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By statute 3 & 4 Another inconvenience was found to attend this new W. & M. c. 14, creditors by bond method of conveyance by devise; in that creditors by bond or other special- and other specialties, which affected the heir, provided he ties, may recover against the had assets by descent, were now defrauded of their securidevises, as well ties, not having the same remedy against the devisee of their as the heir, of tenants in fee- debtor. To obviate which, the statute 3 & 4 W. & M. c. simple.

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 t.

roborated by other evidence. (Kinle-
side v. Harrison, 2 Phillim. 499, and
see Burrowes v. Lock, 10 Ves. 474,

with the additions to Mr. Christian's note to the next paragraph).


+ Mr. Christian observes, that " case; it is not a devise to any one: but devise to raise a portion for younger it is a declaration of intention, upon children according to an agreement which a court of equity will fasten; before marriage, and a devise for the and whether the descent be broken or payment of debts, are exceptions in the not, the charge will constitute equitastatute, sect. 4. But it has been held, ble assets: (Shiphard v. Lutwidge, 8 that the payment of the debt must be Ves. 30. Kidney v. Coussmaker, 12 provided for effectually in order to Ves. 154. Foly's case, 2 Freem, 49. bring it within the exception. 1 Bro. Hungerford v. Earl, Ibid. p. 121. 311. 2 Bro. 614." {The judgment Hickson v. Witham, Ibid. case 12 in delivered in the case last cited, is more Append. to 2nd edit.): all creditors, fully reported in 2 Cox, 170.--Ed.] therefore, of every description, must

“ Lord Eldon, however, has declared come in pari passu, without any prethat it is an uniform rule, that a pro- ference of debts by specialty over those vision by will, effectual in law or equi- by simple contract. (Newton v. Bennet, ty for payment of creditors, is not frau- 1 Br. 137. Clay v. Willis, 1 Barn. & dulent within the statute, but is equi- Cress. 372). And where the testator table assets. 7 Ves. 323."

has directed payment of his debts to [It is not necessary, therefore, that be paid out of the “rents and profits” the descent of the estate should be (if no words liiniting the devise, exbroken; it is enough if it appear, upon pressly or by implication, to annual the face of the will, that the testator profits be used, (Ivy v. Gilbert, 2 P. intended to break it. A mere charge Wms. 19. Mills v. Banks, 3 P. Wms. is not indced a legal interest, in such 7), the estate may be sold. (Lingard

A will of lands, made by the permission and under the The nature and control of these statutes, is considered by the courts of law operation of a

devise of lands.

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v. Earl of Derby, 1 Br. 311. Ridout v. a mere technical rule. The design of Earl of Plymouth, 2 Atk. 105. Bootle this provision of the statute was to prev. Blundell, 19 Ves. 528. S. C. 1 Me- vent wills from being set up which riv. 233. Anonym. 1 Vern. 104. Allan ought not; and it often operates siv. Backhouse, 1 Ves. & Bea. 75). It lently, but forcibly, by intestacy. (Hind, has also been declared that, devisees in son v. Kersey, 4 Burn's Eccl. L. 91. trust for payment of debts need not wait Bootle v. Blundell, 19 Ves. 500. S. C. for a decree of a court of equity for rais- Coop. 138): but when the best endeaing the money; but, without that, may vours have been used to discover, and fairly raise it by sale or mortgage, (un- bring forward an attesting witness; if less where it is directed to be raised by a those endeavours are fruitless, the witperception of rents and profits); and the ness must be considered as dead. (Anocourt of Chancery, if the matter be af- nym. Godbolt, 326. M*Kenire v. Fraterwards brought before it, will support ser, 9 Ves. 6. James v. Parnell, 1 Turn. the transaction. (Earl of Bath v. Earl of & Russ. 417). And it is not only when Bradford, 2 Ves. sen. 590).—ED.] a witness is abroad, (Wood v. Stane, 8

“ The execution of a will in a court Pr. 615), that an exception to the geof law is proved by calling one of the neral rule of complete examination is subscribing witnesses, who proves that reasonable: that rule will, in like manthe testator executed his will by sign- ner, be relaxed, if, owing to any other ing and sealing in his presence, and in cause, one of the witnesses cannot be the presence of the other two subscribe made amenable to the jurisdiction of ing witnesses. But if a bill is filed to the court: (Fry v. Wood, 1 Atk. 445): establish a will, all the subscribing wit- this last circumstance, indeed, seems to nesses living must be examined, unless afford the most substantial reason for a they are abroad, then their hand-writing departure from the general rule; since, must be proved, as if they were dead. notwithstanding a witness may be 5 Ves. jun. 411."

abroad, a commission may, if necessa[See the note to Lord Carrington v. ry, (though the proceeding is inconvePayne, in 1 Hovenden's Suppl. to Ves. nient,) be sent out to examine him; jun. Rep. p. 517, where this subject is and an account may be decreed in the discussed more at length, and the lead- mean time, before the return of the ing authorities collected. It is there commission, although there may not be observed, that the court of Chancery proper evidence upon which the will deems an heir entitled to evidence of can be declared formally, and finally his ancestor's sanity at the time of the proved. (Fitzherbert v. Fitzherbert, 4 execution of his will, (see the last note Br. 430. Grayson v. Atkinson, 2 Ves. (10) ), from every one of those whom sen. 460. 'Wood v. Stane, 8 Pr. 615. the statute has placed round a testator Binfield v. Lambert, 1 Dick. 337). at such a time as guards against fraud. [Of course, if one of the witnesses be(Harris v. Ingledew, 3 P. Wms. 93. come insane, he must be considered as Wallis v. Hodgson, 2 Atk. 56. Abrams if he were dead. (Bernett v. Taylor, 9 v. Winshup, 1 Russ. 527). This is not Ves. 382).-ED.]


not so much in the nature of a testament, as of a conveyance declaring 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 subscription is now absolutely necessary, by statute, in order to identify a conveyance which in its nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will (ix) (11). Wherefore no after-purchased (w) See pag. 307, 308.

(2) 1 P. Wms. 575. 11 Mod. 148.

(11) Every devise of real estate is disseisin, in the time intervening bedeemed specific; (Hill v. Cock, 1 Ves. tween the date of the will and the tes& Bea. 175. Milnes v. Slater, 8 Ves. tator's death, and yet, (the disseisin 305); and being considered in the na. being purged by re-entry), the will ture of an appointment of particular may stand good, without re-publication. lands to the devisee, it has been held (Goodtitle v. Otway, 1 Bos. & Pull. a necessary consequence of this princi- 603, citing thc leading case of Brunker ple, (whether the principle itself be v. Cook, 11 Mod. 128). And even wise or not), that no man can legally though a testator was disseised, at the devise lands to which he has not a le. time of making his will, of lands theregal title at the date of the appointment by devised, still, if he be remitted beand of his death; nor can such a de- fore his death, it should seem that the vise be held good in equity, where the devise would be good; for, if re-entry, equitable title at least was not in the according to the language of all the devisor at the first of those periods, cases and text books, has relation to all and the same estate, whether clothed intents and purposes to the time of the or not with the legal title, continued in disseisin, and the disseisee when remithim up to his death: (Harwood v. ted, is held to have had possession ab Goodright, Cowp. 90. Howe v. Earl initio, (Monkton v. Pashley, 2 Lord Dartmouth, 7 Ves. 147. Rose v. Co. Raym. 977), then, a will of lands, notnynghame, 11 Ves. 554. Brudenell v. withstanding it was executed when the Boughton, 2 Atk. 272): with this qua- devisor had only jus ad rem, not in re, lification however :--it is possible for may operate as a good devise. (Alt.the estate to have been devested by General v. Vigor, 8 Ves. 282). That,

lands will pass under such devise (y), unless, subsequent to the purchase or contract (2), the devisor republishes his will (a)(12) +

(y) Moor. 255. 11 Mod. 127. () i Ch. Cas. 39.2 Ch. Cas. 144.

(a) Salk. 238.

as a general rule, subject to some qua- may pass under a general devise conlifications there stated, a devise becomes tained in the will: but, where the will inoperative if the testator conveys the contains a particular description of the devised lands away after he has made lands thereby devised, no subsequent his will, notwithstanding he may take will can apply to lands purchased after back the very same estate in those the making of the will; for, the parlands, see ante, note (9) to this chapter. ticular description given in the will must

(12) A codicil duly executed, and defeat any more extended effect of the attested by three witnesses, if such co. re-publication. (Heylin v. Heylin, Cowp. dicil clearly refer to, and adopt, a pre. 132). Other circumstances besides those vious unattested will, amounts to a re- of locality, in the description of the execution and re-publication of that lands devised, are sufficient to control will: and a devise of land by the un- the effect and operation of a codicil: attested will, which, if it stood alone, thus, for instance, a codicil confirming would be inoperative as to real estate, the beneficial interests given in the teswill be made good by the codicil. (De tator's lands by his will, but appointing Bathe v. Lord Fingal, 16 Ves. 168). new trustees to whom he devises the Whatever objections this doctrine of legal estate in his “said” lands, may constructive re-publication may be open exclude the ordinary operation of a reto, it is a point now clearly established, publication, and prevent lands purchasthat, as a general rule, a codicil duly ed after the date of the will from passattested does amount to such re-publi- ing by such devise. (Bowes v. Bowes, cation. (Hulme v. Heygate, 1 Meriv. as determined on appeal in Dom. Proc. 294). It is equally clear, that a re- 2 Bos. & Pull. 506). But, where no publication of a will makes the will special intention to the contrary apspeak as of the time of such re-publica- pears, the effect of a codicil, per se, and tion; (Long v. Aldred, 3 Addams, 51); independently of any intention, is, to and, consequently, that lands purchased bring down the will to the date of the in the interval between the first mak- codicil, making the will speak as of that ing of the will and its re-publication, date. (Goodtitle v. Meredith, 2 Mau.

+ Mr. Christian observes, that "if lapsed and void, and the heirs of A. can an estate is given to A. and his heirs, claim no benefit from the devise. (White or to A. and the heirs of his body, or v. White, 6 T. R. 518. 1 Bro. 219. any interest whatever to A., and A. Doug. 330)." dies before the testator, the devise is

The general We have now considered the several species of common rules for the construction of assurances, whereby a title to lands and tenements may be deeds and wills. transferred and conveyed from one man to another. But,

before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice for the construction and

exposition of them all. These are, 1. It must be fa- 1. That the construction be favourable, and as near the vourable and reasonable, and minds and apparent intents of the parties, as the rules of according to law will admit (6). For the maxims of law are, that “verba common understanding, and intentioni debent inservire;" and“ benigne interpretamur the intent of the chartas propter simplicitatem laicorum.And therefore parties.

the construction must also be reasonable, and agreeable to

common understanding (c). 2. Where there 2. That quoties in verbis nulla est ambiguitas, ibi nulla is no ambiguity in the language, expositio contra verba fienda est (d): but that where the no intendment

intention is clear, too minute a stress be not laid on the can be made contrary thereto; strict and precise signification of words ; nam qui hæret in but, where the litera, hæret in cortice. Therefore, by a grant of a remainintention is clear, the strict sense (b) And. 60.

(c) 1 Bulstr. 175. Hob. 304. (d) 2 Saund. 157.

& Sel. 14. Pigott v. Waller, 7 Ves. v. Lord Monck, 1 Ball. & Beat. 306.
123). And though the codicil relate Izard v. Hurst, 2 Freem. 224. Drink-
(as it did in the case of Pigott v. Waller, water v. Falconer, 2 Ves. sen. 626).
just cited) only to personalty; yet, if it As lands which, at the time, have
be executed by three witnesses, it re- been contracted for by, but not actually
publishes a previous devise of land. conveyed to, a testator, will pass under
(Rogers v. Browning & Pittis, 1 Ad- a general devise of his estates; (Capel
dams, 37). It should be observed, that V. Girdler, 9 Ves. 510. Broome v.
a republication in general terms, where- Monck, 10 Ves. 605); it follows, from
by a man ratifies and confirms his will, the principles already stated, that any
ratifies and confirms it with every codi- lands for which the testator has entered
cil which has been added to it; and into a valid contract before he re-pub-
when by any codicil the will has been lishes his will, must, unless a special in-
in part revoked, the mere republication tent to the contrary appear, pass under
of the will does not set up again any his said will. (Gibson v. Lord Montfort,
gift which has been so revoked. (Cros. 1 Ves. sen. 494).
bie v. M Douall, 4 Ves. 616. Monck

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