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"Pour être capable de recevoir par testament, il suffit d'être conçu à l'époque du décès du testateur. "Néanmoins la donation ou le testament n'auront leur effet qu'autant que l'enfant sera né viable.” (a)

But if between the time of making the will and of the death of the testator, or of the condition happening, the law becomes changed, and that change causes an incapacity, the previous institution would not be thereby prejudiced. Thus if the husband, being domiciled in Holland, had made the bequest in favour of his wife, and had afterwards changed his domicile to Utrecht, but had subsequently resumed that in Holland, where he died, the will would remain valid. (b)

Where the will of a bastard was valid at the time it was made according to the law which then prevailed in the place in which it was made, an ordinance was afterwards established taking away the power of testing by bastards. Everard holds that the will was valid. "Sufficit quod condens testamentum, sit tempore quo condidit ad testandum habilis, et idoneus, et non requiritur quod apud eum sit, tempore decessûs, ejusdem testamenti factio." (c)

In England, it has been held that a will devising lands to charitable uses having been made before, but the testator not having died till after the Statute of Mortmain had been passed, such devise of lands was not affected by that statute. (d)

(a) Art. 906.

(b) Inst. lib. 2, tit. 19. Dig. lib. 28, tit. 5, 1. 6, § 2; 1. 49, §1; 1. 50, 59, § 4. Vinnius, ad § 4, Instit. lib. 2, tit. 19. Rodenburg, de Jure Conj. Tr. Prælim. de Stat. Divers. tit. 2, part 2, alt. c. 4, n. 1. Resp. Jurisc. Holl. part 2, consil. 173, quæst. 1. Carpz. Def. For. part 2, constit. 14, def. 3, Barry, de Success. lib. 1, tit. 8, n, 41. Voet, lib. 28, tit. 5, n. 22.

(c) 2 Boullen. 170.

(d) Ashburnham v. Bradshaw, 2 Atk. 36. Att. General v. Lloyd, 3 Atk Att. General v. Downing, 2 Amb. 549. Willet v. Sandford, 1 Ves. 178.

551.

But a bequest of personalty by will dated prior to the 9 Geo. 2, c. 36, to be laid out in lands for a charity, but which was afterwards confirmed by a codicil dated after the statute, was held to be void, because the codicil operates as a new will. (a)

A testator by will made before the Statute of Mortmain, devised a real estate to three trustees, for charitable uses; and by a codicil made after the statute he altered the disposition which he made by his will of part of his real estates, by postponing one of his nephews and his issue. He then devised the estate which he had given him by his will, and devised it over again, and also a piece of pasture, to the same trustees, and to two others as additional trustees, upon the same charitable trusts he had given it by his will. The question arose, whether the codicil revoked the will, and operated as a new devise? If it did, then the devise to the charity would be void by the Statute of Mortmain. Lord Hardwicke held, that as to the additional land given by the codicil, the devise was void by the Statute of Mortmain, it being devised only by the codicil which was subsequent to the statute. But as to the other land, he held, that neither the beneficial nor trust estate was revoked, as well from the nature of the instrument as the words of it. The beneficial interest is the same in the will and in the codicil. The codicil is part of the will, and not a revocation of the instrument itself, but only a few particular bequests in it. This is the nature of a codicil, according to Swinburne, and here the testator says, the codicil was by him intended to confirm his will, and is therefore to be made part of it. (a)

The statute of 6 Geo. 4, c. 79, which came into operation on the 27th of June, 1823, enacted that the currency of Great Britain should be and become the currency of

(a) Att. General v. Heartwell, 1 Amb. 450. Willet v. Sandford, 1 Ves. 178.

the whole united kingdom of Great Britain and Ireland, and that receipts, payments, gifts, grants, &c., matters and things whatsoever relating to money, or involving or implying the payment of money made, &c., in any part of the united kingdom, should be made, &c., according to such currency of Great Britain, so becoming the currency of the united kingdom, and not according to any currency, or as money hath been or may be valued in any particular part of the united kingdom, and that gifts, &c., shall be taken to be made according to such currency of Great Britain, and in reference to money of the value and description circulating in Great Britain, unless the contrary be proved to have been the intention of the parties concerned. A testator domiciled in Ireland made his will, charging his lands in Ireland with an annuity. The will was made prior to the commencement of the act, and the question arose whether this annuity was to be computed in Irish or in English currency. It was held that the bequest of the annuity, though not perfected till the death of the testator, was a gift made at the time of making the will, and the gift being prior to the 6 Geo. 4, c. 79, that the annuity was to be computed in Irish currency. (a)

It was held by the House of Lords, that the Irish statutes declaring the lands of Papists descendible as in gavelkind, notwithstanding a devise, avoided a will, although it was made before those statutes were passed. This decision, however, was founded on the peculiar language of the statutes which expressly declared that all the lands of which any Papist then, or at any time thereafter, was seised, and which were not sold, &c., in his lifetime, for a valuable consideration, should descend in gavelkind, notwithstanding any grant, settlement, or disposition by will or otherwise. (b)

(a) Holmes v. Holmes, 1 Russ. and M. Rep. p. 660.

(b) Burke v. Morgan, 5 Bro. P. C. 365.

An alteration in the status or condition of the person between the time of making the will and the death of the testator, will not prejudice the devisee: "Solemus dicere, media tempora non nocere, ut puta civis Romanus hæres scriptus, vivo testatore factus peregrinus, mox civitatem Romanam pervenit: media tempora non nocent." (a)

(a) Dig. lib. 28, tit. 5, l. 6, § 2.

CHAPTER IX.

TESTAMENTS-FORMS of.

Testaments.-Comitia Calata.-Per æs et libram.-Forms under the prætors edicts.-The Constitutions of emperors.-Division of Testaments.

ONE of the definitions of a testament given in the civil law, although it has not obtained the approbation of all commentators, may be so understood as to describe its distinguishing properties, and that which was essential to its validity, "Voluntatis nostræ justa sententia, de eo, quod quis post mortem suam fieri velit." (a) It imports such a declared disposition of the testator's property to take effect after his death as is authorized by law, and made with the forms and solemnities which the law prescribed. (b)

Vinnius gives a definition which he considers more appropriate to this mode of disposition. "Testamentum est suprema contestatio in id solemniter facta, ut, quem volumus, post mortem nostram habeamus hæredem." "(c)

The forms and solemnities on which the validity of the testament depends, the different species of testaments, and the nature of the codicil, will be the subject of the following chapter.

(a) Dig. lib. 28, tit. 1, 1. 1.

(b) Vinnius, ad Inst. lib. 2, tit 10, Lauterbach, ad Dig. lib. 28, tit. 1. Hoppius, ad Inst. h. lib. and tit. Vasq. tom. 1, p. 5.

(c) Vinn. ib. p. 271.

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