What is the difference (if any) in the principle by which deeds and wills respectively are construed? and give the reason.

Wills are construed more in accordance with the testator's intentions than the precise words used, for the simple reason that the testator is supposed to be inops consilii at the time of making his will.

A testator seised in fee of Blackacre dies on the 1st July, 1836, and by his will says, "I devise Blackacre to A. B." A testator seised in fee of Whiteacre dies on the 1st January, 1870, and by his will dated 30th December, 1869, says, "I devise Whiteacre to C. D.” State what (if any) difference exists between these two cases; and give your reason.

In the first case A. B. will only take a life estate, because there were no words of limitation added. In the second, C. D. will take a fee simple, because the 28th section of the Wills Act, 1 Vict. c. 26, enacts that where an estate is devised without words of limitation, the whole interest of the testator passes.

What is the difference in effect between a devise to A. B. and a conveyance to A. B., without the addition in either case of any more words?

In the first case, in the absence of any contrary intention, A. B. will take the whole interest the testator has power to dispose of, probably the fee simple (1 Vict. c. 36, s. 28). In the case of the conveyance which is a deed, he only takes a life estate.

State the rules for the construction of wills.

(i.) Devises and bequests speak from death in the absence of a contrary intention.

(ii.) When no words of limitation are added, the whole interest of the testator passes.

(iii.) With a few exceptions, depending upon the words of the will, trustees take the fee simple.

(iv.) No lapse takes place in the case of a devise or bequest to the child or other issue of the testator, or of an estate tail or quasi-entail to a stranger, assuming issue are living at the death of the testator, and in the latter case, capable of inheriting, and such lapses now fall into the residue.

(v.) General devises pass customary copyholds and leaseholds. (vi.) A general devise operates as an execution of a general power of appointment.

(vii.) The words "dying without issue" do not as heretofore mean an indefinite failure, but only a want of issue in the lifetime or at the death of such person.

Suppose real estate be devised to a trustee without any express limitation of the estate to be taken by him, and the beneficial interest is given to a person for life with remainders over, what is the result with reference to the estate of the trustee, and is there any Act which regulates the answer?

The trustee takes a fee simple estate by virtue of the 31st section of the Wills Act, 1 Vict. c. 26.

A testator, possessed of leaseholds only, dies, and by his will dated in 1836, devises all his "lands and tenements” to B. What would be the effect of such a devise, and how, if at all, would the fact that the testator possessed freeholds as well as leaseholds affect the question?

It depends entirely when the testator died; and if before 1st January, 1838, the testator had leasehold estate only, it would pass, otherwise there would be nothing for the will to operate on; but not if he had freeholds and leaseholds, for the freeholds would then only pass. But if the testator died after the Wills Act, the leaseholds would pass under any general devise if the testator had no freehold estate which could be described by it, in the absence of a contrary intention in the will.

Give the new Wills Act, and state what change in the law that Act effected with regard to a general devise operating upon property over which the testator had a general power of appointment.

7 Will. IV. & 1 Vict. c. 26. Formerly a general devise would not operate as an execution of a general power of appointment, unless the power was expressly referred to. Now, however, under this Act (section 27) it will.

What was the general rule of law with reference to the death of a legatee or devisee in the lifetime of the testator and what statute affected the law upon this subject?

The general rule was, before 1 Vict. c. 26, that the devise or bequest lapsed; now, by the above statute, as before stated, no lapse takes place in the case of a devise or bequest to the child or other issue of the testator, or of an estate tail or quasi-entail to a stranger, assuming issue are left at the death of the testator, and in the latter case capable of inheriting, and such lapses now fall into the residue.

What is an executory devise?

Such a disposition of lands by will that no estate vests thereby at the death of the devisor, but only upon some future contingency without any precedent particular estate to support it.

How have secret conveyances and wills been guarded against in Middlesex and Yorkshire?

G

Save in cases of leases for twenty-one years or under or at rack rent with possession, unless a memorial (i.e., a précis) of a prior deed or conveyance is registered, before conveyances under which subsequent purchasers or mortgagees claim, they are void as against such subsequent purchasers or mortgagees; so also in the case of wills applicable to those two counties unless registered within six months after death. But by 37 & 38 Vict. c. 78, s. 8, even if a will should not have been duly registered within the proper period of six months after the death of the testator dying within Great Britain, an assurance by the devisee, if registered before an assurance by the heir-at-law, will have precedence.

CHAPTER XXI.

CONVEYANCES BY MATTER OF RECORD.

What are conveyances by matter of record, and in what cases do they arise?

They are where the sanction of some court of record is called in to substantiate and witness the transfer of real property. They are (i.) Private Acts of Parliament; (ii.) Royal grants.

What gave rise to private Acts of Parliament?

The ingenuity of some people and the carelessness of others possibly loaded an estate with contingent remainders, resulting trusts, and springing uses, beyond the relief or reach of law or equity. The above species of assurances were consequently called in, calculated to give (by the transcendent power of Parliament) such reasonable powers of relief.

How did private Acts of Parliament differ from public?

(i.) They were not published or printed, like the latter.
(ii.) They were liable to be relieved against when obtained
by fraud.

(iii.) Until the 4th Feb. 1851, they were not judicially noticed
unless specially pleaded; but now, by 13 & 14 Vict.

c. 21, s. 7, they are, unless the contrary be expressed in the statute.

What are Royal grants, and how are they effected?

They are contained in charters or letters patent, and are entered on record for the dignity of the Royal person and the security of the Royal revenue. They apply only to a few incorporeal hereditaments, such as dignities, offices, &c.

By 14 & 15 Vict. c. 82, a warrant addressed to the Lord Chancellor is first prepared by the Attorney or Solicitor-General, setting forth the tenor of the intended letters patent; it is then signed with the Queen's own sign manual and countersigned by the principal Secretary of State, and afterwards sealed with her Majesty's Privy Seal.

How do grants by the Crown differ from that of a subject?

(i.) They are to be construed most favourably for the
Crown.

(ii.) Nothing is included save the bare grant as expressed.
(iii.) Where the Crown is deceived or mistaken, or the grant
is informal, it is void ab initio, the validity of the
Crown grant being questioned by scire facias.
(iv.) Royal domains cannot be granted for a longer period
than thirty-one years.

CHAPTER XXII.

COPYHOLDS.

What is the general nature of copyholds?

(i.) They only arise in manors.

(ii.) They are regulated by immemorial customs of the particular manor.

(iii.) Entails can only be granted by special customs, the statute De Donis not applying to copyholds.

(iv.) Dower and curtesy also depend upon custom, the former therein called free bench.

(v.) The Statute of Uses does not apply to copyholds, but estates may be limited in futuro, a fee limited on a fee, and a husband may convey to his wife.

(vi.) Copyholds are devisable by will.

What, as a general rule, are the rights of the lord of a manor and the copyholder over the land held by the latter?

The lord has a right to the minerals and timber, but there requires to be a special custom of the manor to entitle him to enter and take the same without the consent of the tenant. The lord has also certain rights as to quit rents, fines, and heriots, &c. The copyholder, though entitled to hold his land conformably to the custom of the manor, is in reality only a tenant at will, he is only entitled to cut timber for reasonable botes or estovers, and he can only demise for a year without his lord's consent. Of course, either party can now, under the Copyhold Acts of 1852 and 1858, compel enfranchisement, saving certain manorial rights.

What is a copyholder, strictly speaking; and supposing a copyhold be granted to a man and the heirs of his body, there being no custom in the manor to entail, what is the effect?

A copyholder, strictly speaking, is only a tenant at will.

In the event of a grant as above, as the statute De Donis does not apply to copyholds, the grantor will simply create an estate analogous to the old fee simple conditional.

How does a copyhold estate differ in its incidents from a freehold one as to the estate?

(i.) A copyholder cannot commit waste, save by special custom; neither can the lord enter for that purpose without the consent of the tenant.

(ii.) The tenant forfeits his estate by alienations applicable to freeholds without the lord's consent, by refusing proper services or disclaimer.

(iii.) They are subject to quit rents, fines, (1) certain; (2) arbitrary (by custom never allowed to exceed two years' improved value), and heriots.

(iv.) Formerly they were not assets in the hands of the heir or devisee, neither could they be extended by elegit; this, however, has been remedied by 3 & 4 Will. IV. c. 104, and 1 & 2 Vict. c. 110.

(v.) Assuming the lord and the tenant to possess estates of fee simple and copyholds respectively in manor, the copyholds may be enfranchised.

What difference, until a comparatively recent period, existed between copyhold and freehold estates with reference to the liability of the former to the claims of the creditors of the deceased owner, and what statute effected the change and put both on the same footing?

See last answer.

How are fines respectively paid by tenants in common, joint tenants, and co-parceners?

By tenants in common, apportionably; joint tenants and coparceners, a single fine for all; with regard to joint tenants, the first pays a full fine, i.e., two years' value on his life; and the second, half that; and the third, half that, and so on ad infinitum.

What is a heriot, and what are the various kinds?

A heriot, now in most manors converted into a money payment, is a right of the lord, on the death or alienation of the tenant, to enter and seize the best beast or other chattel of which the tenant was the owner at his decease; it must be remembered that it is always a personal chattel, and should the tenement be divided, the heriot is necessarily multiplied.