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It seems to be the better opinion, that lands were devisable, to a qualified extent, with the Anglo-Saxons. The folkland was held in independent right, and devisable
by will. But upon the establishment of the *504 feudal system, *at the Norman conquest, lands held in tenure ceased to be devisable, in consequence of the feudal doctrine of non-alienation without the consent of the lord; for the power of devising would have essentially affected many of his rights and privileges. There were exceptions to the feudal restraint on wills existing as to burgage tenures, and gavelkind lands.Þ The restraint upon the power of devising did not give way to the demands of family and public convenience, so early as the restraint upon alienation in the lifetime of the owner. The power was covertly conferred by means of the application of uses; for a devise of the use was not considered a devise of the land. The mode of doing this was by a feoffment to the use of the feoffor's last will, and the feoffor being considered as seised of the use, not of the land, could devise it. The devise of the use was supported by the courts of equity, as a disposition binding in conscience; and that equitable jurisdiction continued, until the use became, by statute, the
• Spelman on Feuds, c. 5. Wright on Tenures, 171. Bocland was granted by charter, and was synonymous with inheritance; and Sir Francis Palgrave says, that testamentary dispositions were unknown to the Teutons or Teutonic nations, and he is of the highest authority as to all Anglo-Saxon and German antiquities.
Launder v. Brooks, Cro. C. 561. Co. Litt. 111, b. In Wild's case, 6 Co. 16, it was declared, that, at common law, lands were not devisable, except by custom, and in ancient cities and boroughs, of houses and small things. In the reign of Henry II., only one-third part of the personal estate was devisable. The other parts went to the wife and children. Glanville, lib. 7, c. 5. Blackstone, who gives a clear and succinct history of the law of bequests of personal property, (Comm. vol. ii. 491–493,) says that we cannot trace the precise time when the old common law restrictions were abolished, and the free disposition of chattels allowed.
• Hoffman, Ass. V. Ch. in 1 Hoffman's Ch. Rep. 253.
legal estate. The statute of uses of 27 Hen. VIII., like the introduction of feuds, again destroyed the privilege of devising; but the disability was removed within five years thereafter, by the statute of wills of 32 Hen. VIII. That statute applied the power of devising to socage estates, and to two-thirds of the lands held by knight service; and this last and lingering check was removed, with the abolition of the military tenures, in the beginning of the reign of Charles II., so as to render the disposition of real property by will absolute."
The English law of devise was imported into this country by our ancestors, and incorporated into our colonial jurisprudence, under such modifications, in some instances, as were deemed expedient. may be devised by *will in all the United States; *505 and the statute regulations on the subject are substantially the same, and they have been taken from the English statutes of 32 Hen. VIII. and 29 Charles II. In order to give a distinct view of the outlines or ele
■ The statute of wills, or a substitute for it, has been adopted throughout the United States; but not its preamble, either in letter or spirit. That preamble is a curiosity, as being a sample of the most degrading and contemptible servility and flattery that ever were heaped by slaves upon a master. In Scotland, down to a very recent period, almost all a man's heritage, and a great part of his estate acquired by purchase, could not be devised from the lineal heir.
In Louisiana, the power of disposition of property by will is limited to two-thirds of the testator's estate, if he leaves, at his decease, a legitimate child; and to one-half, if he leaves two children; and to one-third, if he leaves three, or a greater number of children; and to two-thirds, if, having no children, the testator leaves a father, mother, or both. Under the name of children are included descendants, of whatever degree they be. The heirs, whose portions of the estate is thus reserved to them by law, are called fixed heirs, because they cannot be disinherited, except in cases where the testator has just cause to disinherit them, and which cases are defined. Civil Code, art. 1480, 1481, 1482. 1609-1617. There is much good feeling and sympathy, and there is nothing unreasonable, in these very temperate checks upon the unlimited power of devise. The law of Louisiana on this subject, was borrowed essentially from the French Civil Code, art. 913, 914, 915.
ments of the law on the subject of devises, I shall proceed to consider the competency of the parties to a devise; the things that are devisable; the solemnities requisite to a due execution of the will; and, lastly, some of the leading rules applicable to the construction of devises.
II. Of the parties to a devise.
The general rule is, that all persons of sound mind are competent to devise real estate, with the exception of infants and married women. This was the provision in the English statute of wills, and, I presume, the exceptions equally exist in this country. But a feme covert, by deed of settlement made prior to her marriage, and vesting her estate in trustees, may be clothed with a testamentary disposition of her lands; and a court of
Stat. 34 and 35 Hen. VIII., c. 5. New-York Revised Statutes, vol. ii. 56, sec. 1. Massachusetts Revised Statutes, 1836, p. 416, 417. In Virginia, the will of a blind man was admitted to probate. Boyd v. Cook, 3 Leigh, 32. A married woman is considered to be incapable of making a valid will of lands, even with the consent of her husband, and without any statute prohibition to that effect. Osgood v. Breed, 12 Mass. Rep. 225. Marston v. Norton, 5 N. H. Rep. 205. West v. West, 10 Serg. & Rawle, 445. In Ohio, (Allen v. Little, 5 Hammond's Ohio Rep. 65,) Illinois and Mississippi, (Revised Code of Mississippi, 1824, p. 32,) females are competent to make a will of real and personal estate at the age of eighteen; and, in Louisiana, the wife, who has very extensive privileges, may make a will without the authority of her husband. In Connecticut, married women may dispose of their estates, real and personal, by will, in the same manner as other persons. Statutes of Connecticut, 1838, p. 226. In Lowe v. Williamson 1 Green's N. J. Ch. Rep. 82, the competency of an aged testator to make a will was ably discussed. He was deemed competent if he had a mind and memory sufficiently sound to be of a disposing mind and memory, and competent to know and understand the business in which he was engaged at the time he executed the will. The interesting head of the disabilities of testators is well digested in Jarman on Wills, Boston edit. 1845, vol. i. ch. 13, and I take this occasion to observe that the notes added to the edition in two volumes, by J. C. Jenkins, Esq., have given increased value to that full and excellent work, and which appears to be the most methodical and thorough treatise which we have on the subject.
chancery will enforce such a power made during coverture, under the name of an appointment, or declaration of trust. She may devise by way of *506 execution of a power. But the will that she
makes, in such a case, must be executed with the same solemnities, as if she had executed the deed while sole.b An infant cannot, in any case, be enabled to devise through the medium of a power; and the New-York statute specially excludes the exercise of a power by a married woman during her infancy.c
Testaments of chattels might, at common law, be made by infants of the age of fourteen, if males, and twelve, if females. This was the English rule until the statute of 1 Victoria, and the testamentary power of infants is now abolished. The laws of the several states are not uniform on this point. In Virginia no person under eighteen years of age can make a will of chattels ;" and by the New-York Revised Statutes, the age to make a will of personal estate is raised up to eighteen in males,
See vol. ii. of this work, 171, and New-York Revised Statutes, vol. i. 735, sec. 110.
Casson v. Dode, 1 Bro. 99.
New-York Revised Statutes, vol. i. 735, sec. 111.
◄ 2 Blacks. Com. 497. Arnold v. Earle, 2 Rep. tem. Lee, by Phillimore, vol. ii. 529. The statute of 1 Victoria, ch. 26, declares that no will made by a person under age, or by a married woman, shall be valid except such a will as might have been made by a married woman before the passing of the act; consequently a married woman in England may still make a will of personal estate with her husband's consent, and a will of real or personal estate to which she may be entitled for her separate use, and she may also make an appointment by will, in pursuance of a power to be executed, notwishstanding the coverture. The statute law in Massachusetts, Vermont, Pennsylvania, also require the testator of wills of personal as well as real estate not to be under twenty-one years of age.
e Revised Code of Virginia, 224.
f Vol. ii. 60. The early statute law of Connecticut required the infant of either sex, to be seventeen to be competent to dispose of personal estate by will. This is still the law of Connecticut. Statutes, 1821. The act of 1831, in Ohio, relating to wills, does not include married women among the persons incompetent to make a will, and she is presumed to have that power.
and sixteen in females. Nor can a married woman make a testament of chattels, any more than of lands, except under a power, or marriage contract, or by her husband's license."
But infants, femes covert, and persons of non-sane memory, and aliens, may be devisees; for the devise is without consideration. A devise to the heir at law is void, if it gives precisely the same estate that the heir would take by descent if the particular devise to him was omitted out of the will. The title by descent has, in that case, precedence to the title by devise. The test of the
rule, says Mr. Crosley, is to strike out of the will *507 the particular devise, to the heir, and then, if without that he would take by descent exactly the same estate which the devise purports to give him, he is in by descent, and not by purchase. Even if the lands be devised to the heir charged with debts, he still takes by descent; for the charge does not operate as an alteration of the estate. Corporations are excepted out of
■ 2 Blacks. Com. 498. Steadman v. Powell, 1 Addam's Rep. 58. Hood v. Archer, 1 McCord's Rep. 225. Newlin v. Freeman, 1 Iredell's N. C. Law Rep. 514. Married women would seem to be prohibited in New-York from making a will of personal estate in any case, for the statute declares that every male person of eighteen years of age, and every female, not being a married woman, of the age of sixteen, and no others, may make a will of personal estate. New-York Revised Statutes, vol. ii. 60. By the Revised Statutes of Connecticut, 1821, and of Illinois, published in 1829, a married woman may dispose of her separate estate, both real and personal, by will, in the same manner as other persons.
Though an alien may be a devisee, as well as purchaser, he takes a defeasible estate. See vol. ii. 61. The New-York Revised Statutes, vol. ii. 57, sec. 4, have judiciously declared such devises void, if to persons who are aliens at the death of the testator.
• Hurst v. Earl of Winchelsea, 1 Wm. Blacks. Rep. 187. But see ante, p. 412, the rule altered in England by statute.
d Crosley's Treatise on Wills, edit. London, 1828, p. 101.
Allan v. Heber, Str. Rep. 1270. Hurst v. Earl of Winchelsea, 1 Wm. Blacks. Rep. 187. The statute of 3 & 4 Wm. IV., ch. 106, altered the English law in this respect, and declared that on a devise of lands by the testator to his heir at law, he should be considered as taking as devisee, and not by descent. Vide supra, p. 412, note.