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The case might be put a little farther, his Lordship said, (though it was almost the same as the present) us, suppose in the same instrument there was a devise bom of real and personal, the will executed only to pass the personal, and not the real-; but a condition annexed that the personal legatee should permit the same persons, to whom the land was given, to hold to them and their heirs: the condition annexed would take place, though the devise was void as to the lands, according to the statute of frauds; for the legatee could not take it in contradiction to the testator's words; and the devise in the principal case amounted to the same as if the testator had annexed a condition to permit Stephen *to * [ 377 \ enjoy the land. The court must put a reasonable construction, which was, that none of the devisees should receive any benefit by the will, unless they suffered the whole instrument to take effect; not having regard to the validity or force of it, according to the statute of frauds, but to the clauses and expressions used. In Hearle v. Greenbank, there was no condition expressed in the will; it rested singly on the construction the court was to make, upon the implied condition that those claiming benefit by it, should suffer the whole to take effect; and then it must necessarily refer to the validity of the will ; for it was rightly argued, that the will could not be read so as to support a disposition of real estate, not being an instrument to that purpose. In that case, when the court was to make such a construction by implication from the force of the instrument itself, the court must see the will, and could not take notice that that was a will of real estates; but in the case before him, where there was such a condition annexed to a personal legacy, the court must consider every part of that, whether it was a matter relating to real estate or not. You must read the whole will relating to the personal legacy, let it relate to what it will; which was a substantial difference, his Lordship said, and would prevent his going so far as to break in upon the statute of frauds, and at the same time would attain natural justice, which required, as far as might be, such construction to be made, otherwise the intent of the testator might be overturned.

But as there might be a difficulty how to carry the will into execution, for being an infant of tender years, she could not judge for herself, nor could the master judge for her, it being on several contingencies, so that until she came of age, no election could be made, his Lordship said, the plaintiff must till then rcr

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ceive the rents and profits of the estate, subject to further order of the court, but must be restrained from committing waste. If the infant should elect to have the land, then whatever the plaintiff should be entitled to as his orphanage part of the testator's

• [ 378 ] personal estate, 'would be liable to make satisfaction for what he

should have received out of the rents and profits of the real, as the court should direct.

This distinction taken by Lord Hardwicke, between the cases of Hearle v. Greenbank, and Boughton v. Boughton, was recognised and adopted by Lord Kenyon, in Carey v. Askew,(132) which case has already been cited for another point in a former part of this chapter, and of which the Chancellor gave the following account, as to the point now under consideration, from his own note. "I have looked at my own note of Carey v. Askew. Lord Keuyon there said, the distinction was settled, and was not to be unsettled, that if a pecuniary legacy was bequeathed by an unattested will, under an express condition to give up a real estate, by that unattested will, attempted to be disposed of, such condition being expressed in the body of the will, it was a case of election, and he could not take the legacy without complying with the express condition. But Lord Kenyon also took it to be settled, as Lord Hardwicke has adjudged, that, if there was nothing in the will, but a mere devise of real estate, the will was not capable of being read as to that part ; and unless the legacy was given so that the testator said expressly, that the legatee should not take, unless that condition was complied with, it was not a case of election. The reason of that distinction, if it were

res integra, is questionable."

* T 379 1 ^

It seems that more point occurs to me as proper to be mentioned, be

if a man have fore this part of the subject, respecting the extent and ofteralion Lndelfreet of tne statute of frauds, is concluded. It was held in *the case of holds, and Rose v. Bartlet, (133) in the eighth year of Charles the First, that

(132) The case is reported in 2 Brown, C. C. 58; but the point under consideration in the text only appears to have made a part of it, by the notes of it referred to by the counsel for the heir at law, and by the Chancellor, in Sneddon v. Goodrich, 8 Vez. jun. 481.

(133) Cro. Car. 293. pl. 3. The authority of this case has been Submitted to (as Mr. Coxe observes in his note to Addis v. Clement, 2 P. Wms. 45&) .in Day v. Trigg, 1 P. Wtbs. 286. Davis v. Gibbs, 3 F.

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if a man have lands in fee, and lands for years, and devises all his devise all his

, lands and te

lands and tenements, only the fee-simple lands pass, and not the Mmenf* by a

leasehold estates. But if a man devises all his lands and tene- Wi)1 "nattes

, ted, the

ments, having leases for years, and no freehold, the leases for leaseholds years will pass; for, otherwise, the will would be merely void.(r) wiHnotpas*. And if a man devise all his lands and tenements at a particular place, and have only leaseholds answering to the local description, upon the same principle the leaseholds will pass. But what if a testator have both fee-simple and leasehold lands at a particular place, and he makes a will, devising all his lands and tenements at that place, by a will not executed to pass freehold estates, but duly proved in the ecclesiastical court, and sufficient to pass leasehold property? As in such a case the freehold cannot pass, will the leaseholds be carried to the devisee ? This was one of the points in Chapman v. Hart,(/) determined by Lord Chancellor Hardwicke, where a testator devised all his lands at or near Fowey to the plaintiff, so situated, and the will was executed in the presence of two witnesses only. The Chancellor observed, that it was not certain whether the testator had any leasehold in or near Fowey. If there should appear to be both, and the law had been with the plaintiff, so that she should be entitled thereto, it would be a ground for the direction of an inquiry ; for the answer was not a positive negation of any leasehold. But if, let the *fact come out how it would, the law would be against * [ 380 ] the plaintiff, he ought not to direct an inquiry. And he was of opinion, that though it should appear that the testator had leasehold as well as freehold, the plaintiff could not be entitled. It was clear, since the case of Rose v. Bartlet, that such a devise should be confined to the freehold, and the leasehold should not pass, unless there was only leasehold, for then they should pass, that the will might have some effect. >

But the distinction taken for the plaintiff did not hold; for it was applying the reason in that resolution in Rose v. Bartlet, to

(e) Vide Knotsford n. Gardiner, 2 Atk. 450. (/) 1 Vcz. 27L

Wms. 26. Knotsford v. Gardiner, 2 Atk. 450. and Pistol Richardson, reported in the same note; in which last case the authority of Addis v. Clement, which relied on the words " all the lands which the testator was seised or possessed of, or any ways interested in," was shaken. Vid. 6 T. R. 345. Lane v. the Earl of Stanhope.

a different purpose, from what it was there, where it was applied to the construction of the words, the intention of the testator arising from the fact. Here it was a presumed intent, arising, not from the words, but from a defect in the execution of the instrument, and his supposed knowledge in the law of that defect, and that he intended to pass only what might pass. But that defect in the execution of the instrument could not warrant the court to make a different construction from what it would if duly executed; which then would be, that the freehold lands only would pass. Suppose a case (which though he did not know to be determined, he should not doubt to determine so) of a person seised of freehold and copyhold in D. who surrendered to the use of his will, and devised all his lands and tenements in D. to his child: there being a surrender, both freehold and copyhold would pass, if the will was duly executed according to the statute of frauds: but if no surrender to the use of the will, only the freehold would pass ; to which lands and tenements generally mentioned should be applied; there being no surrender to the use of the will, to. show a different intent. Suppose that will executed in the presence of two witnesses, or of one only; those general words used; and no surrender; though this were to a child or wife, the court would not supply the defect of the surrender to the use of the will, or compel the heir at law to surrender the copyhold to the devisee, because the will was not duly executed ; when, if duly executed, the court would not have supplied that defect: for » \ 381 ] 'such variation of the construction would be very dangerous, and might make terms, and perhaps terms attendant of the inheritance, to pass ; there was no ground therefore for an inquiry.

PART III.

Of thesigna HAVING treated in the preceding part of this chapter ofthe ture of the operation and extent of these sections concerning wills, it re^e^subscriif niains tor me to inquire into the state of the law on the essention of the tials, held requisite for satisfying the statute in regard to the sigvitnesses. nature of (hc testator, and the subscription of witnesses. The formalities required, are, 1st. That the will be in writing; 2d. That it be signed by the devisor, or some other in his presence, and by his direction ; and 3d. That it be attested and subscribed in his,presence, by three or more credible witnesses. The necessity for the will to be in writing, and the addition in this reaprcc made to the statute of wills by the statute of frauds, by reason of the more extended range of its operation, has been already considered. The signature of the testator comes now* th ere fore, to be treated of.

If the language made use of by the legislature, were to be what is *

understood in its natural and usual sense, it should seem that s,un<ir.ient

. . . signing,

there could be no great contention in regard to the meaning of

the words 'shall be signed by the devisor,' which, to all popular and official purposes, is considered as importing the actual and formal subscription of the name of the party at the bottom of the instrument, to authorise or ratify the contents. And by directing this to be done in the presence of three witnesses, the statute would seem to every mind unused to artificial distinctions, to require that the attestators should have ocular and simultaneous evidence of the act of signing performed by the testator.

•Very soon, however, after the legislature had thought fit to * [ 382 ] place these guards about a dying man, in the last and most momentous act of temporal concernment, courts of justice, yielding to the popular bent towards an excessive freedom and facility in all kinds of alienations of property, instead of executing the intention of parliament, seem to have been resolved to employ all the resources of their astuteness to frustrate its caution, by an elaborate intricacy of enervating distinctions.

In the case of Lemayne v. Stanley,(134) which was deter- lf a .will be mined about four years after the statute was passed; it is surpris- written by a ing to observe, with what little ceremony the solemnity of signing Jf81'11'^,} was treated, and how lax were the principles of interpretation with his which were to lay the foundation for the future application of a ^m6h'e^stalaw, deeply affecting the whole property and commerce of the tute is held kingdom, and framed for the prevention of those frauds, the very ufthc sinews of wiuch are the uncertainties of the law. Stanley, seised signature of in fee, wrote his will with his own hand, beginning thus, " In ^ Wstator the name of God, amen. I, John Stanley, make this my last

(134) 3 Lev. 1; and again in the case of Hilton v. King, Lord North and Levinz agreed that it was immaterial, whether the signing be at the top or bottom of the will, for the statute doth not say subscribed, but signed by the testator. . . .

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