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ing its operation to those particular uses. For by statute 4 and 5 Anne, c. 16, indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, shall be good and effectual in law, and the fine and recovery shall inure to such uses, and be esteemed to be only in trust, notwithstanding any doubts that had arisen on the statute of frauds, 29 Car. II. c. 3, to the contrary.

Chapter XXII.

OF ALIENATION BY SPECIAL CUSTOM.

365-373

The chapter treats of alienation by special custom, obtaining only in particular places, and relative only to a particular species of property, and especially to copyhold lands.

Chapter XXIII.

OF ALIENATION BY DEVISE.

373-384.

The last method of conveying real property is by devise, or disposition contained in a man's last will and testament. And, in considering this subject, I shall not at present inquire into the nature of wills and testaments, which are more properly the instruments to convey personal estates; but only into the original and antiquity of devising real estates by will, and the construction of the several statutes upon which that power is now founded. Origin of Devise of Real Estate by Will.

It seems sufficiently clear, that, before the conquest, lands were devisable by will. But upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feodal doctrine of non-alienation without the consent of the lord.

We find that, by the common law of England since the conquest, no estate, greater than for term of years, could be disposed of by testament; except only in Kent, and in some ancient burghs, and a few particular manors, where their Saxon immunities by special indulgence subsisted. And though the feodal restraint on alienations by deed vanished very early, yet this on wills continued for some centuries after.

But when ecclesiastical ingenuity had invented the doctrine of uses as a thing distinct from the land, uses began to be devised very frequently, and the devisee of the use could in chancery compel its execution. But, when the statute of uses had annexed the possession to the use, these uses, being now the very land itself, became no longer devisable; which might have occasioned

a great revolution in the law of devises, had not the statute of wills been made about five years after, which enacted, that all persons being seised in fee-simple (except feme-coverts, infants, idiots, and persons of non-sane memory) might by will and testament in writing devise to any other person, except to bodies corporate, two-thirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles the Second, amounts to the whole of their landed property, except their copyhold tenements.

Corporations were excepted in these statutes, to prevent the extension of gifts in mortmain: but now, by construction of the statute 43 Eliz. c. 4, it is held, that a devise to a corporation for a charitable use is valid, as operating in the nature of an appointment rather than of bequest.

With regard to devises in general, experience soon showed how difficult and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law; which are so nicely constructed and so artificially connected together, that the least breach in any one of them disorders for a time the texture of the whole. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance; for so loose was the construction made upon this act by the courts of law, that bare notes in the handwriting of another person were allowed to be good wills within the statute. To remedy which, the statute of frauds and perjuries 29, Car. II. c. 3, directs that all devises of lands and tenements shall not only be in writing, but signed by the testator, or some other person in his presence and by his express direction; and be subscribed, in his presence. by three or four credible witnesses. And a solemnity nearly similar is requisite for revoking a devise by writing, though the same may be also revoked by burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent as likewise impliedly, by such a great and entire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child.

In the construction of this last statute, it has been adjudged that the testator's name written with his own hand, at the beginning of his will, as "I, John Mills, do make this my last will and testament," is a sufficient signing, without any name at the bottom: though the other is the safer way. It has also been determined that, though the witnesses must all see the testator sign, or at least acknowledge the signing, yet they may do it at different times. But they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument. And, in one case determined by the court of King's

Bench, the judges were extremely strict in regard to the credibility, or rather the competency, of the witness: for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas, otherwise he had no claim but on the personal assets. 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.

This occasioned the statute 25 Geo. II. c. 6, which restored both the competency and the credit 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 shall be contested. And in a much later case the testimony of three witnesses who were creditors was held to be sufficiently credible, though the land was charged with the payment of debts; and the reasons given on the former determination were said to be insufficient.

Another inconvenience was found to attend this new method of conveyance by devise; in that creditors by bond and other specialties, which affected the heir, provided he had assets by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 and 4 W. and M. c. 14, hath provided, that all wills and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple or having power to dispose by will, shall (as against such creditors only) be deemed to be fraudulent and void: and that such creditors may maintain their actions jointly against both the heir and the devisee.

A will of lands, made by the permission and under the control of these statutes, is considered by the courts of law not so much in the nature of a testament as of a conveyance declaring the uses to which the land shall be subject: with this difference, that in other conveyances the actual subscription of the witnesses is not required by law, though it is prudent for them so to do, in order to assist their memory when living, and to supply their evidence when dead; but in devises of lands such subscription is now absolutely necessary by statute, in order to identify a conveyance, which in its nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is

merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will, wherefore no after-purchased lands will pass under such devise, unless, subsequent to the purchase or contract, the devisor republishes his will.

Rules of Construction.

We have now considered the several species of common assurances, whereby a title to lands and tenements may be transferred and conveyed from one man to another. But, before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice, for the construction and exposition of them all. These are, 1. That the construction be favourable, and as near the minds and apparent intents of the parties as the rules of law will admit. And therefore the construction must also be reasonable, and agreeable to common understanding.

2. That quoties in verbis nulla est ambiguitas ibi nulla exposito contra verba fienda est: but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui haeret in liera, haeret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converso.

3. That the construction be made upon the entire deed, and not merely upon disjointed parts of it. And therefore that every part of it be (if possible) made to take effect; and no word but what may operate in some shape or other.

4. That the deed be taken most strongly against him that is the agent or contractor, and in favor of the other party. As, if tenant in fee-simple grants to any one an estate for life. But here a distinction must be taken between an indenture and a deed-poll: for the words of an indenture, executed by both parties, are to be considered as the words of them both; for, though delivered as the words of one party, yet they are not his words only, because the other party hath given his consent to every one of them. But in a deed-poll, executed only by the grantor, they are the words of the grantor only, and shall be taken most strongly against him. And, in general, this rule, being a rule of some strictness and rigour, is the last to be resorted to; and is never to be relied upon, but where all other rules of exposition fail.

5. That, if the words will bear two senses, one agreeable to, and another against, law, that sense be preferred which is most agreeable thereto.

6. That, in a deed, if there be two clauses so totally repug

nant to each other, that they cannot stand together, the first shall be received, and the latter rejected: wherein it differs from a will; for there, of two such repugnant clauses the latter shall stand. Which is owing to the different natures of the two instruments; for the first deed and the last will are always most available in law. Yet in both cases we should rather attempt to reconcile them.

7. That a device be most favorably expounded, to pursue if possible the will of the devisor, who for want of advice or learning may have omitted the legal or proper phrases. And therefore many times the law dispenses with the want of words in devises that are absolutely requisite in all other instruments. Thus, a fee may be conveyed without words of inheritance; and an estatetail without words of procreation. By a will also an estate may pass by mere implication, without any express words to direct its course. And, in general, where any implications are allowed, they must be such as are necessary (or at least highly probable) and not merely possible implications. And herein there is no distinction between the rules of law and of equity; for the will, being considered in both courts in the light of a limitation of uses, is construed in each with equal favour and benignity, and expounded rather on its own particular circumstances, than by any general rules of positive law.

Chapter XXIV.

OF THINGS PERSONAL.

384-389.

Under the name of things personal are included all sorts of things movable, which may attend a man's person wherever he goes.

Chattels.

But things personal, by our law, do not only include things movable, but also something more: the whole of which is comprehended under the general name of chattels, which Sir Edward Coke says is a French word signifying goods. The appellation is in truth derived from the technical Latin word catalla; which primarily signified only beasts of husbandry, or (as we still call them) cattle, but in its secondary sense was applied to all movables in general. In the grand coustumier of Normandy a chattel is described as a mere movable, but at the same time it is set in opposition to a fief or feud; so that not only goods, but whatever was not a feud, were accounted chattels. And it is in this latter, more extended, negative sense, that our law adopts it.

Chattels therefore are distributed by the law into two kinds; chattels real, and chattels personal.

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