CONVEYANCE OF SCHOOL HOUSE TO And subject thereto, to the intent that or such of them as shall be competent to act in the execution of the trusts of the said charity, and subject as aforesaid: To the SCHOOL BOARD. intent and purpose that the trustees or trustee for the time being of the said charity may have the exclusive use of the said schoolhouses, for the purposes of their trust, on every Sunday in each year, and also between the hours of 9 and 9.45 in the morning of every Friday in every year, and subject as aforesaid: To the intent and purpose that the said schoolhours on every houses and premises may be deemed to be a school provided Friday. by the Board within the meaning of the Elementary Education Act, 1870. trustees of the charity may have use of premises on Sundays and during certain And subject thereto, that same may be a school provided by board within the Act. IN WITNESS, &c. WILLS. of a will. THE principal characteristic of a will is, that it is Characteristics ambulatory and revocable, and has no operation during the life of the testator. The form of the instrument is not of importance, so long as its terms are testamentary (a); but if the instrument is in the form of a deed, the circumstance of the grantor reserving a life interest to himself, with a general power of revocation, does not make it testamentary (b). subject. It is proposed in this Dissertation to consider the Division of the subject of wills under the following heads :-I. What property can be disposed of by will, who may make a will, how a will must be executed and attested, and what amounts to a revocation of a will. II. As to the time from which a will speaks, what property passes under a general devise or bequest, and what words are sufficient to carry the fee simple. III. In what cases the trustees take the legal estate under a devise, and as to the extent of their estate. IV. Legacies, general and specific, vested and contingent, gifts to children, next of kin, legal representatives, &c. V. Lapse. VI. For what period the vesting of property given by will may be postponed, or income may be accumulated, having regard to the rule against perpetuities and the Thellusson Act. VII. Gifts to charities. VIII. Conversion. IX. In what cases precatory words create a trust. X. The effect of a charge of debts and the implied power of sale thereby created. XI. Descent, and the mode in which the personal estate of an intestate (a) See Williams on Executors, Pt. 1, Bk. ii. c. 2, s. 3. (1) Tompson v. Browne, 3 M. & K. 32. What property may be disposed of by will. As to copyholds. Estates pur autre vie. is distributed. And XII. The stamp duties on probates and letters of administration, and under the Legacy and Succession Duty Acts. I. What property may be disposed of by will, who may make a will, how a will must be executed and attested, and what is a revocation of a will. The Act 1 Vict. c. 26 (commonly called the Wills Act) enables every person to dispose by will of all real and personal estate which he shall be entitled to, at law or in equity, at the time of his death, and which, if not so disposed of, would devolve upon his heir-atlaw or customary heir, or if he became entitled by descent upon the heir-at-law or customary heir, of his ancestor, or upon his executor or administrator, including estates pur autre vie, contingent, executory, or other future interests, and rights of entry for conditions broken (c). A devisee of copyholds must pay the fees and fines on his admission as if he were a surrenderee; and the testamentary disposition should be entered on the court rolls (d). An estate pur autre vie of a freehold nature not disposed of by will is assets by descent in the hands of the heir, if it comes to him by reason of special occupancy, as in the case of freehold land in fee simple; and where there is no special occupant, it goes to the executor or administrator of the party that had the estate thereof by virtue of the grant, and an estate pur autre vie coming to an executor or administrator, either by reason of a special occupancy or by virtue of the Act, is assets in his hands, to be applied and distributed in the same manner as the personal estate of the testator or intestate (e). In a case where an estate pur autre vie was limited to a devisee and his heirs, and the devisee died without (c) Sect. 3. A person in possession of land without other title has a devisable interest. Asher v. Whitlock, L. R. 1 Q. B. 1. (d) Sects. 4, 5. See 4 & 5 Vict. c. 35, s. 89. (e) Sect. 6. heirs, it was held that, under the above section, the estate went to his executors (ƒ). Previously to the Wills Act an infant could not dispose Infants. by will of real estate; but with respect to personalty a female might make a will at twelve and a male at fifteen, if proved to be a person of discretion (g). Since the Wills Act no will of an infant is valid (h).` power of woman before Between the passing of the Wills Act and the Testamentary Married Women's Property Act, 1882, the position of married a married woman as regards the power of disposition Act of 1882. by will was as follows:-She could dispose by will of real or personal property belonging to her for her separate use, whether acquired before or after the date of the will, and could exercise a testamentary power of appointment, whether vested in her then or afterwards conferred on her, and she could, if an executrix, appoint an executor to carry on the representation (¿). But as regards property not belonging to her for her separate use, she was under an absolute incapacity to make a will. Thus, if she made a will during coverture and then became a widow, the will would not pass property acquired by her during the widowhood (k). tary powers Since the passing of the Married Women's Property Her testamenAct, 1882, a woman married on or after the 1st since that Act. January, 1883, has the same testamentary power over all property belonging to her during the coverture, and a woman married before that date has the same testamentary power over property, her title to which in possession, reversion, or remainder, accrues after that date and during her coverture, as if she were a feme sole. But, according to a recent decision (1), a will made by a married woman since 1882 does not pass property acquired by her after the determination of the coverture. A married woman can act as an (f) Reynolds v. Wright, 25 Beav. 100; on appeal, 2 De G. F. & J. 590. (9) Bishop v. Sharp, 2 Vern. 469. (h) Sect. 7. (i) 2 Bright's H. & W. 66; 1 (1) Re Price, 28 C. D. 709. Traitors and felons. Lunatics, &c. How a will made before the Wills Act been executed. must have Under Wills Act how will must be executed. Powers of appointment by writing under hand and seal. executrix under any will which comes into operation on or after the 1st January, 1883. Traitors and felons are incapacitated from alienation, while undergoing their punishment, but as the incapacity ceases at death, they may, it is apprehended, dispose by will of real or personal estate (m). Lunatics, idiots, and other persons incapacitated from disposing of property by deed, are equally incapable of making a will. Under the Statute of Frauds it was necessary that a devise of freehold estates should be attested by three credible witnesses; but until the Wills Act a will of copyholds or of personal estate required no attestation, and even if the testator's signature was wanting, the testamentary instrument was supported, if it was reduced into writing by the testator's direction and in his lifetime (n). But since the Wills Act every will, whether of real or personal property, must be in writing and signed at the foot or end thereof by the testator or by some other person in his presence and by his direction, and such signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and the witnesses must attest and subscribe the will in the presence of the testator, but no form of attestation is necessary (o). And an appointment made by will in exercise of any power must be executed in like manner, and such execution is sufficient, notwithstanding that some additional or other form of execution or solemnity may be required by the instrument creating the power (p). Certain exceptions are, however, allowed as regards the wills of soldiers and sailors (q). Where a power of appointment is to be exercised by a writing under the hand and seal of the donee, it cannot be exercised by a will of the donee, executed according to the formalities of the Wills Act, if it is not also sealed (r); and a power of appointing by a writing (m) 33 & 34 Vict. c. 23; 1 Jarm. on Wills, 4th Ed., 44. (n) 1 Jarm. on Wills, 98. (0) Sect. 9. (p) Sect. 10. (7) Sects. 11 and 12. See also 28 & 29 Vict. c. 72. (r) West v. Ray, Kay, 392; Taylor v. Meads, 34 L. J. Ch. 203. |