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 re military 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 Germansc) 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. c Tacit., De Mor. Germ., c. 21. d Plutarch, in Vita Solon. Ként, &c., from the re-. straint. 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.f 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 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 e 2 Inst., 7. Litt., § 167. 1 Inst., 111. [Cro. h Plowd., 414. i On Devises, 7. j 27 Hen. VIII., c 10. See Dyer, 143. (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. 2 Hen. VIII., Hen. VIII. c. 5, allowed enacted that all persons being seized in fee-simple (except Statute of feme-coverts, infants, idiots, and persons of non-sane memory) Wills, 32 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, 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 exthe 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- 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,1 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. o** and attesta. Frauds, 20 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 statute of 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- Frauds, 29 Ch. Prec., 272. 1 Gilb., Rep., 45. 1 P. Wms., 248. m Duke's Charit. Uses, 84. (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 contrary has been held, yet it has been determined by the House of Lords that the n Moor, 890. • 2 Vern., 453. Ch. Prec., 16. (3) But subject to the provisions of * 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 : ments shall not only be in writing, but signed by the testator, or some other person in his presence, and by his express direction; and be subscribed, in his presence, by three or four credRevocation ible witnesses. And a solemnity nearly similar is requisite for 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.q° of wills. a Christopher v. Christopher, Scacch., 6 Jul., 1771. Spragge v. Stone, at the (4) Copyholds were not within the statute of Hen. VIII., or the Statute of Frauds, and passed by any will that was sufficient to pass personal property. (2 P. Wms., 258; 2 Atk., 37; 2 B. C. C.,. 58; 7 East, 322.) The execution of all wills and codicils, and revoking instruments and testamentary appointments, whatever may be their subject-matter, is now, with some exceptions in favor of mariners and others abroad, placed on the same footing; that is to say, they are all required to be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction; and such signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who must at test and subscribe the will in the pres ence of the testator; but no particular form of attestation is necessary. (Stat. 7 Will. IV. & 1 Vict., c. 26, s. 9.) The former statutes required the witnesses to be credible, but the recent act ex Cock-pit, 27 Mar., 1773, by Wilmot, pressly declares that the incompetency of a witness to be admitted to prove the execution shall not invalidate the will.. (Sect. 14. See 1 Jarm:, Wills, 102; infra, p. 379, n.)* (5) See 2 W. Bl., 1043; 3 B. & Ald., 489; 6 Ad. & El., 209; 8 Id., 1. (6) See 8 Ad. & El., 14. A will can now only be revoked by a separate writing, or an interlineation, obliteration, or alteration of the will itself, executed and attested as a will is required to be executed and attested; or by an actual burning, tearing, or other destroying of the substance of the will itself, with intention to revoke (which intent it is for the Ecclesiastical Court, or in case of a devise of land, &c., for the jury, to gather from the evidence); or, lastly, by mar riage of the testator, which, under any circumstances, is an absolute revocation of all prior wills.t * 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.-(26 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. S., 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 witness es. 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," 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 a 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 r 3 Lev., 1. Freem., 486. 3 Ch. Cas., 109. Pr. Ch., 185. (7) I conceive that writing the name at the beginning would never be considered a signing according to the statute, unless the whole will was written by the testator himself; for whatever is written by a stranger after the name of the testator affords no evidence of the testator's assent to it, if the subscription of his name in his own hand is not subjoined. [CHRISTIAN.] See Dougl., t 1 P. Wms., 740. 241; 1 Meriv., 503. The will is now (8) And this notwithstanding the wit- an.-(2 Id., 64, § 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 encum brance.-(2 Id., 65, § 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.) II., c. 6, witnesses |