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ALIENATIONS BY MARRIED WOMEN.

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before the passing of the act (ss. 16, 17); and except as to reversions in the Crown, under 34 & 35 Hen. 8, c. 20, s. 18, by virtue of a settlement made before the passing of the act (ss. 16, 17); and except as to reversions in the Crown, under 34 & 35 Hen. 8, c. 20 (s. 18). A tenant in tail with remainder over where there is a protector cannot bar the remainders expectant upon his estate tail, without the consent of such protector. Such protector may concur either in the deed of disposition, or by a separate deed (s. 42); but without such consent, the tenant in tail may acquire or convey a base fee co-extensive with the continuance of issue under the entail, thereby barring such issue; as before the act he might have done by a fine with proclamations. If the estate tail be in remainder, the person entitled may, with the concurrence of the protector, bar all remainders and other estates and interests expectant upon his own estate tail; but, of course, leaving unaffected estates prior thereto.

The act applies to copyholds, but a disposition of them by tenant in tail, if entitled at law, must be by surrender; if entitled only in equity, then either by surrender or deed (s. 50-54). By sect. 71, the previous powers of disposition are, with certain variations, extended to those who may be considered quasi tenants in tail of money to be produced by sale of lands of any tenure directed to be sold, or to be reinvested in land, or of money to be laid out in the purchase of lands (z).

Alienations by married women.]—As to married women, sect. 77 of the act enables her with the consent of her husband to dispose by deed of lands, or money subject to be invested in the purchase of lands, and to release any estate which she alone, or

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which she and her husband in her right, may have therein; and also to release or extinguish any power reserved to her as fully as she could do if she were a feme sole. By sect. 7 of 8 & 9 Vict. c. 106, a married woman is enabled to disclaim by deed an estate or interest in any lands of any tenure. However, every deed of disposition by a married woman must be acknowledged (s. 79) by her before a judge, Master in Chancery, or before commissioners; and she must be separately examined. In certain cases the court may dispense with the concurrence of the husband (aa). The concurrence of the husband and acknowledgment are, by sect. 40, required where the tenant in tail is a married woman.

CHAP. XXVIII.

DEVISE.

[See 2 Black. Com. ch. 23; 1 Steph. Com. ch. 20.]

Devise is the last method of conveying real property which we shall have occasion to notice. A devise is a bequeathing of lands or tenements by will in writing; for of a legacy, or disposal of personal property by testament, we shall speak hereafter. A will devising lands is considered in law as an instrument declaring the uses to which the lands shall be subject. By the common law (except by custom) (a), no lands in fee simple were devisable by will, nor could they be transferred from one to another, except by the solemnity of livery of seisin, matter of record, or sufficient writing. But by 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 6, all persons having a sole estate, or interest in fee simple, or in coparcenary, or in common, either in possession, remainder, or reversion, or of any rents or services incident thereto, except feme coverts, infants, idiots, and persons of non sane memory, have full and free liberty to give,

dispose, will, or devise to any person or persons (except bodies politic or corporate), by last will and testament in writing, or otherwise by any act lawfully executed in his lifetime, two-thirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in socage. So that now, as all tenures are converted by 12 Car. 2. c. 24, into free and common socage, a man may devise his fee simple lands, either in fee simple, fee tail, for life, or years, absolutely or conditionally, at his pleasure, without livery of seisin, or naming an executor. But copyhold lands could not be devised unless by custom, or being surrendered to the use of the owner's will. But by 55 Geo. 3. c. 92, the surrender was dispensed with (b). Estates pur autre vie were devisable by 29 Car. 2, c. 3, s. 12. The statutes of Henry VIII., having only appointed that these devises should be in writing, without marking out any form or ceremony under which it was to be performed, many frauds and perjuries were committed, to introduce mere notes of hand and other writings as bad wills. To remedy this inconvenience, the 29 Car. 2, 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 similar solemnity is requisite for revoking a devise (c).

As to wills made on or after the 1st day of January, 1838, the new Wills Act, 7 Will. 4, and 1 Vict. c. 26, has repealed the former enactments, making in lieu thereof new and more ample provisions. As to the subject matter of the devise, that statute enacts, that it shall be lawful for all persons (except infants under twenty-one and married women) to dispose by will of all their real

EXECUTION OF WILL.

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(including copyholds) and personal estate, either at law or in equity, to which they shall be entitled at the time of their deaths, and which, but for such disposition, would pass to the heir at law or to the personal representative; and it expressly extends the same power to all their estates pur autre vie, and to all their contingent, executory, or other future interests, and even their rights of entry upon land; which latter subject was previously considered as incapable of being devised. The power is also expressly extended to after-acquired lands, by a provision that all real and personal estate to which the testator is entitled at the time of his death, shall pass, notwithstanding that he may become entitled to the same subsequently to the execution of his will (d). Under this act a corporation may, subject to the Mortmain Act (p. 112), be a devisee (e).

As to the formalities attending the execution of a will made on or after the 1st January, 1838, the former provisions as to execution and attestation are repealed; and it is enacted that no will (with the exception of those made as to personal estate by soldiers and seamen in certain cases (f), as provided for by former statutes) shall be valid, unless it shall be in writing, and signed at the foot or end thereof by the testator, or some other person in his presence and by his direction; such signature being also made or acknowledged by him in the presence of two or more witnesses present at the same time, and such witnesses attesting and subscribing the will in his presence. Where these requisites, however, are complied with no other is now imposed by law; and the statute expressly enacts that no publication other than is implied in the execution so attested shall in future be necessary. In case of incompetency of any attesting witness, the will shall not on that account

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