the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment, mentioned in such will. (1) Creditor be admit ted a witness. XVI. And be it further enacted, that in case by any will any real or personal estate shall be charged with any debt or attesting to debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor notwithstanding such charge shall be admitted a witness to prove the excution of such will, or to prove the validity or invalidity thereof. XVII. And be it further enacted, that no person shall, on Executor to be admitted a witness. thereof. revoked by account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity XVIII. And be it further enacted, that every will made by Will to be a man or woman shall be revoked by his or her marmarriage. riage (m) (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.) No will to XIX. And be it further enacted, that no will shall be revoked be revoked by any presumption of an intention on the by pre sumption. ground of an alteration in circumstances. (n) No will to be revoked but by another will or codicil, or by a writing executed like XX. And be it further enacted, that no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will of codicil executed in manner herein before 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 the same. (0) a will, or by destruction. XXI. And be it further enacted, that no obliteration, interlineation, or other alteration made in any will, after the execution (1) See infra, pp. 1053, 1054. (m) See infra, pp. 201, 202. (n) See infra, p. 204 et seq. No alteration in a have any effect un less exe thereof, shall be valid or have any effect except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin, or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will. (p) cuted as a will. No will re voked to be otherwise than by reexecution revived XXII. And be it further enacted, that no will or codicil or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the reëxecution thereof, or by a codicil executed in manner herein before required, and showing an intention to revive the same; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. (9) or a codicil to revive it. not to be rendered inoperative sequent by any sub XXIII. And be it further enacted, that no conveyance or other act made or done subsequently to the execution of A devise a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. (r) convey ance or act. A will shall be conspeak from of the tes strued to the death XXIV. And be it further enacted, that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. (8) XXV. And be it further enacted, that, unless a contrary intention shall appear by the will, such real estate or in- A residuterest therein as shall be comprised or intended to be shall in tator. ary devise (p) See infra, p. 144 et seq. (r) See infra, p. 1330. (9) See infra, p. 205 et seq. (s) See infra. pp. 220, 221, 1331, 1436. clude estates com prised in lapsed and void devises. comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will. A general devise of the testator's lands shall in hold and leasehold XXVI. And be it further enacted, that a devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any clude copy- other general devise which would describe a customary, copyhold, or leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copyhold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will. as well as freehold lands. include estates over which the testator has a gen ment. XXVII. And be it further enacted, that a general devise of A general the real estate of the testator, or of the real estate of the gift shall testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or eral power real estate to which such description shall extend of appoint- any (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will. A devise without XXVIII. And be it further enacted, that where any real estate shall be devised to any person without any words any words of limitation, such devise 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 in such real of limita tion shall be con estate, unless a contrary intention shall appear by the strued to will. pass the fee. The words "die without issue," 66 or die leaving issue," shall strued to without be con mean die without issue living at the XXIX. And be it further enacted, that in any devise or bequest of real or personal estate the words "die without issue," or or "die without leaving issue," or "have no issue," or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise: Provided, that this act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue. death. (t) No devise to trustees or execu cept for a term or presenta XXX. And be it further enacted, that where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple or other torsex the whole estate or interest which the testator had to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication. power tion to a church, shall pass a terest. (u) chattel in Trustees under an unlimited where the endure beyond the devise trust may XXXI. And be it further enacted, that where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had life of a person beneficially entitled for life, to take the fee. (t) See infra, p. 1106, note (w). (u) See infra, p. 690. power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied. shall not XXXII. And be it further enacted, that where any person Devises of to whom any real estate shall be devised for an estate estates tail tail or an estate in quasi entail shall die in the lifetime of lapse. the testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. Gifts to other issue who leave issue living at the tes tator's XXXIII. And be it further enacted, that where any person being a child or other issue of the testator to whom any children or real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of death shall the testator leaving issue, and any such issue of such pernot lapse. son shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. (x) extend to before 1838 (y) nor to autre vie every XXXIV. And be it further enacted, that this act shall not Act not to extend to any will made before the first day of January, wills made one thousand eight hundred and thirty-eight, and that will reëxecuted or republished, or revived by estates pur any codicil, shall for the purposes of this act be deemed to have been made at the time at which the same shall be so reëxecuted, republished, or revived; and that this act shall not extend to any estate pur autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight. of persons who die before 1838. Act not to extend to Scotland. Act may XXXV. And be it further enacted, that this act shall not extend to Scotland. XXXVI. And be it enacted, that this act may be be altered amended, altered, or repealed by any act or acts to be passed in this present session of parliament. this ses sion. (x) See infra, p. 1221 et seq. (y) See infra, pp. 129, 203, 216. |
