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Cuap. X.

thereof, or other money payable by the Admiralty, or
any effects or money in charge of the Admiralty, un-
less it is made in conformity with the following pro-
visions :
(1) Every such will shall be in writing and be exe-

cuted with the formalities required by the law of
England in the case of persons not being soldiers
in actual military service, or mariners, or seamen

at sea.

(2) Where the will is made on board one of Her

Majesty's ships, one of the two requisite attesting witnesses shall be a commissioned officer, chaplain, or warrant or subordinate officer belonging to Her

Majesty's naval or marine or military force. (3) Where the will is made elsewhere than on board

one of Her Majesty's ships, one of the two requisite attesting witnesses shall be such a commissioned officer or chaplain, or warrant or subordinate officer as aforesaid, or the governor, agent, physician, surgeon, assistant-surgeon, or chaplain of a naval hospital at home or abroad, or a justice of the peace, or the incumbent, curate, or minister of a church or place of worship in the parish where the will is executed, or a British consular officer, or

an officer of customs, or a notary public. A will made in conformity with the foregoing provisions shall, as regards such wages, money, or effects, be deemed to be well made for the purpose of being admitted to probate in England; and the person taking out representation to the testator under such will shall exclusively be deemed the testator's representative with respect to such wages, money, or effects."

The sixth section of the act provides that "a will

As to wills made by prisoners of war.


made after the commencement of this act by a seaman or Chap. X.
marine while he is a prisoner of war shall (as far as re-
gards the form thereof) be valid for all purposes if it is
made in conformity with the following provisions :-
(1) If it is in writing, and is signed by him, and his

signature thereto is made or acknowledged by him
in the presence of, and is in his presence attested
by, one witness, being either a commissioned officer
or chaplain belonging to Her Majesty's naval, or
marine, or military force, or a warrant or sub-
ordinate officer of Her Majesty's navy, or the agent

of a naval hospital, or a notary public.
(2) If the will is made according to the forms

required by the law of the place where it is

(3) If the will is in writing, and executed with the

formalities required by the law of England in the
case of persons not being soldiers in actual military

service, or mariners, or seamen at sea." The seventh section provides that, “in case of a will Payment made after the commencement of this act by any person in conformity

under will not while serving as a marine or seaman, and being either in actual military service, or a mariner, or seaman at sea, the Admiralty may pay or deliver any wages, prizemoney, bounty-money, grant, or other allowance in the nature thereof, or other money payable by the Admiralty, or any effects or money in charge of the Admiralty, to any person claiming to be entitled thereto under such will, though not made in conformity with the provisions of this act, if, having regard to the special circumstances of the death of the testator, the Admiralty are of opinion that compliance with the requirements of the act may be properly dispensed with.”

with act.


Chap. X. The words in the eleventh section of the Wills Act,(a) Actul military "actual military service," mean, service in actual war

fare upon an expedition. And therefore it has been held that the will of a soldier which is informally executed, made while living in barracks either in England or the colonies, cannot be admitted to probate.(b) So the informal will of a soldier made at Bangalore in the East Indies, whilst in command of the Mysore division of the army there stationed, and who died whilst on a tour of inspection of the troops under his command, was not admitted to probate. (c)

Again, probate was refused when the deceased, who had been ordered to join an expedition on active service, died before he commenced to march.(d)

But where the testator, who had been employed with his regiment in actual military service, was ordered to join another regiment also in actual military service, died while on his way from the one regiment to the other, his will was held to be privileged. (e) And where the testator at the date of his will was in actual military service, and was sent home invalided, and shortly afterwards died, the will was admitted to probate. ()

Where a memorandum of a nuncupative character was written on the back of a regularly executed will of an officer in the army who died of a wound received in battle, probate was granted of the will and memo

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(a) 1 Vict. c. 26.

(6) Drummond v. Parish, 3 Curt. 522; White v. Repton, ib. 818 ; see also Re Pery, 2 L. T. 335 ; Re Johnson, 2 Curt. 341 ; Re Phipps, 2 Curt. 368.

(c) Re Hill, 1 Rob. 276; 4 No. Cas. 194 ; and see Re Nor

ris, 3 No. Cas. 197.

(d) Bowles v. Jackson, 1 Ecc. & Ad. 294.

(e) Herbert v. Herbert, 1 Deane, 10.

(f) Re Thorne, 4 Sw. & Tr. 36 ; 11 Jur. (N. S.) 568; 12 L. T. (N. S.) 639.

randum.(a) So probate was granted of the will of a

Chap. X. soldier in India executed by a mark without any proof of identity, the witnesses being dead or not forthcoming, the paper having been transmitted officially from India to the East India House.(6)

Where a will in the testator's handwriting contains material alterations, about the making of which no information can be obtained, and such will was signed by him whilst as a soldier he was engaged on actual military service, the alterations will be presumed to have been made during the continuance of such military service, and will be included in the probate.(c)

The term soldier in this section was held to extend to persons in the military service of the late East India Company. (d) The will of a soldier made under this section remains operative unless expressly revoked, although the maker of the will lives in England several years after the date of the will. (e) Under the general provisions of the Wills Act, (f) the Will of a

minor. will of a minor is invalid. The eleventh section of that act, however, provides that “any soldier being in actual military service may dispose of his personal estate as he might have done before the making of this act.” As under the Statute of Frauds a minor might make such a will, it has been decided that the will of a minor written after he was mortally wounded on the field of battle, and attested by one witness, was valid.(9)

(a) Re Churchill, 4 No. Cas. (d) Re Donaldson, 2 Curt. 47.

386. (6) Re Prendergast, 5 No. (e) Re Leese, 17 Jur. 216. Cas. 92; see also Re Phipps, 2 (f) 1 Vict. c. 26. Cart. 368.

(9) Re Farquhar, 4 No. Cas. (c) Re Tweedale, L. R. 3 P. 651; see also Re M.Murdo, L. & D. 204.

R. 1 P. & D. 540.



Requisites to probate.

Mariners or

Where a will is made by a soldier engaged on active military service, and it is not attested, the Court will require the affidavit of two disinterested persons to prove the handwriting of the testator.(a) And if the will is on the face of it that of an illiterate person, evidence must be adduced to prove that he had at the time of execution knowledge of its contents.(6)

The term “ mariner or seaman » includes the whole naval profession.(c) Thus the description has been held

( to apply to the purser of a man-of-war, (d) to a surgeon in the navy,(e) and to seamen in the merchant navy. (f)

Where the testator was commander-in-chief of the naval force at Jamaica, but lived on shore at the official residence, and his family and establishment were on shore, it was held that he did not come within the exceptive clause relating to mariners at sea, and consequently a will made by him on shore was pronounced to be invalid. (9) And where a sailor made his will on the day that he shipped, and when his vessel was still in a British port, probate was refused.(h) But where a seaman, while his vessel was in harbour, went on shore, and while there met with a severe fall, from the effects of which he died a few days later, his informal will made immediately after the accident was admitted to probate, and the Court distinguished the case from that of Re Lord Hugh Seymour, who was living on shore, and only

(a) Re Neville, 4 Sw. & Tr. (e) Re Saunders, L. R. 1 P. 218.

& D. 16. (6) Re Hackett, 4 Sw. & Tr. (f) Morrell v. Morrell, 1 220.

Hagg. 51; Re Milligan, 2 Rob. (c) Per Sir Wm. Wynn, in 108; Re Parker, 2 Sw. & Tr. 375. Re Lord Hugh Seymour, cited (9) Re Lord Hugh Seymour, 2 Curt. 338.

cited 3 Curt. 530. (d) Re Hayes, 2 Curt. 338. (1) Re Corby, 18 Jur. 634.

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