witnesses, whether they can write or not, may also sign as marksmen; and if one of them can neither read nor write, he may still sign his name by having his hand guided by the other. It has even been held sufficient for witnesses to subscribe the will by their initials. In conformity also with the provisions in the New Will Act that "no form of attestation shall be necessary," it has been held that a mere subscription of two names without any memorandum to show that the parties have subscribed as witnesses will satisfy the requirements of the statute. Again, under either Act, any person, even though he be one of the two attesting witnesses, may sign for the testator by his direction ;' and where the drawer of a will, being requested by the testator to sign for him, put his own signature to the instrument, this was held to be sufficient, as the Act does not say that the signature must bear the testator's name. The witnesses, however, must attest the will, either by their signatures or their marks, and probate has been refused when a stranger, at the request of the testator, signed for one of the witnesses who was unable to write.?

§ 975. It may be stated, with regard to the incorporation of papers in wills, that here, as in other documents, a paper imperfect in itself may, by clear reference, be so identified with an instrument validly executed as to form part of it, and if this be the case, the defect of authentication arising from such paper being unattested or unexecuted will be cured." Unattested wills and codicils have

1 In re Amiss, 2 Roberts., Ec. R., 116. See ante, § 962.

2 Harrison v. Elvin, 3 Q. B. 117; in re Frith, 27 L. J., Pr. & Mat. Cts. 6. See ante, § 962.

3 In re Christian, 7 Ec. & Mar. Cas. 265, per Sir H. J. Fust; 2 Roberts., Ec. R., 110, S. C. See in re Trevanion, 2 Roberts., Ec. R., 311.

Bryan v. White, 2 Roberts., Ec. R., 315.

Smith v. Harris, 1 Roberts., Ec. R. 262; in re Bailey, 1 Curt. 914; ante, § 963.

In re Clark, 2 Curt. 329. See also in re Blair, 6 Ec. & Mar. Cas. 528. 7 In re Cope, 2 Roberts., Ec. R., 335.

8 Countess de Zichy Ferraris v. Marq. of Hertford, 3 Curt. 493, per Sir H. J. Fust; in re Lady Durham, id. 57; in re Dickins, id. 60; in re Willerford, id. 77; Habergham v. Vincent, 2 Ves. 204; in re Edwards, 6 Ec. & Mar. Cas. 306; in re Ash, 1 Deane, Ec. R. 181; in re Lady Pembroke, id. 182. See ante, § 937.

thus constantly been set up by subsequent attested codicils which have confirmed them.' Where, however, a testator at the foot of a valid will of 1833 made two codicils prior to the 1st of January, 1838, and five more after that date, the whole seven being unattested, and then in 1847 duly executed an eighth codicil on a separate paper, which he described as "a codicil to his will," the Court held that the five unattested codicils, which bore date after the passing of the New Will Act, were not rendered valid by the eighth codicil, as they formed no part of the testator's will, legally and technically speaking.'

§ 976. With respect to § 11, which excepts from the operation of the Act, all wills of personal estate made by "any soldier being in actual military service, or any mariner or seaman being at sea," it has been determined, first, that the word "soldier" includes all officers and common soldiers in the employ of the East India Company, as well as those in her Majesty's service; secondly, that the privilege, as to soldiers, is confined to such as are actually on an expedition; and consequently that officers quartered with their regiments in barracks, or otherwise forming part of a stationary force, whether at home or in the colonies, are not within the exception; thirdly, that the Act applies to seamen in the merchant, as well as in the Queen's service, and that the purser of a man-of-war is included in the term "seamen;" fourthly, that the exception extends to a naval captain on board a Queen's ship in a river, provided he be actually engaged in a naval expedition ;* but lastly, that it does not extend to an admiral in command of a

7

42;

1 Aaron v. Aaron, 3 De Gex & Sm. 475; Utterton v. Robins, 1 A. & E. 423; Gordon v. Ld. Reay, 5 Sim. 274; Doe v. Evans, 1 C. & M. 3 Tyr. 56, S. C.

4

See also Johnson v. Ball, 5

* See Herbert v. Herbert, 1 Deane, Ec. R. 10.

* Drummond v. Parish, 3 Curt. 522, 542; in re Hill, 1 Roberts. 276; White v. Repton, 3 Curt. 818; Bowles v. Jackson, 1 Ec. & Mar. Cas. 294.

'In re Milligan, 2 Roberts., Ec. R., 108.

7 In re Hayes, 9 Curt. 338.

In re Admiral Austen, 3 Roberts., Ec. R., 611.

fleet in the colonies, who lives with his family on shore at his official residence.'

§ 977. Under the Statute of Frauds, the express revocation of a will devising freehold lands or tenements, if effected before the 1st January, 1838, must be proved, either by the production of some subsequent will or codicil inconsistent with the former, or of some other writing declaring the revocation, and signed in the presence of three witnesses; or by evidence of burning, tearing, cancelling, or obliterating the will by the testator, or in his presence, and by his direction and consent. It is observable that this part of the statute requires that the instrument of revocation should be signed by the testator in the presence of the witnesses, though this was not necessary in executing the will itself; but it does not require, as in the execution of a will, that the witnesses should sign in the testator's presence.*

§ 978. This statute left the law of implied revocations untouched; and, consequently, a devise of real estate by an unmarried man, equally with his will of personalty, was, previously to the New Will Act, revoked by marriage and the birth of a child, whether the birth took place in the testator's lifetime or after his decease." When this rule was first introduced it was thought to be founded on an implied intention of the testator to revoke the will in consequence of the altered circumstances of his family, and, consequently, the Courts were in the habit of receiving parol evidence of his declarations, or of other circumstances tending to show what his real intention was, and thus to rebut the presumption of revocation. Moreover, the rule was considered inapplicable, unless the will disposed of the whole estate, and left the wife and

1 Lord Euston v. Lord Hy. Seymour, cited 2 Curt. 339, and recognised in Drummond v. Parish, 3 Curt. 530.

2 Gr. Ev., § 273, in part.

329 Car. 2, c. 3, § 6; 7 Will. 3, c. 12, § 3, Ir.

Onions v. Tyrer, 1 P. Wms. 343.

5 Overbury v. Overbury, 2 Show. 242; Christopher v. Christopher, 4 Burr. 2171 n., 2182 n.; Doe v. Lancashire, 5 T. R. 49.

See Fox v. Marston, 1 Curt. 494; Johnston v. Johnston, 1 Phillim. 447, 469, 473.

child entirely without provision.' Subsequently, other views were entertained; the doctrine of implied intention was rejected; and the rule was declared to be the consequence of a condition tacitly annexed by law to the execution of a will, that, in the event of the testator's subsequent marriage and the birth of a child, the will should ipso facto become void.' No evidence of intention was therefore admissible to rebut the revocation, and keep the instrument alive, and the question of provision or of non-provision for the wife and child became wholly immaterial. This doctrine, in the few cases to which it can still apply, is now undoubted law, every will being regarded as absolutely revoked when the testator has subsequently married and had issue.*

§ 979. Returning to the acts of revocation mentioned by the statute, it is not intended to discuss them at any length, because the new system having now been in operation for a considerable number of years, it is not probable that questions relating to the revocation of wills under the old system will in future often be raised. Two cases, however, may be noticed, which strikingly illustrate the defects of the former law. A testator, much under the influence of his niece, who lived with him as housekeeper, left her by his will some freehold and copyhold estates. The parties frequently quarrelled, and on one occasion, when irritated, the testator threw the will upon the fire, but the devisee rescued it without his knowledge, at which he expressed his displeasure when informed of it. The envelope was partially burnt, but the will itself was not so much as singed. The devisee kept it till after the testator's death, when two actions of ejectment were

1 Kenebel v. Scrafton, 2 East, 530, 541; Brady v. Cubitt, 1 Doug. 39, 40; Ex parte Lord Ilchester, 7 Ves. 348.

* Marston v. Roe d. Fox, 8 A. & E. 14. In this case, which was decided by all the judges, except Lord Denman, Tindal, C. J., thus lays down the law" In the case of the will of an unmarried man having no children by a former marriage, whereby he devises away the whole of his property which he has at the time of making his will, and leaves no provision for any child of the marriage, the law annexes the tacit condition that subsequent marriage and the birth of a child operates as a revocation." p. 60. See also Israell v. Robson, 2 Moo. P. C. R. 51, 63, 64; Walker v. Walker, 2 Curt. 854; Matson v. Magrath, 1 Roberts. 680. 3 See cases in last note. In re Cadywold, in Ct. of Prob., per Sir C. Cresswell, 2nd March, 1858, MS.

brought against her by the son-and-heir of the testator. In the first, by which the lessor of the plaintiff sought to recover the freehold property, the Court held that there had been no revocation sufficient to satisfy the Statute of Frauds, which rendered necessary a burning of the will itself, at least to some extent;' but in the second, which related to the copyhold estate, and which, consequently, was not governed by the statute, the revocation was adjudged to be complete, because the revocation at common law only required evidence of intention, and such evidence might be found in an imperfect act, or a mere attempt.' The result, of course, was, that the lessor of the plaintiff failed in the first case, but succeeded in the last.

§ 980. A law that could warrant decisions thus flagrantly inconsistent was in no slight want of amendment; and the New Will Act, by placing the revocation of all wills on the same footing, has effectually remedied this particular evil. The Act further provides, with respect to revocation, "that every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor or administrator, or the person entitled, as his or her next of kin, under the Statute of Distributions; "" and "that no will shall be revoked by any presumption of an intention, on the ground of an alteration in circumstances;" and "that no will, or codicil, or any part thereof shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner hereinbefore required,' or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, 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

1 Doe v. Harris, 6 A. & E. 209; 1 N. & P. 405, S. C.

2 Doe v. Harris, 8 A. & E. 1, 12.

3 7 Will. 4 & 1 Vict., c. 26, § 18.

Ante, § 964.

§ 20.