Succession Act 1867 - OzCase

THE SUCCESSION ACTS, 1867 TO 1895.
SUCCESSION ACT OF 1867.
(31 Vic. No. 24.)
7
s. 1.
AS AMENDED BY
The Acts Shortening Act Amendment Act of 1903 (3 Edw. VII. No. lo).
The Statute Law Revision Act of 1908 (8 Edw. VU. No. 18).
8% Act to Consolidats and Amend the Laws Relating to Dower
Inheritance Succession Wills Powers Uses and Remedies agaht
Realty.
[Assented to 28th December, 1867.1
References to cLPring’s Statutes" and to Colonial Acta were omitted from
the marginal note8 throughout this Act by Tho Acts Shortening Act Amendment
Act of 1903, S. 10, title ACTS.
[Preamble repealed by The Statute Law Revision Act of 1908, s. 2,
title ACTS.]
IzLteTpretatim.
1. Meaning of words in the Act. . . . . -That the words and
expressions hereinafter mentioned which in their ordinary signification
have a more confined or a different meaning shall in this Act except
where the nature of the provision or the context of the Act shall exclude
such construction be interpreted as follows (that is to say)
the word ‘‘land” shall extend to messuages and all other here-
ditaments whether corporeal or incorporeal and whether free-
hold or of any other tenure and whether descendible according
to the common law or according to any other law or custom
and to money to be laid out in the purchase of land and to
chattels and other personal property transmissible to heirs
and also to any share of the same hereditaments and pro-
perties or any of them and to any estate of inheritance or
estate for any life or lives or other estate transmissible to
heirs and to any possibility right or title of entry or action
and any other interwt capable of being inherited and whether
the same estates possibilities rights titles and interests or
any of them shall be in possession reversion remainder
or contingency
and the words “the purchaser” shall mean the person who last
acquired the land otherwise than by descent or than by any
escheat partition or inclosure by the effect of which the land
shall have become part of or descendible in the same manner
as other land acquired by descent
and the word “descent” shall mean the title to inherit land by
reason of consanguinity as well where the heir shall be 813.
ancestor or collateral relation as where he shall be a child or
other iwue

8
S. 1. Succession/. [Vol. IX.
and the expression “descendants’ ’ of any ancestor shall extend to
all persons who must trace their descent through such
ancestor
and the expression ‘(the person last entitled to land” shall extend
to the last person who had a right thereto whether he did or
did not obtain the possession or the receipt of the rents and
profits thereof
and the word “assurance” shall mean any deed or instrument
(other than a will) by which any land shall be conveyed or
transferred at law or in equity
and the word “will” shall extend to a testament and to a codicil
and to an appointment by will or by writing in the nature of
a will in exercise of a power and also to a disposition by will
and testament or devise of the custody and tuition of any
child and to any other testamentary disposition
and the words “real estate” shall extend to messuages lands rents
and hereditaments whether freehold or of any other tenure
and whether corporeal incorporeal or personal and to any
undivided share thereof and to any estate right or interest
(other than a chattel interest) therein
and the words “personal estate” shall extend to leasehold estates
and other chattels real and also to moneys shares of Govern-
ment and other funds securities for money (not being real
estates) debts choses in action rights credits goods and all
other property whatsoever which by law devolves upon the
executor or administrator and to any share or interest
therein
3 & 4 Wm. W. c. 105 s. 1.-Provided that in the [fourteen] sections
next hereupon following the word “land” shall not extend to such
hereditaments as are not now liable to dower nor any land which by any
Act heretofore passed may have been exempted from dower.
A reference to 3 & 4 Wm. Iv. C. 106, 8. 1, Was expunged from the marginal
note where indicated, by The Statute Law Revision Act of 1908, s. 5, title ACTS.
The proviso was verbaIly corrected by The Acts Shortening Act Amendment Act
of 1903, S. 10, title BOTS.
“Dtjs~ent~.-See
now The Intestacy Act of 1877, S. 13, post, and notes
thereto.
a wUm.-Formerly a distinction was made in the use of the terms (‘WillJ’
and “testament”. The distinction is said to be that “will’ is a general term,
and that where lands or tenements are devised, though no executor is appointed,
the instrument is properly called a will, and that where it concerns chattels o nl~
and appoints an executor, it is called a testament (see salsbury’s Laws of
England (1st ea.), Vol. 28, title Wills, p. 505). The distinction, however, was
never rigidly adhered to.
A d l and codicil being one instrument, the will may be interpreted by
reference to the codicil (Jenkins v. Stewart (1906), 3 C.L.R. 799).
As to what form of document amounts to an appointment by will in exercise
of a power, see Be Barnett, [1908] 1 Ch. 402. See also s. 59, post, and notes
thereto.
As to testamentary appointment of guardians, see The Guardianship and
Custody of Infants Act of 1891, 8s. 44 5, title CHILDREN.
66 Personal estate ”.-As to devolution of personalty upon persona1
representatives, see Halsbury’s Laws of England (2nd ea.), Vol. 14, pp. 293
et seq.

S‘uccession Act of 1867.
9
86.2-7.
Right to Dower or Provision.
2. Seisin shall not be necessaxy to give title to dower, 3 & 4 Wa,
IV. c. 105 s. 3.-When a husband shall have been entitled to a right of
entry or action in any land and his widow would be entitled to dower out
of the same if he had recovered possession thereof she shall be entitled to
dower out of the same although her husband shall not have recovered
possession thereof
Provided that such dower be sued for or obtained within the period
during which such right of entry or action might be enforced.
The statute 3 & 4 Will. 4, c. 105, referred to in the marginal notes to this
and the following sections, is The Dower Act, 1833, for which se0 Halsbury’s
Statutes of England, Vol. 15, p. 96.
Estates and rights of dower or by the curtesy were abolished in Queensland
by The Intestacy Act of 1877, 8. 28, post. As to the nature of dower, see
Halsbury’s Laws of England (2nd ea.), Vol. 27, p. 711. As to the nature of
curtesy, see ibid., p. 706.
3. Widows to be entitled to dower out of equitable estates. 3 & 4
Wm. IV. c. 105 s. 2.-When a husband shall die beneficially entitled to
any land for an interest which shall not entitle his widow to dower
out of the same at law and such interest whether wholly equitable or
partly legal and partly equitable shall be an estate of inheritance in
possession or equal to an estate of inheritance in pofisession (other than
an estate in joint-tenancy) then his widow shall be entitled in equity to
dower out of the same land.
Sec notes to 8. 2, ante.
4. Bequest of personal estate to widow shall not bar her dower.
3 & 4 Wm. IV. c. 105 s. 10.-No gift or bequest made by any husband
to or for the benefit of his widow of or out of his personal estate or of
or out of any of his land not liable to dower shall defeat or prejudice her
right to dower unless a contrary intention shall be declared by his will.
See notes to S. 2, ante.
5. Agreement not to bar dower may be enforced. 3 & 4 Wm. IV.
c. 105 s. 11.-Provided always that nothing in this Act contained shall
prevent any court of equity from enforcing any covenant or agreement
entered into by or on the part of any husband not to bar the right of
his widow to dower out of his lands or any of them.
See notes to 8. 2, mte.
6. Legacies in bar of dower still entitled to preference. 3 & 4 Wm.
IV. c. 105 s. 12.-Nothing in this Act contained shall interfere with any
rule of equity or of ecclesiastical law by which legacies bequeathed to
widows in satisfaction of dower are entitled to priority over other
legacies.
See notes to s. 2, ante.
Restrictions on the Right.
7. Certain dowers abolished, 3 8 4 Wm. IV. c. 105 s, 13.-No
widow shall hereafter be entitled to dower ad ostium ecclesk or dower
ex assemu patris.
Dower has been completely sbolisbed by The Inteatacy Act of 1877, S. 28,
post. See further, notes to a. 2, ante.

10
sb. 8-13. Succession. [Vol. IX.
8. Residence of wife in the colony or knowledge of her existence
at time of sale required.-No claim to dower on the part of the widow
of any deceased owner of land shall have any force at law or in equity
against any person claiming by purchase from such owner for valuable
consideration unless it shall be proved that the claimant resided in
Queensland with and as the wife of such deceased owner before his sale
of the land or that the purchaser had notice before or at the time of
sale of the fact of the deceased owner having been married to the
claimant and in case the defendant resisting such claim shall derive title
through the original purchaser from such deceased owner it shall not be
sufficient to prove such knowledge on the part of the original purchaser
without also showing that before the defendant purchased the land either
the claimant had resided with her husband in the said colony or the
defendant had become acquainted with the said fact of marriage.
See notes to S. 2, ante.
9. Claim to dower limited.-The claim to dower out of any land by
the widow of any person who has or shall have alienated such land for
valuable consideration shall be limited to one-third of the estimated
rent for the time being of such land considered as if remaining in the
state of improvement in which the same shall have been at the time of
such alienation and shall not be recoverable by metes and bounds bnt
shall be assignable by a court of equity only with liberty nevertheless
to such court to direct the trial at law of any issue of fact on which the
assessment of the claim shall depend.
See notes to S. 2, ante.,
10. No dower out of estate disposed of. 3 & 4 Wm. IV. c. 105 s. 4.-
No widow shall be entitled to dower out of any land which shall have
been absolutely disposed of by her husband in his lifetime or by his will.
See notes to 8. 2, amte.
11. Dower may be barred by a declaration in a deed. 3 & 4 Wm.
IV. c. 105 s. 6.-A widow shall not be entitled to dower out of any land
of her husband when in the deed by which such land mas conveyed to
him or by any deed executed by him it shall be declared that his widow
shall not be entitled to dower out of such land.
See notes to S. 2, ante.
12. Or by a declarration in the husband’s will. 3 & 4 Wm. IV. c. 105
s. 7.-A widow shall not be entitled to dower out of any land of which
her husband shall die wholly or partially intestate when by the will of
her husband duly executed for the devise of freehold estates he shall
declare his intention that she shall not be entitled to dower out of such
land or out of any of his land.
See notes to,s. 2, amte.
13. Dower shall be subject to restrictions. 3 & 4 Wm. IV. c. 105
s. &--The right of a widow to dower shall be mbject to any conditions
restrictions or directions which shall be declared by the will of her
husband duly executed as aforesaid.
See notes to S. 2, ante.

fhkccessio/l-L Act of 1867.
11
ss. 14-16..
14. Devise of real estate to the widow shall bar her dower. 3 & 4
Wm. IV. C. 105 s. 9.1-Where R husband shall devise any land out of
which his widow would be entitled to dower if the same were not so
devised or any estate or interest therein to or for the benefit of his
widow such widow shall not be entitled to dower out of or in any land
of her said husband unless a contrary intention shall be declared by
his will.
See notes to S. 2, ante.
15. Priority to partial estates charges and specialty debts. 3 & 4
Wm. IV. c. 106 s. &--All partial estates and interests and all charges
created by any disposition or will of a hiwhmcl and all debts encum-
brances contracts and engagements to which his land shall be subject
or liable shall be valid and effectual as agadnst the right of his widow
to dower.
See notes to s. 2, ante.
Descent to be traced from the Purchaser.
16. Descent shall always be traced from the purchaser but the last
owner shall be considered to be the purchaser unless the contrary be
proved. 3 & 4 Wm. IV. c. 106 s, Z.-h every case descent shall be
traced from the purchaser and to the intent that the pedigree may never
be carried further back thnn the circumstances of the case and the nature
of the title shall require tlie person last entitled to the land shall for
the purposes of this Act be considered to have been the purchaser
thereof unless it shall be proved that he inherited the same in which
case the person from whom he inherited the same shall be considered
to have been the purchaser unless it shall be proved that he inherited
the same and in like manner the last person from whom the land shall
be proved to have been inherited shall in every case be considered to
have been the purchaser unless it shall be proved that he inherited the
same.
In the case of persons dying on or after July 1, 1878, land undisposed of
by will has been devisable and distributable in the same manner as personal
estate. Xee The Intestacy Act of 1877, 8s. 13, 57, post.
For the rules for
distribution on an intestacy, see 8s. 29 et seq., of this Act; The Succession Act
Declaratory Act of 1884, post; The Succession Act Amendment Act of 1895,
post; The Succession Act of 1906, post; The Succession Act of 1906 Declaratory
Act of 1919, .post. References in any Act to the crheir” in relation to land
devolving on intestacy are deemed to refer if necessary to the person in whom
the land is vested under The Intestacy Act of 1877, post, for the time being
(ibid., s. 27). For the persons in whom land is so vested, see 8s. 12-14 of that
Act and The Public Curator Act of 1915, S. 30 (title TRUSTEES AND
EXECUTORS),
replacing the former S. 11 of The Intestacy Act of 1877.
This section and ss. 17-27, post, apply, accordingly, onIy in the case of
persons dying before July 1, 1878. They may still be important, however, in
deducing title to land upon sale, though, it wouId seem, only on rare occasions.
Title to land under the Iteal Property Act of 1861 (title REAL PROPEFCTY)
nom proved by production of the certificate of title as evidence of registration
(see ibid., 8s. 33, OS), and in tlie caae of land not under that Act, the length
of title which must be shown is fixed by law at sixty years in the absence of
stipulation to tho contrary, adopting a practice of conveyancere (BornzoeU v.
Hawis (1809), 1 Taunt. 430; Cooper v. Briery (X844), 13 L.J. Oh. 275;
Halsbury’s Laws of England (2nd ea.), Vol. 29, p. 309).

12
as. 16-20. Szcccession. [Vol. IX.
Sections 16-24 o f the Succession Act of 1867 follow the provisions of The
hheritance Act, 1833 (3 & 4 Will. 4, c. 106), for which see Halsbury’s Statutes
Of England, Vol. 5, p. 118. That Act was first adopted here by the Act 7 Will. 4,
No. 8. See generally as to the effect of the rules contained in that Act,
Halsbury’s Laws of England (2nd ed.), Vol. 10, p. 610.
For the terms “descent”, “purchaser”, and “person last entitled to land”,
see 8. 1, unte.
The person entitled to take as heir-at-law had to he ascertained as at the
death of the intestate (Pead v. Pead (1912), 15 C.L.R. 510).
17. Heir entitled under a will shall take as devisee and a limitation
to the grantor or his heir$ shall create an estate by purchase. 3 & 4
Wm. IV. c. 106 s. 3.-When any land shall have been devised by any
testator to the heir or to the person who shall be the heir of such
testator such heir shall be considered to have acquired the land as a
devisee and not by descent and when any land shall have been limited
by any assurance to the person or to the heirs of the person who shall
thereby have conveyed the same land such person shall be considered
to have acquired the same as a purchaser by virtue of such assurance
and shall not be considered to ,be entitled thereto as his former estate or
part thereof.
See notes to 8. 16, ante; Halsbury’s Laws of England (2nd ea.), Vol. 10,
page 611.
18. Where heirs take by purchase under limitations to the heirs of
their ancestor the land shall descend as if the ancestor had been the
purchaser. 3 & 4 Wm. IV. c. 106 s. 4.When any person shall have
acquired any land by purchase under a limitation to the heirs or to the
heirs of the body of any of his ancestors contained in any assurance
or under a limitation to the heirs or to the heirs of the body of any
of his ancestors or under any limitation having the same effect contained
in a will of any testator then and in any of such cases such land shall
descend and the descent th’ereof shall be traced as if the ancestor named
in such Limitation had been the purchaser of such land.
See notes to S. 16, ante; Halsbury’s Laws of England (2nd ea.), Vol. 10,
p. fill.
Descent to be Lineally Traced.
19. Brothers &c. shall trace descent through their parent. 3 & 4
Wm. IV. C. 106 S. 5.-No brother or sister shall be considered to inherit
immediately from his or her brother or sister but every descent from a
brother or sister shall be traced through the parent.
See notes to a. 16, ante.
20. Lineal ancestor may be heir in preference to collateral person
claiming through him. 3 & 4 Wm. IV. c. 106 s. 6.-Every lineal ancestor
shall be capable of being heir to any of his issue and in every case where
there shall be no issue of the purchaser his nearest lineal ancestor shall
be his heir in preference to any person who would have been entitled to
inherit either by tracing his descent through such lineal ancestor or in
consequence of there being no descendant of such Lineal ancestor so
that the father shall be preferred to a brother or sister and a more
remote lineal ancestor to any of his issue other than a nearer lineal
ancestor or his issue.
See notes to S. 16, cmte; Halsbury’s Laws of England (2nd ed.), Vol. 10,
p. 613.

Szcccessioni Act of 1867.
13
ss. 21-24,
Naternal Alzcestors.
21. The male line to be preferred, 3 & 4 Wm, IV. G. 106 s. 7.-
None of the maternal ancestors of the person from whom the descent
is to be traced nor any of their descendants shall be capable of inherit-
ing until all his paternal ancestors and their descendants shall have
failed and also no female paternal ancestor of such person nor any of
her descendants shall be capable of inheriting until all his male paternal
ancestors and their descendants shall have failed [and no female
maternal ancestor] of such person nor of any of her descendants shall
be capable of inheriting nntil all his male maternal ancestors and their
descendants shall have failed.
The words in s uare brackets were substituted for “and no female paternal
ancestor” by The jtatute Law Revision Act of 1908, E. 5, title ACTS.
See notes to a. 16, ante; Halsbury’a Laws of England (2nd ea.), Vol. 10,
p. 613.
22. The mother of more remote male ancestor to be preferred to
the mother of the less remote male ancestor. 3 & 4 Wm. IV. G. 106 s. 8.-
Where there shall be a failure of male paternal ancestors of the person
from whom the descent is to be traced and their descendants the mother
of his more remote male paternal ancestor or her descendants shall be
the heir or heirs of such person in preference to the mother of a less
remote male paternal ancestor or her descendants and where there shall
be a failure of male maternal ancestors of such person and their
descendants the mother of his more remote male maternal ancestor and
her descendants shall be the heir or heirs of such person in preference
to the mother of a less remote male maternal ancestor and her
descendants.
See notes to E. 16, ante.
The Half Blood.
23. Half blood if on the part of a male ancestor to inherit after
the whole blood of the same degree if on the part of a female ancestor
after her. 3 & 4 Wm. Tv, c. 106 s. 9.-Any person related to the person
from whom the descent is to be traced by the half blood shall be capable
of being his heir and the place in which any such relation by the half
blood shall stand in the order of inheritance so as to be entitled to
inherit shall be next after any relation in the same degree of the whole
blood and his issue where- the common ancestor shall be a. rnale,and
next after the common ancestor where such common ancestor shall be
a female so that the brother of the half blood on the part of the father
shall inherit next after the sisters of the whole blood on the part of
the father and their issue and the brother of the half blood on the part
of the mother shall inherit next after the mother.
See notes to S. 16, ante.
Escheat and Forfeitwe.
24. After the death of a person attainted his descendants may
inherit. 3 & 4 Wm, IV. c. 106 s. 10.When the person from whom the
descent, of any land is to be traced shall have had any relation who
having b’een attainted shall have died before such descent &all have

14
ss. 24-28. Suuccessim. CVOI. IX.
taken place then such attainder shall not prevent any person from
inheriting such land‘who would have been capable of inheriting the
same by tracing his descent through such relation if he had not been
attainted.
See notes to s. 16, ante; The Escheat (Procedure and Amendment) Act,
1891, s. 12, title PRACTICE.
25. No escheat of property held upon trust or mortgage.-No lands
stock or chose in action vested in any person upon any trust or by
way of mortgage or any profits thereof shall escheat or be forfeited to
Her Majesty by reason of the attainder or conviction for any offence
of such trustee or mortgagee but shall remain in such trustee or mort-
gagee or survive to his or her co-trustee or descend or vest in his or
her representative as if no such attainder or conviction had taken place.
See also The Escheat (Procedure and Amendment) Act, 1891, se. 11, 12,
title PRACTICE.
26. Act not to prevent escheat or forfeiture of beneficial interest,--
Nothing contained in this Act shall prevent the escheat or forfeiture of
any lands or personal estate vested in any such trustee or E;mortgagee]
so far as relates to any beneficial interest therein of any such trustee
or mortgagee but such lands or personal estate so far as relates to any
such beneficial interest shall be recoverable in the same manner as if
this Act had not passed.
This section mas verbally corrected by The Acts Shortening Act Amendment
Act of 1903, S. 10, title ACTS.
Equitable interests are subject to escheat along with legal interests (The
Escheat (Procedure and Amendment) Act, 1891, 9s. 11, 12, title PRACTICE).
Failure of Heirs.
27. Descent how to be traced. 22 61; 23 Vic. e. 35 s. 19.When
there shall be a total failure of heirs of the purchaser or where any
land shall be descendible as if an ancestor had been the purchaser
thereof and there shall be a total failure of the heirs of such ancestor
then and in every such case the land shall descend and the descent shall
thenceforth be traced from the person last entitled to the land as if he
had been the purchaser thereof.
This section foklows The Law of Property Amendment Act, 1859 (22 & 23
Vie. e. 35).
For “the person last entitled to land”, see 8. 1, ante.
See also notes to s. 16, ante.
Estates pur autre Vie.
28. Estates pur autre vie. 7 Wm. IV. & I Vie. e. 26 s. 6. See 54
George Iff. e. 15 s. 4.-If no disposition by will shall be made of any
estate pur a.utre vie of a freehold nature the same shall be chargeable
in the hands of the heir if it shall come tu him by reason of special
occupancy as assets by descent as in the case of freehold land in fee-
simple and in case there shall be no special occupant of any estate
pur autre vie whether freehold or of any other tenure and whether a
corporeal or incorporeal hereditament it shall go to the executor or

15
Succession Act of 1867. ss. 28,29.
administrator of the party that had the estate thereof by virtue of
the grant and if the same shall come to the executor or administrator
either by reason of a special occupancy or by virtue of this Act it shall
be assets in his hands and shall go and be applied and distributed in the
same manner as the personal estate of the testator or intestate.
A person entitled to an estate pur autre vie could not at common law dispose
of it by will nor did the estate pass to his heirs on intestacy unless they were
mentioned in the gift, Section 36 of this Act allows such estates to be disposed
of by will and the above section provides that they shall pass upon intestacy
in the same manner as other property. Thc rights of persons becoming entitled
on the death of cestui q71a vie arc protectcd by Tlie Cestui Que Vie Act, 1707
(Impcrial) (title REAL PROPERTY)) which is expressly oppliod in this State by
the Real Property Act of 1861, s. 90, titla REAL PROPERTY.
Sea also 8. 74, post.
iStatute of Distributions.
29. How and to whom the surplusage is to be distributed. 22 & 23
Car. 2 c. 10 s. 5. One-third to wife and residue amongst the children,
Advancemeat by portion.-The Supreme Court and every persoil who
by any Act is enabled to make distribution of the surplusage of the
estate of any person dying intestate shall distribute the whole surplwage
of Ruth estate or estates in manner and forin following; (that is to say)
one-third part of thc Haid surplusage to the wile of the intcstato and all
the residue by equal portions to and iirriongst the children of such
persons dying intestate and ~uch
persons BR legally reprcmnt such
children in case any of the said children he then dcad other thn such
child or children (not being heir at law) who shall have my estate
by the settlement of the intestate or shall hc advanced by tlic intestate
in his lifetime by portion or portions equal to the share rvhicli shall
by such distribtion be allotted to the other children to whom such
distrib’ution is to be made and in case any child other than the heir at
law who shall have any estate by settlement from the said intestate or
shall be advanced by the said intestate in his lifetime by portion not
equal to the share which will be due to the other children by such
distribution as aforesaid then so much of the surplusage of the estate
of such intestate to be distributed to such child or children as shall have
any land by settlement from the intestate or were advanced in the life-
time of the intestate as shall make the estate of all the said children to
be equal as near as can be estimated
Heir at law to have an equal part.-But the heir at law notwith-
standing any land that he shall have by descent or otherwise from the
intestate is to have an equal part in the distribution with the rest of the
children without any consideration of the value of the land which he
bath by descent or otherwise from the intestate.
The statute 22 & 23 Car. 2, e. 10, is The Statute of Distributions (1670), for
which see Halsburp’s Statutes of England, Vol. 5, p. 115.
The law of distribution of real estate not disposed of by will is assimilated
to that relating to personalty by Tho Intestacy Act of 1877, S. 13, post. As to
references to the heir, see now ibid., B. 27.
Where the intestate has a wife but no childran, see 8. 30, post, and Ths
Succession Act Amendment Act of 1895, poost. Where there is no wife, Bee s. 31
post, and The Succession Act Declaratory Act of 1884, post. Where a marpied
woman dies intestate, see The Buccession Act of 1906, PO&, and The Snceession
Act of 1906 Declaratov Act of 1919, s- 2 (Z), post.

16
as, 29-32. Szcccession. [Vol. IX.
As to rights of adopted children, see The Adoption of Chjldren Act of 1935,
s. 8 (2), title CEIILDWN. A child legitimated under The Legitimation Act of
1899 (title MARB,IAGE AND DIVORCE) is entitled to the same rights in property
with respect to mliich his parent dies intestate as he would have if born in
wedlock (In re Woodwort7~ (1915), 11 Tas. L.B. 161).
For a case mhere a child was required to bring into hotchpot her own
interests and the interests of her successors in title in the deceased estate under
a covenant for a settlement, see Re Hurding (1896), 7 Q.E.J. 137.
As to the elfeet of a residuary gift to the persons who would be entitled on
intestacy after a gift of particular interests to some of such ersons, see
Queensland Xrustees Ltd. v. Robertson, [1911] St. R. Qd. 172; [1911fQ.W.N. 43.
See also Halsbury’s Laws of England (2nd ea.), Vol. 10, p. 601.
30. If no children then one moiety to wife and residue to next of
kin. 22 I% 23 Car. 2 G, 10 s. 6,-And in case there be no children nor any
legal representatives of them then one moiety of the said estate to be
allotted to the wife of the intestate the residue of the said estate to be
distributed equally to every of the next of kindred of the intestate
who are in equal degree and those who legally represent them.
For the rights of a wif0, sce now The Succession Act Amendment Act of
1895, post.
For tho next-of-kin, see Halsbury’s Laws of England (2nd ea.), Vol. 10,
p. 603. As to representation of next-of-kin, see also S. 31, post.
A bequest to “personal representatives ” was held in tho particular context
to mean the next-of-kin (In re Corrigun, [1903] Q.W.N. 4).
See Halsb7ury’s Laws of England (2nd ea.), Vol. 10, p. 601.
31. If no wife then to be distributed amongst the children. 22 &
23 Car. 2 c. 10 s. 7.-Provided that there be no representations admitted
among collaterals after brothers’ and sisters’ children.
And in case there be no wife then all the said estate to be distri-
buted equdy to and amongst the children and in case there be no child
then to the next of kindred in equal degree of or unto the intestate and
their legal representatives as aforesaid and in no other manner
whatsoever.
See also The Succession Act Declaratory Act of 1884, post.
As to rights of adopted children, see The Adoption of Children Act of 1935,
8. 8 (2), title CHILDREN. As to legitimated children, see note to s: 29, ante.
For who are next-of-kin, see Halsbnry ’s Laws of England (2nd ea.) , Vol. 10,
p. 603.
Where there are no next-of-kin and no wife undisposed of personalty goes
to the Crown as bona vaoantia: (In the Goods of O’Toole, [I9021 Q.W.N. 50).
32. No distribution till after one year, 22 & 23 Car. 2 G. 10 s. 8.
If debts afterwascis appeaz then all to refund proportiond1y.-Pro-
vided also to the end that a due regard be had to creditors that no
such distribution of the goods of any person dying intestate be made
till after one year be fully expired after the intestate’s death and that
such and every one to whom any distribution and share shall be allotted
shall give bond with sufficient sureties in the Supreme Court that if
any debt or debts truly owing by the inteatate shall be afterwards sued
for and recovered or otherwise duly made to appear that then and in

Successio/n Act of 1867.
17
ss. 3236.
every such case he or she shall respectively refund and pay back to the
administrator his or her rateable part of that debt or debts and of the
costs of suit and charges of the administrator by reason of such debt
out of the part and share so as aforesaid allotted to him or her thereby
to enable the said administrator to pay and satisfy the said debt or
debts so discovered after the distribution made as aforesaid.
33. This Act shall not extend to administration cum testamento
annexo. 22 & 23 Car. 2 c, 10 s, 9.-Provided also that in all cases where
the Supreme Court hath used heretofore to grant administration cum
testamento anwxo it shall continue 80 to do and the will of the deceased
in such testament expressed shall be performed and observed.
34. Executors deemed to be trustees for persons entitled to my
residue under the statute of distributions unless otherwise directed by
will, 11 Geo. IV. & 1 Wm, IV. c. 40 s. 1.-When any person shall die
having by his or her will or any codicil or codicils thereto appointed any
person or persons to be his or her executor or executors such executor
or executors shall be deemed by courts of equity to be a trustee or trustees
for the person or persons (if any) who would be entitled to the estate
under the statute of distributions in respect of any residue not expressly
disposed of unless it shall appear by the will or any codicil thereto the
person or persona so appointed executor or executors was or were
intended to take such residue beneficially.
This section and 8. 35, post, follow The Executors Act, 1830 (11 Ch. 4 &I
1 Will. 4, c. 40), for which see Ealsbury's Statutes of England, Vol. 5, p. 117.
Where there is an obvious intention in the will that tho executor is not to
take beneficially, he is a trustee, and on failure of the cestui que trust the
ersonal estate vests in the Crown as bona vacantia (Re Jones, Johnson v. A.-G.,
19251 1 Ch. 340).
P
The question whether the executor takes beneficially is one of construction
of the will. The intention must appear on the face of the will. For a case,
see Onslow v. Wallis (1849), 16 Sim. 483. The case8 are in favour of their
taking beneficially if the gift is not to the executors as such, but by name
(Killiams v. Arkbe (1875), L.R. 7 H.L. 606) ; and a gift to the executor at his
discretion and his own disposal goes to him beneficially (Be Howell, [I9153 1 oh.
24;) j but see Re Chapman, [1932] 2 Ch. 479, where these worda, coupled with a
reference to charitable objects, did not ive him the beneficial interest. The came
are against the executors taking bene a cially if prior legacies have been given
them or the gift is to them as joint tenants (Gibbs v. Rumsey (1813), 2 Ves.
6t B. 294; Re Zlenshaw (1864), 34 L.J. Ch. 98), or if there is a direction that
they are to retain their costs (Saltmarsh v. Barrett (1861), 3 De GF. F. & 5.
279), and where there is no gift to them a direction that they, their heirs,
successors, &c., may apply and distribute the residue as to them may appear
just (Peap. C. Neo v. Ong Cheng Neo (1875), L.R. 6 P.C. 381). See also
Ealsbur '8 Laws of England (2nd ed.), Vol. 14, p. 373, and the English and
Empire $&est, Vol. 23, pp. 468 et seq.
As to what constitutes the residue in respect of which the executors are
trustees, see Byrne v. Comrs. of Stamps, [1913] St. R. Qd. 147; [IQ181
Q.W.N. 32.
With respect to the effect of a will appointing an executor, but not di OS^
of any property, see Re Skeats, [1936] 2 All E.R. 298; In re Andrews,~lQ30~
V.L.R. 253; 56 C.L.R. 1.
36. Not to affect rights of executors where there is no perSon
entitled to the residue. 11 Geo. IV. & 1 Wm. Tv. e, 40 s. %-Provided
that nothing in the section last preceding contained shall affect 01:
prejudice any right to which any executor 8 this Act had not been passed

18
ss. 35,36. Szcccessioa. [Vol. IX,
would have been entitled in eases where there is not any person who
would be entitled to the testator’s estate under the present or any
statute of distributions in respect of any residue not expressly disposed
Of.
See Re Jones, Johnson v. A.-G., [1925] 1 Ch. 340, cited under s. 34, ante.
Wills.
36, All property may be disposed of by will comprising freeholds
also such of them as cannot now be devised. Estates pur autre vie.
Contingent interests. Rights of entry and property acquired after
execution of the will. 7 Wm. IV. & 1 Vic. c. 26 s. 3.-It shall be lawful
for every person to devise bequeath or dispose of by his will executed
in manner hereinafter required all real estate and all personal estate
which he shall be entitled to either at law or in equity at the time of
his death and which if not so devised bequeathed or disposed of would
devolve upon the heir-at-law of him or if he became entitled by descent
of his ancestor or upon his executor or administrator and also all estates
pur autre vie whether there shall or shall not be any special occupant
thereof and whether the same shall be freehold or of any other tenure
and whether the same shall be a corporeal or incorporeal hereditament
and also all contingent executory or other future interests in any real
or personal estate whether the testator may or may not be ascertaincd
as the person or one of the persons in whom the same respectively may
become vested and whether he may be entitled thereto under the instru-
ment by which the same respectively were created or under any disposi-
tion thereof by deed or will and also all rights of entry for conditions
broken and other rights of entry and also such of the same estates interests
and rights respectively and other real and personal estate as the testator
may be entitled to at the time of his death notwithstanding that he
may become entitled to the same subsequently to the execution of his
will.
This section and the following sections follow The Wills Act 1837 (7 Will. 4
62. 1 Vie. e. 26)) adopted by the Act 3 Vic. No. 5, as from jmuary 1, 1840.
The Act 3 Vie. No. 5 was repealed by the Repealing Act of 1867 (31 Vie.
No. 39), s. 2. Section 75, post, declares that this Act does not apply to any
will made before January 1, 1840.
The terms (6fl’1, “real estate” and “personal estate” are dehed by
S. 1, ante. As to heir’ , see The Intestacy Act of 1877, s. 27, post.
As to the property dealt with by a will, see also 8s. 55, 56, post.
As to infants, see s. 37, post.
As to married women, 6ee s. 38, post, and The Married Women’s Property
Act, 1890, s. 3 (1)) title M.AB.RI.AC+E
rn DIVORCE.
A person who is a lunatic or non compos mentis cannot during the continu-
ance of his unsoundness of mind make a will, but he can do so during a lucid
interval (mite v. Driver (1809), 1 Phillim. 84). See also the English and
Empire Digest, Vol. 33, p. 141.
At common law aliens could not acquire and hold real estate, and consequently
could not dispose of it by will. See now the Aliens Act of 1867, E. 4, title
ALIENS; The Leases to Aliens Restriction Act of 1912, title RE& Pao~mm;
British Nationality and Status of Aliens Act, 1914, ss. 17, 26 (Imperial), title
AILENS.
The power of testamentary disposition is now subject to the power of the
Supreme Court to make provision out of testators’ estates for the maintenance
and support of a surviving spouse and children, for which see The Testators’
Family Maintenance Act of 1914, post.

19
Succession Act of 1867. ss, 36-38.
“All r d estate *.-Land held under a possessory title may be devised. See
Asher v. Whitlock (1865), L.R. 1 Q.B. 1; Calder v. Alexander (1900), 16 T.L.R.
294.
Jt appears that real estate may be devised by a testator dying without having
any person who would answer the description of his heir at law within the
meaning of this section. See Wentworth v. Humphrey (1886), 11 App. Cas. 619.
Testamentary Inten~on.-In order to operate as a will an instrument
must have been intended to be a will and to opcrato only on death (1% re Lloyd,
E19081 Q.W.N. 24; In the Will of Bowston, [1917] Q.W.N. 39; In re 0~ccnwooil,
[1918] St. R. Qd. 58; [1918] Q.W.N. 19; Idilnes v. Poden (1890), 15 P.D. 105).
If made miimo testandi nnd duly cxccuteil it is not necossary that it should be
mnde in tlie form in which wills arc umnlly mndo (In the WpilZ of Johnston,
C191.21 V.L.R. 55; In re Sheppcrd (1894), 5 Q.L.J. 116). Tho tost of whother
an instrument not in form n testamcntary instrnment is in fact tcstnmcntary is
whether there is proof, either in tlia document itself or from extrinsic evidence,
that it was tho intention of tho iiinker to convey 1)y tbc instrnnient the benefits
which would be conveyed if it wern a vi11 nnd that tho instruini~xit should be
dependent on tlie death for its vigour and cf€ect (In ?,e r!hLcpperd, SU~TLC; In re
E’cnton, [1919] V.L.R. 740). The fitct tlint an instrument cont:iins words sliowing
tliat it is not intcndcd to bc rcvocnblc indicates that it is not testamcntary,
but is riot conclusivo iP n prcdominmt tocltnmeiitnry intcntion appear8 otherwise
&Ro Reid 1803),. 5 L.J. 120). Sec further, ns to tcstnmontsry intciition, the
nglish mi h Enipire % igest, Vol. 44, p. 227; notes to R. 43, post.
For a case of an attompted disposition without nnriiing il. donet>, see Andrews
v. National Tmstces, etc., Co. (1930), 56 C.L.E. 1.
For cam of diHpoHitions not cxprcsdy dctlcribing tho subject properly, 8ee
Fell v. Fell (1922), 31 C.L.R. 269; Re Nesson.q~r’.~ Estute, I10371 1 All E.R. 365.
As to contracts to mako a will in a nrtirular mnnncr 800 V’flls v. Mntthcw8
(1914), 18 C.L.R. 440; Gray v. Perpe?wl Trustee Co. hd., [I038 A.C. 391;
40 C.L.R. 658; 39 C.L.R. 473; Horton v. Jones (1934), 53 .L.R. 475;
Birmingham v. Benfraw (1937), 57 C.L.R. 666; English and Ernpire Digest,
Vol. 44, p. 178.
As to what will constitute a devize of the legal estate in land to executors,
see Re Ferrett’s Trusts (1894), 6 Q.L.J. 183.
As to a direction by a deceased person that his body shall bo subjected to
anatomical examination after death, see The Medical Act of 1939 (3 Cleo. 6,
No. lo), s. 59. As to directions by a deceased person that his body shall be
cremated, Bee The Cremation Act of 1913, s. 6, title CREMATION.
For forms of wills, see the Encyclopredia of Forms and Precedents (2nd ea.),
Vol. 18, pp. 503 et seq.
Competertcy of Testators.
37. No will of a minor valid. 7 Wm. IV, & 1 Vic. c; 26 s. 7.-No mill
made by any person under the age of twenty-one years shall be valid.
As to testamentary capacity of infants who are soldiers on actual military
service, see s. 43, post, and notes thereto.
38. Nor of a femme covert except such as might now be made. 7
Wm. IV. & 1 Vic. c. 26 s. %-Provided also that no will made by any
married woman shall be valid except such a will as might have been
made by a married woman before the passing of this Act.
In early times a married woman was incapable of making a will.
Her will
of lands was declfired void by statute (34 CB; 35 Hen. 8, 0. 5). Her will of
personalty was equally invalid, not merely because marriage waB a gift of her
personalty to her husband, but because in law a wife had no separate existence
from her husband nnd no separate contracting or disposing powers. In corn
of time, however, the rule was modified and a married woman ac mr@d rerrtrictd
testamentary powers, for which see Halsbury’B L&WE of Eng!aad (let ea.),
Vol. 28, title Wills, p. 535.

20
ss. 38,39. Szcccession. [Vol. IX.
The Married Women’s Property Act, 1890, 8. 3 (1) (title Iv~ARRIAGE AND
D-~VORCE), now empowers a married woman to dispose of her separate property
by will as if she were unmarried. This section does not give validity to a will
made prior to its enactment by a married woman who had no property which she
could dispose of by will (Re Morley’s Will (1897), 8 Q.L.J. (N.C.) 3). For
what constitutes separate property of a married woman, see in particular 8s. 4, 7
of The Married Women’s Property Act, 1890. The Married Women’s Proparty
Act, 1897, S. 3 (title MARRIAGE AND DIVORCE), applies S. 56 of this Act, post, to
the will of a married woman made during coverture whether or not she is
possewed of or entitled to separate property at the time of making it.
The Matrimonial Causes Jurisdiction Act of 1864, S. 15 (title MARRIAGE AND
DIVORCE), pIaces a married woman who has been judicially separated from hor
husband in the same position as a feme sole with respect to property which 8118
may acquire.
See further, English and Empire Digest, Vol. 27, p. 134.
As to probate of the will of a married woman or the Wiu of a widow mado
during coverture, see R.S.C. (1900), Ord. 71, r. 24, title PRACTICE.
Executiom and Attestatwiz of Wills and Powers.
39. Every will to be in writing and signed by the testator in the
presence of two witnesses. 7 Wm. IV, & 1 Vic. c. 26 s. 9.--No will shall
be valid unless it shall be in writing and executed in manner hereinafter
mentioned and required (that is to say) it shall be signed at the foot
or end thereof by the testator or by some other person in his presence
and by his direction and such signature shall be made or acknowledged
by the testator in the presence of two or more witnesses present at the
same time and such witnesses shall attest and shall subscribe the will
in the presence of the testator but no form of attestation shall be
necessary.
Will’ is dehed by S. 1, ante.
As’to wills of soldiers and sailors, see 8s. 43, 44, post.
As to wills of aboriginals and half-castes, see The Aboriginals Protection and
Restriction of the Sale of Opium Acts Amendment Act of 1934, s. 16, title
&OBIQmBLs.
The validity of a will so far as it disposes of movable property irl tEs State
falls to be determined according to the law of the testator’s domicile, but so far
as it disposes of immovable roperty in this State the validity must be determined
by the law of this State (zewts v. Balshaw (1935), 54 C.L.R. 188).
In writing ’.-A testator cannot dispose of his property by instructions
not executed as a will but referred to in his will as instructions to be thereafter
given (In re Vakh (19111, 30 N3.L.R. 1166). Cf. Blackwell v. Blackwell
(1929), 145 T.L.E. 208. As to trusts accepted by a donee under the will but not
disclosed in the will, see Halsbury’s Laws of England (1st ea.), Vol. 28, title
Wills, p. 648. As to incorporation of unexecuted documents by reference in a
wiu, see infra.
A will may be typewritten. See the Acts Shortening Act of 1867, S. 11, tiel+
ACTS; Dougharty v. Gkrk, [1902] Q.W.N. 69.
Signedn.-A mark made by the testatrix in the attempt to execute IL
will and which appeared to be part of the first letter of her Christian name was
held to be a mgnatnre (In re Male, [1934] V.L.R. 318). The testator may sign
by placing a mark instead of actually Writing his name (In the Goods of Bryce
(1839), 2 curt. 325) ; BiWtnre by mark is sufficient whether the testator is
able to write or not (In the Goods of Glover (1847), 5 Notes of Cases 553, per
cur-). The ~tm~ed name of the testator is sufhient, whether the stamp be
applied by the testator 01 by some other person by his direction and in his
presence (Jenkins v. Gaisford (1863), 3 Sw. & Tr. 93).
A signature which appears to be precautionary only and not operative is not
sdicient. See In the Will of Plain (1927), 27 N.8.W.S.R. 241, at p. 244.

Succession Act of 1867.
21
s. 39.
For cases where the testator had indorsed the will on the back but had not
otherwise signed it, see In re Middlebrook (1928), 29 N.S.W.S.R. 217; In re
HcDonald (1893), 15 A.L.T. 82; In re Dytrych, [1928] V.L.E. 144.
For a case of forgery of a testator's signature, see Healey v. Healey (1912),
14 C.L.R. 271.
As to when it can be inferred that a document contained the writing constituting
the will when it was executed, where the paper was rolled up so that
the attesting witnesses could not see anything, see In the Will of Betts, [1914]
V.L.R. 302.
For steps which should be taken where a will is executed by a blind or
illiterate person, see R.S.C. (1900), Ord. 71, r. 23, title PRA~ICE.
At the foot or end thereof ".-The provisions of this section with respect
to the placing of the signature must be read with S. 40, post.
Where a will is written on a single sheet of paper, whether or not the paper
is folded, the foot or end of the will is determined by the order in which the
script is to be read (per Gavan Duffy C.J. and Dixon J. in Cinnamon v. Publio
Trustee 1934), 51 C.L.R. 403, at 411 . And sea In the Till of Hall, [1910]
V.L.R. 1 6 ; In Te Estate of Long, Pi93e] 1 All E.R. 435.
A document contained in several attached pages may be such that the
unsigned pages are incorporated by reference in tho signed page. See Cinnamon
v. Public Trustee, supra; In re Heitsch, 19331 V.L.R. 338. But see La?! v.
Gough (1934), 20 Tas. L.R. 59; In the Til F of Donovan (1915), 32 N.S.W.W.N.
100; In the Will of Bztll, [1905] V.L.R. 38; In the Will op Villcinson, [1915]
V.L.R. 77; In the Till of Palmer (1905), 11 A.L.R. 186. Cf. In the Will of
Bughas (1869), 1 A.J.R. 2, where the signature was above the last clauso.
Where tho writing was continued right across the folded pnpor on to the
opposite page where it ended at a oint above the signaturo which was on the
first page, the signature was good fin the TVill op Ryan (1927), 27 N.R.W.S.R.
241). Where a sentence in a will was not completed on the same level aR the
testator '8 signature but straggled below it though completed before signature,
it was held that the signature authenticated that part of the sentence which was
below it (In. the Wiz1 of Mitchell (1888), 14 V.L.R. 699).
A will was held to be properly executed where the signature was written
perpendicularly in the margin towards the top of the page. See In the Wi2Z
of Everingham (1900), 21 N.S.W.L.R. (B. & P.) 15. But a signature by a
mark made against the testator's name in the opening sentence was held
insufficient (In the Estate of Roffe (1920), 20 N.S.W.S.R. 632).
Where by some folding or manipulation of the paper the testator's
signature can be regarded as placed at the end of the will and such folding
or manipulation took place at the time of the signature, there is a sufEcient
signature (In the Will of Moroney (1928), 28 N.S.W.S.R. 553; In re McDonald
(1893), 15 A.L.T. 82). Thus where execution and attestation appeared on
the second pa e of a double sheet and the dispositions on the fourth page, it was
held the four& page should be treated as the first and the second page as tho
third so that the will was executed (In the Will of Cohen (1929), 29
N.S.W.S.R. 196).
Where the appointment of executors appears below the signatures, and the
diqosing parts of the will above the signatures, the latter may be regarded as
a complete will and therefore as properly executed (In rs Belfrage, E19321
V.L.R. 357).
Where a signature appears at the end of a portion of an intended will
which is obviously only a fragment, robate cannot be granted of such portion
(Lay v. Gough (1924), 20 Tas. L.Z. 59; In re Sheehun (1888), 10 A.L.T.
208; In the Will op Tyatt (1895), 21 V.L.B. 671; In the W$ll of Moroney
y928), 28 N.S.W.S.R, 553). But where the Court i? satisfied that the portion of
t e document appearmg below the signature was mitten after the signature, the
portion above such signature will be admitted as a duly executed will (In the
Will of Moroney, supra).
Incorporaticm of unexecuted documents& unexecuted writing will be
part of a will where incor orated by clear reference in an executed will EO that it
em be identified (In re %ep@rill, [1927 St. IC. Qd. 154; 19273 Q.W.N. 36;
Hitahings v. Wood (1841), 2 Moo. P.C. E . 355; Crobar v. B ertford (1844), 4
Moo. P.C.C. 339). Parol evidence is admissible for the urpoae of identilieation
(In re Pepperilt, supra). An intention to inco orate t E e unexecuted document
must appear (Be WibtiamsT WiZl (1897), 7 Q.Ly. 151; In the WiZZ of Dunom,

22
s. 39. Successioln. [Vol. 1x0
[1916] V.L.R. 1). Words in a codicil confirming the will are not sufficient to
incorporate the will in the codicil (BusseZT v. Xutchett, [1903] St. R. Qd. 98).
But see Be Weatherlake, [1933] Q.W.N. 46. As to identification of an envelope
with the will contained in it, see In the Will of Grace, [1931] Q.W.N. 3.
See also R.S.C. (1900), Ord. 71, rr. 20-22, title PRACTIOE.
Acgllowledgment-Acknowledgment by gestures in the joint presence of
the witnesses is sufficient. See In the Goods of DaFies (1850), 2 Rob. Eccl. 337.
To constitute a snficient acknowledgment the witnesses must at the time of
acknowledgment see, or have the opportunity of seeing, the signature, and it
should be explained to them that the document they are asked to sign is a
testamentary instrument. See Pearson v. Pearson (1871), L.R. 2 P. & D. 451;
In re Skelton, [1930] V.L.R. 323; In re Winter, [1936] V.L.R. 300.
Where a witness before whom a will has already been acknowledged by the
testator informs the other witness in the presence and hearing of tho testator
that the signature is the testator's signature, this constitutes ail acknowledgment
by the testator in the presence of both witnesses (MclTenzie v. McKenzie (1907),
27 N.Z.L.R. 461). And see also In the Goods of Crooke, [1903] Q,W.N. 63.
Attestatfon.-As to competence of witnesses, see 8s. 46-49, post.
A will niust be signed b
the testator before the attestin witnesses affix
their signaturcs (In the Good of Kelly (1866): 3 W.W. & ayE. (I. E. & M.)
80). See also In the Will of BUTT, [1912] V.L.R. 246. An acknowledgment
must be made in the presence of the two witnesses before either witness signs
(Cranky v. Fahy (1892), 4 Q.L.J. 197). It is not sufficient if there is merely an
acknowledgment before one witness who then signs followed by a reacknowledg-
ment before the otlier witness who then signs (McKenzie v. Mclienzie (1907),
27 N.Z.L.B. 461; In re Duffy (1909), 12 N.Z.G.L.R. 260).
The initials of attestin witnosses are sufficient si natures when a&ed for
the purposes of attestation $In the Wtll of Dyer (1869?, 6 W.W. & ayB. (I.E. &
M.) 43). An attesting witness may sign by a mark. See In the Goods of
Ashmore (1843), 3 Curt. 756; On Lin Muk Sang v. Goo Tin (1911), 28
N.8.W.W.N. 102. The hand of an attesting witness may be guidod by the hand
of the other witness or of a third person (Iiarrison v. Elvin (1842), 3 Q.B. 117).
A witness cannot sign in the name of another person (In the Goods of
Leverkgton (1886), 11 P.D. 80). One attesting witness cannot sign for another
(1% the Goods of White (1843), 2 Notes of Cases 401) ; nor can a third person
sign for a witness (In the Goods of Cope (1850), 2 Rob. Eccl. 335). Passing a
dry pen over a written signature is not sufficient (Playne v. Scriven (1849), 1
Rob. Eccl. 772).
An acknowledgment of his signature by an attesting witness is not the
equivalent of signature by him (Eannan v. Whitworth. (1884), 5 N.S.W.L.R.
(P. & D.) 11).
It is immaterial where the names of witnesses appear so long as they are
found to attest the operative signature. See In the Will of Plain (1927), 27
N.S.W.S.R. 241, at p. 235. Thus the signature of witnesses on other pages of the
WiIl may be a sufficient attestation of testator's signature appearing at the end
of the will ( WiEinms v. Pain (1889) , 3 Q.L.J. 175 j In re McPhee, 19241 V.L.R.
394; In re Grebert, [1925] V.L.R. 662). But see In the WilZ of Ho 5E gson (1922),
39 N.S.W.W.N. 210.
Where a testator signed his will in the presence of one witness and some
weeks later called on another person with the first witness and they acknowledged
their joint signatures and asked the other person to sign as a witness and he
did so in the presence of the testator and the first attesting witness, it was held
that the execution was ineffectual (In re Lacy (1869), 6 W.W. & ayB. (I.E. &
M.) 44). That case was distinguished in the case of In the Will of Gray (18881,
14 V.L.R. 207, where a person came into the room after the testator had signed
his will in the presence of one attesting witness, and the testator acknowledged
his will to both and asked them to witness it, whereupon both signed.
An attestation clause is not essential to the validity of a will (Williams v.
Pain (1889), 3 Q.L.S. 175; In re Gager, [1907] Q.W.N. 55). As to the value
of such a clause as evidence of due execution, see infra.
In the presence of f;he testator ".-Signature by the witnesses in a room
adjoining that of the testator but where he cannot see them, even though he knows
that they are signing there, is not signature in his presence (Upton P. Public
Trustee (1915), 34 N.Z.L.R. 614), nor is such signature in an adjoining room
signature in his presence where he could have seen it taking place but did not do
so (In the Wit1 of Callow, (19181 V.L.R. 406).

Szcccessiort Act of 1867.
23
ss. 39,40,
Whether witnesses muet H i p in the presence of each other is still open to
doubt. Casenzcat v. Pulton (1843), 5 Moo. P.C. 130, in the Privy Council appears
to decide that they must do so, but in Paidcls s. Jackson (1843), 6 N. of C.
Supp. l., the contrary is said to have been decided by the Privy Council few
weeks prior to the decision in Casement v. Fwlton. li’aibdds v:JacLson was
followed in Re Poley (1879), 5 V.L.R. (I. P. 6i. M.) 95, MUcLenaie v. MacLen~&
(1907), 27 N.E.L.R. 461, In tho Goods of Kcbb (1855), 1 Jur. N.S. 1006,
Sullivan v. Sullivan (1579), 3 L.R. Tr. 290, nitd In the Goods of Smythf3 (1915),
49 I.L.T. 223. The judgment in Faulds v. Jackson, however, docs not advert to
the point and the case was capable of dccision on other g~omlds. Casei,irnt V.
pulton was followed, unwillingly, in Slack v. Busteed (185ti), G Ir. Ch. 12. 1.
in this uncertain state of tho law, care should be taken that witncsses sign in
each others presence and imrncdintely after signature by tho testator.
Proof of due execution.-l’here is a presumption that a will which beare
an attestation clause stating the due formalities of execution and is apparently
signed in a regular manner by tho testator arid witncsses, \vas dilly exacutcd
(Gair v. Bbwcrs (1909), 9 C.L.R. 510, at pp. 525, 530). Probata may bo grrultod
where there ia a sufiicicnt attestation clause even whore ono of tlic atteatring
witnesses swears that it was not there when he signed (In, the Will of illonteith
(1896), 22 V.L.R. 60). A will Rigncd by two witncwms and ba:iring an uttostn-
tion clause “signed by the testatrix in our prcscnce and hy 11s in her prcwIicc”
was held to he sufficiently attested (Re Pinnock’s Will, R.C.R., July 13, 1892).
See also, as to proof of execution by the attestation clauso, B.8.C. (1900), Ord.
71, r. 13, title PRAWICE.
For a form of attestation C~IIIIRO, see the Rncycloproclia of Forms and
Precedents (2nd ea.), Vol. 18, p. 503.
Tliere is also a prcsrimption thnt a will tva8 d1rly cxecutod wliora it nppnars
on its face to linvo bean duly executed Oven though it rotitninw no nttmtrttion
clause. Sec In re Btewart, [I904 I Q.W.N. 43 ; In, m (hger, [ID071 Q.W.N. 65;
Halsbury’e Laws of England (2nd od.), Vol. 14, p. 237; In TO If’crrezra, [I9271
V.L.R. 90; In re Rutchins (1883), 14 A.L.T. 223; In TO Buclclel~ (180H), 24
V.L.R. 923; Re Ros8 (1900), 6 A.L.R. (C.N.) 89.
Statements made by a person after the alloged execution of 5 will by him
are not admissible as evidence of execution (Gair v. Bowers, supra).
As to evidence of persons other than the attesting witnesses as to due
execution, see la re Gager, [1907] Q.W.N. 55; Halsbury’s Laws of England
(2nd ea.), Vol. 14, p. 227.
As to proof of execution and attestation on application for probate, see
R.S.C. (1900), Ord. 71, rr. 13-15, title PRA~ICE.
As to the principles on which the Court will endeavour to save a will from
defeat by formal requirements, see In the Will of Woherty (1907) , 24 N.S.W.W.N.
150. For English cases with respect to execution and attestation, see the English
and Empire Digest, Vol. 44, pp. 249 et seq.
40. When signature to a will shall be deemed valid. 16 & 16 Vic.
c, 24.-Every such will shall so far only as regards the position of the
signature of the testator or of the person signing for him as aforesaid be
deemed to be valid if the signature shall be 80 placed at or after or follow-
ing or under or beside or opposite to the end of the will that it shall be
apparent on the face of the will that the testator intended to give effect
by such his signature to the writing signed as his will
and no such wil shall be affected by the circumstance that the signa-
ture shall not follow or be immediately after the foot or end of the will
or by the circumstance that a blank space xhall intervene between the
concluding word of the will and the signature or by the circumstance
that the signature shall be placed among the words of the testimonium
clause or of the clause of attestation or shall follow or be after or under
the clause of attestation either with or without a blank space intervening
or shall follow or be after or under or beside the names or one of the
names of the subscribing witnesses or by the circumstance that thB signa-
ture shall be on a side or page or other portion of the paper or papers
containing the will whereon no dause or paragraph or dispoaing pad of

24
ss. 40-42. Succession. [Vol. IX.
the will shall be written above the signature or by the circumstance that
there shall appear to be sufficient space on or at the bottom of the
preceding side or page or other portion of the same paper on which the
will is written to contain the signature
and the enumeration of the above circumstances shall not restrict
the generality of the above enactment but no signature under this Act
shall be operative to give effect to any disposition or direction which is
underneath or which follows it nor shall it give effect to any disposition
or direction inserted after the signature shall be made.
Section 39, ante, requires a will to be signed “at the foot or end thereof.7y
A clause beneath the signatures of the testator and witnesses is not part
of the will (In re Stawelt, [1904] St. R. Qd. 4; [1004] Q.W.N. 3). But a
disposition underneath or following the signature may be part of the will where
sufticiently incorporated into the context of the will by referenco in that part
which is above the signature (Cinnamon v. Public Trustee (1934), 51 C.L.R.
403; In re BeitscF, [1933] V.L.R. 338; In the Will of Donovan (1915), 32
N.S.W.W.N. 100).
This section is sufficiently complied with where the testator and witnessea
sign across the will at right angles to the other writing (I% the will of Pople
(1874), 5 A.J.R. 80; In the Will of Mathew, [1906] V.L.R. 531).
Administration was granted where the signature of the testator wa0 below
those of the attesting witnesses and there was a regular attostation clause (In
tho Will of Edwards (1910), 27 N.S.W.W.N. 185).
A signature appearing upside down on the opposite side of the paper, but
the position of which was explained by evidence, was held to be a good
execution (In the Goods of Campbell (1863), 2 W. & W. (I.E. & M.) 119).
Signature by the testator of his name where it occurs in the tostimonium
dause with intention to give effect to the wilI thereby is sufficient (Doggett v.
Lenehan, [1926] St. R. Qd. 84; [1926] Q.W.N. 16). See also In the Will of
Coleman (1878), 4 V.L.R. (I.P. & M.) 22; In re Meikle (1899), 25 V.L.R. 309;
In the Will of Gordon (1884), 10 V.L.R. (12. & M.) 25.
See also notes to s. 39, ante.
As to obliterations, interlineations and alterations made after execution,
see S. 53, post.
41. Act to extend to certain wills already made,-The provisions of
the section last preceding shall extend and be applied to every will
already made where administration or probate has not already been
granted or ordered in consequence of the defective execution of such
will or where the property being other than personalty has not been
possessed or enjoyed by Borne person claiming to be entitled thereto
in consequence of the defective execution of such will or the right
thereto shall not have been decided to be in some other person than the
person claiming under the will in consequence of the defective execution
of such will.
42. Appointments by will to be executed like other wills &c. 7 Wm.
IV. & 1 Vic. c. 26 S. 1O.-No appointment made by will in exercise of
any power shall be valid unless the same be executed in manner herein-
before required and every will executed in manner hereinbefore required
shall so far as respects the execution and attestation thereof be a valid
execution of a power of appointment by will notwithstanding it shall
have been expressly required that a will made in exercise of such power
should be executed with some additional or other form of execution or
solemnity.
As to execution of powers by deed, see s. 66, post.
As to execution of general powers by general gifts, see s. 69, post.
See also the English and Empire Digest, Vol. 37, p. 419 and Vol. 44,
pp. 519 et 864.

Succession Act of 1867.
25
ss. 43,44.
43. Soldiers’ and maxiners’ wills excepted. 7 Wm. IV. & 1 Vic.
c. 26 s. 11.-Provided always 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.
Personal property might at common law have been disposed of by a will
made by word of mouth, provided it was proved by at least two witnesses. Such
a will was known as a nuncupative will. Alternatively it might have been
disposed of by writing to which there were two witnesses or admittedly written
or signed by the testator. Important restrictions on the form of a will by which
ersonalt
mi ht be disposed of were created by the Statute of Frauds, 1677
p29 Car. !$e. 37, which, however, by 8.22, provided that notwithstanding anything
in that Act any soldier being in actual wlitary service or any mariner or seaman
being at sea might dispose of his personal estate as he might have dono before
the passin of that Act. The present section continucs this freedom from the
requiremen% as to execution imposed by this Act on wills of othcr persons. A
soldier’s will must still be made either in the manner rcqniied for a civilian’s
will under this Act or as a will of personalty might have been made before the
Statute of FraudR. See In the Will of Thompson (1910)) 10 N.S.W.S.R. 406.
Notwithstanding s. 37, ante, a soldier on actual military service who is under
twenty-one years of age may make a will (In re Elliott, [I9171 V.L.R. 323;
Re Biscock, [I Sol] P. 78; In the Goods of Pargukar (1846)) 4 Notes of Cases,
651; Re Ternher, [19181 2 Ch. 82).
A volunteer for scrvico is not on actual militar service until lie is enrollcd
as a soldier (I?I flie 78ill of Vhite (1915), 32 N.8.W.W.N. 57). As to when
actual military servicc commences, sec also In, tho WilZ ot RowRton, r19171
$W.N. 39; In re Bocdcn, 19161 N.Z.L.R. 835; In re Moore, [la201 N.Z.LB.
L9; In re Elliott, [1917] dL.R. 323.
A seaman who has severed his connection with his ship and lives on shore
for five weeks is not a “soaman at sea” (In re Broadbcnt, [1916] N.Z.L.R.
881 ) .
To constitute a will R dorument or statement must have been made animo
testandi (In re Mitling, [1916] N.Z.L.R. 1174 (letter describing contents of a
will held not to be a will)). Cf. In re Hunter, [1919] N.Z.L.R. 95; Plimmer v.
Pirblic Trustee, [1931] N.Z.G.L.R.. 478. But it is not necessary to prove that
the testator knew that he was makmg a will or that he had power to make a will
while a minor or by word of mouth. It is enough if he intended deliberately to
give expression to his wishes as to the disposition of his property in the event of
his death (Dalrymple v. Campbetl, [1919] P. 7; Re Beech, [1923] P. 46, at
p. 56). For other cases, see In re Edgar, [19191 V.L.R. 683; Tells v. Quamby
(1917), 13 Tas. L.R. 6; Be Martin, r19171 N.Z.L.R. 219; In re McClintoclc,
Cl9193 N.Z.L.R. 520; Be Rule, r19161 N.Z.L.R. 254; Re Beaumont, (19161
N.Z.L.R. 1002; In re Hovev, [I918 S.A.L.R. 169; In re Mackie, 119221 N.Z.L.R.
651; English and Empire bigest, $01. 44, p. 304; notes to S. 36, ante.
rior to death does not operate as a revocation of the
will (In the Goods of Cozman, [l920] 2 I.R. 332). Formalities are not required
to effect revocation (In the Estate of Gossage, [1921] P. 194).
The Rule that declarations by a testator are not admissible as evidence to
prove the makin of his will ap lies where the testator is R, soldier on actual
military service ?In re Butcher, p 19201 V.L.R. 166). See also, as to proof of
soldiers’ wills, In re Muir, [1919] N.Z.L.R. 632.
-4s to disposal of property of seamen who have made wills, see Navigation
Act 1912-1935, s. 157 (Commonwealth); Merchant Shipping Act, 3894, s. 177
(Imperial) (title SHIPPINQ), as to application of which see ibid., 8s. 260, 261,
264.
Sec also the English and Empire Digest, Vol. 39, pp. 332 et seq., Vol. 44,
p. 304.
Return to civil life
44. Act not to affect provisions of 11 Geo. IV. & 1 Wm. IV. c. 20
with respect to wills of petty ofhers &c. 7 Wm. l3T. & 1 Vic, c. 26
S. 12.--This Act shall not prejudice or affect any of the provisions
contained in an Act passed in the eleventh year of the reign of His
Majesty King George the Fourth and the first year of the reign of His
late Miajegty King William the Fourth intituled “An Act to Amend and

26
ss. 44-47. Successio.12. [Vol. IX,
Colzsolidate the Laws relating to the Pay of the Royal Navy” respecting
the wills of petty officers and seamen in the Royal Navy and non-commis-
sioned ofEicers of marines and marines so far as relates to their wages.
pay prize money bounty money and allowances or other moneys payable
in respect of services in Her Majesty’s Navy.
The statute 11 Geo. 4 & 1 Will. 4, e. 20, was repealed by statutes 28 & 29
Vie. c. 112, s. 1 and 29 & 30 Vic. c. 109, S. 85.
Pub licatiosz.
46. Publication not to be requisite. 7 Wm. IV. & 1 Vic. c. 28
s. 13.-Every will executed in manner hereinbefore required shall be
valid without any other publication thereof.
“Publication ” was a declaration by the testator in the presence of witnesses
that the instrument produced to them was the will. Its place j8 now taken by
attestation under s. 39, ante.
Compet esicy of Attesting Witnesses.
46. Will not void by incompetency of witness. 7 Wm. IV. & 1 Vic.
c, 26 s. 14.-If any person who shall attest the execution of a will shall
at the time of the execution thereof or at any time afterwards be
incompetent to be admitted a witness to prove the execution thereof such
will shall not on that account be invalid.
As to competence of witnesses, see Halabury’s Laws of England (2nd ea.),
Vol. 13, p. 722.
47. Gifts to m attesting witness to be void. 7 Wm. IV. & 1 Vic.
c. 26 s. 15.-If any person shall attest the execution of any will to ~vhom
or to whose wife or husband any beneficial devise legacy estate interest
gift or appointment of or affecting any real or personal estate (other
than and except charges and directions for the payment of any deb’t
or debts) shall be thereby given or made such devise legacy estate
interest gift or appointment shall so far only as concerns such person
attesting the execution of such will or the wife or husband of such
person or any person claiming under such person or wife or husband
be utterly null and void and such person so attesting shall be admitted
as a witness to prove the execution of such will or to prove the validity
or invalidity thereof notwithstanding such devise legacy estate interest
gift or appointment mentioned in such will.
This section has no application to a will made under the privilege contained
in S. 43, ante (Re Lirnond, [1915] 2 Ch. 240).
The mere fact that witnesses are supernumerary witnesses does not save
them from the disqualification under the section, if in fact they have attested a
will which is executed under the ahative provisions of the Act (Randfield v.
Randfield (18605, 8 H.L. Gas. 225, 232). But the signature of a beneficiary not
made a8 an attesting witness will not sffeet the gift (Re Garthe, [1935] Q.W.N.
15).
A wiU creating a power of appointment was witnessed by the hnsband of
the object of the power, and the appointment to such object was held not to be
affected by this section (In re Koch, [1931] V.L.R. 263).
As to whether this section prevents a,n executor who was also a witness from
taking the residuary estate beneficially, see In re Young, Brown v. Hansford,
[1923] V.L.R. 6.
A gift to a witness as a trustee merely without any beneficial interest
valid (In re Bobinson (1874), 4 S.C.R. 68). But where an attesting trustee is a
solicitor who is given a right to profit costs, he will lose such right (228 PoOkY
(1888), 40 Ch. D. 1).

SzLccessiooL Act of 1867.
27
ss. 47-61,
Where the gift is to a fund for the benefit of a religious community, the fact
that attesting witnesses are members of the community, and as such may get some
benefit from the gift, does not affect its validity (Be Bay’s Will Trusts, [1936]
2 All ER. 93).
A vitness to a codicil may take a devise under the will (Gurney v. Gurney
(1855), 3 Drew. 208; Tempest v. Tempest (1856), 2 E. & J. 635).
Where a gift to one of two joint tenants is void under this section, the other
joint tenant takes the whole (In, re Cotton (1923), 19 Tas. L.R. 57). But where
the gift w:is of a sum of money to two ersons in shares, one of whom was a
witness, the other was held to take only %a slime (Karlnnd v. Geyger, [1910]
St. R. Qd. 378; 1.19101 Q.W.N. 57).
For a case of accolerntion of estates in remainder by virtuo of the failure
of‘ the life interest due to tho oporation of this section, see Burke v. Burke
(1899), 18 N.B.L.R. 216.
48. Creditor attesting to be admitted a witness. 7 Wm. IV. & 1 Vic.
c. 26 s. 16.-In case by any will any real or personal estate shall be
charged with any cleht or debts and any crcditor or the wile or husband
of any creditor whose debt is so charged sliall attest the execution of
such will such creditor notwithstanding such charge shall he admitted
a witness to prove the execution of such will or to prove the validity or
invalidity thereof.
49. Executor to be admitted a witness. 7 Wm. ITV, & 1 Vic. c. 26
a. 17.-No person shall on account of his being an executor of a will be
incompetent to be admitted a witness to prove the execution of such
will or a witness to prove the validity or invalidity thereof.
As to a gift to a trustee, see notes to 8. 47, ante.
As to whether an executor who is also a witness can take the residuary estate
beneficially, me 8s. 34, 35, ante and In re Young, Brown v. Hansford, [1923]
V.L.R. 6.
Revocatim and Alderation.
50. Will to be revoked by marriage. 7 Wm. IV. & 1 Vic. c. 26
s. 18.-Every will made by a man or woman shall be revoked by his or
her marriage except a will made in exercise of a power of appointment
when the real or personal estate thereby appointed would not in default
of such appointment pas to his or her heir executor or administrator
or the person entitled as his or her next of kin under any statute of
distribution.
As to “heir”, see now The Intestacy Act of 1877, 8s. 27, 13, post.
Distribution on intestacy is governed by 8s. 29 et seq., ante; The Succession Act
Declaratory Act of 1884, post; The Succession Act Amendment Act of 1895,
post; The Succession Act of 1906, post; and The Succession Act of 1906
Declaratory Act of 1919, post.
A will revoked by marriage may be revived by a confirmation executed in
proper form after marriage. See In the Will of Padohell (1878), 4 V.L.R.
(I. P. & M.) 32.
See also the English and Empire Digest, Vol. 44, p. 318.
61. No will to be revoked by presumption. 7 Wm. IV. & 1 Vie.
e. 26 s. 19.-N,o will shall be revoked by any presumption of an
intention on the ground of an alteration in circumstances.
Bee Be Wetla’ Trusts (1889), 42 ch. D. 646.

s. 52. Saccession. [Vol. IX.
62. In what eases wills may be revoked. 7 Wm. IV. & 1 Vie. e, 26
s. 20.-No will or codicil or any part thereof shall be revoked otherwise
than as aforesaid or by another will or codicil executed in manner
hereinbefore required or by some writing declaring an intention to
revoke the same and executed in the manner in which a will is herein-
before required to be executed or by the burning tearing or otherwise
destroying the same by the testator or by some person in his presence
and by his direction with t.he intention of revoking the same.
For manner of execution and attestation of a will, see s. 39, ante.
The
execution of a writing revoking a will must be attested in the manner required
for a will (Be Jones’ Will (1895), 6 Q.L.J. 261).
A writing revoking a will must have been executed by the testator when of
sound mind (Davies v. Williams (1896), 6 Q.L.J. 278).
Where duplicate wills are executed containing a clause revokin all rior
wills, the part executed last will revoke the part executed first (!in re gaff,
[1902] Q.W.N. 66). Cf. In re Handford, [1905] Q.W.N. 71. Tho mere
description of a will as the last will of the testator will not revoke a prior Will
(In the Will of Hill, [1930] Q.W.N. 42). As to the effect of a codicil describing
itself as the last will and testament, see In re hck, [1905] Q.W.N. 4.
In the event of inconsistency between a will and a codicil, the provisions of
the will are revoked to the extent of the inconsistency (Barton v. Murray Prior,
[l906] St. R. Qd. 98; [1906] Q.W.N. 17; In the Will of Pagg, [1932] Q.W.N. 9;
Re Allison (1899), 1 N. & S. 169; Redman v. Hage (1914)) 18 C.L.R. 640;
Melbourne Hospital v. Perpetual Executors and Xrustees Assoc. (1915), 20
C.L.R. 421). Similarly in the case of inconsistency between codicils, the earlier
codicil is pro tanto revoked by the later codicil (NichoZson v. Husband (Use),
I N. & S. 205), and in tho case of inconsistency between two wills where
the first is not expressly revoked by the second it is revoked to the extent of
the inconsistency (In re Goodes, 11922) S.A.S.R. 180). Proof of execution of
a subsequent will is no evidence of revocation of a will, unless it is shown that
the subsequent will contained words of revocation or inconsistent provisions
(Gair v. Bowers (1909), 9 C.L.R. 510).
As to when a writing executod as a will is such as to show an intention
to revoke, see Re Spracklan’s Estate, [1938] 2 All E.R. 345; In the Will of
Johnston, [1912] V.L.R. 55.
For a form of revocation clause, see the Encyclopsdia of Forms and
Precedents (2nd ea.), Vol. 18, p. 504.
Revocation by destsoctlon rmho revocan&A will might be destroyed
so as to revoke it by the use of a knife or ink eraser which would damage
the surface of a document (per Blair C.J., in Be Marsimi, [1934] Q.W.N. 41).
Thus the eramre of a signature of a witness wiU revoke it if done antho
revocandi (In re Murphy (1892), 18 V.L.R. 786). A very slight tearing across
the signature where there was evidence of an intention to revoke, was held to
amount to a revocation (In re Barker (1892)) 13 A.L.T. 167). Crossing out
testator ’8 signature and writing “Destroyed ’) with initials has no effect (In
the Will of Gordon (1898), 15 N.S.W.W.N. 12). A will cannot be revoked
by merely striking through the si natures of the testator and the attesting
witnesses (Be Davenport’s Will (1f95), 6 Q.L.J. 285; In re Pepperill, [1927]
St. R. Qd. 154; [1927] Q.W.N. 35; Re Marsini, [1934] Q.W.N. 41). For cases
of revocation of portion of a will by cutting it out, see In the Will of Bice,
[1931] Q.W.N. 1; In re Talbot, [1925] 6.A.S.R. 100; In NzLILn’s Estate,
[1936] 1 AII E.R. 555. Unexecuted pencilled alterations made on a mil1 with
the intention of revoking it and substituting a new will do not revoke the
will in its original form (In re Hedse’s Will, [1902] Q.W.N. 30).
The destruction must be accompanied by an intention to revoke the will
(Smith v. Cunningham (1823)) 1 Ad. 448). Thus there is no revocation where
it was intended that the destruction should not be operative until an event which
did not happen (Re MacCarthy, [1937] Q.W.N. 46)) or where destruction takes
lace in the mistaken belief that the will has already been revoked (Lippe P.
&&?erwick (1922), 31 C.L.R. 148)’ or that it is invahd (Hill v. Winter (1880),
14 S.A.L.E. 182). A testator’s declaration made a month before destruction
was held to be relevant to the question of the intention with which the will was
destroyed (In re Pinney, [1934] V.L.R. 256).

Succession &Act of 1867.
29
ss. 52,M.
Presumpth of revocation.-There is a rebuttable presumption of law that
a will last heard of in the testator’s possession which cannot be found after his
death was destroyed by him animo revocandi (Russell v. Matchett, [1903]
St. R. d. 98; In re Hayes, [1906 Q.W.N. 44; McCauZey v. McCauley (1910),
10 C.L. 8 . 434; Gair v. Bowers (19 b 9), 9 C.L.R. 510, at p. 522; In re Fogarty,
[1935] Q.W.N. 13). The presumption of destruction animo revocandi will be
rebuttod by facts establishing a balance of probability against such destruction
(Queensland Trzistees Ltd. v. Ellison, [1918] St. R. Qd. 107; [1918] Q.W.N. 22;
In re Pepperill, [1927] 8t. R. Qd. 154; r19271 Q.W.N. 35; McCauley v. McCauley,
supra; Lippe v. Hedderwick (1922), 31 C.L.R. 148).
Conditional revocatfon-where the revocation of a will is dependent on a
condition which is not fulfilled, the revocation is inoperative (In the Estate op
Southerden, [1925] P. 177). See also Re Maccarthy, siipra. Thus where a will is
revolted by a now will or as part of the act of making a now will and the new will
or intended new will fails for some reason to take effect as a disposition of the
testator’s property, the revocation of the first will is regarded as conditional and
will fail. This is known as the doctrine of dependent relative revocation. See
In re Hunt (1890), 16 V.L.R. 748; Ralsbury’s Laws of England (1st ea.), Vol.
28, title WILLS, p. 573. Thus a will is not revoked by destruction with the intention
of reviving an earlier will for such earlier will is not revived thereby (In re
Pinney, [1934] V.L.R. 256). But this doctrine does not apply where an intended
bequest which fails in the later will is not the solo reason for revocation of the
forrnor will (In re Rourke, decd., [1923] V.L.R. 480).
A will mny be revolred with respect to personal estate by a testator domiciled
abroad by a will which is valid in tho jiirisdiction of his domicile though there is
not revocation within this section. See In re Pmt, decrl. (1903), 22 N.Z.L.B. 997.
But as to immovable property, see Lewis v. Balshaw (1935), 64 C.L.R. 188.
Probnte of a revoked will will not be granted even if all pcrsons interested
in tho event of an intestacy consent (In re Bar7cer (1892), 13 A.L.T. 167).
8ee further the English and Empire Digest, Vol. 44, pp. 315 et seq.
53. No alteration in a will shall have any effect unless executed as
a will. 7 Wm. IV. & 1 Vie. e. 26 s. 21.-No obliteration interlinerttiou
or other dteration made in any will after the execution thereof shall be
valid or have any effect except so far as the words or effect of the will
before such alteration shall not be apparent unless such alteration shall
be executed in like manner as hereinbefore is required for the execution
of the will but the will with such alteration as part thereof shall be
deemed to be duly executed if the signature of the testator and the
subscription of the witnesses be made in the margin or on some other
part of the will opposite or near to such alteration or at the foot or
end of or opposite to a memorandum referring to such alteration and
written at the end or some other part of the will.
For manner of execution of a will, see s. 39, ante.
See also the concluding provision of s. 40, ante.
Alterations were found to have been made before execution in. Re Stewart,
[1904] Q.W.N. 41.
The presumption is that unexecuted alterations in a will were not there
at the time of execution (Cinnamon v. Public Trustee (1934), 51 C.L.R. 403, at
p. 416). It is therefore prudent to execute all alterations either by names Or
lnitials (In the Goods of Blewitt (1880), 5 P.D. 116) in the manner required
by this section for alterations made after execution.
As to how far the fact that alterations are made in ink of the same coloar
as that with which the attesting witnesses have signed is evidence that the
alterations were made before execution, see In the Will of Smith (1886),
2 Q.L.J. 185. See also Re McCormaok, [1932] Q.W.N. 31.
Extrinsic evidence is admissible to prove the contents of a will before an
unattested alteration had been made (In the Wit6 of Baker (1922), 39
N.S.W.W.N. 257).
See also the English and Empire Digest, Vol. 44, p. 305.
For a form of reference in the attestation clause to alterations, see the
Encyclopsdia of Forms and Precedents (2nd ea.), Vol. 18, p. 779.
As to application for probate of a will containing interlineationq
alterations, or erasures, see R.S.C. (1900), Ord. 71, rr. 16-19, title PRAOTX~~.

ss. 54-56. Szcccessiolz. [Vol. IX.
Revival.
54. How revoked will shall be revived. 7 Wm. IV. & I Vic. c. 26
s, 22.-No will or codicil or any part thereof which shall be in any
manner revoked shall be revived otherwise than by the re-execution
thereof or by a codicil executed in manner hereinbefore required and
showing an intention to revive the same and when any will or codicil
which shall be partly revoked and afterwards wholly revoked shall be
revived such revival shall not extend to so much thereof as shall have
been revoked before the revocation of the whole thereof unless an
intention to the contrary shall be shown.
For the manner in which mills and codicils are requirod to be executed,
see S. 39, ante.
A will is not revived by the revocation of a later will which revokes the
first (In re Hayes, [1906] Q.W.N. 44).
The execution of a will simply appointing executors “to my will)’ may
operate as a revival of a revoked will (In the Will of LiZZey (1882), 8 V.L.R.
32).
A mere reference to a will by its date in (1 codicil reviving it is not
sufficient to exclude earlier codicils to that will from the revival. Sea Be Duly
(1900), 2 N. & S. 1.
As to an inaccurate description in a reference to a former will, see In the
Estate of Taylor, [1938] 1 All E.R. 586.
The revival by a codicil of an earlier will containing a ravocation clause
revokes a later mill which hnd revoked the earlier (In the Estate of Home
(1920), 20 N.S.W.S.R. 531).
As to revival, see also the English and Empire Digest, Vol. 44, p. 365.
Construing of Wills.
65. When a devise not to be rendered inoperative. &c. 7 Wm. IV.
& 1 Vic. c. 26 s. 23.-No conveyance or other act made or done subwe-
quently to the execution of a mill of or relating to any real or personal
estate therein comprised escept an act by which such will shall be revoked
as aforesaid shall prevent the operation of the will with respect to such
estate or interest in such real or personal estate as the testator shall
have power to dispose of by will at the time of his death.
See also the concluding provision of S. 36, ante, and S. 56, post.
This section does not apply where the thing meant to be given is gone
(Sligo v. Keenan, [1918] N.Z.L.R. 395; Moor v. Raisbeck (1841), 12 Sim. 123,
139; PaTrar v. minterton (1842), 5 Beav. 1).
A gift of leasehold property of which the testator subsequently purchased
the reversion waa held to pass the fee simple by virtue of this section (Mini$e
v. Halt (1871), 1 C.A. 421 (N.2.)).
This section does not affect the rule against double portiona (Public
Trustee v. Regan (1933), 33 N.S.W.S.R. 361).
For modes of failure of a gift generally, see the English and Empire
Digest, Vol. 44, pp. 403-416.
56. A will to speak from the death of the testator. 7 Wm. IV. &
1 Vic. c. 26 s. 24.-Every will shall be construed with reference to the
real estate and personal estate comprised in it to speak and take effect
as if it had been executed immediately before the death of the testator
unless a contrary intention shall appear by the will.
See also the concluding provision of a. 36, ante, and s. 55, ante.
The Married Women’s Property Act, 1890, S. 3 (1) (title UARRIACIE AND
DIVORCE), empowers a married woman to dispose of her separate property by
wiU, and The Married Women’s Property Act, 1897, 8. 3 (title MAWAQIZ AND

Succession Act of ‘1867.
31
ss. 56-58.
DIVORCE), applies s. 56 of the Succession Act of 1867 to the will of a married
woman whether or not she had separate property at the time she made it. see
also S. 38, ante, and notes thereto.
This section only applies to the real and personal estate comprised in it,
and not to the objects of the testator’s bounty (Re Coley, Hollinshead v. Coley,
[1903] 2 Ch. 102; dmyot V. Dwarris, E19041 A.C. 268). Previously to the
passing of the Act a gift of a testator’s real and personal estate was construed
as passing the real estate belonging to the testator at the time when the dl was made only, and the personal estate which belonged to the testator at the time
of his death (Jarman on Wills, 5th ed., p. 290). Since the Act, a will must,
unless it shows a contrary intention, be construed as if the condition of things
to which it refers was that immediately before the testator’s death (Higgins v.
Dnwson E1902 A.C. 1, per Lord Halsbury at p. 7; Be Resves, Reeves v. Pawson,
llVZSJ Ch. 3 1 1; and see tho English and Empire Digest, Vol. 44, pp. 534-530,
645, 654).
This section applies to a codicil (Treadwell v. Hitchings, [1925] N.Z.L.R.
519). See definition of “will” in s. 1, ants.
The section was ap lied in Brown v. BKtcher (1922), 22 N.S.W.S.R. 176;
In the Will of Smith., r19161 V.L.R. 540; Ec Huyter, [1937] 2 All ER. 110
(gift of “everything I die possassed of ’).
‘‘ Unless n contrary intantlon shall appear by the wfll ”.-The contrary
intention must be found in the will (Boyes ’F. Cook (1880), 14 Ch. D. 53, 57) ;
but it is not necessary that such contrary intention should be expressed in so
many worda, or in some way quite free from doubt; but it is to be athered by
adopting, in reference to the expression used by the testator, the orfinary rules
of construction npplicable to wills (Cole v. Rcott (1849), 1 Mac. & G. 518 ; and
soe Ile Wells, Earciristv v. Wells (1889), 42 Ch. D. 640; Re Evans, Evans v.
Powccll, rl9091 1 Ch, 784; Bmws v. Smith (1848), 2 Do G. & 8m. 722; Saxton v.
Saxton (1879)) 13 Ch. D. 359 * Douglas v. Rouuglas (1864), Ray 400; Re Bancroft,
Bancroft v. Bancroft, [1928j 1 Ch. 577; In re StokeEl (1913), 9 Tas. L.R. 7).
As to the introduction of the word rrnow” into the gift, sce Cols v. Scott (1849),
I Mac. 6c G. 518, at p. 528.
Where the specific description of the subject matter of a gift is such that
it can apply only to B particular thing as it existed when the testator made his
will, then that only will pass under it (Georgetti v. Georgctti (1900), 18
N.Z.L.R. 849; In re Rudd (1914), 33 N.Z.L.R. 1446).
For a case of a general gift of shares in a company, see Corley v. Corley
(1911)) 31 N.Z.L.R. 887. For a case of a specific gift of shares, see Guardiart,
Trzst, and Executors Co. v. Smith, E19231 N.Z.L.R. 1284.
See generally the English and Empire Digest, Vol. 44, p. 647.
67. What a, residuary devise shall include. 7 Wm. IV. 8 1 Vic.
c. 26 s. 25.4Jnless a contrary intention shall appear by the will such
real estate or interest therein as shall be comprised or intended to be
comprised in any devise in such will contained which shall fail or be
void by reason of the death of the devisee in the lifetime of the testator
or by reason of such devise being contrary to law or otherwise incapable
of taking effect shall be included in the residuary devise (if any)
contained in such will.
The section appliefi only to the case where the residuary devise is so worded
as to apply universally to all land of the testator that is not otherwise disposed
of (Springett v. Jennings (1871), 6 Ch. App. 333, 338), and not to the case
where tpe gift is only of a particular residue, as such a gift is in effect specific
(Be Brown (1855)) 1 K. & J. 522, per Page Wood, V.C., at p. 526). A gift of
“all property not hereinbefore disposed of)’ is a gift of residue and shows no
intention to exclude from its operation lapsed specific gifts (Plannagan V.
National Trustees, Executors, and Agency Co. (1923) , 32 C.L.R. 468).
68. What a general devise shall include. 7 Wm. IV. & 1 Vic. c. 26
s,26.-A devise of the land of the testator or of the land of the testator
in any place or in the occupation of any person mentioned in his will or
otherwise described in a general manner and any other general devise
which would describe a leasehold estate if the testator had no freehold

32
SS. 58-60. Szcccessiocn. [Vol. IX.
estate which codd be described by it shall be construed to include the
leasehold estates of the testator or his leasehold estates or any of them
to which such description shall extend (as the case may be) as well as
freehold estates unless a contrary intention shall appear by the will.
As to application of this section to a devise of “real estate”, see Public
Trustee v. Logan (1925), 25 N.S.W.S.R. 194; Perpetual Trustee Co. Ltd. v.
Griffin (1924), 41 N.S.W.W.N. 150.
See the English and Empire Digest, Vol. 44, p. 660.
59. What a general gift shall include. 7 Wm. IV. & 1 Vie. c. 26
s. 27.-A general devise of the real estate of the testator or of the real
estate of the testator in any place or in the occupation of any person
mentioned in his will or otherwise described in a general manner shall be
construed to include any real estate or any real estate to which such
description shall extend (as the case may be) which he may have power
to appoint in any manner he may think proper and shall operate as an
execution of such power unless a contrary intention shall appear by the
will and in like manner a bequest of the personal estate of the testator
or any bequest of personal property described in a general manner shall
b’e construed to include any personal estate or any personal estate to
which such description shall extend (as the case may be) which he may
have power to appoint in any nianner he may think proper and shall
operate as an execution of such power unless a contrary intention shall
appear by the will.
As to execution of powers of appointment by will, see s. 42, ante.
For the effect of the execution of a general power of appointment by a
married woman, see The Married Women’s Prqerty Act, 1890, s. 6, title
MARRIAGE
AND DIVORCE.
This section extends only to general powers and not to special or restricted
powers (Cloves v. Awwdry (1850), 12 Beav. 604).
The words “of which I shall die possessed” following a general gift do
not prevent the exercise of a general power of appointment (Alexander v.
Alexander (1909), 28 N.Z.L.R. 895).
A general power of appointment was held not to have been executed by a
will which contained a gift of the residue of the estate and effects which were
specifically enumerated without mention of the property subject to the power
(In re Brown (1905), 1 Tas. L.R. 8).
Where a devise of the beneficial interest in property comprising ‘that
subject to a general power of appointment lapsed, it was held that such
property fell to be disposed of unaer the residuary devise (Andrew v. Morgan
(1923), 19 Tas. L.R. 36).
Extrinsic evidence cannot be adduced to show a contrary intention
(Alexander v. Alexander (19091, 28 N.Z.L.R. 895; Hudson v. Gray (1927),
39 C.L.R. 496; affirmed, 40 C.L.R. 558; [1928] A.C. 473).
See generally the English and Empire Digest, Vol. 37, pp. 435 et seq.
60. How a devise without words of limitation shall be construed.
7 Wm. IV. & 1 Vic. c. 26 s. 28.--Where any real estate shall be devised
to any person without any words of limitation such devise shall be con-
strued to pass the fee-simple or other the whole estate or interest which
the testator had power to dispose of by will in such real estate unless
a contrary intention shall appear by the will.
A remainder to the “issue” of the life tenant was read as if it were
to the issue “and their heirs” by virtue of this section (Carnpbetl v. Qlasgow
(1919), 27 C.L.R. 31).
A bequest of all a testator’s real and personal estate to his wife “to be
used by her as she may thinfr proper for the benefit of herself and our children’’
was held to confer on the wife an absolute interest in the estate (Im the Wit2
of Lawn, [1911] V.L.R. 318).

33
S,WCGSS~O~ Act Of 1867. ss. 60-63.
A will which gave to the testator7s wife, after payment of debts, ((all
his real and personal estate for her sole use and benefit and at her death the
residue to be equally divided amongst any of his children, etc.”, was held to
confer a life interest only on the wife (In re Ridgway, Sutherland v. Ridgway
(1900) 26 V.L.R. 254).
A devise to a wife for use and enjoyment while she remains the testator’s
widow is a devise with words of limitation, and is not within this section
(Trustees, Executors, etc., Ltd. v. WPkarton (1897), 19 A.L.T. 20). Cf. In the
Will of Hoare, [1908] V.L.R. 369.
A gift to a person ‘(for her use absolutely until the youngest child shall
attain the ago of twenty-one years” shows an intcntion contrary to the
disposition of the fee simple (Ped v. Pea4 (1912), 15 C.L.R. 510).
See the English and Empire Digest, Vol. 44, p. 951.
61. How the words “ die without issue ” ‘‘ die without leaving
issue ” or “ have no issue ” shall be construed. 7 Wm. IV. & 1 Vic.
c. 26 s. 29.-In any devise or bequest of real or personal estate the words
“die without issue” or “die without leaving issue” or “have no issue”
or any other words which may import cither a want or failure of issue of
any person in his lifetime or at the time of his death or an indefinite
failure of his issue shall be construed to mean a want or failure of issue
in the lifetime or at the time of the death of such person and not an
indefinite failure of his issue unless a contrtiry intention sliall appear by
the will by reason of siich person liming a prior estate tail or of a
preceding gift being without any implication arising from such words a
limitation of an estate tail to such person or issue or otherwise.
Provided that this Act shall not extend to eases where such words
as aforesaid import if no issue described in a preceding gift shall be born
or if there shall be no imuc who shall live to attain the age or otherwise
answer the description muired for obtaining a vested estate by a
preceding gift to such issue.
In wills made before this Act, the words “die without issue” were construed
to mean the death of the person spoken of, and failure of his issue at the time
of his death or at any time afterwards, unless the context shows the meaning to be
conhed to a failure of issue at the t he of his death and the rule applied both
to real and personal estate (Hawkins on Wills, 2nd ed., p. 257).
See In re Ross (1901), 1 N.S.W.S.R. (Eq.) 1 (“die without lawful heirs”);
Neville v. NeviZZe (1903), 3 N.S.W.S.R. 378 (“die without heirs”) j In re
Galligan (1913), 13 N.S.W.S.R. 291 (“die without lawful issue7’) ; Staden v.
Maxwell (1931), 32 N.S.W.S.B. 1 (“die without leaving lawful issue”) ; Re
Fairburn’s Till (1880), 1 N.Z.L.R. 249, S.C.; English and Fapire Digeat,
Vol. 44, p, 1118.
Trustees and Executors.
62. No devise to trustees or executors except &c, shall pass a chattel
interest. 7 Wm. IV. & 1 Vic. c. 26 s. 30.-Where any real estate shall
be devised to any trustee or executor such devise shall be construed to
pass the fee simple or other the whole estate or interest which the
testator had power to dispose of by will in such real estate unless a
definite term of years absolute or determinable or an estate of freehold
shall thereby be given to him expressly or by implication.
63. Trustees under a51 unlimited devise &c, to take the fee. 7 Wm.
IV. & 1 Vic. c. 26 s. 31.Vhere any real estate shall be devised to a
trustee without any express limitation of the estate to be taken by such
trustee and the beneficial interest in such real estate or in the surplus
rents and profits thereof shall not be given to any person for life or such
beneficial interest shall be given to any person for life but the purposes
e

34
ss. 63-65. [Vol. IX*
of the trust may continue beyond the life of such person such devise
shall be construed to vest in such trustee the fee simple or other the
whole legal estate which the testator had power to dispose of by will
in such real estate and not an estate determinable when the purposes
of the trust shall be satisfied.
This section does not apply where no trusts are created by the will (Re the
Will of Birkbeck (1873), 3 S.C.R. 175).
The estate of trustees was held to be expressly limited in Re the Will of
Birkbeck, sqbpra.
This section does not mean that a devise to trustees and their heirs
necessarily gives them an estate in fee where their duties estcnd over successive
life interests (Nuc2Tamara v. MacNamara (1930), 30 N.X.W.S.R. 245).
Lapse.
64. Devises of estates tail shall not lapse. 7 Wm. IV. & 1 Vic. c. 26
s. 32.-Where any person to whom any real estate shall be devised for
an estate tail or an estate in quasi entail shall die in the lifetime of the
testator leaving issue who would be inheritable under such entail and
any such issue shall be living at the time of the death of the tcstator
such devise shall not lapse but shall take effect as if the death of such
person had happened imnieciiately after the death of the testator unless
a contrary intention shall appear by the will.
65. Gifts to children or other issue who leave issue living at the
testator’s death shall not lapse. 7 Wm. IV. & 1 Vic. c. 26 s. 33.Where
any person being a child or other issue of the testator to whom any real
or personal estate shall be devised or bequeathed for any estate or
interest not determinable at or before the death of such person shall die
in the lifetime of the testator leaving issue and any such issue of such
person shall be living at the time of the death of the testator such devise
or bequest shall not lapse but shall take effect as if the death of such
person had happened immediately after the death of the testator unless
a contrary intention shall appear by the will.
Apart from this section, a devise or bequest lapses, i.e., fails if the devisee
or legatee dies in the testator’s lifetime. See generally the English and Empire
Digest, Vol. 44, pp. 492-502.
Property saved from lapse by the section wil pass, generally, by the will
of the ((child or other issue” who dies before the testator just as if he had lived
to possess it (Johnson v. Johnson (1843), 3 Hare 157; Cameron v. Read (1887),
13 V.L.R. 849). But if the devise or bequest by the “child or other issue” is
made to the original testator himself, it fails, and the property devolves as if the
((child or other issue” had died intestate (Re Hensler, Jones v. Hensler (1881),
19 Ch. D. 612).
This section does not apply where the gift is to the issue of the testator as a
class (In the Will of Banks (1901), 20 N.Z.L.R. 436; In re Harvey’s Estate,
[1893] 1 Ch. 567; In re Hanoook (1914), 33 N.Z.L.R. 710; Hurst v. Hurst
(1865), 12 V.L.R. 93), nor does it apply in favour of the issue of a member of
such class mho is specifically named (In re Looney, [1924] N.Z.L.R. 478). But
see In the Will of Baker, [1905] V.L.R. 416, where named members of a class
who had died were held not to be excluded from their interest in a remainder.
It bes not apply to illegitimate issue of the testator even where he has
treated such issue as legitimate for purposes of the will (In re WiZkins, [1922]
N.Z.L.R. 644).
The fact that the interest of a child was to be divested upon his death
before his youngest brother attained the age of twenty-one was held not to make
his interest one determinable at or before his death (Davies v. National Trustee8
Executors and Agency Co., [1912] V.L.R. 397).

35
Szmessiou.r/ Act of 1867. ss, 65-67.
The rule that a gift to a person deceased at the time of the will is a nullity
should not be extended to prevent the operation of this section where death of a
beneficiary occnrs between thc making of the will and the making of a codicil
which refers to such death. See Dauies v. National Trustees Esecutors and
Agency Co., supra.
Thc testator may insert a provision in his will against the possibility of
1a.pse (Re XOTT~S (1916), 86 L.J. Ch. 456).
Sea also Bloomfield v. Summerfield (1876), 2 V.L.R. (Eq.) 174, at p. 178;
In re King (1932), 32 N.S.W.S.R. 669; English and Empire Digest, Vol. 44,
p. 502.
Powers.
66. Mode of execution of powers. 22 & 23 Wic. c. 35 s. 12.-A deed
hereafter executed in the presence of and attested by two or more
witnesses in the manner in which deeds are ordinarily executed and
attested shall so far as respects the execution and attestation thereof be
8 valid execution of a power of appointment by decd or by any instru-
ment in writing not testamentary notwithstanding it shall have been
expressly required that a deed or instrument in writing made in exercise
of such power should be executed or attested with some aciciitional or
other form of execution or attestation or solemnity
Provided always that this provision shall not operate to defeat any
direction in the instrument creating the power that the consent of any
particular person shall be necessary to tz valid execution or that any act
shall be performed in order to give validity to any appointment having
no relation to the mode of executing and attesting the instrument and
nothing herein eontafhed shall prevent the donee of a power from cxecu-
ting it conformably to the power by writing or otherwise than by an
instrument executed and attested as an ordinary deed and to any such
execution of a power this provision shall not extend.
As to cxecution of powers of appointment by will, see 9. 42, ante.
t
For the manner in which a deed must be executed, see IIalsbury’s Laws of
England (2nd ea.), Vol. 10, p. 194.
67. Sale under power not to be avoided by reason of mistaken
payment to tenant for life. 22 & 23 Vic, [c. 35 s. 13].-Where under
a power of sale a bolzri fide sale shall be made of an estate with the
timber thereon or any other articles attached thereto and the tenant for
life or any other party to the transaction shall by mistake be allowed
to receive for his own benefit a portion of the purchase money as the
value of the timber or other articles it shall be lawful for the Supreme
Court upon any bill or application in a summary way, as the case may
require or permit to declare that upon payment by the purchaser or
the claimant under him of the full value of the timber and articles at
the time of sale with such interest thereon as the court shall direct and
the settlement of the said principal moneys and interest under the
direction of the court upon such parties as in the opinion of the court
shall be entitled thereto the said sale ought to be established and upon
such payment and settlement being made accordingly the court may
declare that the said sale is valid and thereupon the legal estate shall
vest and go in like manner as if the power had been duly executed and
the costs of the said application as between solicitor and client shall be
paid by the purchaser or the claimant under him.
The marginal note was verbally corrected by The Acte Shortening Act
Amendment Act of 1903, E. 10, title Aaw.

36
ss. 68-71. [Vol. IX-
68. Devisee in trust may raise money by sale notwithstanding want
of express power in the will. 22 & 23 Vic. C. 35 S. 14.-Where by any
will which shall come into operation after the commencement of this
Act the testator shall have charged his real estate or any specific
portion thereof with the payments of his debts or with the payment of
any legacy or other specific sum of money and shall have devised
the estate so charged to any trustee or trustees for the whole of his
estate or interest therein and shall not have made any express pro-
vision for the raising of such debt legacy or sum of money out of such
estate it shall be lavful for the said devisee or devisees in trust notwith-
standing any trusts actually declared by the testator to raise such
debts legacy or money as aforesaid by a sale ancl absolute disposition
by public auction or private contract of the said hereditaments 01’ any
part thereof or by a mortgage of the same or partly in one mode and
partly in the other and any deed or deeds of mortgage so executed may
reserve such rate of interest and fix such period or periods of repay-
ment as the person or persons executing the same shall think proper.
69. Powers given by last section extended to survivors devisees &c.
22 & 23 Vic. [c. 351 s. 15.-The powers conferred by the last section
shall extend to all and every person or persons in whom the estate
devised shall for the time being be vested by survivorship descent or
devise or to any person or persons who may be appointed under any
power in the Till or by the court to succeed to the trusteeship vested in
such devisee or devisees in trust as aforesaid.
The marginal note was verbally corrected by The Acts Shortening Act
Amendment Act of 1903, S. 10, title ACTB.
70. Executors to have power of raising money &c. when there is no
sufficient devise. 22 & 23 Vic. [c. 351 s. 16.-If any testator who shall
have created such a charge as is described in the section next but one
preceding shall not have devised the hereditaments charged as aforesaid
in such terms as that his whole estate and interest therein shall become
vested in any trustee or trustees the executor or executors for the time
being named in such will (if any) shall have the same or the like power
of raising the said monies as is hereinbefore vested in the devisee or
devisees in trust of the said hereditaments and such power shall from
time to time devolve to and become vested in the person or persons
(if any) in whom the executorship shall for the time being be vested
but any sale or mortgage under this Act shall operate only on the estate
and interest whether legal or equitable of the testator and shall not
render it unnecessary to get in any outstanding subsisting legal estate.
The marginal note was verbally corrected by The Acts Shortening Act
Amendment Act of 1903, S. 10, title ACTS.
The power is not exercisable by an administrator with thc will annexed
(Be Clay and Tetley (1880), 16 Ch. D. 3).
71. Purchasers &c. not bound to inquire as to powers. 22 & 23 Vic.
C. 35 s. 17.-Purchasers or mortgagees shall not be bound to inquire
whether the powers conferred by the three sections last preceding of
this Act or either of them shall have been duly and [correctly] exercised
by the person or persons acting in virtue thereof.
This section was verbally corrected by The Acts Shortening Act Amendment
Act of 1903, s. 10, title ACTS.
,

37
Sz.cccession, Act of 1867. ss. 72-76.
72. Sections 69,70 and 71 not to affect certain sales &c. nor to extend
to devisees in fee or in tail. 22 69t 23 Vic, c. 35 s. 18.-The provisions
contained in the said three sections shall not in any way prejudice or
affect any sale or mortgage already made or hereafter to be made under
or in pursuance of any will coming into operation before the commence-
ment of this Act but the validity of any such sale or mortgage shall be
ascertained and determined in all respects as if this Act had not passed
and the said several sections shall not extend to a devise to any person or
persons in fee or in tail or for the testator's whole estate and interest
charged with debts or legacies nor shall they affect the power of any
such devisee or devisees to sell or mortgage as he or they may by law
now do. To exclude tho power of the executor the deviso must operate imniediately
upon the doath of tho testator (Re Barrow-in-Fumess Corpn. and Bawtinson's
Contract, [19031 1 Ch. 339), and must bo either to a single poraon or to EL
number of persons as joint tenants or tenants in common (ibid.). A devise for
life with remainder in feo does not exclude the executor's power (Re Wilson,
Pennington v. Payne (1886), 54 L.T. 600).
Uses.
73. Provision for caaes of future and contingent uses. 23 & 24 Vic.
e. 38 s. 7.-Where by any instrument any hereditaments have been or
shall be limitcd to uRes all ii~es thereunder whether expressed or implied
by law and whether immediate or future or contingent or executory or to
be declarcd under any powcr therein contained shall take effect when and
as they arise by force of and by relation, to the estate and seisin originally
vested in the person seised to the uses and the continued exhtence in
him or ekewhere of any seisin to uses or scintiZZa juris shall not be
deemed necessary for the support of or to give effect to future or contingent
or executory uses nor shall any such seisin to uses or scintilla
ju&s be deemed to be suspended or to remain or to subsist in him or
elsewhere.
For the effect of this section, see Halsbury 's Laws of England (2nd ea.),
Vol. 27, p. 600, note (g).
74. To what wills and estates this Act shall not extend. 7 Wm. IV.
& 1 Vie. c. 26 s. 34.-This Act shall not extend to any will made hefore
the first day of January one thousand eight hundred and forty and
every will re-executed or re-published or revived by any codicil shall
for the purposes of this Act be deemed to have been made at the time
at which the same shall be so re-executed re-published or revived [and
this Act] shall not extend to any estate pur autre vie of any person
who shall have died before the first day of January one thousand eight
hundred and forty.
This section was verbally corrected by The Acts Shortening Act Amendment
Act of 1903, 8. 10, title ACTS.
Sections 36 et seq., ante, follow The Wjlls Act, 1837 (7 Will. 4 & 1 Vic.
e. ZS), which was adopted by the New South Wales Act 3 Vie. No. 5 as from
January 1, 1540. The Act 3 Vie. No. 5 was repealed by the Repealing Act of
1867 (31 Vie. No. 39), S. 2.
Remedies of Creditors against Realty.
76. For remedying frauds committed on creditors by wills. 11
Beo. Tv. & 1 Wm. IV. C. 47 S. 2.-And whereas it is not reasonable or
just that by the practice or contrivance of any debtors their creditors
should be defrauded of their just debts and nevertheless it hath often
so happened that where several persons having by bonds covenants or

38
8s. 76-77. Succession/. [Vol. IX.
other specialties bound themselves and their heirs and have afterwards
died seized in fee simple of and in messuages lands tenements and
hereditaments or had power or authority to dispose of or charge the same
by their wills or testaments have to the defrauding of such their
creditors by their last wills or testaments devised the same or disposed
thereof in such manner as such creditors have lost their said debts for
remedying of which and for the maintenance of just and upright dealing
be it therefore further enacted That all wills and testamentary limita-
tions dispositions or appointments already made by persons now in being
or hereafter to be made by any person or persons whonlsoever of or
concerning any messuages lands tenements or hereditaments or any rent
profit term or charge out of the same whereof any person or persons
at the time of his her or their decease shall be seized in fee simple in
possession reversion or remainder or have power to dispose of the same
by his her or their last wills or testaments shall be deemed or taken (only
as against such person or persons bodies politic or corporate and his and
their heirs successors executors administ,rators and assigns and every
of them with whom the person or persons making any such wills or
testaments limitations dispositions 01% appointments shall have entered
into any bond covenant or other specialty binding his her or their heirs)
to be fraudulent and clearly absolutely and utterly void frustrate and
of none effect any pretence colour feigned or presumed consideration or
any other matter or thing to the contrary notwithstanding.
Tho words ‘

39
Sz L c c e ss i o 12 Li c t of 1 86 7. ss. 78-80,
78. Not to affect limitations for just debts or portions for chil&en,
11 Geo. IV. & 1 Wm. IV. c. 47 S. 5.-Provided that where there hath
been or shall be any limitation or appointment devise or disposition of or
concerning any inessuages lands tenements or hereditaments for the
raising or payment of any real and just debt or debts or any portion or
portions sum or sums of money for any child or children of any person
according to or in pursuance of any marriage contract or agreement in
writing $on& fide made before such marriage the same and every of them
shall be in full force and the same messuages lands tenements and heredi-
taments shall and may be holden and enjoyed by every such person or
persons his her mid their heirs executors administrators and assigns
for whom the said limitation appointment devise or disposition was
made and hy his her and their trustee or trustees his her and their heirs
executors ntlininistrators and assigns for such estate or interest as shall
be so Iitiiitcd 01’ appointed devised or disposed until such debt 01- debts
portion or portinns dial1 bc raisecl paid and satisfied anything in this
Act contained to the contrary notwithstanding.
Se0 Plunnbet v. Penson (1742), 2 Atk, 290.
79. Heir at law to be answerable for debts although he may sell
estate before action brought. 11 Geo. N. & 1 Wm. IV. c. 47 s. 6.411
all CF~SCR wherc? any heir at law shall be liable to pay the debts or
pcrf‘omi t Iic twvonrints of’ his ancestors in regard of any lands tenements
or h(wili1 mrntx tlesccntlctl to him and shall sell alien or make over
the wile hforc ;my uction brought or process sued out against him such
heill lit! ltiw dit111 he ruiswcral)le for such debt or debts or covenants in
an nction o~ nctioiis of debt or covenant to the value of the said lands
YO t)y hiin sold alicned or rnacle over in which cases all creditors shall be
preferred as in actions against executors and administrators and such
exccntion shall be taken out upon any judgment or judgments so
obtained tigainst such heir to the value of the said lands as if the same
were his own proper debt or debts saving that the lands tenements and
hereditaments bmd fide aliened before the action brought shall not be
liable to such execution.
As to liability of devisees, see s. 81, post.
As to “heir at law”, see now The Intestacy Act of 1877, s. 27, post.
At common law and under this and previous statutes the heir or devisee was
personally liable, but the assets were not charged (Spackman v. TimbreU
(1837), 8 Sim. 253). See now The specialty and Simple Contract Debts
Equalisation Act (1871), post.
The saving with respect to lands aIiened before action brought extends to
deVises, so that zt bona fide alienation by the devisee is protected whether the
interest aliened be legal or equitable (Be Atkinson, [l908] 2 Ch. 307).
80. Where an action of debt is brought against the heir he may
plead riens per descent. 11 Geo. IV. & 1 Wm. IV. c. 47 s. 7.-Provided
that where any action of debt or covenant upon any specialty is brought
against the heir he may plead rimzs per descent at the time of the
original writ brought or the bill filed against him anything herein
contained to the contrary notwithstanding and the plaintiff in such
action may reply that he had lands tenements or hereditaments from his
ancestors before the original writ brought or bill filed and if upon the
issue joined thereupon it be found for the plaintiff the jury shall inquire
of the value of the lands tenements or heredihmenta so descended and
thereupon judgment shall be given and execution shall be awarded as

40
Successiorh. [Vol. IX.
aforesaid but if judgment be given against such heir by confession of
the action without confessing the assets descended or upon demurrer or
BihiZ dicit it shall be for the debts and damage without any writ to
inquire of the lands tenements or hereditaments so descended.
81, Devisees to be liable the same as heirs at law. 11 Geo. IV. &
1 Wm. IV. c. 47 s. 8.-Provided that all and every the devisee and
devisees made liable by this Act shall be liable and chargeable in the
same manner as the heir at law by force of this Act notwithstanding the
lands tenements and hereditaments to him or them devised shall be
aliened before the action brought.
82. Traders' estates shall be assets to be administered in courts of
equity. 11 Geo. IV. & 1 Wm. IV. c. 47 s. 9.-From and after the fourth
day of August one thousand eight hundred and thirty-four where any
person being at the time of his death a trader within the true intent
and meaning of the laws relating to bankrupts shall have died seized
of or entitled to any estate or interest in lands tenements or hereditaments
or other real estate which he shall not by his last will have charged
with or devised subject to or for the payment of his debts and which
would be assets for the payment of his debts due on any specialty in
which the heirs were bound the same shall be assets to 6e administered
in courts of eqiiity for the payment of all the just debts of such person
as well debts due on simple contract as on specialty and the heir or
heirs at law devisee or devisees of such debtor and the devisee or devisees
of such first-mentioned devisee or devisees shall be liable to all the same
suits in equity at the suit of any of the creditors of such debtor whether
creditors by simple contract or by specialty 5~s they are liable to at the
suit of creditors by specialty in which the heirs were bound
Creditors by specialty to be paid first.-Provided always that in the
administration of assets by courts of equity under and by virtue of
this provision all creditors by specialty in which the heirs are bound
shall be paid the full amount of the debts due to them before any of the
creditors by simple contract or by specialty in which the heirs are not
bound shall be paid any part of their demands.
As to the proviso, see now The Specialty and Simple Contract Debts
Equalisation Act (1871), post.
83. Parol shall not demur by or against infants. 11 Geo. IV. &
1 Wm. IV. c. 47 s. 10.-From and after the day and year last aforesaid
where any action suit or other proceeding for the payment of debts or
any other purpose shall be or have been commenced or prosecuted by
or against any infant under the age of twenty years either alone or
together with any other person or persons the parol shall not demur
but such action suit or other proceeding shall be prosecuted and carried
on in the same manner and as effectually as any action or suit could
before the passing of this Act be carried on or prosecuted by or against
any infant where according to law the parol did not demur.
84. Infants to make conveyances under order of the court. 11 Geo.
W. & 1 Wm. IV. c. 47 s. 11.-Where any suit hath been or shall be
instituted in any court of equity for the payment of any debts of any
person or persons deceased to which their heir or heirs devisee or
devisees may be subject or liable and such court of equity shall decree
the estates liable to such debts or any of them to be sold for satisfaction

Successioln Act of 1867.
41
ss. 84-87.
of such debt or debts and by reason of the infancy of any such heir
or heirs devisee or devisees [an immediate conveyance] thereof cannot
as the law at present stands be compelled in every such case such court
shall direct and if necessary compel such infant or infants to convey
such estate so to be sold (,by all proper assurances in the law) to the
purchaser or purchasers thereof and in such manner as the said court
shall think proper and direct and every such infant &all make such
conveyance accordingly and every such conveyance shall be m valid
and effectual to all intents and purposes as if such person or persons
being an infant or infants was or were at the time of executing the
same of the full age of twenty-one years.
This section was verbally corrected by The Acts Shortening Act Amendment
Act of 1903, S. 10, title BOTS.
85. Persons having a life interest may convey the fee simple if the
estate is ordered to be sold. 11 Geo. IV. & 1 Wm. IV. c. 47 s. 12.-Where
my lands tenements or hereditaments [have been] or shall be devised
in settlement by any person or persons whose estate under this Act
or by law or by his or their will or wills shall be liable to payment of
any of his or their debts and by such devise shall be vested in any
person or persons for life or other limited interest with any remainder
limitation or gift, over which may not be vested or may be vested in
some person or persons from whom a conveyance or other assurance of
the same cannot bc obtained or by way of executory devise and a decree
shall be made for the sale thereof for the payment of such debts or any
of them it shall be lawful for the court by whom such decree shall be
made to direct any such tenant for life or other person having a limited
interest or the first executory devisee thereof to convey release assign
surrender or otherwise assure the fee simple or other the whole interest
or interests so to be sold to the purchaser or purchasers or in such
manner as the court shall think proper and every such conveyance
release surrender assignment or other assurance shall be as effectual as
if the person -who shall make and execute the same were seized or
possessed of the fee simple or other whole estate so to be sold.
This section was verbally corrected by The Acts Shortening Act Amendment
Act of 1903, S. 10, title BOTS.
See also S. 88, post.
86. Courts of equity authorised to direct mortgages as well as sales.
2 &?i 3 Vic. c. 60.-The two sections last preceding shall extend and the
same are hereby extended to authorise courts of equity to direct mortgages
as well as sales to be made of the estates of such infant heirs or
devisees as are referred to in the said section last but one preceding and
also of lands tenements or hereditaments devised in settlement as
mentioned in the said last preceding section and to authorise such sales
and mortgages to be made in eases where the tenant for life or other
person having a limited interest or the first executory devisee as
hereinbefore referred to is an infant.
87. Surplus of money raised by sale or mortgage after defraying
expenses to descend or devolve as the estate. 2 & 3 Vic. c. 60.-When
any such sale or mortgage shall be made the surplus (if any) of the
money raised by such sale or mortgage which shall remain after answer-
ing the purposes for which the same shall have been raised and defraying
all legal costs and expensm shall be considered in all respects of the

42
8s. 87-89. Succession. [Vol. IX.
same nature and descend or devolve in the same manner as the estate
or the lands tenements or hereditaments so sold or mortgaged and shall
belong to the same persons be subject to the same limitations and
provisions and be applicable to the same purposes as such estate or such
lands tenements or hereditaments would have belonged and been subject
and applicable to in case no such sale or mortgage had been made.
88. Provisions extended to lands &c. of deceased debtor in certain
cases, 11 & 12 Vic. c, 87.-In cases in other respects falling within the
provisions of the two sections last but two preceding the section last
but two preceding shall extend and is hereby extended to any case in
which any lands tenements or hereditaments of any deceased person
shall by descent or otherwise than by devise be vested in the heir or
co-heirs of such person subject to an executory devise over in favor
of a person or persons not existing or not ascertained and in any such
case it shall be lawful for the court by whom any decree shall be made
as itientioned to direct such heir or eo-heirs although an infant or
infants to convey release assign surrender or otherwise assure the fee
simple or other the whole interest to be sold to the purchaser or
purchasers or as such court shall think proper and every such conveyance
release assignment surrender or other assurance shall be as effectnal as if
the heir or eo-heirs innking and executing the same waa or were seized
or possessed of the fee simple or other whole interest ancl estate so to be
sold and if an infant or infants was or were of full age.
Cornmencement and Short title.
89. Cornmencement of Act. Short title.-This Act shall commence
on the thirty-first day of December one thousand eight hundred and
sixty-seven and may be referred to as the ‘‘Successio.n Act of 1867.”
The collective title The Succession Acts, 1867 to 1895, was conferred by
The Acts Shortening Act Amendment Act of 1903, s. 8 (Z), title ACTS.