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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 [see note 70, page 5801; but now, by construction [376] of the 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; it being held that the statute of Elizabeth, which favours appointments to charities, supersedes and repeals all former statutes,1 and supplies all defects of assurances:m and therefore not only a devise to a corporation, but a devise by a copyhold tenant without surrendering 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 appointment.•*

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 handwriting of another person were allowed to be

k Ch. Prec. 272.

1 Gilb. Rep. 45. 1 P. Wms. 248. m Duke's charit. uses. 84.

n Moor. 890.

o 2 Vern. 453. Ch. Prec. 16. *Cited, 33 N. Y. 109.

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 similar is requisite for revoking a devise.9†

In the construction of this last statute, 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 [377] last will and testament," is a sufficient signing, without any name at the bottom; though the other is the safer way. It has also been determined, that though the witnesses must all see the testator sign, or at least acknowlege the signing, yet they may do it at different times. But they must

all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument. And, in one case determined by the court of king's-bench, the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses: for they would not allow any legatee, nor by consequence a creditor, where the legacies and p Dyer. 72. Cro. Eliz. 100.

q 3 Lev. 1.

r Freem. 486. 2 Ch. Cas. 109. Pr. Ch. 185.

s 1 P. Wms. 740.

t Stra. 1253.

8 Previously, "similar solemnity."

9 Ninth edition adds, "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: as likewise impliedly, by such a great and entire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child.q" [g Christopher v. Christopher, Saccb. 6 Jul. 1771. Spragge v. Stone, at the Cockpit, 27 Mar. 1773, by Wilmot, de Grey and Parker. See page 502.]

4 Previously, "a case determined about twenty years ago." *Cited, 6 Binn. 154.

+ Cited, 16 Serg. & R. 407. Contra, 1 Yeates, 91.

* Cited, 93 Mass. 53; 87 Am. Dec. 689. See 13 Ired. 261,

debts were charged on the real estate, to be a competent witness to the devise,* as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination however †alarmed many purchasors and creditors, and threatened to shake most of the titles in the kingdom, that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues (and these are the persons most likely to be present in the testator's last illness), and if in such case the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II. c. 6. which restored both the competency and the credit of such legatees, by declaring void all legacies given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of c editors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered, on a view of all the circumstances, by the court [878] and jury before whom such will shall be contested. And in a much later case" the testimony of three witnesses, who were creditors, was held to be sufficiently credible, though the land was charged with

u M. 31 Geo. II. 4 Bur. I. 430.

4 Previously, "as well as."
- Quoted, 106 Mass. 477.

t-t Quoted, 106 Mass. 477.

+ Cited, 106 Mass. 476; 2 Doug. (Mich.) 529.

the payment of debts; and the reasons given on the former determination were said to be insufficient.*

Another inconvenience was found to attend this new method of conveyance by devise; in that creditors by bond and other specialities, which affected the heir provided he had assets by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 & 4 W. & M. c. 14. hath provided, that all wills, and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple or having power to dispose by will, shall (as against such creditors only) be deemed to be fraudulent and void: and that such creditors may maintain their actions jointly against both the heir and the devisee.


A will of lands, made by the permission and under the control of these statutes, is considered by the courts of law not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject:† with this difference, that in other conveyances the actual subscription of the witnesses is not required by law, though it is prudent for them so to do, in order to assist their memory when living and to supply their evidence when dead; but in devises of lands such subscription is now absolutely necessary by statute, in order to identify a conveyance, which in it's nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance [see note 71, page 581] is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as W See pag. 307.

5 Previously, "adjudged."

* Cited, 3 Har. & McH. 531; 12 Gratt. 248.
+ Cited, 8 Leigh, 474.

were his at the time of executing and publishing his will.** Wherefore † no [379] after-purchased lands will pass under such devices [see note 72, page 583], unless, subsequent to the purchase or contract, the devisor republishes his will.†

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We have now considered the several species of common assurances, whereby a title to lands and tenements may be transferred and conveyed from one man to another. But, before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice, for the construction and exposition of them all. These are,

1. That the construction be favourable, and as near the minds and apparent intents of the parties, as the rules of law will admit. For the maxims of law are, that "verba intentioni debent inservire;" and "benigne interpretamur chartas propter simplicitatem laicorum." And therefore the construction must also be reasonable, and agreeable to common understanding."?

2. That quoties in verbis nulla est ambiguitas, ibi nulla exposito contra verba fienda est: but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui hæret in litera, hæret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converso. And another maxim of law is, that "mala grammatica non vitiat chartam; neither false English

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- Quoted, 14 Ga. 550; 6 Hill, 192; Busb. 347; 59 Am. Dec. 560. Cited, 4 Fla. 278; 8 Conn, 32; 11 Fla. 76; 35 Ind. 119; 2 Yeates, 397; 3 Yeates, 238; 6 Jones Eq. 378; 13 Gratt. 123; 94 N. C. 342.

- Quoted, 14 Ga. 550; 5 Watts & S. 114; Busb. 347; 59 Am. Dec. 560. Cited, 29 N. H. 498; 3 Yeates, 232.

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