rebutted by circumstances showing a different intention merely. (a) In Coppin v. Dillon, (b) the testator died on the 19th of October, 1831, having made a will in 1820, and three codicils, all formally executed and attested to carry realty; he destroyed the will, but on each of the codicils was written "June 18, 1830, my will, John Plura," and other endorsements at a subsequent date, inferring that he considered that at such time he had no will. In 1830 he executed a new will and codicil, the latter subsequent to June, 1830, which will and codicil were not forthcoming, and in 1831 he executed a settlement. Three codicils, the settlement and its envelope, were propounded as together containing the will, the Court, holding, first, that the destruction of the will of 1820 prima facie revoked the codicils; that the words written on the codicils were not conclusive of an intention that they should operate as substantive papers; that evidence dehors the papers was therefore admissible, and on such evidence that the will and codicil of 1830 must be presumed to have been destroyed by the deceased, but though destroyed, would primâ facie have been revocatory of the former will and codicils, and that the settlement was intended as a substitution for the codicils; pronounced for an intestacy. (c) But if from the contents of the codicil it appears that it can operate independently of the will, (d) as where it relates solely to matters of account, (e) or if the testator (a) Medlycott v. Assheton, 2 Add. 229. (b) 4 Hagg. 361. (c) And see Re Dutton, 3 Sw. & Tr. 66. (d) Tagart v. Hooper, 1 Curt. 289; Barrow v. Barrow, Cas. (e) Re Halliwell, 4 No. Cas. CHAP. IX. CHAP. IX. has declared that the codicil alone shall be considered as his will, (a) then the destruction of the will does not revoke the codicil. Recent decisions. In some recent cases the Court of Probate has considered that since the Wills Act there is no such thing as presumptive revocation of a codicil by the destruction of the will, (b) and that if the codicil is not revoked by any of the means indicated by the twentieth section of the Wills Act, it remains in full force and effect, and is entitled to probate. (c) In Re Savage (d) the authorities on this point were reviewed, and Lord Penzance said: "In my judgment the words of this statute are imperative, and the decisions to which I have referred, since the passing of the statute, do not appear to have proceeded on a consideration of those imperative words . . . . If a testator destroy his will and does not destroy his codicil, it appears to me that his intention probably is not to revoke the codicil; but I proceed, not on the ground of intention, but on the words of the statute. I hold that when a testator has once executed a testamentary paper, that paper will remain in force unless revoked in the particular manner named in the statute.(e) A codicil revoking a will does not necessarily revoke a prior codicil.(ƒ) CHAPTER X. NUNCUPATIVE WILLS AND SOLDIERS' AND MARINERS' WILLS. wills. NUNCUPATIVE testament is when the СНАР. Х. testator without any writing doth declare his Nuncupative will before a sufficient number of witnesses. And it is called nuncupative à nuncupando, i.e. nominando, or naming. Because when a man maketh a nuncupative testament he must name his executor, and declare his whole mind before witnesses. (a) The Statute of Frauds contained the following provisions relating to nuncupative wills: S. 19. "And for the prevention of fraudulent practices in setting up nuncupative wills, which have been the occasion of much perjury, be it enacted, That no nuncupative will shall be good, where the estate thereby bequeathed shall exceed the value of thirty pounds, that is not proved by the oaths of three witnesses (at the least) that were present at the making thereof; nor unless it be proved that the testator at the time of pronouncing the same did bid the persons present, or some of them, bear witness that such was his will, or to that effect; nor unless such nuncupative will were made in the (a) Swinb. Part I. s. 12, pl. 1. CHAP. X. Words to be committed to Probate of nuncupative wills. time of the last sickness of the deceased, and in the house of his or her habitation or dwelling, or where he or she hath been resident for the space of ten days or more next before the making of such will, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling." 20. "That after six months passed after the speaking writing within of the pretended testamentary words, no testimony shall six days. be received to prove any will nuncupative, except the said testimony or the substance thereof were committed to writing within six days after the making of the said will.” 21. "That no letters, testamentary or probate, of any nuncupative will, shall pass the seal of any court till fourteen days at the least after the decease of the testator be fully expired; nor shall any nuncupative will be at any time received to be proved unless process have first issued to call in the widow or next of kindred to the deceased, to the end that they may contest the same if they please." Present law. Soldiers' and mariners' wills excepted. But now by the Wills Act, (a) all wills not executed in conformity with the provisions of the act are invalid. (b) SOLDIERS' AND MARINERS' WILLS. The twenty-third section of the Statute of Frauds provides, "That notwithstanding this act, any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his movable, wages, and personal estate, as he or they might have done before the making of this act." This section was re (a) 1 Vict. c. 26, s. 9. (b) See further as to nuncu pative wills, 1 Wms. Exors. 7th ed. 116. pealed by the Wills Act, (a) the eleventh section of which provides, "That any soldier 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 the making of this act." The twelfth section of the Wills Act, relating to the wills of petty officers, seamen, and mariners, was repealed by the Admiralty, &c., Acts Repeal Act, 1865, (b) and the law relating to the wills of seamen and marines of the Royal Navy and Marines is now regulated by the Navy and Marines (Wills) Act, 1865.(c) СПАР. Х. marine. The second section of this act defines a "seaman or Seaman or marine" as a "petty officer or seaman, non-commissioned officer of marines, or marine, or other person forming part in any capacity of the complement of any of Her Majesty's vessels, or otherwise belonging to Her Majesty's naval or marine force, exclusive of commissioned, warrant, and subordinate officers, and assistant engineers, and of kroomen." The third and fourth sections invalidate wills made before entry into service so far as relates to wages, prizemoney, bounty-money, grant, or other allowance in the nature thereof, or the money payable by the Admiralty, or any effects or money in charge of the Admiralty; and also wills written or contained on or in the same paper, parchment, or instrument with a power of attorney. The fifth section provides that "a will made after the commencement of this act by any person while serving as a seaman or marine, or when he has ceased serve, shall not be valid to pass any wages, prize-money, bounty-money, grant, or other allowance in the nature (a) 1 Vict. c. 26. (b) 28 & 29 Vict. c. 112. (c) 28 & 29 Vict. C. 72. so to Will made combined with power of before entry or attorney Regulations seamen, &c., as for wills of to wages, &c. |