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visable until the

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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 acqui. sition 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 (,), that, as the Popish clergy then gene- the land no rally sate in the court of Chancery, they considered that longer devismen are most liberal when they can enjoy their possessions able. 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.

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

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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 memory) might by will and testament in writing devise to seised in feesimple (with

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, primâ 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 a 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 autho-
of 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 requir-
before 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 1. Turner, 2 Mod. 172).

their lands, tenements, and hereditaments, held in chivalry, some excepand the whole of those held in socage: which now, through tions) to devise

certain portions of their lands.

And in a case where a husband, after consequences of that agreement. The marriage, gave a bond to a trustee for affirmative was resolved, as already the purpose of securing to his wife per- stated, by Lord Camden, and, indeed, mission to make a will, the bond was had been previously so determined by held to be a valid obligation; and it the House of Lords, in Wright v. Cawas declared, that the disposition made dogan, (6 Br. P. C. 156, fol. edit.), if, by the wife, in pursuance of the agree- as Lord Camden held, it makes no differment, if not good as a will, ought to ence, as to the principle of determinaoperate as an appointment. (Marriottion in a court of equity, whether the v. Kinsman, Cro. Car. 219, which de- wife's estate was legal or equitable. It cision was recognized as sound law is true, that a will made by a married by Lord Hardwicke, in The Duke of woman, if relating to real estate of in. Marlborough v. Lord Godolphin, 2 Ves. heritance not conveyed in trust, though sen. 75).

the woman may have been empowered A fortiori, a bond of the purport above by contract before marriage to make a stated, if given before marriage, would will, cannot be supported in a court indisputably be binding upon the hus- of law, to the prejudice of her heir: band himself; and it seems now to be. (George v. —, Ambl. 628): but if settled, would in equity estup the claims the estate be limited to uses, with a of the wife's heir in respect of her free- power reserved to the feme, before marhold estates, if she actually devised riage, to declare those uses, in this way them during coverture. (Rippon v. Daw- her disposal of estates so limited may day, Ambl. 565). The decree made take effect, and be supported even by by Lord Camden in the case last cited, a court of common law. (Doe v. Staple, went to the point which Lord Hard- 2 T. R. 695). And, according to the wicke had previously thrown out for doctrine of courts of equity, it is quite consideration, without being then called clear a woman may, antecedently to upon to deterinine it. In Peacock v. her marriage, reserve a power over a Monk, (2 Ves. sen. 191, 192), Lord legal estate of which she is seised, so Hardwicke put the question thus:- as to be enabled to dispose thereof durCan a woman, by bare agreement be- ing her coverture: in case of her makfore marriage, without doing any thing ing such a disposition, it is at once to alter the nature of her real estate, effective, provided the forms prescribed bar her heir? If so, his Lordship inti- by the power have been complied with; mated, it must be on the principle that and if in this respect the execution be the agreement gave the wife a right to defective, equity will interpose to effeccome into equity after marriage, to tuate it against the heir-at-law, whencompel the husband to carry his en- ever the appointment is shewn to have gagement into execution, and to join been made upon a good (even though with her in a fine to re-settle the estate; not a valuable) consideration: (Wilkes and then the consideration would be, v. Holmes, 9 Mod. 486. Shannon v. whether her heir was not bound by the Bradstreet, 1 Sch. & Lef. 60. Cotier

the alteration of tenures by the statute of Charles the second, amounts to the whole of their landed property, except their copyhold tenements.

v. Layer, 2 P. Wms. 684); but the case, being in fact imposed by the inCourt will not, in behalf of mere volun- strument creating the power, not by teers, aid a defective execution. (Wright the will, which merely directs the apv. Cadogan, 2 Eden, 252). These rules propriation of that which the owner apply, equally, where the wife is only has, previously, by deed inter vivos, cestui que trust, the legal estate being put beyond his own control. (Jones v. outstanding. (Wright v. Englefield, Clough, 2 Ves. sen. 365). However, Ambl. 473). It is to be observed, also, it is only a charge upon lands which that (at least where the execution of can be called into operation by a testa. the power is intended in favour of vo- mentary instrument, not executed aclunteers), if a power has been given to cording to the provisions of the statute. a married woman to appoint the uses If the object of the power be to give a of land by will, without more, the will right of disposing of the lands themmust be intended such a one as is pro- selves, or the uses of the lands, that per for the disposition of land; and object can be carried into effect only consequently must be subscribed by by a will duly attested. (Duke of Marlthree witnesses, in the presence of the borough v. Lord Godolphin, 2 Ves. sen. testator. For, whether such an instru- 76. Longford v. Eyre, IP. Wms. 741). ment be, strictly speaking, a will, or It has been already intimated, that only in the nature of a will, it is with- it has been matter of controversy, in all the inconveniences which the sta- whether a disposition of property duly tute of frauds intended to prevent. made by a feme coverte, to take place (Longford v. Eyre, 1P. Wms. 741. after her death, be, or be not, in techDuff v. Dalzell, 1 Br. 146). And though, nical strictness a will; or whether it under a special provision to that effect, ought only to be termed an instrument a donee of a power affecting real estate in writing. (Duke of Marlborough v. may, it seems, well execute the same Lord Godolphin, 2 Ves. sen. 75. Southby a will not attested according to the by v. Stonehouse, 2 Ves. sen. 612. Oke statute of frauds; (Bath & Montague's v. Heath, 1 Ves, sen. 139). The solucase, 3 Cha. Ca. 69); yet, no one can tion of this critical nicety, supposing reserve a power to dispose of his or her the question still to remain in dubio, may, own real estate, by will not executed perhaps, seem not to be very imperiaccording to the statute; (Goodhill v. ously called for; since it is allowed on Brigham, 1 Bos. & Pull. 198. Ha- all hands, that such a writing, if not a bergham v. Vincent, 2 Ves. jun. 226); proper will, is at any rate of a testathough a collateral power to chargementary nature; that it is liable to rethe real estate of the donor of the pow- vocation and lapse: (Hurst v. Morgan, er by the will of the donee, may admit stated in 1 Hovenden's Supp. to Ves. execution by a will executed by two jun. Rep. 21, whence great part of this witnesses only; the charge, in such note is extracted): and that, so far as

a

Corporations were excepted in these statutes, to prevent of devises to the extension of gifts in mortmain (5); but now, by con- charitable uses.

corporations, to struction *of the statute 43 Eliz. c. 4, it is held, that a de- [ *376 ] vise 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

a

(k) Ch. Prec. 272.

it relates to personal property, it must a court of equity will not act upon any receive probate in the ecclesiastical subsequent instrument, the object of court; (Ross v. Ewer, 3 Atk. 160. which is to put that power under conCothay v. Sydenham, 2 Br. 392. Ste- trol in any respect whatever. (Parkes vens 5. Bagwell, 15 Ves. 153); and v. White, 11 Ves. 231, 234). But, that the court of Chancery will then though the marital right and interest give it all the operation of a will; (Cot- in his wife's property, may be conter v. Layer, 2 P. Wms. 623. Henley clusively renounced by the husband, v. Phillips, 2 Atk. 48); with this qua- for himself; and he may have waved lification, however, that where the tes the claim which would invalidate the tamentary paper is to operate as the wife's disposition by will of that which, execution of a power, (see Lloyd v. if not disposed of by his consent, must Abrahall, stated in 1 Hovenden's Supp. have devolved upon him, as her executo Ves. jun. Rep. 379, 381), there, tor, if he proved the survivor; still, although the judgment of the ecclesi- should the husband die before the wife, astical court is necessary to declare her will made during coverture will be such instrument to be in the nature of void as against her next of kin, so far a will, yet the court of Chancery after- as it attempts to dispose of property wards examines the circumstances of consisting of choses en action, over attestation and signature, according to which the husband never acquired its own rules of evidence; (see post, the power; the husband, by giving his concluding addition to Mr. Christian's consent to such will, could only renote to p. 378); and does not trust the linquish his personal rights, not the ecclesiastical court with the conclusion, rights of others; and if the wife, that because the writing is testamentary, surviving, make no disposition of her it must in equity be deemed a good ap- property, of the description above alpointment. (Rich v. Cockell, 9 Ves. luded to, after the husband's death, she 376).

must, as to those particulars, be held to When an agreement has been en- have died intestate. (Stevens v. Bagtered into, by contract with the intend- well, 15 Ves. 156). ed husband before marriage, that the (5) See ante, p. 271, with note (4) wife should have free power to make a to chapter 18. will at any time during the coverture,

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