Imperial Act Adoption Act 1839 No 6a (NSW)
No. V.
An Act for adopting a certain Act of Parl iament inti tuled " An Act for the amendment of the Laics with respect to Wills' in the Administra tion of Jus t ice in New South Wales in like manner as other Laws of England are applied
therein. [6th August, 1839.] WH E R E A S Act for the amendment of the Laws with respect to Wills" and whereas
a cer ta in A c t of P a r l i a m e n t was passed in t h e year
one t housand eight hund red and th i r ty -seven in t i tu led " An
i t is expedient to adopt and app ly t h e said reci ted Ac t of P a r l i a m e n t in t h e admin is t ra t ion of jus t ice in N e w South Wales Be i t therefore enacted by H i s Excel lency t h e Governor of New South Wales w i th t h e advice and consent of t h e Legis la t ive Counci l thereof T h a t t he said reci ted A c t of P a r l i a m e n t shal l he a n d t h e same is hereby adopted and directed to be appl ied in t h e admin i s t ra t ion of jus t ice in the said Colony a n d i t s Dependencies from and after t h e t i m e hereinaf ter men
t ioned in l ike m a n n e r as o ther laws of E n g l a n d arc the re in applied.
th i r ty -e igh t . ACT 2. A n d whereas i t is expedient t h a t t h e said reci ted A c t of
P a r l i a m e n t should no t commence or t a k e effect in t h e Colony of N e w
Sou th W a l e s u n t i l t he first day of J a n u a r y n e x t ensu ing Be i t
enacted Tha t t h e said reci ted Ac t of P a r l i a m e n t shall no t commence
or t a k e effect in t h e Colony aforesaid before t h e first day of J a n u a r y one t housand e ight h u n d r e d a n d forty and t h a t every clause and pro vision in t h e said reci ted Ac t shall on from and after t he said day of J a n u a r y have only t h e same effect in t h e Colony of N e w South Wales
as t h e same have h a d in H e r Majesty 's K i n g d o m of E n g l a n d from a n d after t h e first day of J a n u a r y one t housand e ight h u n d r e d and
ACT Of PARLIAMENT REFERRED TO.
A N N O P R I M O VICTORIAE PvEGINAE.
C A P . X X V I .
An Act for the amendment of the Laws with respect to Wills.
[3rd July, 1 8 3 7 . ]
BE it enacted by the Queen ' s Mos t Exce l len t Majesty by and
wi th
and Commons in th i s present Pa r l i amen t assembled and by the t he advice and consent of t he Lords Spir i tual and Temporal au thor i ty of t h e same Tha t t h e words and expressions hereinafter ment ioned which in the i r ordinary signification have a more confined or a different mean ing shall in th i s Ac t except where t he n a t u r e of t he provision or the context of t he Ac t shall exclude such construc t ion be in terpre ted as follows ( tha t is to say) t he word " w i l l " shall
| ex tend to a t e s t a m e n t and to a codicil and to an appo in tmen t | by |
will or by wr i t ing in the n a t u r e of a wil l i n exercise of a power and also to a disposition by will and t es tament or devise of t he custody and tu i t ion of any child by v i r tue of an Ac t passed in t he twelfth
| year of t h e re ign of | K i n g Charles t h e Second in t i tu led | " An | Act | for |
| " talcing away the Court of Wards and Liveries | and Tenures in |
| " capite | and by Knights | Service | and Purveyance | and for | settling |
| " a Revenue upon His Majesty | in lieu thereof" | or by v i r tue of an |
| A c t | passed in | the | Pa r l i amen t | of I r e l a n d | in | t he four teenth | and |
| fifteenth years of t he re ign of K i n g Char les t he Second in t i tu led " | An |
| " Act for taking away the Court of Wards and Liveries | and | Tenures |
| " in capite and by Knights | Service " and to any other t e s t amenta ry |
| disposit ion and the | words | " r e a l e s t a t e " | shall ex tend to | manor s |
advowsons messuages lands t i thes r en t s and hered i taments whe the r freehold cus tomary freehold t enan t r igh t cus tomary or copyhold or of any o ther t enu re and whe ther corporeal incorporeal or personal and to a n y undivided share thereof and to any es ta te r igh t or in teres t (other t h a n a cha t te l interest) there in and the words " p e r s o n a l es ta te" shall ex tend to leasehold estates and other chat te ls rea l and also to monies shares of government and other funds securities for money (not be ing rea l estates) debts choses in act ion r igh t s credits goods and all other p roper ty whatsoever which by law devolves upon the executor or
| impor t ing t he s ingular n u m b e r only shal l ex tend and be applied to | adminis t ra tor and to any share or in teres t there in and every word | ||||||
| several persons or th ings as well as one person or t h i n g and every word impor t ing t he mascul ine gender only shall ex tend and be applied to a female as well as a male . | |||||||
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| Act of Wills Wards and Primer Seisins" whereby a m a n may devise two pa r t s of his land and also an Ac t passed in t h e th i r ty - four th a n d thirty-fifth years of t he re ign of t he said K i n g H e n r y t h e | |||||||
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| in t i tu led " An Act for prevention of Frauds and Perjuries" and of an Act passed in the Pa r l i amen t of I r e land in t he seventh year of t he re ign of K i n g Wi l l i am the Thi rd in t i tu led " An Act for prevention of |
Frauads
Frauds and Perjuries'" as relates to devises or beques ts of lands or t enements or to t h e revocat ion or a l tera t ion of any devise in wr i t ing of any lands t enement s or hered i taments or any clause thereof or to t he devise of any esta te pur autre vie or to any such es ta te be ing assets or to nuncupa t ive wills or to t h e repeal a l t e r ing or chang ing of any will in wr i t ing concerning any goods or chat te ls or personal estate or any clause devise or bequest there in a n d also so m u c h of an Ac t passed in t h e four th and fifth years of t he re ign of Queen A n n e
in t i tu led " An Act for the amendment of the Law and the better ad
vancement of Justice " and of an] Ac t passed in t h e Pa r l i amen t of
I r e l a n d in t h e s ixth year of t he re ign of Queen A n n e in t i tu led
" An Act for the amendment of the Law and the better adoance- " ment of Justice" as relates to witnesses to nuncupa t ive wills a n d also so m u c h of an Act passed in t he four teen th year of the reign of K i n g George t h e Second in t i tu led " An Act to amend the Law concerning " Common Recoveries and to explain and amend an Act made in the " twenty-ninth year of the reign of King Charles the Second intituled " ' An Act for prevention of Frauds and Perjuries'" as relates to es ta tes
pur autre vie and also an Ac t passed in t h e twenty-fifth year of t h e
re ign of K i n g George t he Second i n t i t u l e d "An Act for avoiding and " putting an end to certain doubts and questions relating to the attes- " tation of Wills and Codicils concerning Peal Estates in that part of " Great Britain called England and in His Majesty's Colonies and
" Plantations in America " except so far as relates to H i s Majesty 's Colonies a n d P lan ta t ions in Amer ica and also an Act passed in t h e
Pa r l i amen t of I r e l and in t he same twenty-fif th year of t h e re ign of K i n g George t h e Second in t i tu led "An Act for the avoiding andput- " ting an end to certain doubts and questions relating to the attesta- " Hons of Wills and Codicils concerning Peal Estates " and also an Ac t passed in t he fifty-fifth year of t h e re ign of K i n g George t he
Thi rd in t i tu led " An Act to remove certain difficulties in the disposition
of Copyhold Estates by Will" shall be and t h e same are hereby
repealed except so far as t h e same Ac t s or any of t h e m respectively relates to any wills or estates pur autre vie t o which th is A c t does not extend.
3. A n d be it fur ther enacted Tha t i t shall be lawful for every
person to devise bequea th or dispose of by his will executed in m a n n e r hereinafter requi red all real es ta te and all personal es ta te which he shall be ent i t led to ei ther at law or in equi ty a t t he t ime of his dea th and which if no t so devised bequea thed or disposed of would devolve
u p o n t he heir a t law or cus tomary heir of h i m or if he became ent i t led
by descent of his ancestor or upon his executor or adminis t ra tor a n d
t h a t t h e power hereby given shall ex tend to all real es ta te of t h e n a t u r e of cus tomary freehold or t enan t r igh t or cus tomary or copyhold
no twi ths t and ing t h a t the tes ta tor m a y not have surrendered t he same to t h e use of his will or no twi ths tand ing t h a t being ent i t led as heir devisee or otherwise to be admi t ted there to he shall no t have been admi t t ed the re to or no twi ths tand ing t h a t t h e same in consequence of t h e w a n t of a cus tom to devise or sur render to t h e use of a will or otherwise could no t at law have been disposed of by will if th i s A c t h a d not been m a d e or no tw i th s t and ing t h a t t h e same in consequence of t he re be ing a custom t h a t a will or a sur render t o t he use of a will should cont inue in force for a l imited t ime only or any other special cus tom could not have been disposed of by will according to the power conta ined in th is Ac t if th i s Ac t had no t been made a n d also to estates pur autre vie whe the r there shall or shall not be a n y special occupant thereof and whe ther t h e same shall be freehold cus tomary freehold t enan t r igh t cus tomary or copyhold or of a n y other t enu re and whe ther t he same shall be a corporeal or incor
poreal
poreal he red i t amen t and also to all cont ingent executory or o ther future in teres ts in any real or personal es ta te whe the r t h e tes ta tor
| m a y or m a y no t he ascer ta ined as t h e person | or one of t he | persons |
| in w h o m t h e same | respectively m a y become vested a n d | whe the r | he |
m a y be ent i t led t he re to unde r t h e i n s t r u m e n t by which the same respectively were created or unde r any disposition thereof by deed or will a n d also to all r igh t s of en t ry for conditions b roken and o ther r i gh t s of en t ry and also to such of t he same estates in teres ts and r igh t s respect ively and o ther rea l and personal estate as t he tes ta tor
| m a y be ent i t led | to a t t he t ime | of | his dea th | no twi ths t and ing t h a t | he |
| m a y become ent i t led to t he | same subsequent ly to t he execution of his |
| will . |
| 4. Provided always and be i t fur ther enacted Tha t where any real es ta te of t h e n a t u r e | of cus tomary freehold | or t enan t r igh t | or |
cus tomary or copyhold m i g h t by t h e cus tom of t h e manor of which t h e same is holden have been surrendered to t h e use of a will and the tes ta tor shal l n o t have sur rendered t h e same to the use of his will no person enti t led or c la iming to be ent i t led there to by v i r tue of such will shall be ent i t led to be admi t t ed except upon paymen t of all such s t amp duties fees and sums of money as would have been lawfully due and payable in respect of t h e sur render ing of such real estate to t he use of t he will or in respect of present ing reg is te r ing or enrol l ing such sur render if t h e same real estate h a d
| been su r rendered to t he use of t he will of such tes ta tor | Provided |
| also t h a t where t he tes ta tor was enti t led to have been admi t ted | to |
such real es ta te and m i g h t if he had been admi t ted the re to have sur rendered the same to t he use of h is will and shall no t have been admi t t ed there to no person ent i t led or c la iming to be ent i t led to such rea l estate in consequence of such will shall be ent i t led to be admi t ted to t h e same real estate by v i r tue thereof except on paymen t of all such s t amp dut ies fees fine and sums of money as would have been lawfully due and payable in respect of t he admi t t ance of such tes ta to r to such real es ta te and also of all such s t amp duties fees and sums of money as would have been lawfully due and payable in respect of sur render ing such real es ta te to t h e use of t h e will or of p resen t ing regis te r ing or enrol l ing such su r render h a d t h e tes ta tor been duly admit ted to sucli real estate a n d afterwards sur rendered t h e same to t h e use of his will all which s t amp dut ies fees fine or sums of money due as aforesaid shall be paid in addi t ion to t h e s t amp dut ies fees fine .or sums of money due or payable on t h e admi t t ance of such
| person so ent i t led or c la iming to be ent i t led to t he same real es ta te as | aforesaid. |
5. A n d be i t fur ther enacted Tha t w h e n any real estate of t h e
n a t u r e of cus tomary freehold or t enan t r igh t or cus tomary or copy hold shall be disposed of by will t he lord of t he m a n o r or reputed m a n o r of which such rea l estate is holden or his s teward or the deputy of such steward shall cause t h e will by which such disposition shall be m a d e or so m u c h thereof as shall conta in the disposition of such real
| es ta te to be entered on the Cour t rolls of such m a n o r or | repu ted |
| m a n o r and w h e n any t rus t s are declared by t h e will of such | real |
es ta te i t shall not be necessary to enter t h e declarat ion of such t ru s t s b u t it will be sufficient to s tate in t h e en t ry on t h e Cour t rolls t h a t such real estate is subject to t h e t rus t s declared by such will and w h e n any such real es ta te could not have been disposed of by will if th is Ac t had no t been made the same fine heriot dues duties and services shal l be paid and rendered by the devisee as would have been due from the cus tomary heir in case of the descent of the same real estate and the lord shal l as against the devisee of such es ta te have the same remedy for recovering and enforcing such fine her iot dues duties
and
a n d services as he is now ent i t led to for recovering and enforcing t h e
same from or against t h e cus tomary heir in case of a descent.6. A n d he i t fu r ther enacted Tha t if no disposition by will shall be made of any es ta te pur autre vie of a freehold n a t u r e t h e same shall be chargeable in t he h a n d s of t he heir if it shal l come to h i m by reason of special occupancy as assets by descent as in the case of freehold land in fee-simple and in case the re shall be no special occupant of any es ta te pur autre tie whe the r freehold or cus tomary freehold t e n a n t r i gh t cus tomary or copyhold or of any other t e n u r e and whether a corporeal or incorporeal he red i t ament i t shall go to t h e executor or admin is t ra to r of t h e pa r ty t h a t had t h e es ta te thereof by v i r tue of t he g ran t and if t he same shal l come to t he executor or admin i s t ra to r e i ther by reason of a special occupancy or by v i r tue of th i s A c t i t shall be assets in his hands and shall go and be applied and d is t r ibuted in t h e same m a n n e r as t h e personal estate of t h e tes ta tor
or in tes ta te . 7. A n d be it fur ther enacted Tha t no will made by any person under t h e age of twenty-one years shall be valid.
8. Provided also and be i t fur ther enacted Tha t no will m a d e by any mar r i ed woman shall be valid except such a will as m i g h t have been m a d e b y a mar r ied woman before t he pass ing of th i s Ac t .
9. A n d be i t fur ther enacted Tha t no will shall be valid unless it shall be in wr i t i ng and executed in m a n n e r hereinafter ment ioned ( tha t is to say) i t shall be signed at t h e foot or end thereof by t h e tes ta tor or by some other person in his presence and by his direction and such s igna ture shal l be made or acknowledged by t h e tes ta tor in t h e presence of two or more witnesses presen t
a t t h e same t ime and such witnesses shal l a t t es t and shall subscribe
t h e wil l i n t he presence of t he tes ta tor b u t no form of a t tes ta t ion shall be necessary.
10. A n d be i t fur ther enacted Tha t no appo in tmen t m a d e by
will i n exercise of any power shal l be valid unless t he same be executed in m a n n e r hereinbefore requi red and every will executed in m a n n e r hereinbefore requi red shal l so far as respects t h e execut ion and a t tes ta t ion thereof be a valid execut ion of a power of appo in tment by will n o t w i t h s t a n d i n g it shall have been expressly required t h a t a will m a d e in exercise of such power should be executed wi th some addi t ional or o ther form of execut ion or solemnity.
1 1 . Prov ided always and be i t fur ther enacted Tha t any soldier
be ing in ac tua l mi l i t a ry service or any mar ine r or seaman being a t sea m a y dispose of his personal estate as he m i g h t have done before
t h e m a k i n g of th i s Act . 12. A n d be i t fur ther enac ted Tha t th i s Ac t shal l no t prejudice
or affect any of t he provisions conta ined in an Ac t passed in t h e e leventh year of t h e re ign of H i s Majesty K i n g George t h e F o u r t h
and t h e first year of t h e re ign of H i s la te Majesty K i n g W i l l i a m the
F o u r t h in t i tu led " An Act to amend and consolidate the Laics relating
to the pay of the Royal Navy" respec t ing t h e wills of pe t ty officers and seamen in the R o y a l N a v y and non-commissioned officers of mar ines and mar ines so far as relates to t he i r wages pay prize money b o u n t y money and allowances or other monies payable in respect of
services in H e r Majesty 's Navy . 13 . A n d be i t fu r ther enacted Tha t every will executed in
m a n n e r hereinbefore requ i red shall be valid wi thout any other publica
t ion thereof. 14. A n d be i t fur ther enacted That if any person who shall a t tes t t he execut ion of a will shall a t t h e t ime of t he execut ion thereof or a t any t i m e af terwards be incompeten t to be admi t ted a witness to prove the execution thereof such wil l shall not on tha t account be invalid.
15. A n d be i t fur ther enacted Tha t if any person shall a t tes t
t h e execut ion of any wil l to whom or to whose wife or husband any beneficial devise legacy estate interest gift or appo in tment of or affect ing any real or personal es ta te (other t h a n and except charges and direct ions for t h e paymen t of any debt or debts) shall be thereby given or m a d e such devise legacy estate interest gift or appoin tment shall so far only as concerns such person a t tes t ing the execut ion of such will or t h e wife or h u s b a n d of such person or any person c la iming u n d e r such person or wife or husband be u t t e r ly nu l l and void and such person so a t tes t ing shall be admi t t ed as a witness to prove t h e execut ion of such will or to prove t he val idi ty or inval idi ty thereof no twi ths t and ing such devise legacy es ta te interest gift or appoin tment ment ioned in such will.
16. A n d be it fur ther enacted Tha t in case by any will any real or personal estate shall be charged wi th any debt or debts and any creditor or t he wife or husband of any creditor whose debt is so charged shal l a t tes t t h e execution of such will such creditor no twi th s tand ing such charge shall be admi t ted a witness to prove t he execut ion of such will or to prove the val idi ty or inval idi ty thereof.
17. A n d be i t fur ther enacted Tha t no person shall on account
of his be ing an executor of a will be incompetent to be admi t t ed a
witness to prove t he execution of such will or a witness to prove t he
| val idi ty or inval idi ty | thereof. |
18 . A n d be i t fur ther enacted Tha t every will m a d e by a m a n
or woman shall be revoked by his or her mar r i age (except a will made in exercise of a power of appo in tmen t when the rea l or personal estate thereby appointed would no t in default of such appo in tmen t pass to his or her heir cus tomary heir executor or adminis t ra tor or t he person
| ent i t led | as his or her n e x t | of k in unde r t he | s t a tu te | of | d is t r ibut ions) . |
| 19. A n d be i t fur ther enacted Tha t no will shal l be revoked by any p resumpt ion of an | in tent ion on the | g round | of a n a l te ra t ion in |
| c i rcumstances . |
20. A n d be i t fur ther enacted Tha t no will or codicil or any p a r t thereof shall be revoked otherwise t h a n as aforesaid or by another will or codicil executed in m a n n e r hereinbefore required or by some wr i t i ng declar ing an in ten t ion to revoke the same and executed in t h e m a n n e r in which a will is hereinbefore requi red to be executed or by t he b u r n i n g t ea r ing or otherwise destroying t h e same by t h e tes ta tor or by some person in his presence and by his direction wi th the in ten
| t ion of revoking t h e same. |
2 1 . A n d be i t fur ther enacted That no obl i terat ion inter l inea
t ion or o the r a l te ra t ion m a d e in any will after t h e execution thereof shall be valid or have any effect except so far as t he words or effect of t he will before such a l tera t ion shall no t be apparen t unless such al tera
| t ion shall be executed in l ike m a n n e r as hereinbefore | is requi red | for |
t h e execut ion of t he will b u t t he will w i th such a l tera t ion as pa r t thereof shall be deemed to be du ly executed if t h e s igna ture of t h e tes ta tor and t h e subscript ion of t h e witnesses be m a d e in t he marg in or on some other pa r t of t he will opposite or nea r to such a l tera t ion or a t t h e foot or end of or opposite to a m e m o r a n d u m referring to such a l tera t ion and wr i t t en a t t he end or some other p a r t of t h e will.
22. A n d be i t fur ther enacted Tha t no will or codicil or any p a r t thereof which shall be in any m a n n e r revoked shall be revived otherwise t h a n by the re-execution thereof or by a codicil executed in m a n n e r hereinbefore required and shewing an in ten t ion to revive t h e same and w h e n any will or codicil which shall be pa r t ly revoked and afterwards whol ly revoked shall be revived such revival shall n o t extend to so m u c h thereof as shal l have been revoked before t h e
2 A—VOL. 2. revocation revocat ion of t he whole thereof unless an in ten t ion to t he con t ra ry
shall be shewn.
23. A n d be it fur ther enacted T h a t no conveyance or o ther ac t
m a d e or done subsequent ly to t h e execut ion of a will of or re la t ing
t o any real or personal estate the re in comprised except an act b y
which such will shall be revoked as aforesaid shall prevent t h e opera t ion of t he will wi th respect to such estate or in teres t in such real o r personal es ta te as t h e tes ta tor shall have power to dispose of b y wil l a t t h e t ime of his death .24. A n d be it fur ther enacted T h a t every will shall be con
s t rued wi th reference to t he rea l estate and personal es ta te comprised
i n i t to speak and t ake effect as if it h a d been executed immedia te ly
before t he dea th of t he tes ta tor unless a cont ra ry in ten t ion shal l appear
b y t h e will .
25. A n d be it fur ther enacted Tha t unless a cont ra ry in ten t ion shal l appear by t h e will such rea l estate or in teres t there in as shall
b e comprised or in tended to be comprised in any devise in such will
conta ined which shall fail or be void by reason of t he dea th of t he devisee in t h e lifetime of the tes ta tor or by reason of such devise be ing cont ra ry to law or otherwise incapable of t a k i n g effect shall be included in t he res iduary devise (if any) contained in such will .
26. A n d be it fur ther enacted Tha t a devise of t he land of t h e
tes ta tor or of t h e l and of t h e t es ta to r in any place or in the occupation of any person ment ioned in his will or otherwise described in a genera l m a n n e r and any other general devise which would describe a cus tomary copyhold or leasehold es ta te if t he tes ta tor had no freehold es ta te which could be described by it shall be cons t rued to include t h e cus tomary copyhold and leasehold estates of t h e tes ta tor or h i s cus tomary copyhold and leasehold estates or any of t h e m to which such descript ion shall ex tend as t h e case m a y be as well as freehold es ta tes unless a con t ra ry in ten t ion shall appear by t h e will .
27. A n d be it fur ther enacted Tha t a general devise of the rea l
es ta te of t he t es ta to r or of the real es ta te of t he tes ta tor in any p l a c e or in t h e occupation of any person ment ioned in his will or otherwise described in a general m a n n e r shall be construed to include a n y real es ta te or any real es ta te to which such descript ion shall ex tend ( a s
t h e case m a y be) which he m a y have power to appoint in a n y m a n n e r
he m a y t h i n k proper and shall opera te as an execut ion of such power unless a cont ra ry in tent ion shal l appear by t h e will and in l i k e m a n n e r a bequest of t h e personal estate of t he tes ta tor o r a n y bequest of personal p roper ty described in a general m a n n e r shall b e cons t rued
to include any personal es ta te or any personal es ta te t o which such descript ion shall ex tend (as t h e case m a y be) which h e m a y have p o w e r to appoint in any m a n n e r he m a y t h i n k proper a n d shal l
opera te as an execution of such power u n l e s s a con t ra ry in ten t ion shal l appear by t he will .
28. A n d be i t fur ther enacted T h a t where any real es ta te shall
be devised to any person wi thou t any words of l imi ta t ion such d e v i s e shal l be const rued to pass the fee s imple or other t h e w h o l e estate o r in teres t which t h e tes ta tor had power to dispose of by will in such real estate unless a cont rary in ten t ion shall appear by t h e will.
29. A n d be i t fur ther enacted T h a t in any devise or bequest of
real or personal estate t he words " die wi thou t i s sue" or " die wi thou t leaving i s sue" or " have no i s sue" or any other words which may impor t e i ther a w a n t or failure of issue of any person in his lifetime o r at t h e t i m e of his death or an indefinite fai lure of his issue shall be construed to m e a n a w a n t or failure of issue in t h e lifetime or a t t h e t ime of t he dea th of such person and no t an indefinite failure of h is issue unless a cont rary in ten t ion shall appear by t h e will by reason of
such
such person hav ing a pr ior estate ta i l or of a preceding gift being wi thou t any implicat ion ar is ing from such words a l imi ta t ion of an es ta te ta i l to such person or issue or otherwise Provided t h a t th is Ac t shall no t ex tend to cases where such words as aforesaid impor t if no issue described in a preceding gift shall be born or if the re shall be no issue who shall l ive to a t t a in t h e age or otherwise answer t h e descript ion requi red for obta in ing a vested estate by a preceding gift to such issue.
30. A n d be it fur ther enacted Tha t where any real es ta te (other t h a n or not be ing a presenta t ion to a church) shall be devised to any t rus t ee or executor such devise shall be const rued to pass t h e fee s imple or other t he whole estate or interest which t h e tes ta tor had power to dispose of by will in such real estate unless a definite t e r m of years absolute or determinable or an estate of freehold shall thereby be given to h i m expressly or by implicat ion.
3 1 . A n d be i t fur ther enacted Tha t where any real es ta te shall
be devised to a t rus tee wi thou t any express l imi ta t ion of t h e estate to be t aken by such t rus tee and the beneficial interest in such real estate or in t he surp lus r en t s and profits thereof shal l no t be given to any person for life or such beneficial interest shall be given to any person for life b u t the purposes of t h e t r u s t m a y cont inue beyond t h e life of such person such devise shall be construed to vest in such t rus tee t he fee s imple or o ther t h e whole legal es ta te which t h e tes ta tor had power to dispose of by will in such real es ta te a n d n o t an estate
| de te rminab le when t h e purposes of t h e t r u s t shall be | satisfied. |
| 32. A n d be it fur ther enacted Tha t where any person to whom any real estate shall be devised for an es ta te ta i l or an es ta te in | quasi |
| entai l shal l die in t h e lifetime of t he tes ta tor leaving issue who | would |
| be inher i tab le unde r such enta i l and any such issue shall be l iving | a t |
t h e t ime of t h e death of t he tes ta tor such devise shall n o t lapse b u t shal l t ake effect as if the dea th of such person had happened imme diately after t h e dea th of t h e tes ta tor unless a cont rary in ten t ion shall appear by t h e will .
33 . A n d be i t fur ther enacted Tha t where any person being a child or other issue of t h e tes ta tor to w h o m any rea l or personal estate shall be devised or bequea thed for any estate or in teres t no t determi nable a t or before t h e death of such person shall die in t he lifetime of t he tes ta tor leaving issue a n d any such issue of such person shall be l iving at t h e t ime of t h e death of t h e tes ta tor such devise or bequest shall no t lapse b u t shall t ake effect as if t h e death of such person had
| happened immedia te ly after t h e death of t he tes ta tor unless a cont rary |
in ten t ion shall appear by t h e will .
3 1 . A n d be it fur ther enacted Tha t th is Act shall no t extend to
any will made before t he first day of J a n u a r y one thousand eight hund red and th i r ty -e igh t and tha t every will re-executed or re-published or revived by any codicil shall for t he purposes of th i s Ac t be deemed to have been made a t the t ime at which the same shall be so re-executed re-publ ished or revived and t h a t th is Act shall no t extend to any estate pur autre vie of any person who shall die before the
| first | day of | J a n u a r y one thousand eight hund red and | th i r ty -e igh t . |
35 . A n d be it fur ther enacted Tha t th i s Act shall not extend
| to | Scot land. |
36. A n d be it enacted That th is Act may be amended al tered or repealed by any A c t or Acts to be passed in th i s p resen t Session of Par l i ament .
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