were imposed, any sort of writing, and sometimes even a parol declaration, sufficed1; but now by the Wills Act both copyholds and customary freeholds must be devised in the form prescribed by the Act. The Act, however, saves, as the Act of George III saved, the fees and fines payable to the lord of the manor 2. Lands of copyhold tenure will now, under the Land Transfer Act, vest in the executor or administrator, except in cases where an admission or any act of the lord is necessary to perfect the title of a purchaser3.

(c) Estates pur autre vie. The nature of these estates is anomalous. They partake partly of the nature of personal estate, and are for some purposes treated as personal estate, as will be seen from the rules as to their devolution on intestacy; but they partake also of the nature of realty, e. g. quasi estates in fee tail can be created out of them. They were not devisable at all before the Statute of Frauds; that Statute gave power to devise them with the same formalities as those required for a devise of freeholds under section 5o. They are now devisable like other kinds of property under the Wills Act; and will now probably vest in the executor or administrator under the Land Transfer Act, 18977.

2. THE WILL OF PERSONAL ESTATE.

Wills of personal estate have been known, as we have seen, from an early period. It was not till the end of the seventeenth and the beginning of the eighteenth century that a man could leave all his property by will in every part of England'; but over the greater part of England the power had been secured as early as the fourteenth century. We have seen that the Ecclesiastical Courts, in gaining jurisdiction over successions to personal property, had secured a

1 Sugden, Essay on Wills, App. 8.

3 60, 61 Vict. c. 65, §§ 1, 4.

21 Vict. c. 26, §§ 3, 4.

4 Infra, pp. 150, 151.

Re Barber's Settled Estates, L. R, 18 Ch. D. 624.

6

29 Car. II. c. 3, § 12.

7 See, however, Robbins on the Land Transfer Act, pp. 33-35.

• Introduction, pp. 13 seqq.

9 Part ii, p. 130, n. 4.

larger jurisdiction than Ecclesiastical Courts possessed anywhere else in Europe. There were thus no general rules of canon law which dealt with the subject. The Ecclesiastical Courts, hampered as they were by the interference of the Common Law Courts, were not strong enough to make for themselves a law of succession; the consequence was a wholesale reception of Roman law'.

Sir H. Maine has said that the influence of the later Roman conception of a crime caused modern societies to arrive at the same legal conception sooner than they otherwise would have done. In the same way the Roman conception of a will, as a secret and revocable instrument which takes effect at death only, was adopted by the Ecclesiastical Courts and applied by them to the will of personalty. English law, therefore, from an early period, has, under the influence of Roman law, applied to personalty what we may call the modern conception of a will; for to the English will of personalty Justinian's definition has always been applicable: 'Voluntatis nostrae justa sententia de eo, quod quis post mortem suam fieri velit.' A Roman will was not good unless an heir was appointed; that is unless some person was appointed by it to represent the entire proprietary status of the deceased. The personal representative was made to fill this position in English law, with this restriction, however, that his liability was always limited to the assets of the testator. But he represented only the proprietary status of the deceased with regard to personal property. It is, as we have seen, not until the Wills Act' that the will of realty has in any degree

1 Godolphin's and Swinburne's treatises show this, e. g. they found in Roman law that for a will an heir was necessary, but not for a codicil; they thus laid it down that an executor was needed for a will but not for a codicil; Like the Doctor and Student they assimilated the executor to the Roman heres. [This has long ceased to be law.] So, too, both authors assume that civil law rules will apply unless something appears to the contrary. Whether they are to be applied or not, they usually state them.

Abuse

ceased to be a conveyance. It is not until 1897 that we get a real as well as a personal representative of the deceased -an official, as we have said, who offers a complete parallel to the Roman heres. Thus the nature of a will of personalty has been derived, through the ecclesiastical law, from the Roman law. But in one respect a very material departure was made from Roman law. English law originally required no formalities for a will of personalty'. It is true that the Statute of Frauds placed such restrictions upon nuncupative wills of personalty (where the estate thereby bequeathed exceeded £30 in value) that they gradually went out of use 2. But this enactment was not very efficacious, for the real property commissioners in 1833 reported that 'Wills of personal estate in writing may be made in any form and without any solemnity. It is not necessary even that the name of the testator should appear. Any scrap of paper or memorandum in ink or in pencil, mentioning an intended disposition of his property, is admitted as a will, and will be valid, though written by another person, and not read over to the testator, or even seen by him, if proved to have been made in his lifetime, according to his instructions. If a will is imperfect and it appears upon the face of it that something more was intended to be done, yet it will be valid so far as it appears to be complete, if it be proved that the testator's intention was arrested by sickness or death".' Numerous suits, opportunities for fraud, and questions of almost insoluble difficulty were the consequences of this state of things. Accordingly the Wills Act has now prescribed one necessary form for the will of all kinds of property.

1 Godolphin, pt. 1, chap. iii: 'And hereof (forms of civil law) we have no use here in England, being not obliged to any of those solemnities, saving only to that in scriptis where lands and tenements are devised.'

2 29 Car. II, c. 3, § 19. An exception was made in favour of wills made by soldiers on service, or by seamen at sea (§ 23). This was a direct imitation of Roman law, Williams, Exors., p. 104, note d. So it was said, Drummond v. Parish, 3 Curt. 531, that 'In order to ascertain the extent and meaning of the exception the civil law may be fairly resorted to.' I Vict. c. 26.

› Sugden, Essay on Wills, App. 7. ·

4

It may thus perhaps be said that, while the nature of the will of personalty has been the model to which, in most respects, the wills of other species of estate have been assimilated, the restraints of form-extended and improved by the Wills Act-to which the will of realty was subject, have been extended to the will of personalty.

A codicil is, in English law, 'a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as part of, a testament'.' 'Its nature is not substantive, but adjective. The same forms are required for executing a codicil as are required for executing a will; and if the will is not forthcoming at the death of the testator, the codicil could be proved as if it were the will. But it usually exists with a will, and it is then read as a part of the will. Thus a testator devised property to the children of B, to be divided among them in the same way as they were entitled under the will of B. It was decided that B's will and codicils made one instrument; and that therefore the shares of the children under the testator's will were the same as they were under both the will and codicils of B. So where a testator refers to, and confirms his will simply, the will, with all its codicils, is confirmed. If he desires to confirm the will without the codicils, he must clearly express that intention; or it must appear by necessary implication from the construction of the will that the will by itself is referred to".

1 2 Bl. Comm. 500.

3 1 Vict. c. 26, §§ 1, 9.

2 Green v. Tribe, L. R. 9 Ch. D. 231.

4 In the goods of Clements, L. R. '92 P. 254.

5 Pigott v. Wilder, 26 Beav. 90.

6 Green v. Tribe, supra. A reference to a will by its date merely does not exclude the codicils.

7 Williams, Exors. pp. 6, 7, and cases there cited.

ת

II.

THE FORMALITIES REQUIRED BY LAW FOR THE

EXECUTION OF WILLS.

WILLS may be divided, with respect to the formalities required by law for their due execution, into four classes: (1) Wills made according to the Wills Act'; this is the most usual form. (2) Nuncupative wills. (3) Wills of seamen. (4) Wills valid under Lord Kingsdown's Act2.

I. WILLS MADE ACCORDING TO THE WILLS ACT.

The Wills Act, section 9, enacts 'that no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; that is to say, it shall be signed at 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 and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.' This section of the Wills Act requires a careful analysis, in order that its meaning may be fully understood.

(a) As to signature of the testator.

(i) It must be signed by the testator. The testator must sign the will in order that he may show that he approves of it, and that the dispositions it contains are his. the goods of Hunt. Two sisters lived together.

Thus, In

One of