1902 Encyclopedia > Will

Will




WILL, or TESTAMENT, is an instrument by which a per-son regulates the rights of others over his property or family after his death. For the devolution of property not disposed of by will, see INHERITANCE, INTESTACY. In strictness " will" is a general term, whilst " testament" applies only to dispositions of personalty; but this dis-tinction is seldom observed. The conception of freedom of disposition by will, familiar as it is in modern England, is by no means universal. In fact, complete freedom is the exception rather than the rule. Legal systems which are based upon Roman law, such as those of Scotland and France, allow the whole property to be alienated only where the deceased leaves no widow or near relatives. In France this restriction has met with condemnation from eminent legal and economical authorities. M. Troplong, for instance, holds that " un peuple n'est pas libre, s'il n'a pas le droit de tester, et la libertó du testament est la plus grande preuve de la libertó civile." Roman History.—-The will, if not purely Roman in origin, at law. least owes to Roman law its complete development,—a development which in most European countries was greatly aided at a later period by ecclesiastics versed in Roman law. In India, according to the better opinion, it was unknown before the English conquest; in the Mosaic law and in ancient Athens the will, if it existed at all, was of a very rudimentary character. The same is the case with the Leges Barbarorum, where they are unaffected by Roman law. The will is, on the other hand, recog-nized by Rabbinical and Mohammedan law. The early Roman will, as Sir H. Maine shows, differed from the modern will in most important respects. It was at first effectual during the lifetime of the person who made it; it was made in public; and it was irrevocable. Its original object, like that of adoption, was to secure the perpetua-tion of the family. This was done by securing the due vesting of the hereditas in a person who could be relied upon to keep up the family rites. There is much prob-ability in the conjecture that a will was only allowed to be made when the testator had no gentiles discoverable, or when the gentiles had waived their rights. It is certain from the text of Gaius that the earliest forms of will were those made in the comitia calata, and those made in procinctu, or on the eve of battle. The former were pub-lished before the comitia, as representative of the patrician gentes, and were originally a legislative act. These wills were the peculiar privilege of patricians. At a later time grew up a form of plebeian will (testamentum per ms et libram), and the law of succession under testament was further modified by the influence of the praetor, especially in the direction of recognition of fideicommissa (see TRUST). Godicilli, or informal wills, also came into use, and were sufficient for almost every purpose but the appointment of an heir. In the time of Justinian a will founded partly on the jus "civile, partly on the edict of the praetor, partly on imperial constitutions and so called testamentum tripar-titum, was generally in use. The main points essential to its validity were that the testator should possess testa-mentary capacity, and that the will should be signed or acknowledged by the testator in the presence of seven witnesses, or published orally in open court. The wit-nesses must be idonei, or free from legal disability. For instance, women and slaves were not good witnesses. The whole property of the testator could not be alienated. The rights of heirs and descendants were protected by enact-ments which secured to them a legal minimum. The age at which testamentary capacity began was fourteen in the case of males, twelve in the case of females. Up to 439 A.D. a will must have been in Latin ; after that date Greek was allowed. Certain persons, especially soldiers, were privileged from observing the ordinary forms. The liability of the heir to the debts of the testator varied at different periods. At first it was practically unlimited. Then the law was gradually modified in his favour, until in the time of Justinian the heir who duly made an in-ventory of the property of the deceased was liable only to the amount of the property to which he had succeeded. This limitation of liability is generally termed by the civilians beneficium inventarii. Closely connected with the will was the donatio mortis causa, the rules of which have been as a whole adopted in England (see below). An immense space in the Corpus Juris is occupied with testamentary law. The whole of part v. of the Digest (books xxviii.-xxxvi.) deals with the subject, and so do a large number of constitutions in the Code and Novels*

The effect of Christianity upon the will was very marked. For instance, the duty of bequeathing to the church was inculcated as early as Constantine, and heretics and monks were placed under a disability to make a will or take gifts left by will. A will was often deposited in a church. The canon law follows the Roman law with a still greater leaning to the advantage of the church. No church property could be bequeathed. Manifest usurers were added to the list of those under disability. For the validity of a will it was generally necessary that it should be made in the presence of a priest and two witnesses, unless where it was made in pias causas. The witnesses, as in Roman law, must be idonei. Gifts to the church were not subject to the deductions in favour of the heir and the children necessary in ordinary cases. In Eng-land the church succeeded in holding in its own hands for centuries jurisdiction in testamentary matters.

The Roman law of wills has had considerable effect upon English law. In the words of Sir H. Maine, "The Roman English law of testamentary succession to personalty has an<1 become a modified form of the dispensation under which tafcon mheritances °f Roman citizens were administered." trasted. At the same time there are some broad and striking differ-ences which should be borne in mind. The following among others may be noticed. (1) A Roman testator could not, unless a soldier, die partly testate and partly intestate. The will must stand or fall as a whole. This is not the case in England. (2) There is no one in English law to whom the universitas juris of the testator descends as it did to the Roman heres, whose appointment was essential to the validity of a formal will, and who partook of the nature of the English heir, executor, ad-ministrator, devisee, and legatee. (3) The disabilities of testators differed in the two systems. The disability of a slave or a heretic is peculiar to Roman law, of a youth between fourteen and twenty-one to English law. (4) The whole property may be disposed of in England; but it was not so at Rome, where, except by the wills of soldiers, children could not be disinherited unless for specified acts of misconduct. During the greater part of the period of Roman law the heir must also have had his fourth in order to induce him to accept the inheritance. (5) In English law all wills must conform to certain statutory require-ments ; the Romans recognized from the time of Augustus an informal will called codicilli. The English codicil has little in common with this but the name. It is not an informal will, but an addition to a will, read as a part of it, and needing the same formalities of execution. (6) There is a striking difference, unknown to Roman law, between wills of realty and wills of personalty. Probate is necessary for the latter but not for the former. The Roman legatum applied to both movables and immovables; in England a legacy or bequest is a gift of personalty only, a gift of real estate being called a devise. (7) The Roman will spoke from the time of making; the English speaks from the time of death. This difference becomes very important in case of alteration in the position of the testator between the making of the will and his death. As a rule the Roman will could not, the English can, pass after-acquired property.

of chattels. * Secular Laws, c, 68. 1 2 Inst., 7.

Liberty of alienation by will is found at an early period in England. To judge from the words of a law of Canute, intestacy appears to have been the exception at that time. How far the liberty extended is uncertain : it is the opinion of some authorities that complete disposition of land and goods was allowed, of others that limited rights of wife and children were recognized. However this may be, after the Conquest a distinction, the result of feudalism, to use a convenient if inaccurate term, arose between real and personal property. It will be convenient to treat the history of the two kinds of will separately. Real It became the law after the Conquest, according to Sir estate in E. Coke,* that no estate greater than for a term of years England. coui,j ]-,e disposed of by will, unless in Kent, where the custom of GAVELKIND (q.v.) prevailed, and in some manors and boroughs (especially the City of London), where the pre-Conquest law was preserved by special indulgence. The reason why devise of land was not acknowledged by law was, no doubt, partly to discourage death-bed gifts in mortmain, partly because the testator could not give the devisee that SEISIN (q.v.) which was the principal element in a feudal conveyance. By means of the doctrine of uses, however, the devise of land was secured by a circuitous method, generally by conveyance to feoffees to uses in the lifetime of the feoffer to such uses as he should appoint by his will (see TRUST). On the passing of the Statute of Uses lands again became non-devisable, with a saving in the statute for the validity of wills made before the 1st of May 1536. The inconvenience of this state of things soon began to be felt, and was probably aggravated by the large amount of land thrown into the market after the dissolution of the monasteries. As a remedy the Act of 32 Hen. VIII. c. 1 was passed in 1540, and was after-wards explained by 34 and 35 Hen. VIII. c. 5. The effect of these Acts was to make lands held in fee simple de-visable by will in writing, to the extent of two-thirds where the tenure was by knight service, and the whole where it was in socage. Corporations were incapacitated to receive, and married women, infants, idiots, and lunatics to devise. The Act 12 Car. II. c. 24, by abolishing tenure by knight service, made all lands devisable. In the same reign the Statute of Frauds (29 Car. II. c. 3) dealt with the formalities of execution. Up to this time simple notes, even in the handwriting of another person, constituted a sufficient will, if published by the testator as such. The Statute of Frauds required, inter alia, that all devises should be in writing, signed by the testator or by some person for him in his presence and by his direction, and should also be subscribed by three credible witnesses. The strict interpretation by the courts of the credibility of witnesses led to the passing of 26 Geo. II. c. 6, making interested witnesses sufficient for the due execution of the will, but declaring gifts to them void. The will of a man was revoked by marriage and the birth of a child, of a woman by marriage only. A will was also revoked by an alteration in circumstances, and even by a void conveyance inter vivos of land devised by the will made subsequently to the date of the will, which was presumed to be an attempt by the grantor to give legal effect to a change of intention. As in Roman law, a will spoke from the time of the making, so that it could not avail to pass after-acquired property without republication, which was equiva-lent to making a new will. Copyholds were not devisable before 1815, but were usually surrendered to the use of the will of the copyhold tenant; 55 Geo. III. c. 192 made them devisable simply. Devises of lands have gradually been made liable to the claims of creditors by a series of statutes beginning with 3 and 4 W. and M. c. 14.

The history of wills of personalty was considerably Person-different, but to some extent followed parallel lines. In alty-both cases partial preceded complete power of disposition. The general opinion of the best authorities is that by the common law of England a man could only dispose of his whole personal property if he left no wife or children; if he left either wife or children he could only dispose of one-half, and one-third if he left both wife and children. The shares of wife and children were called their pars ration-abilis. This pars rationabilis is expressly recognized in Magna Charta. At what period the right of disposition of the whole personalty superseded the old law is uncertain. That it did so is certain, and the places where the old rule still existed,—the province of York, Wales, and the City of London,—were regarded as exceptions. The right of be-quest in these places was not assimilated to the general law until comparatively recent times by Acts passed between 1693 and 1726. A goodwill of personalty could be made by a male at fourteen, by a female at twelve. The formalities in the case of wills of personalty were not as numerous as in the case of wills of land. Up to 1838 a nuncupative or oral will was sufficient, subject, where the gift was of ¿£30 or more, to the restrictions contained in the Statute of Frauds. The witnesses to a written will need not be " credible," and it was specially enacted by 4 and 5 Anne c. 3 that anyone who could give evidence in a court of law was a good witness to a will of personalty. A will entirely in the testator's handwriting, called a holograph will, was valid without signature. At one time the executor was entitled to the residue in default of a residuary legatee. But 11 Geo. IV. and 1 Will. IV. c. 40 made him in such an event trustee for the next of kin. Jurisdic- Jurisdiction over wills of personalty was till 1858 in the tiou of ecclesiastical courts, probate being granted by the diocesan courts. court l jf fine goods of the deceased lay in the same diocese, in the provincial court of Canterbury or York (the Pre-rogative Court) if the deceased had bona notabilia, that is, goods to the value of ¿65 in two dioceses. The ecclesiastical jurisdiction was of very ancient origin. It was fully established under Henry II., as it is mentioned by Glanvill. In the City of London wills were enrolled in the Court of Hustings from 1258 to 1688 after having been proved before the ordinary. Contested cases before 1858 were tried in the Prerogative Court with an appeal originally to the Court of Delegates, later to the judicial committee of the privy council. There were also a few special local jurisdictions, probably for the most part survivals of the pre-Conquest period, when wills seem to have been pub-lished in the county court. The ecclesiastical courts had no jurisdiction over wills of land, and the common law courts were careful to keep the ecclesiastical courts within their limits by means of PROHIBITION (q.v.). No probate of a will of land was necessary, and title to real estate by will might be made by production of the will as a document of title. This is still the law in ordinary cases ; but the Act of 1857 has introduced probate of will of land as an ex-ceptional proceeding. The liability of the executor and legatee for the debts of the testator has been gradually established by legislation. In general it is limited to the amount of the succession. Personal liability of the exe-cutor beyond this can by the Statute of Frauds only be established by contract in writing. Existing Such were the principal stages in the history of the law as it law. affected wills made before 1838 or proved before 1858. The principal Acts now in force are the Wills Act, 1837 (7 Will. IV. and 1 Vict. c. 26), the Court of Probate Act, 1857 (20 and 21 Vict. c. 77), and the Judicature Acts. Some of the earlier Acts are still law, though of little importance since the more modern and compre-hensive enactments. The earliest on the statute roll is 20 Hen. III. c. 2, enabling a widow to bequeath the crops of her lands. Before the Wills Act uniformity in the law had been urgently recommended by the Real Property Commissioners in 1833. It appears from their report2 that at the time of its appearance there were ten different ways in which a will might be made under different circumstances.

Making The Act of 1837 affected both the making and the interpretation of wills, of wills. Excluding the latter for the present, its main provisions were these. All property, real and personal, and of whatever tenure, may be disposed of by will. If customary freeholds or copyholds be devised, the will must be entered on the court rolls. No will made by any person under the age of twenty-one is valid. Every will is to be in writing, signed at the foot or end thereof by the testator or by some person in his presence and by his direction, anol such signature is to be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who are to subscribe the will in the presence of the testator. Publi-cation is not necessary. A will is not void on account of the incompetency of a witness. Gifts to a witness or the husband or wife of a witness are void. A creditor or executor may attest. A wall is revoked (except where made in exercise of a power of appoint-ment of a certain kind) by a later will, or by destruction with the intention of revoking, but not by presumption arising from an alteration in circumstances. Alterations in a will must be executed and attested as a will. A will speaks from the death of the testator, unless a contrary intention appear. The Act of 1857 transferred the jurisdiction, both voluntary and contentious, of all ecclesiastical,
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royal peculiar, peculiar, and manorial courts to the Court of Probate constituted by the Act, created a judge and registrars of that court, abolished the old exclusive rights in testamentary matters of the advocates of Doctors' Commons, and laid down rules of procedure. Contentious jurisdiction was given to county courts where the per-sonal estate of the deceased was under £200 in value. The Judi-cature Act, 1873, merged the old Court of Probate in the Probate, Divorce, and Admiralty Division of the High Court of Justice. The division now consists of the president and one other judge. The practice of the division is mainly regulated by the Rules of the Supreme Court, 1883. Appeals lie to the Court of Appeal and thence to the House of Lords. Before the Judicature Act they lay directly to the House of Lords. The principal rules now obtaining as to probate are these. Probate is confined as a rule to wills of per-sonalty or of mixed personalty and realty, and is either in common form, where no opposition to the grant is made, or in solemn form, generally after opposition, when the witnesses appear in court. The Act of 1857 introduced proof of wills of realty in solemn form after citation of the heir-at-law and devisees. Probate may be granted either in the principal or in a district registry, and should be obtained within six months after the testator's death. Where no executor is named in a will, the will is not now invalid, as wa3 once the case, but administration cum testamento annexo is granted. The same course is pursued where the executor renounces or dies intestate before administering the estate of the deceased. After
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robate the probate (as the official copy of the will is called) itself ecomes evidence, the original will being deposited in the principal registry at Somerset House, London. On grant of probate a duty, denoted by a stamp on the probate, is payable. It varies accord-ing to the amount at which the personalty is fixed by the oath of the executor. Other Acts dealing with the practice in wills and probate may be shortly stated. 15 and 16 Vict. c. 24 removed some of the difficulties which had arisen on the clause of the Wills Act that the signature was to be at the foot or end. 44 Vict. c. 12 enabled any officer of inland revenue to grant probate where the personal estate does not exceed £300. The main duty of an exe-cutor is to pay the debts of the deceased in a certain order of priority, to administer the estate, to pay probate and legacy duties, and in general to carry out the intention of the testator. There are numerous Acts, especially the Conveyancing Act, 1881, dealing with the rights and liabilities of executors, the general effect of which is to discharge an executor from liability for bona fide pay-ment of debts, for distribution of assets after public notice to persons interested, &c. (see EXECUTORS).

Rules of interpretation or construction depend chiefly on decisions Interpre-of the courts, to a smaller extent on statutory enactment. The tation of law was gradually brought into its present condition through pre- wills, cedents extending back for centuries, especially decisions of the Court of Chancery, the court par excellence of construction, as dis-tinguished from the Court of Probate. The Court of Probate did not deal unless incidentally with the meaning of the will; its juris-diction was confined to seeing that it was duly executed. The present state of the law of interpretation is highly technical. Some phrases have obtained a conventional meaning which the testators who used them probably did not dream of. Many of the judicial doctrines which had gradually become established were altered by the Wills Act. These provisions of the Act have since that time themselves become the subject of judicial decision. Among other provisions are these, most of them to take effect only in the absence of a contrary intention. A residuary devise is to include estates comprised in lapsed and void devises. A general gift of the testator's lands is to include copyholds and leaseholds. A general gift of real or personal estate is to include real or personal estate over which the testator had a general power of appointment. A devise without words of limitation is to pass the fee simple. The words "die without issue " or similar words are to mean die with-out issue living at the time of the death of the person whose issue was named. Trustees under an unlimited devise are to take the fee simple. Devises of estates tail are not to lapse if the devisee, though he predeceased the testator, left issue inheritable under the entail. Gifts to children or other issue leaving issue living at the testator's death are not to lapse. Rules of interpretation founded on principles of equity independent of statute are very numerous, and for them the works devoted to the subject must be consulted. Some of the more important, stated in as general a form as possible, are these. The intention of the testator is to be observed. This rule is called by Sir E. Coke the pole star to guide the judges. There is a presumption against intestacy, against double portions, against constructing merely precatory words to import a trust, &c. One part of the will is to be expounded by another. Interlineations and alterations are presumed to have been made after, not as in deeds before, execution. Words are supposed to be used in their strict and primary sense. Many words and phrases, however, such as "money," "residue," and "issue" and other words of relation-ship, have become invested with a technical meaning. Evidence is admissible in certain cases to explain latent ambiguity, and parol evidence of the terms of a lost will may be given.

A will may be void, in whole or in part, for many reasons, which tion of may be divided into two great classes, those arising from external wills. circumstances and those arising from the will itself. The main examples of the former class are revocation by burning, tearing, &c., by a later will, or by marriage of the testator, incapacity of the testator from insanity, infancy, or legal disability (such as being a convict), undue influence, and fraud, any one of which is ground for the court to refuse or revoke probate of a will good on the face of it, or declare a will of lands void. Undue influence is a ground upon which frequent attempts are made to set aside wills. Its nature is well explained in a judgment of Lord Penzance's: " Pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without con-vincing the judgment, is a species of restraint under which no valid will can be made." The circumstances appearing on the face of the will which make it open to objection may either avoid it altogether or create a partial intestacy, the will remaining good as a whole. Where the will is not duly executed, e.g., if it is a forgery or if it is not signed by the testator or the proper number of witnesses, the will is not admitted to probate at all. Where it contains devises or bequests bad in law, as in general restraint of marriage, or tending to create perpetuities, or contrary to public policy, or to some particular enactment, only the illegal part is void. A remarkable instance is a well-known case in which a con-dition subsequent in a devise was held void as against public policy, being a gift over of the estate devised in case the first devisee, the eldest son of an earl, did not before his death obtain the lapsed title of duke of Bridgewater.3

Wills of exceptional

There are some wills of an exceptional kind which demand special notice. King.—It was resolved in parliament in the 16th Ric. II. that the king, his heirs and successors, might lawfully make their character, testaments.3 In some later cases parliamentary authority has been given to royal wills, in others not. The executors of Henry IV. were confirmed in their office by letters patent of Henry V., those of Henry V. by parliament. The largest testamentary powers ever conferred on an English king were given to Henry VIII. by 25 Hen. VIII. c. 7, empowering him to limit and appoint the succes-sion to the crown by will, in default of children by Jane Seymour or any future wife. By 39 and 40 Geo. III. c. 88 the king and his successor may devise or bequeath their private property.* No court, however, has jurisdiction to grant probate of the will of a king. Guardianship. —As a general rule wills deal with property, but even at common law a will simply appointing a guardian was good. The common law was superseded by 12 Car. II. c. 24, under which a father may dispose of the custody of his unmarried infant children by will. The Guardianship of Infants Act, 1886, extended such powers in certain cases to the mother. Married Woman.-—At common law a married woman could not (with a few exceptions) make a will without her husband's licence and consent, and this disability was specially preserved by the Wills Acts of Henry VIII. and of 1837. A common mode of avoiding this difficulty was for the husband to contract before marriage to permit the wife to make an appointment disposing of personalty to a certain value. Courts of equity from an early time allowed her, under certain restrictions, to make a will of property held for her separate use. In some cases her husband could dispose of her property by will, in others not. The law as it existed previously to 1882 is now practically obsolete, the Married Women's Property Act of that year enabling a married woman to dispose by will of any real or personal property as her separate property as a feme sole without the intervention of any trustee. The Act also enables a married woman who is execu-trix of a will to act as if she were a feme sole. Alien.—Before 1870 an alien enemy resident in England could only dispose of property by will with the king's licence. The Naturalization Act, 1870, enables him to do so as fully as a natural-born British sub-ject. Soldier and Sailor.—Wills of soldiers in actual military service, and of sailors, are subject to special legislation, and are excepted from the operation of the Wills Act. The privilege only applies to wills of personal estate. Wills of soldiers on an expedi-tion may be made by unattested writing or by nuncupative testa-ment before two witnesses. Wills of petty officers and seamen in the navy, and of marines, as far as relates to their pay or prize-money, must be attested by an officer, and wills made by a seaman in the merchant service must, if made at sea, be attested by the master or mate, if made on land by a superintendent of a mercantile marine office, a clergyman, justice of the peace, or consular or customs officer. The wills of prisoners of war are subject to special regulations, and the Admiralty may at its discretion waive the due execution of wills in other instances. The effects of seamen, marines, and soldiers, killed or dying in the service, are exempt from probate duty. Pay, wages, prize money, and pensions due to persons employed in the navy may be paid out without probate where the whole assets do not exceed £32. The Board of Trade may at its discretion dispense with probate of the will of a merchant seaman whose effects do not exceed £50 in value. By an Act passed in 1868 the existing exemptions are extended to the sum of £100 in the case of civil service pay or annuities, of civil or military allowances chargeable to the army votes, and of army prize money. Will made under power. —A will made under a power of appoint-ment is not revoked by marriage when the real or personal estate thereby appointed would not in default of appointment pass to tho testator's executor or administrator or to the next of kin. Before the Wills Act a will exercising s power of appointment had to conform to any special requisitions in the power, but since the Act the power is duly exercised if executed and attested like an ordinary will. Registration.—In the register counties memorials of wills affecting lands in those counties must be registered (see REGISTRATION).

At common law there could be no larceny of a will of lands. Criminal But now by the Larceny Act of 1861 stealing, injuring, or conceal- law re-ing a will, whether of real or personal estate, is punishable with lating to penal servitude for life. Forgery of a will (at one time a capital wills, crime) renders the offender liable to the same penalty. Fraudulent concealment of a will material to the title by a vendor or mortgagor of land or chattels is by 22 and 23 Vict. c. 35 a misdemeanour punishable by fine or imprisonment or both.
Connected with the subject of this article, though not falling Donatio directly under it, is the donatio mortis causa, depending for the mortis most part upon rules adopted from Roman law. Unlike a bequest causa. under a will, such a gift passes without probate and does not need the presence of any statutory number of witnesses. It is, however, liable to legacy duty and is part of the assets of the deceased. For its validity two elements are essential: the gift must be conditional on the donor's dying from his existing illness, and therefore revoc-able, and there must be delivery. Money, jewels, or other chattels may be the subjects of a donatio mortis causa ; so may negotiable instruments passing by delivery, but not cheques signed by the giver, as his authority to draw is revoked by his death. If pre-sented before his death, the gift, being unconditional, is wanting in one of the elements of a good donatio mortis causa.

Ireland-.—The Act of 1837 applies to Ireland. In 1857 an Act Ireland, on lines similar to the English Act was passed for Ireland, 21 and 22 Viet. c. 79. Under the Irish Judicature Act of 1877 the then existing Court of Probate was merged in the High Court of Justice.

Scotland.—Up to 1868 wills of immovables were not allowed in Scotland. Scotland. The usual means of obtaining disposition of heritago after death was a trust disposition and settlement by deed de pree-senti, under which the truster disponed the property to trustees according to the trusts of the settlement, reserving a life interest. Thus something very similar to a testamentary disposition was secured by means resembling those employed in England before the Wills Act of Henry VIII. The main disadvantage of the trust disposition was that it was liable to be overthrown by the heir, who could reduce ex capite lecti all voluntary deeds made to his prejudice wdthin sixty days of the death of his ancestor. In 1868 the Titles to Land Consolidation Act made it competent to any owner of lands to settle the succession to the same in the event of death by testamentary or mortis causa deeds or writings. In 1871 reduction cx capite lecti was abolished by 34 and 35 Vict. c. 81. A will of immovables must be executed with the formalities of a deed and registered to give title (see REGISTRATION). The disability of a woman as a witness was removed by the Titles to Land Con-solidation Act. As to wills of movables, there are several import-ant points in which they differ from corresponding wills in Eng-land, the influence of Roman law being more marked. Males may make a will at fourteen, females at twelve. A nuncupative legacy is good to the amount of £100 Scots (£8, 6s. 8d.), and a holograph, testament is good without witnesses, but it must be signed by the testator, differing in this from the old English holograph. By the Conveyancing Act, 1874, such a will is presumed to have been exe-cuted on the date which it bears. Not all movables can be left, as in England. The movable property of the deceased is subject to jus relicts., or widow's right to half if there be no child or children, one-third if there be a child or children, and the legitim, or bairn's part, of half if there be no widow, one-third if there be a widow. Only the remainder is disponible as dead's part. Legitim depends upon survivance and is not transmissible on predecease of a person prospectively entitled to it. Both jus relicts and legitim may be excluded by discharge or satisfaction, as by provision in tho contract of marriage. Executor in Scotch law is a more extensive term than in English. He is either nominate or dative, the latter appointed by the court and corresponding in most respects to the English administrator. Caution is required from the latter, but not from the former. Confirmation includes both the probate and letters of administration of English procedure. Without confirma-tion by the court interference by the executor becomes a vitious intromission. Originally confirmation of testaments of movables fell, as in England, under the cognizance of the church courts. Such jurisdiction certainly existed at the time of regiam majestatem. This ecclesiastical right continued through the Commissary Court at Edinburgh (constituted by Queen Mary in 1563) and the local commissaries until modern times, when the jurisdiction of these courts was at first transferred and then abolished by a series of en-actments from 4 Geo. IV. c. 97 to the Sheriff Courts Act, 1876. The Act of George IV. placed the commissary jurisdiction in the sheriff courts ; by the Act of 1876 the sheriffs sit as sheriffs in testamentary matters, no longer as commissaries. Confirmation of wills where the whole estate is under ¿£300 is regulated by 44 Vict, c. 12 and other Acts. An eik is an addition to a confirmation made on discovery of additional effects of the deceased after confirmation. By the common law doctrine of passive representation the heir or executor was liable to be sued for implement of the de-ceased's obligations. The Roman principle of beneficium inventarii was first introduced by an Act of 1695. As the law at present stands, the heir or executor is liable only to the value of the suc-cession, except where there has been vitious intromission in mov-ables, and in gestio pro herede and some other cases in heritables. The present inventory duty on succession to movables depends upon 44 Vict. c. 12. In England the executor is bound to pay the debts of the deceased in a certain order; in Scotland they all rank pari passu, except privileged debts. (See PRIVILEGE.)

The will of a summons is the conclusion of a writ containing the will of the sovereign or judge, charging the executive officer to cite the party whose attendance is required. It is regulated by several Acts, e.g., 1 and 2 Vict. c. 114, 31 and 32 Vict. c. 100. (See SUM-MONS, WARRANT, WRIT.) United United States.—By the constitutions of many States laws giving States, effect to informal or invalid wills are forbidden. The age of testa-mentary capacity varies very much. Eighteen is a common one. Full liberty of disposition is not universal. Homesteads generally, and dower estates frequently, are not devisable. In some States only a disposable portion of the property can be left, so that child-ren cannot be disinherited without good cause, and in some children omitted in a will may still take their share. It is fre-quently provided that a certain amount must be left to the widow. Louisiana follows French law, by which the testator can under no circumstances alienate by will more than half his property if he leave issue or ascendants. In some States a married woman may not leave more than half her property away from her husband. Some require the husband's consent and subscription to make the will of a married woman valid. Nuncupative and holograph wills are in use. The former are confined to personalty and must gener-ally be reduced to writing within a short time after the words are spoken. In Louisiana there is a special form of will, borrowed from Roman law, called the mystic or sealed will, in which the testator declares a sealed packet to be his will before witnesses. The number of witnesses necessary for the validity of a will of any kind is usually two, sometimes three. Wills of soldiers and sailors are privileged, as in England. Probate is granted sometimes by the ordinary chancery or common law courts, more frequently by courts of special jurisdiction, such as the Prerogative Court in New Jersey, the Surrogate's Court in New York. Inter- International Law.—There are three main directions which the natioual opinion of jurists and the practice of courts have taken. (1) The law. whole property of the testator may be subjected to the law of his domicil. To this effect is the opinion of Savigny and the German practice. (2) The property may be subjected to the law of the place where it happens to be at the time of the testator's death. (3) The movable property may be subjected to the law of the domicil, the immovable to the law of the place where it is situate, the lex loci rei sitse. England and the United States follow this rule. Testamentary capacity is generally governed by the law of the testator's domicil, the form of the instrument in most countries either by the law of his domicil or the law of the place where the will was made, at his option. The old rule of English law was to allow the former alternative only. The law was altered for the United Kingdom in 1861 by Lord Kingsdown's Act (24 and 25 Vict, c, 114), by which a will made out of the United Kingdom by a British subject is, as far as regards personal estate, good if made according to the forms required by the law of the place where it was made, or by the law of the testator's domicil at the time of making it, or by the law of the place of his domicil of origin. Sub-sequent change of domicil does not avoid such a will. Another Act passed on the same day (24 and 25 Vict. c. 121) enacted that by convention with any foreign Government foreign domicil could not be acquired by a testator without a year's residence and a written declaration of intention to become domiciled. In the United States some States have adopted the narrow policy of enact-ing by statute the old common law rule, and providing that no will is valid unless made in the form required by the law of the State of the testator's domicil. The construction of a will is governed by the law of the domicil of the testator, as he must be supposed to have used language in consonance with that law, unless indeed he express himself in technical language of another country. The persons who are to take under a will are decided by different rules according as the property is movable or immovable, the former being governed by the law of the domicil, the latter by the lex loci rei sitae. It was held recently by the Court of Appeal in England that, under the will of an Englishman domiciled in Holland, leaving personal property to children, children legitimated per subsequens matrimonium could take, as they were legitimate by the law of Holland, though not by the law of England.3 Such children could not, however, have succeeded simply under that designation to real property in England devised by the will. A will duly executed abroad is generally required to be clothed with the authority of a court of the country where any property affected by the will is situate. As far as regards the different kingdoms composing the United Kingdom, 21 and 22 Vict. c. 56 enables an English or Irish probate, or a Scotch confirmation, to be sealed as of course in the proper court of one of the other kingdoms. (J. W+.)


Footnotes

4 For further information as to the history of the Roman will, see
6 Most of the law ¡3 contained in Decretals, in. 26, " Do Testamentis."

1 The testamentary jurisdiction of the archdeacon's court is alluded to by Chaucer in the " Friar's Tale," but it was afterwards completely superseded by the bishop's court.
2 Fourth Report, p. 12.


1 Hall v. Hall, Law Sep., 1 Probate, 481. ~ ~ '
2 Egerton v. Earl Brownlow, 4 Rouse of Lords Cases, 210.
3 4 Inst., 335.
4 See the Collection of Royal Wills printed for the Society of Antiquaries by J. Nichols 0^80).







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