increased by a codicil attested by the legatee, he would be deprived only of the increased benefit intended for him by such codicil. If, however, the codicil revoked the legacy given by the will, and substituted another in its stead, the legatee would lose all benefit under both the will and codicil; for though he could not take that given him by the codicil which he attested, such codicil would, notwithstanding, be a valid revocation of the previous gift. If the effect of a codicil should be to increase the amount of the residue, by revoking or diminishing any legacies given by the will, a legatee of such residue would, it would appear, by attesting such codicil, be precluded from claiming any benefit which might otherwise accrue to him under its provisions. Indeed, in so many ways might the rights of a legatee, under a will, be affected by the provisions of a codicil, that it may be laid down, as a universal rule, that no one at all interested under a will or codicil should attest any subsequent testamentary document.

The power of disposing of real estates by will has never yet been intrusted by the law of this country to infants; but formerly females of twelve, and males of fourteen years of age, could make valid wills of their personal property. That power has been taken away by the recent wills act; and real and personal estate are put on the same footing by the 7th section of the act, which has declared that no will made by any person under the age of twentyone shall be valid.

The above mentioned act has, on the other hand, assimilated the law applicable to dispositions by will of real estate to that of personalty, in a very important point, by dispensing with the necessity of those words of limitation in the devise of estates of inheritance, which would be essential in a deed, and by declaring that a simple devise, without any words of limitation, shall be construed to pass the fee-simple, or other the whole estate or interest which the

testator had power to dispose of by will, unless a contrary intention shall appear by such will.

This enactment, though most beneficial as having a tendency to prevent many questions which formerly arose on the construction of wills, is not intended to supersede the use of that language which is appropriate to limitations by deed; and a good draftsman will make it as much his care as ever to remove all doubt as to the intention of a testator, by the use of that language which he would use in set▪ tling property by deed.

A testamentary appointment, executed since 1837, will be invalid if not executed according to the directions of the act of 1st Victoria; and it is quite immaterial whether the requisitions which the power may contain in that respect are complied with or not, the validity of appointments by will being now perfectly independent of such requisitions.

A will formerly operated only on such real estate as the testator had at the time of its execution; but as the 24th section of the 1st Victoria has enacted, that every will shall take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will, real estates purchased after the date of the will would now belong to the residuary devisee, and not to the heir-at-law, if the language of the devise were sufficiently extensive to comprise them.

The operation of a will is also considerably extended by the 26th and 27th sections of the act under which copyhold and leasehold estates, and any real estate over which the testator has only a general power of appointment, will now pass under a general devise, or a devise of land under a description sufficiently comprehensive to include it.

An alteration in a will, whether by addition or obliteration, will be inoperative, except so far as the words or effect of the will shall not be apparent, unless executed as the will itself; and this may be done either near to the alteration, or at the foot or end

of, or opposite to, a memorandum written on some part of the will-referring to such alteration.

A will, when once revoked, can now only be revived by re-execution, or a codicil showing an intention to revive it; but a revival of a will operates only as a reversal of the act of revocation, and therefore only restores it to the state in which it was at the time of the revocation, unless an intention to the contrary shall be shown; and, consequently, if a legacy originally given by a revoked will had been previously revoked by a distinct act, a revival of the will would not of itself revive such legacy.'

Marriage, either of a man or woman, is, ipso facto, a revocation of any will previously made, unless it should be an appointment of real or personal estate, which would not, in default of such appointment by the testator, pass to his representatives; but no will or codicil shall be otherwise revoked, except by another will or codicil, or some writing executed as a will, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence, and by his direction, with the intention of revoking the same."

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A legacy even of a debt to the debtor lapses by the death of the legatee in the testator's lifetime, even though the legacy should be given to the legatee, his executors, administrators, and assigns; and such rule equally applies to a devise of real estate, though words of limitation are added. But if a testator desires to benefit the legatee, even though he should die in his own lifetime, he may carry out his intention by expressly substituting his issue, representatives, &c., and directing, that, in the event of the principal legatee dying in his lifetime, such

▾ Elliot v. Davenport, 1 P. Wms. 83; Shuttleworth v. Greaves, 4 M. and Cr. 35.

Goodright v. Wright, 1 P. Wms. 397.

substituted legatee or devisee shall be entitled to the benefit intended for him."

An exception to the rule, with reference to the lapse of legacies, has been introduced by the recent act, in favour of the issue of the testator; and now, in cases where an interest in real or personal estate is given to any issue of the testator, such interest, if not determinable with the life of the legatee or devisee, shall not lapse by his death in the testator's lifetime, if such legatee shall leave any issue living at the testator's decease; in which case, such devise or bequest shall take effect as if the legatee had died immediately after the testator, unless a contrary intention shall appear by the will.

A similar exception has been made in favour of devisees in tail, whose devises shall not fail, by their death, in the testator's lifetime, if they leave issue inheritable under the entail, living at the testator's decease, unless a contrary intention shall appear by the will.

When the payment of a legacy is to be postponed till some definite period after the testator's decease, great care should be taken to express clearly whether it is his intention that the legacy should be vested from the time of his decease, or that the right to it should depend upon the circumstance of the legatee being alive at the period mentioned for payment. An express declaration that the legacy shall be a vested interest, notwithstanding the postponement of payment, or that the title of the legatee shall depend upon his attaining the particular age, or being alive at the particular period, according to the wishes of the testator, is the safest course to adopt, and will prevent any questions on the subject.

Where there is no direct gift to the legatee, but a direction for payment at a particular period, as, for instance, the death of a tenant for life, the attainment by

Elliot v. Davenport, 1 P. Wms. 83; Vaux v. Henderson, 1 J. and W. 388.

the legatee of a particular age, or the period when the youngest of a class of legatees shall attain a certain age, such a direction has been considered a sufficient indication of the intention of the testator, that the legatee's title is to depend upon his living to such period; and, consequently, in such cases his representatives would not be entitled, if he should die before attaining such period.

Where the testator attaches words of condition to

a gift of a legacy, of which the payment is postponed, the legatee has not a vested interest till the arrival of such period. It is sometimes difficult to ascertain whether the language used by a testator indicates an intention to make the legacy conditional, or simply to postpone the payment. The leaning of the courts, however, is in favour of vesting; and they will, as far as the intention of the testator is not opposed to such a construction, so construe a will as to give vested interests as early as possible. The following words have been considered words of condition, indicating an intention to suspend the vesting, as well as the payment, "provided he attains," or "if he attains," some particular age, "at such time as the sale should be completed, in case they should be then living." Such language ought never, therefore, to be used, unless it is intended to benefit the legatee, only on such an event.

A few only of the most important alterations recently made in the law of wills have been noticed above; and the reader's attention is therefore directed to a fuller statement of the recent act given in a preceding page previously referred to.

A copy of a paper, which was extensively circulated by government at the time the recent wills act passed, is given below, as containing a concise reference to some of the principal alterations effected by that act.

Batsford v. Kebell, 3 Ves. 363; Sansbury v. Read, 12 Ves. 75; Watson v. Hayes, 9 L. J. N. S. Ch. 49. Elwin v. Elwin, 8 Ves. 546.