tract or parcel of land, lying and being in the county of in the state of containing acres, be the same more or less, and bounded as follows, to wit, Beginning at &c. (here describe the land particularly) also the following slaves, and other personal property, to wit, (here specify the slaves by name, &c. and the other personal property particularly) with all and singular the appurtenances to the said tract or parcel of land belonging, or in any wise appertaining, and the future increase of the females of the said slaves. and all the estate, right, title, and interest of the said A D, in and to the said granted or intended to be hereby granted tract or parcel of land, and premises: To have and to hold the said hereby granted or intended to be hereby granted tract or parcel of land and premises, with its appurtenances, together with the aforesaid slaves, and the future increase of the females thereof, and all the other personal property hereby conveyed, unto the said B T and C T, &c. their heirs, executors, administrators, and assigns, for ever, to the only proper use and behoof of the said B T and C T, &c. their heirs, executors, administrators, and assigns, for ever: And the said A D, for himself, his heirs, executors, and administrators, doth hereby covenant, promise, and agree, to and with the said B T and C T, &c. their heirs, execu tors, administrators, and assigns, for ever, in manner and form following, that is to say, that the said A D, his heirs, executors, and administrators, the aforesaid tract or parcel of land and premises, with their appurtenances, together with the aforesaid slaves, and the future increase of the females thereof, and all the other personal property hereby conveyed, unto the said B T and CT, &c. their heirs, executors, administrators, and assigns, against all persons whatever, shall and will warrant and for ever defend, by these presents; upon trust neverthetess, that the said B T and CT, &c. their heirs, executors, and administrators, shall permit the said A D to remain in quiet and peaceable possession of the said tract or parcel of land and premises, with its appurtenances, together with the aforesaid slaves, and other personal property hereby conveyed, and take the profits thereof to his own use, until default be made in the payment of the said sum of either in the whole, or in part; and then upon this further trust, that they, or any two, or either of them, or the survivor of them, or the heirs, executors, administrators, or assigns of such survivor, shall and will, so soon after the happening of such default of payment as they, or any, or either of them, or the survivor of them, or the heirs, executors. administrators, or assigns of such survivor, may think proper, or the said E C, his executors, administrators, or assigns, shall request, sell the said tract of land and premises, with the appurtenances, together with the aforesaid slaves, and the increase of the females thereof, and all the other personal property hereby conveyed, or such part of the hereby granted premises, as the trustee or trustees, or their representatives, hereby authorised to act, shall think sufficient for the purpose, and shall think proper to sell to the highest bidder for ready, money, at public auction, after having fixed the time and place of sale, at their own discretion, and given days notice thereof, in one or more of the newspapers printed in and also notified the same, by advertisement, to be set up at the door of the court-house of coun ty, on some court day previous to the day of sale: And out of the monies arising from such sale shall, after satisfying the charges thereof, and all other expences attending the premises, pay to the said EC, his executors, administrators, or assigns, the said sum of with the interest which may thereon lawfully have accrued; and the balance, if. any, shall pay to the said A D, his heirs, executors, administrators, or assigns: But if the whole of the said sum of shall be fully paid off and discharged to the said E C, his executors, administrators, or assigns, on or before the in the year when the same is payable, so that no default of payment of the said sum of be made, then this indenture to be void, or else to remain in full force and virtue. In witness whereof, the said parties to these presents have hereunto set their hands and affixed their seals, the day and year first above written. day of (There must be three witnesses, at least.) If the deed of trust embrace lands only, then whatever relates to slaves and personal estate must be omitted; also the words printed in italics; and if there be slaves, but no females, then whatever relates to the future increase must of course be omitted. The above form is drawn to suit the case of two or more trustees, which is most usual, but it may easily be varied, so as to be applicable to cases where there is but one. If there be slaves only, or personal estate only, then such parts of the above form may be selected, as applies to the species of property conveyed. I, A B, of WILLS. A will of real and personal estate. do hereby make my last will and testament in manner and form following, that is to say: Ist. I desire that all the perishable part of my estate be immediately sold after my decease, and out of the monies arising therefrom, all my just debts and funeral expences be paid. Should the perishable part of my property prove insufficient for the above purposes, then I desire that my executors, hereafter named, may sell my houses and lots lying on street, in the town of and out of the monies arising therefrom pay and satisfy such of my just debts, as shall remain unpaid out of the sales of the perishable part of my estate. * 2dly. After the payment of my debts and funeral expences, I give to my wife C B one third part of my estate, both real and personal, for and during the term of her natural life, and after her decease, İ * See Co. Litt. 113, a. as to the operation of law on a devise to executors to sell, and a direction that executors shall sell. See also, in the same folio, Note (2) a very valuable note by Mr. Hargrave on that distinction. give the same to my children herein after mentioned, equally to be divided among them; and to be enjoyed by them for ever. 3dly. I give to my son D B all my lands in heirs for ever. to him and his 4thly. I give to my son E B all my * estate in the county of 5thly. I give to my daughter F B, her executors and administrators, ten thousand dollars, being part of my six per cent. stock, now standing in my name in the books of commissioner of loans for the state of Virginia 6thly. I give to my daughter G B all the residue of my six per cent. stock, also all other my funded debt of the United States, standing in my name on the books of commissioner of loans for the state of Virginia. 7thly. All the rest of my estate, both real and personal, of what nature or kind soever it may be, not herein before particularly disposed of, I desire may be equally divided among my several children herein before named, which I give to them, their heirs, executors, administrators, and assigns, for ever. And, lastly, I do hereby constitute and appoint my friends H B and JB executors of this my last will and testament, hereby revoking all other or former wills or testaments by me heretofore made. In witness whereof, I have hereunto set my hand and affixed my seal, this day of in the year Signed, sealed, published, and declared, as &c. A B.. [Seal.] and for the last will and testament of To be attested by two or more credible witnesses, in the testator's presence, and by his directions, by Virginia Laws, (ch. 92, sect. 1) p. 160, of 1 Rev. Code. As our act of assembly differs in nothing from the statute of 29 Char. 2, ch. 3, sect. 5, except in the number of witnesses necessary to See as to what passes by the words "estate" or "estates," 3 Med. Rep. (5th ed. by Mr. Leach) 45, and the cases there cited, also 3 Com. Dig. 422, 426. As to the word "estates," see 2 Term Rep 656. "All my estate" passes every thing a man has, Dict. per Ld. Minsfield, in the case of Hogan and Jackson. Cowp. 306. See also 2 Burr. 880. See where a fee passes without using the word estate. 1 Wills. 133. I have introduced the above clause merely to shew what constructions have been put on similar devises; not that I think it would be safe to copy it as a precedent: it being a fixed principle, that an heir at law shall not be disinherited by the clearest intention appearing on the face of the will, unless the estate is completely disposed of to somebody else. See as to this point, Cowp. 657, Denn ex dem. Gaskin v. Gaskin. Since the act of 1785, which took effect the 1st day of January, 1787 (see 1 Rev. Code, ch. 90, sect. 12, p. 159) an estate of inheritance will pass without the use of such words of perpetuity, as were thentofore deemed necessary. And indeed, in cases arising under wills made before the passing of that act, much greater liberality has been allowed than formerly, in construing devises to carry a fee, in order to effectuate the intention of the testator. See 1 Wash, 96, Kennon v. Mc Roberts: and the cases of Wyatt v. Sadler, and others, and Johnson v. Johnson, and others, decided at the April term, 1810, and will probably be reported in 5 Hen. & Munf. attest a will (that statute requiring three) the following determinations founded on that act will not be improper in this place. If the will be attested by an insufficient number of witnesses, and afterwards a codicil is made, which is also attested by an insufficient number, but the two together would make the number required by this statute, yet it is not a sufficient attestation within the law. But if a man publish his will in the presence of an insufficient number of witnesses, and a month after he send for others, making in the whole the number required by law, it will be good. Carth. 35, 2, stk. 106. It is not necessary that the testator should sign the will in the presence of the witnesses, it is sufficient if he acknowledge the signature to them, though at different times; the statute requires attesting in the testator's presence, to prevent obtruding another will in the place of the true one. But it is enough that the testator might see, it is not necessary that he should actually see them sign; therefore, where the testator had desired the witnesses to go into another room seven yards distance to attest the will, in which there was a window broken, through which the testator might see them, it was held good; so if the testator, being sick, should be in bed, and the curtains drawn. 3 P. Williams, 254. 2 Vez. 454. Salk. 688. So where the testatrix went to her attorney's office to execute her. will, but being asthmatical, and the office very hot, retired to her carriage to execute it, the witnesses attending her; after having seen the execution, they retired into the office to attest it, and the carriage was put back to the window of the office, through which it was sworn by a person in the carriage, that the testatrix might see what passed. Immediately after the execution, the witnesses took the will to her, which she folded up and put in her pocket, the will was held to be well attested. 1 Brown's Cha. Ca 99. Casson v. Dyde. But if the witnesses subscribe their names to the will in a room adjoining to that where the testator is, but out of his sight, it is not a good attestation. Gilb. Dev. 93. If the testator is in a state of insensibility when his will is attested, the will is not duly attested according to the meaning of the statute, although he is corporally present. Doug. 229. It is not necessary that the witnesses should attest in the presence of each other, or that the testator should declare the instrument he executed to be his will, or that the witnesses should attest every page, folio, or sheet, or that they should know the contents; or that each folio, page, or sheet, should be particularly shewn to them, and if the testator never executed the first sheet, if it was in the room at the time of the execution of the second, it is sufficient. 3 Burr, 1775. Signing need not be by writing the name at the bottom, it is enough if the will be of the testator's hand-writing, and begin with I, J B, &c. 3 Lev. 1. With respect to the revocation of a will, the following determinations have been made. A will revoked by a subsequent will, but not cancelled, is re-established by cancelling the subsequent will. 4 Burr. 214. Doug. 41. Where there are duplicates of a will, one in the testator's custody, the other not; the cancelling the one in his custody is an effectual cancelling of both. Cowp. 49. Doug. 41. If the testator slightly tears his will, and throws it on the fire, with a deliberate intention to consume it, and it falls off and is preserved, without the testator's knowledge or consent, it is revoked. 2 Black. Rep. 1043. Any implied revocation of a will may be rebutted by parol evidence. Doug 38. Marriage and the birth of a child amount to a revocation of a man's will, if it is of all his lands; and a woman's marriage is alone a revocation of her will 4 Burr. 217. Doug 38. 2 Term Rep. 684. Any alteration or new modelling of the estates devised, is a revocation. 3 Atk. 803. As it is usual to begin the preamble or introductory part of a will with more solemnity than is observed in the foregoing precedent; for the gratification of those who wish to indulge themselves in this kind of devotion, I have added the following: be In the name of God, Amen. I, J S, of the county of ing sick and weak in body, but of sound mind and disposing memory (for which I thank God) and cailing to mind the uncertainty of human life, and being desirous to dispose of all such worldly estate * as it hath pleased God to bless me with-! give and bequeath the same in manner following, that is to say, I give &c. Item, I give &c. (here insert the several legacies agreeable to the intention of the testator.) Before I dismiss a subject so generally useful to the community, as the doctrine of devises, particularly of lands; I think it necessary to caution the public against a practice which too frequently prevails, of intrusting the disposition of their property, by will, to persons wholly unacquainted with the legal operation of the words made use of in such disposition. For although the courts will resort to every mode of construction to carry into effect the intentions of the testator, as appears by the cases before referred to under this title, and many others which might be enumerated; yet, if it cannot be collected from the whole of the will taken together, or from some expressions made use of in it, that the estate is completely disposed of to some other person, the heir at law will inherit, notwithstanding the testator evidently meant to exclude him by giving some small pecuniary legacy. A remarkable instance of this kind we have in the case of Denn ex dem. Gaskin v. Gaskin, reported in Cowper, p. 657; where the testator devises thus: "As to all such worldly estate as God has endued me with, I give and bequeath as follows: I give and devise All that my freehold messuage and tenement lying in G, together with all houses, &c. and appurtenances whatsoever belonging to the same, to MR, GR, and T R, equally. And among other pecuniary legacies, he bequeaths ien shillings to his heir at law." Here, though it is apparent the testator intended to disinherit his heir at law (having no other land except that devised, and giving but ten shillings) yet, as no limitation of the estate to the devisees of M R, G R, and T R, was either added to the devise, or could be collected from the will, it was held they took an estate for life only, and the heir at law recovered. See as to the use which is made of the introductory words of a will in explaining the intention of the testator, in Cowp. 299, Hogan, &c. v, Jackson, and the cases there cited Cowp 352, Lovescrea ex dem. Mudge v. Blight, & ux. Cowp. 657, Denn. ex dem. Gaskin v. Gaskin. |