IV. DIRECTIONS FOR MAKING A WRITTEN WILL.

It is not necessary a will should be written on stamped paper; no stamp-duty attaches till after the death of the testator, and the will is proved in the proper court in the district within which the testator died. Whether a will be on paper or parchment, or any other material, is of no consequence; nor what hand it be written in; nor whether some words be omitted, or the name be written at large, or only by notes or characters; the most essential points are that the will be legible, and so far intelligible that the intention of the testator can be collected from it.

The chief points to be observed in making a will are the following :

1. A will of any kind of property must be in writing.

2. If the testator does not sign, it must be signed by some other person in his presence, and by his direction.

3. The signature must be made, or acknowledged, by the testator, in the presence of two or more witnesses present at the same time.

4. The witnesses must attest and subscribe the will or codicil in the presence of the testator, and attest that the will was signed, or his signature acknowledged, by the testator in their presence.

Lastly, in respect of the signature of the testator, an act of 1952 has introduced some amendments. The Wills Act provides that " 'no will shall be valid unless it be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction." But on this proviso the 15 V. c. 24 enacts in substance that every will, so far as regards the position of the signature only of the testator, or of the person signing for him shall be valid, if the signatures be so placed at or after, or following or under, or beside or opposite to, the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will.

In the case of two devises of the same estate to different persons in the same will, the latter shall not defeat the former: but both devisees shall take the moieties, and have the estate either in common or joint tenancy, as the words in the will seem to point

out.

Wills under the influence of importunity or coercion are void, although the restraint was merely imaginary, the will being contrary to the wishes of the testator.

Any fraud or imposition vacates a will, and the courts of equity and ecclesiastical courts have a concurrent power to investigate the facts. In general, the intention of the testator is so entirely regarded in the construction of wills, that any kind of disposition, not expressly contrary to the rules of law, constitutes a valid will.

When two wills are made, and neither of them dated, the maker is declared to have died intestate, it being impossible to ascertain which is the last will.

As to the time and manner of the attestation, it is necessary the witnesses subscribe the will in the presence of the testator; and their business is not only to witness the manual act of signing, but also to bear testimony to the sanity of the testator.

In a devise of real estates, the witnesses retired and attested the will in an adjoining room, a wall only of which was visible from the bed in which the testator lay, so weak as to be incapable of moving without assistance. It did not appear in what part of the room the witnesses signed the will, but it was held duly attested, the jury finding it attested in such a place that the testator had the means of seeing what was done. Todd v. Earl of Winchelsea,

Moo. & Malk. 12.

The publishing of a will, that is the testator declaring that such is his will, is not now requisite, signing and attesting being sufficient.

V. REVOCATION OF A WILL.

With whatever form and solemnity a will may be made, the testator is at full liberty afterwards to revoke or annul it. But no will can be revoked by any words, or by word of mouth only; it can only be done by the testator's purposely burning or destroying the original will, or by some subsequent will or codicil, in writing, duly attested, by which the former will is repealed.

When a man, having made a will, afterwards makes another, contrary to it, without expressly revoking the former, this is a revocation in law; the fact of making a new will implying that the testator had mentally revoked the old one. But such an implied revocation will not hold unless the dispositions of the second will be clearly incompatible with the first, and the second will be effective at the death of the testator.

The alteration of a will is only a revocation to the extent of the alteration; and the alteration must be made with the same forms as the will; that is, must be witnessed and signed.

Marriage revokes a will previously made.

A codicil is a revocation of a will, if contrary to it; but so far only as it is repugnant to the particular disposition of the will, leaving it in all other respects undisturbed.

A will may also be revoked on the ground of mistake in the intention of the testator; but when a testator revokes a legacy, under an obvious misapprehension of the facts, as, for instance, that the legatee is dead, who, in truth, is alive, the revocation fails.

VI. CODICILS.

A codicil is a supplement or addition made to a will by the testator, adding to, explaining, or altering some part of his former

disposition. It may be written on the same paper, or affixed to or folded up with the will; or it may be written on a different paper, and deposited in a different place.

In general, the law relating to a codicil is the same as that relating to wills, and the like guarantees of signature and attestation are required.

Though a man can properly make only one will, he may make as many codicils as he pleases, and the last is equally valid with the first, if not contradictory.

If, by two codicils, the same thing is given to two individuals, the law enjoins that they must divide it between them.

VII. PRACTICAL REMARKS ON WILLS.

There is danger in trusting to printed forms of wills, or the employment of a schoolmaster or vestry clerk. To save a few guineas in their lifetime, some testators will leave behind them a will which may cost hundreds to have expounded by the courts, before conflicting claimants will desist from litigation.

In making a will a person should be careful to give such a description of himself as may avoid any confusion or uncertainty. This description is called in law his addition, and means the designation of his christian and surname, his place of abode, trade, and occupation. Care should also be taken in describing the legatees, lest the objects of the testator's bounty fail in their legal claims.

Where a man has a large family to provide for, it is often advisable to direct all his property to be turned into money, out of which he may order his debts and legacies to be first paid, and the residue to be laid out at interest, in the names of trustees, for the benefit of his family.-Lord St. Leonards' Handy Book on Property Law.

In making a provision for natural children, pains should be taken to describe them correctly, so that they may not be excluded by the beir-at-law.

When a person is desirous of leaving a legacy to a married woman, if he does not appoint trustees over it, and give specific directions that it shall be for her sole and separate use, free from the control, debts, and incumbrances of her husband, the husband, by virtue of the marital tie, will be entitled to the legacy. Without the like precaution, a legacy to a single woman will, by the operation of law, vest in the husband in the event of her marriage; but a bequest to a married woman, "solely and entirely for her own use and benefit during her life," has been held to be "a bequest for her life for a separate use," 2 Collyer, 247.

The operation of the stamp duties is of importance to persons possessed of little property, and a considerable saving is made by persons making a will in preference to dying intestate, and leaving their effects to be administered to by the next of kin. In the latter case, the stamp duty is half as much more as in the former.

In legacies to servants, if the testator intend the duty should be paid by the executors, out of the residue, such intention should be clearly expressed; otherwise, by the abstraction of the duty, they may receive much less than the donor intended.

If there be two legacies to the same person, and if, together, they amount to £20 in value, the duty is rated jointly on both.

It is recommended to the testator, that, besides the original will, he should write and execute two or more copies; they will guard against accidents, be useful to executors and friends, and save expense; for, after a will is proved, a copy cannot be obtained without considerable trouble and cost.

Lastly, if your will is written on several sheets of paper, take care they are all fastened together, and that the pages are numbered. Sign your name at the bottom of each sheet, and state at the end of your will of how many pages your will consists. If there are any erasures or interlineations, put your initials in the margin opposite to them, merely to identify them, and notice them in the attestation. The attestation of the will may be in this form : "Signed by the above-named testator, in the presence of us present at the same time, who have hereunto signed our names as witnesses thereto, in the presence of said testator, and in the presence of each other" (Lord St. Leonards' Handy Book); concluding with references to the pages, if any, of the erasures or interlineations.

VIII. WILLS OF PERSONALTY MADE ABROAD.

By 24 & 25 V. c. 114, the will of a British subject, whatever at the time may be the domicile of the testator, is, as regards personal estate, valid if executed either according to the law of the place where made, or where the testator was domiciled when made, or if made agreeably to the law in force in that part of her Majesty's dominions where he had his domicile of origin. Will made in the United Kingdom, whatever the domicile of testator, when made is valid and admissible in probate, s. 2. Subsequent change of domicile not to invalidate a will duly executed. Nothing in the act to invalidate will of personalty previously executed.

The law in the same session of 1861 is further amended in relation to the wills and domicile of British subjects dying while resident abroad, and of foreigners dying while resident in her Majesty's dominions. By s. 1, when a convention has been made with a foreign State that shall be applicable to the subjects of each, her Majesty, by order in council, may direct that no British subject dying in a foreign country shall be deemed to have acquired a domicile unless resident there for one year immediately preceding his death, and shall also have lodged in some public office a declaration in writing of the intention to become domiciled in some foreign country; and for all purposes of testate or intestate succession as

The

to movables, the domicile previously possessed shall remain. like restrictions are made, under like circumstances, as to any foreigner dying within the United Kingdom; and s. 3 exempts from the operation of the act foreigners who may have obtained letters of naturalization in the United Kingdom. After a convention made, a foreigner dying within the United Kingdom, leaving no person present rightfully entitled to administer to the estate, the consul, vice-consul, or consular agent of the place where such foreigner may die, is empowered to take possession of the property of the deceased, to apply the same in payment of debts and funeral expenses, and to hold the remainder for the benefit of the persons entitled thereto, and may obtain letters of administration from the proper court, limited in such manner as the court deem fit.

CHAPTER V.
Intestacy.

A PERSON dying without a will, or without a will executed according to the legal forms described in the last chapter, is said to die INTESTATE in this case, it is important to inquire in what manner the law disposes of the property of an intestate, conformably to the rule of heirship or hereditary descent; and, first, of the real estate.

The eldest son inherits, as heir-at-law, the real property of an intestate. If the eldest son is dead, his eldest son, or issue, succeeds to the land. If the eldest son is dead, without issue, then the lands descend to the second, third, and all other sons of the intestate respectively, in order of birth, and to their issue, in like order.

If a man has no sons, nor any issue of them living at his death, his daughter is to inherit; or if he has more than one daughter, they all inherit equally, and become joint partners in the land. If the daughters are dead, leaving issue, such issue inherit the land, the eldest son of each taking his mother's share; or if no son, then daughters equally.

If a man die without either sons or daughters, the land descends to his eldest brother of the whole blood, or his issue; or, in case of the death of the eldest brother, without issue, then to his second, third, or other whole brothers respectively, in order of birth or their issue. If the intestate has no brothers, then to his sisters of the whole blood equally. If he has neither sons nor daughters, brothers nor sisters, the land goes to the eldest uncle by the father's side, and his issue; or for want of such, to his other uncles, by the father's side. In defect of all these, to his aunts on the father's side, equally among them all, in like manner as to his daughters and sisters.