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estate, through the dotage or caprice of the ancestor, from those of his blood to utter strangers. For this, it is alleged, prevented one man from growing too powerful, since it rarely happens, that a man is heir to many others, though by management, he may frequently become their devisee.
Accumulation of Estates. The ancient law of the Athenians directed, that the estate of the deceased should always descend to his children, or on failure of lineal descendants, should go to his collateral heirs, which prevented the accumulation of estates. Solon altered the law, and permitted a man, on failure of issue, to dispose of his lands as he pleased, which soon produced an excess of wealth in some, and poverty in others, resulting in the utter extinction of liberty, and the subversion of the state. On the other hand, it would now seem hard, on account of some abuses, to debar the owner of lands from distributing them, after his death, as the exigence of his family affairs, or the justice due to his creditors, may require. Accumulation of property, the result of the doctrine of succession, to which the Athenians were strangers, should be always discouraged in commercial countries, whose welfare depends on the moderate fortunes of those engaged in the extension of trade.
Restraint of Devises. By the common law of England, since the conquest, no estate, greater than for a term of years, could be disposed of by testament, except only in Kent, and some ancient burghs, and a few manors. And though the feudal restraint on alienations by deed vanished very early, yet the restraint on wills continued for centuries later, from an apprehension of infirmity and imposition on the testator, in extremis, which made such devises suspicious.
Statute of Wills. But when ecclesiastical ingenuity had invented the doctrine of uses, as a thing distinct from the land, uses began to be devised very frequently, and the devisee of the use could, in chancery, compel its execution. By the statute of wills of Henry VIII, it was enacted: that all persons seised in fee-simple, except feme coverts, infants, idiots and persons of non-sane memory might by written will devise to any other person, except to bodies corporate, two-thirds of their lands and tenements, held in chivalry, and the whole of those held in socage, which now by statute of Charles II, amounts to their entire landed property, except their copyhold tenements.
Devises to Corporations. Corporations were excepted in these statutes, to prevent the extension of gifts in mortmain, but now by the statute of Elizabeth, it is held, that a devise to a corporation for a charitable use is valid, as operating in the nature of an appointment, rather than of a bequest. A devise could be made by a copyhold tenant, without surrendering to the use of his will, and by a tenant in tail, without fine or recovery.
Loose Construction of the Act. With regard to devises in general, experience soon showed, how difficult and hazardous a thing it is to depart from the rules of the common law. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance, for so loose was the construction of the act, by the courts of law, that bare notes in the handwriting of another person were allowed to be good wills within the statute of Elizabeth.
Will must be Written and Witnessed. To remedy which, the statute of frauds and perjuries of Charles II enacts, that all devises of lands and tenements shall be in writing, and signed by the testator, or some other person in his presence, and by his express direction, and be subscribed in his presence by credible witnesses.
Revocation of a Will. And a solemnity nearly similar is requisite for revoking a devise by writing, though it may be revoked by burning, cancelling, tearing or obliterating thereof by the devisor, or in his presence, and with his consent. It may also be impliedly revoked, by such a great and entire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child.
Subscribing Witnesses. Though the witnesses must all see the testator sign, or at least acknowledge the signing, yet they may do it at different times. But they must all subscribe their names as witnesses in his presence, lest by any possibility, they shouldmistake the instrument. A decision of the court of king's bench, forbidding legatees or creditors to be witnesses to a will, where the legacies and debts were charged on the real estate, alarmed purchasers, and led to the statute of George II, which restored the competency and credit of such legatees, by declaring void all legacies given to witnesses, and hence preventing their interest affecting their testimony. The same statute established the competency of creditors, by directing their testimony to be admitted, but allowing their credit, like that of all other witnesses, to be considered by court and jury, before whom such will may be contested.
1 By a statute of Victoria, the testator must sign at the foot or end of the
Effect on Creditors. An 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 of William and Mary provided : that all wills, limitations, dispositions and appointments of real estate, by tenants in fee-simple, or having power to dispose by will, shall, as against such creditors, be deemed fraudulent and void, and that actions may be brought against both heir and devisee.
Witnesses to a Will. A will of land, under these statutes, is considered by the courts, not so much in the nature of a testament, as of a conveyance, declaring the uses, to which the land shall be subject, with this difference, that in other conveyances, the actual subscription of the witnesses is not required by law, though it is prudent for them so to do, in order to assist their memory when living, and to supply their evidence when dead, but in devises of land, such subscription is requisite by statute, in order to identify a conveyance after the death of the devisor.
After Acquired Lands. Upon this notion, that a devise affecting lands is merely a species of conveyance, is founded the distinction between devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of; the former only upon such real estate, as was his at the time of executing and publishing his will. Wherefore no after purchased lands will pass under such devise, unless subsequent to the purchase or contract, he has republished his will.?
Rules for the Construction of Wills and Deeds. Certain rules have been laid down by the courts for the construction and exposition of wills and deeds:
1. Intent of the Parties. That the construction be favorable, and as near the apparent intent of the parties as the rules of law will admit. It must also be reasonable, and agreeable to common understanding.
1 The statute of Victoria has abolished this distinction, and all property, of which a man is possessed or entitled to at the time of his death, passes by his will.
2. Not too much Stress on the Words. That where the intent is clear, too minute a stress must not be laid on the strict interpretation of words, nam qui haeret in litera, haeret in curtice. Therefore by a grant of a remainder, a reversion may well pass and e converso.
Neither false English nor bad Latin will destroy a deed. Mala grammatica non vitiat chartam.
3. Construe the Entire Deed. That the construction be made upon the entire deed, and not upon disjointed parts of it. Therefore every part of it must if possible be made to take effect, and every word must operate in some shape or other.
4. Deed taken against Grantor. That the deed be taken most strongly against him that is the agent or contractor, and in favor of the other party. Verba fortius accipiuntur contra proferentem. As if a tenant in fee-simple grants of any one an estate for life generally, it shall be construed for the life of the grantee. But here a distinction must be taken between an indezture and a deed poll, for the words of an indenture, executed by both parties, are to be deemed the words of both. But in a deed-poll, they are the words of the grantor only, and shall be taken most strongly against him.
5. Words of Two Senses. That if the words will bear two senses, one agreeable to and one against law, the one agreeable to law shall be preferred.
6. Repugnant Clauses. That in a deed, if there be two clauses so totally repugnant to each other, that they cannot stand together, the former shall be received, and the latter rejected. Wherein it differs from a will, for there the latter of two repugnant clauses shall stand. This is owing to the different natures of the two instruments; for the first deed and the last will are always most available in law. Yet in both cases, we should attempt to reconcile them.
7. Wills Liberally Construed. That a devise be most favorably expounded to pursue, if possible, the will of the devisor, who for want of advice or learning, may have omitted the legal or proper phrases. Hence the law many times dispenses with the want of words in devises, that are absolutely requisite in all other instruments. Thus a fee may be conveyed without words of inheritance, and an estate-tail without words of procreation. By a will also an estate may pass by mere implication, without any express words to direct its course. Where implications are allowed, they generally must be such as are necessary, or at least highly probable, and not merely possible inferences. And herein there is no distinction between the courts of law and equity, for the will being considered in both courts in the light of a limitation of uses, is construed in each with equal favor, and expounded rather on its own peculiar circumstances, than by any general rules of positive law.
CHAPTER XXIV.-THINGS PERSONAL.
Formerly Held in Contempt. Under the title of things personal are included all sorts of things movable, which may attend a man's person wherever he goes. Being only the objects of the law, while they remain within the limits of its jurisdiction, and being also of a perishable quality, they are not esteemed of so high a nature as permanent and immovable things, such as lands and houses, and the profits issuing therefrom. Our first legislators took great care to ascertain the rights and to direct the disposition of real property, but entertained a low opinion of all personal estate, which they regarded as a transient commodity.
Personal Property formerly but Trifling. The amount of personal property in early times was comparatively trifling, owing to the scarcity of money, and the ignorance of luxury of the feudal ages. A tax of the fifteenth or tenth of all the movables of the subject was frequently laid without scruple. Hence the frequert forfeitures inflicted by the common law of all a man's goods and chattels for misbehaviors, that at present do not seem to deserve such punishment. Our ancient law books did not often condescend to notice personal property.
Present View of Personal Property. But of later years, since the extension of trade and commerce, which are entirely occupied in this species of property, we have taken different views of it. Our courts now regard a man's personalty in a light nearly