Before the 1 Vict. c. 26, wills of personal estate might even be nun cupative, 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. II. c. 3). A will of freehold Lands of inheritance was required to be executed in the manner prescribed by the 5th section of the Statute of Frauds, which required it to be signed by the party devising, 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 1 Viet. c. 26, 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 witnesses or their wives or husbands are declared void. This is an extension of the 25 Geo. 11. 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 signature of the testator was not required for the validity of a will of personalty or of copyholds, whether the instrument was in his own hand-writing or in that of another. But by the 9th section of 1 Viet. c. 26, no will, whether of real or personal estate, is to be valid unless it be in writing, 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 neces sary. Section 10 enacts that all appointments made by will are to be executed in the manner above prescribed, and are to be valid when so executed notwithstanding the non-observance of any other ceremonies required by the power tinder which the appointment is made. By the I Ith and 12th sections, it is declared that the act is not to afflict the wills of soldiers on actual service, or of mariners at sea, which are to remain subject to the particular provisions made respecting them by the 11 Geo. IV. and I Will. IV. e. 20. Questions formerly arose as to what was a publication of a will, but section 13 of 1 Vict. c. 21 enacts that no other publication shall be requisite than execution in the manner prescribed.
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 England, must contain expressions which when translated into English would properly 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 subject domiciled abroad and dying intestate, will descend according to the English law. With respect to personalty, on the other hand, in cases both of testacy and intestacy, the law is different. If a British 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 Englaud, and vice versd 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 pro
perty 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.
A will is a revocable instrument. It was an established rule of law that the will of a fettle 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 act 1 Viet. c. 26, 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 writing declaring an intention to revoke, executed 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 direction, with intent to revoke. By the 21st section uo obliteration, interlinea tion, or other alteration made in any will after execution is to have any effect, except in so far 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 altera tion, 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 removed. The 21st section alters the law as to the effect of oblitera tions 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 conveyance or other act made or done subsequently to the execution of a will of real or personal estate, except an act of revocation, 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 section 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 ou the will Republication of a will is in fact a re-execution of it, being a repeti tion of the ceremonies required for its original validity : before the act 1 Viet. c. 26, a devise of lands could only be republished by signature and attestation by three witnesses, while with respect to copyholds and personalty a will might be republished without any formal execution, and even by the mere parol acts and declarations of the testator.