England. By the lord chancellor : This cannot be a futperftitious ufe within the ftatute; the diffenters here meant are proteftant diffenters acting under the toleration act 1 W. & M. c. 18.: and decreed the refiduum of the testator's eftate to be difpofed of to the charity, and ordered a scheme to be laid before him for that purpofe".

In the cafe of White and White, July 28, 1778. Richard Holt, poffeffed of a confiderable personal estate, made his will in 1769; and after giving various legacies, disposed of the refiduum of his eftate in manner following: one half thereof he gave to the Foundling Hofpital; and if there should be more than one of the latter, then to fuch of them as his executor fhould appoint.-He then appointed A. B. of, &c. his executor but the teftator afterwards ftruck out the executor's name, and appointed no other executor, and died in 1775. Benjamin White, the plaintiff, proved the will as a teftamentary paper, and took adminiftration with the paper annexed, as one of the next of kin2. The defendants are

;

the other next of kin, and the governors of the Foundling Hofpital, and of the several Lying-in Hospitals.-The plaintiff in his bill infifts that the devife of the moiety to the Lying-in Hofpital became void by ftriking out the name of the executor, who was to appoint, and that it fhould be referred to the mafter to report who are entitled as next of kin. The defendants, the next of kin, alfo claim that moiety as being void. In fupport of the bill it was argued, that the appointment of the executor being revoked, the devife itself is revoked, their being now no perfon exifting who can appoint; and that the teftator having revoked the executor's name, he meant to revoke the devife. For the hofpitals, it was argued that the obliteration of the name did not defeat the intent, fo as to prevent the money from going to fome one or all the lying-in hofpitals. That it is impoffible it should go as it was left; but the court will stand

y 2 Eq. Caf. Abr. 193.

manner as has been defcribed, page 193,

z Took the administration in fuch 194.

in

in the executor's place.. All the rules fhew great latitude and liberality of conftruction, and where the teftator refers to any person who cannot act, the court will carry the devife into execution as near as may be. The cafes prove, that where money is indefinitely given, the court will exercife its judgment: If the teftator had given it to such a charity as the executor fhould name, the court must have applied it. By the lord chancellor : My notion is, that in the cafe of charities, this court derives a great latitude of authority from the extenfive nature of moft charities; because they cannot go upon the fame ftrict rules which prevail in private cafes but that is well refolved into the purpofe and the mode. Where the teftator is willing it fhall go in the largest extent, the court will follow his intent in marking out objects. I wish to pursue this method of conftruing the intent of teftators. The question is here, whether the legacy is void, the executor's name being ftruck out, and there being no perfon upon whom it could devolve, or whether the court will fuftain it? It has been argued, that the court has great extent of jurisdiction, in making legacies certain which were before uncertain; and secondly, in applying them where it is not known to what use they were intended. There has been at all times an exercife of this authority, where a legacy has been doubtfully given. Here the teftator giving a legacy to the next of kin, and to the executor names a particular charity, a refiduary legatee; the question is, only, how the truft fhall be carried into execution? I remember to have read a cafe somewhere, where a legacy is given to B, for the benefit of nonconforming minifters, with the advice of C and D. At the teftator's death B, C, and D, were all dead, yet the court sustained the legacy. It must be referred to a mafter, to which of the lying-in hofpitals it shall be paid ".

a This is the cafe of the Attorney b Brown's Cha. Rep. 12. General and Hickman, mentioned

page 221.

APPENDIX.

INTRODUCTION

TO THE

FORMS OR PRECEDENTS

A

HERE LAID DOWN.

WILL is to be written on paper or parchment without a ftamp; and whether it be begun with these words, "In the name of God, amen," or with these, "This is the laft will and testament," is immaterial; yet the former feeming to be the most ufual method, it is here purfued. The teftator fhould be careful in giving a proper defcription of himself, as with respect to his chriftian and furname, his place of abode, trade or occupation; which is usually termed his addition. Women, who were never married, use the addition of Spinfter; widows, that of widows; which are fufficient without mentioning any trade or bufinefs. It is well to infert the ufual clause, as, being in health of body; or, being fick in body, but of found mind, &c.

WITH refpect to legatees, thofe alfo fhould be properly defcribed, as thereby they may be diftinguifhed from any others; and the whole will should be fo formed as to leave no room for doubt concerning the teftator's intention, and be written in one hand writing, (if poffible) without any interlineation or alteration, as mentioned towards the latter part of the explanation preceding the contents of our work; and if any interlineation or alteration fhould unavoidably happen to be made therein, mention thereof should be made in the atteftation, as in No. V. pages 231, 232. The will

fhould

fhould be dated the day and year on which the teftator figned it ; concerning which we have made mention in pages 151, 152. And he should put his feal as well as his name to the will; for although this is not required by the ftatute of 29 Car. II. even with respect to real estate, and as to perfonal eftate, we have seen in page 154, that lefs formality is required in executing a will thereof, than a will whereby real estate is affected; and that two witneffes are fufficient, where the will does not concern real estate : yet if a man derives his power of difpofing from any deed, by which it is expreffed, that he fhall difpofe by writing, under his hand and feal, &c. it is neceffary for the teftator to feal his will; as by an omiffion thereof the difpofition hath been held void. And it has been held, that fealing a will is not a fufficient figning within the ftatute; therefore, it is prudent for the teftator both to fign and feal his will in fuch place, as we fhall point out at the conclufion of each of the forms or precedents hereafter laid down, where fome further obfervations will occafionally be made.

NUMBER I.

A MAN, poffeffed of Money, Plate, Household goods, a Leafehold eftate for Years; another for Years determinable on the Deaths of Three Perfons named in the Leafe; and having divers Sums of Money due to him; but is not poffeffed of any Real estate, gives the whole to his Wife.

IN THE NAME OF GOD, AMEN. I John Stiles, of Cheapfide, in the city of London, Linen-draper, being in health of body and of found mind, memory, and understanding, praised be God for the fame, do make this my last will and teftament in manner and form following: I give, devife, and bequeath, unto my beloved wife Mary Stiles, all my money, fecurities for money, goods, chattels, estate and effects, of what nature or kind foever: To HOLD the fame unto my faid wife, her executors, administrators and affigns. AND I do nominate, conftitute, and appoint my faid wife fole executrix of this my last will and teftament, hereby revoking and making void all and every other will or wills at any time heretofore by me made, and do declare this to be my last will and testament. IN WITNESS whereof I the faid John Stiles.

have