tenant be

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." Admittances, however, upon surrender differ from admit- The heir is tances upon descent in this, that by surrender nothing is vested fore admitin cestuy que use, before admittance, no more than in voluntary tance. 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 can not 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; 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." 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 be defrauded of his fine. But to this we may reply in the words of Sir Edward Coke," "I assure myself, if it were in [372 | the election of the heir to be admitted or not to be admitted, he would be best contented without admittance; but the custom in 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

4 Rep., 27. 1 Rep., 140.

(23) 1 Per. & Dav., 37. And, after some fluctuation of decision, it was settled that the will of an heir would pass his copyhold, although he died before admittance; but the will of an unadmitted surrenderee or (which was the same case) devisee would not. (3 B. & Ad., 664; 5 Ad. & E., 321; 1 Myl. & K., 456, 649; 2 Id., 449; 2 Nev. & P., 195.)

(24) 1 Jac. & W., 611. 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

66

t 4 Rep., 23.

24

him. (2 T. R., 197.) But in a more
recent case the court granted a manda-
mus in favor of an heir. (3 B. & Cr.,
172; 4 Dowl. & R., 492.) If the lord
refuse to admit, the surrenderee can not
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, 632;
Scriv. on Cop., 405-6.) But the surren-
deror may bring an action for refusal to
admit. (3 Bulst., 217.)-[CHITTY.]
(See 4 Per. & D., 719.)

within a short time after notice given of their ancestor's decease."

CHAPTER XXIII.

OF ALIENATION BY DEVISE.

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; 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.

strained on

system

It seems sufficiently clear that, before the Conquest, lands Power to were devisable by will.a But, upon the introduction of the devise remilitary tenures, the restraint of devising lands naturally took introduction place, as a breach of the feodal doctrine of non-alienation with- of feudal out the consent of the lord. And some have questioned whether this restraint (which we may trace even from the ancient Germans) 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 neighbors; since it rarely happens that the same man is heir to many others, though by art and management he may frequent- [374] ly 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 Solond 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 a Wright, of Tenures, 172.

b See page 57.

Tacit., De Mor. Germ., c. 21. d Plutarch, in Vita Solon.

Kent, &c.,

from the restraint.

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.

However this be, we find that, by the common law of Enexcepted gland 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 indulgence subsisted. And [375] though the feodal restraint on 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. Besides, in devises there was wanting that general notoriety, and public designation of the successor, which in descents is apparent to the neighborhood, and which the simplicity of the common law always required in every transfer and new acquisition of property.

Devise of

the use.

But when ecclesiastical ingenuity had invented the doctrine of uses as a thing distinct from the land, uses began to be devised very frequently, 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 Usesj 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

(1) This is not quite correct; by by the aid of the Statute of Uses, and means of a limitation to such uses as the independently of any Statute of Wills, owner should by his will appoint, the in the same manner as copyholds were land might have been, and frequently made devisable by means of a surren is, devised, notwithstanding, or, rather, der.

Wills, 32

Hen. VIII.,

enacted that all persons being seized in fee-simple (except Statute of feme-coverts, infants, idiots, and persons of non-sane memory) Hen. VIII., might by will and testament in writing devise to any other c. 1, and 34 person, except to bodies corporate, two thirds of their lands, c. 5, allowed tenements, and hereditaments held in chivalry, and the whole devises of of those held in socage: which now, through the alteration of all lands extenures by the statute of Charles the Second, amounts to the holds. whole of their landed property, except their copyhold tene

ments.

cept copy

cepted in

may take

charitable

Corporations were excepted in these statutes, to prevent the Corporaextension of gifts in mortmain; but now, by construction of tions ex the statute 43 Eliz., c. 4, it is held that a devise to a corpora- Statute of tion for a charitable use is valid, as operating in the nature of Wills, but an appointment, rather than of a bequest. And, indeed, the piety devises for of the judges hath formerly carried them great lengths in sup-ases. porting such charitable uses ;k it being held that the statute of Elizabeth, which favors appointments to charities, supersedes and repeals all former statutes, and supplies all defects of assurances; 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.**

and attesta

Statute of

With regard to devises in general, experience soon showed Signature how difficult and hazardous a thing it is, even in matters of tion requirpublic utility, to depart from the rules of the common law; ed by the which are so nicely constructed and so artificially connected Frauds, 29 together, that the least breach in any one of them disorders for Car. II., c. 3, 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 good wills within the statute. To remedy which, the Statute of Frauds and Perjur- Statute of ies, 29 Car. II., c. 3, directs that all devises of lands and tene- Frauds, 29

• 2 Vern., 453. Ch. Prec., 16.
P Dyer, 72. Cro. Eliz., 100.
appointment of a married woman is ef
fectual against the heir at law; though
it depends only upon an agreement of
her husband before marriage, without
any conveyance of the estate to trustees.
(6 Bro., P. C., 156.)—[CHRISTIAN.]†

(2) Where lands are conveyed to trustees, a married woman may have the power of appointing the disposition of them after her death, which appointment must be executed like the will of a feme-sole, and will be subject to the same rules of construction. (2 Ves., 610; 1 Bro., 99.) And though the con- (3) But subject to the provisions of trary has been held, yet it has been de- the Mortmain Act, 9 Geo. II., c. 36. termined by the House of Lords that the (Ante, p. 273; 3 B. & Al., 149.)

* A devise to a corporation is void, unless the corporation be authorized by its charter or by statute to take by devise.-(2 R. S., 57, § 3. See, however, ante, vol. i., p. 477, n. *.) t See ante, p. 293, n.

Car. II., s. 3