ILLINOIS UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN Production Note Project Unica Rare Book & Manuscript Library University of Illinois Library at Urbana-Champaign 2015 ANNO PRIMO VICTORIiE REGINA. *************************************************** CAP. XXVI. An Act for the Amendment of the Laws with respect to Wills. [3d July 1837-] BE it enacted by the Queen’s most Excellent Majesty, by and with Meaning the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by Ac°r‘s ' the Authority of the same, That the Words and Expressions hereinafter mentioned, which in their ordinary Signification have a more confined or a different Meaning, shall in this Act, except where the Nature of the Provision or the Context of the Act shall exclude such Construction, be interpreted as follows; (that is to say,) the Word “ Will” shall extend to a Testament, and to a Codicil, and to an “Will:" Appointment by Will or by Writing in the Nature of a Will in exercise of a Power, and also to a Disposition by Will and Testament or Devise of the Custody and Tuition of any Child, by virtue ot an Act passed in the Twelfth Year of the Reign of King Charles the Second, intituled An Act for taking away the Court of Wards and 12 Car. 2. Liveries, and Tenures in capite and by Knights Service, and Pur- c‘ • veyance, and for settling a Revenue upon His Majesty in lieu thereof, or by virtue of an Act passed in the Parliament of Ireland in the Fourteenth and Fifteenth Years of the Reign of King Charles the Second, intituled An Act for taking away the Court of Wards and 14& l jCur.-j. Liveries, and Tenures in capite and by Knights Service, and to any (’■) other Testamentary Disposition ; and the Words “ Real Estate ” “ * shall extend to Manors, Advowsons, Messuages, Lands, Tithes, J' 'L' Rents, and Hereditaments, whether Freehold, Customary Freehold, 3 II Tenant214 « Personal Estate:” Number: Gender. Repeal of the Statutes of Wills, 32 H. 8. 34 & 35 H.8. c.5. 10 Car. 1. Sess. 2. c. 2. (io Sec. 5. 6. 12. 19. 20. 21. 6 22. of the Statute of Frauds, 29Car.2. c.3.; 7 W. 3. c. 12. (i) Sec. 14. cf 4 & 5 Anne, c. 16. 6 Anne, c. 10. O.) Sec. 9. of 14G.2. c.20. 25 G. 2. c. 6 (except as to Colonies.) 25G.2. c.ll (10 1° VICTORIA, Cap.2(5. Tenant Right, Customary or Copyhold, or of any other Tenure, and whether corporeal, incorporeal, or personal, and to any undivided Share thereof, and to any Estate, Right, or Interest (other than a Chattel Interest) therein; and the Words “Personal Estate” shall extend to Leasehold Estates and other Chattels Real, and also to Monies, Shares of Government and other Funds, Securities for Money (not being Real Estates), Debts, Choses in Action, Rights, Credits, Goods, and all other Property whatsoever which by Law devolves upon the Executor or Administrator, and to any Share or Interest therein ; and every Word importing the Singular Number only shall extend and be applied to several Persons or Things as well as One Person or Thing; and every Word importing the Masculine Gender only shall extend and be applied to a Female as well as a Male. II. And he it further enacted, That an Act passed in the Thirty-second Year of the Reign of King Henry the Eighth, intituled The Act of Wills, Wards, and Primer Seisins, whereby a Man may devise Two Parts of his Land ; and also an Act passed in the Thirty-fourth and Thirty-fifth Years of the Reign of the said King Henry the Eighth, intituled The Bill concerning the Explanation of Wills ; and also an Act passed in the Parliament of Ireland, in the Tenth Year of the Reign of King Charles the First, intituled An Act how Lands, Tenements, etc. may be disposed by Will or otherwise, and concerning Wards and Primer Seisins; and also so much of an Act passed in the Twenty-ninth Year of the Reign of King Charles the Second, intituled An Act for Prevention of Frauds and Perjuries, and of an Act passed in the Parliament of Ireland in the Seventh Year of the Reign of King William the Third, intituled An Act for Prevention of Frauds and Perjuries, as relates to Devises or Bequests of Lands or Tenements, or to the Revocation or Alteration of any Devise in Writing of any Lands, Tenements, or Hereditaments, or any Clause thereof, or to the Devise of any Estate pur autre vie, or to any such Estate being Assets, or to Nuncupative Wills, or to the repeal, altering, or changing of any Will in Writing concerning any Goods or Chattels or Personal Estate, or any Clause, Devise, or Bequest therein ; and also so much of an Act passed in the Fourth and Fifth Years of the Reign of Queen Anne, intituled An Act for the Amendment of the Law and the better Advancement of Justice, and of an Act passed in the Pailiament of Ireland in the Sixth Year of the Reign of Queen Anne, intituled An Act for the Amendment of the Law and the better Advancement of ,‘.Justice, as relates to Witnesses to Nuncupative Wills ; and also so much of an Act passed in the Fourteenth Year of the Reign of King George the Second, intituled An Act to amend the Law concerning Common Recoveries, and to explain and amend an Act made in the Twenty.ninth Year of the Reign of King Charles the Second, intituled < An Act for Prevention of Frauds and Perjuries,’ as relates to Estates . pur autre vie; and also an Act passed in the Twenty-fifth Year of the 1 Reign of King George the Second, intituled An Act for avoiding and putting an end to certain Doubts and Questions relating to the Attestation of Wills and Codicils concerning Real Estatesmthat Part of Great Britain called England, and in His Majesty's Colonies and Plantations in America, except so far as relates to His Majesty s . Colonies and Plantations in America; and also an Act passed in theifLA & Testator may or may not be ascertained as the Person or one of the Persons in whom the same respectively may become vested, and whether he may be entitled thereto under the Instrument by which the same respectively were created or under any Disposition thereof by Deed or Will; and also to all Rights of Entry for Conditions Rights of broken, and other Rights of Entry; and also to such of the same Entry; Estates, Interests, and Rights respectively, and other Real and Per-sonal Estate, as the Testator may be entitled to at the Time of his Execution Death, notwithstanding that he may become entitled to the same sub- of the Will, sequently to the Execution of his Will. IV. Provided always, and be it further enacted, That where any Real Estate of the Nature of Customary Freehold or Tenant Right, payable by or Customary or Copyhold, might, by the Custom of the Manor of devisees ot which the same is holden, have been surrendered to the Use of a Will, copv- and hold Estates.216 1° VICTORIA, Cap.26. and the Testator shall not have surrendered the same to the Use of his Will, no Person entitled or claiming to be entitled thereto by virtue of such Will shall be entitled to be admitted, except upon Payment of all such Stamp Duties, Fees, and Sums of Money as would have been lawfully due and payable in respect of the surrendering of such Real Estate to the Use of the Will, or in respect of presenting, registering, or enrolling such Surrender, if the same Real Estate had been surrendered to the Use of the Will of such Testator: Provided also, that where the Testator was entitled to have been admitted to such Real Estate, and might, if he had been admitted thereto, have surrendered the same to the Use of his Will, and shall not have been admitted thereto, no Person entitled or claiming to be entitled to such Real Estate in consequence of such Will shall be entitled to be admitted to the same Real Estate by virtue thereof, except on Payment of all such Stamp Duties, Fees, Fine, and Sums of Money as would have been lawfully due and payable in respect of the Admittance of such Testator to such Real Estate, and also of all such Stamp Duties, Fees, and Sums of Money as would have been lawfully due and payable in respect of surrendering such Real Estate to the Use of the Will, or of presenting, registering, or enrolling such Surrender, had the Testator been duly admitted to such Real Estate, and afterwards surrendered the same to the Use of his Will; all which Stamp Duties, Fees, Fine, or Sums of Money due as aforesaid shall be paid in addition to the Stamp Duties, Fees, Fine, or Sums of Money due or payable on the Admittance of such Person so entitled or claiming to be entitled to the same Real Estate as aforesaid. Wills or y. And be it further enacted, That when any Real Estate of the wifCtrrf Nature of Customary Freehold or Tenant Right, or Customary or toiMry Free- Copyhold, shall be disposed of by Will, the Lord of the Manor or holds and reputed Manor of which such Real Estate is holden, or his Steward, or Copyholds to t]le j)epUty 0f such Steward, shall cause the Will by which such Dis-onthe^Court position shall be made, or so much thereof as shall contain the Rolls; Disposition of such Real Estate, to be entered on the Court Rolls of such Manor or reputed Manor; and when any Trusts are declared by the Will of such Real Estate, it shall not be necessary to enter the Declaration of such Trusts, but it shall be sufficient to state in the and the Lord Entry on the Court Rolls that such Real Estate is subject to the to be entitled Trusts declared by such Will; and when any such Real Estate could to the same not ¡mve t,een disposed of by Will if this Act had not been made, the wTniuch Bame Fine, Heriot, Dues, Duties, and Services shall be paid and EstatesUare rendered by the Devisee as would have been due from the Customary not now de- Heir in case of the Descent of the same Real Estate, and the Lord visable as he shall as against the Devisee of such Estate have the same Remedy for been from the recovering and enforcing such Fine, Heriot, Dues, Duties, and Ser-Heir in case vices as he is now entitled to for recovering and enforcing the same of Descent, from or against the Customary Heir in case of a Descent. Estates pur VI. And be it further enacted, That if no Disposition by W ill autre vie. shall be made of any Estate pur autre vie of a Freehold Nature, the same shall be chargeable in the Hands of the Heir, if it shall come to him by reason of special Occupancy, as Assets by Descent, as in ° 1° VICTORIA, Cap.26. 217 the Case of Freehold Land in Fee Simple; and in case there shall be no special Occupant of any Estate pur autre vie, whether Freehold or Customary Freehold, Tenant Right, Customary or Copyhold, or of any other Tenure, and whether a corporeal or incorporeal Hereditament, it shall go to the Executor or Administrator of the Tarty that had the Estate thereof by virtue of the Grant; and if the same shall come to the Executor or Administrator either by reason of a special Occupancy or by virtue of this Act, it shall be Assets in his Hands, and shall go and be applied and distributed in the same Manner as the Personal Estate of the Testator or Intestate. VII. And be it further enacted, That no Will made by any Person No Will of a under the Age of Twenty-one Years shall be valid. Age val!dnder VIII. Provided also, and be it further enacted, That no Will made norofaFeme by any Married Woman shall be valid, except such a Will as might have been made by a Married Woman before the passing of this might now Act. be made. IX. And be it further enacted, That no Will shall be valid unless Every Will it shall be in Writing and executed in manner herein-after mentioned ; inn[| fthat is to say,) it shall be signed at the Foot or End thereof by the ^'diiyX Testator, or by some other Person in his Presence and by his Direc- Testator in tion ; and such Signature shall be made or acknowledged by the the Presence Testator in the Presence of Two or more Witnesses present at the same Time, and such Witnesses shall attest and shall subscribe J °"c the Will in the Presence of the Testator, but no Form of Attestation shall be necessary. X. And be it further enacted, That no Appointment made by Appoint-Will, in exercise of any Power, shall be valid, unless the same be “e^sejy_Wl11 executed in manner herein-before required ; and every Will executed ecuted Hke in manner herein-before required shall, so far as inspects the Exe- other Wills, cution and Attestation thereof, be a valid Execution of a Power j>nd to be va-of Appointment by Will, notwithstanding it shall have been ex- “¿ear re°"s pressly required that a Will made in exercise of such Power qu;red So-should be executed with some additional or other Form of Execution lemnitiea are or Solemnity. not “bscrved' XI. Provided always, and be it further enacted, That any Soldier Soldiers and being in actual Military Service, or any Mariner or Seaman being at Sea, may dispose of his Personal Estate as he might have done before cepted.' the making of this Act.1° VICTORIA, Cap.26. Money, Bounty Money, and Allowances, or other Monies payable in respect of Services in Her Majesty’s Navy. XIII. And be it further enacted, That every Will executed in manner herein-before required shall be valid without any other Publication thereof. XIV. And be it further enacted, That if any Person who shall attest the Execution of a Will shall at the Time of the Execution thereof or at any Time afterwards be incompetent to be admitted a Witness to prove the Execution thereof, such Will shall not on that Account be invalid. XV. And be it further enacted, That if any Person shall attest the Execution of any Will to whom or to whose Wife or Husband any beneficial Devise, Legacy, Estate, Interest, Gift, or Appointment, of or affecting any Real or Personal Estate (other than and except Charges and Directions for the Payment of any Debt or Debts), shall be thereby given or made, such Devise, Legacy, Estate, Interest, Gift, or Appointment shall, so far only as concerns such Person attesting the Execution of such Will, or the Wife or Husband of such Person, or any Person claiming under such Person or Wife or Husband, be utterly null and void, and such Person so attesting shall be admitted as a Witness to prove the Execution of such Will, or to prove the Validity or Invalidity thereof, notwithstanding such Devise, Legacy, Estate, Interest, Gift, or Appointment mentioned in such Will. XVI. And be it further enacted, That in case by any Will any testing to be j^eaj or personal Estate shall be charged with any Debt or Debts, and " a any Creditor, or the Wife or Husband of any Creditor, whose Debt is i ness. s0 charo-ed, shall attest the Execution of such Will, such Creditor notwithstanding such Charge shall be admitted a Witness to prove the Execution of such Will, or to prove the Validity or Invalidity thereof. Executor to XVII. And be it further enacted, That no Person shall, on account be admitted 0p ||is j,ejng an Executor of a Will, be incompetent to be admitted a a Witness. Witness t0 pr0ve the Execution of such Will, or a Witness to prove the Validity or Invalidity thereof. Will to be XVIII. And be it further enacted, That every Will made by a Man revoked by or Woman shall be revoked by his or her Marriage (except a Mill Marriage. ma(je ¡n exerc;se 0f a Power of Appointment, when the Real or Personal Estate thereby appointed would not in default of such Appointment pass to his or her Heir, Customary Heir, Executor, or Administrator, or the Person entitled as his or her next of Kin, under the Statute of Distributions). No Will to XIX. And be it further enacted, That no Will shall be revoked berevoked by },y any Presumption of an Intention on the Ground of an Alteiation Presumption. Qircumstances. 218 Publication not to be requisite. Will not to be void on account of Incoivi pe-tencv of attesting Witness. Gifts to an attesting Witness to be void. XX. Ami1° VICTORIA, Cap.26. 21!) XX. And be it further enacted, That no Will or Codicil, or any Part thereof, shall be revoked otherwise than as aforesaid, or by but by an_ another Will or Codicil executed in manner herein-before required, 0iher will or or by some Writing declaring an Intention to revoke the same, and Codicil, or by executed in the Manner in which a Will is herein-before required to * be executed, or by the burning, tearing, or otherwise destroying the W|U_ or by same by the Testator, or by some Person in his Presence and by Ins Destruction. Direction, with the Intention of revoking the same. XXI. And be it further enacted, That no Obliteration, Interline-ation, or other Alteration made in any Will after the Execution have any thereof shall be valid or have any Effect, except so far as the W ords Effect unlcss or Effect of the Will before such Alteration shall not he apparent, executed as unless such Alteration shall be executed in like Manner as herein- a Will, before is required for the Execution of the Will; hut the Will, with such Alteration as Part thereof, shall be deemed to be duly executed if the Signature of the Testator and the Subscription of the Witnesses be made”in the Margin or on some other Part of the Will opposite or near to such Alteration, or at the Foot or End of or opposite to a Memorandum referring to such Alteration, and written at the End oi some other Part of the Will. XXII And be it further enacted, That no Will or Codicil, or any Part thereof, which shall be in any Manner revoked, shall be revived otherwise than by the Re-execution thereof, or by a Codicil executed in manner herein-before required, and showing an Intention to revive the same; and when any Will or Codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such Revival shall not extend to so much thereof as shall have been revoked before the Revocation of the whole thereof, unless an Intention to the contrary shall be shown. XXIII. And be it further enacted, That no Conveyance or other Act made or done subsequently to the Execution of a Will of or relating to any Real or Personal Estate therein comprised, except an Act by which such Will shall be revoked as aforesaid, shall prevent the Operation of the Will with respect to such Estate or Interest m such Real or Personal Estate as the Testator shall have Power to dispose of by Will at the Time of his Death. XXIV And be it further enacted, That every W ill shall be construed with reference to the Real Estate and Personal Estate comprised in it, to speak and take effect as if it had been executed immediately before the Death of the Testator, unless a contrary Intention shall appear by the Will. XXV And be it further enacted, That, unless a contrary Intention slvill appear by the Will, such Real Estate or Interest therein as shall be comprised or intended to be comprised in any Revise in such Will contained which shall fail or be void by reason of the Death of the Devisee in the Lifetime of the Testator, or by reason of such Devise being contrary to Law or otherwise incapable of taking effect. No Will revoked to be revived otherwise than by Re-execution or a Codicil to revive it. A Devise not to be rendered inoperative by any subsequent Conveyance or Act. A Will shall be construed to speak from the Death of the Testator. A Residuary Devise shall include Estates comprised in lapsed and void Devises.A general Devise of the Testator’s Lands shall include Copy-hold and Leasehold as well as Freehold Lands* A general Gift shall 220 1° VICTORIAS, Cap.26. Will. be included in the Residual? Devise (if any) contained in such And '! fuTrthe?' e,?acted' That a Devise of the Land of e Testator, oi of the Land of the Testator in any Place or in the Occupation of any Person mentioned in his Will, or otherwise described in a general Manner, and any other general Devise which would describe a Customary, Copyhold, or Leasehold Estate if the testator had no Freehold Estate which could be described by it shall be construed to include the Customary, Copyhold, and Leasehold Estates of the Testator, or his Customary, Copyhold, and Leasehold Estates, or any of them, to which such Description shall extend as the Case may be as well as Freehold Estates, unless a contrary "ntention shall appear by the Will. J p X,XrV7I; Acnd, further enacted- That a general Devise of the include Es. of *e Testator, or of the Ileal Estate of the Testator in tales over an> place.or 111 the Occupation of any Person mentioned in his Will Which the ?r Otherwise described m a general Manner, shall be construed to flen Z * nC, l,d,e nny ReaI Estate> a,,y Heal Estate to which such Descrip. PoSwer Of tl0n .shaU extend (as the Case may be), which he may have Power to Appoint- appoint in any Manner he may think proper, and shall operate as an Blent. Execution of such I ower, unless a contrary Intention shall appear by the Will; and m like Manner a Bequest of the Personal Estate of the Testator, or any Bequest of Personal Property described in a general Manner shall be construed to include any Personal Estate, or any Personal Estate to which such Description shall extend (as the Case may be), which he may have Power to appoint in any Manner he may tlimk proper, and shall operate as an Execution of sucii Power unless a contrary Intention shall appear hy the Will. A°evf , XXVI,IL. And be ;t further enacted, That where any Real Estate Words ofDy naU be de[,1S,ed t0 any PJersol> without any Words of Limitation! such Limitation i?evlse shall be construed to pass the Fee Simple, or other the whole shall lie con- "State or Interest which the Testator had Power to dispose of bv paaTtheVee. the Will *“* Un'eSS “ shall appear by The Words “ die without Issue,” or “ die without leaving Issue,” shall be construed to mean die without Issue living at the Death. ,XX!X- ;}nd be it further enacted, That in any Devise or Bequest of Real or Personal Estate the Words “ die without Issue,” or “ die without leaving Issue,” or “ have no Issue,” or any other Words which may import either a Want or Failure of Issue of any Person in his Lifetime or at the Time of his Death, or an indefinite Failure of his Issue, shall be construed to mean a Want or Failure of Issue in the Lifetime or at the Time of the Death of such Person, and not an indefiniteIallure of his Issue, unless a contrary Intention shall appear by 11,(5 Will, by reason of such Person havinga prior Estate Tail, or of a preceding Gift, being, without any Implication arising from such Words, a Limitation of an Estate Tail to such Person or Issue, or Gtheiwiije: Provided, that this Act shall not extend to Cases where a.s afbrcsa}ti import if no Issue described in a preceding out shall be born, or if there shall be no Issue who shall live to attain 8 the22] 1° VICTORIA, Cap.20. the Age or otherwise answer the Description required for obtaining a vested Estate by a preceding Gift to such Issue. XXX. And be it further enacted, That where any Real Estate No Dense (other than or not being a Presentation to a Church) shall be devised o° |ix”*ll'te0sri,) to any Trustee or Executor, such Devise shall be construed to pass except fora the Fee Simple or other the whole Estate or Interest which the Term or a Testator had Power to dispose of by Will in such Real Estate, Presentation unless a definite Term of Years, absolute or determinable, or an XdlpassV Estate, of Freehold, shall thereby be given to him expressly or by chattel Implication. Interest. Trustees under an unlimited Devise, where the Trust may endure bevond the Life of a Person beneficially entitled for Life, to take the Fee. XXXI. And be it further enacted, That where any Real Estate shall be devised to a Trustee, without any express Limitation of the Estate to be taken by such Trustee, and the beneficial Interest in such Real Estate, or in the surplus Rents and Profits thereof, shall not be given to any Person for Life, or such beneficial Interest shall be given to any Person for Life, but the Purposes of the Trust may continue beyond the Life of such Person, such Devise shall be construed to vest in such Trustee the Fee Simple, or other the whole legal Estate which the Testator had Power to dispose of by Will in such Real Estate, and not an Estate determinable when the Purposes of the Trust shall be satisfied. XXXII. And be it further enacted, That where any Person to whom Devises of any Real Estate shall be devised for an Estate Tail or an Estate in ¿¡j “t quasi Entail shall die in the Lifetime of the lestator leaving Issue |apse. who would be inheritable under such Entail, and any such Issue sha be living at the Time of the Death of the Testator, such Devise shal not lapse, but shall take effect as if the Death of such Person had happened immediately after the Death of the Testator, unless a contrary Intention shall appear by the Will. XXXIII. And be it further enacted, That where any Person being Gifts u> c a Child or other Issue of the Testator to whom any Real or lersonal Issne wh( Estate shall be devised or bequeathed for any Estate or Interest not leave Usu determinable at or before the Death of such Person shall die in the lmnaatt Lifetime of the Testator leaving Issue, and any such Issue of such Person shall be living at the Time of the Death of the Testator, such Devise or Bequest shall not lapse, but shall take effect as if the Death of such Person had happened immediately^ after the Death of the Testator, unless a contrary Intention shall appear by the Will. XXXIV. And be it further enacted, That this Act shall not extend to any Will made before the First Day of January One thousand wil|> lmltle eirrht hundred and thirty-eight, and that every Will re-executed or before 1838, republished or revived by any Codicil, shall for the 1 urposes ot this nortolistates Act be deemed to have been made at the Time at.which the smr.e shall be so re-executed, republished, or revived ; and that t u who die be- shall not extend to_an^ Estate pur autre vte of any Person who shall fore 1838. Testator’s Death shall not lapse.