CHAPTER II. THE PROPERTY WHICH MAY BE DISPOSED History of THE testamentary power over real as well as over personal property has grown up in England from a remote origin, and has been for a long time exerciseable, either directly or indirectly, over every kind of possession, which, not being fettered by entails or liabilities, could be transferred by alienation taking effect in the owner's lifetime. It will be well to take a short survey of the history of this power; first, as it has been established over land, and secondly, as in accordance with common reason it has been assumed and exercised over personalty. The testamentary power over land was cerPower over Real tainly in use among our Anglo-Saxon and Danish Property, Har- ancestors; though it seems to have been rather grave's Note to Co. Litt. 111. b. adopted from the remnant of the Roman laws and customs which they found here, than brought from their own country: for Tacitus says, writing of the ancient Germans, successores sui cuique liberi, et nullum testamentum, Spelm. Posthum. 21, 127. After the Norman conquest the power of devising land ceased, except as to socage lands in some particular places, such as cities and bo roughs, in which it was still preserved; and also Real Property. except as to terms for years or chattel interests in lands, which, on account of their original imbecility and insignificance, were deemed personalty, and as such were ever disposable by will. This limitation of the testamentary power proceeded partly from the solemn form of transferring land by livery of seisin introduced at the Conquest, which could not be complied with in the case of a last will; partly from a jealousy of death-bed dispositions; but principally from the general restraint of alienation incident to the rigours of the feudal system, as it was established or at least perfected by the first William. See Wright's Ten. 172. In the reign of Edward the First, the statute of quia emptores removed in a great measure this latter bar to the exercise of testamentary power; that is, in respect to all freeholders, except the king's tenants in capite. But the two former obstructions still continued to operate; though, indeed, this was in name and appearance only; for soon after the statute of quia emptores, feoffments to uses came into fashion, and last wills were enforced in Chancery as good declarations of the use; and thus through the medium of uses the power of devising was continually exercised in effect and reality. But at length this practice was checked, not accidentally, but designedly, by the statute of 27th of Hen. 8, which, by transferring the possession or legal estate to the use, necessarily and compulsively consolidated c 2 Real Property, them into one, and so had the effect of wholly Rep. of Real Prop. Comm. 1833, p. 9. destroying all distinction between them, till the means to evade the statute, and, by a very strained construction to make its operation dependent on the intention of parties, were invented. However, the bent of the times was so strong in favour of every kind of alienation, that the legislature, in a few years after having interposed to restrain an indirect mode of passing land by last wills, expressly made it devisable. This great change of the common law was effected by the statutes of 32 & 34 Hen. 8, which, taken together, gave the power of devising to all having estates in feesimple, except in joint-tenancy over the whole of their socage land, and over two-thirds of their land holden by knight's service. The operation of these acts was further extended by the conversion of knight's service into socage in the 12 Cha. 2. But still copyhold lands, and also estates pur autre vie in freehold lands, remained undevisable, unless it were by the artifice of vesting the legal estate in trustees, in like manner as estates in fee-simple might be devised before the Statute of Uses. On the one hand, they were not devisable at common law; because they came within the description of real estate. On the other hand, they, or at least the former, are not within the statutes of Hen. 8, these requiring that the tenure should be socage, which a copyhold is not; and that the party should have an estate in fee-simple, which is more than a tenant pur autre vie can be said to have. This defect of Real Property. provision in the statutes of wills was supplied as to the estates pur autre vie by the 29 Cha. 2, c. 3, which made them devisable in the same manner as estates in fee-simple. And with respect to copyhold estates, over which a power of devising was long exercised indirectly by an application of the statute of uses, similar to that which was anciently resorted to for passing freehold lands, the practice being to surrender to the use of the owner's last will, on which surrender the will Semaine v. Selwin, 1 Bulst. operated as a declaration of the use, and not as a 200'; Attorneydevise of the land, a recent statute rendered valid General v. Vigor, 8 Ves. 286. the direct disposition of them by will in all cases 55 Geo. 3, in which the same could before have been effected c. 192. indirectly by the means of such previous sur render; though this statute was held only to Doe v. Bartle, supply the want of a mere formal surrender, and 5 B. & A. 492. not of such surrender as are matters of substance by the custom of the manor. Comm. bk. ii. With respect to personal estate the power of Personal Probequeathing, says Sir William Blackstone, is co-perty. eval with the first rudiments of the law; for we ch. 32. have no traces or memorials of any time when it did not exist. Mention is made of intestacy in the old law before the Conquest, as being merely accidental; and the distribution of the intestate's estate, after payment of the lord's heriot, is then directed to go according to the established law. But we are not to imagine that the power of bequeathing extended originally to all a man's per Personal sonal estate. On the contrary Glanvil, that by the common law as it stood in the reign of Henry the Second, a man's goods were to be divided into three equal 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 then dispose of one moiety, and the other went to his children; and so è converso, if he had no children the wife was entitled to one moiety, and he might bequeath the other; but if he died without either 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 rationabili parte bonorum was given to recover them. This continued to be the law of the land at the time of Magna Charta, which provides that the king's debts shall first of all be levied, and then the residue of the goods shall go to the executor to perform the will of the deceased; and if nothing shall be owing to the crown, omnia catalla cedant defuncto; salvis uxori ipsius et pueris suis rationabilibus partibus suis. In the reign of king Edward the Third, this right of the wife and children was still held to be the universal or common law; though frequently pleaded as the local custom of Berks, Devon, and other counties: and Sir Henry Finch lays it down expressly, in the reign of Charles the First, to be the general law of the land. But this law |