[But upon the introduction of the military tenures, the restraint of devising lands naturally took place as a branch of the feudal doctrine of non-alienation without consent of the lord.] So that [by the common law of England, after the Conquest, no estate greater than for term of years could be disposed of by testament (b),-except only in Kent and in some antient boroughs, and a few particular manors, where their Saxon immunities by special indulgence subsisted (c). And though the feudal restraint on alienation 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 (d). 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 any transfer and new acquisition of property. But when ecclesiastical ingenuity had invented the doctrine of uses as a thing distinct] from the legal estate (e), [uses began to be devised very frequently (ƒ); and the devisce of the use could, in Chancery, compel its execution. For it is observed by Gilbert (g), 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 by the effect of the statute 27 Hen. VIII. c. 10, these uses afterwards became legal estate, which was not devisable; and this [might have occasioned (b) 2 Inst. 7. (c) Litt. s. 167; Co. Litt. 111. Vide Rob. Gavel. 235. (d) Glan. lib. 7, c. 1. (e) The expression of Blackstone (vol. ii. p. 373) is, "a thing distinct [a great revolution in the law of devises (h), had not the Statute of Wills been made about five years after-viz. 32 Hen. VIII. c. 1 (explained by 34 & 35 Hen. VIII. c. 5), ---which enacted, that all persons being seised in fee simple (except feme coverts, infants, idiots, and persons of nonsane memory,) might by will and testament in writing devise to any other person, (except to bodies corporate,) two-thirds of their lands tenements and hereditaments held in chivalry, and the whole of those held in socage ;] which afterwards, [through the alteration of tenures by the statute of Charles the second, amounted to the whole of their landed property, except their copyhold.] A devise under these statutes took effect, not only upon legal, but upon equitable estate; which indeed will pass under any form of conveyance applicable to the former species of interest. The statutes did not, however, apply to the chattels of the testator, whether consisting of terms of years in land, or of chattels personal, for these might pass by will before; as we shall have occasion to show more particularly in a subsequent part of the work (i). And even with respect to a freehold interest, a devise under these statutes was inoperative, unless it belonged to the testator at the time of executing the will. So that lands acquired after the date of the devise, were incapable of passing under it; and if the testator was desirous of including them in his testamentary dispositions, a new will or codicil, or a re-execution of the existing will, was required for the purpose (k). It may also be remarked, as to the persons capable of becoming devisees, that the statutes made an express exception of corporations, which was done to prevent the exten (h) See Butler and Baker's case, 3 Rep. 25; Arthur v. Bokenham, 11 Mod. 148; Wyndham v. Chetwynd, Burr. 420. (i) Vide post, bk. 11. pt. 11. c. vII.; 2 Bl. Com. 374. (k) 2 Bl. Com. 378. See Arthur v. Bokenham, ubi supra; Langford v. Pitt, 2 P. Wms. 629; Marston v. Roe, 8 Ad. & El. 14. But afteracquired personal estate has been always capable of passing under a will already made. sion of gifts in mortmain (1). Afterwards, indeed, it was held, that a devise to a corporation for a charitable use was valid, as operating in the nature of an appointment, rather than a bequest (m). But we have had occasion in another place (n) to advert to the statute 9 Geo. II. c. 36, by which devises to charitable uses are now generally made void; and which has consequently rendered that decision, and some others of the same tendency, less material (o). Such was the state of the law with respect to the power of devising (or transmitting real property by will), at the time of the passing of the new act, 7 Will. IV. & 1 Vict. c. 26; and thus it still stands with respect to all wills made before 1st January, 1838: but as to all others, the statute just mentioned has repealed the former enactments, making, in lieu of them, a new and more ample provision. It enacts (p), that it shall be lawful for all persons-except married women (q), and infants under twenty-one (r)—to dispose by will of all their real and personal estate (s), either at law, or in equity, to which they shall be entitled at the time of their deaths, and which, but for such disposition, (1) 2 Bl. Com. 375. (m) Ibid. (n) Vide sup. p. 466. (0) 2 Bl. Com. 375. (p) 7 Will. 4 & 1 Vict. c. 26, s. 1. (q) Sects. 7, 8. The 8th section provides that no will by a married woman shall be valid, except such as might have been made by a married woman before the passing of the Act. Before the Act, a married woman could not in general dispose of land by will; (see Forse and Hembling's case, 4 Rep. 60 b;) but might do so under a power expressly conferred on her for the purpose. See Johns v. Dickinson, 8 C. B. 934, as to what is due exccution of such a power. (r) As to the precise time when the age of twenty-one is attained, see Vin. Abr. Devise (G.), pl. 20. Before this Act, infants might make a will of their personal estate at eighteen, and, according to some authorities, still earlier. 2 Bl. Com. 497; Harg. Co. Litt. 89, n. (6); Hearle v. Greenbank, 3 Atk. 709. (s) "Real estate" is to be understood in this Act as extending to all hereditaments of whatever tenure, and whether corporeal, incorporeal, or personal, and to every estate, right, or interest therein, other than a chattel interest; and "personal estate to all property whatsoever which by law devolves upon the executor or administrator. (7 Will. 4 & 1 Vict. c. 26, s. 1.) would pass to the heir at law or to the personal representative; and it expressly extends the same power to their estates pur autre vie, and to all their contingent, executory, or other future interests, and even their rights of entry upon land: which latter subject was previously considered as incapable of being devised (t). The power is also expressly extended to after-acquired lands, by a provision that all real and personal estate, to which the testator is entitled at the time of his death, shall pass, notwithstanding that he may become entitled to the same subsequently to the execution of his will (u). And it is further to be remarked, as to the person capable of taking by devise, that there is no exception in this Act (as under the former statutes) of corporations; so that a devise to a body corporate will now be valid; subject of course to the enactments of the Statutes of Mortmain, by which corporations are required to obtain the crown's licence, to enable them to become the holders of land (x); and subject also to the prohibition of 9 Geo. II. c. 36, as to a devise to charitable uses. On the other hand, though no exception is made by the Act with regard to the power of devising, except in the case of infancy or coverture, we must of course understand the exception to be tacitly added which would be introduced by the general rules of law, in respect of idiots, insane persons, and others labouring under personal incapacity to aliene (y). II. With respect to solemnities. When the Statute of Wills (32 Hen. VIII. c. 1) had for the first time given efficacy to devises, innumerable frauds and perjuries were quickly introduced (z); which can excite no surprise when we consider that bare notes, in the handwriting of another person, then became good wills within the statute, if only (1) See Doe v. Tomkinson, 2 Mau. & Sel. 165; Roe v. Jones, 1 H. B1.30; 3 T. R. 88; Goodright v. Forrester, 8 East, 552. (") Sect. 3. Marston v. Roe, 8 Ad. & El. 14. (x) Vide sup. p. 460. published as such; that is, declared by the testator to be intended to operate as his will and testament (a). For except publication (b), no other ceremony had been essential to a written will of personalty, before this statute passed; and the statute, itself, prescribed no particular solemnity in reference to a devise of real estate, except that it required the wills to be in writing. [To remedy which, the Statute of Frauds and Perjuries, (29 Car. II. c. 3,) directed that all devises of lands and tenements should not only be in writing, but signed by the testator, or some other person in his presence, and by his express direction (c); and should be subscribed, in his presence, by three credible witnesses (d). And a solemnity nearly similar was requisite for revoking (e) a devise by writing; though the same might be also revoked by the burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence, and with his consent], if done animo revocandi: as likewise, impliedly, by any new modification of the interest of the devisor, in the estate devised (ƒ); [or by such a great and entire alteration in his circumstances as arose from marriage and the birth of a child (g),] or, in case of a woman, marriage only (h). In the construction of the Statute of (a) 2 Bl. Com. p. 376. (b) As to this requisite, see Doe v. Sir F. Burdett, 4 Ad. & El. 14. (c) As to signing by a mark, see Baker v. Denning, 8 Ad. & El. 94. (d) See Roberts v. Phillips, 4 Ell. & Bl. 450. (e) It may be remarked here, that a will is always capable of revocation, though it purport in the strongest words to be irrevocable; for to hold the contrary, says Lord Bacon, would be for a man to deprive himself of that which of all other things is most incident to human condition; and that is, alteration or repentance. (Bac. Elem. c. 19.) (f) See Sparrow v. Hardcastle, 3 Atk. 802; Williams v. Owens, 2 (g) 2 Bl. Com. 376. (See Re Cady- 4 |