in B's lifetime devised her contingent interest, and afterwards became the survivor, it was held that such interest did not pass. (1) With respect to the disposition by will of rights of Rights of entry. entry, it seems that previously to the recent act, they were not the subject of devise: for instance, the right of entry incident to the warranty annexed to exchanges could not have been devised. (2) Copyhold property acquired after the date of a will Copyhold promight before this statute have passed by the will, if perty acquired subsequently to containing a disposition of copyhold property generally, will. and if the property had been surrendered to the uses declared by the will. (3) And as a codicil to a will brought down the language thereof to the date of the codicil, copy- Codicil. holds acquired subsequently to the will might nevertheless have passed thereby. (4) 3. Of the recent Statute of Wills, concerning the Wills. The leading objects of the statute are as follows: 1. To Leading objects extend the power of disposition by will over all real and of Statute of personal estates and interests which the testator shall be entitled to at the time of his death: 2. To furnish some particular enactments applicable to customary or copyhold property, and estates pur autre vie of whatever tenure: 3. To require all wills and appointments by will to (1) Doe v. Tomkinson, 2 Mau. & Sel. 165. Fearne C. R. 366, et sey. (2) Attorney General v. Vigor, 8 Ves. 256. (3) Sug. V. & P. 182, [9th ed.] (4) 7 Ves. 98. 16 Ves. 167. G Interpretation be signed in the presence of two witnesses, present at the same time, and their subscription of the will in the testator's presence; and to make some particular provisions with reference to such witnesses: 4. To make provisions relative to the revocation and alteration of wills: 5. To provide for the operation attributable to a residuary devise, and to general words of devise, in passing property and executing powers: 6. To provide for the fee passing without words of limitation: 7. To give a construction to certain words, and to a devise to trustees and executors: 8. To enable certain persons to take through others, though dying in the testator's lifetime. (1) The statute first gives an interpretation to certain words and expressions, enacting that the word "will" shall extend to a testament, a codicil, an appointment by will, or by writing in the nature of a will in exercise of a power, and to a disposition by will of the custody of children under 12 C. 2, c. 24, s. 8, or the Irish Act, of 14 & 15 C. 2, and to any other testamentary disposition: that the words "real estate" shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right, or interest, (other than a chattel "Personal es- interest) therein; and that the words "personal estate" shall "Real estate." tate. Repealing clause. extend to leasehold estates, and other chattels real, and all other property whatsoever which by law devolves upon the executor or administrator. Section 2 repeals several statutes and parts of statutes applicable to wills; the 5, 6, 12, 19, 20, 21 & 22d. sections of the statute of frauds, 29 C. 2, c. 3; the 9th section of 14 G. 2, c. 20, relating to estates pur autre vie; and the 55 G. 3, c. 192, which dispensed with a surrender to the use of a (1) The Analysis prefixed to the statute in the Appendix will afford the reader a condensed view of its various provisions. will, intituled an "act to remove certain difficulties in the disposition of copyhold estates by will." Power of disposition by will. copyhold es tates. The 3rd section of the statute then enacts, that every person may by will dispose of all real and personal estate he may be entitled to, at law or in equity, at the time of his death, and which, if not so disposed of, would devolve upon the heir-at-law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and that the power thereby given should extend to all real estate of the nature of customary free- Customary hold, or tenant right, or customary or copyhold, though the freehold and testator might not have surrendered the same to the use of his will, or though, being entitled as heir, devisee, or otherwise to be admitted thereto, he should not have been admitted thereto, or though the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if the act had not been made, or though the same, in consequence of there being a custom that a will, or a surrender to the use of a will, should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in the act, if the act had not been made; and also to estates pur Estates pur autre vie, whether there should or should not be any special occupant thereof, and whether the same should be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or an incorporeal hereditament; and also to all contingent, execu- Contingent or tory or other future interests in any real or personal estate, whether the testator might or might not be ascertained as the person or one of the persons in whom the same respectively might become vested, and whether he might be entitled thereto under the instrument by which the same respectively were created, or under any disposition thereof by deed or will; and also to all rights of Rights of entry. entry for condition broken, and other rights of entry; and Property acalso to such of the same estates, interests and rights re- quently to will. quired subse autre vie. other future interests. Estate pur autre vie freehold tenure. Of freehold, or customary, or copyhold tenure. Will by person under twentyone invalid. spectively, and other real and personal estate, as the testator might be entitled to at the time of his death, though he might have become entitled to the same subsequently to the execution of his will. The 6th section enacts, that if no disposition by will is made of an estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it come to him by special occupancy, as assets by descent, as in the case of freehold land in fee-simple; and that if there be no special occupant of an estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party who had the estate by virtue of the grant; and that if the same come to the executor or administrator either by special occupancy, or by virtue of the act, it shall be assets in his hands, and be applied as the personal estate of the testator or intestate. 4. Of the Recent Statute of Wills with reference to the Competency of Persons to make Wills; the Will of a Married Woman; the Mode of Executing a Will; the Consequence of a Witness being a Devisee, Legatee, Creditor, or Executor ; as to the Re-publication of a Will, or the Revival thereof by Codicil; and as to the Commencement and Extension of the Statute. The 7th section enacts, that no will made by any person under the age of twenty-one years shall be valid. Previously to this enactment, no person under the age of twenty-one years could have made a valid disposition by will of lands, tenements, rents, or hereditaments; neither could the disability of infancy have been dispensed with. (1) But it seems to have been the better opinion, that a male infant of the age of fourteen, and a female (1) 3 Atk. 897. infant of the age of twelve, might have disposed of personal estate by will, though deeds executed by infants under twenty-one are in some cases absolutely void, and in others voidable. (1) woman. The 8th section provides, that no will of a married Will of married woman shall be valid, except such a will as she might have made before the act. A feme covert may be authorized to dispose by will either of real or personal estate, and her will of real estate must, in the absence of any prescribed solemnities, be executed as a proper will. (2) (1) Co. Lit. 89 b. n. (6). (2) 1 Sug. Pow. 297, [6th ed.] As having some connection with the subject of the text, it may not be thought irrelevant to introduce at this place a few obervations on the efficacy of words of separate use, annexed to gifts of property to unmarried women, as against their future husbands. Parker. In the judgment on the case of Massey v. Parker, 2 Myl. & Keen, 174, an Massey v. opinion was expressed by the court, that where property is given to an unmarried woman for her separate use, independently of any husband she may marry, and she afterwards marries without any disposition or settlement of the property having been made, the words of separate use are of no avail as against the husband, but he acquires an interest in the property by the marriage, and she is prevented from exercising any dominion over the property after the marriage. This case excited considerable attention in the profession, as it contravened an opinion which had before very generally existed, that words of separate use would in such a case be available against a future husband. In considering that portion of the judgment in Massey v. Parker which has reference to the above point, it is material to observe, that Brandon v. Robinson, 18 Ves. 429, Woodmeston v. Walker, 2 Russ. & Myl. 197, and Brown v. Pocock, 2 Russ. & Myl: 210, 5 Sim. 663, cases apparently cited in support of the opinion expressed by the court, were cases in which the subject in debate was, not whether a limitation to the separate use of an unmarried woman was available against a future husband, but whether, where property was settled on a person for life, words restrictive of alienation would be available in the absence of a limitation over, which they were held not to be. The case of Acton v. White, 1 Sim. & Stu. 429, also belongs to the same class. The cases of Barton v. Briscoe, Jac. 603, and Jones v. Salter, 2 Russ. & Myl. 208, decided, that where there is a limitation to the separate use of a married woman, with words restrictive of anticipation, the latter words are available only during the existing coverture; and the case of Newton v. Reid, 4 Sim. 141, only de cided, that an annuity to the separate use of a feme sole, who afterwards married, might be alienated in the absence of a limitation over. In none of the above cases was it decided, that a limitation to the separate Brandon v. Acton v. Barton v. Briscoe. Newton v. Reid. |