Fines on copyholds, с surrender into the hands of the lord to whatever use he pleases. For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to intitle him to his fine, and not so much necessary for the strengthening and completing the heir's title. Hence indeed an observation might arise, that if the berules as to. nefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come in and be admitted to his copyhold in court; and so the lord may be defrauded of his fine. But to this we may reply [372] in the words of Sir Edward Coke, "I assure myself, if it were in the election of the heir to be admitted or not to be admitted, he would be best contented without admittance; but the custom in every manor is in this point compulsory. For, either upon pain of forfeiture of their copyhold, or of incurring some great penalty, the heirs of copyholders are enforced, in every manor, to come into court and be admitted according to the custom, within a short time after notice given of their ancestor's decease." And by the statute 1 Will. 4, c. 65, (re-enacting, in part, the 9 Geo. 1, c. 29) s. 3, it is enacted, that infants, feme coverts, and lunatics may be admitted to copyhold estates by their guardian, committee, or attorney; and femes covert and infants who have no guardian may appoint attorneys for that purpose (s. 4); and in default of apppearance the lord may appoint an attorney (s. 5); and if the proper fines are not paid, the lord may enter and receive the profits of the copyhold lands till he is satisfied (s. 6.) Co. Copyh, s. 41. CHAPTER THE ELEVENTH. [373] OF ALIENATION BY DEVISE. tween wills ments. THE last method of conveying real property, is by devise, Difference beor disposition contained in a man's last will and testament. and testaAnd, in considering this subject, I shall not inquire into the nature of wills and testaments, which are more properly the instruments to convey personal estates; but only into the original of devising real estates by will, and the construction of the several statutes upon which that power is now founded. alterations in In stating the rules relating to devises, it will be proper Projected to bear in mind that a bill has been introduced in the pre- the law relat sent session of Parliament, founded on the recommenda- ing to devises. tions of the Real Property and Ecclesiastical Commissioners, by which it is proposed to make considerable alteration in this branch of the law. Should this measure be passed by the Legislature, it will still be necessary to understand something of the former law, as the act will have only a prospective operation, and will not apply to wills already in operation. We shall, therefore, in this instance, as in the preceding portions of this work, first consider the subject without reference to the alterations which may be made in it. could be made By the common law of England since the Conquest, no [374] estate, greater than for a term of years, could be disposed what devises of by testament;a except only in Kent, and in some an- by the comcient burghs, and a few particular manors, where their mon law. Saxon immunities, by special indulgence, subsisted. And 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 im Devises were first made of uses. e [375] position 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 neighbourhood, and which the simplicity of the common law always required in every transfer and new acquisition of property. 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, that, as the popish clergy then generally sate 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 uses 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, infants, idiots, and persons of nonsane memory,) might by will and testament in writing devise to any other person, except to bodies corporate, twothirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles the Second, amounts to the whole of their landed property, except their copyhold tenements. And this exception was first eluded by surrendering the copyholds to the use of the will, and then after the death of the surrenderor his devisee was admitted. But now a direct devise of copyholds is good without any such surrender.h Statute of wills, 32 Hen. 8, c. 1. What devises to corporations are valid. Corporations were excepted in these statutes, to prevent the extension of gifts in mortmain; but now, by con • Glanv. l. 7, c. 1. d Plowd. 414. e On devises, 7. f 27 Hen. 8, c. 10. See Dyer 143. See ante, p. 24. h 55 G. 3, c. 192. See ante, p. 258. struction of the statute 43 Eliz. c. 4, it is held, that a devise to a corporation for a charitable use is valid, as operating in the nature of an appointment, rather than of a bequest. And indeed the piety of the judges hath formerly [376] carried them great lengths in supporting such charitable uses; it being held that the statute of Elizabeth, which favours appointments to charities, supersedes and repeals all former statutes; and supplies all defects of assurances: and therefore not only a devise to a corporation, but a devise by a copyhold tenant before the recent statute without surrendering to the use of his will," and a devise (nay even a settlement) by tenant in tail without either fine or recovery, before those assurances were abolished, if made to a charitable use, were good by way of appointment." But as copyholds have been held to be within the terms of the statute 9 Geo. 2, c. 36,° devises of them to charitable uses, as well as all other interests in lands must be made conformably to its provisions.P the Statute of With regard to devises in general, experience soon Frauds under shewed how difficult and hazardous a thing it is, even in wills. matters of public utility, to depart from the rules of the common law; which are so nicely constructed and so artificially connected together, that the least breach in any one of them disorders for 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 hand-writing of another person were allowed to be good wills within the statute. To re- Statute of medy which, the statute of frauds and perjuries, 29 Car. 29 Car. 2, c. 3. II, c. 3, directs, that all devises of lands and tenements 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 credible witnesses. And a solemnity nearly similar is requisite for revoking a devise by writing; though the same may be also revoked by burning, cancelling, tearing, 1 Ch. Prec. 272. * Gilb. Rep. 45; 1 P. Wms. 248. Duke's Charit. Uses, 84. m Moor. 890. n2 Vern. 453; Ch. Prec. 16. • Ante, p. 181. P Scriv. on Copyh. 248. 1 Dyer 72; Cro. Eliz. 100. Frands, Construction of the statute. 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." In the construction of this last statute, it has been adjudged that the testator's name, written with his own [377] band at the beginning of his will, as, "I John Mills do make this my last will 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." But if the jury find the point that the testator might have seen the signing, though the witnesses were in another room, it will be sufficient. Where however the jury found that from one part of the testator's room, a person by inclining his head might have seen, but the testator from his situation could not do so, it was held that the will was not duly attested." 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 witnesses: 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 creditors, and threatened to shake most of the titles in the kingdom, Christopher v. Christopher, Scacch. 6 July 1771; Spragge v. Stone, at t Freem. 486; 2 Ch. Cas. 109; Pr. Ch. 185. u 1 P. Wms. 740. v 2 Salk. 687; Carth. 813; Bro. Ch. C. 99; 1 Maule & Sel. 294. w Stra. 1253. |