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CHAPTER THE TWENTY THIRD.

OF ALIENATION BY DEVISE.

F

T HE last method of conveying real property, is by

1 devise, or disposition contained in a man's last will and testament. And, in considering this subject, I shall not at present enquire into the nature of wills and teftaments, 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 willa. But, upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feodal doctrine of nonalienation without the consent of the lord b. And some have questioned, whether this restraint (which we may trace even from the antient Germans) 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 ballance of property, and prevented one man from growing too big or powerful for his neighbours; since it rarely happens,

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that the same man is heir to many others, though by art and management he may frequently become their devisee. Thus the antient 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 accumulations of estates. But when Solon d made a light 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 foon produced an excess of wealth in fome, and of poverty in others : which, by a natural progression, first produced popular tumults and dissentions; 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 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 accumulation of property : which is the natural consequence of our doctrine of succession by primogeniture, to which the Athenians were strangers Of this accumulation the ill effects were severely felt even in the feodal 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 testamente ; except only in Kent, and in some antient burghs, and a few particular manors, where their Saxon immunities by special indulgence subsisted f. And though the feodal restraint on alienations d Plutarch, in vita Solon. of Litt. S. 167. 1 In 111. . € 2 Inft.7.

by deed vanished very 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 &. 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.

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But when ecclefiaftical 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 it's execution. For it is observed by Gilbert i, that, as the popish clergy then generally fate 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 superstition of the times, could intercede for their happiness in another world. But, when the ' statute of uses i had annexed the possession to the use, these uses, being now the very land itself, became no longer devi. sable: 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. I. explained by 34 Hen. VIII. c. 5. which enacted, that all persons being feised in fee-fimple (except feme-coverts, infants, idiots, and persons of nonsane memory) might by will and testament: in writing devise to any other person, but not 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.

CORPORATIONS were excepted in these statutes, to prevent the extension of gifts in mortmain; but now, by construction · & Glanv. 1.7. 6, 1,

j on devises. 7. Plowd. 414.

i 27 Hen. VIII, C, 10. See Dyer, 143.

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 bequeft. And indeed the piety of the judges hath formerly carried them great lengths in supporting such charitable usest; it being held that the statute of Elizabeth, which favours appointments to charities, supersedes and repeals all former statutes', 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", 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 °

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With regard to devises in general, experience soon shewed 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 fo 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. And a solemnity nearly similar is requisite for revoking a devise.

In the construction of this last statute, it has been adjudged that the testator's name, written with his own hand, at the beginning of his will, as, “ I John Mills do make this my

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“ last will and testament,” is a sufficient figning, without any name at the bottom 4; though the other is the safer way. It has also been determined, that though the witnesses must all see the testator sign, or at least acknowlege the signing, yet they may do it at different times'. But they must all subscribe their names as witnesses in his presence, left by any possibility they should mistake the instruments. And, in one case determined by the court of king's-bench', the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses : for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in intereft not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination however alarmed many purchasors and creditors, and threatened to shake most of the titles in the kingdom, that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclefiaftical dues, (and these are the persons most likely to be present in the teftator's last illness) and if in such case the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II. c. 6. which restored both the competency and the credit of such legatees, by declaring void all legacies given to witnesses, and thereby removing all poffibi. lity of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered, on a view of all the circumstances, by the court

9 3 Lev. I.

Freen 486, 2 Cb, Cas. 109. Pr. Ch. 185.

SI P. Wms. 740,

Stra. 1253. ,

and

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