So, if a will in writing be gnawn in pieces by rats; if by collecting of the pieces the particular bequest can be known, it will be good. R.

Al. 2.

And also, if it cannot be known to a stranger, if the jury finds the gnawing to be after the death of the testator. Al. 2.

So, if a will in writing be burnt or destroyed after the death of the testator, it is not avoided. R. Al. 55.

Otherwise, if it was destroyed or lost before his death. R. Al. 2. 55. (k)

(D 2.) What not.

But if a man speaks his will, and another, without his direction or privity, reduces it into writing in the life-time of the testator; this is not a will in writing. Dy. 72. in marg. R. Al. 54. Cont. 4 Leo. 104.

-

(k) 1. By 2 & 3 Ann. c. 4. s. 20., all memorials of wills that shall be registered, of any lands in the West Riding of the county of York, within the space of six months after the death of every respective devisor, dying in England or Wales, or within the space of three years after the death of every devisor dying abroad, shall be as valid and effectual against subsequent purchasers, as if the same had been registered immediately after the death of such devisor. 2. By s. 21., in case the devisees, by reason of the contesting of such wills, shall be disabled to exhibit a memorial for the registry thereof within the times before limited; then and in such case the registry of the memorial within the space of six months next after the attainment of the will, or a probate thereof, or removal of the impediment, shall be a sufficient registry within the meaning of the act. - 3. By 6 Ann. c. 55. s. 14., the same provision is made for registering wills of lands in the East Riding of Yorkshire, as in the above act. 4. And by s. 15., in case the devisee, by reason of the contesting of such will, or other inevitable difficulty, without his wilful neglect or default, shall be disabled to exhibit a memorial for a registry thereof within the times limited, and that a memorial shall be entered in the office, of such contest or other impediment, within six months after the decease of the devisor who shall die within the kingdom of Great Britain, or within three years after the decease of such person who shall die beyond sea; then and in such case the registry of the memorial of such will, within six months after the attainment of such will, or a probate thereof, or removal of the impediment shall be a sufficient registry within the meaning of this act. 5. By 7 Ann. c. 20. s. 8., the same provision is made for registering wills of lands in the county of Middlesex, as in 2 & 3 Ann. 6. And by s. 9., if the devisee by reason of the concealment or suppression, or contesting such will, or other inevitable difficulty, shall be disabled to exhibit a memorial for the registry thereof, within the times limited, and that a memorial shall be entered in the office of such contest or other impediment, within two years after the death of such devisor, dying in Great Britain, or four years after the death of such person dying beyond sea; then and in such case the registry of the memorial of such will, within six months after its attainment, or a probate thereof, or removal of the impediment, shall be a sufficient registry within the meaning of the act; provided that in case of any concealment or suppression of any will or devise, any purchaser shall not be disturbed or defeated in his purchase, unless the will be actually registered within five years after the death of the devisor.-7. By 8 G. 2. c. 6. s. 15., the same provision is made for registering wills of lands in the North Riding of Yorkshire, as in the st. 2 & 3 Ann.-8. And by s. 16., in case the devisee, by reason of the contesting such will, or other inevitable difficulty, shall be disabled to exhibit a memorial within the times limited and that a memorial shall be entered in the office, of such contest or impediment, within six months after the decease of such devisor, dying in Great Britain, or three years after the death of such person dying beyond sea; then and in such case, the registry of the memorial of such will within six months after its attainment, or a probate thereof, or removal of the impediment, shall be a sufficient registry within the meaning of the act.-9. And by s. 17., in case of any concealment or suppression of any will or devise, no purchaser or purchasers for valuable consideration, shall be defeated or disturbed in his or their purchase, nor any judgment or statute creditor shall be defeated of their debts, by any title made or devised by such will, unless the will be actually registered within three years after the devisor.

Though

Though the effect of it be afterwards shown to him, and he does not disallow it. R. Dy. 72. a in marg. (1)

Though he at another time sends for B. to write his will, but does not then give him any directions; but he writes that which he is informed the testator before declared for his will. Al. 54.

So, if a man writes his will, but says that he will alter it, and dies before alteration or any publication; it shall not be his will. R. Mo. 874. 5.

So, if a man makes his will, and thereby devises to A. and his heirs, and afterwards, upon the death of A. says to his heir, that he shall have all the land devised to A.; without a new publication it is not a good devise, because it is not in writing. R. Pl. Com. 345. b.

So a letter or other paper cannot be used to explain the testator's intent. 1 Sal. 232.

So, if the instruction be to give for life, and the devise written is in fee; it shall be void for the whole. R. per 3 J. Fenner cont. that it shall be good for life. Mo. 356.

So, if the instruction was, to devise to A. upon condition, and the devise be written to A. but before the condition written, the testator dies; the devise shall be void. 3 Co. 31. b.

So, by the st. 9 & 10 W. 3. 41. No will of a seaman contained in the same instrument with a letter of attorney shall be good.

(D 3.) Codicil, what.

A codicil is that which contains any addition to, or explanation of a will.

The codicil is part of the will.

And may be made before, or after (m) the will.

And there may be several codicils to the same will. Sho. 549.

(E 1.) How a testament shall be erecuted.

After the st. 32 & 34 H. 8. It it was sufficient that a will was put in writing by the testator, or by another with his privity and direction, without any other execution. Dy. 53. b.

So, if notes or instructions were taken of the testator for his will, and it was reduced into form pursuant to such instructions in the life of the testator, though it was never read or shown to him, it was sufficient. R. Dy. 72. a.

1 Sid. 315.

If it was published, though in loose sheets. So, if notes were written for the disposition of part of his estate, it was good for so much. Dy. 72. a. in marg.

But if a disposition for life was written in the life-time of the testator, but not of the remainder, &c. it was void for the whole. Dy. 72. a. in marg.

But

now, by the st. (n) 29 Car. 2. 3. All devises of (o) any lands or

tenements

See that a devise bad in the original, cannot be made good by subsequent events.

Lofft. 161.

-

(m) 1. As to the respect in which it differs from a second will, see 1 Ves. 187. 2. That it is to be taken as part of the will, see 1 Ves. J. 407. 497. 3 Ves. 110.

4 Ves. 610. 1 T.R. 201.

(a) The construction of this statute is the same in equity as at law. 1 Ves. J. 16. () 1. All devises by which terms for years, or other interests arising out of lands

are

tenements shall be in writing signed by the party so devising, or by some other in his presence and by his express directions, and shall be attested and subscribed in the presence of the devisor by three or four credible witnesses. (p)

And therefore, every will, not (q) signed and attested (r) as the statute directs, is void.

So, every devise and bequest, not so signed and attested.

As, if a testator, after the execution of his will, adds a new clause or bequest, and does not execute his will de novo.

So, if a man by a will well executed, devises to B. and his heirs, and then A. dies, and the testator afterwards makes a new publication of his will and declares that B. son and heir of the first devisee (being of the same name with his father, and having a legacy by the

are created, or by which powers to sell or charge lands are given, are within the statute. 2. And therefore where an estate is devised for a term of years, or a sum of money is given originally and primarily out of land, a will containing such a charge, must be executed in the manner prescribed by the statute; because it is the same as a devise of the land, since the term of years is an interest in the land; and money thus given can only be raised by a sale of the land 2 Atk. 272. 2 Ves. 179. 6 Cruise, 82. 3. To which rule, however, there is one exception; for where a will duly executed according to the statute, contains a general charge on lands in aid of the personal estate, it will extend to legacies given by a subsequent will or codicil, not duly attested. 1 Eq. Abr. 409. 2 Atk. 268. 6 Cruise 83. Vide 3 Ves. 327. 6 Ves. 560. 1 V. & B. 4. Which exception is founded upon the principle, that a charge of debts or legacies amounts to no more than making the real estate auxiliary to the personal; or in other words directing it to be converted into and applied as part of the testator's

446.

personal estate, and in aid thereof. Fearne's Op. 434. 8 Ves. 495. - 5. And all cases within it, are not cases of a primary substantive and independent charge upon the real estate, but a charge upon it în aid of the personal, which was primarily charged; and the stat. of frauds does not prevent a man from creating by will a fluctuating charge upon real in aid of personal. 2 Ves. J. 231.-6. If however a person, by a will duly attested, charges his real estate with such legacies and annuities, as he shall afterwards give and charge upon that estate, whether attested or not; a charge by an unattested codicil will not be good. 6 Ves. 560. 12 Ves. 29. 7. Trust estates are within the statute of frauds. 2 P. Wms. 258. 3 Atk. 151.. -8. As are mortgages and equities of redemption. 6 Cruise, 87. - 9. Terms for years already created, are not comprehended within the statute. 6 Cruise, 89.-10. But a term cannot be created by will, unless such will be executed according to the statute of frauds. Ibid. 90. -11. And if a term for years become attendant upon the inheritance, it is then considered as part of the inheritance, and not a chattel real; and can only be devised by such a will as would pass the inheritance. 2 P. Wms. 236. 12. A will made in a foreign country of lands in England, is within the statute. 2 P. Wms. 293.-13. As to devises of real estate in Bermuda, see 8 Ves. 481.- 14. Saint Christopher's, 4 M. & S. 1.— 15. Of a rent, 2 Ves. J. 232.

(p) Whence to the validity of a devise three requisites are essential; 1o. That it be written; 2. That it be signed by the party himself, or by some other in his presence, and by his express directions; 3°. That it be attested by three or more witnesses, in the presence of the testator.

(9) 1. Written.-2. But it is immaterial whether it be written at large, or by notes usual or unusual; or whether sums of money given be expressed at full length or by figures; provided it be free from all doubts and ambiguity. 1 P. Wms. 425. 6 Cruise, 60.-3. And it may be written at several times, and on several sheets of paper, unconnected with each other, although the proper mode, where a will is written on several sheets of paper, is to join them together by means of a piece of tape sealed. 1 Show. 66. 6 Ĉruise, 61.

(r) The statute of frauds, in this instance, adopts the mode prescribed by the civil law, in testamentis solemnibus; not as laid down in Justinian's Institutes, but as reformed by the code in the Novels; and the evil meant to be remedied by the framers of the statute was, the secret and private manner in which wills were formerly executed. Gilb. Rep. 261. 6 Cruise, 63.

same

same will) shall take the land which his father would have had; it is not a good devise to the son, for this declaration was not in writing. Cont. per 3 J. in C. B. but judgment was reversed in B. R. 2 Mod. 313. 1 Vent. 341. 2 Jon. 135. Ray. 408.

So, if a will be not signed (s) by the devisor, or by his direction, it is void.

So, if it be signed, and afterwards before witnesses he declares it to be his hand. Dub. per Cowper, Pr. Ch. 185.

Yet if the testator writes his name at the top (t) or side of the paper, it is sufficient; for the statute only requires that it be signed, and not that it be subscribed. 3 Lev. 87.

So, if the testator writes his will with his own hand, which begins, I, A. B. &c. and does not put his name otherwise, but it is sealed, and well executed in other respects, it is good; for it suffices that it was signed in the text of the will. R. per tot. Cur. 3 Lev. 1. Per Jeffreys, Skin. 227. (u)

So, if written with his own hand, though it be not subscribed or sealed by him. Per. L. Cowper, Pr. Ch. 185.

So, if it be sealed by the testator, and he does not write his name at all, it is good; for the seal is a signing. Per 3 J. Levinz. dub, 3 Lev. 1. D. per Holt, Sho. 69. Semb. 1 Sid. 362. (x)

So, if it be signed by the testator, and afterwards attested by witnesses, though the testator did not sign it in their presence. Adm. per Trevor C. J. at Guildhall, 8 Ann. in ejectment, Peate on the demise of Oliver St. John v. Ougly, (reported Comyns's Rep. 197.) D. per Dolben, Sho, 69. Adm. per C. B. P. 11 Ann. inter Ld. Nappier and Sir Theophilus Nappier. Semb. Skin. 227. (y)

So, if a will for land is not attested (z) and subscribed (a) by three witnesses in the presence of the devisor, it is void. Eq. Ca. 130.

And

(3) A will was prepared and written upon five sheets of paper, and a seal affixed to the last, and also the form of attestation written upon it. The will was then read over to the testator in the presence of three witnesses, who afterwards subscribed, and the testator set his mark to the two first sheets in their presence, and attempted to set it to the third; but being unable, from the weakness of his hand, he said I cannot do it, but it is my will. After this the three witnesses went away, being desired to come again; the testator died without setting his mark to the three last sheets. Adjudged that the will was not well executed. Dougl. 241.

(t) 1. Or at the commencement. 18 Ves. 183. et infra, next pl. - 2. Or in the attestation part. 2 B. & B. 104.

(u) 1 Ves. J. 12. 18 Ves. 183.

() 1. Signing was chosen rather than sealing and delivery (which are the solemnities required in deeds,) because seals, which formerly were a great mark of distinction in families, were much disused when the statute was made, and people sealed with any seal, so that signing as used in the civil law was preferred. Gilb. Rep. 261. — 2. And notwithstanding the authority of the principal position, it seems doubtful whether sealing is equivalent to signing. Vide 2 Str. 764. 1 Wils. 313. 2 Ves. 459. 1 Ves.

J. 12. 17 Ves. 459.

(y) 3 P. Wms. 254. 2 Ves. 454. 1 Ves. J. 10. 8 Ves. 504. 1 V. & B. 362. (z) Although the witnesses must subscribe in the presence of the testator, yet the statute does not require that this circumstance should be taken notice of in the attestation; and whether inserted or not, the fact, if denied, must be left to the jury; for neither the insertion nor omission of this circumstance is conclusive. Com. Rep. 530. Willes 1. 2 Str. 1109.

(a) 1. An attestation of a devise, by the witnesses setting their marks to the will, is sufficient. 8 Ves, 184. 504. 17 Ves. 459.-2. The attestation must be when the

testator

And therefore, if a devise be by a will subscribed by two witnesses, and afterwards a codicil is made, which confirms all the devises in the will, and is subscribed by two witnesses, one of which was not a witness to the will, the devise is void: for all the three witnesses ought to attest the execution of the will by which the devise was made. R. per tot. Cur. in B. R. Hill, 1 and 2 W. and M. inter Lee and Libb. Sho. 69. 88. 3 Mod. 262. Carth. 35. (b)

So, if a will was executed in the presence of three witnesses, one of which was a devisee, and therefore it was afterwards executed de novo in the presence of two others; the devise is void, if the first execution was not sufficient. Per Powel inter - ex dimiss. Went. Dilke

and —. R. Carth. 514. Vide infra.

So, if a will be executed without witnesses, and afterwards a codicil is executed in presence of three witnesses, the will without witnesses shall not be good. R. 2 Ver. 598. (c)

So, if a will be executed and attested by three witnesses, and afterwards revoked by a feoffment, and after that the testator republishes his will in the presence of one or two witnesses, it is not good. Q. Skin. 227. (d)

So, if a will be subscribed by three witnesses together in a room where the testator cannot see them, it is void; for it ought to be attested in the presence of the testator. R. P. 2 W. and M. inter Edleston and Speak. Sho. 89. Carth. 80. (e)

But if the witnesses subscribe within the testator's view it is sufficient, though it be not in the same room. R. Carth. 81.

Or, where the testator may see, though he does not. R. Sal. 688. (ƒ) Or, if the will was executed before the statute, though the testator died after. Dub. Pr. Ch. 77.

So, if a will be subscribed by three witnesses, of which one is a devisee, it is void as to the devise to him; for, there are not three credible witnesses to it. R. per B. R. T. 10 W. 3. inter Jennings and Hillier. (Reported Comyns's Rep. 90. 94.) Per Powel, T. 10 Ann. inter dimiss. ex Went. Dilke and

(g)

But

4.

testator is in a testable state. Dougl. 241. 5. Though if he be blind, the will need not be read over to him in the presence of the attesting witnesses. 2 N. R. 415. – As to an attestation by a vice-consul abroad, operating as a private attestation, see 11 Ves. 240.

(b) Rep. temp. Holt, 742.; but see 2 Ves. J. 228. et infra.

(c) 1. Gilb. Rep. 5. Prec. Ch. 270.; but see 2 Ves. J. 228.2. Where a codicil is written on the same sheet of paper with a will, the attestation of the codicil by three witnesses establishes the will, though such will be not duly attested. 16 Ves. 167. -3. And if a will be made at several times, though the parts be distinct, and separately signed by the testator, yet if it appear from circumstances to have been the intention of the testator that both instruments should constitute but one will, and not a will and a codicil, an attestation of the last part by three witnesses will amount to an attestation of the whole. 1 Burr. 549.

(d) A person cannot empower himself to give lands by a will not duly attested. 5 T. R. 92. 2 Ves. J. 204.

(e) So where a person subscribed his will in the presence of three witnesses, who for the ease of the testator, went down into another room, and subscribed it there, it was held to be void. 1 P. Wms. 239.

(f) L. R. 507.

294.

1 P. Wms. 740. 1 B. C. C. 99. Dick. 158. 225. 586. 1 M. and S.

(g) 1. The 25 G. 2. c. 6. s. 1. enacts, that if any person attest the execution of any will or codicil, to whom any beneficial devise, legacy, estate, interest, gift, or appointment,

9