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of, or opposite to, a memorandum written on some part of the will referring to such alteration.
A will, when once revoked, can now only be revived by re-execution, or a codicil showing an intention to revive it; but a revival of a will operates only as a reversal of the act of revocation, and therefore only restores it to the state in which it was at the time of the revocation, unless an intention to the contrary shall be shown; and, consequently, if a legacy originally given by a revoked will had been previously revoked by a distinct act, a revival of the will would not of itself revive such legacy.'
Marriage, either of a man or woman, is, ipso facto, a revocation of any will previously made, unless it should be an appointment of real or personal estate, which would not, in default of such appointment by the testator, pass to his representatives ; but no will or codicil shall be otherwise revoked, except by another will or codicil, or some writing executed as a will, 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."
A legacy even of a debt to the debtor lapses by the death of the legatee in the testator's lifetime, even though the legacy should be given to the legatee, his executors, administrators, and assigns ; and such rule equally applies to a devise of real estate, though words of limitation are added. But if a testator desires to benefit the legatee, even though he should die in his own lifetime, he may carry out his intention by expressly substituting his issue, representatives, &c., and directing, that, in the event of the principal legatee dying in his lifetime, such
substituted legatee or devisee shall be entitled to the benefit intended for him.
An exception to the rule, with reference to the lapse of legacies, has been introduced by the recent act, in favour of the issue of the testator; and now, in cases where an interest in real or personal estate is given to any issue of the testator, such interest, if not determinable with the life of the legatee or devisee, shall not lapse by his death in the testator's lifetime, if such legatee shall leave any issue living at the testator's decease; in which case, such devise or bequest shall take effect as if the legatee had died immediately after the testator, unless a contrary intention shall appear by the will.
A similar exception has been made in favour of devisees in tail, whose devises shall not fail, by their death, in the testator's lifetime, if they leave issue inheritable under the entail, living at the testator's decease, unless a contrary intention shall appear by the will.
When the payment of a legacy is to be postponed till some definite period after the testator's decease, great care should be taken to express clearly whether it is his intention that the legacy should be vested from the time of his decease, or that the right to it should depend upon the circumstance of the legatee being alive at the period mentioned for payment. An express declaration that the legacy shall be a vested interest, notwithstanding the postponement of payment, or that the title of the legatee shall de. pend upon his attaining the particular age, or being alive at the particular period, according to the wishes of the testator, is the safest course to adopt, and will prevent any questions on the subject.
Where there is no direct gift to the legatee, but a direction for payment at a particular period, as, for instance, the death of a tenant for life, the attainment by
*Elliot v. Davenport, 1 P. Wms. 83 ; Vaux v. Henderson, I J. and W: 388.
the legatee of a particular age, or the period when the youngest of a class of legatees shall attain a certain age, such a direction has been considered a sufficient indication of the intention of the testator, that the legatee's title is to depend upon his living to such period; and, consequently, in such cases his representatives would not be entitled, if he should die before attaining such period.
Where the testator attaches words of condition to a gift of a legacy, of which the payment is postponed, the legatee has not a vested interest till the arrival of such period. It is sometimes difficult to ascertain whether the language used by a testator indicates an intention to make the legacy conditional, or simply to postpone the payment. The leaning of the courts, however, is in favour of vesting; and they will, as far as the intention of the testator is not opposed to such a construction, so construe a will as to give vested interests as early as possible. The following words have been considered words of condition, indicating an intention to suspend the vesting, as well as the payment, “provided he at. tains,” or “ if he attains," some particular age, “at such time as the sale should be completed, in case they should be then living." Such language ought never, therefore, to be used, unless it is intended to benefit the legatee, only on such an event.
A few only of the most important alterations recently made in the law of wills have been noticed above ; and the reader's attention is therefore directed to a fuller statement of the recent act given in a preceding page previously referred to.
A copy of a paper, which was extensively circulated by government at the time the recent wills act passed, is given below, as containing a concise reference to some of the principal alterations effected by that act.
Batsford v. Kebell, 3 Ves. 363; Sansbury v. Read, 12 Ves. 75; Watson v. Hayes, 9 L. J. N. S. Ch. 49.
· Elwin v. Elwin, 8 Ves. 546.
The principal Regulations contained in the Act
(Ist Victoria, c. 26) for Amending the Laws with respect to Wills, which took effect on the 1st day of January 1838.
No will made by any person under the age of twenty-one years will be valid.-Sect. 7.
The new statute does not alter the law as to the wills of married women.-Sect. 8.
The Regulations to be observed in making a will or codicil are as follows:
1. The will or codicil must be signed at the foot
or end thereof by the testator. 2. If he does not sign, it must be signed by
some other person in his presence, and by his
direction. 3. The signature must be made or acknowledged by the testator, in the presence of two or
more witnesses present at the same time. 4. The witnesses must attest and subscribe the will or codicil in the presence of the testator.
-Sect. 9. Appointments by will, under a power, are made subject to the above mentioned regulations.-Sect.
The testator's marriage is a revocation of this will, (excepting in certain cases of exercise of powers.) Sect. 18.
The revocation of a will or codicil may be by any one of the following means :
1. By a will or codicil executed in the manner
above mentioned. 2. By a writing declaring the intent to revoke,
and executed as a will. 3. By burning, tearing, or destroying of the will
by the testator, with intent to revoke, or by some person in his presence, and by his di
rection Sect. 20. Alterations made in wills must be executed in like manner as wills.
N.B.-- The signature of the testator, and sub
scription of witnesses, may be made in the margin, or opposite, or near to, the alteration, or at the end of a memorandum, on the will,
referring to the alteration. Sect. 21. Residuary devises in wills will include (unless a contrary intention appear in the will) estates comprised in lapsed or void devises. Sect. 25.