CHAP. VIII. 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. (a)

Creditor

attesting to be admitted a witness.

A bequest of a legacy by a will is not void because the legatee attests a codicil which gives him nothing, (b) for each witness attests only the instrument to which he puts his name. (c) Nor does a residuary legatee of a share of a residue lose his title by attesting a codicil which, by revoking legacies, indirectly benefits him by increasing the residue.(d)

The Wills Act, (e) further provides by the sixteenth section that in case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged 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.

(a) See Burton v. Newbery, L. R. 1 Ch. Div. 234.

(b) Gurney v. Gurney, 3 Drew, 208.

(c) Tempest v. Tempest, 2 K.

& J. 642; affd. 7 D. M. G. 470.

(d) Gurney v. Gurney, 3 Drew, 208.

(e) 1 Vict. c. 26.

And by the seventeenth section of the same act it is provided that no person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof.(a)

(a) See further as to credibility of witnesses, Hayes & Jarman's Concise Forms of

Wills, 7th ed. 28; 1 Jarm. on
Wills, 3rd ed. 65.

CHAP. VIII. Executor to be

admitted a

witness.

CHAP. IX.

Revocation of will of lands.

Of will of personal estate.

CHAPTER IX.

REVOCATION OF WILLS.

HE sixth section of the Statute of Frauds provides "that no devise in writing of lands, tenements, or hereditaments, nor any clause thereof, (a) shall at any time be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same, by the testator himself, or in his presence, and by his directions and consent; but all devises and bequests of lands and tenements shall remain and continue in force, until the same be burnt, cancelled, torn, or obliterated by the testator or his directions in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor signed in the presence of three or four witnesses declaring the same; any former law or usage to the contrary notwithstanding."

And the twenty-second section provides, "that no will in writing concerning any goods or chattels, or personal estate, shall be repealed, nor shall any clause, devise, or bequest therein, be altered or changed by any effect as "part;" Swinton v. Bailey, 24 W. R. 561.

(a) The word "clause" in this sentence has the same

words, or will by word of mouth only, except the same be in the life of the testator committed to writing, and after the writing thereof read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least."

The twentieth section of the Wills Act, 1 Vict. c. 26, provides that "no will or codicil, or any part thereof, shall be revoked otherwise than aforesaid (that is to say by marriage), or by another will or codicil executed in manner herein before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is herein before required to be executed."

Distinction

between "will or codicil,"

writing."

Under this section a distinction has been drawn between a "will or codicil" and " some writing;" thus, where the deceased, at the foot of his will, wrote the fol- and some lowing words: "This my last will and testament is hereby cancelled, and as yet I have made no other," and he signed his name to this memorandum in the presence of two witnesses, who attested the execution, the Court ordered administration to issue with the memorandum annexed. (a) And where at the foot of his will the deceased wrote a memorandum to the effect, "This will was cancelled this day," and he duly executed such memorandum in the presence of two witnesses, it was held that such memorandum was not a will or codicil, but only a writing which could not be admitted to probate. (b)

But where a testator, in a letter addressed to his brother, and which was signed by him in the presence of two witnesses, directed his brother to obtain his will

(a) Re Hicks, L. R. 1 P. & D. 682.

(b) Re Fraser, L. R. 2 P. & D. 40.

CHAP. IX. and burn it without reading it; it was held that the letter was a writing duly executed, declaring an intention to revoke the will, and administration with the letter only annexed was granted to the next of kin of the deceased. (a)

Formerly parol

revocation allowed.

Difference be

tween devising

sections of the

Statute of

Frauds.

Between the Statutes of Wills, 32 Hen. VIII. c. 37, 34 Hen. VIII. c. 5, and the Statute of Frauds, wills which were required to be in writing could be revoked by parol. (b)

It will be seen that the provisions as to witnesses in and revocatory the devising and revocatory sections of the Statute of Frauds are somewhat different. The fifth (the devising) section requires that devises shall be signed by the tes tator, and shall be attested and subscribed in his presence by three witnesses; while the sixth (the revocatory) section provides that the will, codicil, or other writing, shall be signed in the presence of three witnesses. Accordingly it was argued in an early case, where a second will was inoperative as a will because attested by the witnesses out of the presence of the testatrix, that although the last writing was not a will sufficient to pass lands according to the circumstances required by the statute, yet it was a deed of revocation sufficiently executed within the sixth section; but the Court was of another opinion, viz., that as to the devise of lands the later will was void for the defect before-mentioned; it could not operate so as to be a revocation of the will, because that would be contrary to the apparent intent of the testatrix, who plainly designed it to be her will and not a revocation.(c)

(a) Re Durance, L. R. 2 P. & D. 406.

(b) Cranvel v. Sanders, Cro. Jac. 497; Ex parte Earl of Il

chester, 7 Ves. 356; Richardson v. Barry, 3 Hagg. 252.

(c) Eccleston v. Petty, Carth. 79; S. C. nom. Eggleston v. Speke,