the same man is heir to many others, though by art and management he may frequently become their devisee. Thus 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 the collateral relations which had an admirable effect in keeping up equality and preventing the accumulation of estates. But when Solond made a slight alteration, by permitting them (though only on failure of issue) to dispose of their lands by testament, and devise away estates from the collateral heir, this soon produced an excess of wealth in some, and of poverty in others which, by a natural progression, first produced popular tumults and 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 consequence 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 the justice due to his creditors, may perhaps require. And this power, if prudently managed, has 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 our 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.

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 testamente; except only in Kent, and in some ancient burghs, and a few particular manors, where their Saxon immunities by special indulgence

d Plutarch. in vita Solon.

€ 2 Inst. 7.

subsisted f. 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 8. Besides, in devises there was 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 required in every transfer and new acquisition of property.

BUT when ecclesiastical ingenuity had invented the doctrine of uses as a thing distinct from the land, uses began to be devised very frequently h, and the devisee of the use could in chancery compel its execution. For it is observed by Gilberti, that, as the popish clergy then generally sate in the court of chancery, they considered that men are most 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, could intercede for their happiness in another world. But, when the statute of uses had annexed the possession to the use, these uses, being now 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 Hen. VIII. c. 5. which enacted, that all persons being seised in fee-simple (except feme-coverts (1), infants, idiots,

f Litt. sec. 167. 1 Inst. 111. g Glanv. 1. 7. c. 1.

h Plowd. 414.
i on devises. 7.

j 27 Hen. VIII. c. 10. Sce Dyer. 143.

(1) Where lands are conveyed to trustees, a married woman may have the power of appointing the disposition of them after her death, which appointment must be executed like the will of a feme sole, and will be subject to the same rules of construction. 2 Ves. 610. 1 Bro. 99. And though the contrary has been held, yet it has been determined by the house of lords, that the appointment of a married woman is effectual against the heir at law; though it depends only upon an agreement of her husband before marriage, without any conveyance of the estate to trustees. 6 Bro. P. C. 156.

and persons of nonsane memory) might by will and testament in writing devise to any other person, except to bodies corporate, two-thirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles the second, amounts to the whole of their landed property, except their copyhold tenements.

CORPORATIONS were excepted in these statutes, to prevent the extension of gifts in mortmain; but now, by construction of the statute 43 Eliz. c. 4. it is held, that [376] a devise to a corporation for a charitable use is valid, as operating in the nature of an appointment, rather than of a bequest. And indeed the piety of the judges hath formerly carried them great lengths in supporting such charitable uses; it being held that the statute of Elizabeth, which favors appointments to charities, supersedes and repeals all former statutes, and supplies all defects of assurances m: and therefore not only a devise to a corporation, but a devise by a copyhold tenant without surrendering to the use of his will, and a devise (nay even a settlement) by tenant in tail without either fine or recovery, if made to a charitable use, are good by way of appointment.

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 perjuries were quickly introduced 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 the statute P. To

Ch. Prec. 272.

1 Gilb. Rep. 45. 1 P. Wms. 248. m Duke's charit, uses. 84.

n Moor. 890.

o 2 Vern. 453. Ch. Prec. 16.
p Dyer. 72. Cro. Eliz. 100.

remedy which, the statute of frauds and perjuries, 29 Car. II. c. 3. directs, that all devises of lands and tenements shall 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 (2). And a solemnity nearly similar is requisite for revoking a devise by writing; though the same may be also revoked by burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent (3) as likewise impliedly, by such a great and intire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child 9 (4).

q Christopher v. Christopher. Scacch. pit, 27 Mar, 1773. by Wilmot, de Gray, and 6 Jul. 1771. Spragge v. Stone, at the Cock- Parker. See page 502.

(2) Copyholds and terms for years are not within the statute, but will pass by any will which is sufficient to bequeath personalty. 2 Atk. 37. 2 Bro. 58. But the testator must surrender his copyhold to the use of his will. See p. 368. ante, n. 1.

(3) It has been determined, that one will cannot be revoked by another will, though it should contain a clause declaring all former wills to be revoked, unless the second is valid and effectual as a will. 1 P. Wms. 343. Yet a will may be revoked by an instrument written merely for the purpose of revocation; but it must be attested by three witnesses, and the testator must sign it in their presence, which is not necessary in the execution of a will. The reason of this difference, if it was designed, is not obvious. 29 Car. 2. c. 3. §. 6.

(4) Marriage and the birth of a posthumous child amount to a revo

cation. 5 T. R. 49.

In a case, where a testator had devised his real estate to a woman with whom he cohabited, and to her children, he afterwards married her and had children by her, it was held these circumstances did not amount to a revocation of the will. Lord Ellenborough, in his judgment,

In the construction of this last statute, it has been adjudged that the testator's name, written with his own hand, at the beginning of his will, as, "I John Mills do make this "my last will and testament," is a sufficient signing, [377] without any name at the bottom 9; though the other is the safer way (5). It has also been determined, that 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 should mistake the

q 3 Lev. 1.

r Freem. 486. 2 Ch. Cas. 109. Pr. Ch. 185.

says, "The doctrine of implied or presumptive revocations seems to "stand upon a better foundation of reason, as it is put by Lord Kenyon, "in Doe v. Lancashire, 5 T. R. 58. namely, as being a tacit condition "annexed to the will when made, that it should not take effect, if there "should be a total change in the situation of the testator's family,' than "on the ground of any presumed alteration of intention; which altera"tion of intention should seem in legal reasoning not very material, "unless it be considered as sufficient to found a presumption in fact, "that an actual revocation has followed thereupon. But, upon what"ever grounds this rule of revocation may be supposed to stand, it is on all hands allowed to apply only in cases, where the wife and chil"dren, the new objects of duty, are wholly unprovided for, and where "there is an entire disposition of the whole estate to their exclusion "and prejudice. This, however, cannot be said to be the case, where "the same persons, who, after the making of the will, stand in the "legal relation of wife and children, were before specifically contemplated and provided for by the testator, though under a different "character and denomination." 2 East. 530.

(5) I conceive that writing the name at the beginning would never be considered a signing according to the statute, unless the whole will was written by the testator himself; for whatever is written by a stranger after the name of the testator, affords no evidence of the testator's assent to it, if the subscription of his name in his own hand is not subjoined.