into the land before admittance; may take the profits; may punish any trespass done upon the ground; (f) nay, upon satisfying the lord for his fine due upon the descent, may surrender into the hands of the lord to whatever use he pleases. (7) For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to entitle him to his fine, and not so much necessary for the strengthening and completing the heir's title. Hence indeed an observation might arise, that if the benefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will nevei come in and be admitted to his copyhold in court; and so the lord may be defrauded of his fine. But to this we may reply in the words of Sir [*372] Edward Coke, (u) "I assure myself, if it were in the election of the heir to be admitted or not to be admitted, he would be best contented without admittance; but the custom of every manor is in this point compulsory. For, eitner upon pain of forfeiture of their copyhold, or of incurring some great penalty, the heirs of copyholders are enforced, in every manor, to come into court and be admitted according to the custom, within a short time after notice given of their ancestor's decease." CHAPTER XXIII. OF ALIENATIONS BY DEVISE. THE last method of conveying real property is, by devise, or disposition contained in a man's last will and testament. And, in considering this subject, 1 shall not at present inquire into the nature of wills and testaments, which are more properly the instruments to convey personal estates; but only into the original and antiquity of devising real estates by will, and the construction of the several statutes upon which that power is now founded. It seems sufficiently clear, that, before the conquest, lands were devisable by will. (a) But upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feudal doctrine of nonalienation without the consent of the lord. (b) And some have questioned whether this restraint (which we may trace even from the ancient Germans) (c) was not founded upon truer principles of policy, than the power of wantonly disinheriting the heir by will, and transferring the estate, through the dotage or caprice of the ancestor, from those of his blood to utter strangers. For this, it is alleged, maintained the balance of property, and prevented one man from growing too big or powerful for his neighbours; since it rarely happens, *that the same man is heir to many others, though by art and manage[*374] ment he may frequently become their devisee. Thus the ancient law of the Athenians directed that the estate of the deceased should always descend to his children; or, on failure of lineal descendants, should go to the collateral relations: which had an admirable effect in keeping up equality, and preventing the accumulation of estates. But when Solon (d) made a slight alteration, by permitting them (though only on failure of issue) to dispose of their lands by testament, and devise away estates from the collateral heir, this soon produced an excess of wealth in some, and of poverty in others: which by a natural progression, first produced popular tumults and dissensions; and these at length ended in tyranny, and the utter extinction of liberty: which was quickly followed by a total subversion of their state and nation. On the other hand, it (u) Co. Copyh. § 41. (a) Wright of Tenures, 172. (d) Plutarch, in vita Solon. (t) 4 Rep. 23. (b) See page 57. (7) If the lord refuse in a proper case to admit the tenant, he may be compelled to do so by mandamus. Reg. v. Dendy, 1 ÉÊ. and B. 829; Reg. v. Wellesley, 2 id. 924. would now seem hard, on account of some abuses, (which are the natural consequence of free agency, when coupled with human infirmity), to debar the owner of lands from distributing them after his death as the exigence of his family affairs, or the justice due to his creditors, may perhaps require. And this power, if prudently managed, has with us a peculiar propriety; by preventing the very evil which resulted from Solon's institution, the too great accumuiation of property; which is the natural consequence of our doctrine of succession by primogeniture, to which the Athenians were strangers. Of this accumulating the ill effects were severely felt even in the feudal times: but it should always be strongly discouraged in a commercial country, whose welfare depends on the number of moderate fortunes engaged in the extension of trade. However this be, we find that, by the common law of England since the conquest, no estate, greater than for term of years, could be disposed of by testament; (e) except only in Kent, and in some ancient burghs, and a few particular manors, where their Saxon immunities by special indulgence subsisted. (f) And though the feudal restraint on alienations *by deed vanished very [ *375] early, yet this on wills continued for some centuries after: from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious. (g) Besides, in devises there was wanting that general notoriety, and public designation of the successor, which in descents is apparent to the neighbourhood, and which the simplicity of the common law always required in every transfer and new acquisition of property. But when ecclesiastical ingenuity had invented the doctrine of uses as a thing distinct from the land, uses began to be devised very frequently, (h) and the devisee of the use could in chancery compel its execution. For it is observed by Gilbert, (i) that, as the popish clergy then generally sat in the court of chancery, they considered that men are most liberal when they can enjoy their possessions no longer: and therefore at their death would choose to dispose of them to those who, according to the superstitions of the times, could intercede for their happiness in another world. But, when the statute of uses (1) had annexed the possession to the use, these uses, being now the very land itself, became no longer devisable which might have occasioned a great revolution in the law of devises, had not the statute of wills been made about five years after, viz: 32 Hen. VIII, c. 1, explained by 34 Hen. VIII, c, 5, which enacted, that all persons being seised in fee-simple (except feme-coverts, (1) infants, idiots, and persons of non-sane memory) might by will and testament in writing devise to any other person, except to bodies corporate, two-thirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in socage which now, through the alteration of tenures by the statute of Charles the Second, amounts to the whole of their landed property, except their copyhold tenements. (e) 2 Inst. 7. (g) Glanv. 1. 7, c. 1. (j) 27 Hen. VIII, c. 10. See Dyer, 143. (h) Plowd. 414. (1) [Where lands are conveyed to trustees, a married woman may have the power of appointing the disposition of lands held in trust for her after her death, which appointment must be executed like the will of a feme-sole. 2 Ves. 610; 1 Bro. 99. And it has been determined by the house of lords, that the appointment of a married woman is effectual against the heir at law; though it depends only upon an agreement of her husband before marriage without any conveyances of the estate to trustees. 6 Bro. P. C. 156.] Married women are now in some of the United States given full authority to make wills, the same as if unmarried. In others the power is more or less restricted. See Redf. on Wills, 27. Under the English law the wife might execute a will of personalty with the consent of the husband, but he might nevertheless withdraw his assent, even after her death. Tucker v. Inman, 4 M. and G. 1049. Where the statute did not expressly exclude married women, it was held in Ohio they might dispose of their property by will: Allen v. Little, 5 Ohio, 65; but in Pennsylvania a different ruling was made. West v. West, 10 S. and. R. 446. In England a married woman may dispose by will of property settled to her separate use, without going through the machinery of a power of appointment. Taylor v. Meads, 34 L. J. Ch. 203. VOL. I.-73 577 Corporations were excepted in these statutes, to prevent the extension of gifts [*376] in mortmain; but now, by construction of the statute 43 Eliz. c. 4, it is held, that a devise to a corporation for a charitable use is valid, as operating in the nature of an appointment, rather than of a bequest. And indeed the piety of the judges hath formerly carried them great lengths in supporting such charitable uses; (k) it being held that the statute of Elizabeth, which favours appointments to charities, supersedes and repeals all former statutes, (7) and supplies all defects of assurances: (m) and therefore not only a devise to a corporation, but a devise by a copyhold tenant without surrendering to the use of his will, (n) and a devise (nay even a settlement) by tenant in tail without either fine or recovery, if made to a charitable use, are good by way of appointment. (0) With regard to devises in general, experience soon showed how difficult and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law; which are so nicely constructed and so artificially connected together, that the least breach in any one of them disorders for a time the texture of the whole. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance; for so loose was the construction made upon this act by the courts of law, that bare notes in the hand-writing of another person were allowed to be good wills within the statute. (p) To remedy which, the statute of frauds and perjuries, 29 Car. II, c. 3, directs, that all devises of lands and tenements shall not only be in writing, but signed by the testator, or some other person in his presence, and by his express direction; and be subscribed, in his presence, by three or four credible witnesses. (2) And a solemnity nearly similar is requisite for revoking a devise by writing; though the same may be also revoked by burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent: (3) as likewise impliedly, by such a great and entire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child. (q) (4) (k) Ch. Prec, 272. (1) Gilb. Rep. 45. 1 P. Wms. 248. (n) Moor. 890. (0) 2 Vern. 453. Ch. Prec 16. (q) Christopher v. Christopher. Scacch. 6 July, 1771. Wilmot. de Grey and Parker. See page 502. (m) Duke's Charit. Uses, 84. (p) Dyer, 72. Cro. Eliz. 100. Spragge v. stone, at the Cockpit, 27 Mar. 1773, bƒ (2) The wills act, 1 Vic. c. 26, reduces the number to two. And by section 14, the incompetency of a witness to be admitted to prove the execution will not invalidate the will. See 1 Jarm. on Wills, 102. And by that act the execution of all wills, codicils and revoking instruments requires the same formalities. The testator must sign at the foot or end of the will; as to which, see statute 15 and 16 Vic. c. 24. (3) [With respect to revocation in general, see 1 Saund. 277 to 279, d. Where a testator being angry with one of his devisees, tore his will into four pieces, but was prevented from further tearing it, partly by force and partly by entreaty, and afterwards, becoming calm, expressed his satisfaction that no material part was injured, and that the will was no worse, the court held that it has been properly left to the jury to say whether the testator had perfected his intention of cancelling the will, or whether he was stopped in medio; and the jury having found the latter, the court refused to disturb the verdict. 3 B. and A. 489. But where the testator threw his will into the fire, out of which it was snatched by a by-stander, and preserved without the testator's knowledge, the will was held to be cancelled. 2 Bla. R. 1043.] To make any act of destruction or cancellation of a will operate as a revocation, the act must be done animo revocandi Burtenshaw v. Gilbert, 1 Cowp. 49; and when done with that intent, a very slight injury to the instrument may be sufficient; such as drawing a line througn the testator's name: Martins v. Gardiner, 8 Sim. 73; Baptist Church v. Robbarts, 2 Penn. St. 110; or even tearing off the seal, though the seal itself was not an essential formality. Avery v. Pixley, 4 Mass. 460; Price v. Powel, 3 H. and N. 341. Alterations made in a will after execution, by interlineation or erasure, ought to be duly attested by witnesses; and if this be not done, the interlineations cannot take effect, and words erased evidently with a view to the changes which the interlineations would make, will still, if legible, be treated as part of the will. 1 Jarm. on Wills, 133; Redf. on Wills, 315. But where erasures are made in a will without addition, the will is revoked pro tanto. 1 Jarm. on Wills, 132; Redf. on Wills, 313. (4) [Marriage and the birth of a posthumous child amount to a revocation. 5 T. R. 49. But the subsequent birth of a child, where the will is made after marriage, is not of itself suf ficient. 5 T. R. 51, n.; 4 M. and S. 10; 5 Ves. Jr. 655. In a case where a testator had devised his real estate to a woman with whom he cohabited, and to her children, and he afterwards In the construction of this last statute, (5) it has been adjudged that the testator's name, written with his own hand, at the beginning of *his 6 [ *377] married her and had childron by her, it was held these circumstances, did not amount to a revocation of the will. Lord Ellenborough in his judgment says: "The doctrine of implied or presumptive revocation seems to stand upon a better foundation of reason, as it is put by Lord Kenyon, in Doe v. Lancashire, 5 T. R. 58, namely, as being a tacit condition annexed to the will when made, that it should not take effect, if there should be a total change in the situation of the testator's family,' than on the ground of any presumed alteration of intention; which alteration of intention should seem in legal reasoning not very material, unless it be considered as sufficient to found a presumption in fact, that an actual revocation has followed thereupon. But, upon whatever grounds this rule of revocation may be supposed to stand, it is on all hands allowed to apply only in cases where the wife and children, the new objects of duty, are wholly unprovided for, and where there is an entire disposition of the whole estate to their exclusion and prejudice. This, however, cannot be said to be the case, where the same persons, who, after the making of the will, stand in the legal relation of wife and children, were before specifically contemplated and provided for by the testator, though under a different character and denomination." 2 East, 530. See 5 Ves. Jun. 656. Where two wills are found in the possession of the testator, to invalidate the first the second should expressly revoke, or be clearly incompatible with, the first devise, for no subsequent devise will revoke a prior one, unless it apply to the same subject-matter. 1 P. Wms. 345. ; 7 Bro. P. C. 344; Cowper, 87. A devise of real property is not revoked by the bankruptcy of the devisor. The master of the rolls said, "from the moment the debts are paid, the assignees are mere trustees for the bankrupt, and can be called upon to convey to him." In this case all the debts were paid, and the bankrupt had been dead some time. 14 Ves. 580. See also, as to implied or constructive revocations, 3 Mod. 218; Salk. 592; 3 Mod. 203; 2 East, 488; Carth. 81; 4 Burr, 2512; 7 Ves. Jun. 348; Cowp. 812; 4 East, 419; 2 N. R. 491, and post, "Title by Testament," 489, et seq.] It has been repeatedly held in the United States that the subsequent marriage and birth of a child are an implied revocation of a will, but that either marriage or birth of a child will not alone have that effect. And it is also held that the presumed revocation may be rebutted by circumstances evidencing a different intent. Brush v. Wilkins, 4 Johns. Ch. 506; Warner v. Beach, 4 Gray, 162; Coates v. Hughes, 3 Binn. 498; Walker v. Hall, 34 Penn. St. 483; Bloomer v. Bloomer, 2 Bradf. Sur. R. 339. Some changes have been made in this rule, for which the reader must be referred to the statutes of the several states. The marriage of a woman revokes a will previously made. Hodsden v. Lloyd, 2 Br. C. C. 534. But whether this would be so in those states where, after marriage, a woman has the same power to make a will as before, may well be doubted. The English statute of wills, 1 Vic. c. 26, provides that no will shall be revoked by any presumption of intention on the ground of an alteration in circumstances, but it also makes marriage an absolute revocation. (o)[As to what shall be deemed a sufficient compliance with this act, see 1 Fonblanque on Equity, 193; Phil. on Evid. chap. 8, sec. 8. It is observable, that the statute requires that the will shall be in writing, but it should seem it would suffice if in print, and signed by the testa tor. Semble, 2 M. and S. 286. It next requires, that the will shall be signed by the testator, or some other person in his presence and by his express direction. The first case in which this question was raised was Lemayne v. Stanley, 3 Lev. 1; 1 Eq. Ca. Ab. 403, in which case it was determined, that if the testator write the whole of the will with his own hand, though he does not subscribe his name, but seals and publishes it, and three witnesses subscribe their names in his presence, it is a good will; for his name being written in the will it is a sufficient signing, and the statute does not direct whether it shall be at the top, bottom, &c. But from the case of Right, lessee of Cater, v. Price, Dougl. 241, it may be inferred that the above decision will apply only to those cases where the testator appears to have considered such sufficient signing to support his will; and not to those where the testator appears to have intended to sign the instrument in form: and Mr. Christian, in his edition of Blackstone, 2 vol. 377, n. 5, properly observes, that writing the name at the beginning would never be considered a signing according to the statute, unless the whole will was written by the testator himself; for whatever is written by a stranger after the name of the testator affords no evidence of the testator's assent to it, if the subscription of his name in his own hand is not subjoined; and see Powell on Devises, 63. In the case of Right v. Price, the will was prepared in five sheets, and a seal affixed to the last, and the form of attestation written upon it, and the will was read over to the testator, who set his mark to the two first sheets. and attempted to set it to the third, but being unable, from the weakness of his hand, he said he could not do it, but that it was his will; and on the following day, being asked if he would sign his will, he said he would, and attempted to sign the two remaining sheets, but was not able. Lord Mansfield observed, that the testator, when he signed the two first sheets, had an intention of signing the others, but was not able; he therefore did not mean the signature of the two first as the signature of the whole will; there never was a signature of the whole. See also 4 Ves. Jun. 197; 9 Ves. 249. And if it appear upon a will of personal estate that something more was intended to be done, and the party was not prevented by sickness or death from signing, this declaration at the begin will, as, "I, John Mills, do make this my last will and testament:" is a sufficient signing, without any name at the bottom; (r) though the other is (r) 3 Lev. 1.、 ning is not sufficient. 4 Ves. 197, n.; 9 id. 249. But where a will, written on three sides of a sheet of paper, and duly attested, concluded by stating "that the testator had signed his name to the two first sides thereof, and his hand and seal to the last," and it appeared he had put his hand and seal to the last only, omitting to sign the two first sides, it was held that the will was well executed, as his first intention was abandoned by the final signature made by him at the time of executing the will. 5 Moore, 484; 2 Bro. and Bing. 650, S. C. So where the testator had executed such a will, but some years afterwards made various interlineations and obliterations therein, but which was neither re-signed, re-published, nor re-attested, but a fair copy was afterwards made, in which he added one interlineation not affecting his freehold estate, but the copy was never signed, attested or published, and the will and copy were found locked up in a drawer together; it was held that there was no revocation of the will as it originally stood; the alterations, &c., being merely demonstrative of an intention to execute another, never carried into effect. Id. The testator's making a mark at the foot of his will, if intended as a signature, is sufficient. Freeman Rep. 535. The next doubt that occurred upon this point was, whether the testator sealing his will was not a signing within the statute, and in 2 Stra. 764, Lord Raymond is reported to have held that it was; and of the same opinion three of the judges appear to have been, in 3 Lev. 1, on the ground that signum is no more than a mark, and sealing is a sufficient mark that this is his will; but in 1 Wils. 313, such opinion was said to be very strange doctrine; for that if it were so, it would be easy for one person to forge any man's will by only forging the names of any two obscure persons dead, for he would have no occasion to forge the testator's hand. And they said, "if the same thing should come in question again, they should not hold that sealing a will was a sufficient signing within the statute." But in 2 Atk. 176, Lord Hardwicke seems to have thought, that sealing without signing in the presence of a third witness, the will having been duly signed in the presence of two, would have been sufficient to make it a good will. It was held in a case where the testator was blind, that it is not necessary to read over the will previous to the execution, in the presence of the attesting witnesses. 2 New R. 415. The signing of the testator need not be in the presence of the witnesses; it suffices if he acknowledge his signature to each of them. 3 P. Wms. 253; 2 Ves. 451; 1 Ves. J. 11; 8 Ves. 504; 1 Ves. and B. 362. Upon the attestation of a will, many questions have also arisen. The first seems to have been whether the witnesses must attest the signing by the testator, and upon this point, the statute not requiring the testator to sign his will in the presence of the witnesses, it has been held sufficient, if the testator acknowledge to the witnesses that the name is his. 3 P. Wms. 253; 2 Ves. 254. See also 2 P Wms. 510; Comyn's Rep. 197; 1 Ves. Jun. 11. The next question respecting the attestation was, What shall be construed a signing in the presence of the testator and upon this point, which first came into consideration in 1 P. Wms. 740, Lord Macclesfield held, that "the bare subscribing of a will, by the witnesses in the same room, did not necessarily imply it to be in the testator's presence; for it might be in a corner of the room, in a clandestine, fraudulent way, and then it would not be a subscribing by the witness in the testator's presence, merely because in the same room; but that here, it being sworn by the witness, that he subscribed the will at the request of the testatrix and in the same room, this could not be fraudulent, and was therefore well enough." So in the case in 2 Salk. 688, the testator having desired the witnesses to go into another room seven yards distant, to attest it, in which room there was a window broken, through which the testator might have seen, the attestation was held good; for that it was enough that the testator might see the witnesses signing, and that it was not necessary that he should actually see them. See also 3 Salk. 395. And Lord Thurlow, in 1 Bro. C. C. 99, relying upon the authority in 2 Salk. 688, inclined to think a will well attested where the testatrix could see the witnesses through the window of her carriage, and of the attorney's office. But the above cases turned upon the circumstance of the testator being in a situation which allowed of his seeing the witnesses sign; if, therefore, he be in a position in which he cannot see the signing, it seems such attestation would not be a compliance with the statute. Carth. 79; Holt's Rep. 222; 1 P. Wms. 239; 2 Show. 288. And in the case in Comyn's R. 531, it was determined that the question, whether present or not, was a fact for the consideration of the jury, upon all the circumstances of the case. See also, Stra. 1109. And if the jury find that the testator was in a situation where he could not see the witnesses, the will is not duly attested: 1 M. and S. 294; and if the testator were at the time of attestation insensible, though the witnesses signed in his presence, it is not a good attestation. Dougl. 241. It seems also to have been a question, whether the witnesses should not attest the will in the presence of each other. But it was determined, very soon after the statute, that though the witnesses must all see the testator sign, or acknowledge the signing, yet that they may do it at different times: Anon. 2 Ch. Ca. 109; Freem. 486; Cook v. Parson, Pre. Ch. 185; Jones v. Lake, cited 2 Atk. 177; Bond v. Seawell, 3 Burr, R. 1773; and the acknowledgment by the testator to one of the witnesses, who did not see him sign, is good. See Addy v. Grix, 8 Ves. |