or TESTAMENTS, are of great antiquity. They were in use among the ancient Jews. Thus, we are informed of Noah's testament, made in writing, and witnessed under his seal, and the bequest of Jacob to his son Joseph of a portion of his inheritance, double that of his brethren. Solon introduced wills into Athens. In Rome they were unknown till the laws of the Twelve Tables. Among the Germans, testaments were not in use in the time of Tacitus.
In England, the power of bequeathing is coeval with the first rudiments of the law. Glanvil informs us, that by the common law, in the reign of Henry II., a man's goods were to be divided into three equal parts; one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal. If he died without a wife, he might then dispose of a moiety, and the other went to his children; and if he had no children, the wife took one-half, and he might dispose of the other. If he died without wife or issue, he might dispose of the whole. This continued to be the general law of the land, as expressly laid down by Sir H. Finch, in the reign of Charles I. But this law has been from time to time altered, and a testator may now bequeath the whole of his goods and chattels.
The law relating to wills is consolidated and amended by the Statutes 1 Vict. c. 26, and the 15 and 16 Vict. c. 24; and they relate to all wills made on or after the 1st January 1838. Before those acts, a will might be either written or verbal; and with regard to personal property, it was not required to be attested by any witness, if the handwriting of the testator could be satisfactorily proved. Devises of land, however, were ineffectual against the heir-at-law, unless attested by three witnesses. All wills, whether of real or personal estate, must now be in writing, and signed at the foot or end thereof by the testator, or by some person in his presence and by his direction, in the presence of two witnesses at least, present at the same time, who must subscribe and attest the will in his presence. By the second act, "the signature must be so placed at, after, following, under, or beside, or opposite the end of the will, that it shall be apparent on the face of the will that the testator willingly intended to give effect, by such his signature to the writing signed as his will." Devices without words of limitation will now pass the fee-simple of an estate.
A married woman cannot make a will, except of the property settled to her separate use; and a will made by her when sole is revoked by her marriage. Infants under the age of twenty-one cannot make a will, either of real or personal property; nor lunatics nor idiots, nor persons under duress or undue influence, nor criminals convicted of such offences as subject their property to forfeiture: in some cases at the time of the commission of the offence, and in others from the time of conviction.
Formerly it was held that if a man married after making his will, and there was a child of the marriage, the will was impliedly revoked; but now marriage alone is a total revocation of the will; and it is not revoked by any other change of circumstances. It may be revoked by another will or codicil subsequently executed, or by a writing declaring the intention to revoke, or by burning, tearing, or otherwise destroying the will, with the intention to revoke it. A revoked will may be revived by re-execution, or by a codicil showing an intention to revive it.
Wills are not void though the attesting witnesses be incompetent; but gifts to attesting witnesses, or their husbands or wives, are void. And a creditor of the testator, or the creditor's wife, or an executor, may be a witness.
No alteration, obliteration, or interlineation is valid, except so far as the words or effect of the will before the alteration shall not be apparent unless with such alteration. If the signature of the testator and subscribing witnesses be made in the margin, opposite or near the alteration, or at the foot or end referring to the alteration, it will be sufficient.
The will takes effect as if executed immediately before the testator's death, unless a contrary intention be shown by the will; and lapsed and void devises fall into the residue, unless the will shows a contrary intention.
Where a testator dies after 31st December 1854, and his lands are subject to a mortgage, and he does not by his will or otherwise signify to the contrary, the heir or devisee is not entitled, as formerly, to have the mortgage debt discharged out of the personal estate, but the land is, by the 17 and 18 Vict. c. 113, primarily liable to the mortgage debt.
The latest statute on this subject is the Property and Trustee Act, 23 Vict. c. 35, by which every will is deemed to contain a clause for the indemnity and reimbursement of trustees and executors, and rendering them chargeable only for their own acts, and not for any banker, broker, or other person with whom the trust monies or securities may be deposited, nor for signing any receipt for the sake of conformity. It is also provided that executors or administrators making payments under a power of attorney are not liable by reason of the death of the party giving the power.