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 (c). In conformity with the preceding rule, it has been held, 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 grantor by the same instrument, yet the conveyance will operate as a revocation of a prior will (d). 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 (e). In like manner, if a man devises land in fee to A., and afterwards makes a mortgage thereof in fee, either to the devisee (ƒ) or a stranger (g), 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 payment of debts (h). for Secondly. As to Wills made on and after 1st January, 1838. 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 (i). 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 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 (k). The particular provisions, the more important of which will be found in the ensuing pages, 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; it would be beyond the scope of this work, however, to enter upon any discussion of the numerous decisions upon this statute, which are to be found in the reports. 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 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.); sect. 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 (k) See Lord Langdale's speech, February 23, 1837. 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 (l); 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 copyhold, 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 the 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. (1) This does not enable a testator to bequeath a promissory note, so as to pass the right to sue upon it. Bishop v. Curtis, 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 (m) the will in the presence of the testator (n), but no form of attestation shall be necessary. Upon the construction of this section, there have been a very great variety of decisions in the ecclesiastical courts, which gave rise to so much doubt and caused such grievous hardship, as to have induced the legislature to pass the statute 15 Vict. c. 24, which provides (o), that where by an act passed in the first year of the reign of her Majesty Queen Victoria, intituled, "An Act for the Amendment of Laws with respect to Wills," it is enacted, that no will shall be valid unless 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: 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 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, 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 or of the clause of attestation, or shall follow, or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow, or be after, or under, or beside the names, or one of the names, of the subscribing witnesses, 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 will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space 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 contain the signature; and the enumeration of the (m) See Roberts v. Phillips, 4 E. & B. 450, cited ante, p. 885. (n) See ante, p. 886. above circumstances shall not restrict the generality of the above enactment; but no signature under the said act, or this act, shall be operative to give effect to any disposition or direction which is underneath, or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made. By sect. 2, the provisions of that 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 consequence 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." By 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. & 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, or to whose wife or husband, any beneficial devise, legacy, estate, gift, or appointment, of or affecting any real or personal estate, (except charges and directions for the payment of any debt,) shall be thereby given or made, such devise, &c. shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under them, be utterly void: and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity |