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TREATISE 


OK   TBS 


LAW 


OP 


Wir.LS  AND    CODICILS. 


By  WILLIAM  ROBERTS, 

OF  LINCOLN'S  INN,  ESQ.,  BARRISTER  AT  LA1V. 


SE(X)ND  EDITIOxV, 

MUCH  ENLARGED  AND  IMPROVED. 


HJ  TWO  VOLUMES. 

VOL.  I. 


LONDON : 

ntlNTED  FOR  J.  BUTTERWORTH  AND  SON,  FLEET-STREETi 
AMD  J.  COOKE,  OKMOND  QUAY,  UUBUN. 


18U. 


• 


«HWI 


J.ftT. Clarke,  FHBtei% 8B» fit  Jcin^ 8q wie» Londou 


TO 


THE  RIGHT  HONOURABLE 


•JOHN,  LORD  ELDON, 


JLORD  mOH  CHANCEUjOR  OF  GREAT  BRITAIN, 


Sfc»  6fc»  i(e» 


Mr  LoRD^ 


THE  terms  in  which  your  Lordship  hat 
been  pleased  to  express  your  acceptance  of  the  Dedication 
of  these  Volumes^  demand  my  particular  acknowledgments. 

My  acknowledgments^  as  a  member  of  the  profession 

of  the  law^  are  also  in  an  especial  manner  due  to  your 

Lordship^    when  it  is  considered  that  those'  parts  of  this 

Treatise  which  stand  upon  the  firmest  ground  of  principle 

and  science^  are  drawn  from  your  Lordship's  judgments. 

Without  borrowing  largely  from  that  fund^  I  could  never 

have  fulfilled  my  engagements  with  the  Public ;  or^  perhaps  it 

would  be  more  correct  to  say^  that  if  the  vast  and  multifarious 

mas9  of  formeir  doctrines  on  the  subject  of  Wilis  had  not 

beeu  reduced  to  some  elementary  consistency  by  the  Cases 

decided  within  these  last  ten  years  in  the  Court  of  Chancery^ 

I  could  never  have  ventured  upon  ths  undertaking 

a8 


IV 


DEDICATION. 


Under  these  circumstances  a  Dedication  of  the  following^ 
Work  to  your  Lordship  has,  I  trust,  enough  in  it  of  propriety 
to  defend  it  from  the  imputation  of  presumption. 

It  is  with  the  sincerest  gratitude,  therefore,  that  I  beg 
to  approach  your  Lordship  with  this  tribute  of  professional 
industry,  and  to  request  that  you  will  receive  it  as  a  testi- 
mony of  the  profound  respect  with  which  I  am 


My  Lord, 

Your  Lordship's  much  obliged. 

And  obedient  humble  Servant, 

WILLL\M  ROBERTS. 


Lincoln's  Inn^ 
HOwy  Facaiidny  1815. 


TABLE  OF  THE  CASES 


CITED  IN  THESE  VOLUMES. 


A. 


Abbott 'T.  Abbott  Vol.  11.41,  note 

17.  Massie    24,  note  (10) 

Abney  i?-  Miller       1.  247,  note, 

309—314,  411 
Acherley  v.  Vernon 

400—406,  II.  128 
Adams  t.  Lingard  162, 163 

Addis  v.  Clement 

442,  443,  II.  14 
Addy  r.  Grix  114,  119 

Aiiesbury  (Lord's)  case 

140,  note 
Alanson  9.  Clithero  524,  note 
Alexander  v.  Clayton  160, 161 
Allen  v.  Duiidas  II.  61,  63,  78 
AUsouls^  Coll.  V.  Coddrington 

L417 
Altham  <Ld.)  v.Anglesea  (Earl 

Altham^s  case  17,  note 

Ames  17.  Harmer       I.  241,  note 
Amesbury  v.  Brown  611 

Andrews  v.  Emmet         63  note 

- —  V.  Partington 

II.  249,  note 
Ancaster  v.  Mayer  I.  78 

AndersQXl  v.  Dawson      35,  note 


Andrew  r.  Southouse 

Vol.  I.  488,  495 
Anonymous  cases  107,  127 

Anstey  v.  Dowsing  136 

Arthur  v.  Bokenham  263,  266 
Ashburnham  v.  Bradshaw      339 

■  ■ r.  Macguire        428 

Ashton  V.  Ashton  426 

Aston  V.  Aston  II.  241,  note 
Athcrton  v.  Pye  I.  656,  558 
Atkinson  v.  Baker  68,  note 


V.  Hutchinson 


550,  note,  562,  note,  566,  note 
Attorney-General  r.  Andrews  38 

V.  Bamfield  488 

■     ■  '       V.  Barnes 

40,126 

iQ^  Bowles 

201,202 

V.  Caldwell  200 

— V.  Crispin 

II.  249,  noto 

' V,  Downing 

1.403 

-c.  Gill         639 

' T.  Graves 

•81,  note,  194 
•     ■  V,  Heartwell 

40$;,  not« 


TABLE  OF  CASES. 


Attorney-General  v.  Herriek 

Vol.  I.  189 

■  t>.  Hyde 

199,  SOI 
'  D.  Johnson  199 

'  V.  Lloyd 

938,539 
V.  London(City) 

190 
— — — -  V.  Meyrick 

95,  note,  194 
—————  D.  Oglander 

190 

».  Oxford 

(Bishop  of)  -  199 

■  v»  Parnther  32 
■    ■  e.  Parsons  202 

————*——  V.  Robins 

II.  114 
■     '  r.  Sparks 

1.199 
———————  r.  Sutton 

523,  note,  524,  note,  526, 527 

■  ■     ■     I  x>*  Syderfin 

1.189 
^  *  V.  Vigor 

V  261,  note,  (7)  262,  note,  280, 
281,  note 
' '  "  •  V.  Weymouth 

193, 194 

tJ.  Whttely 

190,  note 
'         V.  Whorwood 

202 
'  «.  Williams 

199,  note 
■■  «.  Winchelsea 

(Earl  of)  190, 200 

Avelyn  v.  Ward  427 


B. 


Bacon  v.  Bacon 
■   ■    ■  r.  Hill  • 


n.  146 

J.  571 


Baddeley  v.  Leppingwell  495 
Begshaw  t.  Spencer  580, 581 
Bagwell  c.  Dry  834,  note 

Bailey  0.  Ekens  -         217 

Bailisv.Gate  469,506 

Baldwin  v.  Carver  II.  249,  note 
Bale  9.  Coleman 

L  562, 576, 579 


Bamfield  v.  Popham 

Vol.  I.  523, 525 
Banes*6  case  II.  161,  nojtie  (2) 
Bai1)er  9.  Fox  162,  note 

Barclay  v.  Wainewright  8 

Bark  v.  Zouch   1. 274,  note,  276 
Barker  v.  Giles  -  588 

Barnes  d.  Crowe  404, 405 

■        «.  Patch 

465,  note,  II.  37,  note 
Barrington  v.  Tristram  248,  note 
Barrow  v.  Baxter  1. 368, 369 
Barry  v.  E^;worth  467 

BartleU  n.  Ransden  121 

Barton  v.  Cooke  II.  256,  note 
Barton's  case  •  107 

Bassett  t>.  Bassett  1. 353,  note  (6) 
Bastard  v.  Stukely  II.  107 

Bath  and  Montague's  case 

1. 65,  note 
Baxter  v.  Dyer  -  23S 

BayUs  and  Church  v.  the  Attor* 
ney  General  .  II.  24,  note  (9) 
Beale  v.  Beale    I.  353^  note  (6) 
Beard  v.  Beard  -       ^  245 

Beauchamp  v.  Lord  Hardwicke 

179 
Beauclerk  r.  Dormer  550,  note* 
Beaufort's  (Duke  of)  case  418 
Beaumont  v.  Fell  II.  15  - 

Beaumont  r.  Harp  I.  220 

Beckford  v.  Parnecott  393,  394 
Beckley  v.  Newland  473,  note  (5) 
Begge  V.  Bensley  550,  note 
Bennet «.  Taylor  167 

V.  Wade  and  others 

II.  61,  note 
Benaon  r.  Scott  l.  287 

Bent  V.  Baker  160, 163 

Benyon  r.  Benyon  If.  11 

Berry  d.  Asham        T.  219,  note 

tj.  Usher       II.  236,  note 

Berwick  v.  Andrews  90,  note 
Bibb  r.  Thomas  I.  326 

Bill  V.  Kynaston     ll.  274,  note 
Bbdon  (Lord)  v.  Suffolk  (Earl 
of)  .  1. 587 

Bingham's  case  286 

Bishop  o.  Burton  165 

Blackburn  'o,  Edgley  458 

Blackler  v.  Webb 

562,  note,  II.  S6,  note 


TABLE  OF  CASES. 


VM 


Blandford  v.  Blandlbrd 

Vol.  1. 564,  note 
Blandj  V.  Widmore  387 

Blaxtoji  V.  Stone         -  518 

Blisset  V.  Cranwell  590 

Bondt>.  Seawell  1. 194, 135,  notes 
Bom&ut  V.  Greenfield  (Sir  Rich- 
ard) -  II.  234,  note 
Boon  V.  Cornyforth    1. 568,  note 
Boraston's  case  566,  note 
Bostock,  V.  Blakeney    237,  note 
Bouffbton  V.  Booghton    99^  104 
BouUon's  case            -  545 
Bowes  (ex  parte)            94,  note 
■     —  V.  Bowes          -          410 
Bowles's  case            -           534 
Bowman  v.  MUbranck           488 
Bradl^  v.  Westcott     489,  note 
Bradwin  v.  Harpur    II.  8S,  note 
Bradj,  lessee  of  Norris  v.  Cubitt 
1. 348, 350,  361  j  364, 367, 
369,  473,  note  (5) 
Brett,  V.  Rig;den            96,  note, 
S59,  note,  260, 398,  II.  38 
Brice  r.  Smith 

1. 129,  528, 562,  note 
Bridgeinan  v.  Dove  421 

Bridgewater  (Countess  of)    v. 
B^ton  (Duke  of) 

465,  468, 474, 483, 502 
Bridgewater  (Duke  of)  v.  Eger- 
ton       II.  295,  note,  298,  note 
Broderick  v.  Broderick     I.  145 
Brodie  (N.)  v.  Ckandos  (Duke 
of)  -  201 

BrograTe  v.  Winder  139 

Broosdon  v.  Winter  429 

Broome  v.  Monck 

278, 409,  note 
Brou^hton  v.  Errington 

II.  6,  note 
Brown  v.  Heath  I.  174 

V.  Higffs  -  510 

V.  Manby         -  377 

V.  Selwyn         II.  29, 31 

-• V.  Thompson 

1. 347, 361,  364 
Brownsword  v.  Edwards 

548,  note,  5^3,  note 
Bruce  9.  Smith  -  157 

BrudeneB  v.  Boughton 

69,  note,  72, 79 


Brunbden  v.  Woodridge 

Vol.  If.  37,  note 

Brydges  v.  Chandos    (Duchess 

of)        I.  252,  note,  266, 270, 

271,272,274,305 

Buck  and  Whalley  v,  Nurton 

460 
Buckeridge  v,  Ingram 

77,  note,  78, 79, 80 
Buller  V.  BuUer  77,  note 

Bunker  or  Bunter  v.  Cooke 

260,261,266,454 
Burdett  (Sir  Rob.)  v,  Hopegood 

333,  note  (6) 
Burgess  v.  Wheate  297,  note 
Burkitt  V.  Burkitt         -  41 

Burrows  v.  Locke  159 

Burtenskaw  v.  Gilbert  329,  331 
Butterfield  v.  Butterfield  395 
Butler  and  Baker's  case 

259,  note,  263,  280,  note  (2) 

V,  Stratton 

II.  36,  note,  37,  notQ 
Byas  V.  Byas  -     ^     h  447 


C. 


435,  437 
361 
509 


Cadogan  v.  Kennet 
Calder  v.  Calder 
Cambridge  v,  Rous 
Camfield  v.  Gilbert 

481, 482,  II.  40,  note 
Campbell  v.  French       337,  358 

V.  Radnor  (Earl  of)     t 

II.  12 
Campbell  v.  Sandys 

I.  263,  note  (11) 
Canning  v.  Canning  469, 505 
Carey  v.  Askew  37, 105 

Carleton  v.  Griffin  123,  127 

Carrington  (Lord)  v.  Payne  166 
Carte  v.  Carte 

309, 314, 412,  note 
Cartwright  v.  Cartwright  31 
Cary  v.  Abbot  -  190 

1.  Appleton         -         462 

Casbome  v.  Scarfe  93,  94,  note 
Case  V.  Barber  II.  160,  note 
Casson  v,  Dade  I.  144 

Castledon  v.  Turner 

II.  24,  note  (9)  26 

Caye  v.  Holford  I.  273 

1 


tiii 


TABLE  OP  CASES. 


Chadock  T.  Cowley    Vol.  I.  628  I 
Chamberlain  v.  Chamberlain 

II.  107 
Chamberlain's  case  62 

Chandos  (Dukeof )  v,  Talbot  1 12 
Chapman's  case  I.  517 

Chapman  r.  Blissett  495 

Chapman  r.  Brown  J^02 

-^ r.  Hart 

415,418,442,  note,  449 
Charman  r.  Charman  298 

Chauncv's  case  II.  5,  notes 

Chaworth  v.  Beech  *  I.  179 

Chene^^'s  (Lord)  case  II.  13 

Cherry  v»  Dethick  I.  464 

Chester's  (Lady)  case  21 1 

V.  Painter  466,  note  (2) 

Chichester  (Sir  A.)  v.  Oxendon 

469,  note 
Chilcotr.  Bromley  II.  275,  note 
Christopher  r.  Christopher ' 

I.  347,  348,  note,  349 
Christ's  College,  Cambridge 

(case  of)  .  204 

Chudleififh's  case  -  52 

Clarke  v.  Blake      353,  note  (6) 

T.  Sewell         II.  6,  note 

^ to.  Smith         I.  545,  note 

Clatche'  s  case  628, 549 

Clennell  r.  Lewthwaite 

II.  43,  note,  44 
Cliffe «.  Gibbons  -  8 

Clyraer  v.  Littler      I.  245,  note 
Coker  v.  Grey  II.  2Q 

Coke  V.  Bullock         I.  237,  238 
Cole  v.  Livingston  546 

Cole  V.  Rawlinsoa 

488, 508,  662,  note' 
Coleman  v.  Coleman  385,  note 
Coles  T.  Hancock  298,  note 
Coles  V.  Trecothic  108, 176 

Collet  V.  Lawrence       663,  note 
Collier's  cato  -  49 

Comber  v.  Hill  568,  560 

Combes  v.  Gibson  450 

Cooke  V.  Dan  vera      41,  44, 451 

r.  ParsonS'  151 

Cooper  V.  Forbes    853,  note  (6) 
Coote  V.  Boyd  II.  12 

Copin  V.  Ferryhou)|^h 

LS12,  note,  316 
€othay  v.  Sydenham  I.  27,  note 


Cotter  V,  Layer 

.  Vol.  I.  279,  345,  37S 
Cotton  V.  Cotton  394 

Cotton  r.Xayer  42,  note 

Counden  v.  Clark  II.  13 

Cox  r.  Basset  I.  172 

Cox  V.  Godsalve     89,  note,  424 
Cranmer's  case  II.  6,  note 

Cranwell  r.  Saunders 

I.  235j  note,  352 
Creagh  v.  Wilson  II.  244,  note 
Crenys  v,  Colman 

16,  note,  37,  note 
Crichton  v.  Symes  I.  415, 419 
Croft  r.  Paulet  129,  and  note,  157 
Croft  V.  Slee  -  63 

Crone  r.  Odell         II.  27,  note, 

248,  note,  249,  note 
Crooke  v.  De  Yandez 

I.  510,  550,  note,  592 
Crosbie  v.  Mac  Dowall 

405,  note 
CunlifTe  v.  Cunliffe  563,  note 
Cunliife  v.  Sefton  167,  note 

Cutbbert  v.  Peacock  II.  6,  note 


D. 

Da  Costa  v.  De  Pas  1.  190 

Darley  v.  Darley  252,  note 

Dashwood  v,  Bulkeley 

II.  245,  note 
Davenport  r.  Oldys 

I.  646,  558,  659, 560 
Davis  r.Gibbs  441 

V.  Reyner      II.  162,  note 

V.  Wright  162,  note 

Davison  v.  Mellish  36,  note 

Dawson  o.  Clark  42,  note 

Davy  and  Nicholas  v.  Smith 

I.  144 
Day  V.  Trig  -  443 

Dayrell  v.  Glascock  157 

Debeze  c.  Mann  II.  2 

Deeks  v.  Stnitt  -  107 

Del  Mara  r.  Rebello      16,  notes 
De  Mazar  v.  Pybus  122 

Denn  r.  Gaskin   I.  463,567,589 
■    V.  Geering  650,  note 

V.  Mellor  505,  57 1 

Denn  d.  Moor  r.  Miller        469 


TABLE  OP  CASES. 


ix 


Denn'5  case  Vol.  II.  60 

Devon  (Duke  of)  v.  Kinton 

I.  58 

V.  Atkins     67 

Dickinson  r.  Dickinson  3S2 


Dig^^es's  case 
Dister  v.  Dister 
Dodson  T,  Hay 
Doe  V.  Allen 

■ r.  Applin 

V,  Clark 

V.  Cooper 

V.  Dorvell 

r.  Fonnereau 

V.  Lancashire 


65,  note 

251 

565,  note 
.     574 

520,  527 

353,  note  (6) 

522 

541 

548,  note 

349,  351, 

358,  S()4, 368 

566,  note 
263,  note  (11) 

552,  note 

319 

572,  573 

531 


r.  Lea 

V.  Luxton 

r.  Morgan 

V.  Porter 

v^  Richards 

V.  Rivers 

V.  Smith  520,  522 

V.  Staple  28, 373,  375,  note 

V.  Wainewright  545 

V.  Wichels  -         531 

Doe  ex  dem.  Andrews  v.  Lainch- 
brery  -  474 

— Ash  V.  Calvert 

IL64 

Bates  V.  Clayton 

1.500 

Belasyse  v.  Lucan 

(Earl  of)  445,451,456 

—  Biddulph  V.  Mea- 

464 

Blake  v.  Luxton 

49,  note 

■■ Chichester  (SirA.) 

r.  Oxenden  -         II.  32 

Chilcott  V.  White 

I.  473 

Clements  r,  Col- 

.    •        .  457 

—  Cooke  r.  Danvers^ 

41,  44 

—  Dacre  (Lady)  v, 
467,  note 

—  Dilnot  V.  Dilnot 

252 

—  Gaskin  r.  Gaskin 
U97,  498 


kin 


lins 


Roper 


Doe  ex  dem.  Gibbons  (Sir  W.) 
V.  Pott  -        Vol.  1. 276 

Goi^g^s  V,  Webb 

'       559 

Hayter  v.  Joinville 

II.  16 

Hindon  v.  Kersey 

L  141 
Lampriere  v,  Mar- 
tin           -  -  459 

Leach  v.  Mecklem, 

564,  note 
Palmer  tJ.  Richards 

469,  492,  505 

Pate  V.  Davy 

447 
■  Say  and  Sele  v, 

Guy  •  -  II.  107 

Stewart    v.  Shef- 
field .    I.  264,  note,  334,  note 

Thorley  v:  Thorley 

489,  note 

' Thwaites,  v.  Over 

11.  37,'nota 

Tofield  V.  Tofield 

I.  267,  note,  444 

Toone  and   West 

V.  Staple  -  •  198 

Turner  v.  Kett 

II.  38 
Walker    v.     Ste- 
phenson -  I.  140 

Walker  v.  Walker 

457 
1—  Wall  V.  Langlands 

470,  471,  500 
Wilkins    V,   Ken- 

neys  -  441 

——————  Willey  V,  Holmes 

493,  note 
= Wright  V.  Mani- 


fold -  -  146 

Door  t\  Geary  II.  14 

Dormer  v.  Thurland  I.  115 

Dorset  v.  Sweet  II.  15 

Downing  College  (case  of) 

I.  191,  note 
Downing  v.  Townsend  172 

Drinkwater  v.  Falconer         413 
Drury  v,  Smilh  13,  note 

Drybutter  r.  Bartholomew       SO 
Dubost  (ex  parte)        -        11.4 

9 


TABLE  OF  CASES; 


Dudley^,  (Lord)  case  Vol.  I.  SIS 
Duff  V.  Dalzell  -  63 

Dutton  T.  Engram        5S8,  689 

E. 

,Eagleton  v.  Kingston  171 

Earle  v.  Wilson  II.  368,  note 
Eastwood  V.  Vincke  «  6,  note 
Eccles  V.  England  I.  563,  note 
Edge  o.  Salisbury  II.  15^  note 
Egerton  v.  Matthews  164 

Eggleston  v.  Speke  1. 8S6 

E^s  V.  Bailey  -         218 

Ellis  V.  Ellis       -  II.  122 

Ellis  V.  Smith    I.  110,  112, 118, 

154, 224,  der,  note,  242,  note 
Ellison  V.  Cookson  301,  IL  2 
Elwinv.£lwiB  IL  U9 

Entwisde  V.  Markland  117,119 
Ettricke  v.  Ettricke  I.  590 

Evans  v.  Astley         -  519 

Evelyn  v.  Evelyn  77,  note 

Ewer  V.  Corbitt       II.  429,  note 

V,  Heydon         -       1. 464 

Eyre  (Mr.  Just)  v.  Shaftesbury, 

(Countess  of)        -  212 


F. 


Fairfax  v.  Heron  I.  564 

Falkland  v.  Bertie        562,  note 
Farrant  v.  Spencer  1. 419 

Parrington  v.  Kniehtley 

ir  41,  note,  63 
Fearon  (ex  parte)  I.  175 

Fenton  v.  Foster  d.  Dyer      495 
Fergus  (Executors  of)  v.  Grore 

219,  note 
Ferrers  and  Curs&n  v.  Fermor 

289 
Fettiplace  v.  Gorges  27,  note 
Fish  t.  Richardson  II.  162,  node 
Fisher  v.  Forbes  I.  89,  note 
Fitzgerald  v.  Leslie  528 

Fleming  v»  Waldegrave 

II.  240,  note 

Fletcher  v.  Smiton     1. 468, 478 

Foley  V.  Bumell  et  al.  438,439 

II.  296,  note,  297,  note,  298,  note 

Forth  V.  Chapman     I.  549,  note 

550,  note^  666^  note 


Forth  V.  Stanton 

Vol.  II.  163,  note 
Force  r.  Hembling  1. 371,  373 
Foster  v.  Munt  II.  4S 

Fowes  V.  Salisbury   I.  262,  note 
Fowler  V.  Fowler  II.  5,  note  (1) 

6  and  note 
Foy  et  Ux.  v.  Pester  246,  note 
Frances's  case  240,  note 

Freake  v.  Slee  1. 493 

Freemoult  r.  Dedire  218 

French  v.  Squire         -         195 
Frenche's  case  -  246 

Frogmorton    and    Wright     v. 
Wright  -  my  498 

Furse  t^.  Weekes        -         583 


O^ 


Gkdton  t>.  Handeock    I.  77,  note 
Grarland  v.  Thomas  691 

Garret  et  Ux.  v.  Pritty 

II.  241,  note 
Ghurrick  v.  Camden  (Lord) 

35,  note 
Garth  v.  Baldwin      I.  579,  580 

V.  Meyrick      II.  23,  note 

Garthshoie  v.  Chalie         I.  389 
Gaskell  v.  Harman  IJ.  119 

Gastrell  v.  Smith  I.  334 

Crawler  v.  Wade*        -         219 
Gibbpns  v.  Caunt  349, 350 

Gibson  V.  Mountford  (Lord) 

403, 404,  495 
Gilbert  v.  Whitty  -  546 
Gillet  V.  Wray  II.  242,  note 
Gines  V.  Ke'msley  -         15 

Ginger  d.  White  v.  White 

I.  524,  note,  525 
Glazier  v.  Glazier  370,  412 
Glenorchy  (Lord)  v.  Bosville  581 
Gofton  V.  Mill  218,  note 

Goodinge  v.  Goodinffe  * 

II.  27,  note 
Ooodright  v.  Allen  I.  494 
'. V.  Forrester 

261,  note  (8> 

■  ■     V.  Glazier  331 

— —  V.  Goodridffe  537 

— — —  V.  Harwooa    231,  note 

I  ■    v«  Searle       551|  note 


TABLE  OF  CASES. 


i& 


Goodright  d.  Baker  v.  Stocker 

Vol  I.  495,  499 

-= ^Buckingham  (Earl 

of)  V.  DowDshire  (Marquis  of) 

fi04 
■ — -Drewry  v.  Barron 
488,  n6te  (4)  500 


Holfbrd  and  others  v. 

Otway         -  255,  »70 

d.  Paddy  v.  Maddem 

493,  note 
Goodtitle  r.  Pegden     450,  note 

tj.  Otway      292,  note, 

296,  300,  304,  488,  note  (4) 

V.  Whitby      566,  note 

V.  Wood       544,  note, 

551,  note 
Goodwin,  or  Goodwyn  v.  Good- 
win 447,  448,  467,  468 
Crore  V.  Grore  545,  note 

T.  Knight  27,  note 

Goreiog  v.  Goreing 

II.  162,  note 
Gorin|^  v.  Nash  -  1. 447 
Goss  V.  Tracy  -         II.  63 

Gott  V.  A  tkinson        I.  217,  220 
Gower  v.  Gower         -  423 

■  r.  GrTosvenor 
II.  296y  note,  297,  note, 

298,  note 
Grave  v.  Salisbury  (Earl    of) 

I.  383,  II.  9,  note 

Graves  t.  Boyle      II.  249,  note 

Gray  v.  M inethorp    1. 563^  note 

Grayson  r.  Atkinson    III,  115, 

118,  165, 197,  473,  note  (4) 

506 
Green  v.  Armstead 
'    V.  Howard 


490 

563,  note, 

II.  35,  note 

1.560 

66 


V,  Stephens 
Greene  v.  Proude 
Gregory  v.  Pelham  II.  295,  note 
Grefiierv;  Neale  I.  117,  note 
Grieves  v.  Case  197,  note 

OrHfin  V.  Griffin  -        175 

Chriffiths  v.  Hamilton 

11.41,  note 
Grimmett  v,  Grimmett 

I.  197,  note 
Gulliver  d.  Jeflferys  «•  Poyntz  ' 

457 


GuUiver  v.  Ashby    Vol.  II.  286 

H. 

Habergham  v.  Vincent 

I.  66,  68, 69,  72 
Haldemand  v.  Hudson 

II.  936,  note 
Hale  V.  Hale  I.  353,  note  (6) 
Hales  V.  Petit  34,  note 

Hambling  o.  Lyster  II.  ng 
Hambly  v.  Trott  149 

Hamfield  v.  Habinghani  I.  66 
Hands  o.  James  128, 157 

Hannis  v.  Parker  -        73 

Hanson  v.  Graham  566,  note 
Hardacre  et  al.  v.  r^ash  et  aL 

445 
Harding  v.  Glynn'  'II.  35,  note 
Hamave'scase  **-  79 

Harknesso.  Bailey  '  I.  238 
Harland  v.  Trisg  563,  note 
Harmood  v.  Oglander  243,  274, 
note,  294,  295,  296,  note 
Harper  v.  Derbjr  (Bailifis  of) 

285 
Harris  v.  Austin  453,  note 

Harris «.  Bams         •  199 

V.  Greathead  II.  22,  note 

V.  Ingledew    1. 165,  note 

V.  London,  (Bishop  oO 

II.  28,  31 

D.  Nash  I.  199 

Harrison  t.  Harrison     1 13,  1 14, 

II.  237,  note 
Hartop  V.  Widraore  I.  383,  391 
Hartop^s  case  -  398 

Harvey  v.  Aston  II.  244,  note 
Harwood  v.  Groodright  I.  264 
Hatcher  v.  Curtis  344,  note,  345 
Haughton  r.  Harrison 

^  II.  249,  note 

H&vergill  v.  Hare  I.  291,  nota 
Hawes  v,  Wvatt  248,  and  note 
Hawkins  v.  Kemp  65,  note 

Haws  V.  Haws  -  585 

Hay  V.  Coventry  (Earl  of)  669 
Haynes  v,  Mico  -  389 

Hazlewood,    or   Haslewood    v. 

Pope  -  448^  458 

Hearle  v.  Greenbank 

96,  99, 101, 102;  103, 104 


iKU 


TABLE  OP  CASES; 


f      Heathe  «.  Heathe       Vol.  1. 589 
Hedger  r.  Rowe  218,  note 

Hedges  t.  Hedges  11,  note 

Hele  r.  Bond 

S459  note,  S45,  note 

Hellier  v.  Tarrant  450 

Hellj  er  v.  Hellyer         -        370 

Herbert  v.  Lounder  II.  63 

■V.  Parsons        •        111 

^ V.  Turbal     I.  395,  note 

Hereford  (Bishop  of)  v.  Adams 

190 
Heylin  v.  Heylin        -  S66i 

Hick  r.  Mors  247,  note,  248 
Hicks  r.  Dring  479,481 

Hill  V.  Cock  266,  note 

r.  London  (Bishop  of) 

II.  39,  note,  40,  note 
Hilliard  v.  Jennings  ^  I.  137 
Hilton  V.  King  107,  note  (1) 
Hinde  v.  Lyon  545,  note 

Hindon  v.  Kersey  137, 139, 164 
Hintoh  V.  Pinke  -  426 

Hitchins  v.  Bassett 

230, 238,  note,  233, 234 
Hixon  V.  Oliver  II.  Ill 

Hodgkinson  r.  Wood        I.  236 
Hodgson  and  Caldecot  v.  Fitch 
and  Another  IL  14 

Hodgson  t?.  Ambrose  L566,  note 
Hodgson  V.  Lloyd  375,  note 
Hogan  V.  Jackson 

470, 472, 496, 506 
Holden  v.  Smallbrook  48 

Holderness,  (Lady)  v.  Carmar- 
then (Marquis  of)  80 
Holdfast  d.  Cowper  v.  Martin 

467 
— —  d.  Hitchcock  v*  Pardoe 

456 

V.  Woollams  287 

Holloway  «.  HoUoway  563,  note 
Holmes  v.  Coghill     "  407,  note 

1?.  Meynel         -         547 

Hone  V.  Medcraft  312,  note,  315 
Hooley  v.  Hatton  II.  9, 11 

Hope  d.  Brown  v.  Taylor 

I.  445,  518 
Hopewell  v.  Achland  469,  488 
Hopkins  T.  Hopkins  548,  note 
Hotham  v.  Satton  430,483,  II.  14 
Hovle  V.  Clarke         ^        \.  9SA 


>y 


Hudson's  case    Vol.  L  112,  ISO 


IL59 

248,  note 

L335 

IL93 

L42 

488 

79,323 


Hudson  V.  Fisher 
Hughes  V.  Hughes 
Humphries  v.  Taylor 
Hunt  V.  Stephens 
Hussey  v.  Grills 
Huxtep  V.  Brooman 
Hyde  v.  Hyde 

J. 

Ibbetson  v.  Beckworth 

466,  note  (2),  498, 499 

Ilchester  (ex  parte  the  Earl  of) 

221,  229,  note,  241,  note  (1)^ 

242,  note,  245,  note,  248 

Ingram  v.  Parker  -         64 

Iroi  v.  Hurst  -  413 


J. 


James  r.  Collins  -        689 

James  v.  Dean  -  316 

r.  Greaves 

338,  note,  ll.  61,  note 
73.  Semmens  -         8 

Jenkin  v.  Whitehouse 

I.  27,  note,  345,  note 
Jesson  V.  Essington  421 

Jones  V.  Beale  II.  36,  note 

V.  Clough        1. 6 1,  62,  63 

V.  Colbeck  11.  25 

— "^""^  Vm  Hiske 

L  151,152, 154,  note 
v.  Morgan  -         582 


K. 


Kaye  v.  Laxon  -  464 

Kelly,  (Sir  G.)  v.  Powlett,  or 
Paulett 

4^,  421,  II.  35,  note 
Kennell  r.  Abbott  I.  339,  note 
Kerry  v.  Derrick  ■  -  464 
Kew  r.  Rouse  -  592 

Kibbett  v.  Lee  -  65,  note 
Kidney  V.  Coussmaker  219,  note 
King  v»  Denison 

IL  39,  note,  43^  not^ 
King  T.  MeUin.^        -         1. 527 

r.  Rumball         -         517 

»•  Withers  551^  note 


TABLE  OP  CASES. 


xui 


Im 


Lamb  v.  Parker         Vol.  I.  236 
Lambert  v.  Lambert  428 

Lampett^s  case  -  434 

Lane  v.  Goudge  566,  note 

Lane  r.  Stanhope  (Lord) 

442, 455 
Lane  t).  Wilkins  409,  note  (4) 
Lan^ham  v.  Nenny         63,  note 

V,  Sandford 

II.  42,  note 
liangley  v.  Baldwin' 

I.  523,  note,  524,  and  note, 
525,  526,  527 
Larkins  v.  Larkins         339,  335 
Lashmer  r.  Avery  287 

Law  v«  Lincoln  (Bp.  of) 

453,  note 
Lawrence  r.  Kete  18 

Lawson  v.  Lawson  12,  note 

Lawton  v,  Lawton  89,  note 

Lea  r.  Libb  111,  note, 

124,  125,  notes,  141 
Lecbmere  v.  Carlisle  (Earl  of) 

388,389 
Lee  V.  Cox  -  387 

Leeds  (Dake  of)  v.  Munday 

94,  note 
Leeke  r.  Bennet  II.  274,  note 
Jjees  V.  Summersgill 

I.  135,  note  (5) 
Lemayne  v.  Stanley 

107,109,  110,112,114 
Leonard  v.  Sussex  (Earl  of)  575 
Lestrange  v.  Temple  302 

Lewen  v.  Cox  •  589 

I^ewis's  case  373,  374 

Lidcott  V.  Willows     I.  469,  470 
Limbery  v.  Mason  and  Hyde 

169,  172, 173, 227 
Lincoln  (Countess  of)  v.  New- 
castle (Duke  of) 

582,  II.  297,  note 
Lloyd  V.  Lord  Say  and  Sele 

1. 292,  note 
Long  V*  Blackall 

544,  note,  547,  note 
■    ■   V.  Dennis    .    II.  245,  note 

r.  Stewart  237,  note. 

Longcliamp  v.  Fish  I.  144,  note 
Longford  v.  Eyre     60,  146, 164 


LoTeacres  v.  Blight 

Vol.  I.  489,  note 
Ix>Teday  v,  Claridge  172 

Low  V.  Burron  -  49 

Lowe  V.  JolUffe  158,  163 

Luffg  r.  Lugg  -  347 

Luke  T.  Bennett  II.  273,  note 
Luther  v.  Kidby  I.  299,  note, 

301—5 
Lytton  V.  Falkland  (Lady) 

397, 399, 403, 40i 

M. 

Maddox  r.  Staines  I.  550,  note 
Mahon  v.  Savage  II.  37,  note 
Maitland  v.  Adair  36,  note 

Mallabar  v.  Mallabar  I.  350 
Man  V.  Man  333,  note 

Manning's  case  434 

ManseU  v.  Mansell  65,  note 

Mariot  v.  Kinsman        345,  note ' 
Markam  v.  T  wysden  473,  note  (4) 
Marland  v.  Townley  591 

Marlborough  (Duke  of )  v.  Go* 
dolphin  (Lord)  344,  562,  note 

1         V,  Spencer 

II.  295,  note 
Marshal  v.  Blew  I;  434, 435 
Marwood  v.  Turner  251, 307 
Maskelyne  v.  Maskelyne 

488,  note  (4) 
Mason  v.  Day  309 

Masters  v.  Masters 

69,  notes,  70,  II.  27,  S8 
Matthews  17.  Matthews  II.  6,  note 
Matthews  r.  Warner 

I.  173,  note,  175,  note,  376 
Maundy  v.  Maundy  463,  IL  69 
May  V.  Lewin  II.  41,  note 

May  V.  May  I.  210,  note 

Maybank  v.  Brooks  II.  38 

Maynwaring  v.  Maynwaring 

289,  note 
Mersan  v.  Blackmore  I.  571 
Metham  v.  Devon  (Duke  of) 

II.  368,  note 
Miller  V.  Miller  1. 12,  note 

tj.  Turner     353  note,  (6) 

Milner  v.  Slater  563,  note 

Mitton  V.  Ltttwich        29@,  note 
J^geridge  v.  Thackwell      189 


XIV 


TABLE  or  CASES* 


Mole  V.  Thomas  YoL  1.527,  note 
Moltonitf.  Hutchinson  63,  npte 
Molyneux  v.  Scott  565,  note 
Monck  V.  Monck  (Lord) 

413,  IL  4 
Montague  v.  Jeflreys 

227,  note,  236 
Montague's  case  246 

Mooad.  Faggv.  Heasman  562 
Moor  V.  Hawkins  551,  note 

Moore  t).  Moore  416 

Morgan  r.  Griffiths  538 

Morrice  v.  Duiham  (Bishop  of) 
191,  note,  204, 563,  note 


N. 

Nab  V.  Nab  1. 184 

Nannock  v.  Hortcm    1. 261,  note 
Needier  v.  Winchester  (Bishop 
of)  -  -  285 

NegUB  V.  ColsoB  or  Coulter 

80,195 
Ifdtter  V.  Perdyal  Bishop  ILS9 
Newton  v.  Preston  SO,  note 
Nicholas  tk  Simmonds  1. 282 
NidioUs  V.  Judson  II.  6,  note 
Nichols  V.  Hooper  I.  550,  note 
Nisbett  V.  Murray  IL  41,  note 
Norden  v.  (Griffiths  889,  note 
Norris  v.  Cubitt  I.  348 

Northey  v.  Strange 

II.  36,  note,  381,  note 
Norton  «.  Ladd  I.  507,  508 

Nottingham  T.  Jennings        636 
Nourse  v.  Findi  44,  46 

Noys  V.  MordaviU     98, 99,  101 
Nugent  V.  Giflfosd    IL4S9,]iote 


O. 


L495 


Gates  V.  Cooke 
Ogle  D.  Cook 

165,  note,  89B,  note 
Okeu  Heath  II.  HS 

Oldercon  v.  Pickering  I.  58 
Oldham  v.  Huffhes  U.  269,  note 
Oldham  v.  Pickering  I.  56 

On^ley  v.  Peed         II.  16,  note 
Onions,  or  Onyons  v.  Tyrer 
L  !»8, 229;S22,328, 330,391 


Osborne  v.  Leeds  (Duke  of) 

Vol.  II.  9 


P. 


Page  V,  Page 

L  333,  note,  834,  note 
Panphrasev.  Lansdown  (Lord) 

396,  400, 403, 405 
Papillon  V.  Voice  582 

Paramour  v.  Yardley 

461,  and  note,  462,  II.  107 
Parke  v.  Mears  117,-^ot0 

Parker  v.  Bleake  287 

V.  Plumber  461 

Parry  v.  Hodirson  212 

Parsons  v.  Vfeemnn 

268,274,275,301,303 
■    r.  Lanoe 

347, 352,  note  (4> 

V.  Meyrick    II.  23,  note 

V.  Pieiiee  1. 285 

Partridge  v.  Partridge 

3&,  note,  428 
Patten  v.  Jones  II.  35,  note 
Pawlet's  case  I.  297,  note 

Peate  v.  Ougley  22,  24,  121, 122 
Peck  V.  Halsey  II.  273,  note 
Pemberton  v.  Pemberton 

I.  330,  note 
Pendock  v.  Mackinder  131,  note 
Perkins  v.  Baynton  592 

Perry  v.  White  658^ 

V.  Whitehead  II.  122 

Peyton  v.  Bury  245,  note 

Philips  o.  Grartb  36,  note 

Phillips  V.  Parish  of  St.  Clement 

Deme  -  I.  18k 

■    '    r.  Chamberlaine        431 

V.  Garth         1. 563,  note- 

Phipard  v.  Mansfield  1. 555, 559^ 
Phipps«D.  Anglesea  (E^rl  of)  299 
Pibus  V.  Mitford  535,  note 

Pierson  r.  Garnett 

353,  note  (6)  56S,  note 
Pi^ottv.  WaUer        -  4/A 

Pike  V.  Badmering  IS8 

Pistol  on  dem.  mndal  o.  Ricb« 
ardson  •  441, 443* 

Pmburv  v.  Elkin  550,  note 

PleydeU  v.  PleydeU      550,  note 
Plonket  V.  Penson        216, 21T 


TABLE  OF  CAl^S. 


Pomfret  (Earl  of)  v.  Windsor 
(Lord)  Vol.  I.  213 

Porter  v.  Bradley 

544,  note,  550,  note 
Porter  r.  Toumay  4S1,  423,  436 
Poulson  9.  Wellington  63 

Powell  V.  Beresford        -        62 

r.  Clea?er         165,  note 

Powis  t?.  Andrews  II.  61,  note 
Powlet  V.  Herbert  237,  note 
Pratt  V.  Jackson  I.  419 

Price  «•  Lloyd  -  137 

«.Pag6  -         11.24 

Prince  v.  Stebbing  I.  388 

Pulsford  V.  Hnnter  IL  249,  note 
Porefoy  v.  Rogers 

1.353^  note, 552 
Purse  v.  Snaplin 

425,  496, 564,  note 
Pye  (ex  parte)  -  IL  4 

Pym  V.  Blackburn    24,  note  (9) 


Rider  (Sir  B.)  v.  Wager  (Sir 
Charles)  Vol.  I.  278, 384 

Ridges  V.  Morrison        II.  9, 11 
Ridout  V.  Pain 

1. 473,  note  (4)  477, 507,  note 
Right  V.  Price         108,  147, 222 

V.  Sidebotham       497,  567 

Ripley  v.  Waterworth       57, 59 
Risley  v.  Baltin^ass  (Lady) 

299,  note,  303 


Raddiffe  v.  Buckley     249,  note 
Radnor  (Earl  of  J  v.  Shafts 

L  564,  note 
Raggett  T.  Gierke  46,  note 

RaoMbottom's  case  II.  67 

Rann  v.  Hughes  -  158 

Ralchfield  v.  Careless 

41,  42,  note,  43,  note,  45 
Rawlings  v,  Jennings 

I.  482,  IL  41,  note 
Rawlins  v.  GokUrap  550,  note 
Read  9.  Snell  -  566,  note 
Reade  v.  Reade  565,  note 

Reading  v.  Rawsteme 

219,  512,  note 
Reid  9.  Shergold    344, 489,  note 
RexT.  Comelbrth         210,  note 
V.  Crosby      -        133,  note 
V.  Ford 

131,  note,  132, 133,  note 
Rick  T.  Beaumont  374 

Bkttffdsv.  Baker    II.  273,  note 

•^ T.  Bergavenny  (Lady) 

1. 515,  note 
Bichardson  u  Elphinstone    389 
V.  Greese 

U.  A,  note  (1%  6 


Risley  v.  Temple 
Ritch  9.  Sanders 
Roach  V.  Harris 
Robert  v.  Moigan 
Roberts  v.  Cooke 

V.  DixweU 

r.  Kiffin 


149 
454 
II.  35,  note 
L  63,  note 
511 
580 


665,  note 
Robinson  o.  Hardcastle         344 

V.  Miller       -        518 

— — —  V.  Robinson 

520, 521, 522, 52S 

V.  Taylor  II.  236,  note 

Roe  and  Cooolly  v.  Vernon  and 


1. 452,  note 


551,  note 

634,nottt 

569 


Vyse 

—  V.  Clayton 

V.  Grew 

u  Griffiths 

V.  Qoartley 

V.  Blacket 

9.  Jones 

260,  note,  551,  note 

d.  Child  V.  Wright        468 

—  Hale  V.  Weg^  et  al.  454 

—  Henning  v.  Yeud 

471,  478 


-  Jeffery  v. 
*  Norden  d.  Griffiths 

288,  289,  note 

-  Pye  V.  Bird       4S5,  Mill 

-  Roach  V.  Popham 

II.  33,  note 


Rogers  v.  Bugffs  T 
Roper  V.  Radcliffe 
Rosev.  Bartfett 

V.  Cunningham 
d.  Vere  V.  HiU 
Rosewell  v.  Bennett 
Ross  V.  Ewer 


227,246 

440,441 

6^  note 

587 

391 


S5,  note    , 
27,  note,  121, 122, 345,  note 
Hoyden  v.  Malster         37,  note 
Rudstone  v.  Andmwn 

dll^  note,  914 


TABI£  or  CASES. 


Ramlidd  v.  Rmnbold 

\ok.  I.  566,  note 
Rutland  (Duke  of)  r.  Ratiand 
(Duchess  of) 

II.  4^  note  (3),  46 

8. 
SanderscHi  r.  Walker 


Sansbory  r.  Read 
8aonder8*8  Case 
SavUe  t;.  Blacket 
Sayle  v.  Freeland 
Scott  r.  Tyler 


237,  note 

HI 

107 

1.384 

63 

n.  841,  note 


1.495 
IL  41,  note 


Seale  r.  S^e 
8eUy  V.  Wood 
Selw^n  r.  Selwm 

L  288,289,  note^290, 551,note 
Sergifion  (ex  parte)  94,  note 
Bejmiour  et  Lx.  t>.  Ros worthy 


Shaftesbury  (Lord)  v.  Hannam 

211 
Bfaaiileyih  Baker  510 

Sfaargold  v.  ShaK;old      11,  note 
Hntter  v.  Friend  171,  note 

Shaw  V,  Bull        -         465,  note 

V.  Wriffht  .         495 

Sheddon  r.  Goodricb    74,75,78 

and  note,  105,  note 
Shelley's  case  286,  531,  note 
Shephard  v.  Lutwidge  2 1 7 

Shepherd  v.  Shepperd    342, 356 
■  » ■  T.  Shorthoose     II.  67 

Sheppard  v.  Gibbons  I.  590 

Shires  9.  Glascock  143,  145,  149 
Shove  V.  Pincke  244,  245 

Shodall  9.  JekyU  391, 11. 2,  note 
Sitwell  o.  Barnard 

117,  119,  123 
Sitwell  and  Others  v.  Parker 

I.37« 
Sleech  o.  Torrington  42i 

Smart  o.  Prujean         •  68 

Smith  d.  Davis  «•  Saunders 

504,  512 
Smith  V  Cason  13,  note 

©.  Codron        -  1 15 

* r.  Coney         II.  23,  note 

V.Evans  1.110 

— «-^  V.  Tendall         .         494 


Sndlgrove  r.  Bailey 

Vol.  I.  12,  note 
Snelson  v.  Corbet  »  421 
Snowden  r.  Snowden  3i^ 

Soalle  V.  Gerrard         -         528 
Southey  9.  Somerville  (Lord) 

II.  274,  note 
Sparke  v.  Farnell 

I.  490,  562,  no*e 

Sparrow  r.  Hardcastie  247,  note 

251,  252,  253,  and  note,  296 

Sf  inks  r.  Robins  II.  5,  note  (2> 

Spring  and  Titcher  r.  Biles 

1.267 
St.  Segar  p.  Adams  II.  66 

Stafford  r.  Buckley  I.  SO 

Stamford  (£arl)r.IIobart  (Lord) 

57» 
Stephens  v.  Gerrard  -  20 
— -"^—  r.  Stephens 

247,  note,  248,  note 
Stewart  v.  Bute  (Marquis  of) 

424 
Still  r.  Chapman 

11,  note,  12,  note 
Stirling  a.  Lydiard 

311,  314,  315 
Stokes  p.  Moor  <*  108 

Stone  9.  Forsyth 

27,  note,  345,  note  (« 
Stonehouse  r.  Evelyn  1 15,  129 
Stowell  V.  Touch  (l«ord)  286 
Strange  v.  Barnard  112,  note 
Stratton  r.  Grymes  II.  241,  note 
Stratton  v,  Pavne  -  36 

Streatfield  v.  Streatfield 

I.  101,  102,  442,  note  « 
Strode   (Sir   Liitton)  r.  Russet 
(l.ady)  -  93 

Strong  o.  Teate  564,  note 

Swift  V.  Roberts  300,  note 

Sjmpaon  v.  Homsby  39^ 


Tanner  r.  Morse,  or  Wise 

I.  496,  note,  501,  note 
Tafget  p.  Graun^  549,  note 

Tate  p.  Hilbert  12,  note 

Taylor  p.  Biddall 

&(5,  note,  546,  note 


TABLE  OP  CASES- 


xvu 


TaYlorr.Bury  Vol.  II.  242,  note 
Temple  v.  Webb  I.  303 

Teynham  (Lord)  v.  Webb  II.  1 11 
Thaver  v.  Thayer  I.  65,  note 
Tbellusson  v.  Woodford 

566,  note 
Thomas  v.  Bennett     II.  6,  note 

V.  Evans  I.  234 

. V.  Payne     II.  36,  note 

V.  Thomas  19,  20 

Thompson  v.  Lawley  (Lady) 

et  al.  -  1. 443 

Thompson  v.  Shepherd  361 
Thrustout  d.  Gower  v.  Cunning- 
ham -  -  268 
Thwaites  v.  Smith  171 
Tickner  v.  Tickner       269,  SO  1 , 

302,  303,  304,  305 
Tilbury  v.  Barbut  540 

Tilly  V.  Simpson  478 

Timewell  v.  Perkins  477,  488 
Tirrell  v.  Page  -  480 

Titcher  r.  Biles  II.  37,  note 
Tomkins  v,  Tomkins  18,  note 
Tomlinson  v.  Dighton 

I.  489,  note 

T.  Gill  11.  157 

Took  r.  Glascock  1. 46,  note 
Torret  v.  Fraropton  589 

Townsend  v,  Ives  164 

r.  Pearce 

225,  note  (2) 
TraflTord  v.  f  rafford 

II.  296,  note 
Trent  v.  Hanning  I.  470 

Trevinian  v.  Howell 

II.  IG2,  note 
Trimmer  v.  Bayne  45,  47,  48 
Trimmer  v.  Jackson 

1.23,24,25,122 
Tuckerman  v.  JeiFries  584 

Tudor  V.  Anson  -  4  47 

Tuffnell  V.  Page  39,  45,  4(i7 
Tunstall  v.  Bracken  II.  1 12 
Tyter.  Willis  -        1.538 


IJlrick  V.  Litchfield 
Urquhart  v.  King 


IL  26 
41,  not6 


Vaughan  v.  Atkins     Vol.  1. 287 

V.  Burslem 

II.  296,  note,  298,  note 
Vaughan  v.  Ferrer  I.  20 1 ,  202 
Vawser  v.  Jeffrey  258,  268, 279 
Venables  and  Wife  v.  Morris 

635,  note 
Venderzee  r.  Aclom  346 

Verhorn  v,  Brewen  182 

Vernor  (Lady)  v.  Jones 

298,  note 
Villers  v.  Handley  II.  161,  note 
Villiers  v,  Villiers  I.  85 


W. 

Wagstaff  r.  Wagstaff  38,  39, 61 
Wain  V.  Warlters  II.  164 

Walker  r.  Shore  248,  note 

WalHs  V.  Hod'^on  1.353,  note  (6) 
Wallis  V.  Wallis  23,  note,  24 
Walsingham*s  case  51,  52 

Walter  v.  Drew  536 

Walton  V.  Shelley  161 

Ward  V.  Lenthall  65,  note 

V.  Phillips  355 

r.  St.  Paul  210,  note 

Warde  r.  Warde  266 

Waring  v.  Ward  77,  note 

WarneVord  v,  Warneford  110 
Warren  r.  Stawell  219 

Watts  i;.  BuUas  ^         447 

Watts  V.  FuUarton 

268,  note,  274,  275 
WatsoQ  V.  Poxon  556 

Webb  V.  Hearing  494,  538 

Welby  r.  Thornaugh  II.  63 
W^lcden  v.  Elkington  I.  461 
Wells  V.  Wil^n  -  340 

West,  and  others,  executors  of  ♦ 

Moore  V.  Moore  424 

Westbet^chr.  K  »nnedy  119,  note 
Westfaling  r.  Weirtfaling 

53,  56,  220,  453 
Weyland  v.  Weyland  388 

Whale  V.  Booth  1 1.  428,  note 
Wheeler  r.  Bingham  24 J,  note 
White  V.  Barber  I  -  353 

V.  Evans         1 1.  41,  note 

Whithorue  v.  Harris      35,  note 


XVUl 


tAfiLE  OP  CASteS. 


Whitechurch  v.  Whitechurch 

Vol.  I.  81 
Whitmore  v.  Craven  (Lord) 

565,  note 

^.  Trelawney 

564  note 

Widlake  v.  Harding      470,  488 

Widmore  v.  The  (jrovernors  of 

Queen  Anne^s  Bounty        189 

V.  Woodroffe  197 

Wight  I?.  Leigh  527 

Wightman  v.  Townroe 

II.  147,  note 
Wilcocks  V.  Wilcocks        I.  387 
Wild's  case    517,  661,  note,  565, 
note,  II.  27,  note,  249,  note 
Willett  V.  Sandford  277 

Williams  t).  Browne  560 

V.  Fry      II.  240,  note 

V.  Jekyl  I.  53 

V.  Jones  41,  note 

•  D.  Owen  270, 

274,  and  note,  294,  295,  notes 
Willis  V.  Lucas  -  537 

Willoughby  v.  WUlouchby     87 
Wilkinson  v.  Maryland  475 

Wilson  V.  Knubley  ^  216 

V.  Mount  566,  note 

— ; V.  Pigott  -        387 

Winchester's  (Marquis  of)  case 

28 
Wimbles  r.  Pitcher 

II.  36,  note 


tVinnr.  Littleton 

Vol.  1. 93, 94,  note 

Wood  and  Wife  v»  Gaynon  and 

^  Wife  -  455,  note 

Wood  V.  Penoyre  II.  115 

Woods  t.  Huntingford 

I.  77,  note 
Woodward  v.  Darcey  (Lord) 

30y  note 
Woolcomb  V.  Woolcomb  415 
Woollam  c.  Kenworthy 

475,  480,  note 
Worlick  V.  Pollett  174 

Wright's  case  -  376 

Wright  d.  Compton  v.  Compton 

564,  note 

V.  Cadogan 

27 

V.  Holford 

553,  555,  559 
V.  Nether- 


wood  358,  and  note 

V.  Walthoe 

173 
Wyndham  v.  Chetwynd  137, 141 
Wynne  v.  Williams 

11.233,  note 


Y. 

Yarmouth  (Mayor  of)  v,  Eaton 

L80 


STATUTES  APPENDED, 


CHARLES  It. 

89  Car.  2.  c.  3.  (frauds  and  per* 
juries)  Vol.  IL  165 

GEORGE  II. 

9  G.  9.  c.  36.  (mortmain  act) 

II.  172 
UG.2.  c.  SO.  (mortmain)    173 


55  G.  S.  c.  6.  (legacies  to  wit-' 
nessesToid  Vol.  II.  174 

GEORGE  III. 

56  G.  3.  c.  63.  (preventifig  frauds 
on  seamen)  -         II.  181 

32  G.  3.  c.  34.  (preventing  fi*auds 
on  seamen)  -  188 

39  &  40  G.  3.  c.  98.  (restrainmg 
accumulation)         -  SSi 


»    I 


STATUTES  CITED. 


JOHN. 


Magna  Charta 


1.  186 


EDWARD  I. 


13  Edw.  1.  c.  32.  I.  186 

18  Edw.  1.  Stat  1.  (qniaemptorea) 

13 

EDWARD  III. 

4  Edv.  3.  c.  7.         .         II.  87 
18  Edw.  3.  Stat  3.  c.  3.     1. 188 


S5  Edw.  3.  c.  5. 
31  Edw.  3.  c.  11. 


11.91 

68,76 


RICHARD  II. 

16R.2.C.5.  -         1.187 

HENRY  VI. 


19  H.  6.  c.  17. 
38H.6.C.S7. 


I.  S63,  note 
ibid 


HENRY  VIII. 
SI  H.  8.  c.  4.         II.  233,  note 


STATUTES  CITED. 


21  H.  8.  c.  5.      Vol.  II.  68,  71 

27  H.  8.  c.  10.  -         1. 14 

^H.  8.  c.  ].        14,15,18,40, 

45,  46,  62,  note,  187,  note, 

259,  393,  485 

34  &  35  H.  8.  c.  5.      14, 15, 18, 

25,   36,  40,  45,  46,  52,  note, 

120, 187,  note,  259, 262,  note, 

393,  485 

EDWARD  VI. 

S /&  S  Edw.  6.  c.  13  11.88 

PHIUP  AND  MARY; 
j|  &  5  P.  &  M.  I.  205,  210 


ELIZABETH. 


1.32 


5  Eliz.  c.  9. 
43  Eliz.  c.  4. 

187,  note,  194,  note 
43  Eliz.  c.  9.  -  203 

43  Eliz.  c.  14.  -  188 

CHARLES  II. 

12  Car.  2.  c.  4.  I.  15,  16 

12  Car.  2.  c.  24.    205, 206, 209, 
221,  222,  229,  note,  S41 
17Car.2.c.  3.  -  188 

17  Car.  2.  c.  8. 

II.  90,  91,  93,  98 
22  &  23  Car.  2.  c.  10. 

71,  96, 125,  126,  136 

29  Car.  2.  c.  3.        I.  22, 23,  46, 

47,54,55,57,  120,  121,  168, 

.     179, 185, 220, 376 

«)  Car.  2.  c.  3.         -         II.  98 

JAMES  II. 

lJac.2.c.l7.  IL  129,  136 

WILLIAM  III.  &  MARY  II. 

3  &  4  W.  &  M.  c.  14. 

1, 46,  214,  215 


4  W.  &  M.  c.  2.  Vol.  1. 6,  note 
4  &  5  W.  &  M.  c.  10.        II.  99 

WILLIAM  III. 

5W.3.  c.  21.  -  1.185 

7  &  8  W.  3.  c.  37.  -  188 
8&9W.  S.c.  11.  11.91,98 
lO&ll  W.3.C.  16. 

1. 352,  note  (5)  354,  note 


ANNE. 

2  &  3  Ann.  c.  5. 
2&3  Ann.  c.  11. 
4  Ann.  c.  16. 

179,  213,  485,  note 
9  Ann.  c.  10.  -  II.  98 


I.  6,  note 
188 


GEORGE  I. 

IIG.  I.e.  18.  L  6,  note 

GEORGE  II. 

9  G.  2.  c.  36. 

I.  191,  192, 194,  note,  199 
11  G.  2.  c.  19.  485,  note 

14  G.  2.  c.  20.         -  47,  57 

25  G.  2.  c.  6.    135,  note  (5),  137 


GEORGE  III. 


26  G. 
31  G. 

31  G. 

32  G. 

33  G. 

35  G. 

36  G. 

37  G. 

38  G. 

45  G. 
48  G. 


I.  189 
11.40 
L131 

189 
59,  note 
59,  note 


3.  c.  63. 
3.  c.  32. 
3.  c.  35. 
3.  c.  34. 
3.  c,  28. 
3.  c.  14.  ■> 
3.  c.  52. 

II.  104,  note, ,  123 
3.  c.  90.         -  57,  71 

3.  c.  87. 

49,  58, 72,  74,  86 
3.  c.  28.  lOri,  note 

3.  c.  149. 
*  92,  105,  note,  106,  note 


CONTENTS 


OF 


THE   FIRST   VOLUME. 


PAGE. 

Tjble  qftheC^sEs  .  .  .  .  v 
Statutes  appended  ...  .  xix 
cited       .....        ibid. 


SECTION  CHAPTER  I. 

OF   MAKING   AND   PUBLISHING   WILLS. 

I.  Progress  of  the  Law            :            .            .  .              1 

II.   Testamentary  Capacity           .            .            .  .24 

III.  Estates  by  Custom            •            •            .            •  36 

IV.  Estoites  pur  autervie              .             •            •  i        46 
V.  Powers  to  be  executed  by  Will        .            ,  .  .            60 

VI.    Wills  charging  Lands            ...  .69 

VII.  Attendant  Terms             .              •              .  81 

VIII.   Things  affixed  to  the  Freehold  ...         88 

IX.  Mortgages            .....  92 

X.    Election  in  Equity                •                •            .  •          96 

XI.  Signature  and  Subscription           .                .  106 

XII.   Formality  of  Publication          ,                .  .120 

XIII.  Wills,  interrupted  and  resumed           •               •  123 

XIV.  Qualification  of  Witnesses          .                 :  .         130 
XV.   Time  and  manner  of  making  the  Attestation        .  143 

XVI.  Evidence  of  the  Attestation             .         •       <  •        157 

a2  • 


II 


CONTENTS. 


BECTION 

XVII.  Personalty 

XVIII.  CAantoftfe  Uses 

XIX.  Appointment  of  Guardians  bif  Will 
XX.  Statute  offrauduleni  Devises 


PAGE 

168 
185 
905 
S14 


CHAPTER  II. 


REVOCATIOK  OF   WILLS 

I.  Construction  of  sect.  6,  of  the  Statute  of  Frauds 
II.  Methods  of  revocation  .  .  : 

III.  Inconsistent  dispositions 

IV.  Imperfect  acts  and  instruments 

V.  Acts  procured  to  be  done  by  fraud  or  compulsion 
VI.  Subsequent  conveyances 

VII.  Of  subsequent  dealings  with  the  estate  in  equity 
VIII.  The  doctrine  of  relation 
IX.  Mortgages^  Sfc. 

X.  Partition  .  .  .  . 

XI.  Jjcases        .... 
XII.  Cancelling  <  .  .  , 

XIII.  Alteration  and  erasure 

XIV.  Mistake  .  .  i  . 
XV.  Accident  and  surprise 

XVI.  Of  the  revotation  of  Wills  made  under  powers 

XVII.  Subsequent  marriage  and  children 

XVIII.  Effect  of  a  teoman^s  marriage  upon  her  Will 

XIX.  Of  the  revocation  of  WHls  of  personal  estate 

XX.  Satisfaction  in  equHy 


221 

235 

229 

240 

247 

251 

268 

279 

293 

299 

307 

321 

331 

336 

340 

343 

347 

371 

375 

386 


CHAPTER  III. 


REPUBLICATION  Of   WILLS 

I.  TAe  doctrine  of  early  decisions         . 
II.  Of  the  repubHeatioH  by  cotUcil 
III.  Of  the  %epublicatioif  of  Wills  of  personal  estatt 


393 
46Q 
410 


CONTENTS.  m 


CHAPTER  IV. 

S£CTIOI<r  PAGE 

OF  THE  IMPORT  OF  WORDS  AWD  PHRASES 

I.  A.S  to  moveable  things  •  .  .  414 

II.  ^s  to  immoveable  things  .  ,  .  440 

III*  JEstatCj  hereditaments^  inheritance^ properti/^  effects ^  SfC.  465 

IV.  fVhen  the  whole  estate  passes  .  •  .  483 

V.  Bi/ what  words  an  estate  tail  passes  .  .  513 

VI.  Sj/  what  words  an  estate  for  life  only  will  pass  561 

VII.  JVhat  zoords  create  ajointAenancy^  and  what  a  tenancy  in 

common  in  a  Will  .  .  :  •  583 


•>*»^' 


TREATISE 


ON 


WILLS  AND  CODICILS 


CHAP.  I. 

OF  MAKING  AND  PUBLISHING  WILLS. 


SECT.  I. 

Progress  of  the  Law. 

Alienations  to  take  effect  after  death,  can 
only  be  the  practice  of  an  advanced  period  in  the  pro- 
gress of  society:  after  the  hand  that  held  and  main- 
tained the  possession  is  withdrawn,  to  permit  the  will 
of  the  proprietoV  to  direct  the  succession^  implies  a 
conception  of  the  sacredness  of  property,  and  a  state 
of  order  and  security  which  does  not  exist  in  the  be- 
ginnings of  nations  (i).  It  appears  doubtful  whether 
among^  the  Romans,  before  the  introduction  of  tlie 
laws  of  the  Twelve  Tables,  or  among  the  Athenians 
before  the  leg-islation  of  Solon,  the  direct  testamentary 


(1)  OntTfino  rationinaturali  repugnat^  at  kin  jus  esse  statuendi 
ds  rebus  suis  ita^  ut  voluntas  post  mortem  valere  wcipiat ;  ubi  jam 
Telle  dtsiii  ct  mors  omnia  solvit,  Hert.  Elem.  Polit*  pars.  2.  sccU 
11.  h  5^-       ^"^'  Vinn.  Comm.  (it.  de  test,  ordin, 

B 


2  Making  and  publishing  Wills.      Chap.  I. 

disposition  even  of  moveables  was  allowed ;  and  among 
the  ancient  Germans  it  appears  that  the  children  suc- 
ceeded to  the  possessions  of  the  parent^  and  that  he 
had  no  power  to  alienate  them  by  his  will.  If  he  had 
no  children^  the  steps  in  the  order  of  inheritance  and 
succession  were  the  patres,  patrui,  avunculi  (2). 


ProgKtsof      (3)  The  succession  to  the  heirs  of  the  body,  and  in  case  of  the 
^^IgfM^ah   ^^^^^^  ^^  B^c^  representatiTes,  to  the  next  in  proximity  of  blood, 

tn  the  Ro-    if  not  a  law  of  nature,  seems  so  to  correspond  with  its  dictates. 

man  juris* 

prudence,    that  history  hardly  carries  us  back  to  a  time  when  the  notion  and 

admission  of  this  claim  did  not  prevail  among  mankind.    The  sug-  * 

• 

^stions  of  a  common  feeling  appear,  therefore,  to  haT^  made  this 
an  unlTersal  rule  of  transmission,  and  to  have  established  it  in  com- 
munities widely  separated  by  time  and  place.  Thus  the  represen- 
tation in  the  channel  of  blood  and  proximity  seems  to  have  had  its 
foundation  higher  than  any  positire  institutions,  though  to  positiTe 
institutions  we  must  of  course  refer  to  the  modifications  of  this  rule 
of  succession  ;  which,  indeed,  has  been  so  yariously  ordered,  that 
no  two  nations  exactly  resemble  each  other  in  their  institutions  re- 
garding it. 

That  the  right  of  controuling  this  succession  by  the  priTate  will 
of  the  possessor,  was  the  product  of  an  improred  period  of  legis- 
lation, there  is  much  concurrent  testimony  to  shew.  Till  the  le* 
.gislation  of  Solon,  the  Athenians  did  not  possess  this  priTilege,  as 
it  appears  from  many  authorities,  particularly  from  Plutarch,  in 
his  life  of  Solon,  page  196,  edit.  Bryan,  and  the  orations  of  Iseus, 
especially  de  PhUoctemonU  Hereditaie  ;  nor  according  to  Selden  de 
Success,  bon*  Hebr.  c.  24.  did  it  exist  among  the  ancient  Jews ;  nor 
as  we  learn  from  Tacitus  de  mor.  Germ,  c  %,  among  the  Germans 
in  his  day.  The  tenderness  which  continued  to  preTail  among  the 
Romans  for  the  1^1  heir  is  strongly  displayed  in  their  provisions 
by  the  laws  Furia^  Foconta^  and  Falddiay  and  more  pointedly  per- 
haps by  their  remedy  of  querela  inqffidosi  iesiamentiy  whererer  a 
will  was  made  against  the  order  of  natural  affection,  without  rea- 
sonable cause. 

With  respect  to  the  question  how  far  the  right  of  disposition  by 
will  existed  among  the  Romans,  before  the  laws  of  the  Twcdre 
Tables,  there  seems  to  be  much  Tiriety  of  opinion.    T)ie  text  of 

% 


Sect.  1.  Progress  of  the  Law.  S 

If  the  power  of  disposing  of  land  by  will  Was  exer- 
cised by  our  Anglo-Saxon  ancestors^  it  seems  much  less 


Jastinlan  propoands  the  order  in  which  the  form  of  the  iestamenti 
faciio  proceeded,  which  the  student  will  consult,  with  pleasure,  in 
the  Commentarj  of  Vinnius,  edited,  with  notes,  by  Heineccius,  in 
tba  title  de  Tesiameniis  Ordinandis.  It  appears  that  the  most  an- 
cient mode  of  making  a  testament,  among  the  Romans,  was,  by 
coQTerting  a  man's^prirate  will  into  a  public  law,  for  such  seems  to 
have  been  the  object  and  intention  of  the  promulgation  or  celebra- 
tioQ  of  a  testament  in  the  caUUis  comitiis^  1.  e.  in  the  presence  of 
the  Roman  people  summoned  before  the  Sacerdotal  College  per 
curias.  And,  according  to  Heineccius,  these  assemblies  were  not 
coHTened  specially  for  the  purpose  of  giving  sanction  to  wills,  sed 
legum  ferendarum  magisiratuumque  creandorum  causa  immo  et  oh 
qUa  negoiia  publica^  belhtm^  pacem^  judicial  Sfc. 

Thus  was  this  private  disposition  by  testament  of  the  property  of 
an  indiridual  promulged  and  ratified  in  the  same  manner  as  a  public 
law ;  and  for  this  reason  the  iestamenti  f actio  has,  in  the  text  of 
the  imperial  Jaw,  been  said  to  be  nonprivati  sed publid  juris y  D.  28. 
c.  3.  and  again  by  Ulpian,  it  is  said,  legaium  est,  quod  legis  modo — 
Usiamenio  reltnquttur^  Uip,  tit*  ^.  §  I. 

Another  form  of  testament  which  existed  antecedently  to  the 
lavs  of  the  Twelve  Tables,  was  that  called  testamentum  procinctum 
or  tnprodnctuy  which  was  the  privilege  only  of  those  who  were  on 
the  eve  of  going  to  battle^  or  girt  for  the  war,  with  the  uncertainty 
on  their  minds  of  their  ever  returning,  and  was  among  the  immu- 
nities in  regard  to  property  conferred  by  the  Romans  upon  the  de- 
fenders of  their  country. 

But  as  the  comitia  were  held  but  twice  a  year,  so  that  a  man 
might  be  surprised  by  sickness  without  having  the  opportunity  of 
thos  solemnizing  his  last  will,  and  the  attendance  upon  these  public 
assemblies  was  often  difficult  or  impossible  to  the  aged  and  infirm  ; 
and  furthermore,  as  women  were  by  these  forms  precluded  from 
making  any  testament,  as  not  having  any  communion  with  these 
omiiitiy  according  to  Gellius,  lib.  5.  c.  19,  a  third  method  was 
itrack  out,  which  might  facilitate  the  ultimate  disposal  of  private 
property  to  all  descriptions  of  persons,  otherwise  competent ;  and 
thu  last  method  was  called  the  testamentum  per  as  et  libram^  which 

B  2 


Making  and  publishing  Wills.      Chap.  I. 

likely  that  it  originated  with  themselves,  than  that  they 
adopted  it  from  those  laws  which  the  Roman  govern- 


was  a  fictitious  purchase  of  the  family  inheritance  of  heirship,  by 
money  weighed  in  a  balance,  and  tendered  by  the  intended  inheritor 
to  the  testator,  before  witnesses. 

Thus  it  js  said  to  be  imago  vetusti  moris  in  venditione  aique  aiii" 
naiione  rerum  manciple  quia  uno  verbo,  mancipalio  dicUuTy  nimifum 
ut  is  in  quern  hee  res  iransferebantury  eas  emeret  domino  are  et  li" 
braj  appenso  ei  yoy,ou  ycLpiv  nummo  uno.  And  it  seems  that  this 
fictitious  proceeding  was  still  retained  after  the  promulgation  of  the 
law  of  the  Twelve  Tables  had  authorized  the  making  of  wills  by 
the  clause  of  paierfam,  tUi  IcgassU  Sfc.  itajus  esto  ;  for  it  was  still 
regarded  as  necessary,  to  raise  the  will  of  a  private  man  to  a  lerel 
with  the  laws  of  the  state,  that  it  should  take  the  shape  of  a  strict 
legal  transaction  inter  "oivos ;  for  tesiandi  de  pecunia  sua  legibuf 
certis  facultas  est  permissoy  non  autem  juris  dictionii  mutare  for^ 
mam^  vel  juri  publico  derogare  cuiquam  permissum  est,  C.  6. 23. 
1 3.  The  two  former  methods,  by  the  testamentum  in  procindUy  and 
calaiis  comiiiis^  were  thrown  into  total  disuse,  by  the  testamentum 
per  CBS  et  libram  ;  but  this  last  form  of  willing  again  made  way  for 
others  of  a  more  convenient  description. 

The  methods  above-mentioned  were  "referrible  to  Wiejus  civile^  or 
as  we  express  it,  the  law  of  the  land ;  but  from  the  edict  of  the  prae- 
tor, other  forms  at  length  were  brought  into  practice,  by  virtue  of 
which  ^u^  honorarium^  the  mandpatio^  and  the  weighing  and  de- 
liTering  of  money,  were  dispensed  with,  and,  in  their  stead,  the 
solemnity  of  signing  by  seyen  witnesses,  was  introduced:  the 
presence  only  and  not  the  signature  of  witnesses  being  necessary  by 
the^Mj  civile. 

At  length,  however,  by  gradual  use  and  progressire  alterations, 
as  the  text  of  Justinian  informs  us,  the  lex  prceioria  and  the^t 
civile  were  in  some  degree  incorporated ;  and  a  compounded  regu- 
lation took  place,  whereby  it  became  requisite  to  the  valid  consti^ 
tution  of  a  will,  that  the  witnesses  should  be  present  (the  presence 
of  witnesses  being  the  rule  of  the  Jus  civile)  ;  that  they  and  also  the 
testator  should  sign,  according  to  the  superadded  institution  of 
positive  law ;  and  lastly,  that  in  virtue  of  the  praetorian  edict,  their 
seals  should  be  affixed,  and  that  the  number  of  witnesses  should  bo 
teven. 


Sect.  1.  Progress  of  the  Law. 

meat  had  established  and  left  standing  in  this  country. 
It  appears,  however,  pretty  certain,  that  this  testa- 
mentary power  over  land  did  not  survive  the  Norman 
conquest,  except  in  particular  cities  and  boroughs, 
where,  by  particular  favour,  the  Saxon  institutions 
were  suffered  to  breathe  (3) :  it  ceased  by  the  opera- 
tion of  the  feudal  system  of  property,  which  necessa- 
rily excluded  all  voluntary  alienations  of  possessions 


Afterwards,  the  further  solemnity  of  naming  the  heir  in  the  tes- 
tament was  added  hy  Justinian,  and  again  taken  away  by  the  same 
emperor,  in  Nov.  1 19.  c.  9.  and  at  length,  the  excess  of  testimony- 
was  corrected  by  the  canon  law  in  the  pontificate  of  Alexander  the 
Third,  by  which  it  was  declared  sufficient  to  prove  a  testament  by 
two  or  three  witnesses,  the  parochial  minister  being  added ;  in^ro" 
bata  consitiutione  juris  civilis  de  sqpiem  tesiibus  adhibendis  ut  nimis 
longe  recedente  ab  eo  quod  scriptum  est — in  ore  duorum  vel  trium 
tedium  siei  omneverbum^  Szoinb.Qi.  Deut,  c,  18.  Malth.  c.  18.  which 
reformation  obtained  the  sanction  of  general  usage. 

Swinbum  says,  that  this  institution  has  also  been  reformed  by  the 
general  custom  of  this  realm,  "  which  distinctly  requires  no  more 
than  two  witnesses,  so  they  be  free  from  any  just  cause  of  excep-. 
tion;*'  which  observation  he  repeats  in  several  places  of  his  treatise 
on  wills,  on  the  authority  of  Linwood,  in  Statut.  Verb.  Prob.  de 
Tiit.  L  3.  Provincial  Constit.  Cant,     Bracton  also  has  the  following 
passage :  **  Fieri  autem  debet  iesfamentum  liberi  hominis  ad  minui 
foram  duobiis  vel  pluribus  viris  legalibus  et  honestis,   clericis  vel 
loids  ad  hoc  speciaJiter  convocaiis,  ad  probandum  testamentum  de- 
fiaaist  opus  fuerit,  si  de  testamento  dubitatury  Bract,  lib.  32.  fol. 
<il.  bet  these  words  import  a  recommendation,  and  not  an  impera- 
tiTe  rule  ;■  and  nothing  seems  now  to  be  better  understood,  than 
^at  a  will  of  personality  needs  neither  the  atte^&ta^ion  of  witnesses, 
or  the  testator's  seal  or  signature  ;  and  though  written  in  another 
^d,  yet  if  proved  to  have  been  written  according  to  the  testator's 

• 

"istructions,  and  approved  by  him,  it  is  a  good  will  to  dispose  of 
chattels.     Comyns,  452,  et  seq. 

(3)  Whether  gavelkind  lands  in  Kent  were  deviseable  by  custom 
^ms  to  be  a  matter  in  dispute.  See  the  arguments  pro  et  con.  in 
Rob.  Givel.  235. 


Making  and  publishing  Wills.     CukV.  I. 

with  which  personal  services  and  duties  were  insepa- 
rably connected*.  But  with  respettt  to  moveables^  ih6 
4:estanientary  power  seems^  in  this  country,  with  more 
or  less  restraint,  to  have  been  exerciseable  in  a  very 
remote  period.  The  ready  mode  of  authenticating 
the  property  in  goods  by  the  possession,  and  of  trans- 
ferring the  possession  by  manual  delivery,  and  the 
usufructuary  and  revocable  quality  of  termd  of  yeai's, 
caused  them  at  an  early  period  to  be  considered  as 
proper  subjects  for  every  kind  of  alienation.  But 
though  testaments  of  moveables  were  permitted  by 
the  ancient  law  of  England,  according  to  Glanville 
and  Bractdri,  yet  the  power  extended  only  to  one- 
third,  called  the  dead  man's  part;  which  limitation 
seemed  to  prevail  in  London  and  York,  after  it  had 
fallen  into  disuse  in  other  parts  of  the  kingdom,  till 
at  length  by  several  statutes  the  testamentary  power 
over  goods  was  thrown  generally  open  (4). 

•  Vide  1  Eq.  Ca.  Abr.  401. 


Restraints        (4)  By  the  4th  W.  and  M.  c.  2.  persons  within  the  prorinee  of 
ustamen-     ^^^^  ^^7  dispose  by  will  of  all  their  personal  estate,  in  as  large 

tary  power  and  ample  a  manner  as  within  the  proTince  of  Canterbury)  and 
b>Uiecus-  "^  -  '^  "^ 

turns  of        elsewhere ;  and  the  widows  and  children,  and  other  kindred  of 

l^ni\^^^.  such  testator,  are  barred  of  their  claims  under  the  custom*  But 
moved  by  the  citizens  of  the  cities  of  York  and  Chester,  who  were  freemen, 
inhabiting  there,  being  excepted  out  of  this  statute,  the  2d  and  3d 
Aune,  c.  5,  was  made  to  repeal  this  exception,  and  to  put  them 
upon  the  same  footing,  in  this  respect,  as  persons  within  the  pro« 
Tince  of  York.  And  by  the  11th  G.  1.  c.  18,  the  citizens  and  free- 
men  of  the  city  of  London  are  al&o  enabled  to  devise  and  dispose 
of  their  pcrst^nal  estate,  in  such  manner  as  they  shall  think  fit, 
except  where  they  enter  into  any  agreement  on  marriage,  or  other- 
wise, that  their  personal  property  shall  be  subject  to  or  distributed 
by  the  custom.  In  cases  of  intestacy,  the  property  becomes  sub- 
ject to^  and  distributable  according  to  the  custom. 


Sm.  1.  ProgreMs  of  the  Lata. 

According  to  the  author  of  the  Commeataries^  '[  by 
the  ancient  common  law  of  the  land,  and  which  con- 
tinued at  the  time  of  Magna  Charta^  a  man's  goods 
were  to  be  divided  into  three  parts,  of  which  one 
went  to  his  heirs^  or  lineal  descendants,  another  to 
his  wife,  and  the  third  was  at  his  own  disposal ;  or  if 
he  died  without  a  wife,  he  might  dispose  of  one  moi-^ 
ety,  and  the  other  went  to  his  children.  If  he  had  no 
chQdren,  the  wife  was  entitled  to  one  moiety,  and  he 
might  bequeath  the  other ;  but  if  he  died  without 
wife,  or  issue,  the  whole  was  at  his  own  disposal. 
The  shares  of  the  wife  and  children  were  called  their 
reasonable  parts,  and  the  writ  de  rationabUi  parte 
honorum,  was  given  to  recover  them. 

In  the  reign  of  Edward  the  Third,  this  right  of  the 
wife  and  children  was  still  held  to  be  the  common  law^ 
though  frequent^  pleaded  as  the  local  custom  of  Berks, 
Devon,  and  other  cdunties ;  and  Sir  Henry  Pinch  lays 
it  down  expressly  to  be  the  general  law-  of  the  land, 
in  theVeign  of  Charles  the  First.  But  the  law  has 
since  been  altered  by  imperceptible  degrees,  and  the 
deceased  may  now  by  will  bequeath  the  whole  of  his 
goods  and  chattels,  though  it  would  be  difficult  to 
trace  out  when  this  alteration  began  ^/'  (5) 

*  2lBl.Coni.491.2. 


(6)  This  difference  in  importance  between  land  and  goods  arose  Of  the 
oat  of  the  principles  of  the  feudal  system.     According  to  the  law  of  jJ^Z^^ath- 
Rome,  no  such  difference  subsisted.     The  general  representatire  ing  lega. 
WIS  the  heir,  and  by  that  title  he  succeeded  as  well  to  the  move-  different 
Mt9  as  immoTeables.    And  when  the  whole  subsUnce  deToWed,  Jjj^^^ 
tht  difference  was  only  between  him  who  was  appointed  heir  by  law. 


10  Making  and  publishing  WiUs.    CaaP.  I. 

the  raperior^  the  feudatory  often  contrived  to  ftlie« 
nate  by  a  donation  by  deed^  made  on  the  bed  of  deaths 


In  Turtue  of  this  ordinance,  and  in  prosecation  of  its  spirit,  a 
more  liberal  interpretation  obtained  in  the  construction  of  testa- 
ments, in  which  from  thenceforward  the  intention  of  the  testator 
was  the  principal  object  of  enquiry,  and  a  numerous  description  of 
persons  whom  the  rigour  of  the  jim  civilis  had  deemed  incapable  of 
taking  by  way  of  legaa^y  such  as  the  banished,  the  childless,  per* 
sons  livipg  in  celibacy,  and  strangers,  were  rendered  capable  of 
taking  by  will,  and  the  circuity  and  precariousness  of  a  trust  were 
avoided ;  and,  on  the  other  hand,  to  equalize  the  advantages  res- 
pectively belonging  to  the  legaiawad  the  Juki^cammiisa,  instead  of 
the  extraordinary  and  sometimes  dilatory  process  by  which  the 
Jidei^commissa  were  enforced,  the  ordinary  remedy  by  the  oc^io  ex 
teitamenio^  and  even  the  ret  vtndicaiioj,  in  the  cases  where  it  ap- 
plied, were  opened  to  all  descriptions  of  legataries. 
Of  the  do-  rThe  donatio  causA  mortis  is  a  title  of  the  civil  law,  and  of  our 
o^l^n,  to  which  the  attention  of  the  diligent  student  should  be  di- 
rected. In  the  text  of  the  Institutes  of  Justinian,  lib.  7,  it  is  thus 
defined,  or  rather  described ;  Mortis  gausA  donatio  est^  qiueprqp* 
ter  mortis  Jit  suspicionem  quum  quis  ita  domUj  ut  si  quid  humanitus 
ei  contigissety  kaberet  is,  qui  accipit :  sin  autem  super  vixisset  is  qui 
donavity  reciperet:  vel  si  cum  donationis  pcmituissetj  tust  prior  de^ 
eesserU  isy  eui  donatum  sU,  Hee  mortis  causA  donationes  ad  exem^ 
plum  iegatorum  redacta  sunt  per  omnia.  Nam  cum  precedentibus 
ambiguum  Jueraty  utrum  donationisy  an  legati  instar  earn  obtinere 
aporterety  ei  utriusque  causa  qutpdam  habebat  insignioj  et  alH  ad 
aliud  genus  earn  retrahebanty  a  nobis  consiitutum  est^  utper  omnia 
fere  legatis  connumeretur^  et  sic  procedaty  quern  ad  modum  nostra 
constitutio  eam  formavit.  Et  in  summA  mortis  causA  donatio  esty 
quum  magis  se  quis  velit  habere^  quam  eum^  cui  donaty  magisque 
eumy  cui  donaty  quam  haredeni  suum :  which  description  the  Em- 
peror illustrates  by  an  example  from  the  Odyssey,  of  the  gift  of  Te- 
lemachus  to  Piraeus.  (See  also  other  examples  of  the  antiquity  of 
this  species  of  gift  in  Taylor's  Elements  of  the  CitiI  Law,  p.  536-7.) 
According  to  Vinnius,  in  his  Commentaries  on  this  description  of 
the  donatio  causA  mortisy  M  is  not  necessary  to  the  constitution  there- 
of, that  the  giver  should  be  in  actual  and  imminent  danger  of  death, 
but  it  is  enough  if  he  be  mored  by  the  general  Gonuderation  of 


futio  commA 
mmiis. 


Sect.  1.  Progress  of  the  Law.  11 

mortis  eausa ;  which^  beings  a  gift  to  take  effect 
in  point  of  forsa^  de  presently  though  its  real  effed; 


mortality,  iola  cogitatione  mortalitaiis  exsorte  hummnaj  proYided  he 
expressly  declares  at  the  time,  that  he  gives  with  such  expectation 
and  intention,  otherwise  the  gift  will  be  construed  a  pure  and  sim- 
ple donaiio  inter  vhos,  and,  conseqnentty,  will  not  be  rerocable. 
The  same  account  of  it  is  given  by  Swinbnrn,  in  the  seventh  section 
of  his  Treatise  on  Testaments  and  Wills.  But  in  onr  courts  of 
equity,  the  description  of  this  species  of  donation  has  been  confined 
within  narrower  bounds,  being  limiteJ  to  those  cases  where  a  man 
lying  in  extremity,  or  being  surprised  with  sickness,  and  having  no 
opportanity  to  make  his  will,  lest  he  should  die  before  he  can  make 
It,  gives  with  his  own  hands,  his  goods  to  his  friends  about  hhn. 
This,  says  Lord  Cowper,  if  he  dies,  shall  operate  as  a  legacy,  but  if 
he  recovers,  then  the  property  thereof  reverts  to  him."  See  Gilb. 
Eq.  Rep.  12,  13.  Prec.  in  Chan.  269  ;  and  see  3  P.  Wms.  358.  I  P. 
Wms.  405.  442.  1  Vez.  jun.  547,  The  reader,  however,  will  find 
ia  Still  V.  Chapman,  2  Bro.  C.  R.  612.  a  decision  of  Lord  Thur- 
low  on  this  subject,  conformable  to  the  explanation  given  in  Vinni- 
usand  Swinburn,  as  above-mentioned. 

It  appears  quite  clear,  according  to  all  the  authorities,  that  there 
mast  be  a  delivery  of  the  thing  by  the  giver  in  his  lifetime  ;  and  we 
observe,  that  Lord  Cowper^s  expression,  in  the  case  of  Hedges  r. 
Hedges,  Prec.  in  Chan.  269,  was  ^^  gives  with  his  own  hftnds." 
And,  by  Lord  Hardwicke,  in  the  case  of  Shargokit).  Shargold,  2 
Vez.  431,  it  was  said,  that  the  delivery  must  be  aciuai,  and  that 
UB^mboikai  delivery  would  not  do  ;  for  which  reason  his  Lordship 
held,  that  a  delivery  of  receipts  for  S.  S.  Ann.  made  in  the  donor's 
last  illness,  and  experssly  in  contemplation  of  death,  was  not  a 
good  donatio  mortis  caus6 ;  consequently,  said  his  Lordship, 
this  was  merely  legatory,  and  amounted  to  a  nuncupative  will, 
and  was  contrary  to  the  statute  of  frauds ;  for  if  the  necessity 
for  delivery  be  taktfn  from  the  thing,    it  remained  merely  nun- 

capative. 

Upon  the  same  ground,  his  Lordship  held  that  it  was  impossible 
to  make  a  donation  mortis  causA  of  stock  or  annuities,  because  in 
their  nature  they  were  not  capable  of  actual  delivery ;  and  that, 
therefore,  there  could  not  be  a  gift  tausA  mortii  of  them,  without  a 


V 


13  Making  and  pubUsking  Wills,      Chaf.  I. 

was  postponed  to  the  death  of  the  grantor^  might  in** 
troduce  this  ambiguous  kind  of  testamenti  /actio,  with 


transfsry  or  something  amounting  to  a  transfer.  And  upon  the 
fame  principle  it  was  judged,  in  Miller  v.  Miller,  3  P.  Wms.  356, 
that  a  note  for  1001.  being  merely  a  chose  in  action,  could  not  be 
the  subject  of  a  donatio  causA  mortis* 

But  still,  perhaps,  if  such  a  delivery  be  made  as,  in  gifts  inter 
vivos  J  would  actually  transfer  the  property  in  the  thing,  and  giye 
the  possession  in  law,  this  will  be  a  sufficient  delivery  to  support 
the  act  as  a  donatio  mortis  causA;  for  the  nature  of  the  thing  must 
be  respected  in  all  transfers.  Thus  in  the-  case  above  cited,  of  the 
gift  of  the  receipts  for  S.S.Ann,  it  seemed  to  be  admitted  by  the 
Chancellor,  that  the  transfer  of  the  stock  itself  would  have  been 
effectual.  And,  perhaps,  Ijord  Hardwicke  designed  in  the  case 
above  cited  to  deny  the  efficacy  of  a  ^mholical  delivery  only  where 
the  thing  was  susceptible  of  a  specific  and  manual  delivery.  The 
decision  of  Lawson  v,  Lawson,  1  P.  Wms.  441,  wherein  a  man  upon 
his  death-bed  had  drawn  a  bill  upon  a  goldsmith,  to  pay  1001.  to 
A' 8  wife  to  buy  mourning,  is  an  instance  of  an  effectual  appoint* 
ment  in  the  nature  of  a  donatio  mortis  causA  ;  and  see  Tate  v.  HiU 
bert,  2  Vez.  jun.  Ill,  wherein  that  decision  was  approved  by  Lord 
Loughborough  ;  his  Lordship,  at  the  same  time  observing,  that  the 
report  in  2  P.  Wms.  was  incorrect,  as  it  appeared  from  the  Regis* 
ter's  book  that  the  direction  for  mourning  was  indorsed  upon  the 
bill,  in  the  donor's  hand-writing.  It  will  be  seen  also  by  the  casei 
of  Still  0.  Chapman,  2Bro.  C.R.  612,  and  Snellgrove  v.  Bailey, 
3  Atk.  214,  that  both  bank  notes  and  even  bonds  have  been  held 
to  be  capable  of  a  sufficient  delivery  to  constitute  a  good  donatio 
causA  mortis. 

The  princij^l  circumstances  which  distinguish  the  donatio  mortis 
eausA  from  the  proper  legacy j  should  be  attended  to.  The  points 
also  of  resemblance  should  be  carefully  marked.  And  principally, 
on  this  head,  the  ambulatory,  imperfect,  and  revocable  nature  of 
both  will  occur  as  the  most  important  article  in  which  they  agree  i 
and  on  the  other  hand,  the  principal  difference  between  them, 
seems  to  consist  in  the  independence  of  the  title  of  the  donee  of 
the  gift  cttusA  mortis^  on  the  act  or  consent  of  the  representative. 
The  same  grounds  of  difference  distinguished  them  in  the  civil  law^ 


Sect.  1 .  Progress  of  the  Law.  IS 

less  novelty  of  principle*.  It  seems,  indeed,  that  the 
consent  of  the  heir  was,  at  first,  and  for  a  long  con- 
tinuance, thought  necessary  to  these  alienations  by 
deed,  in  prospect  of  death ;  though,  according  to  some 
writers^  this  practice  was  worn  out  before  the  statutes 
of  Henry  the  Eighth*.  It  seems,  that  soon  after  the 
statute  of  quia  emptores  had  concurred  with  other 
causes,  to  render  the  testamentary  power  over  land  as 
well  as  moveables  an  object  of  universal  desire,  the 

•  GlanT.  lib.  7.  c.  1. 
*  See  Dal.  on  Feuds,  c.  3.  sect.  1,  and  Spellman's  Remains ;  aUo 

_  » 

GlauY.  1.  7.  c.  1. 


donaiio  hac  ab  additione  hceredUatis^  sicut  legatum  non  pendet^  sed 
tola  morte  confirmaiur  donantis.  It  should  be  observed  also,  that 
m  donatio  causA  mortis  differs  from  a  legacy  in  its  exemption  froin 
the  jarisdiction  of  the  ecclesiastical  courts,  2  Vez.437  j  and  again 
resembles  it  in  its  liability  to  debts  upon  a  deficiency  of  assets;  see 
Smith  V,  Cason,  at  the  end  of  Drury  r.  Smith,  1  P.  Wms.  406.  It 
is  liable  to  the  duties  on  legacies,  imposed  by  the  late  acts  of  par- 
liameat ;  and  with  the  Romans  it  fell  under  the  restraints  of  the 
iex  Falddia  as  well  as  legacies.  They  are  both  liable,  according 
to  oor  laws,  to  be  defeated  by  creditors. 

Finally  it  may  be  observed,  that  the  fact  of  the  gift  mortis  causd 
Is,  in  our  law,  to  be  proved  in  the  same  manner  as  other  facts  are 
to  be  proved  ;  whereas,  in  the  law  of  the  empire,  it  was  a  point 
of  resemblance  between  this  gift  and  a  legacy,  that  the  former  was 
necessary  to  be  proved  by  five  witnesses;  which  wa»  the  number 
necessary  to  the  proof  of  a  codicil,  or  any  instrument  of  a  testa- 
mentary operation  which  was  not  in  strictness  a  testament  accord- 
ing to  its  definition  in  the  civil  law. 

If  the  gift  be  made  and  authenticated  by  a  written  instrument, 
without  any  actual  delivery,  but  the  deed  or  instrument  conveys 
an  interest  to  take  effect  absolutely  in  possession  at  the  decease  of 
the  donor,  this  cannot  be  effectuated  as  a  donatio  causA  mortisy  but 
Uiere  seems  to  be  no  reason  whj^  it  should  not  operate  as  a  testa* 
iientaiy  disposition. 


14  Making  and  publishing  Wills.     Chap.  I 

difficulty  arising  from  the  necessity  of  livery  of  seisin 
ym%  eluded^  by  the  practice  of  making  feoffments  to 
uses^  over  which^  by  the  assistance  of  the  courts  of 
equity,  wherein  declarations  and  dispositions  in  re- 
spect to  those  uses  were  carried  into  effect,  if  made 
upon  good  consideration^  a  power  of  disposing  by 
will  might  be  exercised.  And  if  these  creations  of 
uses  were  adopted  from  the  civil  law,  we  may  conjec- 
ture that  our  ancestors  were  led  more  easily  into  the 
practice^  by  the  notions  they  had  previously  learned 
to  entertain  of  a  distinction  between  the  legal  and  be*** 
neficial  property,  from  their  reservations  oii\i^  domi- 
nium directum,  abstracted  from  the  dominium  utile, 
in  their  first  feudal  donations. 

It  is  well  known^  however^  that  by  the  statute  27 
H.  8.  c.  10.  this  method  of  virtually  disposing  of  land 
by  will  was  disturbed.  For  by  that  statute,  the  use, 
as  ^oon  as  it  was  created,  became  the  legal  estate^ 
which  was  immediately  carried  to  and  executed  in  the 
cestui  que  use,  so  that  wills  lost  their  operation  qp  the 
use  raised  directly  upon  a  feoffment.  It  was  still, 
however,  in  the  power  of  individuals  to  elude  the 
statute,  and  to  keep  the  legal  separate  from  the  bene- 
ficial interest,  by  means  of  an  use  raised  upon  an  use, 
or  a  second  use,  which  the  courts  construed  to  be  out 
of  the  reach  and  operation  of  the  act,  and  thus  trans- 
ferred them  to  the  jurisdiction  of  equity,  under  the 
denomination  of  trusts.  In  a  very  few  years  after- 
wards, however,  an  end  was  in  a  great  measure  put 
to  these  artifices,  by  the  statutes  of  32  Hen.  8.  c.  1. 
and  34 Hen.  8.  c.  5.  usually  called  the  statutes  of  wills. 

By  these  statutes,  all  persons  having  any  manors^ 
lands,  tenements,  or  hereditaments,  in  possession,  re* 


Sect.  1 .  Progress  of  the  Law^  15 

version^  or  remainder^  holden  by  socage  tenure,  or 
in  the  nature  of  socage  tenure,  and  having  no  lands 
held  in  capites  or  by  knight's  service,  were  enabled 
to  devise  all  their  lands,  or  any  rents,  commons,  or 
profits,  out  of  them,  to  any  person,  in  fee  simple, 
fee  tail,  for  life,  or  for  years,  at  their  pleasure.  Those 
holding  of  the  king  in  capite  by  knight's  service,  or 
by  knight's  service  and  not  in  chief,  or  of  any  com- 
mon person  by  knight's  service,  might  devise  two 
parts  thereof  in  three,  and  no  more  ;  the  other  third 
part  being  to  descend  to  the  heir,  for  satisfying  the 
duties  of  the  tenure,  and,  therefore,  the  devise  of  the 
whole  land  in  such  a  case  would  be  void.  The  per- 
son holding  any  such  land  by  knight's  service  in  ca- 
pite, and  other  lands  by  socage  tenure,  might  devise 
two  parts  of  the  whole,  and  no  more,  or  any  rent, 
&c.  out  of  it,  at  his  pleasure.  He  that  held  lands  of 
the  king  by  knight's  service  only,  and  not  in  capite, 
as  if  a  mesne  lord  by  knight's  service  had  also  other 
lands  held  by  socage  tenure,  might  devise  two  parts 
in  three  of  all  the  land  held  by  knight's  service,  or 
any  rent,  &c.  out  of  it,  and  all  his  socage  lands  at 
pleasure.  But  which  disposing  power  was  only  to  be 
exercised  by  a  will  or  testament  committed  to  writing, 
in  the  life-time  of  the  testator. 

By  the  conversion  of  military  tenures  into  common 
socage^  the  statute  13  Car.  3. 34,  brought  the  greatest 
portion  of  the  lands  of  this  kingdom  within  the  above- 
mentioned  statute^  of  Hen  8.  and  made  them  dispose- 
able  by  the  last  wills  of  such  as  possessed  them  in  fee 
simple.  By  this  statute,  which,  as  the  title  declares, 
was  ^^  for  taking  away  the  court  of  wards  and  liveries, 
and  tenures  in  capite,  and  by  knight's  service^  and 
purveyance^  and  for  settling  a  revenue  upon  his  ma- 


16  Making  and  publishing  Wills.      Chap.  L 

jcsly  in  lieu  thereof/*  all  tenures  by  knight's  service 
of  the  king^  or  of  any  other  person^  and  by  knight's 
service  in  capite,  and  by  socage  in  capite  of  the  king, 
and  the  fruits  and  consequents  thereof,  are  taken 
away  and  converted  into  free  and  common  socage : 
and  it  is  tfiereby  enacted,  that  all  tenures  thereafter  to 
be  created  by  the  king,  his  heirs  or  successors,  upon 
any  grants  of  any  manors,  lands,  or  hereditaments, 
of  any  estate  of  inheritance,  at  the  common  law,  shall 
be  free  and  common  socage,  and  not  by  knight 's-ser~ 
vice,  or  in  capite. 

But  the  tenure  by  copy  of  court  roll,  and  the  ser- 
vices incident  to  the  same,  are  untouched  by  this  act 
of  Charles  2.  nor  do  the  statutes  of  Hen.  8.  above- 
mentioned  extend  to  them,  as  they  do  not  come  within 
the  description  of  socage  tenure.  The  tenure  in 
frankalmoign,  and  the  honorary  services  of  grand  Ser- 
jeants, other  than  of  wardship,  marriage,  and  the 
charges  incident  to  the  tenure  by  knight's  service, 
were  likewise  unaffected  by  this  act  of  Charles^. 

The  loose        It  appears,  however,  that  there  was  something  to 
tion  of  the   regret  in  the  almost  boundless  facility  which  was  given 
wuii.    ^    to  the  testamentary  power,  by  the  operation  of  these 
statutes ;  in  so  much  that  a  celebrated  writer  has  re- 
marked, in  speaking  of  the  operation  of  the  statute 


*  This  Act  made  some  alterations  also  in  socage  tenure.  It 
took  away  the  aids  pur  file  marier,  and  pur  faire  fitz  chevalier^ 
which  were  incident  to  ail  socage  tenutes.  And  it  relieved  soc- 
cage  in  capite  from  the  burthen  of  the  King's  primer  seizin,  and 
fines  of  alienation  to  the  King,  to  both  of  which  socage  in  capite 
was  equally  liable  with  tenure  by  Knight'^  serTice.  See  Harg.  Co. 
Litt.  98.  c.  (3). 


Sj8fif.l.  Progress  of  the  Latd,  17 

of  wilb^  thM  experience  soon  shewed  how  difficult 
&nd  hazardous  a  thing  it  is^  even  in  matters  of  public 
utility^  to  depart  from  the  rules  of  the  common  Iaw> 
which  are  so  nicely  constructed^  and  so  artificially 
connected  together^  that  the  least  breach  in  any  one 
of  them^  disorders^  ibr  a  time^  the  texture  of  the 
whole.  Innumemble fmilids  and  perjuries  were  quickly 
introduced  by  this  parliamentary  method  of  inheri-  • 
tance  >  ifor  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 
g^ood  wills  within  the  statute. 

It  appears  by  the  cases  upon  this  statute^  that  the 
testament  of  lands  and  tenements  ought  not  only  to  be 
in  writings  but  that  it  must  be  committed  to  writing 
&t  the  time  of  making  thereof^  or  at  least  in  the  life- 
time of  the  testator ;  and  that  it  is  not  sufficient  to 
put  it  into  wtiting^  after  the  testato):'s  death.  But  if 
the  will  be  made  by  parol^  and  is  afteirwards  written, 
ftnd  then  carried  to  the  testator  for  his  approbation, 
and  he  approves  of  it^  it  is  a  good  will  of  lands^  under 
the  statutes  of  Henry  the  Eighth ;  and  it  has  been 
held^  that  if  the  testator^  when  he  declared  his  will 
by  word  of  mouth,  had  ordered  the  same  to  be  writ** 
ten^  and  the  will  was  accordingly  written  in  his  life- 
time^ the  testament  was  as  good  as  if  it  had  been  writ- 
ten at  first.  But,  if  a  man  were  on  his  death-bed, 
and  another  came  to  him,  and  asked  him  whether  his 
^fe  should  have  his  land,  to  which  he  answered,  yes, 
^r\A  a  clerk  being  present  did  put  this  into  writing, 
without  any  precedent  command,  or  subsequent  al- 
lowance of  the  sick  person,  this  was  not  a  good  testa- 
inent  of  land,  according  to  the  exigency  of  the  statute 
of  wills ;  and  if  a  man  declared  his  will  before  wit- 


18  Making  and  publiaMng  Wills.     Chap.  I. 

nasBes^  and  sent  for  a  notary  to  write  it,  and  died  be- 
foie  he  came^  and  then  it  was  written,  this  was  no 
good  will  of  lands,  though  it  would  have  been  suffi- 
cient, at  that  time,  as  a  nuncupative  will  of  chattels. 

But  if  a  notary  took  direction  from  a  sick  person  for 
his  will,  and  afterwards  went  away  and  wrote  it,  and 
then  brought  it  again,  and  read  it  to  the  testator^  who 
approved  of  it,  or  if  it  were  virritten  from  his. mouth 
by  the  notary,  by  the  direction  of  the  testator  himself, 
although  it  were  not  shewn  or  read  to  him  afterwards, 
these  were  held  to  be  valid  dispositions  of  land,  under 
the  statutes  of  Hen.  8.  And  further,  it  has  been  held 
upon  these  statutes,  that  if  a  notary  did  only  take  rude 
notes  or  directions  from  a  sick  man,  which  he  did 
agree  to,  and  they  were  afterwards  written  fair  in  his 
life-time,  and  not  shewn  to  him  again,  or  not  written 
fair  till  after  his  death,  this  was  an  effectual  will  to 
dispose  of  lands'. 

In  the  case  of  Laurence  v.  Kete',  we  have  the  sen- 
timents of  the  judges  much  at  large,  respecting  the 
sufficiency  of  a  will  under  these  statutes.  A.  being 
sick,  said  that  he  had  devised  all  his  lands  to  his  wife, 
-for  life,  and  limited  several  remainders  of  several  par- 
cels of  them,  and  about  an  hour  afterwards  expressed 
a  wish  that  one  K.  were  there  to  write  his  will,  where- 
upon the  wife,  without  acquainting  her  husband  with 
it^  sent  for  K.  who,  from  the  mouth  of  the  witnesses 
who  heard  the  devise^  wrote  the  same ;  but  because 
they  differed  in  their  testimony,  touching  the  limita- 
tions of  the  remainders,  he  wrote  two  wills,  and  this 
without  the  privity  of  the  husband,  who,  before  the 

*  Perk,  fleet.  476,  477*     Dyer,  53.  72.  Piowd.  g45.  4 Rep.  60. 
'AUeynR^.54. 


Sect,  1.  Progress  of  the  Law.  19 

writing  was  finished^  became  senseless^  and  presently 
afterwards  died» 

And  thereupon  the  following  points  were  agreed  to 
by  the  court,  and  given  in  charge  to  the  jury  :  1st, 
That  an  actual  devise  by  word,  is  no  sufficient  ground 
for  a  stranger  to  write  the  will,  but  there  ought  to  be 
an  actual  desire  expressed  to  have  the  will  written ; 
nor  is  a  bare  wishing  sufficient ;  there  should  be  an 
actual  willing.  2.  That  this  desire  ought  to  be  ex- 
pressed in  some  short  space  of  time  after  the  devise, 
80  that  it  may  be  regarded  as  one  continual  act ;  for 
if  the  devise  be  made  at  one  time,  and  at  another  time 
the  devisor  sends  for  a  person  to  write  his  will,  a  new 
declaration  will  be  necessary  to  make  it  effectual.  3. 
That  an  actual  desire  of  the  husband  that  K.  were 
there  to  write  his  will,  was  a  sufficient  ground  for  the 
wife  to  send  for  him,  though  the  devisor  gave  no  ex- 
press directions  to  do  it.  4.  That  the  writing  the  will 
from  the  mouth  of  witnesses  was  sufficient,  and  it  need 
not  be  from  the  mouth  of  the  testator.  5.-  If  witnesses  ^ 
agree  as  to  the  devise  for  life,  the  wirf  stands  good  for 
that,  though  they  disagree  as  to  the  limitation  of  the 
remainders.  6.  Though  the  devisor  becomes  sense- 
less before  the  will  be  written,  yet,  if  it  be  written  be- 
fore he  dies,  it  is  a  good  will  in  writing.  7.  If  a  will 
continue  in  writing  at  the  time  of  the  death  of  the 
testator,  though  it  be  lost  or  burned  afterwards,  it 
stands  good ;  but  if  it  be  burned  at  the  time  of  his 
death,  then  the  devise  is  void.  The  next  day  the  jury 
gave  a  verdict  against  the  will,  because  the  evidence 
was  not  clear  as  to  the  testator's  desire  to  send  for  K. 
There  was  a  motion  for  a  new  trial,  upon  pretence  of 
partiality  in  some  of  the  jurors,  but  Ihe  motion  did 
not  succeed. 

c  e 


20  Making  and  publishing  Wills.      Cnkf.  t. 

m 

The  case  of  Stephens  v.  Gerrard*,  has  been  said  to 
have  given  rise  to  the  clause  respecting  the  signattcre 
and  attestation  of  wills  in  the  statute  of  frauds.  Some 
loose  sheets  of  paper  were  there  produced  as  the  will 
of  Sir  Edward  Worsley^  and  a  title  was  set  up  under 
them  in  favour  of  his  natural  daughter :  they  were 
written  by  one  Baytibam>  an  attorney  of  Gray's  Inn* 
Sir  Edward  had  not  signed  them^  and  there  was  no 
evidence  offered  to  prove  them  published^  but  that  of 
Baynham;  whose  evidence^  according  to  Siderfin, 
made  it  appear^  that  Sir  Edward  had  dictated  a  writing 
made  by  him^  and  had  caused  it  ^o  be  interlined^  and 
had  said  that  he  intended  to  write  it  over  again  him- 
self^ but  that  in  the  mean  time  what  was  written  should 
be  his  will^  though  he  refused  at  that  time  to  sign  and 
publish  it  as  such  ;  and  the  conclusion  of  it  as  it  stood 
was  as  follows^  ''  in  witness  whereof  I  have  put  my 
hand  and  seal  to  every  sheet/'  but  in  fact  his  hand  and 
seal  were  not  put  to  any  one  sheet ;  the  courts  ne- 
vertheless^  held  this  to  be  a  sufficient  will^  and  so  the 
jury  found  it* 

Tiiese  These  loose  constructions  of  the  statute  of  wills, 

strnctions    which  afforded  such  facilities  to  designing  persons  of 
tuteofwiUfl  practisincc  upon  the  weakness  of  men  on  the  bed  of 

called  for       .  ,  4.    ^        .  .  .  j 

the  formal  siCKuess^   or  of  forgiilg  testamcuts  and  supporting 
imposed  by  them  by  peijury,  when  the  lips  of  the  party  were 
6th  s^*°    closed  for  ever,  induced  the  legislature  to  interpose 
Matnu'^of^  some  additional  guards  for  the  protection  of  these  last 
frauds.       ^^^  ^^^j  interesting  dispositions  of  property.    By  the 
statute  of  29  Cair.  2.  c.  3.  it  was,  therefore,  enacted^ 
that  ''  all  devises  and  bequests  of  any  lands  or  tene- 
ments^ deviseable  either  by  force  of  the  statute  of  wills, 
or  by  that  statute  or  by  force  of  the  custom  of  Kent, 

'  Si(I.315.2Kebl.l98. 


qECT.  1.  Progress  of  the  Law,  21 

or  the  castom  of  any  borough^  or  any  other  particu^ 
lar  custom,  shall  be  in  writing,  and  signed  by  the 
party  so  devising  the  same,  or  by  some  other  person 
in  his  presence,  and  by  his  express  directions,  and 
shall  be  attested  and  subscribed  in  the  presence  of  the 
said  devisor  by  three  or  four  credible  witnesses,  or  else 
they  shall  be  utterly  void  and  of  none  effect/' 

It  is  considered  by  Swinburn  among  the  advantages  it  was  aq 
of  a  written  testament,  that  the  testator  has  thereby  of  tlie  wnt. 
an  opportunity  of  concealing  the  contents  from  the  that  tL 
witnesses,  which  he  cannot  do  when  he  makes  a  nun-  i^ghTbe 
cupative  testament.    For,  says  he,  (after  enumerating  from^the 
many  of  the  motives  which  may  rationally  influence  ^^^^*'**« 
the  testator  to  keep  those  in  expectancy  ignorant  of 
his  last  dispositions,)  in  these  and  the  like  cases,  aftei^ 
the  testator  has  written  his  will  with  his  own  hand,  or 
procured  some  other  to  write  the  same,  he  may  close 
up  the  writing  without  making  the  witnesses  privy  to, 
the  contents  thereof;   and  shewing  the  same  to  the 
witnesses,  he  may  say  unto  them.   This  is  my  last  wilt 
and  testament;  or  herein  is  contained  my  last  will,  an4 
this  is  sufficient, 

Nor,  continues  \\^,  is  the  instrument  the  less  avail-^ 
able,  because  the  witnesses  do  oat  know  what  is  con- 
tained in  the  same,  in  case  the  witnesses  be  able  to 
prove  the  identity  of  the  writing ;  that  is  to  say,  that 
the  will  produced,  is  the  very  same  writing  which  the 
testator  in  his  life-time  affirmed  before  them,  to  be  hia 
will :  otherwise^  the  will  can  have  no  effect  through 
defect  of  sufficient  proof.  The  same  writer,  there* 
fore,  recommenda^  lest  the  will  should  fail  for  want  of 
sufficient  proofs  when  the  testator  would  not  have  the 
contents  knowui  that  the  witnesses  should  write  Uicir 

3 


« 

ti  Making  and  publishing  WiUs.     Chap.  I 

Barnes  cm  the  back^  or' on  some  part  of  the  tefitament^ 
or  use  soQfie  othef  means  that  mi^t  enable  them  to 
depose  and  t^tify  undoubtingly^  that  the  same  is  the 
very  writing  itself^  which  the  testator  affirmed  to  be 
his  wilP. 

iTiU  ad-         What  Swinburn  here  recommends  in  practice,  be- 

Tantage  *  ' 

exirts  e-      came  soon  afterwards  the  law  of  the  land,  by  the  wise 

aually  un-  -^ 

erthento-  enactments  of  the  statute  of  29  Car.  II.  which,  while 

tute  of 

Charles,  it  gavc  to  the  declaration  of  a  man's  last  will  the 
solemn  notoriety  of^a  triple  attestation,  preserved  to 
testators  all  the  advantages  of  the  written  form ;  for 
though  by  the  statute  of  Charles,  the  three  witnesses 
must  sign  in  the  presence  of  the  testator,  it  is  no  more 
necessary  for  them  than  for  the  witnesses  who  were 
voluntarily  called  in  by  a  testator  to  attest  the  instru- 
ment in  writing,  under  the  statute  of  Henry  the 
Eighth,  to  be  privy  to  the  contents  of  the  instrument. 

In  Peate  v,  Ougley ",  which  was  after  the  statute  of 
Charles,  a  testator  produced  to  the  witnesses  a  paper 
folded  up,  and  desired  them  to  set  tlieir  hands  to  it  as 
witnftses,  which  they  all  did  in  his  presence,  but  they 
did  not  see  any  of  the  writing,  nor  did  he  tell  them  it 
was  his  will,  or  express  what  it  was :  but  it  was  all 
written  with  the  testator's  own  hand.  It  was  object- 
ed, that  this  was  not  a  good  execution  of  the  will 
within  the  statute ;  for  that  it  was  not  enough  that 
the  witnesses  wrote  their  names,  they  ought  to  attest 
the  signing  by  the  testator,  or  at  least  the  publication 
of  the  will ;  but  that  the  testator  neither  signed  the 
will  in  their  presence,  nor  declared  it  to  be  his  last 
will  before  them.    On  the  other  side  it  was  insistec^ 

'^"Swinb.  on  Test.  part.  1.  sect.  11.  God.  0.  L.  66. 

•  Com.  197.  "  ' 


Ascr.  1.  Progress  of  the  Lavf.  '  '  8S 

that  th^  execution  was  sufficient'within  the  statute ; 
for  that  there  was  no  necessity  for  the  witnesses  to 
$ee  the  testator  write  his  name ;  and,  if  he  wrote 
these  words,  signed,  sealed,  and  pyhlished  as  his  will^ 
and  desired  the  witnesses  to  subscribe  their  names  to 
that,  it  was  a  sufficient  publication  of  his  will,  though 
the  witnesses  did  not  hear  him  declare  it  to  be  his 
tDiU.  And  Trevor  J.  inclined^  that  there  was  suffi'* 
cient  evidence  of  the  execution* 

But  the  case  of  Trimmer  v.  Jackson  *  went  further^ 
for  there  the  witnesses  were  so  far  removed  from  a 
knowledge  of  the  contents,  that  they  were  actually  de- 
ceived as  to  the  nature  Bnd purpose  of  the  instrument^ 
which  they  were  led  to  believe^  from  the  words  used 
by  the  testator  at  the  time  of  the  execution,  was  a  deed 
and  not  a  will.  It  was  delivered  as  his  act  and  d^ed ; 
and  the  words  /sealed  and  delivered'  were  put  above 
the  place  where  the  witnesses  were  to  subscribe  their 
names ;  and  in  consideration,  as  it  is  said,  of  the  in- 
convenience that  was  possible  to  arise  in  families  from 
its  being  known  that  a  person  had  made  his  will,  it 
was  adjudged  by  the  court,  that  this  was  a  sufficient 
execution. 

According  to  these  cases  it  not  only  appears  to  have 
been  the  opinion  of  the  courts,  that  it  was  unnecessary 
that  the  witnesses  should  be  privy  to  the  contents  of 
the  will  since  the  statute  of  Charles,  (as  it  certainly 
appears  to  have  been  held  upon  the  statute  of  Henry 
the  Eighth,)  but  they  seem  to  have  carried  the  allow- 
ance beyond  the  cases,  (loose  as  they  appear  to  have 
been,)  which  were  determined  upon  the  statute  of 

^  Cited  by  Denifion  J.  in  Wallis  o.  Wallis,  4  Barn.  Eccl.  L:i27. 

2 


24  Making  and  Publishing  Wills.    Chaf.  I* 

wills ;  foT,  as  we  learn  from  Swinbum^  the  authorw 
ties  go  no  farther  than  to  shew^  that  one  of  the  ad« 
vantages  of  the  written  testament  over  the  nuncupa^ 
tive  method^  (which  was  still  permitted,  where,  by 
the  customs  of  particular  places,  lands  were  devisa^ 
ble)  was  the  opportunity  it  gave  to  the  testator  to 
make  an  effectual  will,  without  disclosing  the  contents 
even  to  the  witnesses,  which  was  a  concealment  often- 
times of  importance  to  the  peace  of  families ;  but  then 
the  identity  of  the  will  ought  to  be  proved :  and 
therefore,  it  seems  to  have  been  a  common  idea  with 
the  writers  upon  the  subject  of  wills  previous  to  the  sta- 
tute 29  Car.  2.,  that*the  nature  of  the  instrument  or 
writing  ought  to  be  announced  or  published  by  the 
testator  to  the  parties  present 

A  reliance  upon  the  security  derived  from  the  at^ 
testation  by  three  credible  witnesses  in  the  presence  of 
the  testator,  may  account  for  the  little  importance  at- 
tributed by  some  of  the  judges  to  the  publication  of 
the  will  by  the  testator ;  so  little  indeed,  as  to  deem  it 
unnecessary  for  him  to  announce  or  declare  to  the 
witnesses  the  nature  of  the  instrument  they  were 
to  sigfn. 

In  the  case  of  Wallis  v,  Wallis  \  wherein*^  both 
Trimmer  v.  Jackson,  and  Peate  v.  Ougley  were  cit- 
ed, there  seems  to  have  been  some  doubt  on  the  sub- 
ject of  publication.  The  case,  however,  though  ar- 
gued only  at  the  assizes,  shews  the  opinion  of  Mr. 
Justice  Denison,  as  to  the  necessity  for  the  witnesses 
to  know  what  instrument  they  were  signing,  to  be  in 
correspondence  with  that  of  Lord  Mansfield,   and 

*  4  Bum.  Ecd.  L.  127. 


Sect.  St  Progress  of  the  Law.  25 

the  judges  "who  decided  the  case  of   Trimmer  t^. 
Jackson*. 


Section  II. 

J^stamentaty  Capacity. 

The  Statute  34  &  35  Hen.  YIII  which  explains  the  or  the  age 
power  of  devising  lands^  excludes  from  the  exercise  takes 
of  it  all  infants^  ideots^  femes  covert,  and  persons  of  ^  *^** 
Bonsane  memory.    There  has  been  some  diversity  of 
opinion  concerning  the  age  at  which  the  testamentary 
capacity,  as  to  personal  estate,  takes  place  ;  but  the 
doctrine  that  it  commences  in  males  at  14,  and  in 
females  at   12,  seems  to  he  most  relied  on".     Of 
lands  no  person  can  make  a  will  till  21,  by  the  words 
of  the  statute  of  wills,'  unless  by  the  special  custom  of 
particular  places  *.     And  it  seems  that  no  custom  can 
enable  a  miale  infant  to  make  any  will  before  he  is 
14  years  of  age  ^ 

A  woman  whose  husband  is  banished  for  life  may 
?Dake  a  Will  and  act  in  every  respect  as  a  feme  sole. ' 

But  regularly,  a  woman  under  coverture  cannot  Caparity 
makeawill^  either  of  lands  or  goods,  not  even  of  her  wom«o. 

*  Bat  obserre  wbat  was  said  by  Lord  Hardwicke  as  to  the  ne- 
cessity for  publication.  3  Atk.  161,  Ross  v.  Ewer. 

A  wUl  may  be  written  on  any  material^  or  in  any  language,  so 
A5,  If  it  concern  property  in  England,  it  be  framed  with  the  solem* 
Vatm  required  by  the  English  law.  Swinb.  p.  4.  S.  28.  1  Vern.  85. 

;  Harg.  Co.  litt.  89.  b.  "  Godolph,  Orph.  Leg.  ai. 

•  Law  of  Ex.  153.  »  2  Vern.  104. 


96  Making  and  Publishmg-WiUs.    Chap.   L 

paraphernalia^ ;  thoi^h  these  last  bectMne  absolutely 
her's  upon  her  husband's  deaths  and  in  the  qnean  time 
they  are  not  subject  to  his  disposition  by  will. '  He 
may  however  sell  or  give  them  away  in  his  life  time  ; 
and  if  he  leaves  an  insufficiency  of  assets  they  will  be 
subject  to  the  payment  of  his  debts.  *  It  has  neverthe- 
less been  decided  that  if  the  husband  pawn  the  wife's 
paraphernalia  and  die  leaving  a  fund  sufficient  to  pay 
all  his  debts  and  to  redeem  the  pledges^  she  is  enti- 
tled to  have  them  redeemed  out  of  bis  personal  estate  ^  • 
With  the  licence  and  consent  of  the  husband  a  wife 
may  make  testament  of  her  own^  and  it  is  said,  even 
of  the  husband's  goods  * ;  but  he  may  revoke  the  samey 
Bot  only  during  her  life^  but^  according  to  Swinburn^ 
after  her  deaths  before  the  will  is  proved.  If^  how- 
ever^  he  confirm  it  after  her  deaths  he  can  never  af- 
terwards depart  from  it.  But  that  such  an  instni- 
ment  is  entitled  to  be  called^  in  strictness^  a  will^  has 
been  doubted  and  denied  ^.  And  without  such  con- 
sent of  the  husband^  the  wife  has  no  legal  power  of 
making  any  testamentary  disposition  of  her  oioii  pro- 
perty^  not  even  of  her  debts  and  choses  in  action, 
which  are  not  divested  out  of  her  by  the  marriage, 
and  do  not  survive  to  the  husband.  But  she  may  make 
ker  husband  her  executor,  and  if  she  do  not,  and  die 
in  his  life-time^  he  is  entitled  to  possess  himself  of  her 
choses  in  action,  as  her  administrator. 

In  equity,  however,  effect  is  firequentty  given  to 
the  testamentary  dispositions  of  a  wife,  as  where  the 
husband  stipulates  that  certain  personal  property  shall 

^  TOU  Wr  bed,  wesring  appird,  and  onuMBts  of  lier  penoB 
if  suitable  to  ber  busfaand's  state  and  qvalitf. 

^3Atk.394.  W.  P.  Wms.  730.  *3Atk.395. 

"Swiab.  89.  ^SAik.49. 


Bect.  8,  Progress  of  the  Law.    -  2T 

be  enjoyed  by  the  wife  separately^  it  shall  be  enjoyed 
by  her  with  all  iU  incidents^  whereof  the  ju8  dispor 
nendi  is  one  ^  And  where  she  has  this  power  over 
the  principal^  she  must  necessarily  also  have  it  over 
its  produce  and  accretions  \ 

Of  the  Goods  and  Chattels  which  she  has  as  Execur 
trix  to  another  she  may  make  an  executor  without  her 
husband's  consent' ;  but  of  such  she  can  makr^  no -de- 
vise with  or  without  her  husband's  leave^  for  they  are 
not  deviseable. 

Wheresbe  makes  a  will  in  execution  of  a  power, 
though  this  is  not  in  strictness  a  will^  yet  it  is  an  act 
of  a  testamentary  nature,  and  must  be  proved  in  the 
Spiritual  Court,  or  the  legatee  cannot  entitle  himself 
in  a  court  of  law ;  and  the  course  is  not  to  give  pro- 
bate of  the  will,  but  administration  with  the  will  an- 
nexed, as  a  testamentary  paper  '.  Before  the  case  of 
Wright  V.  Cadogan  *,  it  was  well  established  that  eifeme 
covert  might  have  power  to  dispose  of  land  by  writing, 
in  the  nature  of  a  will,  so  as  to  bind  the  heir,  by  re- 
serving to  herself  on  her  marriage  such  right  by  way 
of  trust,  or  a  power  over  an  use  ;  but,  by  that  case, 
the  doctrine  was  carried  further ;  for  there,  articles 
having  been  entered  into  before  marriage  whereby  it 
was  stipulated  by  the  husband  that  all  the  estate  of  his 
future  wife,  which  she  then  had,  or  which  at  any  time 

*  3  Bro.  C.  C.   8.  Fettiplace  v.  Gorges. 

'  2  Vera.  635  Gore  v.  Knight,  Prec.  in  Ch.  255. 

Ml  Vin  Abr.  141. 

'  Dongl.  707/  Stone  v.  Forsyth.  3  Atk.  156.  Ross  v.  Ewer. 
1  Borr  431.  Jenkin  v.  Whitehouse  2  Bro.  C.  R.  392.  Cothay  v.  Sy* 
denhtm. 

'  6  Bro.  P.  C.  156. 


OS  Making  and  Publishing  Wills,    Chap.  II, 

should  descend  or  devolve  upon  her^  should  be  con-r 
veyed  to  her  o^vn  use,  and  subject  to  her  appoint* 
ment,  it  was  adjudged  that  an  appointment  execut- 
ed by  her  in  favour  of  her  husband,  and  her  child- 
ren  by  him^  was  a  good  appointment  against  the 
heir,  although  no  conveyance  was  ever  executed, 
nor  any  fine  levied  of  the  reversion  \ 

■ 

Mental  ^q  person  who  is  not  of  a  reasonable  mind  and  sane 

incapacity,  '■ 

fraud,  memory  can  make  any  disposition  by  will :  therefore 
an  ideot,  or  person  deprived  of  his  faculties  by  ex- 
treme age  ^  or  by  intoxication,  while  the  paroxysm 
endures,  is  not  of  testamentary  capacity  in  the  law. 
For  the  same  obvious  reason  a  lunatic  is  incapable  of 
disposing  of  his  property  by  will,  except  in  his  lucid 
intervals,  if  they  occur,  and  they  must  be  calm  and 
clear  intermissions,  attended  with  quietness  and  free- 
dom of  mind*.     If  a  will  by  a  lunatic  be  rationally 

^  See  the  notice  taken  of  this  case  iu  Doe  v.  Staple,  2T.  R.  684. 
^  6  Rep.  23  Marquis  of  Winchester's  case. 


*  A  qise  some  tittle  time  ago  was  determined  in  the  prorogati?e 
court  relati?e  to  the  yalidity  of  a  will  which  may  help  to  illustrate 
these  points.  A  will  of  F.  £.  Esqr.  was  propounded  by  S,  S.  Spin* 
ster,  named  an  executrix  therein,  and  opposed  by  the  widow  and  son 
of  the  testator. 

It  appeared  that  Mr.  E.  was  a  gentleman  of  respectable  connec* 
tions,  and  that  family  differences  had  produced  a  separation  by  mu<* 
tual  consent  between  him  and  Mrs.  £«  From  that  time  Mr.  £• 
took  up  his  residence  in  Yarious  parts  of  England,  and  being  in 
Want  of  a  person  to  superintend  his  domestic  arrangements,  he,  in 
May,  1806,  made  choice  of  Miss  S.  for  that  purpose.  He  was 
9hort]y  afterwards  seized  with  a  paralytic  affection,  from  the  ef« 
fects  of  which,  added  to  the  increasing  infirmities  of  age,  he  suffer^ 
ed  gieatly.    Through  the  interference  of  his  son  nt  this  juncture^ 


Sect,  ^i  Testafnentary  CapacUj/,  S9 

drawn  up^  and  the  nature  of  the  disorder  be  such  as 
to  afford  any  reasonable  ground  to  suppose  that  a  ]u- 


a  reconciliation  was  effected  between  the  deceased  and  his  wife, 
and  he  accordingly  invited  her  to  take  up  her  residence  with  him. 
laOctober^  1807,  she  complied  with  this  invitation,  and  then 
found  Miss  S.  officiating  in  the  snperintendance  of  Mr.  E's.  do- 
mestic aiSairs  ;  but  she  quitted  the  house  in  November  fallowing,  in 
consequence  of  the  criminal  intimacy  which  she  suspected  to  exist 
between  Miss  S.  and  Mr.  E.     Mr.  £.*s  health  declined  consider- 
ably.   The  will,  it  appeared,  was  drawn  up  by  the  deceased,  in 
the  summer  of  1809.  lie  kept  it  by  him  until  tlie  5th  of  July,  1810, 
when  he  ordered  his  carriage,  intending  to  drive  to  the  house  of  his 
friend  C.  but  meeting  him  on  the  road,  they  returned  together. 
They  proceeded  into  Mr.  E's  library,  where  he  told  Mr.  C.  he  had 
a  favour  io  ask  of  him,  as  he  was  going  to  make  his  will,  and  leave 
him  an  executor  ;  and  pointing  to  a   drawer  in  the  table,  said  he 
would  find  the  will  there,  adding  how  necessary  it  was  for  every 
body  not  to  be  without  a  will,  but  particulary  for  him.     The  will 
was  then  produced,  and  purported  io  devise  the  testatcr's  freehold 
property  to  his  son,  subject  io  the  settlement  made  on  his  marriage. 
It%bo  gave  an  annuity  of  6001.  to  Miss  S.  and  any  house  the  testa* 
tor  might  reside  in  at  his  death,  with  the  furniture,  plate,  linen, 
horses,  carriages,  &c ;   concluding  with  a  bequest  to  her  of  all 
the  rest  of  his  personal  property,  and  appointing  her  and  another 
aecutors.     Mr.  E.  then  desired  Mr.  C.  to  draw  up  the  codicil, 
appointing  himself  an  additional  executor,  and  giving  him  and  the 
other  executors  5001.  each  for  their  trouble,  which  he  accordingly 
^id,  and- both  papers  were  then  executed  in  the  presence  of  Mr.  S« 
Miss  S's  father,  and  another  witness. 

The  validity  of  these  two  instruments  was  opposed  by  the  widow's 
son  upon  the  two  grounds  of  an  undue  ascendancy  exercised  over 
the  testator's  mind  by  Miss  S.  and  his  total  incap&city,  as  well  at 
the  time  of  making  the  will,  as  before  and  subsequent  to  it ;  and  in 
SDpport  of  this,  a  variety  of  circumstances  were  adduced.  It  was 
^ted,  that  Miss  S.  had  taken  advantage  of  the  deceased's  infirmity 
of  mind  to  produce  a  criminal  connection  between  them  ;  that  they 
afterwards  lived  in  open  adulteiy ;  that  she  introduced  her  father 
uid  mother  into  the  house  as  inmates,  and  endeavoured  to  estrange 


30  Making  arid  Publishing  Wills.    Cakv.    I. 

did  interval  may  have  pTevailed,  the  very  act  itself 
furnishes  an  evidence  not  easily  resisted  of  that  sound 


his  affections  as  much  as  possible  from  his  son,  and  his  family ; 
that  they  conspired  together  to  obtain  the  deceased's  property,  and 
often  spoke  of  the  will  as  hanng  been  obtained  by  a  plot  of  their's, 
and  treated  the  deceased  as  insane,  as  in  fact  he  was  ;  that  in  the 
spring  of  1810,  he  began  to  commit  the  most  extravagant  acts,  pnr« 
chasing  large  quantities  df  poultry,  jewellery,  &c.  for  which  he 
had  no  occasion,  destroying  the  furniture,  &c*  about  the  house, 
ordering  dinner  at  a  particular  hour,  and  then  insisting  upon  having 
it,  though  raw,  two  or  three  hours  sooner,  and  throwing  the  gra- 
Ty  and  sauce  over  those  at  the  table.  Several  letters,  also,  pom* 
pously  and  improperly  addressed,  and  otherwise  indicative  of  in* 
sanity,  were  produced,  as  having  been  written  to  persons  with 
whom  he  had  formerly  corresponded  in  the  most  accurate  manner, 
and  by  whom  he  was  esteemed,  as  in  fact  he  was  till  then,  a  man 
of  uncommon  judgment.  He  was  shortly  afterwards  placed  in  the 
care  of  keepers,  and  in  November  following,  axommission  of  lu- 
nacy having' issued,  an  inquisition  was  held,  and  the  Jury  returned 
a  verdict  of  insanity  without  lucid  intervals,  from  the  1st  of  July 
preceding,  five  days  prior  to  the  transaction  of  the  will.  He 
was  then  removed  to  Dr.  Willis's,  at  Hozton,  where  he  died  in 
October,  1811. 

In  reply  to  this,  circumstances  were  adduced  on  the  part  of  Miss 
S.  to  shew  that  she  possessed  the  confidence  of  the  deceased,  but  with- 
out any  undue  means ;  that  his  displeasure  was  very  great  against  his 
fon  for  not  coming  to  see  him,  and  that  he  often  declared  Jt  would 
be  thousands  out  of  his  way ;  that  Miss  S's  connection  with  the  de- 
ceased, far  from  being  notorious,  was  hardly  known,  and  her  fa- 
ther was  introduced  into  the  house  to  manage  the  deceased's  farm- 
ing concerns,  with  a  salary  of  401.  per  annum,  only  on  account  of 
the  deceased's  good  opinion  of  his  skiU  in  those  matters  :  that  the 
deceased  continued  of  sound  mind,  managing  his  affairs,  and 
dmwing  drafts  on  his  bankers,  untU  the  12th  of  July,  1810,  and 
even  wished  Miss  S.  to  go  with  him  the  day  the  will  was  executed, 
excusing  her  solely  on  account  of  ill  health. 
•    A  gjreat  mass  of  evidence  was  adduced  in  proof  of  these  different 


Sict.  i.  Testamentary  Capacity.  S 1 

and  disposing  mind  which  id  necessary  to  its  validity. 
As  in  the  case  of  Cartwright  v.  Cartwright,  Michael- 


representations  of  the  case  on  either  side,  and  the  arguments  of 
connsel  heard  at  great  length  thereon,  during  three  days ;  it  being 
contended,  on  the  one  hand,  that  there  was  no  proof  of  undue  in- 
fluence or  coistrol  over  the  deceased,  but  that  the  will  was  the  spon- 
taneous act  of  a  capable  testator ;  and,  on  the  other  hand,  that  not 
cmlj  was  an  undue  control  proved,  but  also  actual  and  positive  in- 
capacity, for  a  period  long  antecedent  and  subsequent  to  the  mak- 
bg  of  the  will,  as  well  as  at  the  very  time. 

Sir  John  Nicholl  recapitulated  the  circumstances  of  the  case. 
He  was  of  opinion  that  the  acts  of  extravagance  committed  by  the 
deceased,  coupl^  with4;he  verdict  of  the  jury  upon  the  inquisi- 
tion, left  no  doubt  of  the  deceased's  having  been  afflicted  with 
rosanlty.   Where  there  was,  prima  fade^  no  pr6of  of  this,  the  pre- 
somption  of  law  was  always  in  favour  of  the  testamentary  act; 
bat  when  it  was  otherwise,  the  anus  probandi  was  thrown  upon  the 
party  setting  up  the  act ;  and  the  question,  therefore,  in  the  present 
case  was,  whether  the  papers  propounded  were  executed  by  the 
deceased  during  a  lucid  interval.     He  proceeded  to  an  examination 
of  the  doctrine  of  lucid  intervals,  as  laid  down  by  Lord  Thurlow, 
that  positive  proof  must  be  shewn  of  the  disorder  having  been 
wholly  thrown  off  for  the  time :  there  must  be  a  complete  lucid  in- 
terval applying  to  the  particular  act  in  question,  for  if  there  was  but 
a  single  word  "  sounding  the  folly,"  it  was  conclusive  against  the 
presumption  of  a  lucid  interval  sufficient  for  legal  purposes.     Col- 
lateral circumstances,  however,   such  as  whether  the  act  was  a 
natural  disposition,  or  in  favour  of  persons  exercising  an  undue  con- 
trol, mighf  considerably  influence  the  enquiry,  as  they  were  mate- 
rial to  shew  the  probability  of  the  act's  being  the  spontaneous  exer- 
tion of  the  deceased's  mind ;  and  the  present  case  was,  therefore, 
to  be  examined  upon  these  principles.     He  then  entered  into  the 
prirate  history  of  the  deceased  and  Miss  S.,  observing  that,  with  all 
the  court's  caution  In  listening  to  the  evidence  of  servants  in  the 
bouse,  still  these  circumstances  must  have  their  weight.     They 
were,  however,  strongly  confirmed  by  the  account  given  of  the  de- 
ceased's incoherent  correspondence ;  and  the  very  fact  of  hi^  wishing 
his  wife  and  son  to  visit  him  when  living  in  a  state  of  open  prostttu- 


33  Making  and  publishing  Wills.    CttA^.  !• 

Inas^  1795^  before  the  delegates.  The  propositioil 
of  Lord  Thurlow  in  the  Attorney  General  v.  Parn* 
ther^  that  where  lunacy  was  once  established  by  clear 

*  3Bro.  C.a441« 


tioa  with  this  girl  was  in  itself  a  {iroof  of  insanity.  Looking  tlien^ 
at  this  evidence,  it  was  not  only  sufficient  to  throw  the  burden  of 
proving  capacity  upon  the  parties  setting  up  the  will,  but  it  like* 
wise  proved  the  influence  they  exercised  oyer  the  deceased ;  and  it 
would  be  difficult  to  imagine  the  evidence  that  would  be  sufficient 
to  sustain  a  will  under  such  circumstances*  Mr^  S«  must  hare 
known  of  his  daughter's  prostitution ;  and  this,  added  to  his  gene* 
ral  conduct,  did  not  go  to  confirm  his  attestation  of  the  act  in 
question.  Mr.  J.  and  Mr.  C.  were  both  renouncing  executors5 
and  had  released  tlieir  legacies ;  the  latter  was  also  the  writer  of 
the  codicil  in  his  own  fayour.  It  was  therefore  probable,  that  they 
had  expectations  from  the  bounty  of  the  executrix ;  and  though  this 
was  not  sufficient  to  discredit  them,  it  must: necessarily  raise  the 
suspicion  of  bias.  There  was  no  reason  to  belieye  that  the  de» 
ceased's  declarations  of  having  made  his  will  referred  t6  either  of 
the  papers  in  question :  and  they  had  the  effect  of  disinheriting  his 
son  from  one  considerable  part  of  his  property,  only  to  make  an 
unreasonable  proyision  for  a  woman  with  whom  he  liyed  in  public 
adultery.  The  will  itself  bore  strong  internal  marks  of  confusion 
and  irregularity,  and  appeared  to  have  been  copied  from  some  other 
not  before  the  court.  It  was  written  yery  irregularly,  with  some 
names  partly  omitted  in  places,  and  others  repeated  in  a  yaried  man* 
ner,  altogether  shevring  the  deceased's  confusion  at  the  time,  andy 
in  the  language  of  Lord  Thurlow,  '^  sounding  his  folly."  So  far, 
therefore,  from  any  lucid  interval  being  proved,  there  was  every 
presumption  of  the  continuance  of  «the  disorder^  a  presumption  con« 
finned  not  only  by  the  general  state  of  the  evidence,  but  also  by 
the  contents  and  appearance  of  the  will  itself.  The  court  was, 
therefore,  bound  to  pronounce  against  its  validity ;  and  considering 
the  active  part  taken  by  Miss  S.  in  this  transaction,  with  all  its  at- 
tendant obloquy,  the  court  felt  that  it  would  not  sufficiently  mark 
its  disapprobation  of  such  practices,  and  hold  out  a  disconragement 
of  them  for  public  example,  did  it  not  condemn  her  in  th^  costi 
incurred.    Costs  decreed  accordingly* 


\ 


SfiCT.  n«  T^estamentaty  Capadly.  35 

evidence^  the  party  ought  to  be  regtored  to  as  perfect 
Estate  of  mind  as  he  was  in  before  his  disorder^  to 
make  a  good  will^  was  denied  by  the  present  Lord 
Chancellor^  who  observed^  that  wo  might  suppose  the 
strongest  mind  reduced  by  the  delirium  of  a  fever^  or 
aay  other  caase^  to  a  very  inferior  degree  of  general 
capacity;  and  yet  he  might  be  competent  to  the 
making  of  his  will^  especially  of  personal  estaite*. 
And  the  rule  b  clear  that  there  must  always  be  the 
animus  testandi^  or  the  instrument  purporting  to  be  a 
will  is  of  no  effect  in  the  law.  The  partiei  must 
therefore  be  free^  and  under  no  compulsion  from  such 
threat  or  violence  as  may  reasonably  be  supposed  to 
move  a  constant  man.  But  if,  when  the  fear  is  past^ 
or  the  restraint  removed^  the  testator  confirms  the 
will,  it  is  made  good^  So  likewise,  willa  procured 
to  be  made  by  artful  misrepresentations  and  fraudu* 
lent  contrivance,  are  void.  And  the  question  as  to 
the  existence  of  fraud,  in  cases  of  real  estate,  is  pro- 
perly examinable  in  courts  of  law,  on  an  issue  of 
devisavit  vel  non ;  but  fraud  as  to  a  personal  will,  be* 
longs  to  the  jurisdiction  of  the  spiritual  court. 

If  infancy,  non  sane  memory,  ideocy,  coverture, 
or  duress  exist  at  the  inception  of  a  will,  it  is  abso* 
lutely  void,  though  the  disability  should  happen  to  be 
removed  before  the  consummation  by  death,  for  there 
must  be  a  good  inception,  and  the  party  must  be  qua- 
lified when  the  will  is  made^  But  if  there  be  no  dis« 
ability  when  the  will  is  made,  a  subsequent  loss  of 
intellect  will  not  revoke  it.     But  the  will  of  a  woman 

•  11  Vez.  Jan.  11-  '  Swinb.  475. 

'  Plow^  J43.  Raym.  84. 1  Eq.  Ca.  Abx.  171 . 9. 

D 


34  Making  and  puhlUking  JViUs.     Chap.I. 

is  •  revoked  by  her  subsequent  coverture^  as  wiH  be 
seen  in  a  future  part  of  this  work. 

Howaf-         A  person  attainted  of  treason  forfeits  lands  and 

fectcd  by  -  ' 

conyiction,  ^oods,  and  IS  of  course  incapable  of  disposing  of 
outlawry,*  them  by  his  will.  So  a  felon,  upon  attainder,  forfeits 
murder,  the  fruits  of  his  lands  for  the  year  and  the  day ;.  after 
which  they  escheat  to  the  Lord  of  the  fee.  Bat  the 
forfeiture  of  goods  and  chattels  is  absolute,  as  well  in 
felony  as  treason ;  differing  from  the  forfeiture  of 
lands  in  respect  of  its  commencement,  the  latter  tak- 
ing place  upon  the  attainder,  and  not  before ;  the 
former  upon  the  conviction.  It  follows,  therefore, 
that  if  the  party  dies,  before  attainder  in  the  one  case 
and  conviction  in  the  other,  the  forfeiture  is  saved ; 
.  and  his  will  either  of  lands  or  goods  is  effectual.  Biit 
if  conviction  or  attainder  takes  place,  the  will  of  the 
traitor  or  felon,  as  to  his  goods,  by  the  conviction,  and 
as  to  his  real  estate,  by  the  attainder,  is  rendered  void ; 
and  that,  although  such  will  was  made  before  either 
the  conviction  or  attainder.  The  King's  pardon  re- 
>stores  the  disposing  capacity,  and  the  party  may  af- 
terwards make  his  will,  as  if  no  conviction  had  taken 
place :  and  it  seems,  that  by  such  pardon,  any  will 
made  before  conviction  recovers  its  former  force  and 
effect*.  Though  it  may  be  doubted  whether  a  will  or 
testament  made  after  conviction,  would  be  rendered 
operative,  as  not  having  had  a  legal  and  valid  incep- 
tion. The  will  of  a  felo  de  se  may,  it  seems,  be  ef- 
fectual, as  to  his  lands,  because  these  are  not  forfeited 
but  by  attainder,  which  cannot  be  in  this  case.  But 
as  to  his  goods  and  chattels  his  will  is  of  no  effect  (1). 

*  Swinb.  97. 

% 

(1)  Plowd.  Comm.  Eng.  Ed.  Hales  v.  Petit,  and  obscrye  the  suf>« 

tie  grounds  on  which  this  point  was  there  reasoned.     By  the  early 

2 


.     .      -  ....     -  \ 

Sect.  2.  ,  Testamentary  Capacity.  35 

An  alien  enemy  without  the  King's  licence  to  re- 
side in  this  Country  is  incapable  of  making  any  will. 
But  with  such  licence^  and  an  alien  friend  without  any 
such  licence^  may  bequeath  personal  estate.  Either 
description  of  alienage  incapacitates  for  holding  land^ 
and  consequently  for  devising  it-.  But  leases  of  houses 
for  habitation  may  be  held  by  alien  friends^  and  will  * 
pass  by  their  wills*. 

One  who  is  outlawed  in  a  personal  action^  forfeits  his 
g^oods,  and  is  therefore  incapable  of  disposing  thereof  by 
his  will ;  but  it  seems  he  may  devise  his  lands ''.  And  it  is 
to  be  recollected  thatthe  wills  of  traitors,  felons,  aliens^ 
and  outlawed  persons,  are  void  only  as  to  the  King  or 
Lord  of  the  Pee,  who  has  the  right  to  the  lands  or 
goods,  by  reason  of  the  forfeiture  :  the  will  is  good  as 
against  the  testator  himself  and  all  other  persons. 

As  the  person  devising  or  bequeathing  must  be  one 
who  is  capable  of  making  a  will,  so  the  devisee  or  le- 
gatee must  also  be  capable  of  taking  under  it ;  and  if 
he  dies  before  the  testator  the  gift  vanishes.     If  pro- 

■ 

'  1  Bl.  Com.  37^  Harg.  Co.  Litt.  2  B.  note  8. 
*  Swiob.  107. 


jorispnidence  of  Rome  a  wiljl  was  not  only  not  inyalidated  by  the 
suicide  of  the  testator,  but  it  was  not  uncommon  for  persons  to  pre- 
▼ent  the  confiscation  of  their  property  which  would  otherwise  fol- 
low upon  capital  punihsment  by  killing  themseWes,  and  the  yalida* 
tion  of  their  wills  under  such  circumstances  according  to  Tacitus^ 
Anaal.  lib.  0.  s»  29.  was  the  pretium  festinandi.  But  this  pretium 
festinandi  was  taken  away  altogether  by  the  later  emperors.  And 
the  wflls  of  persons  committing  suicide  were  only  allowed  to  have  ef- 
f&t  where  the  act  of  self-destruction  was  occasioned  by  impatience 
of  pain  or  loss  of  reason.  Cod.  1.  6.  tit.  23.  sect.  2« 

d2 


35  Making  and  PMi$kinjg  Wills.  ,  Chap.  I. 

perty  be  given  by  will  to  ose  and  his  heirs  or  ezecu- 
torg,  neither  the  heir  nor  executor  arc  capable  of 
taking  originally ;  if  the  original  object  of  the  gift 
be  dead^  there  \%  no  person  to  whom  the  designation 
can  apply  \ 


Section  III. 

Estates  by  Custom. 
Neither         IT  iQav  be  received  as  settled  doctrine^  that  wills 

the  stttnte  '' 

ofwuisnor  of  copyholds  Stand  clear  of  the  statute  of  frauds  aa 
of  frauds  well  as  of  the  statute  of  wills.  It  has  before  been  ob« 
cppyhoiiUi  served^  that  the  statutes  of  Henry  VIII.  for  the  full 
exercise  of  the  testamentary  power  required  the 
tenure  to  be  in  socage^  which  is  not  the  description 
of  copyhold  tenure,  and  therefore^  for  that  reason 
the  statutes  of  wills  would  not  apply  to  this  descrip* 
tion  of  estate.  Ck)pyholds  could  not  for  another  rea* 
son,  be  considered  as  having  been  embraced  withia 
the  intention  of  those  statutes^  because  their  purpose 
was  to  revive  the  testamentary  power  with  certain 
qualifications  and  restrictions,  after  the  statute  made 
for  carrying  the  possession  and  legal  estate  to  the  use 
had  either  suppressed  its  exercise^  or  driven  it  upon 
new  expedients  for  its  preservation :  But  the  statute 
of  uses  had  not  interfered  with  the  uses  raised  upon 
surrenders',  those  being  properly  executed  by  the 
admittance,  which  operated  as  a  new  grant  thereof 
by  the  lord  pursuant  to  the  surrender.  Neither,  in- 
deed, could  it  be  properly  said,  that  copyholds  were 
ever  devisable,  for  a  will  can  have  no  effect  upon  them 

I  Plowd.  346.  Brett  v.  Rigden.  *  2  Yez.  257. 


»         • 

Si;ct.  S.  JSsiates  by  Customi.  S7 

u  ft  will,  90  that  it  was  always  necessary  first  to  pass 
the  estate  by  a  surrender  thereof,  into  the  hands  ot 
the  lord^  to  such  uses  as  the  surrenderor  should^  by 
his  kst  will^  appoint^  and  then  his  will  succeed- 
ed to  this  act  as  an  appointment  or  declaration  of  the 
use*. 

By  thus  regarding  the  surrender  as  the  mean  Where- 
by the  lands  themselves  are  transferred^  and  the  will^ 
as  having  no  specific  operation  under  the  statute  of 
wills,  but  as  a  mere  declaration  of  an  use,  or  rathei" 
an  appointment  of  the  person  to  be  admitted  upon  the 
>unrender>  we  see  the  reason  (not  always  indeed  ap-* 
proved  of)  for  holding  wills  of  copyhold  lands  to  be 
out  of  the  statute  of  frauds,  there  being  no  special 
proviaion  applicable  to  copyhold  estates  contained 
therein.  Accordingly  in  Carey  v.  Askew  ""^  it  was 
held  by  Sir  Lloyd  Kenyon^  Master  of  the  Rolls,  that 
any  testamentary  paper  would  be  sufficient  to  pass 
copyhold  lands;  and  his  Honour  said,  ''he  hardly 
expected  to  hear  it  seriously  argued ;  it  had  been  held^ 
that  a  will  received  by  the  ecclesiastical  court  would 
govern  the  surrender  of  a  copyhold.  It  would  be 
removing  landmarks  to  entertain  a  doubt  upon  the 
subject. " 

Lord  Macclesfield"^  admitted  the  same  doctrine  as  j^^^ 
perfectly  settled  in  his  time,  though  certainly  not  with  fi^'d^^'jj^ 
any  approbation  of  its  reasons.    He  said,  that  it  was  ^^^^     > 
P'ain,  that  as  to  the  case  which  had  been  put  of  a  ^^[^^ 
copyhold  surrendered  to  the  use  of  a  will,  and  after-  '^^» 
wards  devised  by  a  will  attested  by  one  or  two  wit- 
nesses, this  bad  been  adjudged  to  be  good,  and  that 

*  See  the  case  of  Roy^en  v.  Malster,  2  Roll.  Rep.  383. 
•  4  firowD.  C.  R.  6St  *  2  P,  Wms.  «58. 


98.  Making  and  PubliBhing.WiUg.    Cbaf.  I' 

his  opinion  was^  never  to  shake  any  Killed  re«o£tdtofi 
toucAtng'  propeTttf  or  ike  tiile  of  lands,  it  being  for  the 
common  good  that  these  should  be  certain  and  known, 
however  iU-grounded  the  Jirst  resolutioh  might  be  ; 
but  if  that  had  not  been  settled  it  might  be  more  rea- 
sonable to  say,  whena  man  has  surrendered  his  copy- 
hold to  the  nseof  his  will,  a  will  of  this  copyhold  shall 
be  so  executed,  and  in  such  a  manner,  as  by  the 
act  of  parliament  a  will  of  lands  ought  to  be  exe* 
cuted . 

Agreeable  to  which  opinion  of  Lord.  Macclesfield 
was  that  of  Lord  Hardwicke  in  the  Attorney  General 
D.Andrews',  who,  after  mentioning  this  established 
doctrine  in  respect  to  wills  of  copyholds,  observed 
that,  perhaps,  if  those  determinations  were  now  ori- 
ginally to  be  considered,  courts  of  law  and  equity 
would  not  have  gone  so  fax;  and.  that  it  might  be 
wished  it  were  altered,  as  it  is  snbj^ect  to  the  same  in- 
.  convenience  as  the  Revise  of  freehold  lands. 

» 
Same  doe-      l^be  sentiments  of  Sir  Joseph  Jekyll  seemed  to  ac- 

JI^,Vf '"  cord  with  those  of  Lord  Chancellor  Macclesfield,  on 
\  copjhow*  the  impropriety  of  going  one _;'t>(/arMer  than  the  doc- 
trine had  already  gone  in  respect  to  the  devises  of 
copyholds ;  and,  therefore,  he  took  e  distinction  be^ 
tween  a  devisee  of  the  legal  estate  in  a  copyhold, 
duly  surrendered  to  the  use  of  the  wilt  of  the  surren- 
derer,  (as  to  which  he  admitted  that  the  attestation  of 
witnesses  was  not  necessary,)  and  the  devise  of  a 
tru^  or  equity  of  redemption  of  a  copyhold.  This 
opinion  appears  in  a  memorandum  of  the  reporter., 
in  2  P.  Wms.  259.  annex^  to  the  case  of  WagstafiT, 

:  1  Yet.  225. 


Sjbct.  3.  Estates  hy  Custom.         •  ^39 

V.  Wag8taff>  which  was  as  follows  . — ''  Memorandum 
in  Hil.  vac.  1727^  in  a  cause  at  the  Rolls^  his  Ho* 
nour  admitted  it  to  be  settled^  that  where  a  copyhold 
in  f^e  is  surrendered  to  the  use  of  one's  will,  such 
will,  though  executed  in  the  presence  of  one  or  two 
witnesses,  is  good,  because  it  passes  by  the  surren- 
der and  not  by  the  will,  which  is  only  a  declaration 
of  the  use  of  the  surrender ;  but  that  if  a  copyholder 
be  seised  only  of  the  trust  or  equity  of  redemption  of 
the  copyhold,  and  devise  such  trust,  or  equity  of  re- 
demption, there  must  be  three  witnesses  to  the  will ; 
for  here  can  be  no  precedent  surrender  to  the  use  of 
the.  will  to  pass  this  trust ;  and  the  trust  and  equity  of 
redemption  of  all  lands  of  inheritance  are  within  the 
statute  of  frauds  and  perjuries,  otherwise  great  incon- 
venience would  arise  therefrom  ;  and  it  is  no  preju- 
dice to  the  lord  of  a  manor  to  comprise  the  trust  of  a 
copyhold  within  that  statute,  because  the  person  who 
has  the  legal  estate  in  the  copyhold,  is  tenant  to  the 
lord,  and  liable  to  answer  all  the  services. '' 

But  in  TufTnell  v.  Page,  before  Lord  Hardwicke 
in  1740,  a  diflFerent  opinion,  and  which  is  the  doc- 
trine as  now  understood,  was  maintained  by  that 
chancellor  on  this  subject.  His  Lordship  said,  he 
would  consider  the  case  in  two  lights — first,  whether 
the  will  of  a  copyholder,  unattested  by  witnesses, 
was  sufficient  to  declare  the  uses  of  a  surrender,  made 
to  the  use  of  a  will ;  and,  secondly,  where  thdre  is  no 
surrender,  as  in  the  case  before  him,  whether  such 
a  will  was  sufficient  to  pass  the  trust  of  the  copyhold 
lands  to  the  plaintiff.  ^ 

With  respect  to  the .  consideration  of  the  question 


* 

to  Making  and  publMmig  W^.  CuAf.  t 

in  fhe  first  of  these  lights,  his  LordtUp  said,  that 
''  where  a  man  was  wised  <^  copyhold  lands  and  inr* 
rendered  to  the  use  of  hi*  wiU,  and  exenited  a  will, 
though  not  attested  by  witnesses,  yet  it  should  direct 
the  nses  of  the  snrrendet ;  for  the  clause  in  the 
statate  of  frauds  and  per}«ries>  which  required  the 
testator's  signing  in  the  presence  of  three  witnesses, 
and  their  attestation  in  bis  presence,  was  confined 
only  to  such  estates  as  passed  by  the  statute  of  wills 
S4  H.  8.  c.  5.  wfaicli  was  an  act  to  explain  one  made 
in  the  dSd  of  the  same  King ;  and  which  at  the  close 
of  the  se<!tion  enacted^  that  the  words,  estate  of  inbe* 
rUanife,  in  the  fonoer  statute,  should  be  declared,  ex- 
pounded, taken^  and  judged  of  estates  of  fee  simple 
only,  which  shewed  plainly,  that  it  did  not  e&tend  to 
customary  estates,  and  had  been  so  settled  ever  since 
the  case  of  the  Attorney  General  t^.  Barnea.    This 
was  reported  to  %  Vernon,  where  it  was  said  in  page 
396,  ^  as  to  such  of  the  landa  as  w^re  o^ybold,  it 
was  agreed  they  were  well  appointed,  they  passing 
by  surrender  and  not  by  will,  though  there  were  no 
witnesses  to  k."' 

As  to  the  second  pmnt,  whether  the  will  in  qnes*- 
tion  would  pass  the  iru9i  of  the  copyhold  lands,  his 
Lordship  said,  that  ''  where  the  legal  estate  was  in 
trustees,  the  ce%iuy  que  trust  consequently  cot^  not 
surrender,  but  the  lands  should,  notwithstanding, 
pass  by  this  devise  according  to  the  general  rule  that 
equity  follows  the  law :  for  a  copyhold  would  pass 
under  a  will  without  three  witnesses,  or  where  there 
were  no  witnesses  at  all ;  and  if  this  liicety  was  not 
required  in  passing  the  legal  estate,  a  fortiori  it  was 
not  in  passing  the  equitable:  and,  therefore,  the 


Sicr.  S.  JBtiatu  hy  CtMem.  41 

te9lvg  que  trust  mighty  by  the  aaroe  kind  of  instiTu- 
raent^  dupose  of  the  trust  estate^  u  if  be  bad  the 
legal  estate  in  him." 

It  has  been  doubted^  whether  such  testamentary  ^wiietber 
appointment  of  copyhold  lands^  after  a  surrender  to  mentorde. 
the  uses  thereof^  may  not  be  by  parol^  for  if  copy-  of  the  use* 
holds  are  not  affected  either  by  the  statute  of  wills,  or  hold  tur-^' 
by  the  clause  respecting  wills  in  the  statute  of  frauds^  ^v  be 
a  testamentary  disposition  of  them,  as  such,  seems  to  ^|^^ui^^ 
be  no  more  necessary  to  be  in  writing,  than  the  de* 
vises  by  the  custom  of  particular  places  which  ope* 
rated  independently  of  the  statute  of  wills,  and  might, 
after  that  statute,  and  until  the  statute  of  frauds  ex<^ 
pressly  restrained  them,  have  been  made  by  word  of 
mouth  ;  and  if  such  wills  of  copyholds  be  regarded  a» 
mere  appointments^  they  are  still  clear  of  the  first  and 
third  clauses  of  the  statute — by  the  exclusive  wording 
of  the  firsts  and  by  the  express  exception  in  the  last 
And  by  a  late  case.  Doe  d.  Cook  v.  Danvers ',  it  has 
been    determined  that  they  cannot  be   regarded  as 
declarations  of  uses  or  trusts,  so  as  to  be  within  the 
7tb  section  of  the  same  statute. 

As  the  attestation  of  three  witnesses  is  not  neces-  ao  attest 
iary,  so  neither  has  it  any  efficacy  in  respect  to  copy-  tipyhoid 
holds  ;  so  that  if  a  surrender  be  made  tp  such  uses  as  voked^by*" 
the  surrenderer  shall  appoint  by  his  will,   and  he  J^,|^*wUi. 
afterwards  make  his  will,  executed  and  attested  ac« 
cording  to  the  statute  of  frauds,  such  will  is  never- 
theless subject  to  be  revoked  or  republished  by  him 
by  any  subsequent  testamentary  paper,  attested  by 
one  or  two  witnesses  only,  or  without  any  attestation 
at  all*. 

'  7  East,  299.  I  Yid.  Borkitt  v.  Burkitt,  3  Vera.  498. 


4^  Making  and  publ^hing  WUU.         Chap.  I. 

^^  y"y .         If  a  surrender  be  made  to  the  use  of  a  wUI,  to  be 

mode  of 

cxecutioii    executed  with  those  or  any  other  solemnities^  it  is 

be  pre-  "^ 

ici^ed       clear  that  such  prescribed  requisites  must  be  strictly 
Bpecttoco-  complied  with  as  in  other  similar  cases'*. 

pyholdit 
moat  be  ob- 
served. 

How  far         Upou  the  wholc  it  is  clear  that  although  a  will  of 
thoagh  it'    copyholds  is  said  to  work  as  a  declaration  or  appoint- 
anflppoL^  ment  of  the  use  only^  and  this  is  the  ground  upon 
dara«on,*"  which  it  is  held  to  stand  clear  of  the  clauses  regard- 
ti!!fquaiV*^  ing  wills  in  the  statute  of  frauds,  yet  it  partakes  of 
^^i   *      the  quality  of  a  will  in  many  essential  particulars; 
thus  it  is  revocable  by  alteration  or  cancelling,  and  is 
altogether  an  ambulatory  instrument  until  the  death 
of  the  party ;  so  that  if  the  appointee  die  in  the  life- 
time of  the  testator,  the  devise  fails;  for  the  act  re- 
mains incomplete,  and  the  instrument  is  without  ope- 
ration and  mute  until  the  testator's  decease. 


^olin"  of'  ^^^  although  it  seems  now  to  be  regarded  as  set- 
^e  equita-  tied,  that  the  trust  or  equity  of  a  copyhold  estate 
iu  custom-  will  pass  bv  a  will  not  executed  or  attested  accordinfi" 

aryfree-  r  j  o 

holds  must  tp  the  statutc  of  frauds,  upon  the  principle  of  equitas 

be  execu-  x  x  x  ^ 

ted  and  at-  sequituv  legem,  and  on  the  ground  that  a  strictness 
cording  to   which  had  been  dispensed  with  in  respect  to  the  legal 

tbe  ftttttute 

of  frauds,  estate  in  copyholds,  ought  a  fortiori  to  be  dispensed 
with  in  respect  to  the  trust  estate  in  copyholds,  yet  a 
different  doctrine  seems  to  have  obtained  concerning 
•  the  equitable  interest  of  a  customary  freehold,  where 
there  exists  no  custom  of  the  manor  for  surrendering 
them  to  the  use  of  a  will.  This  was  so  held  in  the 
case  of  Hussey  v.  Grills*,  where  Elizabeth  Prowse, 
being  seised  of  a  customary  estate  within  the  manor 
of  Stoke   Climsland  in  Cornwall^  surrendered  it  to 

*  Vid.  Cotton  r.  Layer,  2  P.  Wms.  623.  *  Ambl.  299. 


Sect.  3.  Estates  by  Custom.  43 

Thomas  Jones  and  his  heirs^  who  afterwards  declared 
the  trust  to  be  for  Elizabeth  Prowse,  her  heirs,  and 
assigns^  and  covenanted  to  surrender  to  such  uses^ 
as  she  should  by  deed^  executed  in  the  presence  of 
two  witnesses,  or  by  her  last  will  appoint.  E.  Prowse 
afterwards  made  her  will  on  the  24th  January  1753^ 
in  writing,  but  not  attested  according  to  the  statute 
of  frauds ;  (but  which  seems  to  be  mistakenly  report- 
ed (3),  as  the  decision  and  reasoning  of  the  case 
plainly  supposes  and  requires  the  will  to  have  been 
effectual,  and  consequently  executed  according  to 
the  statute,)  and  devised  the  customary  estate  to 
Margaret  Archer,  her.  heirs  and  assigns  for  ever. 
She  afterwards  made  a  codicil  in  her  own  hand- 
writing, but  unattested,  and  thereby  revoked  the 
devise  in  her  will  of  the  customary  estate,  and  gave 
it  to  Margaret  Archer  for  her  life  only,  with  remain- 
ders over ;  and  the  doubt  was,  whether  the  codicil 
was  a  good  revocation  of  the  will,  and  passed  the 
customary  estate. 

The  Lord  Chancellor.  Hardwicke  said,  that  the 
question  was^  whether  these  customary  estates  were, 
in  point  of  convejrance  or  devise  by  will,  so  far  like 
copyholds^  that  the  determinations  with  respect  to 
the  latter  shall  govern  these  in  like  manner  and  pa- 
rity of  reason.  That  courts  ought  to  avoid  making 
large  and  liberal  constructions  to  take  cases  out  of 
the  statute  of  frauds ;  which  was  made  to  ascertain 
property,  and  the  words  whereof  were  very  exten- 
sive. That  copyholds  were  not  devisable  by  will, 
nothing  passing  out  of  the  surrenderer  till  the  will 
was  made ;  and  when  it  was  made^  the  lands  did  not 

(3)  The  cases  in  Ambler  seem  to  be  a  Terjr  careless  ccmpilatioa* 


44  Making  and  puhli$hmg  With.         Chap,  t 


pBMB  by  the  will;  the  devisee  mfght  come  and  be 
admitted  on  the  foot  of  the  surrender  and  will  taken 
together ;  just  as  if  the  name  had  been  inserted  in 
the  surrender  itself.  That  the  ground  of  his  opinion 
in  Tirffndl  t.  Page;  was  efuitas  sequitur  legem. 
That  castomaty  freeholds  and  copyholds  differed  ex- 
tremely in  their  nature :  the  latter  being  of  a  base 
tenure^  and  by  the  old  common  law^  held  at  the  will 
of  the  lord^  though  now  established  on  a  more  firm 
footing ;  customary  freeholds  never  were  of  the  base 
kind.  That  Jones  was  a  trustee^  and  the  legal  estate 
was  in  him.  There  was  no  evidence  that  there  could 
be  in  that  manor  a  surrender  of  a  customary  free- 
hi^d.  It  was  agreed  that  there  never  was  such.  That 
the  foundation  of  the  determination  as  to  copyholds 
was^  that  the  party  might  dispose  by  surrender  and 
will.  As  there  was  no  method  of  passing  the  legal 
estate  of  these  customary  freeholds  in  that  way^  there 
was  no  reason  to  hold  them  out  of  the  statute.  And 
if  the  legal  estate  was  not  so^  so  was  not  the  trust. 
There  was  somethings  observed  his  Lordship^  arising 
out  of  the  declaration  of  trusty  which  induced  him 
not  to  make  a  large  and  liberal  construction ;  for  as 
two  witnesses  were  required  by  it  to  the  execution  of 
a  deed,  it  seemed  strange  to  think,  that  in  case  of  exe- 
cution by  will,  it  might  be  on  a  loose  paper,  without 
any  witnesses  at  all. 

Bat  where  It  has  been  held,  however,  in  the  late  case  of  Cook 
custom  for  V.  Danvers''  that  such  customary  freeholds  where 
in^  these  there  is  a  custom  for  surrendering  them  to  the  use 
estates  to  ot  a  will  arc  as  much  out  of  the  statute  of  frauds  as 
a  wm  they  comQion  copyholds ;  and  it  should  seem  that  the  trust 

I  7  East,  299.  Sup.  40. 


Sect.  3.  Mstgie^  Igf  Custom.  45 

also  of  such  estates  would,  by  analogy  to  tl^e  principle  ^^^J^^ 
of  the  case  of  Tuflfnell  v.  Page,  be  considered  as  out  »tatutc. 
of  the  statute. 


It  seems  scarcely  necessary,  after  the  opinions  and  au  eqaitm. 
determination   which  have  been  produced,  to  observe  of  freehold 
to  the  reader,  that  m  a  devise  of  a  trtist  or  eqiiuaole  vUed  by  a 
estate  in  freehold  lands,  the  formalities  of  execution  ted  and  at- 
and  attestation,  required  by  the  statute,  are  as  neces-  cording  to 
sary  to  be  observed  as  in  wills  disposing  of  the  legal  ^  *  *^ 
estate.     There  can  be  no  question,  said  Lord  Mac- 
clesfield ^  but  that  a  trust  of  an  inheritance  could  not 
be  devised  otherwise  than  by  a  will  attested  by  three 
witnesses^  in  the  same  manner  as  a  legal  estate ;  for 
if  the  law  were  otherwise,  it  would  introduce  the  same 
inconveniences  as  to  frauds  and  perjuries  as  were  oc« 
casioned  before  the  statute,  by  a  devise  of  the  legal 
estate  in  fee  simple. 

Though  the  necessity  of  writing  imposed  by  the  wuisof 
statute  of  Charles  was  already  a  condition  of  their  va-  ^saWe  by 
lidity  by  the  statute  of  wills,  yet  this  requisition  of  the  must  be  in 
second  act  was  not  nugatory,  since  lands  that  were  uieexprea 
deviseable  by  local  custom,  (for  enforcing  the  testa-  of7he*»u- 
mentary  dispositions  whereof  the  register  has  fur-  ^^^* 
nished  an  appropriate  writ",)  were  left  untouched  by 
the  statutes  of  Henry  (4). 

*  a  P.  Wms.  558,  ■  Ex  graoi  querela. 


(4)  But  it  may  still  in  some  certain  cases  be  necessary  to  resort 
io  the  custom  of  a  place ;  as  where  it  enables  an  xnhni  of  fourteen^ 
or,  perhaps,  a  feme  covert^  neither  of  whom  is  capable,  under  the 
statutes,  of  devising  lands.  Vid.  2  And.  12.  where  it  is  said  that  a 
ntstom  enabling  an  infant  under  14,  (at  which  age,  and  not  beforeji 
Hie  law  suppoees  some  discretion,}  would  not  be  good. 

3 


46  Making  and  publishing  Wills,      Chap.  I. 


Section  IV. 

Estates  pur  auter  Vie. 

THE  12th  section  of  the  statute  of  frauds  enacts 
Hs  follows  • — "  And  for  the  amendment  of  the  law  in 
the  particulars  following*^  be  it  enacted^  that  from 
henceforth  any  estate  pur  auter  vie  shall  be  devisable 
by  a  will  in  writings  signed  by  the  party  so  devising 
the  same^  or  by  some  other  person  in  his  presence^ 
and  by  his  express  directions^  attested  and  subscribed 
in  the  presence  of  the  devisor  by  three  or  more  wit- 
nesses ;  and  if  no  such  devise  thereof  be  made,  the 
same  shall  be  chargeable  in  the  hands  of  the  heir,  if 
it  shall  come  to  him  by  reason  of  a  special  occupancy^ 
as  assets  by  descent,  as  in  the  case  of  lands  in  fee  sim- 
ple, and  in  case  there  be  no  special  occupant  thereof, 
it  shall  go  to  the  executors  or  administrators  of  the 
party  that  had  the  estate  thereof  by  virtue  of  the 
grant,  and  shall  be  assets  in  their  hands." 

As  by  this  provision  of  the  statute  of  frauds  these 
freeholds,  held  for  the  lives  of  others,  are  made  de- 
viseable  as  fee  simple  estates,  the  statute  of  fraudulent 
devises  ^  which  vacates  devises  of  land  as  against 
speciality  creditors,  has  been  clearly  held  to  attach 
upon  this  newly  (1)  deviseable  property,  in  the  same 

'  3  and  4  W.  and  M.  c.  14. 


(1)  These  estates  pur  auter  Tie,  could  not  be  derised  within  the 
statutes  33  H.  8.  c.  1.  and  34  and  35  H.  8.  c.  5.  which  last  statute 

explains  estates  of  inheritance  to  mean  estates  of  fee  simple  only. 

Per  Curiam,  in  Took  v.  Glascock,  1  Saund.  261.  These  estates  of 
occupancy  were  neither  deyisable  nor  subject  to  debts  before  the 
statute  of  frauds.    Raggei  v.  Gierke,  1  Vern.  234. 


Sect.  3^  Estates  pur  auter  Vie.  47 

manner  as  upon  fee  simple  estates.  But  as  the  quality 
of  these  estates  may  be  much  affected  by  the  terms  in 
which  they  are  granted,  being  sometimes  limited  to 
go  to  the  heirs^  and  sometimes  to  the  executors/  ad- 
ministrators and  assigns^  which  may  vary  the  result  as 
to  the  operation  of  testamentary  dispositions^  it  may 
be  useful  to  take  rather  a  large  view  of  their  nature, 
and  the  consequences  of  the  several  enact^nents  re- 
garding them. 

By  the  common  law,  where  a  man  was  tenant  for 
the  life  of  another,  by  virtue  of  a  grant  to  himself 
only,  without  mentioning  his  heirs,  and  died  during 
the  life  of  him  for  whose  life  the  estate  was  holden,  in 
such  a  case  the  first  occupant,  or  he  who  could  first 
get  possession  of  the  land,  was  authorised  to  keep 
such  possession  as  long  as  the  cestui  que  vie  lived; 
and  this  was  called  general  or  common  occupancy. 
But  this  title  of  general  occupancy  has  given  place  to 
the  regulations  of  the  statute  29  Car. 2.  c.  3.  and  the' 
subsequent  statute  14  Geo.  3.  c.  SO.  But  by  the  9th 
section  of  the  statute  last-mentioned,  which  recites 
that  by  the  former  statute  it  had  been  enacted,  that 
estates  pur  auter  vie,  whereof  no  devise  should  be 
made,  should,  in  case  there  should  be  no  special  oc- 
cupant thereof,  go  to  the  executors  or  administrators 
of  the  party  that  had  the  estate  thereof  by  virtue  of 
the  grant,  and  should  be  assets  in  their  hands,  and 
that  doubts  had  arisen,  where  no  devise  had  been  made 
of  such  estates,  to  whom  the  surplus  of  such  estates, 
after  the  debts  of  such  deceased  owners  were  fully  sa- 
tisfied, should  belong,  it  is  provided,  '^  that  such  es- 
tates, pur  auter  vie,  in  case  there  should  be  no  special 
occupant  thereof,  of  which  no  devise  should  have  been 
made,   according  to  the  said  act  for  prevention  of 


48  JUakmg  Mid  pubUdung  WUh.     Cblp  L 

fnnd$  and  peijurie«,  or  so  much  thereof  as  should 
mA  iiave  been  %o  devised  should  go^  be  applied,  and 
^katribttted^  in  the  same  manner  as  the  personal  estate 
4£  the  testator  or  intestate.'' 

Wherever  the  iimitation  in  these  f^mnts  pvr  auter 

vie  is  to  the  grantee  and  his  heirs,  the  heir  at  common 

law  is  the  person  to  take  upon  the  death  of  the  tenant 

in  the  life-time  of  the  cestui  que  vie,  and  in  such  a 

case  there  never  was  any  room  for  general  occupancy, 

4f  there  was  any  heir  to  take.    But  in  what  character 

«r  capacity  he  takes  has  been  a  question  on  which 

very  great  lawyers  have  held  different  opinions.    Lord 

C,  J.  Vaughan  in  the  great  case  of  Holden  v.  Small- 

Lord        brook  \  held,  that  if  a  man  demised  land  to  another, 

oDinion      and  his  heirs  habendum  pur  auter  vie,  or  granted  a 

estate        rent  in  the  same  manner,  though  tlie  heir  should  have 

the  heir  by  the  land  or  rent  after  the  grantee's  death,  yet  he  had 

a  proper      ,         ^  ,   ,  ,        , 

fkif  cut.  it  not  as  a  specuU  occupant  (as  the  common  expres:iion 
was) ;  for  if  so,  such  heir  would  be  an  occupant,  which 
he  could  not  be,  but  he  had  it  as  heir,  not  of  a  fee, 
but  of  a  descendible  freehold,  and  not  by  way  of  K- 
mitation  as  a  purchase  to  tlie  heir,  but  by  descent, 
though  some  opinions  are,  that  the  heir  took  it  by 
special  limitation,  But  the  Chief  Justice  added,  that 
he  did  not  see  how,  when  land  or  rent  was  granted  to 
a  man  and  his  lieirs,  pur  auter  vie,  the  heir  could  take 
by  special  limitation  after  the  grantee's  death,  when 
the  whole  estate  was  so  in  the  first  grantee  that  he 
might  transfer  it  to  whont  he  pleased,  so  as  to  deprive 
him  who  was  intended  to  take  by  special  limitation  af-« 
ter  the  grantee's  death. 

This  reasoning  is  certainly  very  powerful,  but  other 

*  Vavgfaan,  187» 


&CT.  4.  Estates  pur  atUer  Vie*  4^ 

Judges^  though  they  have  adopted  the  phrase  of 
LordVaughan^  of  descendible  freehold^  have  adhered 
to  the  notion  of  occupancy  in  the  heir,  and  h^ve  de- 
nied the  inheritable  nature  of  this  kind  of  estate^.  , 
Thus  in  Low  v.  Barron  %  Lord  Chancellor  Talbot 
held  clearly  that  an  estate  to  one  and  his  heirs  ]^uf 
aHter  Tie  may  be  limited  to  A.  in  tail^  remainder  to  » 
B.^  for  \tk  saeh  cases  of  limitations  to  the  heirs  of  the 
first  taker,  the  word  heirs  was  only  a  description  of 
the  persona  to  take  aa  special  occupants  during  the 
life  of  cestui  que  vie.  These  estates  are  not  estates 
tail  (9),  for  all  estates  tail  are  estates  of  inheritance  t» 
which  dower  is  incident,  and  which  must  be  withia 
the  statute  de  donis ;  whereas  in  this  kind  of  estate 
which  is  no  inheritance,  tJiere  can  be  no  dower, 
fieither  is  it  within  the  statute  (s).  Furthermore 
an  estate  tail  is  not  liable  to  forfeiture,  or  punishable 
for  waste,  the  contrary  whereof  is  true  of  the  estate 
in  question. 

Again,  by  the  same  Chancellor  it  was  held,  in 
Chapiin  v.  Chaplin  ^,  that  where  a  lease  is  made  to  a 
man  and  his  heirs,  during  lives,  the  heir  does  not 
take  by  descent,  but  as  a  special  occupant;  and 
though  it  be  called  a  descendible  freehold,  it  is  not 
really  a  descent,  being  no  more  than  if  there  had 
been     a    designation    of   any    person  by  name  to 

•  3  P.  Wms.  362.  *  3  P.  Wms.  368, 

(^)  Therefore,  if  a  freehold  lease  for  lives  be  limited  to  A.  an4 
tlfee  heirs  of  his  body,  with  remainders  over,  A.  may  dispose  of  the 
whole,  and  defeat  the  remainders,  by  any  coiiTeyance  during  hit 
life-dmey  or,  as  it  seems,  by  his  will  alone.  Doc.  dem.  Blake  v. 
Luton  5  T.  R.  280. 

(3)  It  is  plain  there  can  be  no  occupant  of  an  estate  tail,  because 

ftone  can  have  the  estate  tail  but  the  issues  of  the  donee,  who  must 

tike  by  descent. 

E 


50  Makhig  arid  publishing  Wills.      Chaf.  I, 

enjoy  the  estate  for  three  lives,  after  the  death  of 
the  father^  instead  of  the  heir  at  law.     It  has  been 
accordingly  holden^  that  in   such  a  case  the  parol 
shall  not  demur^     which  is  always  allowed  in  the 
case    of  a  proper  descent  to    an   infant.      And   it 
is  also  to  be  observed^  that  such  a  succession  to  this, 
estate  is  no  descent  to  toll  an  entry".     Accordingly  if 
a  disseisor  make  a  lease  to  a  man  and  hisheirs^  during 
the  life  of  I.  S.  and  the  lessee  die^  living  LS.  the  entry 
of  the  disseisee  is  not  thereby  taken  away,  because  he 
that  died  seised  had  but  a  freehold,  and  the  heirs  are 
added  to  prevent  the  occupant^     So  that  froin  this 
reasoning  it  results  that  this  estate   is  not  so  pro- 
perly a  descendible  freehold,  as  a  freehold  limited  to 
go  in  a  course  of  descent ;  which  limitation  prescribes 
only  who  shall  be  the  occupant,  without  changing  the 
nature  of  the  estate  into  an  inheritance  (4).   Yet  Lord 
Vaughan  observes,  that  the  heir  of  the  grantee  pur 
auter  vie  might  certainly  recover  by  a  writ  of  mort- 
dancester,  in  case  of  abatement,  which,  he  says,  in- 
fallibly proves  the  heir  to  take  by  descent,  as  Succeed- 
ing to  one  who  died  seised  as  of  a  fee,  though  not 
fieised  in  fee ;  for  which  he  cites  Bracton  (5).     But 

•  Litt.  Sect.  387.  '  Co.  Lltt.  239.^. 


(4)  It  is  true  the  course  of  succession  must  certainly  follow  the 
inheritable  quality  of  the  land.  Thus  it  has  been  held  that  where 
8  lease  was  made  to  a  man  and  his  heirs,  during  three  lires^  of 
lands  in  Borough  English,  the  youngest  son  shall  inherit  this  de. 
scendible  freehold.  But  there  the  special  occupancy  is  only  regu- 
lated as  in  the  other  cases,  by  the  descriptive  force  of  the  word 
heir^  taken  secundum  subjectam  materiam.  2  Freem-  395^  399. 
Co.  Litt.  110.  b. 

(5)  Si  autem  fiat  donatio  sic,  ad  vitam  donatoris,  donatorio  et 
hsercdibus  sv&ii  si  donatorius  prxmoriatur  haeredes  ei  succedent,  te- 


Sect.  4.  Estates  pur  atiter  Vie.  51 

in  Walsingham's  case,  in  Plowden,  the  learned  Ap- 
prentice stated  arguendo  that  the  heir  in  such  a 
case  should  not  have  an  assize  of  mortdancester^ 
aiid  he  :nras  not  contradicted. 

If  a  roan  graivtan  annuity  to  another  to  hold  to  him 
and  his  heirs  for  the  term  of  another's  life,  and  the 
grantee  die  during  the  life  of  the  cestui  que  vie,  his  heir 
ehall  have  it,  according  to  Littleton',  who  nevertheless 
concludes  with  a  quaere  de  ista  materia.  Upon  which 
Lord  Coke  observes,  that  in  the  case  of  land  the  heir 
fihall  have  it,  to  prevent  an  occupant ;  and  so  it  is  in 
the  case  of  an  annuity,  or  of  any  other  thing  that  lies 
in  grant,  whereof  there  can  be  no  occupant  <6). 

It  is  worthy  of  observation,  that  in  Swinnerton's 
case,  in  Dyer**,  where  a  rent  was  granted  by  fine 
to  F.  to  hold  to  him  and  his  assigns  during  the  life  of 
Cassandra,  the  grantor's  wife,  and  if  it  should  be  be- 
hind, quod  bene  licuit  dicto  F.  et  haeredibus  suis,  du- 
rante vita  dictae  Cassandras  distringere,  and  F.  devised 

'  Sect.  739.  *  Dyer,  252. 


nendam  ad  Titam  donatoris,  et  per  assisam  mortis  antecessoris  recu- 
perabont,  qui  obiit  ut  de  feodo.  Bract.  1.  2.  de  acquirendo  rerum 
donunio.  c.  9. 

(6)  At  law  there  could  be  no  general  occapant  of  a  rent ;  as,  if 
a  rent  were  granted  to  A.  for  the  life  of  B.,  and  A.  had  died,  li\> 
ing  B.,  the  rent  would  haxe  determined,  2  Roll.  Abr.  1 50.  But 
there  might  hare  been  a  special  occupant.  Under  the  statute  of 
frauds,  howerer,  every  estate  pur  auter  Tie,  whether  corporeal  or  in- 
coTporeal,  is  made  devisable^  and  if  not  devised  away,  is  made 
assets  ia  the  hands  of  the  heir,  if  limited  to  the  heir,  and  if  not 
limited  to  the  heir,  is  made  assets  in  the  hands  of  tl;e  executors 
9T  8dimiiist)r^ors  of  the  grantee. 

E  9 


59  Making  and  pubUshn^  Wills.     Chap.  I. 

the  rent  and  died>  living  Cassandra^  Dyer  was  of  opi« 
nion  that  the  devisee  should  have  it^  for  by  the  claufie 
cyf  distress  F.  had  the  fee  simple  determinable  upon 
the  death  of  Cassandra ;  which  seems  an  extraordinary 
opinion^  and  certainly  opposed  by  the  resolution  in 
Chudleigh's  pase^  and  numerous  other  authorities^ 
wherein  it  has  been  uniformly  held^  and  never  doubt* 
ed^  that  an  estate  to  one  and  Ma  heirs,  during  the  life 
of  I.  S.  is  but  an  estate  for  life^  upon  which  a  remain* 
der  may  depend.  And  the  tJiree  classes  into  which  a 
fee  is  distributed  by  the  very  learned  reporter,  in  hit 
own  argument,  in  Walsingham's  case,  clearly  ex< 
eludes  this  estate  out  of  any  description  of  a  fee ; 
either  the  fee  simple,  the  fee  simple  determinable^ 
or  the  base  fee  (7). 

The  question,  upon  the  whole,  seems  to  remain 
in  some  uncertainty  as  to  the  triie  nature  of  the  estate 
where  the  grant  is  expressly  to  ^  man  and  his  beirc 
pur  auter  vie,  though  the  preponderance  seeiAs  to  be 
on  the  side  of  the  doctrine  which  treats  it  as  a  free- 
hold to  which  the  heir  succeeds  as  occupant  by  special 
designation,  $tnd  not  by  regular  title  of  descent, 

ancxe^        There  has  been  some  controversy  on  the  question^ 

bcVs^^^ui  ^^^t^^r  ^  lease,  before  the  statute  of  frauds,  to  a  man 

occupant    unj  }||b  exectttors  during  the  life  of  another,  would  go 

to  the  executor  as  a  special  occupant,    Mr.  Hargravt 

'  1  Rep.  fo,  4.  b. 


(7)  Plowd.  Com.  557.  And  8«e  Cro,  El.-  803,  where  Pophani 
lid,  that  rent  granted  to  one  and  his  heirs  for  the  life  of  II  S.  shall 
not  be  derisable  by  the  statates  32  and  34  H.  8.  for  it  Is  no  fee, 
and  he  added,  that  the  greater  part  of  the  Judges  were  of  his 
opinion.    Qat  Gawdy  and  Fenner  contra. 


SscT,  4*  Estates  pur  auter  Vie.  ^ 

has  pot  this  matter  doubtingly  in  hid  notes  to  Coke 
Littleton^  where  he  says^  after  citing  some  authorities 
the  other  way^  ''  however  some  have  thought  that  ex- 
ecutors and  administrators,  if  named  in  the  grants 
might  take  an  estate  pur  auter  vie,  though  a  freehold, 
even  before  the  statutes  29  Car.  2.  c.  3.  and  14  Geo.  2. 
c.  30.  by  which  they  are  now  entitled."  In  Westfaling 
t.Westfaling^  Lord  Hard wicke  declared  his  opinion, 
that  executors  might  take  as  special  occupants  ;  and 
he  further  added,  that  he  thought  it  would  be  assets 
in  their  hands.  The  same  opinion  is  intimated  by  him 
in  Williams  t^.  Jekyl".  And  his  reason  for  holding 
luch  estate,  so  limited,  to  be  assets,  was,  that  he 
thought  the  executor,  by  force  of  his  office,  could 
take  nothing  without  its  being  so. 

In  the  Duke  of  Devon  v.  Kinton  (8)^  where  A.  hav- 
ing an  estate  to  him  and  his  heirs  for  three  lives,  set- 
tled it  on  his  daughter  and  her  husband  for  their  lives, 
remainder  to  the  use  of  his  own  executors  and  ad^ 
fmdstrators,  and  after  the  death  of  his  daughter 
and  her  husband,  devised  the  estate  to  his  wife, 
and  died  indebted  by  simple  contract,  the  question 
being  whether  the  residue  of  the  term  should  be  nssets 
to  pay  a  simple  contract  creditor,  it  was  so  decreed ; 
for  being  limited  to  the  executors  and  administrators 
of  A.  it  became  personal  estate,  and  he  could  not  de- 
vise it  exempt  from  his  debts,  though  due  by  simple 
contract* 

^  Haifr.Co.Litt41.b. 
*  3  Adu  466.  "*  2  Vec.  68L 


(8)  2  yeni.719.  but  in  2  P.  WiUianu,  360,  it  appeftrt  that  tb# 
ItaM  was  originaUj  granted  to  tnisteas. 


54  *    Making  andpublishing  Wills.        Qiap. 

There  appears,  indeed,  to  have  been  a  stronger 
reason  for  saying  that  an  adfninistrator  could  not  take 
as  a  special  occupant,  since  the  law  will  not  suffer  a 
freehold  to  be  in  suspense,  and  a  person  to  entitle 
himself  as  special  occupant  roust  enter  immediately 
on  the  death  of  the  tenant  pur  auter  vie,  which  an 
administrator  cannot  do,  though  an  executor  may". 

Whether  It  sccms  as  if  the  framers  of  the  statute  29  Car.  2. 
the^sarpius  meant  to  apply  the  term  special  occupant  only  to  the 
b^nefit*;'^"  AeiV,  and  perhaps  with  a  cautious  nicety  in  the  use 
far*thcTta-  ^^  ^^c  phrasc.  The  words,  '  that  in  case  there 
ch^^n  red  *  sAflW  be  no  sj}ecial  occupant  it  shall  go  to  the  executors 
the  nature  ^^^  j^  asscts'  scem  virtually  to  include  the  case  where 

of  the  es-         '  ^     ^  •' 

ute.  the  grant  is  express  to  the  executors  of  the  grantee^ 

for  if  the  executor  cannot  take  as  special  occupant, 
it  is  as  if  he  had  not  been  named,  and  then  the  sta- 
tute gives  it  to  him  for  want  of  a  special  occupant. 

If  he  can  take  as  special  occupant,  it  seems 
absurd  to  say  that  the  statute  could  mean  that  in  that 
character  he  should  take  for  his  owu  benefit,  or^  that 
if  named  in  the  grant,  he  should  take  for  his  own 
benefit,  and  if  not  named,  that  then  the  estate  should 
be  assets  in  his  hands.  If  he  should  belield  to  take 
as  special  occupant,  by  reading  the  words  '  special 
occupant'  in  the  statute,  as  if  they  had  been  such 
special  occupant,  and  as  applying  to  the  heir  only^ 
whose  case  liEld  just  been  mentioned,  the  case  of  the 
limitation  to  executors  is  brought  fairly  within  the  sta- 
tute ;  and  then  the  construction  would  be,  that  if  the 
grant  was  not  to  tlte  heirs,  the  estate  should,  whether 
executors  and  administrators  were  named  or  not,  go 
to  the  executors  or  administrators  as  assets.     But  we 

■Moor,  664.  907. 


Sect.  4.  Estates  pur  axUer  Vie,  55 

have  seen  that  even  if  such  estate  limited  to  executors 
and  administrators  were  held  to  be  out  of  the  statute 
altogether^  still  there,  is  both  reason  and  authority 
for  saying  that  by  force  of  their  office  simply,  the 
property  coming  to  them  must  be  assets  in  their 
hands. 

The  statute  of  29  Car.  2.  c.  3.  makes  these  estates 
coming  to  the  heir  by  limitation^  and  as  special  occu- 
pant, for  want  of  being  devised,  (and  by  the  same 
statute  they  can  only  be  devised  by  a  will  attested  by 
three  witnesses)  assets  for  specialty  creditors ;  and 
in  the  hands  of  the  executors  or  administrators, 
where  there  is  no  special  occupant,  assets  for  both 
specialty  and  simple  contract  creditors.  The  statute  of 
14  Geo.  2.  c.  20.  s.  9.  looking  to  the  case  where  there 
is  no  device  ot  occupancy,  and  which  had  been  par- 
tially provided  for  by  the  statute  29  Car.  2.  makes 
the  surplus  after  payment  of  debts  applicable  and 
distributable  as  personal  estate.  And  when  the 
force  of  the  words  ''  shall  be  applied  and  distributed" 
are  properly  attended  to,  there  seems  to  be  good 
ground  for  inferring  that  the  legislature  intended  that 
the  executor  should  not  retain  this  surplus  beyond  the 
amount  of  the  debts,   as  special  occupant. 

Supposing,,  under  these  circumstances  a  person 
to  make  a  will,  devising  the  residue  of  his  person- 
alty, but  unattested  according  to  the  statute  of  frauds, 
and  therefore  not  operating  immediately  upon  the  dry 
legal  subject,  thai  being  still  in  its  nature  freehold, 
though  at  leasttoacertaincxtentundertheabove-men- 
tioned  statutes  beneficially  applicable  as  personalty, 
what  is  to  become,  in  a  court  of  equity,  of  the  interest 
after  debts  paid  ?    Is  it  to  go  to  the  legatee,  to  the  heir , 


56  Making  And  puhUshing  Wills.      Ctuw.  I. 

to  the  next  of  kin^  or  to  be  retiuned  by  the  exe*- 
cutoi*  ? 


Such  a  case  presents  itself  under  two  aspects :  firsts 
suppose  that  before  the  statute  the  executor  was^  by 
virtue  of  such  express  limitation  to  executors^  a  spe*^ 
cial  occupant^  and  that^  the  statute  having  enacted  i^ 
there  was  no  special  occupant^  the  estate  should 'be 
assets  in  the  hands  of  the  executor  or  administrator^ 
the  case  might  be  regarded  as  being  out  of  the  statute 
where  the  executor  was  named  special  occupant; 
in  this  view  of  it^  it  might  beccmie  necessary  to  en- 
quire  what  would  have  become  of  tine  estate  in 
the  hfiinds  of  the  executor^  as  such  special  occtt« 
pant. 

We  have  the  decided  opinion  of  Lord  Gowper* 
upon  this  subject^  who  made  no  difBculty  of  holding 
it  to  be  personal  estatoj  though  origindly  granted  to 
a  man  and  his  heirs,  if  it  was  afterwards  by  him 
granted  to  executors,  though  it  must  be  remenbeMd 
that  when  the  same  case  was  before  Lord  King  it  ap- 
peared to  be  in  trust.  In  Westfaling  v,  Wes^sding 
above  cited,  it  appears  to  have  been  also  the  opinion 
of  Lord  Hardwicke,  that  an  estate  pur  auter  vie  to  a 
man,  hb  executors,  administrators,  and  assigns,  was 
assets  to  pay  debts  before  the  statute.  And  in  Old- 
ham v:  Pickering  ^  which  was  a  case  before  the  sta- 
tute Geo.  3.  (as  that  case  is  reported  in  Carthew) 
Lord  Holt  seemed  to  entertain  a  degree  of  doubt 
whether  such  an  estate  was  not  assets  to  pay  legacies. 
It  appears  indeed  to  have  been  the  opinion  of  the  an- 

•  ^  Vern.  719.    2  P.  Wros.  S80.  y 

»  I  Lord  Raym.  96.  Garth.  376. 


Sect.  4.  £8tates  pur  auter  Vie.  57 

Dotator  upon  the  case  of  the  Doke  of  Devon  v.  At* 
kxm,  ID  Peere  Williams^  first  edition^  that  there  was 
an  equity  to  say^  that^  if  the  executor  or  administra^ 
tor  took  it  as  special  occupant^  the  effect  of  his  cha- 
racter as  executor  or  administrator^  would  fix  upon 
his  legal  title  an  equity  for  those  who  claim  the  per* 
ional  estate^  to  make  him  a  trustee. 

It  seems^  therefore^  that  the  fate  of  property  m 
circomstanced  was  not  very  well  settled^  independent* 
ly  of  the  statutes  of  Charles  3.  and  George  2.  We 
pa'ceive  too^  by  the  recital  in  the  clause  relatinfp  to 
this  sulyect^  in  the  statute  of  Geo.  3.  c.  14.  that  doubts 
had  existed  afiter  the  provision  by  the  12th  Section  of 
the  statute  39  Cor.  3.  c.  3.  te  to  the  persons  to  tak« 
after  payment  of  the  debts^  and  that  the  clause  ia 
question  of  the  14(h  Geo.  3.  was  made  to  exclude 
such  doubts.  By  this  statute  of  George  3.  therefore 
it  was  provided  that  the  surplus  should  be  applied 
and  distributed  as  personal  estate.  Upon  which  clause 
the  present  Chancellor  declared  himself  to  have  a 
strong  inclination  that  the  meaning  was>  that  the  re^ 
sidttum  of  such  estate  was  to  go  with  the  rest  of  the 
personalty^  where  there  was  a  will^  and  to  the  next 
of  kin  where  there  was  an  intestacy ;  and  that  the  lan- 
guage of  the  statute  would  bear  this  out^  for  it  would 
be  extraordinary  that  persons  claiming  by  bequest 
should  not  have  been  attended  to^  when  even  upon  the  . 
statute  of  Charles  3.  Lord  Holt  doubted  as  to  legacies. 

The  true  state  of  the  question  in  Ripley  v.  Wa* 
terworth  ^  was^  whether^  if  notwithstanding  the 
statutes  of  Car.  3  and  Geo.  3.  tfie  interest  in  such  an 
estate  comes  to  the  executor  in  the  nature  of  a  free* 

*  7  Yez.  Jan*  425. 


ftS  JUateing  and  publishing  Wilis.     Chap.  t. 

m 

hold^  though  by  foi'ce  of  those  statutes  applicable  to  a 
certain  extent  as  personalty,  he  is  not  in  a  court  of 
equity  so  completely  a  trustee  for  the  persons  en- 
titled to  the  personal  estate,  as  that  a  will  not  attested 
by  thred  witnessed,  but  disposing  of  the  residue  of  the 
personalty,  will  give  to  the  residuary  legatee,  after 
the  debts  paid,  a  title  to  call  upon  the  executor  for  his 
benefit.  Upon  this  case  Lord  Eldon  observed,'  that 
he  could  not  adopt  the  principle  of  considering  the 
estate  as  personal,  to  the  point  of  giving  creditors  a 
claim  upon  it,  without  going  farther.  His  Lordship  was 
of  opinion,  that  after  the  debts  were  paid  in  obedience 
to  the  statute,  the  character  of  executor  still  remained 
in  him,  whether  considered  as  special  Qccupant  or  not : 
that  such  character  raised  a  trust  in  him,  and  an  inter- 
est in  others.  To  the  extent,  therefore,  of  giving  an 
interest  to  all,  who  were  in  a  situation  to  claim  the 
'  personal  estate,  it  was  personal  estate. 

It  is  to  be  observed,  that  in  such  a  case  the  heir 
could  have  no  title  ;  for  he  could  only  take  as  special 
occupant,  and  if  as  special  occupant,  still  as  occupant, 
and  there  could  be  no^  occupancy  without  a  previous 
vacancy,  whereas  the  estate  in  the  case  supposed  would 
be  full  of  the  executor.  If  the  executor  has  it,  the 
great  question  is,  how  he  has  it  ?  is  it  freehold  or  per- 
sonal  estate'?  Is  that  which  by  one  statute  has  been  made 
personal  to  the  extent  of  being  assets,  and  therefore 
subject  to  be  sold  as  such  upon  9l fieri  facias  *,  and  by 
another  statute  distributable  under  administration  out 
of  the  spiritual  court,  still  to  be  considered  as  in  the 
nature  of  freehold  in  the  hands  of  the  executor,  against 

'  Atkinson,  v.  Baker,  4  T.  R.  231. 

\See  Olderron  v.  Pickering,  1  Lord  R{iym.  96.  Comb,  291. 


Sect.  4.  Estates  pur  auter  Vie.  50 

any  person  claiming  the  personal  estate  ?  There  is  be« 
sides  great  dif&qulty  in  saying  what  shall  become  of  such 
an  estate  with  this  changeling  sort  of  character  belong- 
ing to  it,  in  case  of  the  death  of  the  executor,  if  he  takes 
it  as  special  occupant  in  the  nature  of  a  freehold.  Such 
a  case  would  be  surrounded  with  difficulties*.  Since, 
however,  the  statute  uses  only  the  expression  pur  auter 
\ic,  not  distinguishing  between  the  grant  to  a  man's 
heirs,  and  to  his  executors,  in  imposing  the  necessity 
for  three  witnesses  to  validate  a  devise  of  it,  the  residue 
in  the  case  above  alluded  to  would  not  pass  strictly  by 
the  will.  But  Lord  Eldon  vyas  of  opinion,  that  in  a 
court  of  equity  the  estate  was  to  be  considered  as  be- 
longing to  those  who  take  personal  estate  by  an  equi- 
ty attaching  upon  the  character  of  executor  as  execu- 
tor. And  he  resembled  it  to  the  case  of  stock  which 
can  properly  be  disposed  of  only  by  a  will  with  two 
witnesses  (9) ;  but  which,  according  to  Lord  Thur- 
low,  where  it  is  not  so  bequeathed,  devolves  upon 
the  executor  in  trust  for  those  who  are  entitled  to  the 
personal  estate,  under  the  residuary  bequest;  the  will 
operating  as  a  direction  to  the  executor  how  to  apply 
it,  though  4i  was  not  devised  by  that  will  *. 

Upon  the  whole,  therefore,  as  the  question  now 
stands,  upon  the  authority  of  the  much  reasoned  case 
of  Ripley  X?.  Waterworth,  in  equity  at  least,  an  es- 
tate granted  to  a  man,  his  executors,  administrators, 

•  7Ve2.445.451. 
"  7  \ez.  Jun.  448.  452. 


(9)  B7  33  Geo.  3.  c.  28.  s.  14.  and  35  Geo.  3.  c.  14.  s.  16.  it  is 
provided  that  all  persons  possessed  of  any  share  or  interest  in  the 
fonds,  or  any  estate  therein,  may  devise  the  same  by  will  in  writing, 
oUedcd  by  two  or  more  credible  witnesses. 


M  Making  mi  publishing  Witts.     Chap.  T 

andassi^s^  for  tbt  Kfe  of  another^  though  derisabla 
as  to  the  legal  interest  only  by  a  will  with  three  wit* 
nesses^  is  personal  estate^  or  in  the  nature  of  per-* 
•onal  estate,  in  the  hands  of  the  elecutor,  and  the  be« 
nefit  as  to  the  surplus  belongs  to  the  legatee  under  the 
will  as  such^  though  the  will  is  not  attested,  so  as  to 
pass  it  at  law.  In  a  word,  it  is  personal  estate  as  to 
those  claiming  as  creditcNTs  and  representatives.  But 
yet  the  essential  character  of  the  estate  as  a  freehold 
remains,  as  to  other  persons,  who  can  only  take  the 
legal  interest  in  it  by  a  conyeyance  applicable  to  frec-> 
hold  property. 


SacnoN  V. 


Powers  to  be  executed  by  WiU. 

^^^M^  WHERE  a  power  is  giren  or  reserved  by  deed  to 
"^c'cuttd'*  ^^  executed  generally  by  a  will,  without  any  words  ex- 
i^»n>^yby  pressing  or  importing  the  manner  in  which  such  will 
otttuy  di-  is  to  be  executed,  if  the  subject  of  such  power  is  free« 

rectioDfl  at  u  x 

to  the  hold  estate,  the  power  will  be  ill  executed  by  any  will 
which  sacii  not  sigucd  by  the  testator,  and  not  attested  by  three 
beexe-  witucsscs  by  the  subscription  of  their  names  in  hia 
maTt&eex.  presence,  according  to  all  the  circumstances  requhred 

^K4^V1 4'tfktfft  - 

by  a  will    by  the  statute  to  give  effect  to  a  devise  pf  lands.  Lord 

•cmding   Macclesfield,  in  Longford  v.  Eyre%  much  doubted 

tote^f'^  whether  the  will  in  that  case  Would  have  been  a 

^"***'       good  appointment,  had  it  not  been  executed  pursuant 

to  the  statute ;  because,  said  his  lordship,  when  a  pow* 

er  is  g^ven  to  appoint  the  uses  of  land  by  deed  or  will 

the  will  must  be  intended  to  be  such  a  one  as  is  proper 

•  1  P.  Wbm.  741. 


Sbct.  5.       Fawers  to  be  executed  iy  WtlL  $1 

for  the  dispofiitien  of  land^  and  consequently  should' 
be  subscribed  by  three  witnesses^  in  the  presence  of 
the  testator.  For  this  is  within  all  the  inconveniences 
which  the  statute  of  frauds  was  intended  to  prevent, 
and  the  words  m  the  nature  of  a  toill,  mean  the  same 
as  a  will  which  must  therefore  be  subscribed  by  wit^ 
nesses  in  the  presence  of  the  testator.     And  accord-  And  ti»e 

same  doc* 

inff  to  the  same  chancellor^  in  Wagstaff  t?.  Wagstaff^  trine  hoid« 

,     ,  in  respect 

if  the  trust  of  lands  be  limited  to  such  persons  as  a  to  tnut  cs* 

tates. 

man  shall  by  will  appoint^  and  the  cestui-que-trust  de^ 
vises  these  lands  by  a  will  executed  only  by  two  witness- 
es, the  will  is  void,  and  will  not  operate  as  an  appoint- 
ment. In  confirmation  of  which^  it  was  said  by  Sir 
John  Strange^  at  the  Rolls,  in  introducing  his  judg- 
ment in  Jones  v.  Clough*,  that ''  where  the  owner  of 
an  estate  in  land,  either  in  law  or  equity,  reserves  to 
himself  a  power  of  disposing  of  it  to  such  uses  as  he 
by  will  shall  appoint,  that  must  be  by  such  a  will  as 
within  the  statute  of  frauds  would  be  proper  for  a 
devise  of  lands ;  otherwise  the  statute  would  be  en- 
tirely evaded. " 

But  if  the  power  extends  over  personal  as  well  as  Bat  if  such 
*  *  power  ex- 

real  propertv,  though  a  will  made  in  execution  of  the  tends  to 

r      r       J'  ^  personal  as 

whole  power  should  feil  as  to  the  land  for  want  of  a  suf-  ^e"  as  real 

*  ,  estate,  and 

ficient  attestation,  it  may  nevertheless  be  a  good  ex-  the  win  be 

,  nnexeeut- 

ecution  of  the  power  with  respect  to  the  personalty,  ed  to  pass 
Thus,  where  a  man  by  his  will  had  given  several  neverthe- 

__  _     _  Iaaa  ijc  ef" 

shares  in  the  Sun-fire  Office  to  his  daughter,  and  fectnaito 
after  her  decease  to  such  persons  as  she  should  by  ^^'^tatr 
her  will  direct,  and  had  also  devised  real  and  per* 
sonal  estate  in  Jamaica^  in  moieties,  the  one  moiety 
to  Frances  for  life,  and  after  her  decease,  to  such 
persott  as  abe  should  by  will  direct,  the  other  moiety 

J  «  P.  Wins.  258.  •  2  Vca.  360. 


02  ^Making  and  publishing  Wills.      Cuap.  I. 

to  another  person,  in  like  manner,  and  the  daughter,  by 
her  will  reciting  that  of  her  father,  disposed  of  the 
Sun-fire  shares,  and  also  by  the  same  will  devised  the 
real  estate,  but  the  will  was  not  duly  executed  to  pass 
real  estate,  being  attested  by  two  witnesses  only. 
Lord  Chancellor  Thurlow  held  that  the  will  being  8uf=^ 
ficient  to  pass  the  personal  estate,  was  sq  f ar  a  goo<) 
execution  of  the  power*. 

It  has  been  said  that  if  an  agreement  be  entered  into, 
to  charge  certain  lands  with  a  sum  of  money  for  thq 
benefit  of  certain  persons  named,  in  such  shares  as  ^ 
//uVrf  person  shall  direct  by  his  last  will,  such  will  neec| 
not  be  executed  as  the  statute  requires  for  passing  real 
estate ;  but  if  one  or  more  having  th^  inheritance  in 
them  of  certain  lands,  agree  that  one  of  them  shall 
Jiave  power  to  charge  the  same  with  any  sura  by  his 
Jast  will^  this  power  can  only  be  well  executed  by  a 
will  with  three  witnesses*.  This  doctrine  however 
seems  vpry  refined,  and  the  case  was  one  in  which 
compassion  may  have  had  some  effect. 

If  the  owner  of  an  estate  reserves  to  hjmself,  or 
gives  to  another,  a  power  to  appoint  by  will  generally, 
the  execution  of  the  power  must  be  by  a  will  exe- 
cuted as  the  statute  prescribes,  with  the  regular  at- 
testation* of  three  witnesses '.  But  if  the  subject  of 
the  disposition  be  personal  only,  then  although  the 
power  be  required  in  terms  to  be  exercised  by  will 
duly  executed,  such  words  will  import  no  solemnity 
which  the  subject  itself  does  not  require;  the  wordg 

*  Duff  V.  DalzeU,  1  Bro.  C.  R.  147.  et  tide  Powell  v.  Beresford, 
9  Lord  Raym.  1^83. 

*  Jones  9.  Ciough.  2  Yei.  365.         f  9  Mod.  485,  by  Lord  Q^rdv 
mc\e. 


Sect.  5-        Powers  to  be  execvied  hy  WUU  63- 

duly  executed  must  refer  to  the  nature  of  the  act^  and 
the  nature  of  the  thing  which  U  intended  to  pass  by  it^ 

And  although  the  subject  of  the  power  be  real 
estate,  yet  when  the  power  is  given  generally,  with- 
out any  specification  or  direction  as  to  the  instrument 
or  mode  by  which  it  is  to  be  executed,  it  has  beei> 
doubted  whether  the  execution  of  it  by  will  must  be 
made  as  (he  statute  diirects  with  respect  to  rea) 
estate, 

In  the  case  of  Sayle  v,  Freeland  and  others  re- 
ported among  the  Chancery  cases  in  Ventris^  and 
referred  to  by  Sir  John  Strange,  in  Jones  v.  Clough*, 
the  bill  was  to  redeem  a  mortgage  made  by  the 
(ather  of  the  defendant,  or  to  be  foreclosed.  The 
defendants,  by  guardian,  answered,  stating  that  their 
grandfather  was  seised  in  fee,  and  made  a  settlement^ 
whereby  he  entailed  the  estate,  but  with  a  power  of 
revocation  by  any  writing  published  under  his  hand  and 
seal,  in  the  presence  of  three  witnesses  ;  and  the  case 
was  that  he  made  his  will  under  his  hand  and  seal, 
wherein  he  recited  his  power  (2),  and  declared  that  he 
revoked  the  settlement ;  but  the  will  had  but  two  wit- 
nesses^ who  subscribed  their  names,  though  a  third  was 

'  Poulson  t^.  Wellington,  633,  P.  Wms. 
*  2  Veat.  36Q.     *  Vez.  365. 


(2)  That  a  power  may  be  exercised  without  recitiog  it.  See  1 
Atk.  559^  Mplton  v,  Hutchinson,  ib.441,  Robert  v.  Morgan.  But 
fee  as  to  the  question  whether  it  will  be  executed  by  the  general 
words  of  a  will.  3  Vez.  jun.  467,  Langham  v,  Nenney.  2  Bro. 
C.  €.297,  Andrews  v.  Emmet.    4  Vez.  jun.  60,  Croft  r.  Slec. 


M  Making  and  publishing  Witts.       Cbxt.  I. 


actually  present:  the   testator  died^  and  the  hnda 

descended  to  the  father^  who  made  the  mortgage; 

the  defendants  claimed  by  virtue  of  the  entail.     But 

the  Chancelbr  decreed^  that  the  mortgage  money 

should  be  paid ;    and  ilrst^  he  said^  there  was  an 

execution  of  the  power  in  strictness,  for  the  third 

witness  was  present,  though  he  did  not  subscribe* 

But^  secondly,  if  there  bc4  not  been  in  strictness  a 

good  execution  of  the  power^  equity  would  help  it  19 

such  a  little  circumstance^  where  the  owner  of  the 

estate  had  fully  declared  his  intention  ;  further  add** 

ing^  that  there  was  a  difference  where  a  man  had 

power  to  make  leases^  Sec  which  would  charge  an4 

incumber  a  third    person's  estate^    which    sort  of 

powers  were  to  have  a  rigid  construction ;  but  where 

the  power  was  to  dispose  of  a  man's  own  estate, 

it  was  to  have  all  imaginable  faroar.    Here^    we 

observe^  that  the  power  was  to  be  exercised  by  a 

icriting,  and  not  necessarily  by  a  will,  executed  in 

the  presence  of  three  witnesses ;  and  although  the 

party  chose  to  execwte  the  power  by  a  writing  in  tiie 

form  of  a  win^  and  that  will  not  such  a  one  as  coidd  hatve 

a  testamentary  operation  under  the  statute  of  frauds, 

yet  it  was  not  the  less  a  writing  published  siMler  hand 

and  seal  in  tiie  presence  of  witnesses.    It  has  been 

clearly  held  by  Lord  Chief  Justice  Hale  ^  that  if  a 

-power  not  requiring  to  be  executed  in  that  manner 

were  to  be  executed  by  a  bargain  and  sale,  the  deed 

need  not  be  enrolled;    And  it  may  be  contended  on 

grounds  of  analogy  to  that  decision,  that  because  the 

donee  ef  a  general  power  chuses  to  execute  it  by  an 

instrument  in  the  shi^  of  a  wiH,  he  does  not  oblige 

himself  to  make  it  agreeably  to  .the  forms  require^ 

by  the  statute. 

Raym.  339  •    logram  9.  Ffetcker, 


Sect.  5.      Powers  to  be  executed  by  Will.  65 

Though  a  man   by  first  passing  the  land  by  a  Amancan- 

iM   >  .  not  by  wiU 

sufficient  conveyance,  may  empower  himself  to  make  reserve  a 
a  future  disposition  thereof  by  a  writing,  with  one  diposingof 

•  111  'It  real  estate 

or  two  witnesses;  and  under  such  a  power  a  will,  or  byafutora 
writing  purporting  to  be  a  will,  if  attested  according  w1»o?co- 
to  the  terms  of  the  power,  will  be  a  good  instru- 
mentary  execution  of  the  power  (3) ;  yet  it  has,  upon 
very  satisfactory  reasons,  been  determined,  that  a 
person  cannot  by  will  enable  himself  to  make  any  fu- 
ture dispq^ition  of  land  by  any  instrument  whatever, 
not  executed  and  attested  as  the  statute  of  frauds 
requires,  in  respect  to  wills  of  lands.  If  a  will  affects 
to  reserve  any  power  of  disposition,  such  reservation 
is  purely  negative  in  its  effect;  it  does  nothing ; 
unless  perhaps  it  may  serve  as  a  positive  expression- 
of  the  non-effectiveness  of  the  will  itself  as  to  certain 


(3)  For  ia  such  a  case  the  disposition  is  not  testamentary  in  its 
origin^bat  is  to  be  regarded  as  merely  supplemental  to,  or  as  direct- 
ing the  operation  of  the  conveyance  from  which  the  power  springs. 
Bot  whaterer  terms  the  creat;>r  of  the  power  chuses  to  subject  it 
to,  they  roust  in  general  be  strictly  compiled  with.  This  doctrine 
is  well  laid  down  in  Hawkins  v.  Kemp,  3  East,  410.  The  terms 
of  t6e  power  required  that  the  reyocation  should  be  by  deed  or  in- 
strument in  writing,  executed  in  the  presence  of,  and  attested  by, 
three  credible  witnesses,  and  enrolled  in  one  of  His  Majesty's  courts 
of  record  at  Westminster,  and  with  the  consent  of  H's  wife,  his 
father,  father-in-law,  and  sereral  trustees,  being  in  all  nine  per- 
ions.  The  C.  J.  said  that  every  one  of  these  required  circum- 
itances,  unessential  and  unimportant,  except  as  they  were  required 
by  the  creators  of  the  power,  could  only  be  satisfied  by  a  strict  and 
precise  performance*  They  were  incapable  of  substitution,  because 
these  requisitions  had  no  spirit  in  them  which  could  be  otherwise 
satisfied.  See  Mansell  v.  Mansell,  Wilm.  36.  See  also  Digges's 
case,  1  Rep.  173.  Bath  and  Montague's  case,  3  Ch.  Ca.  56.  Kib- 
bct  o.  Lee,  Hob.  312.  Thayer  ».  Thayer,  Palm,  112.  Ward  v<r 
LentluU,  1  Sid.  143. 


66  Making  and  publishing  Wills.      Cbap.  I, 

subjects^  or  beyond  certain  limits.  Such  lands  as  a 
testator  does  not  actually  pass  or  dispose  of  by  a  pre- 
sent declaration  of  his  mind^  remain  in  him  to  be 
passed  or  disposed  of  by  a  future  conveyance  or  will ; 
but  by  such  only  as  are  competent  in  law^  by  the 
perfection  of  their  respective  executions^  to  the  gift 
or  transfer  of  the  property^  according  to  its  nature 
and  requisites.  And  this  rule  obtains  equally  in  re* 
spect  to  legal  and  trust  estates ;  for  trust  estates  are 
as  much  within  the  statute  of  frauds^  with  regard  to 
the  formalities  requisite  to  the  perfection  of  a  will^  aa 
legal  estates^  since  the  same  mischiefs  would  follow 
from  the  omission  in  the  one  case  as  the  other. 


If  an  in-         It  is  established  that  an  instrument^  whatever  is  its 

•trument 

be  not  in-    form^  whether  it  be  a  deed  poll  or  indenture^  is  testa- 
tended  to 

have  effect  mcntary  in  its  operation  and  quality^  if  it  be  intended 

death  of     not  to  operate  till  the  death  of  the  party  who*  made 

it  is  tetta- '   it'.   The  circumstance^  and  not  the  form^  must  decide 

itsop!mi^  the  character  of  the  instrument.    Thus^  therefore^ 

qu^i^,      the  deed  in  the  case  of  Habergham  v.  Vincent ''  could 

may  ^it$    huvc  uo  othcr  Operation  than  as  a  testamentary  paper ; 

•^'^         and  presented  itself^  under  this  general  character^  in 

three  distinctlights — as  a  codicil^*as  an  exercise  of  the 

power  reserved  by  the  will — or  as  an  integral  and 

original  part  of  the  will  itself^  by  incorporation  into 

its  substance. 


A  codicil  has  a  distinct  commencement^  and  though 

it  is  said  to  be  a  part  of  the  will,  yet  it  becomes  so  by 

first  acting  upon  the  will^  and  in  a  manner  drawing* 

it  down  to  the  date  of  its  own  publication  ;  and  can 

*  Moor  177.  3  Leon,  part  4,  159,  166.    Audley's  case,  Dy«r 
160,  a  Greene  v.  R'oade,  1  Mod.  177. 
"  904.    And  lOO  Haniiold  v.  Habioghanii  10  Yei.  Jon.  9»U 

9 


Sect.  5,       Powers  to  be  executed  by  WiU.  67 

have  no  operation  upon  freehold  estate,  either  as  part 
ofthe^yill,  or  by  its  own  efficiency,  unless  it  be  at- 
tested as  the  statute  directs. 

As  an  exercise  of  a  power  of  appointment^  it  is  met  Difference 

,      ,  _        ,  1       1  .         .«  between  a 

by  the  rule,  that  a  testator  cannot  by  his  will  reserve  convey- 
a  ri^bt  to  devise  freehold  estate  by  a  future  testamen-  uses  and  a 
tary  instrument,  not  attested  according  to  the  statute  specttothe 
of  frauds,  however  practicable  this  may  be  under  the  ra«^g 
uses  of  a  conveyance.     Where  there  is  a  conveyance,  fu^rTdit- 
and  a  power  is  reserved  under  the  uses  thereof,  the  *^ 
estate  is  parted  with,  the  land  is  gone,  and  the  power, 
which  is  in  truth  only  an  executory  use,  being  colla- 
teral to  the  land,  may  be  limited  to  be  executed  by  any 
instrument  whatever ;  by  a  deed  or  writing,  with  or 
without  witnesses :  for  its  specific  operation  is  not  in 
question,  where  the  terms  of  the  conveyance  reserv- 
ing the  power  have  defined  the  mode  of  its  execution ; 
though,  as  we  have  seen,  if  it  be  reserved  to  be  exe- 
cuted by  a  will  in  general  terms,  the  party  will  be  un- 
derstood to  have  intended  a  proper  will,  according  to 
the  statute.    But  by  his  witl,  a  man  parts  with  nothing 
before  his  death,  till  which  time  his  will  is  ambulatory, 
incomplete,  and  revocable  ;  he  has  the  same  absolute 
dominion  he  had  before ;  and  if  by  any  subsequent 
act  he  parts  with  any  portion  of  his  estate,  whether  it 
be  a  part  of  that  already  devised,  or  a  part  affected  to 
be  specially  reserved  for  his  future  appointment,  he 
parts  with  it  as  owner,  and  not  instrumentally,  and 
by  virtue  of   an  original,,  and    not    a    derivative 
power. 


As  to  the  third  point,   the  truth  seems  to  be,  that  Every  pa^ 

'^  .  ^  per  to 

«very  paper  to  which  a  will  refers  must  be  incorpo-  ^^'<^'^* 
rated  original^  into  the  will  itsdf,  if  real  property  is  attested, 

v2 


68 


Making  and  publishing  Wills,      Chap.  I. 


r«ren,  iP  it  to  be  affected  by  it,  or  it  can  avail  nothings  unless  it  is 
disposition  itscIf  cxecutcd  according  to  the  statute  of  frauds.  And 
perty,tobe  further,  the  rule  is^  that  an  instrument  properly  attest- 
atestaxnen-  cd,  to  incorporate  into  itself  another  instrument^  not 
amt^t^er  attested^  must  describe  it  so  as  to  manifest  distinctly 
^ntedorv^^  what  the  paper  is  that  is  meant  to  be  incorporated^  in 
Se^wiu,^^  such  way  as  that  the  court  can  be  under  no  mistake''. 
cutedac^  It  did  uot  appear  to  the  court,  in  Habergham  v. 
tkeguSite  Vincent,  that  the  second  instrument,  although  tes- 
■ndsuc^  tamentary  in  its  nature,  could  be  incorporated  into 
^■o^cor-  the  will ;  which  referred  to  nothing  actually  in  exist- 
most  be      ence,  but  to  an  intention  merely ;  and  it  has  been  sufE- 

distinctly 

referred  to  cieutlv  shcwu,  that  the  will  could  create  no  power  with 
bed  in  a  special  mode  of  execution.  In  that  case,  Mr.  Justice 
Wilson  said,  that  he  believed  it  to  be  true,  and  he  had 
found  no  case  to  the  contrary^  that  if  a  testator  in  his 
will  refers  expressly  to  any  paper  already  written,  and 
has  so  described  it  that  there  can  be  no  doubt  of  the 
identity,  and  the  will  is  executed  in  the  presence  of 
three  witnesses,  such  paper  makes  part  of  the  will^ 
whether  executed  or  not ;  and  by  such  reference  he 
does  the  same,  as  if  he  had  actually  incorporated  it^ 
because  words  of  relation  have  a  stronger  operation 
than  any  other.  But  the  difference  between  that  case^ 
and  the  reference  to  a  future  intention,  is  striking  : 
in  the  former,  said  the  judge,  there  is  a  precise  inten- 
tion mentioned  at  the  time  of  making  the  will ;  for 
the  paper  makes  out  the* intention  at  the  time:  but 
when  a  man  declares  he  will  in  some  future  paper  do 
something,  he  says,  he  will  make  a  will  as  far  as  his 
intention  is  then  known  to  himself^  but  he  will  take 
time  to  consider  what  he  will  do  in  future. 

With  respect,  however^  to  the  copyhold  estate^ 

*  Smart  v.  Pruj^ao,  6  Tex.  jun.  565. 


Sect.  6.  Wills  charging  Lands.  69 

which  was  a  subject  of  the  dispositions  in  the  case  of 
flabergham  v.  Vincent^  it  was  held  quite  clear,  by  the 
Chancellor  and  Judges,  upon  the  doctrine  a  little  be* 
fore  stated,  that  as  the  deed  poll  was  capable  of  being 
regarded  as  a  testamentary  paper,  it  was  sufficient  to 
pass  the  copyholds.  And  from  the  principles  of  the 
reasoning  just  produced,  as  a  testamentary  paper  it 
must  have  operated  as  a  codicil ;  for  it  could  neither  be 
incorporated  into  the  will  as  an  original  part  of  it,  or 
operate  by  virtue  of  the  power  affected  to  be  reserved 
by  the  will 


Section  VI. 

Wills  charging  Lands. 

*  • 

WE  observe,  that  in  the  above-mentioned  case  of  By  a  win 
Habergham  v.  Vincent,  the  counsel  for  the  surviving  cuted^"' 
trustee  endeavoured  to  maintain  the  competency  of  the  uJa*^^ 
testator,  by  a  will  executed  according  to  the  statute,  ii^ci^s% 
to  reserve  a  power  of  future  disposition  of  land  by  an  abVeVhL^-' 
instrument  not  perfected  as  the  statute  directs,   by  any^num^ 
analogy  to  the  case  of  a  general  charge  of  legacies  on  ^^^^ 
lands  by  a  will  duly  executed ;  whereby  it  has  been  ^,,^"^^11 
held',  that  a  testator  enables  himself  to  charc^e  the  subsequent 

'  o  testamen- 

land  with  any  number  of  additional  legacies,  by  a  ^  «*»*?<>• 
subsequent  instrument  not  attested  so  as   to  pass  «<^>*^- 
lands.     This,  indeed,  seems  to  be  established  doctrine 
with  respect  to  legacies,  which  Lord  Hardwicke  said 

*  Masters  v.  Masters,  1  P.  Wms.  493.  and  Brudenell  v.  Bough- 
ton,  3  Atk.  274«  and  see  the  late  case  of  Rose  v.  CanniDghanii  12 
Ves.  Jua.  39.  ^ 


70  Making  and  publishing  Wills.     Chap.  I. 

viras  attended  with  no  greater  inconvenience  Uma 
arose  from  a  man's  charging  his  lands  by  will  with  the 
payment  of  his  ddfts,  which^  doubtless^  would  extend 
to  all  the  debts  contracted  during  his  life.  It  was  in«> 
sisted^  however^  tiiat  the  statute  was  equally  defeat* 
ed  by  the  privilege  of  charging  land  with  legacies  <Nr 
debts  to  any  extent  by  an  unsolemn  will^  where  (he 
land  has  been  generally  charged  by  a  previous  attest*- 
ed  wiU^  as  by  a  power  of  appointing  reserved  by 
a  will ;  for^  as  to  debts  it  was  said^  that  by  a  bond^ 
creating  a  voluntary  debt^  a  testator  might  cifcuitous- 
ly  dispose  of  the  whole  value  of  his  estate ;  so  like- 
wise^ after  having  generally  charged  legacies  upon  his 
estate  by  an  attested  will^  he  might  devise  away  the 
whole  of  his  property  by  any  testamentary  paper^  by 
creating  a  charge  equal  to  its  value. 

But^  in  reply  to  this  reasonings  it  was  said^  by  the 
Lord  Chancellor^ ''  that  it  was  supposed  to  be^ir  Joseph 
Jekyll's  opinion  in  Masters  v.  Masters^  that  it  might  be 
supported  as  a  power,  reserved  to  the  testator,  to  in- 
crease the  charge  by  a  future  act.  That  could  not 
be  the  ground  of  his  opinion.  There  was  a  manifest 
incongruity  in*the  supposition  of  a  power,  reserved 
by  a  man's  own  will,  which  cannot  begin  to  operate 
till  all  power  in  him  ceases.  The  observation  made 
by  Mr.  Justice  Wilson  was  unanswerable,  that  it  is 
not  a  personal  privilege ;  and  that  no  man  can  reserve 
a  power  to  act  against  the  forms  which  the  law  haa 
imposed.  Therefore,  if  it  were  to  pass  by  a  testamen- 
tary act,  such  act  must  have  all  the  solemnities  which 
the  law  has  directed. 


€t 


But  in  a  correct  MS.  note  in  his  Lordship's  pot* 


Sect.  6L  Wills  charging  Lands.  71 

session^  Lord  Hardwicke  had  stated  the  ground  of 
the  determination  to  be  the  analogy  to  the  case  of 
debts.  His  Lordship  added^  that  the  cases  to  ivhich 
he  had  alluded^  were  none  of  them  cases  of  a  pri- 
mary^  substantive^  independent  charge  upon  the  real 
estate^  but  a  charge  upon  it  in  aid  of  the  personal^ 
which  WHS  primarily  charged.  Such  a  charge^  wheCher 
for  debts  or  legacies^  was  necessarily  uncertain  in 
extent^  not  merely  because  the  testator  could  not  as- 
certain what  might  be  the  amount  of  his  future*  en- 
gagements^  but  because  the  amount  of  the  personal 
estate  was  fluctuating. 

''  A  charge  for  legacies^  therefore,  (his  Lordship 
saidj  must  be  uncertain  as  to  its  extent ;  not  merely 
because  the  testator  could  not  ascertain  what  might 
be  the  amount  of  his  future  engagements^  but  because 
the  amount  of  the  personal  estlite  was  fluctuating. 
Whatever  affects  the  primary  fund,  varies  the  amount 
of  the  charge.  Therefore,  though  given  by  a  will  du- 
ly executed,  they  are  revocable  by  a  will  not  so  exe- 
cuted ;  for  the  charge  upon  the  land  was  only  for  the 
deficiency  of  the  personal  to  answer  the  legacies.  If 
the  legacies  were  taken  away,  the  land  would  not  be 
affected.  If  they  were  increased  they  would  affect 
the  real  by  diminishing  the  personal,  which  it  was  in 
the  power  of  the  owner  to  do  all  his  life.  It  was 
obvious  therefore,  that  the  statute  of  frauds  did  not 
affect  the  question  as  to  legacies,  because  it  did  not 
prevent  a  man  from  creating  by  will,  a  fluctuating 
charge  upon  rqal,  in  aid  of  personal  property.  But 
that,  said*  his  Lordship,  could  bear  no  application 
to  a  devise  of  the  land  itself,  or  a  reserved  part  of 
the  realty  not  disposed  of ;  nor,  as  he  conceived,  to 


ftmads 


72  Making  and  publishing  Wills.    Chap.  I, 

an  original  charge  upon  the  land,  which  he  should 
think  could  not  he  revoked  by  a  second  informal 
will.  If  ever  such  a  case  arose^  it  would  be  a  new 
question/' 

« 

A  sum  of        Prom  Brudenell  v.  Boufirhton  V  so  often  referred  to 

mooey  de-  •  o  ^ 

▼iwdowt     in  the  above-mentioned  case  of  Haberfirham  v.  Vin- 

of  land  18  ^ 

wart  of  the  cent,  wc  coUcctthe  following  useful  distinctions  upon 
equity,  and  .the  subjcct.     If  a  sum  of  mouev  be  given  originally 

■ucbdispo-  V  .  ./  o 

sition  is  .and  primarily  out  of  the  land,  such  a  devise  requires 
statute  of  as  much  the  solemnities  of  execution  prescribed  by 
the  statute,  as  a  devise  of  the  land  itself ;  because  the 
money  is  regarded  in  a  court  of  equity  as  part  of  the 
land,  since  it  can  only  be  raised  by  sale  or  disposition 
of  part  of  the  land ;  and  this  is  considered  as  analo- 
gous to  the  rule  of  law,  that  a  devise  of  the  rents  and 
profits  is  a  devise  of  the  land  itself.  And  if  money  be 
so  charged  upon  land  by  a  will  with  the  due  solemni- 
ties, a  subsequent  will  unattested,  or  attested  by  one 
or  two  witnesses  only,  cannot  revoke  or  subtract  the 
charge.  But  where  land  is  made  subject  to  legacies 
generally,  such  legacies  are  nevertheless  to  be  consi- 
dered  as  primarily  attaching  upon  the{)ersonal  estate^ 
so  that  if  there  are  personal  assets  sufficient,  the  land 
will  be  exempt,  for  it  is  only  a  collateral  security  ;  and 
by  a  consequence  in  reasoning,  if  the  will  be  revoked 
as  to  the  personalty,  the  object  of  the  collateral  security 
is  gone,  and  the  land  remains  no  longer  charged* 
The  legacies  given  by  the  first  will  may  be  with- 
drawn by  a  second  unexecuted  according  to  the  sta- 
tute; and  by  such  second  will,  other  legacies  maybe 
substituted  of  a  different  amount ;  or,  without  chang- 
ing or  modifying  the  legacies  first  given^  additional 

*  a  Atk.  207. 


Sect.  6.  Wills  charging  Lands.  73 

ones  may  be  given  either  to  the  same  or  different  * 
perBons"". 

If  money  be  directed  to  be  laid  out  in  land^  the  Bat  the 

i_  1  •       •  -111  11   P^'so**  to 

person  to  ivnom  the  entire  interest  in  the  land  would  whom  the 
belong  under  the  will^  if  purchased^  may^  before  the  parcbased, 

..  1  i*«i  11     would  b&* 

investiture^  elect  to  take  it  either  as  money  or  land,  long,  may 
i.  e.  as  personal  or  real  estate.     If  such  devisee  makes  the  llmd  m 
his  will,  and  describes  such  interest  as  money,  it  will  lonareS.*'* 
pass  without  attestation  * ;   but  without  such  indica-  ^^' 
tion  of  intention  to  treat  it  as  money,  it  remains  real^ 
and  the  will^  to  pass  it,  must  be  attested  ^ 

V 

The  great  point  to  be  attended  to  in  considering:  the  Adirection 

,  ^  by  will  to 

cases  of  general  charge,  is,  that  by  the  first  will  ex-  «eiiiand» 

for  ceilain 

ecuted  to  pass  and  affect  real  property  according  to  the  purposes, 
requisitions  of  the  statute,  the  land  is  effectually  made  an  ultimately 
auxiliary  and  coUateral  fund  to  the  personal  property  charfAcr* 
in  respect  of  legacies ;  and  that  to  this  indefinite  extent  perty,  ST" 
it  becomes  a  pledge,  and  impressed  with  the  character  surplus^ 
of  personal  estate.     But  it  is  to  be  observed,  that  if  particuiL- 
a  win,  properly  attested,  contains  a  direction  to  sell  satufied"* 
real  estates,  and  out  of  the  produce  to  pay  legacies,  "y  an^^nl 
such  direction  does  not  so  stamp  this  character  of  per-  ^^^^^ 
sonal  estate  upon  the  wholes  or  produce  so  complete 
and  ultimate  a  conversion  of  the  land  into  personalty^ 
as  that  the  surplus,  after  the  legacies  are  satisfied, 
may  pass  by  an  unattested  codicil.     To  produce  this  To  effect 
effect,  the  testator  ought,  in  a  will  executed  and  at-  '"tc  con- 

"  version,  a 

tested  so  as  to  pass  freehold  estate,  to  manifest  a  clear  clear inten. 

tion  ought 

intention  to  have  the  whole  actually  sold,  or,  at  least,  to  be  de. 
should  in  such  will  decidedly  shew  that  he  contem-  ted. 
plates  the  surplus  as  personal  estate,  and  intends  to 

« 

*  Vid.  Hannis  9.  Packer,  Ambl.  66G. 

*  3  P.  Wmi.  221.  note  c.       :  Ibid. 


74  Making  and  publishing  Wills.     Chap.  I. 

brin^  the  whole  within  that  description  df  property. 
.To  this  limit  the  cases  cited  in  Sheddon  v.  Goodrich', 
seem  to  have  carried  and  confirmed  the  doctrine. 
What  is  not  absolutely  converted^  either  in  law  or 
equity^  but  is  only  directed  to  be  sold  to  answer  a 
particular  purpose^  as  to  pay  legacies^  for  which  the 
testator  has  directed  certain  conveyances  to  be  made^ 
retains^  as  to  the  surplus^  its  character  of  real  estate : 
for  the  particular  purpose  .to  which  the  produce  is 
destined  the  conversion  into  personal  estate  takes 
place^  but  as  between  the  personal  and  real  represen- 
tatives it  remains  real. 

If  the  object  for  which  the  conversion  was  to  be 
made^  does  not  come  into  existence^  and  thus  no  reason 
arises  for  any  conversion  to  answer  the  purposes  of 
the  wiU^  the  estate  descends,  in  the  view  of  a  court  of 
equity^  as  real,  to  the  heir  at  law. 

Such  being  the  doctrine  on  this  subject  in  a  court 
of  equity^  it  follows^  that  if,  after  .directing  an  estate 
to  be  sold  for  the  payment  of  particular  legacies  by 
a  will  duly  executed  and  otteste^l^  a  test^itor  mighty 
'  by  an  unattested  codicil^  dispose  of  the  surplus  of  bis 
property^  either  the  consistency  of  t^e  courts  of 
equity^  which  to  other  purposes  have  considered  such 
surplus  as  real^  or  the  positive  restrictions  of  the 
legislature^  would  be  violated. 

Ifj  therefore,  an  estate  were  directed  to  be  sold, 
and  all  the  debts  and  legacies  generally  to  be  paid 
out  of  the  produce^  it  is  cle^  that  this  would 
amount  only  to  that  sort  of  general  charge  whjch  has 
beea  so  much  above  considered ;  and,  though  pecu- 
niary legacies  generally  given  by  an  unattested  codi- 

>'  8  Vc«.  j™.  481. 


Sect.  6.  Wills  charging  Lands.  75 

cil,  would^  according  to  the  above  principles^  attach 
as  charges  secondarily  upon  the  land^  yet  the  surplus 
could  not  €0  nomine  be  disposed  of  by  such  unsolemn 
instrument. 

But  if  a  testator^  by  a  will  duly  executed  to  pass  where  a 
bmds^  directs  the  whole  of  his  real  and  personal  es-  shews'both 
tate  to  be  sold^  and  out  of  the  produce  thereof  certain  ^V^m*- 
kgacies  to  be  paid^  and  then  by  an  unattested  codicil  be^equiui^T 
in  terms  revokes  his  will,  which  revocation,  from  the  i"mpi^.®"" 
want  of  solemnity,  can  only  operate  upon  the  pre-  fu®"j/*  ^^ 


out 


vious  dispositions  of  the  personal  estate,  a  very  nice  Sfg^^^ 
and  curious  question  may  arise,  whether  the  legacies  ^^^g^^jj^^® 
are  to  be  considered  as  gone  by  the  partial  failure  of  ^^\  ^  ^^^^ 
the  fund,  or  as  remaining  charged  on  the  real  estate.  ^^^^^  »» 
In  the  above  cited  case  of  Sheddon  v,  Goodrich,  this  fo°«ity>^ 

but  insnffi- 

wasone  of  the  points,  and  one  on  vfhich  the  present  cientasto 

rt  •    !•  1      1  /¥%  the  real  for 

Chancellor  expressed  a  painful  degree  of  difficulty  want  of 
and  doubt.     The  distinction  stated  by  his  Lordship  tested  ac 
appears  to  be  in  substance  as  follows :  the  statute, 

will  leave 
the  Umd- 

Where  a  testator,  in  general  terms,  subjects  his  ?*»*>  »«^ 
real  estate  to  his  general  legacies,  or  charges  his  le-  charge. 
gacies  generally  upon  his  real  and  personal  property, 
inasmueh   as  thct  primary  and    direct  source   from 
which  the  legacies  are  to  come,  will  be  the  personal 
estate  (S)  the  land  being  regarded  in  equity  as  only 


(2)  The  general  rule  is  clear,  that  the  personal  estate  is  liable  in 
the  first  instanee  to  the  payment  of  debts.  But  this  general  rule 
sqiposes,  that  the  engagement  upon  which  the  debt  arose,  was  pri- 
nully  a  personal  contract ;  in  which  case,  the  personal  estate,  as 
Iwrii^  recetred  the  blmefit,  becomes  the  proper  fund  out  of  which 
tlM  payment  should  be  drawn ;  so  that  if  money  be  borrowed,  or  a 
^flbt  be  any  way  incurred,  and  a  mortgage  made  without  bond  or 
cofeaant  accompanying  it,  yet  the  mortgage  makes  it  no  more  than 


76  Making  and  publishing  Wills.      Chap.  I. 

secondarily  and  eventually  charged  as  a  collateral 
security  to  the  personal  estate^  if  the  principal  fund 


a  specialty  debt  in  equity,  and  the  land  comes  only  in  aid  of  the 
personal  obligation  upon  the  simple  contract. 

The  rule  also  supposes,  that  it  was  originally  the  personal  con- 
tract of  the  testator  himself,  for  if  an  equity  of  redemption  has  de« 
scended,  and  then  the  mortgage  is  transferred,  and  the  heir  coto- 
nantstopay  the  money,  and  dies  ;  still  as  the  mortgage  was  not  ori- 
ginally his,  the  land,  upon  the  second  descent,  must  bear  its  own 
burthen,  and  notwithstanding  such  personal  contract  of  the  imme- 
diate heir^  his  personal  assets  will,  vpon  his  decease,  be  only  second^ 
ariiy  liable. 

The  same  doctrine  holds  if  the  equity  of  redemption  comes  by 
purchase  instead  of  descent.  As  it  was  not  originally  the  debt  of 
the  purchaser,  his  heir  will  not  be  entitled  to  be  exonerated  out  of 
his  personal  assets ;  and  the  order  of  charge  will  not  be  xaried,  if 
the  purchaser  should  covenant  with  the  mortgagee,  for  still  it  was 
not  primarily  his  own  debt,  and  his  personal  contract  is  considered 
as  being  only  auxiliary ;  nor  if  he  covenants  with  his  vendor  to 
save  him  harmless  from  the  mortgage,  for  still  the  purchaser  of  the 
equity  of  redemption  is  considered  as  having  boaght  the  estate,  sub- 
ject to  the  charge  and  with  the  burthen  upon  it,  to  which  his  cove- 
nant has  relation  as  to  its  principal,  and  indeed  he  takes  upon  him- 
self no  more  by  such  covenant  than  would  have  been  without  it 
laid  upon  him  by  a  court  of  equity. 

By  the  majority  of  the  cases,  it  would  appear,  that  when  the 
debt  was  originally  the  debt  of  the  testator  his  personal  assets  will 
not  be  exempted,  except  by  declaration  plain,  or  necessary  implica- 
tion, contained  in,  or  i^*ising  from  the  will ;  and  that  mere  parol 
or  extrinsic  evidence  cannot  be  admitted  in  opposition  to  the  above 
rule.  It  is  agreed  that  a  testator  may,  if  he  please,  bequeath  his 
personal  estate,  as  against  his  heir  or  devisee,  clear  of  debts,  but  it 
is  left  by  the  cases  somewhat  uncertain  what  mode  of  expression 
will  suffice  for  this  purpose.  However,  it  is  settled,  that  merely 
charging  the  real  estate,  or  even  creating  a  term  for  payment  of 
debts,  is  not  an  exemption  of  the  personal.  The  personal  estate 
may  be  said  to  be  first  subject.  2.  The  estates  devised  for  the  pay- 
ment  of  debts* '   3.  The  estates  descended,  and  this  though  th« 


Sect.  6.  Wills  charging  Lands.  9  77 

is  afterwards  withdrawn^  the  rule  of  accessorium  se- 
qiUtur  principale  seems  to  apply ;  and  as  the  land 
was  charged  only  to  help  the  deficiency  of  the  per- 
sonal, this  latter  fund  being  wiihdrawny  and  not  fail- 
ing through  insttfficiencjf ,  the  testator  must  be  pre- 
sumed in  law  to  have  altered  his  will  ad  to  the  lega- 
cies. But  where  a  testator  shews  an  intention  to 
bring  the  real  and  personal  estates  into  one  fund,  by 
directing  a  sale  of  both,  and  the  legacies  to  be  paid 
out  of  the  produce,  he  seems  to  have  both  funds 
tqaally  in  contemplation,  and  not  as  in  the  other  case^ 
(according  to  the  construction  the  law  puts  upon  the 
intention,)  to  mean  primarily  and  originally  a  mere 
personal  gift,  to  be  assisted  out  of  the  real  property 
if  the  personal  fails.  The  distinction  runs  into  great 
subtilty  ;  but  is  there  any  distinction^  less  subtle  that 
will  reconcile  the  authorities  P 


It  seems  that  the  effect  of  the  statute  of  frauds  is  The  conct 

.  .  cannot  me 

to  prevent  the  court  from  seeing  the  mtention  of  the  the  inten- 

°  tion  of  the 

testator  to  dispose  of  the  real  estate  (3)^  if  he  has  not  testator 

with  re- 
spect to  hU 
^~~~~~~"~~"~"^~~"""~"~~~~""~"""""~~~'~""~^^"~~^^~~~^~~*"   real  pro- 
perty, un- 
less he  ex- 
estates  are  subject  to  a  general  charge  for  the  payment  of  debts,  presses  it 

4.  Real  estates  specifically  devised,  subject  to  and  generally  charged  eKecJted 

with  the  payment  of  debts.     The  Reader  will  find  all  the  authori-  according 

to  the 
ties  on  this  subject  in  Mr.  Coze's  note  to  Evelyn  v.  Evelyn,  2  P.  gtatute. 

Wms.  659,  and  the  note  of  Mr.  Sanders  to  Galton  v.  Hancock^ 
t  Atk.  438,  to  which  may  be  added  the  cases  of  Hamilton  o. 
Worley,  2  Vez.  Jun.  62.  Woods  c.  Huntingford,  3  Vez.  Jun.  120. 
Bulier  r.  Buller,  5  Vez.  Jun.  517.  Waring  v.  Ward,  5  Vez.  Jun, 
670.  7  Vez.  Jun.  332. 

(3)  Thus  in  Buckeridge  o.  Ingram,  2  Vez.  Jun.  652.  the  Mas- 
ter of  the  Rolls  (the  late  Lord  Alvanley)  observed,  "thatrhecoti/d 
not  read  ike  wiU  without  the  word  ^real,'  in  it;  but  he  could  say^ 
for  the  statute  enabled  him,  and  he  was  bound  to  say,  that  if  a  man,  ' 

fey  a  will  onatteated^  gives  both  real  and  perional  estate,  he  never    . 


78  Making  and  publishing  Wills.     Chap.  I. 

done  it  with  the  solemnities  enjoined  by  the  statute ; 
for  in  Sheddon  v.  Goodrich^  the  codicil  declared  an 
intention  to  make  a  new  disposition  of  the  real  as  well 
as  the  personal ;  but  as  it  could  only  hare  the  effect^ 
for  want  of  execution^  of  revoking  the  charge  of  the 
personal^  the  land  was  construed^  notwithstanding  the 
contrary  intention  expressed^  to  remain  onerated^ 
upon  the  principle  df  the  distinction  above  stated,  be* 
tween  the  case  where  legacies  are  charged  upon  a 
mixed  fund^  and  where  they  are  wholly  issuable  out 
of  the  personal  in  the  first  place,  the  real  estate  being 
meant  only  to  come  in  aid  as  a  supplemental  and 
secondary  resource.  And  this  a  testator  will  be  con- 
strued to  mean,  unless  he  plainly  expresses  or  indi- 
cates a  contrary  intention  '. 

In  the  case  of  Buckeridge  v.  Ingram  ^  where 
a  testator,  by  a  will  duly  executed,  gave  an  an- 
nuity to  his  daughter,  charged  on  all  his  estates, 
both  real  and  personal,  and  by  codicil  not  attested, 
gave  his  real  and  personal  estate  to  his  mother  for 
life,  the  personal  estate  only  was  held  by  this  new 
disposition  to  be  dischi^rged  from  the  annuity ;  or,  in 
other  words,  the  annuity  was  revoked  as  to  the  per- 
sonal estate,  but  remained  a  charge  upon  the  real ; 
and  the  present  Chancellor  seems  to  have  approved 
of  that  judgment*;  who  says  that  '^Lord  Alvanley, 
as  he  understood  upon  conversing  with  him,  proceed- 

'  Vide  Ancaster  v.  Mayer,  1  Bro.  C.  R.  454. 
^  2  Vez.  Jun.  653.      *  8  Vez.  Jun.  500. 


meant  to  give  the  real  at  off."  In  Sheddon  9.  Goodrich,  Lord 
Eldon  noticed  the  accaracy  with  which  Lord  Alvanley  nqpressed 
himself  a8  to  that  pmnt* 


Sect.  6.  Wills  charging  Lands*  79 

ed  upon  this^  that  it  was  not  the  case  of  a  legacy 
given^  as  in  Brudenell  v.  Boughton^  and  that  legacy 
altered^  modified^  or  extinguished  by  a  subsequent 
testamentary  paper ;  but  a  charge  created  upon  two 
funds;  and  the  testator^  by  a  subsequent  paper^ 
withdrew^  not  the  gift  of  the  things  but  one  of  the 
funds^  which  by  the  former  paper  was  made  liable  to 
the  payment  of  that  charge^  still  leaving  a  subsisting 
demand ;  for^  being  given  out  of  the  real  as  well 
as  the  personal  estate^  the  gift  out  of  the  real  re- 
mained  though  that  out  of  the  personal  was  gone ; 
not  because  the  thing  given  was  destroyed^  but  the 
fund  out  of  which  it  was  given."  If  the  presump- 
tion of  adding  any  thing  to  his  Lordship's  remarks 
on  the  point  in  Buckeridge  v.  Ingram^  may  be  ex- 
cused, it  might  be  suggested^  that  the  power  of  dis- 
tress accompanying  the  annuity  in  that  case^  seem- 
ed to  mark  the  real  property  as  an  original  fund 
in  the  testator's  contemplation  for  producing  the 
annuity. 

In  the  early  case  of  Hyde  v.  Hyde  \  which  ap-  DevUe  of 
pears  to  have  been  the  first  case  upon  this  subject^  of  land 
Lord  Chancellor  C!owper  observed,  that  these  lega-  "ni,  at-  ^ 
cies  charged  upon  land  by  an  unattested  codicil,  were  three  wit. 
not  devised  out  of  the  land  like  a  rent,  but  were  only  "*"*'* 
secured  by  land,  which  before  was  well  devised.  And 
the  same  Chancellor  clearly  held,  that  a  rent  out  of 
freehold  would  not  pass  but  by  a  will  attested  by 
three  witnesses.     Mr.  Justice  Buller'  put  the  case 
as  to  rents  strongly  thus,  ''  It  is  clear  upon  the  sta- 
tute, that  a  rent  cannot  pass  without  three  witnesses ; ' 
for  the  statute  says,  ^  lands  and  tenements/  and  a  rent 

^  I  £q.  Abr.  409.  '  S  Vez.  Jun.  332. 


80  Making  and  publishing  WU1$.     Chip.  L 

is  a  tenement  r  and  if  a  tenement  could  pass  without 
witnesses^  it  would  be  in  direct  opposition  to  the  act. "' 
Whatever  comes  properly  within  the  description  of  a 
tenement,  or,  to  use  the  words  of  the  Master  of  the 
Rolls  in  Buckeridge  v.  Ingram",  wherever  a  perpe- 
tual inheritance  is  granted,  which  arises  out  of  land^ 
Same  doc-  or  is  in  anv  deffree  connected  with,  or  "  exerci$eable 

trine  as  to  JO  ^         ^ 

tolls,  navi-  within  it,  it  is  that  sort  of  property  which  the  law  de- 

•hares,  nominates  real,  and  cannot  pass  without  three  wit- 
commons, 

profits  of  a  nesses."     It  seems  not  to  be  doubted,  therefore,  but 

stallage, 

petty  cus  that  tolls'",  where  they  are  not  for  terms  of  years  only, 
ket,  fair,  navigation  shares^  commons,  the  profit  of  a  stallage, 
piscary,  p^jty  customs',  market,  fair,  or  piscary,  which  are 
*  the  subjects  of  dower',  are  within  the  clauses  respect- 

ing the  execution  ,and  revocation  of  wills.  But  in 
Stafford %>.  Buckley',  Lord  Hardwicke  held  an  annuity 
in  fee,  granted  out  of  the  4|  per  cent,  duties,  upon 
goods  exported  from  the  West  Indies,  to  be  a  per- 
sonal hereditament ;  and  in  Lady  Holdemess  v.^  the 
Marquis  of  Carmarthen',  it  was  held  by  Lord  Thur- 
low,  that  an  annuity  charged  upon  the  post-office,  till 
a  sum  to  be  laid  out  in  land  should  be  paid,  was  a 
personal  annuity ;  and  the  inference  is,  that  such  pro- 
perty may  be  passed  by  a  will  not  attested  by  three 
witnesses. 

"  2  Vez.  Jun.  663-4.  "  2  Blackst.  Com.  20. 

*  Diybutter  v.  Bactholomew^  2  P.  Wms.  127.  Buckeridgd  o.  In* 
gram,  2  Ves.  Jun.  652. 

'  Mayor  of  Yarmouth  r.  Eaton,  3  Burr.  1402.  Niegus  o.  Cool*' 
ter,  Ambl.  367. 

«  Co.  litt.  19,  20.        '  2  Vdz.  170.        •  1  Ro.  C.  R.  377. 


Sect.  7.  Attendant  Term^  81 


Section  VII. 
Attendant  Ttrms, 

TERMS  of  years  will  pass  (1)  by  a  will  unattested ;  Terms  tt. 
but  terms  attendant  on  the  inheritance^  are^  as  to  upon  the 

inherit- 

the  equitable  interest  in  them^  wftnm  the  statute^  ance  are 

1         •      .      1         *  .  4»  .  •  within  th« 

though  the  legal  e^tote  is  exempt  from  its  operation,  statute. 
The  case  of  Whitechurch  v.  Whitechurch  •  will  explain 
this  point.  Edwa^  Whitechurch  took  a  mortgage 
of  Batcomb  Lodge  from  one  Bisse^  for  600  years, 
to  commence  from  the  makings  for  securing  the  sum 
of  SOOI.  and  interest^  and  afterwards  took  another 
security  of  the  same  lands  from  Bisse^  the  mortgagor, 
for  1000  years,  in  the  name  of  another  person,  but 
in  trust  for  himself,  to  commence  also  from  the  mak« 
ing.  After  this  Edward  Whitechurch  purchased 
the  inheritance  of  the  premises  in  bis  own  name,  and 
having  no  wife  or  issue  male,  made  his  will  entirely 
in  his  own  hand-writing,  whereby  he  devised  the 
premises  to  his  nephew,  being  the  son  of  his  younger 
brother  Joseph  Whitechurch,  for  his  life,  remainder 

•  2  P.  Wms.  $36. 


(1)  But  tkty  cannot  be  created  but  by  a  will  attested,  because 
the  creation  of  a  lorm  affects  the  feo/  estate.  The  statute  of  frauds 
takes  notice  of  all  lands  devisable  by  the  statute  of  wills  or  by  the 
custom  of  Kent,  and  which  shews  that  only  freeholds  of  inheritance 
ve  within  it,  fcr  terms  of  years  are  not  within  the  statute  of  wills, 
nor  deriasble  by  cattom.  AttotneyGener^l  v*  Graves,  AmbL 
US. 


8S  Making  and  publishing  WilU.     Chip.  I. 

to  his  son  Ed^yard  Whitechurch,  and  to  the  heirs 
male  of  his  body  for  ever^  and  made  his  brother, 
Joseph  Whitechurch^  his  ei(ecntor  and  residuaiy 
legatee. 

It  happened  tliat  this  will^  (though  intended  to  be 
perfected  as  such)  by  reason  of  the  testator's  sudden 
death,  had  no  date^  nor  any  name  subscribed  thereto, 
nor  was  the  same  attested,  but  the  executor  had 
proved  it  in  the  spiritual  court,  and  assented  to  the 
deriseto  the  nephew;  whereupon  the  elder  brother's 
daughter,  who  was  heir  to  the  testator,  brought  her 
bill,  in  order  to  compel  the  executor  and  the  devisee 

to  assign  over  the  term  to  her. 

« 

It  was  olgected  for  th^  defendants^  that  the  execu^ 
tor  had  assented  to  the  devise,,  and  that  the  will^ 
though  not  attested  by  three  witaessesj  was,  bow* 
ever,  good  at  law  to  pass  this  term  of  500  years^ 
which  was  a  subsisting  term,  and  not  mei^ged  in  the 
inheritan<?^j  by  reason  of  the  intermediate  term^ 
and  which  intermediate  term  operated  as  a  grant  of 
the  reversion,  ^nd  not  as  a  grant  ^f  a  future  interest, 
(for  it  was  admitted^  that  a  future  interest  would  not 
prevent  a  merger) ;  hut  this  groat  jof  lOQO  3Fears^ 
being  to  commence  from  the  making,  did  pass  the 
reversion  for  1000  y^ars  s  which  was  acceded  to  bv 
the  court.  ^  - 

«  4 

M 

Then  if  this  will  would  pass  the  term  at  law,  and 
was  agreeable  to  the  intention  of  the  party,  it  was 
said  to  be  very  hard  that  equity  should  interpose  to 
disappoint  the  will^  especially  when  it  was  in  favour 
of  so  near  a  relation  as  a  nephew  of  the  testator^  and 
one  of  his  own  name^  and  all  this  for  the  sake  of  one 


Sect.  7.  Attendant  Terms.  83 

not  more  nearly  related;  and  who,  on  her  mar- 
riage, would  probably  change  her  name.  It  was  fur- 
thermore added,  that  in  all  cases  between  volunteers, 
(as  the  heir  and  devisee  were  here)  he  that  had  tha 
law  on  his  side  used  to  prevail. 

But  it  was  decreed  by  the  Master  of  the  Rolls,  that 
as  this  was  a  term  which  would  have  attended  the  in- 
heritance,  and  in  .equity  have  gone  to  the  heir  and 
not  to  the  executor,  in  which  respect  it  was  to  be  con- 
sidered as  part  of  the  inheritance  ;  so  the  will  which 
was  not  attested  by  three  witnesses,  as  the  law  re- 
quired it  to  be  when  land  was  to  pass,  should  not  car- 
ry this  term ;    that  though  it  was  true,  such  a    will 
as  in  the  present  case  would  be  sufficient  to  pass  a 
term  in  gross,  yet  it  should  not  pass  a  trust  of  a  term 
attendant  on  an  inheritance.     That  a  will  not  attest- 
ed as  the  statute  of  frauds  requires,   should  not  past 
any  es^te  of  which  the  heir,  as  heir,  would  otherwise 
have  had  the  benefit.     That  if  the  devisee  of  the  land 
had  brought  a  bill  against  the  executor  and  heir,  to 
have  compelled  the  executor  to  consent  to  this  devise, 
a  court  of  equity  would  not  have  decreed  it  for  the 
devisee ;  and  if  so,  the  voluntary  act  of  the  execu- 
tor's consenting  would  not  alter  the  case,  for  at  that 
rate  it  would  be  in  the  power  of  the  executor  to  make 
it  a  good  or  a  void  devise,  just  as  he  should  think  pro- 
per.    Besides,  the  court  observed,  that  it  was  the  in- 
tention of  the  testator  in  the  present  case,  not  to  pass 
the  term  only,  but  also   to  convey  the   inheritance 
which  was  expressly  disposed  of  by  the  will,  to  tiie 
nephew  for  life,  remainder  to  his  first  and  other  sons 
in  tail.     Though  as  to  this,  it  was  said  to  be  extreme- 
ly hard,  that  because  quite  so  much  as  was  intended 
could  not  pass,  therefore,  the  devisee  should  be  de- 

a2 


84  Making  and  puhlisking  Wills.      CbiCp.  I. 

ptlved  of  (hat  which  itiij^ht  lawfully  pass^  and  which 
was  a  less  estate  than  was'  intended  him ;  or^  because 
all  could  not  pass,  therefore  nothing  should.  How- 
ever, for  the  above  reasons,  the  court  decreed  the^er 
visee  and  executor  to  join  in  aissigning  the  term  to  the 
plaintiff,  the  testator's  heir  at  law,  but  no  costs  on 
either  side ;  this  decree  was  afterwards  affirmed  on 
an  appeal  by  the  Lords  Commissioners  Gilbert  an4 
Raymond. 

When  this  cause  was  reconsidered  on  the  appeal 
before  the  Lords  Commissioners  Gilbert  and  Ray- 
mond \  Gilbert  Baron  was  of  opinion,  that  this  waa 
a  term  attending  the  inheritance,  and  to  protect  the 
same  from  intermediate  incumbrances,  and  that  an 
unmerged  term  in  the  same  person  is  in  him  in  na« 
ture  of  a  trustee  to  attend  the  inheritance,  and  that  it 
would  be  very  dangerous  to  all  the  inheritances  in 
England,  if  unmerged  terms  should  be  taken  to  be 
termn  in  gross  in  the  owners  of  the  inheritances^ 
and  pass  as  such. 

Now,  in  the  principal  case,  if  this  should  be  con- 
strued a  term  in  gross,  then  it  was  such  a  chattel  in- 
terest as  might  paps  by  the  will,  though  all  the  solem- 
nities required  by  the  statute  were  not  observed; 
but  if  it  was  a  term  annexed  unto,  and  attending  the 
inheritance,  it  could  not  pass  by  this  will  in  any  other 
manner  than  the  inheritance  would  pass.  That  it 
had  been  allowed  at  the  bar,  that  the  term  for  two 
thousand  years  was  annexed  to  the  inheritance,  but  it 
was  said,  that  the  term  for  five  hundred  years  was 
not ;  but  no  reason  was  given  why  there  should  be 

*  9  Mod*  137. 


Sficr.  7.  Attendant  Terms.  85 

tach  a  difference  between  these  two  terms^  that  one 
ihoald,  and  the  other  should  not  attend  the  inherit-* 
ance ;  and  certainly  it  could  never  be  said  with  any 
colour  of  reason^  that^  where  a  mortgagee  of  a  term 
of  years  purchased  the  inheritance,  that  such  term^ 
when  in  himself  and  unmerged,  should  go  and  de- 
scend in  a  course  different  from  the  inheritance  ;  for 
it  was  the  constant  and  uniform  construction  in  that 
court,  that  such  a  term  shall  be  annexed  to,  and 
protect  the  inheritance,  and  attend  the  same  ;  and  it 
would  be  a  dangerous  construction  in  equity  to  make 
the  inheritance  and  the  term  separate  and  distinct  es« 
tates  in  one  person  *. 

But  Lord  Commissioner  Raymond  differed  from 
Baron  Gilbert  in  the  view  which  he  took  of  this  doc* 
trine.  He  was  of  opinion,  that  where  a  term  comes 
to  an  executor,  by  implication,  as  a  chattel  interest, 
or  to  a  devisee  by  a  general  devise  of  all  his  chattels ; 
or  where  it  vests  in  an  administrator,  generally,  for 
want  of  a  will ;  in  such  cases,  the  heir  at  law  would 
be  competent  to  apply  to  this  court  to  have  the 
term  assigned  to  another,  to  attend  and  protect  the 
inheritance;  but  that,  since  it  w^as  agreed  on  all 
hands  that  the  term  passed  at  law,  it  was  a  question, 
whether  that  court  could  take  it  from  him  to  whom  it 
was  expressly  devised,  in  favour  of  the  heir  at  law, 
who  was  a  volunteer  as  well  as  the  devisee  ? 

That  it  was  true,  where  a  term  was  expressly  li- 
fnited  to  attend  the  inheritance^  there,  though  the 
testator  likewise  expressly  devised  it  to  another,  it 
would  not  pass ;  but  where  it  attended  the  inherit- 

I  Et  Tide  VilUers  v.  Villicrs,  2  Atk.  71. 


86  Making  and  puhlisking  Wills.    GhaJp.  I. 

atice  only  by  construction  or  operation  of  law,  or  in 
an  equitable  notion,  as  a  term  brought  in  and  assign- 
ed by  creditors,  or  terms  raised  for  children's  portions, 
or  for  other  particular  purposes ;  there,  if  the  testator 
expressly  devised  such  terms,  they  would  pass.  For 
where  a  man  had  a  term  for  years,  which  only  by  in- 
tendment of  law  attended  the  inheritance,  certainly 
he  had  a  power  to  sever  such  a  term  from  the  inherit- 
ance ;  and  if  he  should  assign  it  to  one  man,  and 
mortgage  the  inheritance  to  another,  in  such  case  the 
term  should  not  attend  the  inheritance,  but  it  became 
a  term  in  gross ;  and  why  should  not  a  man  have  the 
like  power  to  do  the  same  thing  by  will,  if  he  thought 
fit.  But  as  in  that  will  there  was  no  apparent  inten- 
tion, that  the  testator  designed  to  pass  this  term  as  a 
separate  interest  from  the  inheritance,  though  there 
were  sufficient  words  to  pass  it  in  general ;  it  ^y^s  to 
be  considered,  whether  such  general .  words  should, 
afterthe  death  of  the  testator,  sever  that  term  from 
the  inheritance^  which  attended  and  protected  it  in 
notion  of  equity,  before  such  devise  tvas  made. 

Com»eBti       Th«  distinctions  taken  by  Lord  Commissioner  Ray- 

tHneUid*  moud  may  be  more  readily    understood,   by  being 

L^nJcom.  Stated  as  folloti's:  a  term  of  years  may  have  become 

SLymJnd    attendant  upon  th«  inheritance  after  all  the  express 

chilTch^    purposes  of  its  crcatiofi  are  stttisfied,  by  consequence 

dkir^      and  operation  of  law  ;  or,  aftef  such  satisfactiQii,  it 

may  have  expressly  received  this  ulterior  destination 

by  actual  assignment  for  this  piirpone.     If  a  term  be 

in  the  predicament  first  above  supposed^  and  a,person> 

having  in  himself  such  term  unmerged,  by  reason  of 

an  intervening  reversionary  term  outstanding,  or  by 

reason  of  the  legal  estate  in  the  inheritance  b^ing  in 

another  for  his  benefit,  expressly  devises  the  term  bj 


Sect.  7.  Attendant  Ttrms*  87 

a  will  capable  only  of  passing  chattel  interests^  the 
term  will  be  severed  from  its  accidental  connection 
with  the  freehold^  and  will  go  to  the  derisee  as  a  be- 
neficial interest^  or,  in  other  words,  will  pass  in  equity 
ai  well  as  at  law.  But  if  it  be  not  so  expressly  de- 
vised, the  heir  at  law  will  be  entitled  beneficially  to 
the  term  for  the  protection  of  tl)e  inheritance ;  or, 
in  other  words,  the  equity  in  the  term  will  descend 
as  apart  of  the  inheritance  for  want  of  an  execmlion 
of  the  will  sufficient  to  pass  freehold  estates. 

But  supposinj^  such  satisfied  term  to  have  once  re* 
ccivcd  an  express  destination  to  attend  upon  the  in- 
heritance, then  it  seemed  to  the  Lord  Commissioner 
to  be  immaterial  whether  it  were  expressly  and  by 
name  devised  by  the  testator,,  or  included  under  a  ge- 
neral devise  of  his  chattels,  or  suffered  to  devolve  to 
the  executor  or  administrator;  it  being  that  judge's 
opinion,  that  where  such  express  limitation  had  been 
made,  it  would  not  pass  by  a  will  unattested,  though 
the  testator  expressly  devised  it  to  another. 

The  whole  of  this  doctrine  of  the  Lord  Commis^ 
sioner,  who  delivered  his  opinion  to  the  effect  last 
above-mentioned,  turned  upon  a  distinction  between 
a  term  assigned  upon  an  express  declaration  oftnist, 
to  attend  the  inheritance,  and  a  term  constructively  so 
attendant  by  implication  and  operation  of  equity. 
But  the  case  of  Willoughby  v.  Willoughby*,  has 
clearly  negatived  any  such  distinction  between  estates 
expressly  made  attendant  upon  the  inheritance,  and 
those  so  considered  by  construction  of  equity.  And  in 
(be  same  case  it  was  also  laid  down  by  Lord  Hardwicke^ 

*  I T.  R.  70S. 


88  Making  and  Pubtishmg  WUh.    Chap.  I 

that  the  term^  in  whatever  manner  it  may  have  be- 
come attendant^  may  be  difannexed  and  turned  into 
a  term  in  gross  at  any  time^  by  the  owner  of  the  in- 
heritance^ if  he  particularizes  his  intention  so  to  disr 
annex  it 


Section  VIII. 
'Hiings  annexed  to  the  Freehold. 

As  to  Willi  A  WILL  must  operate  upon  the  testator's  proper* 
thtn^'tm-  ty  according  to  the  state  it  is  found  in  at  his  death. 
growing  ^"^  Uulcss  an  actual  severance  has  taken  place  in 
freehcJuT.  *^^  life-time  of  the  testator^  he  is  incapable  by  hb 
will^  unattested^  of  devising  the  appendages  of  the 
freehold,  in  separation  from  the  subject  to  which  they 
adhere.  And,  therefore,  according  to  Perkins,  title 
Devises,  from  whom  Swinburn  *has  copied  the  dpc* 
trine,  those  things,  which  after  the  death  descend  to 
the  heir  of  the  deceased,  and  not  to  his  executor,  can- 
not be  devised  by  testament,  except  in  cases  where  it 
is  lawful  to  devise  lands,  tenements,  or  hereditaments. 
So  the  law  stood  before  the  statute  of  frauds,  and  so 
I  apprehend  it  remains  in  relation  to  the  new  requi- 
sites to  a  devise  of  freeholds  introduced  by  that  sta- 
tute. And  this  rule  extends  to  things  which  belong 
to  the  realty  by  simple  annexation  to  the  freehold 
which  may  not  be  devised  away  by  a  will  unattested,  un* 
less  they  were  separated  before  the  death  of  the  testa^ 
tor ;  of  which  description  are  doors  and  windows,  and 
even  furnaces,  ovens,  tables  and  benches,  if  fixed  and 
mortised  in  the  earth ;  and  so,  in  general,  are  all  thos^ 

*  Part  S.  sect.  6. 


Sect.  8.         Things  annexed  to  tlie  Freehold.  99 

appendages  of  the  fr^ehold^  which  a  tenant  cannot  re- 
fflove  or  <lertfoy  without  being  guilty  of  waste*. 


^  - 


If  a  man  msed  in  fee  of    lands  bequeath^   by  Treet. 
will  sufficient   only   to    carry   personal   estate,  all 
his  trees  growing  upon  his  land  at  the  time  of  his 
death,  such  devise  is  void. '  But  if  he  devise  away  the  Cimfrow- 
corn  growing  upon  the  same  land  at  the  time  of  his 
death,  such  devise  will  be  good  by  a  will  unattested. 
The  trees  are  parcel  of  the  freehold  till  actually  sever- 
ed ;  and,  unless  devised  away  by  a  will  applicable  to 
freehold,  descend,  together  with  theljand^to  tjie  heir: 
but  the    corn    which    was    sown   by    the    testator 
shall  go  to  the    legatee  of  his  personal  estate,    as 
goods  and  cfaattels^    If   there    is  no  personal  be- 
quest which  will  apply  to  it,  then  an  express  de- 
vise of    the  lands  themselves,  ^though  no  mention  is 
made  of  the  corn,  will  give  it  to  the  devisee  ;  as  the 
law  holds,  in  such  case,  that  the  intention  of  the  tes- 
tator was  to  pass  the  land,  together  with  itS'  fruits^ 
But  if  there  is  neither  bequest  of  the  qorn,  nor  de- 
vise of  the  land,  it  will  go  to  the  executor  or  adminis- 
Irator,  and  not  to  the  heir  •. 

•  ■ 

Thus^it  has  been  always  held,  that  if  a  manbe  seis^ 
ed  of  land  in  right  of  his  wife,  and  sow  the  land, 
and  devise  the  corn  growing  thereon,  and  die  before 
the  corn  be  reaped,  the  legatee  shall  have  the  corn, 
and  not  the  wife.  The  reason  of  the  law  in  which 
part  cular  is,  that  the  corn  isfructus  industrialism  and 
be  who  sows  it  hsvs  a  kind  of  property  in  it  divided 

*4  Rep.  64.  and  see  Lawton  o.  Lawton,  3  Atk.  1% 
•  Fisher  ©.  Forbes,  2  Eq.  Ca.  Abr.  392. 
'Winch  51.  Cro.  El.  61,  461.  Roll.  Abr.  727.  and  sec  CoX  o. 
CodsalTB,  6  East.  604.  n.  *  Gilb.  Erid.  247. 


90  Making  and  publishing  Wills.       Chap.  I. 

from  the  land  gained  by  the  very  act  of  sowing  U^. 
But  if  one  joint-tenant  sows  the  land^  and  dies  before 
it  is  reaped^  the  corn  survives  with  the  land  ( I  )^  be- 
cause he  gained  no  exclusive  property  by  the  act  of 
sowing  it ;  for  he  had  no  exclusive  property  in  the 
land.  But  if  A.  seised  of  land,  sow  it  with  corn,  and 
then  convey  it  to  B.  for  life,  remainder  to  C.  for  life, 
and  then  B.  die  before  the  corn  is  reaped,  C.  shall 
have  it,  and  not  the  executors  of  B.  though  his  es- 
tate was  uncertaiin,  for  the  reason  of  industry  and 
charge  fails.  And  if  B.  and  C.  both  die,  then  the 
lessor  who  sowed  the  corn  shall  have  it  (2) . 

•rus  rad .      B^t  the  Jaw  is  otherwise  in  respect  to  trees,  and 

kerlMge.  * 

also  the  grass  and  herbage  not  separated  from  the 
ground  at  the  time  of  the  death  of  the  testator;  for 
this  is  not  ftuctus  vndustrialis ;  and,  therefore,  as  a 
tenant  for  life  cannot  by  a  will  properly  executed  to 
pass  freehold  estate  make  any  disposition  thereof  to 
operate  after  his  death,  so  neither  can  the  owner  of 
the  land  in  fee  simple  pass  it  in  separation  from  the 
land  by  a  will  executed  only  to  pass  chattel  and  per- 
sonal property.     And  it  will  be  the  same  if  the  na- 

'  Hob.  133. 


(1)  Cro.  El.  61.  Dyer,  3W;  a.  Butif  one  of  the  jo'mt-tenantt 
•ccupies  the  land  alone,  by  the  consent  of  the  other,  and  take*  the 
profits  alone  to  his  own  use,  it  seems  that  if  he  sows  the  land,  he 
may  deTise  the  standing  corn  away  from  the  surtiror,  ^frudus 
^nduiifialhi  aod  such  defisc  will  bo  good  and  effectual,  without 
witnesses ;  for  it  is  said,  that  such  assent  to  his  sole  occupation  of 
the  laud  amounts  to  a  lease  at  will,  and,  as  such,  gives  a  title  te 
emblements ;  but  such  assent  by  the  compinion  must  be  express 
andpositiTe.    Cro.  El.  314. 

(ft)  Cro.  El.  Gl.  For  the  doctrine  u  to  emblements^  see  Perk. 


Sect.  8.        Things  annexed  to  the  Freehold  91 

tural  product  is  increased  by  the  sowing  of  hay-seed, 
or  other  assistances  of  cultivation  '. 

With  respect  to  heir-looms  (S)  which  by  custom  Htie- 
nave  gone  with  a  house^  they  cannot  be  devised  se- 
parately by  the  owner  of  the  fee  simple,  even  by  a 
wiU  execiUed  to  pass  freehold  estates;  for  the  will 
does  not  take  effect  till  after  the  death  of  the  testator  ; 
and  by  his  death  the  heir-looms^  by  ancient  custom, 
are  vested  in  the  heir  ;  and  the  law  prefers  the  cus- 
tom to  the  devise  ^. 

Deer  in  a  real  ancient  park^  fish  in  a  pond, 
doves  in  a  dovehouse,  and  things  in  the  like  situa- 
tion, though  personal  chattels,  are  so  appropriated 
to  the  inheritance  that  they  accompany  the  land 
wherever  it  vests,  whether  by  descent  or  purchase' : 
and  so  the  charters,  court  rolls,  and  muniments  of  the 
estate,  pass  together  with  the  land^.  In  like  manner 
monuments,  coats  of  armour,  ensigns,  and  escut- 
cheons, go  to  the  heir  in  the  nature  of  heir-looms : 
bat  the  owner  may,  during  his  life,  sell  and  dispose  of 
these  things  if  he  please,  as  he  may  of  the  trees  on  the 
estate;  and  he  is  at  liberty,  as  being  complete 
owner,  to  do  any  injury  to  them  without  being  ac- 
countable. 

Pictures,  plate,  books,    and  furniture  cannot  be 

•Co.  Litt.  185.  b.        *  Roll  Abr.  7«7, 
'  Co.  Litt.  8.      ^  Bro.  tit.  chattels,  18* 


lect.  530.  Co.  Litt.  41. 45.  Hob.  ISi.  Roll.  Abr.  727.  Gilb.  E?ld. 
MO.  Com.  Dig.  tit.  Biens,  G.  1.  c.  2. 

<S)  Loom  is  a  word  of  Saxon  original,  ilgnifying  limb  or  mom* 
Itr.    Spolm.  Glolf.  277. 


9t  Making  and  Publishing  WUh.        Csax.  I. 

perpetuated  in  a  course  of  descent,  or  made  to  go 
with  the  family  mansion.  When  they  are  left,  as  is 
often  the  case,  to  be  enjoyed  by  those  who  shall  be 
in  possession  of  the  family  residence,  as  far  as  law 
or  equity  will  permit,  the  absolute  interest,  subject 
to  the  interest  for  life  which  may  be  created  in  them> 
will  vest  in  the  person  who  is  entitled  to  the  first 
estate  of  inheritance,  whether  in  tail  or  in  fee,  and 
upon  his  death  will  devolve  upon  his  personal  repre^ 
sentatives  \ 


Section  IX. 


J\Tortgages. 
Mortgage,      WE  have  seen,  a  little  above,  in  the  case  of  at- 

in  equit- 

able  eonsi.  tcndant  terms,  an  instance  wherein  chattel  interest* 

deration^ 

are  not      in  land,  though  devisable  at  law  bv  a  will  not  exe^ 

within  the  J    ^  ,  ,.  . 

ciansei  re-  cuted  and  attested  according  to  the  statute,  are  frosi 
wills  in  the  the  particular  view  taken  of  them  in  courts  of  equity^ 
fnods.  deemed  by  those  tribunals  to  be  as  much  the  objects 
of  the  requisitions  of  the  statute  as  estates  of  inheri- 
tance. The  converse  of  the  doctrine  holds  in  respect 
to  mortgages  ;  this  interest  being  regarded  in  courts 
of  equity  as  entirely  personal,  a  will  unattested  seems 
clearly  to  be  capable  of  passing  the  beneficial  right 
to  the  land ;  so  that  the  devisee,  under  such  a  will  of 
the  land  mortgaged,  would  be  permitted  by  the  court 
to  use  the  name  of  the  heir  to  compel  payment  of  the 
money,  or  make  the  pledged  estate  his  own  by  fore* 

■  1  Bro.  C.  C.  5274.  3  Bro.  C.  C.  lOl.^  and  ws  tk^  Note  sob- 
joined  to  the  Precedent  in  the  Appendix  -where  thto  proTisioa 
occurs. 


Sect.  9.  Mortgages.  W 

dosore.  In  equitable  contemplation  the  estate  in  the 
laad  remains  in  the  mortgagor^  while,  in  respect  to 
the  interest  of  the  mortgagee,  the  land  takes  the 
character  of  personalty  as  following  the  natnre  of  the 
debt,  to  which  it  is  a  collateral  security ;  in  so  mnch 
that  if  a  mortgagee,  after  making  his  will,  forecloses 
the  mortgage,  or  obtains  a  release  of  the  equity  of 
redemption,  the  mortgaged  lands  will  not  pass  inclu- 
sively, under  the  general  words,  lands,  tenements,  and 
hereditaments,  contained  in  the  will,  but  will  go  as 
an  acquisition,  or  purchase  subsequent  to  the  will, 
to  the  testator's  heir  at  law  \ 

In  the  consideration  of  equity,  therefore,  mort- 
gages do  not  seem,  as  to  the  beneficial  interest,  to 
be  within  the  words  ^  lands  and  tenements,'  in  the 
fifth  clause  of  the  statute;  nor  will  such  interesrt 
in  general  pass  by  a  devise  of  lands,  tenements, 
and   hereditaments   (1).      But  if  a  mortgagee  by 

*  Vide  Ca<^borne  v.  Scarfe,  1  Atk.  605.  Sir  Litton  Strode  v. 
Lady  Russell,  2  Vern.  621.  Wi»n  v.  Littleton,  1  Vern.  3.  2  Vent, 
351.  3  P.  Wms.  62. 


(1)  2  Vern.  621.  '  L.  being  seized  of  several  manors  and  lan^d, 
and  also  of  mortgages  in  fee,  which  were  forfeited,  and  of  a  greAt 
personal  estate,  haring  no  issQe,  made  his  will,  and  after  devising 
part  to  his  wife  for  .life,  and  other  legacies,  *^  gave  all  other  his 
lands,  tenements,  and  hereditaments,  out  of  settlement,  to  his  ne* 
phew."  And  one  of 'the  questions  in  the  case  was,  whether  these 
mortgagev  passed  by  the  will  ntider  the  general  words,  lands,  tene^ 
menis,  tind-^ktreditamMs'?  tit  was  held  by  the  Lord  Chancellor, 
the  Master  ef  th^  {{.oils,-  Lord  Chief  Justice  Trevor,  and  'Justice 
Tracy,  that  the  mortgages  in  fee,  though  forfeited  when  the  will 
we§  made,  did  not  pass bytfaes^general  words.  Bat  the  decree  ia 
that  emSBj  as  k  ii  stMed  in  the  Register's  book,  B.  1707,  fol.  510, 
takei  no  aotiee  ef  any  mortgages,  except  those  whereof  the  testator, 


9S  Making  and  pubUaktng  WiUs.      Cuat.  I. 


»        »  »  ♦  , 


Section  X. 


Election  in  Equity. 

e?te?Siu  '  IT  i*  to  be  observed^  that  a  will  of  real  property, 
ii  not  even  not  executed  and  attested  as  the  statute  directs,  ia 
niseacsM  Classed  amon&r  those  acts  which  the  law  holds  to  all 

ofelietiom  ^ 

agiOiista  intents  and  purposes  void  ;  so  that  neither  courts  of 
jta^abene-  eqaity  tioir  law  wiU  pay  regard  to  the  intention  of 

fit  in  Hut        «  - 

persoQAi  the  testator,  unless  he  has  given  it  effect  in  the  man- 
aTmjba  ner  dictated  by  the  legislature.  Upon  this  principle 
such  unexecuted  will  is  not  even  of  force  in  a  court  of 
equity  to  raise  a  case  of  election  against  a  person 
taking  a  benefit  in  the  personal  estate  ^  In  Hearle 
V.  OrMiilmiric\  D.  W.  devised  all  his  freehold,  copy- 
bdld  and  real  estate,  whatsoever,  mad  wberasoeverj 
and  all  his  leasehold  estate,  to  two'  trasteet,  their^ 
heirs^    executors,     administrators    and  assigns,    in 

.  '  7  yez,  jun.  372.  *  1  Yet.  1 98. 


unless  hy  ike  aafiner  Acrein  pres<rib«4  i  l»ut  seeing  that  it  would 
not  saffioientlj  answer  the  intent  of  the  legislature  if  confined  ta 
land,  it  adds  a  prolubHion  as  to  personal  estate,  that  it  should 
w>t  be  girto  to  be  laid  out  in  the  purchase  of  lands.  But  waa 
there  d6  Mrer  tray  whereby  the  interest  in  land  mig^t  come  to  a 
charltabia  asei  Money  dne  on  niMr^vge  was  a  charge  and  in- 
enntbtanoe  on  the  land,  the  payment  of  which  depended  on  tha 
pleasare  and  abitity  of  the  mortgagor ;  therefore,  parliament  had 
by  express  words  taken  in  that  by  a  third  clause ;  the  words  of 
i^ich^  if  they  did  not  extend  to  mortgages,  he  was  at  a  loss  to  know 
fbr  whaifrarpose  they  were  pat  in.  The  meaning  was,  that  you 
shall  net  give  to  a  charitable  use  that  which  is  or  mi^  te  a  oharg^ 
i^n  laad^  though  not  so  at  the  time  of  the  gift. 

3 


Sect.  10.  Election  in  Equity.  97 

trusty  to  apply  the  residue^  after  paying  their  own 
charges  to  the  separate  use  of  his  daughter  M.  W.^ 
a  married  woman^  during  her  life^  to  be  at  her  dis- 
posal ;  not  subject  to  the  debts  or  controul  of  her  hus- 
band ;  her  receipts  to  be  good^  and  to  be  permitted  by 
deed  or  writings  executed  in  the  presence  of  three  or 
more  witnesses^  notwithstanding  her  coverture^  to  give 
and  dispose  of  all  his  freehold^  copyhold^  and  lease* 
hdd  estate,  as  she  should  think  fit ;  and  he  gave  to  the 
same  trustees,  whom  he  made  joint  executors,  his 
personal  estate,  in  trust,  for  the  sole  and  separate 
use  of  M.  W.,  and  to  be  at  her  disposal,  and  not 
sulgeet  to  the  debts  or  controul  of  the  husband. 
M.  W.,  then  under  the  age  of  twenty-one,  but  above 
seventeen,  made  her  will,  and  thereby,  in  pursuance 
of  her  power  in  her  father's  will,  gave  8000/.  to  her 
daughter  Mary,  when  she  attained  the  age  of  twenty- 
one;  she  then  devised  the  residue  of  her  real  and 
personal  estate  to  the  plaintiffs,  the  two  Hearles^  their 
heirs,  executors,  and  administrators,  for  ever. 

The  bill  was  brought  by  the  plaintiffs  to  have  the 
appointment  made  by  M.  W.  of  the  real  estate  in 
their  favour  established ;  but  the  court  considering 
the  wilt  to  be  void  by  reason  of  the  nonage  of  the 
mother,  adjudged  it  a  bad  execution  of  the  power. 
Then  the  question  arose,  whether  the  heir  at  law  could 
take  the  legacy  of  8000/.  under  the  will,  which  was 
well  devised,  (the  testatrix  being  of  a  capacity  to 
dispose  of  personalty),  and  at  the  same  time  claim 
the  kinds  by  descent,  against  the  appointment,  or  was 
pat  to  an  election,  upon  the  rule  of  not  disputing  a 
will  in  any  part  under  which  you  claim.  And  the 
case  for  the  heir  was  thus  put  at  the  bar.  It  was  said, 
that  the  rule  was  true,  when  properly  understood. 


98  Making  and  publUbing  Wills.     Chaf.  I. 

that  wherever  a  person  claims  under  a  ivilt,  and  by 
the  same  will^  properly  eo^eciUed,  |and  or  any  thing 
else  is  deyised  to  another^  which  the  testator  had  not 
a  title  to,  the  person  claiming  under  the  will  shall  pot 
dispute  the  title ;  since  the  will  manifests  ih^  intent 
how  the  whole  should  go ;  but  that  this  rule  did  not 
go  to  mi^ke  good  what  was  in  effect  no  will :  that  the 
case  undcir  consideration  was  one  in  which  there  was 
no  will ;  it  was  not  the  case  of  a  will  impeached  for 
want  of  title  in  the  testator ;  it  was  like  a  devise  to  a 
charitable  use^  since  the  statute ;  it  was  not  want  of 
title^  but  want  of  capacity  to  make  any  will  at  all  of 
real  estate. 

To  this  distinction  the  Cliaqcellor  seemed  to  accede. 
His  Lordship  observed^  that  as  to  the  equity  of  the 
plaintiffs  from  the  claim  of  the  8p00/.^  it  was  truQ^  it,  was 
determined  in  Noys  v.  Mordaunt%  that  if,lanc}8  in  fee 
were  given  to  one  (ihild^  and  to  anpther  lands  entail- 
ed, it  is  meant  they  shoiuld  release  to  ei^ch  other,  and 
the  court  had  gone  farther  since — to  the  caseiof  a 
personal  legacy.  But  still  he  was  of  opinion,  that 
this  differed  from  all  those  cases^  and  th^t  the  heir  at 
law  was  not  obliged  to  make  her  electionv  for.  ifx  the 
case  before  him  the  will  was  void  ;  and  ti^  inhere 
the  obligation  arose  from  the  ins^fficien€t/  of  the^jepce- 
ctUion,  or  invalidity  of  the,  will,  there  was  no.i<»is|b 
where  the  legatee  vras  obliged  to  make  an  eleotian ; 
for  there  lyas  no  will  of  the  land. 

«      '  1.1,* 

And  his  Lordship  put  th^  case  of  a  devise  by  a 

testator  of   a  legacy  to  his  heir  at  law,    and   of 

/the  real  estate  to  another;   where,  if  the. will  be 

«  %  Vern.  5S1. 


Sect.  10.  Election  in  Eqtiify,  99 

not  executed  according  to  the  statute  of  frauds  for 
the  real  estate,  the  coiirt  WilP  not  oblige  the  heir  at 
law,  iipOti  acccptitig-  the  legacy,  to  {^ive  up  the  land. 
That  such  a  case  differed  from  Noys  v,  Mordauht,  in 
the  reason  of  the  thing ;  there  the  testator  devised 
Jome  lands  which  were,  and  others  whidi  were  not, 
his  own;  arid  the  court  feaid,  that  the' devisee  should 
suffer  the  lands  tb  pass,  as  if  they  wer6  the  devisor's 
own.  But  in  the  principal  case,  whether  the  lands 
were  the  testator's  own  or  not,  they  could  not  pass 
by  the  will. 

But  in  Boughton  v.  Boughton**,  a  distinction  was  But  if  in 
taken  as  to  this  point,  by  the  same  Chancellor  who  cciittd  win 
determined  Hearle  v.  Greenbank,  whrdi  Has  l3een^  re-  iegacy\o 
cognized  and  confirmed  hj  dubscqiient  authofitlos,  uplnZmfi- 
though  with  some  feiilarks  uport  its  refinement  ind  dfJ,louils! 
snbtJlty.    in  this  casd' df ']S6ughtan  r.  B*ongHt6n,it  ^^^^ 
wa^'held  that' A  legacy  to  art 'heir,  upon  the' expr^^s  li^J^^^'^ 
t6hdlt(6n  that  hd  did  not  dUptite  thfc  will,  wOlild  put 
the  hdt  to  An  'dectiort,  ditheV'td^ 'accept  ihb'1'^gacy, 
ar  Iheiands  devised  axvlay',  although  the  Av5l/vvas  *n6t 
executed' kccdrf'ding  to  the  statute'     Tilt  'i!*Afee'Nttig  as 
foBoWs :  'a  freeman  of  London'  de^vised  his  I'etil  estate 
tD'hfe  youngi^r  son,  Stephen  Boughton,  Arfd'all'his 
personal  cstatfe  aiAimg'  hischildi-en  j  among  the"  refet, 
1,200?.  upon  som^  contingencies  toGi'ace,  Ihedau^^h- 
terof  hiseldest'soh;  adding  thi^  dause,  **^  if  Miy  child 
or  children  of  mine,  or  any  in  theii*  right;  or  anjr  \i^ho 
may  receive  benefit  by  my  will,  shall  any  way  litigate, 
dispute,  or  controvert  the  whole,  or  any  part  thereof, 
or  the  codldls  thereto  belbnging,  or  not  give  such  dis- 
chaifges  as* my  will  requires,'  or  not  comjfly  with  the 

*  -2  Vez.  12. 
H  3 


100  Making  and  publishing  Wills.     Chap.  I. 

whole^  and  all  and  every  condition  and  conditions 
therein  contained^  both  as  to  real  and  personal  estate^ 
such  child  or  children^  so  far  as  it  relates  to  them  se- 
verally^ shall  forfeit  all  claim  and  pretence  whatever 
under  my  will^  and  shall  have  no  more  than  the  or- 
phanage  part  of  the  personal  estate  I  die  possessed 
of ;  revoking  what  I  gave  to  them^  I  give  it  to  my 
residuary  legatees  ;"  the  testator  underwrote  to  this 
instrument  an  attestation  in  the  common  form^  but  it 
was  not  subscribed  either  by  himself  or  by  any  wit- 
ness :  there  was  a  codicil^  without  date^  but  signed  by 
him^  therein  taking  notice  of  and  reciting^  that  in 
further  consideration  of  this  his  last  will^  he  made  a 
codicil  thereto^  and  gave  directions  therein. 

Grace^  by  the  death  of  her  father^  became  heir  at 
law  to  her  grandfather^  and  so  entitled  to  whatever 
he  left  to  descend^  or  which  ought  to  descend^  from 
the  invalidity  of  his  disposition.  She  being  an  infant 
of  tender  years^  this  bill  was  brought  by  Stephen^  the 
youngest  son  of  the  testator^  and  devisee  of  his  real 
estate^  in  order  that  she  might  make  her  election, 
whether  she  would  have  the  1^2002.^  or  the  land  which 
happened  to  descend  to  her ;  for  that  she  could  not 
claim  both ;  but^  if  she  chose  the  legacy^  she  must 
let  the  real  estate  go  according  to  the  intent.  The 
point  is  so  particular,  and  the  Chancellor's  judgment 
80  luminous  and  discriminating,  that  I  have  thought 
it  best  for  the  reader  to  lay  it  before  him  at  some 
length. 

His  Lordship  said,  he  was  satisfied  that  the  infant 
ought  not  to  take  the  benefit  of  the  personal  legacy, 
without  at  some  time  or  other  waiving  any  right  to  the 
descended  hnds ;  and  that  it  was  very  different  from 


Sect.  10.  [Electibn  in  Equity.  LOl 

» 

Hearle  v.  Greenbank.  The  testatoF  had  made  one 
instrument^  in  which  he  had  used  words^  expres- 
sions^ and  clauses^  relative  both  to  real  and  personal 
estate ;  and  in  it  was  contained  a  clause^  importing  in 
words,  though  not  by  force  of  the  instrument,  to  be 
a  devise  of  the  real  to  the  plaintiff,  giving  1,200/. 
to  his  grand-daughter,  and  taking  upon  him  to  dis- 
pose of  his  whole  personal  estate  among  his  children, 
who  would  not  be  bound  thereby,  as  he  was  a  free- 
man. He  then  added  the  express  clause  which  was 
the  sole  ground  of  distinction  between  this  and  other 
cases  ;  and  in  the  codicil,  took  notice  of  that  very  in- 
strument as  a  will.  The  codicil  was  signed,  and  put 
that  difficulty,  which  otherwise  might  have  arisen  from 
the  imperfection  of  the  instrument,  out  of  the  ques- 
tion. But  notwithstanding  this,  it  was  a  will  only  by 
force  of  the  instrument,  to  pass  personal  estate ;  for 
neither  the  will  or  codicil  was  so  executed  as  to  pass 
real  estate. 

The  plaintiff  insisted,  that  the  defendant,  having 
a  legacy  by  the  will,  which  was  undoubtedly  good^ 
should  have  no  l)enefit  thereof,  unless  she  suffered 
the  disposition  of  the  land  to  take  effect.  In  Noys  v. 
Mordaunt^  (which  was  the  first  case)  the  testator  was 
disposing  of  land.  The  subsequent  cases,  till  Streat- 
field  V.  Streatfield',  were  all  of  a  devise  of  real  estate. 
Had  the  rule  gone  no  furth^,  but  been  confined  to 
real  estate,  this  objection  had  never  risen,  because 
the  instrument  must  be  effectual,  as  well  to  one  real 
estate  as  another ;  so  that  if  they  had  both  been  real 
estates,  this  difficulty  could  never  have  arisen  so  as  to 
make  the  point  come  into  question.     Lord  Talbot 

•  2  Yern.  581.  '  Cas.  Temp.  Talb.  176. 


103  Making  md  publishing  Wills.      Ghap.  I. 

went  ^  fajp  ctj;  wlieh*  tRe  wiH  comprisW  both  real 
ati(I'))efs^r)€tl  estate,  'arid  the  land,  t6  which  one  child 
was  entitled  in  tail,  was  thereby  given  to  arttotlier, 
and  a  personal  Icg-acy  to  the  tenant  in  tail,  to  consider 
it  asanimplicd  intent;  that  whoever  took  by  thatwill^ 
should  comply  with  the  whole;  so  that  he  put.  tliQ 
party  to  an  election  ;  but  neither  in  'J^mkins  r.  Jen- 
kinsj,  ripr  m  Stre&tfteld  r;  Sttealfield^  was  there  a 
qiiestiort  of  the  defect  of  the  instrument. 

Theft  'came  Hearlc'  t;.  Grednbank/  whidh  viias  th^ 

• 

first  case,  in  which  the'  difficulty  attos^  wpon  the  rfc- 
feet  if*  the  'instrumetttl  ''In  Which  •to^e'Hiiopr'n^dfi 
^as,  that  'there  ivas  n^'  ^ouiid'foi^  tlWieourt  'tO'imttly 
a  coriditiv^n  ttt  kbide*  by  b.  'wil^  of  ^nrf;'  Wheil  •  Urtre 
was,  in  factj  no  >4'iB ;  and  that  \l  weald  be  dangerius 
to  broalv  in  iiipdnthfe^titute  of  frauds;  by  ittaklhg^  an 
estkte^O  ^asd'by^n  irtstr^mertl  ViW  wffitittrtt  Wpas^ 
real  e^i^t^ ;  mxd^hnV;  not'bythe'Wortb'bf  ttie  testa^ 
tory  Wut*ya'con*tk)!«^i*lfTpKed'by'«ort^rhct}on  of  the 
couarfa? » tiierdf<iA^/ it  dotflrf^dt  *^|,^  rfoifU^iis  \t  warrant- 
ed by^dny  phce(l^m;'rSbr  it  «WttA  6x\Vy  guessing*  At  the 
intent  oCtW  testaloi^j  whif  tttight^leftve  it  \>4th'thal 
very  ^view/  •  Rit  <he  iqtf*!st?dn  w^6»i -whether  tlie-'caie 
before  him  did  not  differi^fkAn  thtft  by'rease^M  o#  th* 
expregs' cJaiise  iti  the'  will.  'It  h'AU  been' *ei-y 'ctthditily: 
admittfed,^4liat  if  there  Was  no  deWSe'tif  U  vtfA  e^te, 
but  a  perwnat  le^<:y  tiias  giVi^n  i^'feitr  ifxpi'e«i  edti*^ 
dition^'ithaf'the  legatee  •shotfld-'ttot^Wgoy  i«;''^rf*«s 
within'  a  certain'  «iiric- *e*  fc{*Hte5%a  %''¥kl'*tfittftti 
whither  ioomiilg  from  ♦itlte^taSlfttQi'  dt  lW)iV^1ife  i^d*M 
not  enjoy  jtteiit  on  those  terttVf 'ttie^a^Hs  ridt^asSfti^ 
by  force  of  the  will^  but  by  the  operation -of  the  par- 
ticular clauee  strpulatinfg  the'condfcfen. "  Ttie  ifegfitee 
bad  it  in  his  power  either  to^p^t'tvkii  th^lkhd!,' or 


Sect.  10.  Election  in  Equity.  103 


not;  if  he  chose  not  to  part  with  the  land^  he  forfeited 
the  condition  ;  for  any  lawful  condition  might  be  an- 
nexed* 

The  case  might  be  put  a  httle  farther^  his  Lord- 
ship said^  (though  it  was  almost  the  same  as  the  pre- 
sent) as^  suppose  in  the  same  instrument  there  was  a 
devise  both  of  real  and  personal  estate^  the  will  exe- 
cuted only  to  pass  the  persona^  ^nd  not  the  real ;  but 
a  condition  annexed  that  the  personal  legatee  should 
permit  the  jsame  persons^  to  whom  the  land  was  given^ 
to  hold  to  them  and  their  heirs :  the  condition  annex- 
ed would,  take  place^  though  the  devise  was  void  as  to 
the  lands  according  to  the  statute  of  frauds  ;  for  the 
legatee  couIcU  not  talic  it  in  contradiction  to  the  tes- 
tator's words ;  and  the  devisie  ift  the  principal  case 
amounted  to  the  same^  as  if  the  testator  liad  annexed 
a  condition  to  permit  Stephen  to  enjoy  the  fend.  The 
court  must,  put  a  reasonable  con^niction^  which  wajs^ 
that  none  of  the. devisees  should  receive  any.  benefit 
by  the  will,,  unless  they  suffered  the  whole  instrument 
to  take  ^effect ;  not  having  regard  to  the  validity  or 
force  :of,  it,  according  to  the  statute  of  frandB,  but  to 
tbe.clauses  and  expressions  used.  In  Haarle'T?.  Green- 
bank^  there  was  no  condition  expressed  in  the  will ; 
it  rested  singly  on  the  construction  the  oo^irt  was  to 
make,  upon  the  implied  condition  that  those  claiming 
benefit  by  it  should  suffer  the  whole  to  take  effect ; 
ai^d  then  it  must  necessarily  refer  to  the  validity  of 
the  will ;  for  it  was  rightly  argued^  that  the  will  could 
not  be  xead  so  as  to  support  a  disposition  of  real  es- 
tate>  not  being  ai|  instrument  for  that  purpose. 


I 


Is  that  case^  when  .tlie  court  was  to  make  such  a 
construction  by  implication  from  the  force  of  the  in- 


I 


104  Making  and  puMtshiag  Wills.     Obmt.  I. 

strument  itself,  thecourtmust  see  the  will,  and  could 
not  take  notice  that  it  was  a  will  of  real  estate :  but 
in  the  case  before  him,  where  there  was  such  a  con-  ' 
dition  annexed  to  a  personal  legacy,  the  court  must 
consider  every  part  of  that  legacy,  whether  it  had  re- 
lation to  Beat  estate  or  not  You  must  read  the  whole 
will  respecting  the  personal  legacy,  let  it  relate  to 
what  it  will ;  which  was  ^  substantial  difference,  his 
Lordship  said,  and  would  prevent  his  going  so  far  as 
to  break  in-  upon  the  statute  of  frauds,  and  at  the 
same  time  would  (itlain  natural  justice,  which  re- 
quired, aB  far  as  might  be,  such  construction  to  be 
made,  otherwise  the  intent  of  the  testator  might  be 
overturned^ 

But  as  there:  might  be  a  difficulty  how  to  carry  the 
will'  into^  execution,  (for  being  an  infant  of  tender 
y«ears,  she  could  not  judge  for  herself,  nor  could  the 
master  judge  for  her, -it  being  on  several  contingen- 
cies^* 00  that  until  she  came  of  age,  no  eFectton  could 
be  made,)  his  Lordship  said,  the  plaintiff  must  till 
she  attained  her  age  receive  the  rents  and  profits  of 
the  estate,  subject  to  further  order  of  the  court,  but 
must  be  restrained  firom  committing  waste.  If  the  in- 
fant should  elect  to  have  the  land,  then  whatever  the 
plaintiff  should  be  entitled  to  as  his  orphanage  part 
of  the  testator's  personal  estate,  would  be  liable  to 
make  satisfaction  for  what  he  should  have  received 
out  of  the  rents  and  profits  of  the  real,  as  the  court 
should  direct. 

The  distinction  taken  by  Lord  Hardwicke,  between 
the  cases  of  Hearle  v.  Greenbank,  and  Boughton  v. 
Boughton,    was  recognized  and  adopted  by  Lord 


Sect.  10.  EkdUm  m  Mqmty.  la 

Kenyon,  in  Carey  t).  Askew  (1)^  and  of  which  the 

Chancellor  gave  the  following  account,  as  to  the  point 

now  nnder  consideration^  from  his  own  note.  *'  I  have 

looked  at  my  own  note  of  Carey  v.  Askew.     Lord 

Keayou  there  said,  the  distinction  was  settled,  and 

was  not  to  be  unsettled,  that  if  a  pecuniary  legacy 

was  bequeathed  by  an  unattested  will^  under  an  ex- 

pres^  condition  U>^e  up  a  real  estate^  by  that  un-^ 

attested  will  attempted  to  be  disposed  of,  such  Condi* 

tion  being  expressed  in  the  body  of  the  will^  it  was  a 

case  of  election,  and  he  could  not  take  the  legacy 

without  complying  with  the  express  condition.     But 

Loni  Kenyon  also  took  it' to  be  settled,  as  Lord  Hard- 

wicke  has  adjudged,  that,  if  there  was  nothing  in  the 

will,  but  a  mere  davise  of  real  estate^  the  will  was  not 

capable  of  being  read  as  to  that  part ;  and  unless  the 

legacy  was  given  so  that  the  testator  said  expressly, 

that  the  legatee  should  not  take,  unless  that  condition 

was  eomphod  <with^  it  was  not  a  case  t>f  election.   The 

reason '  of  that  distinction,  if  it  were  re$  mtegra,  is 

qaestionable. 


r    '      •      .^ 


.       ...        -  '  c. 


(1)  Tba  aa^  19  .reported  }n  %  Projyrn,  CC  M;,)lmt  the  point 
under  consideration  in  the  text  onlj  appears  to  liaTe  made  a  part 
of  it,  bj  the  notes  of  it  referred  to  by  the  connsei  for  the  heir  at 
Itw,  tad  by  \M  Chancellbr,  in  Sheddon  9.  Goodrich,  8  Yet.  jun. 

48i.  '  '• 


f  ..  * 


r       ^       ^ 


•    ' 


106  Making  and  publishing  JfUls,        Chap.  I. 


Section  XI. 

Signature  and  Subscription.. 
Of  ift^jsij-      IT  shall  be  my  next  business  to  enquire  into  the 

nature  of  -^  ^ 

the  testa-    state  of  the  law  on  the  essentials  held  requisite  in 

tor,  and  *  • 

^hesub-      regard  to  the  signature  of  the  testator^  and  the  sub- 
of  the  wit-  ^cription  of  the  witnesses.     The  formalities  required 

nesses. 

are/  Ist,  that  the  will  be  in  writing; — 2A,  that  it  be 
signed  by  the  devisor^  or  some  other  in  his  presence^ 
and  by  his  direction; — and  Sd^  that  it  be  attested 
and  subscribed  in  his  presence^  by  three  or  more 
credit^e*  wiftnesses, 

» 
M^ffident*        ^^  *^^^  language  made  use  of  by  the  legislature^ 
signing,      were  tofbe  understood  in  its  natural  and  usual  sense^ 
it  wpuld  seem  that  there  could  be  no  great  content 
tioii  in  regard  to  the  meaning  of  the  words  ^  shall  be 
signed  by  itbe  devisor/  which  are  generally  considered 
as  importing  the  actual  and  formal  subscription  of 
the  name  of  the  party  at  the  bottom  of  the  inistru^ 
ment.     And  by  directing  this  to  be  done  in  the  pre- 
sence of  three  witnesses^  the  statute  at  first  view 
.    seems  to  require  that  the  attestators  should  have 
ocular  evidence  of  the  act  of  signing  performed  by 
the  testator. 

Very  soon,  however,  after  the  legislature  had 
thought  fit  to  place  these  guards  about  a  dying  man^ 
in  this  last  and  important  act,  courts  of  justice  yield* 
ing  to  the  popular  bent  towkrds  freedom  and  facility 
in  all  alienations  of  property,  instead  of  strictly  exe* 
cuting  the  intention  of  parliament,  seem  to  have 

■  ^ 

studied  to  frustrate  its  caution. 


Sect.  11,       Signature  and  Subseriptian,  107 

In  the  case  of  Lemayne  v.  Stanley  (1),  which  \ira8  f/J*^*j^^^t.* 
determined  about  four  years  ^fter  the  statute  was  ^.c'*"!'*  .^ 

•^  signiDff  if 

passed,  the   solemnity  of  siffninff  was   treated  with  awiiibc 

*  '  .  .  written  by 

very  little    regard.     StanWyj    seised  in   fee,   wrote  atestatori 

,       .  ®^"  hand, 

his  will  with  his  own  hand,  beginning  thus,  ''  In  the  with  bis 
name  of  God,  Amfen.  1,  John  Stanley,  make  this  tny  scrtea. 
last  will.  an(}  testament/-  and  he  thereby  devised  the 
lands  in  question^  and  put  his  seal,  but  did  not  sub- 
scribe his  name;  but  three  witnesses  subscribed  the 
will  in  his  presence.  And  whether  this  was  a  good 
)vill  te  pass  land  within  the  statute  of  frauds  was  the 
question.  After  several  arguments,  it  was  adjudged 
by  the  whole  courts  consisting  of  North  Chief  Justice, 
and  Wyndham,  Levinz,  and  Charlton,  Justices,  to 
be  a  good  will;  for  being  written  by  himself  (2),  and 
Im  name,  being  in  the  will,  it  was  a  sufficient  signing 
witbio  the  statute,  which  did  not  appoint  where  the 
will  should  be  signed,  at  the  top,  bottom,  or  margin, 
andtliat  therefore  a  signing  in  any  part  was  sufficient. 
And  soon  after,  in  the  37th  year  of  the  same  King, 
the  doctrine  was  stated  still  more  loosely  by  Lord 
Chief  Justice  Jdferies,  who  the  report*  says,  seemed 
to  hold,  tiiat  a:  will  written  all  by  a  testator's  own 
hand,  and  acknowledged  in  the  presence  of  three 
(rediblo  witnesses,  would  be  Avithin  the  intention  of 

■  Anon.  Skin.  227. 


i> 


(1)  3  Jjer.  1. ;  ^nd  again  in  tlie  case  of  Hilton  v.  King,  Lord 
North  and  I.ev.tnz  agreed^  that  it  was  immaterial^  irhcdier  the  sign- 
ing be  at  the  top  or  botitom  of  the  vill,  foi*  the  statute  doth  not  say 
subscribed,  bi^t  signed  by  the  testator. 

(2)  The  Emperors  Theodosius  and  Valentin iaa  allowed  CYory 

I 

holograph  testament  to  be  a\ailablc,  though  made  without  wit- 
nesses* NoTell.  Thcod.  lib.  2.  tit.  4. 


106 


Making  and  publishing  Wills.      Chap.  I. 


But  if  the 
testator  be- 
ftiittosiga 
iaregnitr 
ybrm,and 
doesDot 
complete 
ity  the  BtMr 
tDte,  as  it 
seems,  is 
not  satis- 
fied. 


the  statute^  though  it  were  not  signed  by  him  accord- 
ing to  the  words  of  the  act.  And  this  doctrine  has 
been  acceded  to  as  settled  whenever  it  has  since  come 
under  consideration.  So  in  Stokes  v.  Moor^  the 
case  of  an  agreement  was  said  to  be  like  that  of 
wills,  upon  which  it  was  said  to  have  been  deter- 
mined, that  the  testator's  writing  his  name  in  the 
introduction  of  the  will,  was  a  good  signing  within 
the  statute.  And  in  the  late  case  of  Coles  v.  Tre- 
cothic  (3),  Lord  Eldon  took  notice,  that  it  had  been 
often  held  in  respect  to  wills,  that  if  a  testator  begins 
his  will  with  the  formal  introduction  of  '^  I,  A.  B.  do 
make  this  my  last  will,''  it  was  a  sufficient  signing. 

In  Right  V.  Price  ^  there  was  an  appearance  of 
greater  strictness.  According  to  which  case  it  ap- 
pears that  if  the  testator  shews  an  intention  to  sub* 
scribe  the  will  in  regular  form,  by  beginning  to 
write  his  name  at  the  bottom,  but  being  over- 
taken by  weakness  or  incapacity,  before  he  has 
completed  such  intention,  he  becomes  incapable 
of  executing  his  purpose,  the  will  is  not  suffi- 
ciently signed  within  the  act.  In  that  case,  a  will 
had  been  prepared  in  five  sheets,  and  a  seal  affixed  to 
the  last,  and,  likewise,  the  form  of  attestation  vms 

* 

*  Dougl.  341. 
^  1  P.  Wms.  771.  note  and  Tide  snpra,  m. 


(3)  9  Vez.  jun.  249. — But  his  Lordship  seemed  to  think,  that 
for  this  formal  introduction  to  be  a  sufficient  signing,  it^tfhould  be 
one  simultaneous  act,  and  that  the  whole  act  or  intended  instru* 
ment  should  be  in  the  contemplation  of  the  testator  at  the  time  of  his 
writing  such  formal  introduction.  And  in  this  Tiew  it  may  deierra 
consideration,  how  far,  if  a  will  be  written  on  diifeient  pieces  of 
paper,  or  at  different  times^  such  a  formal  beginning  will  be  equi* 
Talent  to  a  regular  signihg. 


Sect.  1 1 .       Signature  and  Subscription.  109 

written  upon  it^  and  the  will  was  read  over  to  the 
testator^  who  set  his  mark  to  the  two  first  sheets^  and 
attempted  to  set  it  to  the  third ;  but  being  unable 
from  the  weakness  of  his  hand,  he  said,  ''  he  could 
not  do  it,  but  that  it  was  his  will."  And  on  the 
following  day,  being  asked  if  he  would  sign  his  will, 
he  said,  ''  he  would,"  and  attempted  again  to  sign 
the  two  remaining  sheets,  but  was  not  able  to  do  it. 
The  case  was  decided  upon  another  ground,  but  the 
Court  of  King's  Bench  seemed  to  be  of  opinion,  that 
this  was  not  a  .sufficient  signing ;  for  the  testator, 
when  he  signed  the  two  first  sheets,  had  an  intention 
of  signing  the  others ;  he  did  not,  therefore,  mean  the 
signature  to  the  two  first  sheets,  as  the  signature  of  the 
whole  will ;  and  consequently  there  never  was  a  sig- 
nature of  the  whole,  but  only  a  beginning  to  sign. 

In  Lemayne  v.  Stanley,  the  writing  of  the  name 
in  the  introduction  of  the  will,  was  all  the  signipg 
contemplated  by  the  testator,  and  as  far  as  such  a 
mode  could  be  held  a  literal  accomplishment  of  the 
statute,  his  intention  in  respect  to  his  will  was  com- 
pleted, his  mind  being  in  no  suspense,  nor  looking 
to  any  further  or  future  act  of  authentication.  But 
in  Right  v.  Price,  the  testator  expressly  announced 
an  intention  to  authorize  the  instrument  in  a  regular 
and  solemn  way,  and  therefore  his  will  seemed  to  be 
inchoate  until  this  was  done :  why  it  was  not  done 
was  to  be  explained ;  and  so  the  case  could  only  be 
established  by  those  parol  proofs,  which  it  was  the 
object  of  the  statute  to  exclude. 

In  the  case  of  Lemayne  v.  Stanley,   above  cited,  ^Jj^^ 
three  of  the  judges,   including  the  chief,   were  of  signing- 
opinion,  that  the  testator,  by  putting  hia  seal  to  the 
wiD,  had  sufficiently  signed  within  the  statute^  for  they 


110  Making  and  publishing  Wills.       •  Chap.  1; 

said  that  the  signum  Iva?  no  rnore  than  a  mark^  and 
scaling  was  a  sufficient  mark  that  it  was -his  will. 

InWarneford  i>.  Wwrneford'*;  which>  after  along^ 
interval  seems  to  havib  been  the  nexi.  case  in  which 
this  question  came  tobccoafiidered^-iit  is'said  to  have 
been  held  by  Lord  Raymond>' on/ an  tissue  out  of 
chancery  ofdevisavit  vd  n^is/ thatjsea/ang*  a.  will  wa6 
«>S2g^mg  within  the  ^statute  of  fmud^  > We  are  t6 
oi>6erve,  that  in  L&iiiayne;v.  StanIey/4ha'»dpinioh  of 
tiie  jodges  must  be  regarded  as<  spoken  obildr,  tthe 
case  being  decided  on  -the  ground  of  the  .sufficiency 
of  the  insertion  of  the  name  in  a  will^iwrittenbyiitke 
testator  ;  andtthe  point  in  Stmnge,  as*  stated  only^^in 
a  short  note^  was  agitated  at  nisi  priu»oxiij.*>  But 
this  doctrine  was  ill  received  ^in  tiie  subsequent  case 
of  Smith'  t^;  Evans^  wbereinl  *  Lord  Chief  Baron 
Parker^  Baron  Clive,  and  Baron  Smith,  (in  the  ab- 
sence of  Bardn  h^gg)^nTe'  stated  to  havexsaid/  that 
the  opinion  of  the  threejudges  inX<<^niayne  v^/StaWl^y 
was  veryi  stratige ;  for  4hatt'if  it.wei^e  to;  It  Would 
be  very  ciasy  for  one  porsonto  forge  anotlieD.. man's 
will,  by -only  forging  the  aames^  of  •  any;.t2vv&'  pers<^8 
dead,  for  he  woidd'bave  no^oocasion^ to 'forgeftbe  tes- 
tator's'hand.*    •  '         N  •     '..I    ."•;    »;H    I   ••►  I         ^' 

And  the  same  judges:  deblar^dj  that  >if^  the  same 
thing' should  come-  into  iquestion.  hgain,  they-  would 
not  hold  that  seatikg  mmiVb^vniifyyvmni^i  soffisient 
signing  within  the  statute.  The  Chief  Baron  seems 
to  have  been  less  resolved  oii  the  same  question,  in 
the  opinion  delivered  by  him  in  Ellis  v.  Smith',  in 
.     which  he  thus  expressed  himself :  ''  As  to  the  pointy 

*2  Strange,  76-4.  '   M  "VirUs.  313/ 

'  Reported  in  1  Vez.  jun.  11. 


Sect.  11.       Signature  and  Subscription.  HI 

whether  sealing  be  signing  ;  I  own  I  think  it  is  not; 
for  the  character  and  hand-writing  are  necessary^  and 
were  designed  to  prevent  or  detect  frauds  and  impo- 
sitions. But,  however^  said  his  Lordship^as  in  soin^ 
cases  it  has  been  thrown  out  obiter,  and  in  one  case 
decreed^  that  it  is  equal  to  signing,  I  shall  submit  my 
opinion."  But  Willes  C.  J.  said  decidedly  in  the 
same  case,  that  he  did  not  think  sealing  was  to  be 
considered  as  signing  ;  and  he  added,  that  he  declared 
so  then,  because,  if  that  question  ever  came  before 
him,  he  should  not  think  himself  precluded  from 
weighing  it  thoroughly,  and  decreeing,  that  it  was  not 
signing,  notwithstanding  the  obiter  dicta,  which  in 
many  cases  were  nunquani  dicta,  but  barely  the  words 
of  the  reporters ;  for,  upon  examination,  he  found 
that  many  of  the  sayings  ascribed  to  that  great  roan. 
Lord  Chief  Justice  Holt,  were  never  said  by  him  (4). 

The  opinion  of  Sir  John  Strange,  Master  of  the 
Rolls,  was  on  this  point  agreeable  to  that  declared 
by  the  Chief  Justice.  He  observed,  that  he  was  not 
convinced  that  sealing  was  signing;  for  sealing  iden- 
tified  nothing ;  it  carried  no  character ;  and  most  seals 
were  affixed  by  the  stationers,  who  prepared  the  pa- 
per. Lord  Hardwicke  did  not,  according  to  the  re- 
port, speak,  in  this  case,  as  to  the  question  of  sealing; 
but  in  a  case  which  had  been  determined  by  him4^wo 
years  before  ^,  his  Lordship  had  expressed  himself  in 
stronger  language  to  the  same  effect  with  the  Lord 

'  Grayson  9.  AtkinsoO)  2  Vez.  459. 


(4)  See  Show.  69.  Lea  r.  Libb,  where  Lord  Holt  is  said  to  hare 
lieid  sealing  to  be  a  signing. 


112  Making  and  publishing  Wills.      Chap.  I. 

Chief  Justice  Willes  and  Sir  J.  dtrange :  he  then  de- 
clared^ that  the  statute^  by  requiring  the  will  to  be 
signed^  undoubtedly  meant  some  evidence  to  arise 
from  the  hand- writing ;  then  how  could  it  be  said, 
that  putting  a  seal  to  it,  would  be  a  sufficient  sign- 
ing ?  for  any  one  may  put  a  ^  seal ;  no  particular 
evidence  aritres  from  a  seal;  common  seals  are 
alike;  no  certainty  or  guard  therefore  arises  from 
thence." 

22^.  TiU  a  hte  case  it  was  a  considerable  doabt  with 
v^Kthe  ^^  profession,  whether,  if  a  testator  or  witness^ 
Sieto"*^  could  not  write  his  name,  he  might  satisfy  the  statute 
nSffident^  by  making  his  mark.  In  Lemayne  v.  Staniqy,  as  it 
signing  or  ig  reported  in  Freeman  \  it  is  said  that  the  court  were 
uif.  of  opinion,  that  it  was  not  necessary  for  the  testator 

to  write  his  name,  for  some  cannot  write,  and  then 
their  mark  is  a  sufficient  signing.  But  this  opi- 
nion, though  entitled  to  great  deference,  as  being 
stated  to  have  been  that  of  the  court  and  not  of 
a  single  judge,  yet  as  being  uncalled  for  by  the 
facts  of  the  case,  must  be  regarded  as  extra-judK 
cial.  Hudson's  case',  which  was  determined  about 
a  year  after  ILemayne  and  Stanley,  where  two  wit- 
nesses swore  that  J.  S.  the  testator  did  not  pub- 
lish the  writing  as  his  will,  but  that  A.  B.  guided  his 
hand,  and  J.  S.  made  his  mark,  but  said  nothing,  is 
too  mixed  a  case  to  be  admitted  as  an  authority  to 
this  point. 

The  observations  made  by  Sir  John  Strange  in  the 
above  cited  case  of  Ellis  x?.  Smith,  on  the  question  as 
to  sealing,  do  certainly  seem  as  strongly  to  apply  to 

•  « 

^Freem.  Rep.  638.  and  see  17th  Yez.  jun.  459. 
1  *Skin.79. 


Sect.  11.       Signature  and  Subscription.  113 

a  testator's  mark^  for  it  identifies  nothing :  it  carries 
no  character.  But  in  the  late  case  of  Harrison  v. 
Harrison  ^  it  was  decided  by  Lord  Eldon,  that  the  at- 
testation of  a  devise  by  a  niark^  was  good  within  the 
statute ;  and  as  the  statute  requires  the  attestators  to 
siAscr^e,  and  the  testator  to  sign^  it  may  be  thought 
that  the  principle  of  this  determination  is  applicable 
a  fortiori  to  the  signature  of  the  testator  himself, 
rince  the  word  'subscribe'  seems  much  more  forcibly 
to  point  to  the  actual  hand- writing,  than  'sign/ 
which,  without  bny  strain  upon  its  grammatical  sense, 
though,  perhaps,  not  without  some  sacrifice  of  its  po- 
pular and  usual  acceptation,  might  be  deemed  to  be 
satisfied  by  any  symbol  of  the  testator's  consent  and 
ratification  (5). 

In  the  above-mentioned  case  of  Harrison  v.  Harri- 
son, the  question  was  made  upon  a  bill  by  devisees 
against  the  heir,  whether  the  will  was  duly  executed 
to  pass  real  estate  according  to  the  statute  of  frauds, 
one  only  of  the  witnesses  having  subscribed  his  name^ 
the  two  other  having  attested  by  setting  their  marks 
respectively.  Lord  Chancellor  Eldon  observed,  that 
«pofi  inquiry  from  Mr.  Serjeant  Hill,  he  had  founds 
that  there  was  a  speciiil  case  reserved  in  the  Court 
of  Commoii  Pleas,  upon  the  question,  whether  a  will 
devising  real  estate  was  well  executed,  one  of  the 
witnesses  being  a  marksman  ;  and  it  was  held  clearly 

*  8  Vez.jun.  185. 


(5)  The  counsel  for  the  plaintiff  is  stated  to  have  adTcrted  to  the 
difference  of  expression  in  the  statute,  with  reference  to  the  wit- 
neiies  and  .the  devisor;  and  to  have  remarked  the  difficultjr  of 
making  the  proof,  in  case  of  the  witnesses  being  dead. 

I 


114  Making  and  publishing  Wills.    Chap.  I. 

• 

gufiicient.  It  was  a  case  of  Garney  v.  Corbet^  in 
1710^  in  a  note-book^  which  was  the  property  of  Mr. 
Justice  Bamet.  His  Lordship  said^  he  thought  there 
might  have  been  a  great  deal  of  argument  upon  it 
originally.  But  upon  this  authority  the  plaintiff 
must  take  a  decree.  In  a  few  months  afterwards  the 
same  point  was  determined  by  Sir  William  Grants 
Master  of  the  RoUs^  in  Addy  v.  Grix  ^  agreeably  to 
the  decision  of  the  Chancellor  in  Harrison  v.  Harri- 
son^ and  it  therefore  seems  now  to  be  at  rest (6). 

It  is  suffi.       It  seems  to  be  fairly  inferrible  from  the  decision  in 

cicnt  if  the  "^ 

witnesses    Lemavne  v.  Stanley,  that  the  court  were  of  opinion. 

attest  upon  "^  i  r  ^ 

theacknow'  that  it  was  uot  ucccssary  that  the  witnesses  should 

ledgment  by  i»     •       •  ^  « 

the  testa,    attest  the  very  act  of  signing,  but  that  an  acknow- 

signature,  ledgmcut  by  the  testator,  that  the  act  of  signing  was 

s^ein^him  douc  by  him,  was  sufficient  for  them  to  attest ;  for 

7tX  ^      sii^c^  not  th^  sealing,  but  the  writing  over  the  will, 

with  the  testator's  name  in  it,  was  the  ground  of  the 

decision,  the  witnesses  must  have  seen  this  done,  if 

it  was  judged  insufficient  for  them  to  attest  upon  the 

acknowledgment  of  the  testator ;  but  this  was  not  so 

found  by  the  jury,  or  it  would  have  put  an  end  to  M 

controversy  upon  the  case ;  and  if  the  witnesses  did 

' '  8  Vez.  jun.  504. 


(6)  According  to  the  report  of  tiie  case  of  Lemayne  v»  Stanley, 
in  Freeman,  the  court  were  of  opinion,  that  if  the  testator  had  his 
name  on  a  stamp,  it  would  be  enough  if  he  impressed  his  nam« 
instead  of  writing  it.  And  in  Strange  v.  Barnard,  3  Bro.  C.  C.  585. 
it  was  held,  that  stamping  was  equivalent  to  sealing.  By  the  civil 
law,  if  a  testator  could  not  write,  he  was  not  admitted  to  make  his 
mark,  but  an  eighth  subscribing  witness  (seren  being  tiie  ordinaiy 
legal  number)  was  called  in  to  subscribe  in  the  place  of  the  testator* 
C.  6.  ^3.  1. 


Sect.  11.       Signature  and  Subscription.  ^        US 

not  attest  the  writing  of  the  whole  will  by  the  testa- 
tor,  their  attestation  could  only  go  to  his  acknow- 
ledgment of  his  signature.  This  point,  however, 
seemed  to  exist  in  some  doubt  during  a  long  time 
after  the  statute  was  passed.  In  Dormer  v.  Thur« 
land ",  where  the  will  was  not  signed  by  the  testator 
in  the  presence  of  the  witnesses,  but  he  acknow* 
ledged  it  to  be  his  hand,  and  declared  it  to  be  his  will 
in  their  presence.  Lord  Chancellor  King  inclined  to 
think  that  the  will  was  good,  but  ordered  the  point 
to  be  reserved,  and  made  a  case  for  further  consi- 
deration (7). 

However,  in  a  case',  which  came  before  the 
Master  of  the  Rolls  (Sir  J.  Jekyll)  a  few  years 
afterwards,  the  will  was  held  good,  though  the  wit^ 
nesses  did  not  see  the  testator  sign  it,  but  he 
owned  it  before  them  to  be  his  hand.  And  the  re- 
porter adds,  that  on  his  mentioning  this  opinion  of 
the  Master  of  the  Rolls  to  Mr.  Justice  Fortescue 
Aland,  he  said  it  was  the  common  practice;  that 
he  had  twice  or  thrice  ruled  it  so  upon  evidence  on 
the  circuit ;  and  that  it  was  sufficient  if  one  of  the  . 
three  subscribing  witnesses  swore  that  the  testator 
acknowledged  the  signing  to  be  his  own  hand-writ- 
ing. 

Sir  Joseph  Jekyll  had  delivered  a  similar  opinion, 
a  Uttle  before,  in  a  case  of  Smith  v.  Codron,  cited  by 

> 

*  2  P.  Wma.  606.        '  Stonehoose  v.  Evel jn,  3  P.  Wms.  253. 


(7)  Bat  the  jiidges  of  B.  R.  on  argument  held  the  will  Toid,  as 
t  charge,  for  want  of  belng^  sealed  according  to  the  direction  of 
t"«p  power- 

i2 


1 16  Making  and  pvbUshins  WUh.     Chap.  II 

Lord  Hardwicke^  in  Grayson  v.  Atkinson '.  In  that 
cas^  A.  had  signed  and  published  a  will  in  the  presence  of 
two  persons  who  had  attested  it  in  his  presence  ;  then 
a  third  person  was  called  in^  and  the  testator^  shewing 
him  his  name^  told  him  that  that  was  his  hand^  and 
bid  him  witness  it^  which  he  did,  and  subscribed  his 
name  in  the  testator's  presence;  and  the  testator^ 
two  hours  after^  told  him  that  the  paper  he  had  sub- 
scribed was  his  will.  His  Honour  held  this  to  be  a 
good  execution. 

But  in  the  instructive  case  of  Grayson  v.  Atkinson^ 
above  referred  to^   this  point  came  fully  under  the 
consideration  of  Lord  Hardwicke.     The  bill  was  to 
establish  a  will  against  an  heir  at  law^  -  who^  by  his 
answer  raised  the  doubt^  whether,  as  all  the  witnesses 
did  not  see  the  testator  sign,  though  he  saw  them  all 
sign,  this  was  a  good  attestation  within  the  statute. 
The  Chancellor^  adverting  to  the  argument  of  the 
counsel  for  the  defendant^    in  which  they  had  in- 
sisted that  the  word  ^  attested'  superadded  to  '  sub-- 
scribed/  imported  that  the  attestators  should  witness 
the  very  act  of  signing,  and  that  the  testator's  acknow- 
ledging that  act  to  have  been  done  by  him,  and  that  it 
was  his  hand-writings  was  not  sufficient  to  enable  them 
to  attest,  but  that  it  should  be  an  attestation  of  the 
thing  itself,  and  not  of  the  acknowledgment,  observed 
''  that  certainly  there  must  be  an  attestation  of  the 
thing  in  some  sense,  but  the  question  was,  whether^ 
if  they  attest  on  the  acknowledgment  of  the  testator 
that  that  was  his  hand-writing,  that  was  not  an  at* 
testation  of  the  act,  and  whether  it  was  not  to  be 
construed  agreeably  to  the  rules  of  law  and  evidence^ 

♦  2  Vei.  455. 


Sect.  11.       Signature  and  StAscriptton.  117 

according  to  which  all  other  attestation  and  signing 
might  be  proved.  At  the  time  of  making  that  act  of 
parliament^  and  ever  since,  if  a  bond  or  deed  was 
executed  and  signed,  and  afterwards  the  witnesses 
were  calhed  in,  and  before  the  witnesses,  the  person 
making  it,  acknowledged  the  signature  to  be  his 
hand- writing,  that  was  always  considered  as  an  evi- 
dence of  signing  by  the  person  executing,  and  was 
an  attestation  of  it  by  them. 

''It  is  true,"'   said  his  Lordship,   '' there  is  some 

difference  between  the  case  of  a  deed  and  a  wUt  in 

this  respect,  because  signing  is  not  necessary  to  a 

deed,  but  sealing  is  ;  and  I  do  not  know  that  it  was 

ever  held,  that  acknowledging  the  sealing  wfthout 

witnesses  has  been  sufficient  (8).      But,  nevertheless, 

that  is  the  rule  of  evidence  in  respect  to  signing.     If 

it  were  in  the  case  of  a  note,  or  declaration  of  trust, 

or  any  other  instrument  not  requiring  the  solemnities 

of  a  deed,   but  bare  signing,    if  that  instrument  be 

attested  by  witnesses,  proving  that  they  were  called 

10,  and  that  the  party  took  up  the  instrument,  and 

said,  that  was  his  hand,   such  would  be  a  sufficient 

attestation  of  the  signing  by  him.     That  is  the  rule 

of  evidence.     Considering,  therefore,   the  words  of 

the  act  of  parliament,  it  seems,  that  if  the  testator 

having  signed  the  will,  did,    before  the  attestators, 

declare  and  acknowledge  he  had  |o  done,  and  that  the 


(8)  Bat  if  the  haDd-writing  to  a  deed  be  proTed,  the  sealing 
and  delivery  may  be  presumed :  if,  therefore,  the  signature  to  a 
deed  be  acknowledged  to  an  attestator,  the  rest  ^eems  to  follow, 
see  Grelller  r.  Neale  and  others,  Peake,  Ni.  Pr.  Ca.  146.  See  also 
Parke  v.  Mears,  2  Bos.  et  Pull.  dl7. 


1 18  Making  and  pvkUshing  Wills.      Chap.  I' 

signature  was  his  hand^  that  might  be  sufficient  to 
make  the  attestation  good/^ 

The  case  of  Ellis  v.  Smith  ^  came  on  in  1754, 
which  was  about  two  years  after  Grayson  v.  Atkinson^ 
and  here  the  Lord  Chancellor  Hardwicke  was  assisted 
by  Sir  Johu  Strange^  Master  of  the  Rolls,  Willes 
Chief  Justice  of  B.  R.  and  Parker  Chief  Baron.  The 
form  in  which  the  question  is  reported  to  have  been 
put,  was,  whether  a  testator*s  declaration  before  three 
witnesses,  that  it  was  his  will,  was  equivalent  to  sign- 
ing  it  before  them^  and  constituted  a  good  will  within 
the  5th  section.  The  determination  of  Grayson  v. 
Atkinson  by  Lord  Hardwicke,  was  in  this  case  men- 
tioned by  the  Master  of  the  Rolls,  as  an  authority 
full  to  the  point  upon  the  first  question;  and  his 
Honour  said,  that  to  determine  otherwise  at  that  time^ 
would  introduce  confusion  and  uncertainty,  and  sap 
the  foundation  of  much  property  which  rested  on  for- 
mer decrees. 

The  court  was  unanimous,  in  holding  such  acknow- 
ledgment by  a  testator  to  the  attestators  of  his  will, 
to  be  good  within  the  statute  ;  and  the  Chief  Justice 
declared^  that  his  opinion  was  virtually  supported  by 
those  cases  which  had  decided  the  attestation  and  sub- 
scription of  the  witnesses  at  different  times,  to  be 
good ;  for  then,  a  testator  is  presumed  to  write  his  name 
only  before  one,  an&  to  acknowledge  it  to  be  his  hand 
to  the  remaining  two ;  and  why  should  not  his  ac- 
knowledgment to  the  three  be  equally  good  ?  The 
Chancellor  also  observed  that  those  cases  supported 
the  one  before  him  from  their  direct  similitudej  and 

'1  Vez.  Jan.  11. 

2 


Sect.  1 1 .       Signature  and  Subscription.  I  Id 

not  from  any  consequential  .reasoning ;  for  he  ap* 
prehended  that  the  determination  in  all  those  cases 
was  grounded  on  this^  that  a  declaration  by  the  tes- 
tator was  good  ;  for  if  he  signed  three  times^  there 
were  three  executions^  and  none  could  be  good  with- 
in the  statute  (9). 

The  late  case  of  Addy  v.  Grix^  shews  it  to  be  the 
present  sense  of  the  courts^  that  this  point  is  settled. 
The  bill  was  filed  to  carry  into  execution  a  devise  of 
real  estate  in  trust  to  be  sold.  One  of  the  witnesses^  « 
by  his  depositions^  stated,  that  he  did  not  see  the  tes- 
tator execute^  but  that  the  testator  took  the  will  in 
his  hand^  and  said  the  will,  and  also  his  name^  were 
of  his  hand-writing.  The  Master  of  the  Rolls,  with- 
out difficulty,  admitted  the  sufficiency  of  the  attesta- 
tion. 

^  8  Vez.jun.  504. 


(0)  The  reporter  has  added  a  note,  wherein  he  questions  the  pro- 
priety of  this  dictum  of  I^rd  Hardwlcke,  which  had  first  fallen 
from  the  Lord  Chief  Justice ;  obsenring  that  it  was  hard  to  say  that 
SBch  declaration  or  acknowledgment  would  be  suffident  in  any  case 
vhere  actual  signing  would  not  do.  But  it  is  to  be  observed,  that 
the  acknowledgment  or  declaration  is  not  supposed  to  stand  in  the 
place  of,  or  be  equiralent  to  a  distinct  act  of  signing,  but  to  give 
effect  to  the  attestation  of  the  act  of  signing  already  done.  See 
tbe  case  of  Westbeech  v.  Kennedy,  1  Vesey  and  Beames,  S62,  to 
▼hich  case  a  note  is  added,  which,  it  may  be  as  well  to  apprise  the 
reader,  contains  a  number  of  cases  not  connected  with  the  point  in 
question. 


ISO  Making  and  publishing  Wills.     Chap.  I- 


Section  XII. 


Formality  of  Publication. 

THE  acknowledgment  of  the  signing  to  the  three 
subscribing  witnesses^  seems^  according  to  the  pria- 
ciples  on  which  many  cases  have  been  decided^  to 
comprise  the  efficacy  of  what  the  law  means  to  ex* 
press  by  the  publication  of  the  will ;  the  manner  of 
effectuating  which^  was  often  a  judicial  question  be- 
fore the  statute  of  frauds.  The  term  itself,  publica- 
tion,  seems  never  to  have  borne  any  very  precise  or 
appropriate  meanings  or  to  have  indicated  any  cer- 
tain and  fixed  form.  After  the  statute  of  wills  had 
established  the  direct  testamentary  power^  accompa- 
nied with  the  obligation  of  declaring  the  will  by  writ- 
ings these  parliamentary  wills  were  thought  to  require 
a  very  slight  degree*  of  formal  publication  super- 
added to  the  solemnity  and  durability  pf  writing  and 
the  cases  shew^  that^  before  the  statute  of  frauds^ 
very  little^  if  any^  verbal  formality  was  thought  ne- 
cessary to  accompany  the  written  declaration. 

Thus^  a  very  few  years  before  the  statute  of  Charles  , 
was  enacted^  it  was  resolved^  in  the  King's  Bench^  by 
the  whole  courts  on  a  trial  at  bar  in  an  issue  out  of 
Chancery^  Ist^  that  if  a  man  draws  up.  his  own 
wills  and  sends  it  to  counsel  to  be  advised  of  the  le- 
gality of  its  this  is  no  will^  unless  it  had  a  publica- 
tion after  he  received  it  back  from  his  counsel :  but, 
2d^  that  if  after  the  will  came  from  the  counsel  with 


Sect.  12.        Formality  of  PuhUcatum,  121 

alterations  4nade  by  him^  the  party  put  his  seal  to  it^ 
or  subscribed  his  naine^  or  wrote  upon  it^  '  this  is 
my  will/  though  there  were  no  witnesses  to  it,  yet 
this  was  a  good  publication,  because  by  any  of  those 
expressions,  the  testator  declared  his  intent  that  it 
should  be  his  will*.  In  Peate  v.  Ougley*,  Sir  John 
HoUis  mentioned  a  case  determined  by  Lord  Shaftes- 
bury, before  the  29  Car*  2.  in  which,  though  the 
testator  wrote  his  will  with  his  own  hand,  and  also 
these  words  '  signed,  sealed  and  published  in  the 
presence  of*  and  no  witnesses  had  subscribed  it,  it 
was  held  a  sufficient  publication.  And  in  the  princi- 
pal case,  because  these  words,  signed,  sealed  and 
published  in  the  presence  of,  were  written  at  the  top, 
of  the  will  for  want  of  room  below,  in  the  testator's 
own  band,  and  then  the  names  of  the  three  witnesses 
were  subscribed,  though  one  witness  (the  other  two 
witnesses  being  dead)  deposed,  that  himself  and  the 
other  two  witnesses  were  called  up  in  thjs  night,  and 
sent  for  to  the  testator*s  bed-chamber,  who  produced 
a  paper  folded  up,  and  desired  him  and  the  others  to 
set  their  hands  as  witnesses  to  it,  which  they  all  three 
did  in  his  presence,  but  without  seeing  any  of  the 
writing,  or  being  told  by  the  testator  it  was  his  will, 
or  what  it  was,  but  that  he  believed  it  to  be  the  same « 
paper,  because  his  name  was  there,  and  the  names 
of  the  other  witnesses,  and  he  never  witnessed  any 
other  paper  for  the  testator  ;  this  was  held  to  be  a 
sufficient  publication  of  the  will,  after  the  statute  of 
29  Car.  2.  In  Ross  v.  Ewer*  Lord  Hardwicke  men- 
tioned a  case  of  a  Mr.  Windham  in  the  court  of  K.  B. 

'  Bartlett  V.  Ransden,  et  al.  Trin.  15  Car.  2.  B.R.  Vin.  Abr. 
lit.  DcT.  (N.  2.)  pi.  10. 
»  Vin.  Abr.  tit.  Dey.  (N.  7.)  pi.  12. 
'Atk.  161. 


I2it  Making  and  pubKsking  Wills.     Chap.  I. 

which  was  a  trial  at  bar^  upon  the  will  of  his  uncle^ 
wherein  the  only  question  was  whether  the  testator 
published  it ;  there  was  no  doubt  <^  his  havjng  exe- 
cuted it  in  the  presence  of  three  witnesses^  or  of  their 
having  attested  it  in  his  presence ;  which  shewed^  his 
Lordship  said^  that  publication  is«  in  the  eye  of  the 
law^  an  essential  part  of  the  execution  of  a  will^  and 
not  a  mere  matter  of  form. 

The  point  therefore  seems  subject  to  s<Mne  doubt^ 
whether  publication  is  to  be  considered  as  a  mere 
vague  term^  expressing  generally  the  act  of  authen- 
ticating and  announcing  the  veritable  will  of  a  testa- 
tor^ but  depending  as  to  the  mode  by  which  it  is  to 
be  effectuated  on  the  particular  ceremonies  and  so- 
lemnities prescribed  by  the  legislature^  or  as  implying 
a  specific  obligation  upon  the  testator' 6^ond  the  exe- 
cution and  attestation  of  the  will  according  to  the  sta- 
tute of  fraudsC  If  any  positive  declaration  by  the 
testator  that  it  is  his  will^  be  necessary  to  constitute 
a  sufficient  publication  since  the  statute^  it  does  not 
seem  that  the  mere  acknowledgment  of  the  signing 
can  operate  as  an  equivalent ;  for  the  acknowledgment 
of  the  signing,  unless  the  testator  at  the  same  time 
acknowledge  his  will,  cannot  be  more  extensive 
in  effect  than  the  act  of  signing  in  the  presence  of 
the  witnesses.  Upon  the  whole,  however,  we  are  to 
consider  that,  great  as  is  the  weight  of  Lord  Hard- 
wicke's  opinion,  it  was  delivered  on  this  point  in  Ross 
t^.  Ewer,  gratuitously  and  extrajudicially;  whereas 
the  cases  of  Peate  v.  Ougley,  Trimmer  v.  Jack- 
son, Stonehouse  v.  Evelyn,  and  others,  which  have 
been  cited  for  the  contrary  doctrine,  are  direct  au- 
thorities. 


<    123    ) 


Section  XIII. 

Wills  interrtipted  and  resumed. 

IT  is  established  by  the  agreement  of  all  the  cases,  ^J^*"^^^ 
that  a  testator  may  make  his  will  at  different  times,  ^^p/^. 

•^  ceeded  in 

if  the  subsequent  writing  takes  up  and  continues  the  at  differei^ 
former:  and  it  matters  not  by  how  lonff  intervals  often suar 

J  ^  pended 

these  acts  are  separated  ;  they  will  compose  one  en-  and  resnm- 
tire  instrument,  if  the  first  purpose  appears  to  have  need  only 

one  eJtecu- 

proceeded  to  its  accomplishment,  though  with  many  tion. 
pauses  and  resumptions.     Thus*,  where  an  illiterate 
person  made  and  signed  his  will,  in  which  there  was 
a  devise  of  lands,  and  at  a  subsequent  period  added 
more  to  it  on  the  same  sheet  of  paper,  and  declared 
that  he  did  not  thereby  mean  to  disannul  any  part  of 
his  former  devise  and  disposition,  and  signed  it,  and 
then  took  the  sheet  of  paper  in  his  hand,  and  de- 
clared it  to  be  his  last  will  and  testament  in  the  pre«- 
sence  of  three  witnesses,  and  desired  the  witnesses  to 
attest  it,  which  they  did  in  his  presence,  this  was  held 
to  be  one  entire  will,  though  made  at  different  times, 
and  to  be  attested  agreeably  to  the  statute  of  frauds ; 
or,  in  other  words,  the  additional  writing  was  held 
to  be  part  of  one  entire  will,  and  not  a  codicil,  and 
the  execution  and  attestation  to  be  an  original  publi- 
cation, and  not  a  re-publication. 

But  where  the  will  was  written  on  different  pieces 

*  CarlctoQ  V.  Griffio,  1  Biirr.  549.     Carth*  37.  argoeado,  and, 
as  it  seems,  agreed  to  by  Dolbea,  J. 


124  Making  and  publishing  Wills.    Chap.  I. 

Of  the  ex-  of  paper,  it  was  holden.  that  the  witnesses  ouffht  ta 

ccudon  of  ^   f     '  '  ® 

ft  will  see  all  the  pieces  of  paper^  or  the  will  was  not  pro* 
different  perly  attested.  Thus^  in  ejectment^  where  the  spe* 
fir.  cial  verdict  set  forth^  that  J.  D.  made  his  will  in  1670, 

with  two  witnesses  who  subscribed  their  names  in  his 
presence  ;  and  in  1679^  made  a  codicil^  and  thereby 
confirmed  his  will  in  what  was  not  altered^  and 
inserted  some  new  bequests,  and  there  were 
two  witnesses  to  it,  one  of  whom  liad  witnessed 
the  will,  and  the  other  was  a  new  one,,  the  only 
point  was  whether  these  made  together  three 
witnesses  to  the  will,  to  satisfy  the  statute  of  frauds ; 
but  the  court  decided  against  the  devise,  because 
the  third  witness  was  not  a  witness  to  the 
first  will.  There  was  no  entire  instrument  attested 
by  three  witnesses  (1).     And  if  the  additional  writing^ 

*  2  Mod.  263. 


(1)  The  reader  should  compare  this  case  of  Lea  v.  Libb^  with 
Bond  V.  Seawell,  3  Burr.  1773.  Blackst.  407.  422.  454.  in  which 
latter  case  it  was  prored,  that  C.  made  his  will,  consisting  of  two 
sheets  of  paper,  aU  of  his  own  hand- writing,  and  signed  his  name  at 
the  bottom  of  each  page  ;  and  that  he  also  made  a  codicil  of  his  own 
hand- writing  upon  one  single  sheet,  and  then  called  in  H.  and  shew- 
ed him  both  the  sheets  of  his  will,  and  his  signature  to  every  page 
thereof,  and  told  him  that  that  was  his  will,  and  then  he  shewed  H. 
the  codicil,  and  desired  him  to  attest  both  the  will  and  codicil : 
which  he  did  in  the  presence  of  the  testator,  and  then  went  out  of 
the  room.     V.  and  L.  came  in  immediately  afterwards,  and  the 
testator  shewed  them  the  codicil,  and  the  last  sheet  of  ids  willy  and 
sealed  both  before  them.  C.  then  took  each  of  them  up  seyerally,  as 
his  act  and  deed  for  the  purposes  therein  mentioned.   Then  the  "wit- 
nesses attested  the  same  in  the  testator's  presence,  but  never  saw 
the  first  sheet  of  the  will;  nor  was  that  sheet  produced  to  them  / 
nor  was  the  same  nor  any  other  ptferv^n  the  table  ;  both  the  sheets 
of  the  will  were  found  with  the  codicil  in  the  testator's  bureau, 
after  his  death ;  all  wrapped  up  id  one  piece  of  paper ;  but  the  two 


Sect.  13.     TfUls  inteirupted  and  resumed.  1®^ 

were  not  a  resumption  and  continuation  of  the  former, 
but  a  distinct  act  and  disposition  by  way  of  codicil^  it 
might  operate  as  a  republication  of  the  will  as  to  lands, 
if  both  the  will  and  codicil  were  attested,  respectively, 
according  to  the  statute ;  but  if  the  will  were  not  so 
executed  and  attested,   the  codicil  would  not  help  the 


sheets  of  the  will^ere  not  pinned  together :  and  the  question  upon 
th^e  facts  was  whether  this  will  was  duly  executed  according  to  the 
statute  of  frauds  ? 

After  three  seyenil  arguments  before  the  court  of  King's  Bench^ 
and  one  argument  before  ail  the  judges  in  the  Exchequer  Chamber, 
Lord  Mansfield  deliyered  the  judgment.  His  Lordship  said,  that 
the  question  made  at  the  trial,  and  submitted  by  the  case,  as  it 
stood,  turned  upon  the  solemnity  of  the  execution,  and  they  were 
of  opinion,  that  the  due  execution  of  this  will  could  not  be  come 
at,  in  the  method  wherein  the  matter  was  then  put ;  that  if  this 
were  considered  as  a  special  Terdict,  they  thought  it  zsas  defeciive" 
hf  found  as  to  the  point  of  the  legal  execution  of  the  will.  But  that 
erery  presumption  ought  to  be  made  by  a  jury  in  favour  of  such 
a  will,  when  there  was  no  doubt  of  the  testator's  intention,  and 
that  they  all  thought  the  circumstances  sufficient  to  presume^  that 
the  first  sheet  was  in  the  room ;  and  that  the  jury  ought  to  have 
been  so  directed  ;  but  upon  a  special  yerdict,  nothing  could  be  pre- 
sumed ;  therefore,  they  were  all  of  opinion,  that  it  ought  to  be 
tried  oyer  again ;  and  if  the  jury  should  be  of  opinion,  thai  it 
V(U  then  in  the  room^  they  ought  to  find  for  the  will  generally, 
and  they  ought  to  presume  from^the  circumstances  proyed  that  it 
90$  then  in  the  room. 

The  case  of  Lea  o.  Libb  was  also  on  a  special  yerdict,  and, 
therefore,  no  facts  could  be  presumed  ;  but  it  does  not  seem 
that  the  case  afforded  the  same  ground  of  presumption,  as  that  of 
Bond  V.  Seawell,  in  which  last  case  there  were  three  witnesses^  if 
any,  to  the  whole  will,  for  the  question  was  not  as  to  the  comple*- 
ment  of  witnesses,  but  whether  the  whole  will,  (the  first  sheet  not 
haying  been  seeii  by  them,)  was  covered  by  the  attestation ;  where- 
u,  in  Lea  v.  Libb^  it  vras  necessary  to  make  the  will  and  codicil 


126  Making  and  ptAHikif^  Wilk.      Chjup.  I. 

defect,  although  it  had  the  requisites  of  the  statute, 
for  what  was  bad  in  its  creation,  could  not  be  made 
good  by  any  thing  ex  post  facto,  and  the  operation  of  a 
codicil^  where  it  is  a  republication^  is  only  to  set  up 
the  will  in  its  original  state  and  efficacy,  making  it, 
as  far  as  it  is  efficient  in  itself  by  the  solemnities  of 
its  execution  and  legal  compass  of  expression,  reach 
to  the  date  of  the  codicil,  and  embrace  intermediate 
'    acquisitions. 

Thus  a  testator ""  devised  his  lands  to  trustees  and 
their  heirs,  in  trust  for  maintaining  and  providing 
for  the  poor  scholars  of  a  college  in  Cambridge,  and 
for  other  charities,  and  the  will  was  written  with  his 
own  hand,  but  had  no  witnesses,  and  afterwards  he 
made  a  codicil,  which  was  duly  executed  and  subcrib- 
ed  by  four  witnesses,  wherein  he  recited  and  took 
notice  of  the  will.  And  one  of  the  questions  in  the 
case  was,  whether  the  codicil  was  a  good  publication 
of  the  will  within  the  statute  of  frauds  ?  It  was  con- 
tended on  behalf  of  the  devisees,  that  the  codicil, 
taking  notice  of  the  will,  and  being  duly  executed, 
made  the  will  valid  in  the  same  manner  as  if  it  had 
been  affixed  to  the  will  at  the  execution  thereof,  for 
the  law  would  construe  it  as  a  part  of  the  will,  and 
its  being  laid  in  a  diiSerent  place  signified  nothing. 

*  Attorney  General  o.  Barnes,  2  Vem.  597.  Prec.  in  Ch.  870* 


one  instrument,  before  the  attestation  conld  be  beld  sufficient,  for* 
to  neither,  and  to  no  part  of  either,  were  there  three  witnesses  ; 
and  if  they  were  distinct  instruments,  it  seems,  according  to  th« 
authorities,  that  each  ought  to  hare  been  attested  bj  three  witness- 
es, to  bate  been  Talid  within  the  statute. 


Sect.  13.   Wills  interrupted  and  resumed.  127 

But  it  was  held^  that  the  will  was  void^  for  though 
there  were  three  subscribing  witnesses  to  the  codicil, 
yet  that  would  not  support  the  wUL 

This  difference  between  the  relation  which  a  codi-  of  the 

dinerence 

oil  bears  to  a  will^  once  completed  according  to  the  between  a 

I  •  1  -■    •         1         writing  in 

then  existing  intention^  and  that  which  subsists  be-  continua- 

1       .  *  i»  A'       ^     M  tion of  a 

tween  the  interrupted  stages  of  one  entire  testamen-  wiii  form, 
tary  act^  is  not  difficult  to  understand  as  a  proposi-  ^^a  re^' 
tion^  though  very  difficult  to  explain  by  example^  or  uoa/^^* 
apply  in  practice.     Upon  this  distinction^  however, 
win,  it  seems,  depend  the  question,  whether  or  not, 
the  first  act  of  testamentary  disposition  will  require 
to  be  executed  and  attested  according  to  the  sta- 
tute. 


But  whether  the  subsequent  writing  be  considered 
as  a  republication  by  way  of  codicil,  or  as  the  con- 
clasion  of  something  already  begun,  as  in  the  case 
just  mentioned  of  Carleton  v.  Griffin,  it  appears  quite 
clear,  upon  the  principles  of  Habergham  v.  Vincent^ 
already  discussed,  and  the  doctrines  of  other  cases, 
ttmt  such  subsequent  writing  to  be  effectual  to  pass 
land,  must  be  executed  and  attested  as  the  statute  di- 
rects, in  the  case  of  devises  of  lands. 


It  was  early  decided  that  a  will  of  lands  was  irood  '^^t  th^ 

•'  ^  subscript 

where  the  three  witnesses  subscribed  their  names,  at  tion  of  th^ 

witnesflei 

several  times,  without  being  present  at  oncei  toge-  need  not  ' 
ther^.    And  though  the  witnesses  must  subscribe  the  that  they 
will  in  the  presence  of  the  testator,  it  is  not  neces-  thetesta- 
sary  that  in  such  subscription  notice  should  be  taken  sence.'^* 
of  the ^^f  of  its  having  been  done  in  the  presence  of 

*  Fktf m.  486.  Anon.    3  Cha.  Ca.  109.  Anon. 


130  Making  and  pubUthing  WWm.     Chap.  I. 


Section  XIV. 
QjMlificatum  of  Witnesses. 

IN  Hudson's  case^  reported  in  Skinner  %  it  was 
proved  that  the  witnesses  had  been  dealt  with ;  upon 
which  it  was  urged  by  the  counsel^  that  if  the  wit- 
nesses were  not  to  be  believed^  then  there  would  not 
be  three  witnesses  to  the  will^  and  so  no  will  within 
the  statute  ;  to  which  Chief  Justice  Pemberton  an- 
swered, that  if  there  were  three  witnesses  to  a  will, 
whereof  one  was  a  thief,  or  person  not  credible,  yet 
the  words  of  the  statute  being  satisfied,  and  he  hav- 
ing collateral  proof  to  fortify  the  will,  he  would  di- 
rect the  jury  to  find  it  a  good  will.  By  which  it 
should  seem,  we  ought  to  understand  his  Lordship  to 
mean,  that  if  there  was  nothing  at  the  time  of  the 
attestation  to  impeach  the  competency  of  the  witness- 
es,  they  must  be  regarded  as  credible  witnesses  at 
that  time,  within  the  proper  interpretation  of  the  word 
credible,  as  used  by  the  statute.  But  if  a  witness  be 
convicted  of  felony,  and  so  rendered  infamous,  at  the 
time  of  his  subscribing  the  will,  it  seems  not  to  have 
been  doubted,  but  that  the  will  was  invalid,  for  defect 
of  a  sufficient  attestation. 
^^  ^  Crimes  which  stigmatize  a  man  with  infamy,  when 
qualify,  convicted  thereof,  such  as  treason,  felony,  conspi- 
racy at  the  suit  of  the  crown,  perjury,  forgery,  bar- 
ratry, attaint  of  false  verdict,  and  which  disqualify 
him  for  giving  evidence  upon  a  trial  in  a  court  of 
justice,  disqualify  him  also  for  becoming  a  subscribe 


Sect.  14.        QuaHficatian  of  Witn^$e9:  131 

inr  witness  to  a  wilP.     It  seems^  indeed^  to  have  J***^*'"- 

^  nuny  of  the 

been  formerly  a  notion,  that  every  offence  for  which  «^«ce,and 

•'  "^  not  of  the 

a  man  had  been  caused  or  even  sentenced  to  be  set  jwmrtmAtf, 

.  .11  n    t        '    i*  n    t  which  dii- 

in  the  pillory^  on  account  of  the  infamy  of  the  pu*  qualifies. 
nishment^  rendered  hkn  incapable  of  giving  testi- 
mony ^ ;  but  more  modern  cases  have  established^ 
that  the  infamy  of  the  erime  only^  and  not  the  infa- 
my of  the  punishment,  is  the  ground  of  disqualifi^ 
cation  ;  and  according  to  the  present  doctrine^  per- 
sons who  have  suffered  an  infamous  punishment^  un- 
less the  oflence  for  which  it  was  inflicted  on  them^ 
was  of  the  species  of  crimen  falsi,  or  other  crime 
of  an  infamous  nature^  are  not  disabled  from  giving 
their  testimony  in  a  court  of  justice,  however  much 
their  credit  with  the  jury  may  be  affected  by  such  a 
&ct.  Before  the  statute  of  the  thirty-first  of  thii 
King*,  persons  convicted  of  petit  larceny  were 
judged  not  to  be  credible  witnesses  to  attest  a  will 
under  the  statute  of  fra^rds.  And  in  the  case  where- 
in this  was  held,  the  rule  was  also  laid  down  in  strong 
and  clear  terms,  that  it  is  the  crime  and  not  the  pu- 
nishment which  makes  a  man  infamous,  and  vitiates 
his  testimony*. 

If  a  man  be  sentenced  to  the  pillory  for  a  treason- 
able libel,  or  slanderous  words  on  government,  he  is 
not  rendered  incapable  of  becoming  a  witness  in  court, 
and  is  therefore  a  credible  witness  to  a  will ;  but  if 
he  be  convicted  of  barratry  *,  which  is  an  infamous 

^  Com.  Dig.    tit.    Temoigne.         *  Pendock  v.  Mackioder,  Wil« 
A.  2.  les,    665.  2  Wils.   18%.      And 

*  Co.  Litt«  6.  b.  see  Rex  v.  Ford,  3  SaUi.  690. 

*  Bjr  sttt.  31  Geo.  3.  c.  35,  it     5  Mod.  15. 

iseucted,  that  no  person  shall         ^The  oiTence   of  stirring  up 
be  ao  incompetent  witness,  by    snits  and  quarrels    among  His 
f^^toB  of  A  contiction  of  petit    Majesty's  subjects* 
larceny. 

&  2 


133  Making  and  publishing  Wills.     Chap.  I 

offence y  tbon^h  he  be  sentenced  only  to  be^ned^  he 
is  rendered  incompetent  as  a  witness  in  courts  and 
unqualified^  it  is  conceived^  as  a  credible  witness^  to 
attest  under  the  statute'.  Ideots  and  madmen^  and 
children  under  the  age  of  common  knowledge^  vrho 
are  incapable  of  discerning  or  estimating  truths  are 
clearly  in  a  state  of  legal  incompetency  to  prove  a 
fact^  and  therefore^  can  never  be  regarded  as  capable 
of  attesting  a  wil)^  so  as  to  answer  what  the  statute 
intends  by  such  attestation.  And  generally^  I  appre- 
hend^ it  may  safely  be  concluded^  that  whatever  in* 
capacitates  a  man  as  a  witness  at  common  law^  is  an 
objection  ta  the  sufficiency  of  his  attestation  as  a  cre- 
dible witness^  within  the  meaning  of  the  statute;  for 
The  word  '  Credible'  in  the  place  in  which  it  stands  in  this  sta- 
H  ia  used     tute^  cannot  well  be  received  in  any  other  sense  than 

bythe&ta-  i  i     .         • 

lute  must    *  competent  ;*  the  word  in  its  popular  sense  being  in- 

Btoodinthe  Capable  of  any  constant  test  or  standard^  according  to 

MByctfttt  which  a  testator  could  make  his  choice  of  witnesses 

with  any  confidence  in  the  validity  of  their  attestation. 

Upon  the  same  principle,  if  the  competency,  after 
being  lost,  has  been  restored  before  the  attestationj 
the  credit  required  by  the  statute  has  also  been  re- 
established, and  the '  attestation  will  be  good.  Thua 
the  King's  pardon,  after  a  conviction  of  perjury,  or 
other  offence  at  common  law,  qualifies  the  party  to 
attest  a  will,  though,  as  it  should  seem,  it  would  be 
otherwise  in  the  case  of  a  conviction  of  perjury,  on 
the  statute  of  5  EI.  c.  9  (1).     And  such  restoration  to 

•  Charter  r.  Hawkins,  3  Lev.  426.    Rox  v.  Ford,  2  Salk.  690. 


.  (1)  If  a  man  be  conTicted  of  perjury  upon  the  statute,  he  can* 
not  be  restored  to  credit  by  the  King's  pardon  ;  for  by  the  statute, 
it  Is  part  of  the.  judgment,  that  the  conrict  be  infamonSy  and  I0&9 

•  3 


Sect.  14,       Qualifieation  of  Witnesses.  133 

oompeteacy  would  come  too  late,  as  I  apprehend, 
between  the  time  of  attestation  and  examination  in 
court  (3), 


tbe  credit  of  his  testimony;  nothing  therefore  but  areyersal  of  tho  Ofthequft- 
jndgment,  or  a  statute  pardon  will,  in  that  case,  suffice  to  restore  **f  ^^'*^? 
the  competency.     Rex  v.  Crosby,  2  Salk.  689,  and  Rex  v.  Ford,  testing  wit« 
ibid.  690.     3  Salk.  155.  S^^ivu" 

(2)  By  the  laws  of  the  empire,  those  persons  only  were  capable  ^*^' 
of  attesting  a  will,  who  were  themselves  legally  capable  of  making 
a  will.  No  persons  under  puberty,  or^  insane,  or  mute,  or  deaf, 
or  prodigal  interdicted  the  use  of  his  own  property,  or  such  as  the 
law  had  judged  reprobate  or  infamous,  or  had  rendered  intestable, 
could  be  admitted  as  witnesses  to  a  will.  I.  2. 10. 6.  D.  28. 1.  20. 
Neither  could  women  be  witnesses  to  regular  or  perfect  wills :  tha 
law  admitting  them  in  all  matters,  whether  citil  or  criminal,  whea 
the  nature  of  the  case  was  such  that  other  evidence  could  not  be 
obtained,  but  nt)t  when  there  was  a  choice  of  testimony,  as  in  mak- 
ing wills,  and  solemnizing  other  public  acts.  Their  testimony  was 
admitted  in  proof  of  a  fact,  but  not  to  give  validity  to  a  soiemqi 
instniment.  See  this  particularity  of  the  civil  law  explained,  and 
the  whole  of  this  title  of  the  Institutes  ^  qui  testes  esse  possuni ' 
well  commented  upon  by  Vinnius,  edit.  Hein.297. 

The  witnesses  by  the  civil  law  must  be  credible,  and  idoneous, 
d  the  time  of  the  will's  being  made,  and  according  to  the  humanity 
of  that  system,  as  well  as  of  our  own,  every  one  was  presumed  to 
be  fit  as  a  witness,  unless  the  contrary  was  made  to  appear.  D.  22. 
5. 2.  It  is  to  be  observed  too,  that  ali  tlve  witnesses  ought  to  be 
fit,  or  idoneousj  for  the  whole  will  was  rendered  null  and  void  by 
the  insufficiency  of  anj  one  of  the  witnesses.  C.  6.  23. 12.  unless  a 
codicillary  clause  were  added,  that  if  it  were  not  valid  as  a  will, 
it  should  be  valid  as  a  codicil. 

If  a  roadman  attested  in  a  luctd  interval,  his  attestation  was  good, 
aad  so  was  that  of  a  prodigal,  if,  before  attesting,  he  had  returned 
orf  honos  mores.  The  integrity  and  freedom  of  the  witnesses  was  a 
great  point  in  the  imperial  law ;  in  so  much,  that  no  person  could 
be  a  witness  to  a  testament,  who  was  under  the  power  of  the  tes- 
tator; and  though  any  number  of  persons  might  be  admitted  wit- 
MiStts  oat  of  the  same  family,  to  a  will  in  which  the  family  was 
Dot  iateretted,  yet  if  a  son  of  a  family  gave  away  his  military  es« 


134  nMaking  and  publishing  Wills.      Chap.  I. 

By  the  law  of  Rome  no.  fueres  scriptus  or  appointed 
heir  could  be  admitted  a  witness  to  the  testament  by 
which  he  was  so  appointed^  nor  could  the  testimony 
of  any  one  who  was  in  subjection  to  such  heir^  or  of 
his  father^  to  whom  he  himself  was  in  subjection^  or 
of  his  brothers^  if  they  were  under  the  power  of  the 
same  father^  be  admitted ;  but  the  testimony  of  le^* 
taries^  and  of  those  who  were  allied  to  them,  or  in 
subjection  to  them,  was  admissible^ ;  which  was  a 
doctrine,  not  perfectly  agreeable  to  the  general  rule. 
of  ^he  civil  law,  that  no  one  should  be  permitted  to 
give  testimony  in  his  own  cause'.  Nor  is  the  con- 
sistency of  that  rule  saved  by  the  reason  giveh  for  the 
admission  of  such  testimony,  viz.  that  legataries  were 
particular  and  not  universal  successors,  and  that  a 
testament  might  be  valid  without  them ;  whereas  the 
appointment  of  an  heir,  was  of  the  essence  and  con- 
stitution of  a  perfect  testament  (3),  and  formed  the 

*  1. 2. 10- 10, 11.  ••  Cod.  4.20. 10. 


tate,  or  peculuanj  after  leaTing  the  army,  neither  the  father^  nor 
aoj  one  under  the  power  of  the  father,  could  be  a  witness  to  the 
testament.  In  excuse  fey*  which  rules  of  exclusion,  the  extent  of 
the  paternal  authority  among  the  Romans  should  be  remembered  ; 
and,  indeed,  so  adjusted  to  one  another  do  the  seteral  parts  of  tbe 
system  of  the  Roman  jurisprudence  appear  to  be,  that  the  student 
will  have  considered  them  with  little  advantage  in  a  view  to  the  it- 
lustration  of  such  of  our  owp  laws  as  have  been  copied  from  them, 
or  are  in  affinity  with  them,  unless  he  has  found  time  and  possessefi 
curiosity  to  make  that  great  work  of  human  policy  a  distinct  aadL 
specific  branch  of  bis  studies. 

(3)  The  exactest  definition  of  a  Roman  testament  ha9  beeia    ' 
thought  to  be  this — ike  tqjpoinimeni  of  an  execui^r  or  teMtamenimr^ 
heir  J  made  according  to  the  formalities  prescribed  by  lam*    Domat* 
lib.  1. 1. 1.  sect.  1.  and  see  D.  28.  5. 1. 


Sect.  14.       Qualification  of  Wilnenses.  1S5 

principal  feature  of  distinction  between  that  and  a 
codicil  (4)^  or  a  donatio  causa  mortis. 

In  the  spiritual  courts  of  this  kinficdom.  to  which  or themit 
the  sole  cognizance  of  the  validity  of  wills  belongs,  ntaai  and 
where  they  relate  to  personal  estate^  the  rule  always  law  conrti^ 
was,  that  no  legatee  could  give  his  testimony  in  foro  witness 
tantradictorio,  in  support  of  the  validity  of  the  wil)^  t^o^  dl^ 
till  he  had  released  his  legacy  or  received  the  value 
thereof,  and  in  case  of  payment,  the  executor  of  the 
supposed  will  was  called  upon  to  release  all  title  to  any 
fdture  claim  upon  such  legatee,  who  might  otherwise 
be  obliged  to  refund  if  the  will  were  set  aside :  (5)  The 
same  rule  prevailed  in  our  courts  of  common  law  with 


(4)  There  is  no  difference  in  our  law,  as  to  publication^  between 
eodiciU  and  wilh;  bnt  codicils  are' said  by  Justinian,  nullum  solem* 
mtaiem  ordinationis  desiderare :  which  Vinnius  comments  upon  with 
disapprobation,  as  not  being  consonant  to  the  Theodosian  code ; 
tod  complains  of  the  jejuna  quorundam  distinctio  inter  solemnUaiem 
ordmaiionis  et  probationis.  Heineccius,  however,  maintains  the 
distinction  thus  :  In  testamentis  condendis  iestibus  opus  erat  ialibut 
^ttbuscum  oUm  fueral  testamenti  f actio  in  comitOs  calatisy  quia  Jure 
velusiissimo  lex  erat  populi  suffragiis  perlatUj  Jure  novo  solemnis 
wumc^iatio  lueredUaiis.  Omnia  ergo  hie  solemnia.  At  codicilli 
erani  epistolas,  Quis  epistolis  testes  adhibet  ?  quis  in  Us  solemnita* 
tern  requirit  ?  valebat  hujusmodi  epistoluy  etiam  non  obsignata,  dum 
de  ejus  fide  constaret :  quia  enixw  voluntatis  preces  ad  omnem  sue* 
ussionis  spedem  porrectte  videbantur.  Testes  ergo  adhihebantur  ah 
&,  fvt  nunaq^ativejidei  commitiebant.  Posiea  autem  in  serais  eo* 
dkHUs  iniestaiorum  testtum  opus  erai  prtssentia  per  L,\>C>  Theod. 
de  test,  et  codidlL  non  solemnitatis  causa,  sed  ut  testantium  success 
stones  sine  aliqua  cqriione  serventur.  Ergo  non  solemnUatis  causa 
adhibendiy  sed  probationis  causa.  Nee  aliudvoiuit  Theodosius  sbsn^ 
m  omnibus  eodtdllis  testes  requisivit.     Fin.  Com.  lib.  2.  tit.  U* 

(5)  In  the  late  case  of  Lees  v.  Summersgiil,  17  Vez.  jan.  608* 
the  statute  U  6.  2.  c.  6.  which  has  made  such  release  unnecessary, 
by  making  Toid  the  legacy  given  td  the  subscribing  witness,  was 
held  to  extend  to  wills  of  personal  estate* 


136  Mmng  ai(d  ^kH^mng  Witts.     Ohap.  I. 

respect  to  the  iriadtnis^iHty  Uf  the  testimony  of  a  dert* 
see  6r  person  tienefited  urrder  a  will  of  real  estate^  to  es- 
tablish its  validity ;  and  it  appears  from  the  case  of 
Anstey  t?.'Dowsing'\  that,  if  a  legatee,  \rho  was  a 
witness  to  a  will,  reftised  either  to  renounce  or  to  re- 
ceive «  sum  of  mon^y*in  Heu  of  his  legacy,  he  could 
hot  be  compelled  by  law  to  devert  himself  of  his  in- 
terest', and  while  his  interest  continued,  his  testimony 
was  tiselc^s.      ' 


♦  r 


J.  T/mAdeWs  will,  by  wliich  he  disposed  of  his  real 
estate,  and  gave  ibonk  J.  H.  and  his  wife,  1(M.  each 
for  mourning,  with  an  annuity  of  201.  to  E.  H.  the 
wife  Of  J.H.  "The  will  was  attested  as  the  statute 
dfrecis,  -^by  three  witnesses,  whereof  J.  H.  was  one. 
The  legacies,  and  satisfaction  for  the  annuity  were 
tender^'  and  refused.  And  the  question  upon  the 
special  verdict  was,  whether,  or  not,  the  will  was  well 
att'e^t^d  according  to  the  statute  of  frauds.  The 
judges  of  the  King's  Bench  were  unanimously  of 
opinimi,  that  a  right  to  devise  lands  depended  upon 
the  powers  given  by  the  statutes,  the  particulars  of 
which  w^re,  that  a  will  of  lands  fihould  be  in  writings 
signed  and  attested  by  three  credible  witnesses  in  the 
presience  of  the  devisor:  that  these  were  checks  to 
prevent  men  from  being' imposed  upon  :  and  certaiuly 
meant  that  the  witnesses  to  a  will,  (who  are  required 
to  be  ctedMt)  should  not^be  persons  entitled  to  any 
benefit  under  thrit  wrll.  And  that,  therefore^  J-H, 
was  not  a  good  witness '. 

■ 

It  seems  also,  that  the  question  was  started  in  this 
case,  whether  a  beaefit  to  a  witness  at  the  time  of  bis 

*  Vjd.  Harris,  Inst.  Just.  lib.      \  Strange  1254. 
9.tit.  10.5. 11. 


Sect.  14.     •  {^lificatian  of  tViine^Bes.  l^*" 

attestation,  sliould  annul  iiis  testimony^  though^  at^  or 
after  the  testator's  death,  hesfiQiild  become  disinter- 
ested by  a  release  of  his  legacy,  or  the  receipt  of  the 
value  thereof,  and  that  it  was  held^  that  the  condition 
of  the  witness^  at  the  time  of  his  attestation,  must  be 
regarded ;  and  that  if  interested  then^  he  could  not 
be  a  good  witness.  The  doubts  and  objections  agi« 
tated  in  this  and  in  other  cases "^,  occasioned  the  sta- 
tute 25  G.  2.  c.  IG"".  to  be  passed,  whereby  the  con- 
tests concerning  the  force  and  obligation  of  the  word 
^  vredihle'  in  respect  to  the  attestation  of  pers0ns  be- 
nefited under  the  will^  were  finally  composed. 

The  inquisitive  student,  however,  will  still  recur  to  Oftheop- 
the  perusal  of  Lord  Mansfield's^  and  Lord  Camden's  senament 
arguments^  on  the  opposite  sides  of  the  question,  con-  Lords 
cerning  the  import  and  exigency  of  the  words  ^  credi-  anTcam- 
ble  witnesses/  used  by  the  statute.     He  will  find  Lord  impirt^and 
Mansfield  strenuously  of  opinion^  that  though  a  wit-  Jhe^^o^^^ 
ness  n)ight  be  entitled  to  a  benefit  under  a  will  at  the  th^^t'otc". 
time  of  the  attestation,  yet  if  he  became  disinterested 
b^ore  hi&  examination,  his  testimony  was  restored^       «^ 
and  the  will  was  supported  by  his  attestation.     In  his 
Lordship's  judgment,  the  word  '  credible'  could  have 
no.  meaning  beyond  ^competent/  without  leading  to 
great  absurdities ;  and  in  this  general  exposition  of 
the  word,  Liord  Camden  coincided,  but  their  difference 
was  this :  Lord  Mansfield  would  understand  '  com- 
petene^'  to  imply  nothing  more  than  what  was  tacitly 

■  Hilliard  v.  JenniDgs,  Com.  *  Wyndham  v.  Cbetwynd,   I 

Rep.  91-  and  7  Bac.  Abr.  edit.  Burr.  414. 

Gwyllim,  329.  Price  v.  Lloyd,  ^  Ilindon  v.  Kersey,   4  Barn. 

1  Vcz.  503.  2  Vez.  374.  Eccl.  L.  97. 
*  See  this  stat.  in  the  Appendix. 


BS  Making  and  pubUshmg  WUb.     Chap.  I. 

tantained  in  the  word  witne$8  hy  itself^  (no  man 
being  a  witness  unless  he  is  competent  to  give  his 
testimony);  so  that  it  appeared  to  his  Lordship 
that  the  competency  was  to  be  seen  and  adjudged  of 
«<  the  time,  and  with  reference  to  the  time  of  exami-- 
nation  in  court.  Whereas  according  to  Lord  Camden 
the  credibility,  i.  e.  competency,  must  be  regarded  aa 
it  stood  at  the  time  of  the  attestation.  By  Lord 
Mansfield's  explanation  of  the  force  of  the  word  ere* 
dSble,  it  became  a  dead  letter^  and,  therefore,  hia 
Lordship  reduced  himself  to  the  necessity  of  support- 
ing his  argument,  by  supposing  the  word  ^  credible,'^ 
to  have  slipped  in  through  the  inadvertency  of  the 
frtLmers  of  the  statute,  which  he  denied  to  be  the  pro- 
duction of  Lord  Hale,  any  further  than,  perhaps,  aa 
being  compiled  from  some  of  his  loose  notes  unskil- 
fully digested. 

His  Lordship  adverted  to  the  rule  of  testimony  in 
the  Elcclesiastical  Courts,  and  at  the  common  law, 
where  a  release  payment  or  tender  made  the  testimony 
of  the  witness  good.  Nice  objections  of  a  remote  in- 
terest, which  could  not  be  paid  or  released,  though 
they  hold  in  other  cases,  were  not  enough  to  dis* 
qualify  a  witness  in  the  case  of  a  will.  Thus,  pa- 
rishioners^ be  said,  might  prove  a  devise  to  the  poor 
of  the  parish  for  ever.  Interest  was  no  positive  dis- 
ability ;  it  only  afforded  a  preemption  of  Has,  and 
on  that  ground  rendered  a  witness  incompetent ;  but 
still,  it  was  only  presumption,  and  presumptions  only 
stood  till  the  contrary  was  made  apparent ;  if  the 
bias  were  removed,  the  presumption  ceased.  That 
nothing  could  be  more  reasonable  than  to  allow 
this  objection  of  interest  to  be  pargied  by  maxter 


Sectt.  14.         Qkal^ation  4>f  ffitnesses.  139 

i^sequent  to  the  attestation,   imd  previous  to  the 
trial. 

Lord  Camden^  on  the  other  hand^  in  the  case  of 
Hindoo  v.  Kersey,  argued,  that  the  word  '  credible' 
imported  a  necessary  and  substantial  qualification  of 
a  witness  ixt  the  time  of  his  attestation.  And  that  if 
the  witness  was  incompetent  at  that  time,  nothing  ex 
post  facto  could  restore  the  validity  of  his  attesta- 
tion ;  neither  could  such  devisee,  or  person  taking  a 
benefit  under  the  will,  be  received  as  a  witness  for 
other  devisees  under  the  same  will :  the  objection 
was  irremovable,  and  the  whole  instrument,  as  far  as 
it  concerned  real  property,  was  void. 

He  was  of  opinion,  that  the  novelty  introduced  by 
the  statute  was  the  attestation,  the  method  of  proving 
which  was  left  standing  upon  the  old  common  lawprin-* 
eiples ;  as  that  one  witness  might  prove  what  all  the 
three  had  attested ;  and,  though  that  witness  must  be 
a  subscriber,  yet  that  was  owing  to  the  general  com- 
mon law  rule,  that  the  best  evidence  must  be  pro« 
duced.  He  considered,  therefore,  that  the  statute 
bad  principally  in  view  the  quality  of  the  witnesses 
at  the  time  of  the  attestation  (6).     That  a  will  was 


(0)  In  Brograye  9.  Winder,  9  Vez.  jun-  036^  an  objection  was 
taken  to  the  competence  of  one  of  the  witnesses  to  the  will,  as 
being  interested  at  the.  time  of  his  examination  ;  but  as  he  had  no 
interest  at  the  time  of  the  execution  of  the  will  and  death  of  the  tes^ 
tfdoTj  the  Lord  Chancellor,  without  argument,  held  him  to  be  a 
good  witness. 

It  may  be  as  well  to  dbserte  here,  that  a  legatee  may  be  a  wit* 
nessia  impeachr  a  will,  as. in  such  a  case  he  swears  against  his  own 
interest    Salk.  691.    And  before  the  statute  25  G.  3.  c*  6«  he  was 


liO  Mdkin^  arid  publishing  Wills.     Chap.  T. 

th*  only  instrument  which  required  to  be  attested 
by  subscribing  witnesses  at  the  time  of  execution; 
whHe  leases,  marriage  agreements,  declarations,  and 
.  assignments  of  trusts,  were  only  required  to  be  in 
writing  and  signed.  Those  were  all  transactions  oj 
health,  and  protected  by  valuable  considerations,  and 
antecedent  treaties.  The  power  of  a  court  of  equity 
was  thought  sufficient  to  meet  every  fraud  that  could 
be  practised  in  those  cases ;  but  a  will  was  often  exe- 
cuted suddenly  in  a  last  sickness,  and  sometimes  in 
the  article  of  death ;  and  the  great  question  to  be 
asked  in  such  case  was  this, — was  the  testator  in  his 
senses  when  he  made  the  will  "^  ?  and  consequently 
the  time  of  the  execution  was  the  critical  minute 
which  r^uired  guard  and  protection.  An  act  so  so- 
lemn, and  often  calling  for  a  laborious  recollection 
and  investigation,  executed  at  such  a  time,  was  preg- 
nant with  suspicion.  What  then,  his  Lordship  said, 
was  the  employment  of  the  witnesses?  It  was  to  in- 
spect and  judge  of  the  testator*s  sanity  before  they  at- 
tested, and  if  he  was  not  capable  they  ought  to  refuse 
to  attest.  In  other  cases,  the  witnesses  \yere passive  ; 
here  they  were  active^  and  in  truth  the  principal  par- 
ties to  the  transaction.     The  testator  was  intrusted 

TO  THEIR  CAR^. 

The   design  of  the  statute  was  to  prevent  wills 
from    being    made,    which     ought   not    to    have 

^  Vid.  Doe.  on  dem*  Walker  o*  Stephenson,  3  Esp.  Ni.  P.  Ca. 

354. 


mim^mm^^^mmm 


a  good  subsi^bing  witness  where  he  took  the  same  legacy  bj  a  for- 
mer will,  for  then  it  was  indifferent  to  him  which  will  preYailed, 
1  Bnrr.  427.  Lord  Ailesbury's  case* 


Sect.  14.       Qualification  of  WUnesses,  111 

been  made^  and  always  operates  silently  by  pir, 
testacy.  It  is  true^  continued  the  Chief  Jtistice^  the 
design  of  the  statute  was  to  prevent  fraud ;  and 
though  no  suspicion  of  fraud  appeared  in  the  case 
before  him^  yet  the  statute  had  prescribed  a  certain 
method,  which  every  one  ought  to  pursue  to  prevent 
fraud'.  As  to  the  minuteness  of  the  interest^  as  there 
was  no  positive  law  which  was  able  to  define  the 
quantity  of  interest  which  should  have  no  influence 
upon  men's  minds^  it  was  better  to  leave  the  rule  in- 
flexible than  to  permit  it  to  be  bent  by  the  discretlan 
of  the  judge. 

. » 
Both  these  cases  came  before  the  respective  judges^ 
after  the  statute  25  G.  2.  c.  6.  had  passed ;  and  that 
of  Wyndham  v.  Chetwynd  appears  to  have  fallen  pre- 
cisely within  the  second  clause  of  that  statute^  the 
subscribing  witness  being  a  creditor^  and  the  will 
having  charged  the  debts  upon  the  land  ;  probably^ 
however^  the  suit  had  commenced  in  Chancery  before 
the  6th  of  May^  1751^  and  so  came  within  the  8th 
section  of  the  same  statute^  which  left  the  cases^  which 
were  in  litigation  before  that  time^  to  be  adjudged 
and  determined  as  if  that  statute  had  never  been 
made. 

The  case  of  Doedem.  Hindon  t\  Kersey,  in  which, 
the  devise  being  to  trustees  to  dispose  of  the  rents  to  the 
poor  of  a  township,  the  subscribing  witnesses  were 
interested  as  possessing  property  rated  to  the  poor  in 
that  township,  was  clearly  not  within  the  statute  25 
G.  2.  c.  6. 

\  Vid.  ia  I^a  9.  Libb^  Carth.  37.  tli«  words  of  (h«  court* 


142  Making  and  publishing  WUls.     Chap.  I. 

It  will  occur  to  the  attentive  reader^  hpwever^ 
that^  although  Lord  Mansfield  was  supported  by 
all  his  brothers,  and  Lord  Camden  was  over-ruled 
by  those  who  sat  with  him,  the  legislature  shewed 
their  sense  of  the  subject  to  agree  with  the  policy 
and  principles  of  Lord  Camden's  reasoning,  by  ex- 
tinguishing the  interest  of  the  subscribing  witness^ 
where  he  took  an  interest  as  devisee  or  legatee, 
at  the  moment  of  the  attestation.  By  this  pro- 
vision of  the  legislature  by  their  second  act,  they 
seem  to  have  declared  their  intention  by  the  first ; 
and  still,  in  their  alteration  of  the  law,  regarding  the 
time  of  the  attestation  as  the  particular  juncture  to 
which  the  qualification  related,  they  have  made  the 
interest  of  the  individual  a  sacrifice  to  the  will. 


Sjbct,  15.       Marnier  of  making  the  Jtte$tation.  !& 


Section  XV. 

Time  and  Manner  of  making  the  Attestation. 

UPON  a  feigned  issue^  tried  in  the  Court  of  Com-  Timtuu 
men  Pleas^  the  question  was^  ivhether  the  will  was  thetntator 
made  according  to  the  statute  of  frauds  ?  for  the  tes-  ttewitaMf 
tator  had  desired  the  witnesses   to  go  into  another  hrdldactu^ 
room^  seven  yards  distant^  to  attest  it^  in  which  there  ^eia^ 
was  a  window  broken^  through  which   the  testator  ^^ 
might  see  them.    The  Court  said^  the  statute  re- 
quired attesting  in  his  presence^  to  prevent  obtruding 
another  will  in    the  place  of  the   true   one.     It  is 
enough  if  the  testator  might  see,  it  is  not  necessary 
that  he  should  actually  see  them  signing ;  for^  at  that 
rate,  if  a  man  should  turn  his  back^  or  look  off,  it 
would  vitiate  the  will.     Here  the  signing  was  in  the 
yiew  of  the  testator ;  he  might  have  seen  it,  and  that 
is  enough.     And  they  compared  it  to  the  case,  where 
the  testator  lay  sick  in  bed,  with  the  curtain  drawn  \ 
while  the  witnesses  subscribed. 

On  a  trial  at  bar,  where  the  question  was,  whether 
the  witnesses  to  a  will  had  pursued  the  directions  of 
the  statute  of  frauds,  in  the  manner  of  subscribing 
their  names,  it  was  resolved,  that  where  the  testator 
lay  in  a  bed  in  one  room,  and  the  witnesses  went 
through  a  small  passage  into  another  room,  and  there 
set  their  names  at  a  table  in  the  middle  of  the  room, 
and  opposite  to  the  door,  and  both  that,  and  the  door 
of  the  room  where  the  testator  lay,  were  open,  so 

*  Shim  9.  Glascock,  2  SaUu  6^8* 


144  Making  and  puhlkkmg  WiUs.     Chap.  I. 


that  he  might  see  them  subscribe  their  names  if  be 
would^  though  there  was  no  positive  proof  th^t  he 
did  see  them  subscribe  their  names^  there  was  a  suffix 
cient  subscribing  within  the  meaning  of  the  statute; 
because,  it  teas  possible  that  the  testator  might  see 
them  subscribe  ;  and  the  court  held^  that  if  the  wit^ 
nesses  subscribed  their  names  in  the  same  room  where 
the  testator  lay,  though  the  curtains  of  the  bed  were 
drawn  close,  it  was  a  good  subscribing  within  this 
statute  *•  (1). 
• 
A  similar  doctrine  was  maintained  by  Lord  Thur- 
low  in  the  court  of  Chancjsry,  in  a  case  circumstanced 
as  follows "":  Honora  Jenkins  having  a  power^  though 
covert,  to  make  a  writing  in  the  nature  of  a  will,  or- 
dered the  Mfill  to  be  prepared,  and  ^ent  to  her  attor- 
ney's oiBce  to  execute  it.    Being  asthmatical^  and  the 

^  I)aTj  and  Nicholas  v.  Smith,  3  Salk.  395« 
'  Casson  v.  Dade,  1  Bro.  C.  C.  99. 


•^m^^^mmt    I     >     I   it         ■   ^■ii  ■ ■»<       ■  ■      ■■  m' 


(1)  The  notion  of  the  citiI  lawyers  was  more  rigid  and  cantioas 
in  this  respect  The  attestation  ought  to  be  in  eompedutestaioris ; 
and  further,  nan  est  ^atiSj  ut  quidam  (radideruMt,  testes  oculaiosesse^ 
sitestatar^ntpsinumvideani'jjbrtevelo^  out  cortma  mterjedaton^ 
^ecium  adimentey  licet  vo^m  ejus  audiant:  sednecesse  est  utfaciem 
ems  videant^  ne  quajraus  Jiat^  alio  forte  suhomalo^  qui  vocem  testa* 
torts  imitando  simulet.  Vinn.  Com,  1.  lib.  %  tit,  10.  And  Vin- 
nins  was  of  opinion,  thfiit  a  blind  man  (de  quo  nthU  traditum  est) 
could  not  be  a  WitAess  b^caufie  he  could  not  satisfy  the  law,  whick 
required  that  Ike  leelator  should  be  seen  bj  the  witnesses,  and  that 
the  J  ihoaM  be  able  te  recpgpiz^  the  testator's  signature.  The  Eiig- 
lish  law,  however,  is  clearly  otherwise  in  this  respect,  as  an  ackoow* 
ledgment  of  the  signing  has  been  held  sufficient,  as  appears  aboTC  ; 
and  it  has  been  adjudged,  that  it  is  not  necessary  to  the  executioa 
by  a  blind  man  that  the  will  should  be  read  over  to  him  in  the  pre. 
sence  of  the  subscribing  witnesses.  Longchamp  d.  Fish,  2  N.  R.  4 1 5* 


1  »  "  * 

Sect.  15.  Manner  of  making  the  Attestation.  145 

office  very  hot^  she  retired  to  her  carriage  to  execute 
the  will^  the  witnesses  attending  her ;  after  having 
seen  the  execution  they  returned  into  the  office  to  at- 
test  it ;  and  the  carriage  vfag  put  back  to  the  window 
of  the  office^  through  which,  it  was  sworn  by  a  per- 
ion  in  the  carriage,  that  the  testatrix  might  see  what 
passed.  Immediately  after  the  attestation,  the  wit- 
ness took  the  will  to  her,  which  she  folded  up  and  put 
into  her  pocket.  The  Lord  Chancellor  inclined  very 
strongly  to  think  the  will  well  executed,  and  the 
above-mentioned  case  of  Shires  and  Glascock,  was 
relied  upon  as  an  authority.  Mr.  Arden  pressed  for 
an  issue,  but  finding  the  Lord  Chancellor's  opinion 
very  decidedly  ^^ainst  him,  he  declined  it. 

In  Broderick  v.  Broderick  ^  where  the  testator  de- 
vised lands  to  J.  S.  and  his  heirs,  and  duly  subseribed 
his  will  in  the  presence  of  three  witnesses,  who  went 
down  stairs  into  another  room,  and  attested  the  will 
there,  which  was  out  of  the  presence  of  the  testator, 
the  relief  afforded  to  the  heir -against  a  release  ob- 
tained from  him  by  the  devisee,  under  a  false  asiur- 
ance  that  the  will  was  suffidently  executed,  vras  a  ne- 
cessary consequence  of  the  opinion  of  the  Chancel- 
lor*, that  the  devise  was  void  fofvrant  of  an  execu- 
tion conformable  to  the  statute.  And  it  vma  in  vain 
contended  for  the  devisee,  that  the  will,  as  to  the 
devisor,  was  executed,  and  that  the  form  of  subscrib- 
ing in  the  presence  of  the  testator,  w»s  only  di- 
rected by  the  statute  of  frauds,  to  prevent  a  rash 
disinberiaon  of  the  heir ;  but  that  since  the  execution 
•f  the  will  was  fully  proved^  though  the  circumstan- 

MP.  Wms.  339.  *  Lord  Harcourt 


146  Making  and  publishing  Wills.     Chap.  I. 

ce*  re(5[uired  by  the  statute  had  not  been  observed, 
yet  it  was  the  plain  intention  of  the  testator,  that  the 
devisee  should  hftve  the  estate ;  and  that  the  devisee 
h^vin^  the  legal  estate,  it  would  be  hard  to  take  it 
from  him  in  equity,  and  by  those  means  to  dispose  of 
the  Estate  against  the»intent  of  the  testator  from  the 
devisee,  for  want  of  a  ceremony,  when  the  end  of  that 
ceremony  was  answered,  by  its  being  made  to  ap- 
pear, undoubtedly,  that  the  testator  did  sign  and 
seal  this  will 

Nor  will  the  subscription  of  the  witnesses  in  the 
same  room  always  satisfy  the  statute,  or  necessarily 
imply  it  to  be  in  the  testator's  presence  ;  for,  as  was 
observed  by  Lord  Chancellor  Macclesfield,  in  Long- 
ford V.  Kyre ',  it  might  be  done  in  a  corner  of  the 
i*ooM  in  a  clandeMine  and  fraudulent  way,  and  then 
it  Would  not  be  n  Subscribing  in  the  testator's  pre- 
sence. But  his  Lohlship  further  said,  that  as  it  was 
swbrn  by  the  witnesi,  that  he,  subscribed  the  will  at 
the  testators  request,  and  in  the  same  room,  that 
couM  not  be  fraudulent,  and  was  well  enough. 

In  &  htt  cMCi  in  the  ittng's  Bench,  it  was  laid 
ddWh  bytheChi^f  Justice,  that  it  was  not  necessary 
that  the  devisor  ^ould  actually  see  the  witnesses 
Subscribe  :  as  in  fttvour  of  attestation  it  was  to  be  pre- 
sumied,  that  if  the  testator  might  see  he  did  see.  But 
his  Loi^dship  added,  that  if  we  get  beyond  the  rule 
Which  requires  that  the  witnesses  should  be  actually 
within  reach  of  the  organs  of  sight,  we  shall  be  giv- 
ing effect  to  an  dttestatiott  out  of  the  devisor's  prfe- 

'  1  P.  Wms.  740. 

■  Doe  lessee  of  Wright  v.  Manifold^  1  Maole  and  Selwjn,  294. 


Sect.  15.    Manner  afmaJeing  the  Attestation.  147 

sence^  as  to  which  the  rule  is^  that  when  the  devisor 
cannot^  by  possibility^  see  the  act  doings  it  is  done  out 
of  his  presence. 

Thus^  therefore^  the  law  upon  this  subject  seems 
lufficiently  settled  upon  this  distinction^  that  if  the  at- 
testing witnesses  subscribe  the  will  in  such  a  situation 
with  respect  to  the  testator^  as  that  it  was  not  possible 
for  him  to  have  seen  the  act  done  by  them^  such  will 
is  void  as  to  real  estate  for  the  defect  of  solemnity  in 
its  execution ;  but  if  their  situation  was  such  as  to 
afford  the  testator  the  opportunity  of  seeing  them 
subscribe^  if  he  chose^  their  attestation  under  such 
circumstances  will  be  good  and  v^id^  although  in 
point  of  fact  they  may  not  have  been  seen  by  the  tes- 
tator in  the  very  act  of  subscribing  their  names. 

The  mere  corporal  presence,  however,  of  the  tes-  i* »  »«* 
tator,  unless  his  mind  and  faculties  also  are  present,  that  the 

.  r  '   testator  ii 

will  not  satisfy  the  statute  on  this  point ;  for  there  corporally 

*  present,  he 

mast  be  a  mental  knowledge  of  the  fact,   so  that,  as  must  pos- 
a  subscription  clandestinely  made  in  a  corner  of  the  cuities  so 

.  ,      1  X  1  •  «*  to  have 

same  room  with  the  testator  was  not,  on  this  account,  a  mental 
a  sufficient  attestation,  so  neither  would  such  sub-  of  the  fact. 
scription  in  the  same  room  suffice,  if  the  percipience 
and  intelligence  of  the  testator  were  gone  so  as  to 
constitute  it  an  act  done  without  his  knowledge.  On 
this  principle  was  founded  the  decision  of  Right  v. 
Price  ^^  in  which  case,  the  form  of  an  attestation  was 
written  on  the  second  sheet,  and  the  witnesses  put 
their  names  to  it  in  the  room  where  the  testator  lay  ; 
but  he  was  in  a  state  of  insensibility :  and  the  ques- 
tion was,  whether  this  will  was  duly  executed  for  pass* 
ing  laBds  according  to  the  statute  of  frauds  ? 

*  Doug.  241. 


14S  Making  and  publUhmg  WUU.      Cumf.  h 

In  support  of  the  will  it  was  argaed,  that  insensibi- 
lity was  something  short  of  deaths  and  if  the  testator 
was  alive^  it  could  not  be  said  that  Uie  will  was  not  at- 
tested in  his  presence.  That  the  question  was^  whe« 
ther  the  testator^  having  done  all  that  was  necessary 
on  his  part^  and  the  attestation  having  been  made  ac- 
cording to  the  words  of  the  statute^  a  fiiir  transaction 
should  be  set  aside^  because  a  formality  required^  ac- 
cording to  an  implied  intention  of  the  legislature^  has 
not  been  complied  with  ;  that  it  did  not  appear  but 

0 

that  the  testator  mighty  by  possibility^  have  opened 
his  eyes^  while  the  witnesses  were  subscribing 
their  names ;  which^  according  to  the  law  as  laid 
down  in  Shires  and  Glascock^  would  have  been 
sufficient. 

But  the  court  said^  that  they  would  lean  in  sup- 
port of  a  fair  wili^  and  not  defeat  it  for  a  slip  in  form, 
where  the  meaning  of  the  statute  had  been  complied 
with ;  this  was  the  principle  of  Shires  and  Glascock's 
case^  and  other  cases  of  that  sort.  But  the  case  then 
before  the  court  was  not  one  where  there  was  a  mea- 
suring cast  and  room  for  presumption.  All  the  wit« 
nesses  knew^  at  the  time  of  the  attestation^  that  the 
testator  was  insensible.  He  was  a  log^  and  totally 
absent  as  to  all  mental  qualities.  That  it  was  usoal^ 
in  precedents  of  wills^  to  say^  that  the  witnesses  sub- 
scribed at  the  request  of  the  testator ;  that  indeed 
was  not  expressly  required  by  the  statute^  but  the 
practice  shewed  the  general  understanding,  and  that 
the  nature  of  the  thing  implied  a  request.  The  at- 
testation  in  the  testator's  presence  was  as  essential  as 
his  signature^  and  all  must  be  done  while  he  was  in 
a  capacity  to  dispose  of  his  property.  In  this  case, 
the  testator  could  not  know  whether  the  will  that  he 


Sect.  15.     Manner  of  making  the  Alteration.  149 

had  begun  to  sign  was  that  which  the  witnesses  attest* 
ed  ;^  he  was  dead  to  all  purposes  or  power  of  convey- 
ing hid  property. 

It  seems  not  to  have  been  judicially  decided^  whe-  Whether 

,  1  1    *  1  1         •!  •  anacknow- 

ther  an  acknowledgment  by  a  subscribing  witness  to  ledgmeDt 
the  testator  of  his  hand-writing  to  the  attestation,  scHbing 
would  be  sufficient.     In  the  case  of  Risley  v.  Tem-  the  testa, 
pie',  the  facts  were,  that  the  testator  lying  sick  in  be^^ 
bed,  made  his  will,  and  signed,  sealed,  and  published  ^^^^^ 
it,  in  the  presence  of  three  witnesses,  but,  being  tired, 
ordered  them  to  go  and  subscribe  it  in  another  room. 
They  went  into  another  room,  out  of  the  presence 
and  sight  of  the  testator,  and  subscribed  their  names, 
and  then  returned  and  owned  their  names  to  the  tes- 
tator, who  looked  upon  the  will,  and  said,  '  th^  have 
done  well/     But  this  point  was  not  spoken  to  in  the 
case  according  to  the  report. 

It  is  very  plain,  however,  that  to  hold  such  an 
acknowledgment  sufficient,  would  be  in  direct  op- 
position to  the  words  of  the  statute,  which,  though  it 
does  not  by  the  5th  section  require  the  signature  of 
the  testator  himself  to  be  in  the  presence  of  the  wit- 
nesses, does  yet  expressly  direct  the  subscription  of 
the  witnesses  to  be  in  the  testator's  presence.  And 
it  seems  little  to  be  doubted,  but  that,  agreeably  to  the 
greater  regard  for  the  words  of  the  statute,  which  now- 
seems  to  prevail  in  our  courts  of  justice,  such  an  ac-* 
knowledgment  by  a  subscribing  witness,  of  his  hand-' 
writing  to  the  attestation,  made  to  the  testator,  after 
flttkiDg  the  sabscription  out  of  his  sight  and  presence^ 

'  Skin.  107. 


\ 


150 


Making  and  publisking  WiUs.     Chaf.  I. 


woold  be  deemed  an  insufficient  compliance  with  the 
statute. 


That  the 
witnesses 
mav  sub- 
scribe at 
different 
timet. 


It  has  been  shewn^  that  a  testator  may  vrrite,  and 
we  shall  now  make  it  appear  from  the  authorities, 
that  he  may  publish  his  will  at  different  times^  or,  in 
other  words^  that  an  attestation  made  by  the  wit- 
nesses respectively  at  three  different  times,  if  in  the 
presence  of  the  testator,  satisfies  the  law  (3).    The 


(d)  It  Bwy  be  interesting  to  compare  our  own  with  the  citU  law 
upon  this  article.  In  an  early  period  of  the  Roman  jurispmdence, 
it  was  held,  that  a  testament  ought  to  be  niade  uno  coniexiuy  with- 
out any  foreign  act  intenrening,  and  the  witnesses  were  likewise 
required  to  Bttestf  without  separating,  or  CTen  discQntinuing  the 
act  of  subscribing,  till  all  was  complete.  And,  indeed,  it  does  not 
seem  that  the  witnesses  were  erer  released  from  the  necessity  of 
subscribing  at  one  time  and  in  each  other's  presence*  In  favour^ 
however,  of  certain  unayoidable  int^hnptions,  the  Emperor  Josti- 
nian^limited  and  explained  the  generality  with  which  the  rule  had 
been  expressed.  In  the  Sixth  Book  of  the  code,  tit.  23.  M.  th« 
qualification  of  the  doctrine  is  thus  propounded :  cum  anHquUoi  te$» 
iamenia  fieri  voluerU  nuUo  adu  nUeroenienU^  ei  hn^fusmodi  verba* 
rum  compasHio  non  rite.  uUetpreiaia  pene  in  pemidemy  et  iesiem^ 
Hum  ei  tesiameniorum  processerU :  sancimut  in  tempore  ^  teita^ 
metUum  condUur^  vel  codieiUus  nascUuTj  vei  ultima  quadtan  dupo* 
i&io  secundum  pristhwm  observationem  celebralur  (imkU  enm  ex  ea 
pen&ue  immutandum  este  cen$emui)y  ea  fMem  fum  ndnkne  itMev- 
Huia  sunty  nullo  proced^e  modoj  fuqiipe  cmua  mttUisHmaprcpo^ 
ntOy  ea  quw  wperfiua  sunt  mkume  debent  kUercedere.  Si  quid 
uutem  neceisarium  evenerit;  et  ^sum  corpus  labor antis  respidens 
coniigerity  id  esty  vel  vkius  necessarOy  velpotionis  oblatiOy  vet  me- 
dicaminii  datiOy  vet  itnpontioy  quibus  reketii  ^sa  sanUm  tettatorir 
periditatury  vetu  quSf  sleeeaariut  isatmrm  mue  ad  dqfoeitionem  sum 
perfiui  ponderis  immineaty  vel  testatori  vel  testibusy  non  esse  ex  hoc 
eausa  testamentum  subvertendumy  Ikpt  morbus  comitiaUsy  (qaod  et 


S£CT.  IS.     Manner  of  making  the  AtteHation*  HSl 

two  leadiog  cases  to  establish  this  point  are^  Cook  v. 
Fknon8^  and  Jone^  v,  Lake\  The  first  of  which 
cases  was  decided  upon  a  bill  of  review  to  reverse  a 
decree  of  Lord  Nottingham  in  1682^  for  a  sale  of 
lands  subjected  by  the  will  to  the  payment  of  debts. 
The  lands  were  devised  by  the  testator  to  trustees^  and 
their  heirs^  to  set  and  to  farm  let^  and  out  of  the  rents 
(without  saying  profits)  to  pay  his  debts ;  and  all  his 
debts  and  legacies  being  first  paid^  he  gave  the  sur^ 
plus  to  F.  S. 

*  Free.  Ch.  185.  »  2  Atk.  176. 


factum  esse  eofnperimw)  uni  ex  testUms  eoniigerii :  sedeo^  quoad  ur* 
gel  ei  immineiy  repleto^  vel  deposiioj  iterum  soiita  per  testamenii 
fadionem  aditfipleri,  Ei  si  quidem  a  testaiore  cdiquid  Jiat  tesiibut 
pauliaper  separatiSy  cum  coram  his  facere  aliquid  naturale  testator 
erabescat,  iterum  mtrodudis  conseqnerdia  Jactionis  testamenii  ptoce" 
dere. 

The  pluvse  '  uno  contextu'  is  not  to  be  understood  as  relating  to 
tbe  composition  of  the  will,  (which  it  seems  might  he  taken  up  aa# 
prosecuted  at  interrals,  according  to  the  necessary  Interrup^ns  of 
boiiness,  and  as  the  leisure  of  the  party  allowed  ;  as  was  said  to 
be  the  law  with  us,  in  Carleton  p.  Griffin,  above  cited)  but  to  the 
mode  of  publishing  and  solemnizing  the  will,  by  the  formal  nuncu» 
potto  testameniij  or  dedaratio  volurUatis  to  the  witness,  with  the 
ttremonies  of  subscribing  and  sealing  by  them,  and  the  signing  by 
thetestaitor,  which  ought  all  to  be  done  at  one  time,  that  is  to  say, 
Mo  actus  conietiiUf  without  the  intervention  of  any  act  or  business 
fore^  to  the  purpose  which  the  parties  w£re  met  together  upon, 
which,  unless  it  happened  on  the  natural  and  necessary  occasions 
tlloded  to  in  the  passage  from  the  code  above  extracted,  would 
vitiate  the  testament,  as  being  inconsistent  with  tue  solemnity  of 
its  celebration.  Thus  Yinnius  translates  '  uno  conteMu^  into  the 
Greek  by  ima  'vf  ij,  and  aitoMi^ftosj  as  being  applicable  not  to  the 
compositioD  of  the  will,  but  to  the  pnUioation  .of  it ;  whieh  is 
plably  the  sense  of  it,  as  it  stands  accompanied  in  the  text  of  tine 
iastitotes,  ^^  ei  iesies  quidem  eorumqueprmsentiu^  uno  conteitf ii,  tes' 
tornenH  celebrandi  graiiay  ^c." 

2 


152  Making  and  publishing  Wills.     Chai».  I. 

This  will  was  written  with  the  testator's  own  hand^ 
as  was  proved ;  and  was  published  in  the  presence  of 
three  witnesses^  at  three  several  times^  and  they  all 
attested  it  in  his  presence^  but  he  did  not  si^  it  in 
the  presence  of  the  second  witness^  but  only  owned 
the  signing  to  be  his  hand^  and  desired  him  to  attest 
the  willj  as  was  proved  by  that  witness.  The  testator 
died^  leaving  an  infant  heir^  and  the  land  was  decreed 
to  be  sold^  and  no  day  given  the  infant  to  shew  cause 
against  it.  One  of  the  objections  to  the  decree  was — 
that  this  was  no  good  will  within  the  statute  of  frauds 
and  peijuries^  because  not  attested  by  all  Che  wit- 
nesses at  one  time^  and  that  one  of  them  did  not  see 
the  testator  sign^  but  only  hear  him  own  that  it  was 
his  hand. 

But  the  Lord  Keeper  held  a  publication  of  a  will 
before  three  witnesses^  though  at  several  times,  to  be 
sufficient^  and  thought  the  writing  of  the  will  with  the 
testator's  own  hand  (3)^  a  sufficient  signing  within  the 
statute^  though  not  subscribed  nor  sealed  by  him^  but 
doubted  whether  acknowledging  the  subscription  to 
be  his  own  would  suffice  (4). 

In  Jones  v.  Lake^  the  case  upon  the  special  verdict 
was  thus ;  the  testator  signed  and  executed  his  will 
in  December^  1735^  in  the  presence  of  two  witnesses, 
who  attested  the  same  in  his  presence ;  afterwards,  in 


(3)  Acooffding  to  the  Cod^  6.  23. 38.  the  writing  of  the  wUl 
with  the  testator's  own  hand,  dispensed  with  his  signing ;  bat  It 
was  added  as  a  condition,  d  hoc  spedalUer  m  ter^ura  repotuerU^ 
fMri  foe  fiM  wuam  wnftcU;  and  it  dispensed  with  no  other  sdem- 
nity. 

(4)  Thisqmstiott  has  been  abandy  discussed,  and  dtewn  to  have 
been  otherwise  deteimfaied. 

1 


Sect.  15.    Maw/ier  of  making  the  AUestation.  153 

the  year  1739^  he  ivith  hts  pen  went  over  bis  name^ 
in  the  presence  of  a  third  toitne^Sj  who  subscribed  his 
name  in  the  testator's  presence^  and  at  his  request : 
and  the  question  ivas^  whether  this  was  a  due  execu* 
tion  within  the  statute/  For  the  heir  at  law  it  was 
argued^  that  the  statute  requiring  three  witnesses  to 
subscribe  in  the  testator's  presence;  must  intend  they 
$hould  be  all  present  together  ;  otherwise^  there  was 
not  that  degree  of  evidence  which  the  statute  requires ; 
for  an  attestation  of  three  witnesses^  at  different 
times^  has  only  the  weight  of  one  witness.  Wit- 
nesses to  a  will  not  only  attest  the  due  execution  of 
the  will^  but  likewise  the  capacity  of  the  testator  at 
the  time  of  execution.  A  man  may  be  sane  at  the 
time  two  witnesses  attest^  and  insane  when  the  third 
attests.  It  cannot  be  considered  as  a  will^  till  the 
third  witness  has  signed^  for  that  completes  the  act. 
The  will  was  dated  in  1735  ;  suppose  lands  to  be  pur- 
chased after  the  date^  and  before  the  attestation  by 
the  third  witness^  would  the  lands  pass  ?  ''  certainly 
not" 

On  the  other  hand^  it  was  argued  for  the  devisee^ 
that  a  will  executed  before  three  witnesses^  though  at 
three  different  times,  was  good ;  the  statute  not  re- 
quiring they  should  all  be  present  at  the  same  time. 
That  the  requisites  under  the  statute  were^  that  the 
testator  should  sign  in  the  presence  of  three  witnesses 
at  leasts  and  that  they  should  attest  in  his  presence. 
It  would  therefore  be  adding  new  requisites  which  the 
act  did  not  mention^  and  in  effect  be  making  a  new 
law. 

.  The  Lord  Chief  Justice  Lee  said,  the  case  depended 
vpon  the  words  of  the  statute.    The  requiutes  in  the 


154  Making  and  publishing  WiUs.       Chap.  L 


statute^  were^  that  three  witnesses  should  attest 
signing,  but  it  did  not  direct  that  three  witnesses 
should  be  all  present  at  the  same  time.  Here^  said 
the  Chief  Justice^  you  have  the  oath  of  three  attest- 
ing witnesses.  This  is  the  degree  of  evidence  re- 
quired by  the  statute.  And  the  same  credit  is  given 
to  three  persons  at  different  times^  as  at'  the  same 
time.  We  cannot  carry  the  requisites  farther  tlian 
the  statute  directs.  The  act  is  silent  as  to  this  parti- 
cular. It  would  therefore  be  making  a  new  requisite. 
The  signing  is  the  same  act  reiterated.  The  testator 
went  over  his  name  again^  and  declared  it  to  be  his 
last  will.  Judgment  was  accordingly  given  against 
the  heir  at  law. 

The  judges^  in  the  case  of  Ellis  t;.  Smithy "  admitted 
the  authority  of  these  cases^  and  drew  from  them  an 
inference  in  fsivour  of  the  validity  of  the  testator's  ac- 
knowledgment to  the  witnesses  of  his  hand-writing  to 
the  signature  of  the  will.  "  To  strengthen  the  au- 
thorities I  have  already  mentioned^  said  the  Lord  Chief 
Baron  Parker^  I  shall  take  notice  of  the  cases  which 
allow  the  witnesses  to  subscribe  at  different  times ;  and 
I  think  they  support  the  admission  of  the  dedaratioa 
in  question ;  since  the  testator  is  not  supposed  to  run 
over  his  name  before  evei'y  witness^  but  having  signed 
before  one  to  acknowledge  it  only  before  the  rest  (5). 
The  same  conclusion  was  drawn  by  Lord  Chancellor 
Hardwicke^  Sir  John  Strange,  Master  of  the  Rolls^ 

■  J  Vez.  jun.  11, 


(5)  In  Jones  v.  Lake,  (the  last  case  prodaced,)  the  testator  did 
nm  over  kto  aame  i^jain ;  but  the  principle  of  the  deoiaion  implied 
the  iuffidsocj  of  an  attestation,  made  9JL  three  distinct  titaes* 


Sect.  15     Marmtr  of  making  the  Attestation.  15S 

and  Lord  Chief  Justice  Willes.  The  last  of  whom 
observed^  that  the  authorities  not  in  point  supported 
the  decree  more  strongly  than  those  in  pointy  for  they 
aDowed  the  attestation  and  subscription  of  the  wit- 
nesses at  different  times  to  be  good ;  and  the  testator 
is  presumed  to  write  his  name  only  before  one^  and  to 
acknowledge  it  to  be  his  hand  to  the  remaining  two. 
And  in  the  opinion  of  the'  Master  of  the  RoUs^  to  per- 
mit the  witnesses  to  attest  at  several  times^  was  to 
adroit  the  asseveration  of  the  testator  that  it  was  his 
will,  to  be  equivalent  to  signing  it  before  the  witness- 
es ;  to  which  Lord  Hardwicke  added,  that  he  differed 
from  those  who  thought  that  the  cases  which  had  been 
mentioned,  only  supported  the  case  before  the  court, 
by  consequential  reasoning;  he  thought  them  directly 
in  point. 

It  is  to  be  observed,  however,  that  these  decisions, 
in  the  opinion  of  the  whole  court,  went  too  far,  and 
opened  the  way  to  frauds,  and  particularly  the  Chief 
Justice  observed  with  great  force,  that ''  he  had  known 
one  man  swear,  that  he  did  not  see  the  testator  sign, 
and  the  other  two  swear  that  he  signed  it  before  the 
three ;  so  might  one  man  swear,  that  when  he  attested 
the  will,  the  testator  was  insane ;  another,  that  he  was 
lane ;  and  thus  an  inlet  was  given  to  great  frauds  and 
impositions.  But  when  they  attested  it  simul  et  semelj 
they  were  a  check  upon  each  other,  and  such  frauds  • 
were  prevented  (6) ;  nay,  said  his  Lordship,  I  think 


(6)  This  was  certainly  the  doctrine  of  the  cirU  law,  from  which 
the  framers  of  the  statute  in  question  borrowed,  in  making  this 
prorision  for  prerenting  the  forgery  of  wills.  We  have  shewn  that 
the  words  ^  uno  contextu*  related  to  the  complex  ceremony  of  pub- 
lication, which  was  necessary  to  be  done  by  a  conUmud  act.    Th« 


/ 
I 


1 56  Making  and  publishing  With.        Chap.  I. 

a  parol  disposition  before  three,  full  as  solemn:  an  act 
as  a  will  in  writings  attested  by  three  separatim."  He 
admitted^  however^  that  the  decisions  were  the  other 
way^  and  that  the  point  was  established. 


attestation,  therefore,  which  was  an  essential  part  of  the  publica- 
ion,  was  necessary  to  be  done  by  the  witnesses,  stmul  et  semely  at 
the  same  time,  at  the  same  piace,  and  in  sight  of  each  other  ;  not 
meaning,  of  course,  by  the  same  time,  eodem  insianii^  but  uno  actui 
cantextuy  at  one  juncture,  without  break  or  interruption*,  as  the 
text  of  the  Code  (6.  33.  31.)  well  explains  it,  distinguishing  at  the 
same  time  between  the  act  of  making  and  that  of  celebrating  and 
publishing  the  will,  to  which  last-mentioned  act  the  words  ^  uno 
ooniexiu^  are  shewn  to  be  alone  applicable.  In  amnUmt  auiem  tes* 
tamentis  qum  preseniibus  vel  abseniibus  testibtts  didaniur^  tupcT" 
Jluum  est  uno,  eodemque  tempore  exigere  tegtatorem^  et  iesies  adhi^ 
bercj  et  dktare  suum  arbHrium^  ei  finire  testamentum ;  sed  licet 
alio  tempore  didatumy  ecr^umve  proferaiur  testamentum^  suffidet 
uno  [tempore']  eodemque  die^  nullo  actu  [extraneo']  intervenienie^ 
testes  omnesy  videlicet  simul^  nee  diversis  [temporibus']  scribere^  sigm 
nareque  testamentum*  Finem  auiem  testamenti  subscrqUionesy  ei 
sigflocula  testium  esse  decertumus.  This  exactness  with  respect  to 
the  simultaneous  performance  of  the  act  of  publication  was  retained 
out  of  the  citU  law,  or  jus  dviliSy  when  the  civil  and  praetorian 
law  were  reduced  into  agreement,  as  I  have  before  shewn  :  for  the 
efficacious  form  of  a  will,  as  ultimately  established,  was  a  tri- 
partite constitution.  The  necessity  of  witnesses,  and  their  presence 
at  one  and  the  same  time,  was  founded  on  the  jut  cmlis — ^the  md* 
ecr^pUons  by  the  testator  and  the  witnesses  were  enjoined  by  th« 
imperial  constitutions — ^^he  sealing  and  the  number  oi  the  witnesses^ 
were  settled  by  the  edict  of  the  Pretor. 

*  AU  loliemn  legal  acts  and  ceremonies  were  necessary,  by  the 
civil  law,'  to  be  executed  without  interruption,  the  common  phrave 
to  expresf  wbicb  was^  '  uno  contextu  absoM** 


v;i 


1   ,'j     •*  fj 


(    167    ) 


Section  XVI. 

Evidence  of  the  Attestation. 

IT  has  been  already  made  to  appear^  that  a  i¥ill  of 
lands  may  be  sufficiently  established  in  a  court  of  Jus- 
tice^ as  to  the  testator's  signature^  by  proof  of  his  ac« 
Lnowledgment  thereof  It  will  be  proper  now  to  con- 
sider^ what  is  sufficient  proof  of  the  due  attestation  of 
such  a  will^  according  to  the  directions  of  the  statute. 
We  have  seen  that  upon  a  question  before  the  court, 
whether  or  not  it  should  be  left  to  a  jury^  to  determine 
as  to  the  fact  of  a  due  attestation  in  the  presence  of 
the  testator,  where  all  the  witnesses  were  dead,  it  was 
clearly  held,  that  such  question  was  proper  for  the 
decision  of  a  jury,  who  might  found  their  verdict  upon 
mere  circumstances  and  probabilities*. 

In  the  courts  of  common  law,  where  a  will  of  lands  in  the 

courts  of 

IS  produced,  it  is  usual  to  call  but  one  witness  to  prove  commoD 
it ;  but  that  is  said  only  to  be  the  case  where  no  ob-  the  sab- 
jection  is  made  on  the  part  of  the  heir,  who  is  entitled  witaeuef 
to  have  all  the  witnesses  examined,  yet  in  such  case  the^attesuL 
the  heir  himself  must  produce  the  other  witnesses,  for  oSewf  ^* 
the  devisee  need  produce  only  one,  if  that  one  can 
prove  all  that  is  requisite  to  establish  the  validity  of 
the  wilP.     He  must  prove  that  the  testator  signed,  in  Andif  oa 
the  presence  of  himself  and  the  other  witnesses,  or  ses  deny 
that  he  acknowledged  his  signature  to  each  of  them,  turM''ttiir 
and  that  each  of  the  witnesses  subscribed  in  his  pre-  m/|o'^ 

*  Hands  v.  James,  2  Com.  Rep.  590.  Croft  v.  Pawlet,  2  Str. 
1100.     Brace  v.  Smith,  WiUes  1. 

^  GUb.  Eject.  Sect.  8.  HoU  Rep.  742.  Dftyrell  v.  Glucock. 
Boll,  N.  P.  364.    1  Eip.  N.  P.  R^.  301. 


158  Making  and  publishing  Wills.     Chap.  I. 

Jtoncwto  ^^^^^'  Where  the  ivitnesses  have  signed  separately, 
grove  the  as  One  Can  only  prove  his  own  act,  they  ought  all  to 
tionof  the  be  Called.     If  the  two  other  witnesses  be  called  bv  the 

will,  I'll- 

heir,  and  refuse  to  verify  their  attestation,  still  the 
proof  of  their  hand-^writing  will  be  endegh,  if  one  of 
Ihe  three  can  prove  the  other  circumstances  of  the 
execution.  Indeed^  it  has  been  held,  that  if  they  all 
swear  that  the  will  was  not  duly  executed^  the  devisee 
may  yet  go  into  circumstances  to  prove  the  due  ex- 
ecution ^.  And  if  an  attesting  witness  to  a  will  im- 
peach its  validity  on  the  ground  of  fraud,  and  accuse 
other  subscribing  witnesses  who  are  dead,  of  being 
accomplices  in  the  fraud,  it  is  competent  to  the  per- 
son claiming  under  the  will,  to  give  evidence  of  their 
general  good  character*, 

whetiier  It  appears,*  and  with  the  greatest  reason,  that  the 
dence  of    evidence  of  subscribing:  witnesses  ajrainst  their  own 

the  sob-  . 

scribing     attestation  has  always  been  received,  if  received,  with 

witoeflses       .  . 

can  be  re-  the  utmost  rcluctance ;  and  the  courts  have,  on  the 
gainst  their  Other  hand,  been  very  ready  to  admit  counter-testi- 
tation.  ^*  mony  to  establish  the  will  against  such  suspicious  and 
discordant  depositions.  In  Lowe  r.  Jolliflfe*,  which 
was  tried  at  bar,  upon  an  issue  of  devisavit  vel  non 
out  of  Chancery,  the  three  subscribing  witnesses  to 
the  testator's  will,  and  the  two  surviving  witnesses  to 
the  codicil,  and  a  dozen  servants  of  the  testatpr,  all 
swore  him  to  be  utterly  incapable  of  making  a  will, 
or  of  transacting  any  other  business,  at  the  time  of 
making  his  supposed  will  and  codicil,  or  at  any  inter- 
mediate time.  But  this  evidence  was  opposed  by  the 
depositions  of  several  of  the  nobility  and  principal 
gentry  of  the  county  where  the  testator  resided,  who 

'  PEkfl  V.  Ihdmeiing.    Stnmge  1096. 

'  1  Blackst  365,  416.  /     *  ^finrr.  1244> ud  ite  6  Ekit,  19$; 


Sect.  16.      Evidence  of  the  Attestation.  159 

had  frequently  and  familiarly  conversed  with  him, 
during  the  whole  period,  and  some  on  the  very  day  on 
which  the  will  was  made ;  and  also  of  two  eminent 
physicians  who  attended  him,  and  who  all  swore  to 
his  entire  sanity  and  more  than  ordinary  intellectual 
vigour  (1). 

The  counsel  for  the  plaintiff  also  examined  to  the 
like  purpose  the  attorney,  a  person  of  unblemished 
reputation,  who  drew  the  will ;  and  read  the  deposi- 
tion of  the  attorney,  by  whom  the  codicil  was  drawn 
and  witnessed,  (he  being  dead,  and  his  testimony 
perpetuated  in  chancery),  who  spoke  very  circum- 
stantially to  the  very  sound  understanding  of  the 
testator^  and  his  prudent  and  cautious  conduct  in 
dictating;  the  contents  of  his  codicil.  Upon  the 
whole,  it  appeared  to  be  a  very  black  conspiracy,  to 
let  aside  the  will,  without  any  foundation  whatso- 
ever ;  the  defendant's  witnesses  being  so  materially 
contradicted,  and  some  of  them  so  contradicting 
themselves,  that  the  jury,  after  a  trial  of  fifteen 
hours,  brought  in  a  verdict  for  the  plaintiff,  to  esta- 
blish the  validity  of  the  will  and  codicil,  after  an  ab- 
sence of  five  minutes.  Lord  Mansfield  then  declared 
himself  fully  persuaded,  that  all  the  defendant's  wit- 
nesses, except  one,  being  nineteen  in  number,  were 
grossly  and  wilfully  perjured ;  and  called  for  the  sub- 
scribing witnesses,  in  order  to  commit  them  in  court, 
but  they  had  withdrawn  themselves.  A  prosecution 
of  some  of  them  for  perjury"  was  strongly  recom- 
mended by  the  court ;  and  the  three  testamentary 
witnesses  were  afterwards  convicted,  and  sentenced, 
each  of  them,  to  be  imprisoned  for  six  months,   to 


(I)  See  some  obserratioDS  of  Sir  William  Grant,  the  present 
blaster  of  Uie  RollS;  in  Burrows  v.  Locke.  10  Yez.  Junr.  474* 


1 60  Making  and  piMishing  Wills.        Chap.  I. 

stand  twice  in  the  pillory^  with  a  paper  on  their  heads, 
denoting  their  crime,  once  at  Westminster  Hall  Gate, 
and  once  at  Charing  Cross,  and  to  be  transported  for 
seven  years. 

It  is  observable  that,  although  the  testimony  of  these 
subscribing  witnesses  against  their  own  attestation 
was  ultimately  discredited,  no  doubt  was  entertained 
of  their  competency ;  as  was  remarked  by  the  late 
Lord  Chief  Justice  Kenyon,  in  commenting  upon  this 
case,  in  Bent  v.  Baker  (3)  who  entirely  approved  of 
Mr.  Justice  Buller's  distinction  in  this  respect  be- 
tween negotiable  and  other  instruments.  So  that  the 
observation  of  Mr.  Justice  Yates,  in  the  case  of  Alex- 
ander V.  Clayton^  viz.  that  '^  the  witnesses  ought  not 
to  have  been  admitted  to  give  evidence  against  their 
own  attestation,"  seems  to  have  been  too  strong  for 
the  present  doctrine,  or  perhaps  incorrectly  stated 
by  the  reporter. 

It  is  one  thing  to  offer  testimony  to  destroy  the 
validity  of  an  instrument  attested  by  one's  own  sig- 
nature and  subscription,  and  another  tp  deny  the  fact 
of  one's  own  attestation.  Lowe  v.  JoUiffe,  as  above 
cited,  is  an  example  of  the  admissibility  of  the  former 
species  of  testimony  as  well  as  of  its  liabiUty  to  be 
impugned.  It  is  plain,  upon  principles,  that  a  man 
.  ought  to  be  admitted  to  deny  what  appears  to  be 
his  own  attestation ;  for  to  exclude  him  on  a  ground 
of  inconsistency  and  contradiction,  is  to  take  for 
granted  against  him  what  is  itself  a  primary  object  of 

•  4  Burr.  2«4. 


(t)  3  T.  R.  34.  and  see  the  reasons  for  tills  distinction  in  Mr. 
J.  Bailer's  opinion,  pronounced  bj  hin  in  the  same  case. 


S£CT.  16.      Evidence  of  the  Attestation.  (        161  ^ 

proof.  But  it  is  equally  clear^  that  his  denial  may  be 
discredited  and  overthrown  by  the  counter-testimony 
of  the  other  witnesses^  and  that  the  will  may  be  esta- 
blished against  such  a  denial.  Thus  in  the  case  of 
Alexander  v.  Clayton,  mentioned  above,  Mr.  Justice 
Yates  observed,  that  there  were  many  cases  where 
one  of  the  witnesses  had  supported  a  will,  by  swear- 
ing that  the  other  two  had  attested,  though  they  both 
denied  it.  And  upon  the  same  occasion  it  was  said 
by  Lord  IVIansBeld,  ''  that  he  had  known  several 
cases,  both  upon  bonds  and  wills,  where  the  attesta- 
tion of  witnesses  had  been  supported  by  the  evidence 
of  the  other  witness,  against  that  of  the  attesting  wit- 
nesses who  had  denied  their  own  attestation.  Xt 
tvould  be,  added  his  Lordship,  of  terrible  conse- 
quence, if  witnesses  to  wills  were  to  be  tampered 
with  to  deny  their  own  attestation." 

Thus,  therefore,  the  law  appears  to  be  well  settled  [Jlfn^^jfiy* 
and  discriminated  upon  these  important  points  of  evi-  J|°J^",?^" 
dencc  ;  and  it  is  to  be  observed,  that  the  present  con-  LordMam 

*  *  field,  in 

sideration  is  confined  to  the  case  of  subscribinff  wit-  J^'^!!**"*'- 

^  Shelley, 

nesses;  and  that  therefore  there  is  nothing  in  what 
has  been  stated,  or  produced,  which  contradicts  the 
maxim  of  law,  as  it  was  recognised,  or  decided  upon 
in  Walton  and  others  v.  Shelley*,  that  no  man  shall 
be  suffered  to  give  evidevce  to  invalidate  his  own  m- 
9trument ;  nor  does  it  seem  that  Lord  ^lansfield,  in 
pronouncing  his  judgment  in  that  case,  laid  down  the 
rule  with  greater  latitude  than  accords  with  the  set- 
tled distinction,  as  to  the  testimony  of  stibscribing 
witnesses,  above  adverted  to.  **  What  strikes  me," 
laid  his  Lordship,  ^'  is  the  rule  of  law,  founded  upon 

•  1  T.  R.  296. 
M 


169  MalAng  and  publishing  Wills.      Chap.  I. 

public  policy,  which  I  take  to  be  this — that  no  party 
who  has  signed  a  paper  or  deed,  shall  ever  be  per- 
mitted to  give  testimony  to  invalidate  that  instrument 
which  he  has  signed."  Now  it  is  plain,  that  a  sub- 
scribing witness  to  a  deed  or  will,  is  in  neither  case, 
by  force  of  such  subscription,  a  party  to  the  instru- 
ment. 


A  distine-       \x  {g  true,  indeed,  that  the  admission  of  a  subscrib- 
tweenthe   jnff  witucss  to  a  wiU  to  invalidate  ^Aaf  instrument, 

attestation        ^  * 

of  wills  and  forms  a  stronger  case  than  where  such  witness  comes 

oecufly  in 

respect  to    to  dcstroy  the  validity  of  a  deed  which  he  has  attested ; 

the  polat 

under  con-  siucc,  in  the  latter  instance,  he  attested  only  the  exe* 

tideratiooa 

.  ^  cution,  and  not  the  intrinsic  or  general  validity  of 
the  instrument;  but  in  the  former,  -the  testamentary 
capacity  of  the  testator,  as  well  as  his  formal  execu- 
tion, is  verified  by  the  subscription  of  the  witness ; 
not  to  mention  also  that  such  subscription  is  essential 
to  the  constitution  and  perfection  of  the  instrument 
itself,  so  that  in  giving  testimony  against  the  validity 
of  the  will  which  he  has  attested,  he  comes  to  over- 
throw that  which  he  himself  was  actively  and  instru- 
mentally  concerned  in  establishing. 

^<^^«e-       ^*  seems  probable,  therefore,  that  the  consideration 

£bra!^enta'  ^^  these  peculiarities,  belonging  to  the  attestation  of 

12^**^    wills,  suggested  to  Lord  Kenyon  a  foundation  for 

"■■^'       the  resemblance,  which,  in   the  case  of  Adams  v. 

Lingard ',  his  Lordship  appeared  to  thinik  there  ex- 

'     isted  between  the  case  of  an  indorser  of  a  bill  and  a 

subscribing  witness  to  a  will,  as  to  the  admissibility 

of  their  evidence  to  overthrow  the  instrument   to 

Which  iliey  had  given  credit  by  their  signature.     In 

'FtadwNi.PnCl.il7. 


Sect.  16       Evidence  of  the  Attestation*  163 

Adams  v.  Lin^rd^  which  was  the  case^  of  an  indorser 
of  a  bill,  the  late  Chief  Justice  said^  that  he  wished  the 
point  to  be  settled  in  the  House  of  Lords^  being  then 
of  opinion^  that  the  indorser  was  a  witness  proper  to 
be  heard,  and  other  judges  being  of  a  contrary  opi- 
nion. He  then  mentioned  a  case  which  was  before 
Sir  Joseph  .lekyll,  many  years  before,  and  another, 
which  had  been  decided  since,  meaning  that  of  Lowe 
r.  JoUiffe  above  stated,  wherein  his  Lordship  said,  it 
bad  been  determined  at  a  trial  at  bar,  that  three  sub^ 
scribing  witnesses  to  an  instrument  might  be  per- 
mitted to  deny  the  validity  of  it. 

But  when  the  question  came  before  the  court  on  a 
motion  for  a  new  trial  (his  Lordship  still  adhering  to 
his  former  opinion)  it  was  said  by  Buller  J.  that 
''the  case  before  them  was  very  different  from  that 
of  witnesses  to  a  will.  The  indorser  had  passed  that 
negotiable  instrument  to  the  plaintiff  as  a  good  and 
valid  security,  and  it  would  be  attended  with  conse- 
quences most  injurious  to  society,  if  these  securities 
might  be  cut  down  by  the  persons  passing  them ;  it 
was  only  for  two  men  to  conspire  together  to  cheat 
all  the  world."  It  is  remarkable,  that  in  the  much 
considered  case  of  Bent  v.  Baker,  which  was  deter- 
mined three  years  before  that  of  Adams  v.  Lingard, 
Lord  Kenyon  expressed  his  entire  acquiescence  in 
the  distinction  as  to  this  point,  between  negotiable 
instruments,  and  deeds  and  wills. 

The  reader  has  been  shewn  above,  that  the  testi-  Of  the 

proofto  et« 

mony  of  one  of  the  three  witnesses  is  enough  to  prove  taWish  a 

«  will  of 

a  will  of  lands,  in  a  court  of  common  law.     He  will  lands  in 

1    •  1     J  •  I      courts  of 

find  the  same  rule  of  evidence  laid  down  m  early  equity. 
cases  with  respect  to  the  mode  of  establishing  a  will 

n3 


164  Making  and  publishing  WUls.      Chaf.E 

in  the  courts  of  equity.  Thus  in  the  case  of  Longford 
V.  Eyre',  Lord  Macclesfield  makes  the  following*  ob* 
servation  :  '^  The  proper  way  of  examining  a  witness 
to  prove  a  will  as  to  lands^  is,  that  the  witness  should 
not  only  prove  the  executing  the  will  by  the  testator, 
and  his  own  subscribing  it  in  the  presence  of  the  tes- 
tator, but  likewise,  that  the  rest  of  the  witnesses 
subscribed  their  names  in  the  presence  of  the  tes- 
tator ;  and  then  one  witness  proves  the  full  execution 
of  the  will,  since  he  proves  that  the  testator  executed 
it,  and  likewise,  that  the  three  witnesses  subscribed  it 
in  his  presence.*' 

The  8ft.  But  in  the  case  of  Townsend  v.  Ives  ^  which  came 
iiowi5,that  on  about  twenty-five  years  afterwards  in  the  Court 
ne8sw,7f '  of  Chancery,  where  the  bill  was  preferred  by  the 
be'SSmiS^  legatees,  whose  legacies  were  charged  on  the  real 
estate,  to  have  the  will  established,  the  rule  was  pe- 
remptorily laid  down,  that  all  the  witnesses,  if  living, 
must  be  examined,  to  prove  a  will  of  lands.  Thus 
also  Lord  Camden,  in  the  above  cited  case  of  Hin* 
don  V,  Kersey,  in  speaking  first  of  the  method  of 
proof  in  a  court  of  common  law,  says,  "  one  witness 
is  sufficient  to  prove  what  all  the  three  have  attested; 
and  though  that  witness  must  be  a  subscriber,  yet 
that  is  owing  to  the  general  common  law  rale,  that 
where  a  witness  has  subscribed  an  instrument,  he 
must  always  be  produced,  because  he  ts  the  best  ert'- 
deuce.  This  we  see  in  common  experience;  for  after 
the  first  witness  has  been  examined,  the  will  is 
always  read."  But  the  same  judge  speaking  after- 
wards of  the  course  of  the  Court  of  Chancery  in  this 
respect,  expresses  himself  thus:  ''Sanity  is  the  great 

•  1  P*  Wms.  741.  »  1  WLls.  1748. 


Sect.  16.      Evidence  of  the  Attestation.  16S 

fact  which  the  witness  has  to  speak  to,  when  he 
comes  to  prove  the  attestation  ;  and  that  is  the  true 
reason  why  a  will  can  never  be  proved  as  an  exhibit 
viva  voce  in  Chancery,  though  a  deed  may ;  for  th^re 
must  be  liberty  to  cross-examine  to  this  fact  of  sanity. 
From  the  same  consideration  it  is  become  the  invari- 
able practice  of  that  Court,  never  to  establish  a  will, 
unless  all  the  witnesses  are  examined ;  because  the 
heir  has  a  right  to  proof  of  sanity  from  every  one  of 
those,  whom  the  statute  has  placed  about  his  ancestor.'** 

But  if  one  of  the  witnesses  be  dead,  a  will  may  be  if  one  of 
read,  on  proof  of  his  hand- writing,  though  this  must  nessesbe 
be  accompanied  by  positive  and  satisfactory  proof,  ofhtshand* 
that  he  is  dead.      Thus  in  Bishop  v.  Burton  ^  the  m"y*bc 
plaintiff  being  put  to  prove  the  will,  the  proof  was  "**^* 
of  the  hands  of  the  devisor,   and  of  two  of  the  sub- 
scribing witnesses,  who  were  proved  to  be  dead ;  and 
as  to  J.   B.  the  third  subscribing  witness,  the  wit- 
ness deposed,    that   he  was    credibly    informed  'in 
the  country  where  he  lived,  and  believed  it  to  be 
true,  that  he  died  two  years  before,  and  believed  his 
name  subscribed  was  his  proper  hand-writing.     But 
the  Court  was  of  opinion,  that  that  was  not  sufficient 
proof  to  have  the  will  read  in  evidence. 

In  Grayson  v.  Atkinson',  an  obiection  was  made  Whether 
for  the  defendant,  that  one  of  the  witnesses  being  writing 

,  may  be 

beyond  sea,  and  the  others  not  having  sworn  that  the  proved 

'  See  Ogle  t?.  Cook,  1  Vcz.  177.  all  must  be  examined  or  a  reason 
j^lrea  why  any  one  is  not.  And  see  Harris  v.  Ingledew,  3  P.  VVms. 
92.  But  iu  Powell  u.  Cleayer,  2  Bro.  C.  C.  504.  Lord  Thurlow 
said  the  practice  had  been  so ;  but  he  doubted  whether  the  rule 
had  erer  been  laid  down  so  largely. 

*  Comyns  Rep.  614.  »  1  Ve«.  459. 


166  Making  andpublishing  Wills.      Chap.  I. 

where  a     testator  acknowledired  bis  hand-writinff  to  the  third, 

witness  11  o  . 

b^ond  ^ho  was  abroad,  and  there  being  no  proof  about  him, 
the  will  could  not  be  established :  on  the  other  side 
it  was  contended,  that  the  same  credit  was  to  be 
given  to  his  hand-writing  as  if  dead.  But  the  Lord 
Chancellor  Hardwicke  doubted  thereof,  and  said, 
'^  he -did  not  know  that  it  had  been  determined,  that 
the  same  credit  was  to  be  given  to  the  hand-writing 
of  a  witness  beyond  sea,  as  if  dead,  because  it  was 
not  necessary  to  presume  the  impossibility  of  getting 
at  him,  and  he  was  apprehensive  fraud  might  be 
used."  (3) 

In  the  case  of  Lord  Carrington  v.  Payne",  how- 
ever, a  question  was  made,  whether,  one  of  the  wit- 
nesses to  the  will  being  abroad,  in  Jamaica,  it  was 
necessary  to  send  out  a  commission  to  examine  him. 
His  hand- writing  was  proved ;  and  the  other  two 
witnesses  were  examined.  Lord  Alvanley,  then  the 
Master  of  the  Rolls,  held  that  it  was  not  necessary  to 
have  bis  examination ;  but  that  it  was  the  same  as 
if  he  was  dead.  But  his  Honour  seemed  to  found 
this  resolution  on  the  submission  of  the  heir,  who, 
he  observed,  did  not  make  a  point  of  it.  He 
mentioned  a    case,    however,    where    one    of   the 

■■  5  Vez.  jun.  411. 


(3)  To  obviate  the  inconTenience  which  may  arise  from  the 
death  of  witnesses  a  bill  may  be  filed  in  a  court  of  equity  to  per- 
petuate the  testimony,  in  which  the  complainant  prays  leave  to  ex« 
amine  the  witnesses,  to  the  end  that  their  testimony  may  be  pre» 
861  ved  and  perpetuated.  The  object  of  the  bill  is  to  preserre  tes- 
timony for  future  litigation,  and  is  properly  brought  when  the 
party  is  in  undisturbed  possession,  and  where  he  has  no  present 
opportunity  of  proTing  the  will  against  the  heir  at  law. 


Sect.  16.      Evidence  of  the  Attestatum.  1€^ 

witnesses  being  in  India^  it  was  held  not  neces- 
sary, but  very  dangerous^  to  send  the  original  will 
abroad.  And  where^  in  another  case  before  Lord 
Chancellor  Thurlow,  it  was  argued  that  one  of  the 
witnesses  to  the  will  was  abroad^  his  Lordship  said% 
he  doubted  whether  the  rule  had  ever  been  laid  down 
80  largely  as,  that  the  will  could  not  be  proved^ 
without  examining  all  the  witnesses^  although  the 
practice  has  been  to  examine  all. 

This  rule  has  been  relaxed  in  other  instances^  Thehaad* 

writing  of 

where,  to  have  rigidly  adhered  to  it,  would  have  im-  awitnew, 

who  ^'iic6 

posed  impossibilities  upon  persons  coming  into  equity  the  sub- 
to  establish  these  instruments.     ^As,  where  a  witness  luui'becom 

m 

to  a  will  of  real  estate  had  since  become  insane,  ma^be 
proof  of  the  hand- writing  of  such  witness  was  al-  ^"^ 
lowed  •.      And  in  a  very  late  case  at  the  Rolls,  proof 
even  of  the  hand-writing  was  dispensed  with,  in  the 
case  of  an  old  \vill,   which  appeared  by  the  date  to 
have  been  made  30  years  before,  the  testator  having 
been  dead  above  20  years,  and  no  account  being  to 
be  obtained  of    one  of  the  subscribing  witnesses. 
The  hand-writing  of  two  of  the  witnesses  was  proved : 
and  his  Honour  observed,  that  he  did  not  see  how  a  And  in  the 
will  could  be  distinguished  from  a  deed  as  to  this  ©iTfdu,*" 
point ;  only  that  the  former,  not  having  effect  till  the  Tccorat^ 
death,   wanted  a  kind  of  authentication  which  the  e^ofawu' 
other  had.     That  was  from  the  nature  of  the  subject.  "f'J^P'"^^ 
But  he  thought  the  proof  sufficient  in  that  case ;  for  Jj"tir"b6 
in  a  late  case  (3)  in  the  Court  of  King's  Bench,  an  <*»?p«"«<^ 

■  2  Bro.  C.  C.  504.        •  Bennet  v.  Taylor,  9  Vez.  jun.  381. 


(4)  CmiXtffv.  Sefton,  2  East.  183.  where  in  an  action  upon  a 
bond^  eTidence  was  offered  that  diligent  inquiry  had  been  made 


168  JUafdng  and  puhlishittg  Wills.       Chap.  I. 

inquiry  of  just  the  same  kind  was  held  sufficient^ 
which  excluded  the  question.  In  that  case  they 
had  made  all  inquiry^  and  could  hear  nothing  of  the 
witness. 


Section  XVII- 


Personally. 

WITH  respect  to  personal  estate,  excejjt  the 
will  be  made  and  proved  according  to  the  forms  re- 
quired by  the  19th,  20th,  and  31st  sections  of  the 
statute,  to  validate  the  nuncupative  testament^  or 
where  it  i^  the  case  of  soldiers  in  actual  military  ser- 
vice, (who  by  virtue  of  the  23d  section  of  the  said 
statute,  may  still  make  nuncupative  wills  without  the 
necessity  of  observing  the  forms  to  which  nuncu- 
pative testaments  are  subjected  by  the  preceding 
clauses,)  all  testamentary  dispositions  thereof  must^ 
(since  the  statute  of  frauds,  be  in  writing. 


after  one  of  the  subscribing  witnesses,  at  the  places  of  residence  of 
the  obligor  and  obligee,  and  that  no  account  could  be  obtainecl^of 
such  a  person,  who  he  was,  where  he  liyed,  or  of  any  circniii- 
stance  rekting  to  him,  it  was  held  sufficient  to  let  in  proof  of  the 
hand'tcrUing  of  the  other  subicrihing  wiinessy  who  had  since  be- 
come interested  as  administratrix  to  the  oblige^,  and  was  a  plaintiff 
•n  the  record. 


Sect.  17.  Personalty.  169 

The  Ecclesiastical  Courts^  to  whose  jurisdiction  th< 
establishment  of  personal  testaments  appertain^  re^ 
quire  no  ceremonies  in  the  publication  thereof,  or  the 
subscription  of  any  witnesses  to  attest  the  same. 
Swinburn  seems  to  have  considered  it  necessary,  in- 
deed, that  a  testament  of  chattels  should  be  published 
in  the  presence  of  two  sufficient  witnesses*;  and 
Bracton  ^  appears  to  have  held  the  same  opinion  ;  or 
rather,  according  to  Sir  William  Blackstone,  to  have 
copied  implicitly  the  rule  of  the  civil  law.  For  it  is 
not  to  be  doubted,  but,  that  a  will  of  personal  estate, 
if  written  in  the  testator's  own  hand,  though  it  has 
neither  his  name  nor  seal  to  it,  nor  witnesses  present 
at  its  publication,  is  effectual,  provided  the  hand- 
wiling  can  be  sufficiently  proved  ^  And  though  it 
be  written  by  another  person,  by  the  testator's  direc- 
tion, without  even  having  been  signed  by  the  testa- 
tor, if  it  can  be  shewn  to  have  been  made  according 
to  such  instructions,  and  to  have  received  the  appro- 
bation of  the  testator,  it  will  be  effectual  to  pass  the 
personal  estate  ^. 

The  proof  of  the  will  may  be  in  two  forms,  of  9^p™^- 
which  the  one  is  called  the  vulerar  or  common,  the  in  the  com. 

^  mon  and 

other  is  termed  the  solemn  form,  or  form  of  law.     If  »oiemn 

form. 

the  will  be  not  contested,  the  executor  or  administra- 
tor durante  minore  cetate,  or  durante  absentia^  or 
cttrti  testamento  annexo,  may  prove  it  by  his  own 
oath,  or  as  it  is  said,  in  some  dioceses  in  York,  with 
the  additional  oath  of  one  witness,  before  the  ordi- 
nary or  his  surrogate.    But  if  the  validity  of  the  will 

'  Vid.  Swinb.  on  WiUs,  pt.  1.  sect.  3.  *  Lib;  2.  c.  26. 

*  Godolph.  O.  L.  p.  1.  c.  21. 

'  limbery  r.  Mason  and  Hide,  Comyns,  452.   GUb.  Rep.  260. 


170  Making  and  publishing  Wills.    Chap.  I. 

be  disputed^  it  then  becomes  necessary  to  prove  and 
establish  the  will  in  the  solemn  way^  or^  as  Swinburn 
expresses  it^  in  form  of  law ;  that  is^  per  testes,  in 
the  presence  of  such  persons  as  would  be  interested 
if  the  deceased  had  died  intestate.  Two  witneQses 
must  then  be  sworn  and  Examined  upon  interrogatories 
administered  by  the  adverse  party.  Between  which 
two  forms  of  proving  a  will^  there  is  a  substantial 
difference  of  effect,  for  after  an  informal  proof  the 
executor  may  be  compelled  again  to  prove  the  wiD 
in  due  form  of  law,  which  may  be  inconvenient  if 
the  witnesses  are  dead  in  the  mean  time.  The  Exe- 
cutor may,  therefore,  if  he  please,  for  greater  safety, 
if  he  himself  have  an  interest  in  the  will,  elect  to 
have  the  will  proved  in  the  more  solemn  form  *,  and 
in  such  case  he  must  cite  the  persons  who  would  be 
interested  under  an  intestacy,  to  be  present  at  the 
probation  thereof.  If  the  will  is  only  proved  in  the 
common  formy  it  may  at  any  time  within  SO  years 
be  disputed',  but  if  the  solemn  form  be  pursued,  and 
no  adverse  proceedings  are  instituted  within  the  time 
limited  for  appeals,  the  will  is  liable  to  no  future 
controversy  *. 

When  a  will  is  proved  by  the  probation  of  the 
more  formal  or  solemn  kind  above  alluded  to,  the  ci- 
vil law  rule  of  establishing  all  proof  upon  the  testi- 
mony of  two  witnesses,  is  followed  in  our  Ecclesi- 
astical Courts.  And  such  witnesses  must  be  able,  at 
least,  to  depose,  that  the  testator  declared  the  writing 
produced  to  be  his  last  will  and  testament,  unless 
where  the  will  or  codicil  was  written  by  the  testator 

*  Barn.  Eccl.  L.  208. 

^  Godolph.  0.  L.  63.  ^  4  Barn.  Eccl.  L.  WT. 


Sect.  17.  PersanaUj^.  171 

himself ;  in  which  case^  as  has  been  above  observed^ 
the  validity  thereof  may  be  established  upon  proof  of 
the  hand-writing  only,  but  it  ought  to  be  by  the  evi- 
dence of  such  as  have  seen  him  write '^ ;  and  though  of  the  ge» 

Deral  ne- 

this  evidence  ought,  in  general,  to  be  given  by  two  ccssity  for 
witnesses,  yet,  if  there  be  one  subscribing  witness,  nessesto 
who  appears  to  attest  the  fact  of  the  identity  of  the  fact  in  th« 
will,  the  testimony  of  a  single  witness  is  said  to  be  ticai 
sufficient.      And  where   the  will  has  been  wholly 
written  by  the  testator,  and  there  are  corroborating 
circumstances,  the  clear  testimony  of  one  witness  has 
prevailed  in  the  spiritual  court     The  general  neces- 
sity for  the  evidence  of  two  witnesses  is  borrowed 
from  the  Roman  law ;  the  maxim  of  which  is,  that  one 
witness  alone  cannot  be  heard,  or,  in  other  words, 
is  no  witness  at  all '.  ''  Unius  responsio  testis  omnino 
nonaudiatur  (1).*' 

We  have  seen,  that  notwithstanding  the  rule  of  the 
Roman  law,  that  nemo  testis  esse  debet  in  propria  cau- 
8a,  legataries  were  permitted  to  give  evidence  in 
support  of  a  will,  upon  the  distinction  between  par- 
ticular and  universal  successors  ;  but  that  by  the  prac- 
tice of  the  Ecclesiastical  Courts  of  this  kingdom,  no 

^  See  the  case  of  Eagleton  r.  Kingston,  8  Vcz.  jun.  438. 
*  See  the  case  of  Thwaites  v.  Smith,  1  P.  Wms.  13. 


(1)  Cod.  4.  20.  9.  Where  the  Ecclesiastical  Court  proceeds  in 
a  matter  merely  spiritual,  or  confined  to  their  own  jurisdiction,  no 
prohibition  lies,  if  their  proceedings  are  contrary  to  common  law ; 
as  if  they  refuse  the  testimony  of  one  witness.  But  if  they  dis- 
allow the  proof  of  a  temporal  matter,  by  one  witness,  though 
such  temporal  matter  be  incident  to  a  matter  within  their  jurisdic- 
tion, a  prohibition  lies  from  the  temporal  courts.  1  Show.  158, 
172.  Shatter  v.  Friend,  and  see  H.  II.  C.  L.  5th  edit,  and  the  note 
(q)  by  the  EditoK 

2 


173  Making  and  publishing  Wills.     Chap,  h , 

legatee  could  be  received  to  give  his  testimony  to 
'  establish  a  will  of  personal  estate,  until  his  interest 
had  been  removed  by  his  receipt  of  the  value  of  his 
legacy,  or  until  he  had  renounced  it,  and  discharged 
the  executor,* 

9^  **^.,.        But  as  to  the  form  of  the  instrument  itself,  the 

form  pf  the  ^  ^ 

t«»tament.  Ecclesiastical  Courts  are  not  scrupulous.  A  memo- 
randum or  scrap  of  paper,  written  *  by  a  person  in 
contemplation  of  death,  and  with  a  design  to  make 
it  operative  after  that  event,  may  be  proved  in  that 
court  as  testamentary ;  and,  if  so  received,  it  seems 

Determi-    a  court  of  equity  will  support  it.    A  string  of  exam- 

natioDS  of  X       J  ,       -  . 

th«  JEccie-  pies  might  be  cited  to  illustrate  this  observation  ;  many 
Courts  on    wcrc  produccd  in  the  case  of  Limbery  and  Mason  v. 
jrct.    '     Hyde  ;  "*  among  which  that  of  Loveday  v.  Claridge 
is  strong  to  the  purpose. 


\ 


The  testator  intending  to  make  his  will,  pulled  a 
paper  out  of  his  pocket,  and  wrote  down  some  things 
with  ink,  some  with  a  pencil,  and  though  it  had  no 
conclusion,  but  appeared  to  be  a  draft  which  be  in- 
tended afterwards  to  finish,  (for  it  was  not  signed, 
l3ut  had  at  the  end  a  calculation  of  his  effects,  an  ac- 
count of  his  tea-table,  and  an  order  to  pay  a  dividend 
of  stocks  ;)  yet  it  was  held  to  be  a  will. 

Thus  too,  in  a  case  where  a  woman  possessed  of 
considerable  real  and  personal  property,  wrote  a  let- 
ter to  an  attorney,  her  friend,  giving  him  an  account 
how  she  would  dispose  of  the  same,  and  in  her  igno- 
rant way,  added,  ''  please  not  to  put  this  rigmaroU 

*  Vide  supra,  p.  135. 

'  Vid.  Cox  r.  Basset,  S  Vcz.  jun.  158. 

■  Com.  452.  and  see  Downing  v.  Townsend,  Ambler  «80.  sn* 


J 


Sect.  17.  Personalty.  J  73 

» 

in  till  I  find  it  correct — this  only  by  way  of  memo- 
randum in  case  I  should  go  off  suddenly, "  and  the 
testatrix  survived  the  v>^riting  of  that  letter  three  or 
four  months,  but  took  no  further  steps  therein.  Sir 
Geors^e  Hay  was  of  opinion,  that,  under  the  circum- 
gtances,  such  letter  could  not  operate  as  the  will  of 
the  deceased  ;  but  on  an  appeal,  the  Court  of  Dele- 
gates reversed  his  sentence. 

In  CSobbold  v.  Bowes,  a  gentleman  gave  instruct 
tions  to  his  attorney  to  prepare  bis  will  for  the  dispo- 
sition of  his  real  and  personal  estate.     The  will  was 
accordingly  prepared ;  settled  by  the  testator  and  en- 
grossed for  execution  with  the  usual  clauses  of  attes- 
tation.    This  will  was  of  considerable  length,  and  at 
the  left-hand  corner  of  each  sheet  of  paper  was  the 
word  '  witnesses.*     Upon  the  death  of  the  deceased, 
the  will  was  found  with  his  name  subscribed  to  each 
sheet,  and,  opposite  to  the  seal,  on  the  last  sheet, 
bat  not  witnessed.     Dr.  Calvert,  the  then  judge  of 
the  Prerogative  Court,  was  of  opinion,  that  the  de- 
ceased, by  pe lilting  the  clause  of  attestation  to  re^ 
main,  had  bound  himself  down  to  a  formal  execu- 
tion, and  therefore  pronounced  against  the  will ;  but 
on  appeal,  the  Court  of  Delegates  reversed  such  sen- 
tence, and  thereby  rendered  the  will  valid  as  to  per- 
sonal property  (2). 

To  the  same  effect  was  that  of  Wright  v.  Walthoc, 
cited  in  Limbery  v.  Mason',  where  there  were  three 

■  Com.  452. 


(2)  ^-^9  the^e  rases  more  at  large  in  a  note  by  the  Reporter  to  tho 
case  of  Matthews  v.  Warner^  4  Vez.  juD.  200. 


174  JUIaking  and  publishing  Wills.    Chap.  L 

tesfamentary  schedules^  whereof  one  was  without 
date ;  to  the  second  the  words  '  in  witness'  were 
subjoined  ;  and  the  third  concluded  abruptly  ;  yet 
being  written  by  the  testator^  they  were  declared  to 
be  his  will.  In  the  same  manner^  and  about  the  same 
time,  viz.  in  the  year  1711,  in  a  case  of  Worlick  v. 
PoUett,  before  the  Delegates,  where  the  testatrix 
had  sent  for  a  person  to  make  her  will,  and  given 
him  instructions  for  the  same,  and  the  will  was  ac- 
cordingly drawn,  read  to,  and  approved  by  her,  and 
declared  by  her  to  be  her  last  will,  and  three  witness- 
es were  sent  to  see  her  execute,  the  words  signed  and 
sealed  being  already  written,  but  she  died  before  any 
other  execution,  it  was  held  a  good  will  before  the 
Delegates,  who  affirmed  the  first  sentence  which  had 
been  reversed  upon  an  appeal. 

And  again,  in  a  cause  of  Brown  v.  Heath,  deter^ 
mined  in  1721,  where  a  will  of  *real  and  personal 
estate  was  prepared  in  order  to  be  executed,  though 
there  were  several  blanks  in  it,  and  the  testator  died 
before  execution  ;  yet  it  was  held  a  good  will  of  the 
personal  estate,  and  though  more  was  intended  to  be 
done,  yet  it  was  adjudged  that  it  should  be  good  for 
what  was  done. 

But  the  later  determinations  at  Doctors  C!om- 
mons  seem  tending  to  establish  a  stricter  doctrine. 
It  now  appears  to  be  agreed,  that  if  a  testator 
leaves  an  instrument,  which,  upon  the  face  of  it, 
carries  evidence  of  an  intention  in  the  framer  to 
perfect  it  by  some  further  solemnity,  which  he  died 
without  having  superadded,  having  had  afterwards 
sufficient  time  and  health,  and  recollection  to  com- 
plete it,  such  paper  may  be  inferred  not  to  have  been 


Sect.  17.  Personalty.  175 

intended  to  operate  as  it  stood^  and  the  omission 
to  perfect  it  may  ground  a  presumption  of  a  change 
of  mind  in  the  deceased.  Thus^  also,  where  a  per- 
son had  written  a  paper,  purporting  to  be  a  disposi* 
tion  of  his  property,  to  which  a  clause  of  attestation 
was  added,  but  not  filled  up,  sentence  has  been 
pronounced  for  an  intestacy  upon  an  inference,  from 
this  omission,  of  change  of  intention. 

Griffin  v.  Griffin  (3),    determined  at    the    Com- 
mons a  few  years  ago,   was  decided  upon  similar 
principles.     Richard  Griffin  executed  a  testamentary 
paper,  dated  27th  September  1777.     On  the  18th  of 
January  1789,  he  began  a  paper,  and  having  ^vritten 
no  more  than  the  commencement  of  what  he  meant  to 
do,  being  called  away  to  dinner,    he  locked  up  th« 
paper.     On  the  27th  of  the  same  month  he  died  sud- 
denly, while  sitting  on  the  bench  as  a  justice  of  the 
peace.     The  questions  were,  whether  this  unfinished 
paper  was  a  revocation  of  the  former  paper  executed 
in  1777 :  or,  whether  it  was  to  be  established  substan- 
tively, and  conjunctively  with  the  former  paper.     It 
was  determined,  that  the  unfinished  paper  could  have 
no  effect ;   tlie  testator  having  lived  eight  days  after 
making  it,  in  health  and  capable  of  business ;  and  not 
having  concluded  it,  the  presumption  of  law,  even  if 
there  had  been  no  other  paper,  would  have  .been,  that 
he  never  meant  to  finish  it ;  or  that  it  was  intended 
only  as  a  draft  for  consideration  ;    and  the  case  was 
itill  stronger  as  there  was  an  executed  paper. 


(3)  Cited  in  Mattliews  v,  Warner,  4yez.  jua.  197.  note  (a)  and 
tee  99  parU  Fearon  6  Vsz.  jun.  644. 


176  Making  and  publishing  With.     Chaf.  V 

The  same  doctrine  is  recognized  by  Lord  Eldon, 
in  the  late  case  of  Coles  v.  Trecothic^  who  thus  ex- 
presses himself  on  the  point :  ''  The  observation  is 
just^  that  as  to  personal  estate^  if  it  appear  upon  the 
will,  that  something  more  was  intended  to  be  done, 
and  the  party  was  not  arrested  by  sickness  or  death, 
that  is  not  held  a  signing  of  the  will/'  It  seems, 
therefore,  to  be  now  understood,  that  not  erery  scrap 
of  paper  which  a  man  writes  in  contemplation  of 
Of  the       death,  making  mention  of  intended  dispositions  of  his 

principle  , 

oo  which    personal  property,  will  be  received  in  the  Eccltsias- 

the  Coaits      .  r      i        .^ 

act  lA  re-    tical  Court  as  testamentary  ;  but  it  must  appear,  and 

rejecting    that  from  the  paper  itself,  and  not  from  extrinsic  evi- 

papertas    dence,  that  the  writer  intended  the  paper  to  operate 

JJy.  *      as  it  stood  when  it  was  written,  without  contemplating 

any  farther  act  to  be  done  to  give  to  it  its  perfection 

and  full  authenticity ;  and  this  intention,  every  such 

paper,  if  it  contains  dispositions  of  personal  property 

prospectively  to  the  decease  of  the  party,  will  be  held 

to  import,  unless  by  its  mode  of  expression  or  manner 

of  execution,  it  discloses  a  suspended  intention  in  the 

party  framing  it. 

But  the  further  act  intended  to  be  done,  must 
be  such  as  denotes  a  suspension  of  the  actual  in- 
tention to  make  an  operative  disposition.  In  the 
case  of  the  will  of  William  Huntingdon,  the  late 
dissenting  minister  of  Providence  Chapel  in  Gray's- 
Inn-Lane,  an  attorney  had  taken  down  the  dispositions 
of  his  property  from  the  mouth  of  the  testator,  and 
afterwards  read  them  over  to  him,  and  the  same  were 
approved  by  him,  and  a  fair  copy  directed  to  be  made 

•  QVea.jun.  ^9, 
3 


Sect.  17.  Personally.  I7t 

and  brought  to  him  the  next  morning  to  be  ei[ecuted 
as  a  will,  but  the  testator  died  in  the  course  of  the 
night.  Dr.  Nicholl  held  this  circumstance,  of  the 
direction  to  the  attorney  to  make  a  fair  copy,  and 
bring  it  next  morning  to  be  executed,  as  conclusive 
of  his  having  fully  made  up  his  mind  on  the  subject 
of  his  will,  and  accordingly  pronounced  for  the  vali-  t 

dity  of  the  testamentary  paper,  and  refused  the  ap- 
plication on  the  part  of  the  next  of  kin,  to  have  the 
costs  paid  out  of  the  estate. 

It  seems  hardly  necessary  to  say,  (the  proposition 
being  implied  in  what  has  gone  before,)  that  the  paper 
must  appear  to  be  written  with  the  actual  design  of 
disposing  after  death  of  the  property  in  question. 
There  must  be  the  animus  testandi,  which  is  rendered 
in  the  Touchstone ^  by  the  expressions  of  '^  a  mind 
to  dispose — ^a  firm  resolution  and  advised  determina- 
tion to  make  a  testament ;  for  it  is,  says  that  book, 
the  mnd,  not  the  words^  which  doth  give  life  to  the 
testament."  Therefore,  continues  the  same  author, 
"  if  a  man  rashly,  unadvisedly,  incidentally,  jestingly, 
or  boastingly,  and  not  seriously,  write  to  say,  that 
sach  a  one  shall  be  his  executor,  or  have  all  his  goods, 
or  that  he  will  give  to  such  a  one  such  a  thing ;  this 
is  no  testament,  nor  to  be  regarded"  (4).     Upon  the 

'  404. 


(4)  A  case  recently  decided  at  the  Commons,  raised  the  .question 
of  the  animus  testandi  upon  a  rery  singular  state  of  facts.  It  was 
ft  proceeding  relative  to  the  will  of  T.  N.  deceased,  an  attorney, 
which  was  propounded  on  the  part  of  his  two  children,  who  were 
the  UQiTersal  legatees  named  in  it,  and  opposed  by  the  widow.  N. 
W  been  in  habits  of  intimacy  with  K.,  they  haying  frequent  oc- 
cuioa  to  transact  business  together,  the  former  as  the  solicitor, 

N 


ITS  Making  and  publishing  Wills.    Gh^p.  I. 

l)4tol€^  therefore^  the  mind  and  intention  seems  Co  be 
eTery  thing— the  manner  nothing.     Insomuch^  that  if 


and  the  latter  as  the  steward  of  Sir  C.  M.  Upon  these  occasiont 
they  were  in  the  habit  of  ridiculing  the  general  prolixity  of  legal 
Instruments,  and  of  trying  their  skill  in  framing  them  with  the 
greatest  possible  brevity.  On  the  30tk  of  July  1803,  (the  date  of 
A^  will  in  qaestion,)  N.  and  K*  dined  together,  and  after  dimiBr 
K.  hapdcd  a  paper  into  N.'s  haiidl,  saying^  ^^  it  waa  hi^  will,  and 
asking  him  if  it  was  not  a  Talid  qne."  I^.  answered,  that  it  waa  a 
Tery  good  will,  and  immediately  took  a  sheet  of  paper  and  wrote 
the  will  in  question  in  these  terms  :  ^'  I  leave  my  property  between 
my  two  children ;  I  hope  that  they  m  ill  be  virtuous  and  independ- 
ent, and  that  they  will  worship  Gcfd  and  not  black  coats."  He 
then  signed  it,  and  giving  it  to  K.  said,  ^^  There,  there  is  as  good 
a  will  as  I  shall  probably  ever  make."  After  he  was  gone,  K. 
tij^ned  his  name  as  a  witness,  and  put  the  paper  among  some  papen 
of  his  own.  N.,  who  was  then  a  widower,  afterwards  married  the 
defendant. 

In  the  testator's  last  illness,  K.,  who  stated  himself  to  have 
foi^gotten  the  transaction  in  question,  urged  him  to  make  his  will, 
tp  If  hjch  he  answered  that  ^^  he  did  not  know  but  that  the  law 
would  mak.e  as  gopd  a  disposal  of  his  property  as  he  should  ;  but 
that  when  he  got  better  he  would,  in  compliance  with  the  desire  of 
his  friend,  make  his  will." 

N.  died  of  this  illness,  and  the  paper  in  question  was  the  only 
paper  of  a  testamentary  kind  found-  among  his  papers.  Sir  J.  Ni* 
eholl  was  of  opinion,  that  if  the  above  facts  were  to  be  received 
•o  the  evidence  of  K.,  he  must  pronounce  against  the  will,  as 
wanting  the  animus  testandi.  He  was  of  opinion  that  the  evi- 
dence ought  to  be  received.  The  evidence  of  such  a  witness,  bow- 
ever,  when  in  derogation  of  his  own  act,  should  be  received  with 
extreme  caution.  The  testator  did  not  appear  to  intend  that  it 
fhould  be  witnessed  by  K.,  and  gave  no  directions  for  its  preser- 
tatlon.  Neither  does  it  appear  (hat  he  ever  made  any  mentioD  of 
the  paper  in  question ;  and  his  declarations,  during  his  illness,  ra- 
ther indicated  an  intention  to  die  intestate  unless  he  got  better* 
The  court,  therefore,  though  exercising  every  cantion  as  to  the 
evidence  of  a  witness  in  derogation  of  his  own  act,  felt  itself  bound 
to  pronounce  against  the  will. 


Sect.  17.  Personalty.  179 

a  testator^  by  a  paper^  subsequent  to  his  wiU^  says  he 
has  bequeathed  personal  property^  which  in  fact  he 
has  not  bequeathed^  the  paper  may  be  proved  as  tes- 
tamentary^ and  the  property  may  pass  by  it^.  And 
even  an  indorsement  on  a  note^  '^  I  give  this  note  to 
A.*'  it  is  said  may  be  proved  as  testamentary'.  But  it 
is  worthy  of  observation^  that  where  a  testator  had  - 
left  five  testamentary  papers^  inconsistent  with  each 
other^  and  probate  of  all  had  been  granted  in  the 
Spiritual  Court,  Lord  Eldon  regretted  that  there  was 
no  solemnity  necessary  for  personal  estate,  and  observ- 
ed that  he  thought  it  would  be  expedient  to  apply  the 
provisions  of  the  statute  of  frauds  to  this  description 
of  property  *. 

Dispositions  by  nuncupative  testaments,  where  the 
estate  bequeathed  exceeds  the  value  of  302.,  are  laid  by 
thestatute  of  frauds  under  many  restraints.  The  clauses 
of  the  statute  relating  to  the  matter,  are  as  follow : 

''  XIX.  And  for  prevention  of  fraudulent  prac-  Noncapa- 
lices,  in  setting  up  nuncupative  wills,  which  hate  been 
the  occasion  of  much  perjury,  (2)  be  it  enacted  by  the 
authority  aforesaid.   That,  from  and  after  the  afore- 
said four  and  twentieth  day  of  June,  no  nuncupative 
will  shall  be  good,  where  the  estate  thereby  bequeath- 
ed shall  exceed  the  value  of  thirty  pounds,  that  is  not 
proved  by  the  oaths  of  three  witnesses  (at  the  least) 
that  were  present  at  the  making  thereof;  (3)  nor  un-  Explained 
less  it  be  proved  that  the  testator,  at  the  time  of  pro-  cfie.  •"li. 
nouncing  the  ^ame,  did  bid  the  persons  present^  or 

^  6  Vez.  jun.  397. 

'  4  Vez,  jon.  555.  Chaworth  v»  Beech,  and  see  3  Vez.  jun.  160. 

'  6  Vez.  Jan.  380.  Beauchamp  v.  Lord  Hardwicke,  4  Vez.  jun. 

208. 

N  3 


180  Making  and  publishing  Willa.     Chap.  1. 

some  of  them^  bear  witness^  that  such  was  his  will^  or 
to  that  effect ;  (4)  nor  unless  such  nuncupative  will 
were  made  in  the  time  of  the  last  sickness  of  the  de- 
ceased^ and  in  the  house  of  his  or  her  habitation  or 
dwellings  or  where  he  or  she  hath  been  resident  for 
the  space  of  ten  days^  or  more^  next  before  the  mak- 
ing of  such  will^  except  where  such  person  was  sur- 
prised or  taken  sick^  being  from  his  own  home^  and 
died  before  he  returned  to  the  place  of  his  or  her 
dwelling. 

'  '^  XX.  And  be  it  further  enacted^  That  after  six 
months  passed  after  the  speaking  of  the  pretended  tes- 
tamentary words,  no  testimony  shall  be  received  to 
prove  any  will  nuncupative,  except  the  said  t^timony, 
or  the  substance  thereof,  were  committed  to  writing 
within  six  days  after  the  making  of  the  said  will. 

Probates         <c  XXI.  And  be  it  further  enacted.  That  no  letters 

ofnuncu- 

P;![»ve  testamentary,  or  probate  of  any  nuncupative  will, 
shall  pass  the  seal  of  any  court,  till  fourteen  days  at 
the  least  after  the  decease  of  the  testator  be  fully  ex- 
pired ;  (2)  nor  shall  any  nuncupative  will  be  at  any 
time  received  to  be  proved,  unless  process  have  first 
issued  to  call  in  the  widow,  or  next  of  kindred  to  the 
deceased,  to  the  end  they  may  contest  the  same,  if 
they  please." 

Sir  William  Blackstone  observes*  that  the  legislature 
has  provided  against  frauds  in  setting  up  nuncupative 
wills,  by  so  numerous  a  train  of  requisites,  that  the 
thing  itself  has  fallen  into  disuse ;  and  is  hardly  ever 
heard  of  but  in  the  only  instance  where  favour  ought 
to  be  shewn  to  it, — when  the  testator  is  surprised  by 

*  Comm.  3  ToL  600. 


wills. 


SfecT.  17.  Personally.  181 

sadden  and  violent  sickness.  The  testamentary  words 
must  be  spoken  with  an  intent  to  bequeath^  and,  as 
^ the  same  learned  writer  observes^  not  in  any  loose  idle 
discourse;  for  he  must  require  the  bye-standers  to 
bear  witness  of  such  his  intention.  The  will  must  be 
made  at  home^  or  amon^  his  family  or  friends^  unless 
by  unavoidable  accident^  to  prevent  impositions  by 
strangers.  It  must  be  in  his  last  sickness ;  for  if  he 
recovers^  he  may  alter  his  dispositions,  and  has  time 
to  make  a  written  will.  It  must  not  be  proved  at  too 
long  a  distance  from  the  testator's  death,  lest  the 
words  should  escape  the  memory  of  the  witnesses ;  nor 
yet  too  hastily  and  without  notice,  lest  the  family  of 
the  testator  should  be  put  to  inconvenience  or  sur- 
prize. 

It  is  to  be  remarked,  that  the  words  in  this  clause  And  of  the 
are,  that  '^  no  nuncupative  will  shall  be  good,  that  is  evidence, 
not  proved  by  the  oaths  of  three  witnesses  at  the  least, 
that  were  present  at  the  making  thereof ;:  whereby 
the  construction  is  excluded,  which,  we  have  seen, 
has  allowed  the  publication  of  a  written  will  of  lands 
to  be  established  by  the  proof  of  any  one  of  the  three 
lubscribing  witnesses.  Dr.  Shallmer',  by  will  in 
writing  gave  200/.  to  the  parish  of  St.  Clement  Danes : 
and  afterwards,  Prew,  the  reader,  coming  to  pray 
with  him,  his  wife  put  him  in  mind  to  give  200/.  more 
towards  the  charges  of  building  their  church  :  at 
which,  though  Dr.  Shallmer  was  at  first  disturbed, 
yet  afterwards,  he  said  he  would  give  it,  and  bid  Prew 
take  notice  of  it ;  and  the  next  day  bid  Prew  remem- 
1)er  what  he  had  said  to  him  the  day  before,  and  died 
that  day.     Within  three  or  four  days  after,  the  Doc- 

*  Phillipt  17.  the  Parbh  of  St.  Clement  Danes,  1  Eq.  Ca.  Abr. 

404, 


189  Making  and  publishing  WiUs.     Chap.  I. 

tor's  widow  put  down  a  memorandum  in  writing  of 
the  said  last  devise^  and  so  did  her  maid.  Prew  died 
about  a  month  afterwards,  and  amongst  his  papers 
was  found  a  memorandum  of  his  own  writing,  dated 
three  weeks  after  the  Doctor's  deaths  of  what  the 
Doctor  said  to  him  about  the  200/.  and  purporting 
that  he  had  put  it  in  writing  the  same  day  it  was 
spoken ;  but  that  writing  which  was  mentioned  to  be 
made  the  same  day  it  was  spoken^  did  not  appear; 
&nd  these  memorandums  did  not  precisely  agree. 

About  a  year. afterwards^  on  the  application  of  the 
parish  to  the  Commissioners  of  Charitable  Uses^  and 
their  producing  these  memorandums  and  proofs  by 
Mrs.  Shallmer  and  her  maid,  they  decreed  the  20W. 
But  on  exception  taken  by  the  executors^  the  decree 
was  discharged  of  this  200/.  and  the  Lord  Chancellor 
held  it  not  good^  because  it  was  not  proved  by  the 
oath  of  thr^e  witnesses :  for  though  Mrs.  Shallroer 
and  her  maid  had  made  proof,  yet  Prew  itas  dead, 
and  the  statute  in  that  branch  requires  not  only  three 
to  be  present,  but  that  the  proof  shall  be  by  tiie  oath 
of  three  witnesses. 

pati^win  U^^^l  probate  has  been  obtained  of  a  nuncupative 
JhLd^ie  ^^^  ^*  cannot  be  set  up  in  pleading  against  the  td- 
Ste."^  ministrator,  as  appears  by  the  case  rf  Verhorn  v, 
Brewen*,  where  an  administrator  brought  a  biU  to 
discover  and  have  an  account  of  the  intestate's  estate ; 
and  the  defendant  pleaded,  th«t  the  supposed  intestate 
made  a  nuncupative  will,  and  another  person  execa- 
tor ;  to  whom  he  was  accountable,  and  not  to  the 
plaintiff,  as  administrator*  But  it  was  decreed,  that 
though  there  were  such  a  nuncupative  will,  yet  it  was 

1  Chan.  Ca.  199. 


Sect.  17.  Personalty.  18S 

not  pleadable  against  an  administrator  before  it  waft 
proved. 

No  nuncupative  disposition^  though  made  and  pub-  ofaUenng 
li«hed  with  the  due  formalities  prescribed  by  the  l9th  wuibya 
and  20th  sections^  can  make  any  alteration  in  a  written  dve^dupo- 
will,  by  reason  of  the  restriction  in  this  particular 
contained  in  the  23d  clause  of  the  statute.  Yet  if  A 
legacy  given  by  a  written  will  has  lapsed^  or  was  void 
for  some  legal  objection^  such  legacy  might  be  the 
subject  of  a  nuncupative  disposition.  Thus^  where 
one  G.  S.  (5)  on  the  2d  of  September,  1679,  made  his 
will  in  writing,  and  appoiuted  E.,  his  wife,  his  execu- 
trix, and  gave  all  the  residuum  of  his  estate,  after 
some  legacies  paid,  to  her,  and  the  wife  died  in  the 
testator's  life- time,  who  afterwards  made  a  nuncupa-* 
live  codicil,  and  gave  to  another  all  that  he  had  given 
to  his  wife,  and  died,  and  the  single  question  was, 
whether  this  nuncupative  codicil  was  allowable,  not- 
withstanding the  22d  section  of  the  statute  of  frauds ; 
it  was  resolved  by  Sir  Hugh  Wyndham^  Justice,  Sir 
Thomas  Raymond,  and  several  civilians  joined  in  the 
commission,  that  the  nuncupative  codicil  was  good ; 
for,  by  the  death  of  the  wife  before  the  testator,  the 
devise  of  the  residue  was  totally  void,  and  so  there 
was  DO  will  as  to  that  part. 

The  Kuncupative  codicil  was,  therefore,  in  the  fore- 
going case,  a  new  disposition  as  to  the  residue,  be- 
cause, as  to  so  much  there  was  no  will,  its  operation 
being  determined.  And  it  was  objected,  that,  by  thij 
€aaie  reason,  if  any  part  of  a  will  in  writing  was  made 


(5)  Sir  Gliomas  lUymoiid,  334.  before  the  Delegates  at  Serjeant's 
Inn,  December  9,  ia79. 

1 


181;  Making  and  publishing  Wills.      Chap.  L 

by  force  or  frauds  the  thing  so  given  and  specified  in 
that  part^  may  be  devised  by  a  nuncupative  codicil^  and 
80  the  will  might  be  altered  contrary  to  the  words  of 
the  statute  :  but  it, was  answered  by  the  Courts  that  if 
such  part  of  a  will  was  so  obtained^  it  was  no  part  of 
the  willy  and  so  such  codicil  would  be  no  alteration  of 
what  was  not^  but  would  be  an  original  will  for  so 
much.  And  they  further  said^  that  if  A.  be  possessed 
of  an  estate  of  lOOOZ.  and  by  will  in  writing,  gives  a 
part  of  it  as  500/.  to  B.  he  might  give  the  residue  by  a 
nuncupative  will^  so  as  he  did  not  change  the  executor. 

It  has  been  held^  that  a  disposition^  not  valid  as  a 
nuncupative  will,  for  want  of  the  observance  of  the 
formalities  required  by  the  statute,  may  be  supported 
as  a  trust  in  equity.  The  case  cited  in  support  of 
which  proposition,  is  that  of  Nab  v.  Nab^,  where  a 
daugliter,  having  deposited  1802.  in  the  hands  of  her 
mother,  made  her  will,  and  gave  several  legacies,  and 
made  her  mother  executrix,  but  took  no  notice  of  the 
180Z. ;  but  afterwards,  by  word  of  mouth,  desired  her 
mother,  if  she  thought  fit,  to  give  the  180/.  to  her 
niece ;  and  on  a  bill  filed  by  the  niece  for  this  sum,  it 
was  proved  in  the  cause,  for  the  plaintiff,  that  the 
daughter,  after  irikking  the  will,  had  said,  she  had  left 
her  niece  180/.  as  a  legacy,  but  the  parol  declaration 
of  the  daughter  appeared  only  by  the  answer  of  the 
mother  upon  oath. 

It  was  agreed,  that  this  was  not  good  as  a  nuncu- 
pative will,  being  above  30/.  and  not  reduced  into 
writing  within  six  days  after  the  speaking,  as  the  sta- 
tute of  frauds  requires.  But  the  mother  was  decreed 
to  be  a  trustee  for  the  niece.  I  find  no  other  case 
that  comes  up  to  this  doctrine,  and,  perhaps^  the  courts 

;  10  Mod.  403.  Gilk.  Eq.  Rep.  146. 


Sect.  18.  CJiarilahle  Uses.  185 

will  not  hereafter^  if  the  point  should  arise^  be  dis- 
posed to  be  ^ided  by  a  sing'le  precedent^  so  opposite 
to  that  feeling  of  regret  which,  of  late,  they  uniformly 
express  in  being  forced  into  a  departure  from  the 
plain  and  wholesome  provisions  of  the  statute,  by  the 
stress  of  authorities. 

By  the  23d  section  of  this  statute,  soldiers  in  actual  Ofaoidien' 
military  service,  and  mariners  and  seamen  at  sea,  are  meo*«wUif. 
excepted  out  of  the  clauses  restraining  the  testamen- 
tary power,  in  respect  to  personal  estate.  Soldiers 
may  still,  therefore,  make  nuncupative  wills,  or  re- 
vocations of  personal  estate,  and  dispose  of  their 
goods,  wages,  and  other  chattels,  without  the  forms 
required  by  the  law  in  other  cases.  And  by  statute 
5th  William  3.  c.  21.  sect.  6.  the  probate  of  any  com- 
mon soldier,  was  and  continues  to  be  exempted  from 
the  duties  imposed  by  that  act.  With  respect  to  sea- 
men,  however,  the  power  of  making  nuncupative  wills 
left  to  them  by  the  statute  of  frauds  in  the  unfettered 
state  in  which  it  stood  previously  to  that  statute,  has 
been  laid  under  restrictive  provisions  by  subsequent 
statutes,  for  their  better  security  and  protection  a- 
gainst  fraud  and  imposition.  The  regulations  which 
regard  this  object  will  be  found  in  the  abstracts  of  the 
statutes,  26  Geo.  3.  cap.  63.  and  32  Geo.  3.  cap..34, 
subjoined  to  this  volume,  for  the  convenience  of  rtt- 
ference. 


Section  XVIII. 

Chantable  Uses. 

A  GIFT  in  mortmain  was  a  phrase  signifying  a  do*  stitutet  of 
nation  of  lands  or  tenements  to  corporations,  sole  or 
aggregate,  and  implying  that  by  such  a  gift  as  well 


186  Making  and  publishing  WiU$.       Osap.  I. 

the  fruits  of  tenure  due  for  such  property  to  the  JLord 
of  the  fee^  as  the  services  due  out  of  such  fees  for  the 
defence  of  the  realm^  became  extinguished  and  lost, 
and  the  lands  were  as  unproductive  as  if  they  were  in 
the  hands  of  a  dead  man.  By  Magna  Charta  it  was 
therefore  provided^  that  ''  it  should  not  be  lawful  for 
any«one  to  give  his  lands  to  any  religious  house^  and 
to  take  the  same  again  to  hold  of  the  same  house ;  nor 
should  it  be  lawful  to  any  house  of  religion  to  take  the 
lands  of  any^  and  to  lease  the  same  to  him  from  whom 
they  received  it.  And  if  any  from  thenceforth  should 
give  his  lands  to  any  religious  house^  and  thereupon 
be  convict,  the  gift  should  be  utterly  void,  and  the 
land  should  accrue  to  the  Lord  of  the  fee/' 

A  great  many  subsequent  statutes  became  necessary 
to  defeat  the  devices  of  the  ecclesiastics,  (who,  in 
early  times,  were  the  persons  most  learned  in  the  law,) 
the  object  of  which  was  to  elude  restraints  which 
went  in  a  great  measure  to  cut  up  the  sources  of 
their  wealth  and  accumulations..  Thus  the  statute  de 
religiosis,  7  Ed.  1.  st.  2.  after  reciting  the  prevailing 
artifices  whereby  the  former  prohibition  had  been 
evaded,  ordained  that  "  no  person,  religious  or  other, 
whatsoever  he  be,  should  buy  or  sell  any  lands  or 
tenements  under  the  colour  of  gift  or  lease,  or  re- 
ceive by  reason  of  any  other  title,  whatsoever  it  be, 
or  by  any  other  craft  or  engine,  lands  or  tenements, 
undjsr  pain  of  forfeiture  of  the  same."  But  this  sta- 
tute being  held  to  extend  only  to  gifts,  alienations^ 
and  other  conveyances,  the  ecclesiastics  evaded  it, 
by  pretending  title  to  the  land  which  they  were  de- 
sirous of  obtaining,  and  so  recovering  it  in  an  action, 
by  collusion  with  the  tenant'.  By  the  13th  Ed.  1. 
c«  3^  they  were  precluded  from  acquiring  lands  by 

*ft]ia«t70» 


Sect.  18-  CharitabU  U$e9.  187 

purchase^  gift,  lease,  ot  recovery ;  whereupon  they 
resorted  to  the  method  of  causing  the  lands  to  be  con- 
veyed to  other  persons  and  their  heirs,  to  the  use  of 
them  and  their  successors ;  which  answered  for  some 
time,  till  by  the  statute  15Ric.  2.  c.  6.  this  was  also 
enacted  to  be  mortmain,  and  within  the  forfeiture  of 
the  statute  de  religiosis.  But  as  the  statute  of  Rich- 
ard was  held  only  to  eltend  to  corporations,  the  sta*. 
tute  23  H.  8.  c.  10.  carried  the  prohibition  to  parish 
churches,  chapels,  guilds,  fraternities,  commonalties, 
companies,  or  brotherhoods,  without  corporation. 

But  it  still  continued  to  be  held^  that  lands  might 
be  given  to  any  persons  and  their  heirs,  for  the  find- 
ing of  a  preacher,  maintenance  of  a  school,  relief  of 
maimed  soldiers,  sustenance  of  poor  people,  repara- 
tion of  churches,  highways,  bridges,  causeways,  dis* 
charging^  the  poor  inhabitants  of  a  town  of  common 
charges,  for  the  nmkitig  of  a  stock  for  poor  labourers 
in  Ihisbandry  and  poor  apprentices,  and  for  the  mar- 
riage of  poor  virgins,  or  for  any  other  charitable  uses. 
And  it  was  further  hdd,  that  by  obtaining  proper  li- 
cences from  those  who  would  be  entitled  to  the  for-  ' 
feitnre  (1),  aKenations  in  mortmain  might  still  be 
made^  as  appears  from  the  preamble  of  the  stat.  de 

*  1  Rep.  26. 


(1)  These  grants  io  mortmain  were  never  atoided  so  as  to  let  in 
the  heirs  at  law ;  but  the  title  by  the  forfeiture  was  giren  to  the 
King  or  the  mesne  lords.  The  Statute  of  Wills,  32  H.  8.  c.  1.  gate 
a  geiiAttl  (Hywer  of  devising,  but  the  explanatory  act,  34  H.  8.  c.  5. 
cxcsj^ad  oorporatiofis ;  so  that  devises  to  corporations  were  voiJ^ 
tnd  could  not  be  dispensed  with  by  licence  ;  and  \)y  consequence 
let  in  ihe  Mr^  from  the  passing  of  the  stat.  of  34  H.  8.  c.  6.  to  the 
43  Bl*  c.  4.  except  where  there  happened  to  be  a  custom  for  derising 
ts  mortmain.    See  the  Tear  Book,  45  Ed.  3. 26. 


188  Making  and  puUishing  Wills.       Chap.  I. 

religiosis*'.  The  Kings  of  England  for  the  most  part 
grounded  their  pretensions  to  this  power  of  licensing 
bn  the  right,  asserted  by  them  to  be  inherent  in  the 
crown,  to  dispense  with  Acts  of  Parliament :  which 
dispensing  power  was  found  to  produce  such  danger- 
ous consequences  in  the  exercise  thereof  by  James  II. 
that  in  the  first  year  of  the  reign  of  William  it  was 
enacted,  that  no  dispensation  by  non  obstante  to  any 
statute  should  be  allowed,  but  that  the  same  should  be 
held  void  and  of  none  effect,  except  a  dispensation 
be  allowed  in  such  statute^.  But  by  the  subsequent 
statute  7  and  8  William  3.  c.  37.  power  to  licence  in 
mortmain  was  expressly  given  to  the  crown,  and  the 
2d  and  3d  Anne,  c.  11.  enabled  any  person,  by  deed 
enrolled,  to  give  to  the  corporation  for  augmenting 
the  maintenance  of  the  poorer  clergy,  lands  or  goods, 
without  licence. 

By  the  43  El.  c.  14.  special  provision  was  made  by 
Ck)mmissioners,  to  be  named  by  the  Lord  Chancellor 
or  Chancellor  of  the  duchy  of  Lancaster,  within  the 
county  palatine,  to  enquire  by  the  oaths  of  twelve 
men  into  all  charitable  gifts  and  appointments,  and 
the  management  and  application  of  them,  and  to  make 
orders  and  decrees  concerning  their  'administration : 
which  statute  was  construed  to  supply,  all  defects  of 
assurances,  where  the  donor  was  of  a  capacity  to  dis- 
pose, and  had  an  estate  in  any  way  disposeable  by  him : 
as  if  a  copyholder  disposed  of  copyhold  lands  to  a 
.  charitable  use,  without  surrender,  or  tenant  in  tail 
conveyed  without  fine,  or  a  reversion   was  granted 
without  attornment,  all  such  like  defects  were  sup- 

•  2  Inst.  74.  and  see  the  statutes  18  Ed.  3.  st.  3.  c.  3.     17  &'• 
%  c.  3. 
^  4  Hawk.  P.  C.  348.    Harg.  Co.  Litt.  130.  n. 


Sect.  18.  Charitable  Uses.  189 

plied  by  this  statute^  and  considered  as  good  by  way 
of  appointment  (2). 

The  Court  of  Chancery  will  relieve  by  original  Chantabit 
bill  upon  a  gift  to  charitable  uses  within  the  statute  ;  voarshewn 

to  them. 

and,  proceeding  on  the  principle  of  the  statute/ 
has  shewn  great  favour  to  charitable  donations. 
Thus  a  legacy  given  generally  to  a  public  charity  has 
been  considered  as  sufficiently  certain,  and  the  exe-' 
cutors  have  received  the  directions  of  the  Court  as  to 
the  disposal  of  it*.  And  where  a  charge  of  1000/. 
on  a  manor  was  to  be  applied  to  such  charitable  uses 
as  the  testator  had  by  writing  under  his  hand  direct- 
ed, equity  supported  the  bequest,  though  no  such 
writing  was  found '. '  Thus  also  where  there  was  a 
gift  of  the  residue  of  personal  estate  to  such  charita- 
ble uses  as  the  executor  should  appoint^  though  the 
executor  died  in  the  life-time  of  the  testatrix,  the  de- 
vise was  carried  into  effect^.  And  a  devise  to  chari- 
table uses,  declaring  no  use,  has  been  supported ;  in 
which  case  the  King  appoints  under  his  sign  manual  \ 
So  also  where  the  charity  has  been  against  the  policy 
of  law^  the  same  prerogative  holds ;  as  where  it  was 

•  1  Bro.  C.  C-  13.   Widmorer.  the  GoTcmorsof  Queen  Anne's 

'  1  Vera.  224.  Attorney  General  v.  Syderfin. 
'  3  Bro.  C.  C.  517.  Moggridge  v.  Thackwell. 

*  Ambler  712.  Attorney  (Jeneralp.  llerrick. 


(2)  That  dcTises  to  corporations  were  under  that  statute  consi- 
dered good  by  way  of  appointment,  See  Hob.  136.  Moor,  888.  1 
Ley.  284.  But  note  that  the  words  ^  limit  and  appoint'  in  the  sta- 
tute did  not  carry  the  legal  estate,  but  operated  only  as  a  gift  of  the 
stile  dominium^  to  bind  the  legal  estate  in^the  hands  of  the  heir. 


196  Making  and  publishing  Wills.      Chap.  L' 

to  establish  a  jesuba  to  teach  the  Jewish  religion  S-  or 
to  educate  poor  children  in  the  Roman  Catholic  faith ^. 
And  where  a  charity  has  been  so  given  ns  that  there 
can  be  no  objects  of  it^  it  seems  that  the  Court  will 
order  a  different  scheme  to  be  laid  before  it '.  Thus 
where  a  trust  was  created  for  the  propagation  of  the 
Christian  religion^  among  the  natives  of  New  Eng- 
land^ there  being  no  infidels  to  convert  within  the  in- 
tended limits^  and  the  colleges  which  were  appointed 
to  administer  the  charity  having  become  subject  toa  fo- 
reign power^  the  master  was  directed  to  propose  apian 
de  novo  for  the  application  of  the  produce  of  the  estates 
according  to  the  general  intentions  of  the  testator "". 
Thus  also^  upon  the  same  principle  of  favour^  where 
a  residue  of  personalty  is  left  to  charitable  uses^  which 
proves  to  be  more  than  sufficient  for  the  object^  if  it 
appear  to  be  the  testator's  intention  to  dispose  of  the 
whole  surplus  that  way^  the  remainder  will  be  ap- 
plied to  similar  purposes  ^  The  Court  is  also  very 
indulgent  to  charity  cases  in  matter  of  form.  Thus 
where  the  information  prays  a  wrong  relief^  the 
Court  will  give  such  relief  as  will  do  justice  "^^  and 
holds  out  its  assistance  to  charities  under  circumstan- 
ces in  which  it  would   not  give   relief  in  ordinary 

'  Ambl.  2^8.  Da  Costa  v.  De  Pas.  Reg.  iib.  A.  1754,  fol.  309. 

*  7  Vez.  Jun.  490.  Gary  v.  Abbot. 

'  3  Bro.  C.  C.  166.  Attorney  Genera!   v,  Oglander. 

*  3  Bro.  C.  C.  171.  Attorney  Genera)  v.  the  City  of  London. 

■  3  Bro.  C.  C.  373.  Attorney  General  v.  the  Earl  of  Win- 
Chelsea.  See  this  doctrine  of  cy  pres  as  applied  to  the  execution 
of  a  charitable  use,  where  the  express  object  fails,  io  7  Vex.  Jun. 
324.  Bishop  of  Hereford  v.  Adams,  11  Vez.  Jun.  367.  Attorney 
General  v.  Wbitely  ;  and  see  IKgest  xxxiii.  Tit.  2.  de  usu  et  usu- 
fructu  legatorum. 

*  1  Ve«.  12..43.  413.    U  Vez.  Juo.  i47. 


Bect.  18.  Charitable  Uses.  191 

cases  ^  and  often  gives  the  relators  costs  beyond  the 
taxed  costs  \ 

The  statute  9  Geo.  2.  c.  36.  enacts,  ''  that  from  '^^^«t«  of 
the  June  24^  1736,  no  manors,  lauds,  tenements,  caiied  the 
rents,  advowsons,  or  other  hereditaments,  corporeal  Act. 
or  incorporeal  whatsoever,  nor  any  sum  or  sums  of 
money,  goods,  chattels,  stocks  in  the  public  funds,  se- 
curities for  money,  or  any  other  personal  estate  what- 
soever, to  be  laid  0Kt  or  disposed  of  in  the  purchase 
of  any  lands,  tenements,  or  hereditaments,  shall  be 
given,  granted,  aliened,  limited,  released,  transferred, 
assigned,  or  appointed,  or  any  ways  conveyed  or  set* 
tied,  to  or  upon  any  person  or  persons,  bodies  politic 
or  corporate,  or  otherwise,  for  any  estate  or  interest 
whatsoever,  or  any  ways  charged  or  incumbered  by 
any  person  or  persons  whatsoever,  in  trust  or  for  the 
benefit  of  any  charitable  uses  whatsoever ;  unless 
such  gift,  conveyance,  appointment,  or  settlement  of  ^ 
any  Mich  lands,  tenements,  or  hereditaments,  sum  or 
sums  of  money,  or  personal  estate  (other  than  stocks 
in  the  public  funds)  be  made  by  deed,  indented,  seal* 
ed,  and  delivered,  in  the  presence  of  two  or  more  cre- 
dible witnesses,  twelve  calendar  months  at  least  before 
the  death  of  such  donor  or  grantor,  (including  the 
days  of  the  execution  and  death)  and  be  enrolled  in 
his  Majesty's  High  Court  of  Chancery,  within  six 
calendar  months  next  after  the   execution  thereof ; 

^11  Vez.  Juii.  367.  And  as  to  the  extent  and  comprehenfiion 
of  the  term  '  charity'  in  a  proper  legal  sense,  and  what  deacription 
of  objects  are  brought  within  the  Eame  indulgence,  see  10  Vex. 
Jan.  522.  Morice  v.  Bishop  of  Durham,  and  the  case  of  Downing 
College,  in  Wilmot's  opipions  and  judgments.  See  also  Duke, 
Ch.lO.  sect.  2.  for  the  adjudged  cases  on  the  great  enabling  statute, 
43  £1.  c.  4.  wherein  the  writer  expounds  what  it  a  good  charitable 
me  within  thai  statute.     See  also  Poph.  139. 

*  7  Yea.  Jon,  425, 


19S  Making  and  publishing  Wills.     Chap.  I. 

and  unless  such  stocks  be  transferred  in  the  public 
books  usually  kept  for  the  transfer  of  stocks^  six  ca- 
lendar months  at  least  before  the  death  of  such  grant- 
or or  donor^  (including  the  days  of  the  transfer  and 
death)  and  unless  the  same  be  made  to  take  effect  in 
possession  for  the  charitable  use  intended^  immedi- 
ately  from  the  making  thereof,  and  be  without  any 
power  of  revocation,  reservation,  trust,  condition,  li- 
mitation, clause,  or  agreement  whatsoever,  for  the 
benefit  of  the  donor  or  grantor,  or  of  any  person  or 
persons  claiming  under  him/'  And  by  the  3d  sec- 
tion, all  gifts  or  transfers  made  in  any  other  manner 
or  form  than  is  directed  by  this  statute,  are  declared 
to  be  void.  By  the  2nd  section,  gifts  or  transfers 
for  valuable  consideration  actually  paid,  and  bona  fide 
made,  are  excepted.  The  4th  section  provides  that 
the  Act  shall  not  extend  to  make  void  the  dispensa- 
tions of  any  lands,  tenements,  or  hereditaments,  or 
of  any  personal  estate  to  be  laid  out  in  the  purchase 
of  any  lands,  tenements,  or  hereditaments,  which  shall 
be  made  in  any  other  manner  or  form  than  by  this 
Act  is  directed,  to  or  in  trust  for  either  of  the  two 
universities,  or  any  of  the  colleges  or  houses  of  learn- 
ing within  either  of  the  said  universities,  or  to  or  in 
trust  for  the  colleges  of  Eton,  Winchester,  or  West- 
minster, for  the  better  support  and  maintenance  of  the 
scholars  only  upon  the  foundations  of  the  same  col- 
leges. But  by  the  succeeding  section  these  colleges 
are  restrained  from  holding  or  enjoying  more  advow-- 
sons  than  shall  be  equal  in  number  to  a  moiety  of  the 
fellows  or  persons  stiled  or  reputed  as  fellows,  or 
where  there  are  no  fellows  or  persons  reputed  as  fel- 
lows, to  a  moiety  of  the  students  on  the  foundation, 
not  computing  advowsons  given  for  the  better  sup- 
port of  the  headships  of  any  of  the  said  colleges  in 
the  number. 


Sect.  18.  Charitable  Utes.  193 

m 

In  the  case  before  Lord  Hardwicke^  of  the  Attor-  LordHard- 

wickc's  cx« 

ney  General  v.  Weymouth',  his  Lordship  slated  with  position  of 

_   ,    tiie  pur- 
great  distinctness  the  purview  of  the  statute.     "  It  is  view  of  the 

insisted/'  said  his  Lordship,  ''  that  the  true  intention  Act. 
of  the  Act  was,  according  to  its  title,  to  restrain  the 
disposition  of  lands,  whereby  they  became  unalien- 
able ;  and  that  this  was  the  only  intention  of  the  Act 
But  I  think  the  intention  of  the  Act  is  taken  up  much 
too  short;  for  the  title  is  no  part  of  the  Act,  and  has 
often  been  determined  not  to  be  so,  nor  ought  it  to 
be  taken  into  consideration  in  the  construction  of  this 
Act ;  for  originally  there  were  no  titles  to  the  Acts, 
but  only  a  petition  and  the  king's  answer ;  and  the 
Judges  thereupon  drew  up  the  Act  into  form,  and  .♦ 
then  added  the  title ;  and  the  title  does  not  pass  through 
the  same  forms  as  the  Act  itself,  but  the  speaker,  after 
the  Act  is  passed,  mentions  the  title,  and  puts  the 
question  upon  it :  and  therefore  the  meaning  of  this 
Act  is  not  to  be  inferred  from  the  title,  but  we  must 
consider  the  Act  itself.  It  first  takes  notice  that  gifts 
and  alienations  of  lands  in  mortmain  are  prohibited 
by  divers  wholesome  laws,  as  prejudicial  to  the  com- 
mon utility ;  and  then  it  proceeds,  that  nevertheless 
this  puUic  mischief  has  greatly  increased,  by  many 
iarge  ancf  improvident  alienations  or  dispositions, 
made  by  languishing  or  dying  persons,  or  by  other 
persons,  to  usea  called  charitable,  to  take  place  after 
their  death,  to  the  disherison  of  their  lawful  heirs. 
The  reason  of  this  statute  was  to  hinder  gifts  by  dy- 
ing persons  out  of  a  pretended  or  mistaken  notion  of 
religion,  as  thinking  it  might  be  for  the  benefit  of 
their  souls,  to  give  their  lands  to  charities,  which  they 
paid  no  regard  to  in  their  life-time ;  and  therefore 


'  AiabL  20.  aod  see  the  Collectansa  Juridica^  433. 

O 


,^ 


'  I 


I94f  Making  and  pubUshing  WiUs.    Chap.  I. 

the  Act  of  Parliament  has  not  absolutely  prohibited 
the  disposition  of  land  to  charitable  uses^  but  left  it 
to  be  done  by  deed  executed  a  year  before  the  death 
of  the  grantor^  and  enrolled  within  six  months  after 
execution.  The  legislature  blended  the  two  incoor 
veniences  together :  the  act  of  languishing  and  dyings 
persons  and  the  disherison  of  heirs*'  (3). 

peviie^of       Iti  ^^|is  case  of  the  Attorney  General  v.  Lord  Wey- 

landt  to  be  -^  ^ 

«oid,  and    mouth,  the  devise  was  of  land  to  be  sold^  and  the  re- 

the  money      .  -.    , 

to  go  to  a  sidue  of  the  money  after  payment  of  debts^  &c.  wai 
within  this  to  go  to  a  charity.  And  though  such  a  devise  does  in 
contemplation  of  equity  usually  convert  the  real  into 
«  personal  property^  yet  as  the  statute  had  expressly 
provided  not  only  that  lands  themselves  should  not  be 
given  to  charitable  uses,  but  that  they  sbould  nofrbe 
chiGurged  or  incumbered  for  such  purposes^  a  devise  of 
lands  to  be  sold  and  the  money  to  be  laid  out  in  cha* 
ritable  uses,  was  considered  as  withitt .  both  prohibi- 
tionit,  for  here  the  lands  were  devised  expressly  for 
th^  ultimate  plgect  of  a  charity,  and  furthermors 
these  lands  were  <;harged  for  a  charitable  use.  It  was 
to.be  considered  too,  Uiat  it  was  a  gift  of  the  rents  and 
profit  till  a  WLle ;  and  how  long  such  sale  might  be 
poi;tpone4  pohody  knew ;  for  no  man  had  a  right  to 
CQmp^  the  t^ufte^B  to. sell,  if  they  paid  the  debts  and 
legf^cj^,  but  t)iQ  charity ;  so  that  being  a  devise  of 
the  r^ot^  and  pr^fit^  \L  was  in  effect  a  devise  of  the 


(3)  The  ftattttQS  of  Bioitcnaiii,  and  the  law. 119  to  perpetutticSy 
If  ere  sufficieot  before  the  ctatutfc^  43  El.  c.  4.  to  preyent  lands  froA 
(eiDg  rendered  unsliesiBble.  The  4S^  El.  c.  4«  reTiTed  the  power  a) 
%o  charitable  uses ;  and  for  prerenting  the  abuse  of  this  only  method 
remaining  of  granting  in  perfetoitjr,  the  itAtate  9  G.  %.  c*  3S*  wu 
•nacted.  *  «  . 


J 


Sect.  18.  Charitable  Uses.  193 

lands  themsc!  ves.  And  as  to  the  devise  of  the  money 
arising  from  the  sale^  it  was  not  thought  necessary  to 
the  determination  of  the  question  upon  the  statute^ 
to  say  whether  it  should  be  considered  as  a  devise  of 
the  land  or  of  money.  If  the  Act  were  not  in  the 
way^  the  persons  intitled  to  the  residue  might  come 
and  pray  to  have  the  land  in  that  Court  instead  of  the 
money^  and  might  have  retained  it  as  land ;  and  as 
the  testator  had  given  them  the  profits  till  sale^  he 
had  made  them  owners  in  equity  of  the  estates.  But 
it  was  not  necessary  to  rdy  upon  these  grounds,  since, 
whether  the  thing  devised  were  considered  as  land  or 
money,  for  the  reasons  above-mentioned  the  devise 
was  void. 

So  Kkewise  although  a  mortgage  is  considered  as  Mortgares 

1  •  *^  •  1  i%  •  terms  of 

personal  estate  m  equtty,  and  a  term  of  years  is  per-  years,  and 
sonal  both  at  law  and  in  equity,  yet  a  devise  of  such  cured  on 
subjects  for  a  charitable  use  is  not  good  within  this  rate^  not 
statute,  the  words  being,  that  the  lands  shall  not  be  in  m^n-^ 
conveyed  or  settled  for  amf  estate  or  interest  whatso-  "**"* 
ever,  or  any  ways  charged  or  incumbered  in  timst  or 
for  the  benefit  of  any  charitable  use  •.     So  neither 
can  m<Miey  secured  Mpon  tolls  or  by  assignment  of 
poor  rates  or  county  rates,  pass  under  a  bequest  to  a 
charity,  for  they  all  come  out  of  the  realty  *,  and  the 
same  doctrine  has  prevailed  in  respect  to  a  lease  under 
the  Crown  of  the  right  to  lay  mooring  chains  in  the 
river  Thames*. 

Money  firiven  to  be  laid  out  in  lands  is  within  the  Money 

•^    "  iriven  to  h* 


*  2  Yes.  44.  Att  Gen.  v.  Meyrick.    Ambl.  155.    Att.  Gen.  p. 
GraTes. 

*  10  Yez.  Jan.  41.  French  o.  Sqaire. 
I  Anbl.  307.  Nejpis  v.  Coulson. 

o  2 


196  Making  €md  publiskmg  Wills.      Chap.  I. 

laid  ont  in  wordfl  of  the  Act ;  but  whef^  a  bequest  was  made  to 
vitbin       charitable  uses  to  be  secured  by  the  purchase  of  lands 
of  the  act.  of  iiiherilBince  ov  Otherwise  ^  it  was  determined  that 
tionaf*       such  devise  was  good  by  force  of  the  words  or  other- 
'wise.     Por  if  a  devise  in  a  will  is  in  the  disjunctive 
and  leave  to  the  executors  two  methods  of  doing  a 
particular  thing,  the  one  lawful  and  the  other  prohi- 
bited by  law,  the  Court  cannot  say,  that  because  one 
method  is  unlawful^  the  other  is  so  too^  and  therefore 
the  whole  bequest  is  void.     If  one  is  lawfal  that  mtist 
be  pursued  and  take  effect.   '  Aiid  though  some  stress 
at  the  bar  was  laid  upon  the  words  in  the  will  direct* 
•ing  the  benefit  to  be  for  ever^  yet  the  Lord  Chancel- 
lor would  not  allow  any  weight  to  the  objection  ;  and 
he  mentioned  that  there  might  be  annuities  not  pay- 
able out  of  land  that  might  have  probable  continu- 
ance in  perpetuum,  as  Sir  Thomas  White's  c^rity^ 
which  was  a  disposition  of  money  to  be  employed  in 
continual  rotation  in  loans  of  sevei^l  sums  to  poor 
tradesmen  for  stated  periods^  and  any  man  might  by 
will  give  a  perpetual  charity  in  this  manner  at  this 
day.     And  the  words  heirs  snad  assigns  import  no  ne- 
cessity for  a  purchase  of  lands ;  up6n  which  part  of 
the  argument  his  Lordship  said  he  would  suppose  that 
an  obligor  bound  himself,  his  beirs^  executors^  and  ad- 
Ininistrators^  in  a  sum  of  money  to  a  Papist,  who  ob- 
tained judgment  on  the  bond  and  took  out  an  elegU, 
in  such  case  it  ka(f  been  held  at  the  assizes  that  the 
Papist  could  not  maintain  ejectment^  and  yet  the  bond 
was  good  to  bind  the  person  of  the  obligor  and  his 
representatives,  but  not  to  charge  his  lands,  or  his 
heirs  who  represented  him  in  his  landed  capacity. 

Money  bequeathed  to  the  corporation  of  Qireen 
Aune^ft  bounty,  because,  by  the  16th  rqle  of  that  cor- 


Sect.  18.  Charitable  Uses.  197 

poration^  it  is  to  be  placed  out  in  the  public  funds  till 
laid  out  in  proper  purchases  of  lands,  was  in  one  case 
held  within  the  Act ''.  But  in  Grayson  v.  Atkinson  *, 
where  a  testator  gave  40/.  to  be  applied  towards  pror 
curing  Queen  Anne's  bounty;  and  till  that  could  be 
obtained  the  interest  of  the  same  was  to  go  towards 
augmenting  the  curate's  salary  ;  though  the  rule  of 
the  commissioners  of  the  bounty  was^  that  if  anybody 
>vill  give  2001.  they  will  add  200/.  more,  the  whole 
to  be  laid  out  in  land;  Lord  Hardwicke  thought  it 
bard  to  extend  the  statute  of  mortmain  to  that  case  ; 
and  as  the  testator  had  not  expressly  directed  the 
money  to  be  laid  oijt  in  land,  he  would  consider  it  as 
a  legacy  of  money,  and  direct  it  to  be  laid  out  in  the 
funds;  which,  he  said,  would  not  prevent  the  end 
designed  of  procuring  the  Queen's  bounty  ;  for  the 
commissioners  might,  nevertheless,  lay  out  their  pro- 
portion of  the  augmentation  money  in  land :  the 
secretary  to  the  commissioners  having  reported  that 
though  the  rule  was  as  above  stated,  yet  there  was 
another  rule  or  bye-law — that  the  donations  of  testar 
tors  should  have  effect. 

Upon   similar  principles  to  those  which  prevailed  i 

in  the  last-mentioned  cases,  it  has  been  determined 
(4)  that  where  a  man  devised  money  to  a  charity,  and 

•  Ambler,  637.  Widmore  v.  Woodrofffe.  *  2  Vex.  464. 


(4)  Grimmett  v.  GriiDmett,  Arobl.  210.  Collectanea  Juridica 
1  Vol.  454-  But  in  the  case  of  Grieves  v.  Case,  4  Bro.  C.  C.  67. 
Ashharst  and  Eyre,  Lords  Commissioners,  held  that  a  direction  to 
place  money  at  interest^  until  an  eligible  purchase  of  land  could  be 
made,  was  holden  to  be  within  the  statute.  And  they  obsenred 
that  Grimmett  v.  Grimmett  turned  upon  a  jery  nice  criticism  of  th« 
eiprMtioiu 


19S  Making  and  publishing  Wills.      Chap.  I. 

directed  it  to  be  laid  out  in  the  public  funds,   till  the 
whole  could  be  laid  out  in  lands  to  the  satisfection  of 
his  trustees,  such  devise  was  not  within  the  statute 
under  consideration  :  for  though,  if  a  person  directed 
money  tp  be  laid  out  in  lands  to  a  charitable  use,  it 
would  be  void,  yet  in  this  case  the  Court  would  order 
the  money  to  be  placed  in  the  funds  till  the  purchase 
was  made.    And  so  also  where  a  man  gave  it  in  such  a 
manner  as  that  the  land  to  be  purchased  was  the  final 
end  of  the  thing  given,  yet  where  there  was  sufficient 
room  for  the  Court  to  say  there  was  a  discretionary 
power  in  the  trustees  to  lay  out  the  money  one  way 
or  another^  either  in  the  funds  or  in  lands,  such  de- 
vise ought  to  be  held  good  upon  the  same  principle 
on  which  the  awe  of  Soresby  v.  Hollins  was  decided. 
Here  the  direction  was  to  lay  out  the  money  in  the 
funds  until  it  could  be  laid  out  in  lands  to  the  satis- 
faction of  the  trustees.    When  could  that  be  ?  Not 
while  the  statute  of  9  Geo.  2.  was  in  force.    To  do 
so  would  be  to  act  in  opposition  to  their  trust.    And 
in  a  late  case  in  the  King's  Bench  where  there  was  a 
devise  to  trustees^  of  land  to  be  applied  by  them  and 
their  successors,  and  the  ministers  for  the  time  bein^ 
of  a  Methodist  congregation^   as  they  should  from 
time  to  time  think  fit ;  it  was  clearly  held  not  within 
the  statute^  and  that  the  trustees  might  recover  at 

* 

law,  however  the  Court  of  Chancery  might  after- 
wards direct  the  application  of  the  fund  ^ 

forth^^op.  To  support  that  which  at  the  time  of  the  will  was 
^r  of  "  *"  mortmain,  having  been  originally  given  before  the 
wadV'm  "^  statute,  is  held  to  be  a  legitimate  object  of  a  will ;  as 
njortmain,  yrhete  a  bequest  was  made  of  200/.  to  repair  a  free 

[  6  East,  328.  Doe  on  dem.  Toone  and  West  v.  Copestake« 


Stct.  18.  Charitable  Use9.  199 

chapel';  but  ground  cannot  be  purchased  for  the 
purpose  of  erection*.  It  has  also  been  decided  that 
where  before  the  statute  a  testator  devised  the  whole 
profits  of  an  estate  to  a  charity^  if  the  rents  at  any 
time  after  the  statute  should  be  increased^  they  must 
go  to  the  inprease  of  the  charity^. 

But  in  a  case  "^  where  money  was  given  to  build  a 
church  where  a  chapel  stood^  and  the  Bishop  dis« 
tented^  the  same  favouring  maxims  which  seem  to 
have  pfeyailed  in  many  other  cases  where  the  object 
has  failed^  were  not  adopted  by  Sir  Lloyd  Kenyon^ 
Master  of  the  RoUs^  who  refused  to  apply  the  money 
towards  repairing^  or  otherwise^  saying  that  the  in- 
tention must  be  implicitly  followed^  or  nothing  could 
be  done.  And  in  the  case  of  Mog  v.  the  President 
of  Bath  Hospital  ^  though  Lord  Hardwicke  said^  that 
since  the  statute  of  mortmain^  9  Geo.  3.  c.  36.  he  had 
endeavoured  to  give  charitable  legacies  etTect  as  far  • 
as  he  could  (5) ;  yet  he  would  not  set  up  new  rules 

*  Ambl.  G51.  Harris  v.  Barnes,  same  v.  Nash. 

*  Ambl.  751.  Att.  Gen.  v.  Hyde.      3  Bro.  C.  C.  588. 

^  AmbL  190.    Att.  Gen.  v.  Johnson,    Ambl.  301.    Same  tr« 
Sparks,  and  see  7  Vez.  Jun.  340. 

*  1  Bro.  C.  C.  444.    Att.  Gen.  v.  Bishop  of  Oxford.    See  also 
S  Bro.  C.  C.  428. 

*  2  Vez.  52. 


(5)  Where  a  snm  of  money  was  left  towards  establishing  a 
school,  Lord  Longhborough  thought  that  though  under  this  dispo- 
sition  be  could  not  direct  any  part  to  be  laid  out  in  land  or  build- 
ing, yet  the  master  might  teach  in  his  own  house  or  in  the  church. 
And  he  ordered  a  scheme  to  be  laid  before  the  Master  in  Chancery 
which  would  not  include  the  application  of  any  part  of  the  tilw^ 
deads  to  the  porchase  or  renting  of  l(uid«  4  Bro.  C.  C«  620.  a.*a 
Gen.  9.  Williams. 


too  Making  '-and  publishing  Wills.      CHAf .  I. 

Assets  not  jq  avoid  that  statute.     And  his  Lordship  Refused  to 
infavourof  marshal  asscts  in  favour  of  a  charity,    or^  in  other 

a  charity.  ^^^  *^ 

words,  to  throw  the  debts  find  legacies  on  the  real 
estate,  in  order  that  the  personal  estate  might  be  ap- 
plied to  the  charitable  use*.  And  though  in  the  At- 
torney Genera]  v.  Caldwell',  where  a  testator  willed 
the  residue  of  his  personal  estate  consisting  of  his  ef- 
fects, annuities,  mortgages^  bonds,  and  notes,  to  be 
sold,  and  the  produce  given  to  a  charity,  the  devise 
of  the  mortgages  b^ing  void,  the  court  ordered  them, 
as  being  part  of  the  residue  only,  to  be  first  applied 
in  payment  of  debts,  so  as  to  leave  a  larger  fund  for 
the  charity,  yet  Sir  Uoyd  Kenyon,  in  a  subsequent 
case*  declared  he  could  not  recognize  the  distinction 
between  a  specific  gift  of  a  mortgage,  and  a  gift  of  a 
residue  in  which  it  is  comprised.  In  both  cases  it 
was  an  interest  in  land  which  could  not  pass  by  the 
statute,  but  must  go  in  favour  of  the  parties  legally 
intitled  to  the  benefit  of  it.  And  he  ordered  the 
debts,  legacies,  and  costs  of  the  suit,  to  be  paid  out 
of  the  testator's  general  personal  estate,  and  out  of 
the  monies  secured  upon  mortgage  pro  rata,  and  the 
residue  of  the  mortgages  to  go  to  the  next  of  kin. 

It  never  has  been  doubted  since  the  statute  of 
Geo,  2.  that  a  plain  direction  in  a  will  to  purchase 
land  for  a  charitable  use  is  void  by  the  statute. 
But  a  bequest  of  money  to  be  laid  out  in  repairing 
what  was  already  in  mortmain,  or  even  in  building 
upon  land  alrSady  consecrated  and  appropriated,  as 
in  or  towards  re-building  a  church  or  a  parsonage- 
house^  has  been  determined  to  be  clear  of  the  statute 

•  2  Vez.  52.     Ainbl.  614.    4  Bro.  C.  C.  153.  '  Ambl.  635. 

'  Alt.  Gen.  v.  Earl  of  Winchelsea,  3  Bro,  C.  C.  373. 


Sect.  18.  Charitable  Uses.  SOI 

above-mentioned^.     And  it  seems  that  if  a  bequest  where th« 

*  mode  of 

of  money  be  made,  to  be .  disposed  of  to  a  charitable  dispositjou 
use,  leaving:  the  mode  of  disposition  undefined,  there  ed,it8een« 

^  *  ^  a  purchase 

is  nothing:  in  the  statute  to  restrain  the  trustees  from  may  be 

*-*  ^  ,  made  for 

laying  out  the  money  in  the  purchase  of  land,  since  value  by 
by  the  2nd  section  of  the  last-mentioned  statute,  pur-  tees, 
chases  for  valuable  consideration  are  expressly  saved. 
But  if  there  is  occasion  for  coming  into  a  C!ourt  of 
Equity  for  direction,  that  Court  will  not  direct  a  pur- 
chase of  land.  Lord  Hard  wickers  opinion,  as  ex- 
pressed by  him  in  the  case  of  Yaughan  v.  Farrer*, 
was,  that  a  bequest  of  money  for  erecting  a  hospital 
or  schooljj  \yas  not  within  the  mortmain  Act ;  because 
it  did  not  necessarily  follow  that  any  new  purchase 
of  land  should  be  made  for  the  purpose,  which  might 
have  been  equally  w  ell  accomplished  by  building  upoA 
land  already  in  mortmain,  or  by  a  gift  of  land,  or  by 
hiring  a  house.  In  another  case^  it  was  said  that 
sach  a  bequest  to  erect  a  school  was  good  if  any  piece 
of  ground  already  in  mortmain,  or  as  a  mere  gift 
from  private  generosity,  could  be  procured.  But  in 
a  subsequent  case*  where  the  circumstance  of  there 
actually  being  a  piece  of  land  in  mortmain  in  the 
parish  where  the  charity  was  to  be  erected  was 
much  insisted  upon.  Lord  Apsley,  Chancellor,  said, 
that  directions  in  a  will  to  erect  a  school-house 
in  general  imports  an  intention  to  purchase;  and 
though  it  appears  that  there  is  a  vacant  piece  of 
ground  in  the  parish,  the  will  does  not  point  at  that 
piece  of  ground.     It  does  not  say  to  repair  or  build  a 

*  2  Vex.  189.     N.  Brodie  r.  the  Duke  of  Chandos,  1  Bro.  C.  C. 

444 

'  %  Vez.  187,        •       *  Att.  Gen.  v.  Bowles,  S  Vez.  Jun.  547. 
'  Att.  Gea.  v.  Hyde^  Ambler,  751. 


903  Making  and  publishing  Wilh.     CnkP.  I. 

achool-house  on  that  piece  of  ground.     And  his 
Lordship  dismissed  the  information* 

Other  cases  have  been  equally  opposed  to  Vaughari 

V.  Farrer^  and  the  Attorney  General  v.  Bowles.    And 

the  doctrine  seems  now  to  be  settled  that  a  bequest 

to€^"im-  ^^  erect"^  a  charitable  foundation  imports  prima  focie, 

poru  a       tiia^t  ]q||(1  is  tQ  })e  boui^bt^   unless  the  testator  by  his 

purchase.         ^  ^  o     '  ^  j 

will  manifests  his  purpose  that  it  is  to  be  otherwise 
procured^  or  expressly  adverts  to  land  already  in 
mortmain".  The  case  of  Chapman  v.  Brown*,  in 
which  there  was  a  trust  for  building  or  purchasing  a 
chapel,  where  it  might  appear  to  the  executors  to  be 
most  wanted,  and  if  any  overplus,  it  was  to  go  to  a 
faithful  gospel  minister,  not  exceeding  20/.  per  an- 
num, and  if  any  further  surplus,  for  such  charitable 
uses  as  the  executors  should  think  proper ;  though 
standing  by  itself,  a  bequest  of  a  residue  to  such  cha- 
ritable purposes  as  the  executors  should  think  proper 
was  a  good  bequest,  yet  the  whole  trust  was  declared 
void :  for  the  bequest  to  purchase  was  clearly  void  by 
the  words  of  the  Act ;  the  trust  to  build  had  been 
also  established  to  be  within  the  Act ;  that  bequest 
therefore  fell  to  the  ground :  then  the  bequest  on  be* 
half  of  the  minister,  as  being  clearly  intended  for  a 
minister  of  the  chapel  so  directed  to  be  built,  could 
not  stand  as  the  thing  failed  with  which  it  was  inse-* 
parably  connected'.    And  lastly,  althougb  standing 

*  Lord  Hardwicke  seemed  to  think  that  to  tred  might  be  taken 
as  meaning  to  found  or  endow. 

*  8  Vez.  Jun.  191.    Att.  Gen.  o.  Parsons ;  and  see  3  Bro.  C.  C. 
S88.  *  6  Vez.  Jan.  191. 

*  I  Ves.  534.  Att.  Gen.  v.  Whorwood.    See  10  Vez.  Jan.  534 


Sect.  18.  Charitable  Uses.  203 

by  itseJf,  a  bequest  of  a  residue  to  be  employed  in 
such  charitable  purposes  as  the  executors  shall  think 
proper  is  a  good  bequest ;  and  supposing  it  had  been 
legal  to  bestow  the  money  as  testatrix  had  directed  in 
the  two  first  instances^  after  such  purposes  had  been 
answered^  there  would  have  been  a  good  bequest  of 
this  residue^  yet  as  the  prior  bequest  had  failed  which 
was  to  constitute  this  residue,  and  as  it  was  impossible 
to  ascertain  how  much  would  have  been  employed  in 
building  the  chapel^  and  no  direction  could  be  framed 
for  the  master  to  proceed  upon  on  a  reference  to  hini^ 
the  testatrix  having  given  no  ground  for  inferring 
what  kind  of  chapel  was  intended,  this  ulterior  be- 
<]uest  was  held  to  be  void  for  uncertainty ;  and  the 
real  estate  was  decreed  to  the  heir  at  law^  and  the 
personal  to  the  next  of  kin  (6). 

Where  property  is  left  generally  in  trust  for  cha-  How  gene- 
ritable   uses  without  defining  them^    the  Court  of  bie  be- 
Chancery  will  uphold  such  a  trust  as  a  valid  bequest^  w^fhoot 
but  then  the  application  either  by  the  trustees,  or  the  ^uon^f  * 
Crown^  must  be  to  purposes  expressed  in  the  statute  aJe  deau  *' 
43  El.  c.  9.  or  purposes  analogous.     If  the  charitable  quny!"^ 
purposes  are  defined  in  the  will,  they  must  be  such  /^„j  ^j,^ 
as  the  law  recognizes  as  charitable  purposes.     But  a  nodlmu of 
bequest  in  trust  for  such  objects  of  benevolence  and  pi^^^* 
liberality  as  the  trustee  in  his  own  discretion  should 
most  approve,  cannot  be  supported  as  a  charitable 


(6)  The  trust  of  an  annuity  for  a  charity  charged  upon  a  de« 
Tised  estate  being  held  yoid  under  this  statute,  it  was  ruled  that 
the  annuity  did  not  pass  by  the  residuary  disposition,  but  sunk  for 
tile  benefit  of  the  specific  devisees,  1%  Vez.  Jun.  497*  But  note, 
there  was  an  express  exception  out  of  the  residue  of  what  he  had 
before  disposed  of. 


S06  Making  and  publishing  U^s.       Chap,  i 

person  shall  have  any  child  or  children  under  the  age 
of  21  years,  and  not  married  at  the  time  of  his  death, 
it  sliall  be  lawful  for  the  father  of  such  child  or  child- 
ren, whether  born  at  the  time  of  the  decease  of  such 
father,  or  at  that  time  in  ventre  sa  mere,  or  whether 
such  father  be  within  the  age  of  21  years  or  at  full  age, 
by  his  deed  executed  in  his  life-time,  or  by  his  last 
will  and  testament  in  writing,  in  the  presence  of  two 
or  more  credible  witnesses,  in  such  manner,  and  from 
time  to  time,  as  he  shall  think  fit,  to  dispose  of  the 
custody  and  tuition  of  such  child  or  children,  during 
such  time  as  he  or  they  shall  respectively  remain  un- 
der the  age  of  21  years,  or  any  lesser  time,  to  any 
person  or  persons,  in  possession  or  remainder,  other 
than  popish  recusants :  and  such  persons  to  whom 
the  custody  of  such  child  shall  be  so  disposed  or  de- 
mised, may  maintain  an  action  of  ravishment  of  ward 
or  trespass  against  any  person  who  shall  wrongfully 
take  away  or  detain  any  such  child,  for  the  recovery 
of  such  child,  and  recover  damages  for  the  same,  in 
the  same  action  for  the  use  and  benefit  of  such  child. 
And  such  person  to  whom  the  custody  of  such  child 
shall  be  so  disposed  or  devised,  may  take  into  his  cus- 
'  tody  to  the  use  of  such  child,  the  profits  of  all  lands, 
tenements  and  hereditaments  of  such  child,  and  also 
the  custody,  tuition,  and  management  of  the  goods, 
chattels,  and  personal  estate  of  such  child  till  his  or 
her  age  of  21  years,  or  any  less  time,  according  to 
such  disposition  aforesaid,  and  may  bring  such  ac- 
tions in  relation  thereto,  as  by  law  a  guardian  in  com- 
mon socage  may  do. 

Before  entering  upon  the  consideration  of  this  sta- 
tute of  Charles,  it  seems  proper  to  make  a  few  ob- 


Sect.  19.      Appointment  of  Guardians.  207 

servations  on  the  guardianships  at  common  law  and 
by  custom. 

By  the  custom  of  the  province  of  York  (which  Gnardims 

*  ^  at  common 

custom  the  statute  of  12  Car.  8,  being  general^  UwanUby 
does  of  course  controul  wherever  they  are  in  op- 
position) the  father^  by  his  last  will  and  testament, 
might  for  a  time  commit  the  tuition  of  his  child  and 
the  custody  of  his  person;  which  testament  and  ap- 
pointment was  to  be  confirmed  by  the  ordinary,  who 
was  to  carry  the  same  intb  execution.  And  upon  the 
omission  of  the  father  to  exercise  his  power,  the  mo- 
ther might,  after  his  death,  make  a  similar  appointment. 
And  as  the  statute  confines  the  power  of  appointing 
a  testamentary  guardian  to  the  father  only,  the  cus- 
tom still  operates  within  its  local  extent,  to  give  an 
authority  to4he  mother  in  respect  to  the  personal  es- 
tate (to  which' only  the  custom  extends)  which  she 
ivouUi  itot  possess  by  virtue  of  the  statute.  The  sta- 
tute of  Charles  the  second  has  no  negative  words  to 
restraia  the^  custom  ui  this  respect 

Bythe  same  statute  whereby  the  father's  power  of 
appointing  a  guardian  of  his  children  by  will  was 
created,  the  tenure  by  knight's  service,  out  of  which 
theiguardianship  by  chivalry  arose,  was  abolished^ 
aad-with  it  fell  to  the  ground  this  dominion  of  lords 
over  the  beirs  of  their  tenants,  which  was  as  inconsis- 
tent with  the  rights  and  duties  of  nature,  as  the  prin- 
ciples of  rational  and  liberal  policy.  For  this  guard- 
ian was  not  accountable. for  the  profits  made  of  the 
infant's  land  during  the  wardship  ;  and  though  he  it 
said  to  have  been  subject  to  the  duty  of  maintaining 
the  infant,  it  does  not  well  appear  by  what  means  he 


i!08  Making  and  puhlishing  WiUs.        Chap^  L 

tva*  to  be  compelled  so  to  do,  in  a  manner  agreeable 
to  the  fortune  and  rank  of  such  infant.  This  guard- 
ianship existed  rather  for  the  interest  and  profit  of  the 
guardian^  than  as  a  trust  for  the  benefit  of  the  ward, 
and  was  saleable,  transferable,  and  transmissible  like 
any  other  property. 

The  other  descriptions  of  guardianship  by  nature 
— ^by  nurture — and  that  arising  out  of  socage  tenure, 
still  subsist,  though  very  little  is  now  heard  of  them 
in  our  courts,  since  this  office  is  usually  assigned  un- 
der the  statute  above-mentioned  ;  and  where  that  is 
neglected  to  be  done,  the  jurisdiction  of  the  Lord 
Chancellor,  now  established,  though  of  dubious  and 
obscure  origin,  is  generally  resorted  to.  These  three 
last-mentioned  kinds  of  guardianship  are  all  exercis- 
ed with  a  responsibility  for  the  profits  of  the  estate. 
If  an  estate  were  left  to  an  infant,  his  parent,  by 
the  common  law,  might  be  bis  guardian  by  nature. 
And  even  while  the  tenure  by  knight's  service  conti^ 
nued,  the  father,  claiming  this  guardianship  by  na- 
ture, was  entitled  to  the  custody  of  the  infant's  person, 
even  against  the  lord  in  chivalry,  which  was  a  privi- 
lege not  given  by  the  law  to  the  mother  when  hap- 
pening to  be  guardian  by  nature,  as  she  might  in 
some  cases  be.  The  father  and  mother  may  also  be 
the  guardians  by  nurture,  where  that  species  of  guar- 
dianship is  let  in  by  the  want  of  any  other  superior 
claims,  for  it  only  takes  place  where  the  infant  is  with* 
out  any  other  guardian.  This  extends  no  further  than 
to  the  custody,  and  government  of  the  infant's  per- 
son, and  determines  at  14  in  both  males  and  females  ; 
when,  if  no  other  guardian  is  appointed  by  the  choice 
of  the  infant  or  otherwise,  the  interval  between   14 


Sect.  19.      Appointment  of  Guardians.  209 

and  21  seems  to  fall  under  the  guardianship  by  na- 
ture ;  as  appears  likewise  to  be  the  case  after  the 
g;uardianship  by  socag:e  expires,  which  is  also  at  14 
in  both  males  and  females. 

The  guardianship  in  socage  can  only  take  place 
on  a  descent  like  the  guardianship  by  chivalry,  and 
arises  only  where  the  infant  is  seised  of  lands,  or  cfther 
hereditaments  lying  in  tenure.  The  title  to  it  is  in 
such  only  of  the  infant's  next  of  blood  as  cannot  be 
inheritors,  according  to  the  laws  of  descent  in  real 
property,  to  the  socage  estate,  and  is  not  restricted  . 
to  the  whole  blood.  And  the  quality  which  princi- 
pally distinguishes  this  guardianship  from  the  guard- 
ianship in  chivalry  is,  that  it  is  a  personal  trust  wholly 
for  the  benefit  and  interest  of  the  infant.  The  power 
of  this  guardian  over  personal  estate  has  been  doubt- 
ed ;  but  the  learned  annotator  on  the  treatise  of  equity 
has  observed,  that  the  custody  of  the  person  should 
seem  to  draw  after  it  the  custody  of  every  description 
of  property  for  which  the  law  has  not  otherwise  pro- 
vided ;  which  idea,  he  adds,  receives  countenance 
from  the  instance  of  copyholds  and  inheritances  not 
lying  in  tenure  being  placed  by  the  law  in  the  hands 
of  this  guardian ;  and  he  further  remarks  that  this 
opinion  is  strongly  confirmed  by  the  manner  in  which 
the  12  Car.  2.  c.  24.  regulates  the  powers  of  the 
guardiaji  which  it  enables  a  father  to  appoint,  for  that 
Matute  authorizes  such  guardian  to  take  the  custody 
of  the  infant's  personal  estate,  as  well  as  of  his  lands, 
tenements,  and  hereditaments,  and  provides  that  ha 
may  bring  such  action  or  actions  in  relation  thereto, 
as  by  law  a  guardian  in  common  socage  might  do  *. 
Vet,  there  is  an  expression  of  Lord  Chief  Justice 

:  Fonbl.  Treat.  Eq.  3d,  Ed.  p.  242. 


SIO  Making  and  publishing  WUU.     Chap.  I. 

Vaughan  ^  which  conveys  a  different  opinion ;  for, 
speaking  of  the  guardian  under  the  statute^  he  eays, 
*'  this  new  guardian  hath  the  custody  not  only  of  the 
lands  descended  or  left  by  the  father,  but  of  lands 
and  goods  any  way  acquired  or  purchased  by  the  in- 
font^  which  the  guardian  in  socage  had  not." 

But  this  guardianship,  as  all  others  which  might 
otherwise  take  place  at  the  death  of  the  father,  is  su- 
perseded by  the  exercise  of  the  power  given  him 
by  the  statute  12  Car.  2.  c.  24.  which  professedly 
proceeds  upon  the  model  of  the  guardianship  by 
socage. 

tory*!^^"'       Under  this  statute  it  is  clear  upon  the  words  that 
pointment.  ^Qnc  but  the  father  can  appoint,  and  it  is  held  equally 
clear  according  to  the  sense,  that  the  guardian  ap- 
pointed by  him  cannot  appoint  another  guardian;  for 
it  is  a  personal  trust,  and  not  assignable  *". 

The  power  as  to  its  objects  is  held  to  be  confined 
to  legitimate  children^  (in  which  are  included  those 
in  ventre  sa  mere,)  and  by  the  words  of  the  statute 
these  must  be  under  21,  and  unmarried,  at  the  decease 
of  the  father.  It  extends  not  to  illegitimate  children, 
though  such,  if  females,  have  been  held  to  be  within 
the  statute  of  Philip  and  Mary  (2). 

*  Vaugh.  186.  •  Vaugh.  179. 


(2)  See  Strange,  1163,  Rex  o.  Ck>nieforUi.  But  the  conrt  wiU, 
unless  there  is  some  objection,  adopt  the  nomination  of  the  father. 
2  Bro.  C.  C.  583.  Ward  o.  St.  Panl,  and  note.  So  it  seems  also 
if  the  appointment  be  not  made  agreeably  to  the  statute^  Dick. 
627.  May  vi  May. 


Sect.  19.       Appointment  of  Guardians.  211 

« 

If  the  will  be  made  merely  for  naming  a  guardian  Probate 
under  this  statute,   and  for  no  other  purpose,  such  ^^J^  ^^ 

r      r        ^  validity  of 

will  need  not  be  proved  in  the  spiritual  court :  for  as  the  ap- 

*  ■■  pomtment 

in  such  ease  the  appointment  takes  effect  solely  by  under  tht 
force  of  the  statute^  the  temporal  courts  are  the  pro- 
per judges  thereof^.  But  if  the  will  contains  also  dis- 
positions of  the  personalty,  it  seems  that  the  whole 
will  roust  be  proved,  which  probate  will  be  effectual 
80  far  as  the  personalty  is  concerned,  but  of  no  avail 
in  respect  to  the  appointment  of  guardian.  And 
it  seems  to  be  immaterial  by  what  words  the  ap- 
pointment is  signified^  if  the  meaning  sufficiently 
appears '. 


If  the  father  exercises  his  power  of  appointment  ^JJJ*^°Jl 
under  the  statute  by  deed,  as  he  may,  yet  it  has  been  ^«  ™***« 
held  that  such  disposition  by  deed  may  be  revoked  by  And  such 
wiir.     But  no  appointment  can  be  revoked  by  a  sub-  mentis  r^w 
sequent  testamentary  appointment,  unless  it  be  exe-  ^m?  ^  ^ 
cnted  according  to  the  statute,  or  directly  import  to  ^nt  such 
be  a  revocation ;  which  has  been  determined  in  ana-  ^  execut. 

ed  as  the 

logy  to  the  cases  on  this   part  of   the    statute  of  *tatntedi. 
frauds  ^ 


Where  the  appointment  has  been  roade^  the  guar-  infancy  of 
diansbip  shall  not  be  determined  by  the  marriage  of 
the  infant  before  21,  for  Abe  statute  declares  that  such 
^ardianship  shall  continue  during  the  time  thai;  lie 
shall  remain  under  21 .  The  father,  though  under  age 
himself,  may  appoint  by  virtue  of  this  statute,  and 
thoQgh  he  could  not  devise  the  land  in  trust  for  the 

*  1  Vent.  M7.  Lady  Chester's  Case.        •  Swiab.  p.  3.  c.  12. 

FtnchN  ilop«.3^3.  Lord  Shaftesbury  v.  Hannam'. 
'  Vid.  post.  BATOcati^a  of  Wills.  Chap.  II.  sect.  1.    . 


S18  Making  and  publishing  Wills.      Chap.  I' 

infknt  directly,  yet  the  land  will  follow  as  an  incident 
by  law  attending  upon  the  custody  of  the  heir*. 

Mcmcdiet.  The  guardian  when  regularly  appointed  under  this 
statute  takes  place  of  all  other  guardians^  and  may 
have  a  writ  of  ravishment  of  ward  if  the  infant  be 
taken  from  him,  as  the  guardian  by  knight's  service, 
or  by  socage,  might  have  had  at  common  law,  and 
•hall  recover  damages  as  for  the  ward's  benefit'. 

*  This  guardian  being  constituted  upon  the  model  of 
the  socage  guardian,  and  coming  in  the  place  of  the 
Setther,  has  an  interest  joined  with  his  trust,  though 
not  an  interest  for  himself  \  But  though  it  was 
agreed  in  the  case  of  Parry  v.  Hodgson  ^  that  a  tes- 
tamentary guardian  by  the  statute,  until  the  infant 
vras  21  years,  had  the  same  interest  as  a  guardian  in 
socage  till  the  infant  was  14 ;  yet  it  was  holden  that 
a  testamentary  guardian  could  not  make  a  lease  of  the 
infant's  land,  but  that  such  lease  was  absolutely  void. 

Powen  of  It  seems  he  may  pay  out  of  the  rents  and  profits 
^gnar-  the  interest  of  any  real  incumbrance,  and  even  the 
principal  of  a  mortgage  °',  but  it  has  been  held  that 
he  is  not  compellable  to  apply  the  profits  of  the  in- 
font's  estate  to  pay  off  the  bond  debts  of  the  ances- 
tor''. Nor  can  he^  without  the  direction  of  the  court, 
convert  the  real  into  personal  or  the  personal  into  real 
estate*.  He  is  subject  to  an  action  of  account  as  soon 
as  his  guardianship  is  at  an  end^  but  not  before^  for 

*  Vaugban,  187.  '  S  Wils.  1^9.  135. 
'  See  the  case  of  Mr.  J.  Ejre       *  Prec.  in  Ch.  137. 

«•  the  G>ante88  of  Shaftesburji       *  2  Yern.  606. 
9  P.  Wms.  103.  ;  I  Vem.  403. 4311 

*  VaugbaD^  \9i.  2F.  Wni.  liX 


Sect.  19.     Appointment  of  Guardians.  .  SIS 

the  rale  of  the  common  law  is^  that  an  action  of  ac- 
count does  not  lie  while  the  guardianship  continues. 
However,  in  equity,  the  infant  may,  by  prochein  ami, 
aoe  his  guardian  for  an  account  during  the  minority. 
That  court,  it  is  said,  often  gives  extrajudicial  direc* 
lions  for  an  infant,  and  hears  a  person  as  amicus 
curiae.  And  it  was  observed,  by  Lord  Hardwicke, 
that  in  Lord  Macclesfield's  time,  in  the  case  of  Lord 
Dudley,  a  stranger  came  and  complained  of  the  abuse 
of  the  infant's  estate  by  the  guardian ;  and  upon  this 
application,  and  his  undertaking  to  pay  the  costs,  the 
court  directed  the  master  to  examine  the  receiver's 
•accounts,  and  see  whether  the  infant  was  wronged  or 
not'.  By  the  statute  4  Anne,  c.  16.  actions  of  ac- 
count may  be  brought  against  the  executors  or  ad- 
ministrators of  guardians.  But  a  guardian  is  entitled 
to  all  his  reasonable  costs  and  expences ;  and,  there- 
fore, he  ought  not  to  be  charged  as  receiver,  because 
then.it  seems  he  would  lose  these  costs  and  expences, 
but  as  guardian,  by  name ;  for  costs,  it  is  said,  are  in 
general  allowed  only  to  guardians  or  bailiffs,  as  such, 
and  not  to  mere  receivers  *. 

'  Earl  of  Pomfret  v.  Lord  Windsor,  2  Vez.  484.  See  also 
«  P.  Wms.  119.  3  Atk.  625. 

*  1  Freem.  178.  1  Lso.  219.  and  sss  the  statute  4  Anne,  e.  IS. 
sec.  27, 


*14  Making  and  publishing  Wills.      Chaf.  I. 


Section  XX. 

Statute  of  fraudulent  Devises. 

A  DEBTOR  by  specialtres  mighty  by  devisih^  hili 
lands^  have  deprived  his  specialty  creditors  of  air  re* 
medy  against  this  part  of  his  property^  until  the  sta- 
tute 3  and  4  William  and  Mary^  c.  14.  was  passed.  But 
by  this  statute^  ^'  reciting  that  it  was  not  reasonable 
or  just  that  by  the  practice  or  contrivance  of  any 
debtors  their  creditors  should  be  defrauded  of  their 
just  debts^  it  was  enacted  that  all  wills  and  testaments, 
limitations,  dispositions,^  and  appointments  of  or  con- 
cerning any  manors,  messuages,  lands,  tenements, 
and  hereditaments,  or  of  any  rent,  profit,  term,  or 
charge  out  of  the  same,  whereof  any  person,  at  the 
time  of  his  or  her  decease,  should  be  seised  in  fee 
simple  in  possession,  reversion,  or  remainder,  or  have 
power  to  dispose  of  the  same  by  his  or  her  last  will 
and  testament  thereafter  to  he  made,  should  be  deemed 
and  taken,  only  as  against  such  creditor  or  creditors  as 
aforesaid,  his^  her,  or  their  heirs,  successors,  execu- 
tors, administrators,  and  assigns,  and  every  of  them^ 
to  be  fraudulent,  and  clearly,  absolutely,  and  utterly 
void,  frustrate,  and  of  none  effect." 

And  by  section  3.  ^^  for  the  means  that  such  credi- 
tors may  be  enabled  to  recover  their  said  debts,"  it 
was  enacted,  ^'  that  in  the  cases  before-mentioned^ 
every  such  creditor  or  creditors  should  and  mi^ht 

m 

have  and  maintain  his,  her,  or  their  action  of  deUt 
upon  his,  her,  or  their  said  bonds  and  specialties, 
against  the  heir  and  heirs  at  law  of  such  obligor  or 
obligors^  and  such  devisee  or  devisees  jointly,  and 


Sect.  20.      Statute  of  fraudulent  Devises.  815 

such  devisee  or  devisees  should  be  liable  and  charge- 
able for  a  false  plea  by  him  or  them  pleaded^  or  for 
not  confessing  the  lands  or  tenements  to  him  de- 
scended." 

And  by  section  4.  it  was  enacted^  ^'  that  where  there 
should  be  any  limitation  or  appointment^  devise  or  * 

disposition^  of  or  concerning  any  manors^  &c.  for  the 
raising  or  payment  of  any  real  and  just  debt  or  debts, 
or  any  portion  or  portions^  sum  or  sums  of  money^  for 
any  child  or  children  of  any  person  other  than  the 
heir  at  law^  according  to  or  in  pursuance  of  any  mar* 
riage  contract^  or  agreement  in  writings  bona  fide 
made  before  such  marriage,  the  same  and  every  of 
them  should  be  in  full  force ;  and  the  same  manors, 
&c.  should  be  holden  and  enjoyed  by  every  such  per- 
son or  persons,  his,  her,  and  their  heirs,  executors, 
administrators,  and  assigns,  for  whom  the  said  limi- 
tation, appointment,  devise,  or  disposition  was  made^ 
and  by  his,  her,  and  their  trustee  or  trustees,  his,  her, 
and  their  heirs,  executors,  administrators,  and  assigns, 
for  such  estate  or  interest  as  should  be  so  limited  or 
appointed,  devised  or  disposed,  until  such  debt  or 
debts,  portion  or  portions,  should  be  raised,  paid,  and 
satisfied." 

And,  lastly,  it  was  enacted,  ''  that  all  and  every  de- 
visee and  devisees  made  liable  by  that  act^  should  be 
liable  and  chargeable  in  the  same  manner  as  the  heir 
at  law,  by  force  of  that  act,  notwithstanding  the  lands, 
tenements,  and  hereditaments  to  him  or  them  devised 
should  be  aliened  before  the  action  brought." 

This  statute,  in  respect  to  this  part  of  its  provi- 
sions, may  be  considered  as  suppletory  to  that  of  the 


316  Making  and  publishing  Wills,      Chap.  I. 

13  Elizabeth^  c.  5.  against  fraudulent  conveyances, 
and  as  designed  to  extend  the  remedy  to  fraudulent 
deyises. 


It  has  been  determined  that  an  action  of  covenant 
does  not  come  within  the  remedy  given  by  this  statute^ 
which  is  confined  to  cases  of  debt ;  for  though  the 
word  specialties  is  used  as  well  as  bonds^  yet  .when 
the  means  of  recovery  are  provided^  the  intention  of 
the  statute  is  plainly  confined  to  debts^  and  those  spe* 
cialties  on  which  an  action^f  debt  lies.  The  statute 
speaks  throughout  of  debts^  and  a  breach  of  covenant 
cannot  be  considered  as  a  debt.  The  statute  pre* 
scribes  the  means  by  which  such  creditors  shall  recover 
their  debts^  and  in  prescribing  tho6€(  means  it  only 
gives  the  action  of  debt*. 

Of  the  ex-       This  Act  contains^  as  appears  from  what  has  been 
chuuefsay.  abovc  rccitcd^  a  clause  saving  the  effect  of  such  de- 
an^ dll^  vises  and  dispositions  as  are  for  the  payment  of  debts^ 
paj^ent^  which  clause  has  been  held  to  operate  simply  as  an 
o  debts,    exception,  leaving  the  case  of  a  devise  for  the  above 
purpose,  as  well  as  provisions  of  portions  for  children 
in  pursuance  of  marriage  contracts,  entirely  unaffect* 
ed,  and  open  to  the  same  remedy  and  resort  as  before 
the  statute^.     Since  at  common  law  there  was  no  re- 
medy against  a  devisee  for  payment  of  debts,  such  a 
case  always  was  and  still  continues  to  be,  since  the 
statute,  the  subject  of  equitable  jurisdiction,  and  ac- 
cordingly the  assets  are  equitably  distributable,  that 
is,  equally  and  pari  passu  amongst  all  the  creditors^ 
whether  by  specialty  or  simple  contract. 

•  7  East  128.  Wilson  v.  Knubley, 
^  2  Atk.  292.  Ftonket  v.  Peiuoii. 


Sect.  20.     Statute  ofjtaudident  Demises.  31T 

A  devise  for  payment  of  debts  out  of  the  rents  and 
profits  only,  has  been  clearly  held  within  the  excep- 
tion ^  And  it  appears  to  have  been  the  opinion  of 
Lord  C.  J.  Willes,  that  by  virtue  of  the  above-men- 
tioned clause^  a  devise  for  the  payment  of  any  par* 
ticular  debt  upon  simple  contract  is  a  good  devise 
against  bond  creditors'*. 

If  a  devise  for  payment  of  debts  does  not  provide  Ext«d»  tm 

*^   •'  *      ^      ^      charges  of 

for  it  in  a  practicable  manner,  the  case  is  not  within  ^^^}^  ^ 

*  -    equity. 

the  exception ''.  But  since  the  case  of  Bailey  v.  Ekins  , 
the  rule  appears  to  be  settled,  that  if  the  provision 
made  by  the  will  for  the  payment  of  debts  be  eifec- 
tual,  either  at  law  or  in  equity,  the  case  is  out  of  the 
statute  :  so  that  if  the  will,  instead  of  breaking  the 
descent  by  a  regular  devise,  only  charges  the  estate 
with  the  debts  of  the  testator,  this  provision  is  good 
notwithstanding  the  statute  of  fraudulent  devises,  and 
a  court  of  equity  will  act  upon  it ;  which  is  the  same 
thing  as  to  say  that  the  interest  so  provided,  and  which 
equity  draws  out  of  the  mass  going  to  the  heir,  is  dis- 
tributable as  equitable  assets,  among  all  the  creditors 
equally,  and  without  any  regard  to  the  precedency  of 
specialty  creditors. 

Lord  Hardwicke  in  Plunket  v.   Penson',    seem-  Awet*^ 

«        .         i«         .    .  I  .  1         ,        whether, 

eu  to  be  of  opmion,  that  it  was   necessary  the  de-  equitable 
scent  should  be  broken  to  make  the  assets  equita- 
able ;  and  that  if  the  estate  were  suffered  to  descend 
charged  to  the  heir,  or  if  the  heir  were  made  the 

*  2  Atk.  104.    Ridout  v.  Earl  of  Plymouth. 
'  Willes  524.  Gott  v.  Atkinson. 

•  2  Brown,  Ch.  Rep.  614. 

'  7  Vez.  Jan.  319.  and  see  8  Vez.  Jun.  26.  Shephard  v.  Lut- 
widge.     • 
'  %  Atk.  290. 


320  Making  and  publishing  Wills.    Chap.  I. 

others^  then  the  action  should  be  against  the  heir  and 
devisees  jointly^  charging  the  heir  both  as  heir  and 
devisee.  Supposing  the  estate  be  limited  to  several  in 
succession  by  the  devise^  it  seems  proper  to  make 
them  all  defendants  in  respect  of  their  estates ;  as 
where  property  is  devised  to  go  in  strict  settlement, 
making  a  tenant  for  a  life^  with  remainder  to  trustees 
to  preserve  contingent  remainders^  remainder  to  the 
first  and  other  sons  of  the  tenant  for  life  in  tail ;  it 
would  be^'prudentj  if  not  absolutely  necessary,  to 
make  the  heir  together  with  the  tenant  for  life,  the 
trustees  to  preserve,  and  the  son  or  sons  of  the  te^ 
nant  for  life,  parties;  and  as  the  sons  do  not  claim 
by  descent,  the  parol  could  not  demur.  It  is  said, 
indeed,  to  be  the  general  rule  that  where  a  devise  is 
fraudulent  under  this  statute,  and  the  heir  thereby  be- 
comes subject  to  the  action^  ^together  with  the  devisee, 
by  virtue  thereof,  if  such  heir  is  an  infant  the  parol 
cannot  demur  \ 

Of  the  ev      In  respect  to  estates  pur  auter  vie  it  should  be  ob- 
auter  Tie    gervcd,  that  as  bv  the  statute  of  frauds,  29  Car.  2.  c. 

under  this  '  ^  ' 

itatote.  3,  sect.  12.  an  estate  pur  auter  vie,  which  comes  to 
the  heir  as  special  occupant,  is  made  assets  by  descent 
and  devisable  by  a  will  in  writing  signed  by  the  de- 
visor, and  attested  in  his  presence  by  three  or  more 
witnesses ;  so  a  devise  of  such  an  estate  is  also  held 
to  come  within  the  statute  of  fraudulent  devises,  and 
to  be  void  against  specialty  creditors  \ 

^  See  1  Vez.  37.  Beaomont  v.  Thorp,  and  as  to  the  mode  of 

*  —  _ 

pleading  by  the  heir  and  deYisee,  see  Gott  v.  AtkinsoD^*  Willes^ 
527. 
'  See  3  Atk.  405.  Westfaling  o.  Westfaling. 


( ^1  ) 


« 

« 


CHAP.  II. 


REVOCATION  OF  WILLS. 


Section  I. 
Construction  of  Sect  6.  of  the  Statute  of  Frauds. 

Before  the  statute  of  29  Car.  2.  wills  in  writing 
of  real  estates  n]ig;ht  be  revoked  by  parol ;  and,  in- 
deed, after  that  statute,  such  power  would  still  have 
existed,  (as  we  may  conclude  in  analogy  to  the  doc- 
trine of  holding  written  agreements  revocable  by  pa- 
rol  notwithstanding  the  4th  section,)  if  by  the  6th  and 
22nd  sections,  special  provisions  had  not  been  made 
to  prevent  it.  Thus  it  is  held  in  regard  to  the  12  Car. 
2.  c.  24.  giving  power  to  the  father  to  appoint  a 
guardian  of  his  child^  that  the  appointment  under 
that  statute  may  still  be  revoked  by  an  instrument 
made  eocpressljf  for  that  purpose  without  any  attesta- 
tion ;  because  no  positive  provision  was  made  against 
it  by  that  statute '. 

Much  has  been  said  on  the  difference  in  the  pen- 
ning of  the  5th  section  of  the  statute  respecting  the 
execution  of  a  will  of  lands,  and  of  the  succeeding 
section  which  prescribes  and  restricts  the  methods  of 

*  Sse  7  YsSf  JuA.  VfH^  977 •  ex  ptrto  Ildegtsr?  »nt«9  MO* 


2^  Metocation  of  Wills.  Chap.  II. 

revocation.  At  the  end  of  the  case  of  Right  v.  Price* 
in  Douglas's  Reports^  the  learned  Reporter  has  addecl 
a  note^  in  which  he  has  animadverted  upon  the  diffe- 
rence in  the  language  in  the  two  clauses^  which  he 
attributes  to  inaccuracy  in '  the  composition  of  the 
Act ;  and  it  cannot  be  denied^  that  the  variation  in 
the  terms^  where  the  same  principle  must  have  go- 
verned, seems  hard|y  explainable,  but  by  imputing  a 
mistake  to  the  legislature.  By  the  5th  section,  'the 
testator  is  not  required  to  sign  in  the  presence  of  the 
subscribing  tdtnesseSy  but  the  subscribing  witnesses 
are  called  upon  to  attest  in  the  presence  of  the  testator. 
And  Mr.  Douglas  observes  in  the  note  alluded  to,  that 
he  believes  it  is  universally  understood,  that,  to  satisfy 
this  &th  section,  a  testator  must  sign  in  the  presence 
of  the  witness. 

But  by  what  has  been  above  produced  to  the  reader 
on  this  subject,  it  must  have  sufficiently  appeared  to 
him,  that  such  actual  signature,  in  the  presence  of 
the  witnesses,  is  not  held  to  be  requisite,  and  that  it 
is  enough,  if  the  testator  acknowledges  his  hand- 
writing to  the  signature,  or  publishes  and  declares  it 
to  be  his  will,  when  the  witnesses  subscribe  theirat- 
testations. 

By  the  clause  respecting  revocations,  the  subscrip- 
tion of  the  witnesses  is  not  expressly  directed,  while, 
on  the  other  hand,  the  signing  by  the  testator  in  the 
presence  of  the  witnesses,  is  positively  prescribed. 
The  clause  runs  as  follows :  '*  And  moreover,  no  de- 
vise in.  writing  of  lands,  tenements,  or  hereditaments, 
nor  any  clause  thereof,  shall  at  any  time,   after  the 


Sect.  1.  Revoking  Clau^.  *-  2SS 

said  four-and-twentieth  day  of  June,  be  revocable, 
otherwise  than  by  some  other  will,  or  codicil  in  writ- 
ing, or  other  writing  declaring  the  same,  or  by  burn- 
ing, cancelling,  tearing,  or  obliterating  the  same,  by 
the  testator  himself,  or  in  his  presence,  and  by  his  di- 
rections and  consent ;  but  all  devises  and  bequests  of 
lands  and  tenements,  shall  remain  and  continue  in 
force,  until  the  same  be  burnt,  cancelled,  torn,  or  obli- 
terated by  the  testator,,  or  by  his  directions  in  manner 
aforesaid,  or  unless  the  same  be  altered  by  some  other 
will,  or  codicil,  in  writing,  or  other  writing  of  the 
devisor,  signed  in  the  presence  of  three  or  four  wit^ 
nesses,  declaring  the  same ;  any  former  law  or  usage 
to  the  contrary  notwithstanding/' 

It  may  reasonably  be  inferred  to  have  been  the  in-  Of  the 

gramtnati- 

tention  of  the  legislature,  to  impose  the  same  obliga-  cai  reading 
tion  as  to  the  formalities  of  execution,  on  all  wills  guage  of 

this  scc~ 

properly  so  called,  whether  original  or  coming  in  the  tion,where. 
place  of  others  antecedently  made.     The  construe-  broaght  in* 
tion,  therefore,  which  has  been  put  upon  the  lan^age  mem  with 
of  the  revocation  clause,  has  brought  the  two  sections  sions  oftib« 
into  equality  in  this  respect,  and  thus  imparted  con-  daiue/°* 
sistency  and  simplicity  to  the  scheme  of  the  statutory 
restrictions  upon  the  execution  of  wills.     In  con- 
formity to  this  plan  of  construction,   as  it  had  been 
judged  a  sufficient  compliance  with  the  requisitions  of 
the  JifLh  clause^  if  the  testator  acknowledged  his  sign- 
ing, without  actually  executing  it  in  the  presence  of 
the  witnesses,   it  became  important  so  to  read  the 
sixth  section,  which  requires  signing  in  the  presence 
of  the  witnesses,  a^  to  bring  it  into  agreement  with 
the  preceding  section.     The  courts,  therefore,  have 
read  the  concluding  words  of  the  sixth  section,  will, 
or  codicil,  or  anjf  other  writing,  signed  in  the  pre- 


SS4  Revocation  of  WilU.  Chap.  II. 


> 


fence  of  three  witnesses^  so  as  to  detach  the  words 
"  will  or  codicil"  from  the  succeeding  words,  '^  or 
any  other  writing/'  coupling  these  last  words  with 
the  words  which  immediately  follow,  viz.  ^*  signed  in 
the  presence  of  three  witnesses.*' 

MddisJnc-  Thus  they  have  applied  the  requisition  of  a  ''  sign- 
Jj«n«  ing  in  the  presence  of  three  witnesses/'  to  the  proxi- 
npon  thu  mum  autecedeus  only,  '^  or  any  other  writing:,"  and 
tioa.  again  coupling  the  succeeding  phrase  ^' declaring  the 

same"  with  the  words  immediately  before  it,  have  made 
therewith  this  complete  sentence,  ''  or  any  other  writ- 
ing of  the  devisor  J  signed  in  the  presence  of  three  or 
four  witnesses,  declaring  the  same.'*  At  the  same 
time  the  words'  ''  will  or  codicil"  were  understood  to 
import  a  will  or  codicil  executed  and  perfected  ac- 
cording to  the  requisitions  of  the  foregoing  section*. 
Interpreting  the  language  of  the  6th  clause,  upon 
these  principles  of  construction,  the  law  which  airises 
upon  it  is  this ;  that  a  will  or  codicil,  in  order  to  re* 
voke  a  former  will,  must  be  executed  with  the-  same 
solemnities  as  the  original  will,  that  is,  it  should  be 
signed  by  the  testator,  or  by  his  directions,  and  sub- 
scribed by  three  witnesses,  in  his  presence.  And  if 
such  subsequent  writing,  accompanied  with  all  the 
formalities  requisite  to  a  perfect  will  of  lands,  under 
the  5th  clause,  make  a  fresh  disposition  of  the  pro- 
perty, inconsistent  with  the  dispositions  thereof  by  a 
former  will,  it  is  a  plain  revocation  without  any  ex- 
press declaration  of  intention  to  revoke.  So  if  a 
writing,  not  duly  attested  according  to  the  5th  section, 
contain  an  express  declaratiou  of  intention  to  revoke, 
and  furthermore^  be  actually  signed  in  the  presence 

;  Sms  V.  Smith;  1  Vez.  jun.  11.    Hoyle  v.  Cl&rke,  918, 

1 


Sect.  2.  Methods  of  Revocation.  285 

of  three  or  more  witnesses,  such  instrument  is  an  ef- 
fectual revocation,  and  the  witnesses  need  not,  as  in 
the  case  of  a  substantive  disposing  will,  under  the  5th 
section,  subscribe  their  names  to  the  instrument,  in 
the  presence  of  the  testator. 


Section  II. 

Methods  of  Revocation  (1). 

THERE  are  two  general  heads  under  which  all  the 
smaller  varieties  on  the  subject  of  the  revocation  of 
wills  may  be  included — revocations  express,  and  revo- 
cations implied.  A  revocation  may  be  said  to  be  ex- 
press, either  when  the  testator,  by  a  subsequent  writ- 
ing signed  by  bim  in  the  presence  of  three  or  more 
witnesses  (2),  declares  a  present  intention  (3)  to  re- 


I  (1)  A  niao  cannot  make  an  irrerocable  wiUy  or  bind  himself  so 
u  to  giTO^p  or  take  from  himself  this  power  of  reYocation.  Swinb. 
p.  7.  sect.  14. 

(S)  Though  to  reToke  a  will  by  an  instrument  of  declaration  ac- 
cording to  the  statute,  such  instrument  must  be  signed  in  the  pre* 
•ence  of  three  witnesses,  yet  it  has  been  held  that  it  is  enough  if 
the  witnesses  sign,  and  it  is  not  necessary  that  they  should  express 
in  their  attestation  the  fact  of  the  signing  by  the  testator  in  their 
presence^  for  their  actual  subscription  is  adopted  only  for  the  pur- 
pose of  fsicUitating  their  recollection  of  the  circumstance.  8  Yin. 
Abr.  tit.  Devise,  142.  pi.  3.  And  indeed  it  has  been  said  there  is 
BO  absolute  necessity  *f or  the  witnesses  to  the  testator's  signing  to 
sabscnbe  at  all.  Yin.  Abr.  tit.  Der.  (R)  4.  pi.  3.  Townsend  «• 
Pearce,  per  Eyre  and  Parker  J. 

(3)  The  expression  of  an  executory  or  future  intention  to  ra« 
^oke^  does  not  operate  as  a  reTocation.    Yid.  infra  337. 


326  nevccation  of  WUk.  .         Cbaf.  It 

voke,  according  to.th^  construction  albov^cpi^idered, 
whereby  the  latter  part  of  the  $th.cte.u^fj  i^^diflcflp- 
nected  from  the  words  '  will  and  codicil ;'  ojr,  second]^, 
by  a  will  executed  with  the  solqn^nitie^  r^qjiircd  l?y  tjne 
5th  section  of  the  statute^  viz,  by  the  signature  of  t];ie 
testator,  and  the  subscription  of  three  witnesses  inhi$ 
presence : .  which  latter  mode  may,  it  should  seem,  be 
properly  considered  as  an  express  revocation,  because, 
if  a  man  after  having  made  a  will  .of  lands^  makes 
another  will  inconsistent  with  the  former,  and^^ives 
to  it  the  form  of  a  substantive  independent  iustruipont, 
he  may  be  said  to  have  explicitly  and  expressly  revoked 
the  preceding  will,  since  he  has  himself  declared  that 
the  will  last  made  is  his  will,  at  the  tine  acttially  pre- 
sent, and  by  consequence  that  it  is^  to  take  plarce  ef 
every  different  disposition  of  an  earlier  date;'  or^ 
thirdly,  by  cancelling,  tearing,  or  obliterating  ^ch 
will  by  the  testator  himself,  or  by  his  direction  or 

consent. 

t 
Under  the  2nd  general  head  may  be  claffled>  all 
those  revocations  which  arise  by  the  coustruction  or 
inference  of  intention,  which  the  law  founds  upon 
the  collateral  acts  of  a  testator  after  making  bis  will : 
and  which  are  not  within  the  reach  of  the  statute  of 
frauds. 

It  has  been  shewn,  that  according  to  the  prevailing 
opinion,  if  an  instrument  be  designed  as  a  will,  and 
is  not  made  merely  for  the  purpose  of  revoking  a  for- 
mer will  of  the  same  lands,  it  will  not  have  that  effect 
unless  it  be  completed  as  the  statute  directs  in  respect 
to  a  will  of  lands,  although  it  be  signed  in  the  presence 
of  three  witnesses* ;  because,  being  intended  as  a  will« 

^  Egglestoo  V.  Speke,  Cartk.  81« 


Sect^.S.         Methods,  of  Revocation.  2TI 

and  td  revoke  as  such,  it  cannot  revoke  but  as  a  will, 
and  by  virtue  of  that  mode  which  in  the  first  part  of 
the  6th  clause  is  pointed  out.  And  indeed,  where  a 
testator  designs  to  revoke  a  former  will  by  an  instru- 
ment making  new  dispositions  of  his  property,  he 
discovers  only  a  conditional  intention  to  revoke;  or,  in 
other  words,  his  intention  to  revoke  is  so  coupled  in 
appearance  with  his  new  testamentary  act,  that,  un- 
less he  completes  such  testamentary  act  by  observing 
the  formalities  requisite  to  its  perfection,  he  is  not 
looked  upon  in  law  as  manifesting  a  deliberate  pur- 
pose of  revoking. 

But  although  the  doctrine  seems  now  to  be  settled  ^  ^'^f* 
as  it  was  laid  down  in  the  case  of  Linibery  v,  IVIason  \  r^"'J^i  ^<^i 
viz.  that  if  a  testator  designs  to  revoke  by  a  new  will,  ^'^^  '^»  ^'^- 

"^  t  rills. <.•  rir- 

unless  the  instrument  be  effectual  to  operate  as  a  willy  cumstan- 

fcs,  may 

it  shall  not  amount  to  a  revocation;  yet  the  words  rcvokta 
"  shall  be  effectual  to  operate  as  a  wilr'  must  be  win. 
taken,  as  has  been  before  observed,  with  reference 
only  to  those  requisites  to  its  validity  which  have  been 
made  necessary  to  it  by  the  5th  clause  of  the  statute ; 
since  if  properly  executed  and  attested  to  pass  free- 
hold lands  according  to  the  statute,  though  it  should 
be  prevented  from  operating  by  the  incapacity  of  the 
devisee,  or  any  other  matter  dehors*"  the  will,  the  for- 
mer will  is  nevertheless  revoked  by  it  (4). 

*  Com.  454. 

•  Roper  17.  Radcliffe,  in  dom.  Proc.     1  Bro.  P.  C.  4j0.  Vin.  tit. 
DcT.  (R.  3)  pi.  2.  in  Notis. 


(4)  8  Vez.  jun.  370.  per  Lord  AUaaley^  et  vid.  Montague  v. 
Jeffereys  Moor,  4  RoU.  Abr.  615.  so  a  wiU  devising  lauds  in  fee  to 
the  heir  at  law,  though  void  as  to  the  purposes  of  a  will,  yet  ope- 
rates as  a  rcTOcation  if  attested  according  to  the  :itatute,  per  Lord 
Hardwicke^  ia  £Ub  v.  Smith;  1  Yez.  jun.  17. 

«2 


338  MdweaMnaf  WUi^.  .        Caap;  U. 

In  the  dise  of  OMdmnr^  Tyrer^  the  testater  by  bis 
second  will  ^po^d  of  the  lame  kinils.  to  thci  aame 
purpose  as  by  the  fortnori  4.hMigh  rto  diffeMht  ttms^ 
teei ;  the  first  will  ^^«  etcA^ated  andfeitttaled  «ccordr 
ihg  to  the  5th  section ;  tfad  second  mh, .  tboflgb  0ul>- 
scribed  by  the  testator  aiid  atteisted  by<ibree  ,wttoQ8se9, 
was  not  subscribed  by  those  ^itnesscfei  in  tlie  pwsenbee 
of  tlie  testator:  tt  was  therefore  invidkl  M  a  will  of 
Iknds^  but  was  executed  agreeably  to  one  of  the  modea 
of  makrng  a  valid  rerocation  prescribed  by  the  6th 
Action  of  the  statute.    In  that  case  the  Chancellor 
observed  upon  the  circumstance  of  the  dispositiMus  in 
both  histruments  being  the  same  (5)^  by  which  it  was 
demonstrated  that  the  testator  did  not  mea^  to  rev<jke 
the  dispositions  of  the  same  lands  made  by  bis  first 
will ;  but  his  Lordship  intimated  that  his  judgment 
would  not  have  been  altered  if  the  same  lands  had 
been  given  to  other  persons  by  the  second  will ;   tak- 
ing, as  it  is  presumed,  the  broad  ground,  that  a  will 
of  lands  is  not  to  be  revoked  by  a  subsequent  ivill^ 
unless  such  subsequent  will  is  effectual  as  a  will  under 
the  statute ;  and  the  law  seems  now  to  be  well  settled, 
that  though  the  dispositions  of  the  second  will  be  ever 
so  inconsistent  with  those  of  the  first,  the  first  will 
shall  stand  unrevoked  unless  the  second  be  signed  by 
the  testator,  and  also  subscribed  by  thrde  witnesses  in 
his  presence.  •    The   same  consequence  still  hoId« 
'     though  the  second  will  contain  an  expKsa  rev€»iein^ 
dause/  and  i»  also  signed  in  the  presence  of  three 
witnesses ;  for  the  tevocalion  is  then  considered,  aa 

*  1  P.  Wmf.  342. 


(5)  9m tlie'^creo; coiitfuii}ii| tke rssfonsoii  whidi it y%a (Sori^nd.. 
sd^  itstsd  from  tlis  refisCer  te  Mr.  Cok«*i  nots  to  tbo  ctio. 


S^m  St.  Inedn^tent^'Di^Biiions.  239 

beliiig*  mad<!4Yi  sttbservienty  te  the  disposmg^  part  of 
the'^iU*;'  whieh  bking  ineffectual^  as  niyt  being  sub* 
icribed<bylIl0'\vtlnes0ee  it!  the  testator'9  presence,  the 
accesmry  mutft  follow  the  fate  of  the  principal.  But 
>f  her^  th^  revoikingdavse  has  not  thie  connection  with 
the  djgposing^  part  of  the  will,  as  where  the  disposi- 
tiam^pdate  to  other  bnds  wiiliout  affecting  the  sub- 
jects of  the  first  will,  or  where  the  second  will  is  only 
ftf  personal  estate,  there  seems  to  be  no  rea30n  why> 
if  it  contain  an  express  revoking  clause,  and  be  signed 
bjf' the  testator  in  the  presence  of  three  witnesses,  it 
fthottid  not  revoke  an  antoeedent  will  of  lands ;  and 
Ktidi  sebms  to  have  been  the  opinion  of  Lord  Chan* 
fellorCowper,  in  the  above^racnlioned  case  of  Onions 
r.  Tyi^r  (6). 


Section  III. 

Inconsistent  Dispositions, 

CONCERNING  the  operation  of  a  subsequent  will 
of  Jands^  with  the  ceremonies  prescribed  by  the  5th 
section,  as  a  revocation  of  a  preceding  will,  it  is  ma- 
terial to  be  observed,  that  such  effect  is  not  produced 
by  the  subsequent  will,  merely  as  being  the  last  will, 
unless  its  dispositions  of  the  property  ai*e  incapable  of 
standing  with  those  of  the  preceding  will :  and  where 


(6)  See  the  same  doctrine  and  reasonings  applied  to  the  questioa 
of  rcTocatioQ  upon  the  statute  of  l^Car.2.  c.  %4.  7  Vez.  jua. 
18.  ex  parte  Ilchester. 


230  Revocation  of  Wills.  Chap.  II. 

there  is  any  such  inconsistency,  the  revocation  pro- 
duced thereby  is  confined  in  its  extent  to  the  subjects 
of  the  inconsistent  dispositions.     This  seems  to  be 
well  established  in  Hitchins  v.  Bassett^  where  the 
case  upon  the  special  verdict  was  as  follows  : — Sir 
Henry  Killii^rew  was  seised  in  fee  of  the  lands  in 
question,  and  on  the  12th  of  November,  1644,  Rwde 
his  will  in  writing',  whereby,  (amongst  other  heredita- 
ments,) he  devised  the  premises  toMrs.  JaneBcrkely 
(his  near  kinswoman)  for  life,  with  remainder  over  to 
Henry  Killigrcw  (testator's  natural  son)  in  tail,  and 
made  the  said  Mrs.  Berkely  sole  executrix.    They  fjur- 
thcr  found  that  afterwards,  in  1645,  the  testator  made 
another  will  in  writing;  but  what  was  contained  ia  the 
last-mentioned  will,  or  what  was  its  purport  and   ef- 
fect, the  jurors,  were  ignorant.    The  argument  for  the 
heir  at  law,  and  in  support  of  the  last  will  as  a  total 
revocation  of  the  first,  rested  mainly  upon  the  con- 
struction of  the  maxim — that  a  man  could  not  die  with 
two.wills  ;  which  the  counsel  on  that  side  interpreted 
to  mean,  that  if  a  man,  after  having  made  a  will  of 
lands,  makes  and  executes  another  will,  calling  it  his 
last  will  and  testament,   and  giving  it  the  form  and 
languajje  of  a  substantive  independent  will,  it  must 
necessarily  be  a  total  revocation  of  the  preceding  vrill. 
It  was  admitted  tl.at  a  man  might  make  several  wills 
of  particular  subjects,  but  then  they  ought  to  be  con- 
fined in  expression  to  those  particular  subjects ;  for 
however  different  the  subjects,  yet  if  the  subsequent 
will  was  published  generally  as  a  man*s  last  will  and 
testament,  it  must  be  held  to  be  a  revocation  of  the 
former  will.     It  was  also  true  that  a  testator  mig^ht 
make  as  many  codicils  as  hiei  pleased^  but  there  was  ^ 

'  1  Show,  265.     2Salk.  591. 


Sect.  S.  Inewi^istent  Di<ipo^ithn8,  831 

wi4e  difllerence  between  vfilh  aad  codicils^  a  codicil 
being  an  acoessary  to  a  will  and  not  destructive^  but 
confiraiatofy  thereof.  It  was  observed  also^  on  the 
^tne  side^  that  wbere  a  nian  makes  several  wills  ex* 
pressly  of  different  particular  thing;s,  these  together  , 
make  but  one  will,  though  written  upon  different  pa- 
pers. •  But  that  as  the  jury  had  found  that  the  testator 
had  made  another  will,  this  must  be  taken  to  mean  a 
geaeml  testameht ;  and  it  must  be  understood  to  mean 
a  different  will,  for  if  it  had  been  a  duplicate  to  be 
sure  it  weuld  not  be  a  revocation,  but  then  it  ought 
to  be  td^m  and  notaliud  testamentuni.  And  upon  tlic 
whole  they  concluded,  that  if  the  testator  did  in  fact 
make  a  second  will,  not  correspondent  in  omnibus 
with  the  first,  and  purporting  to  be  his  last  wiH  and 
testament^  it  was  necessarily  a  total  revocation  (1). 

These  arguments  were  answered  on  the  other  side 
by  denying  the  construction  put  upon  the  civil  law 
maxim,  ^  that  a  man  can  die  with  but  one  will.'  They 
said,  Uiat  the  true  construction  of  that  maxim  was, 
that  where  two  devises  of  the  same  thing  were  made, 
t!ie  last  must  sland,  but  that  two  wills  might  well 
9tand  together  as  to  such  devises  Or  bequests  as  are 
Hot  inconsistent  That  there  was  no  ground  for  pre- 
tumiug  tliat  the  last  will  in  this  case,  though  a  con> 
plete  wiJl,  contained  iany  tly^ig  inconsistent  with  the 
devise  ip  the  Ar^t  will,  .under  which  the  lessor  of  the 
piajntiff  claimed.  The  Coyvt  (in  Trinity  term,  4  W. 
aaAM.)  gave  judgment  for  the  plaintiff,  and  a  writ  of 
error  bemg  afterwards  brought  in  Parliament,  th^t 


■<  ■■♦J 


r    '  ■»  n  »■ 


(I)  Yfte'taiA^'line  of  stf^mrnit  Wiis  hiken  ami  pnnoed  by  the 
lafe  Mr.  Serjeant  UiU  in  arguing  the  case  of  Goodright  9.  Ilarwood, 
Cowp.89. 


232  Eevocaiivn  of  Witts.  Chap.  II. 

judgmentiwas  affirmed.  And  since  this  case  the  point 
appears. to  have  been  considered  as  settled,  that  a 
second  substantive  independent  will,  properly  exe- 
cuted, kB  a  will  of  lands,  is  not,  merely  as  such,  a 
total  revocation  of  a  former  will,  but  only  so  far  as  it 
IS  inconsistent  with  it ;  though  it  must  be  owned  that 
Sir  Matthew  Hale,  when  he  sat  as  Chief  Baron  in  the 
Exchequer,  seemed  to  be  of  opinion  on  the  same 
case^  that  such  subsequent  independent  will,  though 
^not  importing  in  express  terms  a  revocation  of  the 
former,  nor  passing  any  land,  would  amount  in  con- 
struction of  )pw  to  a  revocation  (2).  That  great  Judge, 
it  is  tmie, ,  expressed  H^imself  in  favour  of  the  first  will, 
but  then  it  was  on  the  ground  of  there  being  no  find- 
ing by  the  jury  of  the  contents  of  the  second  will,  so 
that  it  did  not  appear  but  that  the  second  will  was  a 
confirmation  of  the  first. 

The  fule,  however,  is  now  established,   that  the 

'  contents  of  such  second  will  must  be  found,  and  the 

contents  so  found  must  appear  to  be  inconsistent  with 

the  dispositions  of  the  former  will,  to  operate  as  a  revo- 

^  Seymour  et  Ux,.  t.  Roswdrthy.    Hard.  376* 


■;^  ;■■■. 


(2)  In  arguiog  the  case  of  Hitchins  v.  Bassett,  it  trould  seem  at 
if  Serjeant  Maynard  meant  to  concede  that  where  the  second  vill 
appezEi^s  to  haye  appointed  an  executor^  it  might  he  considered  as  that 
soirt  of  distinct,  snbstatitive,  indepefident  will,  vhlch  mustreroke 
a  former  will  in  toto  ;  but  I  find  no  andioritjfor  such  a  coucenion, 

^and  I  conceive  thiit  the  lav  is  at  this  time  clfarly  held  otherwise. 
It  was  holden  (before  the  statote  of  frauds)  that  if  a  man  made  his 
will,  and  devised  his  land  to  J,  S.  and  afterwards  purchased  the 
manor  of  D.  and  afterwards  wrote  in  his  will  that  J.  D.  should  be 

"^hUteteaiibbtj  this  was  no  new  publication  to  make  the  lands  pass. 
Yin.  tit.  Derise  (Z)  S  per  Popham,  C.  J.  And  the  principto  in  this 
respect  is  tb?  same  as  to  republieation  and  reTOcation. 


BfiCQP.  3.'  Inconsi9ient  I^i^ositions.  233 

cation  ;  and  that  if  part  is  inconsistent  and  part 
is  consistent,  the  first  will  shall  only  be  revoked  pro 
tanto^  and  to  the  extent  of  these  discordant  dispositioas. 

The  case  of  Hitchins  v.  Bassett  received  confirma* 
tion  from  the  subsequent  case  of  Goodright  v.  Har- 
wood "",  which  passed  through  tbreestages  of  adjudi- 
cation. The  jury  found  by  their  special  verdict  tiiat 
J.  Lasy  made*  two  wills^  both  duly  attested  so  as  to 
pass  freehold  estates  ;  and  that  the  disposition  mad« 
by  the  second  will^  which  was  eight  years  after  the  firsts 
was  different  from  the  disposition  in  the  prior  wiU^ 
but  in  what  particulars  was  unknown  to  the  Jurors  : 
and  the'Jurors  did  not  find  that  the  testator  cancelled 
the  first  will^  or  that  the  defendant  destroyed  the 
second.  It  was  contended  for  the  defendant  in  the 
writ  of  error^  that  the  grounds  of  the  decision  in 
Hitchins  v.  Bassett  were  in  his  fitvour^  for  that  that 
case  was  decided  against  the  effect  of  the  second  will  as 
a  revocation  of  the  firsts  because  there  was  no  proof 
whatever  of  any  change  of  intention  in  the  testator^ 
or  even  that  the  second  will  did  any  way  affect  or 
concern  the  testator's  lands.  But  that  in  the  present 
case  it  was  found  that  the  second  will  was  attested 
by  three  witnesses^  that  it  did  relate  to  lands^  and 
indeed  to  the  very  estate  in  question^  because  the  tes^ 
tator  had  no  other  real  estate.  And  that  as  it  hAd 
been  expressly  found  that  the  disposition  in  1756  was 
diflferent  from  the  disposition  in  1746^  that  findhig 
amounted  to  a  finding  of  an  express  revocation  of  the 
first  will. 

But  Lord  Mansfield^  after  statuig  the  rule  that  a 

*  3  WilB.  407.    Cowp.  97.    7  Bro.  P.  G  344. 


^St  Revocation  of  Wills.  Chaf.  il. 

subsequent  devise  of  land  must  be  inconsistent  with 
a  prior  devise  of  the  same  land,  or  the  first  will 
vronald  stand  as  a  good  subsisting  devise,  observed  that 
it  was  not  found  that  the  second  will  was  in  any  par- 
ticular repugnant  to  or  inconsistent  with  the  fiwt. 
Had  the  defendant  destroyed  the  second  will  there 
might  have  been  good  ground  to  presume  such  incon- 
sistency or  repugnance,  and  the  jury  might  have 
found  the  fact  of  revocation.  His  Lordship*  added, 
that  there  was  no  variation  in  substance  between  this 
case  and  that  of  Hitchins  v.  Bassett.  That,  properly 
speaking,  another  will  could  not  exist  without  there 
being  a  difference,  for  if  it  were  exactly  the  same  it 
would  be  no  more  than  a  duplicate  or  republication 
of  the  first  will  That  the  Jury,  therefore,  in*  find- 
ing it  to  be  another  will,  said,  ex  vi  termini,,  that  it 
w^s  different ;  but  as  they  had  not  found  in  wlDat  that 
diflference  consisted,  the  Court  could  not  presume 
that  there  was  any  inconsistency  in  the  dispofiitioos 
of  the  two  wills,  and  by  consequence  they  could  not 

aay  that  the  first  will  was  revoked, 

* 

'  This  doctrine  is  in  itself  so  rational,  and  so  founded 
<  oh.  authorities,  that  one  is  surprised  at  •  seeiog  the 
question  renewed,  and  again  disputed  at  so  late  a 
'pdriod ;  but  even  these  cases  did  not  preveotithe 
point  from  coming  again  into  discussion,  with  a  tri- 
fling variation  in  the  circumstances,  about  five  years 
ago,  in  the  case  of  Thomas  v.  Evans*;  in  which,  ft 
person  made  his  will,  whereby  he  bequeathed  his. per- 
sonal estate  to  his  mother,  and,  after  severafintcr- 
mediate  limitations,  devised  the  ultimate  remainder 
to  T.     U|U)n  his  having  afterwards  acquired  other 

^  ^  Bast,  48t. 


S^CT.  3.  Inconsistent  Dispositions.  t9b 

estates,  same  by  purchase  and  some  by  devise,  and 
the  bequest  to  his  mother  having  lapsed  by  her  death, 
(he  testator  made  a  second  will  disposing  by  name  of 
the  property  which  had  been  so  devised  to  him,  and 
(hen  added,  ^^as  to  the  rest  of  my  real  and  personal 
estate  I  intend  to  dispose  of  it  by  a  codicil  hereafter  to 
be  made  to  this  my  will."  This  was  determined  to  be 
no  revocation  of  the  former  will.  It  was  not  necessary 
to  suppose  the  words  intimating  the  future  intention  to 
be  meant  to  embrace  the  real  property  before  devised, 
as  the  testator  had  acquired  estates-since  the  first  will, 
which  were  not  included  in  the  second,  and  which 
miffht  satisfy  the  words  by  which  the  future  intention  Exprc««w, 

"  •  ^  ^  tcntiou  to 

was  expresficd  ;  but  admittine:  these  words  to  include  revoke  do 

"  actual  rc- 

the  real  property  devised  by  the  will,  still  it  did  not  vocaUoa. 
appear  that  the  disposition  intended  to  be  made  of  it 
would  be  inconsistent  with  the  former  devise;  and 
even  supposing  it  to  be  intended  to  be  inconsistent, 
yet  an  express  intention  to  revoke  would  not  operate 
as  an  actual  revocation;  for,  as  was  truly  observed 
at  the  bar  and  on  the  bench,  what  would  not  have 
been  a  revocation  by  parol  before  the  statute  would 
not  be  so  since,  though  reduced  into  writing  with  all 
the  formalities  of  the  statute,  and  it  had  be«en  decided 
that  a  bare  intention  to  revoke,  though  expressed  by 
parol,  was  no  revocation  before  the  statute,  unless 
the  testator  declared  that  he  did  revoke  his  will  (3). 

A 

(3)  Craiirel  v,  Samiders,  Cro.  Jar.  497.  -wh^e  rt  U'as  resolved 
bj  the' court,  that  if  a  maii  makes  his  tviU,  in  ^ntk^,  of  land, 
anc^  af^rward^  upon  ccmrounicsition  says,  that  ^'  he  has  made  his 
▼ill,  but  it  sliall  not  stand,"  or  "Iwill  alter  my  will,"  these 
WQrdsjire  not  any  revocation  of  the  will,  being  in  a  future  sense, 
and  pnly  a  declaration  of  what  he  intends  to  do.  Aliter,  if  he  says 
I  do  reyoke  it,  or  in  any  other  manner  declares  his  purpose  to 
reToke  it  in  present!.    But  if  a^^tlNtator  deplare  his  intention  by 


SS6  MeMM&ott  of  WUU.  CHii'-iCt 

4* 

inconsist.       ^8  *  wtchnA  wiB  IS  HO  rcYOcation  of  the  feat,  any 

ency  be-  -^ 

tureen  the   further  than  as  it  is  inconsistent  therewith,  so  meithcr 

will  and 

•ubsequent  does  a  teBtator  by  acting  in  any  other  manner' vpow 
the  property  which  he  has  already  devised  by  his  will, 
reroke  the  will  by  such  act  beyond  the  extent  o^tliat 
necessary  itiferenee  which  is  created  by  the  incon^ 
fiMency  between  the  will  and  his  subsequent  eoii^ 
duct.  Thus  in  an  early  case*  where  a  man  faebvingt 
issue  two  sons  by  several  venters,  devised  bis  landa  W 
F.  bis  eldest  son^  in  tai^  male,  remainder  to  the  *btfiT^ 
male  of  W.  his  yo«inger  son,  and  for  defeult  of  mwmm 
to  his  own  right  heirs ;  and  afterwards  made  a  lease 
to  W.  for  SO  years,  to  begin  after  his  the  testatsriif 
death,  and  died :  it  was  resolved  that  this  lease  mad^ 
to  W.  was  not  a  revocation  of  the  whole  devise^  htxC 
quoad  the  term  only.  And  the  same  point  was  agTe4^(l 
to  on  the  bench  and  at  the  bar,  in  Montague  *&.  «lef« 
frys^.  Buftthis  doctrine  is  carried  to  its  fsdlest  e)iteil« 
itk  the  ease  of  jLamb  t?.  Parker  ^  Thene  Ediirai>it 
Parker  by  his  wiH  devised  to  his  younger  ^dii 
W.  Pttrker  a  messuage  for  99  years,  if  three  KvM 
therein  mentioned  lived  so  long,  yielding  and  f^ciyrng 
an  annuity  of  602.  to  his  sister,  who  was  the  pkintifn 
for  her  life.  The  testator  afterwards  demised  the 
same  messuage  to  one  L.  for  99  years,  if  three  lives; 
named  in  such  demise,  should  so  long  live,  yielding 
and  paying  5M.  per  annum,  to  the  testator^  his  heirs 

*  Cro.  Car.  23.  Hodgkinson  o.  Wood.  Ann.  prhn.  Car.  Rfig. 
'  Vin.  tk.  Dey.  (n).  •  9  Vem.  486. 


pMiDl  to  reroke  hii  wiH,  and  fhat  upon  liis  arrWtng'  at  such  a  plies 
lis  will  saeeiits  kit  intentioD,  and  in  his  going  thither  hs  is'nfari 
dertd,  it  kai  l)ecB  said  that  the  intended  terocatioii  shall  Htke  pltMh 
llloll.  Abr.  614.    7y6z.ian.S7l.  ' 


SfctDT,  &  IncMsistent  Dispfmtiont.  237 

Itnd  assigns.  The  question  was  whether  this  demise 
to  L«  was  a  reyocation  of  the  devise  to  W.  and  <aa« 
seqfientljr  of  the  annuity  payable  to  the  pkintifil 

The  cause  was  first  heard  at  the  RoIIs^  and  then, 
held  to  be  a  revocation ;  but  upon  appeal  to  the  Lord 
Keeper  \  the  contrary  was  adjudged  and  upon  tho 
following  grounds. — That  by  the  lease  to  L.    the 
term  of  99  years  commenced  immediately  in  the  life- 
liroe  of  the  testator ;  whereas  the  term  to  W.  was  to 
commence  from  the  testator's  death ;  and  though  both 
werti  determinable  for  three  lives^  and  possibly  L.V 
three  lives  might  happen  to  live  the  longest^  yet^  that 
a  reversionary  interest  passed  which  would  carry  the 
Bent  reserved  on  L/s  lease.    The  ground  of  thie 
ipeeies  of  revocation  is^  as  is  above  observed^  the  in** 
consistency  of  the  posterior  Act^  and  the  inference 
oC  iptentioii  arisinsr  from  such  inconsistencT'    Pro-  Grant  of  a 
^i^Wg;^  therefore^  upon  this  principle^  a  kase  made  rest  than 
spi^eqfient  to  the  will  of  the  devised  land>  for  the  by  the  wxw, 
WneiH  i)f  the  same  person  to  whom  the  fee  had  beea  pmon. 
dej^ise^jl^.  and  to  commence  upon  the  decease  of  the 
t^tator^  was  in  Coke  v.  Bullock '^  adjudged  a  revoca- 
tion fntoto,   Had  it  been  to  a  strangeif^  it  was  agreed^  Toaitras- 
it  WQuld  Quly  have  been  a  revocation  pro  tanto(4)* 

.■..'.  • 

•  Sir  MarttJi  Wright.  •  Cro.  Jac.  49. 


(4)  A  dtotincfioa  was  bere  adverted  to  by  Walnsley  J.  wlftch  is 
clearlj  not  law,  as  the  law  is  now  settled,  i\t.  that  though  in  tht 
esse  of  a  lease  to  a  stranger  a£ter  a  will  made,  such  lease,  if  it 
I^IOpidi^  pai^  onXyM  the  sftiae  vbmda,  is  onli^  aaaf^eation  lor 
nifi(h|M(r4 ;  jivefcif  it  tml^race  the  entire  lands^  thottgk  it  is  partial 
oii]r^4Mpect  to^  tte  estate,  itisa/olirf  reYocatiosi,  as  ixtendiftf 
^•cificaUy  over  the  whole  subject  matter.         * 


238^  Hevotktion  cf  Wills.  Chap.  If.- 

Sen  *comI  ^^  ^*  ^^*  likewise  agreed  that  if  the.  lease  had  b^en- 

mencc 
nent. 


mence-       granted  to  begin  presently,  or  futurely  in  the  life-. 


time  of  the  devisor,  it  would  have  been  no  revocation, 
for  then  it  might  have  stood  with  the  will. 

Upon  this  distinction  in  respect  to  the  time  of  the- 
commencement,  the  case  of  Baxter  v.  Dyer^  deter- 
mined by  the  present  Chancellor  is  in  accordance 
vrith  the  last-mentioned  case  of  Coke  v.  Bullock.  In* 
Baxter  v-  Dyer,  the  testatrix,  after  devising  lands  to* 
Sir  John  Dyer,  and  his  heirs,  borrowed  from  the 
devisee  a  sum  of  money,  and  mortgaged  the  devised 
estate  to  him,  by  a  conveyance  in  fee,  and  upon  the 
ground  that  mortgages  are  in  equity  considered  not 
as  conveyances  of  the  estate,  but  as  mere  pledges 
thereof  by  way  of  security,  this  subsequent  mort- 
gage, although  it  was  made  to  the  same  person  to 
wkoin  the  estate  itself  hud  been  devised,  was  held  to 
be  no  revocation.  As  in  Coke  v.  Bulbck  the  lease 
vras  to  begin  in  the  life-time  of  the  testator,  and  might 
have  terminated  before  his  death ;  so  in  this  case  the 
pledge  was  to  take  place  in  the  testatrix's  life-time, 
while  it  w^as  hers,  and  at  .her  own  disposal,  and  the 
object  might  have  been  answered  in  her  lifertime.  It 
wds  therefore  held  to  be  no  revocation.  And  the 
Chancellor,  after  stating  that  the  case  of  Harkness  v. 
Bay  ley*,  had  been  misreported,  produced  a  note 
which  he  himself  had  made  of  it,  wherein  a  fea- 
ture of  inconsistency  between  the  will  and  the  pos- 
terior acts  of  the  parties  appeared,  by  attending 
to  which,  the  principle  of  that  case  might  be  recon- 
ciled with  his  decision  of  the  case  before  him  ;  for  it 
appeared  that  after  the  mother's  devise  in  fee  to  the 

'  i  Yes.  Jan.  655*  '  Free,  ia  CbiA.  Jil4. 


Sw;t.  3.  Inconsistent  Di^iitkmi.  969 

daughter^  the  son  joined  the  mother  in  a  conVeyanci 
of  the  estate  for  500  years  to  the  daughter^  with  a 
proviso  that  if  the  mother  or  son  should  pay  during 
the  life  of  the  mother  1002.  a  year  to  the  daughter, 
and  the  son  after  the  mother's  death  should  pay  4000/. 
to  his  sisterj  then  the  term  should  cease  and  be  void^ 
and  the  son  moreover  covenanted  with  the  sister  to 
pay  4000/.  to  his  sister  after  the  mother's  deaths  and 
also  with  the  mother  to  pay  the  annual  100/.  to  his 
sifter  during  the  mother's  life.  This  conveyance  was 
clearly  inconsistent  with  the  devise^  and  it  was  also 
clear  that  the  mother  intended  the  estate  to  descend 
to  the  son. 

The   settled  law  therefore  upon  these  cases  is^ 
that  a  will  is  not  to  be  revoked  but  by  necessary  im- 
plication^ so  that  where  the  subsequent  will  or  pos- 
terior  act  is  consistent  with  a  prior  will,  or  with  any 
part  of  it,  such  prior  will  remains  valid  in  part  or  in 
all  according  to  the  extent  to  which  the  dispoeitiona 
of  the  party  can  be  effectuated  without  contradiction 
or  discordancy.    But  where  two  inconsistent  wills  are  wher^ 
produced  of  the  same   date,  or  both  without  date,  IwTincon. 
neither  of  which  can  be  proved  to  be  last  executed,  wurs^of  th« 
they  are  both  necessarily,  and  by  the  common  law,  th™y  aw^' 
void  for  uncertainty  so  far  as  they  are  inconsistent,  f^^^  unc«^ 
and  supposing  no  act  of  the  testator  subsequent  to  the  ^^^^' 
vill^  to  have  explained  and  reconciled  them,  the  heir 
at  law""  Is  let  in.     Though  according  to  the  case  last 
cited  in  the  margin,  either  will  is  subject  to  be  con- 
firiped  bya  subsequent  act  or  declaration  of  the  te8« 
tator,     Wluch  judgment  appears  to  stand  on  a  very 
reasonable  and  intelligible  principle.     Since  a  will 

!^  5  Bro.  P,  C.  &7,  Fhipps  v.  Earl  of  Augl^iea,  7  B»c.  Ab.  327. 


S^  Sevoeatian  cf  Witts.  Chaf.  IL 

cannot  be  sinid  to  be  revoked  by  ^  will  till  tke  death 
of  the  testator.  Andl  the  act  of  the  testator  only  ope- 
rates to  decide  which  is  his  last  wiH^  And  not  to  produce 
the  effect  of  an  impUed  or  parol  republication^  of 
which,  since  the  statute  of  frauds^  there  is  aotho- 
rity  and  i*eason  for  doubting  the  possibility,  as  I  shall 
endeavour  to  shew  in  its  proper  place. 


Section  IV. 

r 

In^erfed  Acts  and  Instruments* 

IT  is  manifest  that  these  cases  of  inconsistent  wiQ.^ 
turn  principally  upon  the  intention  of  the  testator ; 
but  we  must  dliserve  that  a  will  perfected  as  the  sta- 
tute requires  is  not  subject  to  be  overturned  by  loose 
and  conjectural  inferences  of  an  alteration  of  mind  in 
the  testator.  The  cases  have  reduced  the  doctrine  to 
a  regular  ayitem.  The  statute  itself  has  limited  the 
mode  whereby  a  wiH  may  be  expressly  revoked ;  and 
on*  of  the  modes  prescribed  by  the  statute  is  by  a 
tttfasequent  vrill,  which^  we  have  seen^  should,  to 
produce  that  effect  according  to  the  force  given  by 
construction  to  the  word  ''  w31^^  where  it  occurs  in 
the  6th  section,  be  perfected  with  the  formalities  re- 
quired by  the  preceding  section.  But  this  construc- 
tion of  the  language  of  the  6tb  section  seems  to  have 
given  to  it  no  enaWng  efficacy,  in  respect  to  the 
operation  of  a  will,  since  if  the  words  ''  will  or  codi* 
o3"  had  mot  bean  excepted  out  <tf  the  restraint  put 


Sect.  4,      Imperfect  Acts  and  Instruments.  241 

upon  the  power  of  revoking^  it  should  seem  that  the 
ftatute  must  either  have  been  construed  not  to  extend 
to  the  case  of  a  subsequent  will;  or  to  have  enacted 
that  a  will  once  perfected^  though  made  20  years 
before  the  testator's  deaths  must  be  taken  as  his  last 
will^  if  remaining  uncancelled^  notwithstanding  a 
subsequent  will  should  be  made  within  a  month  before 
the  decease  of  the  testator^  with  all  the  circumstances 
constituting  a  perfect  will. 

As  the  law  now  stands/ it  "has  been  shewn,  that  a  Nointen- 
new  substantive  will,  unless  it  be  executed  as  the  5th  inferred 
ficction  directs,  will  not  revoke  a  former  will ;  which  of  unds 
rule  seems  to  arise  Justly  out  of  the  principle  of  in-  ed  accord- 
tention ;  for  ai>  intention  to  revoke  a  first  will  by  a  tututc. 
second  can  only  be  properly  inferred  from  a  legal, 
valid,  and  perfect  disposition  of  the  same  property  ; 
which  accords  with  the  rule  of  the  civil  law,  ''  Tunc 
prius  testamentum  rumpitur  cum  posterius  perfectum 
cst(l)."     In  truth,  since  the  statute  of  frauds,  there 
can  be  no  will  in  contemplation  of  law  that  has  not 
been  executed  with  the  formalities  made  necessary 
by  that  statute.     It  is  a  mere  nullity(2)^  affording  no 
ground  of  inconsistency  from  which  to  infer  even  a  . 


(1)  See  tbe  cafe  of  the  Earl  of  Ilchester,  7  Vez.  jun.  348.  that 
a  testamentary  appointment  of  a  guardian,  by  virtue  of  the  12  Ch. 
2-c.  %i,  is  not  revoked  by  a  subsequout  testamentary  appointment, 
Hhicb  IS  not  substantively  perfected  by  the  attestation  of  two  wit- 
nesses, according  to  that  statute. 

(2)  Equally  so  in  all  courts.  Thus  in  equity,  a  will  of  lands, 
unattested  according  to  the  statute,  and  containing  a  bequest  of 
personalty  to  the  hpir,  will  not  put  htm  to  his  election,  which  is  a 
striking  instance  to  shew  the  absolute  nullity  of  such  a  device  in 
tlie  view  of  the  courts  of  equity. 


t  it  jkewcttti6h  of  WSb.  Chaf  II. 

jj"*'^ictl[  ^''^•^''S^  of  intention.  But  in  general  an  instramental 
thowfh  in-  get  of  a  testatoF,  inconsistent  with  tlie  dispositions  of 
■iiyinopei-  |)i^  tjfior  wifl,  even  thongh  such  act  mavbe  rendered 

ativc,  may  .  ®  "^ 

nevertiie-    inooerative  by  the  want  of  certain  legal  requisite! 

less  revoke  i  ./  o  i 

a  wiu.       to  its  validity,  will  effect  a  revocation.    For  thotigh, 

in  the  case  of  a  subsequent  tcill^  the  courts  will  not 

take  any  notice  of  its  existence  as  to  any  devise  of 

fend,  if  not  duly  executed  and  attested,  yet  in  the 

other   cases  of  invalid  instrumental  acts,  they  are 

respected  as  indications  of  intention  though  specifi- 

idiibepro-  c^lly  inoperative.     And,  indeed,   if  a  will  devising 

eHted  ***"  '^^^  ^^  executed  and  attested  so  as  to  have  an  exist- 

bjr^cfrcimi-  ^"^^  ^^  ^  ^^^'^  though  froHi  circuHistauces  extrinsic 

SorSwic     ^^  ^^  rendered  void,  it  may  still  effect  a  revocation,  as 

▼ented^     in  the  case  before-mentioned  of  a,  will  devising  land 

from  oper-  [^  f^^  {q  JJj^  )^^[j.  ^j  j^^  \ 

•tinp,  It 
may  never- 
theless 

revoke  a         If  a  testator  leaves  at  his  death  a  dozen  wills,  and 

pn#r  will, 

only  one  executed  and  attested  so  as  to  pass  real 
estate,  such  will,  whatever  may  be  its  date,  is  pro- 
perly his  last  will  as  to  this  part  of  his  property.  And 
88  a  man  can  have  no  will  but  his  last  will,  there  can 
be  no  other  will  from  which  any  intention  of  the  tes- 
tator, inconsistent  with  the  dispositions  of  his  opera- 
tive will,  can  be  inferred  (3) ;  but  if  a  testator  affects 
to  do  something  instrumentally,  which  fails  from  the 
omission  of  some  circumstances  with  which  it  ought 


•  Vid.  E*]is  V.  Smith,  1  \e%.  jun.  17.  and  note  («)  in  the  pie- 
ceding  page. 


(3)  This  IS  strongly  put  by  Sir  Wm.  Grant  in  giTing  his  opmiott 
In  the  case  ex  parte  Ilchester.  **  It  is  not  competent  for  a  persoB 
to  express  an  intention,  as  to  land,  by  sach  an  initniment."  7  Yh* 
Jan.  378. 


SfiOT.  4.       Imperfect  Acts  and  Instruments.  S43 

to  be  accompanied^  and  which^  if  effectuated^  would 
by  it«  specific  operation  revoke  a  prior  will,  the  courts 
will  take  notice  of  such  imperfect  instrament,  and 
construe  it  a  revocation  as  much  as  if  it  had  been 
rendered  effectual  to  its  purpose.  For  it  will  not  be 
supposed  that  a  nugatory  act  was  intended  to  be 
done,  when  that  act  was  professedly  to  have  imme- 
diate perfection :  whereas  in  the  case  of  an  unexe- 
cuted will,  which  is  made  in  prospect  of  death,  and 
with  regard  to  a  future  condition  of  thing.^,  it  is  rea- 
lonable  to  suppose  it  to  be  left  purposely  Unfinished 
and  inoperative,  to  be  adopted  or  not  on  the  approach 
of  extremities,  as  the  state  of  the  testator's  affairs 
and  connexions  may  at  that  season  determine  his  in- 
clinations. 

Upon  the  above-mentioned  principles,  the  imper-  Jmp^rfect 
feet  conveyances  by  a  deed  of  feoffment  without  mentsof 
livery  of  seisin,  and  by  a  deed  of  bargain  and  sale  of  ance. 
the  freehold  without  such  enrolment  as  is  required  by 
the  statute  in  that  case  provided  \  though  specifically 
inoperative,    are  nevertheless  effectual  revocations. 
So,  before  the  statute  taking  away  attornment,  a 
grant  of  a  reversion  without  attornment  was  a  revo- 
cation of  an  antecedent  will  devising  the  same  pro- 
perty (4). 

*  1  Roll.  Abr.  615.  Vin.DeT.  (P)  pi.  6.  Went,  Off.  Ex.  2?. 
Z  Atk.  803. 


(4)  Went.  Offh  Ex,  %%.  So  wherg  «  tenant  to  the  pr»cipe  It 
mede  towards  sofTeriDg  a  recoTery^'  and  no  other  proceedings  afO 
had,  a  prevlons  will  is  nccrerthelesl  revoked.  Vid.  Hamood  t. 
O^lander,  6  Yes.  Jan.  199. 

r3 


244  Revocation  of  Wills.  Chap.  IT. 

fp'^^tnt.^ ^  Whether  a  deed  intended  to  operate  as  an  appoint- 
e*c"uted  ™^^*  ^^  VLses,  but  incapable  of  operating  as  a  valid 
appointment^  either  from  a  deficiency  of  power  in 
the  party  executing  the  deed^  or  a  neglect  of  seine 
ceremony  made  necessary  to  the  efficacy  of  the  ap- 
pointment by  the  person  granting  the  power^  can  be 
operative  as  a  revocation^  seems  to  be  left,  by  the 
case  of  Shove  v.  Pincke  %  in  a  considerable  degree 
of  uncertainty.  If  we  look  to  the  judgment  and  cer- 
tificate ^,  it  is  plain  that  this  point  cannot  be  consi- 
dered as  judicially  decided  by  this  case.  Lord  Ken- 
yon  indeed  observed^  that  even  supposing  the  appoint- 
ment made  in  that  case  to  be  an  inadequate  convey- 
ance for  the  ptirpose  for  which  it  was  intended^  still, 
if  it  demonstrated  an  intention  to  revoke  the  will,  it 
amounted  in  law  to  a  revocation  (5).  He  added,  that 
if  it  were  necessary  to  decide  the  point,  he  did  not 
see  why  it  might  not  operate  as  a  grant  of  the  rever- 
sion. But  although  the  late  Chief  Justice  seemed 
clearly  to  be  of  opinion,  that  a  void  appointment 
would  have  the  effect  of  revoking  a  prior  disposition 
by  will  of  the  same  property,  such  effect  was  not,  as 
&r  as  appears  by  the  report^  at  all  adverted  to  by  the 
other  judges,  and  in  the  certificate  mention  was  only 

•  5T.R.  124.  *  5T.R.  310. 


(5)  In  the  cases  of  feoffment  without  livery,  and  bai^n  and 
sale  without  enrolment,  the>  instrument  itself  is  complete,  and 
there  is  no  intrinsic  defect  in  it,  but  something  subsequent  is  want- 
ing to  its  specific  operation.  Between  these  cases  therefore,  and 
that  of  an  appointment  informally  executed,  or  without  authority, 
there  is  a  difference;  the  informality  in  tiiis  latter  case  being  in 
the  Instrument  itself.  I      s 


Sect.  4.      Imperfect  Acts  and  Instruments.  345 

made  of  the  operation  of  the  deed  as  a  grant  of  the 
reversion^  or  as  a  covenant  to  stand  seised  to  uses  (6). 

The  failure  of  the  appointment  in  the  case  of  Shove 
u  Pincke  arose  from  the  defect  of  a  power  to  make 
it,  the  power  originally  reserved  having  been  exer- 
cised without  a  fresh  reservation  (7)^  but  there  does 
not  appear  to  be  any  sound  distinction  between  such 
a  case  and  one  wherein  the  failure  happens  by  reason 
of  an  omission  of  any  ceremony,  made  necessary  by 
the  person  creating  the  power,  to  its  valid  execution. 
Sopposing  the  revocation  to  be  produced  by  inference 
of  intention,  it  is  plain  that  the  attempt,  whether 
the  failure  arise  from  one  cause  or  the  other,  affords 
an  equal  inference  of  intention  (8). 

It  has  been  Ions:  a  settled  point,  that  a  errant  made  or  gnntt 

,  .       ^  to  person! 

to  a  person  incapable  of  taknig  under  it,  may  never-  uaderdis. 
theless  operate  as  a  revocation  of  a  will.  Thus,  where 
a  man*,  after  having  made  his  will  in  November,  1739, 
and  thereby  given  all  his  real  and  personal  estate  to 
his  brother,  by  a  deed  poll  made  in  November,  1740, 
gave  and  granted  to  his  wife  all  his  substance  which 

*  3  Atk.  73.  J^ard  v.  Beard. 


(6)  See  the  obserrations  made  upon  this  case  by  Lord  Alvanley, 
in  the  important  case  of  the  Earl  of  lichester,  7  Vez.  juo.  374. 

(71  For  this  point  see  the  leading  case  of  Ileli  v.  Bond,  1  Eq. 
Ca.  AW.  343. 

(8)  The  instrument  endeavoured  to  be  set  up  in  Clymer  o.  Littler, 
3  Burr.  1244.  had  no  definite  legal  character,  or  specific  tendency, 
and  was  therefore  insufficient  to  ground  any  inference  of  intention, 
besides  that  it  laboured  under  a  suspicion  of  forgery. 


846  Revocation  of  Wills.  Chap.  11. 

he  then  had^  or  thereafter  might  have^  it  was  decreed 
that  the  grant  was  void^  because  the  law  would  not 
permit  a  man  to  make  a  grant  or  conveyance  to  his 
wife  in  his  life-time ;  neither  would  a  court  of  equity 
suffer  a  wife  to  take  the  whole  of  a  husband's  estate 
beneficially^  in  his  Hfe-time^  for  it  could  not  be  in  the 
nature  of  a  provision^  when  it  comprehended  all  the 
husband  was  entitled  to.  Yet  as  being  an  act  incon- 
sistent with  and  repugnant  to  the  will^  though  not 
strictly  legale  it  amounted  to  a  revocation.  It  pro-* 
duced^  therefore^  an  intestacy  as  to  the  legacies :  and 
though  the  appointment  of  the  brother  as  executor  re^ 
•  mained  unrevoked,  yet  the  revocation  of  the  legaeiei 
given  to  him  made  him  a  trustee  in  equity  for  the  next 
of  kin. 

In  the  same  manner  a  subsequent  devise  to  a  per- 
son incapable  of  taking  under  it  is  a  revocation  of  a 
prior  will ;  as  was  determined  in  the  case  of  Roper  t?. 
Radcliffe ',  in  the  House  of  Lords^  where  lands  were 
given,  by  the  second  will,  to  a  papist.  And  the  same 
effect  has  been  adjudged  to  wills  devising  an  estate  to 
the  poor  of  the  parish',  and  to  a  corporation*. 

• 
But  in  these  cases  of  invalid  instruments  it  does 

» 

not  seem  to  be  so  correct  a  construction  of  their  ope- 
ration, to  ascribe  their  revoking  efficacy  to  the  indi- 
cation they  afford  of  an  intention  to  revoke,  as  to  t)ie 
indication  they  afford  of  an  intention  to  do  that  which 

'  In  dom.  proc.  1  Bro.  P.  C.  450.  10  Mod.  233.  2  Abr.  Eq.  C^ 
771. 

'  Frenche's  case,  cited  in  Montague's  case.  Tin*  tit.  Der.  (0) 
4.  and  10  Mod.  94. 

;»  Vin.  tit.  Der.  (0)  5. 


Sect.  S.        AcU  fraudtUenlly  obtained.  SI7 

by  a  positive  rule  of  law  is  an  act  of  revocation  (9). 
For  unless  the  act  if  done  so  as  to  be  efiectual  to  its 
purpose  would  have  the  effect  of  revoking*,  an  inef- 
fectual attempt  to  do  the  act  could  not  produce  such 
a  consequence ;  and^  as  it  will  appear  hereafter,  tbn 
effect  of  these  acts  themselves^  when  executed  coiu-r 
pletely>  cannot  for  the  moat  part  be  satisfKtorily  q&^ 
plained  on  the  principle  of  intentiw. 


Section  V. 

Adt  procured  to  be  done  btf  Fraud  or  Compulsion. 

WHERE  a  deed  is  void  as  being  covenoustjr 
made^  it  seems  clearly  held  to  be  incapable  of  ope« 
rating  as  a  revocation^  for  it  is  a  complete  nullity, 
And^  in  a  court  of  equity^  a  d^ed  obtained  by  fraud 
or  by  compulsion  has^  in  a  case  before  Lord  Thur* 
low^  been  held  equally  inoperative  against  a  $ub« 
aisting  will.  His  Lordship  observed,  that  the  reason 
against  admitting  such  ^u  instrument  to  have  the  ef** 
feet  of  a  revocation  was  strong  ia  that  court,  since 
yfhen  application  is  made  by  the  proper  party  it  will 
be  ordered  to  be  delivered  up,  and  where  a  deed  is 


(9)  Lord  Hardwicke  expresses  this  opioion  in  the  oase  of  Hick 
V.  MoTty  Arabl.210.  and  Abney  d.  Miller,  2  Atk.  696.  ftud  again 
more  pointedly  m  Sparrow  v,  Hardcabtle,  of  wliic.;  the  readc'r  wiU 
find  an  accarate  note  in  7  T.  R.  4  L6.  where  Kis  Lordship  says  that 
^^  these  imperfect  conteyances  are  rer ocations,  because  thcj  import 
ta  iateation  of  altdring  the  condition  of  the  estate*^* 


248  Revocation  of  Wflls.  Chap.  II. 

ordered  to  be  delivered  up  it  is  implicitly  declared  to 
be  no  deed  (1). 

The  case  just  cited  of  Hawcs  v,  Wyatt  was  first  de- 
cided by  the  late  Lord  Alvanley,  when  Master  of  the 
Rolls^  in  favour  of  the  revoking  effect  of  the  deed; 
and  his  decision  was  reversed,  upon  appeal,  by  the  late 
Lord  Chancellor  Thurlow.  It  appears,  however,  that 
Lord  Alvanley,  when,  as  Lord  Chief  Justice  of  the 
Common  Pleas,  he  sat  with  the  Chancellor  in  the  case 
ex  parte  Ilchester',  remained  of  his  original  opinion*. 
He  observed,  that  in  that  case  the  son,  who  was  the 
testator,  after  the  conveyance  to  his  father,  went 
abroad;  that  during  his  life  he  never  intimated  any 
intention  to  quarrel  with  it ;  that  the  bill  was  filed  to 
set  it  aside  upon  such  an  exertion  of  parental  autho- 
rity, as,  that  that  court  would  not  permit  an  instru- 
ment so  framed  to  stand ;  his  Lordship  allowed  that 
the  deed  could  not  operate  against  the  heirs  of  the 
son ;  yet  "  he  was  of  opinion  it  would  revoke  the 
will,  for  the  son  thought  it  was  actually  revoked,  and 
that  therefore  to  permit  it  to  stand  would  be  against 
principle ;  that  though  Lord  Thurlow  differed  from 
him,  he  believed  Hick  v.  Mors*  was  not  adverted  to, 
but  that  there  was  the  authority  of  Lord  Hardwicke  that 
such  an  instrument  was  sufficient  to  revoke  a  will/' 

It  does  not  however,  in  the  only  report  of  the  case 
of  Hick  V.  Mors,  distinctly  appear  that  any  fraudulent 

•  7  Vez.  jun.  348.  *  Ibid.  374.  •  Ambl.  216. 


(1)  See  the  case  of  Hawes  v.  Wyatt,  3  Bro.  C.  C.  156.    It  seems 
also  to  be  held  in  this  court  that  a  deed  executed  by  mistake  is 
no  retocation  of  a  will,  yid.  6  Vez.  jun.  215.  and  See  post  fxU 
^mistake* 


Sect.  5.        Acts  fraudulently  obtained.  949 

means  were  taken  to  induce  the  testator  to  execute 
the  revoking  instrument.  The  words  of  the  reporter 
are,  "  he  was  prevailed  upon ;"  and  to  be  sure  the 
facts  of  the  case  induce  a  suspicion  of  improper  in- 
fluence. No  fraudulent  arts  or  undue  influence^  how- 
ever, are  stated  to  have  been  used,  nor  are  any  such 
distinctly  alluded  to  by  Lord  Hardwicke,  who  refers 
the  case  to  that  class  of  cases  above  considered,  where 
imperfect  conveyances  have  been  held  to  revoke  an- 
tecedent wills.  Stripped  of  any  colouring  of  fraud, 
the  case  was  simply  this :  A  testator  covenanted  by  in- 
denture to  levy  a  fine,  and  in  the  deed  specified  the 
use  of  the  future  fine  to  be  to  H.  for  1000  years,  which 
fine  was  accordingly  levied ;  he  afterward^  made  his 
will;  properly  attested,  and  devised  the  fee  of  the  same 
premises  to  H.  and  in  the  year  following  executed  a 
fresh  covenant  by  indenture,  reciting  the  first,  de- 
claring a  new  and  different  use  of  the  fine,  viz.  to  H. 
in  fee ;  and  whether  by  this  the  will  was  revoked  was 
the  question.  But  whether  the  second  indenture  of 
covenant  was  good  as  to  the  new  use  of  the  fine  may 
be  questioned,  since  if  a  precedent  indenture  be  made 
to  direct  the  uses  of  an  assurance,  and  the  assurance 
follows,  the  Touchstone  says,  that  the  conusor  or  re- 
coveree  cannot  by  any  act  of  his,  subsequent  to  such 
assurance,  change  or  avoid  the  prior  use**.  The  se- 
cond indenture  might,  therefore,  have  been  regarded 
as  inoperative,  and  was  probably  attacked  on  that 
ground,  for  that  seems  to  have  been  the  view  in 
which  it  presented  itself  to  the  court. 

It  is,  to  be  sure,  somewhat  difiicult  to  apprehend 
how  a  deed  which  is  void,  as  being  fraudulently,  sur- 

f  Vid,  Touchst.  Ch.  on  Uses^  Sect.  5* 


t5p  Jievoeatim  of  Wills.  Chap.  li; 

4 

.  reptitioudy,  or  coercively  obtained^  and  so  not  moving 
from  the  will^  or  Bpeakin^  the  real  sense  of  the  party^ 
should  yet  revoke  a  previous  act  deliberately  and  for- 
mally done.  Where  a  part  only  of  a  deed  is  liable  to 
the  imputation  of  frauds  there  may  be  good  reason  for 
holding  the  other  uncorrupted  part  a  revocation  of  a 
prior  testamentary  disposition^  as  far  a&  it  is  incon* 
aistent  v^ith  it.  The  understanding  does  certainly 
struggle  against  giving  to  an  act  admitted  to  be  in* 
valid  against  the  person  performing  it^  on  account  of 
the  fraud  or  compulsion  accompanying  it,  an  opera* 
lion  destructive  of  a  prior  act  voluntarily  and  conside- 
rately performed,  It  is  true  however  that^  in  giving 
his  opinion  in  the  case  last  mentioned.  Lord  Hardwicke 
observed^  that  it  w^s  not  Uke  the  case  of  a  conveyance 
by  coviUj.  which  would  make  it  not  the  testator's  deed 
at  law;  and  whichj  his  Lordship  said,  would  be  a 
nuUitt/^  There  is,  to  be  sure,  a  differeuce  between 
the  case  of  a  deed  void  at  law  for  covin  to  which  non 
est  factum  may  be  pleaded,  and  that  of  a  deed  liable 
to  be  set  a^ide  by  cancelling  or  directing  a  reconvey- 
ance, on  account  of  the  fraud  or  compulsion  used  in 
obtaining  it.  But  it  seems  reasonable  for  a  court  of 
equity  to  act  vpon  its  own  maxims,  in  analogy  to  the 
rules  of  law :  and  if  that  which  in  that  court  is  treated 
as  deserving  of  being  frustrated  and  rescinded,  on  ac* 
count  of  the  turpitude  of  the  intent  and  contrivance^ 
were,  neverthelefs,  to  be  considered  as  capable  of  the 
collateral  effect  of  revokipg  a  will,  this,  as  it  seems, 
would  scarcely  be  recoQcilei^ble  with  the  rvle  of 
equitas  sequitur  legem. 


<    251    ) 


Section  VL 

jSubsequent  Conveyances. 

THE  general  rule  that  where,  after  makings  a  will^ 
the  testator  executes  any  legal  conveyance  of  the  de- 
vised property,  the  will  is  revoked,  has  long  been  esta- 
blished. This  rule  seems  to  rest  upon  technical 
grounds,  and  in  regarding  its  whole  extent  we  shall 
find  that  the  inference  cf  intention  to  revoke  by  no 
means  affords  a  satisfactory  foundation  for  it.  The 
true  reason  seems  to  be  that  which  Lord  Hardwicke 
gives  in  Sparrow  v.  Hardcastle,  "  that  the  estate 
heiDsi;  gone  by  the  conveyance,  the  will  has  lost  the 
subject  of  its  operation." 

The  alteration  of  the  devised  estate  by  the  act  of 
the  devisor  himself  is  a  case  of  daily  occurrence,  and 
admits  of  some  distinctions  of  great  nicety.  It  will  be 
proper  to  begin  with  some  examples  illustrative  of  the 
general  rule. 


If  a  tenant  in  tail  makes  his  will  and  devises  his  land,  ArecoTcry 

by  tenant 

and  then  by  bargain  and  sale  enrolled  makes  a  tenant  in  tail,  af- 

.      1  •  •  1  •     termakiiif 

to  the  praecipe,  agamst  whom  a  common  recovery  is  his  win,  to 
suffered  to  the  use  of  the  testator  in  fee,  this  is  a  re-  use  in  fee, 

*  is  a  revoca* 

vocation  of  the  will*.     And  it  was  said  by  Lord  Hard*  tion.  And 
wicke  to  have  been  holden  that  where  a  man,  after  the  party 
making  his  will,  thinking  he  had  only  an  estate  tail,  doesTio* 
suffered  a  recovery  to  confirm  the  will,  such  act  by  the  ^^J^** 

*  IKster  V*  Dister,  3  Lev.  108.  see  also  to  tlie  same  point,  Mar* 
wood  V.  Turner,  3  P.  Wms.  163,  Edit.  Coie. 


232  Revocation  of  Wills,  Chap.  IL 

testator  was  a  revocation  instead  of  a  confirmation  of 
the  will*. ' 

So  also  if  a  testator^  after  having  made  his  will,  levy 
a  fine  to  such  uses  as  he  shall  by  deed  or  will  appoint, 
and  die  without  making*  any  new  will,  the  will  made 
prior  to  the  fine  is  thereby  revoked^ 

A  feoff-  And  if  a  tenant  in  fee  simple  devises  his  lands,  and 

tenant  iD     bcfore  his  death  makes  a  feoffment  of  those  lands  to 

fee   ftfter 

■taking  his  another,  to  the  use  of  himself  and  his  heirs,  though 
own  use  in  this  to  many  purposes  is  no  alteration  of  the  estate, 
vocation. '  for  he  is  absolute  owner  as  he  was  before,  yet  it  is  a 
Soil  an  ef.  revocation'.     And  where  a  tenant  for  life,  remainder 
J^try.^'  to  trustees  to  support  contingent  remainders,  remain- 
der to  his  first  and  other  sons  in  tail,  with  reversion 
to  himself  in  fee,  made  his  will  disposing  of  the  rever- 
sion, and  afterwards  suffered  a  recovery  and  limited 
the  use  to  hhnself  in  fee,  this  though  an  ineffectual  re- 
covery, was  nevertheless  a  revocation  of  the  will  (1). 

Convey-         The  apparent  hardship  of  this  rule  has  occasioned 

ance  upon  *  *  ,     * 

a  special     some  Struggles  to  resist  its  application,  where  it  has 

trust,orfor  -■     •        « 

a  particu-    been  most  obviously  opposed  to  the  testator's  inten- 

pose,how    tion.     Thus  it  has  been  often  contended  that  where 

eatioD.       the  alteration  of  the  estate  was  only  for  an  express 

particular  and  partial  purpose,  not  affecting  the  sub- 

^  Per  Lord  Hardwicke  in  Sparrow  v,  Hardcastle,  7  T.  R«  410* 
■ote. 
\  Doe  and  Dilnot  and  otbers  v.  Dilnot,  2  N.R.  401. 
*  1  Roll.  Abr.  616. 


(1)  3  Wils.  6.  Darley  v.  Darley,  and  see  the  remarks  made  upon 
this  case  by  the  late  Lord  Loughborough  ia  Brydges  v*  the  Dachess 
•f  ChandoB,  2  Vez.  jun.  430. 


Sect.. 6.  Subsequent  Conveyances.  ^S3 

fitantial  and  beneficial  interest  given  by  the  wiM, 
the  will  should  not  be  affected  by  it.  Upon  this 
ground^  in  Sparrow  v.  Hardcastle^  it  was  endeavoured 
to  be  maintained  that  the  conveyance  being  designed 
for  a  particular  purpose^  viz.  to  create  a  trust  for  the 
benefit  of  a  person  named  in  it,  subject  to  which  the 
trust  declared  was  to  the  grantor  and  his  heirs^  it  was 
the  same  as  if  he  had  left  it  to  result,  and  so  much  of 
the  trust  as  remained  in  him  would  pass  b^  the  will ; 
but  Lord  Hardwicke  rejected  this  reasoning,  and  de- 
clared his  opinion  to  be,  that  if  a  man  seised  of  a  real 
estate  devised  it,  and  afterwards  conveyed  the  legal 
estate, ,  though  only  upon  a  special  trust,  yet  as  he 
granted  the  whole  legal  estate,  it  was  a  total  revoca- 
tion of  the  will 

Lord  Lincoln's  case  (2),  which  was  decided  by  Lord 
Somers,  is  a  strong  authority  to  the  same  point ;  and, 
as  was  observed  in  Sparrow  v.  Hardcastic,  there  could 
not  be  a  more  special  case.  Edward  Earl  of  Lincoln 
had  mortgaged  the  manor  of  S.  to  Wynn  by  a  convey- 
ance in  fee,  and  afterwards  by  will,  in  default  of  issue 
male  of  his  own  t>ody,  devised  it  to  Sir  Francis  Clinton 
(who  was  to  succeed  to  the  title)  for  his  life,  with  re- 
mainder to  his  first  and  other  sons  in  tail,,  with  remain- 
ders over.  The  Earl  having  afterwards  taken  a  fancy 
to  one  Mrs.  Calvert,  and  having  some  notion  he  might 
marry  her,  (though  it  was  proved  in  the  cause  there 
never  was  any  intention  in  the  lady  or  her  relations 
respecting  such  marriage,   nor  any  treaty  about  it) 


(2)  Show.  P.  C.  154.  1  £q.  Ca.  Abr.411.  2  Freeman,  303.  and 
iud  by  Lord  Hardwicke  in  Sparrow  v.  Hardcastle,  Tid.  7T.  R.  418. 
in  Not.  to  be  well  reported  in  Fitz  Gibbon,  341.  which  wa9  in 
lenml  a  book  of  no  authority. 


1!54  £ev0ealwn  of  Willi.  Caap.  U. 

ttiad6  k  least  and  release  of  the  devised  premises  to 
trustees^  to  the  ase  of  himself  and  his  heirs  till  the  said 
intended  marriage  should  take  effect^  then  as  to  part 
in  trust  for  Mrs.  Calvert  and  her  heirs,  in  lieu  of  dower, 
and  as  to  the  rest  in  trust  that  the  trustees  should  sell 
it,  to  disencumber  the  part  limited  to  Mrs.  Calvert, 
and  to  pay  the  surplus  of  the  monies  to  his  executors 
and  administrators.  Nothing  was  afterwards  done 
towards  the  marriage,  and  sometime  after  the  will  the 
Earl  died  without  making  any  alteration  of  it,  leaving 
his  honours  to  descend  to  Sir  Francis  Clinton,  who  had 
but  a  small  estate,  if  any,  and  who  died  soon  after- 
wards. The  plaintiff,  the  eldest  son  of  Sir  Francis; 
brought  his  bill  to  have  a  redemption  of  the  mortgage 
and  a  conveyance  of  the  estate.  And  the  defendants^ 
^  who  were  cousins  and  co-heirs  of  the  testator,  brought 

their  cross  bill  to  be  allowed  to  redeem  and  to  have 
the  estate  conveyed  to  them. 

The  question  was,  whether  the  lease  and  release  by 
the  testator  was  a  revocation ;  and  though  it  was  plain 
he  did  not  intend,  in  the  event  which  happened,  to 
revoke  his  will,  and  though  by  the  release  the  estate 
was  limited  until  the  marriage  (which  it  did  not  ap- 
pear was  ever  seriously  either  in  kis  contemplation  or 
in  that  of  the  lady)  to  continue  in  the  testator  just  as 
before ;  the  will  was  nevertheless  held  to  be  revokedr 
It  is  to  be  observed  that  the  conversion  of  this  estate 
into  an  equitable  interest  by  the  mortgage  in  fee,  was 
the  circumstance  which  brought  this  case  into  the 
court  of  equity,  and  that  there  was  nothing  in  it  of 
peculiarity  which  varied  the  effect  of  it  in  the  view  of 
that  court ;  so  that  the  doctrine  of  equita^  sequitur 
legem  was  entirely  applicable  to  it ;  and  as  by  the  rula^ 
of  kw^  if  this  had  been  a  le^  estate  the  wiU  would 


SccT.  6.         Subtequent  Omvi^ancei.  f&t 

have  been  revoked^  there  was  no  rettson  why  a  court 
of  equity  should  proceed  on  a  diflferent  rule  in  deter- 
mining the  case.  The  decree  was  confirmed  in  th« 
House  of  Lords  by  a  majority  of  two  lordii  only. 

The  deeds  executed  in  the  above  case  were  such  as^  Wherethst 
had  the  estate  been  ZegaZ^  would,  have  passed  the  es-  done  to  aa 
tate  out  of  the  testator^  and  wherever  that  is  the  case^  muW  * 
the  will  is  revoked  at  law  (3).     Upon  the  principle  of  threstate 
analogy^  therefore,  and  of  that  uniformity  in  the  rules  pa?///5^I' 
regarding  property  which  is  so  important  to  be  pre-  tZ^l 
served,  a  court  of  equity  was  bound  to  follow  the  l^t7**a  rl 
authorities  of  the  common  law  courts  in  the  decision  equity^" '^ 
of  the  case  just  cited,  whatever  inconvenience  to  the  ^f  ^„|2lr 
parties,  or  repugnancy  to  common  feelings,  might  be  «*qtt>turit. 
the  consequence :  and  in  this  view,  that  is,  in  refer^ 
ence  to  the  consistency  and  generality  of  an  artificial 
system  of  reasoning,  there  does  not  appear  to  be  that 
absurdity  in  the  case  of  Lord  Lincoln  which  has  been 
charged  upon  it  by  a  great  judge  ^ 

But  by  a  case  of  great  importance,  which  has  lately  if  the  et* 
been  decided  in  K.  B/on.a  writ  of  error  from  the  Ji^rud 
Common  Pleas,  whose  judgment  the  superior  court  for  ancH 
con firmed,  the  general  rule  may  be  considered  as  es^  ^oame' 

*  Lord  Mansfield,  Doug.  723. 

'  7  T.  R.  399.    1  Bos.  and  Pull.  570.    GoodtiUe  on  dem.  HoU 
ford  and  others  v.  Otwaj. 


(3)  The  uses  of  the  intended  settlement  were  certainly  incon*^ 
ti<tent  with  the  will ;  but  that  made  no  part  of  the  reason  for  hold- 
ing the  will  to  be  revoked  by  the  lease  and  release  ;  it  was  so  held 
solely  upon  the  ground  that  the  deviBed  estate  was  for  a  moment 
parted  with  and  pat  out  of  the  testator,  fiotwithstandfog  tht  old 
mikt»  .was  t«kea  back  by  the  saiOQ  crareyaAca, 


t54  .  .  Ji^Hof  Wills.  Cbap.  II. 

ftjj"  V V .  uJlowing :  That  where  a  person 

ti  ue vises  it^  and  afterwards  conveys 

'  ^^  .>4d(e>  though  but  for  an  instant,  as 

^  .1  $et$in  to  serve  an  use,  and  though  he 

.    «c  same  estate  to  the  same  use  as  before, 

>^  ^  totl  to  result  to, him  so  as  to  be  de- 

.>   iXKD  him  either  in  the  paternal  or  maternal 

.  ;  vius  before,  yet  the  conveyance  operates  as 

.    v\i>cation  of  the  will.     And  though  the  object 

•c  ctMiveyance  be  ever  so  partial  or  minute,  and 

.  v.^KT  such  object  be  certain  or  contingent,  the 

>^,,sv"  iXMisequence  of  a  total  revocation  flows  from  the 

:..vvo  act  of  parting  with  the  estate.     And  from  the 

auihurity  of  this  case  together  with  that  of  Lord  Lin^ 

\i>In  above  cited^  the  conclusion  is,  that  whether  such 

^tate  be  legal  or  only  equitable,  the  same  mode  of 

acting  upon  it  by  passing  it  out  of  the  testator,  or  if 

that  canrfot  be  strictly  said  of  an  equitable  interest, 

by  doing  that  with  respect  to  it,  which,  if  it  were  a 

legal  estate,  would  pass  it  out  of  him  but  for  a  mo* 

ment,  will  produce  the  same  consequence  of  a  total 

revocation. 

* 

111  the  case  last  referred  to,  A.  being  seised  of  cer- 
tain estates  in  fee  simple,  agreed  by  his  marriage  arti- 
cles to  settle  the  same  so  as  to  secure  his  intended  wife's 
jointure^  and  the  portions  of  younger  children,  and 
then  upon  his  eldest  son  and  his  heirs  male.  He  af- 
terwards devised  the  same  estates,  in  case  he  should 
happen  to  die  without  leaving  any  issue  of  bis  body 
living  at  his  decease,  subject  to  any  jointure  he  might 
make  to  trustees,  for  a  term  of  500  years,  upon  the 
trusts  therein  after  declared,  and  subject  thereto  he 
devised  all  his  real  estate  to  B.  The  testator  after- 
wards conveyed  the  same  estates  by  lease  and  rdease 


S£CT.  6.  Subsequent  Conveyances.  357 

to  releasees^  to  the  use  of  himself  and  his  heirs^  till 
the  marriage^  and  then  to  uses  correspondent  to  the 
various  purposes  expressed  in  the  marriage  articles, 
and  for  default  of  issue,  subject  to  a  term  for  securing 
his  wife's  jointure,  to  himself  in  fee.  The  testator 
married  accordingly^  and  died  ivithout  issue.  And 
whether  his  will  was  revoked  by  the  settlement  was 
the  question. 

Those  who  argued  against  the  revocation  contended 
tliat  the  intention  of  the  testator  was  evidently  not  to 
revoke  the  will,  and  that  as  this  intention  appeared, 
without  any  resort  to  extrinsic  evidence,  from  the  in- 
itruments  themselves,  the  court  was  bound  to  give  it 
effect.     That  though  in  point  of  form  an  estate  did 
pass  out  of  the  testator  to  the  releasees,  yet  that  was 
but  a  mometitary  eflTect  of  the  conveyance,  for  by  the 
limitation  of  the  use  to  himself,  and  hh  heirs^  till  tlie 
marriage,  he  was  still  in  of  his  old  use ;  and  the  only 
operative  part  of  the  settlement  was  that  which  limited 
the  uses  according  to  the  articles,  in  an  event  in  which 
(he  will  was  to  have  no  operation.     That  this  was  a 
very  different  case  from  a  feoffment  and  refeoffmcnt, 
where  there  was  a  complete  alienation  of  the  land, 
and  an  entire  new  estate  was  taken  back  by  purchase. 
That  the  doctrine  must  have  been  originally  founded 
upon  an  intent  to  revoke,  either  expressed,  or  necessa- 
rily to  be  implied  by  law  from  the  inconsistency  of 
the  two  dispositions':   but  that  in  the  case  before  the 
court,  the  two  instruments  were  not  only  not  incon- 
sistent, but  the  one  referred  to  and  conBrmed  the 
other,   and  the  settlement  was  only  made  in  pursu- 
ance of  the  articles.     That  in  all  the  cases  of  total 
revocations  implied  from  subsequent  instruments,  the 
devisor  changed  the  whole  estate,  or  the  dispositions 


258  Revocation  of  WUli.  Chap.  II. 

were  inconsistent ;  but  that  in  the  case  under  consi- 
deration there  was  no  inconsistency,  nor  was  the  estate 
changed  as  to  that  part  of  it  on  which  the  will  was  to 
operate  ;  for  the  operation  of  the  will  was  confined  to 
the  old  fee-simple^  which  by  the  limitation  in  the  set- 
tlement was  returned  back  to  the  testator.  There  was 
it  was  said  no  new  modelling  of  the  estate,  for  the 
acts  which  took  place  subsequently  to  his  will  were  in 
the  testator's  contemplation  at  the  time ;  so  that  the 
question  was  broadly  this^ — whether  where  the  inten- 
tion was  manifestly  against  a  revocation^  the  instru- 
mental mode  of  carrying  the  -intention  into  effect 
should  nevertheless  produce  the  legal  consequence  of 
a  revocation. 

But  the  Court  decided^  that  as  the  testator  parted 
with  the  estate^  notwithstanding  the  old  use  resulted 
to  him  again^  still  the  conveyance  operated  as  a  re- 
vocation of  the  willj  because  it  drew  out  of  the  testa- 
tor the  subject  matter  upon  which  the  will  was  to 
qperate. 

Such  a  series  of  well-considered  cases  have  con- 
curred in  establishing  this  particular  doctrine  on  the 
subject  of  revocation  by  a  subsequent  conveyance, 
that  the  general  rule^  as  laid  down  in  the  preceding 
pages^  may  now  be  considered  as  finally  at  rest  (4).  It 
seems  a  little  extraordinary,  indeed,  that^  when  once 
it  had  been  received  in  all  the  courts  as  a  rule^  that 
a  conveyance,  by  a  testator  of  the  devised  lands  to  the 
use  of  himself,  and  his  heirs  for  ever^  was  a  total  re- 


(4)  See  Vawser  o.  Jeffrey,  16  Vez.  Jan.  519.  By  Sir  W*  Gnnt^ 
the  question  b  no  longer  open  to  controversy. 


Sect.  6.         ,  Subsequent  Conveyances.  259 

\ocation  of  his  will,  it  should  afterwards  be  contended^ 
tliat  a  conveyance  of  the  fee  to  particular  uses,  and 
for  a  partial  purpose,  was  not  a  revocation  beyond 
(hose  uses,  or  the  exigency  of  that  partial  purpose. 

The  rule  respectinir  the  revocation  of  wills,  does  Ofthene. 
not  in  this  instance  rest  upon  the  intent  to  revoke,  but  the  testa- 

^  tator'sbe- 

19  best  accounted  for  by  considering  that  the  testator  ing  seised 

.  .        .  .  at  the  time 

must  actually  have  the  interest  in  him,  which  he  at*  of  making 
tempts  to   devise,  at  the  time  of  making  his  will:  andconti- 
and  that  as  the  will  is  inchoate  at  the  time  of  making  ttTelune  of 
it,  and  consummate  by  the  dtoth,  it  must  have  a  po- 
tential existence  during  the  interval,  and  by  conse- 
quence the  interest  on  which  it  is  to  operate  must  un- 
interruptedly continue,  during  the  whole  period,   in 
the  testator. 


Some  great  lawyers  (5)  have  grounded  the 
reason  of  the  necessity  which  exists  for  the  testator's 
being  seised  of  the  lands  at  the  time  of  his  making 
his  will,  upon  the  words  of  the  statutes  32  and  34 
Hen.  8.  viz.  ''  that  every  person  having  lands,  may 
devise  them  ;"  later  authorites  have  with  greater  cor- 
rectness held,  that  this  rule  is  older  than  the  above- 
mentioned  statutes  of  Henry  the  8th :  for  according 
to  all  the  precedents,  the  inefficacy  of  a  will  to  pass 
lands,  whereof  the  testator  was  not  seised  at  the  time 
of  making  and  publishing  it,  applied  as  well  to  devi- 
ses by  custom,  as  to  wills  authorized  by  the  statutes 


(5)  See  the  case  of  Brett  v.  Rigden,  Plowd.  344.  where  Lord 
Dyer  grounds  the  reason  of  this  rule  upoa  the  force  of  the  word 
'  haring/  in  the  stat.  32  H.  8.  and  see  Butler  asd  Baker's  case^ 
^  Rep,  31.  and  Straoge;  27. 

€  2 


258  RewetOioh  of  WiUi.  j^  n^ 


were  inconsistent ;  but  that  in  the  r /  /^^  Bnnker 
deration  there  was  no  inconsistence/  ^^gg^  ygj  that  it 
changed  as  to  that  part  of  it  or  /  ^ /gj^,  jj  ^^g  „„{. 
operate  ;  for  the  operation  o^  ^^  ggjggj  in  fee,  and 
the  old  fee-simple,  wbith ',  j^j,  ^jjj    j^  |,g  ^bso- 

tlement  was  returned  ba  /'      ^jg^j.  ^f  ^^^^  ^jj^^^  ^e 

it  was  said  no  new :  '    „j  j^^g  making  his  wiU  (6). 
acts  which  took-  pi' 

the  testator's  cr  ^  ^^gt^tor  devises  all  his  lands,  and 
quesUon  ww  .."^^/,ases  other  lands,  and  dies  without 
tion  was  r  ^f^^  ^jjj  ^^  republishing  his  former  will, 
mental  „/'  -urchascd  lands  will  not  pass.  .  Serjeant 
■hou^  ./.'*'''^jji  the  case  of  Brett  v.  Rigden,  supposed 
*''  ^^"l/.f  to  be  diflFerent  where  the  devise  was  of 
^',,  specifically  mentioned  and  intended  to  be  pur- 

/  Jtep.  tentp.  Holt,  246.     1  Salk,  237.    Fits  Gibbon,  ^32. 


•  (6)  Rastall,  274.  where  the  ckvise  was  by  force  of  the  custom, 
^nd  see  the  Writ  ex  gravx  querela,  in  Fitzherbert,  which  sets  out  tht 
custom  ;  and  where  it  is  described  not  as  a  general  authority  to  deiM 
terras  et  tencmenta,  but  tenemeuta  sua.  So  that,  ai  the  ciutom  ii 
there  set  forth  if  they  arc  not  sua  at  the  time  of  tht  derise,  they  ara 
out  of  the  custom,  and  the  will  cannot  be  rendered  effectual  by  it.  Bat 
it  is  proper  in  this  place  to  apprise  the  student  of  the  present  liberal 
•enie  of  the  courts  in  respect  to  the  nature  and  extent  of  the  intereitof 
which  a  testator  must  be  possessed  to  qualify  him  to  de? is«  his  m- 
^ntinjcent  tate.  Modern  decisions  hare  extended  the  power  of  testanentarj 
tory inter-  disposition  to  contingent  and  executory  interests,  where  the  pcrtoD 
•suare  de-  ^f^^  |g  ^^  ^^^^  \^  certain,  so  that  the  same  would  be  descendible  if 
not  devised.  Roe  v.  Jones,  1  U.  Bl.  30.  and  3  D.  T.  R.  88.  in 
which  last  case  Lord  Kenyon  said  that  the  word  ^  having^'  in  tht 
statute,  must  be  understood  to  mean  ^  having  an  interest^*  and  bii 
Lordship  distinguished  between  such  a  contingent  interest  and  a 
mere  possibility,  or  a  mere  expectation  or  hope  of  succesMon,  as  that 
of  an  heir  from  hia  ancestor.  And  se«  Fearnc'tf  Cont.  Hen.  lib  £^« 
413]  et  seq. 


\ 

-    Subsequent  Conveyaneea.  361 

^|lse  in  such  case  the  intent  was  manifest 

'oosition  was  in  the  ahove-mentioned 

V.  Cook,  denied  to  be  law  by  the 

added  that  he  had  looked  into  the 

**^in,  and  had  found  nothing  in 

^  ^ition. 

A  devise  land,  and  be  afterwards   dis-  a  right  of 

'  entry  not 

dnd  then  die,  the  devise  is   void  and  can-  <»«viiabif. 

.c  be  made  good;  because  the  disseisin  has  turned 

the  estate  to  a  right,  which  is  only  a  chose  in  action 

(8),  and  cannot  be  devised  away  ' ;  therefore,  says  the 

book,  it  was  held  a  good  plea  against  the  devise,  that 

*  Bro.  Tit.  DcTise,  pi.  Ij.  cites  39  H.  6.  18. 


(7)  In  the  case  of  Nannock  r.  Horton,  7  Vei.  Jun:  399.  it 
Itemed  to  be  the  opinion  of  the  present  Chancellor,  that  a  specific 
ilerhe  of  personal  estate,  which  the  testator  was  never  possessed  of^ 
ni^'iit  opprate  as  a  direction  to  the  executor  to  purcliase. 

3ut  u  here  a  real  estate  is  contracted  to  be  purchased,  courts  of 
Equity  consider  the  estate  as  in  the  purchaser  from  the  execution  of 
t  •€  contract ;  and  th.erefore^  as  a  consequence  of  this  maxim,  it  will 
Ij?  presently  shewn,  that  a  will  disposing  of  the  estate,  before  the 
contract  is  performed  hy  a  conveyance,  is  effectual  to  pass  the  in- 
tercat,  and  is  riot  revojied  by  a  subsequent  conveyance  either  to  the 
purchaser  and  his  heirs,  pr  to  a  trustee  for  the  purchaser  and  hii 
lioirs.  So  where  personal  estate  is  impressed  with  the  character  of 
ff^l  estate,  by  being  agreed  to  be  sold,  and  the  money  to  be  laid 
^ut  In  land  to  be  settled,  the  person  to  take  the  ultimate  reversion 
antler  such  settlement,  may  devise  jt  by  his  will,  and  the  estate^ 
tliongh  purchased  after  the  willy  will  go  in  Equity  according  to  such 
•Uprise,    See  the  case  of  the  Attorney  General  v.  Vigor,  8  Vcz.  Jun, 

(8)  See  the  case  of  Goodright  v»  Forrester,  8  East,  55?.  The 
one  of  a  tenant  for  life  displaces  and  divests  the  estate  of  tho  i  c- 
iQainder  nan  or  reversioner,  leaving  in  him  only  a  right  of  entry,  to 
^  Mercise4  either  immediately  for  the  forfeiture^  or  within  |lr# 


S62  Revocation  of  Wills:  Chaf.  If. 

the  devisor  did  not  die  seised  of  those  lands ;  but  the 

book  goes  on  further  and  makes  a  question,  whether 

if  a  man  be  disseised,  and  then  make  his  will  devising 

his  lands,  and  afterwards  re-enter  into  the  lands,  it  be 

a  good  plea  to  say  that  the  testator  had  nothing  in  the 

lands  at  the  time  of  the  devise.    "His  Lordship  then 

gave  it  as  his  opinion  that  in  such  a  case  the  re-entry 

Butiftfter  (9)  would  purge  the  disseisin,  and  that  the  testator 

an  entry  b«  lyould  be,  to  all  intents  and  purposes,  by  relation,  in 

disaeuin  is  from  the  beginning  (10).     His  Lordship  also  further 

and  the  ti-  observed,  that  a  will  was  a  disposition  from  the  time  of 


years  after  the  nataral  determination  of  the  preceding  estate.  And 
the  effect  of  the  statute  4  Hen.  7.  is  only  to  save  to  aU  the  re* 
jnainder  men,  their  respective  rights  of  entry  within  fiye  years  after 
their  respective  titles  successsirely  accrue,  without  being  prejadiced, 
the  one  by  the  other's  laches.  But  such  right  of  entry  is  not  de* 
visablej  though  it  may  be  released.  Shep.  Touchst.  3^5.  Lit.  Sect. 
347.  Co.  Litt.  48.  b.  214.  a.  266.  a.  Perk.  Sect.  86.  [edit.  1642.] 
And  see  per  Lord  Eldon,  8  Vez.  Jun.  282.  Attorney  General  r. 
Vigor. 

That  the  fine  diTe>ts  the  remainder,  see  Litt.  Sect.  416.  and 
Fowes  V.  Salisbury,  Hard.  401 — 2.  It  is  also  clearly  held  that 
though  the  remainder  man  is  at  liberty  to  enter  presently  for  the 
forfeiture,  still  he  has  a  future  right  of  entry  unaffected  by  that 
present  right,  which  may  be  exercised  within  five  years  after  the 
determination  of  the  antecedent  interest,  by  the  death  of  the  tenant 
for  life.  The  Court  thought  in  the  case  above  cited,  that  such  ri^ht 
of  ewiry  did  not  come  within  the  description  of  the  word  interest  in 
34-^35  H.  8.  c.  514.  and  that  the  remainder  man  could  not  be  con- 
sidered as  having  an  interest  in  the  thing  at  the  time  of  his  devise ; 
for  an  executory  interest  was  a  very  different  thing  from  a  rigU  of 
entrtf  for  revesting  a  divested  estate. 

(9)  But  if  the  testator  had  died  out  of  the  possession  it  seems 
clear  that  the  will  could  have  had  no  effect  upon  it,  and  see  11 
Mod.  128.  et  1  Bos.  et  Pull.  602.  by  Eyre  C.  J. 

(10)  38  Hen.  6.  27.  and  19  Hen.  6. 17.  Observe  what  is  said 
of  this  doctrine  by  the  present  Chancellor  in  8  Vez.  Jun.  282. 


Sect.  6.  Suhiequent  Canveyaneef.  ^63 

making  it,  and  he  looked  upon  this  to  be  Lord  Coke's  ^^/^^^"^^ 
opinion  in  Butler  and  Baker's  case  (11).  bv"l'wT 

prior  to  the 

Thus  too  in  Arthur  v.  Bokenham',  in  the  Common 
Pleas^  Lord  Chief  Justice  Trevor  held  that  the  making 
of  a  will  is  the  foundation,  and  an  instant  incipient 
disposition,  so  that  if  the  devisor  have  not  the  land  (12) 

*  Rep.  Temp.  Holt,  750. 


(11)  To  proTe  that  a  defise  was  a  present  disposition  to  take  ef-  What  ope-> 
feet  in  futuro  Lord  Holt  instanced  a  case  in  Lord  Bridgman's  time,  wn^hai  at 

wherein,  there  having  been  a  devise  to  two  persons,  and  their  heirs,  ^^  time  of 

niaking  it* 
and  one  of  them  dying  in  the  testator's  life*time,  it  was  held  that 

the  survivor  should  take  the  whole.  Perhaps  this  view  of  the  opera- 
tion of  a  will  of  lands  as  an  actual  disposition  to  take  effect  and 
become  executed  upon  the  death  of  the  devisor,  was  in  some  measure  • 
the  reason  of  Lord  Kenyon's  dictum  in  Doe  v.  Luxton,  6  T.  R. 
293.  that  a  person  entitled  to  an  estate,  pur  auter  vie,  under  a  grant 
to  him,  and  the  heirs  of  his  body,  with  remainders  over,  may  cut 
off  the  remainders,  and  make  a  complete  disposition  of  the  whole 
estate  by  his  will  alone.     It  appears  in  the  case  of  Campbell  v, 
Sandys,  1  Schoales  and  Lefroy's  Rep.  294.  that  this  opinion  of  Lord 
Kenyon  was  not  agreeable  to  the  sentiments  of  Lord  Redesdale, 
who  obserred  that  he  could  find  no  decision  that  at  all  warranted 
that  opinion.     Ilis  Lordship  declared  himself  to  think  that  on  prin- 
ciple a  will  could  not  have  that  effect,    fiut  it  is  nevertheless  to  be 
observed  that  his  Lordship  appeared  to  ground  his  objection  to  the 
principle  on  a  view  of  the  nature  and  operation  of  a  will  a  little 
different  from  that  which  was  taken  of  it  by  Lord  Holt,    Lord 
Trevor,  Lord  Mansfield,  and  Lord  Loughborough,  as  appears  by 
the  text.     For  Lord  Redesdale  does  not  seem  so  much  to  regard  it 
as  a  disposition,  or  appointment  of  the  lands  in  the  nature  of  a 
conveyance  to  a  particular  derisee,  as  the  mere  designation  of  the 
special  hdr,  against  the  right  of  the  person  to  whom  the  property 
would  otherwise  deyolve. 

(13)  It  has  been  observed  in  a  former  note,  that  it  is  not  meant 
that  the  possession,  or  an  executed  interest  in  the  land,  should  be 
in  the  testater,  it  is  enough  if  he  have  a  present  interest,  thouglk 


S64 


Revocation  of  Willsn  Chip.  H 


at  the  time,  it  will  not  pass  (13).  And  the  interest 
must  continue  in  him  till  his  deaths  or  it  {rannot  re- 
ceive its  consummation. 


^' ohSd"      ^^  ^^^  ^^^^  ^^  Harwood  v.  Goodright',  Lord  Mans- 
and  per.    field  adoDts  and  further  illustrates  the  same  reason 

tonal  ei-  ^  7-  t 


tste. 


•  Cowp.  90.    3  Burr.  1497. 


Of  the  re- 
semblance 
.between 
'wills  aad 


to  commeDce  in  futuro^  or  to  depend  upon  a  contingency ;  but  a 
bare  expectation  as  that  of  an  heir,  vrill  not  suffice,  as  "was  ob- 
serred  by  Lord  Holt,  in  the  aboTe  cited  case  of  Bunter  t>.  Cooke. 
(13)  Lord  TrcTor  took  notice  of  the  resemblance  between  villi 
and  conveyances  to  uses,  and  observed,  that  no  one  could  raise  a 
U9e  in  land  which  he  had  not  at  the  time  of  the  conveyance ;  as, 
ces  to  uses',  ^^ere  a  father  covenanted  to  stand  seised  of  land  which  he  should 
afterwards  purchase  to  the  use  of  himself  for  life,  and  afterwards 
to  the  use  of  his  youngest  son  and  his  heirs,  and  then  purchased 
the  land  and  died,  and  the  question  was,  whether  the  eldest  or  the 
youngest  son  should  take,  it  was  resolved  that  no  use  could  arise  to 
the  youngest  son,  as  the  father  had  not  the  land  at  the  time  of  mak- 
ing the  conveyance  ;  and  his  I^ordship  put  the  distinction  well  be- 
tween  that  case  and  where  a  man  covenants  that  he  will  purchase 
land  by  such  a  time,  and  then  levy  a  fine  thereof  to  such  and  such 
uses.  When  the  land  is  purchased,  and  the  fine  levied,  the  uses 
arise  upon  the  fine,  and  not  on  the  deed,  and  the  deed  is  only  evi- 
dence of  his  intention  that  such  uses  shall  arise,  if  no  uses  are  de- 
clared at  the  time  of  levying  the  fine,  for  at  that  time  he  might 
declare  other  uses. 

A  very  material  distinction  as  to  the  force  of  the  residuary  clause 
\  in  respect  of  personal  and  real  estate,  results  from  this  doctrine  of 
considering  a  will  of  land,  as  to  its  immediate  eft'ect,  as  a  species  of 
iiichoate  conveyance  by  way  of  appointment,  viz.  if  a  legacy  of 
personalty  lapses,  the  subject  passes  with  the  residue  to  the  resi* 
^uary  legatee ;  but  if  a  devise  of  real  estate,  which  is  always 
specific,  lapses,  it  goes  to  the  heir,  and  not  to  the  residuary  de- 
visee.    But  if,  at  (he  time  of  ihe^  devise^  the  person  intended  is  not 
in  existence,  the  subject  of  the  devise,  if  real  property,  will  go  to 
the  residuary  devisee.      See  Doe  on  dem.   Stewart  v.  Sheffield, 
^    13  East.  520.    See  1  Vez.  481.   8  Vcz.  Jun.  25. ' 


Bscr.  6,  Subsequent  Conveyances^  265 

for  the  revocation  of  wills  by  n  subsequent  convey-  "^'^h 

J  M.  J      turns  upon 

wee  of   the  property.     ''  Though  as  to   personal  J'.'^^jj'^'^^J'**^" 
estate,"  said  his  Lordship,  -^  the  law  of  En&:land  has  tweeu  the 

*  '^^  ^  nature  of 

adopted  the  rules  of  the  Roman  testament,  yet  a  de-  awuiac- 
vise  of  lands  in  England  is  considered  in  a  ditfcrent  the  dvii 
light  from  a  Roman  will ;  for  a  will  in  the  civil  law  Uw'of  fi»- 
was  an  institution  of  the  heir ;  but  a  devise  in  Eng-  ^ 
land  is  an  appointment  of  particular  lands  to  a  par* 
ticular  devisee,  and   is  considered  as  being  in  the 
nature  of  a  conveyance  by  way  of  appointment ; 
upon  which  principle  it  is  that  no  man  can  devise  landf 
which  he  has  not  at  the  date  of  such  conveyance.    It 
does  not  turn  upon  the  construction  of  the  statute  of 
Henry  8th,  which  says,  that  *^any  person  having  lands, 
&c.  may  devise.'     For  the  same  rule  held  before  tht 
statute  where  lands  were  devisable  by  custom.     It  is 
upon   the  same  principle  that  there  have  been  revo- 
cations determined  contrary  to  the  intent  of  the  tes- 
tator, as  wher^  he  has  afterwards  made  a  feoffment 
or  the  like,  because  that  has  been  construed  a  new 
Rppointment, " 

These  decisions,  said  the  late  Lord  Chancellor 
Loughborough,  result  from  fair,  legal,  that  is,  fair, 
systematical  reasoning,  and  do  not  depend  upon  any 
captious  nicety.  The  objections  to  them  arise  from 
considering  the  disposition,  by  testament,  of  land,  in 
the  same  view  as  the  Roman  testament  was  consider* 
cd,  or  wills  of  personal  estate,  which  is  not  a  just 
manner  of  considering  what  the  law  of  England  per- 
mits to  be  a  disposition  of  land  by  will.  It  is  not  an 
indefinite  disposition  of  all  a  man  may  be  possessed 
of  at  his  death,  as  is  the  case  with  bequests  of  personal 
property.  A  disposition  of  land  by  will  is  no  more  than 
fm  appointment  of  the  person  who  shall  take  the  specie 


266  Revocation  of  Witts.  Chap.  11. 

lie  land  at  the  death  of  the  person  making  it.  It  is  sa 
far  testamentary  that  it  is  fluctuating,  ambulatory, 
and  does  not  take  effect  till  after  the  death  ;  but  it  is 
in  the  nature  of  a  conveyance,  as  being  an  appoint- 
Aiidevis«  ment  of  the  mecific  estate  (14).     And  therefore  that 

•f  land  are  .        . 

•pecific.  course  of  determinations,  which,  with  some  attempts 
to  break  in  upon  it,  has  been  established,  and  fully 
established,  by  Bunker  v.  Cooke,  and  Arthurs.  Bock- 
enham^  has  been  wisely  determined ;  and  not  deter- 
mined upon  the  literal  construction  of  the  statute  of 
wills^  but  upon  the  nature  of  the  instrument^. 


Aft«rpnr.  The  rule  is  the  same  in  respect  to  copyholds  pur- 
copyhoids  chascd  by  a  testator  after  making  his  will ;  they  will 
by  thewT  not  pass  by  the  general  words  of  the  antecedent  wiD, 
wut  *"*  unless  indeed,  after  they  are  so  purchased,  they  are 
Except      surrendered  to  the*  uses  already  declared  by  the  last 

where  the  \  v  i 

wui  is  re-  ^iU  and  testament,  as  was  done  in  Heylin  v.  Heylin, 

published  i_ 

by  a  SOT-  where  the  will  was  held  to  be  republished  by  the 
words  of  the  surrender.  But  in  Warde  v.  Warde", 
where  the  testator  Thomas  Warde,  by  his  will,  re- 
citing that  he  was  seised  of  a  copyhold  estate,  (when 
the  fact  was  not  so,)  devised  all  his  real  estate,  &c. 
and  afterwards  purchased  a  copyhold  estate,  and  sur- 
rendered it  thus,  viz.  '^  to  such  uses  as  I  by  my  last 
will  shall  appoint ;''  the  will  was  h^ld  not  to  operate 
upon  this  property. 

^  Bridges  v.  Cbandos,  2  Vez.  Jun.  4i7. 
•  Cowp.  130.  ■  Ambl.  209. 


(14)  Efeiy  gift  of  land,  ewen  a  general  residiiary  derlse  is  spe- 
tific*  See  7  Yes.  147.  Ibid.  390.  because  a  man  can  devise  onl/ 
what  lie  has  at  the  time  of  derising.  See  the  case  of  Hill  v,  Cock> 
1  Yes.  and  Beames,  175. 


Sect.,  6.  Subsequent  Conveyances.  267 

Still  J  however,  if  a  testator  is  possessed  of  the  pro- 
perty at  the  time  of  making  his  will,  the  surrender 
will  be  operative  if  made  after  the  will.  And  in  such 
a  case,  even  if  the  surrender  made  after  the  will,  be 
to  such  uses  as  the  surrenderer  shall  by  his  last  will 
appoint,  the  copyhold  will  nevertheless  pass  by  the 
antecedent  will,"  if  the  words  of  such  will  be  general 
enough  to  comprehend  it.  So  the  law  stands  with 
regard  to  the  cases  wherein  the  surrender  is  made 
afier  the  making  of  the  will. 

It  is  clearly  established  that,  in  all  cases,  a  surren* 
der  to  the  use  of  a  will,  to  be  availing,  must  be  made 
while  the  person  so  surrendering  has  the  legal  pro- 
perty. Thus,  if  the  surrenderee  of  a  copyhold,  be- 
fore his  admittance,  surrenders  to  the  use  of  his  will, 
and  is  afterwards  admitted,  such  surrender  is  of  no 
effect,  and  cannot  be  made  good  by  a  subsequent  ad- 
mittance. And  it  matters  not  whether  the  will  were 
before  or  after  admittance  (15). 

If  a  man,  after  making  his  will,  surrender  his  copy- 
hold not  to  the  use  of  his  will  but  to  new  and  other 
uses,  his  will  is  revoked,  although  he  die  before  any 
admittance  in  pursuance  of  such  surrender ;  and  it 
has  been  held  that  even  a  covenant  tQ  surrender  will 

"  1  T.  R.  435.  Spring  and  Titcher  v.  Biles.  N. 


(15)  Doe  dem.  Tofield  v.  Tofield,  11  East.  246.  But  in  favor  of 
a  surrenderee  under  a  valid  surrender  the  admittance  has  relation  to 
the  surrender,  so  as  to  make  the  estate  pass  in  the  same  course  of 
descent ;  and  so  as  to  give  the  same  right  of  dower  and  custom, 
which  would  have  attached  had  the  admittance  followed  immediately 
upon  the  surrender  :  because  these  are  acts  of  law  which  are  helped 
by  relation :  but  relation,  and  other  fictions  of  law,  will  not  make 
good  the  acts  of  parties  otherwise  invalid.    3  Rep.  29.  a. 


96S  Revocation  of  Wills.  Chap.  IL 

produce  the  tame  effects  But  if  after  having 
surrendered  to  the  use  of  bis  will^  a  copyholder  in 
fee  surrenders  to  new  and  particular  uses^  with  rever^ 
sion  to  himself  in  fee,  it  has  been  held  that  he  may 
devise  the  reversion^  without  any  fresh  ilirrender  to 
the  use  of  his  %vill ', 


Section  VII. 
Cf  subsequent  dealings  tpith  the  Estate  in  EquU^, 

It  has  already  been  shewn  that  equity  preserves  an 
analogy  in  respect  to  the  effect  given  to  a  testator's 
acts^  as  operating  to  revoke  his  will^  and  that  there- 
fore any  disposition  or  disturbance  of  the  estate, 
which  at  law  would  have  produced  a  revocation,  will 
be  followed  by  the  same  consequence  where  the  subject 
If  a  mai^  \^  equitable.  But  if,  after  a  will  disposingof  an  equitable 
an  cquite-   estate,  thc  testator  takes  a  conveyance  to  himself  and 

ble  estate  ^  .  •' 

makes  his   his  hcirs,  of  the  leiral  estate,  this  is  no  revocation  of  the 

will  and  af-  ^ 

terwards    will(l).  For  nothing  here  passes  out  of  the  testator^ 
convey,      and  what  he  has  subsequently  acquired  is,  at  least  in 

ance  of  the  •  i       j  •  i^  •  i  •  •  i. 

legid  esute  Consideration  of  equity^  nothing  new,  in  as  much  as 
and  Sr     in  the  view  of  a  court  of  equity,  he  had  the  complete 

heirs,  it  is  r  * 

no  rcToca-  -,  -  _.  »»       » 

Mob.  *  Vawser  v.  Jeffrey,  10  Vez.  Jan.  519. 

'  Thrustont  d.  Gower,  v.  Cunningham,  2  Bla^kst.  1046* 


(1)  By  Lord  Hardwicke,  In  Panpns  r.  Freeman,  3  Atk.  741. 
ftnd  by  Lord  Loughborough  in  Brydges  v.  Phandos,  %  Ve9'  Jon. 
429.  and  seo  the  case  cited  by  Lord  Loughborough  from  B^H* 
Abr.  616.  pL  3.  Cestui  que  n^e  before  the  statute  of  uses,  de- 
"vises;  afterwards  the  feoffees  make  a  feoffment  of  the  land  to 
the  use  of  the  deiisor ;  and  after  the  statute  the  derisor  dies,  tba 
latid  shall  pass  by  the  dense.  And  see  Watts  v.  Fullartof] 
DQUgl.  69  L 


J 


Sect.  7.        Subsequent  Avts  in  Equili/.  36J> 

estate  before,  and  therefore  that  judicature  does  not 
regard  the  property  as  at  all  altered. 

But  if  this  case  be  reversed,  and  the  facts  be  sup-  But  if,  bar- 

*      ing  uie  lo* 

posed  to  be,  that  a  man  seised  of  a  legal  estate  makes  g^*^^^?^^'  | 

his  will,  and  then  conveys  the  estate  to  another  in  it,aDdtiie« 

-I'll  passes  it  t# 

trust  for  himself,  and  his  heirs,  the  will  is  clearly  re-  trustee* for 

,       .     bimselfancl 

voked  in  law,  because  the  subject  of  the  devise  is  his  heirs, 
parted  with,  and  the  estate  which  is  subsequently  ac-  is  revoked, 
quired  in  equity,  is  a  totally  new  estate,  and  therefor* 
not  included  in  the  will  \ 

In  Parsons  v.  Freeman  ^  it  was  agreed  by  the  mar-  ^f  ^^ 
riaffe  articles,  that  the  wife's  lands,  of  which  she  was  ^tatc  i* 

^  ^  ^  ,  called  in 

seised  in  tail,  should  be  conveyed  to  the  intended  hus-  afterawiii 

,  made,  any 

band  in  fee ;  they  married ;  the  husband  made  his  will,  new  use  it 
and  devised  these  lands :  and  afterwards  the  husband  uponit,th« 
and  wife  suffered  a  recovery  of  the  same  lands  to  such  Toke^. 
uses,  and  for  such  estates,  as  they  should  jointly  ap- 
point ;  and,  in  default  of  appointment,  to  the  use  of 
the  husband  and  his  heirs.  She  died  without  appoint- 
ing, and  it  was  decided  by  Lord  Hardwicke,  that  tht 
"mil  was  revoked ;  his  Lordship  at  the  same  time  ad- 
mitting, that,  if  the  husband  had  only  taken  the  legal 
estate  by  the  recovery,  to  execute  it  into  the  equit- 
able estate,  it  would  have  been  no  revocation ;  but  in 
the  case  as  it  stood,  new  uses  were  created,  and  though 
no  appointment  was  made,  yet,  the  fee  was  by  the  re* 
•overy  taken  differently  qualified*. 

So  where  a  roan  having  bound  himself  by  ar- 
ticles, makes  his  will,  devising  so  much  as  the 
articles  were  not  intended  to  operate   upon^    and 

•  Ibid.  »  3  Atk.  74  1. 

;  fit  Tid.  Tickat r  v.  Ttfduisr,  sitsd  3  Atk.  741.    I  Will.  309. 


870  Revocation  of  Wills,  Chap.  II. 

then  conveys  his  legal  estate  upon  trusts^  by 
way  of  settlement  in  execution  of  the  articles. 
Upon  the  principle  of  the  decision  in  the  decisive 
case  of  Goodtitle  v.  Otway,  above  cited^  such  a  con- 
veyance in  trust  as  last-mentioned^  would  be  a  com- 
plete revocation  of  the  will.  The  case  of  Williams 
V,  Owen*^  which' was  decided  at  the  Rolls  in  1795,  a 
few  years  before  Goodtitle  v.  Holford,  certainly  pro- 
ceeded upon  a  contrary  doctrine :  but  that  case  has 
been  considered  as  open  to  great  doubt,  since  the  de- 
cision of  the  case  of  Goodtitle  v.  Holford. 

ComoiMits      The  case  of  Williams  v.  Owen  was  shortly  this  : 
cases  of    a  man  being  seised  in  fee,  by  articles  prior  to  mar- 

WiUiamsr.      .  .  . 

Owen,  and  riagc.  Covenanted  to  convey  his  estate  to  trustees,  to 
Duchess  of  the  use  of  himself  for  life,  remainder  in  trust  to  se- 
^**  cure  an  annuity  to  his  wife  in  bar  of  dower ;  remain- 
der to  trustees  for  a  term  to  raise  portions ;  remain- 
der to  the  sons  and  daughters  successively  in  tail ;  re- 
mainder to  his  own  right  heirs.  He  afterwards  made 
his  will,  and  devised  the  reversion  in  fee  in  the  event 
of  his  dying  without  issue ;  and  afterwards  and  be- 
fore marriage,  executed  a  settlement  in  pursuance  of 
the  articles,  by  which  he  conveyed  the  estates  to  trus- 
tees, and  their  heirs,  to  the  uses  and  upon  the  trusts 
of  the  articles.  It  was  holden  that  this  settlement 
did  not  revoke  the  will,  being  nothing  more  than  a 
mere  legal  execution  of  the  articles. 

The  Master  of  the  Rolls  compared  this  case,  in 
principle,  to  that  wherein  a  testator,  having  devised 
an  equitable  estate,  takes  a  conveyance  of  the  legal 
estate  from  hia  trustee,  to  himself  and  his  heirs^  or  to 

^  3  Yec.  J|ui.  M5. 


Sect.  7.        Subsequent  Acta  in  Equity.  S7I 

the  uses  of  the  will.  He  admitted  that  after  the  ar- 
ticles the  devisor  remained  seised  of  the  legal  estate^ 
and  passed  it  out  of  himself  by  the  conveyance ;  but 
he  said  that  by  the  articles  he  had  reduced  himself  to 
a  remainder  man  in  fee  in  eqility  ;  that  having  this 
ultimate  trust  in  fee  he  devised  it^  and  then  the  sub- 
sequent act  with  respect  to  this  fee  was  no  more  than 
clothing  it  with  the  legal  estate.  The  objection  to 
this  reasoning,  however  is^  that  it  is  not  strictly  ac- 
cording to  the  fact^  but  seems  more  like  misappre- 
hension than  could  be  expected  from  so  accurate  a 
Judge,  for  there  seems  to  be  no  propriety  in  consi- 
dering the  testator  as  having  converted  himself  by  the 
articles  into  an  equitable  remainder  man.  He  clearly 
retained  the  whole  fee  simple  in  law,  and  the  ulti- 
mate reversion,  being  a  part  of  such  fee,  was  com- 
prised in  the  will,  and  afterwards  conveyed  out  of  the 
devisor,  which  brings  the  case  clearly  within  the 
range  of  the  doctrine  above  discussed. 

In  alluding  to  the  case  of  Brydges  v.  the  Duchess 
of  Chandos,  his  Honour  observed,  that  it  was  impos- 
sible not  to  see  that  the  judgment  in  that  case  which 
gave  to  the  settlement  the  operation  of  a  revocation 
was  founded  upon  the  variation  of  the  settlement  from 
the  articles,  and  he  took  it  to  have  been  clearly  the 
Chancellor's  opinion,  that  if  the  settlement  had  fully 
followed  the  articles  in  the  case  before  him,  there 
would  have  been  no  revocation. 

It  is  evident,  however,  that  if  that  was  the  inclina- 
tion of  the  Chancellor's  mind,  he  was  furnishing  rea- 
sons and  authorities  against  his  own  opinion,  by  the 
long  preface  to  his  very  learned  and  able  decree  ia 
that  cattse^  vrherein  he  hu  elaborately  expounded  the 


t73  Revocation  of  Willi.  Chaf.  If. 

ioctrlne  of  virtual  revocations  by  the  alienation  of 
the  subject  of  the  devise  upon  the  principle  and  na- 
ture of  wills^  which  indispensably  require  a  continue 
ation  of  the  same  interest  from  the  making  of  the  wifi 
to  the  time  of  the  testatoi'^s  death. 

The  facts  of  the  case  of  Brydgcs  v,  the  Duchess 
of  Chandos',  were  shortly  these :  the  Duke  of  Chan- 
dos,  on  the  20th  of  June^  1777^  by  articles  previous 
to  bis  marriage,  covenanted  that  he  would,  within  six 
months  after  his  marriage,  convey  lands  in  such  man- 
ner that  he  should  be  seised  in  fee,  and  bis  wife  enti- 
tled to  dower  if  she  survived  him  ;  and  also  that  be 
would,  within  18  months  after  the  marriage,  settle 
the  said  estates  subject  to  the  dower  of  the  Duchess 
to  the  use  of  himself  for  Kfe,  to  trustees  to  preserve 
contingent  remainders,  remainder  after  the  deaths  of 
the  Duke  and  Duchess  to  trustees  for  a  term,  to  raise 
portions  for  younger  children  ;  remainder  to  the  first 
and  other  sons  of  the  marriage  in  tail  male ;  remain* 
dcr  to  his  own  right  beirs.  The  Duke  also  cove- 
nanted, that,  in  case  the  dower  should  not  be  equi- 
valent to  2000Z.  per  annum,  his  representatives  should 
make  good  the  deficiency.  The  marriage  took  effect^ 
and  on  the  9th  of  January,  1780,  the  Duke  by  his 
will,  after  confirming  the  articles,  devised  all  the  real 
estates  whieh  he  had  by  the  articles  agreed  to  settle^ 
in  case  he  should  die  without  issue  male,  or  in  case 
of  failure  of  issue  male  in  his  wife's  life-time^  to  his 
wife  for  life ;  remainder  to  his  daughters  as  tenants 
in  common  in  tail,  with  further,  limitations.  T(e 
Duke  afterwards  executed  a  settlement,  by  whicb^  re- 
citing the  marriage  articles,  -he  conveyed  the  fee  t« 

!  S  V«i.  Jim,  417. 


Sect.  7.        Subsequent  Acts  in  Equity.  373 

releasees^  to  the  use  of  himself  for  life^  remainder  to 
trustees  to  preserve  contingent  remainders,  remain- 
der to  other  trustees  for  a  term,  to  raise  dOOOZ.  per 
annum,  for  the  Duchess,  for  her  jointure,  and  in  bar 
of  dower,  remainder  to  the  first  and  other  sons  of 
4he  marriage  in  tail  male,  remainder  to  the  Duke  and 
his  heirs. 

Upon  a  view  of  this  case,  as  above  shortly  stated^ 
there  is  an  obvious  variation  in  the  settlement  from 
the  terms  both  of  the  articles  and  the  ivill,  and  this 
variation  of  the  interests  was  much  dwelt  upon  by 
the  Court,  to  meet  the  argument  of  the  settlement's 
being  attracted  to  the  articles,  so  as,  by  the  fiction  of 
relation,  to  date  back,  in  contemplation  of  equity, 
from  a  time  anterior  to  the  will.  But  from  the  whole 
course  of  reasoning  and  illustration  adopted  by  the 
Lord  Chancellor^  and  particularly  from  what  lie  says 
in  making  the  application  of  his  general  propositions 
to  the  facts  of  the  case,  viz.  that  ^"^  he  should  be  apt 
to  say  that  this  was  a  conveyance  of  the  whole  fee ; 
that  the  object  required  it ;  that  it  was  a  disposition 
that  would  revoke  the  will  at  law ;  and  that  that 
Court  ought  not  to  determine  differently  from  the 
rule  of  law  as  he  had  before  stated  it,''  it  manifestly 
appears  what  would  have  been  his  opinion  upon  the 
case  if  there  had  not  been  in  it  the  other  ingredient 
of  a  substantial  variance  between  the  will  and  the 
Bettlement. 

There  seems,  therefore,  to  have  been  good  ground 
for  the  concession  of  the  counsel  in  the  case  of  Cave 
'0.  Holford,  in  Chancery*;  that  it  is  impossible  to  re* 

^  3  Vez.  Jan..684. 
T 


d74  nevoeMtton  of  Wills.  Chap.  IL 

concile  Williams  v.  Owen  with  Brydgcs  r.  th^ 
Duchess  of  Cbandos.  The  difFerepce^  indeed,  be- 
tween a  case  circnmstanced  like  that  of  Williami 
V.  Owen  (2),  and  that  which  the  propriety  of  the 
decree,  according  to  the  professed  principle  of  it, 
required  it  to  resemble,  may  be  expressed  by  the 
contrary  propositions  of  parting  with  the  estate  and 
bringing  home  the  estate. 

In  Watts  and  others  v.  Pullarton',  the  testator  hav* 
ing  previously  articled  to  purchase  an  estate,  became 
in  equity  the  owner  of  the  estate,  from  the  time  of 
the  articles,  and  having  afterwards  settled  the  pur- 
chased property  by  his  will,  his  subsequently  taking 
a  conveyance  of  the  estate  to  a  trustee  for  hiin$€lf 
and  ))is  heirs,  was  on  solid  equitable  grounds  held  to 
be  no  revocation  ;  and  the  trustee  would,  of  coune, 
be  seised  of  the  legal  estate  upon  trusts  correspond- 
ing to  the  directions  of  the  will. 

Lord  Bathurst,  who  decided  that  case,  was  said  by 

Lord  Mansfield  to  have  relied  much  on  the  general 

proposition  laid  down  by  Lord  Hardwicke,  in  Parsoni 

>.  Freeman ',  that  '^  where  a  man  has  an  eqaitablt 

'Stated  Doug.  691.  2  Vez.  Jan.  0O2. 
•  3  Atk.  741.  749. 


o^ 


(2)  The  opinion  of  the  Master  of  the  Rolls,  in  Williams  v.  Owen, 
supposes  the  articles,  and  the  marriage  which  followed,  to  bare 
turned  all  the  estates  into  equitable  estates,  so  that  when  the  coa- 
Teyance  was  afterwards  made  of  the  legal  estate,  it  was  no  mors 
than  clothing  the  equitable  fee,  which  had  been  derised,  with  the 
legal  estiite. 

Sec  the  reasoning  of  the  Master  of  the  RoUs^,  in  Harmood  p. 
Oglander,  6  Vez.  Jun.  *>18.  in  explanation  of  the  principle  of  »»• 
opinion  in  Williams  v,  Owen. 


Sect.  7.  Subsequent  Acts  m  Equity.  1275 

iDterefit  in  fee  in  an  estate^  and  devises  it,  and  after- 
wards directs  a  cpnve3*ance  of  the  legal  estate  to  the 
sameusos^  this  is  no  revocation."  It  is  evident^  how- 
ever, that  this  case  of  Watts  v.  FuUarton^  exceeded 
the  bounds  of  Lord  Hardwicke's  proposition^  which 
supposed  the  legal  estate  to  be  aft^wards  conveyed 
upon  the  same  trusts  as  directed  by  the  will ;  and  which 
would  be  the  case  of  a  simple  change  of  the  trustee ; 
whereas^  in  the  case  last  mentioned,  the  will  had 
settled  the  estate  in  a  strict  form,  and  the  subsequent 
conveyance  from  the  vendor  was  for  the  benefit  of 
tbe  purchaser  and  his  heirs. 

The  act  which  succeeded  the  will  in  the  case  of 
Watts  V,  Fullarton^  was  in  effect  nothing  more  than 
a  completion  of  the  contract ;  and  upon  the  strength 
of  what  has  been  laid  down  by  Lord  Hardwicke^  in  * 
Parsons  v.  Freeman  ^  and  confirmed  by  later  autho- 
rities^ we  are  warranted  in  concluding^  that  if  the 
testator  in  this  case  of  Watts  v,  FuUarton^  had  taken 
tlie  conveyance  to  himself  and  his  heirs,  instead  of 
taking  it  to  a  trustee  for  himself  and  his  heirs,  such 
conveyance  would  have  been  no  revocation  in  equity, 
and.  the  effect  thereof  would  have  been  to  have 
made  the  heir  a  trustee  for  the  persons  taking  under 
the  will. 

That  the  change  of  trustees  is  no  revocation  of  a 
will  was  held  also  in  the  case  of  Bark  v.  Zouch ', 
where  A.  having  made  his  will,  and  devised  that  his 
feoffees  in  trust  should  make  a  lease  to  C.  and  D.  for 
80  years,  at  a  certain  rent,  payable  to  his  executors^ 
afterwards  procured  them^  to  join  with  him  in  making 
a  feoffment  of  the   devised  hereditaments   to    new 

»  3Atk.  741.  '  I  Ch.E<?p.a3. 

t8 


S76  Itevoeation  of  Wtlh.  CukP.  II. 

trustees  and  their  heirs^  to  the  use  of  himself^  until 
he  limited  new  uses  thereof^  which  he  never  did. 
It  was  held  that  the  feoflFment  was  no  revocation  of 
his  will.  And  again^  in  the  case  of  Doe,  lessee  of 
Sir  William  Gibbons  v.  Pott^  where  a  mortgagor 
devised  the  mortgaged  lands,  and  afterwards  paid  off 
the  mortgage,  and  caused  a  conveyance  to  be  made 
by  the  mortgagee  of  the  legal  estate  to  a  trustee,  in 
trust  for  himself  and  his  heirs,  such  a  transfer  of  the 
legal  estate  was  held  not  to  operate  as  a  revocation 
of  the  will. 

But  between  the  two  last-mentioned  cases  there  is 
this  observable  difference,  that  in  Bark  v.  Zouch,  the 
owner  of  the  equitable  estate,  after  devising  it,  jomed 
in  the  conveyance  from  the  old  to  the  new  trustee; 
whereas  in  Doe  v.  Pott,  it  does  not  appear  from  the 
report  of  the  case  that  the  mortgagor  was  a  convey- 
ing party  in  the  instrument,  whereby  the  legal  estate 
was  transferred  to  the  new  trustee.  It  is  probable 
he  was  not,  having  already,  and  before  his  will,  con- 
veyed his  equity  of  redemption  to  the  trustees  of  hii 
marriage  settlement.  It  seems,  however,  that  the 
decision  of  Bark  v,  Zouch  is  agreeable  to  sound  equi- 
table principles ;  for  the  reason  for  a  will's  not  being 
revoked  by  a  mere  change  of  trustees,  viz.  because 
no  estate  in  equity  passes  out  of,  or  is  acted  upon 
by,  the  testator,  seems  equally  to  hold  where  the 
owner  of  the  equitable  estate  joins  with  the  old 
trustee  in  conveying  to  the  new^  since  such  act  is  as 
inoperative  in  equity  as  at  law,  except  for  the  pur- 
pose of  being  directory  of  the  intended  transfer. 

!  0bug.71O.  and  vid.  per  Lord  Eldon,  11  Ves.  Jan.  554. 


Sect.  7,  Subaeqiient  Acts  in  Equity.  S77 

In  a  case  where  the  first  of  two  wills  devised  land 
to  trustees  upon  certain  trusts^  and  the  second  de- 
vised the  same  lands^  together  with  another  piece  of 
land^  to  the  old  trustees^  with  others^  but  upon  the 
same  trusts^  the  second  will  was  held  to  be  no  revo- 
cation of  the  first '^  and  as  it  should  seem^  upon  the 
clearest  equitable  grounds.     For  in  such  a  case  the 
estate  devised  by  the  first  will  did  not  pass  out  of  the 
testator  till  his  deaths  and  there  was  no  inconsistency 
in  the  devises.     The  peculiar  facts  of  that  case  made 
it  important  to  decide  whether  the  first  will  was  re- 
voked ;  for  though  the  second  will  included  all  the 
purposes  of  the  first,  yet  the  statute   of  mortma'n 
having  passed  between  the  making  of  the  two  wills, 
unless  the  estate  could  pass  by  the  first  it  could  not 
pass  at  all,  as  being  for  a  charitable  object     It  is 
true,    the   second  will  devised   the  legal  estate   to 
three  new  trustees,  in  addition  to  the  old,  but  still  in 
respect  to  the  two  former  trustees,  and  in  respect  to 
the  trusts  themselves,  there  was  no  disagreement; 
and  we  may  remember  that  the  rule  with  its  three 
branches  is  this — that  a  subsequent  devise,   to  re- 
voke a  subsisting  devise  of  land,  must  be  inconsistent 
with  such  former  devise ;  that  the  apparent  incon- 
sistency must  be  irreconcileable ;  and  that  the  first 
of  two  wills  is,  upon  the  ground  of  inconsistency,  re- 
yoked  only  to  the  extent  of  the  inconsistency. 

Equity  holds  a  very  steady  course  in  respect  to  Revoca- 
these  revocations  of  wills  by  subsequent  alienations,  eqmty  by 
applying  the  rule  of  law   to   those  interests  which  seU  rbr  vi^ 
are  looked  upon  as  the  estate  itself  in  equitable  con-  s.deriaon; 
sideration,  and  to  equitable  purposes,  in  such  man- 
ner as  to  keep  the  decisions  of  law  and  equity,  ia 

;  1  Yez.  178.  180.  Willett  v.  Sandfoid. 

2 


278  Revocation  of  Wills.  Chat,  11. 

this  respect,  the  same  in  principle.  Thus,  it  being 
the  maxim  of  equity  to  treat  an  estate  which  hai 
been  articled  to  be  conveyed  by  the  owner  to  a  pur- 
chaser for  valuable  consideration,  from  the  moment 
the  articles  are  executed,  as  vested  in  the  purchaser, 
and  therefore  as  capable  of  passing  by  his  will,  if 
properly  executed",  and  the  subsequent  conveyance 
of  the  legal  interest  as  having  no  effect  upon  the 
will,  being  only  the  medium  of  carrying  the  estate 
home;  in  pursuance  of  the  same  maxim,  that  Court 
considers  a  devise  of  land  to  be  revoked  by  subsc- 
quent  articles  to  convey  or  settle  the  devised  premise! 
for  valuable  consideration ;  for,  if  the  estate,  after  the 
articles  are  executed,  is  to  be  regarded,  as  vested  in 
the  purchaser,  it  ought  to  be  regarded  as  passing  by 
the  same  act  out  of  the  vendor  or  settler,  and  therefore 
by  a  plain  consequence  of  this  rule  of  equity,  a  tes- 
tator by  a  subsequent  covenant  for  valuable  conside- 
ration to  sell  or  settle  the  devised  estate,  must  be  held 
to  have  revoked  such  prior  testamentary  disposition. 

Thus,  where"  a  testator  devised  to  his  wife  si^ 
houses  in  bar  of  dower,  and  the  rest  of  his  real  eslale 
to  his  two  daughters  and  their  heirs,  in  moieties,  and 
afterwards  in  consideration  of  the  marriage  of  his 
eldest  daughter,  by  marriage  articles  covenanted  to 
settle  one  moiety  of  his  real  estate  to  the  use  of  him-f 
self  for  life,  remainder  to  the  husband  and  wife 
for  their  lives,  remainder  to  the  younger  children  of 
the  marriage  in  tail  general,  remainder  to  the  hus- 
band in  fee;    Lord  Chancellor  King  held  that  al< 

"  See  the  case  of  .Broome  v.  Monck,  10  Vez.  jan.  604.  that  an  equi- 
table title  acquired  after  a  general  derise  passes  by  repnblitttioo. 

■  Sir  Barnham  Rider  v.  Sir  Charles  Wager,  ct  al,  2  P.  Wms, 
328t 


Sect.  8.  Doctrine  of  Relation.  ^  in9 

though  it  Avas  but  a  covenant^  and  therefore  at  law 
no  revocation  of  the  will^  yet  that  the  same  being 
for  valuable  consideration^  was  in  equity  tantamount 
to  a  conveyance,  and  consequently  a  revocation  of  the 
^viH,  as  to  the  six  bouses  devised  to  the  wife.  So  that 
the  husband  was  entitled  to  one  clear  moiety  of  the 
rents  of  the  real  estate,  from  the  d^ath  of  the  testa* 
tor.  The  same  doctrine  was  again  laid  down  by  the 
same  Chancellor  in  a  subsequent  case '^^  and  has  since 
been  confirmed  by  the  learned  Lorfl  who  at  present 
holds  that  high  station  ^^  bb  well  as  by  the  eminent 
person  who  at  present  presides  at  the  Rolls  ^ 


Section  VIII. 

2%e  Doctrine  of  Relation. 

SOMETHING  has  already  been  said  on  the  doc- 
trine of  relation,  as  it  applies  to  this  subject.  It 
teems  to  call  for  a  particular  notice,  as  there  is  some 
apparent  confusion  in  the  cases  upon  wills  which  have 
turned  upon  it — a  confusion  which  seems  in  some 
measure  to  have  arisen  from  a  neglect  to  advert  to  the 
different  notions  conveyed  by  the  word,  '  relation'  in 
our  law  (1). 

•  2  P.  Wms.  G^4.  Cotter  v.  Layer. 
'  5  Vez.  Jun.  654.       '  Vawser  v.  Jeffrey,  16  Vez.  Jan.  51  ©• 


(I)  It  would  be  too  much  to  undertake  to  introduce  in  this  place 
t  general  explanation  of  the  Jaw  on  the  subject ;  for  being  of  great 
difficulty  in  itself  it  is  rendered  more  so  by  the  vant  of  an  uniform 
principle  in  the  decisions  upon  it.  A  short  riew  of  it,  however,  as 
far  as  it  ia  connected  with  the  rerocatiou  of  wills,  is  called  far  by 
the  present  enquiry. 


SSO  Revocation  of  Wills.  Chip.  II. 

Difference      In  the  casc  of  thc  disseisiii^  before  adverted  to,  the 

a.s  to  the  ' 

effect  of     relation  is  of  a  very  forcible  kind.     By  his  re-entry 

disseisin  ^        ^  -^  j  j 

and  »ubs€-  the  disseisee  is  circumstanced  exactly  as  if  he  had  never 

quent  en-  ^       ^  ** 

try,  where  been  disseiscd^  for  the  new  possession  unites  so  im- 

thedisaei-  j*        i         •  i_ 

sin  is  be-    mediately  vi^ith  the  former  possession  as  to  destroy  the 

fore  and 

where  it  is  tortious  estate^  as  well  as  all  the  legal  effects  of  the 

after  the  ,  -r*         -  i  ^  1 1 

wui.  tortious  act.     But  it  may^   perhaps^  be  reasonably 

doubted^  (2)  upon  the  strong  words  of  statute  of  wilk, 
and  the  established  maxim  of  the  law^  which  make 
the  actual  having  either  the  estate  itself,  or  an  interest 
amounting  to  a  jus  in  re^  essential  to  the  operation 
of  a  devise  of  land^  whether^  if  after  disseisin  a  devise 
be  made  of  the  land  by  the  disseisee^  and  afterwards 
an  entry  be  made  by  him^  the  relation  be  such  as  to 
make  the  will  operate  to  carry  the  land.  For  it  has 
been  said  that  relation  shall  never  operate  to  make  an 
act  good  which  was  void  for  defect  of  power  (3).    In 

*  Vid.  supra.  Sect.  0. 


(2)  This  same  distinction  I  have  since  found  adverted  to  by  the 
present  Lord  Chancellor,  in  the  case  of  the  Attorney  General  v. 
Vigor,  8  Vez.  jun.  282. 

(3)  See  Vent.  304.  and  see  also  3  Rep.  29.  Butler  and  Baker'f 
case,    that  relation  wiU,    in  many  cases,  help   acts  in  law,  but 
will  never  help  acts  of  the  parties,  that  is  to  say,    make  Toid  acts 
of  thb  parties  good  :  and  therefore  if  a  man  enfeoff  an  infant  or 
femme  covert,  and  then  devise  the  land,  and  afterwards  the  infant  or 
.the  husband  dissent,  such  dissent  without  question,  shall  have rela* 
tion  between  the  parties  ab  initio,  to  this  intent  that  the  infant  or  bus- 
band  shall  not  be  charged  in  damages,  or  receive  siny  prejudice, 
but  shall  never  make  a  void  grant,  gift,  or  devise,  good  by  relation. 
But  the  attentive  reader  will  perceive  that  there  is  a  relation  of  a 
stricter  kind,  (and  which  can  hardly  be  called  a  mere  fiction  of 
law,)  which  may  have  the  effect  of  giving  validity  and  efficacy  to 
an  intermediate  act,  incapable^  at  the  time  of  ita  beiog  performed, 
of  any  present  operation. 


Sect.  8.  Doctrine  of  Relation.  S&l 

the  case  which  was  in  the  contemplation  df  Lord  Holt^ 
the  devisor  had  the  estate  when  he  devised ;  the  dis- 
seisin only  broke  the  continuance  of  the  ownership  ; 
but  in  the  case  last  supposed^  the  devisor  would  have 
had  no  estate^  but  a  right  of  entry  only  when  he  made 
the  devise. 

In  the  foregoing  case  of  disseisin  the  law  seems 
to  help  and  favour  the  relation  on  account  of  the 
intervening  title's  being  tortious.  For  as  this  spe- 
cies of  relation  is  a  fiction^  and  all  fictions  of  law  are  go- 
verned by  the  equity  of  the  law  (4),  the  odiousness  of 


(4)  la  the  case  of  the  Attorney  General  r.  Vigor,  8  Vez.  jun. 
279.  the  reader  will  find  an  attempt  made  to  reason  by  analogy 
from  this  case  of  disseisin  and  entry  by  the  disseisee  after  will,  to 
a  case  where  after  his  will  the  testator  exchanged  the  devised  lands 
for  others,  and  aneTiction  happened  after  the  testator's  death,  so  as 
to  raise  a  title  to  recover  back  the  exchanged  property.  Those 
who  argued  against  the  revocation  contended,  that  as  the  attempted 
exchange  had  completely  failed,  the  whole  transaction  was  avoided, 
and  the  old  estate  was  remitted,  precisely  as  if  it  had  never  been 
out  of  the  devisor :  that  there  was  an  implied  condition,  upon  the  pre- 
sumed title  of  the  land,  that  if  either  party  was  evicted,  there  was 
a  total  end  of  the  exchange,  and  the  other  party  might  enter  :  that 
it  must  be  considered  as  only  a  parting  with  the  possession  without 
transferring  any  title,  and  that  as  the  old  estate  continued  in  the 
devisor,  the  devise  was  no  more  revoked  than  it  would  have  been 
by  the  grant  of  a  lease.  But  Lord  Eldon,  after  admitting  the  per- 
fect propriety  of  Lord  Holt's  opinion,  as  to  the  effect  of  the  re-entry 
after  disseisin  by  the  disseisee  in  his  life-time,  adverted  to  a  striking 
difference  between  the  cases  of  disseisin  and  exchange,  viz.  that  the 
disseisin  was  not  the  act  of  the  party  but  a  wrong  and  violence 
done  to  him  :  neither  did  it  escape  his  Lordship  that  even  in  the 
case  of  the  disseibin,  if  the  disseisee  neglected  to  enter,  his  mere 
right  to  eater  would  not  pass  by  the  will,  and  that  the  case  put  by 
Lord  Holt  supposed  the  entry  to  be  actually  made ;  whereas  in  the 
iase*  before  him,  as  it  stood  upon  the  iacts,  the  eviction  did  not 


0  

282  lievoeation  9/  Wills.  Chap.  II. 

« 

the  wrong  (5),  induces  such  favour  to  the  relation  of 
the  recovered  rights  that  the  intermediate  act  ia  wholly 
obliterated  and  out  of  the  remembrance  of  the  law. 


fcctof  a^^'       Whether  a  re-entry  for  a  condition  broken  by  an 
co^it"'***"  alienee,  or.  performed  by  an  alienor,  restores  the  old 
brokeo.      estate  so  as  to  remove  all  consequences  of  the  aliena- 
tion,  seems  open  to  doubt.     It  does  not  stand  (quite 
upon  the  grounds  of  the  case,  just  above  put,  of  the 
disseisin,  there  being  no  wrongful  act  to  aid  the  con- 
struction of  relation.     In  the  first  volume  of  Roll's 
Whether  if  Abridgment^  it  is  said,  that  if  a  man  devise  and  then 
aiiensupon  alien  upoi)  Condition,  and  afterwards  perform  the  coq- 
at)er  mak-  ditiou^   and  cntcr  and  die,  it  seems  the  devise  is  re- 
and  then  '  voke4 ;  though  in  a  case  mentioned  in  the  reports  *"  of  the 
thecondi-  samc  Judgc,  .it  is  Said,  arguendo  and  without  contra- 
ffMhe  will  diction,  that  entry  for  a  condition  broken  makes  a  man 
.  ^y  relation  in  as  of  his  first  estate,  just  as  if  the  pos- 
session had  never  been  out  of  him.     And  whether  the 
entry  be  for  a  condition  broken,  or  on  a  condition  per- 
formed, the  principle  must  be  the  same.     Alt  agree 
that  after  entry,  upon  condition  performed  or  broken^ 
the  pai'ty  is  in  as  of  his  old  estate,  but  the  doubt  is 
whether  it  be  not  too  strong  to  say  that  he  t$  in  as  if 
the  estate  had  never  been  out  of  him. 


This  effect  can  only  be  given  to  the  entry  by  snp- 

*  617  PI.  s. 

'  Nicholas  v.  Simmonds,  ft  RoU.  Rep.  409* 


happen  tUl  after  the  death  of  the  party,  so  that  the  lands  cooTeyed 
in  exchange  continued  through  the  life  of  the  party,  and  at  the  tiae 
the  iriU  became  operatiTe,  under  the  effect  of  that  conToyance*  r 
(5)  Relation  will  not  defeat  collateral  acts  which  are  lawful,  es^* 
pecially  if  they  concern  strangers,  13  R«p.  $1.      . 


Sect.  8.  Doctrine  of  Relation.  383 

posing  it  to  work  by  the  same  forcible  sort  of  relation 
which  has  been  observed  to  take  place  in  the  case  of 
the  disseisin.  And  indeed  it  would  seem  to  follow  as 
of  course,  that  if  the  entry  could  operate  as  a  con- 
tinuance as  well  as  a  restoration  of  the  title,  the  will 
of  the  party  would  be  made  good  by  such  entry.  But 
it  appears  to  be  very  questionable  whether  such  a  case 
of  reunion  of  title  is  strictly  a  case  of  relation  at  all. 

If  any  forfeiture  is  incurred  or  privilege  lost  by  the 
alienation,  such  forfeiture  or  loss  of  privilege  con- 
tinues, notwithstanding  the  alienor's  subsequent  entry 
for  breach  of  condition.  Thus  if  a  tenant  for  life 
makes  a  feoffment  and  re-enters  for  a  breach,  he  shall 
be  tenant  for  life  again,  but  still  subject  to  the  for- 
feiture. So  if  tenant  by  homage  auncestrel  had  made 
a  feoffment  on  condition,  the  uninterrupted  continu- 
ance of  the  privity  in  the  blood  of  the  tenant  was 
dissolved  by  the  alienation,  and  after  a  re-entry  for  a 
breach,  the  tenant  would  not  have  holden  by  homage 
auncestrel  again.  For  the  same  reason  also  if  a  lord 
of  a  manor  makes  a  common  law  conveyance  of  an 
e5ch(*ated  copyhold  (which  is  an  enfranchisement)  upon 
condition,  and  re-enters  for  breach  of  the  condition, 
no  relation  takes  place  to  save  the  privilege,  but  the 
conj^inuance  of  the  custom  is  broken,  and  the  estate 
returns  without  the  right  of  re-granting  it  as  copy- 
hold*. These  cases  shew  that  though  the  re-entry  for 
a  condition  broken  restores  the  estate,  it  restores  the 
estate  affected  and  modified  by  the  act  of  alienation ; 
and  that  the  law  takes  notice  that  it  has  been  once  out 
of  the  party ;  so  that  the  weight  of  reasoning  and 
analogy  seems  to  be  on  the  side  of  the  above  cited 

'  Co*  Litt.  Estates  upou  ConditioD. 


S84  Revocation  of  WUb.  Chap.  II. 

dictum  from  Roll's  Abridgment ;  since  the  inference 
from  these  examples  is^  that  the  return  or  restoration 
of  the  old  estate  upon  an  act  of  alienation  does  not 
imply  an  unbroken  continuance  of  title.  From  the 
same  reasoning  we  may  deduce  a  confirmation  of  the 
propriety  of  the  decision  in  the  case  of  Goodtitle  v. 
Otway.  For  if  we  hold  to  the  cases  which  say^  that 
if  a  man  makes  a  feoffment  in  fee  to  a  stranger  to  the 
use  of  himself  in  fee^  there  though  the  old  estate  is 
said  to  return^  yet  it  is  not  the  identicd  estate^  since 
it  comes  back  first  in  the  shape  of  the  use^  and  then 
the  statute  carries  the.  legal  estate  to  the  use  which  is 
in  a  manner  a  new  purchase*;  then  the  cases  upon 
re-entry  for  breach  of  condition  are  much  stronger, 
to  shew  the  legal  consequences  of  the  estate's  being 
once  out  of  the  party^  for  in  such  cases  the  identical 
estate  does  certainly  return.  At  the  same  time  it  must 
be  confessed^  that  if  we  adopt  the  opinion  that  in  the 
case  of  a  feoffment  to  the  use  of  the  feoffor  and  his 
heirsj  the  old  use  was  never  drawn  out  of  the  party ; 
the  above  cases  upon  re-entry  upon  condition  per- 
formed or  broken^  seem  to  be  somewhat  weaker  than 
the  doctrine  which  maintains  a  will  to  be  revoked  by 
an  act  which  never  disturbed  the  real  interest  of  the 
devisor,  but  left  that  use  (which  before  the  statute  of 
uses  was  the  proper  equitable  subject  of  devise)  still 
remaining  unchanged- in  the  party  conveying. 

Of  relation      I  come  now  to  sDcak  of  that  stricter  sort  of  relation 

initsstnct  ,  •     l  ♦ 

•euse.  before  alluded  to,  and  which,  in  its  true  notion,  is  that 
principle  by  which  an  act  of  law  is  made  to  date  back, 
in  legal  consideration^  to  the  time  of  some  precedent 
act,  so  as  to  be  regarded  as  the  completion  of  that  of 
which  such  first  act  was  the  proper  beginnings  and 

*  1  RolLAbr.eid,  61*6. 


Sect.  8.  Doctrine  of  Relation.  flBft 

forming  in  conjunction  with  it  one  integral  and  con- 
summate transaction  of  law.  Thus  it  has  been  pro- 
perly said,  that  where' the  commencement,  progres- 
sion, and  consummation  of  a  thing  are  necessary  to 
go  together,  all  of  them  are  to  be  respected.  But 
the  thing  is  to  be  considered  as  receiving  its  perfection 
from  the  first.  So  where  divers  acts  concurrent  go  to 
constitute  a  conveyance  estate  or  other  thing,  the  ori- 
ginal act  shall  be  preferred,  and  to  this  the  other  acts 
shall  have  relation,  as  was  said  by  Berkley  and  Jones^ 
justices  in  the  case  of  Harpert?.  the  Bailifis of  Derby*. 
But  Lford  Hobart  has  explained  this  sort  of  relation 
with  most  strength  in  the  case  of  Needier  v.  the  Bishop 
of  Winchester^  on  the  question  as  to  the  relation  of 
the  enrolment  of  a  deed  to  the  king,  where  that  pro- 
found Judge  observed,  ''  that  there  are  certain  rela- 
tions which  cannot  properly  be  called  fictions  of  law, 
but  are  real  acts,  compounded  of  some  simples,  which 
make  not  a  complete  or  entire  act  till  they  come  to- 
gether^ and  then  they  make  one  perfect  act  working 
by  their  nature  ab  initio,  even  as  others  do  that  are 
in  their  nature  single ;  but  those  things  are  properly 
fictions  of  law,  that  have  no  real  essence  in  their  own 
body,  but  are  so  acknowledged  and  accepted  in  law 
for  some  special  purpose."  Of  this  sort  of  com- 
pounded act  the  case  of  a  grant  to  the  king,  not  per- 
fected by  enrolment,  but  which  when  the  enrolment 
takes  place  has  its  efi*ect  not  from  or  by  the  enrolment, 
but  from  and  by  the  first  act,  is  said  by  Lord  Hobart 
to  be  an  example^;  of  which  kind  also  is  a  feoffment 
within  view  and  a  subsequent  entry,  which  entry  dates 
buck  in  effect  to  the  time  of  the  feoffment  ^ 

'  3  Bulst.  11.  »  Jones,  428.  *  Hob.  222. 

*  Plowd.  Com.  3K 
^  Vid.  ParMU  v.  Pi«rce,  FoUexfsn,  46. 


8S6  Bevocation  of  WiU$.  Chaf.  11^ 

Th6  same  principle  governed  the  opinion  of  the 
bench^  as  to  the  second  point,  in  Shelley's  case  (6), 
which  turned  upon  the  retrospect  of  the  execution 
to  the  judgment  in  the  recovery,  so  as  to  make  the 
act  consummate  by  relation,  in  the  life-time  of  the 
party  dying  between  the  judgment  and  the  execu- 
tion. And  there  it  was  said  that  the  execution  of 
every  thing  which  is  executory  always  respects  the 
original  act,  and  all  make  but  one  act  or  record, 
although  performed  at  different  times,  for  causa  et 
origo  est  materia  negotii.  Upon  the  same  principle 
stands  the  case  of  dower  mentioned  in  Bingham's 
case  (7),  that  if  a  husband  levies  a  fine  with .  pro- 


(6)  1  Rep.  lOG,  b.  Where,  in  the  Tigorous  dialect  of  those  times,- 
the  rccorery  is  said  to  be  the  mother  which  conceiyed  the  lue,  and 
the  fountain  out  of  which  it  rose, 

(7)  2  Rep.  93,  b.  Djer,  7%  b.  224.  And  note  that  the  statute 
32  H.  8.  which  gWes  an  entry  to  the  wife  and  her  heirs,  against  thB 
alienation  of  the  husband,  helps  the  discontinuance  but  not  the 
bar.  See  Co.  Litt.  326,  a.  To  understand  this  point,  respectin|f 
the  operation  of  the  fine  as  a  bar  of  dower,  it  is  Necessary  the 
reader  should  know,  that  where  a  person  has  neither  a  right  in 
presenti*or  in  futuro,  at  the  time  of  the  fine  levied,  he  is  oat  of  the 
purview  of  the  statute  ;  for  as  the  repot  ter,  in  his  note  to  the  case  of 
Stowell  o.  Lord  Zouch,  Plowd.  373,  expresses  it,  the  puri'^iew  is 
against  those  who  have  right  at  the  time  of  the  fine  leried,  or  liare 
future  right  afterwards  upon  cause  arising  before,  to  which  futare 
right  wrong  was  done  before  the  fine,  or  bj  the  fine.     Upon  the 


foundation  of  this  proposition,  the  learned  reporter  denies  the  .4 
in  the  text,  contending  that  in  the  case  of  dower  the  title  wholly 
accrued  after  the  fine,  viz.  by  the  death  of  the  husband,  for  he  waa 
of  opinion  that  until  the  death  of  the  husband  no  title  was  consum- 
mate, nor  wtong  done  by  the  conusee  in  detaining  the  land  from 
the  wife ;  and  that  therefore  the  fine  did  not  reach  the  title,  in  aa 
much  as  it  accrued  upon  cause  wholly  after  the  fine,  the  two  first 
points,  marriage  and  seisin,  being  of  no  moment  without  the  third. 


Sect.  S.  Doctrine  of  Relation,  287 

clamations^  and  dics^  and  five  years  pass  iifter  his 
deaths  the  wife  is  barred  of  her  dower^  for  though  at 
the  time  of  the  fine  levied  her  title  was  not  consum- 
mate^ yet  the  law  respects  the  first  and  original  causes^ 
Yiz.  marriage  and  seisin. 

Thus  also  although  a  surrenderee  of  a  copyhold  ^tf^*"* 
has  no  estate  in  the  premises  surrendered  until  his  respect  to 

,     .     .  copyholcu, 

admission^  yet  on  bein?  admitted  he  is  in  by  relation  ofthead- 

°  •'        ,     ,         mittanceto 

to  the  surrender^  from  the  date  whereof  his  admission  the  •lurren- 

der. 

operates.  Should  the  surrenderor  die  before  such 
admission  of  the  surrenderee^  he  dies  indeed  seised  in 
law  of  the  premises^  and  though  his  widow  might 
in  strictness  claim  her  free  bench^  yet  on  the  admis- 
sion of  the  surrenderee  that  estate  is  defeated  (8)^  to- 
gether with  all  the  mesne  acts  of  the  surrenderor'. 
And  as  all  the  mesne  acts  of  the  surrenderor  would 
be  defeated  by  this  relation^  so  by  force  of  the  same 
relation  all  the  mesne  acts  of  the  surrenderee  would 
be  confirmed ;  and  accordingly  the  surrenderee^  after 
admittance^  in  declaring  in  ejectment  might  lay  the 
demise  immediately  from  the  surrender*"^  and  recover 

'  Benson  v»  Scott,  Carthew,  S75.  Yaughan  r.  Atkins,   5  Burr. 
5764.  2787. 
*  I  T«  R.  GOO.  Holdfast  and  Woollamf  v.  Clapham. 


Bat  this  opinion  of  Plowden  is  contradicted  bj  all  the  books.     See 
the  English  Plowden,  373. 

(8)  Sir  W.  Jones,  451.  Parker  v.  Bleake.  It  is  to  be  obserred 
that,  the  relation  defeats  the  widow's  bench,  because  it  prevents  the 
hasband  dying  seised,  which  (except  where  it  is  otherwise  by  spe- 
cial or  local  cu(;tom,  for  which  see  Robinson  on  Gavelkind,  p.  172.) 
is  necessary  to  ground  the  title  to  dower  ;  and  therefore  an  aliena- 
tion by  the  husband  to  take  effect  in  his  life-time,  bars  the  claim  of 
the  widow.     Cro.  Jac.  126«  Lashmor  o.  Avery* 


fSS  Mevocation  of  WUls.  Chap:  II. 

mesile  profits  Arom  that  time*.  On  this  ground  it 
WHS,  that  in  a  case  where  a  copyholder  surrendered 
tx^  the  use  of  himself  for  life,  with  remainders  over, 
and  the  ultimate  limitation  to  himself  and  his  heirs, 
and  afterwards  surrendered  to  the  use  of  his  will, 
and  made  and  executed  his  will  accordingly,  and 
after  such  sun'ender  and  will  made,  was  admitted 
upon  the  former  surrender,  the  will  was  held  not  to 
be  revoked,  because  the  admittance  related  to  the 
time  of  the  first  surrender,  and  the  whole  transaction 
might  be  considered  as  one  and  the  same^.  And 
Lord  Mansfield  added,  that  this  was  the  principal 
reason  which  the  court  went  upon  in  Selwyn  v. 
Selwyn'*,  for,  said  his  Lordship,  after  stating  sdme 
other  reasons  of  the  judgment,  the  great  and  manly 
ground  upon  which  the  court  went  in  that  case  wai 
that  the  deed,  recovery,  and  all  the  whole  transac- 
tion was  to  be  considered  as  one  conveyance. 

The  substance  of  the  case  of  Selwyn  v.  Selwyn 
was  this  :  A  father,  tenant  for  life,  and  son,  remain- 
der man  in  tail,  executed  a  bargain  and  sale,  which 
was  duly  enrolled,  whereby  they  conveyed  the  en- 
tailed lands  to  a  third  person,  to  make  him  a  te- 
nant to  the  praecipe  for  sufiering  a  recovery,  the 
uses  of  which  recovery  were  declared  to  be  to  the 
.  father  for  life,  remainder  to  the  son  in  fee,  and 
after  the  writ  of  entry  was  sued  out,  but  before  it 
was  returned,  the  son  made  a  will,  whereby  be  de- 
vised the  same  lands  to  the  father  in  fee,  and  died 
after  the  recovery  was  completed  without  revoking 
or  altering  his  will.     And  the  following  question 

•  2  Wils.  15.- Roe  d.  Jefferey  v.  Hicks. 

*  1  Blackst.  Rep.  605.  Roc  d.  Norden  v.  Griffiths. 
»  2  Burr.  1135. 


Sect.  8.  Jioctrine  of  Relation.  289 

was  proposed  by  the  Lord  Chancellor  to  the  Court  of 
King's  Bench^  ''  Whether  the  lands  of  which  this  re- 
covery was  suffered  passed  by  the  will  ?"  The  court 
gave  no  reasons  for  their  opinion^  agreeably  to  the 
usage  upon  cases  referred  out  of  chancery ;  but, 
according  to  Sir  James  Burrow,  they  repeatedly  ex- 
pressed their  approbation  of  the  case  of  Ferrers  and 
Curson  v.  Perinor  and  others,  and  therefore  it  is 
likely,  says  the  reporter,  (who  was  confirmed  by 
Lord  Mansfield  after\vards,  as  appears  by  the  case 
above-mentioned  of  Nordeh  v.  Griffiths)  that  they 
considered  the  whole  as  one  conveyance,  which  must 
relate  to  the  date  of  the  bargain  and  sale,  which  was 
perfected,  made  absolute  and  delivered  from  objec- 
tions by  the  subsequent  ceremonies  (9). 


(9)  A  writer  of  great  knowledge  in  his  branch  of  tlie  professioo^ 
in  page  149  of  his  treatise  on  conveyancing,   has  observed^  that 
Qotil  seisin  no  uses  can  arise  under  the  recorery,  and  that  conse- 
quently until  there  is  seisin  in  the  demandant  as  the  means  of  su{^ 
plying  the  seisin  to  uses,  the  person  claiming  under  the  uses  has  no 
legal  estate  which  will  adoiit  of  an  alienation  by  deed,  but  he  has 
an  inchoate  interest  which  will  allow  of  his  deyising  his  interest  by 
will.    The  true  ground,  continues  this  writer,  of  Selwyn  v.  Sel- 
wyn,  is,  that  eren  before  the  recovery  n^as  suffered,  the  testator 
bad  in  him  a  title  to  a  future  use,  which  gave  him  a  power  of  tes- 
tamentary alienation,  and  his  will  operated  upon  this  use  in  its 
fidociary  state,  and  also  on  the^  estate  itself,  when  the  use  was 
executed  into  the  estate.     He  goes  on  to  say  that  another  ground 
qf  that  case,  and  the  ground  to  which  it  is  more  generally  ascribed 
is,  that  the  recovery  and  the  recovery  deed  formed  one  assurance. 
Possibly,  however,  this  writer,  as  he  makes  no  mention,  might 
Bot  have  been  aware,  of  the  above  cited  case  of  Norden  v,  Grif- 
fith9,  wherein  Lord  Mansfield,  who  presided  on  the  bench  in  Sel- 
wyn V.  Selwyn,  declares,  most  emphatically,  that  the  true  ground 
upon  which  the  decision  in  that  case  went  was  that  which  this  gen- 
tleaaB  leeai  mot  to.  admit  to  have  had  much  share  in  producing  it, 

tf 


990  Revocation  of  Wills.  Chap.  II. 

The  case  in  Cro.  Jac '.  referred  to  and  approved 
in  Selwyn  v.  Selvvyn,  was  in  effect  as  follows :  A 
lessor  covenanted  with  his  lessee  for  years,  that  a 
bargain  and  sale  should  be  made^  and  a  fine  levied  to 
the  lessee  and  his  heirs^  to  the  use  of  him  and  his  heirs^ 
to  the  intent  that  a  common  recovery  might  be  suf- 
fered against  the  conusee^  with  voucher  of  the  lessor^ 
who  should  vouch  over  the  common  vouchee^  to  the  use 
of  A.  B.  and  his  heirs;  and  after  the  bargain  andsale, 
and  fine  and  recovery  were  perfected,  A.  B.  brought  an 
action  against  the  lessee  for  rent  arrear,  and  the  ques- 
tion was  whether  the  lease  was  extinguished  and  des- 
troyed by  the  deed  fine  and  recovery  ?  It  was  agreed, 
that  if  a  fine  or  feoffment  be  made  to  a  lessee  for 
years,  to  the  use  of  a  stranger,  it  would  not  ex- 
tinguish the  term  (10),  for  it  was  saved  by  the  statute 
of  uses,  which  executed  the  use,  and  saved  all  rights, 
estates^  and  interests  ;  but  as  in  this  case  the  bar- 
gain and  sale  was  made,  and  the  fine  levied,  to  the 
-lessee,  to  the  intent  that  a  recovery  might  besuf- 


643. 


Tiz.  that  the  indentures,  recoTery,  and  the  whole  transaction  was 
to  be  considered  as  one  conveyance.  Indeed  the  other  supposed 
ground  seems  very  refined  and  fanciful,  and  stands  bat  ill  with  the 
subsequent  cases  on  the  doctrine  of  revocation. 

(10)  If  at  the  common  law,  before  the  statute  of  uses,  a  termor 
took  a  conveyance  of  the  premises  in  lease  to  him,  to  himself  aod 
his  heirs,  to  the  use  of  another,  his  own  term  was  saved  to  him  in 
'  equity.  And  observe  that  the  legislature  did  not,  by  the  statntt 
of  27  H.  8.  design  to  prejudice  any  rights  or  estates,  bot  to  pre- 
serve  them,  so  that  the  operation  of  the  statute  would  be  at  onct 
to  execute  the  use  as  to  the  reversionary  interest,  and  to  prevent 
the  merger  of  the  intermediate  estate.  See  the  case  ia  Cro*  Jic* 
041. 


Sect.  8.  Doctrine  of  Rtlation.  291 

fered,  whereby  certainly  the  term  was  drowned  and 
extinguished  for  a  time^  until  the  recovery  was 
suffered,  (since  during  that  interval,  no  use  beings 
raised,  the  saving  in  the  statute  of  uses  did  not 
apply  to  the  case,)  whether  the  lease  should  be  re- 
vived and  recontinued'  by  the  recovery  which  raised 
the  use,  and  so  let  in  the  statute,  was  the  doubt  ? 
And  the  court  resolved  that  it  should  be  i^vived, 
for  the  bargain  and  sale,  and  fine  and  recovery, 
were  all  but  one  assurance,  and  the  recovery  being 
suffered,  which  was  grounded  upon  the  covenant^ 
was  quasi  a  conveyance  to  the  use  ab  initio  (11). 


{11)  Of  a  similar  oplDion,  in  respect  to  the  relation  in  these 
compound  conreyances  to  the  first  fundamental  act,  so  as  to  carry 
back  the  title  to  the  date  of  the  leading  instrument,  were  the  two 
Judges,  Croke  and  Montague,  in  the  case  of  Havergill  v.  Hare, 
Cro.  Jac.  510.  The  case  as  to  this  point  was  as  follows  :  William 
Parker,  being  seised  in  fee  of  lands,  on  the  31st  October,  8  Jac.  I. 
by  indenture  enrolled,  granted  a  rent  of  20/.  per  annum  to 
Isaac  Warden,  payable  at  Michaelmas  and  the  Annunciation,  with 
clause  of  distress ;  and  by  the  same  indenture  covenanted  to  leyy  a 
iioe  of  the  same  lands  to  the  uses  following,  yiz.  that  if  it  should 
happen  that  the  said  yearly  rent  of  20/.  should  be  in  arrear,  and 
no  sufficient  distress  upon  the  premises,  or  if  any  rescous,  pound- 
breach, or  replevin  should  be  made,  that  then  it  should  be  lawful 
for  the  said  Warden  to  re-enter  and  enjoy,  till  satisfied  out  of 
the  rents.  On  the  12th  June,  0  Jac.  I.  Warden  sold  and  conreyed 
the  rent  to  William  Fisher,  the  lessor  of  the  plaintiff,  with  all 
penalties,  forfeitures,  &c. 

On  the  19th  October,  11  Jac.  the  rent  due  at  Michaelmas  was 
in  arrear,  and  was  demanded  by  Fisher,  but  not  paid.  In  the  Tri- 
nity Term  succeeding  a  fine  was  levied  to  Fisher,  to  the  uses 
specified  in  the  first  indenture  of  covenant  above-mentioned. 
Fisher  afterwards  distrained  for  the  half-year's  rent  of  10/.  due  at 
Michaelmas,  11  Jac.  and  the  tenant  of  the  land  replevied;  where- 
upon Fisher  entered  under  the  uses  of  the  fine.    And  one  of  tho 

v3 


29S  Revocation,  of  Wills.  Chap.  II. 


Section  IX. 


Mortgages,  ^c. 


r  SHALL  now  pass  to  the  consideration  of  mort- 
gages, securities  for  money,  and  conveyances  to  pay 
debts,  which  Lord  Hardwicke  has  enumerated  as  the 


questions  in  this  case  was,  whether,  as  this  rent  of  10/.  was  doe, 
and  demanded  before  the  fine  levied,  (at  which  time  no  use  could 
arise  upon  the  non-payment)  and  then  after  the  fine  levied  a  dis- 
tress was  taken  for  the  rent  due  bcjore  the  fine  was  levied,  aod 
afterwards  replevin  was  sued  thereupon,  a  title  of  entry  accrued 
by  way  of  use  to  William  Fisher  ?  and  on  this  point  the  Justicei 
were  divided,  for  Haughton  and  Doderidge  held,  that  as  the  rent 
was  due  before  the  fine  levied,  the  use  upon  the  fine  could  not  be 
extended  to  the  rent  formerly  in  arrear.  But  Croke  and  Moatagut 
held,  that  the  fine  levied  and  the  firtt  indenture  were  but  one  at* 
iurance^  for  the  execution  of  all  things  executory  respects  the  ori- 
ginal act,  and  shall  have  relation  thereto,  and  all  make  hut  oDt 
act,  although  done  at  several  times.  See  Vin.  tit.  Dev.  (0)  pl«  3. 
Jones  7,  pi.  7.  Mitton  v,  Lutwich,  and  Salk.  341.  Lloyd  v.  Lord 
Say  and  Sele;  see  also  S.  C.  in  3  P.  Wms.  170.  and  the  observation 
in  the  note  to  the  first  edition.  It  appears,  however,  from  what  has 
been  decided  and  held  in  courts  both  of  law  and  equity,  in  the  great 
case  of  Goodtitle  v.  Otway,  that  where  articles  are  made  provid- 
ing for  a  reversionary  interest  in  the  covenantor,  and  then  the  co- 
Tenantor  by  will  disposes  of  such  reversionary  interest,  and  thea 
makes  a  settlement  whereby  his  whole  legal  estate  is  conveyed  io 
uses  correspondent  to  the  articles,  the  will  is  not  saved  by  any  re- 
lation of  the  settlement  to  the  articles  in  analogy  to  the  above- 
mentioned  cases  of  assurances  by  fines  and  recoveries. 


Sect.  9.  Mortgages,  ^c.  ^S 

excepted  cages  out  of  the  general  rules  of  revoca- 
tions*. 


Mortffasres  in  fee  are  differently  regarded  in  the  Different 
courts  of  common  law  and  those  of  equity    At  law  tionof 
they  arc  total  revocations,   bnt  in  equitable  consi-  incoaru 
deration  they  are  only  revocations  pro  tanto(l).     It  equity, 
is  not  on  the  ground  of  the  particularity  of  purpose 
that  a  mortgage  in  fee  is  in  equity  held  to  be  only  a 
rcvocatiwi  pro  tanto,  though  the  distinction  between 
the  practice  of  courts  of  equity  and  law  have  been 
often  incautiously  put  upon  that  ground;  but  the 
true  reason  arises  out  of  the  distinct  considerationi 
under  which  mortgages  pass  in  courts  of  law  and 
coirie  of  equity. 

A  court  of  law  can  only  look  to  the  legal  operation 
of  the  deed,  whereby  the  testator,  by  conveying  out 
of  himself  his  l^gal  estate,  of  necessity  must  be  held  to 
revoke  a  previous  disposition  by  will  of  the  same  estate; 
but  in  equity  the  transaction  has  another  aspect,  and 
is  only  regarded  as  a  security  for  the  debt ;  the  de« 

•  3  Atk.  805. 


(1)  And  if  the  mortgage  be  by  deed  and  fine,  it  isnerertheless  said 
tobeareTocation  only  pro  tanto,  in  equity,  2  P.  Wms.  334.  per  Lord 
Chancellor  Kirtg.  But  according  to  Viner  tit.  device  (P)  pi.  10.  it 
wai  keld  by  Lord  Cowper,  6  Ann.  that  if  a  man  devises  lands,  and 
Afterwards  mortgages  the  same  for  years,  and  then  levies  a  fine  $ur 
^bgnixADce  do  droit  come  ceo,  and  not  a  fine  sur  concessit,  this  will 
he  a  rerocation ;  but  that  a*  fine  sur  concessit  would  have  revoked 
•tly  pro  tan  to.  It  is  a  critical  question  whether  the  principle 
upon  wbich  courts  of  eqolty  consider  mortgages  M  only  revoca* 
lians  pr«  tia^#  ddo»  not  ifejeot  ibis  distinction. 


294  Iteoocation  of  Wills.  Chap.  11- 

visor  remains  complete  owner,  as  before,  of  the  es- 
tate, subject  only  to  the  security,   which  in  the  con* 
In  equity,    templation  of  equity  is  nothinc:  but  a  chattel.    And, 

convey-  '■  ^        J  o 

ance*  by     upon  the  samc  principle,  if,  after  a  devise,  the  tes- 
moitifase,   tstor  makcs  a  conveyance  of  the  whole  fee,  upoa 

•r  for  pay-  *^ 

nicnt  of      trust  to  scIl  and  pay  debts,  the  interest  of  the  testator 

debts  irc-  ^ 

ncraiiy,      (2)  is  Only  affected  to  the  extent  of  that  incumbrance. 
rcvaca-       To  that  extent  the  will  is  revoked ;  but  the  equitable 
<^xiet)tof    estate  in  the  subject  of  the  devise  remains  unaltered^ 
^  ^^^'  except  in  so  far  as  it  is  become  charged  with  such 
debts ;  and  therefore  if,  after  such  deed  of  conveyance, 
the  legal  estate  in  the  remaining  part  of  the. property, 
when  the  object  of  payment  of  debts  has  been  satis- 
fied by  the  disposition  of  part,  is  taken  back  by  the 
testator,  by  a  reconveyance  to  himself  and  bis  heirs, 
his  will  is  unrevoked  in  equity  \    , 

The  late  Lord  Alvahley  (3),  when  sitting  as  the 
Master  of  the  Rolls  in  the  case  of  Uarmood  v.  Og' 
lander^  states  the  criterion  for  ascertaining  when 
equity  will  interfere  with  the  law  in  respect  to  the 
revocation  of  wills  by  subsequent  conveyances,  and 

*  Vid.  Hannood  o.  Oglander,  6  Vez.  Jun.  221. 


(2)  It  is  to  be  obsenred,  however,  that  if  A.  devises  lands  to  to 
executors  to  be  sold  for  the  payment  of  his  debts,  and  then  conveys 
it  to  tmstees  for  the  payment  of  debts^  the  devise  is  revoked.  4  Ch. 
€a.  110. 

(3)  It  wonld  be  a  sort  of  injustice  to  that  learned  Jodge  to  onut 
vank>y*s  this  opportunity  of  introducing  to  the  reader  the  ingenious  vindica- 
WiUiams  tion  which,  in  the  course  of  his  judgment  in  this  case,  he  makes  of 
«.  Owen.     j,|g  decision  and  doctrine  in  the  case  of  Williams  v.  Owen.    "  Wf 

sajs  he,  instead  of  articles,  the  testator  had,  before  the  marriag?} 


]>rdAV 


Sect.  9.  Mortgages,  Sgc.  395 

to  what  extent,  with  great  precision,  and  in  a  man- 
ner which  shews  that  the  doctrine  is  not  grounded  on 
the  particularity  of  the  object  of  the  deed.  He  lays 
it  down  as  a  primary  rule  of  law,  that  "  any  altera- 
tion of  the  estate,  or  a  new  estate  taken,  is  iat  law  a 
revocation,  whether  for  a  partial  or  a  general  pur- 
pose; equity  never  controuls  the  law  upon  revoca- 
tion, except  either  where  the  beneficial  interest,  be- 
ing distinct  from  the  legal  estate,  is  devised,  and  the 
devisor  if  he  afterwards  takes  the  legal  estate,  takes  it 
without  any  modification  or  alteration  ;  or  where,  hav- 
ing the  complete  legal  and  beneficial  estate  at  the 
date  of  the  will,  he  divests  himself  of  the  legal  estate, 
but  remains  owner  of  the  equitable  interest,  as  in  the 
case  of  a  mortgage,  or  a  conveyance  for  the  payment 
of  debts." 

In  the  above  case  of  Harmood  v,  Oglander  the 
object  of  the  intended  recovery  was  a  mortgage  ;  it 
was  therefore  for  a  partial  purpose ;  but  that  alone 


conTejed  to  a  trustee,  in  trust  for  himself  tiU  the  marringe,  then 
for  himself  for  life,  remainder  to  the  issue  in  tail,  remainder  to  him- 
self in  fee,  and  then  made  the  will,  and  then  had  called  upon  the  trus- 
tee to  convey,  and  he  had  conveyed,  it  is  admitted  that  thai  would 
have  been  a  complete  revocation  in  law  ;  but  as  clear)}  it  would  not 
have  been  a  revocation  in  equity,  and  the  heir  must  have  conveyed 
to  the  uses  of  the  will.  In  principle  that  does  not  diflcr  from  the 
case  of  Williams  r.  Owen.  There  the  devisor  was  bound  by  the 
articles,  and  he  might  have  been  compelled  to  convey  accordingly. 
Then  it  is  strange  to  say,  that  if  a  conveyance  were  taken  from  a 
trustee  it  would  be  no  revocation ;  but  if,  according  to  his  obliga- 
tion, he  himself  conveyed  to  the  same  uses,  it  would  be  a  revoca- 
tion. No  one  can  deny  that  articles  are  in  equity  equal  to  a  con- 
veyance. No  one  can  deny  that  he  remained  a  trustee  to  the  use 
of  the  articles,  and  must  have  conveyed  accordingly."  But  see 
supra,  page  274. 


296  Mevocation  of  WUIb.  Chap.  II, 

could  not  save  it ;  and  although,  if  it  had  been  a  simple 
conveyance  of  the  fee  by  way  of  mortgage,  it  would 
have  been  only  a  revocation  pro  tan  to;  yet  the  mode 
of  effecting  this  intention  being  by  recovery,  with 
double  voucher,  which  in  equity  as  well  as  law  pro- 
ceeds upon  a  previous  conveyance  of  the  whole  estate 
from  the  owner  to  Uie  tenant  to  the  praecipe,  to  be 
recovered  out  of  him  by  the  demandant,  from  whom 
a  new  estate  is  to  be  taken,  the  will  was  held  to  be 
clearly  revoked ;  arid  this  although  the  recovery  was 
not,  in  fact,  proceeded  in  further  than  the  convey- 
ance to  the  tenant  to  the  praecipe. 

ri!!>«nTon       ^"  Sparrow  V,  Hardcastle,  as  that  case  is  reported 
which        in  a  note  to  Goodtitle  v.  Otwav,  in  the  reports  of 

mortirajjes  ^ '  *  ^ 

ill  fee  are    Mcssrs.  Domford  and  East%  Lord  Hardwicke  inti- 

conKiderect  ' 

in  Equity    matcs  the  true  erround  on  which  morteraiffes  in  fee  are 

as  onl>  re-  ^        ^  n    n 

▼ocations    considcrcd  in  Equity  as  only  revocations  pro  tanto  of 

pro  tamo.  *       ./  »/  r       j  i.* 

a  will.  ''  The  principal  ground,"  says  his  Lordsnjp, 
"  on  which  they  put  this  case  is,  that  this  grant  was 
intended  only  for  a  particular  purpose,  and  that 
when  that  purpose  was  answered  the  estate  was  not 
intended  to  be  altered,  but  to  remain  as  before;  and 
this  was  compared  to  a  mortgage.  The  reason  why 
mortgages  are  taken  to  be  out  of  the  general  rule  is 
this.  It  does  not  depend  on  the  general  ground  in- 
sisted on  at  the  bar  of  being  conveyances  for  a  par- 
ticular  purpose,  (4)  but  on  the  foot  of  being  securiiiM 
only.     Whether  the  mortgage  be  in  fee  or  for  years 

•  Vid.  7  T.  R.  417. 


(4)  In  Ilarmood  v.  Oglandcr,  Lord  Eldon  gircs  fuH  coDfinni- 
tion  10  this  opinion.  That  case  was  decided  for  the  entire  refoct- 
tion  both  at  law  and  equity,  on  the  ground  of  there  being  nses  ce» 


Sect.  9.  Mortgages,  ^^.  39T 

only;  is  all  one  in  this  Court;  they  are  alike  con* 
videred  as  chattel  interests.  A  mortgage  in  fee  goes 
to  the  executors^  (for. whom  the  heir  is  only  a  trustee), 
lupports  no  dower,  and  has  no  one  property  of  a  real 
estate/' 

So  that  upon  an  accurate  consideration  of  this 
point,  we  shall  perceive  nothing  in  it  which  breaks 
in  upon  the  maxim  of  equitas  sequitur  legem.  The 
truth  being  that  when  an  estate  is  charged  or  mort- 
^ged,  a  Court  of  Equity  does  not  regard  the  estate 
as  any  way  passed,  modified,  altered,  or  affected  (5). 
The  same  doctrine  is  carried  to  a  trust  for  payment 
of  debts  ;    so  that  the  resulting  beneficial  interest 


dared  upon  the  recoTery  beyond  the  mere  purpose  of  the  mort- 
gage. Indeed  wherever  a  recovery  is  necessary,  the  estate  must 
undergo  an  alteration  thereby :  and  therefore  if  a  tenant  in  tail 
makes  a  oiortgage,  and  for  that  purpose  su£fers  a  recovery,  and  de« 
Clares  the  ulterior  use  to  himself  in  fee,  the  estate  is  altered,  and 
the  will  is  clearly  revoked.  See  8  Vez.  Jun.  106. 

(5)  An  equity  of  redemption  imitates  more  closely  the  legal  Diflcrenec 
estate  than  a  mere  trust.     Sec  the  notice  taken  of  this  distinction  ^*  Equity 

in  Burgess  r.  Wheate,  1  Blackst.  145.  and  see  Sir  Matthew  Hale's  of  redemp- 
^  tion  and  a 

definition  of  a  mortgage.  Hard.  469.  Pawlet*s  case.     So  Lord  Not-  mere  tra»t. 

tingham,  (M.  S.)  says,  an  equity  of  redemption  charges  the  land, 
and  is  not  a  trust.  Blackst.  145.  A  mortgage  is  not  a  mere  trusty 
hat  a  tide  in  equity.  In  a  word,  the  equity  of  redemption  is  in 
equity  the  fee  simple  of  the  land,  and  by  consequence,  after  fore- 
closure, the  mortgagee  is  considered  as  acquiring  a  new  estate.  But 
if  it  be  a  mortgage  for  a  term  of  years  only,  and  the  eqnity  if 
foreclosed,  or  released,  after  the  will,  the  new  interest  may  past 
under  the  general  words  of  the  residuary  clause ;  for  the  equity 
which  is  so  gained  by  the  release  or  foreclosure  is  the  interest  in  a 
chattel  only,  and  therefore  may  well  pass  by  the  prospective  opera* 
tion  of  the  rasi^nary  devise^  if  sufficiently  comprehensive  in  ez- 
presaoD* 


300  Itevocatian  of  Wills.  Chap.  II. 

fideration^  it  has  been  taken  for  egtablished  law^ 
and  has  been  said  to  stand  on  peculiar  g'rounds^ 
but  those  grounds  have  generally  been  left  unexplain- 
ed. And  though  Mr.  Justice  BuUer,  in  the  case 
ei  Goodtitle  v,  Otwny^  observed  that  cases  upon 
partitions  generally  happen  in  equity^  he  was  com^ 
Batabiish-  pelled  to  admit  that  long  previous  to  Luther  v.  Ktdby, 
partition     it  was  established  at  law  that  a  partition  was   not  a 

18  no  revo- 

cation.       revocation  of  a  will 

It  is  not  very  easy  to  reconcile  the  cases  \ipon  par- 
tition to  the  principles  which  have  usually  governed 
in  the  cases  of  revocation  (1).     It  may  be  a  reason 

*  2  H.  Blackit  525. 


Bifference  (i)  Tenants  In  common  aft^r  partition  take  the  same  estate  as 
tenants  in  before,  though  in  another  mode,  Yid.post  346.  But  the  partition 
an?k»^nt-  ^"^^'"g  joint-tenants  has  the  effect  of  altering  the  estates  oi  the 
tenants,  as  parties.  In  the  case  therefore  of  joint-tenantS;  the  points  of  enquiry 
•f  parti-  ^^  ^^^  reverse  of  those  which  come  into  question  in  the  case  of 
^^"*  tenants  in  common.     Where  a  tenant  in  common  having  devised  his 

estate  makas  a  partition,  the  qnestlon  it  has  givea  rise  to  hire  been, 
whether  the  devise  iras  revoked  by  the  partiti6ii^  Bat  where  one 
of  two  joint-tenants  has  made  a  will  devising  his  moiety,  and  a 
partition  has  afterwards  taken  place,  the  question  has  been  whether 
the  will  has  hAd  effect  given  to  it  by  the  partition  ;  the  affirmative 
«f  which  question  could  only  be  maintained  on  the  notion  that  at  the 
time  of  making  his  will,  the  testator,  as  such  joint-tenant,  had  an  in- 
terest in  its  nature  devisable,  but  which  was  prevented  from  p«issing 
M  such  by  being  intercepted  and  supplanted  by  the  jus  aecrescendL 
But  it  has  been  determined  that  a  joint-tenant  is  under  an  original 
incapacity  to  devise  his  moiety,  being  not  comprehended  within  the 
statute  of  wills,  which  being  an  enabling  statute,  vrhatever  is  not 
included  in  it  remaiss  as  at  common  law.  Swilt  &  Roberts,  3  Burr. 
1491. 


Sect.  10.  PartiHan.  JQt 

for  this  doctrine^  that  the  party  iii  compellable  hf 
pfoc^s  of  law  to  make  pai^tition  ;  and  that  an  act  thuv 
imposed  upon  a  party,  has  upon  such  ground  of  com- 
pulsion been  held  not  to  disturb  his  previous  disposi- 
tions by  will.     And  it  is  remarked  by  Lord  Hale^  in^ 
his  commentary  on  the  writ  de  partitione  fieiciendai 
(2),  that  the  writ  is  brought  to  ascertain  the  posses- 
sion, and  the  legal  estate  is  not  affected.     The  courts  Where 
leem  to  have  been  careful;  however,  not  to  extend  other  pur- 
this  allowance  to  any  case  where  any  thing  is  done  cufredbt- 
beyond,  the  dry  purpose  of  partition;  for  where  in  mere  pur- 
Tickner  v.  Tickner,  cited  in  Persons  v.  Freeman*  paJtitio^* 
the  deed  limited  the  moiety,  in,  the  first  place,  to  such  reYoked!* 
uies  aa  the  testator  should  appoint,  and  in  default  of 
appointment  to  him  in  fee.  Lord  Chief  Justice  Lee, 
vfho  had  signed  the  certificate  in   Luther  v.  Kidby, 
held. that  the  slight  variation  by  the  introdoction  of 
th«  power  made  it  a  revocation. 

Mr.  Justice  Heath  declared  it  to  have  been  his 
opinion  *  that  ''  the  cases  of  Luther  v.  Kidby,  and 
Tickner  v.  Tickner,  were  difficult  to  be  reconciled 
with  some  of  the  other  cases,  and  with  each  other. 
That  the  only  difference  between  them  was  the  pow- 
er of  appointment  in  the  latter;  and,  that  though  the 
execution  of  the  power  would  be  a  revocation  of 
the  will,  yet  that  the  mere  reservation  of  the  power 
ought  not  to  have  that  effect."  Buller,  Justice,  in 
the  same  case  said,  that  the  case  of  partition  was  a 
case  Bui  generis.     If  the  partition  was  by  writ  against 

.  *  S  Atk.  742.  •  3  Vez.  Jun.  656. 


^>fWy^f     »IIHW^W»T^^'^F^^^P»*^I  ■  I  ' 


(3)  Fitz.  Abr.  142.  and  see  a  note  of  this  case  prxMlaced  by  Lord 
LoTio;hborouj^h|  in  2  Vec.  Jan.  432. 


30S  Revocation  of  Wills.  Chap.  IL 

the  wish  of  the  testator  it  was  no  revocation^  and  it 
was  but  one  step  more  to  liold  that  the  same  thing  by 
deed  or  fine  should  not  have  a  different  effect.  The 
authority  of  Luther  v,  Kidby,  as  far  as  it  is  an  autho* 
rity,  only  goes  to  this,  thatt  here  is  no  difference  in  ef- 
fect whether  the  partition  by  fine  be  in  pursuance  of  a 
covenant^  or  of  a  writ  of  partition,  but  the  court  did 
not  mean  to  lay  down  a  rule  applicable  to  any  other 
case.  Taking  the  whole  together,  it  seems,  said  that 
learned  Judge,  as  if  it  was  thought  that  there  was  a 
difference  between  a  fine  for  a  partition  and  any 
other  purpose.  He  agreed  with  Heath  J.  that  there 
was  no  material  difference  between  Luther  v.  Kidby, 
and  Tickner  v.  Tickner;  for  notwithstanding  the 
power  of  appointment,  the  fee  vested  in  the  testator, 
and  then  the  deed  and  fine  were  the  sole  ground  of 
revocation  in  that  case,  and  if  so,  it  was  in  direct 
contradiction  to  Luther  v.  Kidby  ;  and  the  report  of 
Parsons  v.  Freeman,  in  Ambler,  shews  it  was  so 
considered,  for  Lord  Hardwicke  approved  of  Tickner 
^  V.  Tickner,  and  said  it  was  the  same  case  as  that 
before  him  (3)/' 

We  find  no  earlier  notice  of  this  question  as  t# 
the  revocation  of  a  will  by  a  deed  of  partition,  than 
that  of  Lestrange  v.  Temple,   in  Siderfin',  where 

» 

'  P.  M. 


(3)  But  as  that  case  is  reported  in  Atkias,  a  better  RepoKeti 
Lord  H.'s  obsenration  was  that  Tickoer  v,  Tickner,  came  ver/ 
near  the  present ;  it  was  not  merely  to  effectuate  a  partition,  bat 
for  another  purpose,  and  therefore  Lord  C.  J.  Lee  held  it  amoonted 
to  a  roTocation,  and  I  am,  said  his  Lordship,  for  the  $am€  reason, 
•f  ojj^on  that  the  recoTery  here  is  also  a  reTocation. 


Sect.  10.  Partition.  303 

^  a  quaere  is  made  whether^  if  one  holding  lands  in 
common  with  another  makes  his  will  and  devises  all 
hig  lands^  and  afterwards  makes  a  partition  by  agree- 
ment^ and  not  by  writ^  the  partition  is  a  revocation. 
Soon  afterwards,  in  the  case  of  Temple  v.  Webb  *^ 
a  tenant  in  common  of  a  manor,  devised  all  his 
interest  in  the  manor,  and  then  a  partition  was  made, 
and  a  fine  levied  to  corroborate  the  partition  ;  and 
the  question  being,  whether  this  partition  and  fine 
were  a  revocation  or  not,  they  were  adjudged  to  be 
no  revocation.  And  the  Judges  are  said  by  th« 
Reporter  to  have  entertained  the  same  opinion^ 
(though  no  judgment  was  given)  in  Risley  v,  Balt- 
inglass  ^. 

Luther  v.  Kidby  *  was  thus  :  A.  and  B.  were  tenants 
in  common  of  lands  in  fee  simple.  A.  by  his  will 
dated  25th  January,  1719,  devised  his  moiety  in  fee; 
afterwards  A.  and  B.  made  partition  by  deed  dated 
16  May,  1722,  and  fine,  declaring  the  use  as  to  one 
moiety  in  severalty  to  A.  in  fee,  and  as  to  the  .other 
moiety  in  severalty  to  B.  in  fee.  Tliis  case  was  sent 
by  Lord  Chancellor  King  to  the  Judges  of  the 
King's  Bench,  for  their  opinion,  whether  the  will 
was  revoked,  and  it  appears  by  the  Register's  book, 
that  that  court  composed  of  Lord  Raymond,  C.  J .  Page, 
Probyn,  and  Lee,  justices,  certified,—'^  that  they 
were  all  of  opinion  that  the  will  of  the  said  A.  was 
not  revoked  by^the  deed,  and  fine  levied  in  pursu- 
ance thereof ;  and  that  the  said  A.'s  share  of  the 
lands   contained  in  the  deed,   and  the  fine  levied 

'  Freem.  Rep.  54t.  pi.  735.  Yin.  tit.  der.  (R.  0)  pi.  6.  io  the  Notes. 

^  Sir  Thomas  Raym.  240.  in  the  Exchequer. 

'  Vin.  tit.  deT.  (R.  6.)  pL  30,  1730.  aad  lee  3  P.  Wms.  1C9* 
Not«  bj  the  Reporter. 


304  Revocation  of  WUU.  Chat.  11. 

thereon,  did  pass  by  the  will  of  the  said  A."  with 
which  opinion  the  Liord  Chancellor  concurred. 

About20  years  afterwards^  Lord  Chief  Justice  Lee^ 
who  bad  signed  the  certificate  as  puisne  Judge^  in  Lu- 
ther V.  Kidby  or  Kirby,  decided  the  case  of  Tickner  v. 
Tickner,  which  was  as  follows^ :  Robert  Tickner, 
seised  in  fee  of  (he  estate  in  question,  which  was  of 
Gavelkind,  died  intestate,  and  left  two  sons,  Henry 
and  Robert,  who  entered,  on  his  death,  and  became 
seised  in  Gavelkind.  Robert  being  possessed  of  an 
undivided  moiety  made  his  will,  and  devised  it  to  his 
wife  Elizabeth  Tickner,  and  her  heirs.  After  this 
will  of  Robert,  by  a  deed  of  partition  between  Ro- 
bert and  Henry  Tickner,  and  by  a  fine,  all  the  Gravel- 
kind  I^nds  were  divided,  and  Robert's  share  was  al- 
lotted to  him  to  such  uses  as  he  should  appoint  by 
deed  or  writing,  and  in  default  of  such  appointment 
to  him  in  fee.  A  verdict  was  found  in  ejectment, 
subject  to  the  opinion  of  Lord  Chief  Justice  Lee, 
who,  after  mature  deliberation,  held  the  transaction 
to  be  a  revocation  of  the  -.vill. 

^0^*0*2*''  '^^^  doctrine  in  respect  to  the  question  of  revoca- 
*^*^P^jP^*"  tion  by  partition  is  founded  upon  the  foregoing 
decision*  c2Lses :  but  it  has  been  shewn  that  a  part  of  the 
Ki(iby,and  Bcuch  in   the   discussion  of  the  case  of   Goodtitle 

I  tckner  v. 

Tickner.  ^  Otway,  doubtcil  of  the  principle  on  which  Lu- 
ther  V.  Kidby  was  determined ;  and  considered 
that  case,  and  the  case  of  Tickner  t?.  Tickner,  though 
the  Judge  who  concurred  in  the  one  decided  the 
other,  as  irreconcileable.  Great  Lawyers,  however, 
have  thought  very  differently  upon  this  sutgect.     To 

'  Cited  in  Parsons  o.  Freeman,  9  Atk.  74t. 


SECT.  10,  Partition.    ^  305 

Lord  Chancellor  Loughborough  both  these  cases  ap-  ^^^^ 
peared  to  be  rightly  and  consistently  determined,  J^"^^^^ 
and  this  opinion  was  expressed  by  him  in  a  judg- 
ment which  displayed,  in  language  and  argument  the 
most  graceful  and  luminous,  his  deep  acquaintance 
with  the  whole  subject  and  its  principles  \  Speak- 
ing of  Luther  v.  Kidby,  his  Lordship  observed,  ''  It 
was  sent  to  law ;  and  the  court  of  law  being  of  opi- 
nion, and  wisely,  that  it  was  not  a  revocation,  this 
court  determined  in  conformity  to  the  law,  following 
the  law."  But  where  the  object  of  the  deed  went 
further  than  a  mere  partition  by  conveying  the  estate 
to  such  uses  as  the  party^*  should  appoint.  Lord  Chief 
Justice  Lee  held  it  an  alteration  in  the  estate^  and 
that  it  would  not  pass  by  the  will  at  law,  and  Lord 
Hardwicke  has  given  his  sanction  to  that  authority^ 
and  would  not  determine  against  the  rule  of  law. 

The  present  Chancellor  in  a  case  determined  by  Lord 
him  in  1802,  has  recognised  the  law  upon  these  two  opinion, 
cases  of  Luther  v.  Kidby,  and  Tickner  v.  Tickner,  to 
stand  thus  :  ''  That  mere  partition,  whether  by  com- 
pulsion or  agreement,  is  not  a  revocation  of  a  will ; 
but  the  slightest  addition,  as  a  power  of  appointment 
prior  to  the  limitation  of  the  uses,  is  sufficient"  °*. 
And  again  in  another  case  decided  by  jiim  in  the  en- 
suing year,  his,  Lordship  put  the  seal  of  his  high  au- 
thority upon  this  much  agitated  question.  ''  The  case 
of  partition,"  said  his  Lordship,  "  is  a  sort  of  special 
case.  Each  party  can  compel  the  other  to  make  par- 
tition; the  estate  is  the  same,  enjoyed  afterwards  in  a 
different  quality,  and  in  another  mode  :  and  upon  a 

m 

]  Vid.  1  Brjdges  v.  the  Duchess  of  Chandos,  2  Vez.  429t 

■  7  Vez.  Jun,  564. 


306  Revocation  of  Wills.  Chap.  II. 

principle  compounded  a  little  of  those  two  reasoni, 
that  that  which  can  be  compelled^  if  done  voluntarily, 
and  provided  nothing  more  is/lone  than  mere  partition, 
shall  not  revoke  the  wilL  I  say^  provided  nothing 
more  is  done^  for  it  has  been  long  established,  that  if 
the  object  is  to  do  any  thing  beyond  the  partition,  it 
will  be  a  revocation  :  it  is  tried  by  the  fact  whether 
the  acts  demonstrate  any  intention  to  go  beyond 
the  mere  partition :  and  notwithstanding  the  ex- 
pressions of  the  Judges  in  some  of  the  reports,  that 
Luther  v.  Kidby,  and  Tickner  v.  Tickner,  cannot 
stand  together,  they  have  stood  together  a  consider- 
able time,  and  in  my  opinion  are  perfectly  recon- 
cileable  ■/' 

But « win      One  distinction  upon  this  subject  it  is  very  neces- 
confined     gacy  to  rccollect : — ^That  if  the  manner  in  which  the 

in  terns  ts 

to  be  of  new  partition  is  made  destroys  the  interest  of  the  testator 
ked  by  in  the  thing  given^  so  that  at  his  death  there  is  no- 
thing in  him  to  answer  to  the  description  of  the  spe- 
cific subject  of  the  devise,  it  must  follow,  notwith- 
standing the  rule  that  the  mere  partition  is  not  a  re- 
vocation, that  the  devise  is  revoked^  since  it  cannot 
operate,  the  thing  being  withdrawn  upon  which  it 
was  to  operate.  Thus  if  A.  seised  as  a  tenant  in 
common,  or  co-parcener,  of  a  moiety  of  two  estates^ 
the  one  in  Berkshire,  and  the  other  in  Lincolnshire, 
devises  his  Berkshire  estate  in  terms,  and  then  by 'a 
partition  between  himself  and  his  co-proprietor  B. 
the  Berkshire  estate  is  allotted  wholly  to  B.^  and  the 
Lincolnshire  estate  to  A.^  the  devise  is  of  necessity 
revoked  ^ 

■  S  Yec«  Jan.  381. 
*  See  the  case  of  KnoUyi  v.  Akock,  7  Ves.  Jon.  B6S* 


^VtilioB. 


(307) 


Section  XL 


Leases. 


THE   subject  of  revocation  includes  some  ques-  whether  a 

-  .  .  1      •  /•  1  renewed 

tions  of  great  nicety  m  respect  to  devises  of  leases  lease  pass- 
and  specific  chattels.     Whether  a  fresh  lease  taken  prior  dis." 

1  1  -»  •         1-  'a*         V  -ii    position bv 

by  renewal  passes  under  a  prior  disposition  by  will  wiii  of  tk< 
of  the  original  lease  was  a  point  in  the  case  J^eS*^ 
of  jVfarwood  v.  Turner*,  before  Lord  Chancellor 
King.  The  argument  against  the  revocation  sup- 
ported itself  on  the  following  reasons  : — That  the 
testator  bad  expressed  in  Jiis  will  his  ardent  desire  that 
his  trustees,  to  whom  the  lease  was  devised,  should 
use  their  utmost  endeavours  to  continue  the  lease  in 
the  male  line,  as  long  as  there  were  any  to  inherit 
the  title.  That  as  to  the  surrender  of  the  old  lease, 
that  being  only  to  take  a  better  and  more  beneficial 
estate,  was  intended  for  the  advantage  of  the  devisee, 
to  give  him  a  larger  and  more  extensive  interest,  and 
to  increase  the  bounty  that  was  before  designed  him. 
Now  to  make  such  an  intended  act  of  kindness  a 
destruction  of  the  will,  would  be  to  invert,  in  the 
highest  degree,  the  meaning  of  the  testator.  That 
the  renewal  of  the  lease  was  only  ingrafting  upon  the 
old  stock,  that  which  was  of  the  same  nature  with  the 
old  stock,  and  was  a  continuation  of  the  same  estate 
with  some'little  addition  to  it.  That  this  was  demon- 
strated by  the  common  case,  where  a  trustee  of  a 
lease  £6r  lives,  when  all  the  lives  but  one  are  expired, 
renews  for  the  old  life  and  two  new  ones,  and  then 

*  3  P.  Wms.  168. 

X  2 


308  Revocation  of  Wills.  Chap.  II. 

the  old  life  dies ;  here  though,  but  for  the  renewal, 
the  lease  would  have  been  ^uite  at  an  end,  yet  the  re- 
newed lease  is  held  subject  to  the  same  trusts  as  the 
old  lease  was,  and  is  considered  as  a  continuation  of 
the  same  estate.  That  it  was  very  usual  to  make  pro- 
vision for  younger  children  out  of  these  leases,  which 
commonly  require  a  renewal  every  seven  years,  or 
upon  the  dropping  of  a  life.  And  if  one,  so  ^eised 
or  possessed,  having  made  his  will,  and  thereby  pro- 
vided for  a  younger  child  or  children,  should  soon 
afterwards  renew  his  lease,  but  forget  to  republish 
his  will,  (which  might  often  happen),  such  a  con- 
struction would  create  the  greatest  inconveniences. 
That  no  judgment  at  law,  nor  decree  in  equity,  had 
been  cited,  whereby  it  had  been  determined,  that  the 
bare  renewal  of  a  lease  was  a  revocation  of  a  will. 
And  it  was  further  urged,*  that  if  this  renewal  of  the 
lease  was  a  revocation  in  law,  yet  it  would  not  be  so 
in  equity,  but  the  renewed  lease  would  be  subject  to 
a  trust  for  the  devisee. 


In  general,       But  it  was  hcId  and  decreed  by  the  Lord  Chancel- 
is  a  revo-    lor,  that  thc  renewal  of  the  lease  for  lives  in  that  case 
whether  it  was  a  rcvocatiou  of  the  will  as  to  this  particular,  for 
ciiatteiora  that  by  the  surrender  of  the  old  lease  the  testator  had 
icasV°        put  all  out  of  him,  and  had  divested  himself  of  the 
whole  interest,  so  that  there  being  nothing  left  for 
the  devise  to  work  upon,  the  will  must  fall,  and  the 
new  purchase  being  of  a  freehold  descendible  could 
not  pass  by  a  will  made  before  that  purchase.    And 
his  Lordship  expressed  surprise  that  this  case  which 
must  have  often  happened^  had  not  been  before  de- 
termined. 


We  should  observe  that  the  tnie  reason  upon  which 


Sect.  11.  Leases.  309 

this  point  of  revocation  turns,  is,  that  the  specific 
thing  which  was  the  subject  of  devise  is  gone,  so 
that  the  words  of  the  devise  can  have  no  operation. 
And  this  reason  applies  as  much  to  a  chattel  lease 
renewed  after  a  will  containing  a  bequest  of  it,  as  to 
a  freehold  lease,  for  every  specific  bequest  must  upon 
the  same  principle  be  considered  as  revoked  or  rather 
adeemed  by  the  subsequent  disposition,  alienation^ 
or  destruction  of  the  particular  subject  in  the  testa* 
tor*8  life-time. 

There  is,  however,  a  material  difference  as  to  this  ^.  ™*^"*^ 

dinerencc 

point  between  freehold  and  chattel  property.     If  a  >"  t*>«»  res- 
lease  held  upon   lives  be  devised  and  afterwards  re-  tweenfree. 

hold  and 

newed  by  the  testator,  the  devise  is  revoked,  although  chattel 
the  will  should  contain  words  of  future  import  appli- 
cable to  that  interest ;  for  the  renewal  being  a  new 
purchase  (I)  of  a  freehold  it  cannot  pass  by  an  antece- 
dent will,  as  has  been  fully  explained  in  a  former 
part  of  this  work.  Whereas  if  a  testator  possessed 
of  a  chattel  renewable  lease  devises  all  his  estate^ 
right  and  interest,  which  he  shall  have  to  come  in  the 
particular  lands  so  in  lease  to  him  at  the  time  of  his 
death,  or  includes  it  in  a  general  devise  of  his  resi- 
duary property,  a  lease  taken  by  him  after  making 
his  will,  by  way  of  renewal,  will  pass  by  it  *. 

^  See  the  case  of  Abney  v.  Miller,  2  Atk.  593. 


(1)  A  woman  purchased  a  chqrch  lease  to  her  and  her  heirs,  for 
three  liTes,  and  died,  lea?ing  an  infant  daughter;  two  of  the  lives 
dropped  ;  the  infan tis  guardian  renewed  the  lease,  and  then  the 
infant  died  without  issue ;  the  f/'eehold  lease  was  held  to  be  a  new 
acqaisition^  and  of  consequence  as  descendible  to  the  heiis^  ex 
parte  paterna.    Mason  v.  Day,  Prec«  in  Ch.  31  d. 


310  Revocation  of  Wills.  Chap.  II. 

In  the  case  of  Carte  v.  Carte  *,  Lord  Efardwickc 
appears  to  rest  much  upon  a  distinction  between 
trusts  and  legal  estates  in  respect  to  the  operation  of 
a  will  upon  these  renewed  chattel  leases,  and  he 
alludes  to  Abney  v.  Miller,  as  being  the  case  of  a  legal 
estate,  whereas  in  Carte  v.  Carte,  the  testator  wag 
only  cestui  que  trust.  But  in  Abney  v.  Miller,  his 
Lordship  had  said  that  the  rule  of  revocations  must 
be  the  sanoe  in  law  and  in  equity ;  and  the  same  ob- 
servation has  been  made  by  almost  every  succeeding 
Chancellor.  In  truth,  it  would  be  difficult  to  point 
out  a  single  case,  which,  when  ^  the  principles  and 
analogies  of  equity,  and  the  views,  which,  from  the 
genius  of  its  particular  jurisdiction,  it  takes  of  the 
instrumentary  transactions  concerning  property,  arc 
properly  attended  to,  is  inconsistent  with  the  rule  of 
equitas  sequitur  legem. 

The  decision  of  Carte  v!  Carte,  did  not  seem  to 
require  any  other  distinction  to  support  it  than  that 
which  arises  out  of  the  different  import  of  the  words 
used  in  tfie  will.     The  testator  in  that  case  bequeathed 
to  his  eldest  son  Thomas,  after  giving  some  legacies 
to  other  persons,  all  the  rest  of  his  goods,  chattels 
and  estate  whatsoever,  whether  real  or  personal,  in 
possession  and  reversion,  and  then  by  a  supplemental 
clause  directed  that  he  should  have  the  disposal  of  his 
lease  and  receive  to  himself  all  the  profits  and  advan- 
tages accruing  from  it;  which  words  upon  the  prin- 
ciples of  reasoning  adopted  by  his  Lordship,  seemed 
amply  sufficient  to  pass  the  beneficial  interest  then 
subsisting,  together  with  the  benefit  of  all  subsequent 
renewals^  and  would  equally  have  comprehended  and 

•  3  Atk.  174. 


Sect.  11.  Leases.  SU 

passed  the  subsisting  lease^  and  future  renewals,  had 
the  interest  been  legal  instead  of  equitable.  For  his 
Lordship  in  the  last-mentioned  case  observed,  ''  there 
is  no  qu^tion  but  that  a  man  by  will  may  bequeath, 
a  term  of  years  which  he  has  not  in  him  at  that  time^ 
but  which  comes  to  him  afterwards.  Therefore  all 
these  cases  of  revocations  of  legacies,  or  bequests  of 
terms  of  years,  arise  from  the  short  penning  of  the 
will;  and  if  in  the  case  of  Abney  v.  Miller,  the  testa- 
tor had  said,  I  will  give  all  the  interest  I  have  in  the 
lease,  there  is  no  doubt  but  that  the  renewed  lease 
would  have  passed  (2).*' 

k  appears  from  a  careful  comparison  of  the  cases,  J?**^*^, 
that  for  the  renewal  of  these  chattel  leases  to  be  a  ^l^^\ 

chattel 

revocation,  the  devise  of  them  must  be  specific,  and  i««8e  is  a 

*  revocation 

that  whether  revocation  or  not  is  a  question  to  be  depends 

upon  whc- 

determined  by  that  short  criterion  (3).    The  case  of  ther  the 
Stirling  v.  Lydiard^  amounts  in  effect  to  settle  it  upon  specific  or 
this  basis.     There  the  testator  gaye  aU  and  singular  ^^^ 

*  3  Atk.  199. 


(2)  In  Abney  v,  MUler,  howeter,  his  Lordship  intimating  ths 
proper  words  for  couTeying  these  after-taken  leases,  suggests  words 
of  a  fotnre  import  as  necessary  in  addition  to  the  words,  all  my 
titaUj  kc  the  words  he  prescribes  are,  all  my  estate^  righi^  and 
interest^  which  I  shall  have  to  come  in  this  lease.  And  in  Rndstone 
V.  Anderson,  2  Vez.  418.  the  Master  of  the  Rolls,  Sir  J.  Strange, 
woidd  not  allow  there  was  any  real  distinction  between  the  import 
of  the  words  att  my  tithes  and  all  my  estate  In  the  tithes.  If  a  new 
intend  were  acquired  after  the  will,  it  would  not  pass  by  words 
derising  all  the  testator's  subsisting  interest. 

(3)  A.  bequeathed  his  black  gelding  to  B.  and  afterwards  gires 
him  away  or  sdls  him,  and  buys  another  black  gelding ;  this  new 
bought  hone  shall  aot  pass  by  the  Vill.  Wentw.  Office  Execu- 
tor, M. 


312  Revocation  of  Wills,  GhAP.  \h 

hm  leasehold  estate^  goods^   chattels^   and   personal 
estate  whatsoever^  to  his  daughter^  and  if  she  died 
without  issue  living,  then  to  the  defendant.     The 
testator  afterwards  renewed  a  lease  with  the  Dean 
and  Chapter  of  Windsor;  this  was  held  to  he  no 
revocation^  and  the  lease  passed  by  the  will;  the 
Lord  Chancellor  observing,  that  "  it  was  a  mistake  to 
suppose  this  a  specific  legacy ;  it  was  a  general  devise 
of  the  whole.     Suppose  the  testator  had  purchased 
a  new  lease^  would  not  that  have  passed  ?     Why  then 
should  not  a  new  term  in  a  lease  equally  pass  ?  ''  If  I 
were  to  construe  this  a  revocation/'  said  his  Lord- 
ship, "  I  do  not  know,  but  that  if  a  man  were  to 
give  all  his  Bank,  East  India,  and  South  Sea  stock, 
and  should  afterwards  turn  it  into  money,  it  might  as 
well    be   insisted   that    this  was  a  revocation.      So 
that  it  appears  clearly  to  have  been  the  settled  opi- 
nion of  Lord  Hardwicke,  that  whether  the  future 
lease  taken  by  renewal  would  pass  or  not  by  (he  an- 
,  tecedent  will  would  depend  entirely  upon  the  ques- 
tion whether  the  words  of  the  bequest  confined  the 
supposable  intention  to  the  thing  then  actually  sub- 
sisting, or  extended  to  future  interests  growing  out 
of  it ;  in  a  word^  whether  the  legacy  was  specific  or 
general  (4). 

But  it  seems,,  according  to  Abney  v.  Miller, 
which  is  a  very  leading  case  on  this  subject^  that  if 
the  renewed  lease  be  not  perfected  by  execution  in 
the  testator's  life-time,  not  only  will  an  agreement 
for  such  new  lease  be  ineffectual  to  operate  a  revo- 


(4)  See  the  case  of  Hone  v.  Medcraft,  1  Bro.  C.  C.  ^61.  where 
the  same  ground  of  distinction  is  adopted.  See  also  Copin  v.  Fer- 
nybough,  2  Bro.  C.  C.  291. 


SicT.  11.  Leases.  313 

cation^  but  the  actual  surrender  will  not  effect  the 
previous  disposition  of  the  lease :  it  was  accordingly 
held  by  Lord  Hardwicke^  that  as  the  college  seal  had 
not  been  affixed  to  one  of  the  renewed  leases  in 
Abney  v.  Miller,  though  the  old  lease  had  been  sur- 
rendered and  the  new  one  prepared  and  accepted^ 
yet  the  bequest  of  such  lease  was  not  revoked.  But 
this  part  of  the  case  is  not  very  clear  if  it  can  be 
said  to  be  intelligible  at  all,  without  supposing  that^ 
the  surrender  being  made  by  the  same  instrument 
as  the  new  lease,  probably  being  stated  as  the  con- 
sideration of  the  new  lease,  or  perhaps  implicitly 
(5)  contained  in  the  acceptance  of  such  new  lease, 
such  surrender  would  not  be  complete  according  to 
the  intention  of  the  parties  until  the  change  and 
substitution  was  completed  by  the  execution*  of  the 
instrument  designed  to  effectuate  the  renewal.  And 
indeed,  supposing  the  surrender  to  be  made  by  a 
separate  instrument,  yet  the  making  of  the  new 
lease^  and  the  yielding  up  of  the  old,  being  recipro- 
cal acts,  perhaps  the  surrender  can  scarcely  be  said 
to  be  complete,  in  equity,  at  least,  until  the  fresh 
lease  has  been  granted. 


(5)  This  surrender  in  law  is  without  doubt  an  ademption  of  a   a  Kurren- 
specific  devise  as  much  as  the  express  surrender,  for  in  these  cases   .^^  *"  **y 
the  effect  produced  is  not  so  correctly  expressed  by  rerocation,  as  emption  of 
by  ademption.     Sec  Wentworth's  Office  of  Executor,  22  et  seq.    It  Revise. 
IS  not  by  coantermanding  the  disposition,  but  by  withdrawing  or 
destroyiDg  the  subject  matter  of  the  disposition,  that  the  elTect  is 
properly  understood  to  be  produced.    And  whatever  destroys  the 
subject  pf  a  specific  devise,  must  of  necessity  annul  its  operation; 
thus  if  after  devising  an  estate  held  upon  lives,  the  testator  pur- 
chases the  reversion^  the  devise  is  revoked  and  the  estate  descends. 
iSee  2  Atk.  42^. 


314  Sevocatian  of  WiUs.          Chap.  II. 

mat  pro.  It  is  very  desirable  on  a  subject  into  which  so 

posidonfl  *'                                                " 

appear  to  much  refinement  has  been  introduced,  to  rest  apon 

be  well 

settled  on  some  Steady  propositions.     AU  the  cases  appear  to 


ject.  ag^ee  in  this — that  the  surrender  of  the  old  and  the 
taking  of  a  new  lease^  will  be  an  ademption  or  not 
of  the  previous  disposition  by  will  according  as  the 
disposing  words  are  held  to  import,  only  the  actual 
thing,  or  all  the  testator's  eventual  interest  in  it; 
but  whether  particular  terms  denote  the  one  or 
the  other  intention  is  still  in  some  degree  open  to 
controversy.  It  appears  according  to  the  report 
of  Carte  v.  Carte,  as  has  before  been  mention- 
ed, that  Lord  Hardwicke  was  of  opinion  that  if  in 
Abney  v.  Miller,  the  testator  had  said,  ''  I  give  ^ 
the  interest  I  have  in  the  lease,"  the  will  would  have 
passed  the  renewed  lease,  that  is,  such  words  wonld 
have  made  the  bequest  general  and  prospective. 
Sir  John  Strange,  as  appears  from  the  above  cited 
case  of  Rudstone  v.  Anderson,  thought  that  the 
bequest  was  not  the  less  specific  by  reason  of  the 
words  estate  and  interest ;  and  we  have  seen  that 
•  Lord  Hardwicke,  in  Abney  v.  Miller,  suggests  other 
words  of  future  import  to  be  added  to  the  vrords 
estate  and  interest,  when  he  points  out  a  mode  of 
embracing  within  the  will  future  renewals. 

• 
It  is  out  of  dispute,  however,  that  a  testator 
may  by  his  will  pass  his  future  chattel  interests 
whatever  they  may  be,  provided  they  come  within 
the  description  of  the  bequest;  and  that  irfiercver 
the  words  are  general,  property  of  this  nature,  though 
subsequently  acquired,  is  comprehended  within  the 
•cope  of  them":  thus  if  a  testator  gives  all  hifl  P^^' 

■ 

*  See  the  cafe  of  Stirling  v.  Lydiard^  3  Atk.  199. 


Sect.  11.  Leases.  315 

sonal  estate  whatsoever,  and  afterwards  surrenders  a 
subsisting  lease  and  takes  a  new  one,  or  makes  an 
entire  new  purchase  of  a  leasehold  estate,  both  these 
descriptions  of  property  will  pass. 

In  a  very  particular  case  which  has  been  lately  de- 
termined in  the  Court  of  Chancery',  another  propo- 
sition of  considerable  breadth  and  certainty  on  this 
subject  is  furnished,  viz.  that  whether  the  disposing 
M'ords  are  to  be  confined  to  the  specific  interest,  or 
are  to  be  interpreted  as  descriptively  embracing  after 
acquired  property,  will  depend  not  only  on  the  im- 
port of  the,  particular  words,  but  upon  the  general 
context  of  the  will. 

In  James  v.  Dean,  which  is  the  case  alluded  to,  the 
Chancellor  took  it  to  be  established  in  Hone  v,  Med- 
craft,  and  Copin  v.  Pernyhough,  that  where  there  is 
a  general  bequest  in  the  terms  of  '^  all  my  leasehold 
estates,"  and  the  testator  afterwards  surrenders  and 
takes  a  new  lease,  the  bequest  is  revoked.     With  the 
highest  respect  for  this  truly  great  authority,  I  can- 
not forbear  observing  that  in  the  cases  said  to  have 
established  this  proposition,  the  devise  is  not  in  a 
general   form,  but  seems   to  be  a  disposition  of  a 
leasehold   estate  particularly  described  and  enume- 
rated among  other    distinct  parts  of  the  testator's 
property.     And,  indeed,  before  th6  general  words, 
''  all   my  leasehold  estates,'*  can  be  held  to  be  a 
specific  disposition   of  subsisting  interests,  the  opi- 
nion and  decree  of  Lord  Hardwicljie,  in  Stirling  v. 
Lydiard,   above  cited,    seems  necessary  to  be  ex- 
plained out  of  the  way. 

*  James  v.  Dean^  11  Vez.  Jon.  389. 


316  Revocation  of  Wills,  Chap.  II. 

But  the  great  point  of  James  v.  Dean  makes  the  ques* 
tion  whether  the  subsisting  interest  only  or  future  inte- 
rests in  chattels  pass  by  the  will,  to  depend  entirely  upon 
the  indications  of  the  testator's  intention^  and  decides 
that  the  intention  in  this  respect  is  to  be  collected  from- 
the  whole  context^  and  a  comparison  of  all  the  parts  of 
the  will.     The  case  was  shortly  as  follows  : — Thomas 
James,  by  his  will,  dated  the  25th  of  April,  1788, 
gave  and  bequeathed  to  his  wife,  Judith  James,  a 
messuage  and  some  land,  at  Standgate^  held  by  him  un- 
der a  lease  from  the  Archbishop  of  Canterbury,  and  af- 
ter her  decease  he  gave  the  same  to  Sarah  James,  Jane 
James,  and  Elizabeth  James,  his  brother's  daughters, 
their  executors,  administrators,  and  assigns,  '^  for  all 
such  term,  estate,  or  interest,  as  shall  be  then  to  come 
therein,  as  tenants  in  common."     The  testator  then 
directed  that  the  rent,  fine,  and  fees,  for  the  renewal 
of  the  lease  of  the  said  premises,  at  Standgate,  should 
be  paid  by  his  wife,  during  her  life,  and  by  his  bro- 
ther's three  daughters  afterwards,  as  such  rents,  fines, 
and  fees  became  payable;  then  after  giving  some 
other  parts  of  his  property  he  made  the  following  dis- 
position :    ''  I  also  give  and  bequeath  to  my  wife, 
Judith  James,  during  her  life,  all  my  messuages,  lands, 
and  tenements,  in  Vine-street,  in  the  parish  of  Lam- 
beth, which  I  hold  by  lease,  under  Sir  William  East, 
(being  the  premises  in  question)  for  all  the  residue  of 
my  term  and  interest  therein,  and  after  her  decease  I 
give  and  bequeath  the  same  to  my  godson,  Thomas 
James,  his  executors,  and  administrators,  for  aU  the 
residue  of  the  term  and  interest  I  shall  have  to  come 
therein  at  my  decease.'*     And  then  the  testator  gave 
to  his  said  wife  all   his   leasehold  estate  at  Float- 
mead,  and  all  other  the  estate  which  h^  purchased  of 
Anthony  Keck,  Esq.  and  which  he  then  held  by  lease 


Sect.  11.  Leases.  317 

from  Sir  William  East,  she  paying  for  renewing  the 
said  lease  at  the  usual  times,  during  her  life,  and  keep* 
ing  the  said  premises  in'  good  repair,  and  after  her 
decease  he  gave  the  same  among  the  said  three  daugh* 
tersof  his  brother  James,  as  tenants  in  common.  He 
then  made  his  wife  his  residuary  legatee,  and  ap- 
pointed her  one  of  his  executors. 

The  testator  was,  at  the  date  of  his  will,  in  posses- 
sion, under  a  lease  granted  by  Sir  William  East,  of 
the  premises,  in  Vine-street,  Lambeth,  dated  the  12th 
of  August,  1769,  to  hold  for  2 1  years  from  the  Lady- 
day  preceding,  if  the  lessor  and  two  other  persons 
should  so  long  live,  with  a  covenant  by  the  lessee,  that 
in  case  of  the  death  of  arty  of  the  said  lives,  (being 
the  lives  upon  which  the  lessor  held  those  premises, 
with  others  from  the  Archbishop  of  Canterbury,)  be- 
fore the  expiration  of  the  term,  and  the  lessor  should 
renew  from  the  Archbishop,  he,  the  lessee,  his  execu- 
tors, &c.  would  pay  a  proportionate  share  with  the 
other  tenants  of  the  fines  to  the  Archbishop  upon 
every  such  renewal ;  and  Sir  William  East  covenant- 
ed, upon  such  renevral  of  the  original  lease  by  the 
Archbishop,  to  grant  a  new  lease  of  the  premises 
thereby  demised  for  the  remainder  of  the  term  of  21 
years,  which  should  be  then  to  come  and  unexpired, 
fiut  the  lease  contained  no  direct  covenant  for  farther 
renewal. 

The  testator  died  in  December,  1790,  the  lease, 
which  expired  on  the  25th  of  March  preceding,  not 
having  been  renewed  by  him.  But  he  had  remained 
in  the  occupation  of  the  premises  until  his  death,  and 
half  a  year's  rent  under  this  occupation  had  been  paid 
l>y  him  after  the  expiration  of  the  lease^  during  hig 


318  Revocation  of  Wills,  Cbap.  II. 

life.  Sometime  after  the  testator's  death ;  viz.  on  tlie 
39th  of  March,  1791,  Sir  William  East  granted  to 
Judith  James  a  new  lease  of  the  premises  in  question, 
to  hold  from  the  25th  of  March,  for  43  years,  if  three 
persons  named,  or  any  of  them  should  so  long  live. 
The  hill  was  filed  by  Thomas  James,  named  in  the 
'  will,  against  the  executors  of  Judith  James,  the  testa- 
tor's widow,  praying  that  the  renewal  of  the  said  lease 
by  Judith  James  may  be  declared  to  be  upon  the  trusts 
of  the  will.  The  answer  insisted  that  she  took  the 
new  lease  for  her  own  benefit,  and  this  was  the  ques- 
tion. 

The  Master  of  the  Rolls  dismissed  the  bill,  upon 
the  ground  that  though  a  testator  might  so  express  his 
intention  ^s  to  pass  any  interest  existing  at  his  deaths 
yet  in  this  case  his  intention  seemed  merely  to  give 
the  residue  t)f  the  term  he  then  had  from  Sir  William 
East,  and  that  nothing  more  was  in  his  contemplation. 
Upon  the  appeal  from  this  decision  the  Lord  Chan- 
cellor  considered  that  the  equitable  question  before 
his  Lordsh'ip  must  depend  upon  the  legal  question, 
whether  if  the  lease  had  been  renewed  to  the  testator 
it  would  have  passed.  It  is  evident  that  if  the  new 
lease  had  been  made  to  the  testator  himself  in  his  life- 
time, this  would  have  been  a  caae  for  a  trial  at  law,  as 
being  a  mere  legal  question,  depending  upon  the  im- 
port of  the  words  of  the  will,  in  respect  to  such  after 
It  ii  a  rale  acquired  property.    And  it  seems    to  be  a  rule  of 

the  dispos-  equitv,  to  be  collected  from  the  case  we  are  now  con- 
ing words       ^      -^ ' 

wo<udhaTe  siderinfi:,  that  where  the  disposine:  words  are  such  that 

pauedtbe  ^'     ,  ,,  .  /^  , ,    f         , 

letses  if  re.  a  court  of  law  would  have  held  the  subsequent  acqui- 
tettator't  sitioH  bv  renewal  in  the  testator's  life-time  to  have 
tcnewSt  passed  by  them^  any  renewals  after  the  death  of  the 
4tShbf    testator^  by  his  representative^^  shall  be  for  the  bene- 


Sect.  U.  LeoMB.  S19 

fit  of  the  persons  to  whom  the  beneficial  interest  in  ^  "?"• 
the  subsisting  lease  was  devised.  ^u  p^* 

wordi* 

Now^  in  this  case^  though  the  testator  lived  out  the  a  tenuey 
lease  which  he  had  given  by  his  will  to  his  wife  for  toyea^dt^ 
her  life,  and  at  her  decease  to  Thomas  James^  yet  as  tnuumUiU 
he  continued  to  occupy  till  his  deaths  and  paid  rent^    ** 
he  became  a  tenant  from  year  to  year^  which  was  an 
interest  devisable  and  transmissible'.     This  legal  in-  And^he 

^  g^od  will 

terest,    though  become  a  tenancy  only  from  year  to  ^^  tenant- 

i»  •    1  rightwhichf 

year,  attracted  to  itself  that  sort  of  tenant-right^  or  accompap 
good  will^  on  which  the  claim  to  a  renewal  would  have  es  with  it. 
grounded  itself,  for  it  was  a  sort  of  excrescence  out 
of  the  old  subsisting  lease  which  had  expired.  The 
Court  therefore  considered,  that  if  this  interest  would 
pass  by  the  will,  such  benefit  of  renewal  would  pass 
also  as  an  adjunct  to  it^  subject  to  the  operation  of  the 
tame  testamentary  dispoisition. 

It  was  therefore  said  by  his  Lordship,  that  whe- 
ther the  interest  of  the  renewed  lease,  (supposing 
luch  lease  to  have  been  renewed  in  the  testator's  life- 
time) would  or  would  not  have  passed,  must  be  de- 
cided, to  raise  any  question  between  these  parties 
upon  the  record.  For  the  lease  not  having  been  re- 
newed^ and  the  testator  being  at  his  death  possessed 
of  no 'larger  interest  than  from  year  to  year,  the  doc- 
trine cannot  be  applied^  unless  it  would  have  been 
applied, « if  he  had  been  lessee  in  the  renewed  lease. 
His  Lordship  then  laid  it  down  as  a  sound  rule  of^Whea 

,  _  ,  1        1     •     •  X    ^ordj  are 

construction,  that  when  words  are,  by  their  import,  pnmafacie 
prima  fiftcie  equivalent  to  pass  future  interests  in  per-  ^s  future 
sonai  estate,  that  construction  ought  to  prevail,  unless  ^  pmoa^ 

•  See  Doe  V.  Porter,  3  T.R.  IS. 


330  Revgcation  of  Wills.  Chap.  II. 

•ity,  that    tjie  context,  in  sound  interpretation,  calls  for  another 

construe-  '  r  ' 

tion  oaght  construction  :  and  this  depends  upon  the  context  of 

to  prevail,  *  * 

unless  con-  the  wholc  will. 
trolled  by 
the  con- 
text. 

His  Lordship  thought  that  though  there  was  a  dif- 
ference between  the  leases,  the  lease  in  question  not 
containing  the  same  direct  covenant  for  renewal 
which  occurred  in  the  others,  yet  there  was  enough 
in  the  lease  in  question  pointing  that  way,  to  lead  the 
testator  to  think  that  the  expiration  of  the  term  would 
not  put  an  end  to  the  interest.  Some  parts  of  the 
will,  particularly  the  last  bequest,  must  be  interpreted 
to  pass  the  renewed  lease,  and  the  different  clauses  in 
the  will  are  much  the  same  in  effect,  though  ex- 
pressed in  different  words.  The  obligation  upon  the 
wife  to  renew  from  time  to  time,  shews  that  he  meant 
not  only  the  interest  he  had  in  the  present  lease,  bat 
the  interest  she  would  acquire  under  the  covenant. 
Between  the  bequests  accompanied  with  this  express 
direction  to  renew,  is*  the  bequest  of  the  premises  in 
question ;  and  the  person  who  was  tenant  for  life  of 
these  premises,  is  the  wife  and  the  general  residuary 
legatee.  His  general  intention  therefore  was,  that 
as  to  the  particular  part,  so  specially  given  to  her^ 
she  should  take  only  a  life  interest,  and  as  general 
residuary  legatee  she  should  take  absolutely  for  her 
own  benefit  (7). 


(7)  Had  the  testator  held  over  after  the  expiration  of  his  term, 
and  died  in  the  mere  occupation  of  the  premises  as  a  tenant  by  suf- 
ferance, he  could  hare  giten  no  title  at  all  by  his  bequest.  The 
particular  legatee  or  legatees  could  have  taken  no  interest  in  such  & 
subject  under  his  will.  And  supposing,  in  such  a  case,  another 
person  instead  of  the  executrix  to  hare  been  the  residuary  legatee. 


(    321    ) 


Section  XII. 

Cancelling. 

AMONG  the  methods  whereby  a  will  may,  be  re- 
voked is  that  of  the  destruction  of  the  instrument  it- 
self by  burning,  cancelling,  tearing,  or  obliterating 
the  same  by  the  testator  himself,  or  in  his  presence, 
and  by  his  directions  and  consent ;  which  methods  of 
revocation  are  excepted  expressly  out  of  the  statute 
of  frauds.     But  we  are  to  observe  that  it  has  been  Ciiicd* 

ling,  an 

always  an  established  point,  both  before  and  since  equiT^oa. 

sets 

that  statute,  that  the  act  of  cancelling  or  destroying 
a  will^  is  in  itself  an  equivocal  act,  and  that  its  opera-> 
tion  as  a  revocation  depends  upon  the  intent  with 
which  it  was  done  ;  which  must  be  made  to  appear : 
for  if  a  man  were  to  throw  ink  upon  his  will  instead 
of  sand,  though  it  were  a  complete  defacing  or  obli- 
terating df  the  will,  it  would  not  be  a  revocation :  or 
if  a  testator,  designing  to  cancel  his  former  will,  were 
accidentally  to  cancel  one  subsequently  made  and 


the  executrix  renewiDg  the  lease,  would,  in  equity,  according  to 
the  optnion  of  his  Lordship,  haye  been  considered  as  doing  it  for 
the  benefit  of  the  residuary  legatee,  who,  in  preference  to  the  pair* 
ticular  legatee,  would  have  a  right  to  the  benefit  of  such  casual  op* 
portanities  as  arose  out  of  the  succession  to  the  mere  occupation^ 
for  the  particular  bequest  could  operate  nothing,  and  must  haT9 
been  considered  as  making  no  part  of  the  will.  But  in  this  ca^e, 
IS  the  executrix  was  also  general  legatee  of  the  residue,  it  appeared 
to  his  Lordship  that  she  would  hate  been  precluded  from  holding; 
it  for  herself. 

r 


32*2  Rev6(fatidn  of  Wills.  Chap.  II, 

Dieant  to  be  his  last  will^  such  an  act  would  clearly 
be  no  revocation :  in  these  cases  the  intention  mast 
govern.  This  was  the  {ground  of  the  determination 
in  Onyons  v.  Tyrcr * ;  from  wlrich  case  it  appears, 
If  a  testa-    that  if  a  testator  cancels  his  first*  will,  and  by  a 

tor  makes 

a  second     subscqucnt  will,  not  properly  executed^  as  by  being 
in  tcnns     ncglected  to  be  subscribed  by  the  three  witnesses  in 

revokes  *^  "^  „  ^   .       i  • 

the  first,     the  testator's  presence,  sets  up  a  devise  contained  m 
pears  that   the  first  will,  the  first  will,  as  to  such  devise^  stands 
Hon  of  the  4inrevoked ;  notwithstanding  the  testator  in  his  second 
wasoni^  to  will  expressly  revokes  his  first,  and  such  express  re- 
fo^these^    vocation  would,  in  other  respects,  be  available  as  a 
gMondwUi  declaration  in  writing  within  the  statute.     For  it  ii 
liSba,*^?^  plain  he  did  not  mean  to  revoke  his  first  will,  as  to 
Sr^ntof  t'*c  particular  lands  devised  by  it,  unless  he  niiglitby 
ittestoUon^  *^^^  second  will,  at  the  same  time  that  he  revoked  the 
first,  set  up  the  like  devise,  so  as  to  take  effect  by  the 
second  will.     And  if  by  the  ktter  will  the  premises 
had  been  given  to  a  third  person,  k  should  never, 
said  the  Court,  have  let  in  the  heir ;  since  the  meaning 
of  such  second  will  would  still  be  to  give  to  the  second 
.  devisee  what  it  had  taken  from  the  firsts  without  any 
consideration  had  to  the  heir ;  and  if  the  second  de- 
visee took  nbthing,  the  first  could  have  lost  nothing. 

It  was  plain  that  tlie  testator  did  not  mean  to  revoke 
the  former  will  by  cancelling  simply,  as  a  self-sub- 
sisting independent  act ;  but  by  substituting  at  the 
.  same  time  another  perfect  will  in  its  place,  and  not 
'  otherwise ;  and  therefore  the  cancelling  was  but  a 
circumstance,  shewing  that  he  thought  he  had  made 
another  good  disposition  by  the  second  will.  The  ef- 
fect of  such  cancelling  depended  upon  the  validity  of. 

« 

*  2  Vera.  745.    1  P.  Wins.  M5.    Free.  lA  Cb.  4S1^ 


SfiCT;  12.  Cancelling^  S^ 

the  second  wil)^  and  ought  to  be  tdken  a9  one  act^ 
done  at  the  same  time;  so  that  if  the  second  will  was 
not  valid^  as  the  testator  thoug^ht  it  was^  and  without 
Which  he  Would  not  have  cancelled  the  firsts;  the  cau^ 
celling  of  the  first  will  bein{^  dependent  thereon, 
ought  to  be  looked  upon  as  null  and  inoperative  also. 
In  a  word^  it  was  relievable  in  equity,  under  the  head 
<lf  accident  or  mistake. 

Hyde  v.  Hyde\  is  also  a  case  which  shews  that  th« 
cancelling  (1)  or  tearing  of  a  will  must  be  done  animo 
revdcandi,  to  have  the  effect  in  law  of  destroying  th« 
validity  of  the  will.  The  case  was  briefly  as  follows: 
A  man  fnade  his  will  in  writing,  and  (hereby  devised 
ftU  his  red  and  personal  estate  to  his  wife^  her  heirs, 
and  executors,  in  trust,  to  pay  his  debts  and  legacies; 
and  then  devised  several  legacies  to  his  cllildren  and 
other  persons,  aind  concluded  thus  : — ''  In  witness 
^Thereof  I  have  to  this  my  last  will  and  testament, 
containing  nine  sheets  of  paper,  and  to  a  duplicate 
thereof,  to  be  left  in  the  hands  of  A.  set  my  seal  to 
€very  sheet  thereof;  and  to  the  last  tif  the  sakl  sheets 

*  1  Eq.  G.  Abr.  409. 


(1)  It  is  obTious  that  thcf  word^  *  cancelling'  is  used  here  only  td 
signify  the  manual  operation  of  tearing  or  destroying  the  iBstrument 
itself,  and  not  the  virtual  effect  of  destroying  its  validity  J  and  in 
this  sense  only  is  it  used  in  the  clause  of  the  statute  of  Charles, 
where  its  effect  of  revoking  a  will  is  excepted  odt  of  the  restrictioa 
thereby  created.  But  when  the  cases  speak,  «s  they  sometimes  do, 
©f  the  atiimus  cancellandi,  it  is  manifest  that  they  use  the  word  as 
importing  the  same  as  revocandi^  and  not  merely  as  the  sign  or  mode 
efrmrocattou 

v2 


394  Revocation  of  Wills.  Chap.  II. 

my  hand  and  seal ;"  which  will  was  properly  executed 
according;  to  the  statute. 

The  testator  being  afterwards  desirous  of  adding 
other  trustees  to  his  wife^  and  to  make  some  altera- 
tions in  his  will^  sent  for  a  scrivener,  and  gave  direc- 
tions to  prepare  a  draught  of  instructions  for  another 
will,  which  the  scrivener  did  accordingly,  and  the  tes- 
tator read  it  over  and  approved  of  it,  and  set  his  hand 
to  it;  and,  thinking  he  had  now  made  a  new  will,  he 
pulled  out  of  his  pocket  his  first  will,  and  tore  off  the 
seals  from  the  first  eight  sheets,  which  the  scrivener 
seeing,  asked  him  what  he  was  doing?  "Why," 
says  he,  "  I  am  cancelling  my  first  will."  ''  Pray," 
says  the  scrivener,  ".  hold  your  hand ;  the  other  will  is 
not  perfected ;  it  will  not  pass  your  real  estate,  for 
want  of  being  executed  pursuant  to  the  statute  of 
frauds  and  perjuries;"  to  which  the  testator  replied, 
^'  I  am  sorry  for  that ;"  and  immediately  desisted  from 
tearing  off  any  more  of  the  seals ;  and  soon  afterwards 
died  without  having  done  any  thing  further  to  per- 
fect the  second  will,  or  to  cancel  the  first.  After  his 
death,  on  application  to  the  spiritual  court  by  the  wife, 
who  was  made  executrix  to  the  second  will,  it  was 
sentenced  to  be  a  good  will  as  to  the  personal  estate, 
and  she  was  admitted  to  prove  it. 

On  a  bill  brought  by  the  legatees  against  the  wife, 
and  other  trustees,  to  have  a  specific  performance  of 
the  trust  in  the  first  will,  and  that  the  estate  might  be 
sold  pursuant  to  the  directions  of  that  will,  it  was  in- 
flbted  that  the  first  will  was  revoked  either  by  making 
the  second,  or  by  tearing  off  the  seals  from  the  first ; 
but  the  Lord  Chanceflor  held,  that  the  subsequent  w31 
could  be  no  revocation  as  to  the  real  estate,  notbeipg 


Sect.  12.  Cancelling.  385 


ts 


executed  according  to  the  statute  of  frauds,  and 
that  as  to  tearing  off  the  seals  from  the  first  eight 
sheets^  that  not  being  done  animo  cancelkndi,  was 
no  revocation;  bat  because  the  spiritual  court  had 
sentenced  the  second  will  to  be  a  good  will  of  the 
personal  estate,  his  Lordship  also  held  it  good  to  that 
extent,  and  that  such  legatees  of  personalties  in  the 
first  will  as  are  left  out  in  the  second,  must  lose 
their  legacies ;  but  as  to  such  as  had  legacies  by 
the  first  will  charged  on  the  real  estate,  if  the  same 
legacies  were  devised  them  by  the  second  will,  that 
they  should  continue  chargeable  on  the  real  estate  ; 
provided  such  legacies  were  not  increased  or  enlarged 
by  the  second  will ;  for  though  the  second  will  was 
not  sufficient  in  itself  to  charge  the  real  estate,  yet 
since  the  real  estate  remained  well  devised  by  tlie  first 
will,  they  should  be  still  secured  by  that  real  estate ; 
for  they  were  not  devised  out  of  laud  like  a  rent,  but 
only  secured  by  land,  which  before  was  well  devised ; 
but  as  to  the  new  absolute  personal  legacies  devised 
by  the  last  will,  they  should  be  chargeable  only  on  the. 
personal  estate ;  and  should  have  the  preference  in 
being  first  paid  out  of  the  personal  estate,  before  the 
other  legacies  in  the  first  will  charged  upon  the  real 
estate,  because  they  had  several  funds  out  of  which 
they  might  be  paid — ^the  personal  legacies  in  the  last 
will  out  of  the  personal  estate,  which  was  well  devised 
by  that  will ;  and  the  legacies  charged  or  secured  upon 
the  real  estate,  which  was  devised  by  the  first  will,  out 
of  the  real  estate. 


In  the  cases  last  produced  tlic  mere  mechanical  act  WhateW- 
of  tearmg  is  shewn  to  be  equivocal,  and  to  yield  to  admissible 
the  inference  of  an  intention  not  to  revoke  arising  mine  the 
from  other  circumstances.     Parol  evidence,  therefore,  Lnd  wurt* 


t4 


B^ocattoti  of  ^, 

^y  W  and  seal ;"  ^Viicb  ^tU  ^^^^^,,  of     ^^ 

Jcordlng  to  the  statute.  _^  .^  ^,.^,^e^^  ^^ 

The  testator  being  aft«t.'      "•f^:tTveve-^^J^. 
other  trustees  to  his  .Vfe,         ..  hee^  ^,  ,.e  ^^^^^^ 
tions  iu  his  wiU,  sent  for      ,„ve  Pj     ^^^  ,^^t   e  ^^^ 

tions  to  prepare  a  dra-    . ,  >' ^J^^  istab^V^^f^^^ed  by 
Will,  .vhich  the  scnv    ,,  ic''^^^^  to  be  ^eje  ., 

talor  read  it  over        ^  ^^''''^^i  of  ^^^  ^^f  co^tt* 
toit;and,tbir     .<^ »»?  "^^etal  t^'^*^^"  d  t^  ^'^^ 
pulled  out  of    ,..^  .0  tbe  ^  .,,,tentio«'  ^^^cted  b«t 
seals  from       y '^"'^^rifct  *<»  "7         \,ecn  P^\         orao 

i'^^^      b»t  that,  .^f  ^ol  ^^^^'^ccoinP^i^^!? 


seeing, 

says' 

sav 

n 


^o< 


toca*'^  '"*^  .^  to  ca»^--'     .  ^  ye*  "     ,- 
\^«  a  *^S*»  *°   ^o  case  baB  J        j^ie 
.  s**e«  »     ^rtde»t'  ^  ,     A  sceto  to  ir» 

..«»     Ot    W^     "^^ 

^^  ^^^      J  Kifos^*^  Are  ottt^'    ,.1  anrt 


Cancelling.  327 

Uh  his  hands^  rumpled  it  together^ 

'  -e,  but  it  fell  off.     M.  W.  took 

>cket.     The  te&tator  did  not 

ued  to  have  ;somc  suspicion 

^\  hat  she  \v;as  at^  to  which  she 

iisNvcr.     The  testator  afterwards 

souid  not  be  bis  will,   and  bid  her 

which  she  replied^    '^  So  I  wijl^  when 

made  another  ;"  but  afterwards,  upon  fCr 

.  /enquiries^  slie  said  she  had  destroyed  it.  . 

The  testaitor  afterwards  told  another  person  that  hj$ 
bad  destj'oyed  his  will ;  that  he  should  make  no  otli,er 
until  he  had  seen  his  brother  J.  M.  and  desired  the 
person  to  tell  his  brother  §o,  and  that  he  wanted  to 
see  hira.  He  afterwards  wrote  to  his  brother,  saying, 
"  I  have  destroyed  the  will  which  I  majlc ;  for  upon 
fierious  consideration  I  was  not  easy  in  my  mind  about 
the  will ;''  and  desired  him  to  come  down,  saying,  '^  If 
1  die  intestate,  it  will  cause  uneasiness."  The  testa^ 
tor  however  died  \yithout  making  another  will.  The 
Jury,  with  the  concurrence  of  the  Judge,  though^ 
this  a  sufficient  revocation  of  the  will ;  in  which  opi- 
nion |jord  Chief  Justice  I)e  Grey  and  the  whole  court, 
upon  a  motion  for  a  new  trial,  concurred  ;  the  Chief 
Justice  observing,  that  this  case  fell  within  two  of  the 
specific  acts  described  by  the  statute  of  ffauds  ;• — it  was 
))oth  a  burning  and  a  tearing ;  and  that  throwing  the 
Villi  on  the  fire  >vith  an  intent  to  burn  it,  though  it 


(2)  Tearing  is  a  sufTicicnt  revocation  Trithin  the  statute  without 
cancelUng  by  tearing  off  the  seal,  if  the  act  be  accompanied  by  any 
(Circumstance  demonstrative  of  the  intent  to  revoke.  See  Bibb  op 
4^01.  of  Mole  V,  Thomas^  Blackst.  I^p.  lO^S. 


•  S23 


Revocation  of  Wills. 


Chap.  II. 


vrR%  very  slightly  singed  only,  and  fell  off,  was  suflS- 
cient  within  the  statute. 


A  cancel- 
led will  U 
not  neces- 
•arily  re- 
Tived  by 
thede- 
straction 
of  a  snb- 
stitaled 
wilL 


It  has  been  observed  in  a  former  part  of  this  trea- 
tise, in  commenting  upon  the  caseof  Onyons-D.Tyrer, 
that  the  cancelling  is  an  act  not  necessarily  operating 
as  the  revocation  of  a  will ;  it  is  a  circumstance  pre- 
sumptively indicating  and  expressing  the  intention, 
and  presumptively  also  the  execution  of  that  inten- 
tion ;  but  it  may  be  explained  away  by  particular  cir- 
cumstances. In  Onyons  v,  Tyrer  the  act  of  cancelling 
was  in  some  sort  merely  conditional ;  it  was  for  the 
purpose  of  making  way  for  another  disposition,  and 
only  for  that  purpose ;  and  that  disposition  being  never 
legally  effectuated,  the  act  of  tearing  the  first  will 
being  unaccompanied  with  any  absolute  intention  of 
revocation,  was  held  to  be  inoperative.  But  where 
the  act  of  cancelling  has  not  such  immediate  reference 
to  another  disposition  by  a  new  will,  but  is  done  npon 
grounds  of  absolute  dissatisfaction  with  the  will  al- 
ready made,  the  first  will  shall  not  be  revived  by  the 
cancelling  or  destroying  of  a  second. 

If  indeed  the  first  will  could  be  revived,  after  hav- 
ing been  deliberately  cancelled  and  its  efficacy  de- 
stroyed, by  the  cancelling  of  a  subsequent  will,  as  well 
might  a  will  de  novo  be  made  by  courts  of  justice  for 
a  party  deceased,  out  of  mere  facts  and  conjectures. 
There  is  a  gieat  and  manifest  difference  between  per- 
mitting the  act  of  cancelling  to  be  qualified  by  refer- 
ence to  the  accompanying  facts,  which  may  shew  it  to 
bave  been,  done  prospectively  and  in  subserviency  to 
a  fresh  testamentary  disposition,  and  permitting  proof 
of  altered  intention  inferred  from  the  cancelling  of  a 
second  will^  to  re-establish  the  prior  will  after  it  has 

2 


Sect.  12.  Cancellifig.  389 

been  once  deliberately  and  unconditionally  cancelled. 
This  would  be  a  republication  by  implication^  which 
we  have  the  authority  of  Lord  C.  J.  Parker*^  after- 
wards Lord  Macclesfield,  for  saying,  cannot  be  done 
since  the  statute  of  frauds. 

The  case  of  Burtensbaw  v,  Gilbert'  will  exemplify 
the  observation  just  above  made.  There  the  testator^ 
in  1759,  duly  executed  his  last  will  and  testament,  and 
also  a  duplicate  thereof,  but  at  the  same  time  declared 
that  it  was  not  a  will  to  his  mind,  and  that  he  should 
alter  it.  In  1761  he  made  another  will,  which  was 
also  duly  executed ;  the  devises  in  which  were  different 
from  those  in  the  will  of  1759;  and  at  the  end  of  it 
there  was  a  declaration  bv  which  he  revoked  all  for- 
mer  wills.  After  executing  the  latter  will,  the  testator 
took  one  part  of  the  old  will  in  his  hands,  tore  off  the 
name  and  seal ;  and  directed  the  person  who  had  made 
the  new  will,  to  cut  off  the  names  of  the  witnesses  to 
the  old  one,  which  he  did  in  the  testator's  presence. 
The  testator  at  the  same  time  said  that  a  duplicate  of 
the  former  will  was  in  the  hands  Df  W.  a  devisee 
therein.  He  then  delivered  the  new  will  to  the  person 
that  made  it,  requesting  him  to  take  it  away  with  him 
to  his  house,  and  keep  it,  for  reasons  which  he  men- 
tioned. Afterwards  a  principal  devisee  in  both  of 
these  wills  died ;  soon  after  which  the  testator  sent  for 
the  last  will,  and  in  1762  that  will  was  returned  to  him. 
The  testator  before  his  death,  sent  for  his  attorney  to 
make  a  new  will,  but  became  senseless  before  he  ar- 
rived. On  his  death,  one  part  of  the  will  of  1759^ 
and  also  the  will  of  1761,  were  found  together  in  a 
paper^  both  cancelledr    The  other  part  of  the  will  of   • 

'  Com,  SS5-  !  Cowp.  49. 


330  fievocalion  of  Wills.  Chap.  IL 

1759  was  found  uncancelled  in  the  tcstator*8  room^ 
among  other  deeds  and  papers  :  how  it  came  there  did 
not  appear  (3) ;  but  W.,  a  devisee  therein,  was  in  the 
house  when  the  searches  were  made.  The  question 
was,  whether  the  testator  died  intestate  or  not ;  thai 
is,  whether  the  wiJl  of  1759  was  revoked  ?  And  it  was 
held  that  the  will  of  1759  was  revoked ;  first  by  the 
new  will  of  1761,  which  was  a  complete,  legal,  and 
effectual  will ;  and  would  have  revoked  the  former, 
whether  it  had  been  cancelled  or  not,  because  at  the 
end  of  it  there  was  a  declaration  revoking  all  former 
wiHs ;  secondly,  because  the  testator  had  actually  caiiT 
'  celled  the  will  of  1759, 

4 

¥  ^  ^u^       This  case  also  confirms  the  dictum  of  Sir  Thomas 

|or  makes 

^"P****^^**'  Powis,  at  the  end  of  the  case  of  Onyons  v.  Tyrer', 
^h^"  ?*'  ^^^^  ^^  ^  ^^^  having  duplicates  of  his  will,  cancels 
oftheother  one  of  such  duplicates  with  the  intention  of  destroy* 

i*  destroy-    ,  *  ^ 

^d.  ing  his  will,  this  is  a  good  revocation  of  the  wholt 

will. 

'  1  p.  \yins.  345, 


Of  the  pre.       (3)  la  a  yery  recent  case  ia  chancery  it  was  held,  that  where  a 

tfumption 

from  find-    testator  cancels  the  part  in  his  custody,  the  strong  legal  presnmpt 

eefled^a^d*  ^'^"  ^*  *^*'  ^^*  duplicate  in  the  possession  of  another  was  not  meant 
an  uncan-  to  preyail — That  if  both  are  in  the  possession  of  the  testator,  the 
one  cancelled,  and  the  other  uncancelled,  the  presumption  of  re- 
Tocation  still  holds;  but  it  has  less  strength. — ^That  if  both  are  in 
the  testator'ff  possession^  the  one  oHered  and  cancelled,  the  other 
in  statu  qup  priu;,  the  presumption  against  the  operatire  existence 
of  either  may  still  remaip,  but  with  a  strength  yet  inore  diminished. 
It  seems  to  have  been  the  doctrine  of  that  case  that  either  of  thes0 
predicaments  is  enough  to  constitute  a  prima  facie  case  for  the  heir, 
so  as  to  throw  the  burthen  of  proof  on  the  doTisee,  who  b  to  enf 
counter  the  presomption  by  evidence  of  contrary  intentipni  see 
PenbertoH  v.  Pemhertjn^  13  Vez*  jun.  2^ 


Sect.  13.         Alteration  and  Eraswe.  ^31 

In  Burtenshaw  v,  Gilbert  the  first  will  was  can- 
celled ;  but  it  has  been  decided^  that  where  a  second 
viQ  is  made^  the  first  remaining  uncancelled^  and  af- 
terwards the  second  will  is  cancelled,  the  first  is  in 
force  as  a  good  will  at  the  testator's  death.  Thus  in 
Goodright  v.  Glazier^  where  a  testator,  having  made  a 
will  of  lands,  and  afterwards  given  the  same  lands  to 
the  same  person  by  another  will,  omitted  to  cancel  the 
former,  but  before  his  death  cancelled  the  Ifiiter,  and 
both  were  found  in  his  custody  at  his  decease,  the 
second  cancelled,  the  first  uncancelled,  the  first  will 
was  held  to  be  eflfectual ;  the  court  observing  *^  that  a 
will  is  ambulatory  till  the  death  of  the  testator :  if  he 
lets  it  stand  till  he  dies,  it  is  his  will ;  if  he  does  not  suffer 
it  so  to  do,  it.is  not  his  will.  Here,  though  the  testa- 
tor made  two  wills,  yet  the  second  will  never  operated ; 
for  it  was  only  intentional,  and  the  testator  changed ^ 
his  intention  ;  and  cancelled  the  second  so  that  it  had' 
no  eflect :  it  was  indeed  no  will  at  all,  being  cancelled 
before  his  death :  then  the  former^  which  w^9  nevef 
cancelled,  stood  as  his  will/' 


Section  XIII. 

^teratiqji  and  Erasure. 

A  WILL  is  not  revoked  by  filteration  or  erasure 
beyond  the  particular  object  of  such  alteration  or 
erasure ;  though  this  seems  to  have  been  a  poin^ 

f  4  Burr.  251^.  an^  see  the  ^^o\  44  Ass.  pi.  36. 


332  *       Itevoeation  t>f  Wills.  Chap.  II. 

never  precisely  in  judgment  before  the  case  of  Lar- 
king V.  Larkins^  which  was  lately  decided  in  the  Court 
P*5^""*^«  of  Common  Pleas  *.     We  must  be  careful,  however, 

in  the  ef-  '  ' 

feet  of  ai-   not  to  coufound  erasure  with  alteration:  since  the 

teratipn 

and  mere    latter,  if  it  consists  in  making  any  new  gift  ordispo- 
alteration    gitioD,  is  to  that  extent  another  devise,  and  will  clearly 

being  a  . 

fresh  exer-  require  the  will  to  be  re-executed  accordinir  to  the 

ciseofthe  m 

disposing    Statute.     The  case  of  Larkins  v.  Larkins,  was  in  effect 

power  1*0-  jf  „ 

qoires  the    aS  foUoWS : 
win  to  be 
ra-ezecDt- 

eflwtto^^       William  Larkins  by  his  last  will,  duly  executed, 
tile  altera-  devised  hifi  lauds  in  M.  to  his  brother,  John  Pascall 

tion,  if  of  ' 

freehold     Larkins^    Samuel    Enderby  the  younger,  of  Alder- 

cscaie.  ^^ 

raanbury,  in  the  city  of  London,  Esquire,  and  George 
Smith,  of  Lincoln's  Inn,  in  the  county  of  Middle- 
sex, Esquire,  their  heirs  ^and  assigns,  upon  trust;  to 
sell  the  same  lands  for  the  purposes  in  the  will  men* 
tioned.  He  also  gave  the  residue  of  his  estate  andef^ 
ftcts  to  the  same  persons,  and.  appointed  them  hii 
executors  and  the  guardians  of  his  daughters.  After 
this  will  was  executed,  the  testator,  with  his  own 
band,  made  the  following  alterations :  in  the  first  de- 
vise to  the  three  trustees,  the  words  ''  the  younger" 
and  "  George  Smith,  of  Lincoln's  Inn,  in  the  coun- 
ty of  Middlesex,  Esquire/'  were  struck  out  by  a  pen 
drawn  through  them  :  in  the  bequest  of  the  residue, 
the  words  ''  the  younger"  and  "  George  Smith,  their 
heirs,  executors,"  were  struck  out ;  but  over  the 
words  ''heirs,  executors,"  was  written  the  word 
^'stet;"  in  the  clause  appointing  guardians,  the 
words  "the  younger"  and  "George  Smith/'  were 
struck  out;  and,  lastly,  in  the  clause  appointing  exe- 
cutors, the  words  "the  younger"  and  "George 
Sinith,"  were  struck  out.    The  testator  never  in  any 

*  BBos.  et  Pull.  Id. 


Sect.  IS.        Alteration  tmd  Erasure.  S33 

manner  re-executed  or  re-published  bis  ivill  after 
making  the  above-mentioned  alterations.  And  the 
question  was^  whether  the  devise  of  the  real  estate 
to  be  sold  was  revoked^. by  the  testator's  having 
struck  out  the  name  of  George  Smithy  one  of  the 
trustees^  after  the  execution  of  the  wilL 

The  ground  upon  which  it  was  contended  that  it 
was  revoked  was  mainly  this,  that  after  devising  the 
same  estate  to  two  persons,  by  revoking  that  devise 
as  to  one,  the  testator  had  necessarily  altered  the  es- 
tate of  the  other  by  enlarging  it ;  and  that  if  it  could 
operate  at  all,  it  must  operate  as  a  n&w  gift ;  for 
whatever  alters  either  the  quantity  or  quality  of  the 
estate  of  the  devisee  must  be  considered  as  a  new  de- 
vise. This  position,  however,  in  which  the  strength 
of  the  argument  for  the  total  revocation  consisted, 
was  positively  denied  by  the  court ;  by  whom  it  was 
observed,  that  in  a  court  of  law  the  trustees  must  be 
considered  as  joint  tenants  in  fee;  that  whatever  al- 
teration in  ihe  interest  of  the  other  trustee  was  ere-  • 
ated  by  this  erasure,  it  was  an  alteration  not  arising 
from  a  new  gift,  but  merely  from  a  revocation.  But 
Mr.  Justice  Chambre  put  the  point  thus  :  the  devi- 
sees being  joint-tenants,  are  seised  per  my  et  per  tout; 
but  if  one  joint-tenant  die  in  the  life-time  of  the  tes- 
tator, the  other  joint-tenant  takes  the  whole  of  the 
estate,  though  it  never  vested  in  him  during  the  life 
of  the  testator ;  the  reason  of  which  is  that  the  origi- 
nal devise  is  stifficient  to  pass  the  whole  interest  (2). 


(^)  See  Page  v.Ftoge,  3  P.  Wm9.480.  Man  v.  Mao,  tStiange, 
(K)5.  Mr.  Justice  Chambre  seems  to  hare  put  the  decision  of  this 
case  upon  its  safe  ground,  viz.  that  the  will  was  not  altered  by  the 
^nrar^  as  it  waa  made  to  cany  ao  aore  thanit  was  origioallj 


334  Revocation  <ff  Wills.  Cukf:  IL 

Had  this  been  the  case  of  a  tenancy  in  common^  upon 
the  erasure  of  one  name^  the  remaining  two  woold 
take  no  more  than  the  two-thirds  of  the  estate  (3)^ 

An  erasure  of  k  part  of  a  will,  therefbre,  do^^s  not 
necessarily  operate  as  a  revocation  of  the  ^tbole. 
And  it  is  always  to  be  recollected  that  the  statute  of 
frauds  gave  no  new  or  positive  efficacy  to  these  sym- 
bolical modfes  of  revoking  sL  will,  but  left  them  upon 
the  same  footing  as  they  stood  at  common  law^ 

Short  on  the  demise  of  Gastrell  v.   ftnith,  which 

*  SeeCarthew.  81. 


framed  to  carry,  since  each  joint- tenant  takes  the  whole  estate. 
But  it  would  be  a  very  ditferent  case  If  ab  crastire  addOd  tc  tHo 
quantity  of  interest  carried  by  the  will :  as,  sifppose  the  words  ^  f<ff 
and  during  his  life,'  after  a  gift  by  a  testator  of  alk  hb  freehold 
estate  to  B«,  to  be  erased,  thus  converting  an  estate  for  life,  iato^ 
fee.  And  even  if  the  erasure  only  change  the  quality  of  the  estate, 
it  would  seem  to  be  a  fresh  exercise  of  the  disposing  power^  and 
to  require  a  fresh  execution ;  as,  if  after  a  gift  to  two  and  their 
heirs,  the  words  *  ecpially  to  be  divided  bettrcen  theto'  were  to 
be  struck  out,  this  would  not  be  merely  a  revocation  but  an  altered 
ilevise. 

(3)  Where  a  devise  is  to  several  as  tenants  in  common,  aadone 
dies  in  the  life-time  of  the  testator,  the  devise  to  him  becomes 
lapsed,  Bag^vell  v.  Dry,  i  P.  Wms.  700.  and  Page  r.  Piige,  469. 
But  if  a  testator  devise  to  A.  B.  and  C.  as  tenants  iu  common,  and 
«£  the  time  of  the  devise  only  C.  is  living,  although  G.  will  not  taks 
the  whole  estate^  yet  there  is  no  lapse^  properly  speaking,  of  the 
shares  intended  for  A.  and  B. ;  but  they  pass  w  ith  the  residue,  or 
go  as  if  they  had  not  been  mentioned.  If,  however,  the  devise  be 
to  a  class  of  persons,  generally,  as  to  ti  e  sisters  of  T.H.,  and  oolf 
one  out  of  several  was  living  at  the  time  of  the  devise,  who  snif  i^M 
.the  testator,  auch  nurviYor  becomes  intitled  to  tli«  whole*  I>^ 
and  Stewart  v.  Shoffieldj  13  Eu^  636. 


St:GT.  13.         Alteration  arid  EraiUre.  335 

was  determined  a  few  years  ago  in  the  Co&rt  of 
King's  Bench  ^,  was  the  case  of  an  erasure  of  tlie. 
name  of  one  of  the  trustees^  accompanied  by  the 
additional  fact  of  the  substitution  of  others  in  his 
place.  There  a  testator  devised  lands  to  two  trustees^ 
in  trust  for  certain  purposes^  by  a  will  duly  executed 
and  attested  ;  and  he  afterwards  struck  out  the  name 
of  one  of  those  trustees  and  inserted  the  names  of 
two  others.  The  will  was  not  afterwards  republished, 
but  the  court  held  that  his  intent  appearing  to  be 
only  to  revoke,  by  the  substitution  of  another  good 
devise  to  other  trustees,  as  such  new  devise  could  not 
take  effect  for  want  of  the  due  execution  of  such 
altered  will  under  the  statute,  it  should  not  operate 
as  a  revocation  ;  or,  at  most,  it  oould  only  operate  as 
a  revocation  pro  tan  to,  as  to  the  trustee  whose  name 
was  obliterated.  Here  it  was  said,  in  support  of  the 
revocation,  that  the  insertion  of  the  two  new  trus- 
tees in  the  room  of  the  one  whose  name  was  obli* 
terated,  distinguished  this  case  materially  from  those 
of  Larkins  v.  Larkins,  and  Humphries  v,  Taylor''; 
because  it  manifested  the  devisor's  intent^  that  the 
remaining  old  trustee  should  not  take  alone. 

But  the  court  observed,  that  the  facts  of  the  case 
plainly  shewed  that  the  testator  had  no  object  but  to 
change  his  trustees ;  and  it  would  be  unreasonable 
when  he  had  not  by  any  thing  he  had  done  indicated 
a  disposition  to  dispose  of  his  lands  to  different  pur- 
poses from  those  declared  by  his  will,  to  infer  that  he 
designed  that  his  will  should  become  inoperative,  and 
so  to  let  in  his  heir  at  law  by  what  he  did,  rather  than 
.  to  conclude,  that  he  thought  he  had  by  the  alterations 

•  4  East,  419. 

^  6  Bac.  Abr.  tU.  WiUf  and  Test.  363.  Edit/  Gwyllim. 


336  Revocation  of  Wills.  ChapH. 

introduced  made  a  valid  disposition  of  his  est&te  to 
the  new  trustees,  and  had  no  design  to  alter  his  will 
except  so  far  as  such  obFiteration  and  alteration  coutd 
effectuate  that  purpose,  by  substituting  the  persons 
wliose  names  he  interlined  in  the  stead  of  him  whose 
name  was  struck  out.  If,  then,  the  testator  meant 
no  revocation  but  by  means  of  that,  which  he  through 
mistake  supposed  to  be  a  valid  disposition  to  others, 
and  had.no  intention  to  revoke  by  the  obliteration 
he  has  made,  but  by  an  effectual  substitution  meant 
to  be  made  of  others  in  the  room  of  him  whose  name 
was  so  obliterated,  the  case  must  be  governed  by  that 
of  Onyons  v.  Tyrcr. 

But  supposing  the  obliteration  of  the  name  of  the 
one  trustee  to  have  revoked  the  devise  as  to  him,  slill 
the  heir  would  not  be  let  in,  for  it  might  be  still  cod; 
tended  that  the  effect  of  the  obUteration  in  this  case 
was  at  most  to  revoke  only  the  devise  to  that  trustee^ 
whose  name  was  struck  out ;  and,  therefore,  givinj  'o 
that' obliteration  its  full  effect,  it  would  still  leave 
the  devise  to  the  other  trustee  in  full  force,  and  com- 
petent to  sustain  all  the  trusts  of  the  will  in  exclu- 
sion of  the  heir  at  law. 


Section  XIV. 

Mistake. 

PAROL  and  exb*in8ic  evidence  to  control  an  ex- 
press revocation,  or  to  effectuate  an  alleged  inten- 
tion to  revoke,  not  manifeeted  by  any  act  of  ^  tes- 


SscT.  14.  Mistake.  387 

tator^  ought  not^  in  general^  to  be  received;  and 
the  difference  is  very  plain  between  the  admission 
of  such  evidence  to  contradict  what  is  expressed^ 
or  establish  what  has  no  support  from  any  other 
indications^  and   its  admission   for  the  purpose  of 
explaining^  by  accompanying  acts  or  declarations, 
some  outward  sign  of  a  revoking  intention,  equivocal 
in  its  nature,  as  the  acts  of  cancelling,  obliterating, 
and  tearing,  above  considered.     But  even  express  re- 
vocations have  been  permitted  to  be  controuled  by 
collateral  evidence,  when  that  evidence  has  been  fur- 
nished by  the  instrument  itself,  as  where  the  reasons 
given  by  the  testator  for  the  revocation  of  a  former 
will  are  professedly  founded  upon  a  mistaken  appre-  Whmm 
bension  of  facts.  Campbell  if.  French^  is  a  case  of  press^y'^^ 
this  sort ;  which  though  decided  in  a  Court  of  Equity,  d«r  an^ob- 
proceeded  upon  a  principle  of  common  law.     There  appreSlSl 
the  testator  by  his  will  gave  legacies  to  A.  and  B,  de-  ficts^^the 
scribing  them  as  grandchildren  of  C.  and  their  resi-  fST*****" 
dence  to  be  in  America ;  and  by  a  codicil  he  revoked 
these  legacies,  giving  asareasofi,  that  the  legatees  were 
dead;  but  the  supposition  as  to  that  fact  being  errone^ 
ous,  the  legatees  were  held  to  be  entitled  under  the  will, 
upon  proof  of  identity  (1 ).     But  where  a  testatrix  by 

"  3  Vez.  Jun.  321. 


(1)  The  case  mentioned  by  Cicero^  ia  his  Treatise  de  Oratore, 
lib.  1.  c.  38*  has  been  often  cited,  and  relied  on^  as  a  sort  of  autho* 
nty  ID  our  Courts,  more  especially  in  those  where  the  ci?ii  law  is 
taken  as  a  guide,  for  admitting  eyidence  of  this  mistake  of  facts  to 
affect  the  Talidity  of  a  testamentary  disposition.  We  are  to  ob- 
serre,  howe? er,  that  in  that  case  the  error  was  occasioned  by  paU 
pable  misfepresentatipn,  and  that  such  misrepresentation  was  the  im« 
mediate  and  sole  impelling  motive  with  the  testator  for  altering  his 


338  .  ^         Revocation  of  Wills.  Chap,  lli 

codicil  gave  to  A.  the  legacy  which  she  had  given  by 
her  will  to  the  children  of  B.  prefacing  such  altera- 
tion thus,  ''  As  I  know  not  whether  any  of  them  are 
alive,  and  if  they  are  well  provided  for,"  though  they 
were  in  fact  living>  A.  was  nevertheless  held  to  be  en- 
titled, the  words  above  cited  being  construed  to  mean 
that  if  they  were  living  they  were  well  provided  fon 

The  mi*-  .  But  before  such  express  revocation  can.be  vacated 
should  ap-  iipon  such  grouuds,  it  ought,  I  conceive,  to  appear 
in  that       very  distinctly,  that  the  mistaken  feels  were  the  impel- 

wfaich  con-  *f  •/  IT 

stitnted      Hnfi^  motivcs  (2)  to  the  revocation ;  and  it  must  be  re- 

tlie  impel-  O  V    /  > 

ling  mo-     membered,  that  in  the  Attorney  Greneral  v.  Lloyd^ 

tivetothe      •••»,.,  ,  ii** 

revocation  Lord  Hardwickc  observed,  that  '^  it  is  a  very  nice 
thing  to  say  that  because  the  reason  a  man  gives  for  his 
devise  is  false,  that  therefore  his  devise  shall  feil,  and 
how  far  that  will  extend  I  cannot  say/'    The  case  of 

*»  3  Atk.  552. 


wiU.  ^^  What  cause  (says  Cicero)  could  be  more  important,  than 
Oiat  of  the  soldier,  whose  death  beiDg  announced  at  home  bj  t 
false  messenger  from  the  army,  the  father,  trusting^  the  report, 
made  another  his  heir,  and  died."  There  was  also  anothet  qnestion, 
arising  upon  that  case,  on  the  principles  of  the  citU  law,  viz.  whe- 
ther a  son  could  be  disinherited  of  his  patrimony,  (for  by  that  law 
he  had  an  inchoate  sort  of  property  in  his  father's  effects),  whom  the 
fkther  had  neither  appointed  heir  by  his  testament,  nor  disinherited 
by  name  ?  And  this  last  reason  seems  to  hare  been  alone  objection 
enough,  as  the  will  was  by  such  omission  what  the  civil  law  deno- 
minated **  testamentum  inofficiosum."  But  the  error  as  to  the  fact 
seems  also  to  hare  been  considered  as  a  good  ground  of  objectioo 
by  Cicero.     See  also  James  v,  Greares,  5  P.  Wms.  270. 

(9)  If  a  man  gires  a  legacy  to  his  wife  by  the  description  of  his 
chaste  wife,  evidence  of  her  incontinence  is  not  admissible.  And  if  a 
testator,  out  of  lore  and  affection  to  a  child,  supposing  it  to  be  his 


Sect.  14.  MiBtake.  9S& 

the  Attorney  General  v,  Lloyd^  was  shortly  as  fol-^ 
lows:-r-J.  M.  hy  his  will,  dated  February  the  8th, 
1734,  gave  particular  lands,  and  his  personal  estate  to 
be  laid  out  in  lands,  to  charitable  uses,  and  by  a  codi* 
cil,  dated  July  13,  1736,  declared  that  if  by  the  mort- 
main act  the  estates  could  not  pass  to  those  uses,  he 
gaye  them  to  M .  B.  and  hie  heirs.  By  a  second  codi- 
cil of  the  17th  of  March,  173&-7,  reciting  that  he  had 
been  advised  that  the  devise  of  his  lands  was  void^ 
gave  his  personalty  to  the  same  charitable  uses,  and 
his  real  estate  to  M.  B.  The  mortmain  act  passed. in 
1736,  and  the  testator  died  the  8th  February,  1737. 
The  advice  upon  which  the  testator  professed  to  pro- 
ceed, appeared  not  to  be  wiell  founded;  for  it  had  been 
decided  in  Ashburnham  v.  Bradshaw'',  by  the  certified 
opinion  of  all  the  Judges^  that  a  devise  of  lands  to 
charitable  uses,  made  before  the  statute  of  mortmain, 
notwithstanding  the  testator  survived  the  statute, 
passed  the  lands. 

But  Lord  Hardwicke  reasoned  thus,  on  the  princi- 
pal case :  '^  That  the  testator  was  so  advised,  was  a 
fact,  in  his  own  Knowledge,  aud  he.gi*ounded  the  de- 
vise in  the  codicil  upon  this  advice,  and  not  upon  the 

*2  Atk.  36.  and  see  the  cases  in  note  1.  Ed.  Saund. 
*  £zcept  Denton  J.  who  was  in  ill  health. 


own,  had  giren  it  a  legacy,  .and  it  turns  out  tha  the  child  was  not 
his  own ;  in  such  a  case,  according  to  the  opinion  of  Lord  Alranley, 
in  Kennell  o.  Abbott,  the  legacy  would  not  be  revoked  by  the  mis- 
take. Bat  where  a  legacy  was  giren  to  a  person  under  a  particular 
character,  which  he  had  fals.ely  assumed,  and  whicji  alone  could  be 

m 

supposed  to  be  the  motive  to  the  bounty ;  as,  3¥.hei;e  a  woman  gave  9. 
legacy  to  a  man  in .  the  character  of  her  husband,  whom  she  de- 
acribed  as  such,  but  who  at  the  time  of  the  marriage-ceremony  with 
lier,  had  a  wife  liTidg,  the  legacy  failed.  Kennell  v.  Abbott,  4  Yej^ 
Jan.  80^. 


S40  Revocation  of  Wills.  Chap.  II. 

reality  of  the  law;  for,  however  that  might  turn 
out,  he  might  be  anxious  to  quiet  a  doubtful  question^ 
and  to  prevent  its  being  litigated  after  his  deaths  by 
settling  it  upon  some  certain  foundation.'*  But  the 
principal  reason  which  weighed  with  his  Lordship 
was^  that  he  doubted  whether  the  new  disposition  by 
the  codicil  was  put  singly  upon  the  point  of  law^  the 
words  of  which  were^  '^It  being  my  intention  that  the 
charity  should  be  continued^  and  being  advised  my 
personal  estate  can  be  given^  I  do,  therefore,  by  this 
codicil,  give  my  personal  estate  to  the  charitable  uses 
before-mentioned;  and  I  do  hereby  give  my  real  es- 
tate to  M.  B."  A  case  was  made  for  the  opinion  of 
the  Judges  of  the  King*s  Bench,  and  that  Court  cer- 
tified in  favour  of  the  devise  of  the  real  estate  by  the 
codicil. 


Section  XV. 

Accident  and  Surprise. 

THERE  may  be  something  also  in  the  circum- 
stance of  a  testator's  being  prevented  by  surprise,  or 
even  by  a  sudden  accident^  when  coupled  with  other 
particulars  in  his  situation  indicating  the  probability 
of  an  intended  revocation,  which  may  be  allowed  to 
operate  a  revocation  of  his  will.  Wells  v.  Wilson  \ 
determined  at  the  Cockpit  in  1756,  on  appeal  from 
the  West  Indies,  lends  support  to  this  supposition ; 
which  case  was  as  follows : 

;  Cit#d  by  Sir  Geo.  Baj^  i0  Sh^hvd  9.  Shepherd. 

3 


Sect.  15,  Accident  and  Surprise.  341 

A.  wrote  his  will  on  one  side  of  a  sheet  of  paper^ 
but  neither  signed  nor  sealed  it.  On  the  other  skle 
he  wrote  another  will^  and  signed  and  sealed  it. 
They  appeared  to  he  hoth  written  at  the  same  time^ 
though  it  seemed  impossible  to  determine  which  had 
been  written  first.  There  was  a  trifling  diflference. 
He  had  provided  for  the  infant  then  in  ventre  sa 
mere^  and  who  afterwards  was  born  in  his  life-time. 
Sometime  after  this  A.  died^  leaving  his  wife  ensient 
with  a  child  which  was  afterwards  born.  The  ques- 
tion was,  whether  the  will  was  thereby  revoked^  as 
the  posthumous  child  was  entirely  unprovided  for. 
Evidence  was  produced  to  shew  that  in  his  roost 
serious  moments  he  had  declared  that  he  had  made 
no  will^  but  was  resolved  to  do  so  on  the  first  oppor- 
tunity^ mentioning  that  the  situation  of  his  family 
required  such  precaution. 

While  he  was  in  this  state  of  mind^  he  had  the 
misfortune  to  receive  his  deatii  wound  by  a  fall  from 
his  horse^  and  in  the  short  interval  between  the  fall 
and  his  deaths  his  thoughts  were  employed  on  the 
making  of  his  will ;  and  accordingly  he  sent  for  a 
professional  person ;  but  losing  his  senses  and  dying 
soon  after^  the  paper  was  all  that  was  found.  The 
great  doubt  with  the  court  was^  whether  the  will  was 
prior  or  posterior  to  the  paper  written  on  the  back 
of  it.  And  in  order  to  come  at  this^  they  adjourned 
the  case  for  six  months^  that  they  might  enquire 
further  as  to  that  fact.  But  this  enquiry  was  fruit- 
less ;  and  therefore  the  Court  directed  that  it  should 
stand  for  argument  on  its  particular  circumstances. 
And  at  length,  the  Lords  of  the  Council,  upon  a  view 
of  the  whole  matter,  and  the  co-operating  argument 
of  a  child's  being  then  unprovided  for,  set  aside  the 


$4^ 


Aevdcation  of  WillM,  Ciikv.  It 

ivill.  The  decision  did  not  turn  upon  the  naked  fkct 
of  the  birth  of  a  child  unprovided  for,  but  upon  that 
and  the  frequent  declarations  of  the  testator ;  the 
state  of  his  mind;  and  his  repeatedly  declared  in^ 
terition  in  the  interval  between  the  faU  and  his 
detftb.'* 


Thft  is  the  manner  in  ivhich  the  judgment  in  that 
ckse  is  accounted  for  by  the  learned  Judge  of  the 
Prerogative  Court,  in  Shepherd  v.  Shepherd.  He 
seems,  however,  to  have  omitted  that  circumstance 
in  the  ^ase,  without  adverting  to  which,  the  pro« 
priety  of  admitting  the  evidence  of  declared  inten** 
tion,  seems  palpably  open  to  the  objections  arising 
from  the  statute  of  frauds,  viz.  the  suddenness  of  the 
accident^  which  was  a  surprise  upon  those  intentions 
80  natural  under  the  circumstances  of  the  testator's 
family  to  have  existed  in  his  mind,  and  which  afforded  a 
fblindation  for  the  reception  of  that  testimony,  which, 
without  such  a  foundation,  has  always  been  rejected 
by  the  better  opinions.  A  case  of  this  sort  is  men- 
tioned in  the  first  volume  of  Roll's  Abridgment\  A. 
made  his  will,  according  to  the  statute,  and  afterwards 
revoked  it  by  parol,  and  then  declared  his  intention 
to  alter  it  when  he  came  to  D.,  •  but  before  he  could 
come  to  D.  ^s  murdered ;  the  will  was  held  to  be 
revoked. 


*614. 


Sect.  16.  Wills  under  Powers.  343 


Section  XVL 

Of  the  Revocation  of  Wills  made  under  Powers. 

IN  a  former  part  of  this  Treatise,  where  the  exe^ 
cution  of  wills  was  under  consideration,  that  part  of 
ihe  subject  was  viewed  in  its  connection  with  wills 
made  under,  and  in  execution  of,  powers :  it  seems 
important  also  to  consider  how  the  law  in  respect  to 
revocations  applies  to  this  description  of  wills. 

It  appears  to  be  a  general,  established,  point,  that  ^q"^^ 
the  instrument  by  which  a  power  is  directed  to  be  ^y  T*", 

•^  *  works  by 

executed,  must  have  the  requisites  which  specifically  ^*  '^'^\ 

^  X  ^    according 

belong  to  its  nature,  and  proper  constitution,  and  Athena- 
be  attended  also  by  all  the  train  of  incidents  which  qualities  of 

such  an 

legally  accompany  it*.  Upon  this  principle  it  is  that  iMtru- 
a  will  made  in  execution  of  a  power,  is,  to  all  intents, 
a  will:  it  is  ambulatory  and  incomplete  till  deaths 
and  alterable  and  revocable  by  cancellation,  or  any 
of  the  methods  whereby  a  will,  in  the  strictest  and 
most  absolute  sense,  is  so  affected.  It  is  also  equally 
clear, that  if  an  appointee  under  a  power  executed 
by  will,  die  before  the  appointer,  the  interest  under 
the  appointment  fails  by  lapse,  as  in  the  ordinary 
cases. 


This  rule  is  universal.     It  extends  to  a  will  of  copy-  ^^  >"  ^^- 

^  -^      spect  to  a 

hold,  which]  though  not  considered  as  the  act  by  wiiiofco- 
which  the  estate  is  transferred,  (that  beins:  the  ope-  though'not 

,  o  1         properly 

ration  of  the  surrender),  is  nevertheless  in  its  own  the  act  by 

which  the 

nature  specifically  a  will,  though  in  its  instrumentary  estate  is 


trans- 
ferred. 


•  2  Frecm.  61. 


8M  Jteiyocatwn  o^  WtUs.  Chap.  11. 

operation  it  is  only  directory  of  the  uses  of  the  snr- 
tender.  Thus,  if  a  copyholder  surrenders  to  the  use 
of  his  will,  and  then  makes  his  will  in  favour  of  A. 
and  survives  him,  the  benefit  is  gone ;  for,  as  a  will, 
the  appointing  instrument  is  inefficacious  till  the 
death  of  the  appointer,  and  if  the  appointee  is  not 
then  in  existence,  the  gift  cannot  take  place  \ 

it  cannot  be  doubted,  that  an  appointee  under  a 
power  must  claim  according  to  the  nature.of  the  iii« 
Btrumetit  by  which  the  power,  is  directed  to  be  eze* 
cuted.  Thus,  if  a  power  is  given  by  deed  to  appoint 
lands  by  will,  and  the  person  to  whom  the  power  is 
given  makes  his  will  accordingly,  and  gives  the  lands 
to  A.  and  his  issue,  which  words  in  a  deed  convey 
only  an  estate  for  life  to  the  grantee,  thotigh  the  de- 
visee takes  properly  under  the  power ;  yet,  because  the 
appointment  is  by  will,  the  words  are  construed  to  con* 
vey  an  estate  tail.  So,  it  is  conceived,  if  it  were  '^  to 
A.  for  ever,"  the  estate  vtonld  be  construed  a  fee  sim* 
pie  for  the  same  reason. 

Upon  the  same  grounds,  such  an  appointment  by 
will,  in  execution  of  a  power,  is  held  io  be  re« 
vocable^;  and  therefore,  though,  where  a  power  is 
executed  by  deed,  unless  a  power  of  revocation  is 
reserved  by  the  deed,  (and  such  fresh  reservation 
of  power  to  revoke- may  be  made  toties  quoties,)  the 
appointment  cannot  be  revoked  (1),  yet  if   it  be 

^  See  the  great  case  of  the  Duke  of  Marlborough  v.  Lord  Go* 
dolphin,  2  Vez.  61. 

""  2  Tez.  77.  S.  C.  ibid.  610.  and  see  Robinson  o.  Hardcastle, 
t  Bro.  C.  C.  30.    Reid  v,  Shergold,  10  Vez.  Jon.  370. 

(1)  Hatcher  o.  Curtis^  %  Freem.  61.     Sach  appointment  bj 


Sect.  16.  •  WUh  under  Powers.  345 

executed  by  vvill  no  such  fresh  power  of  revocation 
need  be  reserved*';  the  nature  of  the  instrument  sup- 
plies it. 

By  the  case  of  Cotter  v.  Layer*,  which  has  been 
already  cited  to  shew  that  a  covenant  entered  into 
for  valuable  consideration  amounts  to  a  conveyance 
in  Courts  of  equity,  and  is  therefore,  in  those  Courts, 
held  a  revocation  of  a  will,  it  also  appears  that,  where 
the  will  works  as  an  appointment  under  a  power, 
it  is  equally  revoked  in  equity  by  such  executory 
contract  under  seal.  In  that  case,  though  the  will 
was  made  in  execution  of  a  power  by  a  married 
woman,  who  cannot  in  strictness  make  a  will  at  all,  (2) 
and  the  conveyance  was  only  in  fieri,  yet  the  first  in- 
strument was  adjudged  to  be  revoked  by  the  second. 

Lord  Hardwicke  decided  the  case  of  Oke  v.  Heath, 

'  Hatcher  v.  Curtis,  2  Freem.  61.  and  see  1  Vez.  139.     1  Bro. 
C.C.  533.     aBro.C.C.  319. 
•  2  P.  Wm«.  6«4. 


p^^'i^^  mm  m 


deed  cannot  be  reroked  without  a  fresh  reserration  of  a  power  in 
the  executing  instrument  for  that  purpose,  though  the  original 
deed  should  expressly  authorize  such  future  revocations,  as  was 
acyttdged  in  the  leading  case  of  Hele  r.  Bond,  Prec.  in  Ch.  474. 

(2)  It  is  true,  nevertheless,  that  if  a  married  woman,  with  the 
consent  of  her  husband,  make  a  will,  the  same  must  be  proved  in 
the  Ecclesiastical  Court,  Mariot  v.  Kinsman,  Cro.  Car.  219.  and 
the  will  of  a  femme  covert  cannot  be  given  in  evidence  until  it  has 
been  proved  in  the  Spiritual  Court;  see  Jenkin  v*  Whitehouse^ 
Bvr-  431.  and  Stone  r.  Forsyth,  JDoug.  707.  where  liord  Mansfield 
says,  if  the  Ecclesiastical  Court  will  not  grant  probate,  the  proper 
course  is  to  appeal  to  the  delegates.  Mr.  Douglas  in  note  (f  150) 
ib.  observes,  that  the  regular  course  in  cases  like  this,  is  for  the  Spi- 
ritual Court  not  to  give  probate  of  the  will,  but  administration  witii 
the  will,  as  a  testamentary  paper,  annexfid.-^^-See  Ros9  v*  Ewer, 
3  Atk.  160.  and  note  (1)  by  M.  Sanders. 


S46  Revocation  of  Wills.  '  Chap.  11. 

agreeably  to  this  doctrine^  declaring  that  the  foanda- 
tion  of  his  opinion  was^  that  wherever  such  a  power 
to  appoint  is  given  to  a  married  woman^  which  she 
executes  by  will^  it  is  subject  to  all  the  qualities  of  a 
will.  She  haSj  said  his  Lordship^  executed  her  power 
by  will^  and  called  it  so  throughout.  The  whole  frame 
is  testamentary.  And  although  this  arises  out  of  her 
power  to  make  a  will^  and  it  is  a  general  notion  of 
law  as  to  powers^  that  any  one  taking  under  the  di- 
rections of  the  wiU^  takes  under  the  power  in  the 
same  manner  as  if  their  names  were  inserted  there  ; 
yet  they  must  take  according  to  the  nature  of  the 
power  and  instrument  taken  together.  And  in  an- 
. other  placed  Lord  Hard wicke  is  more  explanatory  on 
this  particular  point,  where  he  says^  that  the  mean- 
ing of  persons  taking  under  the  power,  as  if  their 
names  had  been  inserted  in  the  power,  is,  that  they 
shall  take  in  the  same  manner^  as  if  the  power  and 
instrument  executing  the  power  had  been  incorpo- 
rated in  one  instrument :  they  shall  take  as  if  all  that 
Avas  in  the  instrument  executing  had  been  expressed 
in  that  giving  the  power.  So  it  is,  said  his  Lordship, 
in  the  appointment  of  uses.  If  a  feoffment  is 
executed  to  such  uses  as  one  shall  appoint  by  will ; 
when  the  \Vill  is  made,  it  is  clear  that  the  ap- 
pointee is  in  by  the  feoffment ;  but  he  has  nothing 
from  the  time  of  the  execution  of  the  feoffment, 
so  as  to  vest  the  estate  in  him.  The  estate  will 
vest  in  him  according  to  the»  nature  of  the  act 
done,  and  the  appointment  of  the  use  from  the  time 
of  the  testator's  death.  This,  therefore,  is  not  a 
relation  so  as  to  make  things  vest  from  the  time  of 
the  creation  of  the  power,  but  according  to  the  time 
of  the  act  executing  the  power  \ 

*  2  Vez.  78. 
^  And  see  Venderzee  v.  Aclom>  4  Vez.  Jon.  771* 


("347  ) 


Suction  XYII. 

Subsequent  Marriage,  and  Children. 

AMONG  implied  revocations,  and,  as  such,  not 
fidling  within  the  statute  of  frauds,  is  that  which  is 
produced  by  a  subsequent  marriage  and  the  birth  of 
a  child  or  children,  on  which  point  the  case  of  Lugg 
v.hugg  (1),  is  said  to  have  been  the  first  affirmative 
decision.     The  point  was  said  to  have  been  after-  2*S?u 
wiurds  doubted,  but  was  at  length  recognised  as  a  JJ***^^e 
rule  of  law*  though  it  received  no  adjudication  as  ^j,^{^®[^ 
to  real  estate  till  the  case  of  Christopher  v.  Chris-  '"P^i*^  ^^- 

*■  vocation  as 

topher  was  determined  in  the  Court  of  Exchequer  ;j|j"  of  * 
in  177  P.     It  appears  from  the  report  in  Ambler,  of  MofperiM>* 

**^  *    ^  nal  estate. 

Parsons  v.  Lanoe,  that  Lord  Hardwicke  entertained 
doubts  as  to  the  applicability  of  this  rule  to  real  es* 
tates,  but  it  has  since  been  carried  to  that  extent, 
if  that  could  be  said  to  be  extending  the  rule  which 
was  no  enlargement  of  its  principle;  for  there  seems 
to  be  no  foundation  for  saying,  that  the  presump- 
tion on  which  it  grounds  itself  is  less  applicable  to 
one  description  of  estate  than  another  (2). 

*  Broivn  v.  Thompson^  3  Eq.  Ca.  Abr.  413.     Parsons  v,  La« 
noe,  1  Vez.  189.     Ambl.  557. 

^  See  4  Burr.  <21 71.  2182.     Dougl.  35. 


(1)  2Salk.  592.     1  Lord  Raym.  441.  by  the  delegates,  amon^ 
whom  was  Lord  Chief  Justice  Treby. 

(2)  It  appears  that  the  rule  under  consideration  was  borrowed  Orinn  and 

eradttala-* 
from  the  civU  law^  and  incorporated  into  our  law,  with  some  hesi- 


348  Sevocation  of  Wills.  Chap.  II. 

J^i^  The  general  rule  was  admitted  in  Brady^  lessee  of 

doctrine  in  Norris  t?/  Cubitt  ^  the  Chief  Justice  at  the  same 

respect  to 

the  admifl-  time  observiniT  that  in  his  recollection  there  was  no 

extrinsic     case  in  which  marriage^  and  the  birth  of  a  child^  had 

to  rebnt     been  held  to  raise  an  implied  revocation^  where  there 

sump^ii.'  had  not  been  a  disposition  of  the  whole  estate  (3). 

In  the  last-mentioned  case^  Lord  Mansfield  expressed 

great  doubt  whether  the  circumstances  of  the  case 

were  such  as  would  raise  the  presumption^  the  testa* 

tor  havings  in  contemplation  of  his  marriage^  settled 

800/.  a  year  upon  his  intended  wife ;  so  that  he  Dot 

only  contemplated  the  change  in  his  situation  to  take 

*  Dongl.  31. 


p^w»*«w^-^ni 


^pti«s  ^  tatioo,  and  by  very  gradual  adoption.  Lord  Kenyon  has  remarked 
the  rue.  that  a  reiy  able  lawyer,  Mr.  Justice  Penrott,  dissented  from  the 
deciiien  in  Christopher  9.  Qiristopher,  lest  the  statute  of  liraids 
should  be  thereby  repealed,  and  haTing  a  jealousy  of  introducsiqg 
the  ciTil  law,  he  resbted  the  force  of  those  arguments  which  found 
their  way  to  the  other  Judges  who  determined  that  case.  But  his 
Lordship  added,  he  was  glad  those  Judges  did  OTsr-rule  his  opi- 
nion, because  no  person  could  wish  that  his  family  should  be  put 
into  such  a  situation  as  to  be  deprited  of  aU  pravision,  and  Aat  the 
secondary  objects  of  his  bounty  should  be  preferred  tp  his  iimundi 
ate  children.  6  T.  R.  58. 
HHiether  ^3)  Lord  Mansfield's  doctrine  does  not  appear  to  hare  been 

tius  dispo-    acted  upon,  and  yet  many  difficulties  must  follow  a  difereat  con- 
tiie^wbol      struction  of  the  rule,  for  if  it  is  applicable  to  cases,  where  the  mar* 
estate  ii       riage  and  birth  ef  a  child  were  not  preceded  by  a  total  disposition, 
to  groand    it  must  either  depend  upon  a  fluctuating  consideration  of  what  was 
****  ■PP'j"     enough  for  the  family  in  each  case ;  or,  if  every  partial  disposition, 
the  rule,      howerer  small, .  is  to  be  revoked  by  these  events,  then  it  must 
rest  upon  this  proposition,  viz.  that  every  man  who  marries,  and 
has  issue,  must  necessarily  mean  all  he  has  in  the  world  to  become 
theirs. 


Sect.  17.  Subsequent  Marriage.  349 

place  after  his  will,  but  actually  provided  for  it,  as 
to  his  wife,  by  his  will,  and  his  Lordship  appears  to 
have  considered  the  rule  as  flexible  to  the  particular 
circumstances  of  each  case,  and  standing  only  on' a 
presumption  of  fact,  which,  like  all  other  presump- 
tions of  the  same  kind,  might  be  rebutted  by  every 
sort  of  evidence.  According  to  this  view  of  the 
principle  of  the  rule,  the  facts  of  the  case  were  ad- 
mitted to  furnish  a  counter  inference  to  the  pre- 
sumption of  the  rule,  which  was  made  to  give  way ; 
and  the  will  was  adjudged  upon  these  grounds,  to  be 
unrevoked  by  the  subsequent  marriage,  and  birth  of 
a  child. 

In  subsequent  cases  the  rule  has  been  considered  xiieprinci- 
as  standing  upon  firmer  ground  than  a  mere  pre-  mie  ac 
sumption   of   fact.      In  Doe -t?.    Lancashire*,  Lord  Lo^rdKen. 
Kenyon  was    of  opinion  that  the   foundation  of  the  ^°°' 
principle  was  not  so  much  a  presumed  intention  to 
alter  the  will,  implied   from  the  circumstances  after- 
wards happening,  as  a  tacit  condition  annexed  to  the 
will  itself  at   the  time  of  making  it — that  the  party 
does  not  then  intend  that  it  should  take  effect  if  there 
should  be  a  total  change  in  the  situation  of  his  fa^ 
mily.     And  Lord  Alvanley,   in  Gibbons  v.  Caunt*, 
expressed  a  disapprobation  of  the  practice  of  receiv- 
ing parol  evidence  to  rebut  the  presumption^  which 
he  seemed  to  think  should  be  considered  as  inevit- 
ably arising  from  the  subsequent  marriage  and  birth 
of  a  child. 

The  decision  in  Christopher  v.  Christopher^  ^went 

*  5  T.  R,  49.  !  4  Yez.  Jun.  84g, 


350  Revocation  of  Wills.  Chap.  II. 

a  little  beyond  former  cases^  not  only  in  carrying  the 
rule  to  real  estate,  but  in  applying  it  also  to  the  case 
of  a  second  marriage  with  children^  where  there 
were  no  children  of  the  first  marriage. 

Whether  By  the  case  of  Gibbons  v.  Caunt*,  it  was  left  a 
revoked  by  qucstion^  and  so  it  still  remains^  whether,  if  a  tes- 
morcchiid-  tator  has  more  children  by  a  first  marriage  born  after 
fiwt  ma*ri.  the  date  of  the  will,  and  bec.oming  a  widower  marries 
the  wm'  again,  and  has  no  child  by  the  second  wife,  the  will  is  re- 
wnd^mw-  voked.  Lord  Alvanley,  however,  observed  that  there 
•ufch'ii''"  was  not  a  single  argument  applying  to  the  feelings 
^""*         of  mankind,  that  did  not  apply  as  much  in  the  case 

before  him  as  in  the  simple  one  of  a  subsequent  mar* 

riage,  and  the  birth  of  a  child. 

It  wajs  held,  however,  in  the  well  considered  case 
ex  parte  the  Earl  of  Ilchester  ^  that  a  second  mar* 
riage  and  the  birth  of  children,  where  tlie  wife  and 
children  were  provided  for  by  settlement,  and  there 
were  childreu  by  the  former  marriage,  which  was  be* 
fore  the  will,  was  a  case  of  exception  to  the  rule  i|i 
question  ;  and  the  will  in  that  case  was  held  not  re* 
voked.  And  this  decision  appears  to  strengthen 
what  was  observed  by  Lord  Mansfield,  in  Brady  v, 
Cubitt,  on  the  testator's  having  in  his  contemplation, 
at  the  time  of  making  his  will,  the  provision  for  his 
intended  marriage ;  and  seems  to  favour  the  doctrine 
of  founding  the  principle  of  these  cases  rather  upon 
presumption  from  intention,  than  a  fixed  and  perpia^ 
nent  rule  of  law. 

The  Lord  Chancellor,  in  tjie  case   last  adverted 


f  4  Yc2  Jan.  840.  f  7  Vez.  Jun.  348. 


Sect.  17.  Subsequent  Marriage,  351 

to,  disclaimed  the  adoption  of  any  general  prin- 
ciple, and  professedly  decided  the  case  before 
him  upon  its  own  particular  circumstances.  He 
thought  it  better  to  express  his  opinion  in  terms 
of  exclusive  applicability  to  the  case,  by  declaring 
that  under  all  the  circumstances  belonging  to 
it,  he  thought  that  the  appointment  was  not  re- 
voked by  the  subsequent  marriage,  and  birth  of 
children. 

The  case  of  Doe  v.  Lancashire  ^  was  that  of  a  VJlli «'.. 
subsequent  marriage,  and  the  birth  of  a  posthumous  JJ^*'^^.*^^^^ 
child :  and,  the  point  there  was,  whether  the  circum-  a  posthu- 

'  '  *  moiis  child 

stance  of  the  child's  being  born  after  the  death  of  the  operate  m 

^  1    1       *  rcvoca^ 

testator,  took  it  out  of  the  rule  that  marriage  and  the  tioD. 
birth  of  a  child  are  a  revocation  of  a  will.     The  ar- 
gument principally  relied  on  against  the  revocation 
was  this,  viz.  that  at  the  death  of  the  testator,  and  be- 
fore the  birth  of  the  child,  one  of  the  circumstances 
which  composed  a  case    falling  directly   within  the 
rule  was  wanting;    and  the  decision  respecting  the 
validity  of  the  will,    ought  then  to  be  made,  as  if 
the  question  had  arisen  during  the  interval  between 
the  death  of  the  testator  and  the  birth  of  his  child ; 
for  the  will  could  not  be  valid  at  the  testator's  death, 
and  rendered  invalid  by  subsequent  extrinsic  circum* 
stances.     Suppose  the  child   had   never  been  born 
alive,    and  the   marriage  and  pregnancy  had  been 
held  to  be  an  implied   revocation,    all  the   devises 
in  the  will  would  then  have  been  revoked  in  favour 
of  a  person  who  never  came  into  esse.     The  great- 
est presumption  that  could  be  raised  from  the  wife's 
pregnancy  would  be  an  intention  to  revoke  when 

»  5  T.K.  49. 


sat  RevocoHan  tf  WUb.  Ciap.  IL 

that  there  ^his  no  distinction  between  k  cbild  ja  ven- 
tre aa  mere,  and  one  actually  born.  He  wonld  add^ 
he  Mid,  one  to  them  from  1  Vez.  8S.  where  in  a  brnid 
given  on  marriage  to  raise  90002.  for  such  chiM  or 
chfldren  of  the  marriage,  as  shomid  he  Ikring  at  the 
death  of  the  ftither  or  mother,  a  posthampns  duld 
vrai  hdd  intitled  to  take  as  coming  within  the  descrip- 
tion. Upon  these  reasons  the  coart  gave  judgment 
fSnr  the  revocation  (7). 

MarriHe       It  sccms,   therefore,  upon  the  above-mentioned 

and  the 

birth  of  a  cases  to  be  wen  settled  that  marriage,  and  the  birth 
eonear,  of  a  child,  are  by  operation  of  hiw  a  revocation  of  a 
^cnti      preceding  will.  And  it  appears  to  be  with  equal  cer^ 


MM* 


tiaiieiit^  was  by  coBftractioa  of  the  lOaad  11 W.  3.  c  ie.«iititlad 
to  them:  .but  iQ  the  sajno  casehe  seenis  to  haro  takoa  it  for  gnntcd 
that  OB  a  descent  the  mean  profits  belong  to  the  intermediate  pos- 
sessor; for  he  directed  that  the  profits  of  the  estate  deioendid 
shottld  be  accoanted  for  hj  the  uncle,  only  from  the  birth  of  the 
posthumoBS  ohihl.  In  Co.  litt.  page  SS,  b.  Lord  Coke  sayi,  ^  If 
a  man  seised  of  lands  in  Ise  h^th  issue  ad^iiahter,  and  dteth^  Ui 
irife  beiiig  ensient  with  a  son,  the  daughter  so weth  the  grouod,  ths 
SOB  is  bom,  yet  the  daughter  shall  have  the  corn,  because  her  «• 
tate  is  lawful,  and  defeated  by  the  act  of  God*"  ^From  which  it 
b  to  be  inferred  that  Lord  Coka  did  not  consider  the  posthumoti 
child  as  entitled  to  any  mean  profits  upim  a  dbfosal.  And  Lsid 
C  J.  De  Grqry  in  9  Wib.  S36«  on  a  question  whether  a  pesfts- 
mons  son  was  actually  seised,  deaies  that  the  posthumous-son,  ia 
<hs  case  of  descent,  can  be  entitled^  to  any  piofits  laceif  ed  bef«rs 
Ills  birth,  and  cites  0  H.  C,  35.  as  an  authority  in  poiaC  See  Mr. 
Haigrafte's  note  to  Co.  Lit.  p.  11,  b. 

(7)  The  Court  agreed  in  dbclaimiog  any  attention  to  ftedeblar* 
ations  of  4he  husband,  because  letting  in  that  kind  of  wtiteos 
would  be  in  direct  opposition  to  the  statute  of  fisnds^  which  was 
passed  in  order  to  piaTent  any.thing  from  dependii^  dther  on  the 
niitAka  or  the  peijury  of  witnesses. 


Sect.  17.  Subsefuent  Marrwge.  955 


tuotjr  iettkd  that  both  these  circvRMtance^inurt  hap-  "JJJ^^^ 
pen  to  produce  such  a  consequence.  In  Ward  v,  ^^JJ^  ^ 
Phillips^  a  will  was  found  which  gave  every  thing  to  J"^*^ 
the  widow.  A  posthumous  child  being  born,  a  suit 
was  instituted  in  the  Eeclesiasticat  Court  to  set  aside 
the  wiH  ;  and  tiie  court  having  decreed  against  the 
will,  that  decree,  on  .appeal  to  the  delegates,  was 
reversed.  Dr.  Hay,  in  commenting  upon  the  case 
obaerves,  that  on  the  side  of  the  first  decree  it  was 
directed  by  Dr.  Gal  vert,  that  as  marriage  alone  did 
not  revoke  a  bachelor's  will,  but  required  the  addi- 
tional consideration  of  the  birth  of  a  ^hild,  the  birth 
of  a  child  or  children  was  to  be  taken  as  the  essential 
and  operative  circumstance,  and'  ought  to  revoke 
a  married  man's  will;  and  for  this  construction 
he  relied  on  the  case  of  Jackson  v.  Hurlock,  be- 
fore Lord  Northington ';  bat  thai  case  went  no 
further  than  to  recognize  the  rule,  that  marriage 
without  issue  did  not  revoke  a  will,  which  rule, 
said  Dr.  Hay,  was  before  established  by  many  cases ; 
but  it  by  no  means  followed  from  thence  that 
the  birth  of  children  would  afect  a  married  man's 
will. 

It  was  further  objected,  continued  ,the  learned 
Doetof,  that  in  the  Roman  law,  by  which  we  proceed 
ia  Uiia  court,  ^e  birth  of  children  operated  as  a  revo* 
cation  of  a  precedent  vrill.  This  is  rightly  stated 
from  the  Roman  law ;  and  it  is  true  that  the  Roman 
law  in  general  guides  our  decrees ;  but  it  guides  our 
decrees  no  farther  than  where  it  stands  uncontra- 
dicted by  the  English  law.  In  the  former,  children 
are  considered  as  having  a  property  in  the  effects  of 
the  fother ;  bat  in  our  law  we  know  of  no  such  things 

0 

8a3 


356  Reoocatum  of  Witts.  Chap.  II 

and  therefore  the  effect  of  the  birth  c^  chikfaren  must 
be  very  different  (8). 

In  Shepherd  v.  Shepherd^    the  case  was  thus: 
Shepherd^  the  testator^  after  some  small  l^;acie8  to 
^  his  collateral  relations^  made  his  wife  his  residuary 

legatee.  After  this  will^  his  wife  was  brought  to  bed 
of  a  daughter  in  1763^  upon  whose  birth  the  testator 
added  a  codicil  to  his  will,  whereby  he  directed  that 
the  legacies  should  be  paid,  and  that  an  annuity  of 
SOOf.  should  be  secured  upon  the  residuum,  and  paid 
to  the  daughter..  The  codicil  and  will  were  found 
together.  In  1765  another  daughter  was  born ;  and 
in  1768  a  son,  who  was  a  posthumous  child,  the  tes- 
tator having  died  about  six  months  before  his  birth. 
These  two  last  children  being  uaprovided  for,  a  suit 
was  commenced  in  equity, .  to  set  aside  the  will,  and 
to  decree  an  intestacy.  And  the  question  on  the  case 
sent  out  of  Chancery  by  Lord  Camden,  for  the  opi- 
nion of  Sir  George  Hay,  Judge  of  the  Prerogative 
Court,  was,  whether  the  subsequent  birth  of  children 
was  a  revocation  of  the  will  That  learned  civilian, 
after  stating  it  to  be  an  incontrovertible  position  set- 
tled by  an  abundance  of  cases,  that  marriage  alone 
will  not  revoke,  held  that  so  the  birth  of  children 
alone  would  not,  unless  under  very  special  circum- 
stances ;  and  accordingly  decreed  the  probate  to  the 
executor. 

Upon  the  whole,  therefore,  it  appears  that  the  doc- 
trine as.  expressly  laid  down  in  Lugg  v.  Lugg,  before 


(8)  See  Dr.  Hay's  judgment  in  Shepherd  v.  Sh^herd,  5  T.  R.  5W 
in  note. 


Sect.  17.  SubsequerU  Marriage.  857 

mentioned  as  the  first  of  this  class  of  cases,  viz.  that 
where  the  revocation  depends  upon  the  alteration  in 
the  testator's  circumstances,  it  must  be  a  total  altera* 
tion^  has  prevailed  through  all  the  subsequent  cases. 
And  that  total  alteration  is  made  to  consist  in  the 
combination  of  the  two  facts  of  marriage  and  the 
birth  of  a  child  or  children. 


But  Dr.  Hay,  in  the  above-mentioned  case  seemed 
also  to  think  that  there  might  be  such  a  total  igno' 
ranee  in  a  testator  of  his  real  situation  as  might  occa- 
sion some  doubt;  according  to  the  case  put  by  Cicero^ 
in  hiff  De  Oratore,  and  which  has  before  been  mien- 
tioned  as  applicable  to  our  law  on  the  same  subject : 
Pater  credens  filium  suum  esse  mortuum,  alteruift 
instituit  haeredem,  filio  domo  redeunte,  hujus  institu- 
tionis  vis  est  nulla.  But  it  has  also  b^en  befoi^e  ob- 
served that  by  the  Romin  law  the  children  W^re  con- 
sidered as  having  a  sort  of  inchoabe  pi^perty  in  th* 
effects  of  the  parent.  Unless  the  testator  shews  fey 
the  context  or  expression  of  his  will  the  existence 
of  such  total  mistake  or  ignorance,  or  professedly 
grounds  Iris  testamentary  disposition  upon  fkcts  which 
he  can  be  shewn  to  have  mistaken,  it  should  seem 
very  strong  to  say,  since  the  statute  of  frauds  and 
perjuries,  that  any  extrinsic  evidence  can  be  admitted 
to  prove  the  intentions  of  the  testator  for  the  purpose 
of  overthroioing  his  will  (9).     Where  the  will  itself 


(9)  The  ioquiatiTe  reader  will  fin|l  the  v^/i^fft^4d^i}^  admissi- 
bility of  eztrinstc  ejidence  to,coijt»)ul  or  explai(ii(Wi|Utfua  instiji* 
meats  treated  of  much^t  length- in  the  iQtr.Q4Mctop^r^|pter  t^  ^ 
treatise  on  the  statute:  of  ffauf^*  «i^^4j^rti^tt1|krl^^f|)tq,fhei£ltef 
against  mUtakes,  in  Sect.  4  o(  QapteyL  , ',^  ^^,^  ^^,  ^  ^,'^  ^_  .   . 


9S8  MeoBehHm  «f  WUti.  C«Ar.  n. 

coi^led  mA  the  fyets  Bktwu  the  miftaken  upprehem^ 
iibn  on  which  t^e  devise  hu  been  gronnded^  the^aae 
hJh  within  the  principle  of  Campbell  t>.  Fi^mch^ 
already  cited  \  And  to  a  caae  ao  citicwMtaneed  per* 
haps  the  principle  on  lAMh  Lord  Kenyon  seemed  m 
great  part  to  ground  his  opinion  in  Doe  v.  I^mcft* 
shire^  may  seem  to  apply;  for  there  ap{»ear8  to  be  a 
sort  of  tacit  condition  annexed  to^  or  accompanying, 
in  legal  consideration^  such  a  devise,  that  if  the  Acta 
were  otherwise  than  apprehended  by  the  testator, 
the  devise  ahouM  not  stand* 

nit  pre  i^  acase  where,  afteru  man  bad  made  his  wiB  wliere- 
Zrre^oob.  ^  ^  ^^^  bequeathed  several  legacies  and  appoint* 
riTc  wHi  ^  ^^  ^^  residuary  legatee,  the  wife  died  leaving 
aeveral  children,  «nd  the  testator  married  again  and 
had  one  child  by  his  second  wife,  and  ufterwards  pe- 
lished  by  sbipwifsd:  together  with  his  wife  and  all  hia 
children,  il  was  decided  by  Sir  W.  Wynne,  4he  jud|ge 
^  the  j^rerc^ative  ^sourt,  that  the  will  waa  not  Te- 
^Foked. 

Aatbe  ciroumstanoes  of  this  case  were  peculiar,  and 
•many  important  principles  occur  in  the  argument,  it 
rshall  be  presented  ^iully  to  the  reader  (10). 

Gemrge  Netterwood  riuMrUy  after  his  marriage  vrith 

^  8  Vss.  Jul.  atu 


to 


« 

CM)  A  Mitectii^  b  bNm  <if  tke  esse  f^^^t  v.  Nflttsr- 
%6ad,  fta  lb.  BfiBi's'fsry  tiAnble  tiM^n  of  ftdkeld's  iU^erte  ; 
to  Miidiaote  4hB  Avtbor  b  fdadtgtilj  indsbttd  fcr  the  sbote 
iMMSlit,  IlkMqjIh  be  btt  ft  pr^ 
MirieB»  iriththsaddMoadf  BioyksMMcmba^ku* 


hfai  llrit  wift  Blosabedi  Imom,  miide  a  wifi  nfiMfAj, 
ntttt  charging  ius  real  estate  ivith  the  paymeat  of  hia 
dehts  and  legacies^  if  hia  penonel  estate  ahould  be 
deficient^  he  gaiFe  some  pecnniaigF.  and  spe.dfle  lega« 
cies,  and  bequeathed  the  residne  of  his  personal  estate 
to  Ills  wife.  He  also  devised  hia  real  estate  to  his  wtfb 
for  life^  witfi  remainder  to  one  George  Netherwped^ 
and  appointed  an  executor  for  his  effects  in  England^ 
and  another  executor  for  his  effects  in  the  West  In- 
dies. His  wife  died  leaYing  aevend  children ;  the  tes* 
tator  married  her  sister  and  had  issue  by  h^^  one  son. 
He  afterwards  embarked  for  England  irom  Jamaica^ 
with  his  second  wife^  herson^  and  dl  the  children  by 
the  f<Nrmer  marriage.  The  ship  in  which  they  em- 
barked was  never  afterwards  heard  of^  and  was  ad* 
mitted  to  be  lost 

The  win  was  proved  by  the  esaciiitor  in  England^ 
and  Irjf  the  inventory  of  the  property  bebnging  to  the 
deceased  it  appeared  to  amo<int  to  about  80001.,  the    • 
legacies  amounted  to  rather  more  than  9001. 

The  exectttof  who  proved  Ih^.will  was  afterward* 
cited-by  the  neirt  of  bin  to  prave  it  in  mAfimn  form, 
or  to  shew  cause  why  it  should  not  be  d^clar^d  in- 
valid. 

Sir  WiUiwn  Soott  aad  Doctor  NichoU  on  this  ooca* 
•m  argued  in  supj^ntof  .the  will.  They  contended 
that  in  this  case  it  was  not  revoked  by  the  second  ataT' 
riage  and  birth  of  a  child.  That  although  it  might  be 
acbuitted  a«  a  gndcnl  [^ad)^  4hai  4heee  «re9|i  did 
v^vflkc  a  win  on  the  ffrcMwiption  thirt  np^o  awofc  a 
<0tal  alteration  «f  his  ei^lioPI  the  testator  did  not  <c<m- 
tiane  to  faste  the  wme  intf  »tiofi/  yet  that  such  prer 


360  Heooeation  of  WUU.  Chap.  II 

sumpticw  was  liable  to  be  repefled  by  circuoistances ; 
and  that  if  it  appeared  to  be  his  intention  that  the  will 
should  standi  marriage  and  the  birth  of  a  cbild  would 
not  destroy  it.  They  observed  that  all  presumptive 
ce vocations  were  stricti  juris^  and  must  be  wholly  in* 
eoDsistent  with  the  deceased^s  intention  to  dispose  of 
his  property  according  to  his  will.  That  the  general 
principle  of  these  revocations  is^  that  where  a  per* 
soi^  has  contracted  sttch  new  obligations  and  relations^ 
it  could  iiot  be  supposed  he  meant  to  adhere  to  his 
focmer  disposition :  that  this  principle  was  recognized 
by  ^1  the  cases  upon  the  subject^  and  that  they  all 
pcoeeeded  upon  the  ground  of  a  total  alteration  in 
the  testator's  circumstances :  but  that  if  there  were 
not  \a  totxA  'alteration^  the  implLeation  was  re- 
pelled. 

.  No,  casoj  they  said^  could  be  stronger  against  a  re- 
vocation than  this.  .  When  the  deceased  was  married 
he  mftde  a  will  by  wMch  he  bequeathed  some  small  l^;a- 
cies^  and  disposed  of-  the  rest  to  his  wife.  This^  they 
observed^  might  have  been  in  confidence  that  she  would 
take  care  of  any  drifdren  he  should  have  by  her. 
By  the  death  of  the  wife  the  residue  became  lapsed. 
And  on  his  second  marriage  his  fortune  would*  have 
taken  the  same  course  in  point  of  substance  as  if  he 
had  made  no  will.  The  few  legacies  would  have  be- 
longed to  the  persons  to  whom  they  were  given^  and 
the  residue  would  have  been  the  subject  of  the  statute 
of  distributions. 

They  mentioned '  Cases  in  which  it  had  been  held 
that  this  alteration  In  circumstances  did  not  amount  to 
a  revocation,  as,  where  the  will  was  not  of  such  a  des- 
cription as  to  make  the  court  say  the  testator  could  not 


Sect.  17.  Subsequent  Marriage.  «  361 

f 

in  doty  adhere  to  the  disposition  whicli  he  had  made. 
Such  was  the  case  of  Brown  v.  Thompson  \  where 
it  was  held  that  the  alteration  in  circumstances 
was  not  sufficient  to  amount  to  a  revocation^ 
for  no  injury  was  done  to  any  person^  and  those 
whom  the  testator  was  bound  to  provide  for  were  taken 
care  of.  That  case  they  contended  was  the  same  as 
the  one  in  question  ;  the  great  bulk  would  go  to  the 
wife  and  children^  all  the  new  relations  were  fully 
satisfied^  and  there  was  no  probability  of  the  tes- 
tator's not  intending  to  adhere  to  his  former  dis- 
position. In  Brady  v.  Cubitt  '"^  it  was  said  by  Liord 
Mansfield^  "  that  upon  his  recollection  there. was  no 
case  in  which  marriage  and  the  birth  of  a  child  had 
been  held  to  raise  an  implied  revocation  where  there 
had  not  been  a  disposition  of  the  whole  estate."  This 
they  contended^  although  it  might  not  be  essential^ 
was  certainly  very  material.  Presumed  revocations 
might  exist  where  the  residue  was  very  small^  but  it 
was  otherwise  where  a  small  part  only  was  disposed 
of,  and  the  bulk  remained.  In  Thompson  v.  Shep- 
herd^ mentioned  in  a  note  to  Ambler  %  it  was  held 
that  marriage  and  having  children  did  not  amount 
to  a  revocation  of  a  will  made  by  a  widower  who  had 
children.  It  was  not  that  complete  alteration^of  cir- 
cumstances which  implied  the  revocation  of  a  declared 
intention.  A  case  of  Calder  v.  Calder^  lately  decided 
in  the  prerogative  courts  they  said^  did  not  apply^  as 
it  depended  upon  its  own  circumstances^  and  there  was 
no  grottn4  to  presume  that  the  testator  adhered  to  his 
intention.  That  was  the  case  of  a  will  made  by  a 
widower  having  no  children^  and  which  had  no  view  to 
the  rdations  of  husband  and  father.    The  great  bulk 

I  1  Eq.  Ca.  ab.  413.  -  Dougl.  31.  »  490. 


36S  Kevecatitm  Qf  WUU.  Cbat.II. 

of  his  property  was  left  away^  and  there  were  declara* 
tions  shewing  his  idea  that  his  property  would  go  to 
his  wife  and  children  upon  a  marriage  subsequent  to 
the  will ;  and  the  wiU  itself  was  such  as  would  have 
involved  the  family  in  endless  litigation .  Every  circum- 
stance in  that  case  raised  the  implication  that  the  wOl 
should  be  revoked ;  but  no  such  circumstances  existed 
in  the  case  under  consideration ;  on  the  contrary^  eveiy 
circumstance  repelled  the  implication.  They  farther 
urged  that  there  would  have  been  a  very  considerable 
provision  for  the  wife  and  her  child ;  and  that  it  must  be 
presumed  the  testator  knew  the  operation  of  the  will ; 
that  it  disposed  of  the  small  legacies  according  to  his 
intention ;  that  the  residue  would  be  distributable  ac- 
cording to  law ;  and  Ihat  his  property  would  be  ma- 
naged by  the  respective  persons  in  whom  he  had  re* 
posed  a  confidence  for  the  puipose. 

Upon  another  part  of  the  case^  viz.  whether^  svp* 
posing  the  wiH  revoked^  it  was  restored  by  the  presutt* 
able  survivorship  of  the  fether^  the  'advoci^es  before* 
mentioned  observed  that^  in  cases  where  the  parent  and 
son  perished  by  the  same  stroke  of  deaUi^  and  it  could 
not  be  ascertained  which  was  the  survivor^  tim  Roman 
law  presumed,  with  certain  exceptions^  that  ]i  the  son 
had  not  attained  tiie  age  of  puberty,  the  fttiier  rar* 
vived ;  but  if  flie  son  had  attained  tfiat  age>  that  lie 
survived  the  fttther.  This  presumption,  they  said, 
arose  from  the  degree  of  strength  supposed  to  bdottg 
to  the  respective  parties.  Applying  this  general  nde 
of  presumption  to  the  present  case,  tiiey  cevitelMted 
that  the  child  by  the  second  wife,  being  only  abovt  a 
year  eld,  must  be  taken  to  have  died  btfiMre  flie 
iather. 


Sicf.  17.  Suh$epieni  Marriage.  963 

They  fiuther  stated  that^  by  the  Roman  krw^ 
a  triM  revoked  by  the  birth  of  a  posthamoas  child 
4iid  not  refvive  by  his  deaths  because  no  change 
in  the  fair's  intention  coidd  in  that  case  be  presam* 
ed ;  bnt  that  it  was  held  otherwise  with  respect  to  the 
quasi  posthnmi^  or  those  who  were  bom  after  the  w31 
in  the  testator's  life-^time^  on  whose  death  the  w31  was 
n^tored  by  the  Praetorian  law^  as  npon  a  new  desif  • 
nation  of  intention.  That  there  was  no  case  where 
it  had  been  held  by  the  English  law^  that  nnder  these 
eircamstances  a  presomptive  revocation  did  take  place. 
That  the  presumption  of  the  law  of  England^  with 
respect  to  revocations^  was  not  more  strong  than  the 
agntftio  sni  hieredis^  by  the  civil  law^  nor  so  strongs 
for  that  was  an  actual  revocation^  and  the  other  only 
a  presumption  liable  to  be  repdled.  That  by  the 
PrSBtorkn  law  it  waa  held  that  upon  the  death  of 
Ibe  i^natas  the  will  was  rertored ;  and  that  the  re- 
moval of  the  cause  in  the  present  case  would  as 
itmn|;ih|f  knply  a  renewal  of  the  first  intention^  or  ra- 
ther racnre  strongly^  on  account  of  ^e  omission  to  de« 
stn>y  the  W|I1. 


JUnd  lastly^  it  iras  said^  that^  at  aU  events^  the 
testator  intended  the  legacies^  on  account  of  which 
akme  the  ^spate  was  material^  riiould  be  carried 
into  effect;  and  that  the  executors  whom  he  had 
appointed  'should  bave  the  management  of  the  pro- 
peity ;  so  tibat  S  the  coait  upon  a  presumed  intent, 
decided  against  the  will,  the  actual  intentbn  of  the 
testator  would  be  defeated. 

Doctor  Battine  and  Doctor  Swabey  on  behalf  of 
the  nett  of  kin  msisted  on  the|^eneral  rule  tfaat  a  vriU 


36*  Revocation  of  WUle.  Chaf.  ». 

is  revoked  by  mitrriage^  and  the  birth  of  a  child.  They 
contended  that  the  change  in  the  testator's  situation^ 
frpmlieing  a  wido^vef  to  becoming  again  a  husband 
and  afathfr^  was  sd<^i  a  tot^l  change  as  to  raise  the 
prea^Qmption  thtU;  he;  did  tiot  intend  the  will  to  stand 
;That'it  had<  been  decided  by  Sir  George  Hay  that 
the  .ca^es  c^  widower,  and  bachelor  were  the  same. 
.That  there  was  np  decision  that  the  quantity  of  pro- 
perty would  vary  the  presumption. 


«i 


1 1 


With  respect  to.  the  case  of  Brown  v.  Thompson, 
.they  obse^ved^  that  it  came  on  first  before  Sir  John 
Trevor,  Master  of  the  RoIIa,  who  held  that  the  will 
was  revoked:  that  the  different  opinion  afterwards 
given  by  Lotd^Keeper  Wright  was  on  account  of  the 
particular  Qh*cnaistafices  of  the  case ;  and  that  Mr.  Jus- 
.tice  BuUer/in  Doe  v.  Lancashire^  thought  the  opinion 
of  the  Master  tuf  the  Rolls  better  th&n  that  of  the 
Lord  Keeper.  They  admitted  that  thefa  was  a 
dictum  of  Lord.  Mansfield  iii  the  case  of  Bmdy  v.  Cu- 
bitt^  that  a  will  Was  not  revoked  by  marriage  and  the 
birth  of  a  child  if  it  only  covered  part  of  the  pro- 
perty^ but  they  observed  that  it  was  a  dictum  only. 

m 

That  in  Doei  v.  Lancashire  the  revocattion  !wa9  .'held 
to  arise  from  a  tacit  condition  at  the  jtime  of  mnking 
the  ^ill ;  and  that  although  there  might  be  some  cases 
in  which  a  will  was  allowed  to  stand  from  drcum- 
stances  repelling  the  presumption,  yet  nothing  was 
more  dangerous  than  to  let  a  particular  equity  arising 
from  the  quantity  of  the  effects  operate  against  a 
general  rule  of  law^  as  it  would  introduce  a  vague 
and  uncertain  method  of  decision,  and  it  was  better 
to  adhere  to  a  known  presumption  of  law.  In  Tthis 
case,  they  said  the  disposition  wa»  complete  by  the 


Sect.  17.         Subsequent  Marriage.  36b 

mil,  both  as  to  the  real  and  penional  estate^  and  the 
testator  had  not  shewn^  since  the  alteration  in  his  cir- 
camstances^  any  disposition  to  adhere  to  it.  And 
that  though  the  real  estate  was  not  within  the  juris- 
diction of  that  courts  the  &ct  of  its  being  wholly  de- 
vised away  might  afford  an  argument  in  favour  of 
the  revocation. 

As  to  the  other  point,  they  contended  that  it  was 
not  to  be  taken  for  granted  in  this  case,  even  accord- 
ing to  the  principle&(  of  the  Roman  law,  that  the  child 
died  first.    That  the  doctrine  alluded  to  went  no  fur- 
ther than  to  shew  that,  when  a  father  and  son  perish 
by  the  same  stroke  of  death,  the  father  is  supposed  to 
survive  his  infant  son.     But  that  it  did  not  appear 
that  in  this  case  they  perished  by  the  same  stroke  of 
death.     The  ship  being  cast  away  was  all  that  was  ad- 
mitted, and  non  constitit  that  they  died  by  shipwreck.. 
They  insisted  that  the  general  law  being  that  the  will 
was  revoked,  to  take  the  case  out  of  that  law,  the  re- 
vival ef  the  will  by  the  father's  surviving  must  be 
shewn   by  the  other  side.     That,   by  the  Roman 
law,  if  a  will  was  void  for  the  pretermission  of  a  child 
who  afterwards  died,  the  will  was  not  thereby  ren- 
dered valid,  or  if  it  was  revoked  by  the  birth  of  a 
posthumous  child,  the  death  of  that  child  did  not  re- 
store it ;  and  that,  in  case  of  a  will  becoming  void  by 
any  subsequent  cause,  the  removal  of  that  cause  did 
not  restore  it  by  the  civil  law ;  though  it  was  other- 
wise by  the  Praetorian  law,  which  was  in  the  nature 
of  a  court  of  equity,  and  only  prevailed  for  the  sake 
of  the  haeres  scriptus,  or  residuary  legatee.     That  in 
this  case  the  residuary  legatee  being  dead,  the  ground 
on  which  the  jus  praetorium  interposed  failed.    That 


368  Revocation  of  WiUs.  •         Chap.  II; 

existed^  and  they  contended  that,  the  testator  haying 
,  no  wife  or  children  at  his  death,  the  tacit  condition 
(which  in  Do^t?.  Lancashire  was  considered  as  the 
principle  of  those  cases)  might  be  fiiirly  considered 
as  a  condition  that  the  will  should  not  take  effect  if 
the  testator  should  afterwards  have  a  wife  and  child- 
ren who  survived  him. 

'  It  was  further  urged  by  the  same  advocates,  that 
all  the  cases  in  the  courts  of  common  law  admitted 

.  that  the  doctrine  upon  that  subject  was  borrowed  from 
the  civil  law.  That  the  courts  had  not  adopted  all  the 
minute  rules  and  distinctions  of  that  law,  but  onlj 
some  of  its  general  principles  :  and  that  there  was  no 
principle  better  founded  on  justice  than  that,  if  a  will 
was  revoked  by  the  birth  of  a  child,  it  was  revived 

'  by  his  death  in  the  life-time  of  the  testator. 

Sir  William  Wynne,  in  delivering  the  judgment 
of  the  court,  observed,  it  was  clearly  the  general  law 
that  by  marriage  and  the  birth  of  a  child  the  will  be- 
came void  by  implication  of  law.  That  he  thought  it 
was  a  mistaken  notion  that  there  was  any  such  distinc- 
tion as  that  mentioned  by  Ambler''.  That  the  prin- 
ciple of  the  rule  was,  that  the  change  of  circum- 
stances founded  a  presumption  that  there  was  a  change 
intention  which  might  be  as  strong  in  favour  of  in 
a  second  wife  and  family  as  a  first,  and  that  it  did 
not  seem  material  whether  the  will  was  made  by  a 
widower  having  children,  or  by  a  bachelor.  He  said 
that  the  more  weighty  argument  was  drawn  from  the 
operation  of  the  will  under  the  circumstances  which 
had  happened.     That  the  testator  had  given  legacies 

*  4U0.  m  margin.  .See  ant6,  361. 


Sect.  17.  Subsequent  Marriage.  369 

* 

which  were  not  very  considerable,  and  the  rest  to  his 
wife.  That  the  gift  of  the  residue  became  void  by 
her  death,  so  that  if  he  had  left  a  second  wife  and 
son  they  would  have  had  their  share  with  the  other 
children.  'That  in  Brady  v.  Cubitt  it  was  said  by 
Lord  Mansfield  that  there  was  no  case  of  a  revocation 
where  there  was  not  a  total  disposition ;  intimating 
that  the  ground  of  revocation  was  an  entire  deprivJ^- 
tion  ;  but  that,  however  tUat  might  be,  if  there  was 
an  ample  portion  remaining,  after  a  few  legacies  to 
friends,  there  was  no  decision  that  a  will  would  be 
revoked;  and  that  the  principles  on  which  the  cases 
had  gone,  did  not  militate  against  such  a  will.  This 
case,  however,  he  said  was  not  exactly  similar.  The 
testator  gave  the  bulk  of  his  property  to  his  wife 
early  aft^r  marriage.  She  lived  for  several  years, 
during  which  they  had  several  children  born.  The 
birth  of  those  children  would  not  have  revoked  the 
will,  and  he  might  have  meant  to  leave  them  in  the 
power  of  their  mother.  She  died,  and  it  was  not  an 
improbable  supposition,  that  he,  knowing  the  effect 
of  the  will,  suffered  it  to  remain.  There  was  a 
strong  ground  then  to  contend  that  und<5r  those  cir- 
cumstances the  case  did  not  fall  within  the  rule  laid 
down  and  established  for  the  revocation  of  wills. 

The  learned  Judge  said,  he  was  not  aware  of  the  case 
of  Barrowr.  Baxter,  in  which  the  court  seemed  to  think 
the  subsequent  death  of  the  child  would  not  make  an 
alteration  ;  but  he  said  the  point  seemed  very  much 
like  that  which  had  been  a  vexata  qucslio  in  those 
courts,  and  brought  before  the  courts  of  common 
law,  whether  a  will  which  was  revoked  by  another  is 
set  up  by  the  destruction  of  the  second.  That  there 
was  a  case  to  that  effect  before  Sir  George  Lee,  of 

2b 


I 

S70  Revocation  of  Wills.  Chap.  II. 

Hellyer  v.  Hellyer,  in  which  it  was  held  that  the  will 
being  once  revoked,  remained  so,  but  that  there  was 
an  appeal  from  that  judgment  to  the  delegates,  which 
was  never  determined  by  them  ;  and  that  the  case 
of  Glazier  v.  Glazier  ^  was  directly  contrary  to 
that,  it  having  been  there  held  that  the  first  will 
vras  good.  That  in  Brady  v,  Cubitt  it  was  laid 
down  by  Buller  J.  that  implied  revocations  must  de- 
pend on  the  circumstances  at  the  time  of  the  testator's 
deaths  and  that  made  it  material  to  enquire  what 
those  circumstances  were.  That  the  fact  was,  that 
having  embarked  they  all  perished.  The  Roman  law 
be  said,  had  been  entered  into,  audit  clearly  appeared 
by  the  Praetorian,  which  was  considered  as  the  latter 
Roman  law,  that  the  revocation  was  entire  and  not 
presumptive;  and  yet  the  will  was  held  to  revive. 
With  respect  to  the  priority  of  death,  he  stated  that 
it  always  had  appeared  to  him  more  fair  and  reasona- 
ble in  those  unhappy  cases,  to  consider  all  the  par- 
ties as  dying  at  the  same  instant  of  time,  than  to 
resort  to  any  fanciful  supposition  of  survivorship  on 
account  of  the  degrees  of  robustness.  Then  the  tes- 
tator at  the  time  of  his  death  had  neither  wife  nor 
children,  and  Duller  J.  said  it  was  to  depend  upon 
the  circumstances  at  the  time  of  the  testator's  death ; 
and  there  was  no  circumstance  to  raise  a  presumption 
that  he  intended  at  that  time  that  the  will  should  be 
revoked. 

On  the  first  point,  the  learned  Judge  declared  he 
should  have  great  doubt  whether  the  presumed  revo- 
cation did  take  place  at  all. 

As  to  the  second,  as  there  were  neither  wife  nor 

'  4  Blirr.  2512. 


Sjbct.  18.    A  woman* 8  marriage  after  will.  37 1 

children  at  the  death  of  the  testator^  he  was  clearly 
of  opinion  that  the  court  ought  to  pronounce  for  the 
validity  of  the  will. 


Section  XVIII. 


Effect  of  a  womarCs  marriage  upon  her  wilL 
ALTHOUGH  marriage^  and  the  birth  of  a  child.  The  mam. 

ace  of  a 

must  both  happen  to  revoke  the  will  of  a  man,  yet  it  woman  af- 
has  been  settled  that  a  woman's  marriage  alone  will  herwiuif 
be  a  revocation  or  rather  countermand  of  her  will,  if  enough  to 
she  dies  in  her  husband's  life-time  (1).     This  was  so  without 
determined  in  the  case  of  Forse  v.  Hembling,   in  a  child.  ^ 
Coke's  Reports*.     It  was  objected  that,  although  af- 
ter the  marriage,  the  wife  could  not  revoke  her  will, 
yet  that  that  was  no  reason  why  the  marriage  should 
be  a  countermand :  for,  that  if  a  man  of  sound  me- 
mory made  his  wilP  and  afterwards  became  non  com- 
pos mentis,  he  could  not  countermand  his  will,  and 
yet  such  his  disability  was  no  countermand. 

*  4  Rep.  61.  a.  ^1  And.  181.  Godsb.  109. 


(1)  If  a  feme  sole  surrenders  to  the  use  of  her  will,  and  marries; 
her  marriage  Is  a  revocation,  or  at  least  a  suspension  of  the  sur- 
render.    Ambler,  627. 

2b2 


i)^  Aeootation  of  iViUs.  Chap.  II. 

But  the  Court  were  unanimous  th&t  the  marriage 
And  coverture  at  the  time  of  the  deaths  was  a  counter* 
mand^  and  that  for  several  reasons.  IM.  Th(  inak^ 
ing  of  a  will  is  but  the  inception  of  it^  and  it  does  not 
take  effect  till  the  death  of  the  devisor ;  but  it  would 
be  against  the  nature  of  a  will  to  be  so  absolute  that 
he  who  makes  it^  being  Of  good  and  perfect  memory^ 
cannot  countermand  it ;  and  therefore  the  taking  of  a 
husband^  shall  amount  to  a  countermand  at  law. 

But  when  a  man  of  sound  memory  makes  his  will, 
and  afterwards  by  the  visitation  of  God,  becomes  of 
unsound  memory,  (as  every  man  for  the  most  part 
before  his  death  is),  it  would  be  hard,  indeed,  if  this 
act  of  God  fihoukl  be  a  revocation.  9dly,  It  would 
be  mischievous  to  women,  if  their  wilb,  after  their 
marri&ge,  were  to  stand  irrevocable.  And  this  they 
intiust  be,  unless  the  marriage  were  a  revocation,  for 
the  law  will  neither  allow  a  will  to  be  made  or  revoked 
by  a  feme  covert^  because  both  might  then  be  done  by 
the  constraint  and  coercion  of  the  husband. 

Whether,        jt  was  Said  by  Manwood,  in  Plowden's  Commen- 

it  she  be-  -^  ' 

comes  du-  tarics^  that  if  a  feme  sole  makes  her  will  the  1st  day 

covert  '' 

again,  and  of  May,  and  gives  land  thereby,  and  afterwards  oa 

dies  a  wi-  ./  o  ^ 

dow,  the     the  10th  day  of  May  she  takes  husband,  who  dies  oa 

will  is  iv»  •  •'  ■' 

vived?  the  20th  day  of  May,  and  the  woman  dies  on  the  30tb, 
the  devise  is  good;  for  it  could  not  take  effect  until 
her  death,  at  which  time  she  was  discovert,  as  she  was 
at  the  time  of  making  her  will ;  and  the  intermarriage 
should  not  countermand  that  which  was  of  no  effect 
in  the  life-time  of  tlie  husband.  Which  proposition 
was  not  denied.     And  it  is  observable  that  in  the 

*  Plowd,  343. 


Sect.  18.     A  woman* $  marriage  after  toilL  373 

* 

above-mentioned  case  of  Forse  v.  Hembling,  where 
this  position  of  Serjeant  Manwood  is  cited,  no  disap-o 
probation  of  it  was  intimated  by  the  court ;  and  the 
judgment  in  that  case  is  expressly  grounded  not  only 
on  the  marriage  of  the  testatrix^  but  also  on  the  cir- 
camstance  of  her  dying  covert  baron.  Though 
in  Cotter  v.  Layer^  it  was  said  by  Lord  ChancelkNT 
King^  without  any  qualification^  that  a  woman's  mar'* 
riage  alone  was  a  revocation  of  her  will^  yet  that 
opinion  being  grounded  entirely  on  Forse  v.  Hemb- 
ling,  does  not  carry  the  doctrine  further. 

It  seems  to  have  been  held^  how^ever,  in  Mrs. 
Lewis's  case%  that  a  will  made  by  a  woman  before 
marriage  is  so  totally  revoked  by  her  marriage  that  it 
cannot  revive  on  the  subsequent  death  of  her  hus- 
band And  it  is  to  be  observed,  that  though  in  Doe 
V.  Staple'',  none  of  the  Judges  pronounced  a  decided 
opinion  on  the  point  whether  a  will  by  a  feme  sole, 
revoked  by  her  subsequent  marriage,,  would  have  its 
validity  restored  to  it  by  the  wife's  surviving  her  hus- 
band, yet  the  language  used  by  Lord  Kenyon,  is  ra- 
ther on  the  negative  side;  for  his  Lordship's  words 
are,  that  '^  the  will  of  a  woman  made  before  coverture 
ceases  to  be  her  will  afterwards ;  because  it  is  of  the 
essence  of  a  will  that  it  should  be  valid  during  the  re- 
Tnainder  of  the  testator's  life.  Therefore,  generally 
speaking,  the  will  of  a  woman  ceases  to  have  any  ope- 
ration after  she  becomes  covert."  That  learned  Judge 
does  not  say  V  during  coverture,"  nor  does  he  add, 
"'if  she  dies  during  coverture;"  but  his  words  ex- 
press tiie  proposition  in  as  unqualified  a  sense  as  those 

*  2  P.  Wms.  524.  see  also  2  Bl.  Comm.  499; 
*  4  Burn.  fiod.  Law,  C.  47.  ' «  T.  R.  684. 


374  Revocation  of  Wills.  Cakv.  II. 

of  Lord  Chancellor  King.  And^  in  the  reason  which 
he  gives  for  the  revocation  is  comprehended  a  nega- 
tion of  any  such  revival  of  the  will  by  the  death  of 
the  husband ;  for  if  it  be  of  the  essence  of  the  instru- 
ment that  it  should  be  always  valid^  (and  it  is  not  va- 
lid during  the  coverture^  as  has  been  before  shewn, 
because  not  revocable)  then  it  should  seem  to  follow 
as  a  clear  consequence,  that  what  destroys  the  essence 
must  be  a  total  destruction  of  the  thing  itself,  so  as  to 
leave  it  no  potential  existence. 

The  counsel  in  Mrs.  Lewis's  case,  which  was  be- 
fore the  delegates,  cited  many  authorities  from  the  ci- 
vil law  to  shew,  that  among  the  Romans,  if  a  man 
made  his  will,  and  was  afterwards  taken  captive,  such 
will  revived  and  became  again  in  force,  by  the  testa- 
tor's repossessing  his  liberty.  But  this  was  answered 
by  adverting  to  the  difference  between  a  voluntary  act, 
and  an  act  of  compulsion.  And  the  will  was  adjudged 
not  to  be  good.  So  that  the  weight  of  authority,  and 
perhaps  of  principle,  seems  to  be  against  holding  the 
will  of  the  feme  sole,  revoked  by  her  subsequent  mar- 
riage, to  be  restored  to  its  operation  by  the  wife's 
surviving  her  husband. 


A  married      It  has  been  sometimes  considered  doubtful  whether 

woman 

may  exe-    a  powcr  givcu  to  a  feme  sole  was  not  suspended  by 

power       her  marriage^ ;  but  the  law  seems  now  to  be  under- 
given  to  , 

her  while    stood  US  settled,  that  a  feme  covert  may  execute  a 
exercised    powcr  givcu  to  her  while  sole.     However,  where  an 
nulinri^e.   agreement  before  marriage  vras  entered  into,  that  a 
settlement  should  be  made  of  the  vrife's  estate,  reserv- 
ing to  her  a  power  of  disposing  of  it  by  will ;  and  be- 

'  3  Bro.  P.  C.  908.  Ridi  o.  BBanmont. 


Sect.  19  Wills  of  personal  Estate.  375 

fore  the  marriage  she  devised  it  in  favour  of  the  in-  And  if  it  u 

^  exercised 

tended  husband,  who  survived  her.  the  will  was  ne-  ^^^ 

'  '  marriace^ 

vertheless  held  to  be  revoked.     For  the  agreement  ttwmbc 

revoked 

was  for  an  authority  to  be  exercised  during  the  mar-  ^y^« 
riage,  and  therefore  could  have  no  operation  m  pre- 
venting the  consequence  of  law,  with  respect  to  what 
was  done  before  the  marriage*. 


Section  XIX. 


Of  the  revocation  of  wills  of  personal  Estate. 

A  REMARKABLE  case  which  happened  in  Lord 
Nottingham's  time  is  said  to  have  given  rise  to  the 
clause  in  the  statute  for  invalidating  unwritten  revo- 
cations of  wills  of  personal  estate. 


m 

Mr.  Cole  at  an  advanced  age  married  a  young  wo-  Case  said 
man  who  did  not  conduct  herself  with  propriety.    Af-  veo  rise  xq 

1  •      «       1       1  •11  th<^  clause 

ter  his  death  she  set  up  a  nuncupative  %vill,  said  to  in  the  stA- 
have  been  made  in  extremis,  by  which  the  whole  es-  c3.  for'** 


tate  was  given  to  her  in  opposition  to  a  written  will  Inwiittcn 
made  three  years  before  the  testator's  death,  giving  S^m  of 
S0002.   to  charitable  uses.      The  nuncupation  was  ^!^^ 
proved  by  nine,  witnesses.     Upon  the  appeal  to  the  ^^^ 
delegates  from  the  sentence  of  the  prerogative  Court 
in  favour  of  the  written  will,  Mrs.  Cole  offered  to  go 
to  a  trial  at  law  in  a  feigned  action,  submitting  to  be 

^  See  Doe  v.  Staple,  2  T.  R.  684.  and  see  the  same  point  ruled 
in  Equity,  in  Hodgson  v.  Lloyd,  S  Bro,  C.  R.  534. 


376  Revocation  of  Wills.  C«ap.  II 

i  bound  by  the  result.     Upon  the  trial  at  the  bar  of  the 

Court  of  King's  Bencb^  it  appeared  that  most  of  the 
witnesses  for  the  nuncupation  were  perjured^  and 
that  Mrs.  Cdie  was  ^ilty  of  subornation.  She  then 
applied  for  a  commission  of  review^  which  was  re- 
fjased;  and  upon  that  occasion  Lord  Nottingham 
said^  ^'  I  hope  to  see^  one  day,  a  law  that  bo  written 
will  shall  be  revoked  but  by  writing.**' 

The  statute  of  29  Car.  3.  c.  3.  s.  23\  is  express,  that 
no  will  in  writing  concerning  anygoods  or  chattels,  or 
personal  estate^  shall  be  repealed,  nor  shall  any  clause, 
devise,  or  bequest  therein,  be  altered  or  changed  by 
any  words,  or  will  by  word  of  mouth  only,  except 
the  same  be  in  the  life  of  the  testator  committed  to 
writing,  and  after  the  writing  thereof  read  to  the  tes- 
tator, and  allowed  by  him,  and  proved  to  be  so  dene 
by  three  witnesses  at  least  (1).  These  points  were 
in  question  in  the  case  which  took  place  in  the  pre- 
rogative Court  in  the  will  of  Mr.  Wright,  of 
'  Chelsea,  which  some  little  time  ago  excited  mnch 
general  attention.  Mr.  Wright  died  on  the  ISth 
February  1814,  having  on  the  5th  of  August  1800 
made  his  will  appointing  Lady  Wilson  and  the  Right 
Honourable  Charles  Abbott  executors^  and  bequeath- 
ing to  the  former  the  residue  of  his  property,  after 
payment  of  his  debts  and  some  specific  I^^acies.  The 
allegation  offered  pleaded  that  the  deceased  as  the 

*  See  Matthews  v.  Warner,  4  Vez.  Jud*  196,  note  (a). 

*  39  Car.  %  c.  3.  s.  23. 


^^^i^B^.^^i^-B^^^«M^Hk^i^^^^fc.^^.*M^NiMaBMSMArfh^MAiUa^kA. 


(1)  But  it  is  not  made  necsMaiy  that  sach  revocation  by  parol, 
when  committed  to  writiiif  ,  flhenldiie  signed  or  atteated. 


Sect.  19.        Wills  ^/  personal  Estate.  377 

11th  of  February^  two  days  only  before  his  deaths  be- 
ing very  ill,  addressed  himself  to  two  or  three  persons 
who  were  with  him^  and  declared  his  intention  to  give 
a  certain  sum  out  of  the  money  which  he  had  invested  in 
the  bank  to .  The  words  used  by  him  on  this  occa- 
sion were  reduced  into  writing  on  the  15th  of  March^ 
after  his  deaths  and  attested  by  the  persons  in  whose 
presence  they  were  uttered.  The  admission  of  this 
allegation  to  proof  was  opposed  on  the  ground  that 
the  statute  29th  Car.  2.  by  the  clause  above  cited^  re- 
quired that  no  will  in  writing  concerning  any  per- 
sonal estate  should  be  repealed,  nor  any  clause,  devise 
or  bequest  therein  be  altered  or  changed^  by  any  words, 
or  will  by  word  of  mouth  only,  except  the  same  be  in 
the  life  of  the  testator  committed  to  writing,  and  after 
the  writing  thereof  read  to  the  testator  and  allowed  by 
him^  and  proved  by  three  witnesses  as  aforesaid. 

From  the  facts  stated  in  the  allcgatioji  it  appeared 
that  the  money  in  the  bank  was  included  in  the  resi- 
duary clause ;  and  the  judge  observed  that  it  was  clear 
that  as  the  money  in  the  bank  was  included  in  the 
Will,  the  effect  of  the  nuncupative  codicil  would  be  to 
alter  the  will  in  that  respect.  That  the  act  oh  ac- 
count of  its  general  objects  ought  to  be  strictly  con- 
strued and  enforced.  That  it  was  imperative  upon 
the  court,  and  left  it  no  discretion.  That  as  to  the 
case  of  Brown  v.  Manby  in  1770  which  ^  had  been 
cited^  the  words  were  there  pleaded  to  have  been 
written  in  the  lifetime  of  the  deceased,  and  with  his 
privity^  and  therefore  it  was  possible  the  requisites  of 
the  Act  might  appear  on  proof  to  have  been  complied 
with,  but  that  in  the  present  case  it  was  clear  from 
the  facts  pleaded  that  they  were  tlot  The  court* 
accordingly  pronounced  for  the  wiU. 


378  Hevocation  of  Wilts.  Chap.  11. 

But  where  a  man  by  will  in  writing  devised  the  re- 
sidue of  his  personal  estate  to  his  wife^  and  upon  her 
dying  in  his  life-time  made  another  disposition  of  the 
residue  by  a  nuncupative  codicil,  in  respect  to  which 
the  requisites  of  the  Act  regarding  nuncupative  wills 
were  complied  Avith,  this  was  resolved  to  be  good,  for 
by  tlie  death  of  the  wife  the  devise  of  the  residue  was 
totally  void,  and  the  codicil  was  no  alteration  of  the 
former  will,  but  a  new  will  for  the  residue  *". 

pe^emust      \^  there  must  be  a  manifestation  of  a  clear  and 

be  clear 

evidence    gcrious  intention  to  make  an  actual  disposition  for 

of  present  *^ 

intention    any  Writing  to  operate  as  a  testamentary  act,  so  to 
ate  the  re-  rcvokc  or  alter  a  prior  complete  testamentary  dis- 

vocation.  i  • 

position,  at  least  an  equal  indication  of  the  disposing 
mind  will  be  required.  And  this  appears  from  a  case 
recently  decided  in  the  Prerogative  Court*,  which,  as 
it  marks  with  some  precision  the  degree  of  evidence 
which  that  court  requires  to  establish  the  operative 
intention,  shall  be  stated  fiiUy.  The  question  was, 
whether  certain  alterations  made  in  a  paper  purport- 
ing to  be  instructions  for  the  will  of  Sir  S.  S.  Bart, 
after  the  will  prepared  from  it  had  been  executed, 
were  operative  as  codicils,  or  were  merely  delibera- 
tive as  to  an  intended  alteration,  to  be  afterwards 
carried  into  effect. 

It  appeared  that  Sir  S.  S.  had  duly  made  his  will  on 
the  2d  of  March  1810,  which  was  of  considerable 
length,  occupying  upwards  of  fifteen  sheets  of  paper, 
and  had  therein  made  an  ample  and  detailed  disposal  of 

*  1  Abr.  Eq.  Ca.  408.  and  see  4  Bura.  EccL  L.  203. 

*  Sitwell  and  others,  by  their  Guardian,  r.  Parker.    Prerogatire 
Court,  Doctor's  Commons,  March  11. 


Sect.  19.         Wills  of  personal  Estate.  379 

his  estates  and  other  property.   The  instructions  from 
which  this  will  was  prepared  were  contained  in  a  paper 
entitled  "Heads  or  Instructions  forthe  willof  SirS.S." 
and  this  paper  had  been  previously  left  with  him  for  his 
perusal  and  approbation;  after  which  it  had  been 
returned  to  his  solicitor  to  prepare  the  will  from, 
but  signed  in  pencil  by  the  testator^  that  it  might 
operate  in  case  of  accidents  in  the  mean  time.     It 
contained^  amongst  other  bequests^  one  of  2000/.  to 
each   of    the  younger  children  of   F.   S.  Esq.  Sir 
S/s  brother,    the  eldest  being  otherwise    provided 
for ;  but  this  legacy  had  been  struck  through  in  the 
instructions,  and  was  therefore  omitted  in  the  more 
formal  will,    in   consequence  of   Sir   S.*s    expecta- 
tions^   as   explained  by  him  to   the  soUcitor,    that 
the  family  of  Lord  C,  into   which  Mr.  P.  S.  had 
married^   would   provide  for  his  younger  children. 
After  the  execution  of  the  will.  Sir  S.  delivered  it 
into  the  possession  of  his  solicitor,  choosing  to  retain 
the  instructions  himself,  as  containing  a  more  ab- 
stracted account  of  the  contents  of  the   will,   and 
therefore  more  easy  of  reference  than  the  will  itself 
in  its  more  precise  and  formal  language.     Sir  S.  died 
on  the  11th  of  July,  1811,  and  a  probate  was  ob- 
tained of  his  will  only ;  but  the  paper  of  instructions 
being  afterwards   discovered  in  his  secretary,  was 
found  to  contain  an  obliteration  of  a  legacy  to  Mr.  G., 
the  deceased's  steward,  with  a  mark  in  the  margin  to 
refer  to  it,  and  this  endorsement  on  the  outside,  "  If 
any  legacy  includes  Mr.  G.  in  this  or  any  other 
will  or    codicil,   I  revoke  it. — S.  S.  —  February, 
1811."     The  pencilled  obliteration  of  the  legacy 
of  20002.  to  each  of  Mr.  F.'s  children  was  also  crossed 
through  in  ink,  as  if  with  an  intention  of  reviving  it ; 
and  the  deceased  had  on  the  29th  of  Marcb^  181 1 


€€ 
4€ 


380  Revocation  of  WUls.  Cha?.11. 

preceding  his  deaths  signed  his  name  to  eajch  of  the 
sheets  except  the  second^  which  contained  the  oblite- 
ration of  Mr.  G.'s  legacy.  These  alterations  ap^ 
peered  to  have  been  made  since  the  execution  of  the 
will,  and  Mr.  F.  S.'s  <rhildren,  acting  by  their  fether 
OS  their  guardian^  instituted  the  present  proceeding 
as  the  parties  interested^  calling  in  the  probate  of  the 
formal  will^  and  requiring  the  executors  to  take  a 
new  probate  of  it  jointly  with  the  paper  of  inrtruc- 
tions^  as  containing  together  the  will  of  the  deceasedp 

The  evidence  in  the  case  fully  established  the  cir** 
cumstances  stated,  and  also  that  the  deceased,  after 
the  execution  of  tlie  will,  had  reason  to  believe  that 
the  C.  family,  with  whom  the  children  then  were, 
would  not  provide  for  them  as  he  had  expected. 
This  idea  was  subsequently  confirmed  by  an  intinia* 
tion  which  was  received  from  a  distinguished  mesuber 
of  the  family  ;  and  the  deceased  in  consequence  often 
expressed  to  those  in  his  confidence,  that  he  supposed 
he  must  himself  provide  for  the  children,  or  they 
would  come  to  distress;  and  for  this  reason  he 
discontinued  the  advances  of  money  which  be  oc- 
casionally made  to  his  brother,  and  apprised  him 
of  his  intention  of  providing  for  his  children  in- 
stead.    He  was  also  proved  to  have  declared  that  he 

should  see  his  attorney  at  races,  and  should 

there  make  an  aUeration  in  his  will,  but  he  died  he^ 
for^e  that  happened. 

Under  these  circumstaxices  it  was  contended,  on 
the  part  of  the  children,  that  Che  deceatsedT,  by  strBdng 
out  the  former  obliteratioii  of  their  legacy,  and  sign- 
ing every  sheet  <^  the  paper  except  the  one  con** 


Sect.  19.         Wills  of  personal  Estate,  SSI 

taming  the  obliterated  legacy  to  his  steward^  clearly 
meant  to  revive  the  bequest  pursuant  to  his  declared 
intention  of  providing  for  them ;  and  that  he  was 
only  prevented  from  giving  more  complete  effect  to 
that  intention  by  his  deaths  before  he  again  saw  his 
attorney^  as  was  expected. 

Sir  John  NichoU^  after  stating  the  facts  of  the 
case,  observed^  that  the  presumptions  were  strong 
against  the  paper^  as  it  had  been  superseded  by  the 
execution  of  a  more  formal  instrument ;  and  the  al* 
terations  themselves^  relied  upon  in  argument  as  tend- 
ing  to  revive  it,  were  very  equivocal.     It .  was  pos- 
sible that  they  might  have  been  intended  as  opera- 
live,  but  it  was  equally  so  that  they  might  be  delibe- 
rative only :   neither  point  could  to  a  certainty  be 
ascertained  from  the  present  evidence,    but  it  was 
merely  matter  of  conjecture ;   and  the  court  could 
not,  upon  conjecture  alone,  pronounce  for  the  altera- 
tions in  the  paper  as  being  intended  by  the  deceased 
to  have  operation.     He  then  entered  into  an  examina- 
tion of  the  circumstances  tending  to  shew  quo  animo 
the  alterations  were  made;    and  inclined    to  think 
that  they  were  merely  deliberative  as  to  an  intended 
fiiture  alteration  in  his  will.     The  revocation  of  the 
steward's  legacy,  he  observed  in  particular,  was  ex- 
pressed not  only  by  striking  it  through,  but  also  by 
an  endorsement  of  words,  declaratory  of  his  intention 
in  so  doing ;  and  it  was  therefore  to  be  supposed,  if 
he  really  entertained  the  same  final  intention  with 
respect  to  the  revival  of  the  children's  legacy,  that 
he  would  have  signified  it  in  a  similar  manner.     What 
the  deceased's  intentions  really  were,  it  was  impossible 
now  to  ascertain ;  he  might  have  formed  them^  and 
even  proposed  to  himself  the  time  and  manner  of 
giving  them  effect^  and  the  court  could  only  lament 


382  Revocation  of  Wills.  Chap.  II. 

that  he  had  not  made  them  more  apparent ;  for  with 
all  the  commiseration  naturally  inspired  by  the 
situation  of  the  children^  it  could  not^  consistently 
vrith  its  ordinary  rules  of  decision,  pronounce  for  the 
alterations  in  this  paper,  when  the  intention  with 
which  they  were  made  wsls  not  proved  to  the  extent 
required  by  those  rules.  He  therefore  felt  himself 
bound,  though  very  reluctantly,  to  pronounce  against 
the  paper  in  question,  but  directed  the  costs  to  be 
paid  out  of  the  estate. 

Shortly  after  the  above  case,  another  on  the  same 
question  was  determined  in  the  same  court,  and  bj 
the  same  judge,  which  may  be  useful  in  helping  the 
judgment  in  questions  respecting  the  effect  of  altera* 
tions  of  solemn  wills.  The  case  was  that  of  Dickin* 
son  V.  Dickinson  and  others,  in  which  the  question 
was,  whether  certain  alterations  in  the  will  of  W.  D. 
deceased,  were  made  by  the  testator,  or  by  his  direc- 
tions, with  an  intention  that  they  should  have  legal 
operation,  or  were  merely  deliberative  as  to  some 
future  testamentary  disposition,  intended  to  be  made 
by  him. 

Alterations      The  Will  was  duIy  cxecuted  by  the  testator  in  the 

in  pencil  /•  • 

effectual,     presence  of  three  witnesses,  whose  signatures  were 

there  bcins  

sufficient     added.     The  testator  gave  an  annuity  of  60/.  to  the 
dispositive  tcstator's  wifc  for  life,  and  his  freehold  property  to 

intention.      •  •       <  -^i  •  i  •  mi. 

his  two  sons,  with  some  pecuniary  legacies.  Inc 
alterations  were  made  in  pencil,  and  consisted  in 
striking  out  the  wife's  annuity  of  60/.  and  substi- 
tuting in  the  place  of  it  160/.  A  line  was  also  drawn 
through  the  devise  of  the  freehold  property  to  the 
sons,  and  some  other  of  the  legacies  were  altered. 
The  will,  thus  altered,  was  enclosed  in  an  envelope, 
on  which  was  also  written  in  pencil^  "  to  my  wife 


Sect.  19.         JYiUs  of  personal  Estate.  383 

160Z.  per  annum  as  long  as  she  continues  my  widow/' 
The  sons  were  dead  at  ,the  time  of  the  alteration. 
The  judge  observed  that  the  alterations  were  not  in- 
valid on  account  of  their  being  written  in  pencil. 
They  appeared  to  have  been  very  deliberately  made ; 
the  figures  inserted  were  also  carried  out  into  the 
margin^  and  the  pencil  writing  on  the  envelope 
seemed  to  confirm  the  alterations  made  in  the  enclosed. 
The  papers  were  deposited  in  an  iron  chest  by  the 
testator^  and  not  kept  for  revision  and  completion. 
The  death  was  not  sudden :  the  testator  had  ample 
time  to  make  another  wil]^  if  he  had  so  intended. 
Under  these  circumstances^  the  court  felt  itself  called 
upon  to  pronounce  for  the  operative  effect  of  the 
alterations. 

Implied  revocations  of  wills^  and  testaments  of  per- 
sonal estate^  fall  in  general  under  the  same  doctrine^ 
and  are  subject  to  the  same  principles  and  rules  as 
those  which  have  governed  the  decisions  in  respect 
to  property  in  land.  But  there  are  also  some  dis- 
tinct considerations  which  apply  to  legacies  in  par^ 
ticular. 

Where  a  parent  makes  provision  for  a  child  by  9^*^^^' 
his  will,  and  afterwards  aives  to  such  child  a  portion  g»cic»by 

'  ^  *  subsequent 

in  marriage,  if  a  daughter,  or  pays  a  sum  for  esta-  advance- 
blishing  him  in  the  world,  if  a  son,  the  legacy  is  held 
in  general  to  be  adeemed*.  But  not  so  if  the  provi- 
sion made  in  the  parent's  life-time  be  not  of  the  same 
kind  with  the  legacy*,  or  be  made  subject  to  a  con- 
tingency^^ or  if  it  be  made  expressly  in  satisfaction 

•  1  P.  Wms.  681.  Hartop  v.  Whitraore. 

'  1  Bro.  C.  C.  425.  Grare  v.  Earl  of  Salisbury. 

'  2  Atk.  491. 


S84  Revocation  of  Wills.  Chap.  II. 

of  another  claim ',  or  if  the  two  gifts  be  upon  dif- 
2^rob>ct  ^^^^"^  t^r^ns  *.  Where  the  subject  of  a  specific  Ic- 
of  a  speci-  gacy  IS  Withdrawn,   the  legacy  must  fail ;  but  there 

fie.  legacy  ^  o      J 

is  wiA-      are  many  nice,  and  some,  as  it  should  seem,  over- 
drawn, the 

legacy        curious  distinctions,  as  to  what,  to  this  effect,  shall 

must  faiL 

be  considered  as  specific.     Where  a  sum  of  money 

The  dift" 

tinctions     has  bccH  bequeathed  out  of  a  particular  fund,  it  bar, 

isipecific   for  the  most  part,  been   considered   as  a  general 

iTgenerai   l^g^Lcy,  or  Icgatum  in   numeratis,  so   as  Xo  entitle 

?nto*grt»t   the  legatee,  if  the  testator  receive  it  in  his  life-time, 
subtiety.     j^  1,^^^  jj  ^^^  ^^  ^^j  ^f  ^^^  general  effects  ^     But 

other  cases  have  been  decided  a  different  way  \ 

The  courts  on  this  subject  have  run.  into  such 
nicety  as  to  adopt  distinctions  between  a  bequest  of 
a  sum  of  money  due  on  a  bond  from  A.  and  a  be- 
quest of  such  debt  generally,  holding  the  legacy 
in  the  former  case  to  be  pecuniary,  and  in  the  latter 
to  be  specific".  And  a  difference  has  sometimes 
been  taken  between  a  voluntary  and  compulsory 
payment  of  a  debt  after  a  bequest  of  the  same; 
considering  the  voluntary  payment  as  not  indicating 
any  change  of  mind  in  the  testator,  and  therefore  not 
an  ademption,  while  the  payment  procured  by  compul- 
sion has  been  looked  upon  as  the  result  of  an  active  step 
taken  by  the  testator  in  derogation  of  his  own  gift":  But 
this  distinction  has  been  denied  in  other  cases  (2). 

*  3  Bro.  C.  C.  192.  *  Id.  Ibid. 

*  1  P.  Wms.  777.  SaTile  v.  Blacket,  4  Bac.  Abr.  355. 
'  2Fonbl.367.  note  (+). 

■  2  P.  Wras.  330.  Rider  v.  Wager,  and  n.  1.  and  see  2  Bro.  C.C. 
111.     1  Eq.  C.  Ab.  302.  "  2  P.  Wms.  330.  n.  1. 


(2)  4  Bac.  Abr.  355.  n.  (b),  and  see  the  note  in  Scrjt.  WHliains's 
edition  of  the  cases  in  the  time  of  Lord  Talbot,  p.  228.  to  tiie  case 


Sect.  19.         Wtlla  of  persm^l  Estate.  385 

A  conversion  or  specific  alteration  of  the  thing 
bequeathed^  as  making  a  raw  material^  after  giving 
it  by  vrillj  into  a  manufactured  article^  seems  to  be  a 
clear  practical  revocation  "*.  Though  by  the  Civil  Law 
it  was  competent  for  a  man  after  he  had  changed  the 
subject  of  a  specific  legacy^  to  declare  by  his  conduct 
that  such  a  change  was  no  ademption  :  and  the  case 
has  been  put  of  a  gold  chain^  which  the  testator^ 
after  having  bequeathed  it  by  his  will,  converted 
into  a  cup ;  the  legacy  was  not  adeemed  because 
the  cup  might  be  restored  to  its  former  shape.  This 
distinction,  however,  has  not  been  adopted  by  our 
law ;  and  Lord  Thurlow  has  declared  it  to  be  con- 
trary to  common  sense  to  say  that,  after  a  legacy  has 
been  extinguished,  the  testator  may  by  his  conduct 
revive  it '  (3). 

*  2  Bro.  C.  C.  1 10.         "  Ibid. 


of  Partridge  v.  Partridge  ;  but  see  2  Vez.  Jan.  640.  Coleman  o. 
Ccleinaii,  where  this  distinction  has  been  admitted  as  a  strong  cir- 
cumstance ^rom  which  to  gather  the  intention,  though  not  as  an 
absolute  or  decisive  ground. 

(3)  If  the  words  of  Lord  Thurlow  are  correctly  reported,  his 
criticism  on  the  distinction  seems  not  to  have  been  just.  Ilis  rea- 
son was  grounded  on  the  supposed  absurdity  of  holding  a  legacy 
which  was  extinguished,  to  be  revhed  by  the  conduct  of  the  tes- 
tator; but  the  rale  of  the  cirii  law  did  not  admit  the  legacy  to 
ha?e  been  esUingaisbed. 


S  c 


(386) 


Section  XX. 
Satisfaction  in  Equity. 

I  SHALL  here  add  a  few  words  oh  the  equitable 
doctrine  of  satisfaction^  as  having  an  affinity  with  my 
present  subject^  without  presuming  to  enter  at  large 
into  the  consideration  of  the  cases^  which  would 
greatly  multiply  my  labour  without  much  profit  to 
the  reader. 

oftiiodis-      This  word  satisfaction^  from  its  frequent  and  too 

tinctmean-  ,        .         .'  *•  .  i 

ingiofthe  vaguc  auoption  m  courts  of  equity^  seems  to  have 
factum  aud  introduced  no  small  confusion  of  ideas^  and  I  venture 
^e!"^  to  question  whether  jt  is  often  used  with  technical 
precision.  By  considering  what  ft  is  not,  we  shall 
perhaps  be  soonest  conducted  to  the  true  apprehen- 
sion of  what  it  really  is.  Lord  Thurlow  declared 
himself  to  have  met  with  continual  disappointment  in 
his  attempts  to  establish  a  broad  and  useful  distinc- 
tion between  cases  of  satisfaction  and  peiformance. 
Since,  however,  we  arc  forbidden  to  treat  these  tenns 
as  synonymous,  by  the  rules  of  constru(;tion  which 
have  separated  them  in  application,  we  must  not  be 
discouraged,  even  by  his  Lordship's  disappointment, 
from  attempting  an  approach  at  least  to  some  practi- 
cal grounds  of  discrimination. 

To  the  class  of  cases  called  cases  of  performance, 

as  far  as  the  decisions  appear  to  have  gone,  those 

seem  properly  to  belong,  wherein  a  man  being  under 

3 


Sect.  20.  Satisfaction  in  Equity.  387 

a  covenant  to  do  something  which  is  to  take  effect 
after  his  deaths  does  an  act  in  his  life-time,  or  leaves  , 
a  consequence  to  arise  after  his  death,  which  virtu- 
ally includes,  or  {«,  in  substance,  the  thing  intend- 
ed. Thus  in  Blandy  v.  Widmore  ',  where  a  man  co- 
venanted to  leave  his  wife  6201,  and  died  intestate^ 
and  the  wife's  distributive  share  came  to  more  than 
620Z. ;  and  in  Wilcocks  v.  Wilcocks*,  in  which  a 
man  on  his  marriage  covenanted  to  buy  lands  to  the 
value  of  200Z.  per  annum,  and  to .  settle  them  by 
way  of  strict  settlement,  and  afterwards  purchased 
lands  of  that  value,  but  made  no  settlement,  and 
died,  and  left  the  purchased  lands  to  descend  to  his 
eldest  son,  the  eventual  benefit  in  both  these  cases 
operated  as  a  presumed  per/brmanee,  and  not  as  a  sa- 
tisfactian  of  the  engagement*.  It  is  true,  that  in 
Wilcocks  V,  Wilcocks,  the  eldest  son  took  by  the 
event  a  fee  simple  instead  of  an  estate  in  tail,  but  he 
was  not  the  person  to  take  an  objection  on  that 
ground ;  and  Sir  Joseph'  Jekyll,  in  observing  upon 
this  case',  declares  his  opinion,  that  if  the  eldest 
son  had  aliened  the  fee,  and  died  without  issue,  the 
second  son  could  not  have  recovered  the  estate  by 
virtue  of  the  settlement ;  which  observation,  if  just, 
furnishes  a  strong  distinction  between  a  case  of  per- 
formance and  a  case  of  satisfiatction  ;  for  as  a  satis- 
faction, it  is  Very  clear  it  could  have  only  bound 
those  ( 1 )  by  whom  the  benefit  was  felt  *. 

•  I  P.  Wms.  323.  *  2  Yern.  558. 

•  Lee  V.  Cox,  3  Atk.  419. 

•  3  P.  W^ms.  225. 

'  Vide  Wilson  v.  Pigott,  2  Vez.  Jan.  355. 

(I)  The  reporter,  Indeed,  adds  a  query,  whether,  if  the  eldest 
•oa  bad  died  l>efore  the  next  term,  so  as  that  he  could  not  hat^ 

3c3 


^  Revocation  of  Wills:  Cjsai.  U. 

In  eases  of  thU  class^  though  the  intention  may  not 

}iB  manifested  in    expression,    yet  if   no  contrary 

grounds  of  inference  exists  the  thing  intended  or  en- 

gaged  to  be  done  being  in  effect  performed^  the  pre- 

Bumption  against  double  portions  or  provisions  pre- 

Tbere  may  vails  ^.     It  scems;   indeed^  that  if  the  effect  of  the 

tf^ro^  ^hing  be  partly  performed^  such  partial  performance 

*"^*        fulfils  the  obligation  pro  tanto  in  equity :  thus  where 

a  sum  of  30^0002.  was  covenanted  by  a  roan,  on  his 

marriage,  to  be  laid  out  in  land  to  be  settled  on  him- 

self  for  life,  vrit^i  remainder  to  his  first  and  other  sods 

in  tail^  and  the  covenanter  died^  having  laid  out  onlj 

a  small  part  of  that  sum  on  the  purchase  of  some 

]and^  vrhich  he  left  tadescend  to  his  eldest  son,  liord 

Talbot  decreed  it  a  performance  pro  tantq  '.    So  also 

the  rule  seems  to  be,  that  where  a  man  covenants  to 

Construe-   do  an  act>  and  he  does  that  which  may  be  converted 

live  per* 

fbimance    into  a  performance  of  his  covenant,  he  cdialt  he  pre- 

by  ft  coUa> 

teniftct.  «umed  in  equity  to  have  done  it  with  th^t  intea- 
tion.  Thus  where '^  one  covenanted  by  his  marriage 
settlement  with  the  trustees  to  pay  to  them  two  se- 
veral sums^  amounting  to  ^00(M.  to  ))e  If»d  oat  ia  l%Dd, 
to  be  settf ed  to  (he  uses  of  the  fnarringe,  and  did 
Hot  pay  the  same^  but  after  having  purchased  an 
estate  for  2150/.  died  intestate,  without  having  B«de 
any  settlement  of  such  estate,  though  it  was  strongly 
coatendedj  that  as  the  husband  had  covenanted  to 

'  Vide  Weylaad  v.  Weylaod,  2  Atk.  On.  Prince  v.  Stobbing, 
2  Vez.  Jun.  400* 
'  Lechmere  v.  the  Earl  of  Carlisle,  3  P«  Wms.  tt7. 
^  Snowden  v,  Snowden,  3  P.  Wms.  327.  in  Nods. 


suffered  a  recovery,  the  second  son  ought  thsn  to  hare  beenbinsd 
of  hb  chance  under  the  setflement. 


Sect.  20.         Satisfaction  in  Equity.  SSO^ 

pay  the  money  to  the  trustees,  he  could  scarcely 
mean  a  performance  when  he  purchased  land  him- 
self, yet  his  Honour  declared,  after  admitting  that 
if  the  case  had  been  res  integra,  he  should  have 
thought  the  reasoning  made  use  of  entitled  to  great 
consideration,  that  the  case  was  within  the  principle 
of  Lechmere  v,  the  Earl  of  Carlisle. 


But  it  seems  a  settled  rule,  that  to  constitute  a  iTie  con. 
performance,  the  eventual  benefit  must  correspond  perform- 
in  time  with  the  period  at  which  the  stipulated  bene-  corres- 
fit  was  to  take  place :  thus  where  a  testator  being  Sme  wuh 
under  a  bond  to  leave  3001.  to  be  paid  in  one  month  laudlTene- 
aft:er  his  death,  bequeathed  a  legacy  of  500L  to  be  ^** 
paid  in  six  months,  this  was  held  to  be  no  perform- 
ance*. 


The  true  reason  of  the  difficulty  which  has  been 
so  often  confessed,  of  separating  cases  of  perform- 
ance from  cases  of  satisfaction^  seems  to  have  arisen 
from  the  want  of  annexing  a  just  idea  to  the  word 
satisfactiony  which  is,  in  truth,  a  term  of  loose  and 
general  signification,  according  to  the  use  which  has 
been  always  made  of  it  in  the  courts  of  equity ;  and 
has  been  adopted  popularly  to  express  the  final  and 
substantial  effect,  as  well  of  cases  of  performance,  as 
of  cases  of  election,  and  cases  of  ademption  or  revo- 
cation,  which  are  the  terms  truly  expressive  of  the 
distinct  means  and  operations  of  law,  by  which  the 
result  described  by  the  word  satisfaction  is  severally 
produced.  It  would,  it  is  conceived,  be  very  difficult,  if 
not  impossible,  to  suggest  an  example  of  a  pure  cas# 

*  Haynes  o.  Mico^  1  Bro.  1^9.  and  see  Richardson  v,  £lpliin« 
stone,  2  Yez.  Jon.  464.  See  Garthshose  v.  ChaUe|  10  Vez. 
Jan.  1. 

1 


390  Revocation  of  Wills.  Chap.  IL 

of  satisfaction^  if  we  treat  the  term  as  having  an  ex- 
clusive and  appropriate  sense^  and  not  rather  as  ge- 
nerically  comprehending  certain  specific  varieties  of 
equitable  rules  and  technical  consequences. 

fiadsfke*         Everv  case  upon  a  v^rill  made  by  a  person  under  a 
genend       binding  contract^  unless  it  be  considered  as  an  actual 
pressing     performance^  can  only  amount  to  a  case  of  election  ; 
feet  of  per*,  for  how  cau  a  testator  by  his  will  forcibly  substitute 
election, '   another  thing  in  the  place  of  that  t^ing  which  he  was 
efttion.^^*    bound  by  his  contract  to  perform ;  or  how  can  such  a 
substitutionary  disposition  have  any  other  operation 
than^  by  giving  a  better  thing  in  lieu  of  the  thing  con- 
tracted for^  to  engage  and  ensure  the  choice  of  the 
devisee  or  legatee^  on  highly  presumable  grounds  of 
preference  ?     If  such  a  case  is  termed  a  case  of  8a- 
tisfaction,   it  is    because    such  is  the  final  conse- 
quence of  an   election;   for  it  may  be  presumed 
almost  as  certain  that^  where  a  greater  is  proposed 
in  the  place  of  an  inferior  benefit^  the  condition  will 
be  accepted.     In  strictness^  therefore^  this  is  a  pure 
case  of  election^  or  of  satisfaction  working  by  dec- 
tion. 

Payment  is  performance.  Thus  where  a  legacy  is 
bequeathed  to  a  creditor^  equal  to  or  exceeding  the 
amount  of  the  debt^  the  debt  is  considered  as  meant 
to  be  answered  by,  or  included  in,  the  gift.  This  is 
therefore  a  satisfaction  by  performance  (2). 

Where  a  man,  having  granted  a  benefit  or  provision 
by  a  voluntary  and  revocable  instrument,  by  a  subse- 


(2)  Vid.  post.  Cap.  V.Scct.  5.  wher6  thb  rule  of  presumpdonii 
more  largely  considered. 


Sect.  20.         Satisfaction  in  Equity.  391 

qu€nt  instrument  makes  an  advancement  of  some  other 
bounty^  or  gratuity^  by  way  of  provision^  to  the  same 
object  {3),  and  the  circumstances  of  the  case  warrant 
the  inference  that  the  second  provision  was  meant  to 
take  place  of  the  firsts  this  is  not  properly  a  case  of 
satisfaction.  A  satisfaction  it  idtimateljf  may  be^  but 
the  true  operation  of  it  is  to  revoke  or  adeem  the,  le- 
gacy. Neither  is  the  term  satisfaction  expressive^  in 
any  other  sense  than  as  a  discharge^  of  its  ultimate 
effect  in  equity^  since  a  smaller  sum  given  in  the  life* 
time  may^  under  circumstances^  annul  a  greater  pro- 
vision by  wilP. 

But  if  a  legacy  of  a  larger  sum  can  be  wholly  set 
aside  by  the  substitution  of  a  less^  this  canirot  be  called 
a  performance^  still  less  a  satisfaction  hy  performance, 
and  less  still  a  satisfaction  hy  election ;  but  there  seems 
to  be  no  impropriety  or  confusion  of  terms  in  calling 
it  a  satisfaction^  (meaning  only  thereby  a  discharge), 
by  revocation  or  ademption.  And  this  phrase  is  the 
more  appropriate,  because  it  is  certainly  not  in  strict- 
ness of  legal  language  an  ademption  or  revocation 
simply :  it  is  a  satisfaction  working  byway  o/*  revoca- 
tion ;  for  in  truth  it  operates  as  a  revocation  on  a  prin- 
ciple of  equitable  presumption  ^ 

It  does  not  redound  much  to  the  accuracy  of  a 
science  to  multiply  terms,  and  apply  different  rules  to 

*  Vide  Hartop  v.  Whitmore,  1  P.  Wms.  680.  ShudaU  v.  JekjU, 
Alk.517.  Rosewell  v.  Bennett,  3  Atk.  77. 
'  Vide  Ellison  v.  Cookson,  1  Vez.  Jun.  100. 


(3)  Vid.  post.  Cap.  V.  Sect.  1.  where  the  doctrines  of  equity  on 
the  sabject  of  double  portions  is  considered  more  at  large. 


SdS  Revocation  of  WiU$.  CsiP.  II. 

tbert^  Tfithoiit  first  distinguishing  between  the  differ- 
ent idess  td  be  implied  by  those  terms  :*  and,  there- 
fdre^  nntil  the  word  '  satisfketion'  has  a  more  appro- 
priate    and    exclusive    sense^    it  will  only  pei*plex 
the  subject  to  talk  of  cases  of  satis&ction  as  dis- 
tinguished from  cases  of  performance^  cases  of  dec- 
tioit,  and  cases  of  revocation.     The  idea  which  is 
meant  to  be  cc»fiveyed  by  satisfaction,  simply  used^  is 
neither  desbriptive  of  cas^s  of  performance,  cases  of 
election,  nor  cases  of  revocation.     It  is  not  descriptive 
of  performance^  because  it  is  not  used  to  signify  the 
identical^  or  substantial^  or  virtual  effectuation  of  the 
thing  contracted  to  be  done^  but  the  substitution  of 
ohe  thing  for  another.    And  as  there  are  only  two 
sorts  of  cases,  wherein  a  substUution  can  take  place, 
Yit,  where  the  thing  to  be  done  is  voluntary^  and 
where  it  is  obligatory  or  resting  in  contract^  in  the 
former  of  which  cases  the  satisfaction  operates  by 
revocation^  in  the  other^  by  putting  the  ^rty  bene- 
fited to  his  electionj  the  Jinai  consequence  oitfy  of  each 
o^ertltion  is  propeHy  expressed  by  th^  word  tati^' 
thn. 


(    S98    ) 


CHAP.  III. 


REPUBLICATION  OF  WILLS. 


Section  I. 

Tlie  Doctrine  of  early  Decisions. 

After  the  statutes  S3  and  34  Hen,  8.  the  coarts 
of  justice  were  frequently  divided  on  the  validity  of 
parol  republications  of  v^ills  of  lands ;  and  it  appears 
that>  in  opposition  to  the  clear  senise  of  those  statutes^ 
the  Savour  with  which  all  testamentak*y  dispositibnt 
were  regarded,  sometiities  gave  the  effect  of  a  repub- 
licatibti  to  slight  and  unconsidered  expressions,  tn 
the  case  of  Beckford  v.  Pamecott*^  which  was  de- 
termined in  the  37th  yeat-  of  Elizabeth^  a  man 
seised  of  lands  in  A.  devised  the  same  to  B.  and  C.  and 
appointed  them  his  executrixes^  and  then  purchased 
other  lands  in  A.^  and  being  requested  to  sell  the  lands 
which  he  had  lately  purchased^  refused  so  to  do^  say- 
ing, '^  No,  they  shall  go  with  my  other  lands  in  A.  to 
my  executrixes ;"  and  afterwards  being  sick,  the  will 
was  read  to  faim^  without  his  making  any  observation ; 
but  in  a  codicil^  which  he  annexed,  he  gave  legacies 
of  ^o'ods  td  other  persons  on  his  death.  Upon  a  ques- 
tion being  made,  whether  by  these  words  spoken  to  a 
•tranger,  the  will  was  republished,  so  as  to  make  the 

*  Cro.  £1.  493. 


394  Republication  of  WUls.        Chap.  III. 

new  purchased  lands  pass ;  Penner,  Clinch,  and  Pop- 
ham  held  them  to  amount  to  a  new  publication  \1). 

In  Fuller  v.  Fuller  (2),  which  took  place  much  about 
the  same  time  with  that  of  Beckford  v.  Parnecott, 
where  the  devise  was  to  the  testator's  son  Richard^ 
and  the  heirs  of  his  body  ;  which  Richard  afterwards 
died  in  the  life-time  of  th6  testator^  and  the  testator 
said^  ^^  My  will  is^  that  the  sons  of  Richard^  my  de- 
ceased son^  shall  have  the  land  devised  to  their  hther, 
as  they  should  have  had  if  their  fiither  had  livedo 
and  died  after  me/'  Popham  and  Fenner  held^  that 
this  was  a  new  publication  to  carry  the  land  to  Rich- 
ard's son,  but  Gawdy  and  Clinch  were  of  a  contrary 
opinion. 

The  point  of  republication  was  also  frequently  in 
agitation  after  the  statute  of  29  Car.  3.  c.  3.  and  there 
are  early  decisions  of  great  laxity  on  the  subject,  not- 
withstanding the  provisions  of  that  statute.  Thus,  in 
Cotton  V.  Cotton  \  which  was  before  the  Court  of 
Chancery  in  the  year  after  the  passing  of  the  statute 

*•  Freem.  264.  2Ch.  Rep.  138. 


(1)  According  to  the  report  in  Mod.  404.  Gaudy  J.  doubted. 
Dyer,  143  a.inarg.  pi.  55.  cites  S.  C.  as  adjudged, and  says,  the  main 
reason  given  by  Fenner  was,  that  the  annexing  of  the  codicil 
amounted  to  a  new  publication. 

(2)  Cro.  El.  423.  In  Mod.  353.  where  the  same  case  is  report- 
ed, the  reporter  adds  a  query,  and  says,  the  reason  given  for  the 
difference  in  opinion  was,  because  the  last  publication  was  not  in 
writing ;  but  the  others  thought  there  was  enough  before  in  writ- 
ing, to  pass  the  land  to  the  issues  ;  though  there  they  were  to  take 
by  descent,  but,  under  the  republication,  by  purchase.  The  better 
opinion  appears  clearly  to  haye  been  that  of  Gawdy  and  Clinch, 
according  to  the  analogy  of  all  the  best  cases. 


Sect.  1.       Doctrine  of  early  Deeisions.  395 

of  frauds,  A.  being  seised  of  several  lands  in  D.  made 
his  will,  devising  his  lands  in  D.  and  all  other  his  lands 
and  tenements  whatsoever  unto  his  wife,  and  after- : 
wards  purchased  other  lands,  and  then  discoursing 
with  B.,  B.  desired  him  to  let  him  have  those  newly 
purchased  lands  at  the  rate  at  which  he  bought  them ; 
and  the  testator  answered,  "  No,"  for  that  he  had  made  • 
his  will  and  settled  his  estate,  and  he  intended  that  his' 
wife  should  have  his  whole  estate ;  the  court  inclined 
strongly  to  hold  this  a  new  publication,  and  particu- 
larly with  respect  to  the  lands ;  and  that  it  was  not 
material  that  the  words  should  have  been  expressed 
animo  testandi,  for  that  must  necessarily  be  intended 
when  the  discourse  had  particular  reference  to  the 
will.     By  the  report  of  the  same  case  in  Chancery 
Reports,  it  appears  that  the  point  of  republication 
was  referred  by  the  Court  of  Chancery  to  a  trial  at 
law,  at  which  a  special  verdict,  by  the  direction  of 
Lord  Chief  Justice  North,  was  found,  and  on  a  so- 
lemn argument  before  all  the  Judges  of  C.  B.  they 
unanimously  gave  Judgment  for  the  devisee  against 
the  heir  at  law. 


About  forty  years  afterwards  it  was  held  by  Lord  Whether 

there  can 

Macclesfield,   when  he  sat  as  Chief  in  the  King's  be  auy  im- 
Bench,  that  since  the  statute  of  Charles,  there  could  puWica- 
not  be  an  implied  republication  of  a  will  of  lands,  wiu,  since 
even  by  the  execution  of  a  codicil  referring  thereto,  of^fraad». 
but  that  the  will  must  be  re-executed  (3).     At  a  trial 
at  bar  before  his  Lordship  and  the  other  Judges  of  the 


(3)  That  a  will  may  be  republished  by  the  testator^s  repeating 
upon  it  the  ceremonies  required  by  the  statute,  'vid.  Herbert  v,  Tar- 
bal,  1  Sid.  162*    1  Keb.  589. 


396  Republkalion  of  WtUs.         Cvlkt,  III. 

King's  Bench,  the  facts  of  the  case  appeared  to  be 
these.  The  Earl  of  Bath*,  by  his  Trill  dated  October 
the  Uth,  1684,  duly  executed,  took  notice  that  his 
lands  were  settled  upon  his  sons  Charles  and  John,  in 
tail  male,  and  then  devised  in  these  words :  In  case 
ray  sons  shall  have  no  issue  male,  then,  for  the  pre- 
servation of  my  name  and  family,  I  devise  my  said 
lands  unto  my  brother  B.  G.  and  the  heirs  male  of  his 
body  issuing.  B.  G.  died  in  the  life-time  of  the  tes- 
tatOTj  having  issue  George  then  Lord  Lansdown,  by 
which  the  devise  to  B.  G.  in  tail  male  llipsed.  On  the 
ISth  of  August,  1701,  the  testator  sent  for  seven  per- 
sons and  slLid,  "  I  sent  for  you  to  be  witnessed  to  my 
will/'  sometimes  varying  his  phrase,  and  saying,  *^  to  be 
witnesses  to  the  republication  of  my  will  ;**  and  then 
took  a  codicil,  dfeited  15th  August^  1701,  in  one  band 
and  the  will  in  the  other,  and  said,  this  is  my  will 
whereby  I  have  fettled  my  estate,  and  I  publish  this 
codicil  as  fiart  thereof ;  and  then  signed  the  codicil, 
(which  lay  upon  the  table  with  the  will)  in  the  presence 
of  tbe  witnesses,  who  subscribed  it  in  his  presence. 

By  the  codicil^  he  devised  in  these  words : 
^'Whereas,  I  heretofore  made  my  will,  dated  llth 
October,  1684,  which  I  do  not  intend  wholly  to  re- 
voke, but  in  regard  to  the  many  accidents  and  alte- 
rations in  my  family  and  estate,  I,  by  this  codicil, 
which  I  appoint  to  be  taken  as  part  of  my  will,  de- 
vise as  follows;''  and  then  devised  divers  manors,  Ac. 
to  his  son  Charles  and  his  heirs,  and  100/.  per  annum 
to  his  nephew,  then  Lord  Lansdown,  for  life.  He 
then  put  the  will  and  codicil  together  in  a  sheet  of 
paper,  and  sealed  them  up  in  the  presence  nf  tbe 

*  Panphrase  v.  Lord  Lansdown,  Vin.  Abr.  tit.  Der.  (^)  22. 


^ 


SfiOT.  1.        Doctrine  of  early  Decisions.  $97 

mme  >vitnesses^  but  the  will  was  not  unfolded  in  their 
presence^  nor  did  any  of  them  write  their  names  as 
witnesses  on  or  under  the  will^  or  on  the  same  paper, 
but  to  the  codicil  only.  And  by  Parker,  Ch.  J.  and 
by  the  whole  court,  this  was  held  no  republication ; 
for^  since  the  statute  39  Car.  2.  there  shall  be  no  re- 
publication by  implication,  but  the  wUl  must  be  re- 
executed,  otherwise  a  devise  of  lands  shall  not  be 
good. 

Sir  William  Lytton*,  by  his  will  23d  March,  1700, 
devised  all  his  lands  to  his  nephew  Lytton  Strode 
and  his  heirs^  and  directed  that  he  should  take  the 
surname  of  Lytton :  and  his  personal  estate  he  de- 
vised to  Dame  Russell,  his  sister^  and  Lytton  Strode, 
and  made  them  his  executors.  After  his  will  made. 
Sir  William  Lytton  purchased  the  equity  of  redemp- 
tion from  the  mortgagors  in  fee,  of  premises  which 

♦ 

were  mortgaged  to  him  before  he  made  his  will ;  and 
on  the  13th  June,  1704,  by  a  codicil  attested  by 
three  witnesses,  he  said,  I  make  this  codicil  which  I 
will  shall  be  added  to  and  be  part  of  my  last  will 
which  I  have  formerly  made  ;  and  the  Lord  Chancel- 
lor Cowper,  assisted  by  Sir  John  Trevor,  Master  of 
the  Rolls,  Lord  Chief  Justice  Trevor,  and  Mr.  Jus- 
tice  Tracy,  on  the  16th  June,  1706,  decreed  that 
this  was  not  a  republication,  for,  that  since  the  sta- 
tute of  frauds,  there  could  be  no  devise  of  lands  by 
an  implied  republication  ;  for  the  paper  in  which  a 
devise  of  lands  is  contained,  ought  to  be  re-executed 
in  the  presence  of  three  witnesses. 

With  respect  to  the  first  of  these  two  cases,  deter-  if  senate 
mined  by  Lord  Parker  and  the  Judges  of  the  Court  ^^^ 

^  Lyttoa  V.  Lady  FaUd^ad^  Yin*  Abr.  tit  Der.  (Z.) 


398  Republication  of  Wills.       Chap.  III. 

his  heirs,  of  King's   Bcnch,    though  the  resolation  seems  to 

in  the  tes-  have  been  grounded  upon  the  rule  then  adopted^  of 

time,  the  holding  the  statute  of  frauds  to  be  inconsistent  with 

sesTwid^  ^1^  implied  republications  of  wills,  and  which  conse- 

Jf^"onhe  quently  forbad  such  eflFect  to   be  given  to  a  codicil 

^'fgive  to  vrhich  declared  no  positive  intention  to  republish  the 

B%*cUim  "^ill;  yet,  according  to  the  principle  of  the  case  of 

by  pnr-  Brett  1?.  Riffden  *  above  mentioned,  and  the  rule  of 

chase.  .  ^  ^      ^ 

construing  a  republication  of  a  will  not  to  expand  or 
alter  the  sense  of  its  expressions,  or  the  legal  effect 
of  its  limitations,  but  to  apply  those  expressions 
and  limitations  to  the  existing  state  of  the  subjects 
and  objects  of  the  dispositions  at  the  date  of  the  re- 
publication, it  does  not  seem  that  any  other  judgment 
could  have  been  given,  even  on  the  supposition  that 
the  will  was  republished ;  for  if  a  will  limits  an  es- 
tate to  go  by  descent,  and  the  person  through  whom 
the  descent  is  to  be  transmitted  dies  before  the  tes- 
tator, the  devise  clearly  lapses ;  and  if  such  will  is 
republished,  no  person  can  take  an  estate  under  it 
in  any  other  way,  than  in  that  in  which  the  original 
limitation  was  calculated  to  give  it  to  him  :  he  can- 
not take  as  a  purchaser  what,  according  to  the  ef- 
fect bf  the  limitation,  he  was  designed  to  take  by 
Aescent, 

The  same        The  principle  of  this  reasoning  was  recognised 

law  where 

the  devise  in  Sympson  V.  Hornsby  *,  the  question  in  which  case 
tatetoa  arosc  upou  the  will  of  one  T.  A.  who,  having  a  wife 
the  heirs  of  and  Only  two  daughters,  devised  lands  in  several 
succeedwi  towus  to  his  wifc,  for  life,  for  her  jointure ;  and, 
wor^s  after  the  death  of  his  wife,  to  his  daughter  Bridget 
,rwitof      and  the  heirs  male  of  her  body;  and  for  want  of 

tncbiviiei*' 

*  Plowd.  345.  and  see  Hartop's  case,  Cro.  El.  243, 

'  Free.  Ch.  439. 


Sjbct.  L        Doctrine  of  early  Decisions.  399 

such  issue^  to  his  daughter  Jane  for  her>  life^  and 
after  her  deaths  to  her  first  and  other  sons^  in  tail 
male  successively^  with  several  remainders  over. 
Bridget  died  in  her  father's  life-time^  leaving  issue  a 
son^  whom  the  grandfather  took  into  his  own  house^ 
and  expressed  much  kindness  for.  Afterwards  the 
grandfather  made  a  codicil  which  began  thus :  ''  A 
codicil  to  be  annexed  to  my  will."  And  thereby  he 
gave  some  part  of  a  leasehold  estate^  (which^  by  his 
will  was  given  to  his  daughter  Bridget)  to  her  son^ 
added  another  trustee  for  some  charities^  and  duly 
executed  the  same.  And  the  Lord  Chancellor^  after 
looking  into  the  books^  said  he  found  it  already  set- 
tled^ that  Bridget  dying  in  the  life-time  of  the  testa- 
tor^ the  heirs  male  of  her  body  could  not  take  by 
purchase,  for  these  words,  '  heirs  male  of  her  body,' 
were  inserted  to  express  the  quantity  of  the  estate  ; 
though  if  the  thing  were  res  integra^  he  thought  it 
plainly  the  intention  of  the  testator,  that  Jane  should 
not  take  till  there  should  be  a  failure  of  the  issue  of 
Bridget,  for  this  he  thought  the  words  for  want  of 
such  issue  fully  imported. 

These  cases,  therefore,  contained  circumstances 
which  would  have  been  an  answer  to  the  claims  set  up 
under  the  will  on  the  ground  of  its  being  republish- 
ed by  the  codicil,  without  opposing  the  doctrine  of  an 
implied  republication ;  for,  upon  the  principle  just 
above  discussed,  the  republication  of  the  will  would 
not  have  extended  the  devise  to  the  parties  claiming 
by  reason  of  it  in  those  cases.  However,  in  Lord 
Lansdown's  case,  we  have  observed,  that  Lord  Par- 
ker in  terms  denied  the  possibility  of  any  implied 
republication  of  a  will  of  lands  since  the  statute  of 
frauds ;  and  in  the  case  above  mentioned  of  Lytton 


••k 


400  Repuhlieation  of  WUb.      Chap.  Hi. 

V.  Falkland^  the  resolution  could  only  be  founded 
upon  the  supposed  effect  of  the  statute^  to  exclude 
all  implied  republications^  where  real  property  was 
in  question. 


Section  II. 
Of  the  Republication  by  CodiciL 

ABOUT  ten  years  after  Lord  Macclesfisld^  then 
Lord  Chief  Justice  Parker^  had  decided  the  case  of 
Panphrase  v.  Lord  Lansdown^  [in  the  Court  of  King's 
Bench^  Acherley  v.  Vernon  *"  came  before  him  in  the 
Court  of  Chancery^  when  his  Lordship  held  an  opi- 
nion on  this  subject^  not  conformable  to  that  which 
he  is  represented. to  have  pronounced  on  the  fonner 
occasion.    The  cs^^e  was  as  follows : 

J.  S.  by  a  will,  properly  executed^  dated  the  17th  Ja- 
nuary^ 1711,  devised  to  M .  his  wife  1000/.  per  a$mum, 
for  her  life,  to  issue  out  of  his  real  estate  at  H. ^  &c. ;  to 
his  sister  E.  ^00/.  per  annum,  for  her  life ;  and  100(K.  to 
L.  her  daughter,  for  her  portion ;  and  after  other  lega- 
cies^ he  devised  the  residue  of  his  real  and  personal 
estate  to  A.  B.  C.  D.  and  E.  and  their  heirs,  execu- 
tors, and  administrators^  on  trust  to  vest  the  residue 
of  his  personal  estate  in  lands  of  inheritance,  and 
jdirected  that  his  trustees  should  stand  seised  and  poi- 

« 

^  Cm.  S81. 


Sect.  %  %  Codicil.  401 

• 

sessed  of  his  real  and  personal' estate  to  the  uses  of 
his  wiB,  during  his  wife's  life ;  and  afier  her  decease, 
if  he  should  die  without  issue,  to  the  intent  that  his 
freehold  and   leasehold  estates,  and  the  lands  to  be 
purchased,  should  be  settled  to  the  use  of  the  defend- 
ant G.  for  99  years ;  then  to  his  first  and  other  sons 
in  tail  male,  &c.     J.  S.   purchased  several  fee-farm 
rents,  assart  rents,  and  other  lands  and  tenements, 
and  then  by  a  codicil,  dated  2d  February,  1720,  being 
two  days  before  his  death,  he  recites,  that  he  made  a 
will,  dated   1st  January,  1711,  and  then  «ays,  ''I 
hereby  ratify  and  confirm  the  said  will,  except  in  the 
alterations  hereafter   mentioned.      The    portion  to 
my  niece  L.  shall  be  made  up  60002.  and  what  I  have 
given  to  my  sister  an(|  niece  shall  be  accepted  by  them 
in  satisfaction  of  all  they  may  claim  out  of  my  real 
and  personal  estate,  and  on  condition  they  release  all 
right,  &c,  to  my  executors  and  trustees  in  my  will 
named  ;  and  thus  having  provided  for  my  sister  and 
niece,  I  devise  all   the  lands  by  me  purchased  since 
my  will,  to  my  trustees  and  executors  in  my  will 
named,  to  the  same  uses,  and  sul^ect  to  the  same 
trusts  to  which  I  have  mentioned  to  devise  the  manor 
of  H.,  and  the  bulk  of  my  estate ;  and  I  revoke  that 
part  of  my  will,  whereby   I  appoint  A.  B.  and  C. 
three  of  my  trustees  in  my  will,  and  I  desire  K.  and 
N.  to  be  two  of  my  trustees,  and  devise  my  said  real 
estate  to  them  accordingly."     Lord  Chancellor  Mac- 
clesfield decreed,  that  the  will  was  confirmed  by  the 
codicil ;  that  J.  S.'s  signing  and  publishing  his  codi- 
cil^   in  the  presence  of  three  witnesses,  was  a  repub^ 
lication  of  his  will,  and  both  together  made  but  one 
will ;  and  by  the  said  will  and  codicil,  his  fee-farm 
rents,  assart  rents,  and  lands,  contracted  to  be  pur^ 
chased^  and  all  his  real  and  personal  estate,   (except 

2d 


402  RepubKcatitm  of  Wills        Chap.  III. 

the  copyhold  purchased  before  bU  wJll)  did  well 
pas8.  On  appeal  to  the  Lords^  the  decree  was 
affirmed. 

Notwithstanding  the  codicil  in  the  case  last  pro- 
duced ejspressy  confirmed  the  will,  yet  the  decree  of 
the  court,  and  judgment  of  the  Lords,  have  been 
considered  as  standing  on  the  general  ground,  that 
every  executed  codicil  refers  to  and  acts  upon  the  will> 
i^nd  must  in  its  nature  not  only  suppose  the  existence 
thereof,  but  must  attract  it  into  an  union  with  itself, 
bringing  it  down  to  its  own  date.  And  upon  the 
authority  of  this  case  it  stands,  that  whatever  be  the 
apparent  purpose  of  making  the  subsequent  instru- 
ment, and  whether  the  subject  of  its  express  dispo- 
sition be  real  or  personal  estate,  if  it  import  to  be  a 
codicil,  aud  have  the  signature  of  the  testator,  and 
the  attestation  of  three  witnesses,  agreeably  to  the 
directions  of  the  statute  in  respect  to  wills  of  real 
property,  it  wiU  have  Uie  effect  of  republishing  the 
Will. 

This  interpretation  of  the  ground  of  the  decree 
in  Acherley  v.  Vernon,  seems  to  be  built  upon  the 
geraeraZ  expressions  of  Lord  Macclesfield^  in  that 
case,  ^^  that  the  codicil  being  executed  and  attested 
by  three  witnesses,  was  a  republication  of  the  will; 
and  that  they  became  one  will ;"  and  this  seems  the 
safest  grouuid  for  the.- doctrine  to  rest  upoQ,  for  the 
words  of  confirmation  in  the  codicil,  in  Acherley  f. 
Vernon,  and  those  declaring  the  codicil  to-  be.  part  of 
the  will,  were  only  the  expressijon  o(  the  tacit.roeaD- 
ing  of  every  codieil;  which  ia  its  very  nafaire  sap* 
poses  and  recognises  tihe  existence  and  operatioB  of 
the^^Btecedent  will. 


Sect.  2.  Bif  Codicil.  ,  403 

That  this  was  Lord  Hardwicke's  understanding  of' 
the  case  of  Acherley  v.  Vernon,  clearly  appears  from 
the  expressions  used  by  him  in  Gibson  v.  Lord  Mount* 
fort^  where  his  lordship  says,  that  in  Acherley  v.  Ver- 
non^ it  was  the  opinion  of  the  judges,  that  the  codicil 
was  incorporated  with  the  will,  ichich  made  it  a  re- 
publication:  thence  deducing  this  g-encr^Z  proposi- 
tion, that  every  codicil  executed  according  to  the  sta- 
tute of  frauds,  to  whatsoever  part  of  the  property  it 
may  relate,  operates  as  a  republication  of  the  will, 

r  ' 

It  was  admitted  for  the  heir,  said  his  lordship,  that 
though  it  is  a  codicil  only  to  a  personal  estate,  yet  if 
there  is  a  general  clause  of  confirmation  of  the  will, 
that  that  will  make  the  codicil,  duly  executed,  a  re- 
publication of  the  will.  But,  said  the  same  Chan- 
cellor, this  win  make  every  codicil  a  republication,  if 
it  is  executed  by  three  witnesses,  though  it  relates 
only  to  personal  estate ;  for  a  codicil  is,  undoubtedly, 
a  farther  part  of  the  last  will,  whether  it  be  said  so 
or  not. 

But  in  the  Attorney-General  v.  Downing^  the 
Court  seemed  to  be  inclined  to  a  middle  course  be- 
tvvcen  the  case  of  AcHerley  v,  Vernon,  wherein  the 
meire  act  of  making  a  codicil,  executed  according  to 
the  statute,  was  a  republication,  and  those  of  Pan- 
phlrrfse  t?.  Lord  Lansdown,  and  Lytton  v.  Lady  Falk- 
land, in  which  all  imphed  republication  was  excluded; 
by  requiring  an  intention  to  republish  to  be  declared 
or  expressed,  or  otherwise  distinctly  manifested,  by 
the  testator,  in  order  to  give  to  his  codicil  that  effect. 
^ti'A  ViOtA  Chaticellor  (Camden  held,  that  the  annexa- 
tion  of  the  codicil  to  the  will  was  on^  oj'the  modes  by 

»  1  Vez.  482,  3,  •  Ambler,  571. 

2d2 


404f  Rqpublieation  of  Wills        Chap.  Ill 

which,  such  intention  might  be  declared^  and  iras 
therefore  a  republication.  His  Lordship  seemed  to 
think,  that  the  expressions  used  in  the  codicil,  in 
Acherley  v.  Venion,  were  the  foundation  of  the  de- 
cree ;  for  the  words,  he  said,  were  so  blended  with,  and 
incorporated  into  the  will,  that  the  one  could  not 
stand  without  the  other. 

Thepre-         By  the  settliuff  case  of  Barnes  v.  Crowe*,  the  case 

lent  doc-  jo  » 

trine  holds  of  Achcrlev  V.  Vemou  has  been  set  up  as  the  preat 

cverycod^  -^  i  o 

ciLuDicM    authority  on  this  subject,  to  the  full  extent  of  the 
fined  in  ex-  doctriuc  ascribcd  to  it  by  Lord  Hardwicke,  in  Gibson 

prcMion,  ft  ,  - 

repabiicft-  V.  Mouutfort,  as  above  laid  before  the  reader;  and 

tion  of  ft  . 

previoiu  the  effect  of  annexation  was  there  denied,  as  being 
codicil  be  ouly  parol  evidence  of  a  republication,  which  Lord 
ftod  ftt-  Commissioner  Eyre  said,  could  not  be  received  since 
cordingTo  the  statutc  of  frauds.  ''  If  we  disentangle  ourselves 
from  the  rule,  said  the  Lord  Commissioner,  that  there 
shall  be  no  republication  without  re-execution,  the 
principle  that  a  codicil,  attested  by  three  witnesses, 
shall  be  a  republication,  seems  intelligible  and  dear. 
The  testator's  acknowledgment  of  his  former  will, 
considered  as  his  will,  at  the  execution  of  the  codicil, 
if  not  directly  expressed  in  that  instrument,  must  be 
implied  from  the  nature  of  the  instrument  itself;  be- 
cause by  the  nature  of  it,  it  supposes  a  former  will, 
refers  to  it,  and  becomes  part  of  it;  (1)  and  being  at- 

'  7  Vez.  Jan.  486. 


tfaeftfttttte. 


(1)  Whaterer  number  of  codicils  a  man  makes^  they  are  all  parts 
of  his  prerioQS  will ;  in  so  much  that,  if  a  testator,  after  making  his 
will,  makes  a  codidi  or  codicils  in  any  way  modifying  its  diqMMi- 
tiouMy  and  aftervaids  by  any  other  testamentary  instrument  ^atififis 


Sect.  2.  By  Codicil  40B 

tested  by  three  witnesses,  his  implied  declaration  and 
acknowledgment  seem  also  to  be  attested  by  three 
witnesses.  Before  the  statute  of  Charles  II.  it  was  no 
part  of  the  essence  of  the  republication  that  the  will 
should  be  re-executed ;  any  thing;  that  expressed  the 
testator's  intention,  that  the  will  should  be  considered 
as  of  a  subsequent  date,  was  sufficient.  Since  the  sta- 
tute, continued  the  Lord  Commissioner,  re-execution 
of  the  will  is  not  necessary ;  nothing  more  is  required 
than  a  writipg  according  to  the  provisions  of  the  sta- 
tute, expressing  that  intent." 

In  the  late  case  of  Pigott  v.  Waller  %  before  the 
present  Master  of  the  Rolls,  his  Honour  submitted  to 
the  authority  of  Acherley  t?.  Vernon,  as  that  case  was 
understood  by  Lord  Hardwicke,  in  Gibson  v.  Mount- 
fort,  and  by  Lord  Commissioner  Eyre,  in  Barnes  v. 
Crowe,  but  not  without  expressing  some  disapproba- 
tion of  the  reasonings  on  which  that  authority  was 
supported,  and  a  predilection  for  the  old  rule,  as  it 
stood  upon  the  cases  of  Lytton  v.  Lady  Falkland,  and 
Panphrase  v.  Lord  Lansdown ;  for,  said  his  Honour,  a 
direct  republication  or  re-execution  (2)  is  an  unequi- 
vocal act,  making  the  will  operate  precisely  as  if  it  were 

•  7  Vcz.  Jun.  98. 


and  confirms  his  wiU,  he  ratifies  and  confirms  it  together  with  the 
codicils  which  have  been  made  to  it,  and  subject  to  whateyer 
changes  they  have  made  in  it.  Bat  if  a  testator  after  making  his 
will,  makes  another  will  inconsistent  with  the  first  will,  and  after- 
wards bj  a  will  or  codicil,  effectnal  as  such,  confirms  the  prior  will, 
the  effect  of  the  intermediate  will  is,  as  it  seems,  destroyed.  See 
Crosbie  v.  Mac  Dowall,  4  Vez.  Jun.  610. 

(2}  A  re-execution,  with  a  repetition  of  the  ceremonies  required 
by  the  statute,  is  clearly  a  republication. 


^106  Republication  of  Wills        Chap.  HI. 

executed  upon  the  day  of  the  repfublication ;  but  a  re- 
ference to  the  will  proves  only,  thajt  the  devisor  re- 
cognises the  existence  of  the  will,  which  the  act  of 
making  a  codicil  necessarily  implies;  not  that  he 
means  to  give  it  any  new  operation,  or  to  do  more  by 
speaking  of  it,  than  he  had  already  done  by  executing 
it.  Why  his  speaking  of  it  should  make  the  will 
speak,  as  it  is  said,  is  not  very  easily  discernible,  a^  a 
question  of  intention.  If  he  speak  of  it  at  all,  Ke  must 
speak  of  it  as  existing  upon  the  last  day  as  well  as 

the  first;  but  can  that  shew  that  he  means  it  to  exist 

i' 

in  any  other  form,  or  with  any  other  effect  than  he 
originaUy  gave  it. 

But  his  Honour  concluded  by  saying,  that  Barnes  v. 
Crowe,  afforded  a  certain  rule;  and  if  h?  departed 
from  thatj  it  would  only  be  to  set  every  thing  loose 
again  ;  not  to  get  back  to,  what  he  thought  better, 
the  old  rule,  for  then  Acherley  v.  Vernon  wouW  he  in 
the  way,  He  was  therefore  disposed,  for  the  conve- 
nience of  adhering  to  settled  rules,  and  former  deci- 
sions, to  hold  the  codicil  a  republication. 

From  what  has  been  said  it  may  be  collected,  that 
^  though  a  codicil  properly  executed  makes  the  will 
speak,  (as  it  is  expressed)  at  the  date  of  the  codicil, 
yet  it  must  have  words  clearly  applicable  to  the  inter- 
mediate acquisitions,  or  it  cannot  have  the  effect  of 
If  ■  will     passing  ^them.     And  if  it  had  a  specific  reference  to 
dfic  refer-  a  thing  existing  when  it  wap  first  published,  but  sub- 
thing  sub.   sequently  withdrawn,  Uie  repubUc^ticm  of  it  by  a  co- 
wheD  it      dicil  will  not  make  it  operate  upon  another  subject, 
published,  which  hus  comc  by  substitution  into  the  place  of  the 
qnentiy      thing  SO  withdrawn,  though  precisely  similar  in  its 
^wn,  tiie  amount  and  quality.     Thus,  where  a  man^  by  his 


I 

Sect.  2.  By  Codicil.  4&t 

marrislge  setdement^  having  a  power  to  charge  a  sum  JfjJJ'^J?^*" 
of  2000/.  upon  certain  premises^  made  his  will  accord-  ^y  ^^' 
ingly,  disposing  of  this  sum^  and  afterwards  by  a  sub-  mnkeit 
sequent  settlement  extinguished  his  former  power^  and  nponano- 
created  to  himself  a  new  power  of  charging  the  same  which  ha»* 
sum  on  other  property,  and  afterwards  made  a  codicil  ftubstitii. 
with   three  witnesses,    making  no   mention   of  the  theoiace 
power;  the  Master  of  the  Rolls,  Sir  William  Grant,  twn^M 
held  clearly  that  the  power  itself  being  gone  before  anlwii, 
the  death  of  the  testator,    the  will  had  nothing  to  SSlIf hi**' 
operate  upon,  and  could  not  be  applied  to  the  new  Jnd™^ 
power.     It  is  true,  he  observed,  a  codicil  has  the  ef-  ^^^^' 
feet  of  republishing  a  will,  and  makes  it  speak  at  the 
time  of  the  republication.     But  here  the  will  speaks 
only  of  the  power  given  by  the  marriage  settlement^ 
which  was  as  much  gone  as  if  it  had  never  existed. 
It  was  a  new  power,  for  a  new  consideration,  affect- 
ing different  estates  ^ 

This  then  appears  to  be  the  proper  understanding 
of  the  doctrine^  viz.  that  the  codicil,  if  executed  so 
as  to  act  upon  the  subject,  brings  down  the  will  tp 
its  own  date,  and  makes  it  speak  as  if  it  were  made 
at  that  time  (3) ;  but  that  still  it  is  made  to  speak 

'  7  Vez.  Jan.  499.  Holmes  v.  CoghiU. 


(3)  There  ib  a  difference  between  the  relation  which  a  codicil  Difference 
bears  to  a  will,  once  completed  according  to  the  then  existing  in-  ^Q^i^il  aDd 

tention^  and  that  which  subsists  between  the  interrupted  stages  of  tkese^ncl 

of  an  in* 
one  entire  testamentary  act ;  and  upon  this  distinction,  will,  it  ceptive 

*ii 
seems,  depend  the  question,   whether  or  not  the  ^rst  ad  of  the 

testamentary  disposition  will  require  to  be  executed  and  attested 

according  to  the  statute.     But  whether  the  subsequent  writing  be 

1 


*0*  Republication  of  Wills  Chj*.  lit 

only  ks  own  sense,  and  if  it  had  any  particular  yiew 
to  any  particular  obiect  or  nnrnose.  which  ceased  to 


rf  ■*■ 


considered  as  a  repablication  by  way  of  codicil,,  or  as  the  conclu^ 
sien  of  sometiiing  already  begun,  sach  subsequent  writiog  to  be  ef- 
fectual to  pass  land,  ought  to  be  executed  as  the  stafute  directs  in 
the  case  of  a  detise  of  lands. 

Difference       When  a  will  properly  excfcuted  to  pass  freehold  estates,  refers  i<r 
between  a  ...  .  , 

codicil  and  an  unexecuted  paper  alreadu  in  exisiencty  by  an  unambigaous  des- 

coraonted  ^"P**®"j  *"d  expressly  adopts  its  contents  among  its  own  di^MH- 
by  refers  tions,  such  paper  is,  with  exact  propriety,  said  to  be  incorporated 
into,  and  to  be  executed  by  the  execution  of,  the  will,  for  its  reis- 
tion  to  it  is  that  of  the  part  to  the  whole ;  but  where  a  codSdl  is 
said  to  be  part  of,  or  incorporated  into  a  will,  this  union  must  be 
imderstood  to  be  die  effect  of  its  Jirst  acting  iqnm  the  TtiH  bif  Hr 
own  Jbrce^  and  attracting  it  to  itself.  The  will  must  be  completed 
by  a  previous  execution  to  be  so  republished,  and  when  so  republished 
must  be  regarded  as  a  new  will.  And  it  was  upon  this  principle 
that  in  the  Attorney  General  v.  Iteartwell,  Ambl.  451.  where  a  will 
was  made  before  the  statute  of  mortmain,  bequeathing  personalty 
to  be  laid  out  in  lands  for  a  charity,  and  after  the  statute  the  will 
was  conArmed  by  a  codicil ;  the  codicil,  by  making  the  will  a  new 
will,  brought  the  devise  within  the  statnte ;  and  the  sane,  ac- 
cordingly, was  declared  void  by  Lord  North ington. 

Hence  we  see  the  necessity  for  both  will  and  codicil  to  be  exe- 
cuted according  to  the  statute.  In  the  case  put  of  the  reference  by  the 
will  to  an  existing  paper,  such  paper  is  urate  till  it  is  acted  upon  by 
the  instrument  that  incorporates  it,  and  has  no  testamentary  opera- 
tion before  the  execution  of  such  instrument ;  whereas  in  the  In- 
stance of  the  codicily  the  will  is  Jirst  acted  vpon  thereby,  and  being 
brought  down  to  the  date  thereof,  speaks  again  with  reference  to  the 
state  of  the  property,  by  yirtue  of  the  execution  of  the  codicil^  with 
which  it  becomes  incorporated,  and  thus,  by  a  consequence  of  rea- 

4 

soning,  becomes  re-execnted  and  re-published  with  the  solemnities 
prescribed  by  the  statute.  And  this  is  properly  the  republication 
by  codicil,  the  effect  and  meaning  of  which  is,  that  the  terms  and 
words  of  the  will  shall  be  construed  to  speak  with  regard  to  the 
property  of  the  testator,  and  the  objects  of  bis  dbposltions,  jnst 
as  they  stand  circumstanced  at  the  date  of  the  codicil.  In  constrn- 
bg  such  will  so  republished,  It  must  be  considered  therefore  what 


StCT.  2.  By  Codicil.  409 

exist  during  the  interval  between  the  will  and  codicil, 
the  codicil  will  not^  from  the  accidental  aptitude  of  the 
words  to  another  subject  created  or  acquired  since  the 
will,  have  any  operation  upon  that  which  was  so  en- 
tirely out  of  the  original  view,  of  the  testator. 

In  a  very  recent  case  (4),  circumstanced  in  some 
respects  like  the  one  last  above  cited,  where  a  will  had 
been  made,  and  a  recovery  subsequently  suffered, 
upon  which  was  reserved  a  power  to  the  testator  to 
declare  the  uses  of  the  land  by  his  will  or  codicil,  and 
then  the  testator  made  a  codicil  confirming  his  will, 
except  where  altered  by  that  codicil^  but  taking  no 
notice  of  his  power,  the  Court  of  King's  Bench, 
upon  a  case  for  their  opinion  out  of  Chancery,  held 
that  the  power  was  not  executed  by  the  codicil :  one 
of  their  reasons  for  which  opinion  seemed  to  be,  that 


the  words  of  the  will  at  the  time  of  the  republication  import' 
Their  sense  cannot  be  enlarged,  but  their  operation  may,  if  time  or 
accident  have  increased  the  amount*  or  number  of  the  particulars 
comprised  within  the  compass  of  its  expressions  *. 

(4)  10  East,  242.  Lane  v.  Wilkins.  It  must  be  admitted  how- 
ever, that  the  more  preTailing  and  ostensible  reason  seemed  to  be, 
that,  as  the  will  declared  only  the  testator's  intention  not  to  disturb 
the  existing  limitation  in  tail  by  suffering  a  recovery,  but  to  leave 
the  estate  to  go  as  it  stood  limited,  this  declaration  amounted  to  no 
devise  at  all ;  and  when,  after  having  altered  his  intention,  and 
taken  a  new  estate  in  the  preniises.  by  suffering  a  recovery,  reserr- 
iDg  to  himself  a  power  of  appointment  by  deed,  will,  or  codicil^ 
he  executed  a  codicil  expressly  confirming  his  will,  such  codicil 
could  not  be  considered  as  carrying  the  will  further  than  its  natu- 
ral and  proper  effect,  which  was  not  a  positive  devise  or  disposition, 
bat  the  declaration  of  a  purposed  omission. 

4 

*  It  is  ohvimn  upon  equitable  principles,  that  if  a  will  is  republbhed,  cob- 
taining  a  gencial  devise  of  the  testator's  estates,  an  estate  only  contracted  for  a^ 
tcr  nch  general  devise,  will  pass.    10  Vez.  Jan.  §05.  Broome  v.  Monck. 


4W  Republication  of  WUls.       Chap.  III. 

they  could  not  infer  an  intention  to  execute  the  power 
from  tiie  mere  general  confirmation  of  the  will  by  the 
codicil ;  though  they  readily  admitted  that  it  was  not 
necessary^  that  any  express  reference  should  be  con- 
tained in  a  will^  to  make  it  a  valid  execution  of  a 
power. 

• 

2?ac^Si  ''  **•*  ^"  "^^  solemnly  decided,  that  this  effect 
asarepab-  ^f  i^  codicil  wpon  a  wiU,  of  making  it  speak  as  to 
may  be  re-  the  existing  property  of  the  testator,  may  be  re- 
iu  special  stnuued  bv  the  manner  in  which  the  codicil  is  ex- 

ternu. 

pressed.  Thus,  where  the  codicil,  reciting  the 
devise  by  the  will,  revoked  the  same  as  to  two  of 
the  U*ustee8,  and  then  devised  the  said  lands,  &c., 
lands  purchased  between  the  will  and  codicil  have 
been  adjudged  not  to  pass*. 


Section  III. 


€f  the  Republication  of  Wills  of  personal  Estate. 

AS  it  is  hoped  that  by  this  view  of  the  cases  the 
progress  of  the  doctrine  of  republication,  as  to  real 
estate,  is  made  clear  to  the  reader ;  I  shall  now  say  a 
few  words  upon  the  question  of  the  republication  of 
wills  of  personal  estate.  In  respect  to  this  desaip- 
tion  of  property,  the  doctrine  is  said  not  to  have  been 

'  3:  Bos.  et  Pali.  500.  Bowes  v.  Bowes,  (House  of  Lords). 


Sf:i;T.  &  Qf  personal  Estate.  4il 

qhilQged  by  the  statute  of  frauds ;  and  this  ^ppefbrf 
to  hav/e  been  the  opinion  of  Lord  Hardwicke^  fnm 
th^  words  uaed  by  his  Lordship  in  the  case  of  Abhey 
V.  MUIer%  wherein  the  act  of  republication  insisted 
upon  was^  that  the  testator^  after  renewing  his  leases^ 
being  in  search  for  another  paper^  and  the  person 
who  was  assisting  him^  having  taken  up  the  will  by 
mistake^  he  said^  ^'  This  is  my  will/'  not  meaning 
thereby  to  republish^  but  to  shew  that  it  was  lurt  the 
paper  he  wanted.  His  Lordship  observed^  that  te 
make  it  a  republication^  there  roust  be  the  animus 
republicandi  in  the  testator,  which  observation  war* 
rants  the  inference,  that  he  was  then  of  opinion^ 
that  if  the  words  used  had  been  declarative  of  an 
intention  to  republish,  they  would  have  been  efifec* 
tual  to  produce  such  a  consequence.  What  will  be 
the  weight  of  this  doctrine  of  Lord  Hardwicke,  when 
the  point  conues  directly  under  adjudication,  remains 
to  be  seen  ;  but  in  the  mean  time,  one  may  be  per- 
mitted tp  surest,  that  there  is  a  difficulty  in  conceive 
iug  why  the  clauses  of  the  statute,  which  alFect  the 
publishing  of  wills,  should  not  also  reach  to  the  re- 
publication of  them. 

A  republication  is  a  new  publication ;  and  if  a 
will  can  be  republished  by  parol  so  as  to  make  it  pass 
property  not  affected  by  its  original  disposition,  (1) 
what  is  this  but  making,  partially  at  least,  a  nuncu- 
pative testament,  unaccompanied  by  the  forms  pre- 

*  2  Atk.  599. 


(1)  This  supposes  the  case  of  a  specific  bequest,  for  a  geoer^l 
dispositiou  of  personal  estate  would  be  prospective,  and  therefore 
would  not  raise  the  question. 


412  Republication  of  WUU.       Chap.  111. 

scribed  by  the  statute  ?  We  have  seen  that  many  of 
the  judges  struggled  hard  against  admitting  a  parol 
republication  of  wills  of  UmdSy  even  before  the  statule 
of  ftavds,  as  being  in  contravention  of  the  statute 
of  wills  ;  and  where  the  requisites  are  not  observed  so 
as  to  make  good  a  nuncupative  testament^  the  statute 
of  frauds  has  imposed  the  same  necessity  for  a  writ- 
ten declaration  of  the  will  in  respect  io  personalty. 
No  subsequent  writing  can  republish  a  will  of  land, 
since  the  statute  of  frauds,  unless  it  be  executed  so 
as  to  be  itself  capable  of  passing  land  according  to 
that  statute  ;  why  then  should  a  will  of  personal  es- 
tate be  capable  of  being  republished  without  the  ob- 
servance of  the  mode  whereby  alone  a  personal  will 
can  be  rendered  effectual }{%) 

^ctitn  ^^^^  branch  of  my  subject  may  be  concluded 
of^ere-  jjy  observing,  that  although  words  are  never  allowed 
Btniment    to  havc  the  effect  of  republishins:  a  will  of  lands, 

may  ope-  i  . 

nte  as  an   (whatever  may  be  the  doctrine  in  respect  to  personal 

implied  re- 

pnbiica.  tcstameuts)  yet  where  an  express  or  implied  revo- 
ting  np  the  catiou  has  taken  place,  it  has  been  held  that  the  will 
^  may  be  set  up  again  by  a  species  of  implied  republi- 
cation,  founded  upon  the  destruction  of  the  revoking 
instrument.  As  where  a  testator  makes  two  wills, 
the  latter  of  which  is  inconsistent  with,  or  expressly 
revokes  the  former,  yet  if  he  afterwards  destroy  the 
second  will^  leaving  the  first  in  a  perfect  state,  the 
original  will  is  held  to  be  set  up  again^ .      And  this 

^  Glazier  v.  Glazier,  4  Burr.  1b\%. 


(2)  Words  written  in  a  Yoid  space  left  in  a  will  was  beld  bj 
Lord  Hardwicke  to  be  a  republication.  Carte  v.  Carte,  Ambl.  SO. 
But  it  is  clear  that  this  can  onlj  be  so  in  respect  to  personal  estate. 


Sect.  3.  Of  personal  Estate.  413 

seems  to  stand  upon  plain  principles^  for  the  first 
will,  being  ambulatory  during  the  testator's  life^  is  in 
existence  without  any  alteration  at  the  time  when  its 
operation  is  to  begin,  and  that  which  was  to  be  de- 
structive of  its  operation,  is  out  of  the  way  at  the 
moment  when  it  was  to  have  its  destructive  effect. 

But  if  a  legacy  given  by  a  will  be  adeemed,  a  codi- 
cil, ratifying  and  confirming  the  will,  has  not  the 
effect  of  setting  up  the  adeemed  legacy''. 

'  Monck  9.  Lord  Monck,  1  Ball  and  Beatty,  298.  and  see  Irod 
r.  Hant,  2  Freem.  224.  Drinkwater  v.  Falconer,  3  Vcz.  Jun. 
023. 


(  414  ) 


CHAPTER  IV. 


OF  THE  IMPORT  OF  WORDS  AND  PHRASES. 


Section  I. 

As  to  moveable  things. 

SSSteu"^  ^  Goods  and  chattels"  are  the  most-comprehen- 
what  they  sivc  terms  of  description  for  passing  property  of  a 
hend.  personal  nature  by  will.  In  the  civil  law  all  estates 
are  divided  into  bona  mobilia  and  bona  immobilia; 
and  it  has  been  authoritatively  said  that  in  wills  relat- 
ing to  personal  estate  words  should  be  construed 
agreeably  to  the  rules  of  the  civil  law*.  Thus  it  may 
be  regarded  as  settled  that  the  word  ''goods"  is  suffi- 
cient in  its  general  sense  to  pass  the  testator's  leases^ 
and  bonds,  where  there  is  nothing  expressed  to  afford 
an  inference  of  its  being  used  in  a  narrower  signifi- 
cation.    But  though. this  is  the  original  and  technical 

•  Cro.  Eliz.  387.  1  P.  Wms.  267. 
^  1  £q.  Ca.  Abr,  199. 


Sect.  1.  As  tif  moveable  things.  41  ( 

sense  of  the  word  ''  goods/'  yet  the  word  is  very  stts* 
ceptible  of  modification  from  the  context^  and  it  will  be 
seldom  found  to  have  this  comprehensive  effect  except 
where  it  makes  part  of  the  residuary  clause.  Tbuft 
in  the  case  of  Crichton  v.  Symes%  where  the  bequest 
was  in  these  words^  I  give  and  beneath  to  B.  aU  m^ 
goods,  and  wearing  apparel,  of  what  nature  and  hind 
soever,  except  mg  gold  watch.  Lord  Chancellor 
Hardwicke  decreed^  that^  as  these  words  stood  in  the 

4 

>vill^  the  testatrix  intended  to  give  only  her  wearing 
appArel^  ornaments  of  her  person^  and  households 
goods  and  furniture^  but  no  other  part  of  her  per^- 
sonal  estate.  And  in  another  case^  where^  after  a 
devise  by  a  testator^  of  all  his  household  goods^  and* 
other  goods^  and  all  his  stocky  &c.  he  bequeathed'  thev 
residue  of  his  personal  estate  to  J.  S. ;  it  was  eonsi^' 
deredthat  if  the  devise  of  all  the  testator's  goods- 
were  taken  in  its  largest  sense^  it  would  frustrate 
the  bequest  of  the  residuum^  which  should  not  btt» 
allowed;  and  that  it  seemed  reasonable  that  the* 
words  "  other  goods/'  should  be  understood  to  signify 
things  of  the  same  nature  with  household  goods^  The 
decree  accoidingly  was^  that  the  money^  cash^  and 
bonds  passed  by  the  residuary  devise  ^. 

4 

Boads^  being  a  species  of  choses  in  action^  and  as*  fh^^^f^^ 
such  admitiing  of  no  locality^  will  not  pass  under  ai  *^^^"^f^* 
devise  erf  ''  goods  and  chattels"  in  a  particular  place,  ^'^^  *J*^^ 
though  they  happen  to  be  there  at  the  testator'ii  P^*^^j*^f 
death*.  And  the  same  may  be  said  of  bills  of  ex-  property  in 
change,  promissory  notes^  judgments  and  records,  lar  place. 

0 

•  3  Atk.  61.        *  Woolcomb  v.  Woolcomb,  S  P.  Wma.  11^ 

*  Chapaan  9l  Hart^  373; 


416  Import  of  Words  and  Phrases.  Chap.  IV: 

npon  the  same  principle ;  but  no  doubt  can  be  enter- 
tained that  the  word  '^  goods  "  will  extend  generMy 
to  all  these  securities  for  money^  since  the  debts 
themselves  are  clearly  comprehended  under  the  term'. 
It  is  equally  clear  that  money  in  specie  passes  under 
Btok        the  same  word.     And  bank  notes  were  considered  as 

notes ; 

whether  to  bcins:  Carried  by  the  words  "ffoods  and  chattels"  in  a 

be  coDsi.  .„ 

deredas     Will,  althou£ch  the  bequest  was  confined  to  the  ffoods 

cash  or  as  *  e>  n  o 

choses  in    and  chattels  in  a  particular  house ;  bank  notes^  in  the 

action. 

view  of  the  Chancellor^  being  regarded  as  in  the  na- 
ture of  cashj  rather  than  as  choses  in  action.  Had 
they  been  looked  upon  as  choses  in  action^  they  would, 
for  the  reasons  above-mentioned^  not  have  passed 
under  the  description  of  goods  and  chattels  in  a  par- 
ticidar  place^.  It  has^  however^  been  held  that, 
where  a  limited  and  express  pecuniary  legacy  is 
given^  and,  by  general  words^  alt  the  goods  and  chat- 
tels in  and  about  the  house  are  afterwards  bequeathed 
to  the  same  person,  money  in  the  house  will  not  pass 
to  the  legatee,  on  account  of  the  particular  legacy 
before  devised  to  him  ^. 

^Mtoof  ^^^  general  rule  is  that  where  a  testator  de- 
coods  in  a  yiscs  all  the  goods  in  a  house  or  place,  the  descrip- 
tion will  relate  to,  and  comprehend,  all  such  as  shall 
be  inr  the  house,  or  place^  at  the  time  of  the  tes- 
tator's death;  and  that  if  they  happen  to  be  removed 
to  anqther  place,  in  the  life-time  of  the  testator, 
they  will  not  pass.     But  this  rule  must  be  under- 

'  Moore  v.  Moore,  1  Bro.  C.  C.  128. 

■  1  Vez.  273.    But  see  thb  point  doubted  by  Lord  Eldoo,  in 
11  Vez.  Jan.  662. 


'  2  Ch.  lUp.  190.    2  Atk.  112.    3  ?•  Wnw.  112.  | 


r 

I 


Sect.  1.  A$to  msveahle  thifigs.  4H1 

stood  with  some  qudiiication^  for  if  die  ^oeds  are  re- 
moved upon  some  sodden  emergttticy^  as  on  Account 
of  lire^  inundation^  Sec,  and  l>efe«e  they  can  he  n^ 
turned  to  tbeir  place  the  testator  die*;  they  AmU  be 
considered  as  if  they  were  aotoally  in  the  testator's 
house  at  his  death,  and  the  legacy  is  not  def^ted  by 
such  an  accident  ^ 

When  the  subject  matter  of  a  bequest  is  a  coUec-  y>«p^ 

^^  ^  bequest  is 

ttve  and  fluctuating  bpdy,  subsequent  additions  are  ^^coUe^r 
considered  as  passing,  notwithstanding  the  terms  of  ?^^Jf 
the  bequest  are  particular  as  to  {^aoe  and  lime ;  pmm^ 
thus  it  has  been  said,  that  if  i  doTise  aU  my  flook  ef 
sheep  now  on  such  a  hill  or  in  such  a  posture,  the  sheep^ 
subsequently  produced,  will  pitss ;  for  it  is  witiiin 
the  reason  of  a  devise  of  the  personal  estate,  which 
being  aiways  fluctuating,  shall  relate  to  the  time  of 
the  testator's  death.  And  the  same  principle  hat 
been  carried  to  the  devise  of  the  testator's  library  of 
books,  now  in  the  custody  of  B.,  under  which  devise^ 
books  subsequently  added  to  the  seme  library,  were 
held  to  pass  ^.  So  alM  in  the  ease  of  General  Guis^ 
who  by  his  will  gave  all  his  collection  of  pietnres  to 
Christ  Church  College,  in  Oxford,  and  afterwards 
sold  some  and  added  others  to  the  collection.  Lord 
Camden  was  clear  that  the  pictures  added  to  the  col- 
lection passed,  upon  the  principle  that  the  personal 
estate  is  fluctuating  \ 

But  in  general  caises  the  word  n^io  would  he  con- 
sidered as  restricting  the  devise  to  the  paresait  state 
of  the  thing  given. 

'  Ibid,  and  see  %  Vera.  747. 

'  IP.  Wms.  597.  AU  Souls'  CeH.  v.  CoddriD|rtoii, 

'  Ambler,  641. 


418  Impart  of  Wards  and  Phrases    Chap.  IV. 

If  I  devise  all  the  corn  now  in  my  barn^  and  part 
of  the  corn  is  afterwards  consumed  and  fresh  com  put 
in^  Sir  Joseph  Jekyll  thought  such  new  corn  wou)d 
not  pass :  though  the  contrary  is  laid  down  in  S  winburn, 
448.  But  if  there  be  no  such  words  importing  indi- 
iriduality^  as  if  a  man  devise  all  his  plate^  and  makes 
subsequent  purchases  of  plate,  what  he  has  at  his 
death  passes'". 

Goods  on  In  the  important  case  of  Chapman  and  Hart^  a  dif- 
ihip.  ference  was  taken  between  a  bequest  of  goods  in  a 
house,  and  of  goods  on  board  a  ship.  Lord  Hard- 
wicke  observed,  that  the  latter  devise  must  be  taken  to 
be  made  with  a  consideration  of  the  several  contingen- 
cies and  accidents  they  are  liable  to  in  such  a  situation ; 
and  if  it  should  be  determined  that  if  by  any  accident 
they  should  not  be  on  board  at  the  testator *8  death, 
they  would  not  pass,  many  marine  wills  would  be 
defeated.  If  the  goods  were  removed  to  preserve  them, 
the  ship  being  leaky  or  likely  to  founder,  or  if  the  tes- 
tator be  removed  to  another  ship,  (which  is  a  contin- 
gency to  which  he  is  daily  subject),  this  will  not  defeat 
the  legacy.  But  if  a  testator  devises  all  the  furniture 
at  his  house  in  A.,  such  a  devise  will  not  pass  furniture 
intended  to  be,  but  not  yet  actually,  placed  in  the  house 
at  A.,  even  though  such  goods  were  already  padded 
up  and  ordered  to  be  carried  thither ;  which  was  the 
point  in  the  Duke  of  Beaufort's,  case  \ 

Household       As  a  general  rule,  though' admitting  of  some  qua- 
jm?piate,   lifications,  it  may  safely  be  premised  that  by  a  devise  of 

-  Plowd.  S4S.  •  1  Vei,  97U 

•  «  Vtm.  739. 


3ect.  L  As  to  moveable  things*  419 

household  goods  plate  will  pass  ^;  though  not  by  a  de« 
vise  of  utensils  ">.  But  such  general  bequest  of  furni-> 
ture^  goods  and  chattels^  by  a  silversmith^  will  not 
carry  the  plate  which  constitutes  a  part  of  his  stock 
in  trade^  but  only  the  plate  used  in  his  house '.  And 
the  same  doctrine  has  prevailed  even  in  the  case  of  a 
deed:  Lord  Hard wicke declared  in  the  case  of  Crich- 
ton  and  Symes  *,  that  the  House  of  Lords  were  never  - 
clearer  than  in  the  case  of  Pratt  v.  Jackson  \  that 
the  word  '  goods'  related  only  to  'the  household  goods 
and  furniture^  and  did  not  extend  to  the  goods  of  the 
settler  in  the  way  of  his  trade^  or  his  goods  as  a  con- 
tractor for  the  Government*.  We  find  also  the 
same  principle  further  adopted  and  confirmed  in  Le 
Farrant  v.  Spencer "",  where  the  devise  was  of  all  the 
testator's  household  furniture,  linen,  plate,  and  ap- 
parel whatsoever.  The  ChanceRor  directed  the  case 
to  be  sent  to  a  Master,  to  distinguish  what  goods  the 
testator  had  for  his  domestic  use,  and  what  for  trade 
and  merchandise,  without  which,  he  said,  it  was  impos- 
sible to  determine  the  extent  of  the  bequest,  for  it 
clearly  included  only  the  former. 

Where  a  testator  devises  his  furniture  at  or  in  certain 
houses  named,  such  a  devise  will  not  carry  a  descrip- 
tion of  plate  which  the  testator  was  in  the  constant 
habit  of  removing  with  him  from  house  to  house^  for  that 
could  not  be  said  to  be  the  furniture  of  one  house  more 

• 

»  2  Vera.  572.  638. 1  P.  Wms.425.   2  P.  Wms.  419.  3  Atk.  369. 
•  Djrer,  59.  '11  Vezey  Jun.  666.^ 

'  8  Atk.  63.  '  See  2  P.  Wms.  302. 

*  See  the  note  of  the  decision    of  the  House  of  Lords.  3  Atkf 
6%.  3  Brown's  Parliament.  Cases,  199. 
"  1  Vezey,  97. 

2e2 


480  Import  of  Words  and  Phrases    Chap.  IV. 

than  another^  and  it  would  seem  that  he  meant  only 
the  particular  furniture  of  each  house  ^. 

Under  the  Duchess  of  Bolton's  will'  the  import  of 
the  word  ^furniture*  was  largely  discussed.  The  tes- 
tatrix devised  her  household  furniture  and  farming 
utensils^  which  should  be  within  or  upon  the  premises 
at  her  death  unto  Charles  Powlett.  The  Duchess 
died  possessed  of  a  great  quantity  of  plate^  whicb 
was  worth  about  1600/^  some  useful  and  ornamental 
china^  books^  pictures^  and  linen,  which  were  then  at 
her  house  at  Westcomb.  The  principal  question  was 
as  to  the  plate.  And  his  Honour  premising  that  the 
word  ^furniture*,  unaccompanied  by  circumstances, 
was  a  word  of  very  general  meaning,  and  comprised 
every  thing  contributing  to  the  convenience  of  the 
householder,  or  ornament  of  the  house,  adverted  to 
the  possibility  of  a  restricted  sense  being  put  upon  the 
word  by  a  variety  of  circumstances  which  might  at- 
tend the  case.  He  denied  that  the  question  whether 
the  plate  would  pass  or  not  by  the  word  furniture, 
depended  upon  the  fact  of  its  being  in  common  use  or 
npt.  If  a  person  of  rank  buys  a  service  of  plate  sui- 
table to  his  quality,  and  never  uses  it,  yet,  he  thought, 
the  plate  would  pass  by  the  word  household-Jumiture ; 
but  that,  if  a  tradesman  had  a  dozen  of  silver-handled 
knives  and  forks,  which  he  commonly  used^  and  had 
besides  a  service  of  plate^  which  perhaps  he  bought  as 
a  good  bargain,  the  service  would  not  pass.  Upon 
the  whole  of  the  case  his  Honour  was  of  opinion  that 
the  plate  did  pass  by  the  word  household  fttmiture. 

*  See  Eq^iity  Cases  Abridg.  Ttt.  Derises,  (k). 
'  Ambl.  605.  Sir  6.  KeUy  v.  Powlett. 


Star.  I.  As  to  moveable  things.  4S1 

He  waft  also  of  opinion  that  the  linen  and  china^  bot6  Une^^m. 

*  n%y  ana 

usefal  and  ornamental^  as  also  the  pictures^  both  those  pietares. 
which  were  hung  up  and  others  that  were  in  cases^ 
passed  by  the  devise ;  but^  in  conformity  to  the  deci- 
sion ill  Bridgemaii  v.  Dove ',  he  determined  that  the 
term  hausehold'fumUure  did  not  inclade  books. 

Id  Snelfton  v.  Ck)rbet*  Lord  Hardwicke  seemed  to 
consider  the  evidence  of  the  ptate  being  used  in  the 
house  as  going  some  way  towards  determining  the 
question  whether  it  was  included  or  not  in  a  devise 
of  household-furniture  in  the  affirmative.  In  the 
case  of  Jesson  v.  Essington*  Lord  Keeper  Wright  ' 
gave  it  as  his  opinion^  that  by  a  devise  of  rings  and 
household  goods  plate  used  in  the  house  did  not  pass. 
But  the  opinion  of  the  Master  of  the  Rolls^  Sir  Tho- 
mas Clarke^  in  the  above-mentioned  case  of  Kelly  v. 
Powlett  appears  to  afford  very  just  criteria  fbr  decid- 
ing this  question  under  all  circumstance's^  and  subse- 
quent cases  seem  mainly  to  have  adopted  his  principle  ^ 

It  appears  also  that  since  that  case  it  has  been  con-  Books, 

globes,  and 

sidered  uniformly^  that  under  the  mere  term  house-  mathma- 
htfld*furniture^  books  will  not  pass  to  the  legatee  ^ :  stramento. 
not  even  where  the  word  '  furniture'  has  been  con- 
nected with  other  things  furnishing  entertainment  to 
the  mind  as  medals  and  pictures :  .and  it  seems  that 
globes  and  miithematical  instruments  are  equally  out 
of  the  scope  of  the  word  '  furniture'  in  a  will ', 

■  3  Atk.  M2. .  '  3  Atk.  369.  *  Free,  in  Ch.  207. 

*  See  the  authority  of  this  case  admittied  in  the  case  of  Porter 
and  Toumay,  3  Vesey  Jun.  311. 

*  3  Vesey  Jan.  311.  Porter  and  Toomay. 
^  Free,  in  Ch.  207.  note. 


425i  Import  of  Words  and  Phrases    Chap.  IV. 

Ifedait,  hard  Hardwicke  was  of  opinion  that  under  the  word 

corns,  jew-  * 

dB,  onuu    medals,  curious  pieces  of  current  coin  kept  with  me- 

menti  of  ' 

the  person,  dais  will  pass  as  such.  But  ornaments  of  the  person, 
as  jewels^  &c.  will  not  pass  by  a  bequest  of  a  cabinet  of 
curiosities^  even  though  such  ornaments  may  be  kept 
together  with  the  curiosities,  and  occasionally  shewn 
with  them.  Thus,  where  E.  C.  in  a  codicil  to  her  will 
made  the  following  bequest,  "  I  give  to  J.  S.  my  collec- 
tion or  cabinet  of  curiosities,  consisting  of  coins,  me- 
dals, gems,  and  oriental  stones,  and  other  valuable 
things,''  the  question  was  whether  certain  ornaments 
of  the  person  were  within  the  bequest  Evidence  being 
read  of  persons  in  the  trade  as  to  the  different  sense  of 
gems  and  jewels,  that  the  latter  meant  stones  set  and 
prepared  for  wear,  the  former  the  same  things  when 
kept  for  curiosity  only,  the  Lord  Chancellor  said,  he  took 
it  that  things  to  pass  under  the  will  in  question  inttst 
be  ejusdem  generis  with  those  expressly  devised,  and 
that  ear-rings,  and  other  ornaments  of  the  person, 
were  part  of  the  personal  estate,  and  not  specimens 
of  natural  curiosity.  Had  Mr.  Pitt's  diamond  been 
in  the  cabinet  as  a  specimen  of  natural  curiosity,  it 
must  have  passed  to  the  devisee ;  and  therefore  he 
thought  the  proper  line  of  distinction  was  their  be- 
ing prepared  for  wear,  if  not  worn  ;  and  directed  an 
enquiry  to  be  made  with  respect  to  their  being  worn. 
On  the  Master's  report  that  they  were  occasionally 
worn^  the  cause  came  on  before  his  Honour,  sitting 
for  the  Lord  Chancellor,  who  was  of  opinion  that  that 
circumstance  made  the  difference  ^ 

Under  a  bequest  of  the  use  of  a  house  with  all  the 

^  I  Bro.  C.  C.  467.  and  2l 


Sect.].  As  to  moveable  things.  483 

furiMture^  and  stock  of  carriag'es  and  horses  and 
other  live  and  dead  stocky  to  J.  W.  for  life ;  it  wasr 
held  agreeably  to  what  has  b^en  above  observed^  that 
the  plate  did  pass  as  being  included  under  the  w^ord 
furniture^  but  that  the  wine  did  not*. 

In  the  case  of  Porter  and  Tournay^  it  appeared  to  liTeuui 
have  been  the  opinion  of  the  Master  of  the  RoIIs^  that  nock. 
the  words  live  and  dead  stock  are  of  too  ambiguous 
an  import  to  receive  any  certain  construction^  but 
that  coupled  with  other  words^  they  might  receive  a 
sense  correspondent  to  those  words :  thus^  if  after  giv- 
ing furniture^  1  give  all  my  live  and  dead  stocky  I 
shall  be  held  to  mean  in-doors  stocky  as  wine^  liquors^ 
&c. ;  and  if  the  word  is  coupled  with  what  usually  forms 
a  part  of  the  property  without  doors^  then  only  such 
live  and  dead  stock  as  are  out  of  the  house  and  about 
the  premises  will  be  considered  as  intended.  In  Porter 
and  Tour nay^  the  case  just  alluded  to^  the  words  Mive 
and  dead  stock'  immediately  followed  the  words  ^  stock 
of  carriages  and  horses/  and,  therefore,  the  Master, 
of  the  Rolls  applied  these  words  exclusively  to  the  out* 
doors  stock :  adverting  to  the  difference  between  that 
case,  and  Gower  v.  Gower '';  in  which  the  disposition 
was,  of  all  other  the  testator's  goods  and  chattels 
whatsoever  which  should  be  in  and  about  his  dwell- 
ing-house and  out-houses. 

Standing  corn  will  pass  under  the  description  of  Farming 
stock   of    the  farm.     Thus  where  one    devised  a 
farm    in    his  own   occupation,    to  his   mother   for 
life,  remainder  to  G.  in  tail,  and  also  devised  to  his 

»  3  Vez.  Jan.  311.  *  Ambler,  612.    . 


4Uli  Import  of  Words  and  Phrases    Chap.  IV. 

lAothar  ftU  hk  goods  and  chattels^  stock  of  his  farm, 
boiid9^  &C.J  and  all  olbef  hi»  moteables  whatsoever, 
and  made  her  execatrix ;  it  was  held  that  growing 
com  which  Mraa  not  reaped  till  after  the  death  of  the 
testator  and  of  his  mother^  who  died  soon  after  bin, 
passed  to  her  representative,  and  not  to  G.  the  devisee 
df  the  kfld'.  And  ift  a  lubsequeftt  eafte  where  there 
was  a  simllaf  dispodiU6fi  of  the  stock  upon  the  testa- 
ttt^ti  farm  after  a  devise  of  (he  land  in  fee^  the  devise 
of  the  stock  was  held  to  carry  the  standing  crops  of 
corti ;  although  iti  that  case  the  devise  of  such  stock 
wto  t6  the  executors  to  p^y  debts ;  attd  although  there 
Were  Assets  sufficient  to  pay  the  debts  and  legacies 
without  such  part  of  the  property  ** 

stock  ia        With  respect  td  the  words  '  itock  in  trade/  what 

trade.  *  ^    . 

shall  be  comprebetided  in  these  terms  must  always 
ill  a  ^reiit  meteure  depend  upon  evidence  of  in- 
tention^ intrinsically  or  extrinsioilly  collected;  but 
vfhefe  there  is  nothing  peculiar  in  the  case  to  de- 
termine the  import  of  the  phrase^  the  popular  and 
uduM  underi^tanding  of  the  words  must  govern 
their  interpretation.  It  may  also  be  a  question 
of  tome  difficulty  what  Words  will  carry  stock  in  trade, 
ai  well  as  what  the  wordi^  'stock  in  trade'  will  carry. 
In  the  c«ite  of  Stewart  t.  Marquis  of  fiute^  where 
the  testator  gave  all  his  waggon- Ways,  riiils,  staiths,  and 
all  implements,  utensils  and  things^  at  his  death  used 
of  employed  together  with,  or  in  or  for,  the  working, 
manageinen  t  or  employment  of  his  collieries,  and  which 

mi^ht  be  deemed  bf  the  nhtnre  of  person^  estate,  in 

'  6  Eagty  604.  note,  Cox  v.  GodsaWe. 

'  8  East,  339.  West  and  another  executors  of  Moore  v.  Moore. 

'  11  Vex.  Jan.  057. 


Sect  1.  As  to  tnoveable  things,  425 

trust  to  be  held  or  enjoyed  with  the  collieries^  Lord 
Ilogslyn  decreed  that  under  this  bequest  money  due 
from  the  fitters  and  others  and  in  the  Tyne  Bank^ 
coals  at  the  pits^  and  staiths^  corn^  hay^  horses^  tim- 
ber^ oil^  candles^  fire-engines^  and  other  articles  of 
stock  in  trade  passed ;  which  decree  was  affirmed  on 
the  rehearing  by  Lord  Eldon  His  Lordship  how- 
ever expressed  considerable  doubts^  which  doubts  it  is 
conceived  related  principally  to  the  monies  due  from 
the  fitters  and  at  the  bank  (1). 

The  questions  arising  upon  bequests  of  stock  in  stock  in 
the  public  funds^  are  very  numerous  and  branching.  fuB<b?« 
But  in  a  treatise  like  the  present^  intended  for  general 
use^  it  will  be  expedient  to  confine  the  consideration 
of  the  subject  to  cleat  and  practical  distinctions. 

The  topic  of  most  frequent  discussion  on  the  sub- 
ject of  the  bequests  of  stock,  is  whether  the  legacy  is 
to  be  regifded  as  specific  or  general.  In  the  case  of 
Purse  t?.  Snaplin",  Lord  Hardwicke  states  a  specific 
legacy  to  be  a  bequest  of  a  particular  chattel,  speci- 
fically described,  and  distinguished  from  all  other 
things  of  the  same  kind ;  which  may  in  other  words, 

-  1  Atk.4li. 


(1)  In  a  case  in  Ambler,  395.  where  a  man  devised  freehold  and 
copyhold  messuages,  lands  and  tenements,  to  A.  for  life,  with  remain- 
der over,  and  afterwards  the  residue  of  his  personal  estate  to  B.  and 
made  B.  executor  ;  and  par{  of  the  testator's  estate  consisted  of  a 
brew-house  and  malt-house,-  which  together  with  the  plant  and 
ntensils  were  then  in  lease ;  it  was  held  that  the  plant  passed  to  the 
derlsee;  for  without  the  plant  the  walls  could  be  of  no  use,  and  it 
was  material  that  they  were  in  lease  together.  The  testator  must 
therefore  hate  meant  to  derlse  them  both  together. 


426  Import  of  Words  and  Phrases    Chap.  IV. 

as  Mr.  Coxe  observes  ■,  be  stiled  an  individual  legacy 
(2).  But  courts  have  been  led  to  the  construction  of 
bequests  of  specific  legacies  by  other  indicia.  Thus 
in  Jeffreys  v.  Jeffreys^  afterwards  decided  by  the  same 
g^eat  equity  judge,  the  testator  having  at  the  time  of 
making  his  will  just  so  much  stock  as  would  exactly 
answer  the  two  legacies  which  he  thereby  bequeathed, 
they  were  both  held  to  be  specific.  In  the  case  of 
Purse  V.  Snaplin,  before  alluded  to,  there  were  two 
legacies  of  5000/.  in  the  old  South  Sea  annuity  stock 
of  the  S.  S  Company^  to  two  persons  respectively; 
and  the  testator  at  the  time  of  making  his  will  and  at 
his  death  had  only  5000Z.  in  old  S.  S.  stock.  Lord 
Hardwicke  considered  these  bequests  as  entitling 
the  legatees  to  have  them  made  good  out  of  the  testa- 
tor's general  assets ;  and  the  principle  upon  which  the 
case  was  determined  was  this — that  the  testator  had  not 
so  specifically  described  the  subjects  of  the  legacies  as 
to  distinguish  them  from  all  other  things  of  the  same 
kind.  The  only  distinction  between  that  case  and 
the  subsequent  case  of  Jeffreys  v.  Jeffreys,  was, 
that  in  the  latter  the  actual  property  answered  exactly 
to  both  legacies. 

In  Ashton  v.  Ashton  •  there  were  no  words  of 
more  specific  import  than  in  Purse  v.  Snaplin,  above 
cited,  neither  did  the  stock   of   which   the  testator 

"^  See  his  note  to  Hinton  r.  Pinke,  1  P.  Wms.  5S8. 
'  Cas.  temp.  T&lb.  162. 


(t)  Thus  money,  though  only  a  measure  of  value  or  amount  in  spe- 
cie, may  become  an  IndiTidual  legacy  when  it  is  designated  as  being  in 
a  particular  place,  as  in  such  a  drawer  or  bag.  See  1  Atk.  508.  AmbL 
b7*  Stock  does  not  pass  under  the  word  money.  See  Vez.  Jon*  327* 


Sect.  1.  As  to  moveable  things.  427 

Was  actually  possessed^  correspond  in  amount  with 
the  stock  devised.  The  testator  devised  6000/. 
S.  S.  annuities  to  be  sold  and  laid  out  in  land^  to  be 
settled  as  therein  directed^  and  died  possessed  of  a 
large  personal  estate^  but  had  only  5360/.  in  S.  S. 
annuities.  '  Lord  Talbot^  nevertheless,  held  the  legacy 
to  be  specific  and  not  of  quantity  merely  But  the 
late  Mr.  Seijeant  Williams,  to  whose  learned  labours 
we  are  indebted  for  the  last  edition  of  Lord  Talbot's 
decisions,  has  observed  in  a  note  to  this  case,  that 
''  it  seems  to  have  been  determined  upon  the  testa- 
tor's directing  the  6000/.  S.  S.  annuities  to  be  sold, 
and  the  produce  thereof  to  be  laid  out  in  a  purchase 
of  lands,  which  strongly  implied  that  the  testator 
only  intended  to  give  the  S.  S.  annuities  which  he  was 
possessed  of ;  and  that  he  did  not  mean  to  have  ad- 
ditional annuities  purchased,  in  order  to  be  sold  out 
again  presently  afterwards:" — a  remark  of  which 
Lord  Hardwicke,  and  not  the  learned  editor,  who 
seems  to  have  forgotten  whence  he  took  it,  should 
have  the  credit  "*. 

In  the  second  volume  of  Domat.  159.  it  is  laid  down 
that  when  a  testator  bequeaths  a  certain  thing,  which 
he  specifies  as  being  his  own,  the  legacy  will  not  have 
effect,  unless  that  thing  be  found  extant  in  the  suc- 
cession. *'  As  if  I  bequeath  to  such  a  one  my  watch, 
or  my  diamond  ring,  and  there  be  not  found,  after 
my  death,  any  diamond  ring,  or  watch  among  my  ef- 
fects, the  legacy  will  be  null."  There  are  cases  in 
our  books  to  the  same  effect.  It  is  true,  that  Lord 
Hardwicke  in  the  case  of  Avelyn  r.  Ward  ',  seemed 

>  See  1  Atk.  418.  -•    1  Vez.  425. 


428  Imptyrt  of  Words  and  Phtases    CdAP.  IV. 

to  consider  that  too  much  weight  had  been  given  to 
the  word  my,  and  that  to  rely  on  it  entirely  waa  al- 
lowing it  too  much  importance ;  yet  in  a  subsequent 
case  of  Sleech  v.  Torrington  ',  we  find  Sir  Thomas 
Clarke^  whose  opinions  and  reasonings  on  the  con* 
struction  of  wills  are  always  entitled  to  great  es- 
teem^ remarking^  that  it  was  very  material  as  a  cir* 
cumstance  in  that  case^  that  no  pronoun  possessive 
was  added  to  the  description  of  the  annuities.  So  in 
the  case  of  Ashburnham  v.  Macguire  \  where  the 
words  were  "  my  1000/.  East  India  Stock/*  Lord 
Thurlow  laid  considerable  stress  upon  the  pronenn 
my,  and  observed^  that  it  had  been  relied  on  in  many 
cases  in  deciding  the  legacy  to  be  specific. 

The  gene-       The  general  rule,  however,  appears  by  the  result  of 
that  a        the  cases  to  be  this,  that  the  bequest  of  stock  in  the  funds 
of  so  much  is  to  be  regarded  as  expre&sive  of  quantity,  in  general, 
general  le-  ^^d  not  Confined  to  a  particular  sum  of  which  the  testa- 
thereTs***  t^^  ^^V  t>e  posscssed  at  the  time  of  making  his  will,  or 
chu^oSnd  ^f  his  death,  unless  there  is  some  word,  phrase,  or 
itriilng  it    constructivc  ground  in  the  will  leading  to  such  restric- 
iip^itic.     jjyg  interpretation .     Thus,  where  a  testator  bequeaths 
the  sum  of  12000/.  of  his  funded  property  to  T.  S. 
and  the  residue  of  his  property  to  B.,  this  is  a  gene* 
ral  pecuniary  legacy  to  be  answered  out  of  the  whole 
personal  e8tate\     A  bequest  of  so  much  stock  in  snch  a 
fund,  in  general  terms,  is  a  direction  to  the  executor  to 
procure  so  much  stock  for  the  legatee.     This  was  ex- 
pressly said  by  Lord  Chancellor  Talbot  in  the  case  of 
Partridge  v.  Partridge",  in  which  case  a  testator  devi^d 

'  2  Vez.  560.  *  2  Bro.  C.  C.  108. 

*  See  Lambert  v.  Lambert^  11  Vez*  Jtfn.  607. 

"*  Cas.  temp.  Talbot,  226. 

2 


Sect.  1.  A$tQ  jnoiveaUe  tkings.  429 

lOOOf.  capital  South  Sea  Stock  to  B.,  and  it  appeared 
that  at  the  time  of  making  hit  will  he  had  1800/.  of  such 
stock,  and  afterwards^  by  aale^  he  reduced  it  to  8002. 
which  he  afterwards  increased  to  1600/.  and  died» 
the  alteration  of  the  stock  was  held  to  work  no 
ademption. 

It  if  observable^  however^  that  in  that  case  Lord 
Talbot  is  stated  to  have  said^  that  if  the  testator^ 
after  such  a  legacy^  sells  out  part^  and  dies^  such  sale 
will  be  an  ademption  pro  tanto;  which  opinion 
seems  to  be  at  variance  with  the  principle  of  the 
oase^  for  if  the  bequest  is  to  be  regarded  as  a  gift  of 
quantity  only^  and  not  of  a  specific  things  and  if  it 
be  law  that  where  a  testator  bequeaths  so  much  stocky 
having;  none  such  at  the  time  of  his  devise,  the  be- 
quest is  to  operate  as  a  direction  to  the  executor  to 
precuve  so  mvch,  why  should  the  removal  of  the 
stock,  or  the  diminution  of  it  in  specie,  affect  the 
substance  of  the  bounty.  On  this  point,  therefore, 
perhaps,  the  case  of  Rronsdon  v.  Winter  ^,  has  pro^ 
ceeded  with  greater  consistency.  There  the  testator 
devised  the  sum  of  SOOOZ.  South  Sea  Stock,  and  at 
the  Xinxe  of  making  his  will  bad  just  that  amount  of 
such  stock;  ho  afterwards  sold  1500/.  of  it,  and 
Vemey,  Master  of  the  Rolls,  held  this  to  he  no  par- 
tial ademption  of  the  legacy,  but  decreed  the  2000/. 
stock  to  be  made  good  out  of  the  testator^s  personal 
estate. 

In  both  these  last-mentioned  cases,  the  Act  of 
Parliament  for  changing  three-fourths  of  the  capital 
Soatb  Sea  Stock  into  annuities^  had  taken  place  be« 

* 

•  AfM.  VT, 


430  Import  of  Words  and  Phrases    Caap.  IV. 

tvTeen  the  time  of  making  the  will  and  the  death,  but 
it  followed^  a  fortiori^  from  the  principles  on  which 
other  parts  of  the  case  were  decided^  that  such  par- 
liamentary change  could  work  no  ademption. 

There  can  be  no  doubt,  however,  that  in  these 
points,  as  in  most  that  regard  the  construction  of 
wills^  the  intention  of  the  testator  is  to  be  the  guide; 
and  this  intention  is  to  be  collected  from  the  general 
tenour  of  the  instrument  rather  than  from  particular 
words  or  phrases. 

Thus  in  the  late  case  of  Hotham  v.  Sutton  ^  the 
intention,  though  in  some  degree  proceeding  upon  a 
mistake  as  to  the  fact,  was  the  ground  of  the  Chan- 
cellor's judgment.  In  that  case,  the  testatrix,  reciting 
that  she  was  possessed  of  13,700/.  3  per  cent.  Bank 
Annuities,  standing  in  her  name,  gave  and  be- 
queathed the  same,  or  so  much  of  such  Bank  An- 
nuities, as  should  be  standing  in  her  name  at  her 
death.  At  the  date  of  her  will,  and  at  her  death,  she 
had  near  15,000/.  in  that  fund,  besides  other  stock. 
Here  the  recital  of  the  will,  though  erroneous,  vas 
considered  as  comprising  the  reason  of  the  dispc^i' 
tion — it  was  the  measure  of  her  bounty  ;  the  determi- 
nation, therefore,  was,  that  the  bequest  operated  only 
on  the  sum  mentioned  in  the  recital,  and  that  the  ex- 
cess of  S  per  cent.  Consol.  Bank  Annuities  beyond 
the  amount  of  12,700/.  passed  under  the  residuary 
clause. 

Where*         Before  the  subiect  of  bequests  of  stock  or  funded 

beqaettof  . 

theioterest  property  is  dismissed,  it  may  be  useful  to  advert  to  a 

uid  divi-      *       ^       J  •f  »        if 

dendt  wui  case  wherein,  with  good.reason,  it  was  held,  that  the 

•  15  Vez.  Jun.  319. 


Sect.  1.  As  to  moveable  things.  431 

capital  of  the  stock  passed  under  an  express  disposi-  camr  the 
tion  only  of  the  interest  and  dividends.  This  was  leJf. 
the  case  of  Phillips  v.  Charoberlaine  ^  in  which  the 
testator  gave  all  his  monies  and  securities  for  money^ 
together  with  all  his  real  and  personal  estate^  to  his 
executors^  their  heirs^  executors^  administrators,  and 
assigns^  according  to  the  nature  and  quality  of  the 
same  premises  respectively^  upon  trust,  to  pell  and 
dispose  of  all  except  the  funds  and  securities ;  and 
after  various  dispositions  of  determinable  interests  in 
the  same  funds  and  securities,  he  directed  his  trustees 
to  pay  all  the  rest  of  the  residue  and  surplus  of  the 
dividends  and  interest  thereof  unto  and  among  four 
relatives  therein  named,  and  the  survivor  of  them^  each 
share  to  be  paid  to  them  severally  as  they  attained  the 
age  of  21  years ;  and  if  any  one  of  the  said  four  persons 
should  die  before  he  should  attain  the  age  of  21  years, 
the  share  of  the  deceased  should  be  divided  equally 
among .  the  three  survivors,  or  if  two  should  die^ 
equally  between  the  two  survivors,  or  should  three 
out  of  the  said  four  persons  die  during  their  minority^ 
the  survivor  was  to  be  entitled  to  the  whole  residue 
and  surplus  aforesaid.  The  question  being,  whether 
the  residuary  clause  carried  an  absolute  property  to  the 
legatees,  or  only  the  use,  that  is,  the  interests  and 
dividends  that  should  arise  during  their  respective 
lives,  and  the  principal  be  considered  as  undisposed 
of,  the  Chancellor  observed,  that  he  had  never 
heard  that  where  a  testator  gives  for  ever,  and  with-- 
out  limitation^  the  dividends  and  interest  to  accrue 
upon  the  residue  of  his  personal  property,  that  such 
a  gift  would  not  carry  the  whole  interest.  Where  they 
were  so  given  for  ever,  who  was  there  to  claim  4he 
capital  ?     When  the  interest  and  dividends  of  a  resi* 

^  4  Yez.  Jim.  51; 


^32  Import  of  Words  and  Phrases    Cha^  IV. 

due  are  absolutely  given  to  trustees  and  their  beire^ 
upon  trust  to  pay  the  interest  and  dividends  to  A., 
and  from  time  to  time^  and  without  any  limitation  of 
duration^  it  will  carry  the  whole  interest.  It  is  im* 
possible^  said  bis  Lordship,  to  suppose  such  an  absnr* 
dity,  as  would  result  in  this  case  from  the  contrary 
construction.  An  absurdity  may  be  so  great,  as  to 
raise  a  necL'^sary  implication.  AjJudge  must  divest 
himself  of  common  sense  to  impute  such  an  absur- 
dity to  a  testator  as  to  suppose,  that  he  gives  the  inte^ 
rest  to  them  for  their  respective  lives  only,  and  if  any 
one  shall  die  under  the  age  of  21,  then  that  a  share 
given  for  life  only  shall  survive  to  the  others.  That 
part  of  the  clause  was  perfectly  satisfactory  to  shew, 
tliat  he  did  intend  to  give  them  the  absolute  interest 
If  they  were  only  to  have  an  interest  for  their  lives, 
of  what  consequence  would  their  deaths  before  21 
be  ?  If  they  had  it  only  for  their  lives  there  would 
be  no  part  or  share  for  the  survivor  to  have.  It  is 
clear  he  meant  to  give  an  interest  that  would  survive ; 
even  independently  of  the  circumstances  that  it  was 
given  as  a  residue  ;  and  it  must  always  be  remembered 
that  when  the  residue  is  given,  ev^ry  presumption  is 

to  be  made  that  he  did  not  intend  to  die  intestate." 

• 

fied  wTd*  This  seems  a  proper  place  to  introduce  some 
intern*'^  observations  on  those  bequests  of  chattels  which 
inchatuia.  create  qualified  and  temporary  interests  in  them,  fol- 
lowed by  gifts  over  to  others  in  succession.  In  the 
consideration  of  which  subject,  it  should  be  distinctly 
understood  that  a  strict  legal  remainder  can  only  be 
limited  of  freehold  estates.  Every  bequest  of  per- 
sonal estate  to  take  effect  in  futuro,  whether  it  be 
alter  a  preceding  bequest  or  not,  or  limited  on  a  c^* 
tain  or  uncertain  events  takes  effect  only  as  an  ex- 


Sect.  1.  As  to  moveable  things.  43«? 

ecutory  disposition.     Every  future  bequest  of  this   * 
description  of  property  falls  under  that  class  of  dispo- 
sitions called  executory  devises^  and  is  subject  to  the 
rules  and  restrictions  affecting  the  same. 

At  common  law,  if  a  personal  estate  was  devised  At  com* 

in.  11  nion  law 

to  one  for  life^  or  otherwise,  and  after  the  decease  no  remain* 
of  the  devisee  or  legatee,  or  on  the  happening  of  any  sonai  es- 
other  event,  certain  or  uncertain,  the  same  was  given  instrict- 
over  to  another,  such  limitation  over  was  void,  and  mitedf  ^* 
the  whole,  in  strictness  of  construction,  vested  in  the 
first  taker.  To  avoid  this  inconvenience,  and  the 
disappointment  of  the  testator's  intention,  a  difference 
was  made  between  the  bequest  of  the  use  of  a  thing, 
and  of  the  thing  itself '.  All  difficulty,  however,  on 
this  subject  has  long  ceased  to  exii^t ;  and  these  limi- 
tations or  gifts  of  ulterior  interests  in  personal  estate 
have  for  some  centuries  had  their  full  operation  as 
executory  devises,  or  rather  bequests.  Thus,  where 
a  term  is  given  to  one  for  his  life,  remainder  to 
another  after  his  decease,  this  limitation  is  consider- 
ed as  not  meant  to  take  effect  as  a  remainder,  but,  upon 
the  principle  of  ut  res  magis  valeat  quam  pereat,  such 
limitation  or  gift  over  is  regarded  as  a  substantive  de- 
vise to  take  effect  upon  the  death  of  the  person  first 
named,  or  other  event,  certain  or  uncertain,  and  is 
considered  as  preceding  the  intermediate  disposition  : 
so  that  it  is  the  same  as  devising  a  chattel  interest 
in  land  to  one  man  upon  his  paying  a  sum  of 
money  to  executors,  or  upon  the  death  of  another, 
which  makes  it  a  proper  executory  devise ;  and  after 
limiting  which  future  interest,  the  testator  is  still  at 
liberty  to  dispose  of  the  estate  in   the   mean  time. 

'  Bro.  Der.  pi.  13.    Cro.Ca.  341. 

2f 


434  Import  of  Words  and  Phrases    Chap.  IV. 

Thus  in  Lampett's  case  in  Cooke's  Reports  ^  where  a 
testator^  beiog  possessed  of  a  messuage  for  a  term  of 
years^  devised  the  same  to  his  father  for  the  term  of 
his  natural  life^  reaiainder^  after  his  father's  decease, 
to  his  sister  and  the  heir  of  her  body^  it  was  resohed 
that  the  litnitation  to  the  sister  was  good  as  an  exe- 
cutory devise.  And  in  other  cases  where  the  ulterior 
disposition  has  depended  upon  an  uncertain  event,  or 
been  made  in  favour  of  a  person  not  in  being  at  the 
time^  it  has  been  suj^rted  upon  the  same  principle ^ 

The  doctrine  above  attempted  to  be  explained  is 
equally  applicable  to  mere  bona  mobilia^  in  courts 
of  Equity.  It  has  long  been  settled^  that  a  bequest  of 
goods  to  A.  for  life  with  remainder  after  his  decease 
to  B.  is  a  good  bequest  to  B. ;  who  formerly  might  flle 
his  bill  against  the  legatee  for  life,  to  compel  him  to 
give  security  for  the  goods  being  forth-coming  at  his 
death';  but  the  later  practice  is,  for  the  devisee  for 
life  to  be  required  to  sign  an  inventory,  to  be  depo- 
sited with  the  Master  for  the  benefit  «f  aH  parties, 
which  Lord  Thurlow  has  observed  to  be  aMre  eqssl 
justice,  as  there  ought  to  be  existing  danger  to  jastity 
the  requisition  of  a  security  ^ 


Of  Uie  do- 
minion ac- 


Very  little  is  to  be  found  in  the  hwaks  respecting 
fn^uJ^m-  '^®  extent  of  enjoyment  or  dominion  acquired  by  the 
terest  for  person  taking  under  a  will  the  estate  or  interest  for 
cbStd*^     life  in  a  personal  chattel.     In  one  caae*  it  was  held, 

*  10  Rep.  46.  see  also  S  Rep.  05.  Matthew  Manning's  case. 

*  See  1  Roll.  Abr.  61^.     1  And.  60,  61. 

*  See  2  Freem.  306.     1  P.  Wms.  1. 

'  1  Bro.  C.  R.  279.    3  P.  Wms.  336.    %  Atk.  82^  9iU 

*  Manhal  v.  Blew^  2  Atk.  317. 


SfiCT.  I.  As  to  moveable  things.  435 

that  a  devtse  from  a  husband  to  his  wife  of  (he  use  of 
household  goods^  furniture,  plate,  jewels,  linen,  Ac. 
for  life  or  widowhood,  and  afterwards  to  children  and 
grandchildren,  included  an  authority  for  the  wife  to 
use  the  goods  in  her  own,  or  in  any  other  person's 
house,  alone  or  promiscuously  with  other  goods^  or 
even  to  let  them  out  to  hire.     Mr.  Pearne  has  ob- 
served, in  treating  incidentally  on  this  point',  that  in 
Marshall  T.  Blew  it  did  not  appear  that  the  goods  and 
furniture  were  annexed  as  heir-looms,  to  go  along  or 
be  enjoyed  with  any  house ;  but  that  such  an  annex- 
ation of  them  to  the  possession  of  any  particular 
dwelling  house  might  probably  have  excluded  the  li- 
berty of  using  them,  or  letting  them  to  hire,  sepa- 
ratefyy  or  otherwise  than  with  the  house  on  which  the 
limitation  of  the  goods  was  so  attendant.  Mr.  Pearne, 
however,  was  of  opinion  that  even  where  the  furni- 
ture was  directed  to  go  with  the  house  in  the  nature 
of  heir-looms,  it  would  be  competent  to  the  person 
having  the  life-interest,  to  let  such  furniture  together 
with  the  house,  grounding  himself,  in  some  measure, 
on  the  case  of  Cadogan  v.  Kennet^,  where,  though  the 
possession  of  the  goods  was  connected  with  the  house 
under  the  trusts,  and  a  particular  of  them  was  an- 
nexed by  way  of  schedule  to  the  settlement,  yet  it  was 
admitted  that  the  husband  who  takes  an  interest  under 
the  trusts  in  the  same  for  his  life,  might  have  let  the 
house  and  furniture  together. 

There  are  many  subjects  of  testamentary  disposi-  ^  *\?^°' 
tion  of  which  it  may  be  said  usu  consumuntur  ;  and  things. 
where  such  are  bequeathed  to  a  legatee  with  a  parti- 
cular interest  in  tbem,  as  for  his  life  only,  some  other 
person  being  appointed  to  succeed  him  in  the  pro- 

'  See  £z.  Der.  6th  Ed.  by  Butler,  407.        '  Cowp.  43^. 


436  Import  of  Words  and  Phrases    Chap.  IV. 

perty^  many  liiceties  and  distinctions  may  arise  in  re- 
ference to  the  nature  of  the  thing  given.     Where 
things  are  at  once  unproductive  and  consumahle,  the 
use  of  them  implies  the  destruction  of  them^  and  this 
will  always  be  the  case  with  consumable  dead  stock : 
but  in  respect  to  live  stocky  it  is  observable  that  though 
the  individual  thing  is  destroyed,  the  species  still  con- 
tinues to  exists  and  the  race  is  continually  propagat- 
ing :  it  may  therefore  be  a  question  whether  the  le- 
gatee for  life  be  not  bound  to  keep  up  the  stock  for 
the  benefit  of  his  successor  in  interest^  subject  to  the 
reasonable  use  and  consumption  of  the  produce.    In 
the  above  cited  case  of  Porter  v.  Tournay  ^  it  was  ob- 
served by  Mie  Master  of  the  Rolls  that  ''  there  had 
been  great  doubt  among  the  judges,  what  a  person 
having  a  limited  use  of  such  articles  may  do ;  some 
learned  judges  had  thought  they  must  be  sold,  and 
that  a  person  so  entitled  was  to  have  only  the  interest 
of  the  money  produced  by  the  sale ;  but  that  was  a 
very  rigid  construction."     I  am  not  aware  of  any 
more  recent  decision  whereby  these  peculiar  difficul- 
ties have  been  removed.    One  should  certainly  advise 
a  person  claiming  such  determinable  interest,  to  go- 
vern himself  by  the  fair  and  equitable  principle  of 
taking  only  a  reasonable  and  proportionate  use  and 
enjoyment,  and  preserving  the  thing  bequeathed,  as 
far  as  might  be  consistent  therewith,  for  the  benefit  of 
his  successor  under  the  will ;  in  all  cases  ascertaining 
the  quantity,  number  and  kind,  by  a  proper  inventory 
or  account. 

ttmtJ^        Where,  by  the  dispositions  of  a  will  or  settlement 
f«r  pra.     the  possession  of  furniture  and  household  goods  are 

"^  3  Vn.  Jon.  311. 


SircT.  1 .  As  to  moveable  things,  43T 

annexed,  in  the  nature  of  heir-looms,  to  the  possession  ^rymgtke 

,        .  goods  to 

or  the  mansion  itself,  such  goods  will  not  be  suffered  thep€«on» 

-  in  the  sno- 

to  be  separated  from  the  house  by  an  execution  against  cession. 
a  person  taking  an  estate  for  life  under  such  will  or 
settlement.     If  such  will  or  settlement  has  vested  in 
trustees,  the  legal  estate  in  the  house  and  goods  so 
settled  together,  the  legal  remedy  will  reside  with 
such  trustees  for  enforcing  restitution,  or  recovering 
the  value ;  and  thus  in  the  case  of  Cadogan  v.  Ken- 
net,  above  cited,  upon  an  action  of  trover  brought  by 
the  trustees  to  whom  the  possessio  legalis  belonged, 
for  the  benefit  of  the  husband  and  wife  and  the  sons 
of  the  marriage  in  succession,  Lord  Mansfield  ob- 
served that  it  was  a  settlement  very  common  in  great 
families  :  in  wills  of  great  estates  nothing  was  so  fre- 
quent as  devises  of  part  of  the  personal  estate  to  go 
as  heir-looms :  so  in  marriage  Settlements  it  was  very 
common  for  libraries  and  plate  to  be  so  settled,  and 
for  chattels  and  leases  to  go  along  with  the  land.     If 
the  husband  grew  extravagant  there  never  was  an 
idea  that  these  could  afterwards  be  overturned:    if 
that  court  were  to  determine  they  should,  the  parties 
would  resort  to  chancery.     It  was  the  business  of  the 
trustees  to  see  that  the  goods  were  not  removed :  the 
creditors  had  no  right  to  take  the  goods  themselves :  the 
possession  of  them  belonged  to  the  trustees :  the  ab- 
solute property  of  them  was  then  vested  in  the  eld- 
est son,  and  they  were  to  be  kept  in  the  house  for  his 
benefit.  (3)" 


(3)  The  question  -whether  that  settlement  was  or  was  not  Toid 
as  against  creditors,  under  the  statute  against  voluntary  and  frau- 
dulent conyeyances,  was  a  branch  of  the  case,  which,  though  of  con- 
siderable interest,  is  not  connected  with  our  present  inquiry,  and 
has  been  discussed  at  large  in  the  treatise  on  Toluntary  and  frau- 
dulent conTeyances. 


4S8  Import  of  Words  and  Phrases    Chap.  IV. 

In  the  case  of  Foley  et  al.  v.  Burnell^  Lord  Foley 
had  devised  his  hou^e  called  F.  to  trustees  for  a  term 
of  99  years^  and  subject  thereto,  to  his  son  T.  for  life, 
remainder  to  his  first  and  other  sons  with  remainder 
over,  and  bequeathed  ''  all  the  standards,  fixtures, 
household  goods,  implements  of  household  furniture 
and  pictures,  gold  and  silver  *  plate,  china,  porcelainj 
&c.  v^hich  should  be  in  the  several  capital  messuages, 
called  S.  W.  and  F.  to  be  held  and  enjoyed  by  the 
several  persons^  who  from  time  to  time  should  sue* 
cesaiveiy  and  respectively  be  entitled  to  the  use  and 
possession  of  the  same  houses  respectively,  as  and  in 
the  nature  of  heir-looms^  to  be  annexed  to  and  go 
along  with  such  houses  respectively  for  ever/'  Upon 
the  testator's  decease  the  trustees,  who  were  also  ex- 
ecutors of  the  will,  permitted  the  eldest  son  to  occupy 
the  house  called  F.  and  to  use  the  wine^  Unen^  and 
china  which  was  in  it  at  the  death  of  the  testator. 
Upon  those  articles  being  taken  in  execution  at  the 
suit  of  a  creditor  of  the  son,  the  trustees  and  executors, 
after  having  demanded  them^  brought  an  action  of 
trov?r,  and  had  a  verdict  for  the  amount  of  the  arti- 
cles so  taken  in  execution. 

Mr.  Feame  in  his  comments  on  this  last  mention- 
ed case,  with  his  usual  sagacity,  suggests  a  doubt 
whether^  as  the  property  comprised  in  the  heir-loom 
clause  was  not  in  this  case  devised  to  the  trustees,  but 
seemed  only  to  have  vested  in  them  as  executors,  their 
consent  to  the  possession  by  the  first  cestui  que  trust 
as  legatee  thereof  did  not  divest  them  of  the  legal  es- 
tate, and  pass  it  to  the  legatees  under  that  clause  ac- 
cording to  their  respective  interests  under  the  will, 

*  Cowp.  IUp«  4IS.  a. 


Sect.  1.  M  to  moveable  things.  439 

aind  80  disqualify  them  for  the  recovery  of  the  goods 
by  legal  process.     The  same  writer,  however,  was  of 
opinion  that  if  the  legal  remedy  had  failed  on  that 
ground,  tlie  legatees  might  still  have  found  a  resource 
IB  Equity.   And  he  conceived  himself  to  be  supported 
in  tlutt  opinion  by  the  arguments  of  the  court  in 
aiuoCher  case  under  the  same  will,  in  which  the  legal 
estate  and  interest  in  the  chattels  devised  was  clearly 
ift  the  first  taker  ^.   The  Lord  Chancellor,  in  consider- 
ing the  relief  in  the  case  last  adverted  to,  put  the  case 
of  a  beiquest  of  a  chattel  interest  to  one  for  life,  re- 
mainder to  another  in  tail,  in  which,  he  said,  the  ul- 
terior devisee  might  come  to  the  court  to  prevent  the 
destruction  of  the  subject.     Which  case,  Mr.  Pearne 
observes,  as  well  as  the  common  instance  of  trustees 
for  preserving  contingent  remainders  being  allowed 
to    maintain  an   injunction  from  waste  against  te- 
nant for  life  of  the  legal  estate,  seems  to  warrant  the 
interposition  of  the  court,  for  the  benefit  of  the  per- 
sons intitled  after  a  temporary  antecedent  interest  in 
the  first  taker,  notwithstanding  the  interest  of  such 
first  taker  be  clothed  with  the  legal  estate. 

But  it  appeared  to  Mr.  Pearne,  to  be  a  very  suffi- 
cient ground  for  the  equitable  relief,  that  executory 
dispositions  of  chattels  personal  appear  to  have  been 
originally  founded  in,  and  still  to  rest  on  the  doctrine 
of  courts  of  Equity ;  and  that  if  so,  there  could  be  no 
obstacle  to  the  interference  of  those  courts  in  the  re- 
gulation of  interests,  created  by,  and  dependent  upon 
their  own  jurisdiction. 

In  chattels  real  the  law  has  long  admitted  a  division 

^  Foley  V.  Bucnell  et  al.  1  Bro.  C.  Rep.  274. 


^kiO  Import  of  Words  and  Phrases    Cnxr.  IV. 

of  the  interest  between  the  devisee  for  life^  and  those 
in  remainder ;  but  the  division  of  the  interest  in  chat- 
tels personal  between  tenant  for  life^  and  those  to 
whom  they  are  limited  over^  seems  'yet  to  be  a  matter 
of  equitable  cognizance^  resting  upon  the  execution  of 
a  court  of  Eqiiity  in  specie.  And  such  a  specific  ap- 
portionment and  execution  of  the  rights  of  the  par- 
ties would  be  frustrated  if  the  court  could  not  secare 
the  specific  chattels  themselves^  in  the  mean  time^ 
against  such  a  disposition  of  the  first  taker^  and  all 
claiming  through  or  under  him^  as  would  end6%er  its 
existence  or  preservation. 


Section  II. 
As  to  immoveable  things. 

SJtjn  gl'     y^  *•  *  general  and  established  proposition  that 
ciaded  nn.  ^^^^^  ^  ^^^  ^^  posscsscd  of  freehold  and  leasehold 
rSd^ut  P'^^P^^^y^  *^^  leasehold  will  not  pass  by  a  general  devise^ 
of  lands,    applicable  to  freeholds^  unless  an  intention  to  include 
leaseholds  under  those  words  can  be  collected  from 
the  fieice  of  the  will^  or  from  the  nature  or  situation  of 
the  leaseholds  themselves.     The  great  and  fundamen- 
tal case  upon  this  subject  is  Rose  v.  Bartlett^  deter- 
«  mined  so  long  ago  as  the  beginning  of  the  reign  of 

Charles  I.    It  was  there  resolved  that  if  a  man  have 

*  Cro.  Car.  299. 


Sect.  S.  As  to  immfyoedble  things.  441 

lands  in  fee^  and  lands  for  years,  and  devise  all  his 
lands  and  tenements^  the  fee-simple  lands  pass  only^ 
and  not  the  leases  for  years  :  but  if  a  man  have  a  Bnt  if  the 
lease  for  years  and  no  fee-simple^  and  devise  all  his  leaves 
lands  and  tenements^  the  lease  for  years  passes ;  for  leaseholds 

to  answer 

otherwise  the  will  would  be  merely  Void.     The  rule  the  dispo- 
has  prevailed  notwithstanding  some  expressions  have  ^^pass!^ 
been  used  by  a  testator  which  might  seem  to  have 
been  adopted  on  account  of  their  applicability  to 
chattel  interests.  Thus  in  the  case  of  Davis  v.  Gibbs^ 
where  the  words  were   ''  manors^  messuages^  lands^ 
tenements^  hereditaments^  and  real  estates  whatso- 
ever,  of  which  I  am  any  ways  seised  or  intitled  to/' 
the  rule  laid  down  in  Rose  v,  Bartlett  was  adhered  to^ 
and  the  same  point  was  decided  in  the  same  way  by 
Lord  Mansfield  in  Pistol  on  dem.  Randal  v  Richard- 
son*, in  which  the  testator  devised  "  all  and  every 
of  his  several  lands,  messuages,  tenements,  and  he- 
reditaments whatsoever  and  wheresoever,  whereof  he 
wa^  seised,  and  interested  in,  or  intitled  to"  to  his 
son  for  life,  remainder  to  the  heirs  of  his  body  ;  and 
afterwards  devised  his  personal  estate  to  his  wife  and 
daughter,  and  made  his  wife  sole  executrix.     Tlie 
question  was,    whether  the  leasehold  lands  by  the 
above  words  of  the  will  were  given  to  the  son,  or 
were  part  of  the  personal  estate.     After  two  argu- 
ments Lord  Mansfield  delivered  the  opinion  of  the 
court,  ''  that  the  leasehold  lands  did  not  pass  to  the 
son,  but  were  part  of  the  personal  estate"  (1).     The 

*  Fitzg.  116.  3  P.  Wms.  26.  ^  1  H.  Bl.  26,  note. 

(1)  If  a  man,  having  both  freeholds  and  leaseholds,  devise  aU  his    If  the 
lands  and  tenements,  by  a  will  unattested,  as  the  statute  directs,  JrectuSto 
to  that  it  ii  inoperative  in  respect  to  the  freeholds^  still  the  words  pass  frte* 


448  Import  of  Words  and  Phrases    Chap.  IV. 

case  of  Addis  v.  Clement*,  indeed,  which  wa»  de- 
cided the  other  way,  expressly  proceeded  in  part  on 
the  effect  of  the  words,  ''  whereof  he,  the  testator, 
was  seized  or  possessed,  or  interested  in,"  and  it  was 
lamented  by  Lord  Kenyon,  in  Lane  v.  Lord  Stan- 

'  2  P.  Wms.  455. 


bold  for       of  the  devise  are  held  not  to  pass  the  leaseholds.     This  wa«  one  of 

want  of 

dae  execu-  the  points  in  Chapman  v.  Hart*,  determined  by  Lord  Rardwicke, 

wm'no^"  where  a  testator  dovised  all  his  lands  at  or  near  Fowey  to  the  plain- 
make  the  tiff,  and  the  will  was  executed  in  the  presence  of  two  witnesses 
pass  by  a  only.  The  Chancellor  observed,  that  it  was  not  certain  whcthCT 
fST^a^^U^  ***®  testator  had  any  leasehold  in  or  near  Fowey.  If  tkere  should 
cable  to  appear  to  be  both,  and  the  law  had  been  with  the  plaintiff,  so  that 
estate.  ^^^  shoald  be  entitled  thereto,  it  would  be  a  ground-  for  the  direc* 
tion  of  an  enquiry ;  for  the  answer  was  not  a  positive  negation  of 
any  leasehold.  But  if,  let  the  fact  come  ont  how  it  would,  the 
law  was  against  the  plaintiff,  he  ought  not  to  direct  an  enquiry* 
And  he  was  of  opinion,  that  though  it  shonld  appear  that-Ae  tei* 
tator  had  leasehold  as  well  as  freehold,  the  plaintiff  would  uQf>  b^ 
entitled.  His  Lordship  supposed  a  case  of  a  person  seised  of 
freehold  and  copyhold  in  D.  who  surrendered  to  the  use  of  his  will, 
and  devised  all  his  lands  and  tenements  in  D.  to  his  child :  there 
being  a  surrender,  both  freehold  and  copyhold  would  pass,  if  the 
will  was  duly  executed  according  to  the  statute  of  frauds:  but  if 
no  surrender  to  the  use  of  the  will,  only  the  freehold  wmldpan; 
to  which  lands  and  tenements  generally  mentioned  should  be  ap* 
plied ;  there  being  no  surrender  to  the  use  of  the  will,  to  shew  a 
different  intent.  Suppose  that  will  executed  in  the  presence  of  two 
witnesses,  or  of  one  only ;  those  general  words  used ;  and  no  sur- 
render: though  this  were  to  a  child  or  wife,  the  conrt  would  not 
supply  the  defect  of  the  surrender  to  the  use  of  the  will,  or  com- 
pel the  heir  at  law  to  surrender  the  copyhold  to  the  devisee,  be- 
cause the  will  was  not  duly  executed ;  when,  if  duly  executed,  the 
court  would  not  have  supplied  that  defect :  for  such  variation  of  the 
conatruction  would  be  very  dangerous. 

*  I  Y^.tlh  aad  see  StmUMd v  8tMtietf»  Tidb.l7S. 


Sect.  %  ^        As  to  immoveable  things.  443 

bope%  that  that  case  was  not  cited  in  Pistol  v.  Rich- 
ardson^  since  his  Lordship  thought  that  if  Lord 
Mansfield  had  had  it  in  his  view  he  might  have  been 
induced  to  decide  otherwise  than  he  did.  But  it 
seems  from  a  manuscript  note  of  Pistol  v.  Richardson 
that  the  case  of  Turner  v.  Husler'^  which  proceeded 
on  the  authority  of  ^ddis  v.  Clement  was  noticed 
by  Lord  Mansfield  in  his  judgment^  who  received 
his  account  of  it  from  Mr.  Baron  Eyre*. 

Lord  Eldon  in  the  case  of  Thompson  v.  Lady 
Lawley  and  others  ^  seemed  evidently  to  think  that 
too  much  stress  might  be  laid  upon  these  words^ 
^'  possessed  of,  or  intitled  unto."  But  his  Lord- 
ship took  notice  of  the  other  ground  of  the  de- 
cision in  Addis  v.  Clement,  viz.  that  the  21  years 
lease  in  that  case  was  held  of  the  church,  and  always 
renewable,  so  that  the  lessee,  who  was  the  testator, 
might  look  upon  himself,  from  the  right  he  had  to  re- 
new, as  having  a  perpetual  estate  therein — a  kind  of 
inheritance  ;  and  appeared  to  think  that  an  ingre- 
dient which  sufficiently  distinguished  the  case  from 
Pistol  v:  Richardson. 


The  distinction   taken  in  Rose  v,  Bartlet  as  to  Leaseholds 

will  pass 

the   effect    of  a  will  devising    ''  lands    and  tene-  where 
roents*'   upon  leasehold  property,   where  there  are  only  such 
no  freeholds  to  satisfy  the  words,   was   fully  con-  the  devise, 
firmed  by  the  case  of  Day  v.  Trig*,  where,  upon  a  the  demise 
devise  by  a  testator,  of  all  his  freehold  houses  in  Al-  ly  o^^the*^ 
dcrsgate-street,  to  the  plaintiff  and  his  heirs,  having  freSoids, 

•  6  T.  R.  353.     '  i  Br.  C.  C  78.     '  See  2  Bos.  et  Pull.  306. 

*  2  Bos.  et  Pali.  303.  *  I  P.  Wmg.  286. 

2 


444  Import  of  Words  and  Phrases    Chap.  IV. 

in  fact  no  freehold  houses^  but  only  leasehold  hoases, 
in  the  place  described ;  il  was  decreed  by  Mr.  J.  Tracy, 
sitting  for  the  Lord  Chan cellor,  that^  thou|[^h  in  a  grant 
of  all  one's  freehold  houses^  leasehold  houses  could 
not  pass ;  and  though,  even  in  the  case  of  a  wife,  had 
there  been  any  freehold  houses  to  satisfy  the  words, 
leasehold  houses  should  not  have  passed,  yet  the  plain 
intention  being  to  pass  some  houses,  and  he  having  no 
freehold  houses  in  the  place  mentioned,  the  word^ee- 
hold  should  rather  be  rejected  than  the  will  be  wholly 
void,  and  the  leasehold  should  pass  (2). 

And  under      As  bv  the  case  last  cited  it  appears  that  the  inser- 

tn  express  •'  *  * 

devise  of    tiou  of  the  word  '  freehold '  by  the  testator,  will  not 

leasehold,  ''  "^  * 

freehold  prevent  the  passing  of  leasehold  property,  where  the 
if  such  ap-  intention  to  pass  them  is  manifest  upon  the  whole  will; 
the  inten-  SO  in  a  late  case  it  has  been  ruled  in  the  court  of 
King's  Bench,  that  under  the  phrase  personal  estates, 
real  property  may  pass,  if  it  is  clear  from  the  bear- 
ing of  the  instrument,  that  such  was  the  testator's  in- 
tention*"; and  where  by  a  will  giving  the  estate  a  local 
description  and  a  name,  the  property  was  mistakiugly 
called  leasehold,  the  testator's  freehold  was  held  to  pass, 
there  being  no  other  property  answering  the  name  and 
description '. 

So,  by  tiie       On  the  same  principle  of  giving  words  a  descrip- 

word  IcifQ" 

cy  a  devise  tivc   effect,  commcnsuratc   with  the  clear  intention 

of  Iree-  * 

hoidMnay   of  the  parties,   whatever  may  be  their  primary  or 

be  iindei- 

^^^'  ^  Doe  on  dem.  of  Tofield  o.  Tofield,  widow,  11  East,  246. 

■  Doe  d.  Wilkins  v.  Kenneys,  9  East,  3G6. 


(2)  He  obserTed  also  that  the  suit  was  proper  in  eqnitj,  since 
the  leasehold  houses  (being  chattels)  could  not  pass  by  the  will 
without  the  assent  of  the  executor,  which  assent  he  was  compella* 
ble  to  gite  in  equity. 


Sficr.  2.  As  to  immoveable  things,  445 

strict  sense^  the  word  '  legacy'  has,  been  construed 
as  comprehending  real  estate.  ThUB^  where  A.  by 
will  gave  two  legacies  of  150/.  each  to  his  son  and 
daughter^  to  be  paid  at  21,  and  then  gave  all  his 
realty  and  personalty  to  his  wife  for  life^  and  after  her 
deaths  one  freehold  estate  to  the  son^  and  another  to  the 
daughter ;  but  if  either  or  both  his  children  should  die 
before  the  wife^  then  those  legacies  which  were  left  to 
them  should  return  to  the  wife ;  it  was  held  that  on 
the  death  of  the  son  before  the  mother^  the  mother 
was  entitled  to  the  reversion  of  the  freehold  estate^ 
the  word  *  legacy'  not  being  necessarily  confined  to 
the  pecuniary  bequests^  where  by  the  context  of  the 
will  it  appeared  to  have  been  used  by  the  testator  in  a 
larger  sense". 

Whether,  where  there  has  been  a  surrender  to  whether 

^  copyhold 

the  use  of  the  will,  the  general  words  '  messua^^es.  passes  by 

*^  ^  .  ^  the  general 

lands,  tenements,  and  hereditaments,' will  pass  copy-  devweof 

'  '  ^  lands,  &c, 

hold  as  well  as  freehold  estate,  without  any  inference 
furnished  by  the  will  itself,  of  the  testator's  intention 
to  include  both,  seems  to  rest  in  some  doubt.  In  the 
case  of  Doe  d.  Belasyse  v.  the  Earl  of  Lucan  °,  none 
of  the  judges  appeared  to  hold  any  decided  opinion 
on  the  point.  That  case^  however,  has  completely 
established  the  doctrine  that  wherever  the  intention 
of  the  testator  to  devise  his  copyhold  can  be  collected 
from  the  will^  and  the  words,  though  they  make  no 
mention  of  copyhold,  are  large  enough  to  comprehend 
it,  and  a  proper  surrender  has  been  made  to  the  use 
of  .the  testator's  will,  such  copyhold  will  pass  to  the 
devisee.     And  we  may  safely  infer  from  the  principles 

*  Haidacre  and  another  v.  Nash  and  another,  6T.  R,  716.;  and 
ice  Hope  d.  Brown  v.  Taylor,  1  Sorr.  968. 
IQEMt^  448. 


446  Import  of  Words  and  Phrases    Chap.  IV. 

of  the  last-mentioned  case^  as  well  as  from  others, 
that,  where  the  testator's  freehoW  will  not  satisfy  the 
description,  or  the  purposes  expressed  iti  the  will,  m- 
less  the  copyhold  be  considei'ed  as  included  in  the  it* 
vise,  the  intention  to  derise  the  copyhM  is  suffleiently 
indicated. 

The  case  last  adyer ted  to  wa«  to  the  fcfflowifig 
effect.  The  testator,  having-  a  freehold  manor  of 
Sntton,  and  freehold  lands  there,  and  having-  also 
copyhold  lands  within  the  township  of  Sutton,  and 
within  the  local  ambit  of  the  manor,  but  held  of 
another  manor,  and  having  surrendered  his  copyhoM 
to  the  use  of  hia  will,  devised  all  his  manor  of  Sutton, 
and  all  his  messuages,  farms,  lands,  tenements,  and 
hereditaments,  whatsoever,  within  the  precincts  and 
territories  of  Sutton,  in  the  county  of  Chester,  with 
their  rights,  members,  and  appurtenances,  in  trust 
for  his  daughter,  and  to  her  children  in  strict 
settlement ;  and  first,  it  was  held  that  fiarms,  lands, 
Ac.  within  the  township,  though  not  within  the 
manor  of  Sutton,  passed  by  the  description  of  farms, 
lands,  &c.  within  the  precincts  and  territories  of 
Sutton.  Secondly,  that  the  general  words  of  '  rtes- 
Mages,  farms,  lands,  and  tenements,*  and  parti- 
cnhiriy  the  word  '  forms'  (3)  were  sufficient  to 
carry  copyhold  as  well  as  freehold  in  the  place  de- 
scribed, if  such  appeared  to  be  the  intent  of  the 
testator  upon  the  whole  will ;  and,  thirdly,  that  such 
intent  was  to  be  inferred  in  the  case  before  the  court, 
as  it  appeared  that  the  testator  had  withhi  the  place 


<3)  Lord  EUenboroagli  obserred  tiiat  lOie  wmd  *  fknm*  tt  leut 
would  include  copyhold  as  well  m  ktetnM. 


Sect.  %  As  to  immoveable  things.  447 

described^  a  ferm  composed  of  copyhold  and  freehold 
which  he  had  let  as  one  entire  subject,  and  also  by  his 
haying  charged  the  property  derised  beyond  the  an« 
nval  income  of  it^  unless  the  copyhold  were  included. 
It  was  held  clearly^  that  another  small  copyhold  at 
the  distance  of  about  eight  miles  from  Sutton^  and 
not  in  the  same  county,  passed  by  the  residuary  clause, 
whereby  the  testator  devieed  all  the  rest,  residue,  and 
remainder  ^  kis  real  and  personal  estate  *". 

• 

The  cases  on  this  subject,  which  are  of  frequent  or  the  doc- 
occurrence  in  equity,  have  arisen  upon  the  usual  re-  ei]|uityoo 
sort  to  that  forum  to  supply  the  defect  of  a  sur-  ject. 
render,  which  it  will  only  do  for  the  sake  of  three 
descriptions  of  persons',  creditors,  wife,  and  chil- 
dren :  of  which  three  classes  the  courts  of  equity 
shew  the  greatest  favour  to  creditors;  for  nei- 
ther the  wife,  or  younger  child,  will  hare  the  de- 
fect of  a  surrender  suppKed  for  them,  if  the  heir  at 
law  (being  a  child  of  the  testator)  would  be  there- 
by left  unprovided  for.  If  the  will  devises  the  copy- 
hold in  terms,  and  for  the  benefit  of  any  of  the  above- 
mentioned  favoured  objects,  equity  will  supply  the 
want  of  a  surrender,  and  give  effect  to  the  express 
intention  of  the  testator ;  but  where  the  words  are 
general,  as  ^  messuages,  lands,  tenements,  and  here- 
ditaments,' and  such  surrender  has  been  wanting,  the 
cases  have  for  the  most  part  shewn  a  reluctance  to 

*  See  the  case  of  Doe  d.  Pate  v.  Dayy,  Doygl.  716.  note  (^), 
and  see  ^e  cases  in  6  Vm.  Abr.  tit.  copyhorld,  396-7. 

'  GiWfBg  9.  Nash,  3  Atk.  189.  Goodwin  v.  Goodwin,  1  Yez. 
898»  BjM  V.  %a8)  9  Yes.  164.  Tudor  v.  Aoson,  3  Yea.  582.; 
and  see  Mr.  Coze's  note  to  Watts  v.  Bullas,  1  P.  Wms.  60. 


448  Import  of  W&rds  and  Phrases    Chap.  IV. 

consider  copyhold  included  in  those  words^  without 
some  ground  of  necessity  for  such  construction.  Thus 
in  Hazlewoodr.  Pope^  Lord  Chancellor  Talbot  held 
that  "  if  a  man  devises  all  his  lands^  tenements^  and 
hereditaments^  in  Dale,  in  trust  to  pay  his  debts  and 
legacies,  and  the  testator  has  some  freehold  and  some 
copyhold  lands  there,  only  the  freehold  lands  shall 
pass,  for  his  will  must  be  intended  of  such  lands  and 
tenements  as  are  devisable  in  their  nature.  Secus, 
if  the  testator  had  surrendered  his  copyhold  lands  to 
the  use  of  his  will,  because  this  shews  he  did  intend 
to  devise  his  copyhold.  But  even  in  the  first  case, 
i.  e.  where  there  had  been  no  surrender  to  the  use  of 
his  will,  when  the  testator  devises  all  his  lands  to  pay 
his  debts,  it  seems  rather  than  the  debts  should  go 
unpaid,  that  the  copyhold  shall  in  equity  pass." 

It  is  clear  from  the  above  expressions  of  the  Chan- 
cellor, that  the  difficulty  lay  in  giving  to  the  general 
words  the  effect  of  passing  copyholds,  w  ithout  a  strong 
necessity  for  such  construction,  where  the  copyhold 
bad  not  been  previously  rendered  devisable  by  a  sur- 
render to  the  use  of  the  wiU ;  considering  the  fact  of 
the  omission  or  observance  of  this  ceremony  as  being 
a  strong  circumstance  of  inference  with  respect  to  the 
testator's  intention. 

That  this  was  likewise  Lord  Hardwicke's  view  of 
the  subject  may  be  collected  from  the  case  of  Good- 
wyn  V.  Goodwyn ',  where  his  Lordship  observed,  that 
it  had  been  in  several  cases  held  that  a  devise  in  general 
words  of  all  lands  and  tenements  will  not  comprise 
copyhold  lands,  which  have  not  been  surrendered  to 

'  3  P.  Wms.  322,        '  1  Vez,  226. 


I&OT.  Si         Ab  H)  immoveable  things.  449 

the  use  of  Ihe  will  so  as  to  shew  ah  intent  to  comprise 
them.  And  where^  continued  the  same  Chancellor^ 
the  intention  of  the  testator  of  raisiiig  portions  or 
payment  of  debts  may  be  answered  by  freehold  lands^ 
the  court  will  not  suppose  he  intended  to  pass  copy- 
hoIcL  In  that  case  the  copyhold  had  been  surrendered 
to  the  use  of  the  will^  and  the  general  words  being 
considered  as  comprehensive  enough  to  include  them^ 
it  was  adjudged  to  be  included  in  the  devise.  His 
Lordship^  in  a  case^  which  came  befbre  him  a  few 
months  afterwards^  adverted  to  the  same  doctrine  in 
the  foUowing  words.  ^^  Suppose  a  case^  (which though 
1  do  not  know  to  be  determined^  I  should  not  doubt  to 
determine  soj  of  a  person  seised  of  a  freehold  and 
copyhold  in  D.  who  surrenders  to  the  use  of  his  will^ 
and  devises  all  his  lands  and  tenements  in  D.  to  a  child; 
there  being  a  surrender,  both  freehold  and  copyhold 
would  pass ;  but  if  no  surrender  to  the  use  of  the  will^ 
only  freehold  would  pass." 

It  does  not  seem,  therefore,  that  the  courts  formerly  whether 
considered  the  general  words  messuages^  lands,  te-  words 
nements,  and  hereditafnentsi,  of  force  per  se  to  carry  menti,  and 
copyhold  estate,  and  the  reason  appears  to  have  been,  maos,  are 
that  copyholds  being  not  in  their  own  nature  devisa-  cient  to 
ble,  these  general  devising  words  were  not,  prima  facie,  h^des-^^' 
applicable  to  them.     It  was  always  considered  that  ^\^'^y*^* 
there  must  be  something  to  manifest  an  intent  to  pass  c^^^f^^,*'' 
them.  If,  therefore,  the  surrender  to  the  use  of  the  will  ^"  ^^J"' 

*'  ■'  cute  iDc  i". 

was  wanting,  and  there  was  a  general  devise  of  the  tension- 
lands,  &c.  in  favour  of  the  testator's  wife  or  child,  equity 
though  disposed  to  supply  the  defect  of  the  surrender  in 
behalf  of  these  favoured  objects,  could  not  see  in  these 

'  Chapman  9*  Hart,  1  Ysz.  272. 

2g 


450  Import  of  Words  and  Phrases    Chap.  IV, 

general  words  the  intention  to  pass  the  copyhold  at alli 
if  there  was  any  freeliold  estate  to  answer  the  words 
of  the  will. 

But  if  the  devise  was  for  the  ][>urpo8e  of  paying 
debts^  and  the  freehold  was  not  enougli  to  answer  that 
highly  favoured  object,  equity  stippKed  the  surrender 
in  behalf  of  the  intention  inferred  from  the  neccwity 
of  the  case^  though  the  devise  was  only  in  the  general 
terms  above-mentioned.  Stilly  however^  it  is  said  that 
equity  will  supply  the  want  of  the  surrender  m  fat 
only  as  may  appear  necessary  for  the  payment  of  debts ; 
and,  therefore,  it  has  been  held,  that  while  any  free- 
hold estate  remained  applicable  to  that  purpose,  the 
want  of  the  surrender  of  the  copyhold  should  not  be 
supplied  \  And  this  has  been  even  held  to  be  so,  not- 
withstanding^ the  express  intention  of  the  testator  to 
charge  the  c6pyhold  rateably  with,  or  in  preference 
to,  the  freehold. 

Where  there  was  a  surrender  to  the  use  of  the  will 

» 

such  surrender  appears  to  have  been  considered  as  at 
once  opening  a  way  for  the  copyhold  into  the  will^ 
and  affording  a  ground  for  inferring  an  intention  in 
tlie  testator  to  pass  it  by  bis  will ;  and  having  got  so 
far,  the  only  enquiry  was,  whether  there  were  words 
in  the  will  ciq)ablc,  in  point  of  legal  compass,  of  em- 
bracing copyhold  estates,  as  doubtless  the  general 
words  '  lands,  tenements,  and  hereditaments^'  inust 
be  admitted  to  be. 

This  would  be  giving  great  effect  to  the  act  of  sur- 

'  Mallabar  v.  MaUabar,  Cas.  Temp.  Talb.  78.  Combes  v.  Gibson, 
1  Bro.  C.  R.  273.  Hellier  v.  Tarrant,  Ca,  Temp.  Talb.  5d.  ed. 
288.  (note). 


SvcT.  S.  As  to  immoveable  things.  451 

renderings  and  might  if  once  so  settled  save  a  great 
deal  of  trouble :  but  it  seems  as  if  it  would  be  tra* 
Telling  faster  than  the  cases  to  rely  on  such  a  doc- 
trine. In  the  late  case  of  Doe  and  Belasyse  v.  the 
Earl  of  Lucan  above  stated.  Lord  Bllenborough  said 
he  should  proceed  merely  on  the  testator's  intention 
as  he  collected  it  from  the  face  of  the  will ;  saying  he 
was  afraid  to  look  at  any  argument  of  intention  to  be 
derived  from  the  surrender  to  the  use  of  the  will, 
though,  perhaps,  it  might  be  proper  to  be  regarded 
even  in  that  court,  as  it  certainly  would  be  in  another 
court,  but  that  it  was  not  necessary  for  him  to  give 
any  opinion  upon  that  point;  he  professed  to  deter- 
minethe  case  upon  the  intention  as  collected  from  the 
words  of  the  will  only. 

Upon  the  whole  it  must  be  considered  as  resting  in 
some  uncertainty  whether,  and  how  &r,  the  fact  of  a 
surrender  to  the  use  of  the  will  affords  inference 
of  intention ;  and,  supposing  no  special  ground  for 
inferring  intention,  whether  the  general  words, 
'^  lands,  tenements,  and  hereditaments**  in  a  will,  to 
the  use  whereof  a  surrender  has  been  made,  are  of 
force  per  se  to  carry  copyhold  estate.  But  thus 
much  is  certain,  that  where  these  words  occur  in  a 
devise,  and  a  surrender  of  copyhold  has  been  previ- 
ously made  to  the  use  of  the  will,  the  copyhold  will 
pass,  if  an  intentbn  to  pass  it,  can  be  collected  fVom 
the  context  of  the  will 

Tlie  word  copyhold  is  not  always  necessarily  con-  CojtifMd, 
fined  in  a  will  to  that  which  comes  strictly  within  its  ciutomary 
pieaning.    Thus  in  a  late  case  ^  a  customary  estate^ 

*  Cook  and  Cook  v.  Dftm ers,  7  East  ^9. 

2g  2 


4fia  Import  of  Words  and  PhroMen    Cm^.  IVl 

{iai:cel  of  a  manor^  demisable  only  by  the  licence  of 
the  lord^  and  passing  by  surrender  and  admittance, 
whether  strictly  copyhold  or  not^  was  adjudged  to  pas^ 
under  the. description  of  a  copyhold  in  a  wiD,  the 
intention  being.  8Q>parent.  (4)  And^  indeed^  where 
the  intention  is  apparent  from  the  context  of  the  wilt 
,  itself,  the  specific  and  technical  meaning  of  words 
needs  scarcely  any  longer  be  a  sul^ect  of  enquiry,  af- 
ter the  cases  which  have  decided  that  legacy^  or  per- 

w 

ional  estate^  may  be  descriptive  of  a  real  devise,  or  of 
real  property,  if  it  is  clear  that  such  vnas  the  meaning 
of  the  testator. 


■I  »■ 


(4)  But'  it  should  seem  that  upon  a  broader  ground  than  aojrri* 
dence  of  particular  intent  the  word  copyhold  in  a  will  ought  to  b« 
considered  as  including  customary  estates  held  of  a  manor^  and  de- 
mised and  demisable  by  copy  of  court  roll,  although  not  c»pyhold  in 
the  stricter  sense.  It  is  thus  that  Lord  Ellenborough  has  expressed 
himself  on  the  subject  in  the  case  of  Roe  and  ConoUy  v.  Vemoa 
and  Vyse,  5  East  89,  84.  "  In  disposing  of  their  property  teste- 
tors  usually  advert  to  the  known  and  ordinary  circumstuoes  st^ 
tending  it,  and  adopt  the  appellations  by  which  it  is  generally  9sA 
more  familiarly  distinguished.  They  cannot  be  supposed  to  r^^ 
or  consider  those  equiTocal  or  less  obTious  qualities  of  their  estates, 

* 

about  the  effect  of  which  profound  lawyers  and  legal  antiqutries 
might  entertain  controyersies*     The  distinction  between  estttes 
which  may  be  imipedlately  transferred  from  man  to  ntn  by  deeds 
and  instruments  executed  merely  between  the  parties  themselTe^iBd 
those  estates  the  titles  to  which  are  eridenced  by  copies  of  the  rolls 
of  the  courts  baron,  are  familiar  to  men  the  least  acquainted  with 
the  rules  of  property;  but  the  distinction,  and  still  more  the  effect 
of  the  distinction,  between  tenants  by  copy  of  court  roll  at  the  will 
of  the  lord  according  to  the  custom  of  the  manor,  and  tenants  by 
copy  of  court  roll  sim^y  according  to  such  custom^  as  detenvsu^ 
the  one«to  have  a  freehold  interest,  and  the  pther  fot,  is  a  distiao 
tton  not  at  all  Jikely  to  occur  to  persons  in  general  when  disposiog 
of  their  property." 


I 

Sect.  S.  A$  to  immoveable  things,  f  453 

_  *  • 

In  the  above-mentioned   case  of    Haslewood  t?.  '^** . 

words  iii« 

Pope  ^,  Lord  Chancellor  Talbot  made  a  doubt,  whe-  ciude  & 
ther,  if  a  man. have  lands,  and  also  a  manor  in  Dale^ 
of  which  the  lands  dre  not  parcel,  a  devise  of  the 
lattds  would  include  the  manors  but  he  seemed  clear 
that  it  would  pass  under  the  word  hereditament,  and 
there  can  be  as  little  doubt  that  the  word  tenement 
>rould  embrace  it. 


vaicvtm* 


The  same  may  be  said  of  an  adn^owson,  (5)  which  ^^^ 
in  Westfaling  v.  Westfaling''  was  clearly  held  to 
pass  by  the  word  tenements^  or  hereditaments* , 
but  not  by  the  word  lands.  But  supposing  the 
devise  to  have  been  of  lands,  at  a  particular  place, 
and  that  the  testator  had  nothing  but  a  manor,  or  an 
advowson,  to  answer  the  devise,  rather  than  that  the 
will  should  be  inoperative,  it  seems  to  be  the  better 

'^  S  P.  Wms.  3M.  »  3  Atk.  460. 

'  Hob.  303.  «  Dyer,  323.  pi.  30. 


(6)  It  appears  doubtful  whelther  the  word  advowson  wiU  carry 
an  impropriation  of  it.  Hob.  304.  But  by  the  devise  of  an  ad-^ 
Towson  the  nei^t  turn  or  presentation  inclusiyely  passes,  eren 
though  the  devisor  himself  is  the  incumbent.  1  Atk.  619.  And 
there  is  no  doubt  btst  that  the  next  turn  or  presentation  is  a  pro- 
sper subject  of  devise,  vid.  Law  v.  Kshop  of  Lincoln,  2  -Blackst. 
1^40.  though  if  the  presentation  falls  in  the  life  of  the  testator, 
the  devise  must  of  necessity  fail.  Nor  does  it  seem  that  after  avoid- 
ance, the  right  to  present  is  strictly  devisable,  being  in  the  nature 
of  a  chose  in  action.  It  is  held,  however,  that  if  the  incumbent  is 
also  the  patron,  he  may  devise  the  next  turn  or  presentation ;  for 
although  at  the  very  instant  of  the  death  the  church  becomes  void,  , 
yet  the  testament  is  regarded  as  havii^  an  inception  in  the  life 
time,  which  secures  its  operation  at  the  moment  of  the  death. 
Harris  v.  Austin,  3  Bulst.  36.   I  Roll.  Abo  ^10.   Cro.  James  371. 


f 


454  Import  of  Words  and  Phrases    Chav.  IV. 

opinion  that  the  manor  or  the  advowson  would  passV 
So  in  the  case  of  Ritch  v.  Sanders  ^  where  a  testator 
gave  all  his  free  lands  wheresoever^  to  his  brother 
John  Sanders  for  life^  upon  condition  that  he  sofiered 
the  testator's  wife  to  enjoy  all  his  free  lands  in  Hol- 
ford  for  Hfe^  the  testator  having  only  a  portion  of 
tithes  of  inheritance^  in  Holford^  and  no  lands^  the 
Word  "lands*'  was  held  to  extend  to  tithes^  though 
an  incorporeal  hereditament^  and  collateral  to  the 
land. 


londf  But  lands,  ex  vi  termini^  will  pass  houses,  so  that 

hHtte$.  if  a  man  having;  both  lands  and  houses  in  Dale^  de- 
vise all  his  lands  in  Dale^  his  houses  will  pass  to  the 
devisee*. 


^**  g^**      By  the  demise  of  a  manor,  the  manor  passes  toge- 
word  Jiw-    ther  with  all  the  demesnes  and  services,  so  that  if  after 


such  deviM  a  copyhold,  parcel  of  the  manor,  escheats 
to  the  lord,  it  undoubtedly  passes  by  the  will'.  lo 
strictness  the  soil  and  inheritance  is  in  the  lord,  and 
ihe  copyholder  is  only  a  tenant  at  will ;  so  that  under 
a  devise  of  a  manor,  copyhold  premises,  parcel 
thereof,  subsequently  purchased  by,  and  surrendered 
to,  the  lord,^^|fll  pass  ^ 

^"^Uf*""      '^'*^  word  farm,  bh  importing  all  such  premises  a^ 
Mm.        have  been  usually  let  together,  and  comprehended 
within  one  entire  holding,  has  always  been  consi- 
dered as  carrying  the  whole  premises/  where  the 

'  Vid.  3  p.  >Vms.  35^2.  *  Style,  261. 

*  Ewer  V.  Heydon^  Moor,  350.  pU  491.  and  see  Godb.  36^. 
pi.  447.  ' 

'  Banter  v.  Cooke,  It  Mod.  129.  Salk.  238. 

*  Roe  d.  Hale  v.  Wegg  and  Others,  Q  T*  R^  7Q». 


Sect.  2.  As  to  immot^eable  things.  455 

* 

name  have  consisted  of  different  descriptions  of  estate ; 
and  this^  although  the  word  has  been  associated  with 
other  terms^  descriptive  in  their  ordinary  sense  of 
freehold  property  only^  and  the  testator  has  died 
seised  of  freehold  estate  sufficient  to  satisfy  the  prima 
facie  import  of  the  words.  Thus^  where  A.  being 
seised  of  $everal  freehold  estates^  and  possessed  of 
part  of  a  fBtrm,  held  by  a  church  lease^  renewable; 
(the  other  part  of  the  farm  being  freehold^  and  the 
whole  having  been  always  let  together^  as  one  entire 
fartn^  at  one  rent,)  devised  ''all  his  manors^  mes- 
suages^ houses^  yams^  lands,  woodlands,  heredita- 
ments^ and  real  estates  whatsoever/'  to  B.,  and 
gave  ''  ail  the  rest  and  residue  of  his  ready  money, 
rents  in  arrear,  stock  in  the  public  funds,  jewels,  and 
personal  estate  whatsoever*'  to  C. ;  it  was  clearly 
held  that  the  leasehold  part  of  the  farm  (6)  passed 
under  the  first  devise  '• 

'  Lane  v.  Earl  SUnllope  and  Others,  6  T.  R.  345. 


(6)  Unity  of  posiecsion  is  always  a  strong  argument  of  inten- 
tion to  tndvde  tke  lutgects  so  held  togjether,  under  one  and  the  same 
deyise,  even  where  the  word /arm  does  not  occur  in  the  will. 
As  in  the  case  of  Roe  d.  Pye  v,  Bird|  2  Blackst.  1 301.  where  a 
testator  devised  all  his  estate  in  A.  having  copyhold  and  leasehold 
there  which  had  been  purchased  together,  and  afterwards  occupied 
ti^ther  for  twenty-three  years ;  the  devise  was  held  to  include 
both  the  leasehold  and  copyhold)  as  one  consolidated  estate, 
though  there  was  in  the  same  will,  a  bequest  by  the  testator,  of  all 
his  personal  estate  to  another.  And  so,  where  a  man  devised 
his  freehold  ^d  copyhold  messuages,  lands  and  tenements  to  A. ; 

9 

«nder  this  devise  the  plant  of  a  brewhouse  was  held  to  pass 
with  the  brewhouse  itself,  having  been  tenanted  together,  although 
there  was  a  bequest  of  the  personal  estate  to  another.  See  Wood 
Mid  Wife^  9.  Gaynon  fmd  Wife  and  others.    Amb^  395. 


elude. 


456  Impart  6f  Wards'^and  Phrases    Chap.  IV. 

Thus  al«o^  in  an  earlier  case^  where  a  testatrix  had 
devised  to  A.  an  entire /arm  in  the  occupation  of  one 
of  her  tenants^  which  included  a  .small  parcel  of 
marsh  lands  ;  this  parcel  of  marsh  lands  was  hdd  to 
pass^  together  with  the  farm  to  which  it  was  at- 
tached^ notwithstanding  there  was  in  the  saoie  wiD  a 
devise  of  all  the  testatrix's  marsh  knds  to  anoAer 
person^  she  having  a  large  estate  in  marsh  knds  be- 
sides^ which  was  let  together  to  another  tenant'. 

^tlhi?*t  ^^'^  \9W^  messuage  has  also  been  carried  by 
Buy  in-  construction  to  the  same  extent.  Thus  in  a  case 
where  the  testator  devised  his  three  messuages^  with 
all  houses^  barns^  stables^  stalls^  et  castera^  that  stand 
upon  or  belong  to  the  said  messuages^  and  the  ques- 
tion was^  whether  the  lands  and  meadows  which  were 
held  with  the  messuages^  would  pass  by  the  wills  the 
Courts  after  saying  that  the  intention  of  the  testator 
was  the  polar  star  to  direct  them  in  the  construction 
of  wills,  observed,  that  the  testator  had  clearly  mani- 
fested  his  intention  to  dispose  of  his  whole  estate,  by 
the  introductory  words,  which  were,  '^  As  touching 
such  worldly  estate  wherewith  God  hath  blessed  me, 
I  g^ve,  &c.''  The  Court  also  laid  great  stress  upon 
the  fact  of  the  testator's  having  purchased  the  whole 
estate  together,  both  messuages  and  knds,  a  short 
time  before  he  made  his  will  They  thought  it  dear 
from  all  circumstances,  that  the  lands  and  meadows, 
as  well  as  the  houses,  were  meant  to  pass  by  the  de- 
vise, as  one  entire  farm,  as  much  as  if  the  testator 
had  said,  ^'I  give  and  devise  all  that  my  farm,  with 
the  appurtenances  which  I  purchased  of  A.  B."  which, 

■  Holdfast  d.  Hitchcock  v.  Fsfdoe,  2  Bhckst*  9T6.  aid  see 
Doe  d.  Belisjse  v.  the  Earl  of  Iacss,  0  Eut  448. 


Sect.  "S.         As  to  hnniMeahle  things,  457 

withcmt  doubt^  would  hare  passed  the  whole^  both 
messuages  and  lands  \ 

Notwitfastandinfi:  the  different  construction  ffiven  Hoiue— 
to  messuage^  and  kouscy  in  many  of  the  early  cases^  may  in- 
the  Court  in  the  case  of  Doe  d.  Clements  v.  CoHins', 
seemed  to  think  the  distinction  had  been  carried 
too  far.  There,  A.  being  tenant  for  years,  of  a 
house,  gardens^  stables,  and  coal-pen,  made  the  fol- 
lowing bequest,  '^I  give  the  house  I  live  in,  and  gar- 
den to  B."  And  it  was  held  that  the  stables  and 
coal-pen  occupied  by  A.  together  with  the  house, 
passed  without  being  expressly  named,  though  the 
testator  used  them  for  the  purposes  of  trade,  as  well 
as  for  the  convenience  of  the  house. 

But  no  case  has  gone  so  far  as  to  say  that  the  word 
house  alone,  is  capable  of  receiving  from  evidence 
of  intention  such  an  enlargement  of  its  sense  as  to 
pass  lands  in  a  will.  In  the  case  of  Doe  d.  Walker, 
V.  WaHcer*,  the  argument  from  intention  was  much 
pressed,  but  the  Court  considered  that  to  supply  the 
word  ^'  lands*'  would  be  to  supply  an  absolute  omis- 
sion in  the  will,  of  which  they  said  they  never  knew 
an  instance.  *  The  case  was  shortly  this.  A  testator 
devised  to  his  wife  his  house  and  goods,  with  all  his 
lands,  goods,  and  chattels  whatsoever  and  whereso- 
ever, for  her  life ;  and  after  her  death  to  two  younger 
sons,  till  they  should  attain  the  age  of  fifteen,  for 
their  education.  He  then  devised  his  aforesaid  house,  ^ 
^oods,  and  chattels,  equally  to  be  divided  between  all 

^  GnlliTer  d.  Jeffereys  v*  Poyntz.  3  Wils.  141*    And  see  the 
•ttses  coUected  in  HargniTe's  notes  to  Co.  Litt.  5  b.  note  21k 
'  2  T.  R.  499.  f  3  Bos;  et  Poll.  375. 


.     V" 


458  Import  of  Words  and  Phrases    Chap.  Vf. 

his  sons  and  dau^hters^  share  and  share  alike ;  and 
it  was  determined  that  under  the  last  clause  of  the 
devise^  the  lands  did  not  pass.  There  is  a  case, 
however^  in  Peere  Williams  ^  in  which,  by  force  of 
the  general  intent  deducible  from  the  .dispositions  of 
the  will,  land  was  held  to  pass  without  any  other  de- 
scriptive word  besides  his  (the  testator's)  house  at 
C.  The  testator  directed  that  his  cousin,  Anne  Edg- 
ley,  should  continue  to  live  at  his  house  at  C.  and  that 
her  son,  H.  E.  should  continue  to  live  with  her  there 
in  the  same  manner  as  he  then  did  with  the  testator; 
that  the  said  Anne  Edgley  should  be  at  all  the  charge 
of  house-keeping,  servants*  wages,  and  coach  horses, 
to  the  number  that  he  maintained.  The  testator  was 
seised  in  fee  of  some  little  land,  by  him^  always  em- 
ployed for  producing  hiiy  and  corn  which  was  cod- 
stantly  spent  in  the  house,  and  the  land  was  ploughed 
with  the  coach  horses  which  the  testator  kept.  Upon 
this  will  and  these  circumstances  the  court  rea8one4 
that  the  intention  of  the  testator  was,  that  after  his 
death,  and  during  the  life  of  his  kinswoman  Anne 
Edgley,  every  thing  should  be  carried  on  and  trans- 
acted as  it  was  in  his  life  time,  and  that  to  such  a 
-  nicety,  as  that  the  same  number  of  servants,  and  even 
of  coach  horses  was  to  be  employed,  the  same  hospi- 
tality observed,  and  the  same  horses  used  in  ploughing 
the  lands  ;  which  could  not  be,  unless  the  lands  were 
to  continue  as  before  to  be  enjoyed .  with  the  bouse : 
therefore,  as  it  seemed  to  have  been  his  intention 
not  to  part  with  them,  it  was  decreed  that  those  hods 
which  had  before  been  constantly  enjoyed  with  the 
house,  and  the  profits  whereof  had  been  applied  to  the 
maintenance  of  the  house,  should  continue  to  be  so 
enjoyed. 

;  Blackburn  v.  Edgley,  1  P.  Wms.  600, 


« 

fifiCT.  2.         jisto  immoveable  things.  459 

There  is  less  difficulty  in  construing  land  to  pass  ^Jj^^  ^^ 
with  a  house,    where  the  word  appurtenances  is  "^ordap- 
added.     Thus  in  Doe  d.  Lampriere^  v.  Martin  "^^  land  ^• 
occupied  with  a  house^  and  highly  convenient  for  the 
use  of  it^  was  held  to  pass  in  a  will  by  the  word  ap- 
purtenances, though  the  land  in  that  case  was  held 
for  a  different  term. 

In  the  last  cited  case  the  devise  was  of  ^'  all  the  tes- 
tator's copyhold  messuage^  with  all  out-houses^  gar* 
dens^  and  appurtenances  to  the  same  belongings  situ* 
ate  at  Fulham^  and  then  in  his  possession."  And  the 
land  in  question  was  the  site  of  some  cottages^  which 
the  testator  had  lately  pulled  down  for  the  purpose  of 
taking  the  ground  on  which  they  stood  into  the  court- 
yard of  the  house^  so  that  his  plain  meaning  was  to 
unite  these  parcels  together^  and  to  devise  all  that  he 
personally  occupied. 

From  the  reasoning  of  the  case  it  appears,  that  the 
land  was  considered  as  included  in  the  wprd  appur- 
tenances, for  the  sake  of  giving  effect  to  tb^  mani- 
fest intention  <^f  the  testator^  as  it  appeared  by  the 
context  of  the  Y^ill  itself,  assisted  and  explained  by 
extrinsic  evidence;  which  seems  to  be  a  sufficient 
ground  for  extending  the  import  of  the  word  appur- 
tenances, or  any  other  word  of  description  in  a  will 
But  it  may  be  observed  that  that  word  in  its  strict 
technical  sense  has  been  held  to  extend  to  the  build- 
ings^  curtilage^  and  garden,  belonging  to  a  house^ 
and  the  court-yard  seems  to  be  part  of  the  curtilage. 

But  appurtenances  will  pot  ex  vi  termini  compce- 

•  f  Blackst.  U4»,  ■ 


460  Impart  of  Words  and  Phrases    CttAP.  IV. 

hend  land,  although  usually  occupied  with  a  house, 
>  but  only  such  land  or  ground  as  is  immediately  con« 
nected  therewith,  and  necessary  to  the  commodious 
enjoyment  of  it.  If  it  is  to  be  carried  beyond  this^ 
so  as  ^  include  lands,  such  extension  of  its  sense 
must  be  a  consequence  of  the  principle  of  giving  ef* 
feet  to  the  general  plain  intent  of  the  testator.  Thus 
in  Buck  and  Whalley  v.  Nurton  *,  where  in  the  will 
of  the  testator  was  the  following  clause  :  ^'  And  it 
is  my  express  will  and  desire,  and  I  do  hereby  direct 
that  the  said  John  Nurton  shall  hold  and  ei\joy  my 
said  capital  mansion-house,  with  the  appurtenances^ 
for  the  space  of  one  year  after  my  death."  In  ano- 
ther part  of  the  same  will  the  testator  had  devised 
*'  All  that  his  capital  mansion-house  wherein  he.tben 
lived,  and  the  lands  and  grounds  thereto  belonging, 
and  therewith  held  and  enjoyed,  with  the  appurte' 


nances*' 


The  testator  was  possessed  of  a  mansion-house,  to- 
gether with  several  parcels  of  land,  amounting  to  64 
acres,  and  there  were  also  extensive  gardens  and 
pleasure-grounds,  together  with  walks  and  ways  at- 
tached to  the  house.  *  The  question  was  what  parts 
of  the  premises  passed  to  John  Nurton  by  the  clause 
which  directed  that  he  was  to  have  the  mansion-house 
with  the  appurtenances  for  a  year  after  the  testator's 
death.  The  ejectment  was  brought  to  recover  64 
acres  and  a  half  of  land,  consisting  of  a  park,  mea- 
dow land,  pasture  land,  and  orchards,  which  were 
proved^  to  have  been  constantly  occupied  by  the  tes* 
tator  for  many  years  before  his  death  in  conjunction 
^ith  the  mansion-house.    But  the  court  did  not  see 

'  i  Bos.  et  PoU.  6S. 


Seer.  2.         As  to  immoveahte  things.  461 

sufficient  evidence  of  intention  in  the  case  to  justify 
them  in  giving  to  the  word  appurtenances  an  effect 
beyond  its  technical  sense^  notwithstanding  the  fact 
of  the  usual  enjoyment  of  the  lands  in  question  to- 
gether with  the  house.  The  word  appurtenances 
was  therefore  confined  to  the  gardens^  pleasure- 
grounds^  walks^  and  orchards,  though  as  to  the  or- 
chards Eyre^  C.  J.  appeared  to  have  some  doubts. 

It  has  Ions:  heen  settled  that  by  a  devise  of  the  Bj  a  de- 

°  •'  vi«€  of  the 

occupation,  or  of  the  rents  and  profits  of  the  land^  occupa- 
the  land  itself  is  carried  to  the  devisee.     Thus  where  the  rad^ 
the  occupation  was  devised  to  the  executor  for  a  time^  the  i^dit^ 
and  afterwards  the  land  itself  to  another^  the  execu-  **  p»»^' 
tor's  execution  of  the  legacy  to  himself  was  adjudged 
to  be  an  execution  of  it  to  the  other,  both  their  in- 
terests being  the  same^.     Such  a  gift  of  the  rents  and 
profits,  or  of  the  occupation  of  the  land,  is  consider- 
ed as  a  mere  circumlocution  (7)  to  express  the  thing 
itself  (8).     But  the  books  make  a  difference  between 

*  Welcden  v.  Elkington,  Plowd.  524.     Paramour  v.  Yardley, 
Plowd.  5S9.     And  see  Parker  v.  Plumber,  Cro.  £1.  190. 


(7)  The  strictness  of  pleading  requires  that  gifts  or  grants  by 
circumlocutory  phrases,  be  stated  and  described  according  to  their 
true  legal  eifect.  So  that  if  in  a  plea  to  an  action  of  trespass  the 
defendant  state  that  the  plaintiff  licensed  him  to  enter  and  occupy 
the  land  for  the  space  of  a  month,  such  a  plea  would  not  be  good, 
but  he  ought  to  say  that  the  plolntiS  ieased  the  land  to  him  for  that 
time ;  for  the  facts  will  not  proye  a  licence  but  a  leasee  notwith* 
standing  the  expression  in  the  grant.    See  Plowd.  154.  542. 

(S)  It  was  observed  by  the^court  in  Paramour  r«  Yardley,  that 

this  was  more  than  the  king  shall  hare  of  the  tenant  in  fee  simple 

upon  his  outUwry  In  a  personal  action,  for  he  shall  haye  only  the 

profits  as  they  arise  of  themselTes  without  manuring. 

1 


461?  Import  of  Words  and  Phrases    Chap.  IV, 

the  devise  of  the  use  or  occupation  of  a  personal 
chattel^  and  the  devise  of  the  occupation  and  profits 
of  land^  or  a  chattel  real.     Thus  in  the  year-book  37 
II.  6.  (9)  the  case  was  that  A.  being  possessed  of  a 
book  called  the  Grail^  devised  it  to  B.  one  of  bis  ex- 
ecutors, to  have  the  occupation  of  it  during  his  life^ 
and  that  after  his  death  C.  should  have  it  in  the  same 
manner  for  his  life,  and  that  after  his  death  it  should 
be  disposed  of  by  his  executors  to  the  use  of  a  church, 
and  died,  and  B.  took  the  book,  and  kept  it  by  force 
of  the  devise,  and  delivered  it  to  the  wardens  of  the 
said  church,  and  died ;  then  C.  took  the  book,  and 
the  church  wardens  brought  an  action  of  trespass 
against^him,  and  it  was  the  clear  opinion  of  the  courts 
that  the  action  was  maintainable,  because  the  hwk 
was  never  delivered  to  C.  by  the  executors,  and  the 
occupation  or  possession  of  B.  was  no  execution  of  the 
legacy  to  C.  because  nothing  \>^s  devised  to   B.  but 
the  occupation,  and  the  like  to  C,  for  the  deviss 
proves  in  itself  that  the  property  of  the  book  was 
always  in  the  executors,  to  the  use  of  the  testat<M*,  to 
the  intent  that  they  should  dispose  of  it  to  the  use  of 
the  church ;  the  occupation  was  a  distinct  thing  from 
the  property :  the  occupation  of  one  was  not  the  oc- 
cupation of  the  other,  but  their  occupations  differed 
from  each  other,  and  were  several  things  devised  out 
of  the  principal,  for  which  reason  the  occupation  of 
B.  was  no  execution  of  the  occupation  of  C; 


(9)  Cited  ID  Paramour  r.  Yardley,  Plo^d.  542.  and  approred 
by  all  the  court ;  and  see  Gary  r.  Appleton,  Ch,  Ca-  240.  where 
the  same  distinction  is  taken ;  and  see  Moor,  754.  3  Balst.  105. 
and  Allen  55.  in  which  last  case  it  was  admitted  that  an  authority 
to  take  tile  profits,  implies  as  much  as  a  derise  of  the  profits. 


Sect,  S«  As  to  immoveable  tilings.  463 

As  a  devise  of  the  rents  and  profits  passes  the  land  ^7  ^^^ 
itself^  80  by  a  devise  of  the  ground  rent  reserved  on  grmmiUtni 
a  lease  for  years,  the  reversion  has  been  held  to  be  'ion  wui 
carried  to  the  devisee.     This  was  determined  in  the 
case  of  Maundy  V.  Maundy^,  which  case  was  as  fol- 
lows.    On  a  special  verdict  in  ejectment  for  houses  in 
■  square,  it  was  found  that  Ventris  Maundy 

being  seised  of  the  reversion  in  fee  of  the  houses, 
which  were  of  the  value  of  2601.  per  annum,  but 
then  let  on  a  lease  for  60  years,  at  ^.  per  annum, 
called  a  ground  rent ;  and  having  several  sons  and 
daughters,  made  his  will  in  April  1696,  in  the  fol- 
lowing terms :  *'  In  respect  to  my  worldly  estate, 
wherewith  it  has  pleased  God  to  bless  me,  I  dispose 
of  it  as  follows :  To  my  son  Daniel  I  give  4/.  per 
annum  of  my  ground  rent;*'  and  in  like  manner  he 
parcelled  out  the  whole  22/.  to  his  children  (except 
the  eldest),  his,  her,  and  their  assigns  for  ever ;  "  but 
as  to  Ventris  my  eldest  and  undutiful  son,  I  give  him, 
in  hopes  he  may  reform^  5/.  per  annum,  due  on  blank 
tickets  in  the  million  lottery.  And  if  any  of  my  other 
children  die,  their  legacy  to  go  to  the  survivor,  my 
said  undutiful  son  excepted,  who  is  to  have  no  share 
or  part  thereof,  nor  any  more  share  or  portion  than 
I  have  before  given  him/' 

The  building  leases  being  expired,  the  heir  of  Ven- 
tris the  eldest  son,  brought  this  ejectment,  insisting 
that  the  reversion  was  undisposed  of;  and  that,  how- 
ever strong  the  intention  to  disinherit  the  eldest  son 
appeared,  yet,  if  it  was  undisposed  of,  he  must  have 
it'.     And  upon  argument  in  the  Common   Pleas, 

*  Strange,  1020.    Fitzg.  70.  388.  S.  C.  in  C.  B,  cas.  temp.  Lord 
llardwicke,  142.     2  Barnard,  K.  B.  202. 
^  Denn  r.  Gaskio,  Covp.  66  !• 


vtuei^ 


464  Import  of  Words  aigd  Phrases    Chap.  IV. 

« 

judgment  was  given  against  him  in  favour  of  the  de- 
visee^  which  judgment  v?as  affirmed  in  the  King's 
Bench.  And  the  case  of  Kerry  v.  Derrick ',  was  re- 
lied on  as  good  authority,  and  precisely  to  the  point. 
So  in  a  subsequent  case'  in  Chancery,  it  was  held  that 
a  bequest  ot  leasehold  ground  rents  passed  hot  the  re^ 
served  rent  only,  but  the  whole  reversionary  lease- 
hold interest* 
• 
Of  the  ef.       With  respect  to  the  force  and  extent  of  the  word 

feet  of  the  ^  ... 

w^pr*^  premises  in  a  will^  it  is  obvious  that  being;  entirely  a 
word  of  reference,  it  will  be  commensurate  in  its  opera- 
tion to  the  extent  of  the  words  to  which  it  refers,  and 
as  it  may  be  extended  by  reference  to  any  number  of 
terms,  its  descriptive  force  may  thus  be  made  to  cover 
a  variety  of  subjects  having  no  connection  or  affinity 
among  themselves.  Thus  in  a  case*  where  a  testator 
devised  as  follows :  ''  I  give  and  devise  all  that  my 
messuage,  dwelling-house  or  tenement,  with  the  shop, 
barn,  stable,  and  other  buildings  thereunto  belonging, 
which  said  messuage  or  tenement,  buildings^  lands,  or 
premises,  are  now  in  my  own  possession^  and  all 
other  my  real  estate  whatsoever,  in  M.  or  in  any  other 
place  whatsoever,  to  S.  and  her  assigns^  for  and  dur- 
ing the  term  of  her  natural  life ;  and  from  and  after 
her  decease,  I  give  and  devise  the  said  messuage  or 
tenement,  buildings,  lands,  and  prfemises^  vnto  my 
youngest  son  W.  B.  his  heirs  and  assigpas  for  ever;"' 
it  was  held  that  the  word  premises  used  in  the  devise 
to  B.,  carried  all  that  was  before  given  to  A.,  and  was 
not  confined  to  the  premises  in  £he  testator's  own  pes- 

'  Moor,  771.  Cro.  Jac.  104.   cited  in  2  Veni.  400.  asCheny 
V.  Dethick. 

'  Kaye  v.  Laxon,  1  Bro.  C.  C.  76. 

*  Doe  d.  Biddulph  i^.  Meakio,  1  East,  4#0. 


Sect.  3.      A$  to  Estate,  Hereditaments,  %c.  4^5 

session^  so  that  a  reversion  in  fee  of  another  mes- 
suage^ to  which  the  testator  was  entitled  after  the  de- 
termination  of  a  life  in  beings  in  whose  possession  it 
was  outstanding  during  bis  life-time^  passed  to  the  de- 
visee in  remainder. 


Section  III. 

Eatale,  Hereditaments,  Inheritance,  Properly, 

Ejects,  Sfc. 

THE  word  '  estate*  is  a  word  of  great  compass ; 
predicable  of  every  species  of  property^  corporeal  or 
incorporeal^  real  and  personal.  It  may  also  embrace 
every  description  of  interest ;  and  so  far  is  it  from 
being  necessary  in  a  will  to  add  words  of  inheritance  in 
order  to  make  it  passafee^  that  words  of  restraint  must 
be  added^  or  specific  grounds  for  inferring  a  narrower 
intention  in  the  testator  must  be  sbewn^  to  make  it  im^^ 
port  less  than  the  fee  (1)^  where  the  fee  is  dispos- 
able. 

In  the  great  case  of  the  Countess  of  Bridgewater 
V.  the  Duke  of  Bolton  %  Lord  Holt  has  commented 

^  5  Mod.  106.     Lord  Hardwicke  has  said  that  this  is  a  book  of 
no  authority,  but  that  this  case  is  weU  reported  in  it* 


( 1 )  See  Barnes  v.  Pitch,  B  Vez.  Jan.  (J04.  The  position  of  Lord 
TrcTor  In  Shaw  v.  BnU,  1ft  Mod.  59ft.  where  he  says  that  ^  my 
estate,'  '  the  rendue  of  my  estate/  or  '  the  oyerplus  of  my  es- 
tate/ jokj  pass  the  estate,  uhire  the  intent  is  qjpartnt  to  pass  it^ 
18  therefore  to  bt  considered  as  too  narrow. 

2h 


46$  Import  of  Words  and  Phrases    Chap.  IV. 

very  learnedly  upon  the  force  of  the  word^  taken  se- 
parately^ or  in  combination  with  others.  The  ques- 
tions were  whether  the  words  ''  All  my  real  and  per- 
sonal estate"  passed  the  fee-farm  rents ;  and  if  they 
did,  whether  they  passed  the  fee-simple,  or  only  a  life 
interest,  there  being  no  words  of  inheritance  in  the 
will  (2).  And  first,  it  was  held  that  the  rents  passed: 
for  the  word  '^estate'  is  genus  generalissimum,  and 
includes  all  things,  real  and  personal :  and,  secondly/ 
that  the  word  ^  estate'  ex  vi  termini,  passed  the  fee  in 
awiU(3).   •         ' 


(^)  The  devise  was  to  B.,  his  executors  and  assigns ;  but  tbis 
form  of  Umitation  does  not  seem,  according  to  the  latest  and  best 
iUithorities,  to  weigli  much  against  the  effect  of  the  word  estate^  ex- 
cept perhaps  where,  as  in  Chester  v,  Painfer,  2  P.  Wms.  335.  aihI 
Rogers  o.  Buggs,  Andr.  dl0.,the  testator  has  shewn  his  own  deirap* 
prehension  of  the  difference  between  these  different  forms  of  limi(a^ 
tion,  by  his  addition  of  the  word  heirs  io  the  word  estate  in  other 
parts  of  his  will.  But  even  this  argument  has  been  considered  as  of 
little  forc^  in  other  cases ;  especially  if  from  the  general  context  of 
the  will  an  intention  to  give  the  wtiole  may  be  collected.  See  It»- 
betson  v.  Beckworth,  Ca.Temp.  Talb.  157. 

(3)  Lord  Holt  obserted  that  ^''  most  certainly  in  grants  thf 
word  estate  would  not  pass  a  fee,  because  the  law  had  appoioted- 
that,  let  the  intent  be  e^er  so  fully  expressed  and  manifested  in 
grants,  without  the  word  '  heirs*  the  fee  should  sot  pass.  Litt.Ten. 
Sect.  1. ;  and  that,  eyen  if  a  feoffment  were  made  to  J.  S.  to  hoot 
to  him  a  fee  simple^  which  words  could  have  no  other  sense  than 
to  pass  an  inheritance,  j^t  that  an  estate  for  life  only  would  pass. 
4  Com.  dig.  <  estates'  (A.  2.)  ;  but  that  in  a  will  it  was  otherwise; 
because  a  will  of  lands  was  a  new  conveyance,  created  by  the  sta- 
tute, whereby  a  man  was  enabled  to  devise  all  his  socage  land  ak 
his  will  andpleasure  ;  so  that  when  a  person  manifestly  shewed  his 
intent  that  the  devisee  should  hare  the  inheritance,  the  statute  that 
empowered  him  to  devise  his  estate  at  his  pleasure,  would  make  his 
disposition  good  without  tying  him  up  to  the  forms  of  the  common 
law."    This  reason  will^  howerer^  occur  to  many  readers^  to  he 


^tCT:  3:    As  to  E^tutt^  HeredilamerUs,  ^c.  4si 

It  i«  observable^  however,  that  Lord  Holt  laid  con-  ^^^* » 


siderable  stress  on  the  accompanying  words  '  all'  anci  though 
*  my'.     The  word  '  all*  in  his  opinion,  made  the  de-  med  by 
vise  iiiore  comprehensive,  and  thef  word  ^  my',  being  pUc^,  wih 
a  word  of  relation,  expressed  the  amount  of  the  iden-  r^mpit; 
tical  interest  which  he  had  in  the  subject^  viz.*  a  fee. 
But  subsequent  cases  have  given  to  the  word  '  estate^* 
simply  taken,  a  more  absolute  and  independent  force. 
And  where  it  has  befen  coupled  with  words  of  local  des- 
cription, or  vised  in  the  plural  numberi  it  has  been  held 
to  transmit  all  the  testator's  interest  in  the  subject. 
Where  a  testator  devised  all  bis  estate  in  D.,  it  was 
decreed  th&t  the  fee  passed  \     And  the  same  point 
was  afterwards  ruled  by  Lord  Hardwicke' ;  who  in 
a  subsequent  case,   considered  the   distinction  be- 
tween i^i  or  at  a  place,  as  an  idle  distinction^.     In 
the  case  of  Holdfast  on  dem.of  Cowper  v.  Marten*, 
where  the  testator  gave  and  bequeathed  to  A.  his 

*  Barry  v.  Edgewtfrtb,  2  P.  Wms.  522. 

•  TuffneU  c.  Page,  2  Atk.  37. 

*  Goodwyn  ©.  Goodwyn,  1  Vez.  228. 

•  lT.R-411. 


Imperfect  imd  urisatisfftctory ;  for  where  lands  were  derisable  bei 
fore  the  statute,  by  the  customs  of  particular  places,  the  same  la- 
titude  and  indulgence  was  allowed  to  testators ;  who  are  to  be  sup- 
posed, in  the  majority  of  cases,  ^o  make  these  final  dispositions  «;i 
their  property,  in  a  condition  of  mind  in  which  it  w^ould  be  un- 
reasonable to  expiect  correct  |>hras6'ology.  Thus  where  lands  were 
deTisable  vfuder  the  custom  of  a  place,  express  and  precise  wordl 
of  limitation  were  not  necessary  by  the  common  law ;  for  a  devise 
of  lairds  to  a  man,  et  sanguini  sui,  passed  an  estate  tail.     1  RolL 

« 

Abr.  834.  pi.  17. ;  and  so  a  devise  of  lands  to  a  man,  in  fee-simple^ 
or  to  him  and  his  assigns  for  ever,  has  always  passed  a'  fes-simjla; 
See  Doe  d.  Lady  Dacre  o.' Roper,  11  East,  618. 

2Hd 


46i  Irhpdfl  bf  Wbi-ds  and  PkraHa    Chap.  IV. 

tktkie  at    B.  A.  -wtis  adjodg^  to  take  the  esUte 
At  B.  in  f««. 

Lord  "Hardwick^,  in  the  ab6V6-c{t«d  Ctte  of  Qofsi* 
t^yh  V.  Qodfdwyn^  remarked  that  tlVMgii  later  casei 
had  gone  farther  than  that  of  the  CountesB  0f  Bridffc- 
MT&ter  k).  tihe  Dake  of  Bolton^  and  had  held  that  by  a 
devke  of  ''  all  my  estate  in  or  M  such  a  pkce^  not 
only  the  lands  thenraelves^  but  all  the  hiterett  paased," 
yet  thai  thete  wab  no  case  ^here  it  had  been  m  htH, 
where  there  was  a  ftLrther  description,  as  in  the  ease 
ffien  before  him,  viz.  in  the  ^cupati^n  of  partiaddf 
tenants.  The  word,  too,  bein^  estates,  and  not  estate, 
ihade  stich  a  difference  in  the  case  as  to  induce  Mm  to 
auspend  his  judgment. 

Both  thei^  difficulties  appear  now  to  be  removed.  In 
the  cane  of  Pletcher  «.  Blniton',  it  was  deaiiy  decided 
that  the  word  estates  in  a  will  carries  the  fee,  unless 
coupled  with  other  words  that  shew  a  different  inten- 
tion. And  in  a  recent  case  ^  a  devise  of  ^^  all  my 
estate,  lands,  &c.  known  and  called  by  the  name  of 
the  (coal-yard,  in  the  parish  of  St.  Giles's,  Loiidon," 
was  held  to  carry  the  fee-simple  in  the  premiseB 
devised.  The  law  must,  therefore,  be  opuwdered 
as  settled,  that  no  words  describing  the  situatton 
o^  or  otherwise  particularizing,  the  land  devised, 
shall  restrain  the  word  estate  from  carrying  the  fee- 
simple.  In  the  last-cited  case  the  court  adopted 
Lord  Hardwicke's  remctrk  in  €bodwyi|  v.  Good- 
ivyn,  ^^  That  there  vrto  no  reason  why  ^te  Vf^affds  m 
the  occupation  of  B.  and  D.  should  restrain  the  ex- 
tent of  the  word  estate  more  than  the  localibf^  which 

'  2  T.  R.  056.  •  Roe  d.  Child  v.  WrigU,  ^  Eadt^  Ut/ 


I 


Sscf . &    Asia  Estate,  Hereditaments,  %«.  469 

would  net."  It  is  not  surprising^  therefore^  that  aft^r 
these  decisions  the  court  of  Common  Pleas  should 
have  interposed  in  a  very  late  case  to  save  the  counsel 
the  trouble  of  arguing  that  a  devise  of  ^  all  wy  estate 
of  Ashton'  passed  the  fee-simple*. 


As  to  the  word  hereditament,  the  better  opinion  Tk^ftt 
seems  alfrays  to  have  beep^  that  it  does  nt)t  per  se  de-  pw  by 
note  the  quantum  of  interest  conveyed.    Thus  in  the  word  herb^ 


case  of  Hopewell  v.  Ackland'^  upon  its  being  con-  aione, 
tended  that  the  word  hereditafnent  imported  an  inhe- 
ritance^ Lord  Trevor  stated  decisively  that  this  word 
hereditament  can  not  be  taken  to  denote  the  measure 
or  quantity  of  estate^  but  that  it  has  a  larger  meaning 
than  lands  and  tenements,  as  it  may  extend  to  annui- 
ties^ advowsons  in  gross^  Ac.     And  in  the  subsequent 
case  of  Canning  v.  Canning ^  it  was  said  by  the  Mas- 
ter of  the  Rolls^  that  the  law  was  settled  in  the  case 
of  Hopewell  t;.  Ackland^   that  a  fee  will  not  pass  by 
the  word  hereditaments.     Again  Lord  Kenyon  in  the 
case  of  Doe  d.  Palmer  and  others  v.  Richards'^  ad- 
mitted that  the  words  ''  All  the  rest^  residue,  and  re- 
mainder of  my  messuages,  lands,   tenements,   and 
hereditaments/'  were  not  sufficient  in  law  to  carry  a 
fee :  and  the  same  was  held  for  law  in  the  subsequent 
case  of  Denn  d.  Moor  v.  Miller"".     The  law  on  thb 
point  may  therefcNre  be  regarded  as  settled  contrary 
to  the  single  opinion  of  Powell  J.  in  Lydcott  v.  Wil- 


^  Sir  Arthar  Chichester  o.  George  Chichester  Oxendon,  4  Taunt. 

176.    The  Chief  Justice  observed,  that  he  did  not  think  it  would 

hare  helped  the  plaintiff  much  if  the  testator  had  said  ^  All  my 

Ashton  estate.'     And  in  Baiiis  o.  Gale,  %  Vez.  48.  a  ieaAse  of 

^^  all  the  estate  I  bought  of  M."  passed  the  iee. 

'  iSalk.  238.    ^  Mosel.  Ml.     '  ST. it. 358.     "  ST.R.65& 

1 


4it(f  Import  of  Words  and  Phrases      Ceas.  IV. 

lows*^  who  said  that  hereditament  was  eqaivalent  to 
the  word  inheiitafice  ;  and  that  it  could  not  be  doubted 
that  if  a  testator^  seised  of  lands  in  feeTsimpIe,  devise 
the  same  by  the  words  ^  my  inheritance^'  the  fee  wo\iId 
pass. 

The  fee  That  by  the  ^word  ifiheritance  the  fee  passes  in  a 
tbi^r/  will^  is  sufficiently  settled  upon  the  authority  of  Loid 
Hobarf"  and  Lord  Holt  ^.  And  in  the  case  of  Trent 
V.  Hanning''^  where  the  testator  had  appointed  certain 
persons  '  trustees  of  inheritance/  for  the  execution  of 
his  will ;  though  Lawrence  J.  thought  these  words 
too  vague  and  indefinite  to  pass  the  fee,  the  other 
three  Judges  considered  thitt  the  te^tatoD  plainly 
meant  to  make  trustees  of  his  estates  of  inheritance 
in  the  same  manner  as  if  he  had  used  the  words 
^  trustees  of  my  inheritance^'  or  '  trustees  to  inherit 
my  estates/  and  they  therefore  certified  theic  opinioii 
that  the  trustees  took  the  fee-simple, 

pftiif  im-      Lord  Mansfield  has  said^^   that  the  word  effects 

trord  pro-    is  equivalent  to  property  or  worldly  substance ;  but 

^^'        two  recent  cases  determined  in  the  court  of  King's 

Bench^  have  established  a  distinction  between  them 

.of  great  importance.     According  to  the  late  case  of 

_  #  

Doe,  lessee  of  Wall  v.  Langlands',  the  word  pror 
perty,  unaffected  by  the  context  of  the  instrument, 
seems  to  have  been  considered  as  comprehending  all 
that  the  testator  is  worth,  and  as  passing  as  well  his 
real  as  personal  estate ;  in  which  case  (here  were  nq 

"  3  Mod.  2^0. 

?  'Widlake  v.  Harding,  Hob.  % 

f  Lord  Raym.  854. 

!*  7  East,  07.    '  Hogan  v.  Jackspp,  Cowp.  U9. 

-  14Ea8t2  370. 


Sect.  S.      As  to  Estate^  Hereditaments^  f^c.  471 

introductory  words  expressing  an  intention  of  dispos- 
ing of  every  thing  the  testator  had,  and  tlie  word 
property  was  immediately  followed  by  words  expres- 
sive only  of  personal  estate,  viz.  '  goods  and  chattels/ 
As  to  the* question,  which  the  Chief  Justice  said,  was 
tfie  material  one  in  the  case — whether  the  words  im- 
mediately following  the  word  ^  property,'  were  descrip- 
tive of  the  land  of  property  the  testator  intended  to 
give,  his  Lordship  disapproved  of  construing  them^ 
as  explanatory  of  what  was  meant  by  propertif,  and 
maintained  that  it  was  more  •bvious  and  natural 
to  read  the  words  cumulatively,  i.  e.  as  '  my  property 
and  goods  and  chattels,'  than  as  '  my  property,  namely 
my  goods  and  chattels/ 

It  is  very  difficult  to  find  any  solid  principle  of  dis- 
tinction between  the  case  of  Doe  v,  Langlands^ 
above  cited,  and  that  of  Roe  d.  Helling  v.  Yeud  S 
which  a  year  or  two  before  was  decided  in  the  Court 
of  Common  Pleas.  There  the  testator,  after  direct- 
ing his  debts  and  funeral  expences  to  be  paid  by  his 
executors,  and  making  several  bequests  of  annuities 
and  money,  devised  to  his  five  grandchildren,  whom 
he  appointed  executors,  as  follows :  "  To  whom  I 
give  all  the  remainder  of  my  property  whatsoever, 
and  wheresoever,  to  be  divided  equally,  share  and 
share  alike,  after  their  paying  and  discharging  the 
before-mentioned  annuities,  legacies,  and  demands, 
or  any  I  may  hereafter  make  by  codicil  to  this  my 
will ;  ail  my  goods,  stock,  bills,  bonds,  book-debts, 
and  securities  in  the  Witham  drainage  in  .  Lincoln-: 
shire,  and  funded  property."     There  being  no  pro- 

*2N.  R.214. 


4U%  Import  of  Words  and  Phraser    Chap.  IV. 

vision  throughout  the  will  that  appeared  to  have  aay 
relation  to  real  estate^  and  nothing  being  given  to  any 
person  his  heirs  and  assigns^  and  the  intention  of  the 
testator  seeming  to  the  Court  to  be  at  most  doubtful, 
it  was  determined  upon  the  general  rule  that  an  heir 
ought  not  to  be  excluded  unless  the  intention  to  give 
the  real  estate  away  from  him  appears  plainly  by 
the  will  itself^  that  the  title  of  the  heir  should  pre- 
vail. 

The  reason  of  th^  doubts  felt  by  the  Court  as  to 
the  testator's  intention^  or  rather  of  the  inclinatioH 
of  their  minds  to  think  that  the  testator  meant  only 
to  dispose  by  will  of  his  personalty,  was  the  particu- 
larity of  the  enumeration  of  personal  things  at  the 
end  of  the  clause ;  but  that  lawyer  must  be  acute  in- 
deed, who  can  find  a  principle  for  deciding  how 
many  particulars  enumerated  after  the  word  '  pro- 
perty/  expressive  of  personal  estate  only^  shall  re- 
strict the  sense  of  that  sweeping  term  to  a  disposition 
of  personal  things  alone. 

Of  the  im-      The  case  of  Hogan  d.  Wallis  and  others  v.  Jack- 
port  of  the 

vfordrf'  son^  which  had  been  nine  years  depending  in  the 
Courts  in  Ireland,  turned  upon  the  single  question 
Ivhether  the  residuary  cbuse  expressed  in  these  words, 
'^  I  also  give  and  bequeath  unto  my  dearly  beloved 
mother,  Mary  Jackson,  all  the  remainder  and  resi- 
due of  all  the  effects,  both  real  and  personal,  which 
I  shall  die  possessed  of"'  were  sufficient  to  pass  the 
real  estate.  It  was  contended  at  the  bar  diat  the 
word  real  might  be  satisfied  by  confining  its  sense  to 

■  Cowp.  290. 


/tct9» 


ScxT.  S.      M  to  Estate,  Hereditaments,  ^c.  473 

real  ekatteU  (4) ;  and  though  Lord  Mansfield  and  the 
Court  decided  that  the  phraae  real  effects  clearly 
carried  the  real  estate^  yet  their  decision  seemed  rar 
tber  to  found  itself  upon  the  capacity  and  extent  of 
the  word  itself  in  legal  phraseology  (5)  than  upon 
the  principle  which  is  now  taken  as  the  hinge  of  all 
these  cases^  i.  e.  the  intention  of  the  testator^  withoat 
any  technical  regard  to  the  words  used  by  him. 

In  Doe  d.  Chilcottt?.  White ',  Lord  Kenyon  can 
hardly  be  said  to  have  carried  the  doctrine  farther  by 
holding,  that  where  the  testator  having  before  devised 
Kal  and  personal  property  to  his  wife  for  her  life, 
empowered  her  to  give  what  she  thought  proper  of 
ber  said  effects .  to  her  sisters  for  their  lives,  the  dis- 
posing power  extended  to  the  realty, 

^  1  East,  33. 


(4)  The  force  of  the  word  reo/,  when  added  to  a  general  term, 
such  as  property  or  effects,  can  at  this  time  hardly  be  doubted. 
But  where  the  devise  was  of  all  his  goods  and  chattels^  real  and  per- 
fNMial,  0io?eable  and  immoTeabIe,LordHardwicke,  upon  rery  plain 
gronndt  of  diitisction,  was  of  opinion^  that  the  lands  would  not 
pass  by  the  law  of  England,  though  thoy  might  have  so  done  by 
the  ciTil  law.  Grayson  r.  Atkinson,  2  Wils.  333.  See  Markaro  v. 
Twysden,  1  Eq.  C  Abr.  211.  and  see  Ridout  v  Pain,  49^.  Chat- 
tels real  are  not  called  so  because  they  are  real  estate,  but  because 
they  are  extractions  out  of  the  real  estate,  per  Holt,  C.  J. 

(5)  As  the  Courts  had  already  got  so  far  as  to  hold  that  the 
word  legacy  might  signify  a  derise  of  land,  when  used  in  a  will  in 
that  sense,  (by  Lord  Macclesfield  in  Beckley  v.  Ncwland,  %  P. 
Wms.  182.  and  by  Lord  Mansfield,  in  Brady  v.  Cubit,  Dougl.  40.) 
one  might  have  expected  that  in  the  case  above  cited,  Lord  Mans- 
field would  have  rested  the  question  as  to  the  extent  of  the  word 
effects^  upon  the  broad  ground  of  intention. 


A74.  Import  of  Words  and  Phrases    Chap.  IY. 

In  the  case  of  Doe  on  the  demises  of  Andrew  and 
others  against  Lainchbury  and  others  ^  both  the 
words  property  and  effects  occurred  in  the  resi- 
duary devise^  blended  with  an  enumeration  of  per- 
sonal  things^  but  they  were  both  considered  as  em- 
bracing the  real  property^  the  testator  having  used 
them  in  other  parts  of  his  will  to  describe  real  estate. 
By  the  residuary  clause  he  devised  all  his  ^^numey, 
stock,  property,  and  effects,  of  what  kind  or  nature 
«oever  to  A.  and  B. ;  to  be  divided  equally  between 
them^  share  and  share  alike/'  but  he  began  his  will  by 
stating  '^as  to  my  money  and  effects  I  dispose  thereof 
as  follows/'  and  then  proceeded  to  dispose  of  parts 
of  his  real  estate.  And  again  having  lands  lying  to- 
gether with  the  lands  of  another  person^  he  directed 
the  latter  to  be  purchased^  if  offered  for  sale^  to  be 
added  to  his  other  adjoining  property :  thus  shewing 
by  his  own  use  of  the  words  that  he  considered  them 
as  being  applicable  a9  well  to  real  as  to  personal  estate. 

One  clear  doctrine  results  from  all  these  cases : — 
that  although  the  word  'estate/  taken  independently 
pf  the  context,  by  its  own  force,  denotes  not  only  real 
as  well  as  personal  estate,  but  the  highest  degree 
of  real  estate,  and  the  word  property  carries  of 
itself  both  real  and  personj^l  property,  while  the  word 
effects  is  generally  and  properly  applicable  to  per- 
sonal estate  only;  yet  that  all  these  words,  and^ 
indeed  every  form  of  expression  whereby  a  testa- 
tor declares  his  will  in  respect  to  the  disposition 
of  his  property,  submit  to  the  rule  which  requires  a 
will  to  be  construed  agreeably  to  the  intention  of  the 
testator,  where  it  can  be  collected  from  the  who'^ 

"^11  East^SQQ. 


Sect.  3.      As  to  Estate,  Hereditaments,  !^e.  475 

will^  and  is  consistent  with  law  and  public  policy. 

No  criterion  is  more  frequently  resorted  to  in  the  of the  doc- 

trine  of 

books  for  expanding  or  contracting  the  sense  of  construing 

words  AS 

the  words^   estate,  property,   and  effects,  than  the  ^iMUtnge^ 
company  in  which  they  appear.     Thus^   the  word  theaccom. 
estate  is  frequently  restrained  to   things    ejusdem  wo"ds!^ 
generis  with  those  with  which  it  is  coupled  and  as- 
sociated.    As  where  a  man^  seised  in  fee  of  lands  ab- 
solutely^ and  of  other  lands  by  mortgage  not  forfeited^ 
devised  first  all  his  lands  in  fee  to  A.,  and  all  the  rest 
of  his  goods,  chattels,  estates,  mortgages,  debts,  &c., 
to  C,  it  was  holden  that  no  freehold  passed*;  and  of 
this  decision  Lord  Holt  strongly  approved  in  the  great 
case  of  the  Countess  of  Bridgewater  v.  the  Duke  of 
Bolton,  above-cited. 


A  long  list  of  determinations  to  the  same  effect 
has  been  confirmed  by  a  late  case*  decided  by 
the  present  Lord  Chancellor.  There  the  testator, 
after  directing  that  his  debts  should  be  paid  out  of 
his  personal  estate,  gave  certain  legacies;  and,  hav- 
ing a  real  estate  in  land,  and  a  real  estate  in  a  rent- 
charge,  devised  the  latter  to  his  wife  for  life,  and 
after  her  death  to  trustees  to  sell ;  and,  after  giv- 
ing some  more  legacies,  directed  that  as  and  for  the 
monies  to  be  received  from  the  sale  and  disposal  of 
the  said  rent  thereinbefore  devised  in  trust  to  be  sold 
on  the  death  of  his  wife,  as  also  the  monies  to  arise 
from  a  sale  of  the  remainder  of  his  household  goods 
and  furniture,  plate,  linen,  china,  beds  and  bedding, 
and  from  all  other  his  estate  and  effects,  of  what 

?  Wilkibson  v.  Maryland,  Cro.  Car.  447.  1  RoL  Abr.  834. 
•  WooUam  v.  Kenworthyj  9  Vez,  Jan.  137, 


476  Import  of  Words  and  Phrases    Cjiap.  IV- 

nature  or  kind  soever^  or  where9oever^  tlie  same 
should  in  the  first  place  be  subject  and  liable  to^  and 
charged  and  chargeable  with^  the  payment  of  the  be- 
fore-mentioned legacies ;  and  the  residue  of  such 
monies  to  arise  as  aforesaid^  he  directed  to  be  divided 
and  applied  aa  therein  mentioned. 

Upon  this  wiU^  Lord  Eldon  observed^  tbat^  tliM|^ 
the  words  charging  the  personal  estate  with  the  tega- 
eies  could  mean  nothings  the  personal  estate  baiag 
by  law  chargeable  with  the  legacies^  yet  that  they  were 
capable  of  being  fairly  enough  interpreted  as  applica- 
ble to  the  money  arising  from  the  sale  of  the  real  estate. 
The  question  was^  whetlier  upon  the  whole  M*  ws^ 
not  clear  that  the  testator  did  not  mean  that  any  tbing 
of  a  real  nature  should  pass  under  the  word  ^sklt€f 
For  that  purpose  every  part  of  the  will  must  be  looked 
at^  to  determine^  whether  that  word^  in  the  context  in 
which  it  occurs^  and  upon  the  general  intention  of  the 
wili^  and  all  the  phrases  of  it  taken  together,  was  to  be 
understood  ejusdem  generis  with  the  personal  estate 
immediately  before  described,  or  as  meant  to  take  ia 
the  real  estate.     It  was  to  be  considered  whether  by  the 
insertion  of  this  word,  where  it  occurred,  the  testator, 
who  had  anxiously  provided  for  the  application  of  a 
real  estate,  expressly  devised  upon  the  trust,  cwld  be 
taken  to  mean  that  this  other  real  estate  of  which  be 
was  so  seised,    should  by  the  effect  of   the  word 
'  estate'  standing  as  it  did,  be  cloathed,  in  the  hands 
of  the  heir,  with  a  trust  of  the  very  same  nature  as 
the  estate  specifically  devised  to  the  trustees.    Tbat 
was  not  the  prcAable  intention  upon  the  will^  takea 
altogether  ;  and  upon  the  whole  he  thought,   and  so 
decreed,  that  the  estate  in  question  descended  upon 
the  heir  at  law,  for  his  own  benefit. 


SiBCT.  3.    As  to  Edale,  MefBdttaments,  ^c.  477 

Wh^^  the  testator  expkind  his  own  meaning  by 
tile  word  estatCy  by  shewing  of  what  he  understands 
it  to  consist,  there  can  be  no  room  fbr  doubt.  This 
was  the  plain  reason  of  the  decision  in  Timewell  v. 
Pericins^  by  Mr.  Justice  Portescue,  at  the  Rdb. 
The  clause  was  thus,  "  Item,  all  those  my  freehold 
buds  and  bop-grounds,  with  the  messuages,  &c.  now 
in  the  tenure  of  L.,  and  all  other  the  rest,  residue, 
and  remainder  of  my  estate,  consisting  in  ready 
mowey,  plate,  jewellery,  leases,  judgments,  mort- 
gages, Ac.  or  in  any  other  thing  whatsoever  and 
wheresoever,  I  give  to  A.  H.  and  her  assigns  for 
ever." 

But  where  the  word  real  is  added  to  the  word 
'estate,'  whatever  words  of  limited  expression  or  par- 
tial extent  tnay  precede,  or  surround,  or  follow,  it 
WOiiM  be  difficult,  indeed,  to  maintain,  that  any  thing 
less  than  both  land  and  inheritance  are  embraced  by 
it.  Thus  in  Ridout  v.  Pain  %  where  a  testator  gave 
aH  the  rest,  residue  and  remainder  of  his  goods  and 
chattels,  and  personal  estate,  together  with  his  reed 
estate^  Lord  Hardwicke  said  there  could  be  no  ques* 
tion  but  that  the  words,  '^  together  with  my  real 
estate,"  vrould  carry  the  land  and  inheritance,  thougli 
accompanied  with  the  other  words,  ''  goods  and 
chattel  &c." 

WtietJier  the  word '  estate,' '  property,*  and  others  of 
that  genetul  class,  precede  or  follow  the  enumeration 
of  particulars,  is  a  circumstance  which  seems-  to  af-* 
ford  no  solid  criterion  for  deciding  whether  they  are, 

»  2  Atk.  102-  *  3  Atk.  486.   . 


478  Import  of  Wordi  and  Phrases    CriiP.  IV. 

or  are  not^  to  be  construed  ejusdem  generis  witk  the 
particulars  specified.  Nor  can  ordinary  faculties  of 
discernment  see  any  better  ground  of  distinction  in 
the  number  of  the  articled  enumerated ;  or  uoder 
standi  why  the  articles  vthich  succeed^  the  word  pro- 
perty in  the  above-cited  case  of  Roe  v,  Yeud  *,  in 
the  Common  Pleas^  were  held  to  restrict  that  word 
to  personal  things^  while  in  the  casd  of  Doe  v.  Letng' 
lands  ^  the  word  property  was  construed  to  extend 
to  real  estate,  notwithstanding  it  was  followed  by 
words  of  like  limited  import.  Probably,  howefer, 
the  last-mentioned  ca^e,  which  has  treated  the  suc- 
ceeding words  as  accumulative  rather  than  explana^ 
tory,  will  be  adhered  to  in  future  as  the  safer  and 
•     more  masculine  decision^ 

.  Wbtre  the  word  estate  corties  after  several  words 
properly  descriptive  of.  personalty  only^  Lord  Hard- 
wicke  has  furnished,  a  test  more  intelligible  and  ap- 
plicable than  many  others  which  have  been  jrelied  on. 
He  says  that  where  the  preceding  words  fully  com- 
prehend all  the  personalty,  so  that  there  is  nothing 
to  satisfy  the  word  'estate,'  unless  it  be  heldte 
apply  to  the  real  property,  there,  notwithstanding 
the  company  in  which  it  is  foand,  it  will  pass  the  real 
prbpeity  of  the  testator.  The  case  in  which  this  dis* 
tinction  is  found  is  that  of  Tilly  v.  Siftipson*,  in 
Chancery,  Easter,  1746.  The  testator,  after  de- 
claring that  he  intended  to  dispose  of  all  his  worldly 
estate,  and  making  several  devises  to  different  per- 
sons, gave  and  bequeathed  '^  all  the  rest  and  residue 

*  2  N.  R.  214. 

*  14  East.  370. 

'  d  T.  It.  659   Note  to  Fletcher  v.  SmitoV. 


Sect^  3<    As  to  Estate,  HereditamentSj  ^e.  47Si 

of  his  moneys  goods^  chattels^  and  estate  whatsoever>'^ 
to  his  nephew  A.  B.^  and  the  question  was^  whether 
a  beneficial  interest  in  a  real  estate  not  before  dis^ 
posed  of^  would  pass  to  the  nephew  by  this  de- 
vise. 

Lord  Hardwicke  was  of  opinion  that  it  would.  Ht 
^d^  that  where  the  court  had  restrained  the  word  es tote 
to  carry  personal  estate  only^  it  had  appeared  that  it 
was  the  intention  of  the  testator  that  it  should  be  so 
understood  :  as  where  it  had  stood  coupled  with  par- 
ticular descriptions  of  part  of  the  personal  estate^  as 
a  bequest  of  ''  all  my  mortgages^  household  goodsy 
and  estate^''  in  which  the  preceding  words  were  not  a 
foil  description  of  the  personal  estate.  But  that  it  wa» 
otherwise  where  the  preceding  words  were  sufficient  to 
pass  the  whole  personal  estate.  If  the  testator  had 
saidy  ''  All  the  rest  and  residue  of  my  personal  estate 
and  estates  whatsoever/'  a  real  estate  w^ould  have 
passed.  His  Lordship  then  observed  that  the  bequest 
in  the  case  before '^him  amounted  to  the  san>e^  for  the 
word  chattels  was  a  full  description  of  the  personal 
estate ;  therefore^  since  the  testator  had  used  word» 
comprehending  all  his  personal  estate^  and  then  had 
used  the  word  estate,  that  word  would  carry  a  real  es-  . 
tate.  That  the  word  whatsoever  was  used,  wbiciv 
was  the  same  as  if  he  had  said^  of  whatsoever  kind 
it  may  be  (6) ;  and  if  that  had  been  the  case  it  would 
most  certainly  have  carried  the  real  estate.     The  case 

ifi}  In  the  late  case  of  Hicks  v.  Dring,  2  M.  aud  S.  Trin.  Term, 
1814)  the  Words  after  eff€€ti  were  of  uhai  nature  or  kind  9oever  / 


480  Import  of  Words  and  Phrases    Chap.  IV. 

of  Tirrell  v.  Page  '  was,  his  Lordship  said,  very  ma- 
terial to  the  question,  and  he  thought  the  cases  conM 
not  be  distinguished.  There  the  gift  was  of  "  aH  tiic 
rest  and  residue  of  my  money,  goods,  and  chattels, 
and  all  other  estates  whatsoever,  I  give  to  J.  L.'* 
The  only  difference  was  in  the  word  others  which  he 
did  not  think  could  distinguish  it.  If  it  had  been  'all 
the  rest  and  residue  of  my  household  goods  and  mort- 
gages, and  all  other  estate,'  he  did  not  think  that 
those  words  would  have  carried  the  real  estate. 

If  the  reasoning  of  Lord  Hardwicke  be  thought  a 
little  refined^  and  seems,  as  far  as  it  proceedt^  upon  the 
ground  of  executing  the  intention,  to  found  the  infer- 
ence of  intention  upon  a  distinction  of  words  rathtf 
too  technical  to  decide  the  meaning  of  unlearned  tes- 
tators, it  nevertheless  affords  a  principle  of  some  cer- 
tainty, and  which,  if  adhered  to,  may  at  least  con- 
duce to  judicial  consistency. 

The  word  effects,  we  have  already  seen,  by  its  general 
import,  carries  per  se  nothing  beyond  the  personalty, 
although  Kke  all  other  words  of  description  in  a  will, 
its  sense  may  be  enlarged  so  as  to  embrace  real  estate 
by  force  of  the  context.  But  though  the  words 
wheresoever  and  whatsoever,  ot,  of  what  nature  &r 

'  1  Ckttn.  Ca.  362. 


bat  these  words  iifere  not  coosidered  as  enlarging  the  sense  of  the 
term.  So  in  the  case,  already  cited,  of  Woolham  o.  Kenworthji  9 
Vez.  Jan.  137.  the  word  estate  was  preceded  by  the  word  oAery 
ahd  f onowed  by  the  words  of  what  nature  or  kbid  soever^  and  yet 
it  was  confined  to  things  ejasdem  generis. 


SfiiiT  3.    As  to  Melide,  Httedilamekti,  ^k.  4S1 

kind  sdeter,  fbllow  th«  word  ejfett^,  ihfej  af e  tiot 
sttfficfetit  without  other  aid  from  the  context  to  htltij^ 
rtel  e^tete  within  the  descriptive  fd)rce  of  the  term. 

Thas^  where  a  testatrix^  seised  in  fee  of  real  t&tAti; 
devised  '^  all  the  rest  residue  and  remainder  of  her 
etfects  whefesovef  ahd  whdti^oever,  and  of  what  tia< 
tare,  kind,  or  quality  soever/*  (except  her  wearittgf 
Aipparel  and  plate),  to  certain  nephews  and  nieces,  to 
be  equally  divided  between  them  by  her  executors,  it 
wds  held  that  the  residuary  clause  did  iiot  carry  the 
real  estate  ^. 

There  were  sererat  eircumistances  indeed  in  lb*  The  word* 

V  ^  of  whftt 

will  last-mentioned,  to  oppOM  the  eitehsion  of  tbe  nature  or 
word  effects  to  real  estate,  as,  the  exception  of  wear-  ev^Mo 
ing  apparel,  and  the  placing  the  subjects  of  the  de-  uu-getiie 

under  the  manuMment  of  the  exeeutors.    But  in  the  wol^ 


a  case  just  determined  in  the  Court  of  King*s  Bench,  ^^^^' 
aiid  not  yet  reported,  the  rule  seems  to  be  established 
that  a  simple  disposition  by  a  testator  of  all  and  sin- 
gisdar  his  ejjfects  of  what  nature  and  kind,  soever. 
Will  only  pass  the  personal  estate '. 

Nor  will  this  word,  although  followed  by  the 
Wtitdk  of  whdl  nature  or  kind  soever,  always  em* 
bntce  the  whole  personal  property  of  the  testa- 
tor ;  it  is  often  confined  to  such  particulars  only  as 
ai!^e  ejusdem  generis  with  certain  matters  and  thingd 
before  enumerated.  Tims,  where  a  testator  be- 
queathed to  his  wife  an  annuity  of  S002.  per  annum, 
being  part  of  the  monies  he  then  had  in  bank  secu- 
rity, Entirely  fbr  her  own  use  and  disposal,  together 

^  tainRAA  v.  Gilbert,  i  £ast,  516. 

v.Briiifc  d  M.  aiidS»  T^  R.  TrkK  TmA^  18i4. 

Si 


46S  Import  of  Words  and  Phrases    Chap.  IV. 

Wth  all  his  household  furniture  and  effects,  of  what 
nature  or  kind  soever,  the  word  was  confined  to  ar- 
ticles ejusdem  generis^  that  is^  to  household  furni- 
ture \ 

It  is  very  material^  however^  to  observe  that  in  the 
case  last-mentioned,  part  of  the  testator's  personal 
property  was  devised  to  the  wife  in  the  foregoing 
part  of  the  will ; — a  circumstance  tending  strongly  to 
shew  that  the  testator  meant  the  word  effects  to  re- 
ceive a  limited  interpretation.  And  this  circumstance 
was  sufficient  to  weigh  against  the  consideration  of 
the  intestacy  as  to  some  of  the  property  of  the  de- 
ceased which  was  the  consequence  of  the  construc- 
tion adopted. 

In  the  case  of  Camfield  v.  Gilbert,  a  little  above 
cited,  it  appeared  that  the  exception  of  wearing  ap- 
parel and  plate,  served  in  some  measure  to  mark 
and  circumscribe  the'  meaning  which  the  testator 
meant  to  give  to  the  word  effects  ;  for  by  the  exception, 
the  class  out  of  which  the  exception  was  made  was 
implicitly  characterized.  And  upon  the  same  princi- 
ple of  construction  the  sense  of  the  word  effects  was 
in  another  case  enlarged  by  force  of  the  exception. 
Thus  where  the  words  in  a  codicil  were  ''plate, 
linen,  household  goods,  and  other  effects,"  (money 
excepted).  Lord  Eldon  observed,  that  though  the 
doctrine  appeared  to  be  settled  in  the  Court  of 
Chancery,  that  the  words  other  effects  in  general 
meant  effects  ejusdem  generis,  yet  as  money  could 
not  be  represented  as  ejusdem  generis  .with  plate, 
linen,  and  household  goods,  the  express  exception  of 
man^  out  of  the  other  effects,  shewed  the  testatrix's 

!  RawliBgiv*  JeaniagB,  IS  Ves«  Ju.  39. 


Sect.  4.      When  the  whole  Estate  passes.  483 

r 

understanding  that  it  would  have  passed  by  those 
words,  and  that  express  words  were  required  to 
exclude  it.  She  thought,  that  the  words  of  the 
bequest  would  carry  things  not  ejusdem  generis. 
The  disposition  must,  therefore,  be  taken  to  com* 
prehend  all  that  she  has  not  excluded,  which  was 
money  only.  His  Lordship  accordingly  decided  that 
stock  in  the  funds  which  does  not  pass  under  the 
word  money,  was  included  in,  and  passed  under, 
the  words  of  the  bequest  ^ 


Section  IV. 

When  the  whole  Estate  passes. 

BY  the  law  of  England,  in  the  conveyance  of  real  Th«  word 
estates,  words  of  limitation  are  required  to  the  dona-  ce^^^ 
tion  or  grant,  for  the  creation  of  an  estate  of  inherit-  l^hSi^' 
ance.     Thus  Lord  Holt  in  the  Countess  of  Bridge-  ^^^^ 
water's  case  %  in  speaking  of  the  construction  of  the 
word  estate,  said,  that  ''  most  certainly  in  grants  it 
would  not  pass  a  fee,  because  the  law  appoints  that, 
let  the  intent  of  the  parties  be  ever  so  fully  expressed 
and  manifested  in  grants,  without  the  word  heirs  a  fee 
shall  not  pass.  (1)    If  a  feoffment,"  continued  that 

■  Hotham  v.  Sutton^  15  Vez.  Jun.  319.  *  6  Mod.  100. 


(1)  The  Reader  will  find  in  Co.  Litt.  9.  b.  many  instances  in  Inwfaatiii- 

which  a  fee  will  pass  by  deed  or  grant  without  the  word  heirs^  but  fj^^y* 

they  are  all  exceptions  which  prove  the  rale.    Thus,  if  a  father  en*  pus  in  a 

feoff  the  son  to  have  and  to  hold  to  him  and  his  heirs,  and  the  son  ^uhe 

enfeoff  the  father  as  fully  as  the  father  enfeoffed  him,  by  this  the  V^ 
UthBt  hath  a  fee-simple.    So  by  the  ancient  law  gifts  in  frank  mar- 
riagei  or  for  the  consideration  of  marriage,  carried  the  inheritance 

2i8 


484  Import  of  Words  and  Phrases    Chap.  1Y. 

great  judge^  *'  be  made  to  I.  S.  to  have  to  him  infee^ 
sifnple,  which  words  can  have  no  other  sense  than  to 
pass  an  inheritance^  an  estate  only  for  life  shall 
pass^  and  yet  ^fee-simple'  in  pleadings  is  that  which 
^  describes  the  inheritance^  as  seiskus  in  dondmeo  sm 
rtt  de  feodo.  It  stands  also  upon  the.  authority  of 
Littleton  ^  that  '^  if  a  man  would  purchase  lands  or  te- 
nements in  fee-simple  it  behoveth  him  to  have  these 
words  in  his  purchase^ '  to  have  and  to  hold  to  him  and 
his  heirs;'  for  these  words  '  his  heirs'  make  the  estate 
of  inheritance.  For  if  a  man  purchase  by  these  '  to 
have  and  to  hold  to  him  for  ever ;'  or  by  these  words 
'  to  have  and  to  hold  to  him  and  his  assigns  for  ever  ;* 
in  these  two  cases  be  has  but  an  estate  for  term  of 
life^  for  that  they  lack  these  words^ '  his  heirs'  which 
words  only  make  an  estate  of  inheritance  in  grants." 

^Sect  1. 


'wiihoat  the  word  heirs.  Corporations  aggr^te,  which  in  jiK%. 
ment  of  law  neTer  die,  take  the  fee  without  the  word  ntooeistrsm 
the  grant  to  them*  And  for  tlie  same  reason,  becauia  the  king  ne* 
.^er  dies  in  judgment  of  Uw,  a  grant  to  hfai  bj  deed  earoUed  passes 
the  fee  to  him  without  the  words  heirs  or  successors.  If  one  co- 
l^cener^  or  joint-tenant  releases  to  the  other,  or,  if  there  be  three, 
and  one  releases  to  one  of  the  others,  generally,  and  without  the 
word  heirsy  the  fee  passes*  A  fine  sur  cognisance  de  Aroit  ceae 
ceo,  &c.  by  which  it  is  implied,  that  there  was  a  precedent  9ft  ie 
fee,  wiU  carry  the  fee  without  words  of  limitation*  And  so,  by  t 
common  recorery  the  recoreror  recorers  the  fee-simple  without  the 
word  heirs.  By  those  releases  also  which  work  by  extinguishment  the 
whole  estate  may  pass  without  words  of  inheritance,  as  where  the 
Lord  releases  to  the  tenant  of  the  land  all  his  nght^  Ac.  Ae  srigo- 
ory,  rent,  &c.  are  extinguished  for  ever,  wittout  the  word  heirs. 
And  it  is  said  that  if  land  be  conreyed  by  bargafii  and  sate  enrolled 
for  a  consideration  in  money,  which  reaches  to  flit  whole  estal!^ 
the  fee-simple  passes,  for  the  conyeyance  works  by  contract  aadhf 
the  use  created*    See  Vincr.  Abr.  title  estate,  (K  f  }  and  (Ly 

1 


SfCT.  4.       When  the  whole  Estate  passes.  485 

Upon  the  same  authority  it  stands'*  that  before  tb^ 
statutes  32  and  34  H.  8.  where^  by  the  custom  of  an« 
cient  boroughs  and  cities^  lands  and  tenements  were 
devisable  by  testament^  the  great  rule  prevailed^  that 
the  will  should  be  performed  according  to  the  intent 
of  the  devisor ;  and  therefore^  if^  before  the  statute 
taking  away  the  necessity  of  attornment^  (S)  a  man 
seised  of  a  rent-service  or  rent-charge^  devised  such 
rent  or  service  to  another^  the  devisee  was  competent 
to  distrain  the  tenant  for  the  rent  or  service  in  arrear^ 
without  any  previous  attornment  from  such  tenant : 
for  if  the  effect  of  the  gift  were  to  depend  upon  the  at- 
tornment of  the  tenant^  perhaps  the  tenant  might  ne- 
ver attorn^  and  then  the  will  of  the  devisor  would 
never  be  performed.  ''  So/'  says  the  same  venerable 
writer^  '^  if  a  man  deviseth  such  tenements  to  another 
by  his  testament  habendum  sibi  imperpetuum^  and  the 
devisee  enter^  he  hath  a  fee-simple  causa  qua  supra/' 
It  was  the  maxim  of  the  common  law,  and  not^  as  has 
been  sometimes  said  ^  a  principle  arising  out  of  the 
wording  of  the  statute  of  wilK  th&t  ultima  voluntas 
testatoris  est  perimplenda  secundum  veram  intentio- 
nem  suam. 

But  it  is  equally  ,a  fundamental  rule  in  respect  to 
the  operation  of  wills  of  land  that  the  intention  must 
be  disclosed  either  by  expression  or  clear  implication^ 
to  carry  th^  inheritance ;  and  this  arises  from  the  pe- 
culiar character  of  a  wHl  according  to  the  law  of  Eng* 

» 

*  Ub.  3.  c.  10.  Sect.  585,  586.  of  AttonuDcnt.        "  See  ante. 


(3)  The  necessity  of  attornment  was  taken  away  by  statute  4  and 
5  Ann.  c,  16.  and  the  efficacy  by  statute  1 1  Geo.  %  c.  .1 9r 


485  Import  of  Words  and  Phrases     Chaf.  IV. 

land,  which  considers  it  as  an  appointment  to  uses  in 
the  nature  of  a  conveyance^  and  capable^  as  such^  of 
operating  only  upon  the  real  property  which  the  tes* 
(ator  has  at  the  time.  In  analogy^  therefore,  to  the 
case  of  a  conveyance^  the  devisor  must  mark  his  in- 
tention by  expression^  or  some  positive  ground  of  in- 
ference, in  the  instrument  itself,  that  is,  either  by  a 
form  of  limitation,  or  by  words  amounting  to  a  vir- 
Cual  declaration  of  his  will. 

What  shall  amount  to  such  virtual  declaration  of  a 
testator's  will  is  not  established  on  any  system  of 
rules;  for  no  rule  can  anticipate  the  infinite  va- 
riety of  supposable  cases.  The  rule  which  may, 
under  circumstances,  supersede  every  other  is  this, 
that  the  construction  of  every  will  is  to  be  made  with 
reference  to  the  whole,  and  to  be  grounded  upon  a 
consideration  of  the  reciprocal  bearings  of  all  the  com- 
ponent parts.  A  doctrine,  which  necessarily,  to  a 
certain  degree,  renders'  every  case  upon  wills  an  in- 
dividual case,  and  not  to  be  used  as  a  precedent  but 
with  great  caution. 

Where  decisions,  however,  have  turned  upon  the 
signification  of  certain  words,  or  phrases,  as  express- 
ing by  circumlocution  the  settled  operation  of  certain 
technical  limitations,  they  may  be  said  to  have  re- 
duced even  this  luxuriant  branch  of  the  law  to  the 
consistency  and  certainty  of  rule  and  sy&;tem.  Such 
constructions,  too,  as  rest  upon  those  primary  rules 
which  are  borrowed  from  the  consideration  of  the 
great  end  and  purpose  of  all  testamentary  acts,  as, 
that  toords  are  to  he  construed  so  as  to  effectuate  dis- 
positions and  to  avoid  intestacy  ;  and  that  every  tts* 
tator  is  to  be  regarded  as  intending  to  benefit  rather 


Sect.  4.     When  the  whole  Estate  passes.  4&t 

than  a  burthen  by  his  gifts,  afford  a  standard  of  inter- 
pretation in  a  vast  variety  of  cases. 

In  the  commentary  upon  the  first  section  of  his 
author^  Lord  Coke  has  stated  by  way  of  example  se- 
veral cases  to  shew  where  estates  of  inheritance  may 
pass  in  wills,  without  words  of  formal  and  regular  li- 
mitation. As  if  a  man  devise  lands  to  another  in  per- 
petuity, or  to  give,  or  to  sell^  or  in  fee-simple,  or  to 
him  and  his  assigns  for  ever.  (3)  All  which  may  be 
considered  as  examples  of  the  circumlocution^  above 
alluded  to ;  and  the  case  he  puts  of  the  devise  of  20 
acres  to  another,  and  that  he  shall  pay  to  his  executors 
for  the  same  ten  pounds,  whereby  the  devisee  takes  the 
fee,  upon  the  ground  that  the  devise  might  otherwise 
be  a  detriment  rather  than  a  benefit,  by  his  dying  before 
any  profit  could  be  derived  from  it^  is  an  example  of 
the  rule  that  every  testator  is  to  be  considered  as  in- 
tending a  benefit  to  the  object  of  the  gift. 

A  devise  to  a  man  and  his  successors*  will  ^ve  the  ^^«^ 

^  word!  in  a 

fee,  and  so  will  a  devise  to  a  man  and  to  his  blood,  for  ^^i  «re 

equivalent 

the  blood  runs  through  the  collateral  line,  as  well  as  to  a  umita. 

"  tion  to  the 

hein. 

'  RoU.  Rep.  399. 


(3)  The  dictum  in  Perkins,  sect.  557.  that  If  lands,  be  devised  to 
J.  S.,  to  hold  to  him  and  his  assign s,  he  will  take  by  these  words  a 
fee  is  clearly  not  law,  and  is  contrary  to  Lord  Coke,  who  says  in 
the  passage  to  which  we  have  been  referring,  that  if  a  devise  be  to 
a  man  and  his  assigns,  without  sayingybr  ever^  the  devisee  hath  bat 
an  estate  for  life,  Co.  Lilt.  9.  b.  And  if  the  devise  be  to  several, 
equally  to  be  divided  between  them  and  their  assigns^  it  carries 
only  an  estate  in  common  for  life* 


(t^  Import  ^  Words  aHd  Phrases    Chap.  1Y. 

the  lineal^,  but  m  deriAe  tp  one  et  semini  suo^  or^  it 
seems,  to  his  posterityj  ^vould  create  an  estate  tail^. 
Nor  is  any  particular  form  of  expression  necessary  to 
tlie  effect  of  the  devise ;  for  if  a  testator  releases,  by 
his  will,  to  I.  S.  and  his  heirs,  I.  S.  wiN  take  the  fee'. 

Whether  4nd  whtth^iP  the  phrase  nsed  by  the  testator  im- 
taTpoltMUi  9^^  the  whole  interest  residing  in  himself,  or  the  en- 
tostator  ^^  dominion  and  enjoyment  of  the  thing  by  the  de- 
«Sthe*^Sl  vissee^  the  wme  effect  is  proceed.  Thwa,  U  is  the  same 
tiredomi-   4jiinir  whether  ^  teatator  gives  '  all  his  eatate/  '  all  he 

nion  over  *»  o  •  ^ 

the  thing  |g  worth  ^'  '  wbatevCT  be  has  ia  the  world'/  '  alt  bis 
jewmein  inheritance'*/  '  all  bis  right,  title  and  interest*/  'aM 
his  pftrt^  ahare  and  interest*.'  Or^  devises  hia  lands  la 
}.  S.  '^  to  give  aeU  or  do  therewith  ^t  his  wil)  jiad 
fksmnxe^/'  or  '  fox  his  own  nse  and  to  give  avray  al 
his  death  to  whim  he  pleaaes  ^'  or  '  to  dispose  thereof 
%t  his  free  will  and  pkaaare  /  (4)  in  all  of 


' Co.  Lttt.  a.  b.    •        'Ibid. 

^  Attjr.  Cren.  v.  Bamfield  2  Fr^e^.  268.  Tin.  ti^.  DeT.(L%.) 

^  And.  33.  and  see  1  Lord  Raym.  187. 

^  Huxtep  r.  Brooman,  1  Bro.  C.  R.  437.    But  ally  of  itself, 
d»QB  not  imply  all  the  testator's  interest,  see  Bowman  r.  Biil 
1  Eq.  Ca.  Abr.  308. 

'  Hopewell  o.  Ackland,  GoBb  164. 

*  Widlake  v.  Harding,  Hob.  2. 
"  Gole  9.  RawUnson,  3  Bro.  P.  C.  7. 

*  Andrew. V.  Southhouse,  5  T.  R.  292. 
»  Bro.  Tit.  Dot.  pi.  30.  Co.  Litt.  9.  b. 
«  TimeweU  v.  Perkins,  2  Atk.  103. 


Difference  (4)  Goodtitle  o.  Otway,  2  Willi*  0*  said  see  If askeljne  v.  Has- 
the  phnse  ^^^7^9  Ambl.  75.  Bnt  there  is  a  clear  distinction  betwe«i  the  ex- 
1  »^o^  prasion  in  the  tegct  wl^ich  imfilies  a  perfect  donlBion  of  the  e8l»fte, 
and  ^to  bt  snd  the  phrase,  <  to  be  freely  pos^ess^  and  ei^ioyfd'  w>hich  to 
posc!?^.^  the  case  of  Goodright  d.  Drewry  v.  Barron^  11  East,  220.  was 


Sect.  4.       When  the  v^U  Estate  paesee'.  46§ 

cases  tbe'  fisa^Biinple  would  uiidoubteAy  peas  to  the 
devisee.  (5) 


bald  to  carry  ts  Ae  dafisee  anChing  bejiAod  an  jt state  for  lUh. 

to  maa^  *  /twljr  di^Jij^i;  Uft,'  or  ^  frw  frw*  iJ^  ^^'fi^s?'  W  <*  fr>i? 
^om  iinpeachp^nt  of  waste.'  The  to^tator  iivight  nv^an  jopor^  but 
the  court  ought  not  to  give  to  them  a  more  extended  meaning  thim 
was  necessary  against  the  heir.  In  the  abore  case  it  was  observed 
by  Mr.  J.  Le  Blanc  that  if  the  lands  had  been  given  to  the  devisee 
^  leeely  to  he  disposed  of,'  the  intent  vautd  hste  hMn  sh«Mi  to  p^ n 
t^  fe^.  The  .c««e  was  djKtulg^ishaUe  Uwk  JLqtcsa^iki^  p,  BU0Lt« 
Cowp.  3$^«  where  siinilar  word^  were  held  to  pass  the  fee ;  for  in 
that  case,  there  |>eing  a  charge  on  the  devisees  which  might  last 
longer  than  their  lives,  there  was  a  ground  for  understanding  the 
words  of  the  devise  in  the  largest  sense  they  would  bear,  othevwlse 
the  benefit  intended  by  the  testator  might  be  unavailable. 

Thougli  it  majr  be  looked  upon  m  seMed  ^t  t^o  ^Jij5^  c^a^  es- 
t^,  g^^ly,  to  V^  ^^  tibe  d$S{^^l  9t  th^  device,  ^v^s  the  fee- 
pi^]^\ey  yet  where  the  estate  is  e^i^ressly  limited  to  the  devisee /or 
lifCy  With  a  power  of  disposition,  the  devisee  takes  no  more  than  a 
life-estate  with  a  power  annexed.  If  the  party  dies  without  having 
executed  the  power,  the  interest  c^sea  wHh  the  lif^  and  no  one  can 
take  by  transmission  Arougk  ike  demisee,  3  l^9n  71.  4  Leofi 
41.Tomlinsono.  Dighton,  I  P.  Wm^  149.  Ileid  v.  Shergold,  37Q. 
i^id  see  Bradley  v»  Westcott,  13  Vez.  Jun.  445.  And  such  a  power 
must  be  exercised  in  conformity  with  the  inteotion  expressed  in  the 
terms  of  its  creation.  Thus  in  Doe  d.  Thorley  v.  Thorley,  10  East 
438.  where  a  man  devised  all  his  freehold  estate  to  his  wife  during 
her  naiural  lifs^  i^nd  also  at  her  disposal  t^erwards  to  ieeoe  it  to 
mhom  shepleasedy  the  court  a^uclgod  thut  the  word  leave  confined 
tl^e  authority  of  the  devisee  for  life  to  a  dispp^tiou  by  her  will 
only.  lu  Toiulinson  r.  pighton  the  power  of  disposal  annexed  to 
the  life  estate  was  unrestrained. 

(5)  Where  the  property  is  personal,  the  words  ^  all  I  am  possessed 
of  and  such  like  expressioos,  where  they  stand  uncontrouled  by  this 
context  will  have  the  effect  of  paasiog  all  the  personal  estate  which 
the  testator  has  at  his  death,  and  not  only  what  he  possesses  at  the 
date  of  the  will.  6  Vez.  Jun.  816. 


490  Import  of  Words  and  Phrases    Chap.  17. 

A  direc-        In  the  construction  of  wilb^  words  must  receive  a 

c^iud*  natural  interpretation^  and  be  understood  in  their  re- 

impu^  the  ccived  scnsc.    Thus  in  the  case  of  Green  v.  Armstead', 

ofthe^  where  A.  devised  his  house  and  land  in  C.^  to  his  son 
•impie.      g^  £^j.  jjjg  ijjjg^  ^^^  ^j^^^  j^  remain  to  D.  the  son  of 

B.^  except  B.  purchased  another  house  with  so  much 
land^  and  of  the  same  value^  as  the  said  house  and  land 
in  C.  for  the  said  D.  his  son^  and  then  B.  might  sell 
the  house  and  lands  in  C.  as  his  own^  it  was  held  that 
D.  took  a  fee  in  the  house^  and  lands  in  C.^  as  B.  did 
not  make  any  purchase  of  any  other  lands ;  for  the 
word  purchase  imported^  in  common  speech^  an  ab- 
solute purchase  in  fee.  And  therefore,  if  a  man  di- 
rects his  executors  to  purchase  land  for  his  son,  no 
doubt  says  the  case,  it  will  import  a  fee-simple. 

Appoint-  And  though,  as  has  been  above  remarked,  a  vrill, 
oeRon  to*  according  to  the  law  of  England,  is  a  species  of  con- 
jStdT the*  veyance,  differing  in  that  respect  from  the  Roman 
fee-simple,  ^^jjj^  ^hich  is  rather  the  appointment  of  an  heir ;  and 

though,  in  propriety  of  speech,  no  one  can  be  truly 
the  heir  by  our  law,  but  he  whom  the  law  makes  so ; 
yet,  says  the  same  great  author  from  whom  the  point 
last-mentioned  was  taken,  ''  There  is  an  heir  by  ap- 
pellation and  vulgar  acceptance,  which  imitates  the 
state  of  a  true  heir.  And,  therefore,  if  by  my  will  I 
appoint  that  1.  S.  shall  be  the  heir  of  my  land,  he  shaO 
have  it  in  fee,  for  such  estate  as  the  ancestor  hath, 
such  estate  he  is  to  inherit.*"  So  in  a  subsequent 
case  where  the  words  of  the  will  were,  '^  I  make  my 
cousin,  G.  B.,  my  sole  heir  and  executor ;"  it  was 
held  not  only  that  the  lands  passed  without  being 
mentioned,  but  a  fee-simple  in  the  lands  ^ 

'  Hob.  65. 

•  Spark  V.  Puraell,  Hob.  75. ;  and  see  the  lecord  in  Wyncha'« 
Entrees,  407.  *  Style  507,  383. 


ScGT.  4.      When  the  whole  Estate  passes.  491 

We  have  seen  above^  that  one  of  the  cages  put  by  if  laod  u 
Lord  Coke^  in  commenting  on  the  first  section  of  Lit-  generally^ 
tleton^  wherein  an  estate  in  fee  might  be  passed  by  a  vweeofth^ 
will  without  the  word  heirs,  was  that  of  a  devise  to  B.  chLg*^, 
paying  a  sum  of  money  to  his  executors.    Accord-  tSem!;^^ 
ingly  it  has  long  been  settled^  that  where  land  is  given  pa^^ntof 
by  a  will^  with  a  direction  that  the  devisee  shall  pay  a  Qon^ythe 
gross  sum  out  of  it,  the  devisee  thereby  takes  the  fee-  *^**  ^^^ 
simple;  and  this,  although  the  sum  so  directed  to  be 
paid  be  below  the  value  of  the  land  for  one  year ;  for,  as 
has  been  before  observed,  one  of  the  primary  rules  in 
the  construction  of  wills,  is  this — that  every  devise  shall 
be  intended  to  carry  with  it  a  benefit ;  and  if  the  de- 
visee in  the  case  supposed,  took  only  an  estate  for  life, 
he  might  die  before  he  could  be  compensated  out  of 
the  land,  and  so  tlie  devise,  instead  of  a  benefit,  might 
bring  a  loss  to  him. 

Thus  in  Collier's  case",  where  a  testator  gave  lands 
to  his  brother,  paying  to  one  person  twenty  shillings, 
and  to  others  small  sums,  amounting  to  forty-five 
shillings  all  together,  the  land  being  of  the  value  of 
3/.  per  annum,  it  was  adjudged  that  the  brother  took 
an  estate  in  fee"'.  So,  if  I  devise  my  land  to  I.  S.,  in 
consideration  that  he  will  release  100/.,  which  I  owe 
him,  to  my  executors,  the  devisee,  upon  releasing  the 
debt,  has  the  fee-simple  for  the  same  reason'. 

For  the  same  reason,  also,   if  I  devise  my  lands  So  if  such 
charged  with  the  payment  of  my  debts  and  legacies,  charged 
the  fee  will  pass  to  the  devisee.   Thus,  where  A.  seised  paymlmof 
of  lands  in  fee,  made  his  will,  and  gave  his  cousin  B.  tt^i^^ 
20/.,  to  be  paid  out  of  his  lands  within  one  year ;  and 
after  other  legacies,  he  gave  all  his  lands  to  R.  gene- 

*  6  Rep,  16.  3  Rep.  ^1.  a.  I  Roll.  Abr.  834.      *  Bendl.  15. 


493  Import  of  Words  and  Phrases    Chap.  IV. 

nHy ;  it  was  adjudged  that  R.  took  an  estate  in  fee- 
simple'.     And  where  a  testator  devised  by  the  foiiow- 
ing  words,  *'  All  the  rest^  reaidue^  and  remainder  of 
my    messuages,    lands,     tenements,    hereditaments, 
goods,  chattek,  and  pei'sonal  estate  whatsoever,  my 
legacies  and  funeral  expences  being  thereout  paid^  I 
give,  devise,  and  bequeath  unto  my  sister  J.  D. ;  and 
constitute  and  appoint  her  my  executrix  and  residuary 
legatee  of  this  my  wiH,"  Lord  Kenyon  said,  that  the 
first  words  alone  were  not  sufficient  in  law  to  carry 
the  fee ;  but  that  he  relied  on  the  words  immediately 
following,—*^  My  legacies  and  funeral  expeneea  being 
thereout  paid,''  as  sufficient  for  that  purpole;  fw  the 
fund  which  was  to  answer  these  purposes  ought  to  be 
as  ample  as  possible.     These  charges  extended  to,  and 
were  to  be  taken  out  of,  the  property  which  was  be- 
fore given  to  the  residuary  legatee ;  and  if  that  devise 
did  not  comprise  the  whole  of  the  devisor's  estate, 
the  interest  as  well  as  the  land,  the  legacies  and  fune- 
ral expences  might  not  be  paid'. 

In  a  subsequent  case  decided  by  the  same  learned 
Chief  Justice,  the  doctrine  was  more  distinctly  ex- 
pounded. The  devise  was  in  the  following  words : 
"  I  give  and  bequeath  my  freehold  house,  with  the 
appurtenances,  &c.  and  all  the  furniture  thereto  be- 
longing, to  E.  Gibson,  whom  I  make  executrix  of  this 
my  last  will,  she  paying  all  my  just  debts,  and  funeral 
expences  and  legacies  before-mentioned,  in  twelve 
months  after  my  death.  I  also  leave  to  the  said  E. 
Gibson,  all  the  rest  and  residue  of  my  personal  es- 
tate." The  Judge  before  whom  the  cause  was  tried, 
being  of  opinion  that  the  devisee  took  a  fee  by  reason 

'  Freak  v.  Lee,  3  Show,  38. 

*  Doe  d.  Pakner  and  others  v.  Richards,  ^T.  R.  556. 


S^T.  4.        When  the  whole  Estate  paaaei*  493 

of  the  word^^  ''  The  paying  all  my  debte>  &c/'  non- 
sotted  the  plaintiff.  And  on  a  motion  to  det  aside  the 
nonsuit^  Lord  Kenyon  thought  the  direction  perfectly 
right ;  observing,  that  in  caaea  of  this  kind^  the  ques- 
tion has  always  been,  whether  the  charge  is  to  be 
paid  only  out  of  the  rents  and  profits  of  the  estate^  or 
whether  Jt  is  to  be  paid  by  the  devisee  'at  all  events ; 
in  the  former  case  the  devisee  only  takes  an  estate  for 
life,  bnt  in  the  latter  he  takes  the  fee  ;  otherwise  he 
might  be  a  loser  by  the  devise.  The  devisee,  in  the 
case  nnder  consideration,  was  bound  to  pay  the  debta 
and  legacies  at  all  events,  and  the  charge  was  thrown 
on  her  in  respect  of  the  real  estate '. 

Where  fends  are  devised  with  a  direction  that  the  So  mko 
devisee  shall  make  a  perpetual  yearly  payment  there-  devisee  is 
out,  if  the  devisee  were  not  to  take  an  estate  commen-  with^aper. 


the  chw^e^  he  could  not  fulfil  the  testator'g  ^ai  p 
intention.  Accordingly  vdiere  one  devised  landa  to  C.  °'^°^' 
bis  younger  son,  and  directed  that  C.  should  pay  annu- 
ally to  the  elder  son  B.  and  hin  heirs,  three  pounds ;  it 
was  resolved  that  this  was  an  estate  in  fee^.  So  iti 
another  case,  where  lands  were  devised  to  J.  and  S., 
who  were  to  pay  yearly  to  the  Merchant  Taylors* 
Company  in  London,  six  pounds  ten  shillings,  it  was 
resolved  that  the  devisees  took  a  fee-simple,  by  reason 
of  the  annual  payment,  without  any  regard  to  the 
greatness  or  smaUness  of  the  sum ;  for  as  the  charge 

*  Dbe  d.  Waiej  v.  Holdits,  8  T.  R.  1.  See  a1s<^  Goodtkle  d. 
Fiddj  o.  Medden^  4  £ait,  495.  The;  distinctioa  has  turned  in 
all  the  cues  on  this — ^whether  the  debts,  &c.  were  merely  a  charge 
on  the  estate  derised^  or  a  charge  on  the  deyisee  himself,  in  respect 
of  saoh  «i(ate  in  his  hands,  per  Lord  Ellenborough. 

*  ShallAid  V.  Baker,  Cro.  El.  744. 


494  Ifnport  of  Words  and  Phrases    Chap.  IV, 

continued  for  ever^  the  estate  roust  continue  so  too, 
as  without  the  estate^  the  charge  could  not  continue*. 

Or  with         And  although  the  annual  payment  to  which  the 

the  pi^y* 

mentofao  land  IS  Subjected,  is  to  continue  only  for  the  life  of 

annuity  for 

the  iif«  of  another,  the  devisee  of  the  land  must  have  the  fee ; 

another. 

for  otherwise  the  annuity  might  fail  before  the  death 
of  the  person  for  whom  it  was  intended.  Thus^  where 
a  testator,  after  giving  several  legacies^  gave  to  Mary 
Ramsey  the  sum  of  twenty  shillings  a  year^  for  and 
during  her  natural  life,  to  be  paid  by  his  execu- 
tors ;  and  gave  his  two  yard-lands,  with  his  house  and 
homestead^  and  all  the  residue  and  remainder  of  his 
goods,  chattels,  and  personal  estate,  to  Thomas  Al- 
len, he  paying  his  debts,  legacies,  and  funeral  ex- 
pences,  and  made  Allen  his  executor^  the  devise  to 
Thomas  Allen  was  adjudged  to  be  of  an  estate  in  fee 
in  the  lands,  because  the  annuity  was  given  to  Mary 
Hamsey,  for  her  life,  to  be  paid  by  the  executor, 
which  must  have  an  estate  to  support  it ;  and,  as  the 
devises  to  Allen  followed  each  other  immediately, 
they  must  be  construed  as  one  clause,  so  that  the 
payment  of  debts  and  legacies  was  charged  on  the 
real  as  well  as  the  personal  estate'. 

« 

And  in  another  case,  where  a  testator  gave  his  two 
copyhold  tenements  to  Sarah  Boreham,  she  paying 
thereout  forty  shillings  a  year  to  her  sister  Elizabeth 
Boreham,  though  the  gift  of  the  annuity  to  E.  B.  was  not 
expressed  to  be  for  her  life,  yet,  there  being  reasons 
enough  afforded  by  the  other  parts  of  the  will  for 
construing  it  to  be,  so  intended,  it  was  held  that  the 

*  Webb  V.  Hearing,  Cro.  Jac.  415.,  and  Smith  v.  Tendall,  11 
Mod.  90.    3Salk.685. 
f  Goodright  v.  Allen,  2  Blackst.  1041. 

f 


Sect.  4.       When  the  whole  Estate  passes.  495 

annuity  to  Elizabeth,  made  it  a  devise  in  fee  to 
Sarah*. 

Upon  a  principle  similar  to  that  which  is  the  true  ByadeWse 
solution  of  the  class  of  cases  just  above  considered,  it  lor*^r*^ 
is  held,  that  if  lands  are  devised  to  trustees,  for  pur-  whiSiie. 
poses  which  require  them  to  have  the  fee-simple  in  ?"J'tiit'L 
them  to  perform,  the  estate  in  fee  will  pass  without  SSSSLt 
any  words  of  limitation ;  for,  as  Lord  Hardwicke  has  SSStou 
observed,  it  has  often  been  determined  that,  in  a  de- 
vise to  trustees,  it  was  not  necessary  that  the  word 
heirs  should  be  inserted,  to  carry  the  fee  at  law ;  for 
if  the  purposes  of  the  trust  could  not  be  satisfied  with- 
out having  a  fee,  courts  of  law  would  so  construe  it^ 

Of  chattels  real  a  general  devise,  without  any  words 
of  limitation  or  declaring  any  estate,  passes  the  whole 
interest  of  the  devisor  '.  If  such  property  be  devised 
to  another  for  his  life,  and  no  intention  appear  to  dis- 
pose of  the  whole  interest,  a  possibility  of  reverter  is 
left  in  the  executors  of  the  testator,  to  take  effect  upon 
the  death  of  the  devisee  within  the  term.  But  a  de- 
vise in  a  form  of  limitation  which  would  pass  the  in- 
heritance in  tail,  if  it  were  a  freehold  estate,  will  carry 
theabsohite  interest  in  a  termor  chattel  interest  \ 
For  the  remainder  of  a  term  cannot  be  made  to  depend 
upon  a  possibility  so  remote  as  the  failure  of  issue, 

•  Baddeley  v.  Leppingwell,  2  Burr.  1531.  Wilmot,  223.  and 
Goodright  d.  Baker  t;. blocker,  5T.  R.  13. ;  game  point  determined 
accordingly,  and  see  Andrew  v.  Southouse,  5  T.  R.  292. 

'  Gibson  v.  Montfort,  i  Vcz.  485.  Shaw  v.  Wright,  1  Eq.  C. 
Abr.  176.,  and  see  Dates  v.  Cooke,  3  Burr.  1684.  Chapman  v. 
Alissett,  Ca.  temp.  Talbot,  145. 

•  Fenton  vi  Foster  d.  Dyer,  307.  a.  RoU.  Abr.  831. 

•  Sede  V.  Stale,  1  P,  Wms.  290.  fiatterfield  v.  Bntterfield, 
1  Vei.  ISS.  154.  - 


496  Imi^rt  of  Wmrdi  dnd  Fhra^s    ChAf.  IY. 

and  therefore  the  intercfst  muit  i\op  Wittf  thte  fint 

taker. 

« 

Ai  w  the        Witli(  rcJlspMt  to  the  force  dnd  <>p€)ration  of  the 
oDeraiioii    preanibte  and  intrdduetc^ry  woi'ds  in  it  wiH^  after  soine 
Lnbk,  oT  fluctuation  it  is  at  length  clearly  settled^  thai  altUoiigfc 
^^SS^mh  ^^y  m^e  profbision  of  dtspOsiag  of  aH  the  testa^ 
tu  a  will,    j^y,^  property,  in  the  fuHest  mabner,  they  will  rM 
operate  to  carry  the  words  of  the  deriiiflg  dame  be- 
yond their  legd  sense  arid  signification^    If  the  testa- 
*       ior  coniRienCes  his  will  with  saying,  ^'as  touching  the 
disposition  of  all  my  tenporil  estate/'  (6)  this  wiO 
nbt  of  iffcelf  cailse  a  devise  of  a  hotee  to  A.  witfaotit 
ahy  words  of  liihitatibn,  to  be  construed  an  estate  in 
fee-simple  ^     But  if  the  words  used  in  the  devising 
part  of  the  will>  thoiigh  not  proper  and  techtiital^ 
aire  yet  dmfficient  to  carry  the  interest  contended  Ibt* ; 
as,  where  a  testator,  after  saying  '^as  to  all  my  worldly 
substance/'  by  the  residuary  clause  of  hig  will  de- 
vised to  hid  mother  aU  the  remainder  and  teiidae  of 
mU  fm  eHate  and  effects  both  real  atidpersatwij  the 
ntfOther  Was  hdd  to  take  the  fee  ^.  But  in  a  subsequent 
case,  where  a  testator  devised  thus>  ''  as  to  all  sach 

'  Frogmorton  and  Wright  v*  Wright,  3  BhOsat.  089. 
'  Hegan  r.  Jackson,  Cowp.200. 


ft      mtt 


(S)  In  the  case  of  Tanner  v.  Morse,  Ca.  temp.  Taibot,  984.  it 
was  contended  that  these  words  ttn^ral  estate  in  the  inCrodoctory 
chiuse,  in  a  strict  sense,  related  only  to  estates  of  a  certain  difa* 
tion,  and  that  were  to  continue  for  a  time  only  ;  bat  the  Qomcellor 
treated  this  as  a  Tory  fallacious  construction^  the  word  teDpoiti 
being  the  same  as  worldly,  and  used  in  opposi(iDn  to-  ths  word 
eternal.  There  could  not  be  a  belter  speoimei  ef  Iktt  vain 
disputations  which  sometimes  find  their  way  into  .^^nrti  xi  jallioe* 


S^fcT.  4.       When  the  whole  Estate  poHfiS,  497 

tBorldfy  estate  as  God  has  endued  me  with^  I  give 
and  bequeath  as  follows  : — I  give  and  devise  all 
that  my  freehold  messuage  and  tenement  lying 
in  6.  together  with  all  houses,  &c.  and  appurte* 
nances  whatsoever,  belonging  to  the  same^  to  M*.R-> 
G.  R.,  and  T.  R.,  my  sister's  sons,  equally/*  and 
then,  amongst  other  pecuniary  legacies,  gave  the 
sum  of  ten  shillings  to  bis  heir  at  law ;  Liord  Mans- 
field, after  saying  that  he  suspected  extremely  that 
the  testator  meant  to  give  his  nephews  a  fee  in  the 
premises,  for  he  had  no  other  landed  property,  and  had 
given  a  disinheriting  legacy  to  his  heir  at  law^  agree- 
ably to  the  vulgar  notion  taken  from  the  Roman  law^ 
'  that  the  heir  is  to  be  cut  off  with  a  shilling  (7),  yet 
declared  it  to  be  impossible  to  find  words  in  the  will 
before  him  sufficient  to  controul  the  rule  of  Iaw\ 
Whatever  the  testator  might  intend,  the  misfortune 
was  that  quod  voluit  non  dixit.  The  testator  had  not 
said  that  he  meant  to  dispose  of  all  his  worldly  estate^ 
and  there  were  no  words  that  would  connect  the  de- 
vise of  the  lands  in  question  with  the  introduction  so 
as  to  pass  the  whole  interest :  therefore  the  devisees 
would  only  take  a  life  estate'.  In  the  subsequent 
case  of  Right  v.  Sidebotham  "*,  the  same  Chief  Jus- 
tice declared  himself  bound  by  the  decision  of  the 
case  last-mentioned,  and  accordingly,  with  the  con- 
currence of  the  other  Judges^  decided  in  the  same 
way. 


'  Denn  d.  Guskin  v.  Gaskin,  Cowp.  657* 
■  Dpugl.759. 


(7)  Vid.  Vfn.  c.  ^.  tit.  18.  de  inofficioso  testamento. 


498  Import  of  Words  and  Phrases    Chaf.  IY. 

In  Ibbetson-  v.  Beckwith%  where  consLderable 
stress  was  hud  by  Lord  Talbot  on  the  introductory 
words^  we  are  to  observe  that  the  testator  devbed  b) 
the  word  estate,  the  force  of  which  word  we  have  al* 
ready  discussed^  and  the  introductory  ckuse  contained 
words  which  Lord  Mansfield  treated  in  the  case  of 
Denn  v.  Gaskin  as  very  material ;  for  there  the  testator 
expressed  his  intention  to  dispose  of  his  worldly  estate. 
But  in  the  case  of  Frogmorton  v.  Wright,  already 
cited  %  where  the  writ  begun  wiUi  the  words  '^ai 
touching  the  disposkion  of  all  my  temporal  e^ate^" 
no  attention  was  paid  to  this  distinction^  nor  has  it 
been  treated  since  with  any  regard. 

.  And  although  the  word  estate  may  be  used  by  a 
testator  in  the  devising  clause  of  his  wiU^  yet  if  there 
is  ground  for  inferring  from  the  whole  of  the  con- 
tents that  the  real  estate  was  not  intended  to  be  devis- 
ed^ the  general  introductory  words^  though  embracing 
in  the  fullest  manner  the  property,  both  real  and  per* 
sonal^  will  not  overrule  the  inferences  deducihle  fnm 
the  whole  tenor  of  the  instrument.  As,  when  a  tes- 
tator begun  his  will  thus,  '^  as  to  all  my  estate  and 
effects  both  real  and  personal/'  and  then  proceeded, 
by  a  residuary  clause,  to  give  all  the  rest  of  his  estate 
and  effects  of  what  nature  soever,  to  A.  and  B.,  their 
executors  asid,  admnmlrators,  in  trust  to  add  tbeMle- 
rest  to  the  principal,  and  so  to  accumulate  the  same, 
it  being  his  will  that  the  residue  should  not  pass  but 
at  the  time  and  manner  as  the  principal  sum  of  400(tf. 
(before  given  to  A.  and  B.)  was  directed  to  be  paid, 
it  was  held  that  a  house,  the  only  freehold  of  which 
ihe  testator  was  seised,  did  not  pass  by  the  vrill ;  and 


■"  Cft^  Tsmp.  Talb.  1 57.  ^  S  Bltckst.  889.- 


Sect.  4r.       When  the  whole  Estate  passes.  499 

Lord  Kenyon  observed  that  the  testator  set  out  in  the 
beginning  of  his  vfiW  as  if  he  meant  to  dispose  of  all 
his  property  ;  but  though  these  general  words  would 
have  shewn  his  intention  if  there  had  been  subse 
quent  words  in  the  will  to  carry  that  intention  into  ex- 
ecution as  had  been  said  by  Lord  Talbot  in  Ibbetson  v. 
Beckwith^  it  had  been  held  in  a  variety  of  cases  that 
alone  they  are  not  sufficient  to  dispose  of  a  fee ;  and 
by  adverting  to  the  residuary  clause^  there  were  no 
words  to  pass  theestate  in  question.  The  testator  only 
meant  that  that  should  extend  to  his  personal  estate. 
It  was  given  to  trustees,  their  executors  and  admi- 
nistrators,— technical  terms  applicable  to  personalty. 
But  "  I  rely/'  said  his  Liordship^  "  on  the  following 
w^ords  of  the  clause^ '  to  add  the  interest  to  the  princi- 
pal so  as  to  accumulate  the  same/  The  interest  and 
principal  were  to  make  one  consolidated  sum  of  the 
same  nature^  and  are  terms  wholly  inapplicable  to 
real  estate.  Seeing,  therefore,  that  there  is  nothing 
in  the  residuary  clause  to  pass  this  estate,  and  that 
th&re  is  nothing  in  tlie  will  to  make  it  necessary  for 
the  trustees  to  take  it  to  perform  any  trust  in  them, 
the  heir  at  law  stands  intrenched  in  his  right  as  heir, 
and  cannot  be  removed  from  it." 


The  importance  of   the   introductory   clause  as  Bythe  later 
ntanifesting  an  mtention  of  complete  and  ultimate  import. 
disposition,  has  been  gradually  declining  in  Courts  iutrodiwto- 
both  of  law  and  of  equity.    In  the  case  ofGoodright  appeara^to 
d.  Baker  v.  Stocker  '^  Lord  Kenyon  laid  a  very  slight  iwrcous" 
stress  upon  it,  observing  that,  though  the  general  former^*" 
introductory  words  would  have  some  effect  in  the  con- 
flftruction  of  the  subsequent  devises,  as  had  been  said 

''6T.R.  13. 

t^  tk  f^ 


600  Import  of  JVoT^s  and  P^ra^es    Chap.  IV. 

by  Lord  Talbot  in  a  case  before  hiiq^  they  coul4  not 
of  themselves  have  carried  the  fee.  In  another  case* 
Lord  EUenborough^  in  adverting  to  the  effect  of  this 
clause^  observes^  that  the  construction  might  be  con- 
sidered as  in  a  degree  aided  by  the  introductory  words 
of  the  will  respecting  his  worl(jlly  and  temporal  estate, 
&c.  which,  said  his  Lordship^  ''  are  allowed  to  have 
some  weight  in  cases  where  the  intention  of  the  testator 
is  doubtful,  and  where  there  are  other  words  in  the 
will  to  carry  his  intention  into  effect." 

In  the  case  of  Goodright  d.  Drewry  v.  Barron  \ 
which  has  been  already  cited  for  another  purpose, 
the  imbecillity  of  this  introductory  clause  was  still 
moje  marked.  There  the  testator  after  the  introduc- 
tory words  '^'as  touching  my  worldly  estate^  &c/' 
devised  a  cottage^  house^  &c.  to  A.  and  his  heirs, 
and  also  gave  to  B.,  whom  he  made  his  executrix, 
*^  all  and  singular  his  lands^  messuages,  and  tenements 
by  her  freely  to  be  possessed  and  enjoyed",  it  was 
held  that  the  latter  words,  being  ambiguous,  did  not 
pass  the  fee  against  the  heir,  and  that  the  word 
estate  in  the  introductory  clause,  could  not  be 
brought  down  into  the  latter  distinct  clause.  With 
respect,  said  the  Chief  Justice,  to  the  introductory 
words,  it  has  been  held  in  many  cases  that  they  are 
not  sufficient  of  themselves  to  carry  a  fee;  bat 
juncta  juvant.  And  Mr.  J.  Le  Blanc  observed  that 
the  introductory  words  were  a  circumstance  with 
others,  from  whence  the  testator's  interest  might  be 
collected. 

Finally,  in  the  case  of  Doe  d.  Wall  v.  Langlands  \ 

*  Doe  d.  Bates,  r.  Clayton,  8  East,  147. 

'  14  East,  372.  *  14  Gast,  Sr% 


« 

Se6t.  4.       When  the  whole  Estate  passes.  501 

it  was  said  by  the  present  Chief  Justice^  that  ''  very 
little  inference  of  intention  can  be  drawn  from  mere 
formal  words  of  introduction,  though  we  certainly 
find  them  in  some  cases  called  in  aid  to  shew  that 
a  man  did  not  mean  to  die  intestate  as  to  any  part  of 
his  property  ;  and  the  making  a  will  at  all  may  also 
be  used  as  affording  such  inference." 

The   effect  of    the  words    usually  employed    in  ofUicef. 
the  residuary  clause  is  deserving  of  some  consider-  residuary 

clause* 

ation.     In    Tanner  v,  Morse,  (8)   the  testator  de- 
vised in  the  following  words   "  As  to  my  temporal 
estate,  I  bequeath  to  my  nepliew  T.  (the  testator's 
heir  at  law^,  50//'  then,   after  several  legacies,  he 
concluded  thus :  ''  And  all  the  rest  and  residue  of  my 
estate,   goods  and  chattels  whatsoever,  I  give  and 
bequeath  to  my  beloved  wife  M .  C,  whom  I  make  my 
full  and  sole  executrix."     It  was  contended  that  as 
to  the  words  ^'AU  the  rest  and  residue  of  my  estate," 
they    must  have  relation  to  something  that   went 
before,  and  there  was  nothing  disposed  of  in  the  will 
before  that  clause,  but  only  some  legacies  charged 
uffon  the  personal  estate.     Ldrd  Talbot,  however, 
decreed  an  estate  in  fee-simple  to  pass  by  the  words 
of  the  will,  considering  the  introductory  clause  fol- 
lowed fey  the  devising  words,  as  amounting  to  the 
same  as  if  the  testator  had  said,  '^  I  devise  the  res£ 
and   residue  of  all  my  temporal  estate."     And,  in- 
deed, it  never  has  been  doubted  that  if  by  necessary 
6r  fair  construction  the  introductot^y  wotds  "  As  to 
all  my  worldly  estate,  substance,  &c."  are  fttirTy  t6 


(8)  Ol.  Temp.  Talbot  364.  Before  Lord  Chancellor  King,  and 
afterwards  affirmed  by  Lord  Talbot  on  a  rehearing :  reported  i& 
3  P.  Wms.  295.  by  the  name  of  Tanner  v.  Wise. 


602  Import  of  Words  and  Phras€$    Chap.  IV. 

he  construed  as  connected  with  the  devising  words 
that  follow,  the  fee-simple  passes  under  them ;  for 
then  it  is  really  a  disposition  by^  and  not  merely  an 
introduction  tOj  the  will. 

tte^rJ^dn.  ^^  ^^  observablc  that  in  the  last-mentioned  case,  as  it 
wZhe*  is  reported  in  Pcerc  Williams,  Lord  Talbot  appears 
woHi  of^  to  have  adopted  the  argument  of  the  counsel,  that  rest 
'*'■**•"*  and  residue  were  mere  words  of  relation,  having  a 
necessary  reference  to  some  property  of  the  testa- 
tor before-mentioned  in  the  wilK 

But  Lord  Holt  expressed  a  different  opinion  in  tfie 
case  so  much  above  referred  to,  of  the  Countess  of 
Bridgewater  v.  the  Duke  of  Bolton  ^   wherein  he 
said  that  it  might  be  objected  that  the  word  residue 
was  a  word  of  relation,  and  therefore  to  be  confined 
by  its  relation  to  something  given  before.     But  this 
he  denied,  and  said  ''  Suppose  a  man  gives  some  of  his 
personal  estate  away  by  will,  and  in  the  same  will, 
gives  the  residue  of  his  estate,  real  and  personal,  away, 
should  not  this  pass  the  freehold  as  well  as  the  rest  of 
his  personal  estate  ?     Surely  there  is  no  doubt  of  it." 
'^  And,''  said  his  Lordship, ''  Considering  the  last  clause 
of  the  will,  whereby  he  orders  these  rentSy  in  case  of 
deficiency,  &c.  to  be  sold,  and  the  remainder  thereof, 
after  the  debts  and  legacies  paid,  to  go  to  the  Earl: 
I  say,  considering  'this  clause,  with  other  scattered 
clauses  in  the  will,  the  rents  thereby  will  pass.     Some 
doubts  have  been  made  whether  the  word  '  remaimder 
of  my  rent'  be  sufficient  to  pass  these  rents:  be- 
cause a  remainder  is  a  residue  of   something ;   so 
that  if  there  be  nothing  sold,  there  can  be  no  residue 
or  remai'nder.    But  this  depends  upon  the  construe- 

*  See  6  Mod.  108. 


1 


Sect.  4.       When  the  whole  Estate  passes.  503 

tion  of  the  word  '  remainder  ; — ^whether  there  be  a 
necessity^  to  sell  to  make  a  remainder.  But  I  do  not 
think  that  the  word  remainder,  here,  is  to  be  taken 
for  a  remnant  of  a  totum,  when  part  is  extracted 
from  it ;  for  if  the  rents  are  nQt  sold,  then  they  remain 
unsold^  and  the  word  remainder  shall  be  understood 
for  the  rents  remaining  unsold.  This  word  remain* 
der  made  some  dispute  which  lasted  for  above  an  age. 
It  was  a  great  question  whether  there  could  be  a 
remainder  of  a  thing  created  de  novo^,  and  which 
never  had  been  before.  Since,  a  more  reasonable 
constructiqn  has  been  made.  If  a  man  by  deed 
grant  a  rent  to  A.  and  the  heirs  of  his  body,  remain- 
der to  B.  and  his  heirs,  this  is  a  good  remainder*." 

There  can  not  be  a  doubt,  it  is  humbly  apprehend-  i^rdiHoit 
ed,  of  the  propriety  of  these  observations  of  Lord  reconcUed 
Holt ;  which  may  be  reconciled  with  those  of  Lord  point. 
Talbot,  above  alluded  to,  by  attending  to  the  follow- 
ing distinction. 

The  words,  rest,  residue,  and  remainder  are  not 
to  be  considered  as  mere  words  of  relation,  when 
the  question  is,  what  subjects  are  induded  under 
them ;  for  it  seems  clearly  settled,  not  only  tliat 
property  of  the  testator  not  before  mentioned  by 
him  will  pass  under  the  residuary  devise,  unless  there 
is  something  in  the  will  itself  to  limit  and  contract  its 
compass  tp  the  extent  of  the  descriptive  words  used, 
but  property  not  distinctly  in  the  contemplation  of 
the  testator  at  the  time.  Thus  M.  C.  made  her  will, 
duly  executed  for  passing  freehold  estates,  and  here- 
by gave  devised  and  bequeathed  all  and  every  the 

•  Plowd.  35. 

""  I  Sid.  385.    Co.  LiU.  341.  a  not«|  (4).    398.  a  nots,  (3). 

"^  1  Hen.  Blackst.  333. 


504  import  of  Wbrds  and  Phrases    ChAp.  IV. 

rea}  efltates^  which  she  was  any  ways  seised  of,  inte- 
rested in^  or  entitled  unto,  hte  the  estate  of  W.  N.^ 
to  certain  persons^  in  manner  therein  mentioned, 
lind  she  gave  to  other  persons  other  messuages^  &c. 
by  particular  local  descriptions :  she  then  gave  se- 
teral  pecuniary  and  specific  legacies^  and  afterwards 
devised  and  bequeathed  all  the  rest  and  residue  of 
her  estate,  of  what  nature  and  kind  soever,  unto  C. 
for  her  life,  with  limitations  over  to  other  persons. 
The  teitatril  died  soon  after  making  her  will,  seised 
of  eight  acres  of  freehold,  a^nd  four  of  copyhold  lands 
of  inheritance,  in  the  parish  of  Ghertsey,  which 
were  the  lands  in  question,  and  not  particularly  de- 
vised by  the  will.  She  had  duly  surrendered  the  copy* 
hold  to  the  use  of  her  will.  In  this  case  there  was  no 
difficulty  in  construing  the  lands,  of  which  there  was 
no  mention  made  in  the  will,  as  passing  by  the  words 
'^  AH  the  rest  of  my  estate,  of  what  nature  or  kind 


soever. 


f» 


So  also  in  the  case  of  Goodright  d.  Earl  of  Buck* 
inghamshire  and  others,  v.  Marquis  of  Downshire', 
the  Court  recc^nized  the  principle  laid  down  in  many 
antecedent  cases,  particularly  in  Smith  d.  Davis  v. 
Saunders ',  that  a  residuary  clause  will  e3ttend  to  every 
latent  reversion  which  the  testator  might  have  in  bim, 
unless  it  be  expressly  excluded  by  devise*  to  some 
other  person. 

I 

But  when  the  question  is,  not  as  to  the  particular 
parts  of  the  property,  but  as  to  the  qudntity  of  uUe* 
rest,  which  passes  to  the  devisee  by  the  ri^didfitry 
clause,  it  ittaiy  freqiiently  be  of  importance  to  consi- 
der the  words,  '  res(,*  '  residue'  and  ^  remainder/  in 
their  relation  to  the  things  mentioned  in  the  preeedifig 

*  3  Bob.  et  Pull.  600.  '  2  Blackst.  736. 


Sect.  4.       When  the  whole  Estate  pa$se$.  505 

parts  of  the  will.     For  if  these  words  ate  considered 
alone,  without  any  aid  from  the  introductory  words  of       ^ 
the  will,  or  the  descriptive  words  used  in  designating; 
the  property,  they  are  incapable^  of  themselvei,  of 
passing  the  absolute  interest. 

Thus  in  the  case  of  Canning  v.  Canning ',  wher6 
the  words  were^  ^'  all  the  rest,  residue  and  remainder 
of  my  messuages,  land,  or  hereditaments  whatsoever 
and  wheresoever,  unbequeathed  after  my  just  dehth 
legacies  and  funeral  expenses  are  paid,  1  give  to  my 
executors,  in  trust  for  my  daughters,  &c.'*  it  was  ad- 
judged that  the  executors  took  only  a  life  estate ;  for 
the  words  "  all  the  rest,'*  &c.  comprehended  the  par- 
ticulars only,    and  not  the  estate.     So  where  the 
words  were  "  all  the  rest  of  my  lands,  tenements  and 
hereditaments,  either  freehold  or  copyhold,  whatso- 
ever  and  wheresoever,  after  payment  of  my  just  debts, 
I  give,  'devise  and  bequeath  the  same  unto  my  wife, 
S.  C,  and  I  hereby  nominate  and  appoint  my  said 
wife  sole  executrix  of  my  will,"  it  was  adjudged  that 
the  wife  only  took  an  estate  for  life  *.     And  in  the 
case  of  Doe  d.  Palmer,  v.  Richards  *,  where  the  de- 
vise  was  of  ''all  the  rest,  residue  and  remaindefr  of 
my  lands^  hereditaments,  goods,  chattels  and  personal 
estate,"  it  was  admitted  by  Lord  Kenyon  that  these 
words  alone  were  not  sufficient  in  law  to  carry  a  fee. 

But  where  a  testator  makes  a  partial  disposition  of 
his  interest  in  a  thing,  whether  it  be  a  chattel  or  he- 
reditament, and  afterwards  devises  or  bequeaths  the 
''  rest,  residue  and  remainder,"  &c.  then  these  words 
may  properly  be  considered  as  having  a  specific  re- 
lation to  what  has  gone  before ;  and  standing  in  this 

*  Mosel.  240.  *  Denn  v.  MeUor^  5  T.  QL.  55S. 

»  3  T.  R.  SiO. 


506  InipoTt  of  Words  and  Phrases     Chap.  IV. 

lights  they  seem  to  have  been  always  held  to  carry 
the  whole  of  the  testator's  remainiog  interest  And 
thtts  Lord  Holt  and  Lord  Talbot  may  be  reconciled 
by  adverting  to  the  difference  between  a  specific  reh- 
tion^ — as  that  which  exists  between  an  individnal  whde 

r 

and  its  component  parU^  and  that  more  general  rela- 
tion that  exists  between  the  several  particulars  which 
compose  a  numerical  quantity.  When  rest  or  residue 
are  used  to  signify  this  latter  relation^  the  words  im- 
port only  the  things  devised^  but  when  they  denote 
the  former  species  of  relation  they  imply  the  quantity 
of  interest  remaining  in  the  testator. 

Thus  in  Grayson  v.  Atkinson^  where  a  testator  be- 
gan his  will  thus — as  to  all  my  temporal  estate  where* 
with  it  has  pleased  God  to  bless  me^  I  give  and  de- 
vise the  sftme  as  follows : — and  then  gave  several  lega* 
cies  to  A. ;  and  directed  him  to  sell  all  or  any  part  of  his 
real  and  personal  estate  for  the  payment  of  his  debts 
and  legacies^  and  concluded  with  giving,  '^  all  the 
rest  and  residue  of  his  goods  and  chattels  real  and 
personal,  moveable  and  immoveable,  as  houses,  gar- 
dens, tenements,  to  A."  without  using  the  word  es- 
tate, or  any  words  of  limitation.  Lord  Hardwicke, 
though  he  doubted  at  first,  was  afterwards  clearly  of 
opinion,  that  A.  took  a  fee  in  the  realty. 

So  in  Hogan  d.  Wallis  v.  Jackson"*,  where,  after 
beginning  with  the  usual  introductory  words,  ''  As 
.  to  all  my  worldly  substance,''  the  testator  gave  to  his 
mother  his  house  and  lands  of  G.  for  the  term  of  her 
natural  life,  without  the  liberty  of  committing  waste 
thereon,  and  gave  other  lands  to  her  in  the  same  man- 
ner, and  after  several  legacies  and  annuities,  devised 
to  his  mother,  aU  the  remainder  and  residue  of  all  bis 

« 

*  1  WUlt.  MS.  *  Cowp.  S90. 


Sbct.  4.      When  the  whole  Estate  passes.  507, 

effects^  both  real  and  personal^  which  he  should  die 
possessed  of,  the  mother^  by  the  residuary  clause^  \va8 
adjudjn^ed  to  take  the  fee  in  the  testator's  fee-simple 
estates  (9). 

In  both  the  last-mentioned  cases^  we  find  the 
usual  general  introductory  words;  but  as  it  has 
tong  been  settled  that  these  words  can  only  assist^ 
and  not  enlarge^  the  succeeding  devises^  or  enable 
them  to  pass  more  than  the  words  themselves  aro 
equal  to^  it  follows  that  these  residuary  words 
were  considered  as,  of  themselves,  capable  in  law 
of  carrying  to  the  devisee  the  whole  interest,  when 
the   context  shews  this  to  be  the  intention^    and 

such  intention  appeared  in  these  cases  by  the  relation 

« 

of  the  residuary  words  to  a  preceding  partial  disposi- 
tion of  the  property. 

In  the  case  of  Norton  v.  Ladd'',  upon  a  devise  to  A.  ofthede- 

^  ,  vise  of*  ff- 

for  life^  and  after  her  decease  the  whole  remainder  of  mamder  or 
the  lands  to  B.,  it  was  held  that  a  remainder  in  fee-sim- 
ple passed.     And  that  case  has  never  been  doubted. 

And  upon  a  principle  similar  to  that  which  has 
above  been  endeavoured  to  be  explained,  it  seems,  that 
when  a  testator  has  nothing  but  a  reversion  or  re- 

•  1  Lutw.  755, 


(0)  It  was  stroDgly  contended  that  as  the  mother  had  a  specific 
estate  for  her  life,  and  that  estate  was  made  liable  to  impeachment 
for  waste,  such  particular  disposition  to  her  was  totally  repugnaat 
to,  and  inconsi^ent  with,  an  intention  to  give  her  the  absolute  pro- 
perty in  a  subsequent  part  of  the  same  will.  But  this  argument 
was  not  suffered  to  prevail,  and  was  considered  by  Lord  Mansfield 
as  answered  by  the  decision  of  Ridont  v.  Paine.    3  Atk.  486. 

1 


S08  Import  of  Words  and  Phrases    Cnip.  It. 

rhairider  in  fee^  in  the  land,  and  devises  it  as  such, 
the  ^hole  interest  paisses  to  the  devisee;  for  though 
the  win  m&y  hate  mdde  no  previous  devise  of  a  partial 
interest  out  of  the  subject,  yet  the  words  "  reversion,  or 
remainder/'  naturally  imply  the  quantity  of  interest 
remaining  in  the  testator,  after  the  determination  of 
the  antecedent  estate  or  estates. 

Acc6rd?ngfly,  in  the  la^  cited  case  of  Norton  v. 
Ladd,  it  was  said,  that  the  devise  of  a  reversum  car- 
ried the  fee.  And  wtiere  a  testator  devised  thns 
''  i  give  to  my  son  C  G.  the  Reversion  of  the  tene- 
ment my  sister  now  lives  in,  after  her  decease  ;  and 
the  reversion  of  those  two  tenements  now  in  the  pos* 
session  of  J.  C'  Lord  Hardwicke  declared  his  opi-> 
riion  that  the  word  reversion  passed  the  fee*.  ''The 
interest,"  said  his  Lordship,  ''  which  the  testator  had 
in  it,  was  the  reversion  in  fee  which  he  had  in  him- 
self, expectant  on  those  leases  which  he  had  granted, 
Whether  for  Kfe,  or  for  years.  '  Reversion^  was  the 
right  of  having  the  estate  back  again,  when  the  par- 
ticular estate  determined :  it  was  descriptive  of  the 
right  of  reverter  by  way  of  eminence,  that  was  in 
Hjmself ;  consequently  there  was  no  gtoUnd  to  split 
of  divide  it.  Giving  (he  reversion  was  giving  the 
wliol'e  reversion,  unless  words  are  added  limiting  and 
restraining  the  interest." 

Thus  also,  in  the  case  of  Cole  v.  Rawlinson*^,  Lord 
Treby  observed  that  it  had  been  lately  .djudgedf  in 
the  Common  Pleas,  that  when  I.  S.  having  a  remain- 
der in  fee  devised  all  his  remainder  to  L  N,,  a  fee 
fassed  to  the  devisee.  And,  where  the  Bell  Tavern 
was  settled  upon  A.  for  life,  reniainder  to  B.  is  tail, 

AdUs  V.  Gale^  2  Vez.  78.  U  Loid  Riym.  187. 


S^T.  4.     .  When  the  whole  Estate  passes.  509 

remainder  to  A.  in  fee^  aqd  A.  devised  all  Uie  hoii^e 
called  the  Bell  Tayern  to  B.  without  saying  for  wh^ 
estate^  it  appears  by  a  note  in  Yiner  ^  that  the  fe^ 
was  held  to  pass. 

I  pass  over  the  crises  wherein  the  word  estate  hf^l 
occurred  in  the  residuary  devise^  aa  improper  exam- 
ples of  the  force  of  the  devising  residuary  words ; 
since  that  term^  of  itself^  embraces  the  absolute  fe^r 
simple  in  a  will. 

The  effect  of  the  residuary  clause  is  very  different  Of  the  di^ 
in  respect  to  real  and  personal  estate.  Which  import-  fecteof  the 
ant  distinction  is  clearly  and  fully  stated  by  Sir  Wil-  clause,  ui 
liam  Grants  in  the  case  of  Cambridge  v.  Rous.    Hi^  real  and 
words  are  as  follow :  "  The  third  question  upon  the  estate, 
will  of  S.  is,  whether  the  particular  legacies,  lapsed 
by  the  death  of  M.,  fell  into  the  residue,  and  pass  by 
the  residuary  clause,  or  belong  to  the  next  of  kin,  as 
undisposed  of.     It  has  been  long  settled  that  a  resi- 
duary bequest  of  personal  estate,  (for  it  is  otherwise 
as  to  real)  carries,  not  only  every  thing  not  disposed 
of,  but  every  thing  that,  in  the  event,  turns  out  to 
be  not  disposed  of.     And  this,  not  in  consequence  of 
any  direct  or  expressed  intention  ;  for  it  may  be  ar- 
j^ued  in  all  cases,  that  particular  legacies  are  sepa- 
rated from  the  residue,  and  that  the  testator  does  nojt 
mean  that  the  residuary  legatee  should  take  what  i» 
given  away  from  him :  no,  for  he  does  not  contem- 
plate the  case :  the  residuary  legatee  is  intended  to 
take  only  what  is  left;  but  that  does  not  prevent  the 
right  of  the  residuary  legatee.    A  presumption  arisen 
for  the  residuary  legatee  against  every  one  except  the 


f  8  Yin.  309.  tit.  Jkf.  (h,  «}  pU  S9* 


510  Import  of  Words  and  Phrases    Chap.  IV. 

« 

particular  legatee.  The  testator  is  supposed  to  give 
it  away  from  the  residuary  legatee^  only  for  the  sake 
of  the  particular  legatee.  In  the  case  of  lapse  of  real 
estate^  the  heir  at  law  takes ;  but  in  the  case  of  per- 
sonal property  the  residuary  legatee  is  preferred 
either  to  the  next  of  kin,  or  the  executor." 

It  is,  therefore,  the  settled  rule  of  construction,  that, 
as  to  personal  estate,  whatever  is  not  eifectually  taken 
out  of  the  bulk  of  the  property,  falls  into  the  residuum, 
and  passes  by  the  general  bequest  thereof.  Nor  does 
it  signify  whether  the  particular  legacy  becomes  in- 
effectual by  the  death  of  the  legatee  in  the  testator's 
lifetime,  or  by  the  disposition  itself  being  void  in 
law. 

In  Brown  v.  Higgs ',  one  of  the  bequests  of  the 
will  was  void  under  the  statute  of  mortmain,  and  it 
was  without  difficulty  determined  that  the  subject  of 
the  void  bequest  passed  to  the  residuary  legatee:  and 
to  what  was  observed,  as  to  the  testator's  not  meaning 
to  include  in  the  residue  what  he  imagined  himself  to 
have  previously  disposed  of,  it  was  said  by  the  Master 
of  the  Rolls,  that  the  same  argument  might  be  urged 
in  the  case  of  lapsed  legacies ;  for  no  man  supposes  hit 
legacies  will  lapse,  or  will  not  take  place.  And,  in 
Sfianley  v.  Baker  \  in  the  same  court,  the  authority  of 
Brown  v.  Higgs  was  recognized  and  confirmed.  And 
again  in  Crooke  v.De  Vandez ',  the  particular  phrase 
of  '^  what  remains"  used  by  the  testator,  being  held 
to  be  tantamount  to  the  word  residue,  and  to  in- 
clude every  thing  not  already  disposed  of,  personal 

'  4  Vez.  Jun.  708.  *  Ibid.  732.  ' 

!  11  Ves.  Joo.  350. 


Sect.  4.       When  the  whole  Estate  passes.  511 

estate,  bequeathed  upon  a  contingency  too  remote^ 
>vas  held  to  pass  under  them  to  the  residuary  legiatee. 

There  is  not  any  distinction  as  to  this  eflfect  of  the 
residuary  bequest  between  specific  and  general  lega- 
cies. And  where  a  man  by  his  will  "^^  gave  and  be* 
queathed  all  the  rest  and  residue  of  his  real  and  per* 
flonal  estate,  whatsoever,  and  wheresoever,  and  of 
what  nature  or  kind  soever  the  same  might  consist  of, 
not  therein  befare  specifically  disposed  of,  the  ge- 
neral devise  was  held  to  comprehend  specific  legacies 
lapsed,  upon  the  ground  that  the  word  specifically 
ought  to  be  construed  ^  particularly.'  The  Master  of 
the  Rolls  being  of  opinion  clearly,  that  the  testator 
was  not  to  be  interpreted  as  meaning  to  die  intestate 
with  regard  to  all  sums  specifically  bequeathed,  and 
testate  with  regard  to  all  pecuniary  legacies. 

But  if  a  devise  of  real  estate  becomes  ineflfec- 
tual  from  lapse,  it  is  considered  by  the  law  as 
undisposed  of;  and,  having  been  separated  from 
the  residue  at  the  time  that  the  will  bad  an  inci- 
pient operation,  in  the  nature  of  a  conveyance^ 
it  cannot  be  brought  again  into  it  by  a  subse- 
quent event.  And  where  a  testator  manifests  his 
intention  to  make  a  particular  disposition  of  a  real 
estate,  and  such  disposition  is  void  in  law,  still  it  will 
not  pass  inclusively  in  the  residue,  unless  under  spe*-. 
cial  circumstances  overruling  the  inference  of  inten- 
tion to  separate  it  from  the  residue.  Thus  in  a  case* 
where  the  testatrix,  having  four  sisters,  devised  par# 
ticular  estates  to  them,  with  remainder  to  her  own 

*  Robarts  v.  Cooke,  16  Yes.  Jun.  451. 
"  Amesburjr  v.  Brown,  cited  t  Black*  739. 


B12  Impart  of  Words  and  Phrases    Chap.  IT. 

right  heirs^  and  afterwards  gave  the  residue^  in  a  ge- 
neral residuary  dausa^  to  one  of  the  sisters^  and  died, 
having  no  other  real  estate ;  upon  one  of  the  partica- 
lar  estates  determining,  it  was  held  that  the  rever- 
sion did  not  pass  by  the  residuary  clause ;  for  though 
Ahe  devise  might  not  operate  to  make  the  heir  take 
by  purchase^  (10)  yet  it  was  in  the  nature  of  an 
exception  out  of  the  residuary  clause^  which  deter- 
mination was  approved  by  Lord  Northington  and 
confirmed  by  the  Court  of  K.  B.  in  Smith  d.  Davis  v. 
Saunders "". 

*  $  Blackst.  736. 


Of  the  de-       (10)  Where  the  same  estate  is  derised  to  the  Hetr  in  qoantitjand 
belr-rwhen  ^^itj,  as  he  woald  have  taken  by  descent  if  there  had  been  do  de- 

^<:  takes  by  y|ge   the  deTise  is  Toid,  and  the  heir  will  take  by  descent.    But 

the  will--.  '  ;  ^ 

when  by      where  bj  the  doTise  a  different  estate  is  given  from  that  which  w 

ef cent.       j^^  would  giTC,  the  yrWl  prevails ;  as  where  a  man  devises  to  A. 
and  B.,  his  daughters  and  co-heirs,  in  fee  :  for  instead  of  an  estate 
in  coparcenary,  they  take  as  joint-tenants,  with  surriTorship.    Soj 
if  the  devise  be  to  them,  as  tenants  in  common.    And  if  a  mia  de- 
rise  to  one  of  several  co-heirs  of  himself;  in  as  much  as  one  co-heir 
cannot  take  without  the  others  by  descent,  the  whple  shall  pass  by 
the  devise.    If  a  devise  be  to  the  heir  and  another  in  fee,  the  heir 
takes  by  purchase,    for  he  takes  subject  to  survivorship  m  a 
stranger.     But  if  a  testator  devise  to  his  heir  and  another,  as  te- 
nants In  common,  it  seems  that  the  devise  to  the  heir,  as  to  his  moi- 
ety, is  void,  for  he  takes  the  part  devised  to  h<m  just  in  the  same 
manner,  lu  ff  it  had  been  left  to  descend  to  him.   And,  where  lands 
are  subjected  to  a  charge  by  a  will,  with  a  devise,  to  the  heir  in  fe^ 
it  seems  that  the  heir  will  still  take  by  his  title  of  descent,  and  not 
by  purchase ;  and  that  if  it  is  subjected  to  a  temporary  right  of  pos- 
session in  another,  tintil  the  heir  pays  a  sum  of  money,  and  then  is 
devised  to  the  heir  in  tee,  still  the  heir  takes  according  to  his  better 
title,  i.  e.  by  descent.    SeeFeame's  posthumous  Worlu,  236.  S39« 
Mid  see  Reading  v.  Rawstome,  2  Lord  Raym.  4tk  Ed.  829. 


(    513    ) 


Section  V. 


Bjf  what  wo2^6  an  Estate  tail  passes. 


IN  conformity  with  the  principle  of  giving*  elSect 
to  the  intention*  an  estate  tail^  as  well  as  an  estate  in 
fee,  may  be  created  in  a  will  by  expressions^  be  they 
«ver  so  informal,  that  manifest  the  meaning  of  the 
testator.  To  discuss  the  varieties  into  which  the 
cases  in  the  books  have  expanded  the  doctrine,  would 
require  volumes  of  learned  labour  }  the  reader  can 
expect  only  the  general  heads  of  this  multifarious 
subject  to  be  treated  of  in  this  place. 

An  inheritance  in  tail  general,  is  properly  created  The  formal 

words  of 

in  a  deed  where  lands  or  tenements  are  given  to  a  limitation 
man,  and  his,  heirs  of  his  body  begotten.    And  this  efltatntau 
estate^  according  to  Littleton  \  ^'  is  called  general  tail^  mated, 
because  whatsoever  woman  such  tenant  in  tail  taketh 
for  wife,  (if  he  hWh  many  wives,  and  by  every  of 
them  hath  issue,)  yet  every  one  of  these  issues,  by 
possibility,  may  inherit  the  tenements  by  force  of  the 
gift ;  because  «veiry  of  such  issue  is  of  bis  body  en- 
gendered." 

*'  In  the  same  manner  it  is,''  says  the  same  author^ 
^'  where  lands  or  tenements  are  given  to  the  womao^ 
and  to  the  heirs  of  her  body ;  albeit  that  she  halli 
divers  hiuAmnds^  yet  the  issue  which  she  nray  have  by 

•  Sect.  14,  15. 
2  L 


S14  Import  of  Words  and  Phrases.    Criip.  lY. 

every  husband  may  inherit  as  issue  in  tail  by  force 
of  this  gift^  and  therefore  such  gifts  are  called  gene- 
ral tails/' 

He  then  defines  the  tenancy  in  tail  special  to  be^ 
'*  where  lands  or  tenements  are  given  to  a  man  and 
his  wife^  and  to  the  heirs  of  their  two  bodies  be- 
gotten ;  in  which  case,  none  jshall  inherit  by  force  of 
this  gift,  but  those  that  be  engendered  between  these 
two.  And  it  is  called  special  tail,  because,  if  the  wife 
die,  and  he  taketh  another  wife,  and  have  issue,  the 
issue  of  the  second  wife  shall  not  Inherit  by  force  of 
tliis  gift,  nor  the  issue  of  the  second  husband  if  die 
first. husband  die/' 

Of  the  ne-  These  estates  tail,  whether  general  or  special,  are 
^rd?in  a  not>  in  general,  to  be  created  by  a  gift  inter  vivos,  with- 
create  an  out  the  words  of  limitation  used  by  Littleton,  as  above 
stated ;  for  every  estate  tail  was  a  fee>simple  at  common 
law,  and  at  common  law,  no  fee-simple  could  be  con- 
veyed by  feofiment  or  grant  without  the  word  heirs  ;  and 
to  the  word  heirs  must  be  added  words  to  express 
from  whose  body  the  heirs  intended  are  to  spring  (I). 


citate  tail. 


(1)  Yet,  says  Lord  Coke,  if  a  man  gire  lands  to  A.  et  baeredi- 
bus  de  corpore  suo,  the  remainder  to  B.  in  formi  praedicti,  this  is  a 
good  estate  tail  to  B.,  for,  in  form4  praedict^  do  include  the  other. 
If  a  man  letteth  lands  to  A.  for  life,  the  remainder  to  B.  in  tail,  the 
remainder  to  C.  in  forma  pr?edicta ;  this  remainder  is  void  for  the 
nnceitaintj.  Ait  if  the  remainder  had  been  to  C.  in  elkdem  fornl, 
•this  had  been  a  good  estate  tail,  for  idem  semper  proximo  antece- 
dent! refertur. 

The  words  ^  of  his  body'  are  not  so  strictly  required,  even  in  a 
deed,  but  that  they  may  be  expressed  by  others  which  are  tanta- 
mount ;  for  the  example  which  the  statute  de  donia  puts,  has  not 
1h«  words  d€  corpwcn    The  words  are  these— cum  aliqub  dat  ler- 


;S£CT.  5.     By  what  words  an  Estate  tail  passes.  515 

Therefore^  if  a  man  by  deed  give  lands  or  tene- 
ments to  A.  and  to  his  seed^  or  to  the  issues^  or  childf  en, 
of  his  body,  or  to  the  issues  of  his  body  lawfully  be-   - 


ram  suam  alicui  Tiro  et  ejas  uxori  et  haeredibus  de  ipsis  tipo  et  mu« 
Here  procreatis.  Therefore,  if  lands  be  giten  to  B.  et  haeredibu3 
qttos  idem  B.  de  prima  uxore  sua  legitime  procrearet|  this  is  a  good 
estate  in  especial  tail,  (although  he  hath  no  wife  at  the  time,)  j^ithout 
the  words  de  corpore.  So  it  is  if  lands  be  given  to  a  man^  and  to 
his  heirs  which  he  shall  beget  of  his  wife,  or  to  a  man  et  haeredibus 
de  came  sua,  or  to  a  man  et  haeredibus  de  se.  In  all  these  cases, 
these  are  good  estates  tail,  and  yet  the  wordy  de  corpare  are  omiU 
ted. 

The  word  begotten  may  in  many  cases  be  .omitted  in  a  deed; 
and  though  Littleton  says,  ingendered,  or  begotten,  yet  if  the 
words  be,  '  to  be  begotten,'  or,  '  whom  he  shall  have  begotten,* 
the  estate  tail  is  good ;  and,  as  procreatis  shall  extend  to  the  issues 
begotten  afterwards,  so  procreandis  shall  extend  to  the  issues  be- 
gotten before.     Co.  Litt.  20.  b. 

If  lands  be  limited  by  deed  to  the  use  of  J.  S.  et  hasredum  mas- 
culorum  suorum  legitime  procreatorum,  remainder  over,  it  is  a  fee* 
umple ;  but  if  it  be  haeredum  masculoruni  de  se^  or  in  Ei^lish,  the 
heirs  of  him  lajcJUlly  begotten^  especially  where  there  is  a  remain- 
der oyer,  it  is  tail.  Bedell's  case,  7  Rep.  41.  Where  the  premises 
in  a  deed  come  short  of  the  full  description,  provicVd  they  have 
the  word  ^  heirs,'  the  habendum  may  supply  what  is  wanting  to  make 
the  estate  tail ;  as  if  lands  be  giren  to  B.  and  his  heirs,  to  haye  and 
to  hold  to  him  and  the  heirs  of  his  body,  or  if  lands  be  given  i^ 
B.  and  his  heirs,  to  hold  to  B.  and  his  heirs  if  B.  have  heirs  of  his 
Body,  but  if  he  shall  die  without  heirs  of  his  body,  that  they  shall 
revert  to  the  donor ;  thus  has  been  adjudged  an  estate  tail.  See 
Co.  litt.  t21.  a.  and  the  note  by  Mr.  Ilargrave,  124. 

It  seems  that  a  limitation  in  a  deed  to  a  man  and  to  the  lieif 
of:  his  body  in  the  singular  number,  gives  htm  an  estate  tail.  See 
Co.  Litt.  22.  a.  and  Richards  v.  I^ady  Bergavenoy,  2  Vern.  235^ 
And,  according  to  many  authorities,  heir  may  be  nomen  coIlecti«^ 
vum  as  well  in  a  deed  as  a  will,  and  operate  in  both  in  the  same 
manner  as  heirs  in  the  plural  number;  for  which  see  the  several 
authorities  referred  to  by  Mr.  Hargrave,  in  note  to  Co.  Litt.  8.  b. 

2  1*8 


516  Import  of  Words  and  Phrases.    Chap.  IV 

gotten^  A.  has  but  an  estate  for  his  life\  And  if  a 
conf  eyance  be  to  a  man  and  his  heirs  mak^  he  there- 
by takes  a  fee-simple  without  regard  to  the  word 
male. 


What  But  in  a  will^  if  A.  devise  land  to  B.  and  his 

•iifficient  male^  the  law  will  supply  the  words  '  of  Ids  hodg,*  and 
create  an  make  it  an  estate  tail*".  And  if  latid  foe  devised  to  B. 
^  '  and  \m  issue,  or  to  his  children,  and  B.  had  none  at 
the  time  of  the  devise^  he  takes  an  estate  tail ;  for 
the  intention  to  give  to  the  children  the  land  by  such 
a  devise  is  plain  ;  and  they  cannot  take  as  immediate 
devisees^  not  being  in  existence ;  nor  by  way  of  re- 
mainder, for  the  devise  is  immediate  to  B.  and  his 
children ;  therefore  the  words  must  be  taken  as  words 
of  limitation,  that  is,  as  vesting  an  estate  tail  in  the 
parent'. 

In  the  case  last  supposed  there  is  no  way  of  exe- 
cuting the  intention  of  the  testator,  but  by  giving  the 
parent  an  estate  tail ;  but  if  B.  has  issue  living,  and 
land  is  doirised  to  B.  and  his  issue,  or  children,  the 
intention  of  the  testator  to  give  an  iminediate  estate, 
may  be  effectuated  by  a  joint  estate  being  executed  ia 
B.  and  his  children,  and  there  being  no  words  of  in- 
heritance  to  indicate  an  intention  to  give  more  than  ft^ 
hfp  estate,  they  take  only  as  joint-tenants  for  life. 

Again,  if  the  devise  be  to  B.  for  his  life,  or  to  B. 
geneirally,  and  after  his  decease  to  his  children,  or 
remainder  to  his  children,  he  having  a  son  or  daugh- 
ter, the  father  takes  but  an  estate  for  life,  with  re- 
mainder to  his  children  for  life ;  for  no  ^eater  estate 

9 

»  Vent,  aaa,  M».  !  Co.  lAt.  20.  b.  *  «  Rep.  IT. 


Sect.  5.    Bj/  what  words  an  Estate  tail  passes.  517 

would  have  passed  by  these  words  at  common  law^ 
and  to  make  a  will  operate  differently  from  a  convey- 
ance at  common  law^  the  intent  of  the  testator  must 
appear*. 

Where  lands  are  devised  to  another  generally^  and 
without  any  words  expressive  of  the  interest  he  is  to 
take^  he  thereby  becopies  entitled  only  to  an  estate 
for  Hfe.  Nor  will  a  greater  estate  pass  to  the  devisee 
by  a  devise  to  him  and  his  assigns.  But  if  after  such 
general  devise  the  testator  shews  his  meaning  to  be^ 
though  expressed  in  the  loosest  terms^  to  continue  the 
estate  in  the  descendants  of  the  devisee^  his  estate 
will  be  enlarged  so  as  to  carry  such  intention  into 
effect. 

Thus  where  a  house  was  devised  to  three  brothers^ 
among  them  ;  provided  always  that  the  hoi)pif  be  not 
fiold^  but  go  to  the  next  of  the  name  and  blood :  it 
wras  resolved  that  the  devisees  took  estates  tail  \ 

And  where  a  person  devised  land  to  his  three 
daughters^  to  be  equally  divided ;  and  if  any  of  them 
died  before  the  other^  then  the  one  to  be  the  other's 
heir^  equally  to  be  divided ;  and  if  his  three  daugh- 
ters died  without  issue^  then  he  willed  it  to  two  stran- 
gers: it  was  adjudged  that  the  daughters  took  estates 
tail '. 

A  person  devised  land  to  his  wife  for  life,  and  after 
her  decease  to  his  son  ;  and  if  his  son  died  without 


•  Wild'8  Case,  6  Rep.  17. 

*  Chapman's  ease,  Dyer,  333. 

I  KiDg  V.  Rumball,  Cro.  Jac.  448* 


518  Import  of  Words  and  Phrases.    Chap.  IV. 

ifisue^  ka-cing  no  son,  that  another  should  have  it :  it 
was  adjudged  that  the  8on  took  an  estate  in  tail  male  ^ 

R.  J.  being  seised  in  fee  of  a  copyhold  of  inherit- 
ance which  he  had  surrendered  to  the  use  of  his 
will,  devised  to  J.  Wedgcborough  his  house  in  the 
Brook,  and  30/.,  and  then  gave  other  pecuniary  lega- 
cies; and  to  William  Taylor,  his  sister's  son,  a  house 
by  the  description  of  his  ''house  on  the  green,  with 
the  ground  and  out-houses  thereto  belonging,"  and 
declared  his  will  and  meaning  to  be,  that  if  either  of 
the  persons  before-named  died  without  issue,  lawfully 
begotten,  then  the  said  legacy  should  be  divided 
equally  between  them  that  were  left  alive :  adjudged 
that  William  Taylor  took  an  estate  tail '. 

A  man  having  issue  two  sons,  devised  all  his  land 
to  his  eldest  son  ;  and,  if  he  died  wUkout  heirs  male, 
then  to  his  other  son  in  like  manner.  The  court  ob- 
served that  the  words  'of  his  body,*  which  properly 
created  an  estate  tail,  were  left  out ;  but  that  the  intent 
of  the  testator  might  be  collected  out  of  his  will,  Ihat 
he  desiffned  an  estate  tail;  for,  without  this  dc- 
vise,  it  would  have  gone  to  his  second  son,  if  the  first 
had  died  without  issue.  It  was  therefore  an  estate 
tail\ 

A.  devised  to  the  three  sons  of  C.  D.  successively, 
in  tail  male,  remainder  to  every  son  and  sons  of  the 
said  C.  D.  which  should  be  begotten  on  the  body  of 
Sarah  his  wife.      And  for  want   of  such  issue  to 

^  Robinson  r.  Miller,  1  Roll.  Ab.  837. 

*  Hope  ex.  dem.  Brown  v,  Taylor,  1  Burr.  368tf 

*  Blaxton  V.Stone,  SMod.R.  133* 


Sect.  5.  .  By  what  words  an  Estate  tail  passes.  519 

W.  N.  &c.  with  a  proviso  that  the  devisees  end  their 
descendants  should  take  the  surname  and  arms  of  the 
testator.  The  Court  of  King's  Bench  resolved  that 
the  afterhorn  sons  took  several  estates  in  tail  male^  in 
succession ;  as  the  words  '^  for  want  of  such  issue/' 
must  he  construed '  for  want  of  heirs  male  of  the  body/ 
and  that  this  was  the  true  construction '. 

\ 

A  person  devised  in  these  words :  ^'  I  give  and  be- 
queath all  my  copyhold  lands  to  my  nephew  Isaac 
Slater ;  but^  if  the  aforesaid  Isaac  Slater  shall  die 
without  male  heir,  then  my  will  is,  that  my  nephew 
John  Slater  shall  enter  upon  and  enjoy  the  said  copy- 
hold lands,  his  heirs  or  assigns,  for  ever  ;  provided 
the  aforesaid  Isaac  Slater  paid  to  his  wife  Elizabeth 
Slater,  the  sum  of  8Z.  a  year,  during  her  life ;  with  a 
power  of  entry  to  the  wife  if  the  annuity  was  not  paid. 
It  was  contended,  that  Isaac  took  a  fee  by  reason  of 
the  annuity.  But  Lord  Kenyon  said,  it  was  clear 
from  all  the  cases  on  the  subject,  that  Isaac  Slater 
took  an  estate  tail. 


And  althouerh  the  testator  {rives  to  the  devisee  an  "^at   / 

.  words  will 

express  estate  for  his  life  only,  such  estate  will  ne-  enlarge  an 
vertheless  be  enlarged  into  an  estate  tail  to  give  tate  for  ufe 
effect  to  the  general  intent  of  the  testator  by  em-  tate  tail. 
bracing  the  ulterior  objects  of  the  devisor,  within  its 
legal  extent  and  duration . 

A.  Dymock  devised  to  his  nephew  William  all  his 
freehold  estate  at  A.  to  hold  to  him  during  his  natural 
life ;  and,  after  his  decease,  to  and  amongst  his  is- 

\  E?aii8  V.  Astlej,  3  Burr.  1570.  ;*  1  Vent.  ^30. 

t 


S^  Import  of  Words  and  Phrases.     Caap.  IV. 

dtie ;  and^  in  default  of  if;sue^  to  be  divided  between 
his  nephew  E.  and  his  niece  M.  and  to  their  heirs  and 
assigtis  for  ever ".  Lord  Kenyon  said^  that  although 
this  will  was  vei^  inaccnrately  drawn^  he  thought  the 
devisor's  gtntral  intention  might  be  collected  from 
the  words  of  it :  the  great  question  in  the  case  vns, 
what  estate  W.  Dymock  took  under  the  will.  In  the 
first  clause  the  estate  was  expressed  to  be  given  only 
during  his  natural  life^  but  in  the  next  limitation  it 
was  to  go  to  his  issue^  and  in  default  of  issue  it 
was  to  go  over;  it  was  clear,  therefore,  from  the 
whole  of  the  will,  that  the  devisor  did  not  intend  that 
it  should  go  over  to  those  in  remainder,  until  after  a 
general  failure  of  issue  in  W.  Dymock.  He  there- 
fore thought  that  the  Court  was  warranted  by  many 
determinations,  and  particularly  by  that  of  Robinson 
V.  Robinson  *,  to  give  that  effect  to  the  will  which 
would  best  answer  the  devisor's  general  intention ; 
though,  by  so  doing,  they  might  defeat  some  partiadar 
intention.  Here  the  general  intent  was,  that  W.  Dy- 
mock and  his  issue  should  take  first ;  then  what  con- 
struction would  best  effectuate  that-intention.  It  had 
been  argued  by  the  plaintifTs  counsel  that  W.  Dymock 
took  only  an  estate  for  life,  and  his  children  an  estate 
tail :  but  it  would  be  difficult  to  put  two  different  in- 
terpretations on  the  word'Mssu^:'  and,  even  if  that 
could  be  done,  it  would  not  further  the  intention  of 
the  devisor,  for  there  were  no  cross  remainders  to  Ute 
children,  and  they  never  can  be  supplied ;  so  that, 
according  to  the  construction  contended  for,  if  one 
of  the  children  died,  his  share  would  go  over  to  those 
in  remainder,  in  prejudice  of  those  children  who  sur- 
vived ;  which  was  certainly  not  intmded  by  the  de- 

-  Dee  V.  Applin^  4  Term.  R.  82.  M  Barr.  38. 


Sect.  5.     By  what  %Dord$  an  Estate  tail  passes.  521 

Tiftor.  Therefore  his  general  intent  would  be  besC 
answered  by  saying,  that  W.  Dymock  took  an  estate 
tail;  and,  in  so  determining,  the  Court  would  not 
^o  farther  than  had  been  done  in  other  cases.  Judg- 
ment was  accordingly  given  that  W.  Dymock  took 
an  estate  tail. 

A  testator  devised  all  his  freehold  messuages,  &c.  to 
bis  daughter,  Mary  Ayscough,  and  the  beirs  of  her 
body,  lawfully  to  be  begotten,  for  ever,  as  tenants  in 
common,  and  not  as  joint  tenants ;  and,  in  case  his  said 
daughter  should  happen  to  die  before  twenty-one,  or 
without  having  issue  on  her  body  lawfully  begotten, 
then  he  gave  his  freehold  messuages  to  R.  Ayscough 
in  fee'. 

Lord  Kenyon  said,  it  was  a  rule  of  construction  in  ParticnUr 

i»i"t«i  til  •  i«j«»  intention 

cases  of  this  kind,  settled  by  a  variety  of  decisions,  expressed 
but  particularly  by  that  of  Robinson  t?.  Robinson,  that  place  to  tbe 
where  it  appeared  in  a  will  that  the  testator  had  tention  coi. 

.....  ji  _i  •.  lected  from 

a  general  intention,  and  also  a  secondary  inten-  the  whole 
tion,  and  they  clashed,  the  latter  must  give  way  to  ^'  ' 
the  former.  Here  were  no  words  of  limitation  added 
to  the  estate  given  to  the  children,  (supposing  they 
took  as  purchasers) ;  and  yet  the  remainder  over  was 
not  to  take  effect  till  there  was  a  general  failure 
of  her  issue ;  so  that.there  must  be  an  estate  to  com* 
prehend  all  her  children  for  ever ;  his  Lordship  con- 
cluded in  these^words — "  I  admit  that  in  this  case  the 
testator  intended  that  his  daughter,  M.  Ayscough 
should  only  take  an  estate  for  her  life,  and  that  her 
children  should  take  as  purchasers :  but  then  he  also 
intended  that  all  the  progeny  of  those  children  should 

'  Doe  9.  Smith,  7  Term.  R.  531.     1  Burr.  38. 


.622  Import  of  Words  nnd  Phrases.    Chip.  IV- 

take  before  any  interest  should  vest  in  his  more  re« 
mote  relations :  now  the  latter  intention  cannot  be 
carried  into  effect^  unless  M.  Ayscough  takes  an  es-- 
tate  tail;  in  order^  therefore^  to  give  effect  to  the 
devisor's  genend  intenti4m,  according  to  the  fair 
construction  of  the  will^  M.  Ayscough  must  take  an 
estate  tail/' 

H^nry  Cook  devised  a  messuage  or  tenement  to 
Richard  Cook  for  the  term  only  of  his  natural  Ufe  ; 
and  after  his  decease^  he  gave  and  'devised  the  same 
unto  the  lawful  issue  of  the  said  Richard  Cook^  at 
tenants  in  common^  to  whom  he  gave^  devised,  and 
bequeathed,  the  same ;  but  in  case  the  said  Richard 
Cook  should  die  without  leaving  lawful  issue,  then, 
and  in  such  case,  after  his  decease,  he  gave  and  de-» 
vised  the  $ame  to  Elizabeth  Harding  in  fee^ 

Lord  Kenyon  said,  it  had  been  the  settled  doctrine 
of  Westminster  Hall,  for  the  preceding  forty  or  fifty 
years,  that  there  might  be  a  general  and  a  particular 
intent  in  a  will,  and  that  the  latter  must  give  way^ 
when  the  former  could  not  otherwise  be  carried  into 
effect.     That  this  doctrine  had  been  confirmed  by  the 
cases  of  Robinson  v.  Robinson,  Roe  t^.  Grew,  and  Doe 
V.  Smith.-  That  the  court  would  best  fulfil  the  parti- 
cular intent  of  the  testator  in  this  case,  by  giving 
Richard  Cook  only  an  estate  for  life ;  but  the  general 
intent  was,  that  all  his  issue  should  ii^herit  the  entire 
estate^  before  it  went  over ;  and  that  intent  could  only 
be  answered  by  giving  him  an  estate  tail,  by  im- 
plication from  the  subsequent  words,  '^  in  default  of 
his  leaving  issue." 

« Doe  V.  Cooper,  1  East  R.  2^. 


Sect.  5.  By  what  words  an  Estate  tail  passes.  6^3 

If  an  estate  be  devised  to  a  man  for  his  life  with  re-  ^^»'? 

there  ii  a 

roainders  to  his  first  and  other  sons  indefinitely  in  tail,  ^^^v*"*?.^ 

•^  one  for  life 

and  then  the  limitation  over  is  introdu<^cd  by  the  expresniy, 

•^  with  re- 

virords  '^  in  default  of  issue/'  or  "  for  want  of  issue  of  inaindem 

to  first  and 

the  body  of  the  first  taker/'  or  "  in  default  of  heirs  Athemona, 

and  then  a 

male"  by  these  words  in  such  a  case  the  express  e^*  limitation 

_.^.  %        n  1  111  1  over  in  de- 

tate  for  life  given  to  the  first  taker,  shall  not  be  en-  fault  of  u. 
larged  by  construction  into  an  estate  tail,  for  the  li- 
mitations as  they  stand  extend  to  all  the  issue  of  the 
first  taker.  And  for  this  the  case  of  Bamfield  v.  Pop- 
ham  ',  is  the  leading;  and  standard  authority.  But  if 
an  estate  be  given  to  a  man  for  his  life,  with  limitations 
to  his  issue  falling  short  of  the  testator's  manifest  in- 
tent to  embrace  all  his  issue  within  the  scope  of  the 
limitations,  and  then  come  the  words  ''  if  he  shall  die 
without  issue,  or  in  default  of  issue,"  these  words  in 
such  a  case  will  reflect  back  an  estate  tail  upon  the 
first  taker,  notwithstanding  his  express  estate  for 
life  (2). 

The  learned  Editor  of  Pcre  Williams  in  his  note 
to  the  case  of  Bamfield  and  Popham  very  justly 
observes,  that  there  is  no  general  or  fixed  rule  for 
the  construction  of  words  of  this  kind,  but  that 
courts  both  of  law  and  equity  consider  the  raising 
of  estates  tail  by  implication  always  to  depend  upon 
the  question  whether  such  implication  be  necessary,  or 
not,  to  effectuate  the  general  intention  of  the  testator. 

'I  P.  Wms.  51. 


(i)  Langley  v.  Baldwin,  correctly  stated  in  the  case  of  the  At- 
torney General  v.  Sutton,  1  P.  Wms.  753. 


5S*  Import  of  Words  and  Phrases.   Chap.  IV. 

*  That  this  is  the  true  and  proper  criterion^  appears 
strikingly  from  the  case  of  Langley  v.  Baldwin.  (3) 
That  was  a  case  referred  by  the  Court  of  Chancery  to 
the  judges  of  the  court  of  Comoion  Pleas  for  their 
opinion^  in  the  time  of  Lord  Trevor.  And  the  limi- 
tations run  thus.  To  A.  for  his  life  wUhout  wipeaeh- 
7nent  of  waste,  and  with  a  power  qf  joiniuring,  re* 
mainder  to  the  firsts  second^ .  and  so  on,  to  (he  sixik 
son  of  A.,  and  no  further,  in  tail  male ;  then  came  (he 
words,  '^  And  if  A.  shall  die  without  issue  male  of  his 
body/'  remainder  to  B.  in  fee.  And  notwithstandiog 
the  limitation  to  A.  was  without  impeachment  of  wasle, 
and  with  a  power  of  jointuring,  which  art^  usaally 
coupled  with  a  life  estate,  and  therefore  in  aome 
degree  declaratory  of  an  intention  in  the  testator 
to  confine  the  interest  to  the  life  of  the  first  taker, 
yet  the  judges  of  K.  B.  were  unanimously  of  opi- 
nion, that  A.  took  an  estate  tail  by  implication  ;  be- 
cause if  there  should  be  a  seventh  son,  and  the  six 
sons  should  die  without  issue,  the  property  would  pass 
over  such  seventh  son  and  go  to  a  remote  remainder 
man,  which  could  not  be  supposed  to  have  been  the 
intention  of  the  testator;  therefore,  to  let  in  such 
seventh  son  and  other  subsequent  sons  to  take  (but 
still  to  take  as  issue  male  of  the  body  by  descent  and 
not  by  purchase)  the  court  held  that  A.  took^  by  im- 
plication of  law,  an  estate  tail. 


(3)  In  Ginger  v.  White,  Willes,  348.  The  C.  J.  obserTed,  that 
this  case  of  ILangley  o.  Baldwin  was  best  stated  in  1  P.  Wms.  759>in 
the  Attoniey  General  o.  Sutton.  And  in  the  case  of  Alanson  o. 
Clithero,  1  Vez.  25.  it  was  obserTod  by  Lord  Hardwicke,  that  the 
case  of  Langley  v,  Baldwin  was  wrongly  reported  in  Equity  C^t* 
Abridged  in  the  Tery  point. 


S£€T.  &.    By  what  tdords  am  Estate  tail  passes.  525 

In  the  case  of  Ginger  d.  White  v.  White',  the  de* 
TiBe  nay  be  shortly  stated  thus :  the  testator  John 
White  the  elder,  being  seised  in  fee  of  the  premises 
in  question,  devised  to  J.  for  life>  and  from  and  after 
his  decease,  to  the  male  children  of  J^  successively  one 
after  another  as  they  w«re  in  priority  of  agse,  and  to 
fheir  heirs,  and  in  defttuU  of  male  children  of  J.  then 
to  the  f^aie  children  of  J.  and  their  heirs,  and  ia 
case  the  isaid  John  should  die  without  issue,  then  he 
gave  the  house  to  his  grandson  W. ;  and  upon  these 
limitations  in  the  will  it  was  held,  that  J.  took  only  an 
Mtate  for  life ;  in  pronouncing  which  opinion  it  was 
aaid  by  Lord  Chief  Justice  Willes,  that  to  find  out 
what  construction  is  to  be  put  upon  the  words  of  a 
will  we  ought  in  the  first  place  to  consider  what  the 
tnteitf  of  the  testator  is,  which  is  too  often  the  last 
thing  tiiat  is  thought  of.  And  in  adverting  to  the  case 
oi  Bamfield  v.  Popham  he  observed,  "  It  has  been 
miid,  that  that  case  has  been  held  not  to  be  law.  I  am 
«ure  I  have  heard  it  cited,  at  least  twenty  times,  in  the 
Couft  of  Chancery,  and  never  heard  it  contradicted ; 
and,  I  bdieve,  I  never  shall,  except  by  those  persons 
who  know  not  bow  to  distinguish  it  (though  the  dis- 
tinction is  plain  and  obviojcis)  from  some  other  sobse- 
quent  cases.**  The  learned  Chief  Justice  then  pro- 
•eeeded  to  point  out  what  those  cases  were  from  which 
it  was  so  distinguishable ;  and*mentioned  particularly 
the  case  of  Langley  v,  Baldwin* 

The  limitations  in  Bamfield  and  Popham  were  to 
the  first  and  other  ^ons  indefinitely  in  tail  male,  ex- 
tending to  all  the  issue  which  might  be  born  of  the 
body  of  the  first  taker.    Therefore  in  Bamfield  v. 

•  Wales,  348. 


526^  Itnp&rt  of  Wards  and  Phrases.    Chap.  IV. 

Popham  there  ivas  no  need  of  construing  the  ^Kpress 
estate  for  life  into  an  estate  tail^  since  all  the  issue  in 
tail  were  already  comprehended  under  the  limitations 
as  they  stood.  And^  as  was  observed  in  the  case  of 
the  Attorney  General  v.  Sutton  ^  in  such  a  case  the 
words  '"^if  he  shall  die  without  issue  male/'  shall  be 
considered  as  predicated  of  such  issue  male^  and 
'When  vainly  inserted^  and  they  cannot  operate  or  be 
of  use^  th£y  shall  not  be  construed  so  as  to  merge 
and  destroy  an  express  estate  for  life. 

t 

The  case  of  the  Attorney  General  v,  Sutton  ",  w« 
to  the  same  effect;  which  was  shortly  this:  One 
seised  in  fee  devised  his  lands  to  his  nephew  for  his 
life^  remainder  to  his  first  and  second  sons  in  ta9 
male  successively,  (without  carrying  the  limitations 
further  to  his  other  sons,)  and  after  his  said  nephew's 
deatb,  without  issue  male  of  his  body,  then  the  re^ 
mainder  over  to  trustees,  for  charities  ;  and  here  the 
case  of  Langley  and  Baldwin  was  relied  upon  as 
expressly  in  point;  and  the  difference  was  taken 
between  that  case  and  the  case  of  Bamfield  v.  Pop- 
ham,  in  which  the  limitation  was  to  the  first  and.every 
other  son  and  sons  in  tail  male  successively,  .and  so 
comprehending  all  the  issue  male  of  the  first  devisee 
.indefinitely.  This  case  passed  through  several  stages 
of  adjudication,  but  the  words  '"^and  if  he  shall  die 
without  issue  male  of  his  body"  were  jat  Jength  ad- 
Judged  to  give  an  estate  tail  to  the  first  devisee. 

In  Robinson  v.  Robinson',  the  limitation  was  to 
Launcelot  Hickes  for  his  life,  and  910  longer,  and 
after  his  decease,  .to  such  son  as  he  should  have  law- 

•  1  P.  Wms.  753^  •  Ibid.  «  I  Bur.  38. 


Sect.  5.  By  what  words  an  Estate  tail  passes.  537 

fully  to  be  begotten^  and  in  default  of  such  issue 
then  to  the  testator's  right  heirs ;  and  these  words^  in 
default  of  issue,  were  held  to  give  the  father  an  estate 
tail ;  for  it  was  plain  the  testator  did  not  design  that 
his  heirs  at  law  should  take  until  his  lineal  pos- 
terity was  extinct. 

In  the  Attorney  General  v.  Sutton  the  express 
limitations  went  no  further  than  to  the  second  son. 
In  Langley  v.  Baldwin^  the  estate  was  expressly  car- 
ried to  the  sixth  son/  and  no  further.  And  in'  the 
recent  case  of  Wight  v.  Leigh ',  the  words  of  the 
will  gave  only  life-estates  to  the  sons. 

In  ail  these  cases  the  intention  of  the  testator  was 
plain^  that  the  remainder  over  should  not  take  place 
until  the  lineal  descendants  of  the  first  taker  shouM 
be  exhausted ;  to  carry  which  general  intention  into 
effect,  it  was  necessary  to  enlarge  the  life  estate  given 
to  the  first  taker,  into  an  estate  tail ;  but  in  Bam  field 
V.  Popham  the  specified  limitations  carried  the  estate 
to  all  the  possible  issue  of  the  first  taker,  in  succes- 
sion. 

In  the  consideration   of  this  point,    whether  the  is-ne  co- 
words  be  "in  default  of  issue  male,"  or  "in  default  wuruelr* 
of  heirs  male,"  they  are  of  the  same  force  in  a  will.  SdwoTihc 

body. 

In  the  case  of  Doe  t^.  ApUn  %  two  of  the  learned 
judges  observed  upon  the  word  "issue,*'  that  it  was 
equal  in  extent  in  a  will  to  the  words  "  heirs  of  the 
body/'  and  a  saying  of  Mr.  Justice  Bainsford  ^  was 
cited,  "  that  the  word  '  issue'  is,  ex  vi  termini,  nomen 

'16  Vez.  Jan.  564.  •  1  T.  R,  8«, 

^  Unchi  983.  and  ses  thsoase  of  King  v.  MeUing,  339. 


tail. 


S28  Import  of  Words  and  Phrases.    Chap.  IV. 

coltectivum,  and  takes  in  all  the  iggue  to  the  utaost 
extent  of  the  family^  as  far  as  the  words  '  hein  of 
the  body'  would  do." 

A  limUa-        It  is  old  aad  settled  law  that  if  %  man  device  an 

tion  to  one 

and  his      estate  to  another^  in  words  that  pnmarily  inwort  the 

heirs,  may    ^         .       -  .  -  ,  , 

be  reduced  fee-Simple^  yet  the  subsequent  words  may  controal 
qnent  the  devise^  and  reduce  the  gift  to  an  estate  tail 
an  estate  Therefore,  if  a  testator  devise  lands  to  A.  and  Us 
heirs,  and  afterwards  devises  the  sane  lands  to  ano- 
ther^ im  case  A.  dies  without  issue^  A.'s  estate  is  re- 
duced to  an  estate  tail ;  the  word  '  heirs'  being  under- 
stood in  the  restricted  sense  d  heirs  of  the  body ; 
otherwise,  the  limitation  over  could  not  vest  accord- 
ing to  ik^  intention  of  the  devisor  ;  for  the  law  does 
not  <»rry  its  favour  towards  wilk  so  fiur  as  to  suffer 
Ibe  limitation  of  a  fee  upon  a  fee. 

Accordingly,  in  a  very  early  case  ^  where  a  maade' 
*  vised  lands  to  A.,  his  daughter,  and  her  heirs,  and  if 
she  died  without  issue  in  the  life-time  of  lier  sister  B., 
that  it  should  remain  to  B.  ajad  her  heirs :  three  judges 
held  this  to  be  an  estate  tail  in  A.,  against  the  opinion 
of  Dyer,  who  thought  that  A.  took  only  a  fee-simple 
conditional ;  but  the  resolution  of  the  three  Ju^s 
has  been  since  establii^ed  by  an  uniform  seoes  of 
decisions ''. 

In  Brioe  v.  Smith  ^  <his  rule  of  constpuotion  vnis 


"^  Clatche'8  case,  Dyer,  330. 

-^  SovUe  o.  'Geimrd^Cre.  £1.  595.  Dutton  v.  Engram,  Cro.  H^ 
•427.  Chadoflk  o.^  Cowley.,  tCm.  Jia.  005.  and^partiottUrly  the  c»e 
of  Fitsgeralid  v.  l^lie,  3  Bro.  P.  c  154. 

*  Wffles,  1. 


Sect.  5.  By  what  words  an  Estate  tail  passes.  52^ 

considered  applicable  to  the  case,  where  after  a 
devise  by  a  testator  of  his  freehold  messuage  to  his 
son  P.  B.  and  his  heirs  for  ever^  on  condition  of  his 
paying  a  sum  of  money  to  W.  B.,  the  folIoM^ing  clause 
was  added^  ''Item,  my  will  and  mind  is,  that  in  case 
any  of  my^said  children^  unto  whom  I  have  bequeath- 
ed any  of  my  real  estates,  shall  die  without  issue,  then 
I  give  the  estate  of  him  so  dying,  unto  his  or  their 
right  heirs  for  ever"  In  this  case  it  was  said  that 
though  heirs  would'  have  been  construed  heirs  of 
the  hodif,  in  case  the  remainder  had  been  devised  over 
to  a  stranger,  it  would  be  otherwise  in  the  case  be- 
fore the  court,  because  the  remainder  was  devised 
over  to  the  heirs  of  the  person  so  dying  without  issue. 
But  Lord  C.  J.  Willes,  who  delivered  the  opinion  of  the 
court,  said,  "  that  though  this  distinction  had  seemed 
at  first  to  be  of  some  weight,  yet,  that  when  consi- 
dered, it  made  no  difference  in  reason  or  law.  That 
even  in  grants,  if  there  were  words  that  created  an 
estate  tail,  the  grantee  would  have  an  estate  tail, 
though  the  next  remainder  was  limited  to  his  heirs ; 
and  nothing  was  more  common  in  settlements  than  to 
limit  an  estate  to  a  man  and  the  heirs  of  his  body,  re- 
mainder to  his  right  heirs ;  and  for  this  plain  reason — 
to  prevent  his  disinheriting  his  issue,  except  by,  some 
solemn  act  done  in  his  life-time."  The  court  were  all 
clearly  of  opinion  that  P.  B.  took  an  estate  tail. 

Although  there  was  a  charge  upon  the  devisee, 
in  respect  of  the  estate,  that  circumstance  appeared 
to  have  no  weight  in  the  case  last-mentioned,  not  be- 
ing  adverted  to  either  by  the  bar  or  by  the  bench. 
But  in  Dutton  v.  Engram  *,  a  question  of  this  sort 


•  Cro.  Ja.  427, 

s 


^M 


630  Import  of  Words  and  Phrases.     Chap.  IV. 

« 

arose.  William  Goldwell^  seised  of  lanids  in  fee, 
devised  them  to  his  wife  for  life,  and  after  her  death 
to  John  his  eldest  son  and  to  his  heirs,  upon  condi- 
tion that  he,  as  soon  as  the  land  should  come  to  hiro 
in  possession,  should  grant  to  Stephen,  his  second 
son  and  his  heirs,  an  annual  rent  of  4Z.  out  of  the 
said  tenements,  and  that  if  the  said  John  died  witltout 
heirs  of  his  body,  that  the  land  should  remain  to  the 
said  Stephen  and  the  heirs  of  his  body. 

The  first  question  was,  whether  John  had  an 
estate  in  fee  by  the  devise,  which  was  to  him  and  his 
heirs,  upon  condition  that  he  should  grant  a  rent  to 
Stephen  and  his  heirs,  whereby  the  intent  was  shewn, 
as  it  was  said,  that  he  should  have  a  fee,  otherwise 
he  could  not  legally  grant  such  a  rent  to  have  conti- 
nuance after  his  death.  But  it  was  resolved  to  be  an 
estate  tail ;  for,  being  limited  that  if  he  died  witlwut 
issue,  then  it  should  ^o  to  Stephen,  and  the  heirs  of  his 
body,  that  shewed  what  heirs  of  John  were  intended, 
viz.  heirs  of  the  body.  But  yet,  by  the  limitation  of  the 
will,  he  was  to  make  a  grant  of  the  rent,  which  being 
by  appointment  of  the  donor,  was  not  contra  for- 
mam  donatoris,  but  stood  with  the  gift,  and  should 
bind  the  issue  in  tail. 

And  in  a  much  later  case^,  where  J.  B.  devised  to 
his  wife  for  life,  and  after  her  decease  to  be  equally 
.  divided  among  his  four  children.  A.,  B.,  C,  D.,  and 
to  each  of  them  and  their  heirs  for  ever,  share  and 
share  alike  ;  and  in  case  they  should  be  minded  and 
agree  among  themselves  to  sell  the  estate,  they  should 
have  equal  shares  of  the  monies  from  thence  aris- 

'  Roe  r.  Aris,  4  T.  R.  605. 


Sect.  5.  By  lohat  words  an  Estate  tail  passes.  531 

ing:  but  if  they  agreed  to  kei^p  the  estate  whole 
together^  then  all  the  rents^  issues^  and  profits  there- 
of^ should  be  equally  paid  and  divided  between 
them  and  to  the  several  and  respective  heirs  of 
them  on  their  bodies  lawfully  begotten^  share  and 
share  alike ;  it  was  held  that  the  children  of  J.  B. 
took  only  estates  tail  in  their  respective  fourths  ;  for 
though  it  was  giveh  to  them  and  their  heirs^'  and  they 
had  also  a  power  of  selling  the  estate  by  the  former 
part  of  the  devise^  yet  the  subsequent  words,  "to  the 
several  and  respective  heirs  of  them,  on  their  bodies. 
lawfully  begotten/'  restrained  the  operation  of  the 
former  words,  and  reduced  the  estate  devised  to  an 
estate  tail'. 

Where  a  man  devised  lands  ^  to  A.  his  son /or  ever, 
and  after  his  decease  remainder  to  his  heir  male  for 
ever,  with  other  remainders  over,  it  was  holden  an 
estate  tail  in  A. ;  for,  though  the  first  devise  being  to 
him  forever,  would  give  him  the  fee-simple ;  yet  the 
subsequent  words  to  his  heir  male^  shewed  what  sort 
of  inheritance  the  devisor  intended  him  (4). 

« 

'  See  also  to  the  same  effect,  Doe  v.  Riyers,  7  t*.  R.  276.  and 
Doe  V.  Whichelo,  8  T.  R.  2U. 
**  Roll.  Abr.  836. 


(4)  The  words  ^  for  ever*  in  this  case,  by  force  of  the  succt^cdipg  a  srmcral 

words,  were  rendered  inoperatiTC.  and  then  the  case  wa*?,  as  if  the  J*.''*'*^"^: 
/  I         •     7  5  tion  oi  the 

first  limitation  had  been  to  A.  generally,  or  for  his  life,  with  re-  rule  in  ^ 
mainder  to  his  heir  male,  and  in  a  will  is  fhc  same  as  if  the  remain-  ^asc. 
der  had  been  to  the  heirs  of  his  body,  which,  by  an  ancient  rule 
of  law,  expounded  in  Shelley's  case  1  Rep.  93.  is  not  an  estate  in 
contingency,  or  in  abeyance,  awaiting  the  coming  of  such  heir  into 
esusteocei  and  then  attaching  primarily  in  him  as  the  root  of  a 

2m2 


532  Import  of  Words  and  Phrases.    Chap.  IV. 

A  iimita.         And  what  would  otherwise  be  an  estate  tail  g'encral 

tion  im-  ,       , 

portiBff  an  may  by  subsequent  words  be  confined  to  the  heirs  in 
tail  general  tail  male.  As  if  a  man  devise  lands  to  his  wife  for  her 
fttbieqaent  life,  and  after  her  decease  to  her  son^  and  if  he  dies 
confined  to  without  issuc^  having  no  son,  that  then  J.  S.  shall 
intaUwde.  have  it^  the  son  by  this  devise  takes  an  estate  in  tail 


new  succession,  but  executed  in  the  ancestor,  and  giTing  him  an 
immediate  estate  tail.     In  the  fifth  section  of  Mr.  Feame^s  contin- 
gent remainders,  and  in  the  treatise  of  Mr.  Preston  exclnsiTelj  on 
the  subject,  the  student  will  find  thb  rule  explained  in  all  its  jr* 
rieties  of  application,  and  with  all  the  distinctions  which  negatively 
mark  its  boundaries.    The  lineaments  of  the  rule,  (which  itVouid 
be  an  idle  shew  of  learning  to  treat  of  ai  large  in  this  place,  in- 
stead of  referring  the  reader  to  those  publications,  which  hare  been 
distinctly  devoted  to  the  consideration  of  it,)  are  shortly  these. 
An  estate  for  life  to  A.,  remainder  to  his  heirs  or  to  the  heirs  of  his 
body,  is  not  an  estate  in  A.  for  his  life,  with  a  contingent  remain- 
der to  his  heirs  or  the  heirs  of  his  body,  but  an  immediate  estate  in 
fee  or  in  tail  in  A.    So,  if  A.  by  will  or  otherwise,  has  an  estate  of 
freehold  limited  to  him,  and  the  same  instrument  contains  a  subse* 
quent  ^imitation  to  his  right  heirs,  or  to  the  heirs  of  his  body, 
after  some  other  estate  for  life,  or  in  tail,  interposed  between  such 
limitation  of  the  first  estate  to  htm,  and  such  subsequent  limitation 
to  his  heirs,  or  heirs  in  tail,  this  remainder  to  the  heir  or  heirs  of 
the  body  of  A.  vests  in  A.  as  a  remainder,  and   is  transmitted 
through  him  by  descent  as  from  ancestor  to  heir.    The  genenl  rule 
is  this,  that  whensoever  the' ancestor  takes  any  estate  of  freehold, 
whether  it  be  or  be  not  such  as  may  determine  in  bis  life-time,  and 
there  is  afterwards  in  the  same  conveyance,  an  unconditional  limita- 
tion to  his  right  heirs,  or  heirs  in  tail,(either  immediately,  and  without 
the  intervention  of  any  mean  estate  of  freehold  between  his  freehold 
and  the  subsequent  limitation  to  his  heirs,  or  mediately,  that  is, 
with  the  interposition  of  such  mean  estate),  there,  such  subsequent 
limitation  to  the  heirs,  or  heirs  in   tail,  v«sts  immediately  in  the 
ancestor,  and  does  not  remain  in  contingency  or  abeyance;  with 
this  distinction,  that  where  such  subsequent  limitation  is  inunedl* 
atC)  it  then  becomes  execute^  in  the  ancestor^  formingi  by  ita  ujiioa 


Sect.  5.     By  what  words  an  Estate  tail  passed.  538 

male,  for  though  the  devise  to  the  son^  and  if  he  die 
without  issue,  would  have  been  a  good  tail  general, 
yet  when  the  devisor  added  the  words  "  having  no 
son/'  he  thereby  explained  what  issue  he  intended 
should  inherit  the  land  '. 

•  Roll.  Abr.  837. 


with  his  particular  freehold,  one  estate  of  inheritance  in  possession ; 
bat  where  such  limitation  is  mediaie^  it  is  then  a  remainder  Tested 
in  the  ancestor  who  takes  the  freehold,  not  to  be  executed  in*  pos- 
session till  the  determination  of  the  preceding  mean  estates.  As, 
if  there  be  an  estate  to  A.  for  his  life,  or  daring  the  life  of  C.  or 
any  other  sole  estate  of  freehold,  remainder  to  the  heirs  of  the 
body  of  A.,  this  is  an  estate  tail  executed  in  possession  in  A. ;  but 
if  there  be  an  estate  to  A.  for  his  life,  or  during  the  life  of  C,  or 
any  other  estate  of  freehold,  remainder  to  B.  for  life,  remainder 
to  the  heirs  of  the  body  of  A.,  this  is  only  a  present  freehold 
in  A.  with  a  Tested  remainder  to  him  in  tail,  to  take  effect  in  pos- 
session  after  the  determination  of  B.'s  estate. 

Where  the  limitation  to  the  heirs,  or  to  the  heirs  of  the 
body  of  any  ancestor  taking  the  preceding  freehold,  is  con* 
tingent,  eyen  though  the  estate  s6  limited  could  by  no  possibility 
have  Tested  in  the  ancestor,  as  in  the  case  of  a  gift  to  two  for  their 
joint  liTes  remainder  to  the  heirs  of  the  oae  dying  first,  the  heir 
slill  takes  by  descent.  But  if  the  contingency  on  which  the  vesting  is 
to  depend,  happen  in  the  life*time  of  the  ancestor,  the  remainder  is 
then  in  the  class  of  vested  remainders,  and  as  such  attaches  in  the 
ancestor.  So  that  whether  limited  on  a  contingency,  or  so  as  that 
it  may  immediately  vest,  it  is  the  ancestor's  estate,  and  the  heir  cam 
only  take  by  descent. 

And  where,  between  the  estate  of  freehold  given  to  A.,  and  the 
subsequent  limitation  to  his  heirs,  or  heirs  of  his  body,  contingent 
estates  are  limited  to  others,  though  in  such  a  case  there  is  nothing 
interposed  io  prevent  the  immediate  union  of  the  limitations  to  the 
ancestor  and  his  heirs,  yet  such  union  does  not  operate  to  merge 
the  freehold  in  A.  necessary  to  support  the  interrening  contingent  li« 
v&itations ;  but  the  two  limitations  are  united  and  executed  in  the 


534 


Import  of  Words  and  Phrases.    Chap.  IV. 


Estates 
may  arise 
in  a  will 
by  implica- 
tion mere- 
ly, and 
without 
any  ex- 
press 
words  of 
devise. 


Thus  it  appears  that  such  is  the  deference  paid  by 
the  law  to  the  intention  of  a  testator^  that  devises  re- 
gularly passing  estates  for  life  may  operate  to  giye 
estates  of  inheritance^  and  words  giving  the  fee- 
simple  may  be  restrained  to  estates  tail^  by  the  impli- 
cation arising  upon  subsequent  expressions.      Bat 


ancestor^  only  uatil  such  time  as  the  intervening  Hmitationf  be- 
come vested)  and  then  open  and  become  separated,  in  order  to  let 
in  such  intervening  limitations  as  they  arise.  Thns  in  Lewis 
Bowlegs  case,  1 1  Rep.  80.  where  there  was  a  limitation  to  husband 
and  wife,  for  their  lives,  remainder  to  the  first  and  other  sons  of 
the  marriage  in  tail,  remainder  to  the  heirs  male  of  the  bodies  of 
husband  and  wife,  the  court  resolved  that  it  was  an  estate  tail  exe- 
cuted in  the  husband  and  wife  sub  mode,  that  is,  so  as  not  to  meige 
the  estates  for  life  absolutely,  but  executed  only  till  the  birth  of 
the  first  son :  and  then  the  estates  should  become  divided  by  opera- 
tion  of  law,  and  the  husband  and  wife  become  tenants  for  their  lives, 
with  remainder  to  their  first  and  other  sons,  remainder  to  hosband 
and  wife  in  tail. 

Bat  for  this  junction  of  the  two  estates  to  take  place  in  the 
case  of  husband  and  wife,  the  remainder  must  be  the  same  in 
quality  with  the  preceding  limitation,  that  is,  if  the  limitation 
of  the  freehold  be  Joint y  the  subsequent  limitation  of  the  inhe- 
ritance must  be  joint  also,  as  in  the  case  of  Lewis  Bowles  jost 
mentioned.  And,  if  there  be  a  limitation  to  the  wife  for  her  life, 
remainder  to  the  heir  of  the  body  of  husband  and  wife,  no  remainder 
is  executed  in  the  wife.  So,  if  the  limitation  of  the  freehold  be  not 
joint  but  successive,  as  to  one  for  life,  remainder  to  the  other  for 
life,  remainder  to  the  heirs  of  their  two  bodies,  the  ultimate  limi- 
tation is  not  executed  in  possession,  bnt  the  husband  and  wife  take 
a  joint  remainder  in  tail.  Though  in  the  case  of  a  limitation  to 
A.  for  life,  remainder  to  the  right  heirs  of  him  and  B.,  a  stranger, 
(B.  being  alive  at  the  time),  the  ulterior  limitation  is  said  to  be 
executed  immediately  in  A.  for  a  moiety,  S  Roll.  Abr.  417.  pi.  6. 
and  see  Roe  v.  Quartley,  1  T.  R.  630. 

For  this  rule  to  apply  there  must,  of  course,  be  an  estate  in  the 
ancestor  ;  but  it  does  not  signify  whether  this  estate  ii  in  him  by 


Sect.  5.     By  what  words  an  Estate  tail  passes.  555 

there  are  cases  which  carry  the  principle  still  farther, 
for  an  estate  tail  may  sometimes  arise  by  the  mere 
force  of  implication,  without  any  express  words  of 
devise  to  the  party  himself,  upon  the  principle  of  so 
construing  the  intention  of  the  testator  as  to  give  it 
a  legal  effect. 


express  limitation,  or  by  implication,  or  by  resultancy,  Fibus  v. 
Mitford,  1  Vent.  372.  But  both  the  estates  must  be  legal,  or  both 
equitable  for  the  union  to  take  place.  Venables  and  Wife  v.  Mor- 
ris, 7  T.  R.  342.  438. 

And  although  the  limitation  to  the  ancestor  be  succeeded  by  a 
limitation  to  the  heir,  or  heir  male,  in  the  singular  number,  the 
rule  above-mentioned  operates  to  make  this  an  expansion  of  the 
first  estate  into  an  estate  tail ;  but  if  words  of  limitation  are  super- 
added, the  person  answering  the  description  of  heir  takes  by  pur<^ 
chase,  and  becomes  the  root  of  a  new  inheritance,  the  stock  of  a 
new  descent,  and  the  rule  in  Shelley's  case  has  no  influence  on 
such  a  case  ;  still,  howeyer,  if  the  first  words  of  limitation  are  in 
the  plural,  words  of  superadded  limitation  engrafted  upon  them 
will  not  convert  them  into  words  of  purchase.  In  Archer's  case, 
2  Rep.  66.  lands  were  devised  to  A.  for  life,  remainder  to  the  next 
heir  male  of  A.,  and  to  the  heirs  male  of  the  body  of  the  next  heir 
male  ;  A.'s  estate  was  adjudged  to  be  only  an  estate  for  life,  and  the 
remainder  to  ihe  next  heir  male  to  be  a  good  contingent  remainder 
taking  effect  in  him  by  purchase.  But  in  the  great  case  which  gave 
the  name  to  the  rule,  the  limitation  was  to  the  use  of  the  heirs  of 
the  body  of  Edward,  lawfully  begotten,  and  of  the  heirs  of  the 
body  of  such  heirs  male  lawfully  begotten^  remainder  over,  in  vir- 
tue of  which  limitation  Edward  took  an  estate  tail. 

Nevertheless,  if  the  superadded  words  limit  an  estate  of  a  differ* 
ent  nature  from  that  which  the  ancestor  would  take  by  virtue  of  the 
first  limitation  to  his  heirs  or  heirs  male,  as  if  there  be  a  limitation 
to  ^.  for  his  life,  and  after  his  decease  to  the  iise  of  his  heirs,  and 
the  heirs  female  of  their  bodies  ;  the  rule  in  question  seems  to  be 
•excluded.  But  for  such  superadded  words  of  limitation  to  exclude 
the  rule,  they  must  describe  an  estate  descendible  in  a  different 
coarse,  a^id  to  different  persons  as  special  heirs  from  those  to 


S30  hnport  of  Words  and  Pkrascg.    Chap.  IV. 

Thus  in  the  case  of  Walter  r.  Drew  \  where  a  testa- 
tor having  two  sons^  devised  his  lands  to  his  second  son 
and  his  heirs^  if  his  eldest  son  should  happen  to  die  and 
leave  no  issue  of  his  body  lawfully  begotten^  it  was  held 
that  the  eldest  son  took  an  estate  tail  by  implication^  for 
otherwise  the  limitation  to  the  second  son  would  have 
been  an  executory  devise,  which,  as  being  limited 
to  take  effect  upon  an  indefinite  failure  of  issue  of 
the  elder  brother,,  would  have  been  void  as  being  too 
remote '. 

Thus  also  in  a  case  in  Dyer"*,  a  testator  having  two 
sons  and  a  daughter,  devised  his  land  to  the  younger 
son  and  his  heirs,  and  if  both  of  his  two  sons  should  die 
without  issue,  remainder  to  the  daughter ;  the  young- 
er son  died,  and  then  the  testator  died,  and  it  vras 
held  that  the  daughter  took  a  good  remainder ;  but  to 
make  it  such  the  elder  brother  was  adjudged  to  take 
an  estate  tail  by  implication  of  law ;  for  if  he  had  taken 
no  estate,  then  the  limitation  to  the  daughter  would 
have  been  an  executory  estate,  limited  to  take  effect 
after  the  indefinite  failure  of  issue  of  the  elder  bro- 
ther, and  consequently  void  as  being  too  remote. 

^  Com.  Rep.  37^.        '  See  note  infra,  page  543.        *  P.  330. 


whom  the  preyious  limitation  would  carry  the  estate ;  for  if  the 
devise  be  to  A.  for  life,  and  after  his  decease  to  the  heirs  of  his 
body  begotten,  and  their  heirs  for  ever,  A.  clearly  takes  an  estate 
tall. 

For  the  full  discussion  and  explanation  of  all  these  points,  the 
studious  reader  is  referred  to  the  elaborate  treatise  of  Mn  f^amt 
on  Contingent  Remainders,  particularly  the  6th  edition,  by  Mr. 
Butler,  who  has  added  greatly  to  the  Talue  and  utility  of  the  ori- 
ginal work. 


Sect.  5.     By  mhat  words  an  Estate  tail  passes.  537 

And  where  a  testator  devises  land  to  his  heir  at  law, 
after  the  death  of  his  wife ;  here,  as  the  heir  at  law 
is  plainly  excluded  during  the  life  of  the  wife,  un- 
less the  wife  takes  it  nobody  can,  and  it  must  be 
in  nubibus  till  the  wife*s  death.  Therefore  to  avoid 
this  consequence,  the  wife  takes  an  estate  for  her  Iif« 
by  implication. 

■ 

In  the  case  of  Willis  and  Lucas*,  a  testator 
having  two  sons,  devised  his  lands  to  the  younger 
son  for  his  life,  he  and  his  heirs  paying  thereout  a 
rent  to  the  elder  brother  during  his  life,  and  after  the 
death  of  the  younger  son,  and  also  of  his  wife,  to 
the  first  and  other  sons  of  the  younger  son  in  tail ; 
the  younger  son  died,  and  the  question  was  whether 
his  wife  took  any  estate ;  and  it  was  held  she  took  by 
implication  an  estate  for  her  life ;  and  the  ground 
upon  which  it  jvas  so  held,  was  the  plainly  intended 
exclusion  of  the  heir  by  the  devise  of  a  rent  to  him 
during  his  life. 

I* 
,   So  in  Goodright  v.  Goodridge*,  J.  G.  having  two 

sons,  Richard  and  John,  devised  all  his  lands  to  his 
wife  for  life,  and  then  proceeded  thus :  ''  And  my 
will  is,  that  if  my  son  Richard  do  happen  to  die  with- 
out heirs,  then  my  son  John  shall  enjoy  my  lands/' 
and  the  court  held  that  Richard  took  an  estate  tail  by 
implication. 

There  can  be  no  regular  remainder  limited  after  a  AOerad*. 

o  vise  to  A. 

fee-simple :  therefore,  where  an  estate  is  devised  to  f"f*  *>" 

*^  ^  hem,  a  re- 

dne  and  his  heirs,  and  that  if  he  dies  without  heirs,  it  mainder 

over,  upon 

•hall  remain  over  to  another,  this  last  limitation  is  a/s  dyini^ 

'  without  is- 

sue,i8geoe» 
rally  void. 
■  1  P.  Wmi,  471.  I  Willw,  369. 


638  Import  of  Words  and  Phrases.    Chap.  IV. 

Butifiuch  void '.     Nor  can  the  law  help  such  a  devise  by   any 

remainder  *  «•     « 

be  to  a  per-  construction  foF  which  the  will  itself  does  not  afford 

son  who  -.-*  ■  B       1-     . 

night inhe.  somc  argumentative  support.     But  where  the  hmita- 
the  woi3s    tion  over  is  to  one  who  is  a  collateral  heir  of  the  de- 
heirs'  vrui    visee^  the  testator  is  construed  to  mean  by  the  word 
stnied        heirs,  heirs  of  the  body^  and  the  first  devisee  take* 
body.     ^  only  an  estate  tail^  for  it  is  not  possible  that   he 
can  die  without  an  heir^  while  the  person  to  whom 
the  remainder  is  thus  limited^  or  his  issue^  continue 
in  existence. 


Accordingly^  where  a  testator  devised  his  houses  to 
Francis  his  son^  after  the  death  of  his  wife ;  and  if  his 
three  daughters^  or  either  of  them^  should  survive 
their  mother^  and  Francis  their  brother^  and  his  heirs, 
then^  that  they  should  enjoy  the  same  houses  for  the 
term  of  their  lives^  it  was  resolved  that  Francis  the  son 
^  had  but  an  estate  tail  under  this  will;  for  by  '  heirs/ 

in  this  place^  wa^  intended  '  heirs  of  the  body/  be- 
cause^ the  limitation  being  to  his  sisters^  it  was  neces- 
sarily to  be  intended  that  it  was^  if  h^  should  die  with- 
out issue  of  his  body^  for  they  were  his  heirs  colla- 
teral;  and  the  intention  being  collected  by  the  wilt 
the  law  should  adjudge  accordingly  \ 

The  con-  And  the  same  construction  prevails  where  the  re- 
u  the  same  maindcr  is  limited  to  the  heirs  of  the  testator  himself; 
remsinde^r  if  such  hcirs  mu^t  also  be  heirs  of  the  first  devisee. 
to  the  heirs  Thus  in  Nottingham  r.  Jennings'^  where  a  person^ 
tatlr^id^   having  issue  three  sons^  John^  Francis^  and  William^ 

self. 

^<:o.  Litt.  18.  a.  Vaughao,  269. 

*  Webb  V.  Hearing,  Cro.  Ja.  415.  and  seeTyte  v.  WUUs,  &. 
Temp.  Talb.  1.  Morgan  v.  Griffiths,  Cowp.  234. 
^Xk)m.  Rep.  82. 


Sect.  5.  By  what  words  an  Estate  tail  passes.  539 

devised  his  land  to  Francis  and  his  heirs^  and  for  de- 
fault of  heirs  of  Francis,  to  the  heirs  of  the  devisor^  it 
was  said  by  Holt  C.  J.  that  as  the  testator  had  devised 
that  his  own  right  heir  should  take  after  the  death  of 
Francis  without  heirs^  although  his  own  right  heir 
took  nothing  by  the  devise,  (for  he  took  by  descent), 
yet  that  circumstance  shewed  the  testator's  intention 
to  have  been,  that  upon  the  death  of  Francis  without 
issue,  the  eldest  son  should  take,  and  that,  therefore, 
the  word  heirs  must  be  construed  to  mean  issue,  be- 
cause Francis  could  not  die  without  an  heir  as  long 
as  the  testator  had  an  heir. 

But  wher<»  the  devise  was  to  one  and  his  heirs,  and 
if  he  died  without  heirs,  then  to  a  charity ;  this  devise 
over  was  held  to  be  void  *.  And  again,  where  the  tes- 
tator devised  to  his  son  and  his  heirs,  and  if  he  should 
die  without  heirs,  remainder  over  to  another  who  was 
half  brother  to  the  first  devisee:  upon  a  question 
made,  whether  the  first  limitation  was  in  fee  or  in 
tail.  Lord  Hardwicke  said  it  was  a  plain  case,  and  one 
of  those  points  which  the  court  would  not  sufier  to  be 
argued,  as  having  been  determined  before  (5) :  for  . 

'  Attorney  General  v.  Gill,  2  P.  Wms.  369. 


(5)  It  would  be  in  contradiction  to  the  nature  of  a  remainder,  Of  the  pro- 
to  be  limited  after  a  fee ;    for  Lord  Coke  defines  a  remainder  remainder 

to  be  *^  a  remnant  of  an  estate  in  lands  or  tenements,  expectant  vested, 

'       *^  andcontia- 

upon  a  particular  estate,  created  together  with  the  same  at  one  gent. 

time ;"   and  this  is  the  nature  of  a  remainder,   whether  Tested 

or  contingent ;  it  is  that  which  remains  of  the  fee  after  a  particular 

estate  has  been  carred  out  of  it.     At  common  law  there  were  two 

lorts  of  particular  estates — an  estate  for  years,  and  an  estate  for 

life ;  but  by  the  statute  de  donis  another  sort  of  particular  estate, 

the  estate  tail,  was  introduced,  leayingareyersion,  or  remnant  of 


MO  Import  of -Words  and  Phrases.    Chap.  IV. 

this  was  a  devise  over  to  a  stranger^  as  the  law  con- 
sidered him^  and  who  would  not  in  any  event  inherit 
as  heir  to  his  brother\ 

^ifcation"'      Cross  remainders,  or  reciprocal  expectancies,  in 

ofcrosi  re-  succession,  between  several  persons,  to  and  amongst 

whom  an  inheritance  in  land  is  originally  devised,  are 

also  interests  which  may  arise  in  tt  will  without  ex« 

'  Tilbury  v.  Barbut,  3  Atk.  S17. 


the  fee  to  the  donor,  which  is  always  to  be  distinguished  from  a 
possibility  of  reverter,  and  a  right  of  entry  for  a  condition  broken. 

To  satisfy  the  aboTe  definition  of  a  remainder,  it  follows  that 
one  or  other  of  these  descriptions  of  a  particular  estate,  must  first 
be  carred  out  of  the  fee.  If  land  be  conveyed  or  devised  to  A.  for 
his  life,  and  after  A.'8  decease  to  B.  and  his  heirs,  the  estate  Tests 
in  interest,  though  not  in  possession,  and  is  a  proper  vetted  re* 
mainderin  B.  And  this  answers  Lord  Coke's  definition,  for  B.'a  re* 
mainder  passes  from  the  grantor  at  the  same  time  as  A.'s  life  estate 
in  possession.  Again,  if  land  be  conveyed  or  devised  to  A.  for  iife^ 
and  if  B.  die  in  the  life-time  of  A.,  then  after  B.'a  decease  to  C. 
and  his  heirs,  C.'s  estate  is  contingent. 

To  be  a  proper  remainder,  it  must  exist  in  lands  and  tenements, 
and  not  chattel  interests,  which  are  not  the  proper  subjects  of  re- 
mainders in  law.  And  to  be  a  good  contingetU  remainder,  it  is  a 
rule  that  some  vested  estate  of  freehold  must  precede  it ;  which 
rule  arises  from  the  necessity  there  is  for  the  freehold -to  pass  out 
of  the  grantor  at  the  time  that  the  remainder  is  created.  If  I  limit 
an  estate  to  the  use  of  A.  until  C.  return  from  Rome,  and  after 
the  return  of  C,  to^the  use  of  B.  and  his  heirs ;  A.,  in  this  case, 
has  a  particular  estate  which  is  to  last  till  C.'s  return,  which  being 
an  uncertaiu  period,  such  particular  estate  in  A.  is  a  freehold,  for 
it  ma^  last  for  his  life,  and  the  residue  of  the  estate  fifter  C.'s  re- 
turn, is  a  remnant  of  the  fee  expectant  upon  the  particular  estate ; 
but  as  C.'s  return  from  Rome  is  an  uncertain  event,  the  limitation 
ef  such  remnant  over  being  dependent  th^nfsi^on,  b  acontingeol 
remainder. 


Sect.  5.  By  what  words  an  Estate  tail  passes.  541 

press  limitation,  by  force  of  the  implied  intention  of 
the  testator ;  though  it  is  a  settled  rule  that  they  can 
only  be  created  in  a  deed  by  express  limitations^.  The 
formal  limitation,  which  it  is  safest  to  adopt  both  in 
wills  and  deeds,  runs  as  follows : — ''  To  the  use  of  all 

and  every  the  sons  or  daughters,  &c.  (as  the  case  may 

• 

"  Cole  V.  LiTiDgston,  1  Ventr.  224.    Doe  v.  DoryeU,  5  T.  R.  521. 


Mr.  Fearne  has  distinguished  contingexit  remainders  into  four 
sorts : — 

First,  where  the  remainder  depends  entirely  on  a  contingent  de« 
termination  of  the  preceding  estate  itself ;  as  if  A.  make  a  feoff- 
ment to  the  use  of  B.  till  C.  return  from  Rome,  and  after  such 
return  of  C,  then  to  remain  oyer  in  fee,  here  the  particular  estate 
is  limited  to  determine  on  the  return  of  C,  and  only  on  that  de- 
termination of  it  is  the  remainder  to  take  effect ;  but,  that  is  an 
event  which  possibly  may  never  happen,  and  therefore  the  re- 
mainder, which  depends  entirely  upon  the  determination  of  the 
preceding  estate^  is  dubious  and  contingent. 

Secondly,  where  some  uncertain  event,  unconnected  with,  and 
collateral  to,  the  determination  of  the  preceding  estate,  is,  by  the 
nature  of  the  limitation,  to  precede  the  remainder ;  as  if  a  lease 
be  made  to  A.  for  life,  remainder  to  B.  for  life,  and  if  B.  die  be- 
fore A.,  remainder  to  C.  for  life.  So  if  lands  be  given  to  A.  in  tail, 
and  if  B.  come  to  Westminster-hall 'such  a  day,  to  B.  in  fee ;  here 
B.'s  coming  to  Westminster-hall  has  no  connection  with  the  deter- 
mination of  A.^s  estate ;  but  as  it  is  an  uncertain  event,  and  the  re- 
mainder to  B.  is  not  to  take  place  unless  it  should  happen,  such  re- 
mainder is  therefore  a  contingent  remainder. 

Thirdly,  where  a  remainder  is  limited  to  take  effect  upon  an 
•vent,  which,  though  it  certainly  n?nst  happen  some  time  or  other, 
yet  may  not  happen  till  after  the  determination  of  the  particular 
estate ;  (and  it  is  necessary  that  some  preceding  freehold  estate 
should  subsist  and  endure  till  the  contingency  Jiappens,  though  a 
remainder  may  be  so  limited  as  not  to  vest  till  the  very  instant 
mt  which  the  preceding  estate  determines :)  as  if  a  lease  be  made  to 
J.  S.  for  life,  and  after  the  death  of  J.  D.  the  iaods  to  remain  t« 


648  Import  of  Words  and  Phrases,    Chap.  IV. 

be)  and  of  the  heirs  of  their  respective  bodies  issuing^ 
share  and  share  alike^  as  tenants  in  common ;  and  in 
case  there  shall  be  a  failure  of  issue  of  the  body  or 
bodies  of  any  of  such  sons  or  daughters^  then  as  to  the 
part  or  parts^  as  well  accruing  and  surviving^  as  ori* 
ginal^  of  such  of  them  whose  issue  shall  so  fai)^  to  the 


another  in  fee;  now  it  is  certain  that  J.  D.  must  die  some  time  or 
other,  but  his  death  may  not  happen  till  after  the  determination  of 
the  particular  estate  by  the  death  of  J.  S.,  and  therefore  such  re- 
mainder  is  contingent.  So  in  case  of  a  lease  for  life  to  A.,  and  af« 
,  ter  the  death  of  A.  and  M.,  the  remainder  to.  B.  in  fee,  this  is  a  con- 
tingent remainder;  for  the  particular  estate  being  only  for  the  life  of 
A.,  and  the  remainder  not  to  commence  till  after  the  death  of  A. 
and  M.,  if  A.  die  before  M.,  the  particular  estate  will  end  before 
the  remainder  can  commence,  which  is  yery  possible,  and  therefort 
iuch  remainder  is  contingent. 

Fourthly,  where  a  remainder  is  limited  to  a  person  not  ascer* 
tatned,  or  not  in  being  at  the  time  when  such  limitation  is  made; 
as  if  a  lease  be  made  to  one  for  life,  remainder  to  the  right  heirs  of 
J.  S. ;  now  there  can  be  no  such  person  as  the  right  heir  of  J.  S. 
until  the  death  of  J.  S.  (for  nemo  est  haeres  yiTentis)  which  may 
not  happen  till  after  the  determination  of  the  particular  estate  by 
the  death  of  tenant  for  life,  therefore  such  remainder  is  contingent. 
— So  where  a  remainder  is  limited  to  the  first  son  of  B.  who  has 
no  son  then  born ;  B.  may  neyer  haye  a  son,  or  if  he  should,  the 
particular  estate  may  determine  before  the  birth  of  such  son;  there* 
fore  this  remainder  is  contingent. — ^So  if  an  estate  be  limited  to  two 
for  life,  remainder  to  the  survivor  of  them  in  fee,  the  remainder  is 
contingent;  for  it  is  uncertain  who  will  be  the  surviyor. 

Cases  With  respect  to  the  doctrine  adverted  to  in  the  text. — that  a  fee 

wherein 

the  linitiP    Cannot  be  mounted  on  a  fee;  it  may  be  useful  in  a  short  compass  to 

as  beUMT      >1>®^  wherein  limitations  oyer  may  be  inyalid  on  this  ground  of  ob- 

mouoted      jection;  as, 

1.  When  there  is  a  limitation  to  A.  and  his  heirs,  (which  is  a 

pure  fee*simple)  remainder  to  another  who  cannot  possibly  be  heir 

to  A.,  and  his  heirs,  the  llmitat^on  over  is  void.  -^^ 

.» 

?•  When  there  is  a  limitation  to  A.  and  his  heirs,  as  long  as  A. 
and  his  heirs  shall  be  loids  of  the  manor  of  D.|  or  while  B.  or  any 


Sect.  5.  Bif  what  words  an  Estate  tail  passes.  543 

use  of  the  survivors  or  suryivor^  and  other  or  others 
of  them,  equally  to  be  divided  between  them  if  more 
than  one,  share  and  share  alike,  as  tenants  in  com- 
mon, and  to  the  several  and  respective  heirs  of  the 
body  and  bodies  of  such  surviving  and  other  son  or 
sons,  daughter  and  daughters ;   and  if  all  such  sons 


isBue  of  his  body  shall  be  in  existence,  and  when  A.  or  his  heirs 

shall  cease  to  be  lords  of  the  manor  of  D.,  or  after  the  decease  of  B. 

and  failure  of  his  issue,  then  to  C.  and  his  heirs ;  in  either  of  these 

cases  the  remainder  to  C.  is  yoid. 

But  where  an  estate  is  limited  after  a  limitation  of  the  fee,  but  Of  the  na- 

not  so  as  to  await  its  natural  expiration  by  efflux  of  time,  but  so  as  to  rettric- 

happen  within  a  certain  period,  and  then  to  take  place  in  exclusion  tionsof  ex* 
-  f  ^  ^  ^  ecotoryde- 

of  the  first  estate ;  this  ulterior  disposition  of  property,  though  Toid  vises. 

at  common  law,  is  valid  under  the  form  and  character  of  limita- 
tions to  uses  or  executory  devises,  provided  it  be  limited  to  take 
effect  within  a  certain  distance  of  time  allowed  and  prescribed  by 
the  rules,  in  that  respect,  which  have  been  settled  by  a  series  of  cases 
and  authorities. 

What  these  rules  are  has  been  so  clearly  and  concisely  shewn  by 
the  late  Mr.  Serjeant  Williams  in  his  note  to  the  case  of  Purefoy 
V.  Rogers,  2  Saund.  388.  that  it  is  conceived  a  full  extract  from  it 
will  be  the  best  mode  of  completing  the  object  of  this  note,  i.  e.  of 
placing  before  the  reader  a  very  short,  but  faithful  outline  of  this 
difficult  doctrine. 

'^  One  of  the  properties  of  executory  devises  is,  that  they  eannot 
be  aliened  or  barred  by  any  mode  of  conveyance,  whether  by  re* 
covery,  fine,  or  otherwise ;  therefore  until  the  contingency  happens 
upon  which  the  limitation  is  to  take  place,  executory  devises  create 
*  a  kind  of  perpetuity-;  for  which  reason  the  law  has  put  them  under 
some  restraint,  and  circumscribed  the  bounds  within  which  they  are 
to  be  allowed. 

'^  At  first  it  was  held  that  the  contingency  must  happen  within  the 
compass  of  a  life,  or  lives  in  being,  or  a  reasonable  number  of  years 
after ;  at  length  it  was  extended  a  little  further,  namely,  to  a  child 
in  ventre  sa  mere  at  the  time  of  his  father's  death,*  because,  as  that 
contingency  must  necessarily  happen  within  the  usual  time  of  ges- 


&44  Ifnport  of  Words  and  Phrases.      Chap.  IV. 

or  daughters  shall  die  without  issue^  or  there  shall  be 
but  one  such  son  or  daughter^  then  to  the  use  of  such 
one  son^  or  daughter^  and  the  heirs  of  his  or  her  body.** 
This  formal  language^  however,  is  not  indispens- 
able in  a  deed,  and  so  long  as  the  limitations  are  de- 
scribed substantially,  and  in  terms^   it  matters  not/ 


tation,  that  construction  wonld  introduce  no  inconvenience :  and 
the  rule  has  in  many  instances  been  extended  to  twenty*one  yean 
after  the  death  of  a  person  in  being,  as  in  that  case  likewise  there 
is  no  danger  of  a  perpetuity.  Goodtitle  o<  Wood,  Willes  Rep^ 
213.  Therefore  it  is  now  become  an  established  rule,  that  an  exe- 
cutory derise  is  good,  if  it  must  necessarily  happen  within  a  life  or 
Ures  in  being  and  twenty-one  years,  and  the  fraction  of  another 
year,  allowing  for  the  time  of  gestation.  Long  o.  Blackall,  7  Term. 
Rep.  102.  This  rule  was  adopted  in  analogy  to  legal  formal  limi« 
tations,  namely,  for  a  life  or  lives  in  being  with  a  I'emainder  in  tail 
to  unborn  children,  who  cannot  bar  it  tiU  twenty-one,  and  the 
fraction  of  another  year,  since  the  statute  of  William,  if  tenant  for 
life  should  leave  his  wife  ensient.  Porter  v,  Bradley,  3  Term  Rep. 
146."  The  Serjeant  then  states  an  example  of  what  he  calls  the  pro- 
per executory  devise,  which  is  where  an  estate  in  fee  is  devised,  fol- 
lowed by  a  limitation  of  the  inheritance  over  to  another  upon  the 
happening  of  a  particular  event,  and  thus  proceeds : 

'^  2.  There  is  9  mother  species  of  executory  devises,  where  a  tes* 
tator  gives  a  future  estate  to  arise  upon  a  contingency,  or  at  a  cer- 
tain time,  and  does  not  part  with  the  fee,  but  retains  it ;  and  on  his 
death  the  fee  descends  to  his  heir  in  the  mean  time.  1  Salk.  229, 
230.  As  where  a  man  devised  to  his  wife  till  his  son  attained  the 
age  of  twenty-one,  and  then  that  his  son  should  have  the  lands  to 
him  and  his  heirs ;  but  if  he  died  without  issue  before  his  said  age, 
then  to  his  daughter  and  her  heirs,  this  was  adjudged  to  be  a  good 
executory  devise  to  the  daughter,  if  the  contingency  happened,  and 
that  in  the  mean  time  the  fee  descended  to  the  son  as  heir ;  but  if 
he  lived  to  twenty-one,  though  he  died  after  without  issue ;  or  if 
he  left  issue,  though  he  died  before  twenty-one,  the  daughter  could 
vUot  have  the  lands,  because  her  brother  was  to  die  before  twenty* 
•oe^  afid  without  issue  to  intitle  her  to  tak4.    3  Leon.  64.  70. 


Sect.  5.  By  what  wards  an  Mstate  tail  parses.  BjA 

though  the  terms  are  informal^  and  to  a  cortaw  deg^^e 
incorrect'. 

In  a  win,  cross  remainders  may  1)6  jimpjlled,  ivith-  ^"fj*^"* 
out  any  express  limitations,  where  ilv^re  is  evideaee  ^^  mie  of 
furnished  by  the  tenor  of  the  instxumenJt,  to  shew  that  tioo. 

•  Doe  1?.  Wainewrigbt,  6  T.  R.  427- 


Hinde  o.  Lyon.  2  Roll.  Rep.  197.  217.  Boulton's  case.  Pklm.  132. 
S.  C.  1  Eq.  Cas.  Abr.  188.    So  where  a  testator  deTiies  lands  to  A. 
in  fee  to  commeiice  six  months  after  his  decease,  it  is  a  good  exe- 
cutory derise,  and  during  those  six  months  the  estate  descends  and 
continues  in  the  testator's  heir  at  law.  1  Lutw.  708.  Clarke  v. 
Smith)  S.  C.  cited  2  P.  Will.  '43.     So  where  a  man  seised  in  fee  de« 
tiaed  to  trustees  for  500  years  upon  certain  trusts,  remainder  to  the 
first  and  other  sons  of  his  eldest  son  T.,  who  was  then  a  bachelor, 
successifely  in  tail-male,  remainder  over ;  the  limitation  to  the  un« 
born  son  of  T.,  was  held  good  by  way  of  executory  lievise ;  and  it 
was  also  held  that  the  inheritance  descended  to  T.  till  he  had  a  son^ 
or  till  his  death  without  oif^.  Gore  v.  Gore,  2  P.  Will.  28.     In 
this  case  it  is  to  be  observed,  that  the  contingency,  upon  which  the 
executory  devise  is  limited  to  the  first  son  of  T.,  must  in  all  events 
happen  on  the  death  of  T.,  for  it  must  take  place  either  on  the 
birth  of  a  son  to  T.,  or  on  his  death  without  having  had  any  son. 
A  man  having  only  one  sister  and  heir,  who  had  issue  A.,  and 
afterwards  married   W.,   by  whom  she  had  issue  B.  and  M.,  de- 
yised  lands  to  his  sister  until  B.  should  attain  twenty-one,  and  af* 
ter  B.  should  have  attained  that  age  to  B.  and  his  heirs ;  and  if  B% 
should  die  before  twenty-one,  then  to  the  heirs  of  the  body  of  W. 
and  theif  heirs,  as  they  should  attain  their  respective  ages  of  twenty- 
one.   The  testator  died ;  B.  died  before  twenty-one,  living  W.,  and 
afterwards  W.  died.    It  was  adjudged  that  T.  M.  either  as  heir  of 
B.)  in'  as  heir  of  the  body  of  W.,  being  of  age  after  ;tbe  4kath  of 
W.,  took  the  estiite  by  way  of  executory  devise.  Taylor  v.  Btddall, 
d  .Mod.  2S9.    There  M.  who  was  tte  heir  at  the  body  of  W.  could 
ii«t  take  tiii  thedeath  of  W.,  because  nemo  est  hsi^eB  rirentis ;  Aod 
aa  that  h^  •(  tiie  bod/  «C  W.  who  should  altaig  twenly-oae  fliigM 

2n 


546  Import  of  Words  and  Phrases.   Chap.  IV. 

it  was  the  testator's  intention  that  the  estate  should  g;o 
in  that  course  of  succession.  But  it  has  been  said 
that  the  law  never  favours  cross  remainders  even  be- 
tween two  persons  only,  and  that  i)etween  more  than 
that  number,  they  could  hot,  under  any  circumstances, 
be  implied"^,  on  account  of  the  confusion  that  would 

^  2  Roll.  Rep.  282.  Gilbert  v.  Whitty,  Cro.  Ja.  655.  DbTeo- 
port  V.  Oldb,  1  Atk.  579,  580.  per  Lord  Hardwicke. 


not  hare  been  bom  before  his  father's  death,  and  the  estate  could 
not  Test  in  him  till  his  age  of  twenty-one,  it  is  eTident  the  estate 
Bught  possibly  not  hare  rested  under  that  limitation  till  twenty-one 
years  after  a  period  of  a  life  then  in  being.    So  where  a  testator  de- 
vised lands  unto  his  grandson  W.  S.  and  his  heirs ;  but  in  case 
W.  S.  should  die  before  he  should  attain  his  age  of  twenty-one  yearr, 
then  to  his  grandson  T.  S.,  and  if  T.  S.  should  die  before  he  should 
attain  his  age  of  twenty-one  years,  then  to  such  other  son  of  the 
body  of  his  daughter  M.  S.  by  his  son  in  law  T.  S.,  as  should  hap- 
pen to  attain  his  age  of  twenty-one  years  in  fee,  and  for  default  of 
such  issue  remainder  over.     The  testator  died  leaTing  two  grand- 
sons, the  said  W.  S.  and  T.  S.  who  both  died  under  age ;  after- 
wards another  son  A.  of  the  body  of  M.  S.  by  T.  S.  was  boni;  iC 
was  held  by  the  judges  of  the  court  of  K.  B.  upon  a  case  sent  to 
them,  and  afterwards  decreed  by  Lord  Talbot,  that  it  was  a  good 
executory  devise  to  this  after-born  son  A.,  if  he  should  attain  his 
age  of  twenty-one  years :  and  the  judges  decided  it  upon  the  au- 
thority of  the  last  mentioned  case  of  Taylor  «.  Biddall ;  the  record 
of  which  was  searched  and  found  to  agree  in  the  material  parts  of  it 
with  the  printed  report.  Stephens  v.  Stephens,  Gas.  Temp.  Talb. 
238.  In  this  case  the  limitation  was  confined  to  vest  at  the  in&nf  s 
age  of  twenty-one,  which  must  necessarily  happen  within  twenty- 
one  years  after  the  death  of  its  mother  M.  S.  who  was  then  in  be^ 
ing.    So  where  a  devise  was  to  the  child  witii  which  the  testator's 
wife  was  then  ensient,  in  case  it  should  be  a  son,  during  kb  life;, 
and  after  his  decease  then  to  such  issue  male,  or  the  descendlantsof 
auch  issue  male,  of  such  child,  as,  at  the  time  of  his  death,  should 
be  Ma  heir  at  law;  and  in  case,  at  the  tim^of  tike  death  of  sack 


Sect.  5.  By  what  words  an  Estate  tail  passes.  547 

be  likely  to  arise  from  the  division  of  the  estate  among^ 
80  many^  and  the  uncertainty  as  to  what  interest 
would  vest  in  the  survivors'.  But  this  exclusive  doc* 
trine  has  received  considerable  qualification^  and  the 
following  distinction  has  since  prevailed^  viz. :  "  That 
the  presumption  is  in  favour  of  cross  remainders  be- 

*  Holmes  v,  Meynel,  Sir  Thos,  Jones,  173. 


child,  there  shoiLld  be  no  such  issue  male,  nor  any  descendants  of 
ittch  issue  male  then  living,  or  in  case  such  child  should  not  be  a 
son,  then  to  P.  L. ;  it  was  held  that  it  was  a  good  executory  devise 
over  to  P.  L.  within  the  limits  allowed  by  law  with  re:>pect  to  exe- 
cutory devises ;  for  the  devise  over  to  P.  L.  must  take  effect,  if  at' 
all,  after  a  life  which  must  be  in  being  within  nine  mouths  after  the 
devisor's  death.  Long  r.  Blackall,  7  Term  Rep.  100.     This  case,  it 
is  to  be  observed,  begun  with  a  devise  .to  a  posthumous  child  for  life, 
with  a  limitation  ovor^  upon  a  failure  of  issue  of  his  body  at  his 
death  ;  which  of  course  would  include  an  heir  male  then  in  ventre 
sa  mere ;  for  as  the  devise  begun  with  the  allowance  for  the  birth  pf 
JL  posthumous  child,  and  also  might  conclude  with  it,  the  time  might 
be  claimed  twice  over, ;  and  so  the  time  allowed  for  the  birth  of  a 
posthumous  child  after  lives  in  beiug  and  twenty-one  years  might 
be  enlarged  to  two  periods  of  gestation.     And  therefore  in  a  late 
case,  it  was  objected  in  argument,  either  that  the  effect  of  beginning 
an  executory  devise  with  the  life  of  a  person  iu  the  womb  had  es- 
caped the  attention  of  the  Court  of  King's  Bench ;  or  if  that  court 
4]id  take  it  into  their  consideration,  and  meant  to  say  that  the  exe- 
cutory devise  was  nevertheless  a  valid  one,  then  it  was  insisted,  that 
the  opinion  of  the  judges  in  that  case  was  questionable,  as  having 
exceeded  former  determinations,  because  it  added  a  further  period 
to  the  boundary  of  executory  devises,  and  the  decision  had  the  ef- 
fect of  taking  the  life  of  a  person  en  ventre  sa  mere  for  a  life  in  be- 
ing; but  that  objection  was  over-ruled,  and  the  case  of  Long  v. 
Blackall  was  allowed  and  approved  of  as  a  case  of  undoubted  law. 
4  Vez.  Jun.  ^54.  273.  323.  341. 

^^  It  has  been  held,  in  support  of  a  testator's  intent,  that  a  limita* 
^ion  in  a  will  which^  in  one  event,  would  have  operated  as  a  contin* 

2n2 


548  Impart  of  Words  and  Phrases.   Chap.  IV- 

tween  iu>o  and  no  more;  but  wliei*e  the  qo^tion 
arises^  whether  cross  remainders^  are  to  be  hnplied 
between  tnore  than  two,  they  are  rather  to  be  pre- 
Buroed  against,  although  such  presumption  against 
them  may  be  answered  by  circumstances  plainly 
indicating  a  general  intention  which  cannot  be  sa* 


gent  remainder^  but  whidi  erent  did  not  happen,  should  operate  u 
an  executory  derise,  prorided  it  faUs  within  th«  established  rule  of 
law  respecting  executory  demises.  As  where  a  demise  was  to  S.  son 
of  J.  for  life,  remainder  to  his  first  and  other  sons  in  tail-male,  re* 
mainder  to  any  other  son  or  sons  of  the  said  J.  who  had  no  other 
son  then  bom,  remainder  over.  S.  died  in  the  life>time  of  the  tes- 
tator without  issoe,  and  afterwards  the  testator  died;  it  was  held  by 
Lord  Talbot  that  on  the  event  which  happened,  namely,  S.*s  death 
in  the  testator's  life-time,  it  would  best  effectuate  the  testator's  in- 
tent to  constitie  the  limitation  over  to  the  first  and  other  sons  of 
J*,  to  be  an  executory  devise,  though  if  S.  had  sarrived  the  testa- 
tor, they  would  have  operated  as  contingmt  remainders.  Cas. 
Temp.  Talb.  44.  Hopkins  v.  Hopkins.  See  Brownsword  v.  'Ed' 
wards.  2  Vez.  249.  S.  P. 

*^  With  regard  to  executory  devises  it  is  a  rule,  that  wherever  one 
limitation  of  a  devise  is  taken  to  be  executory,  all  subsequent  li^ 
mitations  must  likewise  be  so  taken.  However  it  seems  to  be  es- 
tablished, that  whenever  the  first  limitation  vests  in  pos$esiion,  Chose 
that  follow  vest  in  interest  at  the  same  time,  and  cease  to  be  execu- 
tory, and  become  mere  vested  remainders  and  subject  to  all  the  in- 
cidents of  remainders,  as  appears  by  the  before-mentioned  cases  of 
Stephens  v.  Stephens,  and  Hopkins  v,  Hopkins,  and  also  Doe  o. 
Fonnerau,  Dougl.  487. 

<^  3.  A  third  sort  of  executory  devises  or  rather  ifcquests  is,  where 
a  term  for  years  or  other  personal  e^te  is  bequeathed  to  one  for 
life,  remainder  over  to  another ;  the  remainder  shall  take  efibct  as  an 
executory  bequest.  At  common  law,  if  a  man  had  granted  by  deed 
1  term  of  years  to  A.  for  life,  remainder  over  to  B.,  A*  had  th* 
whole  term  in  him ;  and  therefore  no  remainder  could  be  Umited 
after  it.  But  wheli  long  and  bendficial  terms  came  hit»e,  the  coo* 
venience  of  families  required  'ttiat  they  nSght  he  settled  upon  a 
child,  after  the  death  of  the  parent.    Such  Hmftailons  wvra  sooa 


Sect.  5.  By  what  words  an  Estate  tail  passes.  549 

tigfied  but  by  the  construction  of  cross  remainders/' 
And  this  seems  to  be  nothing  more  than  a  return 
to  good  sense  and  ancient  law;  for  in  Clache's  case^ 
13  Eliz.  where  a  man  having  ksue  Jive  sons^  de- 
vised lands  to  his  four  younger  sons  and  the  heirs 
male  of  their  bodies ;  and  if  they  all  died  without  is- 
sue of  their  bodies^  or  any  of  their  bodies^  that  the 

'  Dyer  30S.  b. 


aUowed  to  be  created  by  mil;  and  the  old  objections  were  re- 
moved by  changing  the  name  from  remainders  to  executory  be* 
quests. 

*•  It  is  an  established  principle  tliat  the  limitation  over  of  a  term 
after  a  general  failure  of  issue  is  Toid,  as  being  too  remote*  Saltern 
V.  Saltern,  2  Atk.  312.  376.  If  however  the  testator  makes  use  of 
words  in  his  will  which  indicate  an  intention  to  confine  the  gene- 
rality of  the  expression  of  dying  zcithout  issue^  to  dying  without 
issue  living  at  the  time  of  the  person^ s  decease^  they  will  be  so  con- 
strued to  effectuate  the  intent.  As  where  a  term  was  bequeathed 
to  H.  for  life,  and  no  longer,  and  after  his  decease  to  such  of  the 
issue  of  the  said  H.  as  H.  should  by  will  tq^poini^  and  in  case  H. 
should  die  without  issue  thep  over  to  A. ;  H.  died  without  issue 
living  at  his  death  ;  those  words  upon  the  whole  of  the  will  were 
construed  to  mean  issue  living  at  his  death ;  because  it  was  to  be 
intended  such  issue  as  A.  should  or  might  appoint  the  term  io^ 
namely,  issue  then  living.  Target  v.  Gaunt,  1  P.  Wms.  432.  So 
where  a  testator  gave  the  residue  of  his  real  and  personal  estate  to 
his  nephews  W.  and  G.,  and  if  either  of  them  should  depart  this 
life,*  and  leave  no  issue  of  their  respective  bodies,  then  he  gave  the 
said  premises  to  D.,  Lord  Chancellor  Parker  observed  that  the  devise 
carried  a  freehold  as  well  as  a  leasehold ;  nevertheless,  he  thought 
it  might  be  reasonable  enough  to  take  the  same  word  in  two  differ- 
ent senses  as  to  the  two  different  estates ;  and  that  as  to  the  free- 
hold, the  construction  should  be,  if  W.  or  G.  died  without  issue  ge^ 
nerally^  and  as  to  the  leasehold,  the  same  words  might  be  construed 
to  mean  a  dying  without  leaving  issue  at  their  death.  Forth  v. 
Chapman,  1  P.  Wms.  667.  Thus  also,  where  a  term  was  bequeathed 
to  T4  son  of  D.  and  S.  and  the  heirs  lawful  of  him  for  ever;  but  iu 


Sbi  Import  6f  Words  and  Phrases.    Chap.  IV. 

A  person  deviled  land  to  his  four  sisters  and  a  niece 
for  their  lites^  share  atid  share  alike^  as  tenants  in 
coititnon  And  not  as  joint-tenants^  remainder  to  their 
fibnfii  gnccessively  in  tail  male^  rem&indet  to  their  daugh- 
ters in  tailj  the  reversion  to  his  own  right  heirs'. 

Lord  Mansfield  said^  that  wherever  cross  remain- 
.  ders  were  to  be  raised  b}-  implications  between  two^ 
and  no  more,  the  preiumption  tfas  in  &voiir  of  ero«8 
remainders ;  ii<rhere  they  were  to  be  raised  between 
niore  than  two^  there  the  presumption  was  against 
cross  remainders ;  but  that  this  presumption  might  be 
answered  by  circumstances  of  plain  and  manifest  in- 
tention either  way.  This  was  a  qualification  of  the  rule 
hdd  down  in  former  cases ;  for  they  seemed  to  say  that 
there  should  not  be  cross  remainder^  between  more 
than  tvt^o ;  buWthe  true  rule  was  to  take  it  with  the 
qualification  above  stated.  Here  the  presumption  was 
against  cross  remainders^  and  judgment  was  given 
th4t  there  were  no  crosi  remainders. 

A  devise  was  in  these  Words  : — *^  To  the  use  of  all 
and  every  the  daughter  and  daughters  of  the  body  of 
P.H.^  and  to  the  heirs  of  her  and  their  body  and 

•  Perrjr  t?.  White,  Cowp.  777. 


was  laid  down  by  Lord  Hale  in  the  aboTe-mentione^  case  of  Pare- 
foj  V,  Rogers^  namely,  ^^  that  where  a  coniingeticy  is  limited  to 
depend  npon  an  estate  of  freehold  which  is  capable  of  supportiog  a 
jremainder,  it  shall  never  be  construed  to  be  au  executory  derise, 
but  a  contingent  remabder  only."  A  rule  which  Lord  Renyon 
in  deliTering  the  opinion  of  the  court  in  Doe  o.  Moigan,  3  T.  R. 
363.  stated  to  have  uniformly  prevailed  without  any  exception  ta 
the  contrary. 


Sect.  5.  I^y  what  w&irds  an  Estate  tail  pas^^s.  553 

bodies  lawfully  issuing* ;  such  daughters,  if  more  than 
one^  to  take  as  tenants  in  common,  and  not  as  joint- 
tenantd ;  and  for  default  of  such  issue,  to  the  right 
heirs  of  the  devisor  for  ever."  There  were  two 
daughters^  and  one  of  them  having  died  an  infant, 
the  question  was  whether  her  sister  became  entitled 
to  her  moiety.  A  case  being  sent  out  of  the  court 
of  Chancery  for  the  opinion  of  the  Judges  of  the 
King's  Bench,  the  certificate  was  : — ''  There  are  no 
i^ords  in  the  instrument  which  intimate  any  intention 
to  limit  over  the  respective  shares  of  the  two  daugh- 
ters dying  without  heirs  of  their  bodies  respectively : 
on  the  contrary,  the  limitation  over  is  of  the  whole 
estate^  limited  to  all  the  daughters,  and  is  to  take 
place  on  the  express  contingency  of  failure  of  all  and 
every  the  daughter  and  daughters,  and  the  heirs  of 
their  body  and  bodies;  and  the  limitation  over  on 
default  of  such  issue  is  to  the  heir  at  law.  Conse- 
quently we  are  of  opinion,  that  as  nothing  is  given 
to  the  heir  at  law,  whilst  any  of  the  daughters  or 
their  issues  continue,  they  must  amongst  themselves 
take  cross  remainders*." 

George  Phipard  devised  all  his  lands,  situate,  &c. 
to  his  brothers  William  and  John,  and  his  sister  Eli-  . 
zabeth,  and  the  heirs  of  their  bodies,  as  tenants  in 
common,  and  not  as  joint-tenants ;  and  for  want  of 
such  issue,  to  his  own  right  heirs  for  ever ;  and  gave 
all  the  residue  of  his  goods  and  chattels,  as  well  real 
as  personal,  to  his  said  brothers  and  sister,  to  be 
equally  divided  betweeen  them.  Upon  a  case  out 
of  Chancery,  Lord  Mansfield  said,  that  the  reason 
given  in  the  old  cases  against  raising  cross  remain- 

*  Wright  V.  Holford,  Covp.  31.  reported  by  the  name  of  Wright 
V.  Englefield,  Ambl.  468. 


b54  Import  of  Words  and  Phrases.    Chap.  IV. 

ders^  to  prevent  the  splitting  of  freeholds^  had  not 
very  great  weight  at  the  time  it  was  given^  and  cer- 
tainly had  none  now.  To  be  sure  where  they  were 
to  be  raised  between  two^  and  no  more^  the  fevoor- 
able  presumption  was  in  support  of  cross  remainders  ; 
where  between  more  than  two^  the  presumption  was 
against  them ;  but  the  intention  of  the  testator  mig|ht 
defeat  the  presumption  in  either  case. 

In  genera],  he  believed,  in  devises  of  this  kind,  the 
intention  of  the  testator  was  in  favour  of  cross  re- 
mainders. But  there  must  be  some  circumstances 
manifesting  such  intention.  In  the  present  case,  the 
testator  had  two  brothers  and  a  sister  ;  if  he  meant 
his  estate  should  have  gone  to  his  heir  at  law,  there 
was  no  occasion  to  make  a  will ;  therefore,  it  was 
clear  he  did  not  mean  his  brother  John  should  take 
as  heir,  or  that  William  should  do  so.  But  he  meant 
that  his  sister  should  be  equally  an  object  of  his 
bounty.  It  was  clear  that  he  meant  no  division  should 
take  place  to  create  an  inequality  between. them  till  a 
failure  of  the  heirs  of  all  their  bodies.  He  therefore 
began  with  the  disposition  thus  :  ''As  to  oU  my  tem- 
poral estate,  I  give  all  my  lands  to  my  two  brothers 
and  my  sister^  and  to  the  heirs  of  their  bodies  law- 
fully begotten." 

These  were  the  words  of  an  ignorant  man,  and 
the  will  was  inaccurately  drawn  ;  for  there  could  not 
be  a  limitation  to  two  brothers  and  a  sister,  and  to 
the  heirs  of  their  three  bodies.  The  court,  therefore, 
must  mould  them  as  near  to  the  intent  of  the  testator 
as  they  could.  The  lands,  he  said,  were  equally  to 
be  enjoyed  by  his  brothers  and  sister,  and  the  heirs 
of  their  bodies.    It  was  impossible  to  have  expressed 


S£CT.  5.   Bif  what  ioords  an  Estate  tail  passes.  555 

his  intention^  t)iat  his  sister  should  take  equally  with 
his  brothers^  more  plainly.  He  meant  his  estate 
should  continue  fettered  with  an  intail^  during  the 
existence  of  the  persons  then  in  beings  and  their 
issue  ;  and  that  his  heir  at  law  should  take  nothing 
till  after  that  intail  was  determined  :  whereas^  if  the 
construction  were  to  be^  that  the  heir  at  law  should 
take  upon  the  failure  of  issue  of  any  one^  the  elder 
or  the  younger  brother^  as  the  case  might  happen^ 
would  then  take  a  fee  in  the  share  of  the  deceased 
brother  or  sister^  and  so  create  an  inequality^  which 
the  testator  never  intended  to  make :  for  it  was  limited 
to  them^  and  the  heirs  of  their  bodies^  and  for  want 
of  such  issue :  want  of  issue  there  plainly  meant  ' 
issue  of  all  of  them.  How  could  it  then  be  execut- 
ed^ but  by  raising  cross  remainders  ?  It  seemed  to 
be  as  strong  a  case  as  that  of  Wright  v.  Holford. 
The  other  judges  concurred,  and  the  court  certified 
that  these  were  cross  remainders  *. 

T.  B.  being  seised  in  fee,  devised  all  his  manors, 
&c.  to  all  and  every  the  daughter  and  daughters  of 
the  body  of  his  daughter  Martha,  and  the  heirs 
male  of  the  body  of  such  daughter  or  daughters, 
equally  between  them,  if  more  than  one,  as  tenants 
in  common,  and  not,  as  joint  tenants ;  and  for 
default  of  such  issue,  he  gave  and  devised  all  his 
said  premises  unto  his  right  heirs  for  ever.  Upon 
a  case  sent  out  df  Chancery  for  the  opinion  of  the 
judges  of  the  King's  Bench,  Lord  Kenyon  said,  that 
as  between  two  only,  it  should  be  presumed  that 
cross  remainders  were  intended  to  be  raised ;  but  if 
there  were  more  than  two,  it  was  necessary  to  resort 

*  Phipard  v.  Mansfield,  Cowp.  797. 


556  Import  of  Words  and  Phrases.    Chap.  IV. 

to  other  words  in  the  will  to  discover  an  intention  to 
raise  cross-remainders  :  but^  here^  there  was  no  doubt^ 
from  the  words  of  the  limitation  over^  but  that  the 
devisor  intended  to  raise  cross  remainders  between 
the  grand-daughters.  The  testator  clearly  intended 
that  the  whole  should  go  together ;  whereas^  if  no 
cross  remainders  were  raised  between  the  grand- 
daughters^ it  would  go  to  the  right  heirs  by  separate 
portions  on  the  death  of  each  grand*daughter^. 

Mr.  Justice  BuUer  said  this  was  a  stronger  case  for 
raising  cross  remainders  than  that  of  Phipard  v. 
Mansfield ;  for  here,  besides  the  words,  '  for  de&ult 
of  such  issue/  namely,  issue  of  all  of  them,  the  de- 
vise over  is  of  all  the  devisor's  estates.  Now,  they 
could  not  all  go  together,  but  by  making  cross  re- 
mainders between  the  grand-daughters. 

The  court  certified,  that  the  daughters  of  Martha 
took  estates  in  tail  male,  with  cross  remainders. 

.  A  person  devised  an  estate  to  all  and  every  the 
younger  children  of  Mary  Poxon,  begotten  or  to  be 
begotten,  if  more  than  one,  equally  to  be  divided 
among  them,  and  to  the  heirs  of  their  respective  bo- 
dy and  bodies,  to  hold  as  tenants  in  common,  and  not 
as  Joint  tenants.  And  if  the  said  Mary  Foxon  should 
have  only  one  child,  then  to  such  only  child,  and  to 
the  heirs  of  his  or  her  body  lawfully  issuing  ;  and  for 
want  of  such  issue,  he  gave  and  devised  the  said  pre- 
mises to  C.  N.  The  question  was,  whether  cross 
remainders  were  raised  between  the  younger  children 
of  Mary  Foxon*. 

•  Atherton  v.  Pyc,  4  Term.  Rep.  710. 
'  Watson  V.  Foxon^  2  Eftst.  R.  36. 


SfXT.  5.  JSy  what  words  an  Estate  taU  paeses  557 

Lord  Kenyon  said,  that  where  cross  remainder 
were  to  be  raised  by  implicatioa  between  two^  and  no 
more^  the  presumption  was  in  favour  of  cross  remaia- 
ders :  wiiere  they  were  to  be  raised  between  more 
than  two^  the  presumption  was  against  them ;  but 
that  presumption  might  be  answered   by   circum- 
stances of  plain  and  manifest  intention  either  way. 
Whatever  was  declaj^tory  of  the  intention  of  the 
party^  he  took  to  be  expressed.     No  technical  words 
were  necessary  to  convey  an  intention  ;  but^  if  taking 
the  whole  instrument  together^  there  was  no  doubt 
of  the  party's  meanings  the  court  arrived  at  the  con- 
clusion.   Now^  here  the  testator  set  out  with  devis- 
ing all  his  farm^  &c.  to  his  daughter  and  grand- 
daughter  for  their  lives,  remainder,  after  the  death  <rf  - 
the  survivor,  to  all  and  every  the  younger  children  of 
Mary  Foxon,  if  more  than  one,  equally  to  be  divided 
amongst  them,  and  ihe  heirs  of  their  respective  body 
and  bodies  as  tenants  in  common :  and,  if  only  one 
child,  then  to  such  only  child,  and  tl>e  heirs  of  his  or 
her  body,  &c. ;  and  for  want  of  such  issue  he  gave 
and  devised  the  said  premises  to'his  son-in-law,  C.  N. 
(what  he  meant  by  the  said  premises  was  evident,  and 
could  not  have  been  rendered  clearer  by  saying,  all 
the  said  premises,   though  it  might  have  served  to 
multiply  words.)      Then,  after  several  limitations, 
and  for  want  of  such  issue,  he  proceeds  to  divide  tfae 
estate  into  thirds,  to  go  to  different  persons  :  till  then 
the  entirety  of  the  estate  was  to  be  preserved,  and 
dl  was  to  go  over  at  the  same  time.    But  great  stress 
was  laid  here  upon  the  word  respective^  as  disjoining 
the  title;  and  the  authority  of  Lord  Hardwicke  was 
referred  to  in  the  cases  mentioned.    No  person  re- 
garded whatever  fell  from  that  great  Jndge,  with  now 
reverence  than  he  did ;  tout  it  was  unworthy  of  his 

s 


558  Impart  of  Words  and  Phrases.    Chap.  IV. 

great  learning  and  ability^  to  lay  such  stress  as  he  -was 
stated  to  have  done^  on  the  word  '  respective.'    Cre- 
ating a  tenancy  in  common^  divided  the  title  as  mucb^ 
whether  the  word  'respective'  was  used  or  not.     And, 
as  to  what  might  have  been  said  by  other  Judges,  with 
reference  to  the  opinion  delivered  in  Comber  t?.  Hill*, 
and  Davenport  v,  Oldis,  in  subsequent  cases  where  the 
word  'respective'  did  not  occur;   feeling  themselves 
right  on   the  principle  on  which  they  proceeded,  it 
was  not  to  be  wondered  at,  that  they  were  desirous  of 
relieving  their  own  minds  from  the  weight  of  Lord 
Hardwicke's  opinion :  but  it  was  too  much  to  infer 
from  thence  that  those  Judges,  therefore,  approved 
of  his  opinion,  or  that  their  judgments  were  govern- 
ed solely  by  that  consideration.     In  the  case  of  Ather- 
ton  V.  Pye,  the  devise  over,  in  default  of  such  issue, 
was  of  aU  the  testator's  said  lands :  and  stress  was 
laid  by  some  of  the  Judges  on  the  word  all,  in  sup* 
port  of  raising  cross  remainders  between  the  issue, 
he  would  not  say  by  implication,  but  by  what  the 
Judges  collected  to  be  the  intention  of  the  testator. 
But  the  word   '  all '  was  not  decisive  of  that  case, 
and,  in  truth,  made  no  difference  in  the  sense ;  for 
a  devise  over  of  the  said  premises,  or  the  premises, 
or  all  the  said  premises,   meant  exactly  the  same 
thing.     Admitting,  therefore,  the  general  iiile,  that 
the  presumption  was  not  in  favour  of  raising  cross 
remainders  by  implication  between  more  than  two, 
still  that  was  upon  the   supposition,    that    nothing 
appears  to  the  contrary,  from  the  apparent  inten- 
tion of  the  testator.     He  had  no  doubt  here,  bat 
that  the  testator  intended  to  give  cross  remainders 
among  the  issue  of  M.  P.  The  devise  over  of  the  pre- 
mises meant  all  the  premises.    He  intended  that  aU 

•  2StnDge,  069. 


Sect.  5.     By  what  words  an  Estate  tail  passes.  559 

the  estate  should  go  over  at  the  same  time.  He 
thought  Lord  Mansfield's  quarrel  with  Davenport  v. 
Oldis  well  founded ;  and  he  agreed  with  the  cases  of 
Wright  V.  Holford,  and  Phipard  v.  Mansfield  ;  and 
he  could  not  distinguish  this  case  from  those.  He 
was  clearly  of  opinion^  that  the  intention  of  the  tes- 
tator was  the  polar  star^  by  which  the  court  should 
be  guided  in  the  construction  of  wills,  where  no  law  ^ 
was  infringed,  &c.  Here  the  intention  was  clear  to 
give  cross  remainders.  The  other  Judges  concur- 
red ;  and  judgment  was  given  ^iccordingly. 

Thus  it  appears,   therefore,   that  by  a  series  of  JV^^^^J 
weighty  decisions,  the  severe  doctrine  of  opposing  the  P^*',"^J^* 
implication  of  cross  remainders  between  more  than  ^o«"  ^f 

*  ^  cross  re- 

two,  has  entirely  given  way  to  the  principle  of  con-  n»indcr« 

suiting  the  testator's  intention,  without  regard  to  tech-  more  than 
nical  phraseology.   If  the  object  of  the  testator  by  the  given  way 
limitation  over,  after  the  devise  to  the  persons  before-  cipie  of 
named  to  take  as  tenants  in  common  in  tail,  appears  uic  testa^ 
to  be  to  limit  the  estate  entire  and  unbroken  to  those  tiou. 
in  remainder,  and  not  till  after  the  failure  of  all  the 
issues  of  the  persons  so  previously  entitled  as  tenants 
in  common,  to  efiectuate  that  intent  cross  remain- 
ders will  be  implied  among  such  tenants  in  common. 
And  very  slight  verbal  particularities  have  been  con- 
sidered as  marks  of  such  intention.     Thus  in  Roe  v. 
Clayton  ',  it  seemed  to  weigh  much  with  the  court 
that  the  limitation  over  was  a  devise  of  all  the  estate. 
And  in  the  subsequent  case  of  Doe  d.  Gorges  v. 
Webb  ^  where  the  testatrix  devised  the  premises  to 
her  daughters  as  tenants  in  common,  and  the  heirs  of 
their  bodies,  and  in  default  of  such  issue,  gave  the 
same  to  her  owa  right  heirs  for  ever;  the  word 

f  6  Eait,  628.  «  1  Taimt.  S34. 


BiBO  Import  of  Words  and  phrates.    Cqap.  IV, 

'aame'  wab  considered  09  shewing  that  the  lestator 
meai^t  to  gi^e  qU  together  to  the  deyisee  over. 

In  a  very  lute  cafie  in  Chancery  ^  hQweyer^  I/wd 
EUon  did  not  seem  to  think  the  jeasojiing  from 
thc3e  exprefisions^ '  all/  or  '  all  the  premises/  or  ^the 
same/  very  satisfactory.  But  his  Lordship  fuUy 
adopted  the  opinions  of  the  Judges  in  the  later  cases^ 
M  to  the  improper  stress  laid  by  Lord  Hardwicke^  in 
Davenport  v.  Oldis^  on  the  purport  of  the  words  seve- 
ral and  respective  in  the  devise  to  the  persons  and 
their  issues  in  tail ;  since  the  words  ^'  to  take  as  te- 
nants in  common/'  do  equ^ly  without  these  words 
import  estates  in  severalty ;  and  the  estates  of  tenants 
in  common  do^  as  such^  without  more  words^  descend 
to  their  issues  respectively. 

* 

Upon  the  whole  it  may  be  doubted  whether^  con- 
sistently with  the  spirit  of  the  modern  cases  upon 
this  subject^  which  evidently  shew  a  strong  disposi- 
tion to  take  cases  out  of  the  influence  of  the  supposed 
ruk  of  presumption  against  the  implication  of  cross 
remainders  between  more  than  two^  such  distinction 
between  the  cases  grounded  on  the  difference  of  num- 
ber has  in  reality  any  longer  a  practical  existence ; 
for  it  will  be  difficult  to  undei^tand  the  proposition 
that  Uie  courts  lean  one  way^  and  the  presumplimi  of 
law  another.  And  it  must  be  difficulty  if  not  impos- 
sible, to  apply  this  supposed  difference  of  presump- 
tion to  those  numerous  cases  where  the  devise  is  not 
to  individttals  named  and  ascertained^  bat  to  the  &- 

^t  GdMQB  p.  Stephflns,  17  Vex.  Juo.  64. 

'  1  AtJu  ^70.  d3Q.    See  alio  Comber  7..  liiU^  2.SlraQj;6,  MO* 
and  Williams  v%  Browne^  996. 


Sficr.  6.    By  what  words  an  Estate  for  lift  wUl  pass.         56^ 

ture  children  of  persons  having  none  at  the  time  of 
the  devise ;  for  if  these  presamptions  are  to  be  con- 
sidered as  founded  upon  the  intention  of  the  testator, 
such  intention  in  the  case  last  supposed  must  be  in- 
ferred as  provisionally  and  in  prospect  contemplating 
the  possible  altertaatiye  of  the  objects  of  the  devise 
being  two  and  no  more^  or  above  that  number^  and 
trailing  for  a  different  construction  as  the  event  may 
#hape  the  case. 


Section  VI. 


By  what  vords  an  Estate  for  life  only  wiU  pass. 

IT  seems  to  be  a  safe  and  fundamental  principle  in 
the  construction  of  wills^  that  it  shall  be  made  accord-* 
ing  to  the  rules  of  the  common  law  in  respect  to  estates 
limited  or  conveyed  by  deeds^  unless  there  is  some- 
thing clearly  to  be  collected  from  the  will  itself  dis- 
closing a  different  intention  in  the  testator  (1).  And 
it  will  be  useful  as  a  check  upon  the  zeal  sometimes 
discovered  for  executing  the  supposed  intention  of  a 
testator,  to  remember   Lord  Chancellor  Harcourt's 


(1)  Garth.  5.  per  BridgmaD,  C.  J.  who  cites  ^Tild's  case,  6  Rep. 
16t  IB  fupportof  thepositton. 

29 


56S  Import  of  Words  and  Phrasei.    Chap.  lY^ 

obserration  in  Bale  v.  Coleman',  that  *' the  intent 
which  ought  to  govern  must  be  a  certain  and  mani- 
fest intent,  and  not  an  arbitrary  one ;  it  must  be  ac- 
cording as  it  appears  upon  the  will,  and  according  to 
the  known  rules  of  law  ;— it  is  not  to  be  left  to  a  la- 
titude, and  as  it  may  be  guessed  at,"  (2) 

•  See  Vin.  Abr.  tit.  Iter.  (D.  b.)  7  MSS.  Rep. 


General  (3)  Xhe  following  general  rules  respecting  the  construction  of 

#      the  con-       wills  seem  to  be  pretty  steady  in  their  application. — The  constmc- 

•troctionof  ^j^jj  ^f  ^iiig  „j^gt  1,^  the  5a„,e  in  courts  of  law  and  equity,  1  BL 

Rep.  377.  Words  tending  to  disinherit  the  heir  at  law,  will  not 
haye  that  effect,  unless  the  estate  b  completely  devised  to  another* 
Dougl.  763.  The  common  expression  in  the  books  that  an  heir 
shall  not  be  disinherited,  except  by  express  words,  or  necessary 
implication,  is  incorrect :  the  proper  terms  of  the  rule  are,  that  the 
intent  of  the  testator  ought  to  appear  plainly  in  the  will  itself,  other- 
wise the  heir  shall  not  be  disinherited.  Moon  d.  Fag  v.  Heaseman^ 
Willes,  141.  And  where  there  is  no  ambiguity  it  has  long  ago 
been  said  by  great  authority,  Ihat  a  devisee  is  as  much  favoured  as 
an  heir  at  law.  6  Mod.  133.  2  Yern.  340.  per  Holt  C.  J.  in  Falk- 
land V,  Bettie.  The  order  of  words  is  not  to  be  regarded^  but  a 
transposition  may  be  made  to  render  a  limitation  or  disposition  sen-> 
sible,  Hob.  75.  Spark  v.  Purnell,  2  Vez.  3^.  East  v.  Cook,  id. 
74.  Duke  of  Marlbor6u^h  v.  Lord  Godoiphin,  id.  248#  and  s^ 
Brice  v.  ^iith,  Willes,  1.  In  respect  to  utrMch  4  cotirt  of  eqtdty 
has  no  tnore  power  thto  a  court  of  law.  And  this  can  only  be  done 
to  come  at  fhe  meacning  of  the  testator,  and  not  to  alter  or  affect  the 
operation  of  the  deTise :  it  ought  never  to  be  done  where  the 
words  are  plain  and  sensible,  much  less  to  let  in  different  devisees 
or  legatees  in  a  will:  for  to  do  that  would  be  to  make  a  new  will, 
ibid,  et  vid.  2  Leon.  165.  Blackler  v.  "W^b,  2 1^.  Wihs.  384. 
Repugnant  words  may  be  rejected.  Boon  v.  Cornyforth,  2  Vex. 
978.  C6le  v.  lUwlfnBon,  ^  Lord  Raym.  831.  The  devise  of  a 
trust  is  to  be  construed  in  the  same  manner  as  that  of  a  legal  es- 
iate^  and  not  to  lie  Varied  by  Bnfosequelit  accldeatl.    Atifiitsoii  9. 


Sect.  6.    1^  wkeA  word$  an  Etfateffir  1^6  vaUl  pass.        §§S 


If  there   are    no  exprepsioQs  in    a  }tfjil  gi^ipg  "Whue 
in  4^edL  terras  an   estate  of  inhejritance^  opr  ^ny  nov^ffcti 
plain  gtounds  for  inferring  an   intentipn    to  give  fohe^aTcc 
such  estate^  nothing  passes  away  from  ih^  Jtieijr  j|t.  muD^for 
law  beyond  an  estate  for  life.     Therefore^  as  before  aolmen^ 
has  been  observed,  a  devise  of  land  to  a  person  ge-  do|^aM%- 


Hatchinton,  3  P.  Wms.  2^.  The  intent  of  thatestatprisMl^e  th/ib 
rale  of  conitraction  if  the  words  will  hear  it  out ;  but  if  thp  fprc^  qC 
t|ie  words  be  sach  that  the  intent  cannot  be  complied  with,  thexnleafT 
law  must  take  place,  Brownsword  v,  Edwards,  S  Yea.  249.  iLoose^ 
general,  and  doubtful  words  may  be  rejected  as  surplusage,  wher^ 
they  oppose  a  plain  precedent  devise,  or  the  broa^and  manifestiDteut 
of  the  testator.  Hob.  65.  6  Mod.  112.  Wills  should  be  so  construed 
as  to  preserve  estates  in  the  intended  channel  of  descent,  Cro.  Car. 
18d.  1  I<eoji.  285.  2  .Vea.  615.  23tr.  798.  Eflfect  ought tobegiren, 
if  possil)le,  to  the  whole  ^ilU  and  a  codicil  isto  be  considered  as  part 
9f  it,  ,Gray  u.  jMinethprpc,  fi  Vez.  Jun.  105. ;  and  a  constructioa 
may  be,  n(iade  to  support  the  intention  upon  the  t^tofc  will,  ev.ea 
against  strict  grammatical  rules,  1 1  Vez.  Jun.,  148.  ,But  an  ey presa 
diiy^osition  cannpt  be  controylf^  by  Inference,  Collett  o.  lAwrjence^ 
1  Vez.  Jun,  269.  IVoids  of  desire  are  of  imperative  obj^tion, 
if  the  object  be  certain,  Ecples  v.  England, .  Free,  in  Ch^  200. 
Harland  u.  Trigg,  1  ,Pro.  G.  C.  142.  Pierson  o.  Camftt,  2  3ro. 
C.  C.  38. ;  unless,  ^ere  is  plainly  a  discretion  intended  to  be^gi^en, 
CunUfie  r.,CunlAfie,,Ambl.  586.  Morris  v.  the  Bishop  of  ^pixr)\^my 
10jirez#.Jun..  522.  If  a  testator  uses  technical  phrases  he  must  b» 
supposed  to  uiiderstai^  them,  unless  by  other  parts  .of  the  will  h^ 
mapifests  Jthe  contrary,  Phillips  r.  parth,  3,Bro.  C.  C.  60.  Green 
o.  Howaifd,  l.Bro..  C.  C.  31.  3  Bro.  C  C  2^4.  Aqd,  p^imi  faqjey 
words  must  be  understood  in  their  legal  sense,  unless  a  contrary 
iqtei^t  plainly  appear,.  Hoi  I  o  way  r.  Holioway,  5  Vez.  Ji^., 401. 
It  fs  an  universal  rple,,  tjiat  woi^s  having  an  obvious  constructioiij 
axe  not  to. |>e  rejected  upon  a  suspicion  that  the  testator  ,0^d  opt 
^ow  ,wb?t he  uu^^nt  by  them^^MUp^r  v..Slater^  8  Vez.  Jun,  205.  (f 
^  ta^ttt^r  Qxprefses.hin^s^f  incorrectly  ,the  court  willsupp)y  proper 
VP!^a.lf .tie  BJWUi>g,dis<iincay  appear,  JJjijdson  r^JIay,,  ajSro^C.  p. 

2og 


664  Impart  of  Wards  and  Phrases.    Chap.  1Y. 

TisM  tdcci  nerally  ^  disposes  of  nothing  but  an  estate  for  the  life 

tate  for      of  the  devisee^  and  the  addition  of  the  word  '  assigns' 

will  not  enlai^  it.     Accordingly^  if  a  man  devise  in 

tiie  following  'manner*^      ^'  I  devise  Bfaick  Acre  to 

^  Fairfax  v.  HeroD,  Prec.  in  Ch.  68. 


*  Yin.  Abr.  tit.  Der.  (Q.  a).  But  if  a  man  derae  Black 
Acre  to  one  In  tail,  and  also  White  Acre,  the  devisee  will  hiaYe  an 
estate  tail  in  White  Acre  also,  for  this  is  aU  one  semiemeey  ibid. 
And  so  it  has  been  held  that  if  in  the  first  clause  no  deeitee  is  nanudf 
as  where  a  testator  says,  ^^Item,  I  give  the  manor  of  D.,  Item,  I 
give  the  manor  of  S.  to  J.  K.  and  his  heirs,"  this  shall  be  refened 
to  both  the  manors,  and  J.  K.  will  haTe  the  fee  in  both.    Ibid* 


404,  Doe  d.  Leach  v.  Mecklem,  6  East,  480.  Bat  mistakes  m  a 
will  are  never  to  be  intended  if  a  reasonable  construction  can  be 
found  out.  Purse  V.  Snaplin,  1  Atk.  415.  General  words  will  be 
eontrouled  to  render  the  whole  will  consistent,  Whitmore  u.  Trelaw^ 
ney,  6  Vez.  Jun.  1S9.  Where  there  is  no  connection  by  gramma- 
tical construction,  or  by  direct  words  of  reference,  or  by  the  de- 
claration of  some  common  purpose,  between  distinct  derises  In  a 
will,  the  special  terms  of  one  devise  cannot  be  drawn  in  aid  of  the 
construction  of  another,  though  in  its  general  terms  and  import  It 
may  be  similar,  and  apply  to  persons  standing  in  the  same  degree 
of  relationship  to  tiie  testator,  Wright  ez  dem.  G>mpton  o.  Comp- 
ton^  y  East,  907.'  In  trying  the  meaning  of  phrases  used  in  a  wiH 
all  circumstances  may  be  looked  at,  in  which  the  court  mi^t  have 
been  called  upon  to  determine  the  meaning  of  the  same  phrases  ap- 
plied to  a  different  state  of  (acts,  Earl  of  Radnor  o.  Shalto,  It 
Vex.  Jun.  457. 

'  Every  word  ought  to  have  an  effect  if  possible,  and  not  incen- 
dstent  with  the  general  intention,  Srhich  If  maiufest  is  to  oontroul, 
Blandford  v.  Bbmdford,  Roll.  R.  319.  Constantine  9.  Constantine, 
0  Yez.  Jun.  100.  The  general  words  of  a  will  may  be  restrained 
In  cases  where  it  appears  that  the  devisordid  not  intend iouse  ttem 
ill  tiieir  general  sens^  Strang  v«  Teata^  2  Burr.  9IS*  sad  Doe  on 


Sxcfr.  6.    By  what  wordB  an  Estate  for  l^  will  pass.       666 

my  daughter  F.  and  the  heirs  of  her  body  begotten ;. 
Item^  I  devise  to  my  said  daughter  White  Acre-;"  the 
daughter  shall  have  but  an  estate  for  life  in  White 
Acre ;  for  the  word  '  item'  has  not  the  force  of  the 
words  '  in  the  same  manner/  or  '  in  form&  prsdictfi/  - 


>^a 


4em.  Reade  &•  Reade,  8  T.  R.  118.;  but  the  safest  coarse  is  to 
abide  by  tl^e  words ;  unless  upon  the  whole  will  there  b  some*, 
thing  amounting  almost  to  demonstration,  that  the  plain  meaning. 
lof  the  words  is  not  the  meaning  of  the  testator,  9  Vez.  Jun.  205^ 
In  every  will  tliere  is  a  tacit  condition  both  in  law  and  equity,, 
that  whoerer  wonld  deriTe  a  benefit  under  it  must  acquiesce  in 
the  whole  of  it,  howerer  disjointed  the  parts,  Molyneuz  v»  Scott,: 
1  Bl.  Rep.  377. 

Croke,  Justice,  laid  down  three  rules  which,  he  said,  if  ob« 
senred,  would  open  all  the  doors  in  every  will :  1st.  No  will  ought 
to  be  construed  per  parcella  but  by  the  entirety  ;  2d.  No  contra- 
riety or  contradiction  to  be  admitted;  3d.  No  nugation,  nor  any; 
thing  nugatory  ought  to  be  in  a  will ;  2  Bulst.  178. 

The  same  word  in  different  parts  of  the  same  will  should  be  con- 
strued in  the  same  sense,  Whitmore  o.  Lord  Craven^  2  Ch.  Ca.  169* 
unless  the  general  intention  calls  strongly  for  a  difference  of  con* 
struction ;  and  sometimes  they  may  hare  a  different  force  as  applied 
to  d^ereni  subfedij  Forth  v.  Chapman,  3  Yez.  616.  It  is  an  ordi- 
nary rule  that  where  a  former  clause  in  a  will  is  ezprasy  posUhcp 
and  jNVfsciifar,  a  subsequent  clause  shall  not  enlaige  it,  Roberts  o. 
KiflBn,  Bam.  C.  R.  261.  Constructions  of  wills  shall  be  made 
according  to  estates  at  common  law  by  deedy  unless  something  in 
the  intent  of  the  will  appear  to  the  contrary,  Carth.  5.  per  Bridge 
man,  C.  J.  cites  6  Rep.  16.  Wild's  case.  Wills  in  general  are 
construed  from  the  making^  unless  circumstances,  or  the  tenor  of 
them,  shew  that  the  construction  should  be  from  the  detUh^  but  the 
intermediate  time  is  not  to  be  regarded,  1  Vez.  295. 

The  intention  of  a  testator  must  be  construed  in  consi^tencj 
with  the  rules  of  law,  so  as  not  to  be  considered  as  intending  to 
limit  a  fee  upon  a  fee ;  or  to  create  a  perpetuity ;  to  make  a  chat- 
tel descendible  to  heirs  s  to  put  the  freehold  in  abeyance;  orte 


572  Impoft  of  Words  and  Phra$es.    Chap.  IY. 

Lord  Kenyon  said  that  where  a  devUee  is  directed 
to  pay  an  annual  rent  charge^  or  a  solid  sum  to  ano- 
ther person/  out  of  the  estate  devised^  it  had  been 
properly  decided  that  the  devisee  should  take  a  fee^ 
because  he  might  be  a  loser  unless  the  estate  in  his 
hands  were  at  all  events  sufficient  to  enable  him  to 
bear  those  charges.  Where  a  sum  of  money  vras 
given^  it  might  be  payable  before  the  rents  became 
due :  and  where  an  annual  charge  was  made  on  the 
estate^  it  might  continue  beyond  the  life  of  the  de- 
visee^ and^  therefore^  it  was  necessary^  in  both  those 
eases^  that  the  devisee  should  have  a  permanent  fund. 
This  case  had  been  compared  to  that  of  Doe  v.  Ri« 
chards"*^  but  there  the  words  were^  *'  my  legacies  and 
funeral  expenses  being  thereout  paid;"  which  im- 
ported that  those  sums  were  to  be  paid  by  the  devisee 
out  of  the  interest  given  to  her :  and  if  she  had  died 
immediately  after  the  devisor^  and  had  only  taken  a 
life-estate^  the  fund  out  of  which  she  v^s  to  bear 
those  charges  might  have  failed.  The  court  was 
therefore  compelled  to  make  that  decision^  and  he 
was  now  perfectly  satisfied  with  it.  But^  in  the  case 
before  the  courts  the  words  of  the  will  were^  ^'  afker 
payment  of  my  just  debts  and  funeral  expenses.** 
Now^  supposing  the  devisor  had^  in  the  begmning  cyf 
the  will^  charged  his  debts  and  funeral  expences  on 
his  real  estate^  and  had  then^  after  a  series  of  limita- 
tions^  devised  to  his  wife^  in  the  words  now  used,  it 
could  not  have  been  contended^  that  such  a  charge 
en  the  real  estates  would  have  passed  the  fee  to  his 
wife  ;  and  if  not^  the  place  in  which  the  same  words 
were  introduced,  could  not  vary  the  question.    He 

■  3  T,  R.  356. 


Sscr.  €.  By  i»kat  words  an  E^atefor  J^  will  pass.        £(67 

iBdces  im  wiU  in  Uiis  manner^  ''  I  deviQe  the  moiety 
cf  my  hoase  to  my  wife  for  her  Ufc ;  Item,  I  devise 
Ihe  otfaer  moiety  of  my  houi^e  to  J.  S. ;  Item,  I  de- 
vise to  J.  $.  ^11  tbe  $9id  hoa$e,  aad  i^l  Uie  lapd  that 
appertains  to  it  after  the  death  of  my  said  wife ;"  J.  $. 
will  take  only  an  estate  for  life  in  the  premises  after 
ihe  death  of  the  wife  ^ 

80 if  I  devise  Black  Acre  to  J.  S.  Item,  Idevi^ie 
White  Acre  to  J.  S.  andKis  heirs,  it  is  only  an  estate 
for  life  in  Black  Acre ;  for  the  Item  has  no  depend- 
ance  upon  the  first  clause,  but  is  distinct  and 
several. 

.  The  caaes  of  Denn  v,  Gaskin  ^  and  Right  v.  Side- 
•botham"*,  have  been  already  produced  as  instances  of 
ibe  rule  which  will  not  suffer  a  greater  estate  than  for 
the  life  of  tbe  devisee  to  pass  by  a  will  without  proper 
words  of  limitation,  or  a  plain  indication  on  the  face  of 
the  instrument  of  an  intention  in  the  testator  to  give 
an  inheritance.  The  words  of  Lord  Mansfield  in  the 
last-mentioned  case  are  very  declarative  of  the  law 
4III  this  sulgect. 

"I  verily  believe,"'  said  his  Lordship,  ^'that  almost 
in. every  cgse,  where,  by  law,  fi  general  devise  of 
lAiidsiis  reduced  to.  an  estate  for  life,  the  intent  of 
tbe  testfktor  is  thwarted;  for  ordinary  people  do 
<not  distinguish  between  re^l  and  personal  property. 
The  rule  of  law,  .however,  is  establiabed  and  certain, 
)th^t  express  words  of  limitation,   or  words  tanta* 

•  :yiD..Abr.  tit.  Dev,  (Q*  a*)  *  C«wp.  S^bf.  ante,  Sect.  4. 

•  Bc«pgl.;769.iwif,§ect*.4. 


568  tnip&rl  of  Words  and  PhrMes.    Caaf.  IT^ 

mounts  are  neeeswry  to  pass  an  estate  of  infaeritaace, 
'  all  my  estate/  or  '  all  my  interest/  will  do ;  but '  ril 
my  lands^  lyiiig  in  such  a  place/  is  not  sufficient; 
such  words  are  considered  merely  descriptive  of  the 
local  situation^  and  only  carry  an  estate  for  life ;  nor 
are  words^  tending  to  disinherit  the  heir  at  law^  snf* 
ficient  to  prevent  bis  takings  unless  the  estate  is  given 
to  somebody  else.  I  have  no  doubt^  but  that  the  tes- 
tator's intention  here  was  to  disinherit  his  heir  at  law, 
as  well  as  in  the  case  of  Denn  v.  Gaskin  ;  but  the 
only  circumstance  of  difference  between  that  cue 
and  tbis^  and  which  has  been  relied  on  a»  in  favour 
of  the  defendants^  if  the  testator  Imd  any  meaning 
by  itj  (which  I  do  not  believe  he  had)  rather  turn* 
the  other  way ;  because  he  uses  different  words  in 
devising  diflerent  parts  of  his  estate.  I  think  we  are 
bound  by  the  case  of  Denn  v,  Gaskin/'  Judgment 
that  the  widow  took  only  a  life  estate  in  the  kst-men- 
tioned  premise!^. 

So  in  another  case^  where  C.  B.  being  seised  and 
possessed  of  freehold  and  leasehold  property^  lyii^ 
contiguouSji  and  demised  together^  made  his  will  and 
devised  to  his  wife  all  his  freehold  and  leasehold  mes- 
suages^ &c.  and  all  his  estate  .and  interest  therein, 
for  and  during  her  natural  life^  and  after  her  decease, 
he  devised  the  said  messuages  to  his  sisters-in-Isw, 
M.  S.  and  M.  B.^  as  tenants  in  common ;  but  in  case 
his  mother  should  give  any  disturbance  to  bis  wife, 
then  his  will  was,  that  the  same  should  go  to  his  kins* 
man,  W.  B.:»  his  heirs  and  assigns  for  ever;  and 
charged  his  estate  with  the  payment  of  all  his  just 
debts,  to  be  paid  out  of  the  yearly  rents  of  his  estates 
by  his  said  wife.    Lord  Mansfield  said,  there  *were  no 


&ct.6.   Sy t/Aat wards wn MlstiHe ferine wtU pair.        M9 

words  of  limitation  adkfed  to  this  deviiBe^  and  there- 
fore^ that  it  was  clear^  by  the  mle  of  hiw,  that  it  was 
only  an  estate  for  life,  unless  it  could  be  found  from 
the  whole  of  the  will  taken  together,  and  apj^ied  to 
the  subject  matter  of  this  devise^  that  the  testator's 
intention  was  to  give  a  fee ;  and,  accordingly,  judg- 
ment that  the  sisters-in-law  took  only  an  estate  for 
life^ 

Sir  R.  Worsley,  being  seised  in  fee  of  the  pre- 
mises in  question,  devised  them  to  trustees,  upon 
trust  that  they  should  stand  seised  thereof,  to  the  use 
of  his  grandson  Robert,  Earl  of  Granville,  for  life, 
remainder  to  his  first,  and  other  sons  in  tail  male  ; 
remainder  to  Lady  Carteret  for  life;  remainder  to 
her  first  and  every  other  sons  in  tail  male,  and  in  de- 
fault of  such  issue,  ''  to  the  use  of  all  and  every  the 
daughter  and  daughters  of  the  body  of  the  Lady 
Carteret,  lawfully  issuing,  as  tenants  in  common,  and 
not  as  joint-tenants,  and  in  defiiult  of  such  issue,  to 
the  use  and  behoof  of  his  own  right  heirs  for  ever  '. 

Lady  Carteret  had  one  daughter.  Lady  Catherine 
Hay ;  and  the  question  was,  what  interest  she  took 
under  this  devise  ?  A  case  was  sent  out  of  Chancery 
to  the  Court  of  King's  Bench,  for  their  opinion. 

Lord  Kenyon — ^The  general  rule  which  is  laid 
down  in  the  books,  and  on  which  alone  courts  can 
with  any  safety  proceed  in  the  decision  of  questions 
of  this  kind,  is,  to  collect  the  testator's  intention. 


'  Roe  V.  Blackett,  Cowp.  235. 

'  Hay  V.  Earl  pf  CoTtintiy,  3  Tem  Rep.  SS. 


676  Impcrt  of  Words  and  Fkrmes.  Chap.  IT. 

her  8on8  an  estate  tail^  the  law  must  have  taken  place, 
notwithstanding  any  subsequent  clause  or  declaration 
in  the  will,  that  they  should  not  have  power  to  dock 
the  entail.  And  this  ajs^ees  with^  and  well  explains, 
what  was  said  by  Lord  G.  Harcourt  in  Bale  v.  Cole- 
man^ that  '^  the  intent  must  be  construed  accor^ng 
to  what  appears  upon  the  will^  and  according  to  the 
knoum  rales  of  law.'* 

It  appears  that  the  decision  in  the  case  just  above 
stated  was  grounded  upon  the  latitude  afforded  to  the 
court  to  interfere  in  moulding  the  settlement  of  which 
the  will  was  directory,  according  to  Uie  spirit^  tfaoogfa 
not  according  to  the  letter  of  the  will.  But  where  the 
devise  is  immediate  in  its  operation^  not  directing  a 
settlement,  but  settling  the  estate  by  positive  limita- 
tions, even  though  the  subject  of  the  devise  is  a  trust 
estate,  such  equitable  limitations  seem  to  be  subject 
to  the  same  strict  construction  as  legal  estates,  and  to 
afford  no  room  for  the  exercise  of  judicial  discretion 
in  departing  from  the  letter  of  the  will  to  effectuate 
the  general  and  presumable  purposes  of  a  settlement. 
And  such  appears  to  have  been  the  principle  which 
governed  Lord  Harcourt  in  his  reversal  of  the  decree 
of  Lord  Cowper  in  Bale  v.  Coleman  ^ 

In  that  case  the  testator  devised  to  trustees  and  their 
heirs  for  payment  of  debts  and  legacies,  and  after 
debts  and  legacies  paid,  willed  that  one  fourth  part 
should  be  and  remain  in  trtist  for  E.  for  life,  vntb 
power  of  leasing ;  and  after  her  decease,  in  truU  for 
C.  for  and  during  the  term  of  his  life^  with  like  power 
of  leasing^  and  after  his  decease  to  the  heirs  mate  of 

f«Vsra.«70. 


9|SCT.  61,  By  tA&a<  Wr4i$  an  JSeUU^fyr  l^e  will  pass.         ^ 

the  bo(^.  qt  C,  r^maiodei'  qicer.  TI)i/9  beiii^g  tl^  de*. 
TMf(i  of  a  Umi,  Lord  Cowpei:  cojficeiy'ed  U^ii  it  diif^e^ 
froo  ^n  iaim«4^^  4ftvi»^,  tnd  tfigt  it  vraft  ija^fef ?  ta 
1)0  Iflod^  ^pQ9.i9  ^Q  nature  of  na  ^xect^o^  d^iTisfti 
Ip  tidiij»  (ffiiQt  skfter  d«htft  paid:;  qr  in  the  oatvjr?  «^ 
twriniie  ariictes^ ;  b^aidesihAt  the  eimblnig  C*.tA W^ 
l^Aee^  aeQme.4  toJfi^ly  very  atroi^y^  that  he^  vwk  to 
iMKft  oa  P9WM  to  dispose  q£  the  inheci^cie^ 

Bqi  th^  smn^  c%ii8«  comiag  on  before*  h^r^  H^t 
courts  Kp(»pi  a  veheaf ingj  be  m\i  the  caae  o|  a  i^ill  difr 
fcjFed,  ff oRi  the^  qak^s.  of  inar]piage  articles^  i^  the  n^r 
t^re  of  whiQh  the  itoue  vy;ere  partifiularly  comidered^ 
iiad>)oQk^  upon  as,  piurchasers*  That  in  caa^s  of  1^ 
w4l.  virh^ri^  th^  parties  claim  velantarilyj  the  teat^or'^ 
intent  must  be  presumed  to  be  cowi^tent  with  the  v^4e^ 
of  law  ;  and  that  at  law  the  same  words  would  cer- 
tainly create  an  estate  tail  That  it  could  not  he^  in- 
fearred  with,  any  oertainly.  from  the  power  of  leasing; 
that  no  estate  tail  w»s  intended^  wch  power  being 
more  beneficifi}  than  that  which  was  giv^n  to  a  tenant 
in  tail  by  the  statute;  and  as  the  cl^bts  were  admitted 
by  the  pleadings  to  be  all  paid^  the  same  construction 
was  to  be  made  as  if  there  had  been  originally  no 
trittL  His  Lordship^  upon  these  grounds  decr^eed 
A/a.  share  to  be  conveyed  to  him  and  the  heir«  male 
oi  his  body* 

We  do  not  find  that  distinction  alluded  to  by  ifOird 
Harcourt  in  the  above  case^  which  has  been  so  fi*e- 
quendy  recognised  in  other  cases^  namely^  between 
executed  and  executo|ry  trusts ;  but  on  the  negative  sido 
as  denying  to  ei^ecuted  trusts  a  greater  latitude  of  con- 
struction than  is  conceded  to  the  limitations  of  legal  es- 
tates^ his  doctrine  has  the  support  of  a  very  prevailing 

2p 


&7S  tmpoti  of  Words  aftd  PhtasM.    Cbit.  Vf. 

fleiries  of  authorities.  Lord  Harcoort  was  not  called 
fipon  to  make  any  distinction  between  trttsts  executed 
and  immediate^  and  trusts  executory  and  prospectiye^ 
as  the  trusts  in  the  case  before  him  were  undoubtedly 
of  the  formel*  kind^  and  the  decision  of  his  Lordship 
proceed?  upon  the  analogy  between  this  description  of 
trusts  and  limitatious  of  the  legal  estate.  Instead  of 
simply  denying  the  resemblance  of  these  executed  and 
completed  estates  in  equity  to  the  case  of  articles  di- 
rectory of  a  future  settlement^  he  takes  rather  too 
broad  a  ground  by  insisting  on  the  supposed  propriety 
of  a  severer  construction  of  wills  than  of  marriage  ar^ 
titles^  drawn  from  the  distinct  natures  of  the  instru- 
ments themselves^  which  would  extend  such  severer 

9 

construction  to  executory  as  well  as  to  executed  trusts 
if  contained  in  a  wilL   * 

•f^eait-  The  disiinctioti  between  these  two  descriptions  of 
^^^^^°  trusts  has  been  the  hinge  on  which  a  great  many  im- 
andexecQ-  portaut.   and  much   considered  adjudications  have 

tory  trusts.  '^  '  •* 

turned }  and  without  resorting  to  which^.  we  should  in 
Vain  search  for  a  principle  to  reconcile  the  cases  on 
the  subject.  In  the  case  of  the  Earl  of  Stamford  v. 
Lord  Hobart '  determined  bjlLord  C.  Cowper^  whose 
decree  was  affirmed  by  the  Lords^  the  opinion  of  Lord 
Harcourt  as  to  the  propriety  of  putting  a  stricter  con* 
struction  in  general  upon  wills  than  marriage^articles^' 
was  implicitly  denied.  It  was'  there  observed  that^  as  it 
Was  Usual  for  equity,  in  cases  of  executory  articles  for 
settling  of  estates,  to  supply  informalities  and  defects^ 
especially  when  the  things  supplied  were  necessary  to 
support  the  main  intent  of  the  parties^  and  to  cariy 
such  articles  into  execution,  according  to  that  intent^ 

'  1  Bro,  P.  C.  388. 


S£CT.6.  By  what  vowds  av^  Estate  f&r  life^wiU  pass.         579 

as  fiir  as  it  might  agree  with  law^  though  not  strictly 
acceding  to  the  words  and  penning  of  the  articles  ; 
so  a  firtum  would  equity  do  in  the  case  of  a  will, 
where  the  same  was  to  be  executed  by  a  conveyance 
to  be  made. 

If  the  view  of  this  doctrine  taken  in  the  last  cited 
case  be  a  correct  one^  Lord  Harcourt's  general  rea-* 
aoning  from  the  distinct  characters  of  the  instruments 
themselves^  the  one^  i.  e.  marriage  articles  being  consi- 
dered as  standing  on  obligatory  and  valuable  considera- 
tions^ the  other  on  the  mere  intention  and  voluntary 
bounty  of  the  testator^  seems  to  have  gone  too  &r>  and 
further  than  was  necessary  for  the  support  of  his  deci- 
sion of  the  case  before  him ;  there  being  quite  suffi- 
cient ground  for  it  in  the  analogy  between  trust  estates 
executed  or  fully  limited^  and  estates  at  law^  and  in 
the  sound  intelligible  maxim  of  equitas  sequitur  le- 
gem. I  have  insisted  the  more  on  this  point,  because 
in  the  learned  and  elaborate  discussion  of  these  cases 
by  Uie  late  Mr.  Feaitie,  that  profound  writer  seems 
to  lend  some  countenance  to  this  mode  of  treating  the 
subject. 

The  strict  consideration  of  trust  estates  which  was 
the  ground  c^  the  decimon  in  Bale  v.  Coleman  was 
fully  adopted  by  Lord  Hardwicke  in  Garth  v.  Bald- 
win *.  In  which  case,  there  was  a  devise  of  lands  to 
a  trustee,  in  trust  to  pay  the  rents  and  profits  to  S. 
for  her  separate  use  for  her  life,  as  if  she  were  sole ; 
and  after  her  decease  to  pay  the  same  to  E.  her  son 
for  life,  and  afterwards  to  pay  the  same  to  the  heirs 
of  his  body,  and  for  want  of  such  issue,  to  pay  the 

*2Vez.S40. 
dp2 


Imjfott  oj  WndMi  ami  PhMML    Cmci  IVl 

s^iBMrto  aU  asd  evei y  otlieo  «m  or  aans  of  tftie  b«dy  ef  & 
VogolteB^  Ac.  Upm  the  quettioB  whsAer  B*  ^"tt  obi« 
tillod  to.tho  knda  in  tail;  or  for  lifia  only^  Lind  |iardh 
tridBO  praeeededl  on  this  pvindpfe^  vamfify^  thaftiB  Ikair 
tations  of  a  trust  either  of  a  real  or  personal  cataitt  in 
be  determined  in  that  courts  the  construction  ought 
la  be  made  aeoording  to  the  ccgnatructioii  oS  Kmita- 
tioiM  of  a  kgal  estate^  anlnathe  intent  of  Ae  testator 
•r  aathar  of  the  trast  phudy  appears  to-  tha  cot^raiy; 
He  hud  it  dowa*  as  a  maxiinf^  thai  he  waa  aotf^  ia  a 
eoupt  of  equity^  to-  overrule  the  le^  CMSfaniotioi^  of 
Iba  liniitetioii^  ankss  the  intent  of  the  teetatav  or  au- 
thor of  the  trust  appeared  by  declaration  plain:,  vm^*  ^ 
plain  expression  or  necessary  implieatioa.  And  ae» 
oardingly  he  decreed  a  conveyance  in^  tail  to  Bv 

It  eould  scarcely  have  been  expected  that  aft»  the 
decree  of  Lord  Hardwidca  in  Bagsbaw  vi  Speneef  ^ 
lya  Lai dship  would  hare  reasoned  as  we*  find  him*  de^ 
lag  in  Oartb  ix  BaMwio  just  above  cited :  Ibr  m  Bag^ 
ahaw  o.  Spencer,  Ae  expressed  grouad  of  Uia  dec»- 
aibu  was  the  distinction  betiveea  a  trust  ite  ofuity^ 
and  a  mere  legal  estate ;  his  Lordship  at  the  asme 
time  declaring  that  aU  trusts  in  notion  of  law  were 
^OMCHtory,  and;  that  the  distinction  between  Iragta  ex- 
aoutcd  and  executory  had  aieves  beea  ettaUiabQd. 

Again  in  the  case  of  Rdbests  v.  DixweH^Lord  Haid^ 
vrioka  observed^  that  the  latter  part  of  tie  trust  was 
raasefy:  executory,  to  be  carried  inta  axeqatioB  after 
the  performance  of  the  anteoedaat  trusts^  That  the 
ivhole  direction,  therefore,  fdS  upon  die  eourt,  and 

•  1  V«*  1«.  2  Atk.  «40.  570.  577.  ''I  Atk. 607. 


Sgct*  &  By  what  wards  on  Egtalefir  ^  wiU  pass.         Sftl 

■tkcy  were  to  4trect  how  the  parties  were  to  oearvjr*. 
He«aid»  tiiiit  the  Court  had  Crieen  aiilcfa  greater  libei^ 
ties  :iA  the  constmcitieii  €f  executory  trwits,  Hmm, 
ithet-e  the  4Tmlbs  i^ercairtuMdly  executed ;  end  direoled 
41  ceiivejfWMe  tie  the  sons  sBCoeesively  in  taiiy  it  heinj^ 
not  a  trust  executed,  hut  executory. 


VhmuetwiAstasidiiif^  IheireMmNig  of  liord  Ikrd* 
ill  Bngshaw  «.  Spettosr,  he  "vriH  be  fouad  m 
odmr  C8MB  decided  b^  him  Hbiith  hetoe  amd  after  tfant 
cane^  te  have  is^^  by  hi«  ^titiionty  the  distiactiofi 
lakenhy  Lord  IWbotin  iierd  Otenoichy  i^.  flsttvifle^ 
mUdti  may  he  emmderad  as  the  ^re«t  caae  u^im  the 
^object.  The  devise  in  tint  caae  vms  4d  tmatees,  ianA 
their  hekn,  in  trust  till  the  luanriage,  m  death  of  the 
testator's  iprand^^aagbler,  to  nceif  e  the  Mnts  «u4 
fvoStts,  «ad  ^ay  her  «n  unmiity  for  her  mainteinabce ; 
aad,  as  to  the  iresidue,  4o  {ny  his  ddMa  and  legaxnes^ 
and  after  paymetit  theiMif,  in  trust  ic*  kk  gnnd^ 
dsn^ghter,  4md  if  «he  marfied  ^  Protestant^  after  her 
earning  %tS  m^e,  err  i;nth  consent^  then  to  leonvey  the 
estate  after  auch  marriage^  ta  Hkie  use  of  her  for  Hf^ 
witheot  itnpeachmeiit  of  vmste^  pevnainderloherbM^ 
band  ^fiofT  4tfe,  remainder  1o  4he  issue  of  her  body  with 
aei^eral  TCmaindefs  over ;  and  one  of  the  questioMi 
tmsy  whether  Lady  Glenof ohy,  (the  grand-daagtrtei*) 
imder  this  nvtN  mis  tenaift  b»  life  or  in  «ad.  C^otd 
Talbot  said  he  should  have  made  no  difficulty  4tf  de^ 
termining  this  to  be  an  estate  tail  had  it  been  the 
case  of  an  %nmediate  devise.  He  thought^  in  cashes  of 
trusts  executed^  or  immediate  devises^  the  construc- 
tion of  the  courts  of  law  and  equity  ought  to  be  the 
aame^  for  there  the  testator  did  not  suppose  any  other 


Ca.  Temp.  Tslb.  3. 


683  Impart  of  Words  and  Phrases.  Chap.  VI. 

conveyance  would  be  made.  That  the  case  of  Pft- 
pillon  V.  Voice '  seemed  a  strong  authority  for  exe- 
cuting the  intent  in  executory  trusts^  as  well  as  in 
marriage  articles ;  and  he  accordingly  decreed  to  Lady 
Glenorchy  only  an  estate  for  life  with  remainder  to 
her  first  and  other  sons  in  tail  male^  &c. 

nio^f  9^! '    ^'  would  be  useless  to  cite  more  cases  upon  this 
^^d^^'     subject.  All  of  them  which  had  taken  place  before  and 
ciMtioniT  ^™^°S  ^^  ^™^  ^^^^  been  collected^  and  reasoned  upon 
<^Lord     by  Mr.  Fearne  in  his  Essay  on  Contingent  Remain- 
^^Loi4    ders^  whose  opinion  was  strongly  in  favour^  as  well  of 
the  close  analogy  between  trust  estates  executed  and 
legal  estates,  as  of  the  distinction  between  such  ex- 
.ecuted  trust  estates^  and  such  trusts  as  are  execu- 
tory^ and  which  leave  something  to  be  done  on  wbidi 
a  court  of  equity  may  ground  its  special  interference 
to  carry  the  iiitent  of  a  testator  into  full  effect.    We 
may  conclude  with  observing,  that  'Lord  Thurlow  in 
Jones  V.  Morgan  %  adhered  to  the  principle  of  apply- 
ing the  same  rules  to  trust  as  to  legal  estates  where 
the  devise  is  immediate ;  and  that  Lord  Eldon  in  the  im- 
portant case  of  the  Countess  of  Lincoln  t;.  the  Duke 
of  Newcastle  %  said,  that  there  is  a  distinction  be- 
.  tween  a  will  making  a  direct  gift,  and  a  covenant  by 
articles  to  be  executed,  but  none  betwe^i  a  covenant 
in  consideration  of  marriage,  and  an  executory  trust 
by  will. 

!  2  P.  Wffls.  471.     *  1  Bro.  C  C.  306.     *  1%  Vcs.  Jui.  31  & 


(583) 


Section  VII. 

What  words  create  a  Joint* Tenancy ,  and  what  a- 
Tenancy  in  common  in  a  WUL 

INDEPENDENTLY  of  all  inference  to  be 
drawn  frotn  the  contents  of  the  wiU^  it  is  well  settled 
that  a  devise  to  two  or  more  generally^  or  to  two  or 
more  and  their  heirs^    makes    them  joint-tenants. 

Courts  both  of  law  and  equity  are  said  now  to  lean  Ooarts  of 

^      ^  law  and 

4igatn8t  joint-tenancy ;  though  formerly  it  was  other-  equity  iea« 

./  v3  against  thi^ 

^  wise,  upon  the  ground  of  the  inconvenience  of  mul-  constrac 
tiplying  services  under  the  old  tenures  ^.     Any  words  jomtpte- 
therefore,  importing  an  equality  of  benefit,  will  lead  "*"^' 
to  the  construction  of  a  tenancy  in  common.    Thu«, 
nothing  is  better  settled  than  that  in  a  will,  the  words 
''  equally  to  be  divided"   will  create  a  tenancy  <n 
common. 

4 

But  it  sometimes  happens  that  after  such  distri-  whai  ha* 
iutive  words  the  testator  adds  an  express  limita-  construc- 
tion to  the  survivor,  or  directs  that  the  estate  may  there  are 

words  im* 

be  enjoyed  with  benefit  of  survivorship;  which  has  a  porting  an 
tendency  to  embarrass  the  construction.     It  has  been  fn^es^^ 
laid  down  in  positive  terms  that  where  lands  are  de-  ^wor-^ 
vised  to  two  or  more  persons,  to  hold  to  them  and  Jhc^dcFL."* 
the  survivor  of  them,  they  will  take  an  estate  in  joint- 
tenancy,  though  there  may  be  other  words  in  the  will 
indicating  a  tenancy  in  common  ^     And  Lord  Hale 
lias  said^  that  a  devise  to  two  equally  to  be  divided 
between  them,  and  to  the  survivor  of  them,  makee 

*  3  Atk.  5»4.  »  Furse  v.  Wecdces,  S  RoU.  Ab.  90. 


•€e». 


/    , 

584f  Import  of  Wordn  and  Pkrasen.    Chap.  IV . 

an  estate  in  joint-tenancy  upon  the  express  import  of 
the  last  words  ^  But  this  doctrine  has  not  prevailed 
in  later  cases^  in  which  the  courts  have  been  ingenious 
to  give  effect  to  the  words  of  severance  without  sacri- 
ficing the  'words  of  survivorship. 

In  some  cases^  howevw^  the  eonstruetion  of  wordB  in 
%  will^  as  importiaga  joint-tenaney^  has  1>een  &voim$d 
as  tendiag  to  effectuate  and  preserve  the  estates.  As 
where  a  testator  devised  to  Jane  and  SKzabeth  aU  his 
estate^  to  be  equally  divided  between  them  during 
their  natural  lives^  and,  after  die  deceases  of  the'taid 
Jane  and  Elisabeth^  to  the  right  heirs  of  Jane  for 
ever;  the  only  question  was^  whether -this  dev^ 
made  Jane  and  Elisabeth  joint-tenants  for  life^  so  as 
that^  upon  the  death  of  Jane^  the  whole  survived  to 
Elizabeth  for  life ;  or  whether,  upon  the  wwds  ^^  equally 
to  be  divided  between  them/'  they  wereteaants  in  com- 
mon^? 

Lord  Chief  Justice  Holt  pronounced  the  opinion  of 
the  Court  that  they  were  joint-tenants^  notwithstand- 
ing the  words  ''  equally  to  be  divided  am<mg  them/' 
and  that  the  lands  ought  to  survive  to  Bliflftbeth: 
1st  Because^  though  va^n  such  wiords>  generally  thtfy 

^  would  be  tenants  in  common ;  yet  if  it  should  beso  in 
this  case^  it  would  be  expressly  against  the  intent  of 
the  testatoTj  and  would  defeat  the  heirs  oS  Jane  of 
part ;  for  th^y  were  to  take  alto^^r,  and  not  by 

:nioietieSj  one  at  onetime^  and  one  at  another^  bat 
all  at  once;  if  they  should  be  tencu[ils  in  coMbob, 

'  they  must  take  %  moieties  at  s&reral  timfSt    9iS)g,  it 

« 

•  1  Vent.  216. 

'  l\u!kenDan  9.  JsSHea,  3  Bi€«  Abr.  681.  Holt^  S70. 


Sect.  7.     What  words  weate  ajoiftt^eium^,  %c.  BSh 

Iff  as  eicptened  that  the  4ieir8  tf  Ji^nfe  were  fiot  to  tftke 

till  after  both  their  Aecesses.    Sdly,  If  they  shdQlA 

i>e  tenantB  in  common^  tiien  the  heirs  of  ^ane  woalA 

ibe  in  dani^  to  lose  a  moiety ;  toty  ab  to  "thttt  one 

moiety^  it  nnsst  be  a  contingent  reDsaitoAer ;  so  thsit 

if  fiHmbeth  had  died  during  the  life  ^f  Jme,  thk 

contingevicy  for  that  «iOfety  net  liappenivig  \h)hen  YJhe 

fmrtkular  estate  deteffnmedy'\  i€  tmist  descend  to  Uti^ 

keirs  at  4aw  of  the  testator^  who  were  Elkcabeth  and 

the  issue  of  Jane,  as  coparceners.    4thly,  Jane  anA 

fili^beth  were  heirs  at  law  of  the  teMator,  unA,  as 

audi,  the  wMe  would  have  d^eended  to  tht^  in  'oih 

parcenary,  if  no  will  had  been  maAe ;   but  it  w«s 

plain,  the  testator  intended  to  pnefer  the  heirs  of  Jane 

to  the  whole.    It  was  therefore  adjudged  that  Blfza* 

beth  and  ,lane  took  as  joint-tenants. 


A.  ilaws  devised  all  his 'estate  <in  D.  to  his  fimr 
younger  children.  A.,  B.,  C,  and  D.,  their  herrs  and 
assigns  for  ever,  equally  to  be  divided  between  then, 
fhnpe  and  share  alike,  as  tettadts  in  common,  and  not 
as  joint-tenants,  mth  benefit  of  suiroivorship '.    Lord 
'Hardwicke  said,  that,  in  Chancery,  joint-tenanotes 
were  not  favoured  ;  because  they  were  a  kind  of  Es- 
tate that  did  not  make  provision  for  posterity :  neither 
did  courts  of  law  at  this  day  favour  them,  though 
'Lord  Coke  says,  that  joint-tenancy  is  favoured,  be- 
cause Che  law  was  against  the  -division  of  tenures : 
but,  as  tenures  mett  abolished,  that  mason  had  ceased, 
and  courts  of  law  inclined  the  same  Nvay  with  the 
couMs  of  equity.     Annother  was,  thut  Where  titere 
were  conUadictory  words  in  a  will/^<lje  court  made' a 
Masodable  and  uniform  construction,  and  would  re- 

» 

•  %W8  V.  Hairs,  3  Atk.  5*3.  1  "Wils.  R.'l65. 


586  hnport  of  Words  and  Phrases.     Chap.  JV, 

ject  such  words  as  were  absurd^  and  contradictory  to 
the  intent  of  the  testator.  The  words  ^"^  equally,  to 
be  divided^"  in  a  will  made  a  tenancy  in  common ; 
here  was  also  added^  '^  as  tenants  in  common,  and 
not  as  joint- tenants/'  which  are  very  strong  words ; 
but  then,  it  was  also  said,  ^'  with  benefit  of  survivor- 
ship/' which  last  words  created  the  difficulty  in  the 
case ;  that  is,  to  know  at  what  time  the  testator  in- 
tended this  benefit  of  survivorship  should  take  place. 
This  might  be  explained  by  another  part  of  the 
will,  where  he  plainly  pointed  out  a  survivorship 
among  the  children  themselves,  as  to  personal  estate, 
where  the  words  were,  *'  If  any  of  my  younger  child- 
ren die  under  age  and  unmarried,  then  I  direct  that 
the  share  of  him  so  dying,  shall  go  to  the  survivors." 
Then  he  came  to  this  devise  of  his  real  estete,  to  his 
said  four  younger  children ;  but  it  was  true  he  did  not 
say,  with  the  like  benefit  of.  survivorship.  He 
thought  it  was  natural  to  consider  this  as  a  fund  or 
provision  for  these  four  children ;  and  that  he  meant, 
if  any  of  them  should  die  before  21,  or  unmarried, 
thiLt  the  share  of  the  child  so  dying  should  go  among 
the  other  children :  and  he  was  of  .^opinion  that  C. 
dying  under  age,  his  share  did  survive  to  the  others, 
and  should  not  go  to  the  heir  at  law. 

Adverting  to  what  had  been  urged  in.  argument. 
Vis.  that  by  the  words  ''  with  benefit  of  survivorship," 
might  mean  to  prevent  a  lapse  if  one  or  more  died  in  the 
life^time  of  the  testator,  his  Lordship  seemcid  to  think 
this  too  nice  a  construction,  and  observed  that  it  was 
not  probaUe  tlttt  the  testator  meant  by  the  'benefit  of 
«um9oraAi/i,'.survivorship  of  himself;  £wA  t6$t9itor  sA" 
dom  provides  for  a  contingency  in  his  own  life-time,  for 
when  any  such  happens  he  may  altef  his  will  if  he 


SscT.  7.     What  word$  create  a  joint-tenancy,  ^c.  587 

pleases.  Bat^  continued  his  Lordship,  if  no  other  rea- 
sonaUe  construction  can  be  put  upon  these  words,  the 
court  ought  to  resort  to  it^  as  in  the  case  of  Lord  Bindon 
V.  the  Earl  of  Suffolk';  which  was  the  case  of  a  de« 
vise  to  five  grand-children,  share  and  share  alike^ 
equally  to  be  divided  between  thein>  and  if  any  of 
them  die,  then  to  the  survivor,  and  they  were  held  to 
take  as  tenant^  in  common ;  for  by  the  words  '^  if  any 
of  them  die,  his  share  shall  go  to  the  survivor,"  Lord 
Cowper  said,  it  roust  be  intended,  if  any  of  them 
should  die  in  the  life-time  of  the  testator,  for  by  that  ^ 
construction  every  word  of  the  will  would  have  its 
effect  and  operation. 

And  in  the  case  of  Rose  d.  Vere  v.  Hill  ^,  where  the 
devise  was  to  the  testator's  five  children,  and  the  sur- 
vivors and  survivor  of  them,  and  the  executors  and 
administrators  of  such  survivor,  share  and  share  alike, 
as  tenants  in  common,  and  not  as  joint-tenants.  Lord 
Mansfield  and  the  Court  of  King's  Bench,  consi- 
dered the  devise  as  creating  a  tenancy  in  common 
in  fee,  and  that  the  words  '^  survivors  and  survivor'* 
related  to  the  death  of  the  testator. 

But  where  J.  S.  devised  lands  to  A.  and  B.  and  the 
wrvivor  of  them,  and  their  heirs  and  assigns  for  ever, 
equally  to  be  divided  between  them,  share  and  share 
alike^  and  A.  died  in  the  testator's  life-time,  and  then 
the  testator  died,  leaving  C.  his  heir  at  law,  the  court 
sai4  that  wills  must  be  so  expounded  that,  if  possible^ 
every  word  might  have  its  effect.  That,  in  that  case 
the  devise  being  to  two  and  the  swihor  of  them, 
they  were  plainly  joint-tenants  for  life;  andthatthe 
next  words  ''  and  to  their  heirs  equally  to  be  divided 

^lfiYrm.99.  ;  3  Burr.  1881. 


^etifMA  thuili,  «liittK  and  tdiive  tfite^^  M  {ilaltariy  {ft- 
ydited  «liefii  «e  be  tMiiMs  in  mmumh  «f  the  MmMI* 

^tot>k  dffeot.  Sat  A.  hatvii^  diei  va  «be  leftUM^i^  lift- 
mmty  tL  becamt  A^Mby  ewtttledi^  At  yiAfeUe  for  %is 
ilffe;  and  the  inlM^itafioe  4tf  A.  Imvin^  liipMd  hftm 
(Aektk,  im  ta(A^  mn^^mmnA  toC.  an  the  tMtiftM% 
Aeiratlaiirl 

^ert*of  '^i^rt  Hiere  art  two  dBferfem  dispoiiltena  nf  the 
^t  duf^"^  wihe  ^fifftrte  in  a  <h4II,  4he  better  ^ef  iniaa  fsisMm  to  lie 
titioiii  of  ^OiAiibe  t^m  devisees  ahaM  «ftke  in  tmiie«ie6 :  «bM«li 

theiame  ^ 

Mute  Id  a  Lord  Coke  was  of  opinion  that  «kle  IttQer  iMPds  »- 
yoked  the  former '.  In  many  of  the  old  books  it  is 
"aaid  gvnerally^  ^kattbere'ShoBld  ben  j6ifit-teffa«iGy^; 
bat  Mr.  Uarg^rave  obsert^s,  ^&^t  aiccording  totke  fa<H 
<dern  i6f«ii<Aft^  •a^d,  it  i^ems,  the  hes/t,  tkert  wffl  be 
A  j<Nirtt4etia»ey^  «r  tenancy  in  cetmntyn^  WMffiStngto 
Uie  HvoidK  tised  iti  Ihnititig  fbe  two  estMen ;  by  mhiA 
itm  me^tct^  ^tft,  if  the  two  estetes  'giteh  by  Ibe  wfll 
.-faave  the  unity  M  Bamewess  49f  interest,  ^sMliifl  toa 
jttat^MaiiCiy,  the  devisees'^bitHbe  jofnft4etiittita ;  bift, 
if  otherwise^  they  shslH  be  tenants  in  ootaiiba. 


The  courts      The  boolu  abound  iu  €ates  ia  which,  wiMM  mA  or 

hayelaid  ,  •     i      •      ■        .  • 

hold  of  {lersooal  estate  m  qe vised  to  two  «r  more  f^fmum^  the 
words  in  ^coiiFts  lutv^  HihewB  M  ittoUtiatidB  4o  lay  thaid  of  aaf 
ten^dy  iiT  words  i«  ^kt  wiH  in4iw(iag  an  int^nUoa  to  maka  ao 
'^°'''"'    ^^[iialjartitiaii^f^iiepMper^^toa^nft^ 

ia  coiBinati.  Ataaa  demed^haalandt  to  hia arifeA>rfife, 
4ha  MflMunder  to  A.^  B.^ikii^C*, 'and their  hdhrafvspce- 
(ica^^  for  avw.  And  tke^ueittoa4)etn^  wfaeAer  A., 
St,  aaid  C  wa«  jaifct  toaaalo,  4))r  teiteato  da  laonmsii, 

^  Barkv  v.  GUes,  2  P.  Wms.  380. 

'  Co.  Utt.  lit.  6.n.  1.  3  Atk.  375. 3  Atk.  483.     *  plowd.  539. 


SiECTv.7«    THmC  iMiY^  <i*6Mi<  tftjoi^  ^c.  S8d 

Urn  dowt  hlld  Vo9*.  ibejMiMm  tM^mto  W  cwioum: 
fits  iM  kiH«(  of  ib^  daiiims  aff^frafdi  ift  tH<)  iw4t> 
tiNit  emry  one  obaiikl  hv^^  ¥i«r  f  w<^  wd  4Mr  keir$i  z 

^m«l  ^  re«p«ctiie)y/  wwU  bo;  i4k  tf  aa^b^rcMet 
simicfticnalMuld  )it.i»ack^  and  liOMUsigtHfy  laa  mun 
Ami  wh«k  tiie:  kw*  ttid  wHihoiift  it^ 

So»  i^heve  ]Md»  wctre  devised ta<  fiv.ei  pe.i:)iOfij9».  thejw 
b^ifs  vid  aasi^s,  all  qf  (Mm  to,  have,  part  (mi^  fmt 
atiire^.  and  the  one. to  bav;e  a&much  a$  the  oUkjc'^  it  Mm 
9id^.udged  to  b^  a  tenancy  ia  connnioii "'. 

Again^  ivhere  L.  devised  lands  to  his  two  sons 
^quaU^j  ajD^  theic  heirs^  it  wa^  adjudged,  that  the 
devisees,  taok  a»  tenants  in,  coixunon ;.  for^  ot^herwiae, 
the,  word  'ecjuftJly/  would  have  m,  weaning". 

A  person  devised  a  messuage  with  the  appurte- 
nanpes^  ui^to  M.  G.  and  T.  R.  equally  to  them^  his 
sifter's  sqn^  Lord  Mansfield  said^  there  waa  no 
room  foi:  argument;  'equally*  implied  a  division; 
whereas^  if  they  were  to  take  as  joint-tenants,  there 
would  be  no  division  "*. 

A  man  devised  lands  to  his  two  sons  and  their  heirs, 
and  the  longer  liver  of  them,  equally  to  be  divided 
between  them  and  their  heirs^  after  the  death  of  hh 
wife.  The  court  was  of  opinion^  that  the  sons  were 
tenants  in  common^  and  that  the  devise  was  good ; 
and  the  reason  was  grounded  upon  the  construction  of 

*  Hpnrfll  V*  IVamptoD)  ^^J^^  4^  <^ad  see  Ihe  sane  peint  in 
Heathe  v.  Heathe,  2  Salk.  123. 

*  James  v,  Collins,  Het.  ^9.  Cro.  Car. 75. 

*  Lewen  v.  Cox,  Cro.  Eiiz.  693.  1  Vera.  33. 

*  Denn  9.  Gaskin,  Cowp.  657. 


fi90  Impart  of  Words  and  Phrases.    Chaf.  IY . 

mJis,  that  it  ought  to  be  according  to  the  intent  of  the 
devisor :  his  intent  appearingto  be  not  only  to  provide 
for  his  two  sons,  but  for  their  posterity ;  and  that  not 
only  bin  two  sons,  but  their  heirs,  should  have  an 
equal  part :  for  the  words  were,  ''  equally  to  be  di- 
vided between  them  and  their  heirs/'  And  though, 
by  the  first  words  it  was  given  to  them  and  the  sur- 
vivor of  them,  yet  the  last  words  explained  what  he 
intended  by  the  word  '  survivor  ;*  that  the  survivor 
should  have  an  equal  division  with  the  heirs  of  him 
who  should  die  first.  And,  though  the  testator  had 
not  aptly  expressed  himself,  yet,  upon  all  the  words 
taken  together,  his  meaning  seemed  to  be  so'. 

A  person  devised  a  freehold  estate  to  trustees  and 
their  heirs,  in  trust  to  permit  his  three  sisters  and 
their  assigns  to  hold  and  enjoy  the  said  premises^  and 
to  receive  the  rents  thereof,  to  their  sole  and  sepa- 
rate use ;  and  as  his  sisters  should  severally  die,  he 
gave  the  premises  to  their  several  heirs.  Lord  Hard- 
wicke  held,  that  the  plain  meaning  of  the  words, 
'^as  they  severally  die,"  &c.  was,  that  the  sisters 
should  take  as  tenants  in  common  y  And  in  another 
case,  a  devise  of  the  profits  of  land  in  trust  for  the  tes- 
tator's six  younger  children,  to  be  distributed  among 
them  in  joint  and  equal  proportions,  was  held  to  g^e 
a  tenancy  in  common,  and  not  a  joint-tenancy '. 

A  testator  devised  all  his  real  estates  to  trustees,  as 
soon  as  his  three  daughters  should  attain  their  res- 
pective ages  of  twenty-one,  to  convey  to  them  and 
the  heirs  of  their  bodies,  and  their  heirs,  as  joint- 

'  Blisset  V.  CranweU,  Salk.  226. 
«  Sheppard  v.  Gibbons,  3  Atk.  441. 
f  Ettricke  v.  Ettricke,  AmbL  656. 


Sect.  7.     What  Words  create  a  joinl-tenancy ,  Sge.  591 

tenants.  Lord  Hardwicke,  after  observing  that,  on 
account  of  the  direction  to  convey^  this  was  an  exe- 
cutory trust,  in  which  case,  the  court  assumed  greater 
latitude  of  moulding  the  will  according  to  the  inten- 
tion of  the  testator,  gave  his  opinion,  that  the 
daughters  did  not  take  as  joint-tenants,  but  that  con- 
teyances  should  be  made  to  them  at  twenty-one  res- 
pectively, in  tail,  with  cross  remainders  in  tail ;  by 
which  means,  survivorship  would  be  preserved  upon 
the  death  of  any  daughter  without  issue,  which  was 
the  most  that  was  meant  by  joint-tenants '. 

Robert  Clarke  devised  his  estate  to  trustees,  and 
their  heirs,  to  the  use  of  the  testator's  niece  Susan* 
nah  Clarke,  and  his  two  nieces  Elizabeth  Garland 
and  Ann  Corry,  and  the  survivor  and  survivors  of 
them,  and  the  heirs  of  the  body  of  such  survivor  and 
survivors,  as  tenants  in  common,  and  not  as  joint- 
tenants,  and  for  want  of  such  issue  remainder  over*. 

Upon  a  Case  sent  by  the  Master  of  the  Rolls  for 
the  opinion  of  the  Court  of  Common  Pleas,  the 
Judges  of  that  court  certified,  that  the  devisees  took 
as  tenants  in  common. 

T.  S.  devised  a  term  for  years  and  all  her  interest 
therein  to  her  two  daughters;  they  paying  yearly  to 
her  son  25/.  by  quarterly  payments,  vi^.  each  of  them 
12Z.  10s.  yearly  out  of  the  rents  of  the  premises,  dur- 
ing his,  life,  if  the  term  so  long  continued.  This  was 
clearly  held  a  tenancy  in  common,  by  Lord  C.  Jef- 
feries,  the  25/.  being  to  be  paid  by  the  two  daughters 
equally  in  moieties*. 

'  Maryat  v*  Townley,  1  Vez.  102* 
*  Garland  v.  Thomas,  1  N.  R.  8^ 


V 


59d  Import  ofMnrdg  and  Pftrawt.    Chap.  IV. 


# 


But  whm  But  althoHg^h  according  to  these  cases,  and  a  irrea& 
sioDB  occur  many  more  taat  mxght  be  pj^oqaced^  the  inchnatioa 

to  favour  a     ^     .  -.^^x  •      ^  ^i  .  -.  .    . 

tenancy  in  Of  the  CQmt^  ugainst  the  constfUiCtuM;^  of  joiot-teaau- 
^^''wm  cm,  d^iposj^s  them  to  give  effect  to  the  ^igbtest^ev 
thecon-  piressions  indicating  the  intention  to  beneAt  the  dch* 
S™conjw-  wees  eqii»% ;  yet.  where  np  fo^qh  expreosicms  occiur^. 

(rooads:      Vl^  COttTtS  wiU  not»   Ott  OO^Cll^   gTOU^  VOOifA  % 

ZS'^''  <mBtr^tm. yfkkk ha»  nafouodaUon  1^  Ote  wil)  iM( 

JSylTn ST  ^  support  lit.    Nqr  wiU. th^  sql^^t matter,  of  thp  <|<^ 

JTwyor  <»««  W  legacy  supply  any  aiJSHjneQt  o^e  way  or  Ukv 

the  other,   other.    And  in  tbo  case  of  a.  ipf^re  moooy  iefffiy,  fl^o 

rule  is  the  same.     Thus  the  present  Lord  Chancellor^ 

m  a  late  c^pe  ''^  stated  thatj  upon  the  douht  which 

Lord  Tburlow  had  expressed  in  Perkins  v.  Bfiyntpn  ' 

w'hether  there  could  be  a  joint-tenancy  of  a  mfsre 

9K>i¥^y  tegOjpy  OF  a  residue^  ani}  th^  capef  ciM  upoa 
^  4w$iMion%  att^mpt^^pqn  tho  qaestjoD^  where 
th^;i;es^ary  )Qgate€»  were  ex;e<;tttors9  he  had  looked 
at  €^c|f  the  original  wills  in  Doctoir'aQomi^ons^  where 
a  construction  had  been  put  upon  these  bequests ;  and 
he  had  made  up  bi»  mind  qpoii  the  pointy  upon  which 
he  had  never  any  doubt  since>  that  a  sinyile  bequest 
of  9.  legacy  or  a  residue  of  persomd  property  to  A. 
and  B.^  without  more^  is  a  joint*teii9acy. 

*  Kew  9.  Roqse,  1  Vem*  3^3. 

"*  Crook?  V.  De  Vandez,  9  Yez.  Jan.  107.       '1  Bro.  C.  C.  1 1& 


END  OP  VOL.  I. 


p;  ■»■   t      11  ■  I  .  ,      I      p       i|     ■    ■  I  w 

J.  mud  T.  Civktf  Bnnienf  38,  Si.  Johet  Spmre/ Ijtmim.