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THE last method of conveying real property, is, by devise,
1 or disposition contained in a man's last will and teltament. And, in considering this subject, I 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 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 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 ; Gince it rarely happens, a Wright of tenures. 172.
c Tacit. de mer. Germ. 6. 21. b See page 57
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 accumulation of estates. But when Solon" made a slight alteration, by permitting them (though only on failure of issue) to dispose of their lands by testamant, 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 thefe 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 feem 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 teftamento; except only in Kent, and in some antient burghs, and a few particular Manors, where their Saxon immunities by special indulgence
fublifted f. And though the feodal restraint on alienations by deed vanished very early, yet this on wills continued for some centuries after ; from an apprehension of infirmity and imposition on the teftator in extremis, which made such devises suspicious 8. 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 “, 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 molt 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 intercode 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 devic 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. 1. explained by 34 Hen. VIII. c. 5. which enacted, that all persons being feised in fee-fimple (except feme-coverts (1), infants, ideots
f Lice. $167. 1 Inft. 111. jon devises. 7.
i 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 them after her death, which appointment must be executed like the will of a feme sole, and will be subjc&t to the same rules of construction. 2 Vef. 610. i Bro. 99. And though the contrary has been held, yet 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 de
pends and persons of nonsane 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.
Corporations were excepted in these statutes, to prevent
the extension of gifts in mortmain; but now, by construction [ 376 ] of the statute 43 Eliz. C. 4. it is held, that a devise to a cor
poration 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 usesk; it being held that the statute of Elizabeth, which favours appointments to charities, supersedes and repcals 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 furrendering 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 appointmento.
With regard to devises in general, experience foon 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 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
k Ch. Prec. 272.
n Moor. 890.
pends only upon an agreement of her husband before marriage, without any conveyance of the estate to trustees, 6 Bro.P.C. 156.
upon this act by the courts of law, thać 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 teftator, 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 soléinnity nearly similar is requisite for revoking a deyise 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 intire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a cliildo (4)."
In the construction of this last ftatutė, 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
Dyer. 72. Cro. Eliz. 100. 9 Christopher v. Christopher. Scaccb. 6 jul. 1771. Spragge v. Stone, at the
Cockpit, 27 Mar. 1773. by Wilmot, de Grey, and Parker. See page 802.
(2) Copyholds and terms for years are not within the statute, but will pass by any will which is sufficient to bequeath personalty. 2 Alk. 37. 2 Bro. 58.''
(3) It has been determined, that one will cannot be revoked by another will, though it frould contain a clause declaring all former wills to be revoked, unless the second is valid and effectual as a will. 2 P. Wms. 343. Yet a will may be revoked by an instrument written merely for the purpose of revocation ; but it must be attested by three witnesses, and the testator must sign it in their preJence, which is not necessary in the execution of a will. The reason of this difference, if it was designed, is not obvious. 29 Car. 2. 6. 3..6.
(4) Marriage and the birth of a posthumous child amount to a revocation. 5 T. R. 49. b Vol. II.