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Chap. IX.

rebutted by circumstances showing a different inten-
tion merely.(a) In Coppin v. Dillon,() 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 enve-
lope, were propounded as together containing the will,
the Court, holding, first, that the destruction of the will
of 1820 primâ facie revoked the codicils; that the words
written on the codicils were not conclusive of an inten-
tion that they should operate as substantive papers ;
that evidence dehors the papers was therefore admis-
sible, 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


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.

(6) 4 Hagg. 361.

(©) And see Re Dutton, 3 Sw. & Tr. 66.

(d) Tagart v. Hooper, 1 Curt.

289; Barrow v. Barrow, Cas.
temp. Lee, 335; Re Ellice, 33
L. J. P. & M. 27.

(e) Re Halliwell, 4 No. Cas.
400; 9 Jur. 1042.

Chap. IX.

Recent decisions.

has declared that the codicil alone shall be considered as his will, (a) then the destruction of the will does not revoke the codicil.

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, (6) 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. (f)

(a) Clogstoun v. Walcott, 5 No. Cas. 623.

(6) Re Dutton, 3 Sw. & Tr. 69, per Sir C. Cresswell.

(C) Black v. Jobling, L. R. 1 P. & D. 685, per Lord Penzance.

(d) L. R. 2 P. & D. 78; see also Re Turner, ib. 403.

(e) And see observations on these cases in 1 Wms. Exors. 7th ed. 154.

(f) Farrer v. St. Catherine's College, L. R. 16 Eq. 19; Bur.

Newbery, L. R. 1 Ch, Div. per Jessel, M. R.

ton v.

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NUNCUPATIVE testament is when the Chap. X. testator without any writing doth declare his Nuncupative

wills. will before a sufficient number of witnesses.

And it is called nuncupative à nuncupando, i. e. nominando, or naming. Because when a man maketh & 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 fect; nor unless such nuncupative will were made in the

(a) Swinb. Part I. s. 12, pl. 1.

Chap. X. 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." Words to be 20. “That after six months passed after the speaking committed to 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." Probate of

21. “That no letters, testamentary or probate, of any nuncupative

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. But now by the Wills Act,(a) all wills not executed in

conformity with the provisions of the act are invalid. (6)



Soldiers' and mariners' wills excepted.

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 СПАР. Х. 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,(6) 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)

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 will made

before entry or before entry into service so far as relates to wages, prize- combined with money, bounty-money, grant, or other allowance in the power of

attorney 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 Regulations

for wills of commencement of this act by any person while serving seamen, &c., as

to wages, &c. as a seaman or marine, or when he has ceased so to 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.

(c) 28 & 29 Vict. c. 72. (6) 28 & 29 Vict. c. 112.


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