materially from the former methods, particularly that of recovery, which the law did not allow to be transacted, except during the terms (c); for, as it was at those stated times only that the Court of Common Pleas was open, some of the proceedings in the fictitious suit were necessarily confined to the same periods; from which circumstance it frequently resulted that the death of parties would intervene to prevent the intended recovery, and defeat for ever the purposes which it was designed to effectuate (d).

(c) See Index to vol. III. in tit. "Terms."

(d) The reader desirous of further information with respect to the Fine

and Recovery Act, will find an ample and luminous disquisition upon it in the first volume of Mr. Hayes's Introduction to Conveyancing.

CHAPTER XX.

OF DEVISES.

THE modes of assurance hitherto examined, all operate or come into force from the time of the execution of the instrument (a); but there is another (and it is the last conveyance of an ordinary kind, to which we shall have occasion to refer), which is founded on a different principle, namely, a devise by last will and testament (b). For a will is of no force until after the death of the disposing party, but during his life is (in the language of the law) merely ambulatory, that is, of an unsettled and fluctuating character." Omne testamentum morte consummatum est, et voluntas testatoris est ambulatoria usque ad mortem” (c).

A will or testament are terms generally used without distinction, to express the instrument by which a man makes voluntary disposition of his property, after his death. Testaments are said, both by Justinian (d) and Sir Edward Coke (e), to be so called [because they are testatio mentis; an etymon which seems to savour too much of conceit, it being plainly a substantive derived from the verb testari, in like manner as juramentum, incrementum, and others, from other verbs. The definition of the old Roman lawyers is much better than their etymology; "voluntatis nostræ justa sententia, de eo quod quis

(a) Shelford on Wills, 5.

(b) The term conveyances is sometimes applied to voluntary alienations inter vivos exclusively, and so as not to include wills. But it is also

properly used, in the larger sense
assigned to it in the present work.
(c) Co. Litt. 112.
(d) Inst. 2, 10.

(e) Co. Litt. 112 b, 322 b.

[post mortem suam fieri velit" (f); which may be thus rendered into English, the legal declaration of a man's intentions, which he wills to be performed after his death. It is called sententia to denote the circumspection and prudence with which it is supposed to be made; it is voluntatis nostræ sententia, because its efficacy depends on its declaring the testator's intention, whence in England it is emphatically styled his will; it is justa sententia, that is, drawn, attested, and published, with all due solemnities and forms of law; it is de eo quod quis post mortem suam fieri velit, because it is of no force until after the death of the testator (g).] While defining a will, we may also take occasion to explain the term codicil, which is derived from the Latin codicillus (importing a little book or writing), and is an instrument made subsequently to the original will, by which its dispositions are explained or altered (h). It is subject, in general, to the same remarks as the original instrument itself, of which indeed it is considered as forming a part (i); so that what may be laid down as law relating to a will, may be taken generally as applicable also to all codicils thereto annexed (k).

With respect to the principle on which a disposition by will is allowed, [we have more than once observed, that when property came to be vested in individuals by the right of occupancy, it became necessary, for the peace of society, that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it; which introduced the doctrine and practice of alienation. But these precautions would be very short and imperfect if they were confined to the life only of the occupier; for then upon his death all his property would again become common, and create an infinite variety of strife and confusion. The law of very

(ƒ) Ff. 28, 1, 1.
(g) 2 Bl. Com. 500.

(h) Ibid.

(i) Ibid.

(k) In the new Statute of Wills, 7 Will. 4 & 1 Vict. c. 26, the term "will" is to be taken as extending to a codicil also (sect. 1).

[many societies has therefore given to the proprietor a right of continuing his property, after his death, in such persons as he shall name (1).

Testaments are of very great antiquity. We find them in use among the antient Hebrews; though the example usually given (m), of Abraham's complaining that, unless he had some children of his body, his steward Eliezer of Damascus, would be his heir (n),—will be hardly thought quite conclusive to show that he had made him so by will. And indeed a learned writer has adduced this very pas-. sage to prove that in the patriarchal age, on failure of children or kindred, the servants born under their master's roof succeeded to the inheritance as heirs at law (o). But -to omit what Eusebius and others have related of Noah's testament made in writing, and witnessed under his seal, whereby he disposed of the whole world (p)—it is apprehended that a much more authentic instance of the early use of testaments may be found in the sacred writings (q), wherein Jacob bequeaths to his son Joseph a portion of his inheritance, double to that of his brethren: which will we find carried into execution many hundred years afterwards, when the posterity of Joseph were divided into two distinct tribes (those of Ephraim and Manasseh), and had two several inheritances assigned them; whereas the descendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance. Solon was the first legislator that introduced wills into Athens (r), but in many other parts of Greece they were totally discountenanced (s). In Rome they were unknown until the laws of the Twelve Tables were compiled, which first gave the right of bequeathing (t): and among the Northern

(1) Puff. L. N. lib. 4, c. 10. (m) Barbeyr. Puff. 4, 10, 4; Godolph. Orph. Leg. 1,1; (et vide sup. p. 167.)

(n) Genesis, c. 15.

(0) Taylor, Elem. Civ. Law, 517. (p) Seld. de Succ. Eb. c. 24.

(q) Genesis, c. 48.

(r) Plutarch in Vita Solon. (s) Pott. Antiq. 1. 4, c. 15; Hermann's Antiq. s. 20.

(t) Inst. 2, 22, 1. See Vinn. lib. 2, t. 10.

[nations, particularly among the Germans (u), testaments were not received into use. And this variety may serve to evince that the right of making wills and disposing of property after death, is merely a creature of the civil state (x); which has permitted it in some countries, and denied it in others. And even where it is permitted by law, it is subjected to different formalities and restrictions in almost every nation under heaven.]

In this country, both real and personal estate have long been capable of transmission by will,-the latter, indeed, from time immemorial; and a recent statute (7 Will. IV. & 1 Vict. c. 26), to which we shall soon have occasion more particularly to refer, has now confirmed and further regulated this power, and placed it, for the future, on a new basis. As regards personal estate, however, and chattels real, (which are considered as personalty,) and also as relates to copyholds, it would be premature to consider fully, in this place, the law of testamentary disposition (y); and we shall confine our present inquiries, for the most part, to the nature of that right as it affects estates of freehold duration and tenure; or, as it is commonly expressed, the law of devises.

To obtain a clear idea of this subject, it will be desirable to consider under separate heads:-I. The power of devise itself, to what person it belongs, and to what estates and interest it applies. II. The solemnities with which the will containing a devise must be executed, and how it may be revoked or revived. III. The rules of construction to which devises are subject. IV. Their operation in conveying or limiting real estate.

I. As to the power of devising, [it seems sufficiently clear that, before the Conquest, lands were devisable by will (z).