by him or his order .-Where a man by will difpofed of per fonal estate, and afterwards by parol gave 100l. bill to one to deliver over to his nephew, if the teftator should die of that fickness, it was held good. So where the husband upon his death-bed delivered to his wife a purfe of 100 guineas, bidding her apply it to no other ufe than her own; and also drew a bill on his goldfmith, to pay her 100l. for mourning'. AND where a bond for 100l. was given by one Spackman to Sarah Baily, which Sarah Baily delivered to the defendant; faying, in cafe I die, it is yours, and then you have fomething. Sarah Baily died inteftate, and her administrator brought a bill to have the bond delivered up. But by lord chancellor Hardwicke. This is a fufficient donatio caufa mortis to pass the equitable intereft of this bond upon the inteftate's death. The queftion in this cafe was, whether the nature of the property was capable of being fo given. His lordship held it might, as well as a fpecific chattel; though no legal property paffed thereby, nothing but the paper, a bond being evidence of a debt, and the intent being to give the debt, not the paper, he held it a good donation mortis caufa, comparing it to the property which paffed by affignment of a bond, which paffed nothing in point of law, and the affignee must make use of the other's name for recovering on it. BUT in the cafe of Ward and Turner", (in which is collected all the law upon the fubject of donations caufa mortis, and particularly confidered what shall be a fufficient delivery of different kinds of property to give effect to fuch donations). It was held by lord Hardwicke, that a delivery of receipts for South Sea annuities was not fufficient, (though there was ftrong evidence of the intent ;) and that it could not be done without a transfer, or fomething amounting to that; and all the anxious provifions of the ftatute of frauds will fignify nothing, if donations of stock, attended only by delivery of the paper, is allowed. It might be fupported to the extent of any given value, and it would leave these things under the greateft degree of uncertainty, and amount to a repeal of that ufeful law as to all this part of the property of the fubjects of this kingdom. Therefore, notwithstanding the ftrong evidence of the intent, this gift of annuities is not fufficiently made within the rules of the authorities. And confidering how much of the perfonal eftate of this kingdom is now vested in ftocks and funds, his lordship faid he was of opinion not to carry it further. TESTATOR by will, dated 16th April, 1779, appointed Edward Chapman and others executors, and gave them 30l. each; and delivered the will to E. C. telling him there was fomething in it for himfelf, that would reward him for the trouble he the teftator had often given him, and for the extra trouble he would have in the execution of,his will more than the other executors. With the will fo delivered, there was pinned a piece of paper, or note directed to Mr. Edward Chapman, in which was inclofed a bank-note value 50l. The teftator frequently afterwards had the will, with the paper pinned thereto, and the contents returned to him, and as often again delivered the will and paper to E. C. At the time he last delivered the will to E. C. which was in November 1784, he faid he thought he had not done enough for him; and added, that he had doubled what was in the paper; and fometime after faid to E. C. "Now I have made another will, the old will is of no use to me, but you must take care of it, by reason, you know, there is fomething with it for yourfelf: as foon as I am dead open the paper and take it out. The last time the teftator re-delivered the will to E. C. there was pinned to it a piece of paper directed, "For Mr. Chapman 8th of November, 1784" and therein were contained two bank-notes of 5ol. cach.-The teftator by will, the 15th January 1785, appointed E. C. one of his executors, to whom he gave legacies of 50l. each) E. C. alfo claimed rool. The mafter having reported the examination of E. C. and fubmitted it to the court, the principal matters of which are as abovementioned.-It was argued that this is a gift before the making of the will; therefore the teftator, if he meant the notes to pafs, could have given them as a legacy; and it only appears from the evidence of Chapman. Lord Chancellor.-Being reported by the master, I think the gift good, as a donatio caufa mortis *. A NUNCUPATIVE OR VERBAL WILL, is, where the tefrator, without any writing, doth declare his will before a fuflicient number of witneffes, and this can extend only to perfonal estate; for no real cftate can pafs by the will, unless Hill. Chapman, 1789. 2 Bro, Cha. Rep. 612. it is written and attefted in fuch manner as has lately been shewn. Those verbal wills were formerly more in use than at present, when the art of writing is become more univerfal; and as they are liable to great impofitions, and may occasion many perjuries, the ftatute 29 Car. II. c. 3. enacts, 1. That no written will fhall be revoked or altered by a fubfequent nuncupative one, except the fame be in the lifetime of the teftator reduced to writing, and read over to him and approved; and unlefs the fame be proved to have been fo done by the oath of three witneffes at the leaft, who by the ftatute of 4 & 5 Ann. c. 16. must be such as are admissible upon trials at common law. 2. That no nuncupative will shall in any wife be good, where the eftate bequeathed exceeds 30l; unless proved by three fuch witnesses present at the making thereof; and unless they or fome of them were fpecially required to bear witness thereto by the teftator himself: and unless it was made in his last ficknefs, in his own habitation or dwelling-houfe, or where he had been previously resident ten days at the least; except he be surprised with fickness on a journey, or from home, and dies without returning to his dwelling. 3. That no nuncupative will shall be proved by the witneffes after fix months from the making, unlefs it were put in writing within fix days; nor thall it be proved till fourteen days after the death of the teftator, nor till procefs hath first issued to call in the widow or next of kin to conteft it if they think proper. HENCE we may perceive, that this will extends only to perfonal eftate: That the teftamentary words by which it is to be made must be spoken with an intent to bequeath, not any loose idle words in the fick person's illness; for he muft require the by-ftanders to bear witnefs of fuch his intention: That it must be made at home, or among his fa mily or friends, unless by unavoidable accident, to prevent impositions from strangers; and it must be in his laft ficknefs, for if he recovers he may alter his difpofition, and has time to make a written will: That it must not be proved after fix months from the making, unless it were put in writing within fix days from that time; nor yet too haftily haftily, as not until fourteen days after the teftator's death, nor till legal notice hath been given to his widow or next of kin. THE legislature having thus provided against any frauds in fetting up nuncupative wills, by fuch a numerous train of requifites, that the thing itfelf is fallen into difufe, and hardly ever heard of, but in the only inftance where favour ought to to be fhewn to it, when the teflator is surprised by fudden and violent fickness ". TH CHA P. III. Of revoking the Will. HAT a man may alter or make void his will at pleafure, and although he may have made his laft will and teftament irrevocable in the strongest words, he is at liberty to revoke it, most people feem apprifed of; but how a will may be revoked by acts in law and alteration of circumstances, very few perfons have a juft conception; and as many, after having made their will, have made alterations in their eftate, and died without altering or republifhing their will, and thereby left their eftates and effects open to dispute and litigation; we fhall here, after having attended to the ftatute 29 Car. II. point out various acts that may be done by a teftator, fo as to occafion either a total or partial revocation of his will; and then make fome obfervations on the means whereby the revocation might be rectified, and on the nature and effect of a codicil, and the republication of a will; and conclude the head with fhewing how, in various cafes, a perfon may die both teflate and inteftate, and thereby part of his eftate be difpofed of by himfelf, and the other part by the law. Black. Com. 2 Y. §1. 4 8 Co. Rep. 82 N Br By ftatute 29 Car. II. c. 3. it is enacted that no de vife in writing of lands, teng ments, or hereditaments, or any claufe thereof, fhall be revocable, otherwife than by fome other will or codicil in writing, or other writing declaring the fame, or by burning, cancelling, tearing, or obliterating the fame by the teftator himself, or in his prefence, and by his directions and confent; but all devifes and bequests of lands and tenements fhall remain and continue in force until the fame be burnt, cancelled, torn, or obliterated by the teflator or by his directions in manner aforefaid, or unless the fame be altered by fome other will or codicil in writing, or other writing of the devifor figned in the prefence of three or four witneffes declaring the fame. And that no will in writing concerning any goods, chattels, or perfonal eftate, fhall be repealed, nor fhall any claufe, devife, or bequeft therein be altered or changed by any words or will by word of mouth only; except the fame be in the lifetime of the teftator committed to writing, and after the writing thereof read to the teftator and allowed by him, and proved to be fo done, by three witnesses at the leaft. THAT a will may be effectual for paffing lands, the fame must be subscribed by three witneffes in the prefence of the teflator, as was fhewn in the preceding chapter. So for revoking fuch a will within the words of the ftatute, it must be by a will attefted by three witneffes, and fubfcribed by them in the prefence of the teftator ".—A man makes his will duly executed and attefted, and at the fame time in like manner executes a duplicate thereof. Sometime after, having a mind to change one of his trustees, he orders his will to be written over again, without any variation whatfoever from the firft, fave only in the name of that trustee. And when it was fo written over, he executes it in the prefence of three witneffes, and the three witneffes fubfcribed their names, but not in his prefence. After this the teftator cancels the duplicate, by tearing off the feal; and then dies. The question was, whether this fecond will not being good as a will to pafs lands, fhould yet be a revocation of the firft; and if it fhould not, whether the cancelling the other Page 159. b Eeclifton v. Speak, Carth. 81. fhoule |