Page images

that he did not dispute the will, he

is put to his election

111 1. Difference between alteration and
3. The doctrine of election does not erasure in a will

prevail against creditors taking benefit 2. Erasure of part of a will, not a revo-
under a devise for payment of debts, cation of the whole 380, 381
and disputing the will in other re- 3. Where erasure alters the quantity or

248, note. quality of the estate it is a fresh ex-

ercise of the disposing power

380, note.
1. In what cases equity will help the
defective execution of a will 69

2. Where a disposition, not valid as a 1. Of the evidence of the attestation of
nuncupative will for informality, has wills

173, et seq.
been supported as a trust in equity 2. In common law courts one of the

208, 209

subscribing witnesses may prove the
3. Discretionary trusts, express trusts, attestation by the others 179

and words of recommendation and 3. And if all the witnesses deny their
desire- how considered in equity hands, still the devisee may go into

231 circumstances to prove the due exe-
4. Subsequent dealings with tlie estate cution of the will

ib. 180
in equity, how far revocative of 4. Whether the evidence of the sub-

304 scribing witnesses can be received
See Devise, 8; LANDS, 4; MORT. against their own attestation 180
GAGE, 48.

5. Of the proof to establish a will in
Courts of Equity

EQUITY OF REDEMPTION. 6. All the witnesses, if living,
1. An equity of redemption of a free- be examined

hold estate cannot pass by an unat- 7. When proof of hand-writing of a
tested will

105 witness is sufficient, 189, 190, 191
2. Difference between an equity of 8. Proof of wills disposing of per:
redemption and a mere trust, sonalty :

338, note (4). 9. Of proving a will in the common
and solemn form


10. Of the degree of evidence neces.
1. Estates by custom, how affected by sary to establish a nuncupative will

the statute of frauds and of wills

34, et seq. 11. Of parol and extrinsic evidence,
2. Effect of the statute of frauds on es. see Chap. III. passim.
tates pur auter vie

46 12. Whether parol evidence be admis.
3. Lord Vaughan's opinion that this sible to determine the presumption

estate comes to the heir by proper in the case of double legacies in the

49 same and distinct instruments, 384
4. Where the estate directed to be pur. 13. Lord Thurlow's doctrine, that all

chased cannot be had, other lands sorts of evidence are admissible to
may be bought

377, note. rebut presumptions, and even that
5. Query where the place and not the constructive operation of an instru-
estate is specified

ibid. ment, which is referible to presump:
6. What passes under the word estate tion, with different degrees of

619, note force: but not where it is a question
Sre CorynOLD; Powers 9

as to the construction of words qua


[ocr errors]

281, et seq.

words, or as to the effect of limita-

tions, or technical expressions, 1. The will of persons committing sui-
442, 443 cide, how far valid

14. Examples of rules of construction,
not to be opposed by extrinsic evi-


15. Distinction between admitting evi-
dence to raise and to rebut an equity,


449, note. 1. Nature of, in the Roman law
16. On the admissibility of parol evi-

9, 10, note.
dence in cases of presumptive trusts
in the executor, for the next of kin

of the testator as to the surplus un- 1. Fraud, its effect on a will - 31
disposed of by will

451 2. Acts fraudulently done or procured
17. Of the general admissibility of pa- to be done, whether and how far they

rol evidence to rebut the presumption can effect a revocation
against the executor

18. Testator's declarations, how far

19. Contemporary declarations must be 1. Restraints imposed by it on the mak-
attended to

ing of wills

20. But with different degrees of 2. Does not extend to copyholds 34

weight all these declarations are ad- 3. A sum of money devised out of land

455 is part of the land in equity, and such

disposition is within the statute of

1. Whether an executor can be a spe- 4. Construction of Section vi of this
cial occupant


2. Whether he can take the surplus for 5. Grammatical reading of the language

his own benefit, and how far the sta- of this section, whereby it is brought
tutes have changed ihe nature of the into agreement with the provisions of
55 the preceding clause

3. When a legacy takes away an execu-6. Legal distinctions founded upon

tor's right to the surplus, 449, note. construction

254, 255
4. Of the presumptive trust in the ex- 7. Provisions of the statute, at length,
ecutor for the next of kin, as to de-

prive him of the surplus undisposed
of by the will .

5. In equity a debt is not released by a 1. Statute of fraudulent devises, 242

creditor's making his debtor his ex- 2. Excepting clause, its effect, 245

473, note (12) 3. Devise for payment of debts out of
6. Secùs, at law

ibid. the rents and profits only, within the
7. Where trustees for sale are also


made executors, 520, 521, note. 4. Secùs, where a devise for payment

of debts does not provide for it in a

practicable manner
5. Remedies at law upon the statutes,

248, 249

6. Of the estate pur auter vie under the
Ser DEVISE, 2.

statute of frauds




8. Duration of guardianship - 240
1. A will, disposing of the equitable 9. Remedies incident to the office, ib.

estate in customary freeholds, must 10. Of the powers of a testamentary
be executed according to the statute guardian

of frauds

2. But, where there is a custom for sur-
rendering these equitable estates to

the uses of a will, they seem to be
out of the statute


3. All equitable estates of freehold must 1. Trust estates descending shall be

be devised by will duly executed and assets in the hands of heirs, 29 Car.
ib. 45 2, c. 3, § 10

4. Descendible freehold, what, 49, 50 2. But no heir shall, by reason thereof,
5. Things affixed to the freehold are become chargeable of his own estate,
not devisable by will unattested 98 ibid. 11

6. Therefore trees will not 99 3. Estates pur auter vie are also assets
7. Nor grass and herbage

101 in his hands, ibid. § 12 . 50+
8. Nor heirlooms

ib. 102
9. But growing corn will, in what cases

99, 100, and note. 1. Derivation of the word, 101, note.
10. If a man, having freeholds and 2. Heir-looms cannot be devised sepa-

leaseholds, devise all his lands and rately by the owner of the fee simple,
tenements by a will unattested, the

in what case

leaseholds will not pass 118 3. What may be considered as heir-


1. Property in the funds is devisable by

will in writing, attested by two or 1. In what case a trustee for the wife,
more witnesses

524, note (6).
2. May demand administration of his
wife's personai estate




I. J.
1. Whether gavelkind lands were de.
visable by custom • 6, note (2)


1. An infapt cannot make a will of

1. Of the appointment of guardians by 2. Yet, sometimes by particular custom,

230 infants are enabled to devise lands, 45
2. Guardians at common law and by 3. The testamentary capacity as to chat-

234 tels commences in males at 14, in
3. Guardianship by nurture, what 236 females at 12

4. Guardianship in soccage 237
5. Testamentary appointment 238 See LEGACY 13.
6. Probate not necessary to the validity
of the appointment under the statute

of frauds

239 1. Difference between tenants in com-
7. Appointment, how revocable mon and joint-tenants, as to the ef.

240, 275
fects of partition

340, note



11. Lands, acquired by purchase after

the will, do not pass by it 296

12. A right of entry into lands is not
1. By will duly executed, charging devisable

298 and note.
land generally with legacies, a testa 13. But, if after disseisin an entry be
tor enables himself to lay any number made, the disseisin is purged, the
of additional legacies on the land, by

title relaxes, 'and the lands pass by a
a subsequent testamentary disposition will prior to the disseisin 299

77 | 14. All devises of lands are specific
2. Distinction between the case of sub-

sequent legacies charging the land, 15. What passes under the word • lands'
by virtue of a former will charging

619, note
them generally upon the land, and a And see MORTGAGES 2.
reservation by will of a future power
of disposition


3. A sum of money devised out of land 1. In general, a renewal of a lease is a
7. Subtlety of the distinctions between

is part of the land in equity; and revocation of a will, whether it be of
such disposition is within the statute a chattel or a freehold lease 349
of frauds

802. Difference between freehold and
4. A direction by will to sell lands for chattel leases in this respect

certain purposes, does not so ultimately 3. Whether the renewal of a chattel
change the character of the property, lease is a revocation of a will, de-
as that the surplus, after the particu- pends on whether the devise is speci.
lar objects are satisfied, may pass by fic or general 353 and note, 357
an unattested codicil

81 | 4. If the renewed lease be not executed
5. To effect this absolute conversion, a

in testator's life.time, an agreement
clear intention ought to be demon- for such new lease will not revoke a


6. Where a testator shews both the 5. Where the disposing words would

real and personal estate to be equally have passed the leases if renewed in
in his contemplation, as the funds out testator's life, any renewals after his
of which the legacies are to be satis. death by his representatives will pass
fied, a revocation effcctual as to the by such words

personalty, but insufficient as to the
real for want of being attested accord-
ing to the statute, will leave the land

still subject to the charge 83, 84. 1. Of the power of bequeathing lega.
7. The court cannot see the testator's cies, in the different stages of the
intention with respect to his real pro-

Roman law

8, note.
perty, unless he express it by will ac- 2. Legata et fidei commissa, what,
cording to the statuie

9, 10, note.
8. Devise of a rent out of land must be 3. Distincțion between a legacy and a

by will attested by three witnesses 88 donatia mortis causa 13, pote,
9. If a man, having freeholds and lease- 1 4, 4 legacy (given by a written will,).

holds, devise all his lands and tene- lapsed, or void for some legal objec-
ments by a will unattested, the lease. tion, may be the subject of a nuncu-
holds will not pass
118 pative disposition

10. If a man devise all his lands and te- 5. Ademption of legacies 417

nements at a particular place, and have 6. Wherever the subject of a specific
only leaseholds answering to the local legacy is withdrawn, the legacy must
description, the leaseholds will pass,119

418, 419


specific and general legacies, 418 1. Lunatics incapacitated from making
8. Debts paid by legacies, see DEBTS. a will; and of the lucid intervals
9. Double Legacies by the same instru.


10. By different instruments ibid.

11. State of the doctrine as to the pre-
sumption of the courts in the cases of

double legacies in the same and dis- 1. The general rule is, that marriage
tinct instruments

438, 439

and the birth of a child is an implied
12. Whether parol evidence is admissi-

revocation as well of a will of real as
ble to determine this question 440 of personal estate

13. If a legacy, given for an infant's 2. Origin and gradual adoption of the
benefit in one way, cannot be applied


ibid. note (3),
in that


in another,

3. Whether the previous disposition of
539, note.

the whole estate is necessary to
14. Under a bequest to servants, who ground the application of the rule
are included
561, note.

397, note (4).
15. Of the period of vesting, both as

4. Lord Mansfield's doctrine in respect
to legacies and legatory portions 631, to the admissibility of extrinsic evi-

632, note

dence to rebut the presumption, 397
16. Of the abatement of legacies

5. The principle of the rule according
633, note
to Lord Kenyon

17. Of interest upon legacies 635, 6. Whether a will is revoked by the

636, note

birth of more children by a first mar-
18. Origin of, and observations upon riage after a will, and a second mar-
the Accumulation Act 679-681, riage without children

note 7. A subsequent marriage and the birth
See Lands 1.

of a posthumous child operate as a


8. The rule does not depend so much
1. Legatee must be capable of taking on intention as on the notion of a

under the will of the testator 33 tacit condition, that in the event of
2. A legatee may recover his legacy marriage and a child, the will should
out of the real estate, without proving not stand

a will

77, note. 9. Both marriage and the birth of a
S. Legatees, how far admissible as evi- child must concur, and both events
dence under the Roman law must take place after the will 404

152, 153 and note. 10. Conditions in restraint of marriage
4. The rule of the Spiritual and Com-

how considered by Courts of Equity
mon Law Courts, where the witness

,527, note.
was a legatee or devisee 154
5. If a legatee under a will attest its

execution, his legacy shall be void, Soe DEVISE, 2
25 Geo. 2, c. 6, 01



1. Of their capacity to make a will, 28

2. Io what manner their testamentary
1. Restraints on the testamentary dispositions take effect

power, by the custom of London, 3. May make wills with consent of
removed by the statutes 7, 8, bot', their husbands

993, Dote (2), 394

[ocr errors]
[ocr errors]

29, 30

« ՆախորդըՇարունակել »