(89.) (42. 70. 302.) expired, (to say nothing of the possibility that a Settlement may have been made of the Reversion, which might protract the danger indefinitely,) it is usual in these cases to take the precaution of first assigning the Term to a Trustee, that it may be kept on foot to attend the inheritance to be acquired by the subequent operation, and may thus afford a retreat from (860. n.) the Reversioner's attacks. (930.) This practice however is attended with a difficulty which seems insuperable. For in order to divest the estate of the Reversioner by the Feoffment, either the prior estate for years must be divested also, or the Tenant for years must assent to the Livery. But the Assignor, being Tenant at Will to his Trustee by virtue of an implied contract arising out of the Trust itself, cannot by his Feoffment divest the Trustee's estate, out of which his own possession continues to be derived, as long as the fiduciary relation subDoe v. Lynes, sists. It is therefore only by the Trustee's assent that the Feoffment can be effectually made; in other words, the Tenant for years is an indispensable party to the act by which the Reversioner is disseised; and it seems to follow Moody, 1 Sand. that in order to that disseisin an act of forfeiture must be committed, which will give the Reversioner an immediate right of entry.. (401.) S B. & C. 388. Doe d. Ld. Us. 40; 3 B. & C. 399. n. SECT. 3.-Of the Testamentary Alienation and (931.) CHATTELS Real are transmitted by Will in the same manner as Chattels Personal; that is, they go in the first instance to the Exęcutor or Executors, for the payment of the Testator's debts; in order to which not only the single Executor, or all of them if more than one, but one without the others, has an absolute Dyer, 23. b. any power to assign and dispose of them. (932.) 3 East, 120. But if bequeathed to any person by the Will, Doe v. Guy, they pass to him without any Assignment, by the mere signification of the Executor's Assent; after which, if the possession be withheld, the legatee has his remedy by Ejectment. And it seems to be immaterial whether the Chattel be 15 V. J. 581. particularly named in the Will, or included in a general residuary bequest. (933.) Such a Residuary bequest includes the subjects of le- 8 V. J. 25. gacies which have lapsed by the death of the (275. 279.) legatee, and all other personal property to which the Testator may be entitled at the time of his death for the law regards any intestacy, as to personal estate, as inconvenient. (934.) But if the residuary bequest itself fail, entirely Skrymsher v. or in part, an intestacy to that extent cannot be 1 Swanst. 566. avoided. (935.) The Law does not prescribe any formalities to a written Will, so far as it concerns Northcote, Goods and Chattels or Personal Estate; though Walker v. & Harg. n. the Statute of Frauds (29 Car. 2, c. 3,) in ss. 19, 20, 21, 22, 23, contains several provisions relating to Nuncupative or mere oral Wills, which in consequence cannot be substantiated but by the testimony of three witnesses; nor can that testimony be received after six months, unless reduced to writing within six days after the words were spoken. (936.) The Ecclesiastical Courts, to which the whole power of determining the validity of Wills as to personal estate is confided, are in general sufficiently indulgent; regarding not so much the form of the Instrument, as its apparent completion, in whatever shape Co. Litt. 89. b.; the Testator may have chosen. (937.) An Infant may make a Will at the age of eighteen, if not before. (938.) And a Feme Covert may Brook v. Turner, make one with her husband's consent: but it seems that a general consent is not sufficient; it must be a consent to that particular Will, and if the husband survive, must continue after her death; though where there is a general consent by Agreement before marriage, the particular consent will, in the absence of evidence to the contrary, be presumed. But if the Wife survive, her Will so made will not affect any property which she may acquire after her husband's death. (939.) It is the business of the executors to prove the Will by proper evidence; after which it is retained by the Court, and an authentic Copy, called the Probate, delivered to the Exe3 Bac. Ab. 52, cutors; the production of which is necessary for the assertion of their rights in any other Court, 2 Mod. 170; R. v. Bettesworth, 2 Stra. 891. Scammell v. 2 East, 552.] 53. though it is not necessary that it should have been obtained before they exercise that authority of which it is the ultimate criterion. 12 Mod. 24; thrope, 3 Salk. Hoe v. Nel 154. (940.) The Ecclesiastical Courts assert a power not only of proving but of approving Tes- Lind. 181. taments; which is said to mean nothing more than taking the proofs, and decreeing their validity. They are allowed however to be the sole Judges, not only of the validity, but of the * contents of these instruments. (941.) Hence Gorton v. Dyson, 1 B. the Probate, and not the Will itself, is consi- & B. 219. dered as the Original; and being taken by authority, and of a public nature, a Copy of it is said to be evidence; though perhaps not in favour of the Executor himself, who if he have lost the Probate may obtain an Exemplification Shepherd . of it. (942.) The Ledger Book of the Eccle- Shorthose, siastical Court appears to be a Duplicate of this Original: and it seems that the Office Copies Comb. 248, or of Wills are taken from the Ledger Book. These 12 Vin. Ab. Office Copies are directed by St. 21 H. 8, c. 5, 8. 5, to be delivered to any applicant by the persons having authority to take Probate of Testaments, or their Ministers; and yet they have sometimes been rejected when offered as evidence; but it was long ago declared that this practice ought to be altered, (943.) After a considerable length of time, as (940. n.) If the Will be in a foreign language, the Probate contains the words of the Original, with a Translation; but the latter is not conclusive. 1 P. W. 526. 1 Stra. 412. Bull. N. P. 246. 100, 101. Per Holt in L.. of Ev. 74. or 2 Bac. Ab. 631; 240; Cox v.. Allingham, and see 2 Bing, Jac. 514. forty years, it may be presumed, if necessary, that a person was Executor or Administrator 1 M. & S. 380. who appears to have acted in that capacity. (944.) And in the investigation of a Vendor's Title, it is not usual after a lapse of thirty or forty years, to require the recital of such a fact to be verified by the production of an Office Copy or Extract. (945.) There is no particular form in which the Executor ought to signify his assent to a bequest or legacy; he may do so either by act or word. But if he be himself the legatee of a Chattel Real, subject to a further Executory Bequest of it to another person, his own entry upon the land will not of itself be construed as an Assent; for he must assent to both dispositions if he do to either, and it might be inconvenient to him to be thus deprived of his official power over the property by an ambiguous and perhaps necessary act. (946.) By means of an Executory Bequest, a kind of Settlement may be made of an Estate for Years in Land, or of any other Chattel Real. Thus if Leasehold Property of this kind be bequeathed to A. for life, and after his death to B., this is not properly a division of the Term into Particular Estate and Remainder; for that would be inconsistent with the old notion that an Estate for Life is of greater magnitude than any term of years; but it is a bequest of the whole Term to A., subject to an executory bequest to B., to take effect in the |