The Sun.
London, England, 1838-01-05 00:00:00

PLAIN DIRECTIONS FOR MAKING WILLS:

BY J. C. HUDSON,
Of the Lrgacy Duty Office, London.
Longman, Orme, Brown, Green, and Longman.

We regret that press of other matter has prevented us
from noticing sooner this little useful work. It points out
the important changes which have been made by the new
Wills' Act, gives an exposition of the law intelligible in
general to every man of ordinary capacity, and concludes
with an appendix, containing forms of wills for disposing
of personal property only, and of real and personal property
together. The subject interests every person in the com-
munity, and as the publication, therefore, cannot be too
widely disseminated, we shall give an outline of what ap-
pear the most useful of the " Plain Directions."
I. Of the persons competent to make Wills, and the for-
malities necessary thereto :
One of the important provisions of the late Act, effecting an altera-
tion of the law, and rendering it uniform as to every variety of property,
is, that no Will, made by any person under the age cf twenty-one years,
shall he valid. A Will, therefore, to be valid, as the law now stands,
must be made by a person of the age of twenty-one years, and of sound
mind ; not attainted of treason ; not a felon, or an outlaw. In the case
of a female, she must be unmarried, unless she make a Will by the con-
sent of her husband, or under a power especially given to her for that
purpose by some other Deed or Will, or merely for the purpose of ap.
pointing an executor of a Will, of which she is the executrix.
The next important point is, that every Will must be written in the
lifetime of the Testator.

Noncupative Wills, therefore, which are memorandums, written
after the Testator's death, of verbal directions for the disposal of his
property, given by him while in expectation of death, are henceforth
abolished.

Every Will, whatever may be the description of the property of
which it attempts to dispose, must have two witnesses. The follow-
ing are the words of the Act : " And such signature" (the signature
to the Will) " shall be made or acknowledged by the Testator, in the
presence of two or snore witnesses present at the same time, and such
witnesses shall attest and shall subscribe the Will in the presence of the
Testator." Hitherto the law relating to the witnessing of 'Wills has
been different for different descriptions of property. Real estate, for
example, required three witnesses, money in the funds two; but for
other personal estate there was no inflexible rule. The law is now
uniform, and two witnesses are equally necessary, whether to pass the
real estate of the wealthiest nobleman, or the stork in trade of the
humblest shopkeeper. This is the great and essential point to be kept
in view. The construction that may be put on the contents of a Will is
matter which may be discussed in the Courts ; but an omission to corn.
ply with the required formalities is irremediable.
Every Testator must take care not to put any person, to whom or to
whose wife or husband he has given a legacy, into the situation of a
witness to his Will; for though the validity of the Will, as a whole,
will not be thereby affected, the legacy to that witness will be void.
A creditor may, notwithstanding, be a witness to a Will without for-
feiting his debt, and an executor may be a witness, without invalidating
his appointment to the executorship.

2. Of revoking and altering Wills :--
A Will, or Codicil, once effectually made, cannot be altered or re-
voked but in a manner as formal as that in which it is required to be
made; that is to say, "by another Will or Codicil executed in man.
Der hereinbefore required, or by some other writing, declaring an inten.
tion to revoke the same, and executed in the manner in which a Will is
hereinbefore required to be executed, or by the burning, tearing, or
otherwise destroying the time, by the Testator, or by some person in
his presence, and by his direction, with the intention of revoking the
same."

A Will is not revoked by any presumption of an intention, on the
ground of an alteration in circumstances.
But if a Will or Codicil, or any part of a Will or Codicil, shall have
been revoked, it cannot be revived unless it be executed over again as a
fresh Will or Codicil is required to be or by the addition of a Codicil
so executed, and showing an intention to revive that which had been
previously revoked.
If a Testator desire to make an alteration in his Will, rather than
to make a new one, or to obliterate some portion, or to add something by
intcrlincation or otherwise, he may do so, provided his signature and
the signatures of two witnesses be made in the margin, or on some
other part of the Will opposite or near to the 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.

Every Will is revoked by the subsequent marriage of the Testator or
Testatrix, except a Will made in the exercise of a power of appointment
when the property appointed thereby would Pot, in default of appoint-
ment, pass to the heir, executor, or administrator, or next of kin of the
Testator or Testatrix.

3. Of the different descriptions of property, and how
they may be disposed of by will.
The details under this head are long, and extend to real
estate, of the nature of customary freehold, or tenant light,
or customary, or copyhold, besides personal estate. They
are rather complicated, and the more safe way, therefore,
would be to employ a professional person in devising pro-
perty of the first class. The following extracts may, how-
ever, be useful :
A Will made and executed as before directed may dispose of every
description of real and personal estate which the Testator possessed, or
was entitled to either at law or in equity, and which if not disposed of
would descend, according to its nature, to his heir, or to his executor
or administrator.

The Statute of 9 Geo. 2, c. 36, called the Mortmai❑ Act, is not
repealed or altered by the 1 Victoria, c. 26; and therefore legacies
to charities out of real estate will still be void. If a Testator desire
to leave legacies to charities, he must take care to make them pay.
able, either ex;•ressly, or by ordinary course of law, out of such
personal estate as may be applied for that purpose. A bequest to a
charity, of a term for years, or leasehold property ; or of money, to
arise from, or be produced by, the sale of land; or by the rents,
profits, or other interest arising from land ; or a bequest of money, to
be laid cut in land; or a bequest of money secured by mortgage;
or a bequest of annuities charged on land, or rather rent charges;
or a bequest of money, with a direction to apply it in paying off
mortgages on schools or chapels ; or a bequest of money secured on
parochial rates, or county rates, or turnpike tolls—is, in each else,
void : and even where no particular fund is pointed out in the Will,
for the payment of charitable legacies, and they are consequently a
charge on the residue, and the residue consists, in part, of property
of all or either of the kinds above specified, so much of the legacies
will become void as shall bear the same proportion to the entire
legacies as the exempted property bears to the entire residue.

The Act to restrain accumulations (39 and 40 Geo. 3, c. 98) remains
also in full force. No person, therefore. can now, any more than be.
fore the passing of the 1 Victoria, c. 26, dispose by Will, of any real
or personal estate, in such manner as that the rents or produce thereof
shall be accumulated for any longer term than a life or lives in being
at the death of the Testator, and twenty-one years afterwards; nor
can the Will of any Testator, by whatever ingenuity he may endeavour
to effect such a purpose, have any operation upon his property, or any
part thereof, beyond that period.

4. Of the forms of Wills generally, and of such bequests
as require to be expressed with peculiar care :

There being no stamp duty, or tax of any kind, oa a Will itself, it
should be written on plain paper or parchment. Nor is it against the
law for any person, not of the legal profession, to make Willa for such
as choose to employ him ; and the fact is, that in many places the parish
clerk or schoolmaster of the neighbourhood makes more Wills than ths.
attorney. These persons have generally an old-fashioned form of intro-
duction, which, except that it gives an appearance of greater extent to
their work than it would otherwise possess, is of no use whatever. In
a work on Wills, the following is one of the forms of introduction of-
fered to the choice of the reader :

"In the name of God, Amen I I, J. W.—, of Gloucester-place,
in the parish of Saint Marylebone, In the county of Middlesex, Esquire,
being in a weak state of health, but of sound and disposing mind, me.
mory, and understanding, blessed be God for the same, do this first day
of January, in the year of our Lord one thousand eight hundred and
twenty-six, make, publish, and declare, this my last Will and Testament,
in manner and form following; that is to say, first and principally, I
commend my soul into the hands of Almighty God, my Creator, hoping
for a glorious resurrection, and a remission of all my sins, through the
merits and mediation of my blessed Lord and Saviour Jesus Christ;
and my body I commit to the earth, to be decently interred at the dis-
cretion of my executors hereinafter named.
" And as to such worldly estate of which I may die possessed, I
give and bequeath the same as follows, viz."
NOW, except the Testator's mina* and description, the date and the
declaration that it is his last Will and Testament, there is not one word
in this preamble that is at all relevant to the matter of the Will, or of
the smallest use ; neither is it at all necessary for the Testator to direct
that hls just debts be paid, for the law will oblige the executor to pay
them, whether the Testator direct him to do so or not. Whatever
tends to shorten and simplify the making of the Will is desirable ;
and therefore it is best to set out at once in the following manner,
which, let it be observed, is an example taken from the Will of one
of the most eminent conveyancers of Lincoln's Inn, written by him-
self :

" This is the last Will and Testament of A. 8., Lincoln's Inn, in
the county of Middlesex. I give and bequeath to C. D. the sum of I've
hundred pounds," and so on.
The attempt to give forms of 'Wills to suit all cases, so numerous
are the modes in which property of different descriptions may be given
by Will, is one that must be imperfect, even though the work in which
it is made should be extended to many volumes; and no person of
common prudence, having great wealth to di►pose of, and especially if
it consist of real estate, coscerning which the law of England is a
peculiarly difficult study, would be satisfied to leave the fultihnent of
his intentions as to his property after death to the chance of his own
competency to make an intelligible and effectual 'Will, or in other
words, to do the work of a lawyer, without having had the education
of one.

With respect to personal estate, very few directions, with regard to
forms of words only, seem to be necessary. Nothing is more simple,
than to express au intention of giving a certain sum of money, or a
horse, or a piece of plate, to John Smith or Thomas Brown ; and to give
forms of words for such purposes, appears like "burning daylight."
The points on which some observations may be useful are the follow.
ing

1. The distinction between general and specific legacies should be
well understood. If a Testator intend to give a legacy of any particular
thing in his possession, he should take care to give a plain description of
the identical thing to be given ; as, " my black horse," " my leasehold
house at such or such a place," or " the 1,0001. Three per Cent.
Stock, standing in my name," &c. _ _

2. Bpeeitic legacies are paid and satisfied in full by the delivery or
transfer of the property given, while the general legacies must abate, if
there be not property enough, exclusive cf the specific legacies, to pay
twenty shillings in the pound.
If a Testator give a legacy to each of his executors, or trustees,
having appointed more than one, but do not intend such legacies to he
paid to those who decline to act, lie should expressly state the legacies
to be given to them " for and on account of the trouble they may have
in the performance of the trusts of the Will," otherwise those who de.
dine the office may nevertheless be entitled to the legacies.
It is necessary to advert to the subject of legacies to illegitimate
children.

If it be intended to give a legacy to an illegitimate child, unborn st
the time of making the Will, such child must not be described by any
referent* to its father, but as the child with which the mother, to be
named and described, is pregnant. If this direction be not attended to
the legacy will be void.

If the illegitimate legatee be living at the (late of the Will, still the
Testator must not dais him with lawful children, or designate him
simply as the child of his reputed parent, whether father or mother;
for the law understands by the word child a person bor❑ in wedlock.
If children, though illegitimate, have been so brought up, as that
the circumstances of their birth are not generally known, and they
have enjoyed the reputation of legitimacy, they may take legacies
under the description of " children ;" but then it is necessary, hi
case of cpposition, to establish the fact of the reputation by means
of evidence, the result of which will be doubtful, It Is, therefore,

the safest course for the Testator to describe illegitimate children by
name, or as the "reputed child" of A. or 8., or otherwise, so as to
leave no doubt of their identity.
5. Law relating to the division of the personal estate of
persons who die intestate.

If a person w Lo is not a freeman of the City of London, die in a pro_
wince of the Archlishop of Canterbury, without leaving a Will, his
. property will be divided among his wife, if he leave one, ead his neartnt
relations, who will be as follows :
First—His children, grandchildren, great grandchildren, &c., in the
straight line of descent.
If he leave none of these,
Secondly—His father.
If none,
Thirdly—His mother, and brothers, and sisters, and their children,.
but not their grandchildren or great grandchildren.
If none,
Fourthly,—His grandfather and grandmother.
If none,
Fifthly—His uncle and aunts
If none,
Sixthly—His cousins, and great nephews and neices,
1. Taking the rights of each set of successors to personal estate upon
intestacy in the above order, if a person die without a Will, leaving a
wife and children or but one child (for if makes no difference whether
there be one child or several children), the wife takes one third of the
personal estate, and the other two. thirds belong to the child or children.
If the deceased leave a wife, but no child or children, one half of his
personal estate will descend to his wife, and the other half will be divisi-
ble among his nearest of kindred, in the sauce manner as the
whole would be divisible if he had left no wife; for which see as fol.
lows :—(No. 11., &c.) It should first, however, be expressly stated,
that under no circumetances is the wife entitled to more than half of
her husband's estate if he die intestate.
The father of an Intestate without issue is entitled to one half of
his estate if he leave a widow, and to the whole if he leave none.
3. When the nearest of kindred are the mother and the brothers and
sisters, the personal estate is divisible into equal portions, one of which
will belong to the mother, and one each to the brothqrs and sisters ; and
if there be children of a deceased brother or sister, they melt be in-
cluded in the division, and an equal portion will be divided among eacdt,
family of children. The grandfather of a brother or sister are not en-
titled to share, in case the Intestate leave a mother, or a brother or sic.
ter, or nephew or niece.

The property of a person of illegitimate birth will descend to his wife
and children, in the same manner as the property of auy other person
but, as he is regarded by the law as nullius filius, or the child of no-
body, he can have no parents, or collateral relations, and, consequently,
if he have no wife or children, his personal estate belongs to the Crown.
It is usual, however, for the Crown, upon being applied to-by petition
for that purpose, to surrender the property to the person who is the
nearest natural connection of the deceased.

The customs peculiar to the personal estate of freemen of the city
of London, and persons dying within the province of the Archbishop
of York, relate only to the division of their estates among the wife
and children.

The personal estate of a freeman of London, or of a person dying
within the province of York intestate, and leaving a wife and child, or
children, is divisible at follows : namely, one third to the widow ; one
third to the child or children equally, and one third between the wife
and child or children, in the same proportions as the whole would have
been divided into, had not the deceased been a freeman of London, or a
resident within the province of York ; that is to say, one third to the
widow, and two thirds to the child or children equally.
The customs of London and York do not regard grandchildren;
and, consequently, where the Intestate leaves a widow, and no child
or children, but grandchildren, :the widow takes two thirds, and the
grandchildren one third among them.
If the deceased leave a widow and no child, the division Is thus :
The widow one half, and ono half of the remaining half, being
equal to three fourths of the whole.
It is a saving to the estate generally to give the legacies (tee of
legacy duty, because by the Legacy Duty Acts money left in addition
to a legacy for the purpose of paying duty thereon is not itself liable
to duty. 'Thus, if 2001. are given to A., a stranger in blood, he
pays 201. out of the 2001. for legacy duty ; but if the legacy be left
to him free of duty, the executor applies 201. out of the residue in
the payment of the duty, and the revenue obtains but 201. out of 220/.,,
instead of 20/. out of 2001.
The author concludes with the following judicious ob-
servations :

In addition to what has been stated of the direct advantages at-
tending the making of a Will in due time, and in a proper manner,
and the observing of the directions herein given, with reference to
the subject, a remark may be permitted, in closing this little work,
on the benefits which may accidentally happen from the same causes,
The making of a Will, and the revising it occasionally, as changes
take place in the family and circumstances of the Testator, and the'
completing of the schedule of the property, which is very strongly
recommended to be placed along with the Will, are calculated to en-
gender in the mind of every man a regard for the interests of his
family ; a pride and satisfaction at having something to leave them
a desire to possess more, or, at least, to preserve that which exsits ;
either of which demand habits of prudence, sobriety, and frugality.
Few minds are so dull as to be utterly insensible of the pleasure af-
forded by the prospect of posthumous regard ; and to be accounted
hereafter as an affectionate husband and father, a considerate relation,
and a sincere friend, is within the power of every mall, by making a
proper disposal of his estate and effects in his last Will and Testa-
ment

THE SCENIC ANNUAL.
Virtue, London, 1838.

The editor of this elegant Annual is Thomas Campbell,
whose name alone is a sufficient guarantee that it will be
worthily conducted. The present volume is the first which
he has taken under his superintendence, and contains many
delightful poems from his pen, as also some remarks oil
Burns, which arc replete with good sense. " Shall I
offend my ancient mother, Caledonia,' asks Er. Campbell,
" if I venture to say that Burns, the truest of Scottish
poets, had not the predominent peculiarities of a Scotch.
man in his character ? He was, dear glorious man, neither
prudent nor patient, nor had he, with all his gifted intellect,
a certain quality which few Scotchmen are without--a
quality which I shall call worldly wisdom, if the Scottish
reader will promise to take the expression in a fairly favou-
rable sense. They accuse us Scotchmen of being generally
obsequious to those who are vulgarly called the great. 1
do not admit the' charge to be more applicable to us thars
to any other people, for in all countries the mass of men aree
poor, and consequently dependent on those who have wealth,
and power. But the Scotch are shrewd and circumspect e
and I have always observed, that even their men of genies
generally lean to the side of circumspection in the mainto-
nance of their independence. When I speak of this wavi-
ness being generally among my countrymen, I do not nseaa
that it is not often a respectable and useful characteristic-
In meaner natures, no doubt, it may degenerate into cun-
ning, and become dry and disgusting ; but in individuals.
of worth and wit, it takes the shape of dignified reserve
and of delicate tact—it refines observation of character
and leads to deliberate choice in stanch friendships. With
out offence to my countryman, let tae say, however, that L
like Burns the better for being without this national trait..
The poetic genius of Burns nourished on scanty learning;
and inspired by Nature herEelf, will furnish a text for the
philosopher, who speculates on the influence of book-ae-
acquired learning on gifted minds of the first order. Mil-
ton, on the one hand, stands an example of the poetic benefits.
of much learning ; whilst Shakspeare and Burns confront.
and refute the assertion, that a little learning is a dangerous.
thing.' That much learning, is covetable by a poet, has.
long ceased to be my opinion. In the bare toil of acquiring:
it his mind exudes much of its natural strength andi
sensibility. Burns, apparently still less learned than Shak-
speare, nerer looked back to ancestral inspiration, but was
himself an ancestor in poetry. I cannot give up my classi-
cal partialities, but I confess the truth of Burns' words,
when he derides those who think to climb Parnassus' hilL
by dint of Greek ; and his strokes of nature bring down,
my conception of the quantum of learning that is needfd
for a genuine poet, to the lowest point. When Naturo
takes Genius by the hand she always conducts her pupil to
the tender and beautiful, and by a shorter road than the
learned languages. If I had found Burns at a Greek.
Grammar, I should have pulled him away from it. The
best of Burns's poems, in my opinion, is his • Tam o'Shan-
ter.' It was said of the most perfect Greek sculptures, that:
they seemed to be rather melted, than chisselled marble. la
like manner, this poem always appears to mem if the poet had.
not written, but improvised it—as if he had never blottmd a.
line, or clipt off a fragment of its language, but had cast it oft'
unpremeditated from the glowing mould of his imaginatiote:.
This is justly and tersely said ; but indeed the whole essay
—or rather fragment of an essay—is admirable, both ti point
of matter and manner. Mr. Campbell's Addreis to " Ben:
Lomond" has all the grace and melody of versification for
which this eminent poet is remarkable. His contributions*
whether in prose or verse, are, as might be expected, flys
best in the volume. The embellishments, which aro riot.
less than thirty-six in number, are chiefly sketches of the
most picturesque landscapes in Scotland, Italy, and Swis-
serlaud ; some, of course, are better than others, but none
of them fall below mediocrity. The Annual is splendidly
bound, and is singularly reasonable in price.

MEMOIRS OF AN ARISTOCRAT.
Whittaker, London, 1838.

Tlie. most interesting portion of this volume, is its au-
thor's account of his stay in the man-of-war, the Bellerophoin,
which, it may be remembered, was the vessel appointed to.
carry Napoleon to England, alter the " crowning carnae;e'
of Waterloo. The young " Aristocrat," is he styles Moat
self, was then an officer on board the Bellerophon, and.
gives es many curious anecdotes illustrative of the habit%
and peculiarities of the illustrious captive, whom he 4des-.
cribes as being one of the handsomest and best manly nal
little men he ever met with. The Emperor, indeed. , ,vas
in general favour with the ship's crew, who sympat' aizcsl
with his fallen fortunes, and paid him every befitting mark:
of respect. All this portion of the volume before us will
be read with interest, for it is penned in a spirited, of f-hatui
manner, though it is rather too eulogistic of the, ._Frenels
Emperor, whose character, according to the aut' acoV's view,
would apj:ear to have been all but perfect.