civil state, which has permitted it or not according as political circumstances have appeared to dictate; and even where it is permitted by law, it is subjected to different formalities and restrictions in almost every country. In our own country, both real and personal estate have long been capable of transmission by will; but for the present we shall confine ourselves to real estate and to lands of freehold tenure. And we shall consider, I. The power of devise itself; II. The solemnities which attend the execution, revocation, and revival of wills; III. The rules of construction to which devises are subject; and IV. The operation of devises in conveying or limiting real estate.

I. [As to the power of devising. It seems that, at a period antecedent to the Conquest, lands were devisable in this country (f). Upon the introduction of the military tenures, however, a restraint on devising lands naturally followed, as a branch of the feudal doctrine of non-alienability without the consent of the lord. So that after the Conquest, no estate greater than for term of years could be disposed of by testament (g); except only in Kent and in some antient boroughs, and in a few particular manors, where the old Saxon immunities continued, by special indulgence, to subsist (h). And though the feudal restraint on alienation by deed vanished very early, yet the restraint on alienation by will continued for some centuries after (i). When Uses were invented, they began to be devised (k). But when the Statute of Uses (1536) was passed, the legal estate became annexed to the Use, and rendered it incapable of being devised. This led to the passing some five years later of the Statute of Wills, 32 Hen. VIII. c. 1 (explained by 34 & 35 Hen. VIII. c. 5), which authorized all persons being seised in fee simple (except femes covert, infants, (f) Wright, Ten. 172.

(g) 2 Inst. 7.

(h) Litt. s. 167; Co. Litt. 111.

Vide Rob. Gavel. 235.
(i) Glan. lib. 7, ch. 1.

(A) Plowd. 414; Gilb. Devises, 7.

[idiots, and persons of non-sane memory), by will in writing to devise to any other person, except to bodies corporate, two-thirds of their lands, tenements, and hereditaments held in chivalry, and the whole of their lands held in socage. This partial power of devising lands became, of course, complete upon the alteration of tenures effected by the statute or Charles the Second, whereby chivalry was converted into socage (1). And a devise under these statutes took effect, not only upon legal, but also upon equitable estates. But the devise was inoperative, unless the land belonged to the testator at the time of making his will; so if the testator was desirous of including after-acquired lands in his testamentary dispositions, a new will or codicil, or a re-execution of the existing will, was required for the purpose.]

Such was the power of devising as it existed at the passing of the Wills Act, 1837. Now, under that Act, any person (being of full age) is able to dispose by will of all real and personal estate, legal or equitable, to which he or she shall be entitled at the time of his or her death, and which, but for such disposition, would pass to his or her heir at law. And the Act expressly extends this power of disposition to an estate held pur auter rie, and to any contingent, executory, or other future interest, and even to a right of entry upon land, a class of interest previously regarded as incapable of being devised (m). The power is also expressly extended to after-acquired property, by a provision that all real estate, to which the testator is entitled at the time of his death, shall pass by his will, notwithstanding that he may become entitled to the same, subsequently to the execution of the will (n). And, there being no exception in the Act with regard to

(1) 12 Car. 2, c. 24.

(m) Good right v. Forrester, (1808) 8 East, 552; Pemberton v. Barnes, [1899] 1 Ch. 544.

(n) 7 Will. 4 & 1 Vict. c. 26, s. 3; Marston v. Roe, (1838) 8 A. & E. 14.

corporations, a devise even to a body corporate is now valid, subject to the Statutes of Mortmain, by which corporations are required to obtain the crown's licence, to enable them to become the holders of land. On the other hand, the Act contains an express exception to the power of devising, in reference to married women and infants, the first being only allowed to make a valid disposition in cases in which they might have done so before the Act (o), and minors being made wholly incompetent. To these exceptions we must of course understand the exception to be tacitly added which would be introduced by the general rules of law, in respect of idiots, insane persons, and others labouring under personal incapacity to convey in any manner whatever (p). As regards married women, they might always dispose of their separate real estates by will. They might always too, in the execution of a power of appointment, dispose of real estates by will. And we shall hereafter see, that, under the various Acts relating particularly to the separate estates of married women (q) they now have, as regards their separate estates, the fullest powers of devise, as indeed of alienation generally.

II. [The solemnities which attend the execution, revocation, and revival of a will. When the old Statute of Wills (32 Hen. VIII. c. 1) for the first time gave efficacy to devises of realty, innumerable frauds and perjuries were introduced. This need occasion no surprise, for at that time bare notes, in the handwriting of the party, became good wills within the statute, if only published by him as such; that is, if only declared by the testator to be intended to operate as his last.

(0) 7 Will. 4 & 1 Vict. c. 26, ss. 7, 8; Forse and Hembling's Case, (1588) 4 Rep. 60 b; Pride v. Bubb, (1872) L. R., 7 Ch. App. 64.

(p) Smith v. Tebbitt, (1867) L. R. 1 P. & D. 398; Banks v. Good

fellow, (1870) L. R., 5 Q. B. 549.

(q) Married Women's Property Act, 1893, amending Married Women's Property Act, 1882, and extending s. 24 of the Wills Act to the will of a married woman.

[will and testament (r). And except publication, no ceremony was then essential to a written will of personalty (s); while the old Statute of Wills prescribed no particular solemnity in reference to devises of real estate, except that it required the will to be in writing. To remove all which opportunities for fraud, the Statute of Frauds (29 Car. II. c. 3) directed, amongst other things, that devises of lands and tenements should not only be in writing, but should be signed by the testator, or by some other person for him in his presence and by his express direction (t); and should also be subscribed, in his presence, by three credible witnesses (u). And a solemnity nearly similar was, by the same Act (sect. 6), made requisite for revoking devises (x); though devises might also be revoked by the burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence, and with his consent, by any other person, if done animo revocandi (y) as they might also be, implicitly, by any new modification of the interest of the devisor in the estate devised (2), or by such a great and entire alteration in circumstances as arose from his marriage and the birth of a child (a), or, in the case of a woman, by her marriage simply (b).

In the construction of the Statute of Frauds, it was settled, that the testator's name, written with his own hand at the beginning of the will, as, “I, John Mills, do make this my last will and testament," was a sufficient signing, if intended as such by the testator. It was also determined, that though the witnesses must all see the

(r) 2 Bl. Com. 376.

(s) Doe v. Sir F. Burdett, (1836) 4 A. & E. 14.

(t) Baker v. Denning, (1838) 8 A. & E. 94.

(u) Roberts v. Phillips, (1855) 4 Ell. & Bl. 450.

(x) Swinton v. Bailey, (1876) 1 Ex. D. 110.

(y) Andrew v. Motley, (1852) 12 C. B. (N.s.) 514.

(z) Sparrow v. Hardcastle, (1754) 3 Atk. 802.

(a) Re Cadywold, (1863) 1 Swab. & Trist. 34; 2 Bl. Com. 376.

(b) Forse & Hembling's Case, (1588) 4 Rep. 60 b.

[testator sign, or at least see him acknowledge his signature, yet they need not all be present at the same time (c), though they must all subscribe their names in his presence, lest by any possibility they should mistake the instrument (d). And the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses; for they would not allow any legatee, nor a creditor by simple contract, where the legacies and debts were charged on the real estate, to be a competent witness to the devise (e). This determination, however, alarmed many purchasers and creditors, and threatened to shake most of the titles in the kingdom, that depended on devises by will. For if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues (and these are the persons most likely to be present at the testator's last illness), and if, in such case, the testator had charged his real estate with the payment of his debts, every disposition in the will, so far as it related to real property, would have been utterly void. This occasioned the statute 25 Geo. II. c. 6, which restored both the competency and the credibility of such legatees, by declaring void all legacies given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit, (like that of all other witnesses,) to be considered on a view of all the circumstances, by the court and jury before whom such will should be contested (ƒ).]

Such is still the law as to the execution and attestation

(c) Freem. 486; 2 Ch. Ca. 109; Prec. in Ch. 185.

(d) Longford v. Eyre, (1721) 1 P. Wms. 740.

(e) Holdfast v. Dowsing, (1749) Stra. 1253.

(f) Cresswell v. Cresswell, (1868) L. R., 6 Eq. 69.