attained his majority, when made for the purpose of securing his property against wild, thoughtless, or extravagant expenditure, takes place with a view rather of benefitting the unhappy individual than his heirs; when guardians are placed over furious and bewildered persons, it is as much the protection of society as their own benefit that is the object of such appointment.*

It was proposed by the eighth article of the Petition that persons under guardianship should not be allowed to bequeath their real property, a proposition which was very properly dissented from by the Court's Committee, and allowed to drop as incompatible with the principle which obtains with regard to personal property, and which does not prohibit a party from making bequests when the civil restraints to which he has been justly subjected, merely proceeds from some temporary incapacity, either to administer to his fortune or controul his actions.

SECTION 2.

Of the forms to be observed according to the modern law in drawing up wills of real property.

One third of the whole number of articles contained in the modern law of wills and inheritances is devoted to prescribe the forms in which wills of real property must be drawn up, and those to be observed by legatees before any advantage can accrue from the acts whence their rights are derived. These forms, with the exception of that which rules that the will must be duly registered at the greffe, or public record office, before it can be put into execution, originated with the

* Upon the circumspection which should be observed by Judges empowered to appoint guardians over those who may require them, Mr. Toullier has the following remarks :-" L'interdiction ne doit être provoquée qu'avec la plus grande réserve. Elle prive un citoyen du libre exercise de ses droits; elle lui ôte la disposition de ses biens, et souvent la liberté de ses actions; elle ne lui cause pas seulement une humiliation et un déplaisir extrême, elle porte atteinte à sa réputation. Elle ne doit donc être prononcée qu'en cas de nécessité, et seuleinent lorsque l'intérêt de celui contre qui on la provoque l'exige, car c'est son intérêt plutôt que celui de sa famille que l'on considère. Cependant le furieux est interdit, moins pour son intérêt que pour celui de la société, que ses excès menacent."-Tome 2. p. 524. No. 1318. De la Majorité et de l'Interdiction.

Court's Committee, and on examining them it is easy to see how cautious its members have been not to sanction the principle of willing real property, without first surrounding it with every formality they conceived could possibly tend to prevent the testator's will being imposed upon him; here also it is that the spirit by which they were throughout animated, in entertaining the proposition to reform the law, is particularly descernible, and from the number of forms proposed we have an instance how powerfully in their estimation public interests require that its administrators should never lend themselves too easily to innovate on long established usages.*

It cannot be doubted that some of the forms now established might have been very well dispensed with. What necessity was there, for instance, that two jurats should in every case, and sometimes the baillif and two jurats, be called upon to attest wills of real property, more than any other kind of wills? Would not the ends of justice have been amply attained had the legislator only required of the testator that, on his expressing his wishes in his own hand writing, he should be dispensed from all further formality, either of a judicial or notarial character, and that it should only be on his abstaining from expressing them in this most solemn manner, that he should be subjected to the intervention of a judicial officer to attest the deed. If ascertaining the real wishes of the testator be the main object of all forms, how could such intentions be more satisfactorily ascertained than by their being entirely recorded in his own writing. But an olographic will was not deemed sufficiently formal by the Court's Committee to allow an owner to dispose of an inch of ground or a bushel of corn rent, and yet by his mere signature appended to a will drawn up in a third person's hand writing, he may dispose of a million in money and all his personal property. Nay more, by a nuncupative will or declaration made in the presence of two or more witnesses, a person may dispose of all such kind of property. When reflecting on this primitive simplicity, by which an unlimited fortune may be disposed of, and on the comparatively innumerable forms required for the disposal of the slightest portion of real property, one cannot but think that there is great inconsistency in the mode by which See their Report, Appendix, letter C, page 31.

property in general is allowed in Guernsey to be disposed of by will. And whilst nuncupative bequests might be abolished without difficulty, on the other hand it would be right to dispense wills of real property from being attested by judicial officers, provided they were entirely written by the testator. An eminent civilian observes that, according to the law of nature, gifts and liberalities are subjected to no particular form, writing is only had recourse to for the purpose of more correctly ascertaining the existence of agreements, and with that view presents, by the Roman law, could be bestowed either verbally, in writing, or in the shape of a contract.* From the present state of education, and from the facility of procuring at any time a written will, all verbal bequests might now however be reasonably abolished.

But a multiplicity of forms can never answer any good purpose, nor will they ever prevent testamentary bequests from being made in those jurisdictions where the principle itself is once admitted, the power of willing being far too important to be checked by any temporary impediments which their observance may create. Though forms have been held, by one of the most eminent characters of modern times, to constitute "the handmaids of Justice," their excess and multiplicity rather than their paucity, or non observance, have so far, to a much greater extent, marred her administration. Their intricacy in wills should be more particularly guarded against, as it only tends to rivet the more closely the hands of the testator, who, having once succumbed to the insinuations and overpersuasion of artful fortune-hunters, finds it the more difficult to extricate himself from their trammels, and the meshes of the law, as these are the more complex, from a fear of invalidating the instrument which, besides their own legacies, generally contains others which are quite unexceptionable, nay, even meritorious on the part of their author. Honorable and confiding persons are much more apt

* "Suivant le droit naturel," says Monsieur Toullier, "les donations ne sont assujetties à aucune forme particulière: on n'a recours à l'écriture qu'afin de prouver plus facilement l'existence de la convention, et Justinien conserva cette raisonnable simplicité de principes dans la forme des donations entre vifs, aussi bien que dans celle des autres contrats. Les donations pouvaient être faites par écrit ou verbalement, à plus forte raison par des écrits privés."-Droit civil, Tome 5, chap. 4, § 1. De la forme des donations, No. 168.

to fall victims to the impolitic restrictions imposed on wills, than the artful and insinuating legatee, whose last fault is a neglect to comply with those forms, by the strict observance of which he can alone reap the benefit of not unfrequently an arduous undertaking.

If any thing more was required to show the necessity of simplifying the forms of wills, and to be convinced how much more easily and assuredly the intentions of the testator are ascertained by the observance of a plain and straight forward course, as would be the case were an olographic will to obtain in all cases, instead of compelling the testator to get a number of attesting witnesses, in the shape of either magistrates, notaries, or private individuals, it would be the number of wills which are every year annulled for mere defects of form, in the supreme Courts of Judicature in England and France. It is indeed one of the greatest blots on the administration of justice to witness the great uncertainty which prevails in this respect, and the very shallow grounds on which the fortunes of individuals are frequently made to change hands; how the reality is sacrificed to appearance, and substance to mere shadow; and how little the real intentions of the testator are thought of when the contending parties are once met in the arena to dispute the spoil. Nor is there any exaggeration in stating that by far the greater number of such discussions arise from too numerous, too minute, too intricate formalities being required for the formation of wills. Hence arises the outcry against an institution essentially just in itself, but rendered obnoxious through the number of useless fetters which pervert it. To prove this by giving an outline of some of the most prominent cases which have arisen in the Courts of law in England and France would carry out this Section far beyond the limits assigned to it; but in support of this assertion, we shall adduce the authority of civilians whose knowledge of such cases is unquestionable, and whose opinions are the more worthy of consideration, that many of them are fully illustrated in the course of their respective works. Of the law which required. wills of freehold land to be attested and subscribed by three or four witnesses in the presence of the testator, Mr. Humphrey observes, "it has been frequently remarked that more good wills have been spoiled by it than

bad ones prevented. The fact is, that in the case (happily so rare in this country) of a will obtained by fraud or force, the formalities are carefully observed. Negligence is usually attendant on good faith, which, the less it is exposed to its consequences by embarassing formalities, the better. For publicity, two witnesses are as good as three; while the recommendations on the grounds of convenience, and their being the greatest number usually resorted to in other transactions, are great. The statutory check, too, of the witnesses subscribing in the testator's presence, has been much diluted by legal decision. In one case, it was held to be satisfied by an attestation in another room, seven yards distant, where there was a broken window, through which a testator might see the witnesses. In another instance, by the facts, that the testatrix executed in her carriage, which was opposite the window of the attorney's office, where the witnesses took the will and attested; but so (as was deposed) that she might see what passed. And in a third, by the witnesses subscribing in a room where the testator was ill, in bed, with the curtains closed. These strange refinements, forced by a desire to give effect to the clear intent, show the worse than uselessness of the rule. The greatest protection that can be afforded to wills by legal formalities, is to assimilate them as much as possible to those adopted on other occasions; which I have sought to do, by identifying them with those attendant on the execution of deeds; with the single additional guard of a second witness.* To show that even this is rather in deference to an existing law, I need only add, that a will of copyhold requires no witness; and that a will of personal estate, disposing of hundreds of thousands, requires no subscribing

*The act 1. of VICTORIA, cap. 26, has confirmed these views by requiring two attesting witnesses in all cases of wills, Thus are set aside the differences which formerly existed on testamentary bequests of property in England, where three witnesses were required for a will disposing of freehold property, two for funded property, and none whatever for personal property.

But it is now required that the will shall be signed at the foot by the testator, or some other person in his presence, and by his direction; the testator or person so subscribing to sign in the presence of two or more witnesses present at the same time, who shall attest the will in the testator's presence. § 9. Nuncupative wills are abolished, excepting if made by soldiers or sailors; all those too made prior to the first of January, 1838, are maintained. Not only what the testator actually possesses, but what he may hereafter possess, may be disposed of by will. No will can be made by a person under the age of 21. Formerly girls at twelve and boys at fourteen could bequeath their property.