by deed vanished very early, yet this on wills continued for some centuries after; from an apprehenfion of infirmity and impofition on the teftator in extremis, which made fuch devises fufpicious &. Befides, in devifes there was wanting that general notoriety, and public defignation of the fucceffor, which in descents is apparent to the neighbourhood, and which the fimplicity of the common law always required in every transfer and new acquifition 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 1, and the devisee of the use could in chancery compel it's execution. For it is obferved by Gilberti, that, as the popish clergy then generally fate in the court of chancery, they confidered that men are most liberal when they can enjoy their poffeffions 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 ftatute of uses had annexed the poffeffion to the ufe, these ufes, being now the very land itself, became no longer devifable: which might have occafioned a great revolution in the law of devises, had not the ftatute 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 perfons being feifed in fee-fimple (except feme-coverts, infants, idiots, and perfons of nonfane memory) might by will and teftament in writing devise to any other perfon, but not to bodies corporate, two thirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in focage: which now, through the alteration of tenures by the ftatute of Charles the second, amounts to the whole of their landed property, except their copyhold tenements. CORPORATIONS were excepted in these ftatutes, to prevent the extenfion of gifts in mortmain; but now, by conftruction BOOK II. 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 fupporting fuch charitable uses; it being held that the statute of Elizabeth, which favours appointments to charities, fuperfedes and repeals all former statutes', and supplies all defects of affurances : and therefore not only a devise to a corporation, but a devise by a copyhold tenant without furrendering to the use of his will", and a devise (nay even a fettlement) by tenant in tail without either fine or recovery, if made to a charitable use, are good by way appointment. m of WITH regard to devises in general, experience foon fhewed 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 fo 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 figned by the teftator, or some other person in his presence, and by his express direction; and be subscribed, in his prefence, by three or four credible witneffes. And a folemnity nearly fimilar is requifite for revoking a devife. In the conftruction of this last statute, it has been adjudged that the teftator's name, written with his own hand, at the beginning of his will, as, "I John Mills do make this my k Ch. Prec. 272. 1 Gilb. Rep. 45. 1 P. Wms, 248, (Duke's charit, ufes, 84. n Moor. 890. • 2 Vern. 453. Ch. Prec. 16. "laft 377 "last will and teftament," is a fufficient figning, without any name at the bottom; though the other is the fafer way. It has also been determined, that though the witnesses must all fee the teftator fign, or at least acknowlege the figning, yet they may do it at different times'. But they must all fubfcribe their names as witneffes in his prefence, left by any poffibility they should mistake the inftrument. 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 witneffes: for they would not allow any legatee, nor by confequence a creditor, where the legacies and debts were charged on the real eftate, to be a competent witness to the devife, 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 perfonal affets. This determination however alarmed many purchafors and creditors, and threatened to shake most of the titles in the kingdom, that depended on devifes 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 laft illness) and if in fuch case the teftator had charged his real estate with the payment of his debts, the whole will, and every difpofition therein, so far as related to real property, were held to be utterly void. This occafioned the statute 25 Geo. II. c. 6. which restored both the competency and the credit of fuch legatees, by declaring void all legacies given to witnesses, and thereby removing all poffibility of their interest affecting their teftimony. The fame ftatute likewise established the competency of creditors, by directing the teftimony of all fuch creditors to be admitted, but leaving their credit (like that of all other witnesses) to be confidered, on a view of all the circumftances, by the court 93 Lev. 1. r Freem. 486, 2 Ch, Caf, 109. Pr. Ch. 185. 5 1 P. Wms. 740% t Stra. 1253. and Book II. and jury before whom fuch will shall be contested. And in a much later case the testimony of three witnesses, who were creditors, was held to be sufficiently credible, though the land was charged with the payment of debts; and the reasons given on the former determination were said to be infufficient. ANOTHER inconvenience was found to attend this new method of conveyance by devife; in that creditors by bond and other specialties, which affected the heir provided he had affets by descent, were now defrauded of their securities, not having the fame remedy against the devisee of their debtor. To obviate which, the statute 3 & 4 W. & M. c. 14. hath provided, that all wills, and teftaments, limitations, difpofitions, and appointments of real eftates, by tenants in feefimple or having power to dispose by will, fhall (as against fuch creditors only) be deemed to be fraudulent and void : and that fuch creditors may maintain their actions jointly against both the heir and the devifee. A WILL of lands, made by the permiffion and under the control of these ftatutes, is confidered by the courts of law not so much in the nature of a teftament, as of a conveyance declaring the uses to which the land fhall be subject: with this difference, that in other conveyances the actual fubfcription of the witneffes is not required by law ", though it is prudent for them fo to do, in order to affift their memory when living and to supply their evidence when dead; but in devifes of lands fuch fubfcription is now abfolutely neceffary by ftatute, in order to identify a conveyance, which in it's nature can never be fet up till after the death of the devifor. And upon this notion, that a devife affecting lands is merely a fpecies of conveyance, is founded this diftinction between such devises and teftaments of personal chattels; that the latter will operate upon whatever the teftator dies poffeffed of, the former only upon fuch real estates as were his at the time of executing and publishing his will. Wherefore no after ■ M. 31 Geo. II. 4 Burr, I. 430. w Sce pag. 397. *. 379 purchased lands will pass under fuch devife, unless, subsequent to the purchase or contract, the devifor re-publishes his will a We have now confidered the feveral fpecies of common affurances, whereby a title to lands and tenements may be transferred and conveyed from one man to another. But, before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice, for the construction and expofition of them all. These are, I. THAT the construction be favourable, and as near the minds and apparent intents of the parties, as the rules of law will admit. For the maxims of law are, that "verba in"tentioni debent infervire ;" and, " benigne interpretamur char"tas propter fimplicitatem laicorum." And therefore the conftruction must alfo be reasonable, and agreeable to common understanding. 2. THAT quoties in verbis nulla eft ambiguitas, ibi nulla expofitio contra verba fienda eft: but that, where the intention is clear, too minute a ftrefs be not laid on the strict and precise fignification of words; nam qui haeret in litera, haeret in cortice. Therefore, by a grant of a remainder a reverfion may well pass, and e converfoe. And another maxim of law is, that "mala grammatica non vitiat chartam ;" neither falfe English nor bad Latin will destroy a deed f. Which perhaps a claffical critic may think to be no unneceffary caution. 3. THAT the conftruction be made upon the entire deed, and not merely upon disjointed parts of it. "Nam ex ante "cedentibus et confequentibus fit optima interpretatio." And f 10 Rep. 133. Co. Litt. 223. 2 Show. 334. g1 Bulftr. 101. there |