In this chapter the subject of Wills of Customary Real Estate and their form and requisites and the effect of probate thereof are treated upon generally, without reference to what particular lands are devisable by them. The devisability of each class of customary lands forms the subject of the succeeding chapters.
The rights of testamentary alienation of such customary lands as are devisable is a matter not depending upon any Statute Law, but upon the ancient Common Law of the Island, wherein it differs from the English right of devising, which has been altogether created by Statute.
We have already seen under the head of "inheritance," that prior to 1662, bought quarterlands, prior to 1777, certain intacks, mills, and cottages were chattels or personal estate and consequently devisable by will.
By Statutes of these dates these lands were made descendible to the heir at law instead of the administrators, but the previously existing right to devise by will was preserved and continues to exist, but is not extended to any other lands than those which had formedy been chattels. [note 1]
By the Common Law of the Island it was not necessary that a will of lands should be in writing, [88] a nuncupative will, although made long before the decease of the testator, being sufficient to pass them. The Statute of 1662 [note 2] declares that if the deceased's real intention touching the disposing or bequeathing of his bought quarterlands be made apparent, and be proved by sufficient witnesses, such intention to be observed. There are many cases on the Manorial Roll when parties have been entered upon proof being given of the intention of the deceased respecting the disposition of the lands. From the preamble of the Act of 1777, "An Act to prevent frauo and imposition in the making of nuncupative wills, [note 3] it appears that at that time the custom of making nuncupative wills prevailed almost generally in the Island. The litigation occasioned by the practice caused the Legislature to interfere, and by the Act of 1777 before named, certain conditions were required to be observed in the making and proof of these wills. This Act and the provision of 1662 are still the only enactments of law on the subject. [note 4] It is enacted by it (the Act of 1777) that no nuncupative will shall be valid whereby lands are devised or personal estate bequeathed that is not proved by at least two witnesses who were present at the making thereof, the persons then present or some of them having been bidden by the testator to bear witness that such was his will or to that effect, and that after six months from the speaking of the testa- [89] mentary words no testimony shall be received to prove any nuncupative will unless the words or the substance thereof were committed to writing within ten days after their utterance by the testator. Subject to these formalities lands are still devisable by nuncupative wills. The writer is not aware of any authority requiring attesting witnesses to the execution of a will of lands in writing. It is probable that conflicting decisions of the Manx Courts on the subject can be found, but the writer is not inclined to place much weight on any of these cases, as until of late years any reference to principle as a guide for the decision of questions of Manx Law was extremely rare, and consequently contradictory decisions were by no means uncommon. The writer prefers to adopt as a safer authority the Common Law so far as it is not qualified by any Statute Law. On this subject the writer believes that the Common Law of the Island is similar to that of England as it existed immediately after 29 Car. ii. c. 3, and until altered by Statute.
The Statute 22 Car. ii. c. 3, enabled owners of land to devise by will, and as the Act did not prescribe any mode of attestation it was held that no witnesses were requisite. Our Statute of 1662 provides that if the deceased makes a will of his bought lands such will is to be observed, but the Statute does not describe any mode of attestation.
The only Manx Statutory regulation respecting wills in writing is contained in the Act of 1777 before referred to. By that Act it is provided that no will in writing conveying any goods or chattels [90] real or personal shall be revoked or altered by any nuncupative will, unless such nuncupative shall have been in the testator's lifetime reduced to writing, and read to and approved of by him, and so proved by the oath of at least two witnesses. From this it is clear that even in the face of a prior formally executed and attested will, a will reduced to writing, if read to and approved of by the testator and proved by the oath of two witnesses, will be valid, although not actually executed by the testator. [note 5]
The writer is not aware that any formalities are required in the execution of a will of personal estate. It has already been explained that all the lands which at present are devisable by will were originally mere personal estate, and bequeathable as such, and although by Statute these lands in default of a will are made descendible to the heirs at law these Statutes at the same time provide that they shall be devisable by will as formerly. As no additional formalities as to the execution of such wills are imposed by any of these or other Statutes, the writer is not aware of any authority for supposing that any such are requisite by law. [note 5]
[91] It may, therefore, be taken for granted that a will or a will bearing the signature of the testator, although unattested by witnesses, will be held sufficient to pass devisable real estate upon proof being given of the handwriting of the testator. A will executed only by a mark, attested only by one witness, and which amounts merely to the nuncupative will reduced to writing, and approved of by the testator referred to in the before recited provision of the Act of 1777, has been held insufficient. [note 5]
No will, whether contested or not, is admitted to probate in the Manx Courts until proved on oath by a witness or witnesses examined openly in Court, or if absent from the Island, under a commission issued from the Court for the purpose [note 6] and by the Statute before referred to (1777) probate will not be granted "unless notice has been given to call in the widow or next of kin, to the end they may object if they please." [note 7] The Courts of Law in the Island [92] held the probate to be proof of the execution of the will in suits relating to lands devised by it. If the heir at law is not one of the next of kin, or if he is off the Island or under age, although one of the next of kin, probate will be granted without notice. In Taylor v. Taylor the Court of Common Law held this probate to be conclusive, and refused to admit proof against it; but in that case fifty years had elapsed. In the Court of Chancery, however, it has been held not conclusive. In Crellin v. DeBently the issue raised was the sanity of the testator. Samuel Ratcliffe of Gordon, whose will had been proved June 1837, the heir a law at the time of the testator's decease was an infant, and after attaining his majority about 1842, he in 1847 conveyed his right in the lands to a trustee for the benefit of the complainant, after the decease of his mother, who claimed to be entitled in fee under the will and under whom defendants claimed.
The complainant, shortly after his mother's decease, viz., in 18S7, filed his bilI against the trustee, and defendants claiming the estate, and alleging the insanity of the testator. In this case the probate was held to be not conclusive proof, [93] and on the finding of a jury, by an issue directed to the Court of Common Law, the will was set aside.
Whether the probate would be held conclusive proof as to lands, in the Court of Common Law, in cases where it appears that the heir at law was sui juris, and had received notice of the application for probate, and whether equity would interfere, and on what grounds, are unsettled points of Manx Law.
It appears to the writer to be a strange anomaly, in a suit at law between heir and devisee, in which the heir at law wishes to contest the will, to hold the judgment of a Court having no jurisdiction to try the title of lands, to be a conclusive decision, upon the fact of the due execution of the will. Deemster Parr says: "By antient practice of this Isle persons having claim to lands are to sue and prosecute the same by the course of the Common Law, whereby they may have the benefit of jurors out of the Sheading where such lands lie." [note 8] The Statute of 1737 also declares that all suits for and titles to lands, shall be triable by jury at Common Law and not otherwise. [note 9]
If the probate is held at law to be conclusive proof of the due execution of the will it is impossible for an heir at law to have the benefit of a jury to try that issue, to which by the practice and [94] Statute referred to, he appears to be entitled. The writer can easily conceive the reasonableness of holding a probate granted in the manner described to be prima facie proof, but upon the simple ground of want of jurisdiction he cannot be satisfied of the legality of any practice holding it to be conclusive much less he conceives can it be so in the face of the Statute of 1737, the object of which appears to be to confirm the practice of having all titles to lands tried by jury. The writer is not aware of the existence of any law in the Island which would prevent a devisee desirous of perpetuating the testimony of his witness, from adopting the proceedings usual in England for that purpose. [note 10]
For Sherwood's notes on this chapter see Appendix 1.
Note 1: See Act of 1662, sec. 5. Revised Statutes, vol. I, p. 114 and Act of 1777, secs. 1 and 4, Revised Statutes, vol. I, p. 333.
Note 2: Revised Statutes, vo1. I, p. 114. See sec. 5.
Note 3: Revised Statutes, vo1. I, p. 332.
Note 4: Since this MS. was written the Wills Act, 1869 (see Revised Statutes vol 3, p. 465) has been passed.
Note 5: Since the text was written there has been passed the Wills Act, 1869 (promulgated 5th July, 1869.) Revised Statutes vol. 3, p. 465. The preamble states that "the making and admitting to proof nuncupative wills, is productive of fraud and ought to be discontinued, and it is expedient that other provision should be made in respect of the making of wills." By section 3 no will made or executed after the promulgation of the Act shall be valid unless it be in writing, and signed by the testator, or by some other person in his presence, and by his direction, and such signature to be made or acknowledged by the testator in the presence of two or more witnesses. The Act contains exceptions, as to wills executed out of the jurisdiction of the Island by a British subject (sec 4), by persons not domiciled in the Island, and not being British subjects (sec. 5), and by soldiers being in actual military service, and mariners or seamen being at sea (sec. 7).
Note 6: This is the ordinary rule of practice, but where the witnesses to the Will are dead, or not forthcoming, the Will is proved in the same manner as the execution of a Deed under like circumstatlces would be proved in a Court of Justice.
Note 7: Revised Statutes, vol. I, p. 332, sec. 4, " Nor shall any Will whatever be at anytime received, unless notice has been given to call in the widow relict, or next of kindred to the deceased to the end that they may object if they please." Except as mentioned hereafter, a Will is propounded for probate on the petition of a person interested, and of the hearing of the petition notice must be given, in the manner usual as to summonses to each of the statutable next of kin who may be in the Island and is of full age. Prior to the passing of "The Ecclesiastical Civil Judicature Transfer Act, 1884" (Revised Statutes, Vol. 5, p. 352) Wills could be proved in the Chapter Court. An Ecclesiastical Court was held generally twice in the year, in several parts of the Island, each place where the Court sat being appointed for defined districts. Precepts were issued for tbe holding of these Courts, and public notice was given of the times appointed at the several Parish Churches within each district. At the Court the public notice was by the Common Law considered as the only notice required to call in "the widows relict and the next of kindred," and on motion without any petition, Wills were proved and letters of administration granted in all cases where the deceased person had been buried within the district since the last preceding Court. Each clergyman keeping a register of burials was bound to make to the Court a return of all burials in his parish or district since the date of the last burial in the return for the last preceding Court, and such return was taken as prima facie evidence of the death. A like mode of procedure in the High Court of Justice was established by the Transfer Act of 1884, secs. 28 and 29. by which sessions of the Court called "District Probate Sessions" are to be held in the several towns in the months of May and November yearly, and the clergy returns are to be made for each half year to the 30th April and 31st October.
Note 8: Parr's Abstract, title "Lands."
Note 9: Act of 1737, sec. 10 (l) — Revised Statutes, vol. I, p. 219.
Note 10: The learned author appears to have taken a very pessimistic view of the state of the law as the effects of probate of wills affecting real estate. Before his doubts were enunciated, it was generally understood by judges and advocates that a Manx probate operated as conclusive evidence with respect to personal estate against all persons who as next of kin had received legal notice of the proceedings for obtaining probate, or who were actual parties to the proceedings, and prima facie evidence against all others who might have a right to contest the will, including as to real estate the heir at law, but as to such others, it was conclusive if acquiescence could be proved, or could be presumed from lapse of time or otherwise. It was not considered that there was any variance in these respects in the practice or decisions of the Courts of Law and of Equity respectively. In the case of Taylor v Taylor (referred to in the text) the decision of the Court of Common Law was really one of presumed acquiescence for almost 50 years after the probate. In the case of Crellin v De Bentley (also referred to in the text) the Court of Chancery about 20 years after the probate, and 15 years after the heir at law had attained his majority, under the circumstances of the case, considered there had not acquiescence to deprive the heir of his rights to contest the will. There is no reason to suppose that the Court of Common Law would have come to a contrary decision. That case was brought in the Court of Chancery by reason only of the real estate being vested by deed in a trustee, who was not, as such, possessed of the estate, and from whom a conveyance was sought. One of the questions in the suit was as to the validity of the will, and the Court gave the heir the benefit of the Common Law mode of trial by an issue to a jury in the Court of Common Law, and the result was that, as regards the real estate devised, the will was declared to be invalid. It is not surprising that a will proved as it is in the Insular Court should be deemed to be prima facie valid, when it is considered that a deed captioned by the oath of a subscribing witness without notice to anybody, and recorded, is deemed to be prima facie proved. Now by the Ecclesiastical Civil Judicature Transfer Act, 1884, sec. 35, the heir at law of a testator can where the will may affect real estate be cited to appear at the Court when the will is propounded.