
quaiiiied. does), but, that it even gives validity to the attesting 
act of an idiot or lunatic. This, however, seems very questiona- 
ble. The signature, it will be observed, is required to be made or 
acknowledged by the testator in the presence of the witnesses ; which 
would seem to imply that they should be mentally conscious of the 
transaction, accorHing to the construction which was given (as we have 
seen (Z)) to the same word occurring in the devise clause of the Statute 
of Frauds, which required that tlie attesting witnesses should subscribe in 
the testator's " presence ; " such requisition being held not to be satisfied 
in a case, in which the testator fell into a state of insensibilitj', before 
the witnesses had subscribed their names to the memorandum of 
attestation ; and the 14th section of the recent statute seems to be per- 
Doubt fectly consistent with such a construction ; for that clause 

wiiether (joes not in terms dispense with all personal qualifications 
extends to in the witnesses to perform the act ; it only removes the legal 
lunatics, or disqualification, arising out of incompetency to give evi- 

orlier persons ^ jo x ./ o 

mentally in- dence of the fact in a judicial proceeding, which evidently 
capable. ^^^ coexist with intellectual capacity, as in the case of a 

person whose credibility of character has been destroyed by conviction 
for crime, a species of disqualification which was peculiarly incon- 
venient, as the testator might have been unaware of its existence, so 
that there was a special reason for its removal, which does not apply to 
palpable infirmity. Surel}-, if the legislature intended to enact so novel 
(not to say absurd) a doctrine, as that the functions of an attesting 
witness might be performed by any one who could scratch a 
*112 * paper without the least glimmering of intellectual conscious- 
ness, this would have been done in terms more clear and ex- 

(0 Ante, p. 87; [and see the judgment of Dr. LusMngton in Hudson v. Parker, 1 Rob. 
14, 8 Jur. 786.] 

1 " Credible witness " means one compe- "credible." Lord ». Lord, supra. Interest, 

tent, not disqualified at the time of attestation, at common law, to be disqualifying, must be 

to be sworn and to testify in a court of present, certain, and vested, lb. And the 

justice. Lord v. Lord, 58 N. H. 7; Carl- statute of New Hampshire (and the same is 

ton ». .Carlton, 40 N. H. 14; Hawes v. Hum- generally true), which declares that interest 

phrev, 9 Pick. 350; Sparhawk v. Sparhawk, shall not disqualify a witness, is notapplica^ 

lU Allen, 155; ante p. 90. Hence a witness ble to the attestation of wills. lb. 
incompetent by reason of interest is not 

140 



OF WILLS SINCE 1837. *113 

plicit, than b}- providing that persons incompetent to be admitted as 
witnesses to prove the execution of a will, should be sufficient attesta- 
tors — expressions which seem rather to suppose a personal ability on 
the part of the witnesses to perform the act, but a legal disability to 
prove it. Perhaps the point is not very likely to occur in practice ; for 
no testator would think of choosing an idiot (m) or lunatic as an attest- 
ing witness to his will, unless he were content to have his own „ 
sanity called in question. And here it may be observed, to selection of 
that the enlarged license now given, in regard to the qualifi- ^''°^^s^^- 
cation of witnesses to wills, will not induce any prudent person to abate 
one jot of scrupulous anxiety, that the dutj' of attesting a ivill be con- 
fided to persons, whose character, intelligence, and station in society, 
afford the strongest presumption in favor of the fairness and proper 
management of the transaction ; and preclude all apprehension in pur- 
chasers and others, as to the facility with which the instrument could be 
supported in a court of justice, against any attempt to impeach it ; and 
now that the requisite number of witnesses is reduced to two, it is the 
more easj-, as well as important, that the selection should be governed 
by a regard to such considerations. A devise or bequest to an attest- 
ing witness still, as under the old law, does not affect the validity of the 
entire will, but merely invalidates the gift to the witness, whose com- 
petency the legislature has established by destroying his interest ; and 
hence the remarks on this enactment have more proper!}' found a place 
in a preceding chapter, which treats of the disqualifications of devi- 
sees {n). 

[Bj^ the 21st section it is enacted, "That no obliteration, interlinea- 
tion, or other alteration, made in any will after the execu- Alterations 
tion thereof, shall be valid or have any effect, except so far to be signed 
as the words or effect of the will before such alteration shall ^" a es e . 
not * be apparent, unless such alteration shall be executed in like *113 
manner as hereinbefore is required for the execution of the will ; 
but the will, with such alteration as part thereof, shall be deemed to be 
duly executed, if the signature of the testator and the subscription of 
the witnesses be made in the margin, or on some other part of the will 
opposite or near to such alteration, or at the foot or end of or opposite to 
a memorandum refemng to such alteration, and written at the end or 
some other part of the will" (o).] 

(m) Supposing such persons to be, technically speaking, competent attesting witnesseR, 
the effect of employing two such witnesses would be to render it necessary to have recourse to 
the testimony of other persons, for the purpose of proving the circumstances of the execution, 
which could not, in such case, be done (as it usually is) out of the mouths of the witnesses 
themselves ; and it is to be observed that, although, in the case of a deceased witness, jircof 
of handwriting is sufficient, the presumption being, that the will was duly attested, especially 
if the facts essential thereto were recorded in a memorandum of attestation, which was sub- 
scribed by the deceased ; yet it does not follow that any such presumption would arise in the 
case of a'lunatic witness, whose subscription (though his handwriting inight be proved), could 
not be considered as affording any security that attention had been paid to the requisitions of 
the statute. " («) Ante, p. 70. 

[(o) See Re Wingrove, 15 Jur. 91 ; Be Hinds, 16 Jur. 1161 ; Re Treeby, L. R. 3 P. & D. 242.] 

141 



*114 DEFECTIVE EXECTTTION 

The recent enactments, it will be perceived, preclude in reference to 
How far doc- *^^ ^'•'^^ *° wMch they applj', many of the questions which 
trines of this arose Under the Statute of Frauds. The cases respecting 
tead'to wiUa *h® local position of the testator's signature, and as to the 
made since admissibility of an acknowledgment, as a substitute for 
signing before the witnesses, the necessity of publication, 
and the qualifications of attesting witnesses, are obviously no longer 
applicable. The statute has also, by assimilating wills of real and per- 
sonal estate in regard to the ceremonial of execution, gotten rid of the 
numerous questions which arose out of attempts bj' testators to create, 
bj' an attested will, a power to dispose of or charge their real estate by 
an unattested codicil ; and hence, that part of the present chapter 
which treats of these several subjects ranges itself under the mass of 
legal learning, which recent legislation has rendered, or rather will 
eventually render, obsolete. 

The prevention of all questions as to due execution must still mainly 
depend on the prudence and attention of the practitioner, who will, of 
course, take care to preclude all doubt as to whether the testator did 
see the attesting witnesses subscribe, or whether he might have seen 
them (for this, it will be remembered, is the true point of inquiry), by 
placing the witnesses and the testator in immediate juxtaposition in the 
same room during the whole business of the attestation ; nor will he 
for a moment be content to rely on the doctrine to be noticed hereafter, 
which connects an attested codicil with a prior unattested will or codi- 
cil, as a ground for dispensing with a regular clause of attestation to 
each separate testamentary paper. 

Having regard to the necessity [that the signature should now not 

be above or precede the dispositive part of the will,] it seems 

*114 advisable, when a testator is in extremis, that the first or * only 

signature should be at the end ; for it has sometimes happened 

that a testator who has begun to sign the several sheets has expired or 

become insensible before he had reached the last. 



Section IV. 

Defective Execution supplied h/ Reference, express or implied. 

It remains to be considered in what eases a codicil A\i\y attested 
communicates the efflcacj' of its attestation to an unattested will 
Whether at- ov previous codicil,* so as to render effectual any devise 
testation of or bequest which may be contained in such prior unattested 

» See Ch. VIII. 
142 



SUPPLIED BY EBPEEENCB. *115 

instrument.^ It has been repeatedly decided, [in cases not plies to pre- 
affeeted by stat. 1 Vict. c. 26,] where the several attested """^ *'"■ 
and unattested instruments were written on the same paper, act^'^vuft.'''^ 
that the latter were rendered valid. c. 26. 

Thus, in De Bathe v. Lord Fingal (p), where a testator made a will 
for the purpose (among others) of appointing guardians to 
his children. This will was attested by one witness only, cil refers to 
The testator afterwards executed a codicil to the will, writ- are'vvritten'* 
ten on the same sheet of paper, and attested by three wit- on same 
nesses, and which was declared to be a codicil to his will P"?'^''' 
thereunto annexed.^ The attestation was held to apply to the will, so 
as to constitute It a good testamentary appointment of guardians 
within the statute of 12 Car. 2, e. 24, which required that the appoint- 
ment should have been signed in the presence of two witnesses. 

So, in Doe d. Williams v. Evans (q) , where A. made a will profess- 
ing to devise freehold propertj-, but which was neither signed nor 
attested, though an attestation clause was drawn out ; a fortnight 
afterwards a codicil was written below this clause on the same sheet of 
paper, in the following terms: "I, A., make a codicil to the fore- 
going will, and thereby ordain that mj' wife B. be entitled to 200/. of 
my property in case she marry." (There was no date.) It was signed 
by the testator and attested by three witnesses, who simplj- wrote their 
names under the word " Witness." The Court of Exchequer held, that 
the execution and attestation applied to the whole of what was on the 
paper ; and, consequentlj', that the will was dul}^ attested for the devise 
of freeholds. The court relied much on Carleton v. Griffin (r), 
and on the circumstance of the codicil referring to * the will : *115 
Bayley, B., observing, that if the codicil had not referred to 
the will, he should have thought that it did not set up that instru- 
ment. 

In the preceding cases the attested codicil referred to the unattested 

(p) 16 Ves. 167. (q) 1 Cr. & Mees. 42, [3 Tyr. 56. (r) 1 Burr. 549.] 

1 It appears to be an open question in thereby altered i " and he declared the codicil 
England v.'hether a codicil can be resorted to "to be part and parcel of his last will and 
ill the interpretation of the will, in order to testament, witliin written." A will executed 
sliow a contrary intention to that which the under undue influence may be republished 
will cloarlv indicates. In re Clarke's Estate, and confirmed by a codicil executed after- 
Law Rep."l4 Ch. D. 422 (Court of App). It wards, when the testator is free from such 
is apprehended that the general impression in influence. O'Neall v, Farr, 1 Rich. 80. 
tills country is that the codicil may be so used. The effect of a codicil, ratifying, confirming, 
on the ground that both instruments are to be and republishing a will, is to give the same 
deemed but one will. force to the will, as if it had been written, 

2 A codicil with three competent witnesses executed, and published, at the date of the 
may be a republication of a will, so as to give codicil. Brimmer n. Sohier, 1 Ciish. 118; 
effect to a devise otherwise void, on account Armstrong v. Armstrong, 14 B. JVIon. 333; 
of the devisee being a witness to the original Beall v. Cunningham, 3 B. Mon. 390. See 
will. Mooers v. White, 6 Johns. Ch. '374, Van Cortlandt v. Kip, 1 Hill, 590; Johnsoti 
375. In this case the codicil was indorsed ».- Clarkson, 3 Rich. Eq. 305. Hence the 
and written on the back of the original will, attestation of a codicil is an attestation of 
and by the codicil the testator "approved, the will annexed or suffici'^ntly referred tq. 
ratified and confirmed the former last will Brown v, Clark, 77 N. Y. 369. 

and testament, except so far as the same was 

U3 



*116 DEFECTIVE EXECTJTION 



Where both document, but this was not essential -where both were writ- 
paper but ten on the same sheet of paper. Thus, in Guest v. Willa- 
without ex- ggy fg\ where a testator, on the baclc of his will which was 

press refer- J \ / ' ' 

ence. duty attested, wrote three codicils of different dates, of 

which the last alone was attested by three witnesses, and which did not 
in terms refer to the preceding codicils, but merety partial^ revoked an 
appointment of executors made by the second codicil, it was held, that 
the third codicil operated as a republication, not only of such second 
codicil, but also of the first, between the contents of which and of itself 
there was no connection. 

As in all the preceding cases the attested and unattested instruments 
Remarks were Contained in the same paper, possibly'W, might have been 
upon the pre- considered that the memorandum of attestation, appended 
ce ing cases. ^ ^^ posterior document, was intended to apply to both ; 
but the line of argument adopted hy the court in Doe v. Evans (where 
it will be remembered the codicil in terms referred to the will) does not 
admit of the case being referred to this principle, but rather leads to 
the conclusion, that the result would have been the same if the unat- 
tested will and the attested codicil had been detached,-' the only effect 
of their being united in the same paper being to render unnecessarj- &x\y 
express reference to the unattested document for the purpose of identi- 
fj'ing it. And the observations which fell from the Court of K. B. in 
TJtterton v. Robins (<) indicate a strong inclination in that court to a 
similar opinion. [And the point is not now open to question. Thus 
in Aaron v. Aaron (m), a testator made a will and two codicils, each on 
a separate paper. He described the first codicil as a codicil to his will 
dated &o., and directed it to be annexed to his said will, but it was 
unattested : by the second the testator recited that he had made and duty 
executed his will dated &c., and a codicil annexed thereto and dated 
&c. ; he described it as a second codicil to his said will, and directed it 
to be annexed thereto and to be taken as a second part thereof : this 
codicil was duty attested, and it was held by Sir K. Bruce, V.-C, 
*116 that the first codicil was * set up by the second. It could make 
no difference, he observed, whether the codicil was written on 
the same paper as the will or not ; a codicil was referred to, and there 
was no dispute what the instrument was.] These authorities show that 
no reliance is to be placed on the early case of Att.-Gen. v. Baines {x), 
where a testator made a will in his own handwriting, but without wit- 
nesses, and afterwards made a codicil, wherein he recited and took 
notice of the will, which codicil was subscribed by four witnesses, and 
it was treated as clear by the L. C. that the will was inoperative to de- 
vise freehold lands. 

Is) 12 J. B. Moo. 2, [3 Bing. 614.] (() 1 Ad. & Ell. 423, 2 Nev. & M. 821. 

[(«) 3 De G. & S. 475. See also Allen v. Haddock, 11 Moo. P. C. C. 427, stated post, 
p, 119.] (x) Pre. Ch. 270, 3 Ch. Rep. 10. 

1 Harvy «. Chouteau, 14 Mo. 587; In re Smith, 2 Curteis, 796. 
144 



SUPPLIED BY REFERENCE. *117 

It should seem, however, that where the attested codicil Where an at- 
Is detached from and does not refer to the unattested will or J-eje^.s to^fhe ' 
previous codicil, it wiU not have the effect of curing the de- will but not to 
fective execution of such prior testamentary document. teScodicil. 

Thus, in Utterton v. Robins (y), where a testator, by several unwit- 
nessed memoranda, subsequent to his will (which was duly attested), 
left a freehold house, which, among other estates, he had acquired 
since the date of the will, to his daughter, and afterwards made the fol- 
lowing codicil, which was duly attested : " I make this a further codicil 
to my will, which bears date 12th Sep. 1823 ; I give and devise all real 
estates, purchased by me since the execution of my said will, to the 
trustees therein named, their heirs, &c., to the uses and upon the trusts 
therein expressed concerning the residue of my real estates ; " it was 
certified on a Case from Chancery, that the house passed to the trustees 
and not to the daughter. 

In this case the language of the second codicil seemed to repel the 
supposition, that the testator intended the estates purchased since the 
execution of the will to pass by the prior codicil ; unless, ^vh^ther the 
indeed, when he speaks of his " will," he is to be under- "will" in- 
stood (2) as referring to all the prior testamentary docu- cii added ° 
ments, including the unattested codicil, according to the thereto. 
principle laid down by Sir L. Shadwell in Gordon v. Lord Eeay (a), 
where a testator, bj' a second codicil (which was dulj- attested) , 
after * reciting his will (which was also duly attested) by date, *117 
expressly confirmed all his pi'ovisions and bequests in it in favor 
of a certain individual : and the V.-C. was of opinion that this confir- 
mation had the effect of entitling her to the benefit of a charge created 
on his freehold estates, by a prior unattested codicil, on the ground that 
the second codicil amounted to a republication (b) of the first. " The 
first codicil," he said, " is part of the will, and if the second codicil 
is a republication of the will, it is a republication of everj'thing that is 
part of the will. The second codicil does refer to the will ; it ratifies 
and confirms the will and everything that is part of it." 

[But this decision has been questioned. " It may well be," said Sir 
G. Jessel, in Burton v. Newbery (c), " that where you describe a wiU 
generally without date, and say, ' I confirm my will,' you might inter- 

(y) 1 Ad. & Ell. 423, 2 Nev. & M. 821. 

[(z) Not that he was in fact so understood; the court showed not obscurely that it 
thought there was no sufficient reference to the will. Besides, the testator had not purchased 
any real estate since the execution of his "will " in the wider sense.] 

(a) 5 Sim. 274; see also Crosbie »;. Macdonal, 4 Ves. 610; [Farrer v. St. Catherine's 
College, L. R. 16 Eq. 19; Green v. Tribe, 9 Ch. D. 231; all referred to post, Chap. VII. ad 
iin., where the comprehensiveness of the word '*will " is considered with reference to the sub- 
ject of revocation and revival. In Green v. Tribe, Fry, J., points out the distinction between 
cases where the narrower sense would operate to revoke a clear gift contained in a previous 
valid codicil, and where it only fails to set up a previous invalid codicil..] 

(b) As to republication, see po.xt, Chap. VIII. 

[(c) See Piggott v. Wilder, 26 Beav. 90. where the reference was to the will of another per- 
son. See also Fuller v. Hooper, 2 Ves. 242; Jauncey v. Att.-Gen., 3 Gif. 308, where the 
question was whether " legacies herein mentioned " included legacies given by codicil. 

VOL. I. 10 145 



*118 DEFECTIVE EXBCDTIOIT 

pret the word ' will ' as including the whole of the testamentary dis- 
position (d ) ; but it appears to me that that was not the case iu Gordon 
V. Lord Reaji . . . The onl}' reference was to a will bearing date a 
certain daj-, that is, as I understand it, to a described instrument, which 
excludes instruments of subsequent date." On this principle in Bur- 
ton V. Newbery, where a testator made his will, and then made a codicil, 
which was attested by A. and B., who took benefits under the codicil, 
and afterwards made another codicil "to his last will dated," &c., 
which was duly attested, but did not refer to the prior codicil (all these 
instruments being on separate papers) , it was held bj- the M. R. that 
the second codicil did not republish the first, and, consequently, that 
the gifts to A. find B- under the first codicil failed. But this strictness 
of interpretation may be excluded by the context. Thus in Aaron v. 
Aaron (e) , where the second codicil referred specifically to the will and 
first codicil each by its date, and then confirmed the will onlj', it was 
argued that this indicated a clear intention to confirm the will exclu- 
sively, and the V.-C. admitted that the argument was apposite ; but 

referring to the other terms of the codicils, he said the intention 
*118 of the second codicil, as collected from the whole of *it, was to 

confirm the first codicil. It was indeed obvious that the testator 
intended to leave two codicils. 

2. Since 1 Since the stat. 1 Vict. c. 26, there is this further reason 
Vict. c. 28. against applying Gordon v. Lord Reay as an authority for 
dulv attested holding an unattested paper to be included under a reference 
is not now in- to the " will;" namely, that such a paper is not now, as it 
tevm "codi- formerly was, admissible to probate, and cannot properlj' be 
cils" wiiere regarded as part of the wUl or as a codicil to it. If there- 

tlierearedulj' o r 

attested codi- fore a testator makes several codicils, some of which are, 
its^stricr"^*^ but others are not, duly attested, a subsequent codicil con- 
meaning, firming " his will and codicils" confirms only the duly at- 
tested codicils. 

This point was determined in Croker v. Marquis of Hertford (/). 
_ , Dr. Lushington delivered the judgment of the privy council, 

Cvoker». and said, that " the strict and primary sense of the word 
Hertford. . codicil ' was a testamentary instrument which would, per se, 
become valid immediately on the death of the testator ; that the words 
of the codicil in the case before him, when so interpreted, were sensible 
with reference to extrinsic circumstances ; for there were codicils duly 
executed so as to come within the strict and primary sense ; therefore, 
according to the rule of construction stated by Mr. Wigram (ff) , how- 

(d) 1 Cli. D. 234, 240; Gordon v. Lord Reay was treated as an authority (together with 
Doe V. Evans) by K. Bruce, V.-C, in Aaron v. Aaron. See also Radburii v. Jervis, 3 Beav. 
460. 

(e) 3 De G. & S. 475, stated above, p. 315. 

(/) 4 Moo P. C. C. 339, 8 Jur. 803, 3 No. Cas. 150, affirming S. C. (nom. Countess Fer- 
raris «. Marquis of Hertford), 3 Curt. 468, 7 Jur. 261, 2 No. Cas. 230. 
(j/) Wigram on Wills, p. 17. 

146 



SUPPLIED BY BEFEKBNCE. *119 

ever capable the words might be of another and popular intei-pretation, 
or however strong the intention of the testator, the strict and primary 
sense must be adhered to." On the same principle, Sir H. Nor in the 
J. Fust held (A), that codicils not dulj' attested, though term "will." 
written on the same paper as the will, were not ratified by a codicil of 
subsequent date which referred only to the will. But, as was implied 
in the reasons given for those decisions, the case is different where 
there is no instrument which satisfies the strict meaning of the words of 
reference. Another rule of construction stated by the same j^ diflferent 
learned writer (i) then prevails. For where there is nothing ■■"•« prevails 
in the context of a will to make it apparent that a testator is no duly at- 
has used words in any other than their strict and primary tested codicil; 
sense, but his words, so interpreted, are insensible with reference to 
extrinsic circumstances, the court may look into the extrinsic circum- 
stances to see whether the meaning of the words be sensible in any 
popular or secondary sense, of which with reference to these cir- 
cumstances they are capable. Accordingly, in * Ingoldby v. *119 
Ingoldby {k) , where there was a paper purporting to be a codi- 
cil, and subsequently the testator duly executed a codicil not referring 
to the paper, except by being called " another codicil to my will," Sir 
H. J. Fust held that the first paper, purporting to be a codicil, was 
thereby rendered valid, and he distinguished the case from Croker v. 
Marquis of Hertford, on the ground that there were not, as in that 
case, any duly executed codicils to which the last codicil could be held 
to refer. 

In Allen v. Maddock (Z) the subject was fuUy discussed by Lord 
Kingsdown. In that case a will was made and signed in or duly at- 
the presence of one witness only. Afterwards the testatrix ^^^^^^ ^i"- 
made a codicil which commenced: "This is a codicil to my last will 
and testament," and was duly executed. No other will having been 
found, it was held in P. C, upon parol evidence of the circumstances, 
that the two papers, as together containing the will and codicil, were 
entitled to probate. From Lord Kingsdown's judgment, it To supply 
is clear that the question whether an imperfectly executed execu'tfon the 
paper is made effectual by a later perfectly executed one defective 

, •, ,1 i- 1 ii ii !• • • instrument 

depends on the question whether the earlier paper is mcor- must be in- 
porated in the later : in other words, whether the reference corporated. 
be such as with the assistance (if necessary) of parol evidence of the 
circumstances will be sufficient to identify it. Difficulties will of course 
sometimes arise upon the evidence (m) ; for instance, a reference by a 
testator to his last will, or to a first or second codicil, is a reference in 
its own nature to one instrument to the exclusion of aU others, and the 

(A) Haynes «. Hill, 7 No. Cas. 2B6, 1 Rob. 795, 13 Jur. 1088. 

(i) Wisram on Wills, Prop. 3. 

(k) i No. Cas. 493. (0 H Moo. P. C. C. 427, affirming 3 Jur. N. S. 965. 

(m) See Ke AUnutt, 33 L. J. Prob. 86. 

147 



*]20 DEFECTIVE EXECUTION 

description identifies the instrument ; but a general reference to codicils, 
of which there may be several, is different, and probablj' not easy to 
render effectual by extrinsic evidence. But where the parol evidence 
sufficiently proves that, in the existing circumstances, there is no doubt 
as to the instrument, it is no objection to the admission of the evidence 
that b3' possibility circumstances might have existed in which the instru- 
ment referred to could not have been identified. In short, any unat- 
tested paper which would have been incorporated in an attested will or 
codicil executed according to the Statute of Frauds, is now in the same 
manner incorporated if the will or codicil is executed according 
*120 to the requirements of the act 1 Vict. c. 26, but with this * impor- 
tant distinction, that since that act an unattested codicil is not 
part of the will for any purpose, and consequently is not incorporated 
or confirmed by a codicil of subsequent date referring only to the 
will (re). 

The principle being thus the same under both statutes, it follows 
that, subject to the distinction just noted, the circumstance of the well- 
executed instrument being written on the same paper as the imperfectly 
executed one must still be regarded as materially helping to identify the 
latter as the document referred to by the former (o). And a distinction 
maj' fairly be drawn between a case where the later and well-executed 
instrument contains a reference, more or less particular, to another 
document, and a case where the later and well-executed instrument 
contains no express reference to any other ; in the latter case the mere 
circumstance of its being on the same paper with others maj' possibly 
furnish ground for implying a reference to all the others, so as to incor- 
porate and set up all. Such appears to have been the case in Guest v. 
Willasey (jo), where the third codicil was thus : " I now appoint A. to 
be my executor in the room of B. above mentioned, with full power 
to act, (fee. Witness my hand." So, in Ee Cattrall (9), where, under- 
neath his will, a testator wrote and signed some unattested additions ; 
and under these he afterwards wrote some further additions, which 
were duly signed and attested ; it was held by Sir W. P. Wilde that 
the presumption was that this signature and attestation were intended 
to apply, and that they gave effect, to all that went before. But this 
presumption is rebutted by an express reference of narrower scope. 
Thus a reference to the " will " does not set up an unattested writing, 
though all three are on the same paper, the unattested writing, as we 
have seen, not being a part of the will (r). 

(n) See ]1 Moo. P. C. C. 455, 461; and as to incorporation, supra, p. 89. 

(0) Re Terrible, 1 Sw. & Tr. 140. In re Smitli, 2 Curt. 795, 1 No. Cas. 1, and Ee Claring- 
bn1l, 3 No. Cas. 1, tliis circumstance existed ; but even without it they are covered by Allen 
V. Maddocls and Ingoldby >;. Injcoldby, supra. 



{p) 2 Bing. 42!), 3 Bing. 614, ante, p. 115. 

Iq) 33 L. J. Prob. 106. 

\r) Re Willmott, 1 Sw. & Tr. 36 ; Re Peaoh, ib. 38. See also Havnea «. Hill, 1 Rob. 796, 



iq) 33 L. J. Prob. 106, 
\r) Re Willmott, 1 Sw 
7 No. Cas. 256, 13 Jur. 1058; Re Phelps, 6 No. Cas. 695; Re Hutton, 6 No. Cas! 698, 

148 



SUPPLIED BY EEFEEENCE. *121 

An unexecuted alteration in a will is not rendered valid bj' a codicil 
ratifying and eonflrming the will, unless in such. ,, , , 

^ <=• o 7 Unexecuted 

* codicil the alteration be specially referred to (<) , or *121 alterations 
unless it be proved affirmatively by extrinsic evidence ^||J.^]J ^"j;^ 

that the alteration was made before the codicil (it) ; and by subse- 
even then, if it appear to be deliberative only, it will not be '^"^" 
included in the probate (a;).] 

(t) Lushington v. Onslow, 6 No. Cas. 183, 12 Jur. 465. As to presuming when alteva- 
tions were made, see Cli. VII. s. 2, ad^n. 

(m) See per Sir H. J. Fust, ib.; Re Tegg, 4 No. Cas. 531; Re Wyatt, 2 Sw. & Tr. 494, 31 
L. J. Prob. 197. 

(x) Ke Hall, L. E. 2 P. &. D. 256.] 



149 



*122 



BEVOCATION OF WILLS 



* CHAPTER VII. 

BEVOCATION OP WILLS. 



*122 



Section I. 

^ Marriage arid Birth of Children, or Marriage alone. 

Under the law which existed prior to the act of 1 Vict. c. 26, the 
Effect of mar- marriage of a woman absolute^ revoked her will, and that, 
unfec'old^ too, though her testamentary capacity was subsequently re- 
•aw; stored by the event of her surviving her husband (a).'' [But 

— in case of a will made by a woman before marriage, and operating as 
a woman ; ^^^ appointment under a power, was not necessarily revoked 



(a) Forse and Hembling's case, 4 Rep. 61, And. 181 ; Cotter v. Layer, 2 P. W. 624; Doe 
V. Staple, 2 T. K. 695 ; see also Hodsden v. Lloyd, 2 B. C. C. 533 ; [Long v. Aldred, 3 Add. 48. 



1 Will of feme, sole revoked by marriage : 

Alabama. Code, 1876, Title 4, ch. 2. p. 586. 

Arkansas. Digest, 1874, cb. 135, p. 1013. 

California. Codes & Stat. 1876, Vol. 1, 
Title 6, ch. 1, p. 723. 

Dakota. Rev. Code, 1877, Title 5, ch. 1, 
p. 346. 

Indiana. Stat. 1876, Vol. 2, ch. 3, p. 572. 
See Vail v. Lindsay, 67 Ind. 528. 

Missouri. R. S."l879, Vol. 1, ch. 71, p.'680. 

New York. R. S. 1875, Vol. 3, ch. 6, 
p. 64. See Brown v. Clark, 77 N. Y. 369. 

Oregon. Gen. Laws, 1843-1877, ch. 64, 
p. 788. 

Pennsylvania. Bright. Purd. Digest, 
1700-1872, Vol. 2, p. 1477. See Fransen's 
Will, 26 Penn. St. 202. 

Contra in Illinois. In re TiiUer, 79 111. 99. 
And in Massachusetts, Church v. Crocker, 
3 Mass. 17, 21. See Wheeler v. Wheeler, 
1 R. I. 364. 

The rule that by marriage the will of a 
woman was revoked is sometimes said to have 
been founded upon the husband's marital 
rights in her property. If he was excluded 
from such rights, the will was not revoked. 
Morton v. Onion, 45 Vt. 145. See also In re 
Carev, 49 Vt. 236. Indeed, by the law of 
Rhode Island, the marriage of a feme sole 
testatrix operates as oulv a presumptive 
revocation of her will. Miller v. Phillips, 



9 R. 1. 141. See WTieeler v. Wheeler, 1 R. I. 
364. And this presumption may be rebutted 
by oral declarations of the testatrix after mar- 
riage, lb. It is perhaps a preferable way 
of putting the ground of revocation at com- 
mon law to sa}' that a will must be ambula- 
tory during the lifetime of the testator; and 
as by marriage the testatrix disables herself 
from making any other will, the will already 
made would cease to be ambulatory if still 
valid. Hodsden v. Lloyd, 2 Brown, "Ch. 534; 
Brown v. Clark, supra. Nor is the rule 
deemed to be changed in New Y^ork by reason 
of the fact that marriage is no longer a bar 
to the making of a will by a woman. Brown 
V. Clark. Revocation by marriage under the 
statute is absolute and not a presumptive 
intention. lb. It is also important to ob- 
serve that the fact that a married woman who 
had, previously to her marriage, executed a 
valid will survives her husband does not at 
common law restore validity to the will. lb. 
On the otlier hand the will 'of a/emc covet-t, 
made during marriage under a settlement, is 
not revoked by her surviving her husband. 
Morwan v. Thompson, 3 Hagg. 239; Clough 
V. Clough, 3 Mylne & K. 296. And of course 
the survivorship of either husband or wife 
cannot affect the will of a married woman 
executed under the enabling acts. 



150 



BY MARRIAGE AND ISSUE. *123 

by her marriage (6) ; nor was a will so operating and made during the 
coverture necessarily revoked by the death of the husband (c).] 

The marriage of a man, however, had no such revoking effect upon 
his previous testamentary disposition, in regard to either real —in case of a 
or personal estate,^ on the ground, probablj', that the law ™^"- 
had made for the wife a provision independently of the act of the hus- 
band by means of dower ; nor did the birth of a child alone revoke 
a will made after marriage, since a married testator must be supposed 
to contemplate such event ; and the circumstance that the testator left 
his wife enceinte without knowing it, was held not to impart to the 
posthumous birth any revoking effect (d).^ 

Marriage and the birth of a child conjointly, however, revoked a 
man's will, whether of real or personal estate,' these qicI rule as to 

* circumstances producing such a total change in the *123 revocation by 
testator's situation as to lead to a presumption that birth of cMl- 

he could not intend a disposition of pi'operty previouslj^ dren. 
made to continue unchanged.* This rule (which was borrowed from 
the civil law (e)) was applied by the ecclesiastical courts to wills of per- 

(6) Logan v. Bell, 1 C. B. 872 ; and compare Douglas v. Cooper, 3 Mv. & K. 378. 

(c) Morwan v. Thompson, 3 Hagg. 239; Clough v. Clough, 3 My. & K. 296; Du 
Hourmelin ». Sheldon, 19 Beav. 389. But of course if the power be given to the wife '' in 
case she dies in the lifetmie of her husband," and in case of her surviving, the property is 
given to her absolutely, a will made during coverture is inoperative if the wife survives, as 
the power never arose. Price v. Parker, 16 Sim. 198; Trimniell v. Fell, 16 Beav. 537; Willock 
V. Noble, L. R. 7 H. L. 580 ; and will not even raise a case of election, Blaiklock v. Grindle, 
L. R. T Eq. 215.1 (d) Doe v. Barford, 4 M. & Sel. 10. 

(e) The civil law evinced a marked anxiety to guard children from the consequences of 
negligent omission, or capricious exclusion from the testamentarj' dispositions of their par- 
ents. To exclude a son, it was not sufficient thai he was not named in his father's will, but 
it was necessary expressly to disinherit him. " Qui fllium in potestate habet, curare debet, ut 

1 Will of man revoked by marriage: — West Virginia. R. S. 1878, ch. 201, 

California. Codes & Stat. 1876,- Vol. 1, p. 1169. 
Title 6, ch. 1, p. 723. 2 wjn revoked by marriage of testator 

Georgia. Code, 1873, Title 6, ch. 2, p. 427. and birth of child : — 

Kentucky. Gen. Stat. 1873, ch. 113, Alabama. Code, 1876, Title 4, ch. 2, 

p. 834. p. 588. - 

Pennsylvania. Bright. Purd. Digest, Arkansas. Digest, 1874, ch. 135, p. 1013. 

1700-1872, Vol. 2, p. 1477. California. Codes & Stat. 1876, Vol. 1, 

Virginia. Code, 1873, ch. 118, p. 910. Title 6, ch. 1, p. 723. 

West Virginia. R. S. 1878, ch. 201, Dakota. Rev. Code, 1877, Title 5, ch. 1, 

p. 1169. p. 346. 

Will revoked by the marriage of the "tes- New York. R. S. 1875, Vol. 3, ch. 6, p. 63. 

tator":— Oregon. Gen. Laws, 1843-1872, ch. 64, 

California. Codes & Stat. 1876, Vol. 1, p. 788. 
Title 6, ch. 1, p. 723. Pennsylvania. Bright. Purd. Digest, 

Dakota. Rev. Code, 1877, Title 5, ch. 1, 1700-1872, Vol. 2, p. 1466. 
p. 346. * The rule stated in the text applies as 

Georgia. Code, 1873, Title 6, ch..2, p. 427. well to a case where the testator had children 

Illinois. R. S. 1880, ch. 39, p. 422. by a former wife, who are provided for in 

Nevada. Comp. Laws, 1873, ch. 37, tfie will, as where he was without children at 

p. 201. the time it was executed. Havens v. Van 

Will of man or woman revoked by his or Den Burgh, 1 Denio, 27. 
her man-iage : ^ * Brush v. Wilkins, 4 Johns. Ch. 606; 

Kentucky. Gen. Stat. 1873, ch. 113, Warner?!. Beach, 4 Grav, 162; Bancroft ». 

p. 834. Ives, 3 Gwv; 367 ; Coates v. Hughes, 3 Binn. 

North Carolina. Battle's Revisal, 1873, 498; Walker d. Hall, 34 Penn. St. 483; Ed- 

ch. 119, p. 854. wards's Appeal, 47 Penn. St. 144; Havens t). 

Pennsylvania. Bright. Purd. Digest, Van Den Buigh, 1 Denio, 27 ; Bloomer v. 

1700-1872, Vol. 2, p. 1477. Bloomer, 2 Bradf. Sur. 339 ; 4 Kent, Com. 

Virginia. Code, 1873, ch. 119, p. 910. 527. ■ 

151 ' 



*124 KBVOCATION OP WILLS 

sonalty, at an early period (/), and was more recentl3' and reluctantly 
extended to devises of freeliold estates, its application to which had 
been supposed to be precluded by the Statute of Frauds (ff) ; but Chris- 
topher V. Christopher (A), which occurred in 1771, and another decision 
which speedily followed (i), closed all controversy on the point. The 
case' of Christopher v. Christopher also decided that the revocation was 
not confined to the case of an unmarried testator ; but equally applied, 
where a married man made a will, then survived his wife, married 
again, and had issue b^- his second wife. It was also immaterial that 
the birth of the child was posthumous, and that the probability' of such 
birth was never disclosed to the testator ; as the doctrine does not sup- 
Rules of the PO^^ that, in everj' particular instance, an intention to re- 
civii law in voke actually exists ; but it annexes to the will a tacit 
iafclaims to Condition that the party does not intend it to come 

a provision. *124 into * operation, if there should be a total change in 
the situation of his family (k).^ 
It has never been decided, whether to produce revocation the children 
„ . must spring from the subsequent marriage, or it is sufficient 

whether chil- that a testator has future children of an existing marriage, 
spring'from Survives his wife, and then marries again, but has no chil- 
suhsequent dren by the second wife. In Gibbons v. Caunt (/), Sir R. P. 
" ■ Arden, M. R., inclined to the conclusion that the order of 
the events made no difference, and that the will was equally revoked in 
either case. 

eum hseredem instituat, vel exhseredem eum nominatim faciat. Alioquin, si eum silentio 
prseterierit, inutiliter testabitur; adeo quidcm ut et si vivo patre Alius mortuus sit, nemo hieres 
ex eo testamento existeie possit ; quia scilicet ab initio non constiterit testamentum." .lust. 
Inst. lib. 2, cap. 13, s. 5. And the rule was extended to the children of a son who was dead, 
or ceased to be imder his father's power; and was further extended by Justinian to aH the 
children of a testator, female as well as male, and all the other descendants by the male line. 
Lib. 2, c. 13, s. 5. And even the arroj^ation of an independent person, or the adoption of a 
child under the power of its natural parent (in respect of which the civil law makes special 
provisions), was a revocation of an antecedent will. *' Si quis enim post factum testamen- 
tum adoptaverit sibi filium per imperatorem. eum, qui est sui juris aut per prajtorem, secun- 
dum nostram constitutionem, eum, qui in potestate parentis fuevit, testamentum ejusrumpitur, 
quasi agnatione sui hseredis." Lib. 2, c. 17, s. 1. The civil law, too, left it open to children 
to complain, not only that they were omitted in a will, but that they were unjustlv disinher- 
ited; and the suggestion in such a case was, that the testator was (iisordered in liis senses, 
though, to support his allegation, it was only necessary to prove that the will was inconsis- 
tent with the duty of a parent. See Just Inst. lib. 2, c. 18, De inofficioso testamento. Hap- 
pily these laws, so hostile to the spirit and genius of our free constitution, have never found 
a reception in this country, whose sound policy it has been to leave unfettered the power of 
disposing of property. 

(/) Overburv d. Overburv, 2 Show. 242 ; Lugg v. Lugg, 2 Salk. 592, [1 Ld. Raym. 441, 
12 Mod. 236;] BVown v. Thompson, 1 Eq. Ab. 413, pi. 15; Evre v. Eyre, 1 P. W. 304 n., 
and Cas. cit. 2 Ed. 266, 1 Phillim. 478. 

(o) See Parsons «. Lanoe, 1 Ves. 192, [I'Wils. 243, Amb. 557;] Gibbons ii. Caunt, 4 Ves. 
848. 

(70 Dick. 445, cit. 4 Burr. 2182. (j) Spraage v. Stone, Amb. 721. 

(h) Doe ». Lancashire, 5 T. R. 49; [Israeli v. Rodon, 2 Moo. P. C. C. 51; Matson ». 
Magrath, 1 Rob. 680, 6 No. Cas. 709, 13 Jur. 350.] 

(0 4 Ves. 848. 

1 Revocation of a will cannot be implied the birth of another child contemplated in 
by law from the death of the testator's wife the will. Warner v. Beach, 4 Gray, 162. 
and of one of his children, leaving issue, and 

152 



BY MAEEIAGE AND ISSUE. *125 

[Marriage and the birth of issue do not produce revocation * of a will 
made before 1838, where there is a provision made for the Effect of pi-o- 
wife and childi-en by the will itself (m), or, it is conceived, '■''^'"'" fo; 
by settlement executed previously to the will. But it fol- children,' o^r"' 
lows, from the doctrine before alluded to, viz., that this '^''^''• 
kind of revocation is the result of a tacit condition annexed to the will, 
taken in connection with the circumstances as they exist at the date of 
its execution, that a provision for wife and children, under a settle- 
ment executed after the will, cannot prevent revocation, as it might 
have done if the question had been one merely of intention (n). 
Neither will a provision for the wife alone suffice, though made before 
the will (o) ; and it is not clear that a provision for children alone, 
though made before the will, would be sufficient for that purpose ; for 
since the revocation by marriage and the birth of children results froru 
a tacit condition annexed to the will, that it shall be so revoked unless 
both wife and children are provided for, and is not dependent on the 
testator's intention, no circumstance demonstrative of a contrary inten- 
tion on his part," such as a provision for children (though the birth of 
children necessarily supposes marriage), can aflfect the question. And 
Kenebel v. Scrafton (before referred to) in terms confines the exception 
to the case where both wife and children are provided for.] 

According to the opinions of Lord Mansfield (p), Effect where 

Lord * EUenborough (9), [and Tindal, C. J. (r),J the *125 pi'liali^"''' 
revocation does not take place where the will dis- only. 

poses of less than the whole estate.' Supposing this to be clear 
(though it has never been positively decided), it would remain to be 
considered, whether a will which aetuallj^, though not professedly, dis- 
poses of the testator's entire estate, as where there are particular gifts 
sufficient to absorb the whole, but no residuary disposition, falls within 

Um) Kenebel v. Scrafton, 2 East, 530. This decision was overlooked by Sir C. Cresswell 
in Re Cadywold, 1 Sw. & Tr. 34, 27 L. J. Prob. 36, which cannot therefore be taken as an 
authority. 

(n) Israeli v. Rodon, 2 Moo. P. C. C. 51; overruling Talbot ». Talbot, 1 Hagg. 705; John- 
ston V, Wells, 2 Hagg. 561, and apparently Ex parte Earl of Ilchester, 7 Ves. 348; see also 
Matson n. Magrath, 1 Rob. 680, 6 No. Cas. 709, 13 Jur. 350. 

(o) Marston v. Roe d. Fox, 8 Ad. & Ell. 14, 2 Nev. & P. 604, which seems to overrule 
Brown ». Thompson, 1 Eq. Ab. 413, pi. 15.] (p) Bradv v. Cubit, Doug. 31. 

(j) Kenebel w. Scrafton, 2 East, 541. [(?•) Marston ». Roe d. Fox, 8 Ad. & Ell. 67.] 

1 Brush ». Wilkins, 4 Johns. Ch. 510; sonal as well as real estate, and is annexed 

Yerby v. Yerby, 3 Call, 334 ; Fox v. Mars- to it at the time of making the will, which 

ton, 1 Curteis, 494 ; 4 Kent, 523 ; Havens v. speaks from that period, and not from the 

Van Den Burgh, 1 Denio, 27. But in Israeli testator's death. The same was held as to 

». Rodon, 2 Moore, P. C. 51, it was held that real estate in Marston ». Fox, 8 Ad. & E. 14. 

marriage and birth of a child do not afford But see Fox v. Marston, 1 Curteis, 494. 

presumptive evidence of intention to revoke. See to the same effect Jacks v. Henderson, 

but are in themselves an absolute revocation 1 Desaus. 643, 567. 

of a will made previous to marriage, and not ^ gee Brush v. Wilkins, 4 Johns. Ch. 510; 

in contemplation of it; the rule being that Yerby v. Yerby, 3 Coll. 334; 4 Kent, 623; 

there is a tacit condition annexed to the will, Havens B. Van Den Burgh. 1 Denio, 27; 2 

at the time of making it, that it should not Greenl. Ev. § 684. But Israeli i). Rodon, 

have effect, provided the deceased marry supra, is contra. 

and have a child subsequently born. Such 3 Havens v. Van Den Burgh, 1 Denio, 

tacit condition is applicable to a will of per- 27 ; Yerby v. Yerby, 3 Call, 337, per Roane, J. 

153 



.*126 EEVOOATION OF WILLS 

the principle. [Considering, liowever, that the inquiry is not what the 
testator intended, but of the fact whether the wife and cliildren be pro- 
vided for, it can scarcely be doubted that this question would, if it 
arose, be answered in the affirmative.] In Marston v. Roe («), it was 
contended that the descent of an after-acquired real estate upon the 
child, in whose favor the wiU was contended to be revoked, prevented 
the revocation; but Tindal, C. J., who delivered the judgment of the 
Court of Exchequer Chamber, expressed a decided opinion against 
allowing the question of revocation, depending upon a tacit condition 
annexed to the wiU, to be influenced by circumstances posterior to its 
execution ; though, as the court considered that what had here de- 
scended to the child was a mere legal estate, the case did not raise the 
point. 

It seems, also, that marriage and the birth of a child or children 
Will not re- revoke a will which is subject to the old doctrine', only where 
,voked in. ^he eflfect of throwing open the property to the disposition of 
pre-existing the law^ would be to let in suchiafter-born child or children ; 
child. ^Qj,^ jf j^ -would operate for the exclusive benefit of a pre- 

existing child, the ground for subverting the will fails. Thus in Sheath 
v.. York (<), where a testator having a son and two daughters, directed 
his real and personal estate to be sold for payment of his debts and for 
the benefit of those children. The testator was at that time a widower ; 
he married again, and had issue, one child. The question arose on a 
bill filed by the creditors for a sale, whether the will was revoked as to 
the real estate. Sir W. Grant held that it was not.^ " In all the cases," 
he s£tid, " the will has been that of a person who, having no children at 
the time of making it, has afterwards married, and had an heir born to 
him. The effect has been to let in such after-born heir to take an 

estate disposed of by a will made before his birth. The condi- 
*126 tion implied in these cases was, that the testator, when *he 

made his will in favor of a stranger, or more remote relation, 
intended that it should not operate if he should have an heir of his own 
body. In this ease, there is no room for the operation of such a condi- 
tion, as this testator had children at the date of the will, of whom one 
was his heir apparent, and was alive at the period of the second mar- 
riage, of the birth of the 'children by that marriage, and of the testator's 
death. Upon no rational principle, therefore, can this testator be. sup- 
posed to have intended to revoke his will on account of the birth oi 
other children, those children not deriving any benefit whatever from 
the revocation, which would have operated only to let in the eldest son 
to the whole of that estate, which he had by the will divided between 
the eldest son and the other children of the first marriage." ^ 

(s) 8 Ad. & Ell. 14. (0 1 Ves. & B. 390. 

1 But see Havens v. Van Den Burgh, April, 1794, marriage or birth of issue 
1 Denio, 27. amounts to a revocation of a will previously 

2 Uuder the Pennsylvania Act of 19th made only so far as regards the widow, or 

154 



BY MARRIAGE AKD ISSUE. *127 

The reasoning of the M. R. extends only to cases in which the heir 
is among the pre-existing children ; and, it is probable, that Ee^^rka 
the revocation would take effect, notwithstanding the exist- upon Sheath 
ence of such children, where the consequence of the intes- "' ^°*' 
tacy would be to cast the estate on one of the subsequently born children 
(being an eldest or only son), or upon the children of both marriages 
(all being daughters). Such is the rule in regard to personal estate 
(this, or at least the children's share of it, being distributable among 
all the children pari passu), a testamentary disposition of which has 
been decided to be revoked by a subsequent marriage and birth of 
children, notwithstanding the prior existence of children (m).^ These 
observations assume, that the effect of the will being revoked by 
the application of the doctrine in question, will be to . produce intes- 
tacy ; but this is not necessarily the case ; for the consequence of the 
revocation might have been (x) to revive a prior uncancelled will, which 
contained a provision for the wife and children, protecting it from the 
revocation which the marriage and the birth of children produced on 
the subsequent will. 

At one period it appears to have been supposed that, if the child or 
children, whose birth had revoked or contributed to revoke -q^^i^ ^f 
the will, died in the lifetime of the testator, this event child in tes- 
would restore its efficacy,^ the reasoning being founded on a ymg immate- 
fancied, but evidently mistaken analogy to the case of a "al. 
will whose operation has been restored by the destruction of a 
* subsequent revoking or inconsistent will (y). The latter doc- *127 
trine, however, is obviously a consequence of the ambulatory 
state of the instrument during the testator's lifetime, and stands upon 
grounds which do not apply to the class of revocations under consider- 
ation ; and therefore it has been, in later times, most properly adjudged 
that a will, once revoked by marriage and the birth of a child, contin- 
ues revoked, notwithstanding the decease of such child before the will 
takes effect (z).' 

[It seems, therefore, that the rule of law is this, that a will executed 
before the statute 1 Vict. e. 26, is revoked bj' subsequent Ruiejobe 
marriage and the birth of issue, unless provision is made for deduced from 
them by the will, or by previous settlement ; or unless rev- ^ '^''^^^' 

(u) HoUoway v. Clarke; 1 Phillim. 339 ; [Walker v. Walker, 2 Curt. 854;] see also Gib- 
bons V. Caunt, 4 Ves. 849 ; Wright v. Netherwood, 2 Salk. by Evans, 593, n. 

[(a) Not since 1 Vict. c. 26, s. 22.] 

(j) Wright V. Netherwood, 2 Salk. by Evans, 593, n.; 2 Phillim. 266 n. 

(z) Helyar v. Helvar, cit. 1 Phillim. 413 ; Sullivan v. Sullivan, cit. 1 Phillim. 343; Emer- 
son V. Boville, 1 Phillim. 342. 

child or children, after bom, although the i See Havens v. Van Den Burgh, 1 Denio, 

subsequent issue is the testator's only child. 27. 

As to provisions not interfering with'the in- 2 it is provided by statute, in Virginia and 

terest of the widow and children, such as the Kentucky, that a child born after the will, if 

appointment of executors, a power to sell for the testator had no children before, is a revo- 

the payment of debts, &c., the will still re- cation, unless such child dies unmarried or 

mains in force. Coates v. Hughes, 3 Binn. an infant. A Kent, 526. 

498. And that is the law generally. 3 Ash v. Ash, 9 Ohio St. 383. 

155 



*128 BBVOCATION OF WILLS 

Parol evi- ocation would produce no benefit to those obiects.1 It was 

denceofin- „ , ,. ^. , ,, ,, -, -^ 

tention inad- for a long time a question whether the presumed revocation 
missible. could be rebutted by parol evidence [of circumstances or 
declarations showing merely a contrarj' intention on the part of the 
testator.] In Brady v. Cubit (a), Lord Mansfield considered the evi- 
dence to be admissible ; but his notion was warmly opposed in Good- 
title V. Otway (6) by Eyre, C. J., who observed that, in cases of 
revocation by operation of law, the presumptio juris is so violent, that 
it does not admit of circumstances to be set up in evidence to repel it. 
Lord Kenj'on and BuUer, J., in Doe v. Lancashire (e), also strongly 
expressed their objection to, and disregard of, the parol evidence, which 
had been adduced to show that the testator intended to make another 
will excluding the child, whose birth, with the previous marriage, pro- 
duced the revocation. Sir R. P. Arden, M. R., in Gibbons v. Caunt(rf), 
said, that he believed they went the length of admitting the evidence, 
but he did not like it. In Kenebel v. Scrafton (e) , parol evidence of 
an intention not to revoke was offered; but Lord Loughborough, on 
sending the case to the Court of K. B., observed, " that the parol evi- 
dence did not weigh at all, being only conversations, and not amounting 
to a republication, a court of law would pay no regard to it : " but the 
conclusion at which the court arrived on another point rendered it 
unnecessary to enter into the question of the admissibility of the evi- 
dence. This question has now been set at rest by Marston v. 
*128 Roe (/), in which the judges, * after an elaborate argument, 
unanimously decided against the admissibility of the evidence, 
as being productive of the evils, the prevention of which was the great 
object of the enactments respecting wills in the Statute of Frauds.' 
This view of the subject, of course, excluded the applicability of the 
cases in the ecclesiastical courts, where the evidence was long ad- 
Wills made mitted in regard to wills of personal estate {g) . No ques- 
absduteiy *^°'^ ^^ *^^^ nature can occur, under any will made since the 
revoked by year 1837, as the act 1 Vict. c. 26, sect. 18, has provided, 
under^ Vict. " That every will made by a man or woman shall be revoked 
o. 26. by his or her marriage (except a will made in exercise of a 

power of appointment, when the real or "personal estate thereby ap- 
pointed would not, in default of such appointment, pass to his or her 
heir, customary heir, executor, or administrator, or the person entitled 

(a) Dougl. 31. (i) 2 H. Bl. 522. 

(c) 6 T. E. 61. (d) I Ves. 848. 

(e) 5 Ves. 663, 2 East, 530. 

(/) 8 Ad. & Ell. 14. [This case seems to have been overlooked bv Sir E. Sueden in Hall 
V. Hill, 1 D. & War. 114, 115.] " ^ 

(g) See Gibbens v. Cross, 2 Ad. 455 ; Fox v. Marston, 1 Curt. 494. [The practice of those 
courts-is now altered in conformity with Marston v. Roe; Israeli v. Rodon, 2 Moo. P. CO. 51: 
Matson v. Magratb, 1 Rob. 680, 6 No. Cas. 709, 13 Jur. 350. 

1 See Brush ». Wilkins, 4 Johns. Ch. 506. 
166, 



BY MAEEIAGB AND ISSUE. *129 

as his or her next of kin under the Statute of JDistributions " (h)) ; and 
(s. 19) that " no will shall be revoked by any presumption of an inten- 
tion on the ground of an alteration in circumstances." ^ 

These clauses suggest only two remarks : — 

1st, That, unless in the expressly excepted eases, marriage alone 
will produce absolute and complete revocation, as to both 
real and personal estate ; and that no declaration, however upon the 
explicit and earnest, of the testator's wish that the will ^"*<='™«"'- 
should continue in force after marriage, still less any inference of in- 
tention drawn from the contents of the will, and, least of all, evidence 
collected aliunde, will prevent the revocation. 

2d, That merely the birth of a child, whether provided for by the 
will or not, will not revoke it ; the legislature, while it invested with a 
revoking efficacy one of the several circumstances formerly requisite to 
produce revocation, having wholly disregarded the other. 

The new rule, though it maj- sometimes produce inconvenience, has 
at least the merit of simplicity, and will relieve this branch of testa- 
mentary law from the many perplexing distinctions which gi-ew out of 
the pre-existing doctrine. 

* [Wills made before 1838 are still goyerned by the old law, *129 
so far as respects revocation by marriage, and the birth of „.,. , 
issue. 'By sect. 34 of the act 1 Vict. c. 26, it is enacted, before i Vict, 
that ' ' the act shall not extend to any will made before the revoke'd since 
1st January, 1838 ; " and although (as we shall hereafter that act. 
see ({)), all acts of revocation, which are apparent on the face of the will, 
must, as to wills made before that date, be executed in conformitj' with 
the requirements of the new law ; yet this section leaves all other modes 
of revoking such wills — namely, those which do not appear on the face 
of the will — to the operation of the old law ; and, consequently, mar- 
riage alone, without the birth of children, will not, at the present day, 
revoke a will made before 1838 (^).] ^ 

(h) I. e., next of kin, as such. Where the limitation in default of appointment was to the 
donee's children , who happened to be also his next of kin under the statute, the exception 
was nevertheless held to apply, Re Fitzroy, 1 Sw. & Tr. 133 ; Re Fenwick, L. R. 1 P. & D. 
319. A fortiori where the limitation in default is to some only of the statutory next of kin, 
Re M'Vfcar, L. R. 1 P. & D. 671. 

[(i) Brooke v. Kent, 3 Moo. P. C. C. 334, and other cases post, p. 143. 

(k) Langford v. Little, 2 Jo. & Lat. 633; Re Shirley, 2 Curt. 657, overruling a contrary 
dictum in Hobbs ». Knight, 1 Curt. 768. 

1 The long-continued insanity of the tes- wards's Appeal, 47 Penn. St. 144. And the 
tator after the execution of the will, if he same is true in Indiana. Morse v. Morse, 42 
were sane when he executed it, affords no Ind. 365; Hughes v. Hughes, 37 Ind. 183. 
presumption of revocation, even though the So at common law in Iowa as to children 
propertv devised has in the mean time greatly born after the marriage and will, and before 
enhanced in value. Warner ». Beach, 4 Grav, the testator's death. Negus v. Negus, 
1C2. 46 Iowa, 487 ; Fallon v. Chidester. ib. 588 ; 

2 Marriage or the birth of a child after the McCullum v. McKenzie, 26 Iowa, 510. And 
making a will works a revocation by statute it is immaterial whether the testator had or 
in Georgia, unless" a provision is made in the had not children when he executed the will, 
willin contemplation of such event. Deupree Negus «. Negus, supra. The presumption of 
V. Deupree, 45 Ga. 415. So also in Pennsvl- revocation in Pennsylvania on the birth of a 
vania, though the child be posthumous, fid- child is not overcome by a provision in the 

157 



429 



KEVOCATION OF WILLS 



Section II. 



By Burning, Cancelling., Tearing, or Obliterating.. 

By the 6th section of the Statute of Frauds [it is enacted, " that 
EeTocationof ^° devise in writing of any lands, tenements or heredita- 
wiii of lands ments, nor any clause thereof, shall be revocable otherwise 
than by some other will or codicil in writing, or other writ- 
ing declaring the same, or] by burning, cancelling, tearing, 
or obliterating the same by the testator himself, or in his 
presence and \>y his directions and consent ; [but all devises 
and bequests of lands and tenements shall remain and continue in force 

(0 29 Car. 2, c. 3, s. 6 ; Irish Pari. 7 Will. 3, c. 12, s. 6. 



by burning, 
tearing, can- 
celling, or 
obliterating, 
under the old 
law. 



will expressing confidence in the testator's 
wife, "believing that should a child be born 
to us, she will do the utmost to rear it to the 
honor of its parents." "Walker v. Hall, 
34 Penn. St. 483. 

Statutes in favor of children of a testator 
(including posthumous issue) who have not 
been provided for by his will : — 

Alabama. Code, 1876, Title 4, ch. 2, 
p. 586. 

Arkansas. Digest, 1874, ch. 135, p. 1013. 

California. Codes and Stat. 1876, Vol. 1, 
Title, 6, ch. 1, p. 724. 

Colorado. Gen. Laws, 1876, ch. 103, 
p. 931. 

Connecticut. Gen. Stat. 1875, ch. 11, 
p. 370. 

Dakota. Rev. Code, 1877, Title 5, ch. 1, 
p. 347. 

Delaware. Eev. Code, 1874, ch. 84, 
pp. 510, 511. 

Georgia. Code, 1873, Title 6, ch. 2, p. 425. 

Illinois. E. S. 1880, ch. 39, p. 422. 

Indiana. Stat. 1876, Vol. 2, ch. 3. p. 572. 

Iowa. Kev. Code, 1880, Vol. 1, Title 16, 
ch. 2, p. 608. 

Kansas. Comp. Laws, 1879, ch. 117, 
p. 1004. 

Kentucky. Gen. Stat. 1873, ch. 113, 
pp. 836, 837. 

Maine. E. S. 1871, ch. 74, p. 564. 

Massachusetts. Gen. Stat. 1880, ch. 92, 
pp. 478, 479. 

Michigan. Comp. Laws, 1871, Vol. 2, 
ch. 154, p. 1375. 

Minnesota. Stat. 1878, ch. 47, p. 570. 

Mississippi. Kev. Code, 1871, ch. 54, 
pp. 525, 526. 

Missouri. E. S. 1880, Vol. 1, ch. 71, p. 681. 

Nebraska. Gen. Stat. 1873, ch. 1 7, p. 304. 

Nevada. Comp. Laws, 1873, Vol. 1, 
ch. 37, p. 201. 

New Hampshire. Gen. Laws, 1878, ch. 
193, p. 455. 

New Jersey. Revision, 1709-1877, Vol . 2, 



See Wilson v. Fritts, 32 N. J. Eq. 
1875, Vol. 3, ch. 6, 
Battle's Revisal, 1873, 



E.S. 



p. 1246. 
59. 

New York, 
p. 64. 

North Carolina, 
ch. 45, p. 413. 

Ohio. R. S. 1880, Vol. 2, ch. 1, p. 14.32. 

Oregon. Gen. Laws, 1843-1872, ch. 64, 
pp. 788, 790. 

Fennsvlvania. Bright. Purd. Digest, 
1700-1872, Vol. 2, p. 1477. 

Rhode Island. Gen. Stat. 1872, ch. 171, 
p. 374. 

South Carolina. E. S. 1873, Title 3, 
ch. 86, p. 444. 

Tennessee. Stat. 1871, Vol. 2, Title 3, 
ch. 1, p. 1011. 

Texas. R. S. 1879, Title 99, p. 713. 

Utah. Comp. Laws, 1876, ch. 2, p. 272. 

Vermont. Gen. Stat. 1862, ch. 49, 
p. 380. 

Virginia. Code, 1873, ch. 118, p. 912. 

West Virginia. R. S. 1878, ch. 201, 
p. 1171. 

Wisconsin. R. S. 1878, ch. 103, p. 650. 

It has been held under the Massachusetts 
statute, which declares that any child, &c., 
of a testator, for whom he has omitted to 
provide in his will, shall take a share of his 
estate, as if he had died intestate, " unless it 
shall appear that . such omission was inten- 
tional, and not by any mistake or accident," 
that it is not necessary that it should appear 
by the wijl itself that such omission was in- 
tentional : the fact may be shown by parol evi- 
dence. Wilson V. Fosket, 6 Met. 400; Ban- 
croft V. Ives, 3 Gray, 367, 369, 370. But 
under Stat. Mass. 1783, c. 24, the rule as to 
the admission of parol evidence in such 
case was otherwise. Dewey, J., 6 Met. 404. 
The will is to be allowed and approved, not- 
withstanding such unintentional omission. 
The party injured by the omission has no 
interest or right to defeat the probate. Doane 
V. Lake, 32 Me. 268. The above cited pro- 



158 



BY BXJKNING, CANCKLLING, ETC. 



»130 



until the same be burnt, cancelled, torn, or obliterated by the testator 
or his directions in manner aforesaid, or unless the same be altered by 
some other will," &c., executed as therein mentioned. But the] burn- 
ing, cancellation,^ tearing, or obliteration was not required to be at- 
tested by witnesses. [As the revocation of a will of per- „ .■ , 
sonalty was subject only to the restriction (m) of not being wills of per- 
altered or changed by any words, or by will by word of ^""^'y- 
mouth only, except the same were committed to writing, any of the 
acts mentioned in the 6th section were- of course sufficient to revoke 
such a will. J 

* The enactment has not been construed so strictly as to exclude *130 
all evidence tending to show quo ammo the act was done, 
which is a conclusion to be drawn by a court or jury from „nimm&i- 
all the circumstances.^ The mere physical, act of destruc- mitted. 

[(m) See sect. 22 of Eng. & Ir. Statute. 



vision of the Statutes of Massachusetts was 
held in Bla^ge v. Miles, 1 Story, C. C. 426, 
to apply pnly to cases where the estate is the 
testator's own property, and not to cases 
where the testator has only a power of ap- 
piitntment over the estate to dispose of the 
inheritance. An illegitimate child, uninten- 
tionally omitted to be provided for in the 
will of its mother, is not entitled under the 
above provision in the statutes of Massachu- 
setts to the share of the mother's estate, 
which it would have taken, under the laws 
of that state, if the mother had died intestate. 
Kent V. Barker, 2 Gray, 535. By the New 
York Revised Statutes, if the will disposes of 
the whole estate, and the testator afterwards 
marries, and has issue born in his lifetime, 
or after his death, and the wife or issue be 
living at his deaths the will is deemed to be 
revoked; unless the issue be provided for bv 
the will, or by a settlement, or unless the will 
shows an intention not to make any provi- 
sion. No other evidence to rebut the pre- 
sumption of such a revocation is to be re- 
ceived. Brush ». Wilkins, i Johns. Ch. 506. 
This provision is supplemented by another 
prescribing the exact extent of the proof 
necessary to rebut the presumption of a revo- 
cation, thus relieving the courts from all diffi- 
culty on that embarrassing point. 4 Kent, 
527. Provisions for this case, similar to 
those of New York, exist in other states. 
After the Virginia Act of 1792, and before 
the .ict of 1794, concerning wills, a man hav- 
ing children, made a will, and devised his 
whole estate amongst them; after which he 
married a second wife, by whom he had chil- 
dren, and dying without "altering his will, the 
second marriage and birth of children were 
held no revocation of the will. Yerby v. 
Yerby, 3 Call, 334. Respecting this case of 
Yerby ». Yerby, Bronson, J., in Havens ». 
Van "Den Burgh, 1 Denio, 29, said, that it 
turned upon its own peculiar circumstances. 
"The testator had declared that his first 
children, who were devisees in the will, 



should not be injured by the second mar- 
riage ; and in. his last illness he refused to 
alter the will, though he expressed the in- 
tention of making some alterations when he 
got well. Having thus referred to and re- 
fused to alter the will, after the change of 
circumstances from which a change of inten- 
tion might otherwise have been inferred, the 
court thought it impossible to presume a rev- 
ocation." In this case of Havens v. Van 
Den Burgh, it was accordingly held that the 
rule that the marriage and birth of a chilA 
are an implied revocation of a will previously 
made, disposing of the testator's whole es- 
tate, where there is no provision in or out of 
the will for such new relations, applies as 
well to a case where the testator had chil- 
dren by a former wife, who are provided for 
in the will, as where he was without children 
at the time it was executed. 

1 As to this term, see Warner v. Warner, 
37 Vt. 356; Evans's Appeal, 58 Penn. St, 
2.38. The cancellation or cutting off a por- 
tion of the devises in a will, leaving the tes- 
tator's signature at the conclusion, or in the 
bod}', when no other signing had been in- 
tended, with the declaration that the inten- 
tion was to annul only what was so cancelled, 
leaves the residue a valid will. Brown's 
Will, 1 B. Mon. 57. The word "obsolete," 
written by a testator on the margin of his 
will, but not signed by him, or by any per- 
son for him, in the mode prescribed by the 6th 
section of the Penn. Act of Stli April, 1833, 
does not operate as a revocation of the will 
under the 13th section of that act. Lewis v. 
Lewis, 2 Watts & S. 455. See In re Farv, 9 
Eog. L. & Eq. 600. But in Witter v. ifott, 
2 Conn. 67, the declaration subscribed bj' the 
testator on the back of his will, " This will is 
invalid," was held an express revocation of 
it, although not attested by any subscribing 
witness. See Semmes v. "Semmes, 7 Harr. 
& J. 388; Johnson v. Brailsford, 2 Nott & 
McC. 272. 
2 Revocation is a question of intention; 



159 



»130 



KEVOCATION OP WILLS 



tion is itself equivocal, and may be deprived of aU revoking efficacy ,by 
explanatory evidence, indicating the animus revoeandi to be wanting.' 
Tlius, if a testator inadvertently' throws ink upon his will, instead of 
sand (m), or obliterates [or attempts to destroy] it during a fit of in- 
sanitj' (n) ," [or tears it up under the mistaken impression that it is 
invalid («),] it will remain in full force, notwithstanding such accidental 
or involuntary [or mistaken] act. So, the destruction of the instru- 
ment by a third person in the lifetime, but without the permission or 
knowledge of the testator, would not affect its validitj' ; * a fortiori, if 
the destruction took place after his decease {p). In the converse case, 
however, where there is an intention on the part of the testator to 
destroy the will, but the act is not completed, the authorities present 
more matter for consideration.* 

The early case of Bibb d. Mole v. Thomas (q) has generally- been con- 
Revocation sidered to establish that a very slight act of tearing is suffl- 
tearln's.'^' cient to effect a revocation, if done with such intention ; the 

(m) Per Lord Mansfield, Burtonshaw v. Gilbert, Cowp. 52.1 

(») Scrubv V, Fordhain, 1 Ad. 74. [Borlase v. Borlase, 4 No. Cas. 139 ; Re Shaw, 1 Curt. 
905; Re Downer, 18 Jur. 66 ; Brunt v. Brunt, L. R. 3 P. & D. 37. 
(o) Giles V. Warren, L. R 2 P. & D. 401.] 
(p) Haines v. Haines, 2 Vern. 441. (q) 2 W. Bl. 1043. 



and evidence is admissible to show the inten- 
tion of the testator in cancelling a will. 
Smiley v Gambill, 2 Head, 164; Marr v. 
Marr, ib. 303; Burns v. Burns, 4 Serg. & R. 
295; Smock v. Smock, 11 N. J. Eq. 156; 
Boudinot v. Bradford, 2 Yeates, 170; S. C. 
2 Dallas, 266 ; Upfill v. Marshall, 3 Curteis, 
636; Means v. Moore, 3 McCord, 282. .The 
mere act of cancelling is nothing, unless it 
be done animo revoeandi. Jackson v. Hollo- 
way, 7 Johns. 394. See Overall y. Overall, 
Litt. Sel. Cas. 604; 4 Kent, 531, 532. Can- 
cellation of a will, by drawing lines across it, 
is an equivocal act, and may be explained by 
circumstances. Bethell v. Moore, 2 Dev. & 
B. 311; Smock v. Smock, supra. If, how- 
ever, the will be found cancelled, the law in- 
fers an intentional revocation; for it is prima 
facie evidence of it, and the inference stands 
good until it is rebutted. 4 Kent, 532; Jack- 
son V. Halloway, 7 Johns. -^94; Bethell*. 
Moore, 2 Dev. & B. 311. The slightest de- 
gree of cancellation, &c., with intent to re- 
voke, will operate as a revocation, Dan v. 
Brown, 4 Uowen, 483; 4 Kent, 582; Johnson 
V. Brailsford, 2 Nott & McC. 272 ; Jackson 
!). Betts, 6 Cowen, 377. K a man having two 
wills in his hand, intending to destroy the one 
last-made, by mistake destroys that first exe- 
cuted, the law does not require, in order to 
revive and establish the will intended to be 
destroyed, such proof as is necessary to give 
validity to an onginal will. Burns v. Burns, 
4 Serg. & R. 295. 

1 Dan ». Brown, 4 Cowen, 490. 

2 It requires the same capacity to revoke 
a will, as to make one; so where a compe- 
tent testator makes a will, and the paper is 



afterwards destroyed by his consent given 
when he had become non compvs, the devises 
are not destroyed; but thewill may be setup 
and established. Allison v. Allison, 7 Dana, 
94; Idleyi-. Bowen, 11 Wend. 227; Rhodes 
V. Vinson, 9 Gill, 169; Smith v. Wait, 
4 Barb. 28. So, it is held, of the destruction 
of a will by the testator upon his death-bed, 
under threats and complaints, or undue in- 
iiuence affecting his freedom of action. Bat- 
ton V. Watson, 13 Ga. 63. 

8 Bennett v. Sherrod,3 Ired. 303. But the 
failure of a testator who is informed of the 
loss or destruction of his will, to publish an- 
other, has been held to furnish a presump- 
tion of intention to revoke the will. Steele 
V. Price, 5 B. Mon. 58. However, this pre- 
sumption may be rebutted by other evidence, 
as, e. fj. by the declarations of the testator 
himself. Ib. 

< A blind testator directed his will to be 
destroyed, and supposed that it was so de- 
stroyed, when, in fact, no act had been done 
towards the destruction of it; and this was 
held to be no revocatitm or destruction un- 
der the statute in Virginia. Bovd v. Cook, 
3 Leigh, 32; Malone v. Hobbs, 1 Robinson, 
346. See Hise v. Fincher, 10 Ired. 139. But 
in a case where a testator was ill in bed, and 
called for his will, and one of tlie executora 
and legatees deceived hini by handing him 
an old letter instead, it was held that if, from 
the i-estof the testimonv, the jurv believed 
that the testator destroye"d that letter, think- 
ing that it was his will, such circumstances 
would amount in law to a revocation of the 
will. Pryor v. Coggin, 17 Ga. 444. See 
note 2, p. 131. 



160 



BY BTJKNING, CANCELLING, ETC. *131 

facts were as follows: The testator (who had frequently declared 
himself dissatisfied with his will), being one day in bed near 
the fire, ordered W., a person who attended him, to fetch his will, 
which she did, and delivered it to him, it being then whole, only some- 
what creased ; he opened and looked at it, then gave it a rip with his 
hands, so as almost to tear a bit off, then rumpled it together, and 
threw it on the fire ; but it fell off. However it must soon have been 
burnt, had not W. taken it up, and put it into her pocket. The tes- 
tator did not see her do so, but seemed to have some suspicion of it, as 
be asked her what she was at, to which she made little or no answer ; 
the testator several times afterwards said that was not, and should not 
be his will, and bid her destroy it ; she said at first, " So I will when 
j'ou have made another ; " but, afterwards, upon his repeated inquiries, 
she falsely told him that she had destroyed it. She asked him to whom 
the estate would go when the will was burnt? he answered, to 
his * sister and her children. The testator afterwards told a *131 
person that he had destro3'ed his will, and should make no other 
until he had seen his brother J. M. , and desired the person would tell 
his brother so, and that he wanted to see him ; he afterwards wrote to 
his brother, saying, ' ' I have destroyed my will which I made ; for, 
upon serious consideration, I was not eas}' in my inind about that wiU ; " 
and desired him to come down, saying, " If I die intestate, it will cause 
uneasiness." The testator, however, died witiiout making another will. 
The jurj' thought this a sufficient revocation, and the court of C. P. was 
of the same opinion, on a motion for a new trial ; De Grey, C. J., ob- 
serving, that this case fell within two of the specific acts described by 
the Statute of Frauds ; it was both a burning and a tearing ; and that 
throwing it on the fire, with an intent to burn, though it was onlj' very 
slightly singed and fell oflf, was sufficient within the statute.* 

It is not, however, to be inferred from this case, that the mere inten- 
tion, or even attempt, of a testator to burn, cancel, tear, or Mere attempt 
obliterate his will, is sufficient to produce revocation, within to destroy 
the meaning of the Statute of Frauds ; for, the legislature necessarily 
having pointed out certain modes by which a will may be revocatory. 
revoked, it is not in the power of the judicature, under any circum- 
stances, to dispense with part of its requisitions, and accept the mere 
intention or. endeavor to perform the prescribed act, as a substitute or 
equivalent for the act itself, though the intention or endeavor ma3- have 
been frustrated by the improper behavior of a third person.^ 

1 See White v. Casten, 1 Jones, 197 ; John- partially or even totally revoke the will. The 

son V. Brailsford, 2 Nott & McC. 272. It presumption to be drawn must depend upon 

seems that there is no necessary presumption the facts apparent or shown in evidence, 

against a will by reason of the mere fact that ^ Mundv v. Mundy, 15 N. J. Eq. 290; 

the first few line's are missing from cutting and Gains ». Gfains, 2 A. K. Marsh. 190; Jacls- 

tearing. In re Woodward, L. R. 2 P. & D. son v. Betts, 9 Cowen, 208; Hise v. Fincher, 

206. But the nature of the words and the cir- 10 Ii-ed. 139 ; Clarke B. Scripps, 22 Eng L. 

cumstances attending their removal or oblit- & Eq. 627. See. however, Pryor v. Coggin, 

eration might clearly indicate an intention to 17 Ga. 444; Smiley v. Gambill, 2 Head, 164; 

VOL. 1. 11 161 



*132 BEVOCATION OP WILLS 

Thus, in Doe d. Reed v. Harris (r), where it appeared by the evi- 
dence of the testator's servant, that the testator had thrown the will on 
the fire, from which it was immediately snatched bj' a relative who 
lived with him, when the fire had merely singed the cover. The testa- 
tor afterwards insisted upon her giving up the will to be burnt, which 
she promised to do ; and, in order to satisfy the testator, threw some- 
thing into the fire, which was not the will (as she represented it to be), 
of which the testator appears to have had some suspicion ; for, upon 
the witness expressing her doubt whether the will had been destroj'ed, 
the testator said, " I do not care, I will go to L., if I am alive and well, 
and make another will." The Court of Q. B. held, that the will 
*132 was not revoked, on the ground that there had been no * actual 
burning of the instrument. " It is impossible," said Lord Den- 
man, " to s&Y that singeing a cover is burning a will within the mean- 
ing of the statute." Patteson, J., said, " To hold that it was so, would 
be saying, that a strong intention to burn, was a burning. There must 
be, at all events, a partial burning of the instrument itself; I do not 
saj- that a quantity of words must be burnt ; but there must be a burn- 
ing of the paper on which the will is." 

It was held, however, that the slight burning which occurred in this 
case, with the attendant circumstances and conduct of the testator, 
though not sufficient to satisfy the Statute of Frauds, yet had the effect 
of revoking the will in regard to property to which that statute did not 
extend, as copyholds (s). 

But (to return to cases within the statute) it is clear, that if a testa- 
Effect where ^^ ^® arrested in his design of destroj-ing the will, bj' the 
atestatoTsus- remonstrance or interference of a third person, 'or by his 
.stroylnVaot ^^''^ voluntary change of purpose, and thus leaves unfin- 
^before its ished the work of destruction which he had commenced, the 
comp e ion. ^.^ .^ unrevoked ; ^ and the degree in which the attempt 
had been accomplished, would not, it should seem, be very closely scru- 
tinized, if the testator himself had put his own construction upon his 
somewhat equivocal act, by subsequently treating the will as undestroyed. 

(r) 6 Ad. & Ell. 209, [2 Nev. & P. 615.] (s) Doe d. Reed v. Harris, 8 Ad. & Ell. 1. 

Blanchard v. Blanchard, 32 Vt. 62, as to 62. Indeed, it is broadly laid down that if a 
deception practised upon the testator as to revocation, as by burning, was interfered with 
revocation. See also Eunkle v Gates, H by fraud, without the testator's knowledge, 
Ind. 95. It is laid down in this countrv that the will does not become valid afterwards on 
if the maker of a will, with the intention of the discovery of the fraud without acts amount- 
revoking the instrument by destroying it, ing to a now publication. Kent v. Mahaffey, 
hum another paper, mistakenly supposing 10 Ohio St. 204; Bohanan v. Walcot, 1 How. 
tliat to be his will, and believe he has de- (Miss.) 336; Burns ti. Burns, 4 Serg. & R. 
stroyed it, and continue in that belief with- B67. ,0n the other hand a will fraudulently 
out any subseijuent recognition of it or knowl- destroyed may be set up again. Voorhees v. 
edge o"f its existence, this is held to amount to Voorhees, 39 N. Y. 463. The doctrine was 
a revocation. Smiley ». Gambill. 2 Head, 164; here applied to a case of undue influence. 
Ford ». Ford, 7 Humph. 104. Revocation, if i See Winsor r. Pratt, 2 Brod. & B. 652; 
prevented by the fraud of a donee will, also, Bethell n. Moore, 2 Dev. & B. 311; Giles v. 
It seems, be" considered as effected as to the Giles, Cam. & N. 174; Clarke v. Scripps, 22 
wrong-doer. Blanchard v. Blanchard, 32 Vt. Eng. L. & Eq. 627. 

162 



BY BUENUSTG, CANCELLING, ETC. *133 

Thus, in Doe v. Perhes (t), where a testator, upon a sudden provoca- 
tion by one of the devisees, tore his will asunder ; and, after being 
appeased, fitted the pieces together, and expressed his satisfaction that 
it was no worse, and that no material injury had been done ; it was 
held that the will remained unrevoked. Here (to use the language of a 
distinguished judge), (u) the intention of revoking was itself revoked, 
before the act was complete. [And in Elms v. Elms (x), the testator 
had torn his will nearly through, but the evidence seemed to show that 
he intended to do more, and was stopped by the remonstrance of a per- 
son present, and it was held that the will was not revoked.] 

In one instance, the Prerogative Court decided in favor of a will, 
without any distinct proof of its existence after the death of presumption 
the testator, or of its destruction in his lifetime ; there being as to destruc- 
strong reason, under all the circumstances, for supposing """""^"""s- 
that the testator had unintentionally destroyed it ; or, at all 
events, * that its destruction, whenever effected, was without his *133 
concurrence (y). The general rule in that court seems to be, 
that if a will is traced into the testator's possession, and [at his death] 
either cannot be found (z), or is found torn (a), the presumption is (in 
the absence of circumstances tending to a contrary conclusion (6)), that 
he destroyed or tore it animo revocandi ; ^ but that If the wiU is traced 



(0 3 B. & AM. 489: [and compare Re Colberg, 1 No. Cas. 90, 2 Curt. 832.1 

00 Vide 6 Ad. & Ell. 215. 

i(x) 1 Sw. & Tr. 155, 4 Jur. N. S. 341, 27 L. J. Prob. 96. And see Re Cockayne, 1 Dea. 
177, 2 Jur. N. S. 454.] 

(y) Davis ». Davis, 2 Ad. 223; [and see Patten v. Poulton, 1 Sw. & Tr. 55, 27 L.J. Prob. 
41, 4 Jur. N. S. 341.] 

(z) Lillie i.'. Lillie, 3 Hagg. 184; Wargent v Hollings, 4 Hagg. 245; Tagart «. Squire, 1 
Curt. 285; [Welch v. Phillips, 1 .Moo. P. C. C. 299; Brown v. Brown, 8 Ell. & Bl. 876; Re 
Shaw, 1 Sw. & Tr. 62 ; Finch v. Finch, L. R. 1 P. & D. 371.] 

(a) Hare v. Nasmyth, 3 Hagg. 192, n. ; Lambell o. Lambell, ib. 568; [Williams ». Jones, 
7 No. Cas. 106; Re Lewis, 1 Sw. & Tr. 31, 27 L. J. Prob. 31. 

(b) As to the evidence required to rebut the presumption, see Saunders v. Saunders, 6 No. 
Cas. 518; Battj'l v. Lyles, 4 Jur. N. S. 718; Re Gardner, 1 Sw. & Tr. 109, 27 L. J.'Prob. 55; Re 
Kipley, 1 Sw. & Tr. 68, 4 Jur. N. S 342; Re Simpson, 5 Jur. N. S. 1366; Re Pechell, ib. 406; 
Eckersley v. Piatt, L. R. 1 P. & D. 281. If declarations made by the testator after the date 
of the will are adduced to rebut the presumption, the like declarations are admissible in reply. 
Keen v'. Keen, L. R. 3 P. & D. 105. As evidence of the animus "with which an act was done, 
less weight is of course due to subsequent (Pemberton v. Pemberton, 13 Ves. 310; Re Wes- 
ton, L. R. 1 P. & D. 633) than to contemporaneous (Johnson v. Lyford, L. R. 1 P. & D. 546) 
declarations of the testator. To prove the act, such subsequent declarations are whollv inad- 
missible. Staines v. Stewart, 2 Sw. & Tr. 320, 31 L. J. Prob. 10. The will being lost or de- 
stroyed, and the animus revocandi disproved, probate will be granted of its contents as proved 
by secondary evidence, e.r/. draft, copy, or parol testimonv: see same cases, and Clarkson 
V. Clarkson, 2 Sw. & Tr. 497, 31 L. J. Prob. 143; Podmore's. Whatton, 3 Sw. & Tr. 449 ; 33 
L. J. Prob. 143; Burls' v. Burls, L. R. 1 P. & D. 472; James v. Shrimpton, 1 P. D. 431; 
Sugden v. Lord St. Leonards, 1 P. D. 154. In the last case the contents were proved by a 
single interested witness. The same case establishes the admissibility, as evidence of contents, 
of the testator's declarations whensoever made, overruling Quick v. Quick, 3 Sw. & Tr. 442, 
33 L. J. Prob. 146 ; and further, that probate may be granted of so much of the will as the 
evidence ascertains, though the other part is not ascertained.] 

1 Betts I). Jackson, 6 Wend. 173; Lively 23; Weeks v. McBeth, 14 Ala. 474. Soe 

D.Harwell, 29 Ga. 509: Holland ti. Ferris, 2 Jackson v. Betts, 9 Cowen, 208; Dan v. 

Bradf. 334; Brown v. Brown, 10 Yerg. 84; Brown, 4 Cowen, 483; Jackson v. Kniffien, 2 

Minkler v. Minkler. 14 Vt. 125; Jones v. Johns. 31; Lewis w. Lewis, 2 Watts &S. 455; 

Murphv, 8 Watts & S. 275 ; Appling v. Eades, Burns i). Bums, 4 Serg. & R. 295 ; Uurant v. 

IGratt. 286; RickardsM.Muniford, 2Phillim. Ashmore, 2 Rich. 184; Smiths. Fenner, 

163 



•134 



EEVOCATION OF WILLS 



out of the deceased's custody, it is incumbent on the party asserting the 
revocation to prove that the will came again into such custody, or was 
destroyed by his directions (c)} [If, after executing his will, the testa- 
tor becomes insane, and it appears that the will was in his custody as 
well after as before the time when he became so, it cannot be assumed 
that he tore or destroyed it whUe he was sane ; the fact must be proved 
affirm atively (d). 

Where a pencil instead of a pen is used, the cancellation is not neces- 
Obliteration sarUy ineffectual (e) , but is always prima facie considered 
by a pencil, deliberative (/) ,^ and it must be shown that it was intended 
to be final.] 

„_ , A revocation by obliteration may be either partial 

tial obliteia- *134 Or total.' If * the testator draws a pen over part of 
''°"^' the will only, a revocation is effected pro tanto, and 



(c) Colvin 1). Fraser, 2 Hagg. 327 ; [and see Wynn v. Heveningham, 1 Coll. 638, 639. 

(d) Harris v. Berral, 1 Sw. & Tr. 153; Sprigge v. Sprigge, L. li. 1 P. & D. 608. 

(e) Mence v. Mence, 18 Ves. 348. 

(J') Fiands v. Grover, 5 Hare, 39, and the cases there cited; Re Hall, L. E. 2 P. & D. 256] 



1 Gall. 170; Hildreth v. Schillinger. 10 
N. J. Eq. 196; Smock v. Smock, H N. J. 
Eq. 15S; Durant v. Ashmore, 2 Ricliardson, 
191; Jones v. Murphy, 8 Watts & S. 275. 
Declarations of the testator as to doubtful acts 
of revocation are, as we have elsewhere said, 
admissible in evidence. In re .Tohnson's Will, 
supra ; Lawyer v. Smith, 8 Mich. 411 ; Colla- 

gan V. Burns, 57 Me. 449; Patterson v. 
[iokey, 32 Ga. 156. But not to rirove a mere 
oral revocation. Hargroves v. Redd, 43 Ga. 
142. See Smith ». Fenner, 1 Gall. 170. Mere 
words of revocation, however strong, are 
without effect. Wittman v. Goodhand, 26 
Md. 95; Mundy v. Mundy, 15 N. J. Eq. 290; 
Lewis V. Lcwi.sj 2 Watts & S. 455; I-Iyltoni!. 
Hvlton, 1 Graft. 161; Jones t). Moseley, 40 
M'iss. 261; Jackson v. Kniilen, 2 Johns. 31; 
Kent 1). Mahaffey, 10 Ohio St. 204. Nor will 
the existence oE'an act let in evidence of in- 
tention to revoke when the act is not capable 
by a reasonable interpretation of pointing to 
arevocation. Thus it is not competent to 
show that certain erasures were made animo 
resocnndi if the erasures are such as not ma- 
teriallv to affect the meaning of the will. 
Clark w. Smith, 34 Barb. 140. On the other 
hand, where there is an unmistakable revoca- 
tion, parol evidence is no more admissible to 
remove it than it would be to affect any of the 
terms of the will as originally drawn ; since 
revocation is itself a testamentary act in its 
nature, tliough the statute does not require it 
to be executed and attested. It is only a;)i-e- 
sumpHve revocation that can be overturned 
by evidence. 

1 Evidence may be given that a lost or de- 
stroyed will was lost or destroyed without the 
knowledge or consent of (he testator. Schultz 
V. Schultz, 35 N. Y. 653; In re Johnson's 
Will, 40 Conn. 587; Newell v. Homer, 120 
Mass. 277; Davis v. Sigourney, 8 Met. 487; 
Duvfee v. Durfee, ib. 490, note ; Collagan v. 



164 



Burns, 57 Me. 449; Tynan v. Paschal, 27 
Texas, 286. But one who seeks to set up an 
alleged lost will has the burden of proving its 
contents by evidence strong, positive, and 
free from doubt. Newell ». Homer,- 120 Mass. 
277; Davis v. Sigourney, 8 Met. 487; Uurfee 
V. Durfee, ib. 490, note;"lnre Johnson's Will, 
40 Conn. 587. And it must appear that the 
will was in existence, uncancelled and unre- 
voked, at the time of the death of tlie testator, 
in order to control the presumption of i-evoca- 
tion which always arises when a will once 
known to exist is" not found at the death of the 
testator. Newell 17. Homer, supra; Brown ti. 
Brown 8 El. & B. 876, 886; Eckersley V. 
Piatt, L. R. 1 P. & D. 281 ; Finch v. Finch, 
ib. 371. If the will remained in the custody 
of the testator, or after its execution lie had 
ready access to it, the fact that it could not be 
found after his death would raise a presump- 
tion that he had destroyed it awimo revocanai. 
Schultz II. Schultz, supra, Davies, C. J.; 
Betts V. Jackson, 6 Wend. 173; Knapp ». 
Knapp, 10 N. Y. 276; Dawson v. Smith, 3 
Houst. 92. But this presumption, as the rule 
implies, does not exist when it appears that, 
upon the execution of the will, it was deposited 
by the testator with a custodian, and that the 
testator did not thereafter have it in his pos- 
session or have access to it. Schultz v. 
Schultz, supra. Afortioriif the will be found 
in possession of one interested. Bennett v. 
Sherrod, 3 Ired. 306. Evidence is also admis- 
sible to show that the act of tearing off one's 
signature to a will was done without an inten- 
tion to revoke ; that is, by mistake. Youse ». 
Forman, 5 Bush, 337. So of an apparent but 
not decisive act of cancellation. Wolf ». 
Bollinger, 62 III. 368. 

2 See Stover v. Kendall, 1 Coldw. 557. 

' To write below the attestation of a will, 
"This will is hereby cancelled and annulled 
in full this 15th day of March, 1859," is a 



BY BURNING, CANCELLING, ETC. *135 

the unobliterated portions remain in force {g) ; ^ as where (to put a 
common case) a testator, after having devised property to several per- 
sons, strikes out the name of one of the devisees, by which act he gives 
to the will the same operation as if that devisee had died in the testa- 
tor's lifetime. If the estate or interest of the co-devisees was joint, the 
entire property would vest in the survivor or survivors (A) ; if they were 
tenants in common, the share of the deceased devisee would lapse, and 
a partial intestacy be produced («') ; unless the subject of gift were a 
pecuniary legacy, or anj- other article of personal estate, which would 
fall to the residuary legatee, if there was one ; or unless the will was 
made since the year 1837, in which case the revocation of a specific 
devise would cast the real estate, which was the subject of such devise, 
into the hands of the residuary devisee. [If certain words, forming 
part of a devise, are obliterated, it is to be seen what is the effect of 
those which remain : if they are sensible per se, and do not give any 
person (apart, of course, from their indirect operation of increasing the 
residue) a larger estate than he would have taken by the will, or a new 
estate, the obliteration works a valid partial revocation. This appears 
to be the effect of Swinton v. Bailey {k) , where a testator who died in 
1836 devised certain lands to his " mother, Elizabeth Eley to hold to 
his said mother, Elizabeth Mey, her heirs and assigns forever." After 
execution he drew his pen through the words in italics, and above them 
wrote " Eley." The question was whether the fee-simple was cut 
down to a life-estate. It was argued that for this purpose something 
more than revocation was needed, for the life-estate was a new estate, 
and that the case was in substance one not of obliteration but of altera- 
tion, which failed for want of due execution. But it was held that 
the obliteration, operating simply by way of revocation, had cut down 
the fee-simple to a life-estate ; for the life-estate was clearly less than the 
estate in fee, and was included in it. " In the eye of the law," said 
Lord Cairns, " a gift to A., his heirs and assigns, is what it says, a 
gift to all those persons. No doubt the law says that the estate 
given to the heirs shall vest in A. ; but it is a gift to the heirs 
* nevertheless." At this day the case is chiefly interesting on *135 
account of this dissection of the limitation in fee.] 

In order to constitute a revocatory obliteration, it is not essential 

(ff) Sutton V, Sutton, Cowp. 81,2. 

[(A) Lankins v. Larkins, 3 Bos. & P. 16; Short v. Smith, 4 East, 419 j Humphreys v. 
Tavlor, 7 Bac. Ab. Gwil. 363. 

'(i) Per Alvahley, C. J., and Chambre, J., 3 B & P. 21, 22. 

(it) 1 Ex. D. 110, affirmed in D. P. 48 L. J. Ex 57, reversing the decision of the Exch. 
Division, where it was held that obliteration, to be effectual under sect. 6, must be of a com- 
plete "clause " or sentence. But this is inconsistent with Larkins v. Larkins.] 

good revocation by cancelling, and the will Appeal, 55 Penn. St. 424; Stover ji. Kendall, 

cannot be revived by evidence of subsequent 1 Coldw. 557; Brown's Will, 1 B. Mon. 56; 

declarations of the decedent. Warner ». Matterof Kirkpatrick,22 N. J. Eq. 463; Inre 

Warner, 37 Vt. 356. Hall, L.R. 2 P. & D. 256 ; In re Horstord, L. R. 

1 See BigelowD. Gillott, 123 Mass. 102; 3 P. & D. 211; In re Treeby, ib. 242; Neate 

Evans's Appeal, 58 Penn. St. 238; Dixon's v. Pickard, 2No. Gas. 406. 

165 



*135 BEVOCATION OP "WILLS 

that every word shall be obliterated ; the revocation is complete if 
enough of the material part be expunged, to show an intention that the 
devise shall not stand ; as where the testator draws his pen across the 
Effect of par- devisee's name (/). But where the name occurred several 
tial obiitera- times in the course of the will, and the testator drew his 
pen across the name in some instances, and left it standing 
in others, it was held, that the bequests were not revoked ; the V.-C. 
observing, that as the description, and in some places the name, of the 
legatee remained uncancelled, the court would not be warranted in 
holding that the bequests to her were revoked (m). But the oblitera- 
tion, in the envelope of a wiU, of the words referring to it as the will of 
the testator, accompanied by expressions written by him, showing that 
he considered that it was revoked by another will, which, for want of 
being duly attested, had no such operation, is, of course, not such an 
obliteration as to have the eflfect of revoking the will (n).^ 

And here it may be observed, that, where the act of cancellation or 
Effect where destruction is connected with the making of another will, so "as 
cancellation fairly to raise the inference, that the testator meant the revo- 
with a new cation of the old to depend upon the efficacy of the new dis- 
disposition. position, such will be the legal effect of the transaction ; and 
therefore, if the will intended to be substituted is inoperative from defect 
of attestation, or any other cause, the revocation fails also, and the origi- 
nal will remains in force.'' As where a testator, having some time 
before executed a will, duly attested, to each sheet of which he had 
affixed a seal, instructed his solicitor to prepare another, and signed 
the draft prepared from those instructions, and then proceeded to tear 
off the seals of the old will ; when, after all the seals but one had been 
thus removed, he was informed, that the new will would not be- opera- 
tive upon his lands in its then state, which induced him to desist ; and 
before the new will was complete, the testator died : it was held, that 
the original will remained unrevoked (o) .' ' 

(I) See Mence v. Mence, 18 Tes. 350. (m) Martins v. Gardiner, 8 Sim. 73. 

(n) Grantly v. Garthwaite, 2 Euss 90. 

(o) Hyde v. Hyde, [1 Eq. Ab. 409,] 3 Ch. Eep. 155; see also Onions v. Tyrer, 1 P. W. 
343, Pre. Ch. 459; [Burtonshaw ». Gilbert, Cowp. 49;] Sutton D.Sutton, Cowp."812; Winsor 
V. Pratt, 5 J. B.IHoo. 484, 2 Br. & B. 650; [Perrott v. Perrott, 14 East, 440; Scot v. Scot, 1 
Sw. & Tr. 258; Clarkson v. Clarkson, 3 Sw. & Tr. 497, 31 L. J. Prob. 143; Dancer v. Crabb, 
L. R. 3 P. & D. 98. 

1 That the tearing off a seal may work a are final and absolute. Hawkes v. Hawkes, 
revocation, though the seal was unnecessary, 1 Hagg. 321 ; Edwards v. Astley, 1 Hagg. 
see AveTv V. Pixlej', 4 Mass. 460; White's 490 ; Dickenson v. Dickenson, 2'Phill. 173; 
Will, 25 N. J. Eq. 501. See also Lambcll v. Francis v. Grover, 5 Hare, 39. But a will de- 
Larabell, 3 Hagg. 568 1 Price v. Powell, 3 liberately cancelled, without accident or mis- 
Hurl. &N. 341; Johnsons. Brailsford, 2 Nott. take, is revoked; though the testator after- 
& McC. 272. wards intends to make a new one, but omits so 

2 A familiar example of deliberative alter- to do. Semnies v. Semmes, 7 Harr. & J. 388. 
ation may be seen in changes made in pencil 8 it is also declared in this country, ot a 
in the written instrument. As has elsewhere completely executed will, that when a testa- 
been stated, the general presumption and tor does an act in the nature of cancellation 
probability are, that where alterations in pen- or mutilation, with a view to having his will 
cii only are made, and nothing further ap- immediately changed or altered, the act of 
pears, they are deliberative, when in ink thej' cancellation and reconstruction being intended 

166 



BY BUKNING, CANCELLING, ETC. *1C6 

* [In like manner, where the later of two inconsistent wills is *136 
destroyed on the supposition that the earlier will is thereby re- 
vived ; if this supposition be (as by the existing law we shall presently 
see it is) erroneous, the later will remains unrevoked. In this case, as 
in the former, the act of destruction is referable, not to any abstract 
intention to revoke, but to an intention to validate another paper ; and 
as the condition upon which alone the revocation was intended to oper- 
ate is in neither case fulfilled, in neither does the animus revocandi 
exist (p)]. 

And the same principle applies to partial alterations ; ^ so that, where 
a testator strikes out the name of a devisee, and at the same Partial oblit- 
time interlines that Of another, or substitutes a larger or eration con- 
smaller interest or share for that which he had previously new disposi-^ 
given, if the interlineation is inoperative for want of an at- ''""■ 
testation, the obliteration will also fail of effect {q).^ 

[But the mere intention to make at some indefinite future time a new 
wiU, is not enough to prevent revocation (r)].^ 

Where the later of two inconsistent wills was [lost («) or] cancelled {t), 
or otherwise revoked by the testator in his lifetime, the Effect where 
effect of such revocation clearly was, according to the a testator 

1 T 1 , , , ■ Ml . . . , . . having made 

old law, to restore the prior will to its original position ; two incon- 
and such restored will, if not revoked by any subsequent Jevokes^he' 
act of the testator, came into operation at his decease ; * later. 

{p) Powell «. Powell, L. E. 1 P. & D. 209, overruling Dickinson «. Swatman, 4 Sw. & 
Tr. 205, 30 L. J. Prob. 84.] 

(ff) Short V. Smith, 4 East, 419 (this case however did not raise the precise point) ; Kirke 
1). Kirke, 4 Russ. 435; [Locke v. James, 11 M. & Wels. 901; and see corresponding cases 
under 1 Vict. c. 26, post, p. 142. 

()•) Williams v. Tyley, Johns. 530, better reported 6 Jur. N. S. 35 ; Re Mitcheson, 32 L. J. 
Prob. 202. (s) Rainier v. Rainier, 1 Jur. 754. (t) Goodright v. Glazier, 4 Burr. 2512.] 

as part of the same transaction, and the recon- tablish a mere letter as a testamentary act, 

struction or republication is not perfected, the a request of the writer to destroy the letter 

act of cancellation or mutilation is to be leads to the conclusion that his purpose was 

deemed incomplete, because of the failure of that that paper at least should not be his will, 

the other essential acts. Youse v. Forman, 5 Mc Bride ». iNIcBride, 26 Gratt. 476. And this 

Bush, 3.37; Stover v. Kendall, 1 Cold. 557. is equally true, though'the letter refer to the 

So where the testator makes an alteration by formal draft of a will which accords with the 

erasure and interlineation, or otherwise, with- letter, if such draft were never executed. lb. 

out authenticating the same hy a new attesta- On the other hand, a revocation made upon 

tion in the presence of witnesses, it will be advice, e.g. upon legal advice, cannot be 

presumed that the alteration was intended to treated as dependent upon the soundness of 

be dependent upon taking effect as a substi- that advice. Skipwith v. Cabell. 19 Gratt. 

tute; and when the alteration fails to take 758; Attorney-General ». Lloyd, 3 Atk. 551. 
effect the will stands as originally drawn, so i See Overall v. Overall, Litt. Sel. Cas. 

far as it is legible after the attempted altera- 504. 

tion. Wolf ». Bollinger, 62 111. 368; Short 2 gee Hairston v. Hairston, 30 Miss. 276. 

V. Smith, 4 East, 419 ; Jackson v. Holloway, Where, after one execution of a will of real 

7 Johns. 394; Laughton v. Atkins, 1 Pick. and personal estate, the scrivener, by diiec- 

535. When a will, however, is once properly tion of the testator, and in the presence of only 

executed, a mere direction by the testator to one of the subscribing witnesses, interlined 

destroy it, and a belief on his part that it has another legacy, it was held that the alteration 

in fact been destroyed, will not operate as a didnotmakethe will void. Wheeler u. Bent, 

revocation. McBride v. McBride, 26 Gratt. 7 Pick. 61. See Jackson v. Holloway, 7 

476; Mundy v. Muiidy, 15 N. J. Eq. 290. Johns. 394. 

The direction must be followed by a substan- s Youse «. Forman, 5 Bush, 337. 

tive act of deivtruction. On the other hand, ■* Boudinot v. Bradford, 2 Dallas, 268; 

when an attempt is made, for example, to es- Lawson v. Morrison, 2 Dallas, 289. See 

167 



*137 KEVOCATION OF WILLS 

and the distinction sometimes suggested, between cancelled wills which 
did, and those which did not, contain express clauses of revocation, in 
regard to their revoking effect upon an earlier uncancelled will (m) , 
was wholly without foundation.^ The clause of revocation, like every 
other clause, was ambulatory and silent until the death of the testator 
called the will into operation (v). In the Ecclesiastical Court, how- 
ever, 8ir J. NichoU laid it down, that the legal presumption was neither 
adverse to nor in favor of the revival of a former uncancelled, upon the 
cancellation of a later revocatorj-, will. The question was, he said, 
open to decision either way, according to facts and circumstances (x). 

Sometimes a testator for greater security executes his will in 
*137 * duplicate, retaining one part and committing the other to the 
custody of another person (usually an executor or trustee) ; and 
Effect of de- questions have not uufrequently arisen as to the effect of his 
pairtof^upfi- subsequently destrojing one of such papers, leaving the du- 
cate will. plicate entire. In these cases the presumption generally is, 
that the testator means by the destruction of one part to revoke the 
wUl, but the strength of the presumption depends much upon circum- 
stances. Thus, where {y) he cancels that part which is in his own 
possession (the duplicate being in the custody of another) , it is very 
strongly to be presumed, that he does not intend the duplicate to stand, 
he having destroyed all that was within his reach (z). So, if the tes- 
tator have himself possession of both, the presumption of revocation 
holds, though weaker (a),^ and even if, having both in his possession, 
he alters one, and then destroys that which he had altered, there is also 
the presumption, but weaker still.* 

These several gradations of presumption were stated b}- Lord Ers- 
kine in Pemberton v. Pemberton (b), the circumstances of which were 
as follows : Two parts of a will were found in the possession of a 
testator at his death, the one cancelled, having various alterations in it, 
and the other not altered or cancelled; and the finding of the jury ia 
three successive trials at law on these facts, and the evidence generall}', 
was that the will was not revoked ; and in that conclusion the L. C. 
finally concurred. 

Perhaps, in such a case, the presumption can hardly be said to lean 

(«), See Roper on Revocation. 94. («) Harwood v. Goodright, Cowp. 92. 

(x) Usticke v. Bawden, 2 Ad. 116 ; [and see Moore v. Moore, 1 Phillim. 412 ; James v. 
Cohen, 3 Curt. 770, 8 Jur. 249.] 

((/) See Sir Edward Seymour's case, cit. Com. 453, 1 P. W. 346, [2 Vern. 742 j and see 
Colvin V. Fraser, ,2 Hagg;. 266; Rickards v. Mumford, 2 Phillim. 23.] 

(s) Burtonshaw v. Gilbert, Cowp. 49; Boughey v. Moreton, 3 Hagg. 191, n., [2 Ca. tem. 
Lee, 532. <a) Re Hains, 5 No. Cas. 621.] ^) 13 Ves. 310. 

Havard v. Davis, 2 Binn. 406; 4 Kent, 531; inconsistent with it. As to the residue, the 

Kirkcudbright «. Kirkcudbright, 1 Hagg. 325 ; former devise will stand. Brant i). Willson, 

■lames ». Marvin, 3 Conn. 576; Bohanon v. 8 Cowen, 56. See Jackson B.Betts, 9 Cowen, 

Walcot, IHow. (Miss.) 336; 2 Greenl. Ev. 208. 

§ 683; Marsh v. Marsh, 3 Jones, 77. It is a i Randall v. Beatty, 81 N. J. Eq. 643; 

familiar principle that, where there are two Colvin v. Warford, 20"Md. 357. 
devises of the same testator, the last operates 2 O'Neall ». Farr, 1 Rich. 80. 

as a revocation of the first only so far as it is > 2 Greenl. Ev. § 682. 

' 168 



BY BUKKING, CANCELLING, ETC. *138 

in favor of the revocation at all ; for the testator having made altera- 
tions in one part, and then cancelled the part so altered only, the con- 
clusion would rather seem to be, that he merel}^ intended, by the 
destruction of that part, to get rid of the alterations, and to restore 
the will to its original state. And it is observable, that in Roberts v. 
Round (c), where one of two duplicate wills was found partly mutilated, 
and the other carefully preserved in the testator's own possession, it 
was held, that the will remained unrevoked. 

The evidence in Pemberton v. Pemberton, as to the intent with which 
the act of cancellation was done, consisted partly of subsequent 
declarations of the testator, and these tended rather to * favor *138 
the revocation than otherwise ; but both Lord Eldon and Lord 
Erskine adverted to the very little weight due to expressions thrown 
out by testators in conversation with persons respecting their wills. 

[As the destruction of one part of a duplicate will is generally a 
revocation of the will, so an obliteration made in one part Effect of al- 
will be considered of the same effect as if made in both ; on^dupiu 
for the two parts form together (if such be the intention, cate. 
which is a question for the jury to decide) but one will, and an oblit- 
eration in one part is equivalent to an obliteration in both, (rf).] 

The principle on which the destruction of one part of a duphcate will 
is held to be a revocation, has been extended to a case in which ,_ 

. ■ 1 j_, l/ffect where 

the testator, having expressed the same purpose m both a same ex- 
will and codicil, obliterated it in the codicil alone. Thus in pi's^ssions 

' occur m will 

Utterson v. Utterson (e), a testator, after disposing of the and codicil, 
residue of his real and personal property among his children, obliterates""^ 
introduced into the will an interlineation, excepting his son them in one 
J., to whom he gave one shilling. B}' a codicil (being the °°^' 
, fifth), after expressing his disapprobation of the conduct of this son, he 
declared it to be his determination that he (the son) should have no 
more of his property than one shilling. It appeared that the testator 
subsequently became reconciled to his son, and cancelled the codicil by 
drawing his pen across it, but did not strike out the interlineation in his 
will. This raised the question, whether the cancelling of the codicil 
destroj-ed the effect of the interlined clause in the will, with reference 
to some copyhold property ; for, as to the freeholds, it was admitted 
that the interlineation was inoperative, for want of an attestation : and 
in regard to the personalty, the Ecclesiastical Court had held the can- 
cellation of the codicil to have cancelled the excluding claus6 in the 
will ; and of this opinion was Sir "W". Grant, with respect to the copj'holds. 
" Even independently of the parol evidence of reconciliation," he 
said, "it seems to me, that the act of obliteration speaks as clearly as 
words could have done a change of intention as to the exclusion, and 

(c) 3 Hagfc- 548. 

[(d) Doe d. Strickland «. Strickland, 8 C. B. 724. The second copy or part of the will 
was made two years after the first; but was found by the jury to have been intended as a 
duplicate. See also Hubbard ». Alexander, 3 Ch. D. 738.] (e) 3 V. & B. 122. 

169 



*139 BEVOCATION OP WILLS 

not merely as to the mode of effecting it. It is the same as if he had 
said, ' This codicil no longer speaks my sentiments ; I am no longer 
dissatisfied with my son, and no longer mean to make any distinction 

between him and my other children ' " (/).* 
*139 * Sometimes there is found, among the papers of a testator, a 
Effect of tes- ''•^'^'^i^ without the will of which it professes to be part ; in 
tator destroy- such cases the question arises, whether or not the destruction 
leavine'codi- ^^ ^^^ ^"^ (which it is to be presumed, in the absence of 
ci! unde- proof to the contrarj', was the act of the testator) operates 
^'"^^ ■ impliedlj', to revoke the codicil also. This question, of course, 
depends mainlj' upon the contents of the several testamentary docu- 
ments. If the dispositions in the codicU are so compKcated with, and 
dependent upon, those of the will as to be incapable of a separate and 
independent existence, the destruction of the will necessarity revokes 
the codicil (g) ; and before 1 Vict. c. 2Q, the general presumption in the 
Ecclesiastical Courts was rather in favor of the intention to involve a 
codicil in the revocation of the will of which it was a part, where a 
contrary intention could not be collected either from the contents of 
the codicil itself or from extrinsic evidence (h). 

But if the codicil was capable, from ihe nature of its contents, of 
subsisting independently of the will, its validity was not affected by the 
destruction of such wQl. Thus, where (i) a testator having made a will, 
the contents of which were unknown, the same not being found at his 
death, subsequently, made a codicil in favor of an illegitimate child, 
born since the date of the will, and its mother, which he entitled " A 
codicil to my last will, and to be taken as part thereof ; " Sir H. Jenner 
decided, that the codicil was unrevoked, there being nothing to show 
an intention to revoke it ; and the dispositions it contained (which were 
in favor of those for whom the testator was under a moral obligation to 
provide, and who were not in existence when the will was executed), 
being of such a nature as to be capable of taking effect independently 
of the will. 

The act I Vict. c. 26, has considerably modified the law relating to. 
Revocation the species of revocation which forms the subject of the 
{"earing"!"^' Pi'^sept section. It [enacts (sect. 20) " that no will or codi- 

(f) Here it occurs to remark, that testatoi*s should be dissuaded from making or altering 
their wills (as they are often disposed to do), under the influence of any temporary excitement 
occasioned by theill-conduct of a legatee ; and, still more, from recording their resentment in 
their wills, which may have the effect of wounding the feelings of, and casting a stigma on, 
the offending party long after the transaction which gave occasion to the irritation has been 
effaced from recollection, or is remembered only to be regretted. [The Probate Court will 
not readilv omit from the probate anv such record of displeasure, Re Honywood, L. R. 2 
P. & D. 251.] ' (g) Usticke v. Bawden, 2 Add. 116. 

(A) Medlvcott «. Assheton, 2 Add. 229; Coppin v. Dillon, 4 Hagg. 369. 

(8) Tagart v. Squire, 1 Curt. 289. 

1 There is, however, no implied revocation of unfriendliness, has afterwards become rec- 
of a will by the fact that the testator, after onciled to him. Jones v. Moseley, 40 Miss, 
making a will disinheriting his son by reason 261. 

170 



BY BURNING, CANCELLING, ETC. *140 

cil, or any part thereof, shall be revoked otherwise otherwise de- 

than as * aforesaid (/. e. by marriage), or by another *140 ^dm^thtpns- 
will or codicil executed in manner hereinbefose re- emUw. 

quired, or by some writing declaring an intention to revoke the same, 
and executed as a will," or] " by the burning, tearing, or otherwise destroy- 
ing the same by the testator, or by some person in his presence and by 
his direction, with the intention of revoking the same " ■^ and (sect. 21) 
"that no obliteration, interlineation, or other alteration. Obliterations, 
made in any will after the execution thereof, shall be valid f^°be"signed' 
or have any effect, except so far as the words or effect of and attested. 
the will before such alteration shall not be apparent,^ unless such alter- 
ation shall be executed in like manner as hereinbefore is required for the 
execution of the will ; ' but the will, with such alteration as part thereof, 
shall be deemed to be duly executed, if the signature of the testator and 
the subscription of the witnesses be made in the margin, or on some 
other part of the will opposite or near to such alteration, or at the foot, 
or end of, or opposite to a memorandum referring to such alteration, 
and written at the end or some other part of the will." 

[And by sect. 22 it is enacted, " That no will or codicil, or any part 
thereof, which shall be in any manner revoked, shall be re- jjgyiyai ^f 
vived otherwise than by the re-execution thereof, or by a revoked 
codicil executed in manner hereinbefore required, and show- 
ing an intention to revive the same ; and when any will or codicil which 
shall be partly revoked and afterwards wholly revoked shall be revived, 
such revival shall not extend to so much thereof, as shall have been 
revoked before the revocation of the whole thereof, unless an intention 
to the contrary shall be shown."] 

The change, therefore, is that a revocation by cancellation or obliter- 
ation is not (as before) placed upon the same footing as a rev- Points of dlf- 
ocation by burning or tearing. Obliteration, [or other alter- ^Irthe ™ew 
ation which does not wholly efface the will, is no longer law. 
effectual unless executed in manner prescribed for the execution of a 
will]. 

1 Under this clause of the statute, it has obliterated, and the word 'foVf^ inserted with- 
been held that a cancellation of a will is not a out any new attestation, and the word fifty 
revocation thereof, under the words " other- could not be made nut from the paper. Soari. 
wise destroying" the same. Stephens v. Dolman, and see Brooke d. Kent, ubi supra ; 
Taprell, 2 Curteis, 458. In this case there is a Greville ». Tylee, 7 Moore. P. C. 320. But 
full discussion, by Sir H. Jenner, of the see Townley i. Watson, 3 Curteis, 761, where 
meaning of the language in the above clause the construction nf the 21st sect, of 1 Vict. 
of the Act of 1 Vict. c. 26. c. 26, is discussed by Sir H. J. Fust. 

2 In re Eippin, 2 Curteis, 332 ; In re Ibbet- 8 Interlineations are valid when opposite 
son, ib. 337; In re Brooke, ib. 343; In re them are the initials of the testator and of the 
Beavan, ib. 369. If a word erased or obliterated attesting witnesses. In re Blewitt, L. R. 5 P. T>. 
is not apparent in the will, it may yet be proved 116. Thus where two years after the testator 
aliuTidewhid it -was. Soar«. Dolman, SCurteis, had executed his will, he made an interlinea- 
121; In re Pippin, 2 Curteis, 332 ; Brooke v. tion in it, and in the margin of it, and op- 
Kent, cited ib. and reported 3 Moore, P. C. 334. posite the interlineation, he and the sub- 
And the word so proved to have been erased scribing witnesses placed their initials, the 
may be inserted in the probate. Ib. This was interlineation was allowed to form part of 
held in a case where the word^?;^, being the the probate. In re Hinds, 24 Eng. L. & Eq. 
amount of one of the legacies bequeathed, was 608. 

171 



*141 REVOCATION OF WILLS 

But it may, of course, still be a question, (1) whether the destruction 
Points of of a will by a testator in his lifetime [by burning, tearing, 
similarity, or Otherwise] is partial or complete ; and (2) whether it 
takes place under circumstances, in regard to the volition of the testa- 
tor or otherwise, which invest it with a revoking effect ; and (3) whether 
or not it was so connected with an intended new disposition as to be 
dependent for its operation upon the efficacy thereof {j). All such 

questions the recent statute leaves untouched. 
*141 [* Thus, with regard to the words, " tearing" and " burning," 

the decisions under the Statute of Frauds assist the construction 
„ ' . of the act 1 Vict. Under the latter act it has been decided 

that the word "tearing" includes " cutting " (A) ; for it 
Wlien partial would be absurd to say that a will torn into two pieces was 
fccts total revoked, but that if cut into twenty pieces it was not re- 
revocation ; yoked. The cutting, to be effectual, need not be a cutting 
up of the whole will ; cutting out that part of the will which may be said 
to be the principal part (I), or that part which gives effect to the whole, 
as the signature of the testator (w),^ or, it is presumed, of the wit- 
nesses (»i), will cause a revocation of the whole will. And where the will 
is written on several sheets, each signed and witnessed, tearing off the 
last signature will revoke the whole will, although the prior signatures 
are left (o). It has also been decided by the Court of Exchequer {p) 
that tearing off, animo revocandi, the seal of a will (though no seal is 
necessary to the due execution of a will) constituted a revocation.' 
They said the instrument purported by the attestation clause to be exe- 
cuted under seal, and was published and attested as a sealed instru- 
ment, and when the seal was torn off it ceased to be the instrument 
which the testator purposed to execute and publish. And this author- 
ity was followed by Sir W. P. Wood, V.-C, in a case (q) where a tes- 
tator made his will on five sheets of paper, signed the first four, and 
signed and sealed the fifth, with an attestation clause describing the 
mode of execution : he afterwards tore off the signature from each of 
the first four sheets and struck through with his pen the signature on 



(J) See fowell ». I'oweu, ante, p. las. 

Wc) Hobbs V. Knight, 1 Curt. 768; Ee Cooke, 5 No. Cas. 390; and see Clarke ». Scripps, 
16 Jar. 783, 2 Rob. 56-3. 

(1) Williams v. Jones, 7 No. Cas. 106. 

(m) Hobbs v. Knight. 1 Curt. 768 ; Ee Gullan, 1 Sw. & Tr. 23, 27 L. J. Prob. 15 ; Ee Lewis, 
ib. 31, 1 Sw. & Tr. 31; fee Simpson, 5 Jnr. N. S. 1366; Bell v. Fothergill, L. E. 2 P. & D. 
148. 

(n) Evans ». Dallow, 31 L. J. Prob. 128. See also Birkhead v. Bowdoin, 2 No. Cas. 66 ; 
Hobbs D. Knight, 1 Curt. 780, 781; Abraham «. Joseph, 5 Jur. N. S. 179. So in a case of 
total obliteration, Ee James, 7 Jur. N. S. 52. 

(0) Ee Gullan, 1 Sw, & Tr. 23, 27 L. J. Prob. 15, 4 Jur. N. S. 196; Gullan v. Grove, 26 
Beav. 64. Compare Christmas v. Whinyates, 32 L. J. Prob. 73 (where the court was satisfied 
that the tearing was intended to work a partial revocation only). 

(p) Price V. Powell, 3 H. & N. 341. (j) Williams v. Tyley, Johns. 530. 

1 See Clark's Will, 1 Tuck. 445. 2 Nott & McC. 272; Lambell v. LambeU, 

2 jivery ». Pixlev, 4 Ma-ss. 460; White's 3 Hagg. 668. 
Will, 25 li. J. Eq. 501; Johnsons. Brailsford, 

172 



BY BURNING, CANCELLING, ETC. *142 

the last, and, the animus revocandi being proved in evidence, it was 

held that the will was revoked by the tearing. But cutting 

out a particular clause or the name of a legatee is a revoea- ^" "^ " 

tion pro tanto only (r). "Where a will is found torn, evidence is, 

of course, admissible to show * that it was done by mistake (r) *142 

or is merely the effect of wear (s) ; for mere tearing or destruction 

without intention to revoke is no revocation under the express terms of 

the act (t). The intention without the act is equall}' ineffectual (y). 

The words " otherwise destroying" are new.' They are to be taken 
to mean a destruction ejusdem generis with the modes be- Meaning of 
fore mentioned, that is, destruction in the proper sense of ^"vj!,^ ^^^^' 
the word of the substance or contents of the will, or, at stroying." 
least, complete effacement of the writing, as, by pasting over it a blank 
paper (x) ; and not a "destroying" in a secondary sense (y), as by 
cancelling or incomplete obliteration. These, unless thej^ prevent the 
words, as originally written, from being apparent, that is, apparent by 
looking at the will itself, are plainly excluded by the statute (z). 
Glasses have been used (a) for discovering what the words obliterated 
originally were : but parol evidence is inadmissible (b), ex- paroi evi- 
cept in those cases where the obliteration was made for the dence admis- 

^ . -. jy sible m cases 

purpose merely of altermg the amount of the gift and not of of condition- 
revoking it; in which case, there being no intention to re- »' '"evocation. 
voke except for the purpose of substituting a gift of a different amount, 
if the latter cannot take place hj reason of the substituted words not 
being properly attested, the former gift will now (as under the Statute 
of Fraud^ remain good, and evidence must be admitted to show what 
the original words were (c). The same rule, it is presumed, applies to 
an erasure of the name of the legatee (d) ; as it appears to do to an 
erasure of the name of an executor (e). 

(r) Ke Cooke, supra; Ee Lambert, 1 No. Cas. 131; Re Woodward, L. E. 2 P. & D. 206, 
where seven or eight lines at the beginning had been cut off. 

{r) Giles v. Warren, L. R. 2 P. & D. 401. 

(s) Bigge V. Bigge, 9 Jttr. 192, 3 No. Cas. 601, and see 1 Eq. Ca. Ab. 402, pi. 3, marg. 

(«) Ee Tozer, 2 No. Cas. 11, 7 Jur. 134; Re Hannam, 14 Jur. 558; darker. Scripps, 
16 Jur. T83, 2 Rob. 563. (m) Cheese v. Loveioy, 2 P. D. 251; ante, p. 131. 

(X) Re Horsford, L. E. 3 P. & D. 211. 

(2^) Stephens v. Taprell, 2 Curt. 458; Hobbs v. Knight, 1 Curt. 779. 

(z) Re Dyer, 5 Jur. 1010; Re Fary, 15 Jur. 1114; Stephens v. Taprell, 2 Cnrt. 458; Re 
Beavan, ib. 369; Re Rose, 4 No. Cas. 101; Re Brewster, 29 L. J. Prob. 69, 6 Jur. N. S. 56. 

(a) Ee Ibbetson, 2 Curt. 3-37 ; Lushington ». Onslow, 6 No. Cas. 187, 12 Jur. 465. As to 
this see Re Horsford, L. E. 3 P. & D. 211. 

(6) Townlev v. Watson, 3 Curt. 761, 8 Jur. Ill, 3 No. Cas. 17. 

(c) Soar V Dolman, 3 Curt. 121, 6 Jur. 512; Brooke v. Kent. 3 Moo. P. C. C. 334, 1 No. 
Cas. 99 ; Ee Ibbetson, 2 Curt. 337 ; Re Eeeve, 13 Jur. 370. If there is no evidence what the 
words were, probate is decreed in blank, Ee James, 1 Sw. & Tr. 238. 

(d) See Short v. Smith, 4 East, 419. 

(e) Ee Parr, 1 Sw. & Tr. 56, 29 L. J. Prob. 70, fi .Tur. N. S. 56; Re Harris, 1 Sw. & Tr. 
536, 29 L. J. Prob. 79. See also p6v Sir W. Grant. 7 Ves. 379: and Hale ». Tokelove. 2 Rob. 
318, 14 Jur. 817, noticed post; Re M'Cabe, L. E. 3 P. & D. 94; Ee Bedford, 5 No. Cas. 188, 
is contra. Set/ qu. 

1 Where a will twenty-five years old has being partly torn and worn away, the question 
been found in a barrel of waste papers after whether it was destroyed by the testatrix is 
the death of the testatrix, the instrument for the jury; and evidence may be given of 

173 



*143 EEVOCATIOSr OF WILLS 

Striking a pen through the gift to a legatee, though not now a suffi- 
cient revocation of a legacy, and not to be noticed in the probate, 
ggjj^j y may nevertheless not be altogether without use ; for 

proved by *143 * where the testator has paid a sum in his lifetime 
Iteration. ^^ y^^ legatee, it seems that the fact of the gift being 

struck out in the original will would be received as evidence that the 
payment was intended to be in satisfaction of the legacy (/) ; and the 
Court of Probate has sometimes granted a fac-simile probate of the will 
containing interlineations, or parts of the will struck through ; and the 
Court of Construction has then considered the alterations as made be- 
fore execution, and therefore effectual. "Where this is really so, the 
duty of the Court of Probate, at all events since the Judicature Act, 
1873, would seem to be to grant probate of the will as altered, in the 
same way as if the alterations had been referred to in the attestation 
clause (g). 

With respect to a will executed before 1838, the question whether it 
_. . . is revoked or altered by any act apparent on the face of it 
as to acts done on or after that date, as by erasure, obliteration or 
acte*not*ap^^ interlineation, must be determined bj' reference to the pro- 
parent on the visions of the act 1 Vict. c. 26 (A) ; but, as has been before 
noticed, the question whether it is revoked bj' any act not 
apparent on the face of it, and done on or after that date, must be deter- 
mined with reference to the law as it stood before the act (i). 

Where obliterations and interlineations appear on the face of a will, 

_ .. and there is no evidence (k) to show when they were made, 

Presumption ^ ' j i 

when alter- the presumption IS that they were made after the execution 
ationismade. ^f ^he will® ; ^ and if there be a codicil to the wiU, which 

(/) Twining v. Powell. 2 Coll. 262. 

(a) Gann v. Gregory, 3 D. M. & 6. 777; Shea ». Boschetti, 18 Jur. 614, 23 L. J. Ch. 652. 

(A) Re Uvock, 1 durt. 906; Hobbs v. Knight, ib. 768; Brooke v. Kent, 3 Moo. P. C. C. 
334, 1 No. Gas. 93 ; Croker v. Mavouis of Hertford, 3 Curt. 468, 7 Jur. 262, 4 Moo. P. C. 0. 
335 ; and see Andrews v. Turner, 3 Q. B. 177. (i) Supra, p. 129, and cases in last note. 

(k) As to the nature of the evidence necessary, see Keigwin ». Keigwin, 3 Curt. 607. 7 Jur. 
840; Ke Jacob, 1 No. Gas. 401; Re Hindmarch, L. R. 1 P. & D. 307; Re Treeby, L. R. 3 P. 
& D. 242. Generally declarations of the testator are admissible for this purpose, whether 
made before or at the time of the execution of his will, Doe d. Shallcross v. Palmer, 16 Q. B. 
747; Re Hardy, 30 L. J. Prob. 142; Re Sykes, L. R. 3 P. & D. 26; Dench v. Dench, 2 P. D. 
60. But not those made afterwards. Doe d. Shallcross v. Palmer, supra; nor is it enough 
that the alterations bear earlier date than the will, Ee Adamson, L. R. 3 P. & D. 253. 

il) Cooper V. Bockett, 4 Moo. P. C. C. 419, 10 Jur. 931; Simmonds e. Rudall, 1 Sim. 
N. S. 115; Burgovne v. Showier, 1 Rob. B, 8 Jur. 814, 3 No. Cas. 20; Re Thompson, 3 No. 
Cas. 441; Gann i. Gregory, 3 D. M. & G. 777; Doe d. Shallcross v. Palmer, 16 Q. B. 747; 
Re James, 1 Sw. & Tr. 238"; Re White, 30 L. J. Prob. 55, 6 Jur. N. S. 808; Williams v. Ash- 
ton, 1 J. & H. 115. Where a will is dated before the late act it seems that unattested altera- 
tions in it will also be deemed to have been made before that act. Ee Streaker, 4 Sw. & Tr. 
192, 28 L. J. Prob. 50. And see Banks ». Thornton, 11 Hare, 180. But such presumption 
was not made where the obliteration would have worked a total revocation. Benson v. Ben- 
son, L. E. 2 P. & D. 172. 

the declarations of the testatrix made after alteration, in the absence of evidence, was 

the execution of the will. Lawyer v. Smith, laid down in Wikoff's Appeal, 15 Penn. 

8 Mich. 411. See Patterson D.Iiickey, 32 Ga. St. 281, but apparently without examination 

156. of the authorities. The rule laid down in 

1 A contrary rule concerning the pre- the text, that it must bo presumed that the 

sumption as to the time of an obliteration or alteration, obliteration, or interlineation was 

174 



BY BURNING, CANCELLING, ETC. 



*144 



codicil takes no notice of them, the presumptibn is, that they 
* were made after the date of the codicil (m). And the same *14:4 
presumptions hold regarding mutilation («). But where a will 
has been drawn with blanks left, e. g. for the names of the legatees and 
the amount of the legacies, which blanks are afterwards filled up, but 
there is no evidence to show when, the presumption is that the blanks 
were filled in before execution. And although there may have been no 
blanks, but the names of the legatees are found interlined, yet if the 
interlineation only supplies a blank in the sense, and appears to have 
been written with the same ink and at the same time as the rest of the 
will, the court will conclude that it was written before execution (o). 
In Birch v. Birch (/»), where some blanks were filled in with black ink 
and others with red, it was presumed that the additions in black ink 
were made before execution, but that those in red ink were made after 
execution, the envelope in which the will was found appearing to have 
been sealed, opened, and resealed. 

(m) Liishington v. Onslow, 6 No. Cas. 183, 12 Jur. 465 ; Rowley v. Merlin, 6 Jar. N. S. 
1165 ; and compare Re Mills, 11 Jur. 1070. 

(re) Christmas e. Whinyates, 32 L. J. Prob. 73. 
(o) Re Cacl!?e, L. R. 1 P. & D. 543. 
(p) 6 No. Caa. 581. 



subsequent to the execution of the will (for 
which Greville i). Tylee, 7 Moore, P. C. 320, 
is a further authority) may rest upon either 
of two grounds, or indeed unon both of them. 
According to the current of authority (in oppo- 
sition to a few decisions, see ante, p. 38. note) 
proof of a will stands upon a different footing 
from the proof of a deed ; and a substantive 
burden rests upon the proponent of the former 
to prove it. If, then, there be any indication of 
change of purpose on the part of the testator, 
as by alterations apparently unattested, it 
devolves upon the proponent relying upon" 
such alterations to show that the will was 
changed at or before its execution. The will 
of course is not rendered invalid (except in 
so far as it may have been made illegible 
and no satisfactory evidence of the original 
language is adduced) by the subsequent 
alteration. Wheeler «. Bent, 7 Pick. 61. 
Cooper V. Bockett, 4 Moore, P. C. 419, 452. 
The other ground for the presumption of 
subsequent alteration arises from a considera- 
tion of the ambulatory nature of wills. Un- 
like a deed, a will lies dormant and is sub- 
ject to change at any time during the life of 
the testator; and as it is common for testa^ 
tors to change their wills after execution, it 
is deemed a fair presumption that unattested 
alterations or interlineations were made after 
tlie completion of the instrument. Greville 
». Tylee, 7 Moore, P. C. 320. This presump- 
tion, however, which at best has a slender 
basis, would of course give way to evidence 
that the will had not been in the testator's 
possession since its execution. But the first 
one would still prevail. And as to that 
ground, it may be remarked that it is held by 



some of the authorities that in the case of a 
promissory note containing an apparently 
material alteration, the burden is upon the 
plaintiff offering the paper to show that it 
was altered before execution and delivery. 
Ely ». Ely, 6 Gray, 439; Wilde e. Armsby, 
6 "Cush. 314. See also Simpson v. Davis, 
119 Mass. 269 ; Willett ». Shepard, 34 Mich. 
106 : Atwood i). Cornwall, 25 Mich. 142. But 
the authorities are not agreed upon this sub- 
ject. Bigelow's Bills and Notes, 581. As to 
alterations of a will by the testator, made 
after its execution, see further Jaclison v. 
Holloway, 7 Johns. 394; Locke v James, 11 
Mees. & W. 901; Wright v. Wright, 5 Ind. 
38). It has been said that an alteration in a 
will made by a person claiming under it, 
whether material or immaterial, renders it 
void. Jackson v. Malin, 15 Johns. 297, 298, 
per Piatt, J. An immaterial alteration, how- 
ever, made in a will by a stranger, will not 
destroy it, Malin «. Malin, 1 Wend. 625; 
and it is clear that a material alteration 
made by a stranger, without the privity of a 
party interested, will not have that effect. 
Where an alteration has been improperly 
made in a will, by a person not duly autho- 
rized to make such alteration or addition, a 
court of probate will order the interpolated 
part to be struck out, and the residue of 
the instrument will be probated. Wood 
V. Wood, 1 Phillim. 357. In states where 
holograph wills are valid without attesta- 
tion, any alterations m'de by the testator 
in such a will, by striking out or adding, 
will be valid. Cogbill v.. Cogbill, 2 Hen. 
& M. 467. 



175 



*145 REVOCATION OP WILLS 

The stat. 1 Vict. c. 26 appears not to have done away with the pre- 
__ , sumption made by the old law that the destruction of a will 
1 Vict. c. 26, was an implied revocation of a eodicU thereto (q). Lord 
dMtroved''* Penzance has indeed held otherwise, on the ground that 
but not the sect. 20, enacting that " no will or corfjiciY shall be revoked 
codici . otherwise than " by certain specified methods, plainly ex- 

cludes the method in question (r). But, in Sngden v. Lord St. Leon- 
ards («), a demurrer depending for its validity on this view of the statute, 
was formally (though without argument) overruled by Sir J. Hannen. 
It is far from clear that the act forbids a codicil being, to the same ex- 
tent as before, treated as part of, or accessory to, the will ; or that the 
express mention of " codicil " does more than require, where it is the 
substantive subject of revocation, that it be revoked by one of 
*145 the specified methods (<). * Perhaps, however, the point is not 
of much importance. The presumption already stated was never 
a strong one, even under the old law, and the question whether the 
codicil was revoked or not always depended, and (supposing the pre- 
sumption to continue) will still depend, mainly upon the contents pf 
the codicil (m), and the effect of the evidence adduced to rebut the pre- 
sumption («). 

Upon the 21st section it has been decided in a case where a testator 
Alteration not Mside some alterations in his will, and he and the attesting 
duly attested witnesses traced over their former signatures with a dry pen, 
names witii and the witnesses put their initials in the margin opposite to 
dry pen. ^jje several alterations, that the alterations were not duly 
executed (w). The initials did no more than identify the alterations, 
they were not written with the intention of attesting the testator's sig- 
nature ; for it was erroneously supposed that this had been effectually 
done by tracing the former signatures with a dry pen. 

The 22nd section abolishes] the rule which gave to the revocation of 
Kule as to ^ posterior will the effect of reviving a prior testamentary 
revival of a instrument, which such posterior will, if it had remained in 
revocation ^ force, would have revoked : and it is immaterial in such case 



4No. ( 



, See per Sir H. FustjCloKstoun v. Waleott, 5 No. Cas. 623, 12 Jur. 422, Re Halliwell, 
t 111.. Cas: 400, 9 Jur. 1042: followed by Sir C. Cresswell, Grimwoodu. Cozens, 2 Sw. & Tr. 
364, 6 Jur. N. S. 497; Re Dutton, 3 Sw. & Tr. 66, 32 L. J. Prob. 137. In CloRstoun «. Wal- 
cott, the judge is made to observe, as if it were a new requirement, that the statute expressly 
requires "an intention to destroy." But the animus revocandi vfas previously required by 
necessary intendment of law: {'' destroy " is here an obvious oversight for " revoke.") 

(r) tilack V. Jobling, L. R. 1 P. & D. 686; Re Savage, L. R. 2 P. & D. 78; Ee Turner, ib. 
403. («) 1 P. D. 154, 206. 

(() Whether under the old law the presumption existed with respect to codicils dealing 
with freehold land appears never to have been decided. Tlie Statute of Frauds, sect. 6, does 
not, for this purpose, differ materially from 1 Vict. c. 26, s. 20. 

(m) So imperative did Lord Penzance consider the act to be, that even where the codicil 
was unintelligible without the will (the contents of which were unknown), he held himself 
bound to admit the codicil to probate and leave the question of its operation to the Court of 
Construction, Re Turner, L. R. 2 P. & D. 403. But since the Judicature Act, 1873, the whole 
matter must, it would seem, be disposed of in the Probate Division. 

(») In Ciogstoun v. Wolcott and Re Halliwell, the codicils were held not to be revoked. 
See also Re Ellice, 33 L. J. Prob. 27. 

(m!) Ee Cunningham, 1 Searle & S. 132, 29 L. J. Prob. TL 

176 



BY BUBNING, CANCELLING-, ETC. *146 

whether the posterior will owed its revoking efficacy to an of a later 
express clause of revocation contained in it, or to mere in- '^''°'"*'><"l- 
consistency of disposition (x). [In either case, sect. 22 permits the 
prior wiU. to be revived by one of two means only : the testator must 
re-execute the will, or he must make and duly execute a codicil showing 
an intention to revive the will. Even if he destroys the pg^oj g,,;. 
second will for the express purpose of setting up the first, dence inad- 
he fails in his object ; for parol evidence of his intention is show inten- 
not admissible in order to give effect to that object (y), tion to revive. 
though it is admissible to prove that the destruction was eifected under 
a mistake, and consequently to prevent the revocation of the destroyed 
will (z).i 

* "Where a will was found with the signature cut off, but *146 
gummed on again, it was held that it was not duly re-exe- 
cuted (a). Nor does a codicil show an intention within the ^!JxegJi^on . 
meaning of the section to revive the earlier of two wiUs, by 
being physically annexed to it. The intention must appear ~ ^ '^'' ° ' 
by the contents of the codicil (li). And the intention so appearing to 
revive one will cannot be corrected b}- parol evidence that the draughts- 
man made a mistake, and that the testator intended to refer to and 
revive another (c). 

By sect. 34, it is provided that the act " shall not extend to any will 
made before 1838." Now if the first of two inconsistent . 

— where pnor 

wills be made before 1838, and the second be destroyed after will made 
that date, does sect. 22 extend to the case so as to prevent ^ ""^'^ ' 
revival of the first will? Though revived, it would not be repub- 

(x) Brown v. Brown, 8 Ell. & Bl. 876 ; Hale v. Tokelove, 2 Rob. 318, 14 Jur. 8X7; Boul- 
cott y. Boulcottj_2 Drew. 25. 

[(j) Major ». 'Williams, 3 Curt. 432, S. C. nom. Major v. lies, 7 Jur. 219. 

(2) Powell V. Powell, L. R. 1 P. & D. 209. And the contents of the destroyed (or lost) will 
mav be proved bv parol. Brown v. Brown, 8 Ell. & Bl. 876 ; Woodti. Wood, L. R. 1 P. & 
p. 303. The remarks contra in Wharram v. Wharram, 3 Sw. & Tr. 301, 33 L. J. Prob. 75, 
are unfounded, Sugden v. Lord St. Leonards, 1 P. D. 239. But such evidence must show 
clearly that the contents of the second will were such as to revoke the first. It is not enough 
to prove that the lost will contained the words " this is the last will and testament'." Cutto v. 
Gilbert, 9 Moo. P. C. C. 131, cited again with others to the same effect, post, s. 5. 

(a) Bell V. Fothergill, L. R. 2 P. & D. 148. On the question whether such an intentiofl is 
shown by the contents, see the close of this chapter. 

(J) Marsh v. Marsh, 1 Sw. & Tr. 528, 6 .Jur. N. S. 380. 30 L. J. Prob. 77. 

(c) Walpole V. Cholmondely, 7 T. R. 138; Re Chapman, 8 Jur. 908, 1 Rob. 1. But see 
Quincejr v. Quincey, 11 Jur. Ill, 5 No. Cas. 154. These cases properly come under the head 
of admission of parol evidence, in aid of the construction of a will; see accordingly Ch. XIII. 
post, where they are treated of. 

1 A will which the testator has once can- position that he has executed a subsequent 

celled or destroyed cannot be set up again by valid will, which proves invalid, that the act 

reason of the defective execution of a subse-* of revocation is held incomplete." 'Under 

quent will. Banks v. Banks, 65 Mo. 432. And the statutes of Missouri, and probably by the 

tnis is perhaps true, though the second instru- common law, the expression by the testator 

ment be a copy of the first. Compare Onions of an intention to revive a former well-exe- 

V. Tyrer, 2 "Vern. 741 ; Hyde v. Hyde, 1 Eq. cuted will, upon the destruction of a later 

Cas. Abr. 409. But see 1 Redfield, Wills, one, operates to revive the first. Beaumont 

308, where it is said : " It is only where the v. Keim, 50 Mo. 28. 
testator revokes a former will upon the sup- 

VOL. I. 12 177 



*147 EEVOOATION OF wnj-s 

lished (d). It would therefore take effect wholly under the old law, 
and derive no virtue from the new. However, in Diekinson v. Swat- 
man (e), the argument for revival was considered untenable. 

The concluding words of sect. 22, " unless a contrary intention shall 
„ , . 6e sAoiora," deserve notice. Elsewhere in the, act, the phrase 

Parol 6vi- 

dencewhen "unless a contrary intention shall appear hy the vnll" fre- 

determine* '° quently occurs. But here the means of proof are not pointed 
extent of re- out. An intention, therefore, to revive the whole of a wUl, 
revocation™ wMch has been first partly and then completely revoked, 
has been by may be shown by anj' means allowed by general principles^ 
^^' These principles would exclude parol evidence to explain a 

written document, i.e. a codicil (if that were the means of revival 
chosen) ; but would admit it in order to show quo animo the bare act of 

re-execution was done (/).] 
Destruction *147 * It is observable that both the Statute of Frauds 
presence of aud the act 1 Vict, require that the destruction should 

tiie testator, jjg made in the presence and by the direction Of the testa- 
tor : and therefoire [a testator cannot revoke his will by authorizing any 
person to destroy it after his death (^r) : and if in such case the will 
should be destroyed, its contents might be proved aliunde (A).] 



Section III. 

By Alteration of Estate. 

Under the old law it was essential to the validity of a devise of free- 
1. Under tiie bold lands that the testator should be seised thereof at the 
old law. making of the will, and that he should continue so seised 
without interruption until his decease.^ If, therefore, a testator, sub- 

id) E. P, C. Fourth Report, p. 33. (e) 4 Sw. & Tr. 205. 

(/) See Upiillt). Marshall, T.Iur. 819. On the question whether a "contrary intention " 
is shown b}' the contents of a codicil, see the close of this chapter.] 
Kg) Stockwell «. Rithcrden, 6 No. Gas. 414, 12 Jur. 779. 
(h) Re North, 6 Jur. 664.] 

1 In regard to the revocation of specific a cup or the wool into cloth, or make the 
bequests of personal property by ademp- piece of cloth into a garment, the legacy 
tion, the general rule is, that in order to shall be adeemed. Ashburner v. Macguire, 
complete the title of a specific legatee to 2 Bro. C. C. 89 ; Walton v. Walton, 7 Johns, 
his legacy, the thing bequeathed must, at Ch. 262; White v. Winchester, 6 Pick. 48; 
the death of the testator, remain in spe- Hayes v. Hayes, 1 Keen, 97 ; Humphreys «. 
cie as described in the will ; otherwise the Humphreys, 2 Cox, 184. It must, however, 
legacy is considered as revoked by ademp- ^be observed, that tne rule of ademption does 
tion. For instance, if the legacy be of a spe- not apply to demcmstratim legacies ; i.e. to 
cilied chattel in possession, as of a gold chain legacies of so much money witli reference to 
or a bale of wool, or a piece of cloth, the leg- a particular fund for payment, as, for in- 
acy is adeemed, not only by the testator's stance, legacies given out. of a particular 
selling or otherwise disposing of the subject stock or debt or term. Although the par- 
in his lifetime, but also if he should change ticular fund be not in existence at the testa- 
its form so as to alter the specification of it; tor's death, the legatees will be entitled to 
as if he should convert the gold chain into satisfaction out of the general estate. Wsi- 

178 



BY ALTERATION OF ESTATE. 



*147 



sequently to his will, by deed aliened lands, whiGh he had disposed of 
by such will, and, afterwards, acquired a new freehold estate in the 
same lands, such newly acquired estate did not pass by the B„a<,„uis;. 
devise, which was necessarily void.^ The devise of a free- tion of new- 
hold lease, which was renewed by the testator subsequently ^^^*^- 
to the will, was evidently in this situation (i). [But the alteration of a 
contingent remainder or of a contingent executory interest Not by 
Into a vested remainder by the happening of events on contilffeut'to 
which such remainder was originally limited to vest was not vested. 
such an alteration as worked a revocation, the will acting on the origi- 
nal interest in its new form (i).J 

A revocation by alienation may be either partial or total." A simple 
case of partial revocation occurs where a testator, having partial 
devised lands in fee, demises the same lands to a lessee for alienations. 
lives or for j-ears, either at a rent or not, in which case the lease 
revokes or subverts the devise pro tanto, by withdrawing the demised 

(j) Marwooa c. Turner, 3 P. W. 163. 

[(4) Jackson v. Hurlock, 2 Ed. 263 ; stated on this point, ante, p. 48, n.] 

ton V. Walton, 7 Johns. Ch. 262. If a debt 
specitically bequeathed be received b}' the 
testator, the legacy is adeemed; because the 
subject is extinguished, and nothing remains 
to which the words of the will can apply. 
Badrick i>. Stevens, 3 Bro. C. C. 358, 1 Rop. 
Leg. 17; Rider v. Wager, 2 P. Wms. 328, 
331; Barker v. Rayner, 5 Madd. 208; Tip- 
ton V. Tipton, 1 Coldw. 2o2; Walton v. Wal- 
ton, supra. So a partial receipt by the tes- 
tator of the debt specifically bequeathed will 
operate as an ademption pro tanto. Ash- 
burner I'. Macgiiire, supra ; Frver v. Morris, 
9 Ves. 360 ; Hoke v. Herman", 21 Penn. St. 
301. So where stojk is specifically be- 
queathed, and it does not exist or exists 
only in part at the testator's death, the 
legacy will be either totally or partially 
adeemed, as the case may be. Ashburner v. 
Macguire, supra; White v. Winchester, su- 
pra. Where a testator bequeathed a certain 
amount of stock in a particular bank, he 
being the owner, at the time of making his 
will, of the exact amount of stock be- 
queathed, it was held to be a specific leg- 
acy, and a sale of it before his death was 
decided to be an ademption. White v. 
Winchester, supra. TJie mere change, how- 
ever, by a testator, of the form of an invest- 
ment appointed by his will by virtue of a 
power does not operate as an ademption of 
the legacy. The fund does not cease to be 
the fund subject to the power bv being in- 
vested in a different securitv. In re John- 
stone's settlement, L. R. U Ch. D. 162, 
doubting Gale i\ Gale, 21 Beav. 3+9. See 
also post, p. 155; Walton v. Walton, 7 
Johns. Ch. 265; Brown v. M'Guire, 1 Beat. 
358. Of course there is no ademption where 
the change has been made without the au- 
thority of the testator. Shaftsbury v. Shafts- 
bury, 2 Vern. 747. Ademption of a general 
legacy by reason of advancements is pre- 



sumed only where the sum given is equal to 
or greater than the legacy, and is not contin- 
gent, and is ejusdem (/eneris with the legacy, 
and nothing appears to show that it is to be 
treated as additional. Clendening v. Clymer, 
17 Ind. 155. The doctrine of ademption by 
advancements, it should be observed, has no 
applicatipn to specific legacies or to devises 
of land, Weston v. Johnson, 48 Ind. 1; or to 
residuary legacies, Clendening. v. Clvmer, 17 
Ind. 155. See Gray v. Bailey, 42 Ind. 349. 

1 The English common-law doctrine con- 
cerning revocation by alteration of estate 
went to an extreme which Lord Mansfield, 
while considering himself bound bj' it, once 
declared to be absurd and even shocking. 
Doe V. Pott, 2 Doug. 709. See Goodtitle r. 
Otwav, 7 T. R. 395 ; Woolery v. Woolerv, 48 
Ind. 5'23, 525. Under the Stat, of 1 Vict. c. 26, 
all that appears to be requisite is that the 
testator kt the time' of his death shall be 
seised of substantially the same estate as 
that of which he was seised at the time he 
made the will. Woolery v. Woolery, supra. 
And this is the general law in this country. 

2 A will is not revoked in tola by a subse-, 
quent deed unless the deed conveys all the 
estate devised. Wells- v. Wells, 35 Miss. 
638; Brown v. Thorndike, 15 Pick. 388; 
Hawes «. Humphrey, 9 Pick. 350; Brush w. 
Brush, 11 Ohio, 287; Carter v. Thomas,' 
4Greenl. 341; Skerrett v. Burd, 1 Whart. 
246; M'Rainv v. Clark, 2 Tayl. 278; Mc- 
Taggart ». 'fhompson, 14 Penn. St. 149. 
But if all the estate devised be sold, the gift 
by will is revoked, whether it was general or 
specific, and whether of real or of personal es- 
tate. McNaughton v. McNaughton, 34 N". Y. 
201. The same is true in case the testator 
sell so great a part of the estate devised that 
it is impossible to give effect to the particular 
disposition of the will. In re Cooper, 4Barr, 



179 



*148 KEVOCATION OP WILLS 

interest from its operation (J), but the devise is no further disturbed ; 
and, consequently, the devisee would, even under the old law, stQl take 

the inheritance, subject to the term, and, as incidental thereto, the 
*148 rent, if any, reserved by the * lease (m). So, if a testator, after 

devising lands in fee, conveys them by deed to the use of him- 
self for life, with remainder to the use of his wife for life, as a jointure, 
without disposing of or in any manner assuming to convey the inheri- 
tance, the convej'ance would revoke the devise joro tanto, and the rever- 
sion in fee, expectant on the decease of the testator's wife, would pass 
under it to the devisee. In both the preceding examples, it will be 
perceived that the conveyance is not only partial in its object, but in 
its operation ; it does not for a moment disturb the testator's seisin of 
[or his estate in] the inheritance, and, therefore, can have no revoking 
effect beyond the estate which it substantially alienates and vests in 
another person.' Consistently with this' principle, it is clear that («) 
where a testator by his will charges his lands with an annuity, and 
afterwards demises them for a term of jears at rack rent, the devise is 
revoked so far as to deprive the devisee of his legal power of distress 
while the tenancy lasts (o), but no further ; and the annuitant would be 
entitled in equity, during the suspension of his power of distress, to 
have the rent, or an adequate portion of it, applied in satisfaction of 
the annuity. 

Where, however, the conveyance subsequent to the devise, though 
Eevocation made for a partial purpose, embraces the entire fee-simple, 
aucesln&e- *"" ^^^ whole estate of freehold which is the subject of the 
simple. devise, the rule, under the old law (with some considerable 

exceptions presently noticed), is, that the conveyance, though limited 
in its purpose, and though it instantly revests the estate in the testator, 
produces a total revocation.'' Thus, if a testator on his marriage, in 
order to secure a jointure rent-charge to his intended wife, conveys 
lands (which he had by a will made before 1838 devised in fee) to the 
use of trustees for a term of years, for securing the jointure, and then 

(?) Hodgkinaon v. Wood, Cro. Car. 23; Parker «. Lamb, 2 Tern. 495, 3 B. P. C. Toml. 12. 

[(m) A fortiori, since 1 Vict. c. 26, Barr.« v. Lea, 33 L. J. Cli. 437, where on a mining 
lease it was unsuccessfully argued that certain sums payable half yearly were not rent but 
purchase-money for the minerals, though payable bv instalments; as to which, see further 
Brook V. BadleV, L. R. 4 Eq. 106 ; and compare Re Mary Smith, L. R. 10 Ch. 79.] 

(ra) Parker v. Lamb, 3 B. P. C. Toml 12. 

(o) This shows the advantage of limiting a term to trustees for securing the annuity, 
which would entitle them, as the immediate reversioners, to the rent. 

88. A conveyance by deed of trust of prop- 2 Ves. (Sumn. ed.) 417, and note (b); Liv- 

ertv devised will not revoke the will by the ingston v. Livingston, 3 Johns. Ch. 155. 
law of Virginia. Hughes v. Hughes, 2 lilunf. 2 4 Kent, 228; Adams v. Winne, 7 Paige, 

209. So in Pennsvlvania, Clingan 1). Mitch- 97: Bosley v. Boslev, 14 How. 390; Bowen 

eltree, 31 Penn. St. 25. So in Alabama, ». Johnson, 6 Ind. 110. If the testator con- 

Stubbs V. Houston, 33 Ala. 555. So, it veys the estate devised, though he takes it 

seems in Indiana, Woolery v. Woolery, back again by the same instrument, or other- 

48 Ind. 523, 526. ' 'wise, it is a revocation in law and in equity; 

1 See Brydges v. Dacheas of Chandos, even though he did not intend to revoke his 

will. Walton v. Walton, 7 Johns. Ch. 258. 

180 



BY ALTERATION OF ESTATE. *150 

goes on to limit the fee-simple to the use of himself in fee, the latter 
limitation will revoke the devise in toto (p). 

* This doctrine, however, does not apply to copy- *149 . 
holds. Thus, where A., who was seised in fee of veyancesof 
freehold and copyhold estates, devised them by his will "=°Py''°l'i^- 
(made before 1838), and subsequently conveyed the freeholds to the 
use of himself for life, with remainder to the intent that B., his 
intended wife, should receive an annuity of 300Z. for her life, by way 
of jointure, and subject thereto to trustees for ninety-nine years, upon 
trusts for securing the jointure, and subject thereto to the use of A., 
his heirs and assigns forever. At the same time the testator surren- 
dered his copyhold lands to the same uses ; and it was held that the 
devise (though clearly revoked, as to the freeholds, bj' the conveyance 
of them) was not, as to the copj'holds, affected bj' the surrender be3-ond 
the particular estates ; on the ground that, according to the doctrine 
of Thrustout v. Cunningham (q), the fee-simple of the testator was not 
disturbed or interrupted by the surrender of the ultimate inheritance to 
the use of himself (r). 

Where the convej-ance of a freehold estate, has no limited or definite 
object, or is made for a mistaken or unnecessary purpose, conveyances 
and though its whole efiect is instantly to revest the prop- for amis- 
erty in the testator himself, who is in of his old estate, yet necessary 
the momentary interruption of the testator's seisin, thus pii'pose. 
occasioned, produces a complete and total revocation of the previous 
devise. Thus if a testator, seised in fee of Blackacre, having by a will 
made before the year 1838, devised such land by name, or all his lands 
generall}^, to B. in fee, afterwards by lease and release, or any other 
assurance, conveys Blackacre to the use of himself for life, remainder 
to the use of his own right heirs, the conveyance, though it makes no 
actual change in the testator's estate, will revoke the devise in toto (s). 

But where the momentary interruption of the testator's seisin is 
occasioned, not by any act of the testator himself, but by the Tortious 
tortious act of a stranger, the devise, even under the old "'"^tion- 
law, was not affected. As where a testator was disseised subsequently 
to the making of his wiU, and afterwards re-entered, the entry restored 
the original seisin, and bj' relation the disseisee was considered to have 
been seised ab initio, so that his devise remain unrevoked (t.) 

* But if the disseisee were out of possession at the time of making *150 
his will," or at his death, the devise would be inoperative (u). 

(p) Goodtitle v. Otway, 2 H. Bl. 516, 1 B. & P. 576, 7 T. R. 399, 2 Ves. Jr. 606, n.; Cave 
«. Holford, 3 Ves. 650. 7 B. P. C. Toml. 593; see also Vawser v. Jeffrey, 16 Ves. 519, 2 Sw. 
268; [Briggs v. Watt, 2 Jar. N. S. lOil; Walker v. Armstrong, 21 Be"av. 284, 8 D. M. & G. 
531: Power v. Power, 9 Ir. Ch. Rep. 178.] (j) 2 W. Bl. 1046, Fea. C. R. 68. 

(r) Vawser «. .leffery, 3 B. & Aid. 462, 3 Russ. 479. 

(s) Burgoigne v. Fox, 1 Atk. 575. See also Darlev v. Darley. 3 Wils. 6, Amb. 653, S. C. 
nom. Darlev v. I.angworthy, 3 B. P. C. Toml. 359 ; flarmood v. Oglander, 8 Ves. 106 ; [Spar- 
row V. Hardcastle, 3 Atk. 798.] 

(t) Bunter v. Coke, 1 Salk. 237; Att.-Gen. v. Vigor, 8 Ves. 282. 

[(u) Vin. Ab. Dev. R. (6), pi. 1.] 

181 



*151 BBVOCATrON OF WILLS 

So, where a man made his will, devising lands, and then exchanged 
Exchanges, those lands for others, and died ; if the exchange were 
vacated subsequently to the testator's death in consequence of a defect 
in the title, or in the aliening capacity of the other party, this did not 
revive the devise (a;). 

As equity follows the law, the same general principles which governed 
Revocation ^^ revocation of devises of legal estates were held to apply 
of devises to devises of equitable interests. The devise of such an 
interests by ' interest, therefore, was liable to be revoked bj' a convej-- 
conveyance., I ^nce similar to that which would have revoked a devise at 
law. Thus in Earl of Lincoln's case (y), where a testator devised 
landSj then mortgaged them in fee, and afterwards, in contemplation 
of marriage, conveyed the devised lands to the use of himself and his 
heirs, until the intended marriage, and after such marriage to other 
uses, though the marriage did not take* eflSect, yet the devise was held 
to be revoked. So, in Lock v. Foote (z), where A. devised estates, of 
which he had only the equitable fee, and afterwards agreed to sell part 
of the estates, and to remove an objection to the title advanced by the 
purchaser (but which was not well founded) ; he suffered a recovery of 
the whole ; it was held that, though the recovery was an equitable one, 
and the particular purpose for which it was suffered was mentioned in 
the recovery deed, and though the uses thereby declared of the prop- 
erty not intended to be sold were precisely the same as those which 
subsisted before the recovery, which was expressed to be in restoration 
and confirmation of those limitations, the devise was revoked. 

The rule that a conveyance in fee of freehold lands,- executed for a 
partial purpose, revokes ^ a will made before the year 1838 admits of 
Partition no two exceptions. The first is in the case of a partition, 
revocation, between tenants in common, or coparceners, which, by what- 
ever kind of assurance effected, does not, even at law,- revoke a prior 
devise, provided the conveyance be confined to the object of the parti- 
tion, merely assuring to the testator in the lands allotted to him in 
severalty an estate precisely correspondent to that which he pre- 
Mannerof viously had in his undivided share (o).^ [The 

partition may ji-jgj * manner in which the partition is made might, how- 
cause revoca- ^ ^ ' 
tion. ever, have revoked the devise ; as if a testator hav- 

(a;) Att.-Gen. v. Vigor, 8 Ves. 256. 

(y) Sho-w. P. C. 154, 1 Eq. Ab. 411^ pi. 11 ; [in the latter report, the mortgage' is stated to 
have been previous to the ivflli but this makes no difference in the principle established by 
■the case.] See also Pollen v. Huband, 1 Eq. Ab. 412, 7 B. P. C. Toml. 433. 

(z) 5 Sim. 618. 

(a) Luther ». Kidby, 3 P. W. 169, n., 8 Vin. Ab. 148, pi. 30; Eisley v. Baltinelass, T. 
Kaym. 240 ; Webb », Temple, 1 Freem. 542; [Barton ». Croxall, Taml. 164. In Grant v. 
Bridger, L. Hj 3 Eq. 347, it was attempted to bring within these authorities a case where 
commoners, after devise, joined with the owners of the soil in conveying the land to trustees, 
and took back shares of the land in severalty, but, of course, unsuccessfully. 

1 See Brydges v. Duchess of Chandos, and then made partition. The estate was 
2 Ves. 417 ; Barton v. Croxall, Taml. 164. then conveyed as to one part to a trustee to 
A testator devised his moiety of an estate, the use of the testator in fee ; and a mortgage 

182 



BY ALTERATION OF ESTATE. *152 

ing an undivided share of lands in A. and B. devise all lands in A., 
and upon partition lands in B. only are allotted to him ; in such case 
nothing passed bj^ the devise (6).] 

The other and more considerable exception is, where a testator, 
subsequently to his will, makes a mortgage of the devised 
lands, which, it is said, revokes the will in equity, pro tanto 
only(e).> 

To designate a mortgage a revocation pro tanto, however, was inac- 
curate, and tended to create an erroneous impression of its Mortgaffe 
actual effect on the rights of the persons claiming through inaccurately 
the testator ; for the phrase might seem to import, that the ocation i^ro 
transaction was viewed in the light of an intentional with- *™*''- 
drawal by the testator of his bounty to the extent of the mortgage, in 
which case, the devisee would have taken the property cum onere, as 
against not only the mortgagee creditor, but also as against the tes- 
tator's own representatives, in the same manner as if the testator had 
created the charge by his will ; but this was not the case, for unless a 
contrary intention appeared, the devisee, it is well known, was entitled 
to have the estate disencumbered out of the personal estate of the tes- 
tator not speciiically bequeathed (d). It was a perversion of language, 
therefore, to call a mortgage a revocation pro tanto ; in short, the term 
is very inaptly applied to any cases in which the devise is defeated by 
the testator's subsequent disposition by deed of the devised property, 
which are all examples of, ademption, rather than of revocation. 

In applying the doctrine, that a mortgage effects a partial revocation 
only, it is immaterial whether the testator had the Jegal estate, or was 
equitable owner only (e) ; whether the mortgage conveyance was made 
by fine, or any other mode of assurance (/) ; whether the mort- 
gagee were the devisee himself {g), or a stranger ; * and whether *152 
tiie estate of the mortgagee were to vest in possession immedi- 
ately on its 'execution, or not until the death of the mortgagor Qi). 

(b) Knollys v. Aloock, 5 Ves. 648, 7 Ves. 558. Conlpare Phillips v. Turner, 17 Beav. 194.] 

(c) Hall 0. Bench, [1 Vem. 329, 342; Butin] 2 Ch. Rep. 54 [the ground of the decision is 
stated to be that the will was republished;] Perkins v. Walker, 1 Vem. 97. 

(d) Warner v. Hawes, 3 B. P. C. Toml. 21. {^8ecus since 17 & 18 Vict. o. 113. 

(e) Jackson®. Parker, Amb. 687.] . 

if) Rider v. Wager, 2 P. W. 334; Jackson ». Parker, Amb. 687. 

(o) Peach v. Phillips, Dick. 538 ; Baxteri;. Dyer, 5 Ves. 666, overruling Harkness ». Bay- 
ley, Pre. Ch. 514. (A) Cro. Car. 23. 

tenn, created by the co-tenant on his moiety 266; Partridge ». Partridge, Gas. temp. Talb. 

was assigned to attend the inheritance, and 226; Brown D.M'Guire,l Beat. 358. See also 

this was held not to be a revocation of the Basan v. Brandon, 8 Sim. 171. Where the 

will. Bartoni). Croxall, Taml. 164. Parti- change was made without the knowledge of 

tion is considered a special case. Each party the testator, see Ashbumer v. Macguire, 

can compel the other to make it. See Att.- 2 Bro. C. C. 108. 

Gen. V. Vigor, 8 Ves. 281; Ward v. Moore, i 4 Kent, 530. Where a testator pawns or 

4 Madd. 368; Rawlins v. Burgis, 2 Ves. & B. pledges an article specifically bequeathed, a 
382. The act of partition therefore furnishes ' right of redemption is left m him, and passes 

no evidence of an intention to revoke. No to the legatee at his death ; so as to enable 

other change inthe estate, by statute or opera- him to call on the executor to redeem, and 

tion of law, will work a revocation or ademp- deliver it to him. Ashburner v. Macguire, 

tion. Walton v. Walton, 7 Johns. Ch. 265, 2 Bro. C. C. 89. 

183 



*153 EBVOCATION OP WILLS 

Upon the same principle, a convej-ance in trust to sell for the pay- 
Conveyance '^^^^ of debts, was held, under the old law, not absolutely 
upon trust to revoke a previous devise of the property so conveyed (i),* 
"1' sa e. even though it were accompanied by a declaration that the 
surplus proceeds of the sale should be held in trust for the grantor, his 
executors and administrators [provided, however, that such convej-- 
ance had for its object the payment of debts only ; the insertion of a 
further trust, as the payment of an annuitj- to the wife of the 
grantor, would have worked a revocation (k).] Bankruptcy 
also left a testator's will unrevoked, as to any surplus remaining after 
satisfaction of the claims of creditors (/) . 

A mortgage for less than the testator's whole estate, of course, does 
not, even at law, produce revocation ultra the estate to which it extends. 
Morto-ages Thus, where a testator, after devising freehold lands by a 
by demise, ^^m made before 1838, for an estate in fee, demises them by 
way of mortgage for one thousand years, the inheritance, subject to the 
mortgage term, passes by the devise, along with the equity of redemp- 
tion in the term'. 

But if the partition or mortgage conveyance contain ulterior limita- 
Deed of tions by which the testator's ownership is varied or modified, 
partition or it works an absolute and entire revocation. As in the often- 
witii ulterior cited case of Tickner v. Tickner (m), where by a deed of par- 
hmitations. tition between two, coheirs of gavelkind lands (one of whom 
had previously made a will devising his share), the lands allotted to the 
testator were limited to suck uses as he should by deed or will appoint, and 
in default of appointment to him in fee ; it was held that by this new 
limitation of the use, the previous devise of the property was revoked. 

So, in the case of Kenyon v. Sutton (ra), where a testator executed a 
Effect of ul- conveyance in trust for the payment of his debts, and it was 
tenoi' iimita- (jgdared that, after payment of his debts, the trustees should 

tions m mort- ^ *' 

gage deeds, convey (not to him Simply in fee), but to such uses as he should 

by deed or will appoint, and in default, to him in fee, the devise was 

held to be wholly revoked. 

Again, in Harmood v. Oglander (o), where A. being owner in 

*153 * fee of fee farm rents subject to certain marriage articles, 

whereb}' he had agreed to settle them in strict settlement with 

reversion to himself in fee, made his will, by which he devised the 

rents: and subsequently, on borrowing 5,500^. from B. by lease and 

release, for securing the repayment and barring all estates-tail, &c., 

conveyed the fee farm rents in question to C, his heirs and assigns, to 

(i) Vernon v. Jones, 2 Freem. 117, [Pre. Cli. 32, 2 Vern. 241 ;] Earl Temple v. Duchess of 
Chandos, 3 Ves. 685. [(*) Hodges v. Green, 4 Rnss. 28.] 

(I) Charman v. Cliarman, 14 Ves. 580. (m) Cit. 1 Wils. 309, and 3 Atk. 742-745, 750. 
(») Cit. 2 Ves. Jr. 601. 

(0) 6 Ves. 199, 8 Ves. 106. [See Briggs v. Watt, 2 Jur. N. S. 1041 ; Power v. Power, 9 Ir. 
Ch. Kep. 178.] 

1 Jones ti. Hartley, 2 Whai't. 103. 
184 



BY ALTERATION OF ESTATE. *154 

the intent that a common recoverj' might be suffered ; and it was de- 
clared that such recovery should inure to the use of B. (the mortgagee) 
for 1,000 years, subject to redemption, remainder to the testator for 
-life, with remainder to F. his wife for life, with remainder to himself in 
fee. The recovery (which, it will be observed, was unnecessary) was 
never suffered ; but Sir R. P. Arden, M. R., and afterwards Lord Eldon, 
on appeal, expressed a decided opinion that the devise was revoked, 
the testator ha-vdng subjected the property to ulterior limitations beyond 
the purpose of a mere mortgage ; " and considering," his Lordship ob- 
served, in reference to the authorities, " how very little, in addition to 
that mere purpose, will revoke." It is clear that if in this case the 
limitations had been simply to the mortgagee for the term, and subject 
thereto, to the use of the mortgagor himself in fee, the will would have 
been revoked, precisely as if without anj^ mortgage the fee had been so 
limited. 

So in Hodges v. Green (p), where a testator seised in fee, conveyed 
certain real estates to trustees, upon trust by sale or mortgage to raise 
certain mortgage and other debts, and the trustees were to stand pos- 
sessed of the surplus, in trust for the grantor, his executors and admin- 
istrators, as personal estate ; and it was provided, that, until a sale, the 
trustees should apply the rents in payment, first, of the interest on a 
mortgage debt, and, secondly, of an annuity to the grantor's wife for 
her separate use ; Sir J. Leach, M. R., held that the will was revoked, 
not (as had been contended) on account of the direction that the residue 
of the moneys arising from the sale should be personal estate, which did 
not varj- the oi^eration of the deed, but on account of the annuity, 
which might continue after the testator's death. 

What words introduced into the proviso for redemption amount to an 
indication of intention to change the equitable ownership, whatexpres- 
80 as to revoke a previous devise bj' the mortgagor, is not sions newly 
clear. The cases abundantly demonstrate that such an in- equity of 
tention will not be inferred from equivocal expressions, redemption. 
affording conjecture merelj'. The deed jnust distinctly and ex- 
plicitly show that the * estate is to be reconveyed to uses dif- *154: 
ferent from those which previouslj^ subsisted, — a doctrine which 
seems to agree with the rule establishing, that the interests of a hus- 
band and wife joining in a mortgage of lands held jure uxoris, are not 
liable to be varied by the inaccurate terms in which the recouve3-ance 
is directed to be made (g). 

Thus in Brain v. Brain (r) , where A. subsequentlj' to his will, by a 
conveyance by way of security, in consideration of 800/. advanced by 
B., conveyed lands to trustees in fee, upon trust to permit him (A.) to 

(j>) 4 Russ 28. 

(q) Innes v. Jackson, 16 Ves. 356. 1 Bli. 104; [Ruscombe v. Hare, 6 Dow, 1, 2 Bli. N. S. 
192; Clarke v. Burgh, 2 Coll. 221; Hipkin v. Wilson, 3 De G. & S. 738.] 
(r) 6 Madd. 221. 

185 



*155 ' EEVOOATION OP WILLS 

enjoy until default of pajinent ; and upon payment of principal and 
interest, upon trust to reconvey unto and to the use of A., the testator, 
Ms heirs and assigns, or unto and to the use of such other person or 
persons, and for such estate and estates, and to and for such lawful 
trusts, intents and purposes, as A., his heirs or assigns, by any deed 
or deeds, instrument or instruments, in writing under his or their hand 
or respective hands, should direct, limit, or appoint, clear of all inter- 
mediate incumbrances, and, in default of payment, the trustees were 
empowered to sell; Sir J. Leach, V. C, held, that this was a revoca- 
tion pro tanto ovA.y. "The true question," his Honor observed, "is, 
whether, by the addition of the words which follow the direction to re- 
convey to the devisor and his heirs, he does, in fact, acquire any new 
estate or power, or whether these subsequent words do not leave him 
with the same estate, and the same powers, as he would hate had if 
they had not been used. It is plain, that he who has a right to call 
upon trustees to convey to himself and his heirs, has a rightj by any^ 
instrument under his hand, to direct the same trustees to convey to the 
use of any other person, or for any estates and' interests^ at his pleasure. 
The authority to make such direction by any deed or Instrument under 
his handj is the necessarj' consequence of this conversion of his legal 
estate into an equitable interest ; and the subsequent words are the 
mere ' expressio eorum quae tacite insunt.' I am of opinion, therefore, 
that the conveyance in question, being bj' waj' of securitj' for money, is 
a revocation' pro tanto only." The V. C. remarked, that in Tiekner v. 
Tickner, a new power to appoint to uses was acquired, and that the 

facts in Kenyon v. Sutton were not accurately known («). 
*155 * Though an absolute conveyance by a person having the 

equitable ownership only, does, we have seen, under the old law 
Mere con- revoke a prior devise, by analogy to the rule which makes a 
veyance of similar conveyance of the legal estate a revocation at law, 

I6^^^ GSt9.t6 111 I • • 

no revocation yet when the testator merey' clothes ms equitable title with 
in equity. ^^^ l^ggX estate, by taking a conveyance of the latter to him- 
self, or merelj' changes the trustee, as this^ produces no alteration in 
the beneficial ownership, which is the subject of the devise, it leaves 
such debase unaffected.^ 

Thus where (<) W.j by his will and codicil, devised certain lands 
which he had contracted to purchase, and afterwards caused the pur- 
chased estate to be convej'ed to trustees in fee, in trust for himself and 

[(«) And see Youde v. Jones, 11 Sim. 162.] 

(<) FuUarton v. Watts, cit. Doug; 718. See also Parsons )). Freeman, 3 Atk. 741, 1 Wils. 
308; Dingwelli). Askew, ICox, 427; Cloughi). Clough, 3 My. & K. 296. 

1 See ante, p. 147, note. So where there other children who were made residuary lega- 

has been a fourfold increase of the testator's tees, no revocation is effected tlieieby. War- 

propertv during his insanity for forty years, ner v. Beach, 4 Gray, 162. See Verdier o. 

from a period soon after the making of his Verdier, 8 Rich. 135. Mere advance or dimi- 

■Will until his death, so as greatly to change nution in value of property disposed of bv 

the proportion between the specific legacies will has no revoking effect. Scoby v. Sweatt, 

given to some children and the shares of 28 Tex. 713. 

186 



BY ALTEEATION OF ESTATE. *156 

Lis heirs, it was adjudged that this was no revocation ; for before the 
completion of the piirciiase, the vendor was but a trustee for the pur- 
chaser, and the completion of the purchase was but taking the estate 
home ; [and so if he had actually taken a conveyance to himself (m). J 

If, however, the eonvej'ance does more than vest the legal estate in 
the testator, and newly modifies his ownership, revocation Conira, if 
will, of course, be produced, as it would if the equitable in- fhetqStaMe 
terest separately had been so modified.^ This question ownership. 
often arose, and, of course, under a will made before 1838, may still 
arise, where a testator contracted to purchase lands, and in the interval 
between the contract and the conveyance devised them. In such case, 
it is clear, that if the conveyance be made to the testator, to the usual 
limitations for preventing dower, viz. to such uses as he shall appoint, 
and in default, to the use of himself for life, remainder to a trustee for 
himself during life, with remainder to him (the purchaser), in fee, the 
devise will be revoked (y). And the same effect is produced where 
the eonvej'ance is simply to such uses as the devisor shall appoint, and 
in default of appointment to him in fee (z). 

So it has been decided, that where (a) a testator purchased an estate 
under a parol contract, which was rendered binding by part 
performance, then devised it, and afterwards took a convey- Effect of con- 
auce (according to the old method of excluding dower) to on''a*purehas- 
the use of himself and a trustee jointly in fee, the er's devise 

devise was * revoked ; the conveyance in such case *156 tract. 
going bej'ond the mere purpose of clothing the equi- 
table title with the legal ownership, and making an alteration in the 
quality of the estate. 

If the contract points out the nature of the limitations which are to 
be inserted in such conveyance, and the conveyance is made -^^ reroca- 
in conformity thereto, it is clear that such eonvej'ance (oper- tionif con- 
ating as it then does onlj- to turn the equitable into legal corrformity'" 
estates) will not revoke the devise ; but it should seem, that with con- 
the merely providing that the estate shall be conveyed to 
the purchaser in fee, or to such other uses as he shall direct, would 
not prevent the revoking operation of a conveyance to the ordinary 
uses for preventing dower ; for as words to this effect, when inserted 
fin a pro^'iso for redemption in a mortgage, are (we have seen) 
merely equivalent to a direction to convej- to the mortgagor the fee, 

[(a) Seaman v. Woods, 24 Beav. 372.] 

(y) Rawlins v. Biirgis,,2 V. & B. 382; [Plowden v. Hyde, 2 Sim. N. S. 171, 2D. M. &G. 
68i ; Schroder v. Schroder, Kay, 578.] 

(s) TicknerK. Tiokner, oit. 1 Wils. 311, 8 Atk. 742; Parsons ». Freeman, 3Atk. 741. 
(o) Ward ti. Moore, 4 Mad. 368. 

1 See Ballard v. Carter, 5 Pick. 112, 117, a release of the equity of redemption, it is 
118; Brigham v. Winchester, 1 Met. .390; a revocation of the devise. Ballard v. Car- 
Swift V. Edson, 5 Conrt.-531. If a testator, ter, supra, 
after devising a mortgage, forecloses or takes 

187 



*157 BEVOOATION OP WILLS 

it seems difficult, consistentlj'^, to ascribe to tliem greater potency 
in a contract. And it is clear (b), that no such effect would be pro- 
duced by a stipulation that the vendor shall convey to the purchaser, 
his heirs, appointees, or assigns ; for even supposing that the intro- 
duction of the word "appointees" implies that the conveyance 
should contain a power of appointment (in which case a revocation 
would not have resulted from the mere insertion in the conveyance of 
such a power), j'et the limitation to the testator for life, with remainder 
to the dower trustee for the life of, and in trust for, the testator, 
amounts to a new modification of the equitable ownership, and is, for 
that reason, a revocation of the devise. 

[The doctrine, that merely clothing the equitable estate with the 
Plowden ». legal title is no revocation, is well illustrated by Plowden v. 
c\fr th Hyde (c), where an estate, whicb had been conveyed to the 
equitable es- testator to the usual uses to bar dower, was by him ap- 
legai^noVe-"^ pointed and conveyed to a mortgagee in fee^ subject to a 
vocation. proviso that on paj'ment of the mortgage money the mort- 
gagee would reconvej' the estate to the testator, "his heirs, appoin- 
tees, or assigns, or to such other person or persons, to such uses, and 
in such manner as he or they should direct." Subsequentljf to the 
mortgage, the testator made his will, devising the mortgaged propertj^ ; 
and then, having paid off the mortgage debt, the estate was reconvej-ed 
to him, to uses to bar dower in the same manner as on the purchase. 
Sir R. Kindersley, V. C, thought that, after the mortgage, the 
*157 testator had in equity a clear * fee-simple estate, and the legal 
estate not having been reconveyed to him in fee-simple his will 
was consequently revoked. But this decision was reversed by Sir J. 
K. Bruce and Lord Cranworth, L.JJ., on the ground before noticed, 
that an equity of redemption (unless the contrary is distinctly' pro- 
vided) attaches on the estate of the mortgagor, with all the same rights, 
restrictions and qualifications to which his legal estate had previously 
been subject. When, therefore, the mortgagor paid off the mortgage, 
and took a reconveyance of the property to the same uses to which it 
had stood limited before the mortgage, he was, in fact, only doing that 
which is described as clothing the equitable with the legal estate. It 
follows from this decision, that if the reconveyance had been simply to 
the testator and his heirs, his will would have been revoked. ^ 

In the case just stated Lord Cranworth suggested that a will was re- 
Immaterial voked by subsequent conveyance only when the seisin was 
Inisohanged changed ; and added, that if an estate were limited to such 
or not. uses as A. should appoint, and in default to A. in fee, and 

A., after making his will and devising the estate, had made an appoint- 
ment, so as to take an estate with the ordinary uses to bar dower, he 

(5) Bullin !•. Fletcher, 1 Kee. 369, 2 Mv. & Cr. 432. 
[(c) 2 Sim. N. S. m, 2 D. M. & G. 6^4. 

188 



BY ALTBEATION OF ESTATE. *158 

knew of no authority deciding that this would be a revocation of the 
will(rf). But in Langford v. Little (p), which was not cited, Sir E. 
Sugden had decided that in such a case a will was revoked. He said, 
" A change of estate is sufficient to operate a revocation, and it is not 
necessar}- that the seisin should be changed. The doctrine rather is, 
that although nothing but the seisin is changed or transferred, and there 
is no disposition of the ownership, or but a partial one, yet the will is 
revoked, and the use, although the old one, cannot pass by the prior 
will." 

In Poole V. Coates (/) , a testatrix, being entitled to an undivided 
moiety of lands held on a lease for lives containing a cove- 
nant for perpetual renewal, made her will devising the moi- Coates, as to 
etj', and subsequently joined with the two other persons [g^gghoi^j ;„ 
entitled to the other moiety in procuring a renewed lease to opposed to' 
be granted to herself and them as joint-tenants : Sir E. """"^ ''^^^^■ 
Sugden, C, decided that her will was not revoked in equity. He 
said, the * effect of a lease with a covenant for perpetual renewal *158 
is, in equity, to give the tenant a perpetual interest ; that, there- 
fore, if in the case before him there had been a mere simple renewal, 
though it would have been a revocation at law, it would have had no 
such effect in equity ; but it was argued, that the case went a step further, 
the renewal being made to the testatrix and two other persons, and, 
therefore, there was such a change in the estate which the testatrix had 
as amounted in equity to a revocation ; but the mere change of the legal 
estate, unaccompanied by any alteration of the equitable ownership, 
would not effect a revocation. A lease of the entire estate to a trustee 
for the testatrix would have been no revocation, for she would have had 
the same equitable estate after the renewal as she had before ; so a 
renewal partly to herself, and partly to a trustee for her, could not he 
considered as a revocation, for the very same reason. The mere cir- 
cumstance that the very same equitable estate which formerly subsisted, 
had been since partially clothed with the legal estate, could not produce 
such a modification as to work a revocation. The learned judge said 
that he did not intend to impeach the authority of Rawlins v. Burgis, 
Ward V. Moore, and similar cases. But did Ward v. Moore differ in 
substance ? The owner of the equitable estate became a joint-tenant of 
the legal estate, thereby merely partially clothing himself with the legal 
title : yet it was held a revocation ; and in truth this is all that is done 
in every case of a conveyance to uses to bar dower. In. equity the 
owner of the equitable estate still remains absolute owner ; he has only 
clothed himself with a legal power of appointment, a life-estate, and a 
remainder in fee.] 

(rf) See 2 D. M. & fi. 695. 

(e) 2 J. & Lat. 613; and see Walker v. Armstrong, 21 Beav. 284, 8 D. M. & G. 531. 

(/) 2 Dr. & War. 493, 1 Con. & L. 531. It may be collected that Sir E. Su(jden never 
approved the decision in Rawlins )'. Burgis. Apart from authority, his own opinion, which 
he followed on a slight distinction in Poole ». Coates, may be thought the more reasonable.] 

189 



*159 EEVOCATION OP WILLS 

Tlie same general doctrines are, of course, applicable to equitable 
As to convey- interests created by marriage articles; hence the question, 
ances in exe- whether a conveyance, made in pursuance of such articles, 

cution 01 T . , . , , 

marriage revokes a devise, made in the mterval between the articles 
articles. ^^^ ^jjg conveyance, disposing of the equitable interest de- 

rived under the articles, depends entirely, under the old law, upon the 
fact, whether the conveyance merely carries into effect the articles 
which created the equitable interest in question, or newly modifies the 
ownership {g). 

But it is to be observed, that where, by the articles, the intended 
*159 settlor covenants to convey the lands to certain uses, and *subject 
thereto to the use of himself in fee, this does not sever the equitable 
from the legal ownership, in regard to such ultimate fee, so as to sup-' 
port a devise made intermediately between the articles and the convey- 
ance, since such severance could only be produced through the medium 
of an obligation attaching on the covenantor to convey the reversion in 
fee to himself ; and there seems to be no title in any third person to call 
for siich a conveyance, for a man cannot have a legal estate in trust for 
himself. Upon the principle of this reasoning. Lord Eldon, in Harmood 
». Oglander (A), [dissented from] the case of Williains v. Owens («), 
where the contrary doctrine was advanced by Sir R. P. Arden, who 
appears to have confounded the case of a covenant to convej', with 
that of an actual conveyance, bj' means of which, of course, the grantor 
may effect a severance of the legal and equitable ownership, by vesting 
the legal inheritance in the trustee for himself. , The learned judge 
entertained the notion, that the articles imposed on the covenantor an 
obligation to convey the fee, which fully accounts for (and, had it been 
correct, would have justified) the conclusion at which he arrived. The 
Effect of cove- argument upon which Lord Eldon impugned the case of 
nant to con- Williams V. Owens, would seem to involve the conclusion,- 
of "cove-*"'* that an agreement by a testator to convey an estate in fee to 
nantor. himself, would, for every purpose, be nuU and void ; but the 

principle has not been followed to this full extent, for in Vawser v. 
Jeffery (k) , both Sir W. Grant and Lord Eldon were of opinion, that, 
if a surrender of copyholds to certain limitations (which have been 
already stated) would have revoked the will at law, the covenant to 
make such surrender revoked it in equity. And though the assumption 
upon which this position was based, namely, that the surrender, if made 
pursuant to. the covenant, would have been a revocation at law, was in 
the subsequent stages of the case decided to be unfounded, yet this 
circumstance does not necessarily affect the doctrine in question. There 
is some difference, however, in the line of reasoning pursued b^' these 
great contemporary judges : Sir W. Grant, adopting the notion of his 

(.17) Parsons v^ Freeman, 3 Atk. 761; Brydges.9. Duke of Chandos, 2 Ves. Jr. 417, 7 B. P. 
C. Toml. 505. 

(A) 8 Ves.. 127. (i) 2 Ves. Jr. 595 (i) 16 Ves. 619, 2 Sw. 268. 

190 



BY AT^TERATION OF ESTATE. *160 

predecessor (Sir E. P. Arden), held, that the covenantor was bound to 
convey the fee-simple -to himself, according to his covenant ; while Lord 
Eldon puts the doctrine rather upon the ground of intention : " It is con- 
tended," he said, " that if the widow had applied to this court, to 
have the covenant *executed, the court need not have directed any *160 
such acts as would raise this question. My present opinion is, that 
I must consider the testator to have died with the intention which he 
expresses in this c»venant, unless it can be shown that he intended 
otherwise to execute his purpose of providing a jointure." Lord Eldon's 
observations show, that he considered the case as allied in principle to 
those (discussed in the next section) in which an ineffectual attempt to 
convey the devised lands has been held to revoke : though this view of 
it entirely differs from that, of the Court of ,K. B.,in Wright v. Littler {T}, 
who thought that a, void deed of covenant was not a revocation, as it was 
not binding on the testator, and expressed no intention to make a present 
disposition ; and Lord Mansfield expressly lays it down, that covenants 
have never been allowed to be a revocation, unless where the cove- 
nantee has a right to specific performance, — a principle which it seems 
very difHcult to refute. In that case, however, the instrument in ques- 
tion was not a deed of covenant, but an unsealed paper, by wliich the 
testator " covenanted and agreed" that the lands in question should go 
and be given to certain persons, and the question was, whether it was 
testamentary : the court decided in the negative, and that the paper 
was not a revocation of a previous will. Of course, a covenant to exe- 
cute a conveyance, which, if made, would not revoke the will at law, 
will be inoperative to revoke it in equity (m). 

Another obvious case of revocation in equity occurs where the testa- 
tor devises lands, and then, subsequently' to the will, con- ^Mect of con- 
tracts for the sale of them ; ^ such a contract, if once obliga- tract for sale 
tory on the testator, will revoke the devise {n) ,^ though it * ^"^ ^^'^^' 
should happen to be rescinded after the testator's decease (o), and also, 
by the better opinion, even though such transaction should have taken 
place in his lifetime (jo), supposing, of course, the will to be subject to 
the old law. Notwithstanding the contract for sale, the legal estate 
passes under the devise,' and the devisee is bound to convey it to the 
purchaser, in pursuance of the contract. If the devise, which might 
thus, in event, become operative upon the legal inheritance, would have 

(I) 3 Burr. 1244, 1 W. Bl. 345; [Patch v. Shore, 2 Dr. & Sm. 589.] 
(m) Vaw.ser D. Jeffierv, 3 Russ. 479. (n) Mayer v. Gowland, Dick. 563. 

(o) Tebbot ». Voules," 6 Sim. 40. 

0>) See Knollys «. Alcock, 7 Ves. 588, 566; Bennett v. Earl of Tankerville, 19 Ves. 170; 
[Curre v. Bowyer, 5 Beav. 6.] 

1 If, however, a testator execute a will in note. So, too, revocation of a trust created 
favor of A. in execution of a binding con- by will, where the means for executing the 
tract, the will is irrevocable ; and if he fail to trust are by the testator put into the trustee's 
so execute the will, equity will grant relief hands, cannot be effected. Padfield v. Pad- 
to the other party in respect of tlie benefit field, 72 III. 322. 
obtained by the party refusing to perform ^ Ponolioe «. Lea, 1 Swan, 119. 
his contract. Andine; v. Davis, 38 Miss. 574; s gee Hull v. Bray, Coxe, 212. 
Sell V. Hewitt, 24 Ind 280. See ante, p. 18, 

191 



*161 REVOCATION OP WILLS 

the effect of tying up the property in a manner incompatible with the 
convenient execution of the contract, as bj' creating limitations 
*161 in favor of* minors or unborn persons, the testator should im- 
mediately after the sale execute a codicil, devising the property 
to trustees, for the purpose of carrying the contract into effect. [But 
if the contract is rescinded or abandoned, either before or after the 
testator's decease, there is no purchaser to convey to ; and, the will 
being revoked, the devisee is a trustee for the heir (9) . So, where a 
testator devised an estate and then contracted to sell it, but no con- 
vej'ance was executed, and afterwards the testator repurchased the 
estate, it was held that the will, once revoked in equity, was not set 
up again (r).] 

Ante-nuptial articles for a settlement have, of course, the same re- 
Marriage voking event in equity, upon a previous devise of the prop- 
articles, erty agreed to be settled, as a contract to sell (s).* 

And here it may be observed, that, where a testator who has devised 
Effect of ^^® ^^^^ estate among his children, in undivided shares, after- 
settling wards, upon the marriage of one of such children, conveys 
vis^'d lands" ^^ Covenants to convey to uses, for the benefit of that child, 
on one of an aliquot share, equal to that which he had devised to the 
child (no doubt intending to substitute it for the share so 
devised), such settlement or covenant does not revoke the devise of 
that share in toto, there being nothing to identify or connect the de- 
vised with the settled share ; but it revokes the devise of all the shares 
pro tanto, letting in the advanced child to participate equallj- with the 
others in the remaining shares, not affected by the settlement. Thus, 
in Eider v. Wager (<) , where a testator by his will gave one moiety of 
his real and personal estate to his elder daughter, and the other moiety 
to the younger daughter, and afterwards, upon the marriage of the elder 
with A., covenanted to settle one moiety of all his real estate to the use 
of himself for life, with remainder to A. and his intended wife for their 
lives, remainder to the younger children 'of the man-iage in tail, re- 
mainder to A. in fee ; it was held, that this covenant revoked the will 
in equity as to one moiety of the testator's real estate, and that the 
other moiety passed under the devise in the will to the two daughters, 
and this was thought to be rendered still more clear by the republishing 
effect of a codicil which had been executed bj' the testator after the 
articles." 



Uq) See Tebbott v. Voules, supra. 

\r) Andrew v. Andrew, 8 D. M. & G. 336. See obsen-ations on this case Sng. E. P. S. 

361.1 

(s) See Cotter v. Layer, 2 P. W. 624 ; Vawser v. Jefferv, 16 Ves. 519 -, 2 Sw. 268. 

(0 2r "■ ■ 

cation ?] • 



p. 361.1 
(s) Sei 
(0 2 P. W. 334 : [but must not this case be considered as depending solely on the republi- 



1 On the other hand, the tact that a wife nuptial provision by will in her favor made 

has abandoned her husband, and been di- in positive and unequivocal terms. Charlton 

vnrced therefor at his suit, docs not, it is v. Miller, 27 Ohio St. 208. 
held, amount to a revocation of an ante- ^ gee Langdon v. Astor, 3 Duer, 477 i S. C. 

192 



BY ALTERATION OF ESTATE. *162 

* The revocation of devises by an alteration of estate is placed *162 
on an entirely new footing by the stat. 1 Vict. c. 26, which gtat. ivict. 
provides (sect. 23), that no conveyance or other act made or <=• 26. 
done subsequently to the execution of a will of or relating ^^leremkei 
to any real or personal estate therein comprised, except an as to testa- 
act by which such wiU shall be revoked as aforesaid, shall bie Lterest*" 
prevent the operation of the will with respect to such estate ,*' decease, 

by C011V6V- 

or interest in such real or personal estate, as the testator anceorlike 
shall have power to dispose of by will at the time of his death. ^°'" 

In regard to wills, the date of which or of any codicil thereto brings 
them within this section, a subsequent conveyance of the Remarks un- 
devised property will not produce revocation, except so far as on the enact- 
it substantially alienates the estate, and withdraws it from "^°'" 
the operation of the devise by vesting the property in another. If a 
testator, after devising an estate, sells and conveys it to a third person, 
of course the devise is stiU (as formerly) rendered inoperative, and the 
devisee can have no claim to the proceeds of the sale, even though the 
will should have directed the conversion of the property, and the pro- 
ceeds can be traced into an investment (m). Where the Will is re- 
testator contracts to sell the devised estate, and dies with- ™^fj!!'7.„ 

' contract to 

out having executed a convej^ance to the purchaser, the sell, 
devise remains in force as to the legal estate and no further, this being 
all the interest which the testator has power to dispose of at his decease, 
and the conversion, as between the real and personal representatives, 
being completely effected, [and the estate of the vendor being in con- 
templation of equity, " disposed of"] by the contract (supposing 
it to be a binding one), the devisee takes only the legal estate, 

(m) See Arnald v. Aruald, 1 B. C. C. 401. 

16 IT. T. 9. That a deed to a child may be 19 Ga. 216; Miner v. Athertoii, 35 Penn. St. 
treated as an advancement, see Wagner's 528. The same presumption does not arise 
Appeal, 38 Penn. St. 122; Hatch v. Straight, in the case of a stranger. Powell v. Cleaver, 
3 Conn. 31. In regard to personal estate, the 2 Bro. C. C. 388. Nor where the bequest is 
rule is that where a father gives a legacy to a of a share in the residue. Smith v. Strong, 
child, it must be understood as a portion, al- 4 Bro. C. C. 369 ; Freemantle't). Banks, 5 Vea. 
though not so described in the will, because 79. Nor where the advancement is not of the 
it is a provision by a parent for his child ; and same character with the bequest or legacy, 
if the father afterwards advances a portion Swoope's Appeal, 27 Penn. St. 58; Dugan V. 
for that child, as upon marriage, it will be a Hollins, 4 Md. Ch. 139. If, after advance- 
complete ademption of the legacy, not only ments, a will be made, the intention of the tes- 
in cases where the advancements are larger tator as to such advancements is matter of 
than, or equal to, the testamentary portions, fact determinable from the will itself, and 
but also in cases where the sums advanced from extrinsic matters or tesfeimonj'" to show 
are less than the sums bequeathed ; for it will whether monej' or goods were intended as. 
not be intended, unless ■ proved, that the advancements. Watson ?'. Watson, 6 Watts, 
father designed two portions to one child. 254; Wright's Appeal, 89 Penn. St. 67; 
Hartops.Whitmore,! P. Wms.681; Clarketi. Bacon v. Gossett, 13 Allen, 334. And, in 
Burgoine, 1 Dick. 353 ; Pye, Ex parte, 18 Ves. the absence of direct evidence accompany- 
158; Lawrence v. Lindsay, 68 N. Y. 108. ing a gift, the question of advancement must 
The above rule of presumptive ademption, be determined upon a consideration of the 
however, is subject to many qualifications; surrounding facts. Wright's Appeal, supra; 
and the presumption may be destroyed or con- Knabb's Estate, 30 Leg. Int. 361. A debt 
firmed by the introduction of parol evidence of due by a son-in-law cannot be converted by 
a different intention by the testator. Langdon proof of a testator's subsequent parol decla- 
«. Astor, 16 N. Y.9; Kogers v. French, rations into an advancement to his daughter. 

voLi. 13 193 



*163 KEVOCATION OP WILLS 

and the purchase-money constitutes part of the testator's personal 
estate (x).^ 

— or by other [And this rule applies equally to eases of conversion by 
TheXl"" 'i operation of law ; as, by act of parliament {y) , or by an 
untary or Order for Sale pronounced by a court of competent jurisdic- 
compulsory, ^j^^ ^^.^^ ^j, j^y compulsory sale under the Lands Clauses 
*163 and similar acts (a), *or by sale under a power given by the 

testator to a mortgagee (6). But, of course, an unauthorized 
sale (as if the real estate of an insane person, not so found, is sold by 
persons assuming to act for him) will not work conversion, although 
the sale is conflrmed by the court after the owner's death (c). And 

— unless the ^^^ Converting effect of a sale under an act of parliament or 
proceeds are under an order of court is neutralized if the statute (d) or 

to 1)6 r6in~ 

vested to order (e) directs a reinvestment in land to be settled to the 
same uses. game uses ; in which case, it should seem, the will would 
operate on the substituted land. So, if land were sol4 under the 
common power of sale in a settlement containing a similar direction for 
reinvestment ; though some doubt may seem to be thrown on this by 
Gale V. Gale (/) , where an estate stood settled in trust for 
1" trae. j^^ ^^^^ j^jg ^jjgg successively for life, with remainder as A. 

Ux) Farrar v. Earl of Winterton, 6 Beav. 1; Moore v. Raisbeck, 12 Sim. 123. These 
decisions confirmed the author's previous opinion, see 1st ed. p. 148, where he cites Knollys v. 
Shepherd (ante, p. 56) to show that, even under the old law, a devise of land which the testator 
had previously contracted to sell passed the legal estate only. But the devisee is eutitled to 
the rent until completion. Watts v. Watts, L. R. 17 Eq. 217. 

(y) Frewen v. Frewen, L. R. 10 Ch. 610; Richards v. Att.-Gen., 6 Moo. P. C. C. 381; Cadraan 
V. Cadman. L. R. 13 Eq. 470. 

(z) Steed v. Preece, L. R. 18 Eq. 192, questioninj? Jermy v. Preston, 13 Sim. 356 (as to 
■which see n. (e), infra), and Cooke v. Dealey, 22 Beav. 196. See also Arnold v. Dixon, 
L R. 19 Eq. 113. 

(a) Ex parte Hawkins, 13 Sim. 569 ; Re Manchester and Southport Railway, 19 Beav. 365; 
Ex parte Inamank,! Sim. N. S. 260. Notice to treat and agreeing on the price are together 
equivalent to a contract for sale, and work a conversion, Ex parte Hawkins, Ex parte Fla- 
mank, supra ; Harding v. Metropolitan Railway, L. R. 7 Ch. 154 ; Watts v. Watts, L. R. 17 Eq. 
217. But notice to treat, without more, has no such effect, Haynes ». Haynes, 1 Dr. &Sm.426; 
nor a notice followed by vendor's unaccepted statement of price. Re Arnold, 32 Beav. 591 ; nor an 
agreement as to price per acre without defining the lund. Ex parte Walker, 1 Drew. 508. Where 
an option to purchase at a specified price was given to A., and after the testator's death tlie 
land was bought by a railway company for double that price, A. was held entitled to the 
difference. Cant's estate, 4 De"G. & .Jo. 503. See also Ex parte Hardy, 30 Beav. 206.] 

(6) Wright V. Rose, 2 S. & St. 323 ; Bourne v. Bourne, 2 Hare, 35". In both these cases 
no sale was made until after the testator's death, and therefore it was held there was no 
conversion — qii.oad the surplus. Compare Jones v. Davies, i Ch. D. 216. 

(c) See per Wood, V.-C, Taylor v. Taylor, 10 Hare, 478, 479. 

(rl) As where the land of persons under disabilitv is sold under the Partition Act, 1868, 
Foster v. Foster, 1 Ch. D. 588; Kelland v. Fuirord,"6 Ch D. 491; Mildmay ». QuickC, ib. 
553 ; or under the Lands Clauses and cognate acts, Midland Railway v. Oswin, 1 Coll. 80; Re 
Taylor, 9 Hare, 696; Re Homer, 5 De G. & S. 483; Re Stewart, 1 Sm & Gif. 32; Re Harrop, 
3 Orew, 726. The Lunacy Regiilation Act, 1853, directs (ss. 124, 135) that money arising 
bv sale under that act of land belonging to lunatic tenant in fee sliall devolve as realty. Re 
Mary Smith, L. R. 10 Ch. 79. 

(f) Fellow ». Jermvn, W. N. 1877, p. 95. The land sold was in strict settlement, and the 
reinvestment (of surplus after answering charges) was necessary to prevent the money vest- 
ing absolutely in the first tenant in tail. Jermy v. Preston, 13 Sim. 356, 366, appears to 
have proceeded on a similar ground. And as to the propriety of reinvestment where the 
estate is settled, see4 D. M. & G. 766, per K. Bruce, L. J. (/) 21 Beav. 349. 

Wright's Appeal, 89 Penn. St. 67; Yunt's donor has parted with his title to thing ad- 
Appeal. 13 Penn. St. .575. It may be added vanced. Manning p. Manning, 13 Rich. 410. 
that advancement always implie'a that the i See Donohoe v. Lea, 1 Swan, 119. 

194 



BY ALTEEATION OP ESTATE. *164 

should bj' deed or will appoint, and in default of appointment over : 
the trustees had power to sell, and the proceeds were to be reinvested 
in land to be settled to the same uses. By his will A. appointed the 
estate to the children of B., and devised all other his real estate not 
thereinbefore speciflcallj' disposed of to his wife. Afterwards the trus- 
tees sold the estate, and then A. died ; and it was held by Sir J. Rom- 
ilh', M. R., that the appointed property was adeemed hy the subsequent 
sale, that the appointment had no effect either on the purchase- 
money (which had not yet *been reinvested) nor on the new *164 
estate to be purchased with it, but that the right to these passed 
b}' the residuary devise (g). He said it must be treated as a new 
estate and a new power in relation to it. Having regard to the direc- 
tion that the new estate should be settled to the old uses (which, of 
course, included the power of appointment) , it would be difficult to dis- 
tinguish this case in principle from one where A. had the estate and not 
a power onlJ^ But the decision is questioned by Lord St. Leonards, 
who says it was the old power that remained over the new estate (A) . 

It is now scarcely possible for an}' residuum of interest remaining in 
the testator at his death to escape from the previous devise. Devise to A. 
In Lowndes v. Norton (i) , when a testator devised an es- °^^l l^om 
tate to trustees during the life of his daughter, without waste, foi- 
impeachment of waste, for her separate use, and soon convevance 
afterwards conveyed the same estate to a different trustee '" ^- '<"■ ''^® 

not so cx— 

for the life of the same daughter (but not making her or empt. 
the trustee unimpeachable for waste), with several successive remain- 
ders for life, each without impeachment of waste, with reversion to 
himself in fee ; it was argued that the right to the timber remained in 
the testator at the time of his -death, and, notwithstanding the deed, 
passed by the devise to the daughter, who was consequently iinimpeach- 
able for waste : but it was held by K. Bruce and Turner, Ij.JJ., that 
this was an argument not warranted in fact (presumablj' because the 
right in question was in fact disposed of by the deed to the tenants for 
life in remainder) , and that the estates given by the deAdse had baen 
completelj' abolished by the deed.. 

How a specific bequest of leaseholds is affected, under tjiis section, 
b}- the subsequent acquisition of the fee was considered in Bequest of 
Cox V. Bennett (i) , where a testator having bequeathed '^™j''?Y 
" his houses at T., held on lease from B.," to X., and the purchase of 
residue of his real and personal estate to Y., afterwards pur- ''"' ^''^• 

(a) As to this see post, Ch. XX. s. 5. 

(h) R. P. S. 375, n., and Pow. 308, 8tli ed. In Ee De Beauvoir, 2 D. F. & J. 5, 29 L. J. 
Ch. 667, where the sale was under the L. C. Act, and A. had tlie estate in reversion, the 
point did not arise; for by his will the settled estate and "all other his real estate" were 
included in the same devise. (0 33 L. J. Ch. 583. 

(k) L. I{. 6 Eq. 422. See also Struthers v. Struthers, 5 W. R. 809. Both, these cases 
appear to require tlie further support of s. 3, whicli enables a testator to disjwse of all real 
e»tate to -H-hich he may lie entitled at the time of his death, and of s. 24, wliich enacts that 
every will shall be construed with referen ;e to the real and personal estate comprised in it to 

195 



*165 EBVOCATI0N OP WILLS 

*165 . chased and * took a convej-ance to himself of the reversion in fee. 
It was held bj' Sir G. Giffard, V.-C, that the entire interest in 
the houses passed by the specific gift to X. He said, " the clause in 
the statute (». e. sect. 23) says that the will is to pass such estate or 
interest in' such real or personal estate as the testator shall have power 
to dispose of at his death ; and there is nothing- in the will to confine 
its operation to the interest which the testator had at the date of the 
will:" the reference to the lease was merely a method of describing 
the property. 

The section now under consideration does not apply to wills made 
Sect/ 23 does before 1st January, 1838. Such wills are revocable by alter- 
wms^mlcie"' ^^on of. estate,, although the alteration should be eflfected on 
before 1838. or after that day {I) .] 



Section IV. 
^ void Conveyances. 



An instrument purporting to be a conveyance, but incapable of taking 
Attempt to eff'ect as such, may, nevertheless, operate to revoke a pre- 
vokes^le- '^ious devise, on the principle, as it should seem, that the 
vise, where, attempted act of conveyance is inconsistent with the testa- 
mentary disposition, and, therefore, though ineflfectual to vest the prop- 
erty in the alienee, it produces a revocation of the devise. The rule 
obtains, wherever the failure of the conveyance arises either from the 
incapacitj' of the grantee, or from the want of some ceremony which is 
essential to the efficacy of the instrument.* Thus, in Beard v. Beard (m). 
Lord Hardwicke decided, that a deed of gift by the testator to his wife 
of personal estate, which he had previously bequeathed by his will, re- 
voked tlie bequest ; though the deed was inoperative under the rule of 
the common law, which incapacitates a woman from taking propertj^ 
so disposed of, as the donee of her husband. So it has been often 
ruled, from a very early period, that a feoffment without liverj' of seisin, 
and a bargain 'and sale without inrolment, revoke a previous devise 
of the lands thus ineffectually attempted to be ahened (n) . And 

take effect as if it had been executed immediatelv before the testator's death: for s. 23 says 
only that no subsequent act shall ^»'Ct!e7j( the will operating, implying that but for the subse- 
quent act the will would have operated on the interest in question; which it would not have 
done without the aid of ss. 3, 24. 

(I) Langford v. Little, 2 Jo. & Lat. 613.1 ('») 3 Atk. 72. 

(m) See Montague^e. Jefferies, Moor, 429, pi. 599. See also 3 Atk. 73, 1 W. Bl. 349, 2 Sw. 
274. 

1 A conveyance inoperative for want of 1;ion of the testator to revoke his will. Wal- 
completion, or incapacity in the grantee, may ton v. Walton, 7 Johns. Oh. 269. 
amount to a revocation, if it shows the inten- 

196 



BY VOID CONVKYANCBS. *167 

the rule has been considered as applying to a * common recovery, *166 
rendered void by the misnomer of the tenant to the preecipe (o), 
and to an instrument purporting to be an appointment under a power, 
which at the time was not in the testator (p). It is true, that in the 
last case, the court was of opinion, that the instrument, if void as an 
appointment, might take effect as a grant of the reversion ; but Lord 
Kenyon, C. J., unreservedly stated, that, " even supposing' it was an 
inadequate conveyance for the purpose for which it was intended, still 
if it demonstrate an intention to revoke the will, it amounts, in point 
of law, to a revocation." And, in Vawser v. Jeffery (y) , Lord Eldon 
treated it as clear, that an attempt by a testator to convey a copyhold 
estate bj^ deed, would revoke a previous devise of that estate. 

It has been held, however, that a conveyance to charitable uses, 
which was void under the statute 9 Geo. 2, c. 36, on ac- „ ,.„ 
count of the grantor djing within twelve months after its tions of the 
execution, did not affect a prior devise, on the ground, it is """ 
presumed (for the reasons are not stated), that the event of the grantor 
surviving the year, was an impUed condition annexed to the deed, and 
this failing, the intended conveyance was to be considered as a nullity, 
the effect being the same as if the grantor had expressly made his con- 
veyance dependent on such a contingency (r). So it has been decided, 
that a deed executed by one who is under a personal incapacity to make 
the attempted disposition, has no revoking effect on a prior devise ; for 
as the principle proceeds upon intention, ability to perform the act 
seems to be a necessary ingredient, for withcjut such ability there can 
be no disposing mind. Thus, where a feme coverfe, who had a power to 
appoint real estate by will only, and had also the fee-simpledn default 
of appointment, made a will in pursuance of the power, and subse-> 
quently executed a deed purporting to convey the lands, it was held 
that the deed was inoperative to revoke the testamentary appoint- 
ment (s). But if a feme coverte^ who has a power of appointing by deed 
or will, makes a will in exercise thereof, and afterwards, by deed, in 
execution of her alternative power, directs her trustees to convey to 
her, which they accordingly do, of course the testamentary appoint- 
ment is revoked {t) . 

* It seems clear, that a conveyance which is void at law on *167 
account of fraud or covin, is not a revocation : but a differ- _ , , 
ent rule obtains, in regard to deeds which are valid at law, veyance void 
though impeachable in equity. The existence of this dis- ?"^*^™""oke* 
tinction, indeed, was long vexata qnisstio, but all controversy a will,— 
on the point seems to be closed by the case of Simpson v. where. 

(o) Doe ». Bishop of Llandaff, 2 B. & P. N. E. 491. [The point, however, was not 
actuallv decided in this case.] 

(p) "Shove V. Pinke, 5 T. E. 124, 310. (?) 2 Sw. 274. 

(r) Matthews ». Venables, 9 .1. B. Moo. 286, 2 Bing. 136. 

(a) Eilbeck v. Wood, 1 Kiiss. 564. 

(t) Lawrence v. Wallis, 2 B. C. C. 319. 

197 



*168 EBVOCATION OP WILLS 

Walker (u) ; in which it was decided by Sir L. Shadwell, V.-C, in con- 
formity to the decision of Lord Hardwicke in JHiek v. Mors (x), and 
that of Lord Alvanlej' in Hawes v. Wjatt (y) , and a dictum of Lord 
Eldon(z), and in opposition to a determination of Lord Thnrlow(a), 
that a deed obtained under circumstances which rendered it void in 
equity, but which was valid at law, did revoke a previous devise. 

A question of this nature, however, cannot arise in regard to wills 
Eule as to made since 1837, for as, under the recent enactment, even 
wills since an actual conveyance does not produce revocation, except 
so far as it may, by alienating the testator's interest, leave 
the devise nothing to operate upon, it is obvious, that a void or at- 
tempted conveyance cannot, under any circumstances, have, as such, a 
revoking effect (6) . 



Section V. 

jB^ a suhsegiient Revoking or Inconsistent Will, Codicil or Writing. 

In considering this head of Revocation, as applicable to wills made 
Before 1838. before the year 1838, freehold and personal estate must be 
. distinguished. The Statute of Frauds (c) enacts, " that no 

lands, how to dfevise in writing of lands, tenements, or hereditaments, nor 
be revoked, ^ny clause thereof, shall be revocable, otherwise than by 
some other will or codicil in writing or other writing declaring the same, 
(or by burning, &c.) ; but all devises and bequests of lands and tene- 
ments shall remain and continue in force (until the same be burnt, &c.) ; 
or unless the same be altered bj' some other will or codicil in 
*168 writing, or other writing of the devisor, signed in the * presence 
of three or four witnes.ses declaring the same."'' The same 
Bequests of statute (sect. 22) provides, " that no will in writing con- 

personalty, . ^ -, , \ 

how to be cerning any goods or chattels or personal estate shall be re- 
revoked, pealed, nor shall any clause, devise or bequest therein be 

(u) 5 Sim. 1. (x) Amb. 215. 

iy) 2 Cox, 263, 3 B. C. C. 156. See also 7 Ves. 374. 

h) 8 Ves. 283. (n) Hawes v. Wvatt, supra. 

[(b) Ford V. De Pontfes, 30 Beav. 572. ace. And distinguish between a void conveyance 
inoperative as such to produce revocation, and a writine; dulv executed and " declaring an 
intention to revoke," which takes effect under 1 Vict. c. 26, s."20. See post. d. 170. 

(c) 29 Car. 2, c. 3, s. 6, Ir. Pari. 7 Will. 3, c. 12, s. 6.] 

1 This, in substance, is the language of Boudinot v. Bradford, 2 Dall. 268; S. C. 

the statute law of almost every part of the 2 Yeates, 170; I.awson u. Morrison, 2 Dall. 

United States, 4 Kent, 620, 521, note (o); 289; Bums v. Burns, 4 Serg. & R. 297. The 

Beldenv. Garter 4Day,-66; Witter ii. Mott, statutes of the several states generallv con- 

2 Conn. 67; Card d. Grininan, 5 Conn. 164; tain specific rules for the revocation of "wills, 

Brown «. rhorndike 15 Pick. 388; Ray ». both real and personal estate, conforming 

Walion, 2 A. K. Marsh. 73 ; Ex parte II- in most cases (of revocation by a subsequent 

Chester, 7 Ves. (Sumn. ed.) 348, note (o); instrument) to the require.pents for the exe- 

198 



BY SUBSEQUENT WILL OE CODICIL. *169 

altered or changed by any words, or will by word of mouth only, except 
the same be in the life of the testator committed to writing, and after 
the writing thereof read unto the testator, and allowed by him, and 
proved to be so done by three witnesses at the least." 

Unless these enactments had placed the revocation of wills under 
positive restrictions, they might have been revoked in the same manner 
as before, there being no necessary implication that what is required to 
constitute a valid execution of an instrument is essential to its revoca- 
tion ; on which principle it was held before the Statute of Frauds, that 
a will required to be in writing by the statute of 34 Hen. 8, c. 5, might 
be revoked by parol (if). 

Though the Statute of Frauds required that a will which revoked a 
devise of freehold lands should be attested by the same num- Difference 
ber of witnesses as a will devising such lands, yet, in some v^s,w and"' 
particulars, the prescribed ceremonial differed in the respec- revoking 
tive instances. Thus, a devising will was required to be statute of 
subscribed by the witnesses in the testator's presence, which Frauds. 
a revoking will was not, and a revoking will was required to be signed 
by the testator in the presence of the witnesses, while a devising will 
needed not to be signed in their presence ; each, therefore, had a cir- 
cumstance not common to both. This difference, however Eevocatiou 
(which probably occurred without design) , has been attended ^"itirnew dis- 
with little practical effect ; for it seldom happens that .a tes- position, 
tamentary instrument is executed for the mere purpose of revoking a 
previous will, and if it contain a new disposition, any revoking clause 
therein wiE be a nullity, whether the substituted devise takes effect or 
not, though for widely different reasons in the respective cases. If the 
devise with which the clause in question is associated be effective, it 
reduces the latter to silence by rendering it unnecessary, the new devise 
itself producing the revocation ; so that the efficacy of the will as a re- 
voking instrument cannot, in such a case, become a subject of considera- 
tion. If, on the other hand, the new devise be ineffectual ^, 

J\ r6V0C3~ 

on account of the attestation being insufficient for a devising, tion, wiiere 
though sufficient for a revoking will, the revoking tended 't""be 

clause becomes inoperative *on the principle before *169 substituted 
noticed, that the revocation is conditional and de- 
pendent on the efficacy of the attempted new disposition, and that 
failing, the revocation also fails ; the purpose to revoke being consid- 

(d) Cranvel v. Sanders, Cro. Jao. 497. See also Ex parte Earl of Dchester, 7 Ves. 348; 
Eicliai-dson v. Barrj', 3 Hagg. 249. 

cution of wills. An instrument purportinf; of an event which does not transpire has no 

to be a will, but not properly witnessed, will effect to revoke a prior validly executed will, 

not operate as a revocation of a prior properly Hamilton's Estate, 74 Penu. St. 69 ; Kudy v. 

executed will, though it contam a clause o"f Ulrich, 69 Penn. St. 177. The fair effect of 

revocation and profess to dispose of the prop- a revoking clause in the later instrument is 

ertj'diiferently from the will. Eeese ». Court that the clause was intended to operate only 

of Probate, 9 K. I. 434. So an instrument iu case the writing took effect as a will. lb. 
which is. to take effect only on the happening 

199 



*170 EBVOCATION OB" WILLS 

'ered to be, not a distinct independent intention, but subservient to the 
purpose of making a new disposition of the property ; the testator mean- 
ing to do the one so far only as he succeeds in effecting the same (e) .' 
But it seems, that, if the second devise fails, not froni the infirmity of 
the instrument, but from the incapacity of the devisee, the prior devise 
is revoked (/).^ 

With respect to the revocation of wills of personal estate, it is to be 
Revocation of observed that questions concerning ^ it most commonly occur 
■wills of per- in the ecclesiastical courts, which, of course, no less than 
soualty. ^j^g temporal courts, are bound by the 22d section of the 
Statute of Frauds, excluding parol revocations. Accordingly, it was 
ruled by Sir J. Nicholl, that evidence could not be received of the testa- 
tor's intention oraUy announced, to ' adopt the prior of two willsj both 
of which were found at his decease uncancelled,, though it appeared 
that most of the bequests in the posterior will had lapsed (ff) . But 
the enactment in question is not considered to preclude the reception 
of evidence of acts of a testator in his lifetime concerning his testa- 
mentary papers ; still less does it exclude inquiiy into the state in 
which such papers were found at his decease. And it is to be observed, 
also, that the requisition of the statute is satisfied by the intention to 
revoke being reduced into writing in the lifetime, and by the direction, 
of the testator, though not authenticated by his signature. And on 
this principle it was decided, that, where a person, at the testatrix's 
request, addressed a letter to another person having the custody of her 
will, requesting him to destroy it, this was a sufllcient revocation, 
though the wiU. was not destro3'ed in compliance with the request (A).' 
Revocation Eevocation often depends on the completeness of 

depending on *i70 the posterior * of two testamentary instruments. In 
of revoking such cases the ecclesiastical courts try the validity of 

^'"" the propounded paper by the principles which have been 

adverted to in a former chapter, to which it will be suflScient to 

fe) Eggleston ». Speke, 3 Mod. 258, Carth. 79, 1 Show. 89 ; Onions v. Tyrer, 2 Vern. 741, 
Pre. Ch. 459, 1 P. WT 343; [Short v. Smith, 4 Ea.st, 419.1 See also Ex parte Earl of Ilches- 
ter, 7 Ves. 348; Kirke v. Kirke, 4 Russ. 435 ; [Locke v. James, 11 M. & W. 901. Compare] 
Richardson v. Bany, 3 Hagg. 249. 

if) Frenche's Case, 8 Vm. Ab. Dev. 0. pi. 4; Roper v. Constable, 2 Eq. Cas. AT). 359, 
pi. §; S. C. nom. Roper v. Radcliffe, 5 B. P. C. Toml. 360, 10 Mod. 233; [Tapper v. Tapper, 

1 K. & J. 665; Quinn v. Butler, L. R. 6 Eq. 225. See also Re Gentry, L. R. 3 P. & D. 80, 
where an express revoking clause was held absolute, though accompanied by a desire that an 
instrument, referred to as a will but which in fact-was a valid deed, should stand as the will 
— which it could not do.] 

(o) Daniel v. Nockolds, 3 Ha^. 777. 

(h) Walcott V. Ouchterlony, 1 Curt. 580. [And see Re Eavenscroft, 18 L. J. Ch. 501; Mere- 
dyth V. Maunsell, Milw. Ir. Eccl. Rep. 132.] 

1 Laughton v. Atkins, 1 Pick. 535, 543; or legacy, and grounds such revocation on 
Reid V. Borland, 14 Mass. 208. See Bethell the assumption of a fact which proves not to 
V. Moore, 2 Dev. & B. 311; Clark v. Eborn, exist, th- revocation is regarded as contingent 

2 Murph. 235. upon the existence of such fact and does not 

2 Price V. Maxwell, 28 Penn. St. 23, 39; take effect. Dunham aAverill, 45 Conn. 61. 
Jones. 1). Murphy, 8 Watts. & S. 300. See ante, p. 

Where a testator by a codicil revokes a devise « See Boyd v. Cook, 3 Leigh, 32. 

200 



BY aiJBSEQUENT WILL OR CODICIL. *171 

refer (i) , with the additional observation, that the presumption is always 
strongly adverse to an unfinished instrument materially altering and 
controlling a will deliberately framed, regularly executed, recently 
approved, and supported by previous and uniform dispositive acts ; 
and this presumption is stronger in proportion to the less perfect state 
of, and the small progress made in, such instrument. To establish such 
a paper, there must be the fullest proof of capacitj', volition, final 
intention, and involuntary interruption (k).^ 

In regard to wiUs made since the year 1837, however, it can never 
be a question, whether an informal or apparently unfinished Q„estion how- 
testamentary paper has a revoking operation, for the statute affected by 
1 Vict. c. 26, s. 20, has placed a revoking will [or writ- '■«'=«''t act. 
ing (/)] upon precisely the same footing, in regard to the ceremonial 
of execution, as a disposing will ; and when that ceremonial has been 
observed, it can never be said that the will is informal or unfinished. 

A will t>T codicil may operate as a revocation of a prior testamentary 
■ instrument by the effect either of an express clause of revocation, or of 
an inconsistent disposition of the previously devised property.^ 

{Express revocation may, it seems, be produced in two different 
modes, having different effects. Thus, if there be a bequest Distinction 
by will to several persons as tenants in common, and by codicil catbro/a^"" 
the testator revoke the bequest to one of them, his share will gift and of so 
not accrue to the others (m) . This is the ordinary mode. But ^"cont°ains 
if the testator revoke so much of his will as contains the gift *« S*- 
to one of such persons, here, if the words that remain are sensible per 
se, and amount without further alteration to a gift of the whole sutojept 
to the others, these wUl take the whole, the will being reM as 
if the revoked words had never been in it. Harris * v. Davis (w) *171 
affords an example of the latter mode. In that case there 
was first a gift to A. and B. in common ; then, in a subsequent part of 

(0 Ante, p. 101. (4) Blewitt v. Blewitt, 4 Hagg. 410; Gillow v. Bourne, ib. 192. 

[(/) Tlie writing must " declare an intention to revoke," but need not be testamentary. 
And unless testamentary it will not be admitted to probate. Re Eraser, L. E. 2 P. & D. 40. 
See also Re Hicks, L. R. 1 P. & D. 683; Re Durance, L. R. 2 P. & D. 406. Such a writing 
may be executed by a married woman. Hawksley v. Barrow, L. R. 1 P. & D. 147. 

l(m) Cresswell v. Cheslyn, 2 Kd. 123; Humble v. Shore, 7 Hare, 247. Compare Shaw v. 
McMahon, 4 D. & War. 431, as to which see post, Ch. X., Ch. XXHI., Ch. XXXII., s. 3. 

(n) 1 Coll. 416. 

1 See Idley v. Bowen, 11 Wend. 227 ; a former inconsistent will is a'revocation of a 
Allison ». Allison, 7 Dana, 94. subsequent will. Havard v. Davis, 2 Binn. 

2 A will may be revoked by implication 406. Where a testator executed a second 
by the puljlication of a later testament incon- will, supposing at the time that his first will 
si.<teut with it. But the mere fact that a new was lost, and he subsequently found the first, 
will is made does not revoke the prior one, and destroyed the second, declaring that he 
since it may relate to other property. Smith preferred the first, the latter may legally be 
e. McCheSney, 15 N. J. Eq. 359. " A legacy admitted to probate. Marsh v. MarSh, 3 Jones, 
bequeathed to a granddaughter, by a codicil, 77. Cutto v. Gilbert, 9 Moore; P. C. 131. 
" in lieu " of a devise in the will to her mother, As to inconsistent wills see also Simmons v. 
who had since deceased, is a revocation of the Simmons, 26 Barb. 68; Brant v. Willson, 8 
original devise to the mother. Brownell ». Cowen, 56; Nelson v. McGiffert, 3 Barb. 
De Wolf, 3 Mason, 456. The republication of Ch. 158 ; In re Fisher, 4 Wis. 254. 

201 



*172 KEVOCATION OP WILLS 

the will a direction that C. should take a share with A. and B. ; and 
afterwards a codicil revoking " that part written in the will which left" 
the share to C. : and it was held that A. and B. took the whole. The 
frame of the will was peculiar, and lent itself easily to tlfis construction. 
If the words that are left require (as they generally would) some 
further alteration or addition to make them sensible, the construction 
will not be made (o) .] 

In order that an express clause of revocation maj- be effectual, it 
Intention must indicate an actual and present intention to revoke the 
whether pres- ^^^^ ' ^^^ ^^ ^^^ testator's expressions are declaratory only 
ent or future, of a future design, thej' will not be suflScient (/>)'; and in 
an early case, before the Statute of Frauds, a distinction is talcen be- 
tween the effect of a testator saying ' ' I wiU revoke my will made at 
P.," which refers to a future act, and when he says, " My will made 
at P. shall not stand," which is a present resolution, the latter being, 
it was considered, an actual revocation, and the former not (q).^ 

Of course a mere intimation by a testator of his intention to make by 
Mereinten- ^ future act a new disposition, does not effect an actual 
tion to revoke present revocation. Thus where A. (r) made a will, dis- 
Mt tnopera- posing of Ms real and personal property, and afterwards, 
tive. the residuary legatee of the personalty being dead, and A. 

having acquired other real property, he made another will whereby 
he devised the newly acquired property, and then wrote as follows : 
" As to the rest of my real and personal estate I intend to dispose of 
the same by a codicil to this my will hereafter to be made : " it was 
contended that this clause, though inoperative as a disposition, indi- 
cated an intention to revoke the prior will ; but Lord EUenborough and 
Lawrence, J., held that it was not a revocation. They considered the 
cases before the statute to be applicable, and that the testator merely 
intended to dispose of the subsequently acquired real estate, and the 
property which had lapsed by the death of the residuary legatee : and 
that, even if this had imported an intent to revoke by making a differ- 
ent disposition in future, it would not, according to the authorities, 
have amounted to a revocation, unless the court could ascertain what 

the difference was. 
Expres^s^ *172 * [And even an express clause of absolute and 
revocation re- present revocation of all former wills may be reduced 

constructs. *° **^*^^ ^'^ partial silence, either by showing that the clause 

(o) Sykes v. Svlws, L. R. 4 Eq. 200.] (p) Cleobury v. Beckett, 14 Beav. 588.1 

(q) Burton v. Gowell, Cro. El. 306. 

(r) Tliomas v. Evans, 2 East, 488. See also Griffin v. Griffin, 4 Ves. 197, n. 

1 Ray V. Walton, 2 A. K. Marsh. 71. another will is made, I desire that the foresro- 

2 In Brown v. Thornrtilie, IB Pick. 388, a ing be considered as revoked and of noeftect." 
testator wrote on his will, "It is my intention This was considered as a present revocation of 
at some future time to alter the tenor of the a will of personal estate. This was before the 
^bove will, or rather to make another will; Revised Statutes of Massacliusetts. See Wit- 
therefore be it known, if I should die before ter v. Mott, 2 Conn. 67. 

202 



BY SUBSEQUENT WILL OR CODICIL. *173 

was inserted by mistake (s), or that it is unreasonable to give un- 
restrained effect to the words ; as in cases where, hy one testa- 
mentary paper, a person exercises a power of appointment, and then 
by subsequent instrument either exercises another and distinct power (t), 
or deals with his own propertj-, and not with the subject of the former 
power («) : in these cases it has been held that the former appoint- 
ment is not revoked.] 

It was decided at an early period, that, in order to revoke a will, it 
is not sufficient that the existence of a subsequent wiU Ecvocation 
should have been found bj' a jury ; it must be found to be eiTcv o£"d'is^ 
different from the former (x), and even the latter finding position. 
wiE not avail, if it be added that the nature of such difference is 
unknown to the jurors (y).^ [And an instrument stating itself to be 
the testator's last will does not necessarily operate to revoke a prior 
will, either as regards real (z) or personal estate (a)-] 

The most simple and obvious case of revocation by inconsistency of 
disposition is that of a testator having devised lands to a person in fee, 
and then by a, subsequent will or codicil devising the same lands to 
another in fee ; in such case the latter devise would operate as a com- 
plete revocation of the former (b).^ And here the learned reader can- 
not fail to perceive in the difference of construction which has obtained, 
where two devises in fee of the same land are found in one and the 
same will, and where they are found in several distinct wUls, 
the greater anxiety * evinced to reconcile the several parts of *173 
the same testamentary paper, than to reconcile several distinct 

[(s) Powell V. Mouchett, 6 Madd. 216; Ee Oswald, L.E. 3 P. & D. 162 ; and cases cited 
ante, p. 78, n. (.;'). 

(«) Ee Mereditli, 29 L. J. Prob. 155. The parol evidence read at the bar in this case of 
course formed no ingredient in its decision. See also Ee Merritt, 1 Sw. & Tr. 112, 4- Jur. N. S. 
1192; Ee Joys, 30 L. J. Prob. 169. It is otherwise if the testator by the second instrument 
again refers "to the same power, though he fails thereby to dispose of the whole subject. Ee 
Eustace, L. E. 3 P. & D. 18-?. 

(u) Hughes V. Turner, 4 Hagg. Eccl. 52; Denny v. Barton, 2 Phillim. 575.] 

(x) Seymor v. Nosworthy, Hard. 374; Show. 'P. C. 146. [If the subsequent will is lost 
or destroyed, parol evidence is admissible to prove its contents. Brown v. Brown, 8 Ell. & Bl. 
876.] 

(y) Goodright v. Harwood, 3 Wils. 497, 2 W. Bl. 987, Cowp. 87, 7 B. P. C. Toml. 489. 
[So in the case of a revocable appointment by deed where the contents of a subsequent ap- 
pointment are unknown. Kawlins v. Eikards,>28 Beav. 370. 

(z) Freeman v. Freeman, 5 D. M. & 6 704. 

(a) Cutto V. Gilbert, 9 Moo. P. C. C. E. 131; Richards v. Queen's Proctor, 18 Jur. 540, 
Lemage v. Goodban, L. E. 1 B. & D. 57; Ee De la Saussaye, L. E. 3 P. & D. 42; Ee Petchell, 
ib. 153.] 

(b) 3 Mod. 206, [Litt. s. 168; Ee Hough's Estate, 15 Jur. 943, 20 L. J. Ch. 422; Evans ». 
Evans, 17 Sim. 107. 

1 Evidence that a subsequent will had See Nelson v. McGiffert, 3 Barb. Ch. 158. 
been made by thetestator and had been stolen But see Jones v. Murphy, 8 Watts. & S. 275, 
from him, without any proof of its contents, where it was held that in case of spoliation nr 
together with proof of his declarations, after fraud, in reference to the suppression or de- 
the will was stolen, that he would die intes- struction of a second will, it was not necessary 
tate, and leave his property to be distributed to show its contents, or in what respect it re- 
according to the statute, was held not to be volted the first, as must be done in ordinaiy 
sufficient evidence of the revocation of a for- cases, 
mer will, in Hylton v. Hylton, 1 Gratt. 161. ^ Brant v. Willson, 8 Cowen, 56. 

203 



*174 EEVOCATrOK OF 'WTLLS 

papers of different dates, though constituting, in the whole, one will. In 
the former case, the devisees (as hereafter shown) take concurrently in 
order to avoid making one part of the will contradict and subvert another ; 
and in the latter case no hesitation seems to have been felt in holding 
the second devise to be revocatory of the first. And the distinction 
seems to be reasonable; for though it may be very uidikely that a 
testator should wholly change the object of the devise in the short 
interval between his passing from one part of the wiU to the other, 
there is no such improbabiEty that, in the longer lapse of time between 
the execution of two testamentary papers of different dates, such a 
change of purpose should have occurred. 

[So if the residue of personal estate be given by will to A., and by 
Gift of resi- codioil to B., the former gift is revoked (c) . And this was 
revo&b" ^^ ^^^^ in Earl of Hardwicke v. Douglas (d), though the 
similar ^ift gift by codicil was of personal estate "not hereinbefore or 
in codicil. ijy my ^jj]^ jjj. g^jjy ^^^^^ codlcil dlsposcd of." The words 

wkke li. " " were construed to mean " not hereinbefore or by my will 
Douglas. disposed of by way of particular legacies," thus leaving 
something for tJie gift to operate upon: literally construed they left 
nothing. Again, in Kermode v. Macdonald (e) , where a testator by 
her wiU bequeathed specific and pecuniaTy legacies, and gave the resi- 
due of her personal estate to A.,' and then by codicil gave " all her 
personal estate" to B. ; it was held, that "all her personal estate" 
meant the whole of the personal estate which by her will the testatrix 
h-.d divided into two portions, the legacies and the residue, and that 
tlie will was therefore wholly revoked. 

But where a testator bequeathed portions of "his money in the 
Gift of pap- funds" to several legatees, and " the surplus of his money 
ticuiar resi- ^ ^he funds " to be distributed by his executors among the 
voked by legatees, and then by codicil, after bequeathing some specific 
the'^eneral"^ chattels, gave " the surplus remaining after the aforesaid 
residue. legacies are paid " to the children of A. ; Sir J. K. Bruce, 
V.-C, held that the gift of surplus, monej' in the funds was not revoked 
by the residuary gift contained in the codicil, which was so expressed 

as to embrace other property (/) . 
*174 * Under the old law] where a testator at different periods of 
his life made various testamentary papers, some of which he 
''"- •^'wifia destroyed, and others he left undestroyed, each piu'porting 
are subsist- to contain Ws last will, this character belonged exclusively 
ing at death. ^^ ^^^.^ ^^^ ^^ ^1^^ uncancelled papers as was executed next 

before his decease (g) ; and in order to ascertain the time of the execu- 

r(o) Fownes-Luttrell v. Clarke, W. N. 1876, pp. 168, 249. 

Id) 7 CI. & Fin. 795, West, P. C. 555, per Lords Brougham and Lymdhurst, reversing 
Douglas D. Leake, 5 L. J. N. S. Ch. 26; coram Lord Cottenham, who inD. P. retained his 
ooinion. Compare Lee «. Delane, 4 Do G. & S. 1. 

(e) L. R. I Eq. 467) 3 Ch. 684: (/) Inglefield « Coghlan, 2 Coll. 247J 

(o) See Goodright v. Glazier, 4 Burr. 2512 ; Harwood v. Goodright, Cowp. 92. [This rule 
is of course inapplicable to the present state of the law. See 1 Vict. c. 26, s. 22.] 

204 



Br SUBSEQXJENT WILL OB CODICIL. *175 

tion of tibe-respective papers, recourse may be had' to evidence, derived 
eitlier from their own contents, or from extrinsic sources. Sometimes 
the water-mark, showing the date of the manufacture of the paper on 
which a will is written affords decisive proof of its posteriority to 
another will, the period of whose execution can be ascertained by other 
means (h). 

If, from the absence of date and of every other kind of evidence, it is 
impossible to ascertain the relative chronological position of As to contra- 
two conflicting wills, both are necessarih- held to be void, '^|<='°0' wi.'is 

-, , , , 01 uncertain 

and the heir as to the realty, and the next of kin as to the date: 
personalty, are let in ; but this unsatisfactory expedient is never re- 
sorted to, until all attempts to educe from the several papers a scheme 
of disposition consistent with both have been tried in vain (i). _+ j^ 
And even where the times 6f the actual execution of the onciled if 
respective papers are known, so that, if they are inconsist- P"^^''''^' 
ent, there can be no difficulty in determining which is to be preferred, 
the courts will, if possible, adopt such a construction as will give efiect 
to both, sacrificing the earlier so far only as it is clearly irreconcilable 
with the latter paper (k) ; supposing, of course, that such latter. paper 
contains no express clause of revocation,^ [or other clear indication of 
a contrary intention (^).] 

As where a testator made a will devising his lands to trustees, for