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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. Kent, &c.,

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.

But when ecclesiastical ingenuity had invented the doctrine the use.

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, 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 Usesi 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 * 2 Inst., 7.

h Plowd., 414. | Litt., Ø 167. Inst., 111. [Cro. i On Devises, 7. Car., 561. 1 Lev., 79. 1 Sid., 77, 135. j 27 Hen. VIII., c. 10. See Dyer, Robins. on Gavelk., b. 2, c. 5.]

6 Glanv., l. 7, c. 1.

Devise of


(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 copy holds were land might have been, and frequently made devisable by ineans of a surren is, devised, notwithstanding, or, rather, der.

Hen. VIII,

tions ex

enacted that all persons being seized in fee-simple (except Statute of feme-coverts," infants, idiots, and persons of non-sane memory) Hen. VIIL, 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 tenements.

Corporations were excepted in these statutes, to prevent the Corporaextension of gifts in mortmain; but now, by construction of

cepted in 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 maltaket an appointment, rather than of a bequest. And, indeed, the piety devises for of the judges hath formerly carried them great lengths in sup- uses. 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 ;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.o**

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, og 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.P 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- Car. 11., 5.3 * Ch. Prec., 272.

* Moor, 890. I Gilb., Rep., 45. 1 P. Wms., 248. • 2 Vern., 453. Ch. Prec., 16. m Duke's Charit. Uses, 84.

p Dyer, 72. Cro. Eliz., 100.

and attesta

(2) Where lands are conveyed to trus, appointment of a married woman is eftees, a married woman may have the fectual against the heir at law; though power of appointing the disposition of it depends only upon an agreement of them after her death, which appoint- her husband before marriage, without Inent must be executed like the will of any conveyance of the estate to trustees. a feme-sole, and will be subject to the (6 Bro., P. C., 156.)-[Christian. ]t 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. 8., 57, § 3. See, however, ante, vol. i., p. 477, n. *.)

See ante, p. 293, n. *

ments shall not only be in writing, but signed by the testator, or some other person in his presence, and by his express direc

tion; and be subscribed, in his presence, by three or four credRevocation ible witnesses. And a solemnity nearly similar is requisite for of wills.

revoking a devise by writing; though the same may be also revoked by burning, canceling, 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. 9°

9 Christopher v. Christopher, Scacch., Cock-pit, 27 Mar., 1773, by Wilmot, 6 Jul., 1771. Spragge v. Stone, at the De Grey, and Parker. See page 502.

(4) Copyholds were not within the pressly declares that the incompetency statute of Hen. VIII., or the Statute of of a witness to be admitted to prove the Frauds, and passed by any will that was execution shall not invalidate the will. sufficient to pass personal property. (2 (Sect. 14. See 1 Jarm., Wills, 102; inP. Wms., 258; 2 Atk., 37 ; 2 B. 0. C., fra, p. 379, n.)* 58; 7 East, 322.) The execution of all wills and codicils, and revoking instru- (5) See 2 W. Bl., 1043; 3 B. & Ald., ments and testamentary appointments, 489 ; 6 Ad. & El., 209; 8 Id., 1. whatever may be their subject-matter, is now, with some exceptions in favor of (6) See 8 Ad. & El., 14. A will can mariners and others abroad, placed on now only be revoked by a separate the same footing; that is to say, they are writing, or an interlineation, obliteration, all required to be signed at the foot or or alteration of the will itself, executed end thereof by the testator, or by some and attested as a will is required to be other person in his presence, and by his executed and attested; or by an actual direction; and such signature must be burning, tearing, or other destroying of made or acknowledged by the testator the substance of the will itself, with inin the presence of two or more witnesses tention to revoke (which intent it is for present at the same time, who must at the Ecclesiastical Court, or in case of a test and subscribe the will in the pres- devise of land, &c.; for the jury, to gather ence of the testator ; but no particular from the evidence); or, lastly, by marform of attestation is necessary. (Stat. riage of the testator, which, under any ? Will. IV. & 1 Vict., c. 26, s. 9.) The circumstances, is an absolute revocation former statutes required the witnesses of all prior wills. to be credible, but the recent act ex

* In New York, a will, whether of real or personal property, to be valid, must be subscribed at the foot or end thereof by the testator, or by some person by his direction, in the presence of at least two attesting witnesses, or the subscription must be acknowledged by the testator to the two attesting witnesses; he, at the time of subscription or acknowledgment, declaring the instrument to be his last will and testament. The witnesses must sign their names at the end of the will, at the request of the testator, and write opposite their names the places of their residence. The omission to do so does not invalidate the will; it only subjects them to a penalty:-(2 R. S., 63, \ 40, 41.) These provisions do not apply to a nuncupative will of personal property made by a soldier in service, or by a mariner at sea; such will is valid, though not in writing.—(2 Id., 60, ♡ 22.) As to the declaration of the testator, it has been held that no particular form of words is necessary, but that there must be some communication indicating the intention of the testator to give effect to the instrument as his will.—(25 Wendell, 325.)

† In New York, a will in writing may be revoked or altered; but if so, it must be by writing, executed with the same formalities with which the will is required to be executed. So it may be burned, canceled, or otherwise destroyed with the intent of revocation, by the testator, or by his direction or consent, proved by two witnesses.—(2 R. 8., 64, \ 42.) The will of an unmarried man is revoked by marriage and the birth of a child, unless provision for the child is made in the will; while marriage alone destroys the will of an unmarried wom

of witnesses.

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 last will [377] 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

, acknowledge 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,u the judges were extremely strict in regard to the credibility, or, rather, the competency, of the wit- Competency nesses; for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be 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 purchasers and cred- Stat. 25 Geo. itors, and threatened to shake most of the titles in the kingdom

avoiding that depended on devises by will. For, if the will was attest- legacies to ed 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

II., c. 6,


I 3 Lev., 1. * Freem., 486. 3 Ch. Cas., 109. Pr. Ch., 185.

+ 1 P. Wms., 740.
u Stra., 1253.

(7) I conceive that writing the name 241; 1 Meriv., 503. The will is now at the beginning would never be con- required to be signed at the foot or end sidered a signing according to the stat- thereof. ute, unless the whole will was written by the testator himself; for whatever is (8) And this notwithstanding the witwritten by a stranger after the name of nesses had executed a release of the gift the testator affords no evidence of the before the trial; an exception to the ortestator's assent to if the subscription dinary rules of evidence, founded on very of his name in his own hand is not good and obvious reasons. (4 Burn, subjoined.—[Christian.] See Dougl., Eccl. L., 27; 2 Ves. Jun., 636.)

an.-(2 Id., 64, Ø 43, 44.) A conveyance subsequent to a will, altering, but not wholly divesting, the estate or interest of the testator, does not revoke the will; nor does the birth of a child after the making of a will; nor the entering into a covenant to convey the premises devised; nor the creating a charge or encumbrance.—(2 Id., 65, Ø 45-49.) Nor does the destruction or revocation of a second will revive the first, unless such be declared to be the intention of the testator, or he republish his first will after the destruction or revocation of the second.—(2 Id., 66, 53.)

Creditors competent witnesses.

evmpetency and the credit of such legatees, by declaring void a l legacies given to witnesses, and thereby removing all possibreity of their interest affecting their testimony.*

The same Stutute likewise established the competency of creditors, by di

ructing the testimony of all such creditors to be admitted, but | 378 leaving their credit (like that of all other witnesses) to be con

sidered, on a view of all the circumstances, by the court 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 the payment of debts; and the reasons given on

the former determination were said to be insufficient. Devise of Another inconvenience was found to attend this new method lands void, as against of conveyance by devise; in that creditors by bond and other Specialty specialties, 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."0+ In what re

A will of lands, made by the permission and under the conspect a de

trol of these statutes, is considered by the courts of law not so conveyance much in the nature of a testament, as of a conveyance declar. differ.

ing 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,w 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

vise and

M. 31 Geo. II. 4 Bur., 1, 430.

w See pages 307, 308.

(9) But a devise to the husband of a portions for younger children in pursuwitness was held not to be within this ance of marriage contracts. This act is statute, and the attestation was there. now repealed, and the payment of simfore bad. (5 B. & Al., 589). This de- ple contract as well as specialty debts fect is now remedied. (Ante, p. 376, out of the real estate of the deceased n. ; infra. p. 379, n.)

debtor has been further facilitated by

the statutes 11 Geo. IV. & 1 Will. IV., (10) The statute excepts devises for c. 47 ; 3 & 4 Will. IV., c. 104; and 2 payment of debts, or for the raising of & 3 Vict., c. 60.

* In New York, a legacy to a witness (without whose testimony the will can not be proved) is void, and the witness may be compelled to prove the will; but if he would have been entitled to any share of the estate in case the will was not established, such share is saved to him, and he is authorized to recover it from the devisees or legatees.—(2 R. S., 65, ♡ 50, 51.)

+ The same result is effected in New York by an enactment that deviscos, as well as heirs, shall be liable for the debts of a testator, whether arising by simple contract or by specialty, to the extent of the real estate received by them.(2 R S., 452, \ 32.)

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