and property (a), have been held to be choses in action, the assignment of which did not require to be perfected by notice to avail against the assignor's trustee in bankruptcy. On the other hand, it has been decided in one case that shares in a company are not choses in action within the above provision, and that an assignment thereof may be defeated by the assignor's trustee in bankruptcy, unless perfected by notice (6). Doubts, however, have been thrown upon the correctness of that decision; but it appears to be conceded that there may be personal interests of an incorporeal nature the assignment of which must be perfected by notice to take them out of the order and disposition of the assignor (c). SECTION II.-CONVEYANCING EX TESTAMENTO. tion of Before the 1st January, 1838, the modes of disposing of Distribuproperty by will varied according to the nature of the subject. property to be disposed of. On that date the Wills Act, now in force, came into operation, and introduced one uniform system of testamentary disposition, whatever the nature of the property in question might be. We may accordingly consider the subject of the present section under the two heads I. Wills made before 1st January, 1838. II. Wills made since 1st January, 1838. (a) In re Pryce; ex parte Rensburg, L. R. 4 Ch. D. 685. (b) Ex parte Union Bank of Man chester; in re Jackson, L. R. 12 Eq. (c) Ex parte Ibbetson; in re Moore, Feoffments to uses of wills. Subsection I.-Wills made before 1st January, 1838. 1. Testamentary disposition of Freeholds.-At common law, with the exception of lands within a borough devisable by custom (a), freehold property was not disposable by will. There was, however, no similar restriction in equity. Hence, a feoffment to the uses of a last will enabled an owner to make a testamentary disposition of the beneficial estate, which the Court of Chancery would compel the feoffees faithfully to carry out (b). Such was the universal device resorted to for the passing of freeholds by will prior to the twenty-seventh year of Henry VIII.'s reign. In that year the Statute of Uses, by annexing the seisin to the use, rendered it impossible to dispose of the equitable apart from the legal estate (c), for it was not until some time afterwards that trusts were introduced (d), and thus the only means of devising freehold Wills Acts interests ceased to be available. To supply the want of testamentary power that thence arose, the Wills Act of 1540 (e), as explained and amended by the auxiliary Act of 1542 (ƒ), authorised owners seised of estates in fee simple-whether in possession, reversion, or remainder-to dispose by will in writing of the whole or two-thirds of such estates, according as the same were respectively held in common socage (g) or by knight service (h). By 12 Car. II. c. 24 the ancient tenures in chivalry were transmuted into the single tenure in Hen. VIII.'s reign. (a) Litt. s. 167. (b) Co. Litt. 111 b (1). (d) Ante, p. 31. (e) 32 Hen. VIII. c. 1. (ƒ) 34 & 35 Hen. VIII. c. 5. (g) 32 Hen. VIII. c. 1, ss. 1, 2; 31 & 35 Hen. VIII. c. 5, ss. 3, 4. (h) lb. ss. 5-8. of common socage; thenceforward, a man might dispose by will of all the freeholds of which he was seised for an estate of inheritance in fee simple. testator. For the validity of a will under the statutes of Hen. VIII. Seisin of nothing more was requisite than that the same should be in writing, and that the testator should at the time of disposition be seised of the freeholds disposed of. It was not necessary that the will should be attested or signed, but it was absolutely necessary that the testator should be seised when the will was made, and should so continue seised until the time of his death (a). The consequences of this rule were that freeholds of inheritance acquired in the interval between the making of a will and the testator's death could not pass under the will; and that any absolute alienation of such freeholds by act inter vivos, subsequent to the making of a will disposing of the same, would render the will inoperative, even although the testator re-acquired the actual seisin before his death (b). under With regard to testamentary capacity, married women, Persons infants, and persons non compotes mentis were disabled from disability. making a valid will (c). Frauds. Beneficial as were the above enactments, they, nevertheless, Statute of failed to secure the due authenticity of testamentary instruments and revocations, and to confer the power of disposing ex testamento of estates pur autre vie. These defects were met by the Statute of Frauds (d), the provisions of which, (a) Cf. Goodright v. Forrester, 8 Ea. 552; Brydges v. Duchess of Chandos, 2 Ves. jun. 427. (b) I Jarm. on Wills, 4th ed. 147. Devises to be in writing, signed by testator, and attested by three or four witnesses. Mode of revocation. Estates pur autre ve made devisable and assets. Executor or administrator trustee of undisposed-of surplus. so far as they affected the testamentary disposition of freehold property, may be thus summarised:-Every devise, whether by force of statute or by force of custom, of freehold estate was required to be in writing, signed by the testator or by some person in his presence and by his express directions, and to be attested and subscribed in his presence by three or four credible witnesses; otherwise such devise was rendered utterly void (a). This provision was duly satisfied if the testator merely affixed his mark to a will, and that either at the beginning, end, or other part of the instrument, in such a position as would fairly control the whole context (b). A devise once duly constituted was made incapable of revocation, except by a subsequent will duly executed, or by the burning, cancellation, tearing, or obliteration thereof either by the testator himself or in his presence and by his direction and consent (c). Estates pur autre vie, when not entailed, were rendered capable of testamentary disposition by the same formalities as estates in fee simple. If undisposed of they were made chargeable in the hands of the heir, if they came to him as special occupant, as assets by descent, as in the case of lands in fee simple, and, if there were no special occupant, they were to go to the executors or administrators of the grantee, and be assets in their hands (d). Upon this enactment a doubt was raised whether an executor or administrator, after satisfying the testator's debts, would not hold the surplus of estates pur autre vie, not specifically (a) 29 Car. II. c. 3, s. 5. (b) Lemayne v. Stanley, 3 Lev. 1; Coles v. Trecothick, 9 Ves. 249; cf. Caton v. Caton, L. R. 2 H. L. 127, (c) 29 Car. II. c. 3, s. 6, or adminis disposed of for his own benefit (a). This doubt was set at rest by 14 Geo. II. c. 20, s. 9, and the decision of Lord Eldon Executor in Ripley v. Waterworth (b), the effect of which was to render trator the executor or administrator merely a trustee for the residuary legatees or next of kin (c). trustee of undisposed. of surplus. incapable will under c. 3, s. 5. The provision in the Statute of Frauds requiring attestation Devisees and subscription by credible witnesses (d) was held to exclude of proving persons beneficially interested as devisees, legatees, or other- 29 Car. II. wise taking as volunteers, from being admitted to prove the execution of wills disposing of freehold property (e). In consequence of this construction, intestacy frequently resulted from some trivial gift to a witness which left the bulk of the testator's estate untouched. To cure this mischief, it was Attesting witnesses, enacted that any beneficial devise, legacy, estate, interest, gift, when or appointment, of or affecting any real or personal estate admitted to other than charges on land for payment of any debt or debts, seised, prove, but not to take under will, by 25 Geo. I. c. 6. given by will made after the 24th day of June, 1752, to a witness attesting the same, should be null and void; but that such attesting witnesses should nevertheless be admitted to prove the execution of the will (f). Attesting Except witnesses, however, when creditors, were not disabled from creditors taking the benefit of a testamentary charge of their debts and were still admissible to prove the execution of the will under which they were so benefited (g). Nor was an (a) Cf. Co. Litt. 41 b. n. (5). (b) 7 Ves. 425. (c) Cf. II White on Legacies, 3rd ed. 640. (d) 29 Car. II. c. 3, s. 5,ante, p. 192. () Hilliard v. Jennings, 1 Ld. Raym. 505; Carth. 514; Holdfast, v. Dow- (f) 25 Geo. II. c. 6, s. 1. when or trustees. |