established in the form which still prevails. Under
this law the rule as to succession of the eldest son is
strict and uniform, and now applies to freeholds of
all kinds (with a few exceptions to be noticed later),
though in Glanvill's time affecting only military ten-
ures. 1 By the time of Bracton the rule of succession of
the eldest son had become established with regard
to lands of socage tenure. In default of a son the rules
of succession laid down by Glanvill remained unaltered
until they were amended by Parliament in 1833, unless
any general or local custom, such as gavelkind or
borough-English, sanctioned a different mode of descent.
The three main points in which the law, before the act
of 1833, differed from that now prevailing were these.
The descent was from the person last seised, instead of
from the purchaser, in accordance with the old legal
maxim Seisina facit stipitem ; after failure of issue the
collaterals succeeded to the exclusion of the ancestor;
the half-blood was entirely excluded.

The right of the successor to the whole estate of the
ancestor was limited in freeholds by relief, curtesy, and
dower, and in copyholds by fine and heriot, as already
mentioned. Relief was a sum of money paid to the lord on
succession, consisting generally of a year's rent. A relief
might be payable by special custom in succession to copy-
holds. Curtesy, in full curtesy of England, was the life
tenancy of a husband of the whole of the estates in posses-
sion of his deceased wife, whether legal or equitable (in
gavelkind lands of one-half), provided there had been issue
of the marriage born alive who might by possibility have

1 Glanvill's words are, Si miles fuerii vd per miUlam tcnmi tune
tecundiim j\u reyni Anylia primogenitiu JUiut patri swxrtlut ,n
tolum.



REAL ESTATE PERSONALTY 25

been heir to the wife. Dower was a life estate of a
widow in one-third part of the lands of her deceased
husband, in gavelkind lands of one-half. Rights ana-
logous to curtesy and dower may exist by custom in
copyholds. In the latter case the right is generally
called freebench. None of these limitations of the full
enjoyment of succession are now of much practical
importance. Eelief is represented by a payment in ex-
ceptional cases of one year's quit-rent, generally a
nominal sum. It is doubtful whether tenancy by the
curtesy can exist after the changes in the law made by
the Married Women's Property Act, 1882. The power
of barring the widow's right to dower (either by pro-
vision in lieu of it, or by simple declaration in a deed or
will) given by the Dower Act of 1833, has made the
existence of estates in dower very rare. 1 In most
cases clauses in the marriage settlement prevent any
question as to curtesy or dower arising.

Personalty. There is a difference of opinion as to
the origin of the rights of the Church over the personal
estate of an intestate. Blackstone derives it from
delegated prerogative, the Crown being originally entitled
to such goods as parens patrice. But whether the rights
of the Church were inherent or delegated, there is no
doubt that they existed in full vigour at an early date,
and were recognised in the Magna Carta of John, 27
of which provides that if a free man die intestate, his
chattels shall be distributed among his relations, parents,
and friends per visum ecdesice, with a saving for payment
of his debts. The goods of the deceased were vested in
the ordinary, who was not accountable to any authority

1 Tenancy in dower is, however, still common in some of the
States of the United States.

VOL. I 3



26 HISTORY OF INTESTATE SUCCESSION

for the mode in which he distributed them. This led
to continual complaints that the Church took the whole
residue (after payment of two-thirds to the widow and
children) for its own benefit, leaving the debts unpaid.
In fact, this became the established canon law in
England. 1 To remedy this state of things numerous
statutes were passed, the earliest of which was that of
Westminster the Second in 1285 (13 Edw. I, c. 19),
by which provision was made for payment by the
ordinary of the debts of the intestate, as far as his goods
extended, in the same manner as executors would have
been bound to have done, had he left a will. The re-
sidue after payment of debts still remained at the disposi-
tion of the ordinary until 31 Edw. Ill, c. 1 1 (1357), enacted
that in case of intestacy the ordinary should depute the
nearest and most lawful friends of the deceased to
administer his goods. 2 This was the origin of ad-
ministrators in intestacy. They were merely the
deputies or nominees of the ordinary, as they are now
of the Probate Division. The Statute of 21 Hen. VIII,
c. 5, allowed the judge to choose the widow or the
next of kin as administrator at his discretion. Before
the reign of Charles II, there was a difficulty in com-
I>elling the administrator to make a distribution. Any
bond to duly distribute among the next of kin, if entered
into by the administrator before the ecclesiastical court,
was held void by the temporal courts. Nor was there
any statutory definition of the next of kin. In order to
remedy these inconveniences the Statutes of Distribution

1 In JiritanniA tertia pars bonorum detctudenlium ah intettaio in
ojms ecclesia: et pauperum ilitpauanda eft. Decretals, v. 3, 42.

9 Any debts due to the intestate and recovered by such friends
were by the act still to be administered aud depended for the soul of
the dead.



PERSONALTY 27

were passed, under which the distribution of the surplus
personal estate is to be made by the administrator to
the next of kin in a certain order. 1 Administration is
now wholly under the jurisdiction of the High Court or
a County Court. All customary modes of administration
were finally abolished by 19 and 20 Viet., c. 94.

1 See p. 134.



CHAPTER III

THE WILL IN GENERAL

THE main authority for the law and the formalities of
execution of a will is the Wills Act passed July 3, 1837,
principally owing to the exertions of Lord Langdale.
The whole act is still law, except s. 12, repealed by 28
and 29 Viet, c. 112, and ss. 2 and 36 by the Statute
Law Revision Act, 1874. The act extends to England
and Ireland, but not to Scotland. What the act did
was to make certain amendments in the law, chiefly re-
lating to real property, and to enforce a uniform system of
formalities of execution in the case of wills of all kinds.
Any differences of procedure arise subsequently ; as far
as execution is concerned, the law demands the observ-
ance of the same formalities, whatever be the nature of
the property disposed of. In the great majority of cases
a will deals with personalty only or personal and real
property together, a will of lands only is comparatively
rare. By the Stamp Act, 1870, wills arc exempt from
stamp duty, but probates and letters of administration
must be stamped, as will appear in a later chapter. The
will of a living testator may by the Court of Probate
Act, 1857, bo deposited for safe custody in the principal
registry at Somerset House. 1

1 20 and 21 Viet, c. 77, . 91. The fee for such deposit is ten



TESTAMENTARY CAPACITY 29

The requisites for the validity of a will are :

(1) Testamentary capacity of the testator ;

(2) Testamentary character of the instrument ;

(3) Knowledge and approval of the instrument by

the testator ;

(4) Absence of undue influence ;

(5) Due execution and attestation.

These requisites depend partly on common law, partly on
the Wills Act and a later act of 1852.

(1) Every person of the age of twenty-one or up-
wards is primd facie capable of disposing of his or her
property by will. Since the Naturalisation Act, 1870,
and the Married Women's Property Act, 1882, this
appears to be true of the alien and of the woman married
since January 1, 1883. The main, if not the only,
exception to the rule as thus laid down is the case of
insanity. Insanity is a question of fact, and there
appears to be no presumption of sanity until the con-
trary be shown. The disability of an infant is subject
to certain exceptions ; a soldier in actual military service
or a mariner at sea may make a valid will at fourteen, 1
and a depositor in a savings bank or member of a friendly,
etc., society, may make a nomination (which has the
effect of a will) at sixteen. 2

(2) Certain kinds of instruments cannot operate as
wills, because they are not of a completely testamentary
character. The tests for determining such character



shillings. In the office of the inspector of seamen's wills there is,
under the Order in Council of December 28, 1865, a depository for the
wills of seamen and marines. A will deposited in a public office is
the nearest approach in England to the testament mystique of the
French Code Civil, 976, a will sealed and deposited with a notary.

1 See Ch. VIII, where these exceptional wills are more fully
treated.

2 See p. 139.



30 THE WILL IN GENERAL

appears to be whether the document in question is
revocable, and whether it is intended to take effect only
on the testator's death. If these tests be applied, even a
document in form a deed may be in legal effect a will.
Mere instructions for a will, or even orders on a banker
or letters, if duly executed as a will, may take effect as
such. So may a document expressly said to be tem-
porary, e.g. one containing the words "until a formal
will be made by a lawyer." On the other hand, in a re-
cent case a document duly executed as a will but headed,
" This is not meant as a legal will, but as a guide," was
held not to be a valid testamentary document, and pro-
bate was refused. 1 Evidence is admissible to show
either that a document primti facie testamentary is not
so, oc that a document primA facie not testamentary is so.
There is no definition of a will in the Wills Act other
than that in the interpretation clause, by which the
word "will" is to extend to a testament, and to a
codicil, and to an appointment by will or by writing in
the nature of a will in exercise of a power, and also to
a disposition by will and testament, or devise of the
custody and tuition of any child, by virtue of 1 2 Car.
II, c. 24, and the corresponding Irish act, and to any
other testamentary disposition. 2 It is not necessary that
a will should be a single document "Sometimes a
testator for greater security executes his will in duplicate,
retaining one part and committing the other to the
custody of another person (usually an executor or
trustee) ; and questions have not unfrcqucntly arisen as
to the effect of his subsequently destroying one of such
papers, leaving the duplicate entire. In these cases the

1 Ferguson- Davit v. Ferguson- Davi', Law Rep. 15 Probate Div.,
109 (1800). * H. 1.



KNOWLEDGE & APPROVAL UNDUE INFLUENCE 31

presumption generally is that the testator means by the
destruction of one part to revoke the will, but the
strength of the presumption depends much upon cir-
cumstances." 1

Documents may be incorporated as part of the will,
but they must be documents actually existing at the
time of making the will, and identified by express
reference in the will. A will may be contingent, that
is, may depend for its validity on the happening of a
future event or even on the option of another person
than the testator. A will may also be joint, subject
to revocation by either of the joint makers or by the
survivor. Mutual wills may also be made, that is, wills
remaining revocable during the joint lives of the makers,
but irrevocable after the death of one of them, provided that
the survivor takes advantage of the will of the deceased.

(3) At the time of making the will the testator must
be able to understand the nature of the business in
which he is engaged, such as the effect of the document,
the property intended to be left, and the persons to be
benefited. In the absence of proof of fraud or coercion,
a will read over to a testator is presumed to have been
approved by him, and this although the attesting wit-
nesses, when called to give evidence in court, have no
recollection of the circumstances.

(4) The use of undue influence may avoid a will.
What is undue influence is a question difficult to answer
in the abstract. Roman law expressed it by the words,
Quamvis si liber esset noluisset, tamen coactus voluit. In a
case of Hall v. Hall, tried before Lord Penzance in the
Court of Probate in 1868, 2 that learned judge laid down
the laAv as follows. " To make a good will a man must

1 1 Jarman, c. vii. - Law Rep., 1 Probate, 481.



82 THE WILL IN GENERAL

be a free agent. But all influences are not unlawful.
Persuasion, appeals to the affections or ties of kindred,
to a sentiment of gratitude for past services, or pity for
future destitution, or the like, these are all legitimate
and may be fairly pressed on a testator. On the other
hand, pressure of whatever character, whether acting on
the fears or the hopes, if so exerted as to overpower the
volition without convincing the judgment, is a species of
restraint under which no valid will can be made. Im-
portunity or threats, such as the testator has not the
courage to resist, moral command asserted and yielded
to for the sake of peace and quiet, or of escaping from
distress of mind or social discomfort, these, if carried to
a degree in which the free play of the testator's judg-
ment, discretion, or wishes is overborne, will constitute
undue influence, though no force is either used or
threatened. In a word, a testator may be led but not
driven ; and his will must be the offspring of his own
volition and not the record of some one else's." In a
later case Sir James Hannen directed a jury that in order
to establish undue influence it must be shown that the
will of the testator was coerced into doing what he did
not desire to do. 1 The burden of proof rests on those
who assert the exercise of undue influence, and proof
must be given that fraud or coercion has been exercised
with regard to the will itself. It is always a suspicious
circumstance that a person who prepared a will,
especially if a solicitor, is greatly benefited by its pro-
visions. Such a person has thrown upon him the onus
of showing the righteousness of the transaction. An
agreement for a reward to use influence over a testator
on behalf of a particular person is void.

1 Wingrove v. Winffrove, Law Ifcp., 11 Prohntc Div., 81 (1886).



EXECUTION AND ATTESTATION 33

(5) By the terms of the Wills Act no will is valid
unless in writing and executed in accordance with the
provisions of the act. The requisites of execution are
as follows :

(a) Signature at the foot or end thereof by the tes-
tator or by some other person in his presence or by his
direction. The signature may be in pencil, or may be by
mark or by a stamp, or even in an assumed name. The
will may be written on any substance capable of being
written on. No sealing is necessary, and sealing alone is
not a sufficient signature, unless the seal be one bearing
the testator's name or initials and acknowledged by him
as his hand and seal. It is usual, though not compulsory,
for the testator and the witnesses to sign each sheet of
a will where there are more than one, and to sign
or initial all interlineations, which should also be
expressly referred to in the attestation clause. In-
terlineations are presumed to have been made after
execution. Where only the last sheet is attested,
the presumption is that the others were in the room and
formed part of the will at the time of execution. Owing
to some difficulties having arisen as to the interpretation
of the words "at the foot or end thereof," an Act of
Parliament was passed in 1852 (15 and 16 Viet., c. 24),
which enacts in short that the will is to be considered
valid if it be apparent that the testator intended to give
effect by his signature to the writing signed as his will.

(b) Signature or acknowledgment in the presence of
two witnesses, both present together, before either of
them attests.

The requisites of attestation are as follows :
(a) Capacity of the witnesses. Any one is a capable
witness, even idiots and lunatics are not excluded by



34 THE WILL IN GENERAL

law, though for obvious reasons testators do not make
choice of such perons. An infant, if able to write, is a
good witness. So is the husband or wife of the testator,
an executor, or a creditor. Under the Wills Act, e. 14,
a will does not become void owing to the incompetency
of a witness, and by s. 15, if a will be attested by any
person to whom, or to whose wife or husband, any
beneficial interest be given (except a mere charge for
payment of debts), the person attesting will be a good
witness, but the gift of such beneficial interest to such
person, or the wife or husband of such person, will be
void. Under this section even a power to a solicitor,
who was an attesting witness, to make professional
charges was held to be void. Subsequent marriage of
two attesting witnesses does not avoid a gift to either or
both. A legatee benefited by a will may attest a codicil
under which he takes nothing, and conversely a gift may
be made by a subsequent codicil to the witness of a will.
A gift to an attesting witness is void although there arc
more witnesses than are necessary ; for instance, a gift
to one of three attesting witnesses would be void, not-
withstanding that the attestation of the others is suffi-
cient for the validity of the will. 1

(y3) The sight, or opportunity of sight, by the
witnesses of the signature of acknowledgment of the
testator. It is sufficient if the witnesses might have
seen had they looked.

(7) Signature by the witnesses in the presence of the
testator, though not necessarily in one another's presence.
No form of attestation is prescribed. The usual form,

1 /><< v. Mills, 1 Mooily and It-iliinson's K,-p., '288 (1833). I'.ut
the court will admit i-vidnirc to prove tli:it the third name wiw not
signed in the capacity of wit i



ATTESTATION 35

however, implies that all the three parties were present
together and signed in one another's presence.

(B) Intention to attest as witnesses is necessary.
The witness must therefore be aware that it is a will
that he attests, though he need not be informed of the
contents. Initials, description, or a mark constitute a
sufficient signature. By s. 21 of the act no obliteration,
interlineation, or other alteration made in any will after
its execution is to have any effect (except so far as the
words of the will before such alteration shall not be
apparent), unless such alteration be executed in the
same manner as a will. The alteration may be executed
and attested in the margin or on some other part of the
will opposite to or near such alteration, or at the foot or
end of or opposite to a memorandum referring to such altera-
tion, and written at the end or some other part of the
will. Unattested alterations or interlineations are pre-
sumed to have been made after execution.

Other sections of the Wills Act dealing with the
general law (not treated under special heads) are the
following : ,

By s. 3 all real and personal estate to which the test-
ator is entitled either at law or in equity may be disposed
of by will. This includes property acquired between the
execution of the will and the death of the testator. 1

By s. 13 every will executed in accordance with the
act is valid without republication.

By s. 23 a conveyance or other act subsequent to
the execution of a will (except an act of revocation)
does not prevent the operation of the will over such

1 As a general rule a testator can leave by will only what he could
give in life. The one exception appears to be a freehold to commence
in futuro, which can legally be the subject of a devise, but not of a
conveyance inter viws at common law.



36 THE WILL IN GENERAL

real or personal estate as the testator has power to
dispose of at his death.

By s. 34 the act does not extend to wills made
before January 1, 1838, and a will re-executed or re-
published or revived by codicil is, for the purposes of
the act, to be deemed to have been made at the time of
re-execution, republication, or revival ; nor does the act
extend to the estate pur autre vie of any person dying
before January 1, 1838.

It should be noticed that there may be a good con-
tract to make a will or a devise or bequest in favour
of a particular person. Such a contract has been en-
forced by action for specific performance, or by action for
damages against the representatives of the deceased.
The contract must be valid by the Statute of Frauds
where that statute requires writing. On this principle
a mere verbal promise to make a will in favour of a
housekeeper in reward for her services was held to give
no right of action against the heir of the promisor on
his dying intestate. Neither the continuance of the
plaintiff in the service of the deceased after the promise,
nor the execution by the latter of a document intended to
operate as a will in the plaintiff's favour, but invalid for
want of proper attestation, was regarded by the House of
Lords as sufficient part performance to exclude the Gyra-
tion of the Statute of Frauds. 1 In the case of a will olv
tained by a promise to dispose of property in a particular
way, the court gives effect to the verbal arrangement by
affecting with a trust the projxjrty devised or bequeathed.

A contract to dispose of a succession in favour of n
particular person is good," subject always to the pro-

1 AWtrson T. MaddUon^ Law Rep., 7 Apixail Cases, 174 (1883).
8 By the law of France and other countries which follow the Komnn
law such a contract ia invalid.



CONTRACT RULES FOR TESTATORS 37

tection afforded by the courts to expectant heirs, who
have been relieved from unconscionable bargains even
where such bargains have been made after they have
attained their majority. In one well-known case the
heir-apparent to an earldom, when twenty-two years of
age, had borrowed money at sixty per cent on the
security of his interest in the property which would be
his at his father's death. After the death of the father,
the lender commenced actions on his bills, but it was
held by the Court of Appeal in Chancery that the
actions must be restrained and the bills delivered up on
payment of the sums actually advanced with interest at
five per cent. 1

A will defective in form is defective for every
purpose. In some cases a court of equity will interfere
to grant relief where an instrument is not duly executed,
but this is never the case where the instrument is a
will. The date of a will may, however, be supplied or
corrected by a court having jurisdiction in probate after
hearing the evidence of an attesting witness. The
powers given by a will are sometimes extended by a
private Act of Parliament, chiefly in the direction of
increased powers of leasing and of sale of heirlooms.
But there appears to be no instance where an act has
given validity to a will invalid in form. In a few cases
private acts have been passed for better effecting the
purposes of wills, Parliament assuming to a limited
extent the jurisdiction of a court of construction.

The rules for the guidance of testators given by Lord
Coke are still of value, and it will not be amiss to set
them out at length.

"1st. Make it by good advice, in your perfect memory,

1 Earl of Aylesford v. Morris, Law Kep. , 8 Chancery, 484 (1873).



38 THE WILL IN GENERAL

and inform your counsel truly of the estates and tenures
of your lands, and by God's grace the resolution of the
judges in this case l will be a good direction to learned
counsel to make your will according to law, and thereby
prevent questions and controversies.

" 2d. It is good, if your will concern inheritance, to
make it indented, 2 and to leave one part with a friend,
lest after your death it be suppressed.

" 3d. At the time of the publication of the will, 3 call
credible 4 witnesses to subscribe their names to it.

" 4th. If it may be, let all the will be written with one
and the same hand, and in one or the same parchment
or paper, for fear of alteration, addition, or diminution.

" 5th. Let the hand and seal 5 of the devisor be set to it.

" 6th. If it be in several parts, let his hand and seal be
put, and the names of the witnesses subscribed, to each \ >;i rt .

" 7th. If there be any interlining or rasure in the will,
let a memorandum be made of it and signed by the
testator.

" 8th. If you make any revocation of your will, or of
any part of it, make it by writing, by good advice ; for