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BOOK II.

CHAPTER THE TWENTY THIRD.

OF ALIENATION BY DEVISE.

THE laft method of conveying real property, is by devife, or difpofition contained in a man's laft will and teftament. And, in confidering this fubject, I fhall not a prefent enquire into the nature of wills and teftaments, which are more properly the inftruments to convey perfonal eftates; but only into the original and antiquity of devifing real eftates by will, and the conftruction of the feveral ftatutes upon which that power is now founded.

IT feems fufficiently clear, that, before the conqueft, lands were devifable by will ^a. But, upon the introduction of the military tenures, the reftraint of devifing lands naturally took place, as a branch of the feodal doctrine of non-alienation without the confent of the lord ^b. And fome have queftioned, whether this reftraint (which we may trace even from the antient Germans ^c) was not founded upon truer principles of policy, than the power of wantonly difinheriting the heir by will, and transferring the eftate, through the dotage or caprice of the anceftor, from thofe of his blood to utter ftrangers. For this, it is alleged, maintained the balance of property, and prevented one man from growing too big or powerful for his neighbours; fince it rarely happens,

.{FS}
^a Wright of tenures. 172.
^b See pag. 57.
^c Tacit. de mer. Germ. c. 23.
.{FE}
that
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BOOK II.
Ch. 23.
that the fame man is heir to many others, though by art and management he may frequently become their devifee. Thus the antient law of the Athenians directed that he eftate of the deceafed fhould always defcend to his children; or, on failure of lineal defcendants, fhould go the collateral relations: which had an admirable effect in keeping up equality and preventing the accumulation of eftates. But when Solon ^d made a flight alteration, by permitting them (though only on failure of iffue) to difpofe of their lands by teftament, and devife away eftates from the collateral heir, this foon produced an excefs of wealth in fome, and of poverty in others: which, by a natural progreffion, firft produced popular tumults and diffentions; and thefe at length ended in tyranny, and the utter extinction of liberty; which was quickly followed by a total fubverfion of their ftate and nation. On the other hand, it would now feem hard, on account of fome abufes, (which are the natural confequence of free agency, when coupled with human infirmity) to debar the owner of lands from diftributing them after his death, as the exigence of his family affairs, or the juftice due to his creditors, may perhaps require. And this power, if prudently managed, has with us a peculiar property; by preventing the very evil which refulted from Solon's inftitution, the too great accumulation of property: which is the natural con of our doctrine of fucceffion by primogeniture, to which the Athenians were ftrangers. Of this accumulation the ill effects were feverely felt even in the feodal times; but it fhould always be ftrongly difcouraged in a commercial country, whofe welfare depends on the number of moderate fortunes engaged in the extenfion of trade.

HOWEVER this be, we find that, by the common law of England fince the conqueft, no eftate, greater than for term of years, could be difpofed of by teftament ^e; except only in Kent, and in fome antient burghs, and a few particular manors, where their Saxon immunities by fpecial indulgence fubfifted ^f. And

.{FS}
^d Plutarch. in vita Solon.
^e 2 Inft. 7.
^f Litt. §. 167. 1 Inft. 111.
.{FE}
though
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The RIGHTS of THINGS.
BOOK II.
Ch. 23.
though the feodal reftraint on alienations by deed vanifhed very early, yet this on wills continued for fome centuries after; from an apprehenfion of infirmity and impofition on the teftator in extremis, which made fuch devifes fufpicious. Befides, in devifes there was wanting that general notoriety, and public defignation of the fucceffor, which in defcents is apparent to the neighbourhood, and which the fimplicity of the common law always required in every transfer and new acquifition of property.

BUT when ecclefiaftical ingenuity had invented the doctrine of ufes, as a thing diftinct from the land, ufes began to be devifed very frequently ^g, and the devifee of the ufe could in chancery compel it's execution. For it is obferved by Gilbert ^h, that, as the popifh clergy then generally fate in the court of chancery, they confidered that men are moft liberal when they can enjoy their poffeffions no longer; and therefore at their death would choofe to difpofe of them to thofe, who, according to the fuperftition of the times, could intercede for their happinefs in another world. But, when the ftatute of ufes ^I had annexed the poffeffion to the ufe, thefe ufes, being now the very land itfelf, became no longer devifable: which might have occafioned a great revolution in the law of devifes, had not the ftatute of wills been made about five years after, viz. 32. Hen. III. c. 1. explained by 34 Hen. VIII. c. 5. which enacted, that all perfons being feifed in fee-fimple (except feme-coverts, infants, idiots, and perfons of nonfane memory) might by will and teftament in writing devife to any other perfon, but not to bodies corporate, two thirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of thofe held in focage: which now, through the alteration of tenures by the ftatute of Charles the fecond, amounts to the whole of their landed property, except their copyhold tenements.

CORPORATIONS were excepted in thefe ftatutes, to prevent the extenfion of gifts in mortmain; but now, by conftruc-

.{FS}
^g Plowd. 414.
^h on devifes. 7.
^I 27 Hen. VIII. c. 10.
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tion
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Ch. 23.
tion of the ftatute 43 Eliz. c. 4. it is held, that a devife to a corporation for a charitable ufe is valid, as operating in the nature of an appointment, rather than of a bequeft. And indeed the piety of the judges hath formerly carried them great lengths in fupporting fuch charitable ufes ^k; it being held that the ftatute of Elizabeth, which favours appointment to charities, fuperfedes and repeals all former ftatutes ^l, and fupplies all defects of affurances ^m: and therefore not only a devife to a corporation, but a devife by a copyhold tenant without furrendering to the ufe of his will ⁿ, and a devife (nay even a fettlement) by tenant in tail without either fine or recovery, if made to a charitable ufe, are good by way of appointment ^o.

WITH regard to devifes in general, experience foon fhewed how difficult and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law; which are fo nicely conftructed and fo artificially connected together, that the leaft breach in any one of them diforders for a time the texture of the whole. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance: for ofo loofe was the conftruction made upon this act by the courts of law, that bare notes in the hand writing of another perfon were allowed to be good wills within the ftatute ^p. To remedy which, the ftatute of frauds and perjuries, 29 Car. II. c. 3. directs, that all devifes of lands and tenements fhall not only be in writing, but figned by the teftator, or fome other perfon in his prefence, and by his exprefs direction; and be fubfcribed, in his prefence, by three or four credible witneffes. And a fimilar folemnity is requifite for revoking a devife.

IN the conftruction of this laft ftatute, it has been adjudged that the teftator's name, written with his own hand, at the beginning of his will, as, “I John Mills do make this my laft will

.{FS}
^kCh. Prec. 272.
^l Gilb. Rep. 45. 1 P. W^ws. 248.
^m Duke's charit. ufes. 84.
ⁿ Moor. 890.
^o 2 Vern. 453. Ch. Prec. 16.
^p Dyer. 72. Cro. Eliz. 100.
.{FE}
“and
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The RIGHTS of THINGS.
BOOK II.
Ch. 23.
“and teftament,” is a fufficient figning, without any name at the bottom ^q; though the other is the fafer way. It has alfo been determined, that though the witneffes muft all fee the teftator fign, or at leaft acknowlege the figning, yet they may do it at different times ^r. But they muft all fubfcribe their names as wrineffes in his prefence, left by any poffibility they fhould miftake the inftrument ^s. And, in a cafe determined about twenty years ago ^t, the judges were extremely ftrict in regard to the credibility, or rather the competency, of the witneffes: for they would not allow any legatee, nor by confequence a creditor, where the legacies and debts were charged on the real eftate, to be a competent witnefs to the devife, as being too deeply concerned in intereft not to wifh the eftablifhment of the will; for, if it were eftablifhed, he gained a fecurity for his legacy or debt from the real eftate, whereas otherwife he had no claim but on the perfonal affets. This determination however alarmed many purchafors and creditors, and threatended to fhake moft of the titles in the kingdom, that depended on devifes by will. For, if the will was attefted by a fervant to whom wages were due, by the apothecary or attorney whofe very attendance made them creditors, or by the minifter of the parifh who had any demand for tithes or ecclefiaftical dues, (and thefe are the perfons moft likely to be prefent in the teftator's laft illnefs) and if in fuch cafe the teftator had charged his real eftate with the payment of his debts, the whole will, and every difpofition therein, fo far as related to real property, were held to be utterly void. This occafioned the ftatute 25 Geo. II. c. 6. which reftored both the competency and the credit of fuch legatees, by declaring void al legacies given to witneffes, and thereby removing all poffibility of heir intereft affecting their teftimony. The fame ftatute likewife eftablifhed the competency of creditors, by directing the teftimony of all fuch creditors to be admitted, but leaving their credit (as well as that of all other witneffes) to be confidered, on a view of all the circumftances, by the court and

.{FS}
^q 3 Lev. 1.
^r Freem. 486. 2 Ch. Caf. 109. Pr. Ch. 185.
^s 1 P. W^ws. 740.
^t St. a. 1253.
.{FE}

VOL. II.

Zz

jury

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The RIGHTS of THINGS.
BOOK II.
Ch. 23.
jury before whom fuch will fhall be contefted. And in a much later cafe ^u the teftimony of three witneffes, who were creditors, was held to be fufficiently credible, though the land was charged with the payment of debts; and the reafons of the former determination were adjudged to be infufficient.

ANOTHER inconvenience was found to attend this new method of conveyance by devife; in that creditors by bond and other fpecialties, which affected the heir provided he had affets by defcent, were now defrauded of their fecurities, not having the fame remedy againft the devifee of their debtor. To obviate which, the ftatute 3 & 4 W. & M. c. 14. hath provided, that all wills, and teftaments, limitations, difpofitions, and appointments of real eftates, by tenants in fee-fimple or having power to difpofe by will, fhall (as againft fuch creditors may maintain their actions jointly againft both the heir and the devifee.

A WILL of lands, made by the permiffion and under the controll of thefe ftatutes, is confidered by the courts of law not fo much in the nature of a teftament, as of a conveyance declaring the ufes to which the land fhall be fubject: with this difference, that in other conveyances the actual fubfcription of the witneffes is not required by law ^w, though it is prudent for them fo to do, in order to affift their memory when living and to fupply their evidence when dead; but in devifes of lands fuch fubfcription is now abfolutely neceffary by ftatute, in order to identify a conveyance, which in it's nature can never be fet up till after the death of the devifor. And upon this notion, that a devife affecting lands is merely a fpecies of conveyance, is founded this diftinction between fuch devifes and teftaments of perfonal chattels; that the latter will operate upon whatever the teftator dies poffeffed of, the former only upon fuch real eftates as were his at the time

.{FS}
^u M. 31 Geo. II. 4 Burr. I. 430.
^w See pag. 307.
^x 1 P. W^ws. 575.
.{FE}
purchafed
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Ch. 23.
purchafed lands will pafs under fuch devife ^y, unlefs, fubfequent to thepurchafe or contract ^z, the devifor re-publifhes his will ^a.

WE have now confidered the feveral fpecies of common affurances, whereby a title to lands and tenements may be tranfferred and conveyed from one man to another. But, before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of juftice, for the conftruction and expofition of them all. Thefe are

1. THAT the conftruction be favourable, and as near the minds and apparent intents of the parties, as the rules of law will admit ^b. For the maxims of law are, that “verba intentioni debent infervire;” and, “benigne interpretamur chartas “propter fimplicitatem laicorum.” And therefore the conftruction muft alfo be reafonable, and agreeable to common underftanding ^c.

2. THAT quoties in verbis nulla eft ambiguitas, ibi nulla expofitio contra verba fienda eft ^d: but that, where the intention is clear, too minute a ftrefs be not laid on the ftrict and precife fignification of words; nam qui haeret in litera, haeret in cortice. Therefore, by a grant of remainder a reverfion may well pafs, and e converfo ^e. And another maxim of law is, that “mala grammatical “non vitiat chartam;” neither falfe Englifh nor bad Latin will deftroy a deed ^f. Which perhaps a claffical critic may think to be no unneceffary caution.

3. THAT the conftruction be made upon the entire deed, and not merely upon disjointed parts of it. “Nam ex antecedentibus

.{FS}
^y Moor. 255. 11 Mod. 127.
^z 1 Ch. Caf. 39. 2 Ch. Caf. 144.
^a Salk. 238.
^b And. 60.
^c 1 Bulftr. 175. Hob. 304.
^d 2 Saund. 157.
^e Hob. 27.
^f 10 Rep. 133. Co. Litt. 223. 2 Show. 334.
.{FE}
Z z 2
“et
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Ch. 23.
“et confequentibus fit optima interpretatio ^g.” And therefore that every part of it, be (if poffible) made to take effect; and no word but what may operate in fome fhape or other ^h. “Nam “verba debent intelligi cum effectu, ut res magis valeat quem pereat ⁱ.”

4. THAT the deed be taken moft ftrongly againft him that is the agent or contractor, and in favour of the other party. “Verba “fortius accipiuntur contra proferentem.” For the principle of felf-prefervation will make men fufficiently careful, not to prejudice their own intereft by the too extenfive meaning of their words: and hereby all manner of deceit in any grant is avoided; for men would always affect ambiguous and intricate expreffions, provided they were afterwards at liberty to put their own conftruction upon them. But here a diftinction muft betaken between an indenture and a deed poll: for the words of an indenture, executed by both parties, are to be confidered as the words of them both; for, though delivered as the words of one party, yet they are not his words only, but the other party hath given his confent to every one of them. But in a deed poll, executed only by the grantor, they are the words of the grantor only, and fhall be taken moft ftrongly againft him ^k. However, this, being a rule of fome ftrictnefs and rigor, is the laft to be reforted to, and is never to be relied upon, but where all other rules of expofition fail ^l.

5. THAT, if the words will bear two fenfes, one agreeable too, and another againft, law; that fenfe be preferred, which is moft agreeable thereto ^m. As if tenant in tail lets a leafe for life generally, it fhall be conftrued for his own life only, for that ftands with the law; and not for the life of the leffee, which is beyond his power to grant.

.{FS}
^g 1 Bulftr. 101.
^h 1 P. W^ms. 457.
^I Plowd. 156.
^k Plowd. 134.
^l Bacon's Elem. c. 3.
^m Co. Litt. 42.
.{FE}
6. THAT
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The RIGHTS of THINGS.
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Ch. 23.
6. THAT, in a deed, if there be two claufes fo totally repugnant to each other, that they cannot ftand together, the firft fhall be received and the latter rejected ⁿ: wherein, it differs from a will; for there, of two fuch repugnant claufes the latter fhall ftand ^o. Which owing to the different natures of the two inftruments; for the firft deed, and the laft will are always moft available in law. Yet inboth cafes we fhould rather attempt to reconcile them ^p.

7. THAT a devife be moft favourably expounded, to purfue if poffible the will of the devifor, who for want of advice or learning may have omitted the legal and proper phrafes. And therefore many times the law difpenfes with the want of words in devifes, that are abfolutely requifite in all other inftruments. Thus a fee may be conveyed without words of inheritance ^q ; and an eftate-tail without words of procreation ^r. By a will alfo an eftate may pafs by mere implication, without any exprefs words to direct it's courfe. As, where A devifes lands to his heir at law, after the death of his wife: here, though no eftate is given to the wife in exprefs terms, yet fhe fhall have an eftate for life by implication ^s; for the intent of the teftator is clearly to poftpone the heir till after her death; and, if fhe does not take it, nobody elfe can. So alfo, where a devife is of black-acre to A and of white-acre to B in tail, and if they both die without iffue, then to C in fee: here A and B have crofs remainders by implication, and on the failure of either's iffue, the other or his iffue fhall take the whole; and C's remainder over fhall be poftponed till the iffue of both fhall fail ^t. But, to avoid confufion, no crofs remainders are allowed between more than two devifees ^u: and, in general, where any implications are allowed, they muft be fuch as neceffary (or at leaft highly probable) and not merely

.{FS}
ⁿ Hardr. 94.
^o Co. Litt. 112.
^p Cro. Eliz. 420. 1 Vern. 30.
^q See pag. 108.
^r See pag. 115.
^s 1 Ventr. 376.
^t Freem. 484.
^u Cro. Jac. 655. 1 Ventr. 224. 2 Show 139.
.{FE}
poffible
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Ch. 24.
poffible implications ^w. And herein there is no diftinction between the rules of law and of equity; for the will, being confidered in both courts in the light of a limitation to ufes ^x, is conftrued in each with equal favour and benignity, and expounded rather on it's own particular circumftances, than by any general rules of pofitive law.

AND thus we have taken a tranfient view, in this and the three preceding chapters, of a very large and diffufive fubject, the doctrine of common affurances: which concludes our obfervations on the title to things real, or the means by which they may be reciprocally loft and acquired. We have before confidered the eftates which may be had in them, with regard to their duration or quantity of intereft, the time of their enjoyment, and the number and connexions of the perfons entitled to hold them: we have examined the tenures, both antient and modern, whereby thofe eftates have been, and are now, holden: and have diftinguifhed the object of all thefe enquiries, namely, things real, into the corporeal or fubftantial, and incorporeal or ideal kind; and have thus confidered the rights of real property in every light wherein they are contemplated by the laws of England. A fyftem of laws, that differs much from every other fyftem, except thofe of the fame feodal origin, in it's notions and regulations of landed eftates; and which therefore could in this particular be very feldom compared with any other.

THE fubject, which has thus employed our attention, is of very extenfive ufe, and of as extenfive variety. And yet, I am afraid, it has afforded the ftudent lefs amufement and pleafure in the purfuit, than the matters difcuffed in the preceding volume. To fay the truth, the vaft alterations which the doctrine of real property has undergone from the conqueft to the prefent time; the infinite determinations upon points that continually arife, and which have been heaped one upon another for a courfe

.{FS}
^w Vaugh. 262.
^x Fitzg. 236. 11 Mod. 153.
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of
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Ch. 24.
of feven centuries, without any order or method; and the multiplicity of acts of parliament which have amended, or fometimes only altered, the common law; thefe cafes have made the ftudy of this branch of our national jurifprudence a little perplexed and intricate. It hath been my endeavour principally to felect fuch parts of it, as were of the moft general ufe, where the principles were the moft fimple, the reafons of them the moft obvious, and the practice the leaft embarraffed. Yet I cannot prefume that I have always been thoroughly intelligible to fuch of my readers, as were before ftrangers even to the very terms of art, which I have been obliged to make ufe of: though, whenever thofe have firft occurred, I have generally attempted a fhort explication of their meaning. Thefe are indeed the more numerous, on account of the different languages which our law has at different periods been taught to fpeak; the difficulty arifing from which will infenfibly diminifh by ufe and familiar acquaintance. And therefore I fhall clofe this branch of our enquiries with the words of fir Edward Coke ^y: “albeit the ftudent fhall not at any one day, do what he can, reach to the “full meaning of all that is here laid down, yet let him no way “difcourage himfelf, but proceed; for on fome other day, in “fome other place,” (or perhaps upon a fecond perufal of the fame) “his doubts will be probably removed.”

.{FS}
^y Proeme to 1 Inft.
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