the heir, has put them under an obligation to look upon the heir as a persona designata, and they cannot regard the inheritable quality of the estate, but they must find out the person who answers the description of heir-at-law of the testator. I think that there is not any authority precisely in point; but the principle must be, that, when once the descent is broken by a devise of the whole fee simple to trustees, upon trust to convey it to the testator's heir, they are bound to convey it to the person who is heir of the testator according to the common law.1

1 See Burr v. Sim, 1 Whart. 252. The authorities on breaking descent by devise are collected in 13 Prob. Rep. Ann. 412.

"Upon recollecting the case on Mrs. F.'s will, lately laid before me by Mr. W., it now strikes me that the opinion I delivered upon it is, in one part, not well founded; and, though I have not the case, nor a copy of it, by me, my memory supplies me with all that is necessary to enable me to make what, I think, the requisite correction.

"The devise by Mrs. F. to her two sons, if I remember right, was under a power in her marriage-settlement. Now, regularly, whoever takes under an execution of a power contained in any conveyance or settlement, takes under such conveyance or settlement itself; and, if this rule extended to the present case, both the sons must have taken as under the settlement, and consequently by purchase; in which case, their heirs, ex parte paterna, would have been clearly entitled to the whole. But the rule, it seems, does not hold in a devise, under such a power, to the heir-at-law of the party executing it, where such heir would have taken the same estate by descent from that person in default of execution of the power. Vide Hurst v. The Earl of Winchelsea, 1 Black. Rep. 187. For there, according to the common rule in respect to devises to an heir-at-law, such heir shall be in by descent, and not by purchase.

"This consideration only affects the moiety of the eldest son; for, as to that devised to the youngest, he could not take it otherwise than by purchase, as he was not heir of the testatrix; and, as he took by purchase, his share of course descended, either immediately from himself, or mediately through his brother (if his brother survived him), to his heir ex parte paterna: And, therefore, I think it clear, that the heir of the son, on the part of Mr. F. their father, is entitled to this moiety. But, as to the other moiety devised to the eldest son, it remains to be inquired, How the lands were limited by the settlement, in default of appointment by Mrs. F.? which, I believe, did not appear by the case stated. If they were not limited to her in fee, so that her eldest son would not have taken if there had been no will, then, I conceive, he took as under the settlement, by virtue of the execution of the power contained therein; for he could not, in that case, take by descent; and then, as he took by purchase, his moiety also descended to his heir ex parte paterna; and then the title to the whole will stand as supposed in my former opinion. But if the lands were, by the settlement, limited to Mrs. F. in fee, in default of appointment, so that her eldest son would have taken as heir, if she had not executed her power, then, I conceive, under the authority of the case above cited, he took by descent, and not by the will; unless a devise to an heir-at-law, and another as tenants in common, prevents the descent as to the moięty devised to such heir, and makes him take by purchase under the will.

"Now, I believe, in my former opinion, I supposed this circumstance of the tenancy in common to be an obstacle to his taking by descent, and that, to do so, he must have taken solely as his mother held it. But this latter proposition is certainly wrong; for, suppose a testator devises a moiety, or any other undivided share, of his real estate to a stranger, making no disposition at all of the remaining undivided share, such remaining share will of course descend to his heir-at-law, and he must hold it in common with the devisee of the undivided share devised. It is clear, therefore, that an heir may take by descent, as tenant in common with a devisee, an undivided part of

the estate which his ancestor was solely seised of; and it appears to me to be immaterial, whether the share he so takes is expressly devised to him, or left unnoticed, by the will; for, if expressly devised, he takes it in common, and, if not noticed, he takes it in the same manner; and a devise to two or more as tenants in common, is in effect a devise of one undivided part to one, and of another undivided part to the other; so that under such a devise to an heir and another as tenants in common, the heir takes as if one undivided moiety were devised to the other, and the residue to himself; that is, in the same manner as if no disposition at all of such residue had been expressed in the will; in which case he would have taken by descent; and therefore, the same estate being devised to him in such residue as he would have taken by descent, I think, the general rule, respecting devises to an heir, extends to it.

"It has indeed been held, that a devise to the heir and another makes the heir a purchaser; but that seems to be on account of the joint tenancy and benefit of survivorship to the stranger. And it appears, that under a devise to two co-heirs, they take as joint-tenants by the will, and not by descent; and so in a devise to them in common, they take as tenants in common, and not by descent. But, it is evident, under either of these tenures, they take every part of the land devised in a different manner than by descent; whereas, in the case of a devise to the heir and another, as tenants in common, the heir seems to take the part devised to him, just in the same manner as if it had been left to descend to him. I therefore, upon this consideration of the point, am of opinion, that the devise being to the two sons, as tenants in common, was no obstacle to the eldest taking his moiety by descent; and consequently, that if the lands were settled on his mother in fee, so as to descend from her to him, in default of appointment, he took his moiety by descent, and not by the will or settlement; and, in that case, his heir ex parte materna will be entitled to his said moiety." Fearne, Post. Works, 128-132.

"OCCUPANCY. At common law if an estate for the life of A. was conveyed to B., and B. died, living A., any occupant of the land was entitled to retain the possession so long as the cestui que vie lived. Co. Lit. 41 b. And see Skelliton v. Hay, Cro. Jac. 554 (1618).

"If an estate for the life of A. was conveyed to B. and his heirs, or to B. and the heirs of his body, then, on B.'s death, the persons answering such designation became entitled as special occupants. Salter v. Boteler, Moore, 664 (1602); Bowles v. Poore, Cro. Jac. 282 (1610); Low v. Burron, 3 P. Wms. 262 (1734). See also Ripley v. Waterworth, 7 Ves. 425 (1802); Doe d. Lewis v. Lewis, 9 M. & W. 662 (1842); Wall v. Byrne, 2 J. & L. 118 (1845); In re Barber's Estates, 18 Ch. D. 624 (1881); Sugden, Powers (8th ed.), pp. 193-195.

"By St. 29 Car. II. c. 3, § 12 (1677), and 14 Geo. II. c. 20, § 9 (1740), it was provided that the tenant of an estate pur autre vie might devise such estate, and that, if there were no devisee or special occupant, the term should be applied and distributed as part of the personal estate of the tenant.

See Stimson, Am. Stat. Law, § 1335." 4 Gray, Cas. on Prop. (2d ed.), p. 29 note.

The passing of personal property on intestacy is considered later in connection with the general problems of administration.

CHAPTER III.

THE MAKING, REVOCATION, AND REPUBLICATION
OF WILLS.

SECTION I.

STATUTES.

England.

STAT. 32 HEN. VIII., c. 1 (1540). [Be it enacted] that all and every person and persons, having, or which hereafter shall have, any manors, lands, tenements or hereditaments, holden in socage, or of the nature of socage tenure, and not having any manors, lands, tenements or hereditaments, holden of the King our sovereign lord by knights service, by socage tenure in chief, or of the nature of socage tenure in chief, nor of any other person or persons by knights service, from the twentieth day of July in the year of our Lord God M.D.XL. shall have full and free liberty, power and authority to give, dispose, will and devise, as well by his last will and testament in writing, or otherwise by any act or acts lawfully executed in his life, all his said manors, lands, tenements or hereditaments, or any of them, at his free will and pleasure; any law, Statute or other thing heretofore had, made or used to the contrary notwithstanding. II. And that all and every person and persons, having manors, lands, tenements or hereditaments, holden of the king our sovereign lord, his heirs or successors, in socage, or of the nature of socage tenure in chief, and having any manors, lands, tenements or hereditaments, holden of any other person or persons in socage, or of the nature of socage tenure, and not having any manors, lands, tene

Passer to well, give

ments or hereditaments, holden of the King our sovereign lord by or device, knights service, nor of any other lord or person by like service, from lands held the twentieth day of July in the said year of our Lord God M.D.XL. the wre

shall have full and free liberty, power and authority to give, will, dispose and devise, as well by his last will or testament in writing, or otherwise by any act or acts lawfully executed in his life, all his said manors, lands, tenements and hereditaments, or any of them, at his free will and pleasure; any law, Statute, custom or other thing heretofore had, made or used to the contrary notwithstanding. III. Saving alway and reserving to the King our sovereign lord, his heirs and successors, all his right, title and interest of primer

The preamble is omitted.

seisin and reliefs, and also all other rights and duties for tenures in socage, or of the nature of socage tenure in chief, as heretofore hath been used and accustomed, (2) the same manors, lands, tenements or hereditaments to be taken, had and sued out of and from the hands of his highness, his heirs and successors, by the person or persons to whom any such manors, lands, tenements or hereditaments shall be disposed, willed or devised, in such and like manner and form, as hath been used by any heir or heirs before the making of this Statute; (3) and saving and reserving also fines for alienations of such manors, lands, tenements or hereditaments holden of the King our sovereign lord in socage, or of the nature of socage tenure in chief, whereof there shall be any alteration of freehold or inheritance, made by will or otherwise, as is aforesaid.1

STAT. 34 & 35 HEN. VIII., c. 5 (1542). I. Where in the last Parliament begun and holden at Westminster the thirty-eighth day of April in the thirty-first year of the King's most gracious reign, and thereby divers prorogations holden and continued unto the twenty-fourth day of July in the thirty-second year of his said reign, it was by the King's most gracious and liberal disposition showed towards his most humble and obedient subjects, ordained and enacted how and in what manner lands, tenements, and other hereditaments might be by will or testament in writing, or otherwise by any act or acts lawfully executed in the life of every person, given, disposed, willed or devised, for the advancement of the wife, preferment of the children, payment of debts of every such person, or otherwise at his will and pleasure, as in the same Act more plainly is declared: (2) sithen the making of which Estatute, divers doubts, questions and ambiguities have risen, been moved, and grown, by diversity of opinions, taken in and upon the exposition of the letter of the same Estatute.

II. For a plain declaration and explanation whereof, and to the intent and purpose that the King's obedient and loving subjects shall and may take the commodity and advantage of the King's said gracious and liberal disposition, the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, most humbly beseechen the King's majesty, that the meaning of the letter of the same Estatute, concerning such matters hereafter rehearsed, may be by the authority of this present Parliament enacted, taken, expounded, judged, declared and explained in manner and form following:

III. First, where it is contained in the same former Statute, within divers articles and branches of the same, that all and singular person and persons having any manors, lands, tenements or hereditaments

1 See Stat. 34 & 35 Hen. VIII., c. 5, § 13 (1542). By the other sections of this Act of 32 Hen. VIII. it is provided that two thirds of land held by knight service may be devised.

of the estate of inheritance, should have full and free liberty, power and authority to give, will, dispose or assign, as well by his last will and testament in writing, or otherwise by any act or acts lawfully executed in his life, his manors, lands, tenements or hereditaments, or any of them, in such manner and form as in the same former Act more at large it doth appear. Which words of estate of inheritance, by the authority of this present Parliament, is and shall be declared, expounded, taken and judged of estates in fee-simple only.

IV. And also that all and singular person and persons having a sole estate or interest in fee-simple, or seised in fee-simple in coparcenary, or in common in fee-simple, of and in any manors, lands, tenements, rents or other hereditaments, in possession, reversion, remainder, or of rents or services incident to any reversion or remainder, and having no manors, lands, tenements or hereditaments holden of the King, his heirs or successors, or of any other person or persons by knights-service, shall have full and free liberty, power and authority to give, dispose, will or devise to any person or persons

(except bodies politic and corporate), by his last will and testament Cwwill. in writing, or otherwise by any act or acts lawfully executed in his all of land. life, by himself solely, or by himself and other jointly, severally or held. particularly, or by all those ways, or any of them, as much as in him under

of right is or shall be, all his said manors, lands, tenements, rents and hereditaments, or any of them, or any rents, commons or other profits or commodities out of or to be perceived of the same, or out of any parcel thereof, at his own free will and pleasure; any clause in the said former Act notwithstanding.

XIV. And it is further declared and enacted by the authority aforesaid, that wills or testaments made of any manors, lands, tenements, or other hereditaments, by any woman covert, or person within the age of twenty-one years, idiot, or by any person de non sane memory, shall not be taken to be good or effectual in the law.

Queffective will.

STAT. 29 CAR. II., c. 3 (1677). V. And be it further enacted by the authority aforesaid, that from and after the said four and twentieth day of June all devises and bequests of any lands or tenements, devisable either by force of the Statute of Wills, or by this Statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect.

VI. And moreover, no devise in writing of lands, tenements or hereditaments, nor any clause thereof, shall at any time after the

Will must

[writing. Will

Isaid four and twentieth day of June be revocable, otherwise than irremeable

by some other will or codicil in writing, or other writing declaring

by