Time of the original Writ brought, or the Bill filed against him ; No. 5. any Thing herein contained to the contrary notwithstanding; and the 3 W. & M. c. 14 Plaintiff in such Action may reply, that he had Lands, Tenements, or Hereditaments, from his Ancestor before the original Writ brought, or Bill filed; and if upon Issue joined thereupon, it be found for the Plaintiff, the Jury shall enquire of the Value of the Lands, Tenements, or Hereditaments so descended, and thereupon Judgement shall be given, and Execution shall be awarded as aforesaid; but if Otherwise if Jurig Judgement be given against such Heir by Confession of the Action, without confessing the Assets descended, or upon Demurrer, or sion, for Debt aed Nihil dicit, it shall be for the Debt and Damages, without any Damages. Carthew 353, Writ to enquire of the Lands, Tenements, or Hereditaments, 50 354. descended. mens by Confes. Devisee charge VII. Provided also, and be it further enacted, That all and every Devisee and Devisees, made liable by this Act, shall be liable able as Heir. 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. Provided always, That this Act shall be in force for Three Years, aud to the End of the next Session of Parliament after the Expiration of To continue for the said Three Years, and no longer. [Made perpetual by 6 & 7 three Years. W. S. cap. 14.] No. 6. 4 Anne, c. 16.-An Act for the Amendment of the Law, and the better Advancement of Justice. [Inserted ante Class I. No. 23. See Section 14, as to Nuncupatiye Wills] No. 7. 14 George II. c. 20.-An Act to amend the Law concerning Common Recoveries, and to explain and amend an Act made in the twenty-ninth Year of King CHARLES the Second, intituled, An Act for Prevention of Frauds and Perjuries, so far as the same relates to Estates pur autre Vie, [Inserted ante Class X. No. 23.] No. 8. 35 George II. c. 6.-An Act for avoiding and putting an End to certain Doubts and Questions relating to the Attestation of Wills and Codicils concerning real Estates in that Part of Great Britain called England, and in his Majesty's Colonies and Plantations in America. HEREAS by an Act made in the twenty-ninth Year of the 53 Geo. II. c. 6. tuled, An Act for Prevention of Frauds and Perjuries; it is amongst other Things enacted, That from and after the twentyfourth Day of June, in the Year of our Lord one thousand six hun'dred and seventy-seven, all Devises and Bequests of any Lands or 19 2, c. 5, § 5. No. 8. 35 Geo. II. c. 6. Devisee, &c. at testing, the De vise void, but he admitted to prove the Will. admitted a Witness. • Tenements deviseable, either by Force of the Statute of Wills, or by II. And be it further enacted by the Authority aforesaid, That Creditor attesting, in case, by any Will or Codicil already made or hereafter to be made, any Lands, Tenements, or Hereditaments, are or shall be charged with any Debt or Debts; and any Creditor whose Debt is so charged, hath attested or shall attest the Execution of such Will or Codicil, every such Creditor, notwithstanding such Charge, shall be admitted as a Witness to the Execution of such Will or Codicil, within the Intent of the said Act. refuse his Legacy, ness. III. And be it further enacted by the Authority aforesaid, That Legatee who has if any Person hath attested the Execution of any Will or Codicil been paid, or shall already made, or shall attest the Execution of any Will or Codicil admitted a Wit- which shall be made on or before the said twenty-fourth Day of June, in the Year of our Lord one thousand seven hundred and fifty-two, to whom any Legacy or Bequest is or shall be thereby given, whether charged upon Lands, Tenements, or Hereditaments or not; and such Person, before he shall give his Testimony concerning the Execution of any such Will or Codicil, shall have been paid, or have accepted or released, or shall have refused to accept such Legacy or Bequest, upon Tender made thereof; such Person shall be admitted as a Witness to the Execution of such Will or Codicil, within the Intent of the said Act, notwithstanding such Legacy or Bequest. After Refusal, he. Acceptance, may retain. IV. Provided always, and be it further enacted, That in case of is barred from the such Tender and Refusal as aforesaid, such Person shall in no wise be Legacy; but after intitled to such Legacy or Bequest, but shall be for ever afterwards barred therefrom; and in case of such Acceptance as aforesaid, such Person shall retain to his own Use the Legacy or Bequest which shall have been so paid, satisfied, or accepted, notwithstanding such Will or Codicil shall afterwards be adjudged or determined to be void for want of due Execution, or for any other Cause or Defect whatsoever. (1) R. acc. Lees v. Summersgill, 17 Vesey, 508, that a personal Bequest to a subscribing Witness is void, although no Attestation is necessary. V. And be it further enacted, That in case any such Legatee as No. 8. aforesaid, who hath attested the Execution of any Will or Codicil 35 Geɔ II c. 6. already made, or shall attest the Execution of any Will or Codicil Legatee attesting, which shall be made on or before the said twenty-fourth Day of June, Life time of the and dying in the in the Year of our Lord one thousand seven hundred and fifty-two, Testatos, or before shall have died in the Life-time of the Testator, or before he shall have he has received or refused his Lega received or released the Legacy or Bequest so given to him as aforesaid, cy, admitted and before he shall have refused to receive such Legacy or Bequest, on Witness. Tender made thereof, such Legatee shall be deemed a legal Witness to the Execution of such Will or Codicil, within the Intent of the said Act, notwithstanding such Legacy or Bequest. Credit of the termined by the VI. Provided always, That the Credit of every such Witness so attesting the Execution of any Will or Codicil, in any of the Cases in Witness to be dethis Act before mentioned, and all Circumstances relating thereto, Court. &c. shall be subject to the Consideration and Determination of the Court, and the Jury, before whom any such Witness shall be examined, or his Testimony or Attestation made use of; or of the Court of Equity, in which the Testimony or Attestation of any such Witness shall be made use of; in like Manner, to all Intents and Purposes, as the Credit of Witnesses in all other Cases ought to be considered of and determined. VII. And be it further enacted by the Authority aforesaid, That No Devisee, where no Person to whom any beneficial Estate, Interest, Gift, or Appoint- the Devise is made void, &c. being exment shall be given or made, which is hereby enacted to be null and amined to the Exvoid as aforesaid, or who shall have refused to receive any such Legacy ecution of the Will, shall afterwards or Bequest, on Tender made as aforesaid, and who shall have been extake any Benfit or amined as a Witness concerning the Execution of such Will or Codi- Compensation for cil, shall, after he shall have been so examined, demand or take the same. Possession of or receive any Profits or Benefit of or from any such Estate, Interest, Gift, or Appointment so given or made to him, in or by any such Will or Codicil; or demand, receive, or accept from any Person or Persons whatsoever, any such Legacy or Bequest, or any Satisfaction or Compensation for the same, in any Manner or under any Colour or Pretence whatsoever. of Witnesses, arr VIII. Provided always, and be it enacted by the Authority Cases where the aforesaid, That this Act, or any Thing herein contained, shall not ex- Validity or Wills. tend or be construed to extend to the Case of any Heir at Law, or of and Competency any Devisee in a prior Will or Codicil of the same Testator, executed not affected. and attested according to the said recited Act, or any Person claiming under them respectively, who has been in quiet Possession for the Space of two Years next preceding the sixth Day of May, in the Year of our Lord one thousand seven hundred and fifty-one, as to such Lands, Tenements, and Hereditaments, whereof he has been in quiet Possession as aforesaid; and also that this Act, or any Thing herein contained, shall not extend, or be construed to extend, to any Will or Codicil, the Validity or due Execution whereof hath been contested in any Suit in Law or Equity commenced by the Heir of such Devisor, or the Devisee in any such prior Will or Codicil, for recovering the Lands, Tenements, or Hereditaments, mentioned to be devised in any Will or Codicil so contested, or any Part thereof, or for obtaining any other Judgment or Decree relative thereto, on or before the said sixth Day of May, in the Year of our Lord one thousand seven hundred and fifty-one, and which has been already determined in favour of such Heir at Law, or Devisee in such prior Will or Codicil, or any Person claiming under them respectively, or which is still depending, and has been prosecuted with due Diligence; but the Validity of every such Will or Codicil, and the Competency of the Witnesses thereto, shall be adjudged and determined in the same Manner, to all Intents and Purposes, as if this Act had never been No. 8. made; any Thing herein before contained to the contrary thereof in 35 Geo II. c. 6 any wise notwithstanding. are uot compre IX. Provided always nevertheless, and it is hereby declared, Pos-essions which That no Possession of any Heir at Law, or Devisee in such prior bended within the Will or Codicil as aforesaid, or of any Person claiming under them Meaning of the respectively, which is consistent with, or may be warranted by or preceding Clause. under any Will or Codicil attested according to the true Intent and Meaning of this Act, or where the Estate descended or might have descended to such Heir at Law, till a future or executory Devise, by Virtue of any Will or Codicil attested according to this Act, should or might take Effect, shall be deemed to be a Possession within the Intent and Meaning of the Clause herein last before contained. X. And whereas in some of the British Colonies or Planta'tions in America, the said Act of the twenty-ninth Year of the Reign of King CHARLES the Second, has been received for Law, or Acts of Assembly have been made, whereby the Attestion and Sub Iscription of Witnesses to Devises of Lands, Tenements, and Here. ditaments have been required: Therefore, to prevent and avoid Doubts which may arise in the said Colonies or Plantations, in relaș This Act to ex- tion to the Attestation of such Devises of Lands, Tenements, and fed to such of the Hereditaments; be it enacted by the Authority aforesaid, That this are the of Act, and every Clause, Matter and Thing therein contained, shall ex20 Car II. c. 3, is tend to such of the said Colonies and Plantations, where the said Act ecrived, &c. of the twenty-ninth Year of the Reign of King CHARLES the Second, is by Act of Assembly made, or by Usage received as Law, or where by Act of Assembly or Usage, the Attestation and Subscription of a Witness or Witnesses are made necessary to Devises of Lands, Tenements, or Hereditaments; and shall have the same Force and Effect in the Construction of or for the avoiding of Doubts upon the said Acts of Assembly, and Laws of the said Colonies and Plantations, as the same ought to have in the Construction of or for the avoiding of Doubts upon the said Act of the twenty-ninth Year of the Reign of King CHARLES the Second in England. XI. Provided always, That as to Cases arising in any of the said Colonies or Plantations in America, no such Devise, Legacy, or Bequest as aforesaid, shall be made null and void by virtue of this Act, unless the Will or Codicil whereby such Devise, Legacy, or Bequest shall be given, shall be made after the first Day of March, which shall be in the Year of our Lord one thousand seven hundred and fifty-three. No. 9. 55 G III c 192. 55 George II. c. 192.-An Act to remove certain HEREAS by the Customs of certain Manors, Copyhold of the Copyhold Tenants thereof declaring the Uses of Surrenders made for that Purpose: And whereas much Inconvenience has arisen, from the Necessity of making such Surrenders: For Remedy whereof, May it please your Majesty that it may be enacted; and be it enacted * A Friend, to whom I had some Time ago communicated my Ideas upon the Subjects mentioned in the preliminary Note to the present Title, applied to me to draw the present Act, on Behalf of the Gentleman who had agreed to bring it forward. I wished the Opportunity not to be lost of subnitting to the Attention of the Legislature, the other Modifications of the Law No. 9. without by the King's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this 55 G. III. c. 192. present Parliament assembled, and by the Authority of the same, Dispositions bv That in all Cases where by the Custom of any Manor in England or will of Copyhold Ireland any Copyhold Tenant of such Manor may by his or her Last Estates made er Will and Testament dispose of or appoint his or her Copyhold Tene- fectual pie vious Surienments, the same having been surrendered to such Uses as should be ders to the Uses declared by such Last Will and Testament, every Disposition or thereor. Charge made or to be made by any such Last Will and Testament by any Person who shall die after the passing of this Act, of any such Copyhold Tenemants, or of any Right, Title, or Interest in or to the same, shall be as valid and effectual to all Intents and Purposes, although no Surrender shall have been made to the Use of the Last Will and Testament of such Person, as the same would have been if a Surrender had been made to the Use of such Will: to pay the like on such Surre II. Provided also, and it is hereby further enacted, That no Person entitled or claiming to be entitled to Copyhold Lands, Tene- Persons admit ed ments, or Hereditaments, in consequence of any Testamentary under Testamen Disposition, shall be entitled to be admitted to the same by Virtue of tary Dispositions. any Thing in this Act contained, except upon Payment of all such Fees. c. as would Stamp Duties, Fees, and Sums of Money as would have been lawfully have been payable due and payable in Respect of the surrendering of such Copyhold ders. Lands, Tenements, or Hereditaments, to the Use of such Will, or in Respect of the presenting, registering, or enrolling such Surrender, had the saine Lands, Tenements, and Hereditaments been surrendered to the Use of the Will of the Person so disposing of the same; all such Stamp Duties, Fees, or Sums of Money due as aforesaid, to be paid in Addition to the Stamp Duties, Fees, or Sums of Money due or payable on the Admission of such Person so entitled or claiming to be entitled to the same Copyhold Lands, Tenements, or Hereditaments, and the Stamp Duties to be affixed to the Copy of the Admission. This Act not invalidate Devises III. Provided always, and it is hereby enacted and declared, That nothing in this Act contained shall be construed, deemed, or taken, at Law or in Equity, to render invalid or ineffectual any Copyholds, &c. Devise or Disposition of any Copyhold Lands, Tenements, or Hereditaments, or of any Right, Title, or Interest in or to Copyhold Lands, Tenements, or Hereditaments, which would be valid or effectual if this had not been made; or to render valid and effectual any Devise or Disposition of any Copyhold Lands, Tenements or Hereditaments, or of any Right, Title, or Interest in or to any Copyhold Lands, Tenements, or Hereditaments, which would be invalid or ineffectual if a Surrender had been made to the Use of the Last Will and Testament of the Person attempting to dispose of the same by Will; any Thing herein-before contained to the contrary notwithstanding. referred to in the above mentioned Note, but it was not thought expedient to include them in the intended Bill. According to the Draft which I submitted, the Provision would have been general, as embracing all Copyhold and Customary Estates, with Respect to such Interests as a Testator could, by any Mode of Conveyance, have disposed of; and I wished the testamentary Power to have been subject to the general Provisions of the Statute of Frauds, as one step towards that general Uniformity in the Mode of testamentary Disposition, which I conceive would be attended with very important Benefit to the Public. It certainly would never have occurred to me, upon perusing the Purview of the Act, to have contemplated the Necessity of the concluding Proviso, or the Possibility of any Doubts being entertained of the Nature of those which the Proviso is calculated to obviate. ر |