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surrender or the death of his tenant, so no interest passes out of him by the act of admittance. And therefore neither in the one case nor the other, is any respect had to the quantity or quality of the lord's estate in the manor. For whether he be tenant in fee or for years, whether he be in possession by right or by wrong, it is not material; since the admittances made by him shall not be impeached on account of his title, because they are judicial, or rather ministerial acts, which every lord in possession is bound to perform (s).

Admittances, however, upon surrender, differ from admittances upon descent in this, that by surrender nothing is vested in cestuy que use before admittance, no more than in voluntary admittances; but upon descent the heir is tenant by copy immediately upon the death of his ancestor : not indeed to all intents and purposes, for he cannot be sworn on the homage nor maintain an action in the lord's court as tenant; but to most intents the law taketh notice of him as of a perfect tenant of the land instantly upon the death of his ancestor, especially where he is concerned with any stranger. He may enter into the land before admittance; may take the profits; may punish any trespass done upon the ground (t); nay, upon satisfying the lord for his fine due upon the descent, may surrender into the hands of the lord to whatever use he pleases (12). For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to entitle him to his fine, and not so much necessary for the strengthening and completing the heir's title. Hence indeed an observation might arise, that if the benefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come

in and be admitted to his copyhold in court; and so the lord may [*372] be defrauded of his fine. But to this we may reply in the words

of sir Edward Coke (u), " I assure myself, if it were in the election of the heir to be admitted or not to be admitted, he would be best contented without admittance; but the custom of every manor is in this point compulsory. For, either upon pain of forfeiture of their copyhold, or of incurring some great penalty, the heirs of copyholders are enforced, in every manor, to come into court and be admitted according to the custom, within a short time after notice given of their ancestor's decease (13)."

(s) 4 Rep. 27. 1 Rep. 140. (t) 4 Rep. 23.

(12) It has been held that the heir having as complete a title without admittance as with it, against all the world but the lord, the court of king's bench will not grant a mandamus to compel the lord to admit him. 2 T. R. 197. But in a more recent case the court granted a mandamus in favour of an heir. 3 Bar. & Cres. 172. 4 Dowl. & R. 492. S. C. If the lord refuse to admit, the surrenderee cannot have an action on the case against him, but may compel him in chancery, Cro. Jac. 368. or by mandamus, 2 T. R. 484. And the lord has no right to the fine till after admittance. Ib. 1 Watk. on Cop. 1st ed. 263. 287. 1 East R. 632. Scriv. on Cop. 405, 6. But the sur

(u) Copyh. 41.

renderor may bring an action for refusal to admit. 3 Bulst. 217.

(13) But a person claiming to be admitted as heir, need not tender himself for admittance at the lord's court, if he has been refused by the steward out of court. 2 M. & S. 87. A lord of the manor cannot seize a copyhold estate as forfeited pro defectu tenentis without a custom; and where he did so, even after three proclamations for the heir to come in, and granted it in fee to another, it was held an ab solute seizure, not being warranted by cus tom, and could not be set up by the lord as a seizure quousque. 3 T. R. 162.

CHAPTER XXIII.

OF ALIENATION BY DEVISE (1).

THE last method of conveying real property, is, by devise, or disposition contained in a man's last will and testament. 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; bút 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 will (a). But, upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feodal doctrine of non-alienation without the consent of the lord (b). And some have questioned whether this restraint (which we may trace even from the ancient 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

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or powerful for his neighbours; since it rarely happens, that the [374] same man is heir to many others, though by art and management he may frequently become their devisee. Thus the ancient 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 (d) made a slight alteration, by permitting them (though only on failure of issue) to dispose of their lands by testament, and devise away estates from the collateral heir, this soon produced an excess or wealth in some, and of poverty in others which, by a natural progression, first produced popular tumults and dissensions; and these 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 seem 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,

(a) Wright of tenures, 172. (b) See page 57.

(1) See in general, Com. Dig. Devise; Chancery, 3 A. 1, &c.; 3 Y. 1, &c.; Condition, A. 4; Bac. Ab. Wills and Testaments;

(c) Tocit. de mor. Germ. c. 21.

(d) Plutarch. in vita Solon.

Vin. Ab. Devise; Cruise Dig. tit Devise; 2
Saund index, titles, Devise, Devisee, Wills;
Preston on Estates, title, Wills.

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 testament (e); except only in Kent, and in some ancient burghs, and a few particular manors, where their Saxon immunities by special in

dulgence subsisted (f). And though the feodal restraint on [*375] alienations by deed vanished very early, yet this on wills continued for some centuries after: from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious (g). Besides, in devises there was wanting that general notoriety, and public designation of the successor, which in descent 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 (h), and the devisee of the use could in chancery compel its execution. For it is observed by Gilbert (i), that, as the popish clergy then generally sat in the court of chancery, they considered that men are most 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 intercede for their happiness in another world. But, when the statute of uses (j) had annexed the possession to the use, these uses, being now the very land itself, became no longer devisable: 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 seised in fee-simple (2) (except feme-coverts (3), infants, idiots, and persons of non-sane memory) (4) 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 tene

ments.

Corporations were excepted in these statutes, to prevent the ex[*376] tension of gifts in mortmain; but now, by construction *of the

(e) 2 Inst. 7.

(f) Litt. 167. Inst. 111 (g) Glanv. 1. 7, c. 1.

(2) As copyholders and customary tenants, whose interest passes by surrender, are not seised in fee-simple, and do not hold their lands in socage, it follows that they cannot make a devise under this statute, nor need the requisites of it be observed, 7 East, 299 & 322. unless the terms of the surrender require the will to be signed. Id. ibid. 2 P. W. 258. 2 Atk. 37.

(3) A feme-covert, were lands are conveyed to trustees, may have the power of appointing the disposition of lands held in trust for her after her death, which appointment must be executed like the will of a feme-sole. 2 Ves. 610. 1 Bro. 99. And 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 depends only upon

(h) Plowd. 414.
(1) On devises, 7.

(j) 27 Hen. VIII. c. 10. See Dyer. 143.

an agreement of her husband before marriage, without any conveyance of he estate to trustees. 2 Ves. Sen. 191. 6 Bro. P. C. 156. 2 Eden. 239. 1 Bro. P. C. 486. S. C. Amb. 565. 2 Roper's Hus. & Wife, 180. See the valuable note to 1 Hovenden's Supplement to Ves. Jun. Rep. 21.

(4) In New-York there are the same excep tions of persons incapable of devising: every estate and interest in real property descendi. ble to heirs, may be devised; and not merely two thirds, but the whole of it. A devise to an alien not specially authorized by law to hold real estate, or to a corporation not expressly authorized by its charter or by statute to take by devise, is void. 2 R. S. 56, &c. See, as to devises to corporations, 9 Cowen, 437.

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 supporting such charitable uses (k); it being held that the statute of Elizabeth, which favours appointments to charities, supersedes and repeals 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 surrending to the use of his will (n), 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 appointment (o) (5).

With regard to devises in general, experience soon 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 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 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 solemnity nearly similiar is requisite for revoking a devise 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 (6): as likewise impliedly, by such great and entire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child (q) (7)

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(5) See p. 273, 274, and note 5 ib.: the alterations caused by 9 Geo. II. c. 36.

(6) With respect to revocations in general, see 1 Saund. 277 to 279. d. Where a testator being angry with one of his devisees tore his will into four pieces, but was prevented from further tearing it, partly by force and partly by entreaty, and afterwards becoming calm expressed his satisfaction that no material part was injured, and that the will was no worse, the court held that it had been properly left to the jury to say whether the testator had perfected his intention of cancelling the will, or whether he was stopped in medio; and the jury having found the latter, the court refused to disturb the verdict. 3 B. & A. 489. But where the testator threw his will into the fire out of which it was snatched by a by-stander and preserved without the testator's knowledge, the will was held to be cancelled. 2 Bla. R. 1043.

By the Revised Statutes of New-York, the destruction, cancelling, or revocation of a second will does not revive the first, unless the

(p) Dyer, 72. Cro. Eliz. 100.

(9) Christopher v. Christopher, Schacch. 6 Jul. 1771. Spragge v. Stone, at the Cockpit, 27 Mar. 1773, by Wilmot, de Grey and Parker. See pag. 502.

intention to revive it appear by the terms of revocation, or unless such first will be afterwards republished. 2 R. 3. 66. § 53.

(7) Marriage and the birth of a posthumous child amount to a revocation. 5 T. R. 49. But the subsequent birth of a child, where the will is made after marriage, is not of itself sufficient. 5 T. R. 51. n. 4 M. & S. 10. 5 Ves. J. 656. In a case where a testator had devised his real estate to a woman with whom he cohabited, and to her children, he afterwards married her and had children by her, it was held these circumstances did not amount to a revocation of the will. Lord Ellenborough in his judgment says, "The doctrine of implied or presumptive revocation seems to stand upon a better foundation of reason, as it is put by lord Kenyon, in Doe v. Lancashire, 5 T. R. 58. namely, as being 'a tacit condition annexed to the will when made, that it should not take effect, if there should be a total change in the situation of the testator's family,' than on the ground of any presumed alteration of intention; which alteration of in

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In the construction of this last statute (9), it has been adjudged that the testator's name, written with his own hand, at the beginning of

whole of his estate; and if the issue or the wife survives the testator, unless such issue has been provided for by some settlement, or by the will, or so mentioned therein as to show an intention not to make provision for it. No other evidence to rebut the presumption of revocation can be received. Id. § 43. It is expedient always to execute the will according to the old as well as the new law, as there may be lands affected by the will in other states, where the old law prevails.

(9) As to what shall be deemed a sufficient compliance with this act, see 1 Fonblanque on Equity, 193. Phil. on Evid. chap. 8. sect. 8. It is observable, that the statute requires that the will shall be in writing, but it should seem it would suffice if in print, and signed by the testator. Semble, 2 M. & S. 286.

tention should seem in legal reasoning not very material, unless it be considered as sufficient to found a presumption in fact, that an actual revocation has followed thereupon. But, upon whatever grounds this rule of revocation may be supposed to stand, it is on all hands allowed to apply only in cases where the wife and children, the new objects of duty, are wholly unprovided for, and where there is an entire disposition of the whole estate to their exclusion and prejudice. This, however, cannot be said to be the case, where the same persons, who, after the making of the will, stand in the legal relation of wife and child ren, were before specifically contemplated and provided for by the testator, though under a different character and denomination." 2 East, 530. See 5 Ves. Jun. 656. Where two wills are found in the possession of the testa- It next requires, that the will shall be signed tor, to invalidate the first the second should by the testator, or some other person in his expressly revoke, or be clearly incompatible presence and by his express direction. The with the first devise, for no subsequent devise first case in which this question was raised will revoke a prior one, unless it apply to the was Lemayne v. Stanley, 3 Lev. 1. 1 Eq. same subject matter. 1P. Wms. 345. 7 Bro. Ca. Ab. 403, in which case it was determined, P. C. 344. Cowper, 87. A devise of real that if the testator write the whole of the will property is not revoked by the bankruptcy of with his own hand, though he does not subthe devisor. The master of the rolls said, scribe his name, but seals and publishes it, "from the moment the debts are paid, the as- and three witnesses subscribe their names in signees are mere trustees for the bankrupt, his presence, it is a good will; for his name and can be called to convey to him." In this being written in the will it is a sufficient signcase all the debts were paid, and the bankrupt ing, and the statute does not direct whether it had been dead some time. 14 Ves. 580. See shall be at the top, bottom, &c. But from the also as to implied or constructive revocations, case of Right lessee of Cater v. Price, Dougl. 3 Mod. 218. Salk, 592. 3 Mod. 203. 2 East, 241, it may be inferred that the above decision 488. Carth. 81. 4 Burr. 2512. 7 Ves. Jun. will apply only to those cases, where the testa348. Cowp. 812. 4 East, 419. 2 N. R. 491. and tor appears to have considered such sufficient post, "Title by Testament," 489, et seq.*(8). signing to support his will, and not to those (8) In New-York a will of either real or per- where the testator appears to have intended to sonal property must be subscribed by the testa- sign the instrument in form: and Mr. Christor at the end of the will: and such subscription tian, in his edition of Blackstone, 2 vol. 377. must be made or acknowledged in the presence n. 5, properly observes, that writing the name of two attesting witnesses, to whom the testator at the beginning would never be considered must at the same time declare the same to be a signing according to the statute, unless the his will, and each of whom must sign his name whole will was written by the testator himas a witness at the end of the will at the re- self; for whatever is written by a stranger afquest of the testator. These solemnities are ter the name of the testator affords no evidence essential to the validity of the will: but the of the testator's assent to it, if the subscripwitnesses must also write their residences op- tion of his name in his own hand is not sub. posite to their names; and any one who signs joined; and see Powell on Devises, 63. In the testator's name by his direction, must sign the case of Right v. Price, the will was prehis own name also as a witness: the omission pared in five sheets, and a seal affixed to the so to do will cause each witness to forfeit 50 last, and the form of attestation written upon dollars, but will not affect the will. 2 R. S. it, and the will was read over to the testator. 63. 40, 41. A will duly executed cannot be who set his mark to the two first sheets, and revoked, except by another instrument execut- attempted to set it to the third, but being uned with the same formalities, or by being able, from the weakness of his hand, he said burnt, torn, cancelled, obliterated, or destroy he could not do it, but that it was his will; ed by the testator himself, with the intent of and on the following day, being asked if herevoking it, or by another person in his pre- would sign his will, he said he would, and at sence, by his direction and consent: and when tempted to sign the two remaining sheets buɛ so done by another, the direction and consent was not able. Lord Mansfield observed, that of the testator, and the injury or destruction, "the testator, when he signed the two first must be proved by two witnesses. Id. 42. sheets, had an intention of signing the others, Marriage by a woman revokes (not suspends) but was not able; he therefore did not mean her will: Id. 44: marriage by a man and the signature of the two first as the signature the birth of a child, revokes his will made be- of the whole will; there never was a signafore marriage, if such will had disposed of the ture of the whole, see also 4 Ves. Jun. 197. 9

See also 1 Hovenden on frauds, 296, &c.

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