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upon another for a course of seven centuries, without any order or  method; and the multiplicity of acts of parliament which have amended, or sometimes only altered the common law: these causes have made the study of this branch of our national jurisprudence a little perplexed and intricate. It hath been my endeavour principally to select such parts of it, as were of the most general use, where the principles were the most simple, the reasons of them the most obvious, and the practice the least embarrassed. Yet I cannot presume that I have always been thoroughly intelligible to such of my readers, as were before strangers even to the very terms of art, which I have been obliged to make use of: though, whenever those have first occurred, I have generally attempted a short explication of their meaning. These are indeed the more numerous, on account of the different languages, which our law has at different periods been taught to speak; the difficulty arising from which will insensibly diminish by use and familiar acquaintance. And therefore I shall close this branch of our inquiries with the words of sir Edward Coke: "albeit the student shall not at any one day, do what he can, reach to the full meaning of all that is here laid down, yet let him no way discourage himself but proceed; for on some other day, in some other place" (or perhaps upon a second perusal of the same), "his doubts will be probably removed."
NOTES OF THE AMERICAN EDITOR TO CHAPTER XXIII.
(69) Of alienation by devise, page 373.
The best account of the origin of wills in Roman law is in Maine's Ancient Law, ch. 6, 7, pp. 166-231. For their history in England, see Digby's History of the Law of Real Property, esp. ch. 8, pp. 298-312. The right y Proeme to 1 Inst. 4 Previously, "cases."
8 Previously spelt, "enquiries."
to devise land may undoubtedly be considered a common-law right in America, the statute of 1540 having been passed before the settlement of the country, and applying from the beginning to all socage lands. All lands in the colonies were socage.
In most, if not all of the United States, the power to devise is expressly given and regulated by statute. As a rule, a person of full age and sound mind may dispose by will of all his property, except what is needed to pay his debts, or what is allowed as a homestead or otherwise given by law as privileged property to his wife and family. As to title by devise generally, see Jarman on Wills (Am. ed. by Perkins); Redfield on Wills; Redfield's Leading Cases on the Law of Wills; Cruise's Digest, tit. 38 (occupying the whole of vol. 6); 4 Kent, Lect. 68; 3 Washburn, ch. 6, pp. 421-465 (top); 2 Hilliard, ch. 90-98 inclusive; and latest and best on this subject, the treatment in Woerner, American Law of Administration, 2 vols., Boston, 1889.
An instrument may be partly a deed and partly a devise. If it passes a present interest, although the right to its possession and enjoyment may not accrue till some future time, it is a deed or contract; but if the instrument does not pass an interest or right till the death of the maker, it is a will or testamentary paper. (Burlington University v. Barrett, 22 Iowa, 60, with cases cited pp. 72, 73.)
(70) Corporations were excepted in these statutes to prevent the extension of gifts in mortmain, page 375.
The statutes of mortmain never having been regarded as a part of our common law, or re-enacted in terms, and there being no power of a corporation to devise or make a will of any kind, in the very nature of the case the only question that can arise with us is not of the right of the testator to give, but that of the corporation to take a devise. And this depends on the general statutes of the
state or the constitutive acts of the corporation. Most charters contain the power to take real estate requisite for the use of the corporation, or in cases where it is necessary to secure debts due it, etc. Some few have unlimited power to take it as an investment. A corporation may be formed under general incorporation acts for the purpose of buying and selling lands for profit, as well as for dealing in other property.
But it is conceived that the power of a corporation to take land by devise is not entirely free from question, where it is not given by positive law, and that it is going too far to say, as some of the books do, that they have the right at common law to take, hold, and dispose of real property for any purposes not inconsistent with the object of their creation. Like most questions of the limitation upon free disposal of land, this has attracted little attention during the century in which our national domain has seemed inexhaustible, and public opinion is but just awakened to it. The natural consequence will be legislative, if not judicial, restraints upon any ownership that tends toward monopoly.
The statutes of mortmain as they are commonly reckoned are the following: (1) Magna charta. 9 Hen. III. c. 36, A. D. 1225. (2) De religiosis. 7 Ed. I. stat. 2, A. D. 1279. (3) Recoveries of land by default. Westm. 2, or 13 Ed. I. c. 32, A. D. 1285. (4) Proviso in quia emptores. 18 Ed. I. c. 3, A. D. 1290. (5) What shall be mortmain (lands purchased to the use of religious houses, etc.). 15 Ric. II. c. 5, 1392. (6) Of superstitious uses. 23 Hen. VIII. c. 10, A. D. 1532.
(71) Upon this notion, that a devise affecting lands is merely a species of conveyance, page 378.
Even the making of a will does not take away the distinction between real and personal property, as to the passage of title. If a man deviseth, either by special name or generally, goods or chattels, real or personal,
and dieth, the devisee cannot take them without the assent of the executors. But when a man is seised of lands in fee and deviseth the same, in fee or tail, for life or for years, the devisee shall enter; for in that case the executor has no meddling therewith. And in the case of a devise by will of lands whereof the devisor is seised in fee, the freehold or interest in law is in the devisee before he enter, and in that case nothing (having regard to the estate or interest devised) descendeth to the heir. But if the heir of the devisor entereth and hold the devisee out, he may enter, as Littleton here saith (2 167) or have his writ, called Ex gravi querela. . . . . After an actual possession this writ lieth not, for then the devisee may have his ordinary remedy by the common law. (Co. Litt. 111 c.) Consistently with this doctrine it will be seen that in all the older books devise is treated quite apart from other matters relating to the will, and as a species of conveyance from the devisor directly to the devisee, with which the ecclesiastical courts, the proper forum for probate matters, had nothing to do. But the law does not cast the estate on the devisee as it does upon the heir, without reference to his own consent. The acceptance of the devisee will ordinarily be presumed, but he may disclaim it, and it will then go to the heir. (3 Washburn, ch. 6, pl. 43. And see cases collected in n. 1, p. 461.)
"The earliest definite juristic conception which was formed of an English will of lands, seems to have been that it operated as a declaration of the testator's intention, as to the use or beneficial interest in lands; as in fact a conveyance of the particular beneficial interest intended to be dealt with. Thus a will of land has always been regarded as a conveyance of a particular interest, coming into operation immediately upon the death of the testator, and not as creating a succession in the sense of Roman law. . . . . After the statute of
Hen. VIII. a will operated as a conveyance, dealing with the legal interest possessed by the testator at the date of the will, and intended to be disposed of, but coming into effect only at his death, and being of course subject to revocation at any time before his death." (Digby, Hist. of the Law of Real Property, pp. 301-303.)
(72) A devise affecting lands is merely a species of conveyance. . . . . Wherefore no after-purchased lands will pass under such devise, pages 378, 379.
This view of a devise was no doubt due in the first place to historical facts: especially to the desire to keep devises of land entirely free from the ecclesiastical jurisdiction over testamentary matters. It originated long before the statute of 32 Hen. VIII., c. 1, to which it has sometimes been ascribed. (Ld. Mansfield in Cowp. 90.) But it is now so completely obsolete, and wills of land and of chattels so generally identified, that both are regarded as speaking from the time of testator's death, and operating on all property, real or personal, then owned by him, even when this is not declared by statute, as it now is in most of the United States, and even in England. (Stat. 1 Vict. c. 26, 24.) After-acquired lands pass by a will, unless a contrary intention shall appear in the will itself.
It is not a real, even if apparent exception to this rule (that the will speaks from the date of death) that when the testator's ability or capacity to make a will is in question, it is with reference to the date when the will offered was actually executed, and not to the date of death that the proof must be directed. A will made in sound mind is not shaken by subsequent incapacity. A will made in a fit of lunacy is not validated by his subsequent death in sound mind. A will made under disability remains invalid though the disability be removed before death. (Girard v. City etc. 4 Rawle, 336, and cases cited.) Of course the law at the time of