event or period, this should be explicitly stated; as a contrary construction is generally the result of an absence of expression. Explicitness, generally, on the subject of vesting, cannot be too strongly urged on the attention of the framers of wills. commendation, &c. 7. Where a testator proposes to recommend any person to the Words of refavourable regard of another, whom he has made the object of his bounty, it should be ascertained whether he intends to impose a legal obligation on the devisee or legatee in favour of such person, or to express a wish without conferring a right. In the former case, a clear and definite trust should be created; and in the latter, words negativing such a construction of the testator's expressions should be used. Equivocal language in these cases has given rise to much litigation. Lastly. It may be suggested, that where a testator is married, and has no children, unless provision be made in his will for children coming in esse, or it be unreasonable to contemplate his having issue, the dispositions of his will should be made expressly contingent on his leaving no issue surviving him; for, as the birth of children alone is not a revocation, they may be excluded under a will made when their existence was not contemplated; and cases of great hardship of this kind have sometimes arisen from the neglect of testators to make a new disposition of their property at the birth of children; indeed, it has sometimes happened, that a testator has left a child en ventre, without being conscious of the fact; for the same reason provisions for the children of a married testator, who has children, should never be confined to children in esse at the making of the will. A gift to the testator's children generally will include all possible objects. Where, however, the gift is to the children of another person, and it is intended (as it generally is,) to include all the children thereafter to be born, terms to this effect should be used, unless a prior lifeinterest is given to the parent of such children; in which case, as none can be born after the gift to them vests in possession, which is the period according to the established rule of ascertaining the objects, none can be excluded. Making will conditional on leaving no issue. testator's sons through whom instruc To the preceding suggestions, it may not be useless to add, As to the perthat it is in general desirable, that professional gentlemen taking instructions for wills, should receive their instructions immedi- tions are ately from the testator himself, rather than from third persons, particularly where such persons are interested. In a case in the received. Prerogative Court (a), Sir J. Nicholl "admonished professional gentlemen generally, that where instructions for a will are given by a party not being the proposed testator, a fortiori, where by an interested party, it is their bounden duty to satisfy themselves thoroughly, either in person or by the instrumentality of some confidential agent, as to the proposed testator's volition and capacity, or in other words, that the instrument expresses the real testamentary intentions of a capable testator, prior to its being executed de facto as a will at all." (a) Rogers v. Pittis, 1 Add. 46. THE NEW STATUTE OF WILLS. 7 WILL. IV. & 1 VICT. Cap. 26. An Act for the Amendment of the Laws with respect to Wills. EXPLANATION OF TERMS. Meaning of certhis act; tain words in BE it enacted by the Queen's most Excellent Majesty, by and will and testament or devise of the custody and tuition of any (I). child, by virtue of an act passed in the twelfth year of the 12 Car. 2, c. 24. reign of King Charles the Second, intituled, An Act for taking away the court of wards and liveries, and tenures in capite and by knights service, and purveyance, and for settling a revenue upon his Majesty in lieu thereof, or by virtue of an Act passed in the parliament of Ireland in the fourteenth and fifteenth years 14 & 15 Car. 2, of the reign of King Charles the Second, intituled, An Act for taking away the court of wards and liveries, and tenures in capite and by knights service, and to any other testamentary disposition; and the words "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 "Real estate." personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein; and the words "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 whatsoever, 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 and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. Repeal of the statutes of wills, 32 H. 8, c. 1, and 34 & 35 H. 8, c. 5. 10 Car. 1, sess. 2, c. 2, (I). Sects. 5, 6, 12, 19, 20, 21 & 22, of the Statute of Frauds, 29 Car. 2, c. 3; 7 W. 3, c. 12, (I). REPEAL CLAUSE. II. And be it further enacted, That an act passed in the thirty-second year of the reign of King Henry the Eighth, intituled, The Act of wills, wards, and primer seisins, whereby a man may devise two parts of his land; and also an act passed in the thirty-fourth and thirty-fifth years of the reign of the said King Henry the Eighth, intituled, The Bill concerning the explanation of wills; and also an act passed in the parliament of Ireland, in the tenth year of the reign of King Charles the First, intituled, An Act how lands, tenements, etc. may be disposed by will or otherwise, and concerning wards and primer seisins; and also so much of an act passed in the twenty-ninth year of the reign of King Charles the Second, intituled, An Act for prevention of frauds and perjuries, and of an act passed in the parliament of Ireland in the seventh year of the reign of King William the Third, intituled, An Act for prevention of frauds and perjuries, as relates to devises or bequests of lands or tenements, or to the revocation or alteration of any devise in writing of any lands, tenements, or hereditaments, or any clause thereof, or to the devise of any estate, pur autre vie, or to any such estate being assets, or to nuncupative wills, or to the repeal, altering, or changing of any will in writing concerning any goods or chattels or personal estate, or any.clause, devise, or bequest therein; and also so much of an act passed in the fourth and fifth years of the reign of Queen Anne, intituled, An Act for the amendment of the law and the better advancement of justice, 6 Anne, c. 10, and of an act passed in the parliament of Ireland in the sixth (I.) year of the reign of Queen Anne, intituled, An Act for the Sect. 14 of 4 & 5 Anne, c. 16. amendment of the law, and the better advancement of justice, as relates to witnesses to nuncupative wills; and also so much Sect. 9 of 14 of an act passed in the fourteenth year of the reign of King G. 2, c. 20. George the Second, intituled, An Act to amend the law concerning common recoveries, and to explain and amend an Act made in the twenty-ninth year of the reign of King Charles the Second, intituled, An Act for prevention of frauds and perjuries,' as relates to estates pur autre vie; and also an act 25 G. 2, c. 6, (except as to passed in the twenty-fifth year of the reign of King George colonies). the Second, intituled, An Act for avoiding and putting an end to certain doubts and questions relating to the attestation of wills and codicils concerning real estates in that part of Great Britain called England, and in his Majesty's colonies and plantations in America, except so far as relates to his Majesty's colonies and plantations in America; and also an act passed in the parliament of Ireland in the same twenty-fifth year of the reign of King George the Second, intituled, An Act for the avoiding and putting an end to certain doubts and questions relating to the attestation of wills and codicils concerning real estates; and 55 G. 3, c. 192. also an act passed in the fifty-fifth year of the reign of King George the Third, intituled, An Act to remove certain difficulties in the disposition of copyhold estates by will, shall be and the same are hereby repealed, except so far as the same acts or any of them respectively relate to any wills or estates pur autre vie to which this act does not extend. GENERAL ENABLING CLAUSE. III. And be it further enacted, That it shall be lawful for every person to 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, bequeathed, or disposed of, would devolve upon the heir-at-law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and that 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 notwith 25 G. 2, c. 11, (I.) All property may be dispos ed of by will; comprising customary free holds and copyholds without surrender and before admittance, and also such of them as cannot now be devised. |