viz. that it should be void in the event of a marriage and children, without provision; inasmuch as that condition, viz. of marriage, and of the birth of children unprovided for, had not taken effect; or 2ndly, on the ground of an intention to revoke, to be presumed, in favour of a wife and children unprovided for; because the fact, upon which such presumption could be formed, did not exist in the present case. And it must further be remarked, that both the circumstances of a subsequent marriage and the having of child or children must concur to work an implied revocation: the birth of a posthumous child alone, although the testator die childless, is not sufficient (b).

Having endeavoured to illustrate the nature of implied revocations, strictly so called, it will be proper, in the next place, to take notice of those acts, by which a devise of land may more properly be said to be annulled than revoked; though the latter term is most frequently applied to this subject. The acts here alluded to are such, whereby a material alteration is made by the testator, in his seisin of the estate devised, after the execution of the will. The authorities on this subject are of very ancient date, beginning in the latter end of Queen Elizabeth's reign, and continued down in a regular series to the present time, with a few exceptions. The rule to be collected from these authorities appears to be this,-that where a person seised of an estate, devises it, and afterwards conveys his whole interest, either by feoffment, lease and release (c), bargain and sale, fine (d), or recovery (e), though but for an instant, and though he takes back the estate to the same use as before, or though the old use results to him again so as to descend in the same line as before, still the conveyance operates to annul his will. rule is founded on a technical principle of law, introduced, as it should seem, originally in favour of the heir; viz. that in order to render a devise valid and effectual, it is necessary that the seisin of the devisor should remain unaltered from the execution of the will until the death of the devisor. The foundation of the rule being wholly independent of the intention of the testator to revoke, the rule will operate where the provisions of the subsequent conveyance are consistent with the provisions of the will; and even where such conveyance is made for the express purpose of confirming the will. Hence, also, parol evidence to show that the testator did not intend, by the subsequent conveyance, to revoke his will, is inadmissible (f), In conformity with the preceding rule (9); it has been holden, that where the whole estate is conveyed by lease and release to uses, although there be a resulting use in the ultimate reversion to the

(b) Doe d. White v. Barford, 4 M. & S. 10.

(c) E. of Lincoln's case, 2 Freem. 202; Show. P. C. 154, S. C.

(d) Doe d. Dilnot v. Dilnot, 2 N. R. 401; Parker v. Biscoe, 8 Taunt. 699; 3

Moore, 24, S. C.

This

(e) Doe d. Lushington v. Bp. of Llandaff, 2 N. R. 491.

(f) Goodtitle v. Otway, 2 H. Bl. 516. (g) Goodtitle v. Otway, 1 Bos. & Pul. 576; 7 T. R. 399.

grantor by the same instrument, yet the conveyance will operate as a revocation of a prior will. It will be observed that, in the preceding instances, the whole estate was conveyed; and therefore the party did not die seised of that estate which he had at the time of making his will; and consequently the devise, which will only operate upon that seisin, which the testator had at the time of making his will, was annulled or revoked: but where the devisor does not part with his whole estate, e. g. where he grants an estate for years only, to the devisee, to commence in the life of the devisor, in such case, the conveyance will not operate as a revocation of the fee (h). In like manner, if a man devises land in fee to A., and afterwards makes a mortgage thereof in fee, either to the devisee (i) or a stranger (k), this mortgage in fee, though a revocation of the will in law, will not operate as such in equity, and the right of redemption will pass by the will. And the same rule holds in equity with respect to a conveyance in fee for payment of debts (1).

Secondly. As to Wills made after 1837.

An unattested codicil without a date, the will dated in 1830, and the deceased dying in January, 1839, was presumed to have been executed before January, 1838 (m).

The foregoing sections of the statute of frauds, and the construction thereof, are applicable to all wills made before the 1st of January, 1838, at which time the Act for the Amendment of the Laws with respect to Wills, 7 Will. IV. & 1 Vict. c. 26, came into operation. The general object (n) of this act is to collect the provisions of the several statutes relating to wills into one act, and to make in those provisions such modifications as may afford additional securities for the prevention of spurious wills, and additional facilities for making genuine wills. The particular provisions relate to the property which may be disposed of by will; the persons by whom wills may be made; the forms which are to be observed in making them; and the modes of revoking, altering, and reviving them; to which are added, other provisions for correcting certain rules of construction, by which the intentions of testators were often defeated.

The 1st section defines the meaning of the following words in this act: "Will" shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of stat. 12 Car. II. c. 24, or of stat. 14 & 15 Car. II. (I.), and to any other 329, 342.

(h) 2 Atk. 72; Vawser v. Jeffery, 3 B. & A. 462.

(i) Baxter v. Dyer, 5 Ves. jun. 656. (k) Admitted to be a settled point in York v. Stone, Salk. 158. Adjudged by Sir John Churchill, M. R., and Lord Jefferies, Ch., in Hall v. Dunch, 1 Vern.

(1) Adm. in Cave v. Holford, 3 Ves. jun. 654.

(m) Pechell v. Jenkinson, 2 Curt. Ecc. Rep. 273.

(n) See Ld. Langdale's speech, February 23, 1837.

testamentary disposition; "real estate," shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein "personal estate" shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property, which by law devolves upon the executor or administrator, and to any share or interest therein; and every word importing the singular number only shall extend to several persons or things, as well as one person or thing; and every word importing the masculine gender only, shall extend to a female as well as a male. By sect. 2, 32 Hen. VIII. c. 1; 34 & 35 Hen. VIII. c. 5; 10 Car. I. sess. 2, c. 2, (I.); sections 5, 6, 12, 19, 20, 21 and 22 of the Statute of Frauds, 29 Car. II. c. 3; 7 Will. III. c. 12, (I.); 4 & 5 Ann. c. 16, s. 14; 6 Ann. c. 10, (I.); section 9 of 14 Geo. II. c. 20; 25 Geo. II. c. 6, (except as to colonies;) 25 Geo. II. c. 11, (I.); and 55 Geo. III. c. 192, are repealed, except so far as the same respectively relate to any wills or estates pur autre vie, to which this act does not extend. Formerly, such real estates only as a person was seised of at the time of making his will, would pass by the will; real estate purchased intermediately between the making the will and the death, would not so pass but now, by sect. 3, every person may devise, bequeath, or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which if not so devised would devolve upon the heir at law, or customary heir of him, or, if he become entitled by descent, of his ancestor, or upon his executor, or administrator; and the power hereby given shall extend to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that, being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this act, if this act had not been made; and also to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same be freehold, customary freehold, tenant right, customary or copy

hold, or of any other tenure, and whether the same shall be a corporeal or incorporeal hereditament: and also 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 become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created, or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, and other rights of entry; and also to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will.

The 4th section requires, where estates have not been surrendered to the use of will, the payment of fees, fines, and stamp duties, by the devisees of customary freehold, copyhold and customary

estates.

The 5th section enacts, that the wills or extracts of wills of customary freeholds, &c. shall be entered on the court rolls, and that the lord shall be entitled to the same fine, &c., when such estates could not have been disposed of by will if this act had not been made, as he would have been from the customary heir in case of descent.

For the 6th section, which relates to estates pur autre vie, see ante, p. 801.

By sect. 7, no will made by any person under the age of twentyone years shall be valid; and sect. 8 provides, that no will made by any married woman shall be valid, except such a will as might have been made by a married woman before the passing of this act. By sect. 9, 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.

Upon the construction of this section, there have been several decisions in the ecclesiastical courts, which, now that the law relating to wills of realty and personalty is the same, will probably be followed in courts of common law and equity. The following are some of the principal of the points, falling within the scope of this work, which have been decided. The testator must write his signature before the attesting witnesses subscribe (o). Both the

(0) Cooper v. Bockett, 3 Curt. Ecc. Rep. 648.

witnesses must attest contemporaneously (p). The acknowledg ment therefore of one witness that a previously written signature is his, at the time the second subscribes, will not satisfy the statute (q). In a case in the Q. B., where a will made after this statute came into operation was attested by one witness in his own handwriting; and he also held and guided the hand of a second witness, who could not read or write, and in this way the second witness's name was written as attesting witness: the testator had desired the two to attest. This was holden to be a sufficient attestation (r). A testator requested two persons present 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; the testator did not state what was the nature of the paper: it was holden, that the paper was not entitled to probate (s). Where a paper is executed by the deceased, in the same room where the witnesses are, and who attest the paper in that room, it is an attestation in the presence of the testator, although they could not actually see him sign, nor the testator actually see the witnesses sign (†).

Sect. 10, no appointment made by will, in exercise of any power, shall be valid, unless the same be executed in manner before required; and every will executed in manner before required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity.

Sect. 11 excepts wills of personal estate made by soldiers in actual service, or mariners or seamen at sea. A full discussion of the question, what amounts to actual service, will be found in Drummond v. Parish, 3 Curt. Ecc. Rep. 522; and White v. Repton, ibid. 818.

Sect. 12 leaves untouched the provisions of 11 Geo. IV. and 1 Will. IV. c. 20, with respect to wills of petty officers and seamen and marines. By sect. 13, every will executed in manner before required shall be valid without any publication thereof; and by sect. 14, 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 shall not, on that account, be invalid. By sect. 15, if any person shall attest the execution of any will, to whom,

(p) In the goods of Allen, 2 Curt. Ecc. Rep. 331; In the goods of Simmonds, 3 Curt. Ecc. Rep. 79.

(9) Moore v. King, 3 Curt. Ecc. Rep. 243.

(r) Harrison v. Elvin, 3 Q. B. 117; 2 G. & D. 769.

(s) Ilott v. Genge, 3 Curt. Ecc. Rep. 160. As to what amounts to acknowledgment of signature; see Gaze v. Gaze, ibid. 451; Keigwin v. Keigwin, ibid. 607. (t) Newton v. Clarke, 2 Curt. Ecc. Rep. 320.