court of chancery, they considered that men are most liberal when they can enjoy their possessions no longer: and therefore at their death would choose to dispose of them to those who, according to the superstition of the times, could intercede for their happiness in another world. But, when the statute of uses(j) had annexed the possession to the use, these uses, being now the very land itself, became no longer devisable, (4) which might have occasioned a great revolution in the law of devises, had not the statute of wills been made about five years after, viz., 32 Hen. VIII. c 1, explained by 34 Hen. VIII. c. 5, which enacted, that all persons being seised in fee-simple (5) (except feme-coverts, (6) infants, idiots, and persons of non-sane memory) might by will and testament in writing devise to any other person, except to bodies corporate, two-thirds of their lands, tenements, and hereditaments held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles the Second, amounts to the whole of their landed property, except their copyhold tene

ments.

Corporations were excepted in these statutes, to prevent the exten*376] sion of gifts in mortmain; but now, by construction of the statute 43 Eliz. c. 4, it is held, that a devise to a corporation for a charitable use is valid, as operating in the nature of an appointment rather than of a bequest. And indeed the piety of the judges hath formerly carried them great lengths in supporting such charitable uses; (k) it being held that the statute of Elizabeth, which favors appointments to charities, supersedes and repeals all former statutes, (1) and supplies all defects of assurances: (m) and therefore not only a devise to a corporation, but a devise by a copyhold tenant without surrendering to the use of his will, (n) and a devise (nay, even a settlement) by tenant in tail without either fine or recovery, if made to a charitable use, are good by way of appointment. (0)

(j) 27 Hen. VIII. c. 10. See Dyer, 143.

(k) Ch. Prec. 272.

(1) Gilb. Rep. 45. 1 P. Wms. 248.

(m) Duke's Charit. Uses, 84.
(n) Moor. 890.

(o) 2 Vern. 453. Ch. Prec. 16.

(4) This is not quite correct. By means of a limitation to such uses as the owner should by his will appoint, the land might have been, and frequently is, devised, notwithstanding, or rather by the aid of, the statute of uses, and independently of any statute of wills, in the same manner as copyholds were made devisable by means of a surrender. -SWEET.

(5) As copyholders and customary tenants whose interest passes by surrender are not seised in fee-simple, and do not hold their lands in socage, it follows that they cannot make a devise under this statute; nor need the requisites of it be observed, (7 East, 299 and 322,) unless the terms of the surrender require the will to be signed. Id. ibid. 2 P. Wms. 258. 2 Atk. 37.-CHITTY.

(6) In re Polly Carey's Estate, 49 Vt. 245 et seq (1877). Where lands are conveyed to trustees, a married woman may have the power of appointing the disposition of lands held in trust for her after her death, which appointment must be executed like the will of a feme sole [Unmarried woman]. 2 Ves. 610. Bro. 99. And though the contrary has been held, yet it has been determined by the house of lords that the appointment of a married woman is effectual against the heir-at-law, though it depends only upon an agreement of her husband before marriage, without any conveyance of the estate to trustees. 2 Ves. Sen. 191. 6 Bro. P. C. 156. 2 Eden. 239. 1 Bro. P. C. 486, S. C. Amb. 565. 2 Roper's Hus. and Wife, 180. See the valuable note to 1 Hoveden's Supplement to Ves. Jr. Rep. 21. Where there is a power to charge lands for the payment of debts, or for a provision for a wife or younger children, a court of equity will decree a will, though not executed according to the statute, a good execution of the power. Scho. & Lefr. 60. I Dick. 165.-CHRISTIAN.

The act 45 and 46 Vict. c. 75 provides that married women shall be capable of acquir ing, holding and disposing by will or otherwise of any real or personal estate as her separate property in the same manner as if she were a feme sole [Unmarried woman], without the intervention of trustees. Jarman on Wills, vol. I, c. 3, § 5 (6 ed.) and similar acts have been passed in most of the United States and territories. Some states require the husband's consent, others prevent her from disposing of more than half of her prop erty from her husband; others prescribe particular forms. Lawson's Prop. Rights, vol 2, p. 1397, 761 (1889). Bishop's Law of Married Women.

With regard to devises in general, experience soon showed how difficult and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law; which are so nicely constructed and so artificially connected together, that the least breach in any one of them disorders for a time the texture of the whole. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance; for so loose was the construction made upon this act by the courts of law, that bare notes in the handwriting of another person were allowed to be good wills within the statute. (p) To remedy which, the statute of frauds and perjuries, 29 Car. II. c. 3, directs, that all devises of lands and tenements shall not only be in writing, but signed by the testator, or some other person in his presence and by his express direction; and be subscribed, in his presence, by three or four credible witnesses. (7) And a solemnity nearly similar is requisite for revoking a devise by writing; though the same may be also revoked by burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent; (8) as likewise impliedly, by such a great and

(p) Dyer, 72. Cro. Eliz. 100.

(7) This number was reduced to two by the act of 1 Vict. c. 26. A wife would not be a competent witness to a will which contains a devise to her husband. Sullivan v. Sullivan, 106 Mass. 476 (1871). Statutes in most of the states require wills to be in writing. There are exceptions in certain states as to nuncupative and holographic wills. The construction of this requirement is more liberal than the words "in writing" would seem to indicate, since a will written in lead pencil may be valid. Lawson's Prop. Rights, vol. 6, 83144, p. 5116 (1890).

In Pennsylvania a will need not be signed or sealed by the testator, nor subscribed by witnesses (Dall. 94). The writing of a will from the mouths of witnesses is sufficient and though the devisor becomes senseless before the will be written, yet if written befor he dies it is a good will in writing. Walmsley's Lessee v. Read, I Yeates (Pa.) 91 (1791| Nor to set aside a will, duly executed by a man of competent understanding, would evi. dence be admitted of declarations made by him of different intentions; nor of the impotunities of his wife; nor of the wife's high temper and interference with the testator in relation to his will. Moritz v. Brough, 16 S. & R. (Pa.) 403 (1827).

(8) With respect to revocations in general, see 1 Saund. 277 to 279, d. Where a testator being angry with one of his devisees, tore his will into four pieces, but was prevented from further tearing it, partly by force and partly by entreaty, and afterwards, becoming calm, expressed his satisfaction that no material part was injured, and that the will was no worse, the court held that it had been properly left to the jury to say whether the testator had perfected his intention of cancelling the will, or whether he was stopped in medio[In the midst (of destroying it);] and, the jury having found the latter, the court refused to disturb the verdict. 3 B. & A. 489. But when the testator threw his will into the fire, out of which it was snatched by a bystander and preserved without the testator's knowledge, the will was held to be cancelled. 2 Bla. R. 1043.-CHITTY.

A will may be revoked by an instrument written merely for the purpose of revocation. But it must be attested by three witnesses; and the testator must sign it in their presence; which is not necessary in the execution of a will.—CHRISTIAN. Lessee of Ogle v. Ogle, I Jones (Irish Rep. 1834).

Marriage, and the birth of a posthumous child, amount to a revocation. 5 T. R. 49. In a case where a testator had devised his real estate to a woman with whom he cohabited, and to her children, he afterwards married her and had children by her, it was held these circumstances did not amount to a revocation of the will. Lord Ellenborough, in his judgment, says, "The doctrine of implied or presumptive revocation seems to stand upon a better foundation of reason, as it is put by lord Kenyon, in Doe v. Lancashire, 5 T. R. 58,-namely, as being 'a tacit condition annexed to the will when made, that it should not take effect if there should be a total change in the situation of the testator's family,'-than on the ground of any presumed alteration of intention; which alteration of intention should seem in legal reasoning not very material, unless it be considered as sufficient to found a presumption in fact that an actual revocation has followed thereupon. But, upon whatever grounds this rule of revocation may be supposed to stand, it is on all hands allowed to apply only in cases where the wife and children-the new objects of duty-are wholly unprovided for, and where there is an entire disposition of the whole estate to their exclusion and prejudice. This, however, cannot be said to be the case where the same persons who, after the making of the will,

entire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child. (7)

In the construction of this last statute, (9) it has been adjudged that the testator's name, written with his own hand, at the beginning of

(9) Christopher v. Christopher, Schacch. 6 July, 1771. Spragge v. Stone, at the Cockpit, 27 March,

1773, by Wilmot, de Grey, and Parker. See page 502.

stand in the legal relation of wife and children, were before specifically contemplated and provided for by the testator, though under a different character and denomination." 2 East, 530. See 5 Ves. Jr. 656. By the Roman law, if the child born after the will died before the testator, the testament was restored to its force and effect. 2 Domat, 40. -CHRISTIAN.

Where two wills are found in the possession of the testator, to invalidate the first the second should expressly revoke, or be clearly incompatible with, the first devise; for no subsequent devise will revoke a prior one unless it apply to the same subject-matter. I P. Wis. 345. 7 Bro. P. C. 344. Cowper, 87. A devise of real property is not revoked by the bankruptcy of the devisor. The master of the rolls said, "From the moment the debts are paid, the assignees are mere trustees for the bankrupt, and can be called to convey to him." In this case, all the debts were paid, and the bankrupt had been dead some time. 14 Ves. 580. See, also, as to implied or constructive revocations, 3 Mod. 218. Salk. 592. 3 Mod. 203. 2 East, 488. Carth. 81. 4 Burr 2512. 7 Ves. Jr. 348. Cowp. 812. 4 East, 419. 2 N. R. 491, and post, "Title by Testament," 489, et seq. -CHITTY.

Formerly, marriage and the birth of a child were considered a sufficient ground for implying the revocation of a will. The stat. 1 Vict. c. 26, s. 19, expressly provides that no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances, but makes marriage an absolute revocation.—KERR.

(9) As to what shall be deemed a sufficient compliance with this act, see I Foublanque on Equity, 193. Phil. on Evid. chap. 8, sect. 8. It is observable that the statute requires that the will shall be in writing; but it should seem that it would suffice if in print and signed by the testator. Semble, 2 M. & S. 286.

It next requires that the will shall be signed by the testator or some other person in his presence and by his express direction. The first case in which this question was raised was Lemayne v. Stanley, Lev. I, I Eq. Ca. Abr. 403, in which case it was determined that, if the testator write the whole of the will with his own hand, though he does not subscribe his name, but seals and publishes it, and three witnesses subscribe their names in his presence, it is a good will; for his name being written in the will, it is a sufficient signing, and the statute does not direct whether it shall be at the top, bottom, etc. But, from the case of Right Lessee of Cater v. Price, Doug. 241, it may be inferred that the above decision will apply only to those cases where the testator appears to have considered such sufficient signing to support the will, and not to those where the testator appears to have intended to sign the instrument in form; and Mr. Christian, in his edition of Blackstone, 2 vol. 377, n. 5, properly observes that writing the name at the beginning would never be considered a signing according to the statute unless the whole will was written by the testator himself; for whatever is written by a stranger after the name of the testator affords no evidence of the testator's assent to it if the subscription of his name in his own hand is not subjoined. And see Powell on Devises, 63. In the case of Right v. Price, the will was prepared in five sheets, and a seal affixed to the last, and the form of attestation written upon it, and the will was read over to the testator, who set his mark to the two first sheets, and attempted to set it to the third, but being unable, from the weakness of his hand, he said he could not do it, but that it was his will; and on the following day, being asked if he would sign his will, he said he would, and attempted to sign the two remaining sheets, but was not able. Lord Mansfield observed that "the testator, when he signed the two first sheets, had an intention of signing the others, but was not able: he therefore did not mean the signature of the two first as the signature of the whole will. There never was a signature of the whole." See also 4 Ves. Jr. 197. 9 Ves. 249. And if it appear upon a will of personal estate that something more was intended to be done, and the party was not prevented by sickness or death from signing, this declaration at the beginning is not sufficient. 4 Ves. 197, n. 9 Ves. 249. But where a will, written on three sides of a sheet of paper and duly attested, concluded by stating "that the testator had signed his name to the two first sides thereof, and his hand and seal to the last," and it appeared he had put his hand and seal to the last only, omitting to sign the two first sides, it was held that the will was well executed, as his first intention was abandoned by the final signature made by him at the time of executing the will. 5 Moore, 484. 2 Bro. & Bing. 650, S. C. So where the testator had executed such a will, but some years afterwards made various interlineations

*his will, as, "I, John Mills, do make this my last will and testa- [*377 ment," is a sufficient signing, without any name at the bottom; (r)

(r) 3 Lev. 1.

and obliterations therein, but which was neither resigned, republished, nor reattested, but a fair copy was afterwards made, in which he added one interlineation not affecting his freehold estate, but the copy was never signed, attested, or published, and the will and copy were found locked up in a drawer together, it was held that there was no revocation of the will as it originally stood, the alterations, etc. being merely demonstrative of an intention to execute another never carried into effect. Id. ibid. The testator's making a mark at the foot of his will, if intended as a signature, is sufficient. Freeman's Rep. 538.

The next doubt that occurred upon this point was whether the testator sealing his will was not a signing within the statute; and in 2 Stra. 764, lord Raymond is reported to have held that it was; and of the same opinion three of the judges appear to have been in 3 Lev. 1, on the ground that signum [Sign] is no more than a mark, and sealing is a sufficient mark that this is his will; but in 1 Wils. 313 such opinion was said to be very strange doctrine, for that, if it were so, it would be easy for one person to forge any man's will by only forging the names of any two obscure persons dead, for he would have no occasion to forge the testator's hand. And they said "if the same thing should come in question again, they should not hold that sealing a will was a sufficient signing within the statute.' But in 2 Atk. 176, lord Hardwicke seems to have thought that sealing without signing in the presence of a third witness, the will having been duly signed in the presence of two, would have been sufficient to make it a good will. It was held, in a case where the testator was blind, that it is not necessary to read over the will, previous to the execution, in the presence of the attesting witnesses. 2 New R. 415. The signing of the testator need not be in the presence of the witnesses: it suffices if he acknowledge his signature to each of them. 3 P. Wms. 253. 2 Ves. 454. 1 Ves. Jr. 11. 8 Ves. 504. I Ves. & B. 362.

Upon the attestation of a will, many questions have also arisen. The first seems to have been whether the witnesses must attest the signing by the testator; and upon this point, the statute not requiring the testator to sign his will in the presence of the witnesses, it has been held sufficient if the testator acknowledge to the witnesses that the name is his. 3 P. Wms. 253. 2 Ves. 254. See also 2 P. Wms. 510. Comyn's Rep. 197. I Ves. Jr. II. The next question respecting the attestation was, What shall be construed a signing in the presence of the testator? and upon this point, which first came into consideration in 1 P. Wms. 740, lord Macclesfield held that "the bare subscribing of a will by the witnesses in the same room did not necessarily imply it to be in the testator's presence, for it might be in a corner of the room, in a clandestine fraudulent way, and then it would not be a subscribing by the witness in the testator's presence merely because in the same room; but that here, it being sworn by the witness that he subscribed the will at the request of the testatrix and in the same room, this could not be fraudulent, and was therefore well enough.' So, in the case in 2 Salk. 688, the testator having desired the witnesses to go into another room, seven yards distant, to attest it, in which room there was a window broken, through which the testator might have seen, the attestation was held good, for that it was enough that the testator might see the witnesses signing, and that it was not necessary that he should actually see them. See also 3 Salk. 395. And lord Thurlow, in 1 Bro. C. C. 99, relying upon the authority in 2 Salk. 688, inclined to think a will well attested where the testatrix could see the witnesses through the window of her carriage and of the attorney's office. But the above cases turned upon the circumstance of the testator being in a situation which allowed of his seeing the witnesses sign: if, therefore, he be in a position in which he cannot see the signing, it seems such attestation would not be a compliance with the statute. Carth. 79. Holt's Rep. 222. 1 P. Wms. 239. 2 Show. 288. And in the case in Comyn's R. 531 it was determined that the question whether present or not was a fact for the consideration of the jury, upon all the circumstances of the case. See also Stra. 1109. And if the jury find that the testator was in a situation where he could not see the witnesses, the will is not duly attested, (1 M. & S. 294;) and if the testator were at the time of attestation insensible, though the witnesses signed in his presence, it is not a good attestation, Doug. 241.

It seems also to have been a question whether the witnesses should not attest the will in the presence of each other. But it was determined, very soon after the statute, that though the witnesses must all see the testator sign, or acknowledge the signing, yet that they may do it at different times, (Anon. 2 Ch. Ca. 109. Freem. 486. Cook v. Parson, Prec. Ch. 185. Jones v. Lake, cited 2 Atk. 177. Bond v. Sewell, 3 Burr. R. 1773;) and the acknowledgment by the testator to one of the witnesses, who did not see him sign, is good. See Addy v. Grix, 8 Ves. 504. Ellis v. Smith, 1 Ves. 11. As to the attestation

though the other is the safer way. (10) It has also been determined, that though the witnesses must all see the testator sign, or at least acknowledge the signing, yet they may do it at different times. (s) But they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument. (t) And, in one case determined by the court of King's Bench, (u) the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses: for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination, however, alarmed many purchasers and creditors, and threatened to shake most of the titles in the kingdom, that depended (u) Stra. 1253.

(8) Freem. 486. 2 Ch. Ca. 109. Pr. Ch. 185. (t) 1 P. Wms. 740.

by a marksman, see Harrison v. Harrison, 8 Ves. 185. It is not necessary that the wit nesses should in their attestation express that they subscribed their names in the presence of the testator; but whether they did or not so subscribe is a question for the jury. 4 Taunt. 217. Willes Rep. I.

Where there is a power to charge lands for the payment of debts, or for a provision for, a wife or younger children, a court of equity will decree a will, though not executed according to the statute, a good execution of the power, (Sch. & Lef. 60. I Duk. 165;) and the defective execution of wills, in exercise of a power, is remedied by the 54 Geo. III. c. 68.-CHITTY.

(10) I conceive that writing the name at the beginning would never be considered a signing according to the statute, unless the whole will was written by the testator him. self; for whatever is written by a stranger after the name of the testator affords no evi dence of the testator's assent to it, if the subscription of his name in his own hand is no: subjoined.-CHRISTIAN.

See Doug. 241. I Meriv. 503. The will is now required to be signed at the foot or end thereof. Stat. 7 W. IV. and i Vict. c. 26, s. 9.—SWEET.

But now, by the statute I Vict. c. 26, the testator's signature must be at the foot or end of the will, and must be made by him, or by some other person by his direction in his presence; and such signature must be made or acknowledged by him in the presence of two witnesses present at the same time, and they must attest and subscribe in the presence of the testator. But no particular form of attestation is necessary.

Several questions have arisen on the meaning of the words foot or end of the will; and it has been thought necessary to pass an act (15 Vict. c. 24) to define, as far as may be, the meaning of these words. The statute enacts that the signature of the testator shall be deemed valid if the same shall be so placed at, or after, or following, or under, or beside, or opposite to, the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will; and that no such will shall be affected by the circumstance that the signature shall not follow or not be immediately after the foot or end of the will, or by the circumstance that the signature shall be placed among the words of the testimonium clause, or the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after or under or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will, whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature. Each of the circumstances enumerated has reference to some actual case in which the ecclesiastical courts had found a difficulty in interpreting the simple words foot or end.-Kerr.

An attestation by a mark was held a sufficient subscription. Pridgen v. Pridgen, 13 Iredell, N. C. 259 (1852).

A will wholly in the testator's handwriting, beginning with the words, "I. A. W. declare this to be my last will and testament," but which nowhere else contained his signature; enclosed in an envelope, sealed up and endorsed also in his handwiting, found in his desk, was held not signed by the testator. Warwick v. Warwick, 86 Va. 600 (Hanst. 1890).