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the Chancellor gave the following account, as to the point now under consideration, from his own note, “ I have looked at my own note of Carey v. Askew. Lord Kenyon there said, the distinction was settled, and was not to be unsettled, that if a pecuniary legacy was bequeathed by an unattested will, under an express condition to give up a real estate, by that unattested will attempted to be disposed of, such condition being expressed in the body of the will, it was a case of election, and he could not take the legacy without complying with the express condition. But Lord Kenyon also took it to be settled, as Lord Hardwicke has adjudged, that, if there was nos thing in the will, but a mere devise of real estate, the will was not capable of being read as to that part; and unless the legacy was given so that the testator said expressly, that the legatee should not take, unless that condition was complied with, it was not a case of election. The reason of that distinction, if it were res integra, is questionable.”
It seems that if
One more point occurs to me as .proper to be a man have leaseholds and mentioned, before this part of the subject is contreeholds, and
cluded. It was held in the case of Rose v. Bartments by a will let (2), in the eighth year of Charles the First, unattested, the leaseholds will
that if a man have lands in fee, and lands for years,
devise all his lands and tene
it, by the notes of it referred to by the counsel for the heir at law, and by the Chancellor, in Sheddon v. Goodrich, 8 Vez. jun. 481.
(2) Cro. Car. 293. pl. 3. The authority of this case has been submitted to (as Mr. Cox observes in his note to Addis v. Clement,
and devises all his lands and tenements, only the fee simple lands pass, and not the leasehold estates. But if a man devise all his lands and tenements, having leases for years, and no freehold, the leases for years will
pass; for, otherwise, the will would be merely void.
And if a man devise all his lands and tenements at a particular place, and have only leaseholds answering to the local description, upon the same principle the leaseholds will pass. But what if a testator have both fee simple and leasehold lands at a particular place, and he makes a will, devising all his lands and tenements at that place, by a will not executed to pass freehold estates, but duly proved in the ecclesiastical court, and sufficient to pass leasehold property? As in such a case the freehold cannot pass, will the leaseholds be carried to the devisee? This was one of the points in Chapman v. Hart", determined by Lord Hardwicke, where a testator devised all his lands at or near
& Vide Knotsford v. Gardiner, 2 Atk. 450.
i Vez. 271.
2 P. Wms. 458.) in Day v. Trigg, 1 P. Wms. 286. Davis v. Gibbs, 3 P. Wms. 26. Kaotsford v. Gardiner, 2 Atk. 450. and Pistol Richardson, reported in the same note; in which last case the authority of Addis v. Clement, which relied on the words “ all the lands which the testator was seised or possessed of, or any ways interested in,” was shaken. Vid. 6 T, R. 345. Lane v. the Earl of Stanhope.
Fowey to the plaintiff, and the will was executed in the presence of two witnesses only. The Chancellor observed that it not certain whether the testator had any leasehold in or near Fowey. If there should appear to be both, and the law had been with the plaintiff, so that she should be entitled thereto, it would be a ground for the direction of an enquiry; for the answer was not a positive negation of any leasehold. But if, let the fact come out how it would, the law was against the plaintiff, he ought not to direct an enquiry. And he was of opinion, that though it should appear that the testator had leasehold as well as freehold, the plaintiff could not be entitled. And his Lordship supposed a case of a person seised of freehold and copyhold in D. who surrendered to the use of his will, and devised all his lands and tenements in D. to his child: there being a surrender, both freehold and copyhold would pass, if the will was duly executed according to the statute of frauds: but if no surrender to the use of the will, only the freehold would pass; to which lands and tenements generally mentioned should be applied; there no surrender to the use of the will, to shew a different intent. Suppose that will executed in the presence of two witnesses, or of one only; those general words used; and no surrender: though this were to a child or wife, the court would not supply the defect of the surrender to the use of the will, or compel the heir at law to surrender the copyhold to the devisee, because the will was not duly exes
cuted; when, if duly executed, the court would not have supplied that defect: for such variation of the construction would be very dangerous, and might make terms, and perhaps terms attendant of the inheritance, to pass: there was no ground therefore for an enquiry
Signature and Subscription.
IT shall be my next business to enquire into the Of the signature
of the testator, state of the law on the essentials held requisite in and the sub
scription of the regard to the signature of the testator, and the sub- witnesses. scription of the witnesses. The formalities required are, Ist, that the will be in writing ;-2d, that it be signed by the devisor, or some other in his presence, and by his direction ;—and 3d, that it be attested and subscribed in his presence, by three or more credible witnesses.
If the language made use of by the legislature, What is a sufe
ficient signing. were to be understood in its natural and usual sense, it should seem that there could be no great contention in regard to the meaning of the words shall be signed by the devisor,' which are generally considered
as importing the actual and formal subscription of the name of the party at the bottom of the instrument. And by directing this to be done in the presence of three witnesses, the statute at first view seems to require that the attestators should have ocular evidence of the act of signing performed by the testator.
Very soon, however, after the legislature had thought fit to place these guards about a dying man, in this last and important act, courts of justice yielding to the popular bent towards freedom and facility in all alienations of property, instead of strictly executing the intention of parliament, seem to have studied to frustrate its caution.
It has been held
written by a testator's own
In the case of Lemayne v. Stanley (1), which was a sufficient sign- determined about four years after the statute was
passed, the solemnity of signing was treated with name inserted very little regard. Stanley, seised in fee, wrote
his will with his own band, beginning thus, “ In the name of God, amen. I, John Stanley, make this my last will and testament,” and he thereby devised the lands in question, and put his seal, but did not subscribe his name; but three witnesses
(1) 3 Lev. 1. ; and again in the case of Hilton v. King, Lord North and Levinz agreed, that it was immaterial, whether the signing be at the top or bottom of the will, for the statute doth not say sabscribed, but signed by the testator.