LECTURE LXVII.

OF TITLE BY WILL OR DEVISE.

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A WILL is a disposition of real and personal property, to take effect after the death of the testator. When the will operates upon personal property, it is sometimes called a testament, and when upon real estate, a devise; but the more general, and the more popular denomination of instrument, embracing equally real and personal estate, is that of last will and testament.a The definition of a will or testament, given by Modestinus in the Roman law, has been justly admired for its precision. Testamentum est voluntitis nostræ justa sententia de eo quod quis post mortem suam fieri velit.

(1.) Of the history of devises.

The law of succession has been deemed by many speculative writers, of higher and better obligation, than the fluctuating, and oftentimes unreasonable and unnatural distributions of human will. The general interests of society, in its career of wealth and civilization, require, that

a Howard, in his Dict. de la Cout. de Norm. vol. i. 197. gives the true derivation of the word devise :—“ devise (divisa) marque de division de Partage de terres; ce mot vient du Latin dividere." Crosley on Wills, p. 1. note.

b Dig. 28. 1. 1. Vinnius thinks, however, that it would be a more perfect definition, to say, Testamentum est suprema contestatio in id solenniter facta, ut quem volumus, post mortem nostram habeamus hæredem.-Vinn. Com. in Inst. lib. 2. tit. 10. Etym. sec. 2.

eve man should have the free enjoyment and disposition cs own property. The law of our nature, by placing s under the irresistible influence of the domestic affections, has suficiently guarded against any great abuse of the power of testamentary disposition, by connecting our hopes and wishes with the fortunes of our posterity. In the primotive age of many nations wills were unknown. This was the case with the ancient Germans, and with the laws of Lycurgus, and with the Athenians before the age of Solo But family convenience, and a sense of the absome right of property, introduced the use of testaments,

the more advanced progress of nations. The Attic laws ki Solon allowed the Athenians to devise their estates, provided they had no legitimate children, and were comretent in mind, and not labouring under any personal disabelity. If they had children, the power to devise was qualified, and it allowed the parent to devise if the sons Ged under the age of sixteen; or, in the case of daughters, with the condition that the devisees should take them in marriage; and no devisee was allowed to take possession of the estate, except under the adjudication of a court of justice. The introduction of the law of devising, by Solon, was accompanied with great fraud and litigation, though his laws are said, by Sir William Jones, to have had the merit of conciseness and simplicity.

a Successores suù cuique liberi, et nullum Testamentum,—Tacil. X. G. c. 20. Taylor's Elem, of the Civil Law, 522, 524. Jones' Com. on Inzus. According to Vinnius, in his Com. on the Institutes, lib. 2. tit. 2. Etym. sec. 4. the restraint upon the devise of real estate existed, in his day, with the Poles, Swedes, Danes, and some parts of Germany.

b. Plutarch's Life of Solon, by J. & W. Langhorne. Jones' Larus, Pref. Dis. on the Attic Laws. The speeches of Isæus related chiefly to the abuses of the law of wills. The claims of heirship and of blood, were urged with vehement eloquence, against the frands suggested in procuring wills, or the bad passions which dictated them, or

Prior to the time of the decemvirs, no Roman citizen could break in, by will, upon the order of succession, unless the act was done and permitted in the assembly of the people. But wills were allowed at Rome by the twelve tables, and they gave the power to an unlimited extent, which was afterwards qualified by the interpretation and authority of the tribunals. They were executed with great ceremony before five citizens, who were to represent the people, and the transaction was in the form of a purchase of the inheritance. They were, at last, by the law of the prætors, placed under the burdensome check of seven witnesses, who were required to affix their seals and signatures The power of devise was checked by the Emperor Justinian, and unless a fourth part of the inheritance was reserved for the children, they were allowed to set aside. the testament as inofficious, under the presumptive evience of mental imbecility.

a

It seems to be the better opinion, that lands were devisable, to a qualified extent, with the Anglo-Saxons. The bocland was held in independent right, and devisable by will. But, upon the establishment of the feudal system

the perfidy which suppressed the revocation of them. Most of the speeches involve the discussion of the allegation of a forged will; and they are replete with the bitterest personal reproaches. In one of them, the mode of procuring certain and infallible evidence, by the torture of slaves, is commended. These specimens of forensic discussion are the most ancient monuments extant of the kind; but they do no honour to the morals and manners of the Athenians. The profound and searching history of Mitford, and the testimony of St. Paul, afford equally sad proofs of the corruption of ancient morals. How, indeed, could sound morality and pure practice be expected among a people, who had no due sense of the existence and presence of the Father of Lights, from whom cometh down every good and every perfect gift?

a Inst. 2. 10. 2,3. Dig. 50. 16. 120. 8 Gibbon's Hist. 78. Esprit des Loix, liv. 27.

b Inst. 2. 18. pr. lbid. sec. 1, 2, 3. See supra, vol. ii. 264.

Spelman on Feuds, ch. 5. Wright on Tenures, 171.

Nieman one quest, lands held in tenure ceased to be bergabe, i ocusequence of the feudal doctrine of nonLambia wabout the consent of the lord; for the power A sevsing wood hare essentially affected many of his gs and perleges. There were exceptions to the feudal mestraint on wis exsting as to burgage tenures, and gavelknd lands The restraint upon the power of devising Si not give way to the demands of family, and public conVERDEDOR, so early as the restraint upon alienation in the Iframe of the owner. The power was covertly conferred by means of the application of uses, for a devise of the JHe Was DOC Considered a devise of the land. The devise) of the use was supported by the courts of equity as a dispostice boding in conscience, and that equitable jurisdic the crationed, the use became. by statute, the legal exture. The statute of uses, like the introduction of fends.

tim destroyed the privilege of devising, but the disability was removed, within five years thereafter, by the statute -€ wils of 22 Hen. VIII. That statute applied the power - dersing to socage estates, and to two thirds of the lands heid by knight service; and this last and lingering check was removed, with the abolition of the military tenures, in the beginning of the reign of Charles II., so as to render The disposition of real property by will absolute.

The Enzsh law of devise was imported into this country by our ancestors, and incorporated into our colonial jurisprudence, under such modifications, in some instances, as were deemed expedient. Lands may be devised by

a Lander v. Brooks, Cra C. 561. Co. Litt. 111. b.

6 The statute of wills, or a substitute for it, has been adopted throughout the United States; but not its preamble, either in letter or spirit. That preamble is a curiosity, as being a sample of the most degrading and contemptible servility and flattery that ever were heaped ly saves upon a master. In Scotland, down to a very recent period, most all a man's heritage, and a great part of his estate acquired ar penchase, cord not be devised from the lineal heir.