Before the 1 Vict. c. 26 wills of per sonal estate might even be nuncupative, that is to say, might be declared by the testator without writing before witnesses, provided they were made in conformity with the directions contained in the 19th section of the Statute of Frauds (29 Car.
c. 3). A will of freehold lands of inheritance was required to be executed in the manner prescribed by the 5th sec tion of the Statute of Frauds, which required it to be signed by the party de vising, or by some other person in his presence and by his express direction, and to be attested and subscribed in the presence of the devisor by three or more credible witnesses. The term "credible," which gave rise to much discussion under the old law, is omitted in the new act, and it is enacted in the 14th section that no will is to be void on account of the incompetency of any attesting witness. By the 15th section gifts to attesting wit nesses or their wives or husbands are declared void. This is an extension of the 25 Geo. II. c. 26, which related only to wills which at that time required the attestation of witnesses, that is to say, to wills of real estate. The words as to wives or husbands are new. The signa ture of the testator was not required for the validity of a will of personalty or of oopyholds, whether the instrument was in his own hand-writing or in that of an other. But by the 9th section of 1 Vict. c. 26, no will, whether of real or personal estate, is to be valid unless it be in writ ing, and signed at the foot or end by the testator or by some person in his presence and by his direction; and such signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses must attest and subscribe the will in the presence of the testator, but no particular form of attestation is necessary. Section 10 enacts that all appointments made by will are to be exe cuted in the manner above prescribed, and are to be valid when so executed notwithstanding the nonobservance of any other ceremonies required by the power under which the appointment is made.
By the 11th and 12th sections, it is de clared that the act is not to affect the wills of soldiers on actual service or of mariners at sea, which are to remain sub ject to the particular provisions made respecting them by the 11 Geo. IV. and 1 Wm. IV. c. 20. Questions formerly arose as to what was a publication of a will, but section 13 of 1 Vict. c. 26 enacts that no other publication shall be requi site than execution in the manner pre.. scribed.
It is the rule in England, that a will of lands is regulated by the law of the country in which the lands are. The place where and the language in which such a will is written are unimportant : the locality of the lands is the only point to be considered. A will made in France and written in French, of lands in Eng land, must contain expressions which when translated into English would pro perly designate the lands in question, and must be executed according to the forms required by the English law. Lands in England which belong to an English sub ject domiciled abroad and dying intes tate, will descend according to the Eng lish aw. With respect to personalty, on the other hand, in cases both of testacy and intestacy, the law is different If a Ilritish subject becomes domiciled abroad, the law of his domicile at the time of his death is the rule which the English courts follow in determining the validity of his will and administering his personal property in England, and vice vers4 in the case of a foreigner dying domiciled in England. Cases sometimes arise in which it is difficult to determine what was the domicile at the time of the death of the party, and consequently what rule is to be followed in the distribution of his personal estate. If an Englishman domiciled abroad has real property in England, he ought, on account of the difference of the doctrine with respect to real and personal property, to make two wills, one duly executed according to the English law for devising his real estate, and another framed according to the law of his domicile for the disposal of his personal property.