XXI. And be it further enacted, that no obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.

XXII. And be it further enacted, that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown.

XXIII. And be it further enacted, that no conveyance or other Act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an Act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death.

XXIV. And be it further enacted, that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.

XXXIV. And be it further enacted, that this Act shall not extend to any will made before the first day of January one thousand eight hun-1938 dred and thirty-eight, and that every will re-executed or republished, or revived by any codicil, shall for the purposes of this Act be deemed to have been made at the time at which the same shall be so re-execu ted, republished, or revived; and that this Act shall not extend to any estate pur autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight.

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NOTE. For the American Statutes on the Making, &c., of Wills, see Stimson, Am. Stats.

Stennell

Abbott

133.

as. Hickman gave to his wife Carterine It. £ 300 Bank block, I he probated the will oftie hersbonds deact and later married Ex Lovell, but the marriage was void already mould. Kate H. however fu will, descrbing

capacity; but the decision of this Lovell alred never knew it d

as was

Also

place

finally

ее

d

herself as wife of Ed fovell. still gave the £ 200 es her bro. Abbott in exist for her nicce Stennell gave sonce prop to Ed. Loved, which is claimed by lesson of his lawful wife d This beil is filed by ligalers of tale.

JAMES HICEMAN by his will, that the lett

St praying will be established exeeft as far as relates ло Soveel.

personal estate; paid his debts, &e

as

Held that Lovell's heir eakes nothing. Lovell to Kale It was a representation

The re

remony with Catherine Hickman, dated the a For THL 1763, she greed to trinsfer he say took pon the trust there mention, 4 with power to her to dispose of it after the decease of the survivor of

ene John Stace that made a well giving all his prop to his wife. The cwife set in the will, te bad to the use but deft, a bus of d a bro deceased claimed that the husband made the will because of cheats ute of Frauds, describing herself the wife of Edward Lovell feace, her marringe

Heed for pressure not. замене я Pressene is an improper influence vill Oid testament: giving the said 800 stor aft Pursuasion is legitumele, but

Jestator must act of his own volition. divided her two daughtershare and share alike

NOTE.

B. Fraud and Undue Influence.

A large part of the litigation on wills arises upon the question of mental capacity; but the decision of this question turns mostly on matters of fact, or on the law of evidence, which has properly no place here.

JAMES HICKMAN by his will, dated the 18th of April, 1782, gave to his wife Catherine £300 4 per cent Consolidated Bank Annuities; and appointed her sole executrix. Upon his death she possessed herself of his personal estate; paid his debts, &c.; and exhibited the probate to the bank; but not applying to be at liberty to transfer the stock into her own name, it continued to stand in the name of the testator.

In 1783 a marriage ceremony was performed between Catherine Hickman and Edward Lovell: but that marriage was void; Lovell having been married in 1775; and his wife being living. He cohabited with his wife till 1781. By articles executed previously to the marriage ceremony with Catherine Hickman, dated the 3d of January, 1783, she agreed to transfer the said stock upon the trusts therein mentioned, with power to her to dispose of it after the decease of the survivor of herself and Lovell. She never discovered the invalidity of her marriage; and being seised to her and her heirs of a copyhold estate, which she had surrendered to the use of her will, and being possessed of a leasehold estate for a long term of years determinable upon lives, and of personal estate, she made her will, duly attested according to the Statute of Frauds, describing herself the wife of Edward Lovell ; and by virtue of the power and authority given her before her marriage with her present husband Edward Lovell, she publishes and declares her last will and testament; giving the said £300 stock to her brother Thomas Abbott, in trust to pay the interest to her niece Betty Kennell for life; and after her decease the principal to be equally divided between her two daughters share and share alike. She gave some leaschold premises to her nephew Martin Togood, his executors and administrators. She gave a copyhold estate, which she had surrendered to the use of her will, to her brother Thomas Abbott and his heirs, in trust to sell, and out of the moneys arising therefrom to pay the following legacies: "to my husband the said Edward Lovell the sum of £150;" to her brother Thomas Abbott £20; to her nephew James Fabian, her niece Elizabeth Cox, and her nephew George Togood,

£10 each; and she directed these legacies to be paid within twelve months after her decease. She gave another leasehold estate to her great niece Catherine Kennell, her executors, &c., and she gave all her household goods, plate, furniture, and stock in husbandry, to her brother Thomas Abbott, his executors and administrators, in trust to sell, and out of the produce, to put in the life of her said great niece into the said leasehold premises, if she (the testatrix) should not do it in her life. She gave her wearing apparel and linen to her niece Betty Kennell; and as to the residue of the purchase-money arising from the sale of her said copyhold estate, household goods, and furniture, and all the rest, residue, and remainder, of her moneys, securities for money, personal estate and effects, whatsoever and wheresoever, that she should die possessed of, interested in, or entitled to, or whereby she had power to dispose by will, she gave to her said niece Betty Kennell, her executors and administrators, subject to her debts and funeral expenses; and she appointed Thomas Abbott guardian of the children of Betty Kennell, and appointed Betty Kennell executrix.

The testatrix died; leaving Edward Lovell surviving her, and John Abbott, her eldest brother, her heir-at-law. Betty Kennell proved her will: but the probate was limited to the £300 stock, and £100 stock supposed to be standing in the name of, and purchased by, the trustees, under the articles of the 3d of January, 1783. Edward Lovell died; leaving an infant son by his lawful wife Ann Lovell; with whom he lived till 1781. She died in 1788.

The bill was filed by legatees under the will of Catherine Hickman ; praying, that the trusts of her will may be established, except so far as relates to the bequest to Edward Lovell and the lapsed legacy to James Fabian, who died in the life of the testatrix, and to the guardianship of the infant plaintiffs; and that the pretended marriage articles may be declared void.

The question arose upon the legacy of £150 given to Edward Lovell : which was claimed on the part of his infant son. Supposing that legacy void, it was claimed by the residuary legatee by the heir, and also by the next of kin.

Mr. Woodeson, for the plaintiffs.

Mr. Cox, for the defendant Lovell.

MASTER OF THE ROLLS. [SIR RICHARD PEPPER ARDEN.] This case has stood a long time; and I believe, the reason I have not been desired to give my judgment, is, that it has abated; and perhaps it may be unnecessary to give it. But as upon very full consideration I have made up my mind, it may be of use, that the parties may know my opinion, in case they think fit to revive it.

The cause arises upon the will of Catherine Hickman; who supposed herself to be married to Edward Lovell; with whom she had celebrated a marriage. It now appears that he was a married man at that time; therefore she is in fact a single woman; and it was a gross fraud as to her. She made her will in execution of the power given to her by the