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where such a custom exists, there may would amount to a perpetuity. 2 Ves. also be a custom to bar the estate-tail, 601, Yet in some manors the custom by a recovery suffered in the lord's of barring by one mode, is co-existent court; but if no such custom appears with the custom of barring by the other. of barring by recovery, the intail may 2 Bl. Rep. 944. be barred by surrender, or otherwise it

373

CHAPTER XXIII.

OF ALIENATION BY DEVISE.

devise.

vises.

The last method of conveying real property is, by devise, of alienation by 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; 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 Effects of the were devisable by will (a). But, upon the introduction of doctrine of dethe 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 (6). 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; since it rarely happens, *that the same man is heir to many others, though by [ *374 ]

(a) Wright of Tenures, 172.

(6) See pag. 57. (c) Tacit, de mor. Germ. c. 21,

see.

art and management he may frequently become their devi

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 accumulations 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 of 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, whose welfare depends on the number of moderate fortunes

engaged in the extension of trade. The feodal re

However this be, we find that, by the common law of straint thereon. England since the conquest, no estate, greater than for term

of years, could be disposed of by testament (e); except only in Kent (1), and in some antient burghs, and a few parti(d) Plutarch, in vita Solon.

(e) 2 Inst. 7.

(1) See ante, p. 84, note (14) to chapter 6.

cnlar manors, where their Saxon immunities by special indulgence subsisted (f)(2). And though the feodal restraint on alienations *by deed vanished very early, yet this on wills [ *375 ) 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 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 doc- Uses were detrine of uses as a thing distinct from the land, uses began statute of uses, to be devised (3) very frequently (h), and the devisee of the which, by an

nexing the posuse could in Chancery compel its execution. For it is ob- session to the served by Gilbert (1), that, as the Popish clergy then gene- use, rendered rally sate in the court of Chancery, they considered that longer devis

able. 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 (i) 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 But the statute enacted, that all persons being seised in fee-simple (except 32 Hen. VIII.

c. I., explained feme-coverts (4), infants, ideots, and persons of nonsane by the 34 Hen.

VIII. c. 5, al(f) Litt. s. 167. 1 Inst. 111.

(j) On devises, 7. (8) Glanv. I. 7, c. 1.

(0) 27 Hen. VIII. c. 10. See Dyer, (h) Plowd. 414.

143.

(2) And for the devisees of such (3) See ante, p. 329, with note (37) tenements the writ ex gravi quereld lay, to chapter 20. to have the devise executed. (Fitzh, (4) According to our municipal code, N. B. 198).

which in this respect, as in many others,

lowed persons seised in feesimple (with

memory) might by will and testament in writing devise to any other person, except to bodies corporate, two-thirds of

differs from the civil and the canon law, shewn amounting to a virtual republi-
(Samuel v. Wilkinson, 2 East, 558), cation, though no formal republication
coverture, prima facie, excludes a wo-' may have been made. (Braham v. Bur-
man from the right of making a will. chell, 3 Addams, 264).
A writing, executed by a married wo- The incapacity of a feme coverte to
man, and stiled her will, is (subject to make a testamentary disposition, though
the qualifications of the general rule a general, is not an universal rule;
presently to be stated) a mere nullity. thus, the right of disposition may be a
(Steadman v. Powell, 1 Addams, 60). necessary incident of separate proper-
And as it is of the very essence of a ty, or of the duties of a trust: or may
will, that it should remain constantly reasonably be permitted where the hus-
“ambulatory” up to the time of the tes- band is banished for life. (See ante, p.
tator's decease; (Matthews v. Warner, 293, with note (8) to chapter 19). It
4 Ves. 210. Hobson v. Blackburn, 1 has also long been an established doc-
Addams, 278. Balch v. Symes, 1 Turn. trine, that a wife may acquire the right
92); it follows, that the will of a feme of making a will by the special assent
sole ceases to have any operation after of her husband. (Marriot v. Kinsman,
she becomes coverte. (Doe v. Staple, 2 Cro. Car. 220. Eston v. Wood, Cro.
T. R. 695. Hodsden v. Lloyd, 2 Br. Eliz. 27). If, indeed, a husband's con-
544). And though it might once per- sent that his wife should be at liberty
haps have been fairly inferred, that if to dispose of property by will, was only
a woman made a will before marriage, given after marriage, and rests merely
and survived her husband, the will, in agreement between the parties them-
having been good in its commencement, selves, the agreement is nudum pactum,
ought to be considered as having been and may be retracted at any time be-
suspended only, not absolutely coun- fore assent given by the husband to the
termanded by the espousals, and re- probate of such will. (Swinb. part 2,
vived by her becoming sui juris before sect. 9). Lord Nottingham even said,
it was to take effect; (Brett v. Rigden, that although the wife made the hus-
Plowd. 343); yet it appears to have band her exécutor, and he proved the
been long settled, that a woman's mar- will, still he would be no further bound
riage is

complete revocation of her than in honour to perform it. (Chiswell will. (Forse v. Himbling, 4 Rep. 61. v. Blackwell, 2 Freem. 70). However, Cotter v. Layer, 2 P. Wms. 624). But, with due submission to this high authoof course, if after the death of her hus- rity, a further obligation should seem band, a woman republishes a will made to arise from the oath, which is requirbefore her marriage, the will so repub- ed from every executor before probate lished must be as effectual to dispose is granted to him, truly to perform the of her estate as if it had been actually will, and pay all the legacies of the de. and originally made in and during her ceased. (Lindw. 177. Rex v. Raines, widowhood: (Long v. Aldred, 3 Ad- 1 Lord Raym. 363. Anonym. 1 Ventr. dams, 51); and circumstances may be 365. Brook v. Turner, 2 Mod. 172).

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