where such a custom exists, there may also be a custom to bar the estate-tail, by a recovery suffered in the lord's court; but if no such custom appears of barring by recovery, the intail may be barred by surrender, or otherwise it would amount to a perpetuity. 2 Ves. 601. Yet in some manors the custom of barring by one mode, is co-existent with the custom of barring by the other. 2 Bl. Rep. 944. 373 CHAPTER XXIII. OF ALIENATION BY DEVISE. devise. THE last method of conveying real property is, by devise, Of alienation by 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. vises. It seems sufficiently clear, that, before the conquest, lands Effects of the were devisable by will (a). But, upon the introduction of doctrine of dethe military tenures, the restraint of devising lands naturally took place, as a branch of the feodal doctrine of non-alienation without the consent of the lord (b). And some have questioned whether this restraint (which we may trace even from the antient Germans (c)) 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 neighbours; since it rarely happens, *that the same man is heir to many others, though by [ *374 ] (a) Wright of Tenures, 172. (c) Tacit. de mor. Germ. c. 21. (b) See pag. 57. The feodal re see. art and management he may frequently become their deviThus the antient 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 accumulations of estates. But when Solon (d) 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 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 straint thereon. England since the conquest, no estate, greater than for term of years, could be disposed of by testament (e); except only in Kent (1), and in some antient burghs, and a few parti(e) 2 Inst. 7. (d) Plutarch. in vita Solon. (1) See ante, p. 84, note (14) to chapter 6. cnlar manors, where their Saxon immunities by special indulgence subsisted (f) (2). And though the feodal restraint on alienations *by deed vanished very early, yet this on wills [*375] continued for some centuries after: from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious (g). Besides, in devises there was wanting that general notoriety, and public designation of the successor, which in descents is apparent to the neighbourhood, and which the simplicity of the common law always required in every transfer and new acquisition of property. Uses were de visable until the But when ecclesiastical ingenuity had invented the doctrine of uses as a thing distinct from the land, uses began statute of uses, to be devised (3) very frequently (h), and the devisee of the which, by annexing the posuse could in Chancery compel its execution. For it is ob- session to the served by Gilbert (j), that, as the Popish clergy then gene- use, rendere rally sate in the court of Chancery, they considered that longer devismen are most liberal when they can enjoy their possessions able. 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 uses (i) 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 enacted, that all persons being seised in fee-simple (except feme-coverts (4), infants, ideots, and persons of nonsane But the statute 32 Hen. VIII. c. I., explained by the 34 Hen. VIII. c. 5, al memory) might by will and testament in writing devise to any other person, except to bodies corporate, two-thirds of lowed persons seised in feesimple (with differs from the civil and the canon law, (Samuel v. Wilkinson, 2 East, 558), coverture, prima facie, excludes a woman from the right of making a will. A writing, executed by a married woman, and stiled her will, is (subject to the qualifications of the general rule presently to be stated) a mere nullity. (Steadman v. Powell, 1 Addams, 60). And as it is of the very essence of a will, that it should remain constantly "ambulatory" up to the time of the testator's decease; (Matthews v. Warner, 4 Ves. 210. Hobson v. Blackburn, 1 Addams, 278. Balch v. Symes, 1 Turn. 92); it follows, that the will of a feme sole ceases to have any operation after she becomes coverte. (Doe v. Staple, 2 T. R. 695. Hodsden v. Lloyd, 2 Br. 544). And though it might once perhaps have been fairly inferred, that if a woman made a will before marriage, and survived her husband, the will, having been good in its commencement, ought to be considered as having been suspended only, not absolutely countermanded by the espousals, and revived by her becoming sui juris before it was to take effect; (Brett v. Rigden, Plowd. 343); yet it appears to have been long settled, that a woman's marriage is a complete revocation of her will. (Forse v. Himbling, 4 Rep. 61. Cotter v. Layer, 2 P. Wms. 624). But, of course, if after the death of her husband, a woman republishes a will made before her marriage, the will so republished must be as effectual to dispose of her estate as if it had been actually and originally made in and during her widowhood: (Long v. Aldred, 3 Addams, 51); and circumstances may be shewn amounting to a virtual republication, though no formal republication may have been made. (Braham v. Burchell, 3 Addams, 264). The incapacity of a feme coverte to make a testamentary disposition, though a general, is not an universal rule; thus, the right of disposition may be a necessary incident of separate property, or of the duties of a trust: or may reasonably be permitted where the husband is banished for life. (See ante, p. 293, with note (8) to chapter 19). It has also long been an established doctrine, that a wife may acquire the right of making a will by the special assent of her husband. (Marriot v. Kinsman, Cro. Car. 220. Eston v. Wood, Cro. Eliz. 27). If, indeed, a husband's consent that his wife should be at liberty to dispose of property by will, was only given after marriage, and rests merely in agreement between the parties themselves, the agreement is nudum pactum, and may be retracted at any time before assent given by the husband to the probate of such will. (Swinb. part 2, sect. 9). Lord Nottingham even said, that although the wife made the husband her executor, and he proved the will, still he would be no further bound than in honour to perform it. (Chiswell v. Blackwell, 2 Freem. 70). However, with due submission to this high authority, a further obligation should seem to arise from the oath, which is required from every executor before probate is granted to him, truly to perform the will, and pay all the legacies of the deceased. (Lindw. 177. Rex v. Raines, 1 Lord Raym. 363. Anonym. 1 Ventr. 365. Brook v. Turner, 2 Mod. 172). |