their lands, tenements, and hereditaments, held in chivalry, some excepand the whole of those held in socage: which now, through tions) to devise And in a case where a husband, after marriage, gave a bond to a trustee for the purpose of securing to his wife permission to make a will, the bond was held to be a valid obligation; and it was declared, that the disposition made by the wife, in pursuance of the agreement, if not good as a will, ought to operate as an appointment. (Marriot v. Kinsman, Cro. Car. 219, which decision was recognized as sound law by Lord Hardwicke, in The Duke of Marlborough v. Lord Godolphin, 2 Ves. sen. 75). A fortiori, a bond of the purport above stated, if given before marriage, would indisputably be binding upon the husband himself; and it seems now to be. settled, would in equity estop the claims of the wife's heir in respect of her freehold estates, if she actually devised them during coverture. (Rippon v. Dawday, Ambl. 565). The decree made by Lord Camden in the case last cited, went to the point which Lord Hardwicke had previously thrown out for consideration, without being then called upon to determine it. In Peacock v. Monk, (2 Ves. sen. 191, 192), Lord Hardwicke put the question thus:Can a woman, by bare agreement before marriage, without doing any thing to alter the nature of her real estate, bar her heir? If so, his Lordship intimated, it must be on the principle that the agreement gave the wife a right to come into equity after marriage, to compel the husband to carry his engagement into execution, and to join with her in a fine to re-settle the estate; and then the consideration would be, whether her heir was not bound by the consequences of that agreement. The affirmative was resolved, as already stated, by Lord Camden, and, indeed, had been previously so determined by the House of Lords, in Wright v. Cadogan, (6 Br. P. C. 156, fol. edit.), if, as Lord Camden held, it makes no difference, as to the principle of determination in a court of equity, whether the wife's estate was legal or equitable. It is true, that a will made by a married woman, if relating to real estate of inheritance not conveyed in trust, though the woman may have been empowered by contract before marriage to make a will, cannot be supported in a court of law, to the prejudice of her heir: (George v. ——, Ambl. 628): but if the estate be limited to uses, with a power reserved to the feme, before marriage, to declare those uses, in this way her disposal of estates so limited may take effect, and be supported even by a court of common law. (Doe v. Staple, 2 T. R. 695). And, according to the doctrine of courts of equity, it is quite clear a woman may, antecedently to her marriage, reserve a power over a legal estate of which she is seised, so as to be enabled to dispose thereof during her coverture: in case of her making such a disposition, it is at once effective, provided the forms prescribed by the power have been complied with; and if in this respect the execution be defective, equity will interpose to effectuate it against the heir-at-law, whenever the appointment is shewn to have been made upon a good (even though not a valuable) consideration: (Wilkes v. Holmes, 9 Mod. 486. Shannon v. Bradstreet, 1 Sch. & Lef. 60. Cotter certain portions of their lands. 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 Court will not, in behalf of mere volunteers, aid a defective execution. (Wright v. Cadogan, 2 Eden, 252). These rules apply, equally, where the wife is only cestui que trust, the legal estate being outstanding. (Wright v. Englefield, Ambl. 473). It is to be observed, also, that (at least where the execution of the power is intended in favour of volunteers), if a power has been given to a married woman to appoint the uses of land by will, without more, the will must be intended such a one as is proper for the disposition of land; and consequently must be subscribed by three witnesses, in the presence of the testator. For, whether such an instrument be, strictly speaking, a will, or only in the nature of a will, it is within all the inconveniences which the statute of frauds intended to prevent. (Longford v. Eyre, 1 P. Wms. 741. Duff v. Dalzell, 1 Br. 146). And though, under a special provision to that effect, a donee of a power affecting real estate may, it seems, well execute the same by a will not attested according to the statute of frauds; (Bath & Montague's case, 3 Cha. Ca. 69); yet, no one can reserve a power to dispose of his or her own real estate, by will not executed according to the statute; (Goodhill v. Brigham, 1 Bos. & Pull. 198. Habergham v. Vincent, 2 Ves. jun. 226); though a collateral power to charge the real estate of the donor of the power by the will of the donee, may admit execution by a will executed by two witnesses only; the charge, in such case, being in fact imposed by the instrument creating the power, not by the will, which merely directs the appropriation of that which the owner has, previously, by deed inter vivos, put beyond his own control. (Jones v. Clough, 2 Ves. sen. 365). However, it is only a charge upon lands which can be called into operation by a testamentary instrument, not executed according to the provisions of the statute. If the object of the power be to give a right of disposing of the lands themselves, or the uses of the lands, that object can be carried into effect only by a will duly attested. (Duke of Marlborough v. Lord Godolphin, 2 Ves. sen. 76. Longford v. Eyre, 1 P. Wms. 741). It has been already intimated, that it has been matter of controversy, whether a disposition of property duly made by a feme coverte, to take place after her death, be, or be not, in technical strictness a will; or whether it ought only to be termed an instrument in writing. (Duke of Marlborough v. Lord Godolphin, 2 Ves. sen. 75. Southby v. Stonehouse, 2 Ves. sen. 612. Oke v. Heath, 1 Ves. sen. 139). The solution of this critical nicety, supposing the question still to remain in dubio, may, perhaps, seem not to be very imperiously called for; since it is allowed on all hands, that such a writing, if not a proper will, is at any rate of a testamentary nature; that it is liable to revocation and lapse: (Hurst v. Morgan, stated in 1 Hovenden's Supp. to Ves. jun. Rep. 21, whence great part of this note is extracted): and that, so far as Corporations were excepted in these statutes, to prevent Of devises to corporations, to charitable uses. the extension of gifts in mortmain (5); but now, by construction *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 (k) Ch. Prec. 272. it relates to personal property, it must receive probate in the ecclesiastical court; (Ross v. Ewer, 3 Atk. 160. Cothay v. Sydenham, 2 Br. 392. Stevens v. Bagwell, 15 Ves. 153); and that the court of Chancery will then give it all the operation of a will; (Cotter v. Layer, 2 P. Wms. 623. Henley v. Phillips, 2 Atk. 48); with this qualification, however, that where the testamentary paper is to operate as the execution of a power, (see Lloyd v. Abrahall, stated in 1 Hovenden's Supp. to Ves. jun. Rep. 379, 381), there, although the judgment of the ecclesiastical court is necessary to declare such instrument to be in the nature of a will, yet the court of Chancery afterwards examines the circumstances of attestation and signature, according to its own rules of evidence; (see post, the concluding addition to Mr. Christian's note to p. 378); and does not trust the ecclesiastical court with the conclusion, that because the writing is testamentary, it must in equity be deemed a good appointment. (Rich v. Cockell, 9 Ves. 376). a court of equity will not act upon any subsequent instrument, the object of which is to put that power under control in any respect whatever. (Parkes v. White, 11 Ves. 231, 234). But, though the marital right and interest in his wife's property, may be conclusively renounced by the husband, for himself; and he may have waved the claim which would invalidate the wife's disposition by will of that which, if not disposed of by his consent, must have devolved upon him, as her executor, if he proved the survivor; still, should the husband die before the wife, her will made during coverture will be void as against her next of kin, so far as it attempts to dispose of property consisting of choses en action, over which the husband never acquired power; the husband, by giving his consent to such will, could only relinquish his personal rights, not the rights of others; and if the wife, surviving, make no disposition of her property, of the description above alluded to, after the husband's death, she must, as to those particulars, be held to have died intestate. (Stevens v. Bagwell, 15 Ves. 156). (5) See ante, p. 271, with note (4) When an agreement has been entered into, by contract with the intended husband before marriage, that the wife should have free power to make a to chapter 18. will at any time during the coverture, The statute of frauds. 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 (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 (0) (6). 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 (7), 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 by writing; though the same may be also revoked by burn sonalty. 2 Atk. 37. 2 Bro. 58." [But, this must be understood with some distinction. A term, not in gross, but vested in trustees to attend the inheritance, so follows the nature of the latter, that, if the owner makes a general devise of the land by a will not so attested as to pass the inheritance, not even the trust of the term will pass. (Whitchurch v. Whitchurch, 2 P. Wms. 238, S. C. Gilb. Eq. Rep. 171). Also, even as to terms in gross, though a testator, being possessed of such, may transmit them by the same unsolemn kind of will as he might any other personalty; yet, he cannot create them by will, with out observing all the forms essential to a devise of real estate; because the interest in right of which the testator creates the term is real estate, and creating the term is a partial devise of it. (Mr. Hargrave's note (3) to Co. Litt. 111 b). ecuted with the solemnities required by the statute; and, in support of this opinion, he refers to 9 Mod. 127, and 2 Collect. Jurid. 276.-ED.] Mr. Christian adds, that "where the testator is a trustee for the benefit of others, he may devise those lands, or the legal estate, by his will; but the trust estates will not pass by general words, as, all my lands or estates: to pass a trust estate the intention of the testator must be expressly shewn. 6 Ves. jun. 577." [The case cited by Mr. Christian merely proves, that a trust estate will not pass under a general residuary disposition, where it can be collected that the testator only intended to give the devisee property which he could enjoy beneficially, as his own. Lord Eldon, (in the subsequent case of Lord Braybroke v. Inskip, 8 Ves. 435), explains that to be the principle upon which he decided the case referred to by Mr. Christian. It is true, however, that Lord Loughborough (in the earlier case of the Attorney-General v. Buller, 5 Ves. 340), said it was then the understanding, that general words would not pass trust estates, unless there was an apparent intention that they should pass; but he added, the most convenient rule would be the reverse. And the reverse seems now to be fully established. It appears to be quite settled by the later cases, that under a general devise, estates held by the devisor in trust will pass, unless, from the context of the will, or from a disposition not consistent with a limited right, and the nature of trust property, it SS [Mr. Sugden (in the concluding part of the 2nd section of the 9th chapter of his Treat. on Vend. & Purch.) observes, that a term for years attendant on the inheritance, whether by express declaration, or by implication, is governed by the same rules to which the inheritance itself is subject. Therefore, such a term cannot pass by a will not executed according to the statute of frauds. (Tiffin v. Tiffin, 2 Freem. 66. Villiers v. Villiers, 2 Atk. 72. Goodright v. Sales, 2 Wils. 331). But, Mr. Sugden conceives there are good grounds for holding, that where a term attends the inheritance merely by operation of law, the owner may expressly bequeath it by a will not ex VOL. II. |