A

PRACTICAL VIEW

OF THE

NEW STATUTE OF WILLS.

dition of the

IN the long struggle to enrol among our civil General conrights the power of testamentary disposition,- old law. one of the last consummate fruits of a refined policy, when, as war had pre-occupied the land and superstition bespoken the goods, every point was to be carried against feudal (a) or ecclesiastical repugnance, it is not difficult to suppose that a mass of laws would be generated, neither enlightened, comprehensive, nor coherent. The different degrees of dignity and value, naturally attached by our ancestors, in times of chieftainship and violence, to moveable and immoveable property, and again, as regards the soil, to the tenure of the sword and of the plough, to freehold and to leasehold interests (b), and the different

(a) See Barrington's Stat. 502.

(b) The feudal law took little account of tenants for years, occupied, as they were, in the baser pursuits of husbandry; and though a large portion of the landed pro

B

The testamentary power, how affected by the testator's domicil.

jurisdictions under which territorial and commercial wealth consequently fell, embarrassed the growth of the much-coveted dominion with numerous distinctions, in themselves artificial and arbitrary, and in their consequences inconvenient, often unjust. Under such various and conflicting influences, both the right of disposing and the forms of disposition were capriciously modified; opposite codes were formed; the law, as respects realty, continued too strict, as respects personalty, grew too lax; and at the period of the recent legislative revision of this interesting branch of our jurisprudence, its general characteristics were complication, diversity, uncertainty. To what extent, and with what success, a remedy has been applied, it will be one of our objects to shew, in the observations which we are about to offer on the statute (c) "For the Amendment of the Laws with respect to Wills."

upon

But as we do not address ourselves to the learned reader exclusively, it may be useful to preface our remarks the statute, by observing, that the validity, construction, and effect of testamentary dispositions are determined, as to immoveable property, by the law of the state within which the

perty of the kingdom is now held under leases for years, yet such leases still rank only as personal estate. (Vide post, p. 5, n. (k)).

(c) 1 Vict. c. 26. (The statute is appended to these observations).

subject-matter has its fixed existence (d); but, as to moveable property, which is supposed to accompany our motions, and which really sympathises in our fortunes, by the law of the state within which the testator, at the time of his death, had his domicil or home (e). Hence, to a greater or a less extent, the self-expatriated British subject (and for this purpose a permanent residence even in Scotland is expatriation) stands excluded from, among other natal and inestimable rights, the advantages held out by the testamentary laws of his country, which breathe the generous freedom of its other institutions. The chief and peculiar Comparative advantage of those laws, which he thus in part the English renounces, consists in the absolute subjection of all his property, real and personal, to his ultimate volition. The Law of England, wisely directing its paternal care to the great family of the state, confided private and particular interests to the dictates of natural and moral feeling, and has not repented of its confidence. There have been cases, indeed, but such cases are of rare occurrence, in which, under peculiar circumstances, wills, unnaturally injurious to the

(d) Bovey v. Smith, 1 Vern. 85: Brodie v. Barry, 2 Ves. & B. 130: Birtwhistle v. Vardill, 5 Barn. & C. 438. (e) Re de Vera Maraver, 1 Hagg. 498: Stanley v. Bernes, 3 Hagg. 373: Anstruther v. Chalmers, 2 Sim. 1. The original domicil from birth, early attachments, &c., remains, until abandoned. See Somerville v. Lord Somerville, 5 Ves. 750: Munroe v. Douglas, 5 Madd. 379. Story's Conflict of Laws, 39.

freedom of

testamentary

law.