The feodal restraint thereon

*Sec, 375.

dissensions; and these at length ended in tyranny, and the utter extinction of liberty; which was quickly followed by a total subversion of their state and nation. On the other hand, it would now seem hard, on account of some abuses (which are the natural consequent of free agency, when coupled with human infirmity), to debar the owner of lands from distributing them after his death as the exigence of his family affairs, or circumstances, may perhaps require. And this power, if prudently managed, hath with us a peculiar propriety; by preventing the very evil which resulted from Solon's institution, the too great accumulation of property; which is the natural consequence of the doctrine of succession by primogeniture, to which the Athenians were strangers. Of this accumulation the ill effects were severely felt even in the feodal times: but it should always be strongly discouraged in a commercial country, whose welfare depends on the number of moderate fortunes engaged in the extension of trade. The accumulation which has taken place in England of landed property in the hands of comparatively few proprietors is now engaging the serious attention of the English people with a view to a remedy.'

However this be, 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 from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious. Besides, in devises there were wanting that general notoriety and public designation of the successor, which in descents is apparent to the neighbourhood, and which the simplicity of the common law always requires in every transfer and new acquisition of property.

visable before

to the use, ren

no longer de

But when ecclesiastical ingenuity had invented the doc- Uses were detrine of uses as a thing distinct from the land, uses began the Statute of Uses, which to be devised very frequently, and the devisee of the use by annexing could in Chancery compel its execution. For it is observed the possession by Gilbert that, as the Popish clergy then generally sat in dered the land the Court of Chancery, they considered that men are most visable. liberal when they can enjoy their possessions no longer, and therefore at their death would choose to dispose of them to those, who, according to the superstition of the times, would intercede for their happiness in another world. One mode adopted was-to enfeoff another to such uses as the feoffor should by his last will appoint, and afterwards to exercise the power of appointment by devise to superstitious uses, tending to alienation in mortmain, a practice which by reason of the ingenuity of the religious bodies interested in up⚫holding such devises, the legislature had great difficulty in preventing (a).' But when the Statute of Uses had annexed the possession to the use, these uses, being 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, viz., 32 Hen. VIII, c. 1, explained by 34 and 35, Hen. VIII. c. by the 34 and which enacted that all persons being seised in fee-simple c. 5, allowed (except feme-coverts, infants, idiots, and persons of nonsane in fee simple memory) might by will and testament in writing devise to ceptions) to any other person, except to bodies corporate, two-thirds of portions of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in socage: which through the alteration of tenures 'into socage,' by the statute of Charles the Second (b), amounted to the whole of their landed property, except their copyhold tenements.

5

But the statute

32 Hen. VIII.

c. 1, explained

35 Hen. VIII.

persons seized

(with some ex

devise certain

their lands.

Corporations were excepted in these 'enabling' statutes, Devises to corto prevent the extension of mortmain; but by construction* charitable

uses.

* S. 376.

(a) Ante, p. 296.

(b) Ante, sec. 269, p. 293.

امیر

Contingent interests.

Rights of en

try now devis

able by R. S.

O. c. 106.

of the statute 43 Eliz. c. 4, it was' held, that a devise to a corporation for a charitable use 'was' valid, as operating in the nature of an appointment, rather than of a bequest.

'It has been explained (a) that so far as regards devises of lands and tenements, and bequests of money, to be laid out thereon, the operation of the statute of Elizabeth is virtually repealed by the statute of 9 Geo. II. c. 36 (b), and that under certain circumstances by Provincial legislation devises of land for religious and other purposes may be made.'

'It has also been explained that contingent and executory interests and mere possibilities were not assignable at common law, but that an assignment for value was upheld and enforced in equity; and that contingent and executory interests were devisable by will under the Statute of Wills, as also possibilities, if coupled with an interest, or the person to be benefited were ascertained (c). It has also been men- * tioned that rights of entry, on disseisin, and of action, were neither assignable nor devisable at common law. These interests and rights are also now transferrable at law and by R. S. O. 106 can be devised.'

With regard to devises in general, experience soon shewed 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 and perjuries were quickly intoduced 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 hand-writing of another person were allowed to be good wills within statute. To remedy which the Statute of Frauds and Perjuries, 29 Car. II. c. 3, 'now repealed, as to

(a) S. 274, p. 298. (b) As to the construction of this Act and conveyances in mortmain, see Corbyn v. French, Tud. Lg. Ca. Rl. Prop. 456, and notes and (c) Ante, s. 175, p. 248; s. 290, p. 312.

ante.

that portion of it relating to wills,' directed that all devises of lands and tenements should 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.

Where a will of lands situate here is executed out of this Province the lex loci rei sita governs; whilst, as to person

alty, the lex domicilii prevails.'

be credible.

'The Statute of Charles required that the witnesses should witnesses to be credible, and though as to this the statute of William was silent, yet it was held (a) that the requirements of the former statute continued. In one case, decided under the Statute of Charles, but afterwards over-ruled as to creditors as wrongly decided, the judges 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. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues (and these are the persons most likely to be present in the testator's last illness), and if, in such case, the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II. c. 6, which restored both the competency and the credit of such legatees, by de- 6 declares void

(a) Ryan v. Devereux, 26 U. C. R. 100; see Little v. Aikman, 28 U. C. R. 337; the case of gift to an unnecessary third witness being void.

25 Geo. II. c.

all gifts to wit

n 8:08.

* S. 378.

*

claring void all beneficial legacies, devises, estates, interests, gifts, or appointments of or affecting any real or personal estate, 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. 'As this Act did not extend to a devise or bequest to the husband or wife of an attesting witness, so as to avoid it, it was held that the witness was still not a credible witness as being interested indirectly in upholding the will and gift made by it. Thus, if the husband were a witness, and the will made provision for his wife, he was not a competent witness. The R. S. O. c. 106, s. 17, is much as the Act of George, but it extends expressly to vacate the provision for the husband or wife of the attesting witness; and declares by s. 18, that a creditor attesting, or the husband or wife attesting of a creditor, shall be a competent witness.'

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 & 4 W. & 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).

'The important subject of executory devises, and the indul

(a) See Vankoughnet v. Ross, 7 U. C. R., 248, commented on in Rymal v. Ashberry, 12 C. P. U. C. 339.