shall be bound out of my said means and estate to pay all
my lawful debts, deathbed and funeral expenses, and also to
pay or deliver the following legacies, viz. (specifying them),
and also any other legacies or bequests which I may
leave, or direct to be paid by any writing under my hand,
whether formally executed or not, 1 and I reserve power to
revoke or alter these presents in whole or in part ; and I
reserve my own life-rent ; and I dispense with the delivery
hereof, and I consent to registration hereof for preservation.
In witness whereof these presents, consisting of this and
the preceding pages, with the marginal additions upon
pages and , all written by (declaring that the words
on the line of page hereof are written upon an erasure
[or, are delete] before subscription) are subscribed by me,
the said A, at on the day of 18 before these
witnesses, W. and Y. (fully describing them). 2
(Signatures of testator and witnesses.)
A BEQUEST TO A CHARITY IN A SCOTCH WILL
(From 2 Juridical Styles, 569)
I ordain my said executor to pay and deliver the following
legacies Item, to the Royal Infirmary of Edinburgh the
sum of 1000 sterling to be paid upon the receipt of the
Treasurer or Secretary thereof for the time being for the
purposes of the said infirmary.
1 This would not be a valid clause in an English will. By English
law an existing writing may be incorporated, though not duly
executed, but no provision can be made for future disposition by
informal writing. See p. 31.
2 By s. 38 of the Conveyancing Act, 1874, the testing clause in
use before that act was enabled to be considerably simplified, but the
longer form is still commonly used.
268 FORMS
A CLAUSE OF MORTIFICATION
(From 2 Juridical Styles, 633)
And farther, for the purpose of establishing four bursaries
in the college of M., I do hereby leave and bequeath to the
Principal and Professors of the said college of M. the sum of
4000 for maintaining and educating four students in that
college, which sum I will and ordain to be invested and
employed in manner following, viz. etc.
A BEQUEST OF A BUSINESS
(From Bythewood and Jarman's Precedents in Conveyanci/xj,
vol. vii, p. 777)
I bequeath unto C. D. absolutely all the stock in trade
fixtures, machinery, plant, utensils, and effects employed in
my trade or business of a , and also the good-
will of the said trade or' business, and all my leasehold
interest in the messuage, manufactory, offices, and buildings
situate at in which the said trade or
business is carried on, or used for the purposes of the same ;
but not any money or debts which shall be owing to me in
respect of the said trade or business. [Or, And also the
benefit of all contracts subsisting in respect of the same
trade or business, and all book and other debts and monies
owing to me in respect of the same ; Provided always that
the said C. D. shall, to the satisfaction of the executors of
this my will, sufficiently indemnify my general estate from
all debts and liabilities owing or incurred by me in respect
of my said trade or business, and if they shall so require,
shall enter into a bond or covenant in that behalf at the
cost of my general personal estate.]
A BEQUEST OF AN ANNUITY
(From Bythewood and Jarman's Precedents in Conveyancing,
vol. vii, p. 824)
I bequeath to C. D. an annuity of during his life
clear of legacy duty and all other incidental expenses and
FORMS 269
deductions. And I direct my executors, as soon as convenient
after my death, to purchase in their names such an annuity,
either from government or from one of the public offices or
companies concerned in granting annuities, or upon freehold,
copyhold, or leasehold, or other real or chattel real security,
from some private person or persons, as my executors shall
deem expedient ; such annuity to commence from my death
and to be paid to the said C. D. by equal quarterly payments,
the first of such payments to be made at the expiration of
three calendar months from the time of my death. And I
direct that until such purchase shall be made, the said
annuity shall be paid out of my general personal estate at
the times and in manner aforesaid.
AN APPOINTMENT OF GUARDIANS
(From Bythewood and Jarman's Precedents in Conveyancing,
vol. vii, p. 752)
I appoint jointly with my wife, 0. D., the said [naming
the executors], and the survivors and survivor of them, to be
guardians and guardian of my children during their respective
minorities ; but such guardianship shall cease as to each of
the said guardians who shall go to reside abroad, refuse or
become incapable to act in the said guardianship, or become
bankrupt or insolvent.
I appoint C. D. of during his life, and after
his death such person or persons as he shall by will
appoint or nominate, to be guardian or guardians of my
children, during their respective minorities.
APPENDIX E
DIFFERENCES BETWEEN THE ROMAN AND ENGLISH WILL
(1) The primary object of the Roman will was the
appointment of a keres. Such an appointment was essential
to the validity of the will. The primary object of the English
will is the disposition of property. The will is valid even
though there be no one appointed executor.
(2) 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.
(3) There is no one in England to whom the universitas
juris of the testator descends as it did to the Roman fares,
the English heir-at-law taking only on an intestacy.
(4) The disabilities of testators differed in the two
systems. The disability of a slave or a heretic was peculiar
to Roman law, of a youth between fourteen and twenty-one
to English law.
(5) The whole property may be disposed of in England ;
at Rome, 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 a fourth part of the inheritance (the
Qiutrta Falcidia) in order to induce him to accept the office.
It follows from this that there is in England nothing corre-
sponding to the ({iitrela tnofficiori tettamenti^ the Roman
remedy for a child entitled to succeed and passed over by
the testator.
(6) In English law all wills must be written and must
conform to certain statutory requirements ; the Romans
recognised a nuncupative will and from the time of Augustus
ROMAN AND ENGLISH WILL 271
downwards an informal will called codicilli. The English
codicil is not an informal will, but an addition to a will,
read as a part of it, and needing the same formalities of
execution.
(7) There is a striking difference, unknown to Roman
law, between wills of real and personal estate. Probate is
necessary for the latter but not for the former. The Roman
legatum applied to gifts of both moveables and immoveables ;
in England "legacy" has long been confined to the former.
(8) The Roman will spoke from the time of making, the
English speaks from the time of death. The difference
becomes very important in the 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.
(9) In Roman law in the time of Justinian seven witnesses
were required, two are sufficient in England. The Roman
witnesses must have been idonei, or free from legal disability,
and slaves, women, heretics, and others were not good
witnesses. In England there appears to be no legal dis-
ability.
(10) The English distinction between the court of probate
and the court of construction was unknown to Roman law.
The same court decided whether a will was duly executed
and what was the meaning of the words used in the will.
(11) The Roman will was a public instrument, the
English is a private one. This difference rests on historical
grounds.
(12) A Roman paterfamilias could make a 1 will on behalf
of his infant son ; this was never the case in England.
(13) A contract to make a will in favour of a certain
person, good in England, was void in Roman law.
Several examples of disputed Roman wills and the de-
cisions thereon are given in Valerius Maximus, bk. vi, c. 7
(De Testamentis fiescissis), and c. 8 (De Ratis Testamentis
et Insperatis).
ADDENDUM
THE English law of intestate succession has been modified
by the following Act, which received the royal assent too
late for any reference to it to be incorporated in the body of
the work.
INTESTATES' ESTATES ACT, 1890
(53 and 54 Viet., c. 29)
intes- 1. The real and personal estates of every man who shall
tau- not die intestate after the first day of September one thousand
exceed- eight hundred and ninety leaving a widow but no issue shall,
"'.li.i.nig in all cases where the net value of such real and personal
where no elates shall not exceed five hundred pounds, belong to his
issue. widow absolutely and exclusively.
intes- 2. Where the net value of the real and personal estates
tote ex- 8 in the preceding section mentioned shall exceed the sum of
five hundred pounds the widow of such intestate shall be
to entitled to five hundred pounds part thereof absolutely and
exclusively, and shall have a charge upon the whole of such
for MX* real and personal estates for such five hundred pounds, with
interest thereon from the date of the death of the intestate
at four per cent per annum until payment.
" ow 3. As between the real and personal representatives of
u/bonie such intestate, such charge shall be borne and paid in pro-
tween portion to the values of the real and personal estates
realty respectively.
anil per-
sonalty.
A<M,VI 4. The provision for the widow intended to be made by
u"he*n' n ^k ^ c ' 8 ' la ^ k * n ^Mition an( l without prejudice to her
interest and share in the residue of the real and personal
INTESTATES' ESTATES ACT, ISQO 273
estates of such intestate remaining after payment of the sum to share
of five hundred pounds, in the same way as if such residue due 681
had been the whole of such intestate's real and personal
estates and this Act had not been passed.
5. The net value of such real estates as aforesaid shall How
for the purposes of this Act be estimated in the case of a to a be y
fee simple upon the basis of twenty years purchase of the valuetl -
annual value by the year at the date of the death of the
intestate as determined by law for the purposes of property
tax, less the gross amount of any mortgage or other principal
sum charged thereon, and less the value of any annuity or
other periodical payment chargeable thereon, to be valued
according to the tables and rules in the schedule annexed
to the statute sixteenth and seventeenth Victoria, chapter [Succes-
fifty-one, and in the case of an estate for a life or lives Duties
according to the said tables and rules. ^ ,
6. The net value of such personal estate as aforesaid HOW per-
shall be ascertained by deducting from the gross value there- to be
of all debts, funeral and testamentary expenses, of the intes- value(l -
tate, and all other lawful liabilities and charges to which
the said personal estate shall be subject.
7. This Act may be cited as the Intestates' Estates Act, short
1890.
8. This Act shall not extend to Scotland.
of Act.
INDEX
ACCOUNT DUTY, 131, 168-171
residuary, 171
Accumulation of income, 51, 199,
205
Action of account, 21
to perpetuate testimony, 40
form of pleadings, 126-128
passing to representatives, 142
against representatives, 152
for death, 143
administration, 158
Administration by ordinary, 26
order of, 134
of assets, 160
issue of letters of, 135
of small estates, 136
limited, with will annexed, 122,
137
de bonis non, 124, 137
durante absentia, 137
durante minore estate, 122,
137
pendente lite, 136, 138
durante dementia, 138
ad colligenda bona, 138
cessate grant, 138
ceterorum grant, 122, 138
special, 138
exemption from, 139
revocation of, 139
bond, 26, 74, 133, 136
when to be obtained, 148
in court of equity, 157
action, 158
of insolvent estate in bank-
ruptcy, 163
Administration, tribunal of, 188
sealing letters of, 189
Administrator, origin of name, 5
officer of court, 26
who cannot be, 133
oath of, 135
must give security, 125
rights of, 140-148
duties of, 148-156
liability to costs, 159, 160
Advancement of children, 115
Agnatic relationship, 2-4, 23
Alien, 29, 76, 122, 184
Alienation, restriction on, 55-57
Ambiguity, latent and patent, 93,
94
Ancestor worship, 2, 52
Animism, 2
Annuity, form of bequest of,
App. D
Appeal, 128-130, 165
Appointment, power of, 50, 61,
72, 75, 172
benefit under, subject to legacy
duty, 171
confers succession, 176
Apportionment, 60, 141, 153
Arches, Dean of, 19
Assets by descent, 14, 43
equitable, 14
real, 149
within jurisdiction of court, 142,
190
division of, 146
administration of, 158-161
delay in realising, 152
276
INDEX
Assets, marshalling, 162
Assurance of land by will, 45, 46
Athenian law, 3, 7
BANKRUPTCY, 122, 133, 142, 157,
158, 163
Beneficium inventarii, 196
Bequest, see Legacy
Blind, deaf and dumb, and illiter-
ate person, will of, 83
Bocland, 9
Bona notabttia, 19
Borough, English, 24, 113, 114
Brehon law, 7, 204
CANON LAW, 8, 116
Casualties, 198
Caution from executor, 195
Caveat, 125
Cessate grant, 138
Ceterorum grant, 123, 138
Chancery Division is Court of
Construction, 84
appeal from, 165
does not grant probate, 120
Charity, gift to, 45, 48, 51, 124,
206
to be construed cy-pres, 103,
104
form of, App. D
exempt from Mortmain Act,
47
assets not marshalled in favour
of, 162
Commissioners, 48
Roman Catholic, 54
in Scotland, 198
Chivalry, tenure in, 12
Chose in action, 141
Citation, 123. 125, 135
Codicil defined, 5, 63
revival of revoked will by, 67
form of, App. D
Co-executors, 121, 125, 143, 144
Cognatic relationship, 3, 4, 23
Coke's Rules, 11, 37
Collation, 202
Commissary Court, 197
clerk, 189, 197
Condition repugnant to estate, 55,
66
Condition, precedent and sub-
sequent, 98-100
impossible, impolitic, or illegal,
98
in restraint of marriage, 99-101
not to dispute will, ib.
Conditional devise or bequest, 97
limitation, 97, 98, 100, 101
Confirmation, 189, 196, 197
Conflict of laws, 182-192
Conquest, influence of, on wills, <>
Consistory Court, 19
Construction of wills, 84-108
principles of law, 85
authority of casds, ib.
statutory rules, 86
non-statutory rules, 89
minor rules, 94, 101
different from that of deeds, 96
court of, 85, 157
cannot rectify mistake, 106
governed by law of domicil, 1 85
in Scotland", 199, 200
Contingent remainder, 41, 49
Contract to make will, 36
disposing of succession, 36, 37
not to revoke will, 68
by acceptance of trust, 74
one executor cannot bind another
by, 144
right to' sue on contract made by
deceased, 152
with deceased, 142
express by executor, 154
Conversion, 144, 161
Copyholds, will of, 15, 43
descent of, 24, 112
seizure quousque of, 112, 113
Corporation, gift to, 15, 45, 48
as executor, 122
as administrator, 134
Costs, when payable by executor
or administrator, 159, 160
County Court, jurisdiction in pro-
bate, 21, 62, 120, 129, 180,
133
in administration, 136, 137
under Employers' Liability Act,
143
in suit for legacy, 151
equitable, 164, 165
INDEX
277
County Court, appeal from, 129,
130, 165
Cremation, 148
Crown is ultimus heres, 111, 116,
134, 201
may terminate abeyance, 118
debts, 149
Curtesy, 24, 25, 112
Cy-pres, 103, 104, 200
DEATH, action for, under Lord
Campbell's Act, 143
Employers' Liability Act, ib.
certificate of, 120, 135
presumption of, 120
duties, 168
Debts, liability of devisee, 13
heir, 13
copyholder, 15
executor, 21, 148, 149, 195,
196
administrator, 148, 149
legatee, 21
ordinary, 26
in what order payable, 149
privileged, 196
Delegates, Court of, 20
Depositors in savings banks, etc.,
29, 81
Descent, rules of, 109-112
Devastavit, 154
Devise, meaning of, 58
immediate or executory, 40, 41
conditional, 97
Devisee, liability for debts, 13, 14
title accrues at death of testator,
121
Dilapidations, 149
Disposition and settlement, 11,
192, 193, 197, 202
Distribution, Statutes of, 26, 95,
115, 136, 137, 150
Domicil defined, 182
governs testamentary capacity,
183
construction of will, 185
Acts of 1861, 183, 184
Donatio mortis causA, 61, 171
Dower, 24, 25, 59, 111, 112
Drunkenness, effect on validity of
will, 83
Duties, probate, 131, 169, 190,
198, 207
account, 131, 169
legacy, 171-175
succession, 175-179
estate, 179, 180
minor, 180, 181
in Scotland, 197, 198
in Ireland, 207
ECCLESIASTICAL COURTS, 18
Eik, 197
Emblements, 94, 141
Escheat, 15, 111, 112, 114, 117
Estate, " personal " and real, 10,
141
tail, 12
how barred, 49
quasi entail, 89
succession duty on, 177
duty, 179, 180
Evidence to explain intention, 92,
161
Execution, requisites of, 33
Executor, origin of term, 5
liability for debts, 21, 149, 153
for costs, 159, 160
as shareholder, 155
originally essential to will of
personalty, 58
assent to legacy, 62, 117
his rights over real estate,
121
must prove will or renounce,
121, 123, 124
has inchoate right on testator's
death, 121
number unlimited, 121
no one legally excluded from the
office, 121, 122
appointment of, express or im-
plied, 123, 124
alternative, 122
limited, 122, 123
de son tort, 123, 146, 154
of executor, 124
need not give security, 125
oath of, 130, 131
retainer by, 133, 146
rights of, 140-148
duties of, 148-156
278
INDEX
Executor, rights exercisable without
action, 143
receipt by, 144
when trustee, 144, 155
investment by, 152
has year for distributing assets,
150
in Scotland, 195
Executory devise, 41, 98
bequest, 61, 98
Exoneration, 145, 160, 161
FAMJLY, primitive, 2
Fees in non-contentious business,
App. B
Fixtures, 22, 141
Folcland, 9
Forgery of will, 166
of signature, 167
Forms of wills, App. D
of pleadings, 126
France, law of, 6, 29, 36
Frauds, Statute of, 13, 14, 18, 36,
43, 77, 155
Freedom of disposition not univer-
sal, 6
Friendly Society, nomination by
depositor, 29, 139
GAVBLKIND, Engl^b, 10, 24, 25,
113, 114
Irish, 204
Glanvill cited, 13, 18, 23, 24
Guardianship, devise of, 30, 75
form of, App. D
HALF-BLOOD, 24, 111, 116, 202
Heir, liability for debts, 13, 14
cannot renounce, 112
cannot be disinherited but by
express words, 102
customary, 113
apparent and presumptive, 114,
195
estate vests on death of testator,
121
resulting trust in favour of, 161
in Scotch law, 195, 199, 200
portioner, 201
service as, 201, 202
Heirloom, 37, 42 141
Hereditas, I
ii-, - i, >;
Heriot, 9, 15, 24
Hindu law, 3, 7
Holograph will, 18, 194
House-Spirit, worship of, 2
Hustings Court, 19
ILLEGITIMATE CHILD, gift to, 100
cannot succeed as heir, 185
can succeed as next of kin, 185,
186
revenue duty payable by, 191
Immoveables and moveables, 10,
182, 185, 200
Indefiuiteuess of gift, 57
Inland Revenue, probate through,
74, 120, 130, 131, 136, 137,
170
affidavit, 135, 136, 149
duties, 147, 149, 168-181
Insanity, 29, 81
Intention, as a guide to construc-
tion, 90-92, 94
explanation of, 92
to take effect as far as possible,
102
inconsistent, 104
to benefit executor, 155
to exonerate real estate, 161
International Law, see Conflict of
Laws
Intestacy, presumption against,
102
total or partial, 109
share on, liable to legacy duty,
172
where sued for, 117
Inventory, 130, 131, 135, 149, 196
Investment by executor, 152, 195
Ireland, law of, 204-207
JUDICATURE Acre, see Statutes
Jus accracendi, 199
marili, ib.
rdictce, 194
KINO, will of, 70
as executor, 122
LANCASTER, Chancery of, 163
INDEX
279
Lapse, 60
Larceny of will, 166
Leaseholds liable to succession
duty, 171
are personal property, 10
are within Locke King's Act,
161
Legacy, meaning of, 58, 172
kinds of, 59
executory,. 61, 98
lapse of, 60
wrima facie payable out of per-
sonalty, 96
whether executor renouncing
can take, 124
paid after debts, 149
interest on, 150, 188
to infant, 150
where sued for, 62, 117, 151
limitation in action for, 151
duty, 171-175
Legitim, 186, 193, 194
Legitimatio per subsequens matri-
monium, 185, 186, 200
Limitations, Statute of, 121, 146,
148
in claim against executor, 157
administrator, 152
for legacy, 151
for legacy or succession duty,
175, 179, 190, 191
Loan Society, 139
Locke King's Act, 145, 150, 160,
161
Lunatic, will of, 81
as executor, 122
as administrator, 135
intestate, 138
MAINE, Sir H., cited, 2, 4, 7
Malum prohibitum and malum in
se, 97, 98
Marriage, restraint of, 57, 60, 98-
101
revokes will, 67, 69
articles, 97
Married woman, will of, 22, 25,
29, 71-73
as executrix or administatrix, 73
cannot be surety to administra-
tion bond, 136
Marshalling assets, 162
Masses, bequest for, 18, 53, 205
Misdescription, 102
Mohammedan law, 7, 23
Mortgaged estate, exoneration of,
145, 150, 160, 161
Mortification, 198
form of clause of, App. D
Mortmain meaning of term, 15
licence in, 16
provisions of Act of 1888, 45,
46
exemptions from, 47
how far extends to land abroad,
186
does not apply to Scotland, 198
to Ireland, 205
Mosaic law, 3, 7, 23
Moveables and immoveables, 10,
182, 185, 200
NATURALISATION, 76, 184
Nomination equivalent to will, 29
139
OCCUPANCY, general, 43
special, ib., Ill
Ordinary, Court of, 19
power to grant probate, ib.
administration, 26
Originating summons, 144, 159,
164
Pars rationdbilis, 17
Partnership estate, 141
debt, 135
Peerage, succession to, 117-119
Perpetuity, 48-52, 61
in colonies, 52, 187
in Scotland, 198
in Ireland, 206
Personal and real estate, 10, 141
Personalty, will of, history, 16
intestacy as to, history, 25
will of, 58-63
intestate succession to, 114-117
impure, 45
Power, see Appointment
Prcecipuum, 201
Precatory trust, 103
Prerogative Court, 19, 20, 131
280
INDEX
Presumption of alteration in cir-
cumstances, 67
to explain intention, 92
against intestacy, 102
in Court of Probate, 107
of death, 120
of Life Limitation Act, 203
Primogeniture, 2, 3, 23, 24, 113,
200
Priority, 149, 163, 188
Privy Council, appeal to, 20
Probate Acts, see Statutes
in Ecclesiastical Courts, 21
in old county courts, i/>.
in Court of Probate, ib.
in Probate Division, ib. t 120-133
not granted by Chancery Divi
sion, 120
is evidence of will, 39, 131,
132
in common form, 125, 130
in solemn form, 38, 125, 148
of will of lands, 38
double, 125
conclusive till revoked, 132
exemption from, 139
when to be obtained, 148
duty, 131, 168-170, 189, 198,
207
sealing, 189
Probate Division cannot entertain
action for legacy, 62, 151
for distributive share under
intestacy, 117
cannot grant probate of King's
will, 71
limited jurisdiction to construe,
84, 107
authority of, necessary for execu-
tor or administrator, 120
trial in, 128
appeal from, ih.
discretion in grant of adminis-
tration, 138
in Ireland, 206
Property of all kinds may be left
by will, 35, 68
Public policy, 44, 99, 100, 105
Quia Emptoret, Statute of, 10
Queen, will of, 71
RABBINICAL LAW, 7
Radical right, 200
Rationabilis pars, 17
Real estate, history of will of, 10
history of descent on intestacy,
23
will of, 39-58
descent of, on intestacy, 109-114
and personal estate distin-
guished, 10, 141
power of executor over, 144,
145
when charged with debts and
legacies, 96, 145, 169
administration of, in equity, 158
Receiver, appointment of, 138, 145
Reconversion, 162
Reduction ex capite Itcti, 193
Register of Sasines, //>.
of Entails, 199
Registry of will in England, 40
in Ireland, 206
probate, 123, 125, 130-132, 136
Relief, feudal, 24, 25
none against defective execution
of will, 106
Remainder, contingent, 48, 49
Remoteness, 50
Renunciation by executor, li'l,
123, 124
not by heir, 112
Residue liable to legacy duty, 171
Restraint of marriage, 57, 60, 98-
101
Retainer, 133, 146
Revival of revoked will, 67, 69
Revocation before Wills Act, 11,
38, 69
since Wills Act, 35, 65-69
dependent relative, 66
of probate, 132, 133, 138
of administration, 138, 139
Roman Catholic religion, gift to,
53
charity, 54, 104
Roman and English will compared,
App. i:
law, 1, 3-8, 10, 12, 16, 23, 31,
36, 43, 59, 61, 63, 73, 94,