A will is a revocable instrument. It was an established rule of law that the will of a feme sole was revoked by her marriage, but marriage alone was not considered a revocation of the will of a man ; though marriage and the birth of a child, whom the will would disinherit, conjointly were admitted by the courts to have that effect, on the ground that these circumstances together produced such a change in the testator's situation, that it could not be presumed he could intend any previous disposition of his property to continue unchanged. By section 18 of the new act every will made by a man or woman is revoked by marriage, except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not, in default of appointment, pass to the heir, personal representative, or next of kin of the appointor. And by the 19th section no will is to be considered as revoked by any presumption of intention on the ground of an alteration in circumstances. By the 20th section no will or codicil is revocable except as above mentioned, or by another will or codicil executed in the manner required by the act, or by a writ ing declaring an intention to revoke, exe cuted in the same manner, or by burning, tearing, or otherwise destroying the will by the testator himself, or by some other person in his presence, and by his direc tion, with intent to revoke. By the 21st section no obliteration, interlineation, or other alteration made in any will after execution is to have any effect, except in so fir as the words or effect of the will previous to the alteration cannot be made out, unless the alteration be executed as a will, such execution to be in the margin opposite or near to the alteration, or to a memorandum referring to the alteration. By the Statute of Frauds witnesses to a will were required to sign in the testator's presence, but it was not necessary that he should sign in their presence, whereas by section 6 of that act a mere revocation in writing must have been signed by the testator in presence of the witnesses, but they were not required to sign in his presence. This inconsistency is now re moved. The 21st section alters the law as to the effect of obliterations where the words remain legible, and of cancellation by drawing lines across the whole or any part of the will. These acts will now be of no effect unless properly executed and attested. By the 23rd section no convey ance or other act made or done subse quently to the execution of a will of real or personal estate, except an act of revo cation, is to prevent the operation of the will upon such estate or interest as the testator has power to dispose of at the time of his death : and by the 24th sec tion every will is to be construed with reference to the real and personal estate comprised in it, so as to take effect as if it had been executed immediately before the death of the testator, unless a con trary intention appear on the will.
Republication of a will is in fact a re execution of it, being a repetition of the ceremonies required for its original va lidity: before the recent act a devise of lands could only be republished by signa ture and attestation by three witnesses, while with respect to copyholds and per sonalty a will might be republished with out any formal execution, and even by the mere parol acts and declarations of the testator.
The 22nd section of the act provides that no will or codicil, or any part there of. which shall have been in any manner revoked, shall he revived otherwise than by the re-execution thereof, or by a codi cil executed in manner required by the act, and showing an intention to revive the same ; and when any will or codicil which shall be partly and afterwards wholly revoked, shall be revived, the re vival is not to extend to such parts as had been revoked before the revocation of the whole, unless a contrary intention appear. Under the old law, if a second
will or codicil which revoked a former will was afterwards cancelled, the first, if it had been kept undestroyed, was held to be revived. It had previously been determined (4 Ves., 610) that a subsequent codicil, merely for a particular purpose and confirming the will in other respects, did not amount to a republication of parts of the will revoked by a former codicil. This section extends the doctrine to the case where a will had been first partially and afterwards wholly revoked.
Estates or interests in property created by way of executory devise or bequest, that is to say, such as are made expectant on the determination of prior estates in the same property, may be, like estates created by way of remainder in a deed, either vested or contingent. So far as depends upon the nature of the limita tions themselves, the same rules are in general applicable to executory devises or bequests as to remainders; but testa mentary instruments are not construed with the same strictness as deeds, and in determining the question of vesting or contingency, many considerations, de pending on expressions in the will or other circumstances appearing upon the face of it, are admitted as affording pre sumptions of the intention of the testator. It is impossible here to give any enume ration of the numerous rules which have been laid down on this subject, and which are of course liable to be modified accord ing to the circumstances of each parti cular case. It may however be observed generally that when a future gift is pre ceded by a gift of the immediate interest, it is to be presumed that the enjoyment only is postponed, and that the future gift is vested in interest; whereas when there is no gift of the immediate interest, the contrary presumption obtains: and again, that when the enjoyment of a gift is post poned, not on account of circumstances personal to the object of the gift, but with a view to the circumstances of the estate, the gift is to be presumed vested. With respect to pecuniary legacies, some dis tinctions, borrowed from the civil law, are admitted which have no place as to real estate. One of these distinctions is that where futurity is annexed to the sub stance of the gift, the vesting is in the mean time suspended : but where the time payment only is future, the legacy vests immediately. If however the only gift is contained in the direction to pay, this case is to be regarded as one in which time is annexed to the substance of the gift. When a future gift of a principal sum is coupled with a gift of the interest in the mean time, a strong presumption exists in favour of vesting. It is generally consi dered that a very clear expression of in tention must exist in order to postpone the vesting of residuary bequests, on the ground that intestacy may often be the consequence of holding them to be con tingent.
Great changes have been introduced in the law, as to the interpretation of wills by the above-mentioned 24th section of the act, which declares that wills are to be construed to speak as if they were executed immediately before the death of the testator, and the six following clauses.