The feodal restraint thereon: Litt. s. 167, 1 Inst. 111. Plowd. 414. 27 Hen. 8, c.10. Dyer, 143. The Statute of Wills. So that by the common law since the conquest, no estate, greater than for term of years, could be disposed of by testament; except in Kent, in some ancient burghs, and a few particular manors where Saxon immunities subsisted. And though the feodal restraints on alienation by deed vanished very early, those on wills continued for some centuries after; yet upon the invention of uses, as a thing distinct from the land, uses began to be frequently devised, and the devisee of the use could in chancery compel its execution. When, however, the Statute of Uses annexed the possession to the use, they became no longer devisable; until the Statute of Wills, 32 Hen. 8, c. 1, explained by 34 Hen. 8, c. 5, enacted, that all persons being seised in fee simple (except feme coverts, infants, idiots, and persons of non sane memory) might by will and testament in writing devise to any other person, except to bodies corporate, two-thirds of their lands a preceding gift shall be born, or if there shall be no issue, who shall live to attain the age, or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue, s. 29. Where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the tes tator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication, s. 30. Where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate, which the testator had power to dispose of by will in such real estate, and not an estate determinable, when the purposes of the trust shall be satisfied, s. 31. Where any person to whom any real estate shall be devised for an estate tail, or an estate in quasi entail, shall die in the lifetime of the testator, leaving issue, who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will, s. 32. Where any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will, s. 33. The act does not extend to any will made before the first day of January, one thousand eight hundred and thirty-eight, and every will re-executed or re-published, or revived by any codicil, shall for the purposes of this act be deemed to have been made at the time at which the same shall be so re-executed, re-published, or revived; and the act does not extend to any estate pur autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight, s. 34. held in chivalry, and the whole of those held in socage; which now, through the alteration of tenures by the statute of Charles 12 Car. 2, c.24. the Second, amounts to the whole of their landed property, charitable uses. except their copyhold tenements (b). Corporations were ex- Of devises to cepted in these statutes, to prevent the extension of gifts in corporations to mortmain; but now by construction of the statute 43 Eliz. c. 4, 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. Frauds. Christopher v. The Statute of Frauds, 29 Car. 2, c. 3, directs that all devises The Statute of 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. And a similar solemnity is requisite for revoking a devise by writing, though it may also be revoked by cancelling or obliterating it by the devisor, or in his presence and with his consent, as likewise impliedly 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 (c). In the construction of this 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, without any name at the bottom (d). The witnesses must see the testator 3 Lev. 1. sign or acknowledge the signing. They may do it at different times; but they must subscribe their names as witnesses in his presence. With regard to the competency of witnesses, the stat. 25 Geo. 2, c. 6, declared void all legacies given to witnesses, but directed the testimony of all creditors to be admitted, leaving their credit (like that of other witnesses), to be considered on a view of all the circumstances by the court and jury before whom the will is contested (e). Freem. 486, 1 P.Wms. 740. (b) Which by 7 Wm. 4, and 1 Vict. c. 26, s. 3, (see p. 239) are now devisable by will in the same manner as other property. (c) By 7 Wm. 4, and 1 Vict. c. 26, s. 2, the stat. 29 Car. 2, c. 3, so far as it relates to wills is repealed, and now every will, and every alteration and revocation of a will, made since 31st Dec. 1833, requires two witnesses only; no will is revoked by any presumption of an intention by an alteration in circumstances, but marriage is a revocation of a will, unless it be made under a power of appointment, as in s. 18. (d) But by the new statute, all wills made since 31st December 1833, must be signed at the foot or end thereof, by the testator, or by some other person in his presence and by his direction. (e) The stat. 25 Geo. 2, c. 6, (except as to the colonies) is repealed by 7 Wm. 4, and 1 Vict. c. 26, and now, though gifts to an attesting witness are void, no will is to be invalidated by reason of the incompetency of a witness. The nature and operation of a devise of lands. A will of lands under these statutes, is considered by the courts of law not so much in the nature of a testament, as of a conveyance declaring the uses to which such 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 usual, in order to assist their memory when living, and to supply their evidence when dead; but in devises of lands, such subscription is now absolutely necessary by statute, in order to identify a conveyance, which in its nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance is founded, the distinction between such devises, 11 Mod. 127. and testaments of personal chattels, that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will (f). Wherefore no after purchased lands will pass under such devise, unless subsequent to the purchase or contract the devisor republishes his will (ƒ). 1 P. Wms. 575. 11 Mod. 148. Moore, 255. 1 Ch. Cas. 39. General rules for the construction of deeds and wills. The construction must be according to the intention. The following general rules and maxims have been laid down by courts of justice for the construction and exposition of all common assurances. The construction must be favourable, and as near the minds and apparent intents of the parties, as the rules of law will admit. And it must be reasonable and agreeable to common 1 Bulstr. 175. understanding. Hob. 304. 2 Saund. 157. Where the intention is clear the words Where there is no ambiguity in the words they should be construed according to their obvious meaning; but where the intention is clear, too minute a stress should not be laid on are not strictly the strict and precise signification of words; nam qui hæret in litera, hæret in cortice. Therefore, by a grant of a remainder a reversion may pass, and e converso. And another maxim of law is that bad grammar does not vitiate a deed. construed. Hob. 27. 10 Rep. 133. Co. Litt. 223. 2 Show. 334. The construction must be upon the entire deed. 1 Bulstr. 101. Plowd. 156. The construction must be made upon the entire deed, and not merely upon disjointed parts of it. "Nam ex antecedentibus et consequentibus fit optima interpretatio." Every part of it must, if possible, be made to take effect; for words should be understood with an effect that may tend more to strengthen than destroy the subject matter. Which must be A deed must be taken most strongly against the grantor, and in favour of the other party, verba fortius accipiuntur taken most (f) By 7 Wm. 4 and 1 Vict. c. 26, s. 24, every will made since 31st Dec. 1833, is to speak from the death of the testator, and to pass all his property, real as well as personal, at that time, although acquired after the execution of the will, unless a contrary intention shall appear thereby. strongly against the Co. Litt. 42. tween indentures and deeds Co. Litt. 134. contra proferentem. As if tenant in fee simple grants to one an estate for life generally, it must be construed an estate for the life of the grantee. But a distinction must be made between an indenture and a deed poll: the words of an indenture ex- Ibid. ecuted by both parties are to be considered as the words of Distinction beboth; but in a deed poll executed only by the grantor, the words are his only, and are to be taken most strongly against him. poll. If the words will bear two senses, one agreeable to, and another against law, the former is to be preferred. As if tenant in tail lets a lease for life generally, it shall be for his own life only, for that stands with law; and not for that of the lessee, which is beyond his power to grant. If in a deed there be two clauses so repugnant to each other that they cannot stand together, the first shall be received and the other rejected; wherein it differs from a will; for there, of two such repugnant clauses the latter shall stand. The first deed and the last will are always most available in law. There preferred able to law. last is rejected; but in wills the clauses, the first. Hardr. c. 94. Ibid. 112. Cro. Eliz. 420. 1 Vern. 30. Rules for the construction of See book 2, cap. 7, p. 133. A devise is to be favourably expounded so as to pursue, if possible, the will of the devisor, who for advice or learning may have omitted the legal or proper phrases. fore the law often dispenses with formal words in devises, a devisc. which in all other instruments are absolutely requisite (g). Thus, a fee may be devised without words of inheritance: and an estate tail may be created without words of procreation. An estate may also pass by a will by mere implication without any express words to direct its course. As where a man devises lands to his heir-at-law after the death of his wife: here, though no estate is given to the wife in express terms, yet she shall have an estate for life by implication; for 13 Hen. 7, 17. the intent of the testator is clearly to postpone the heir till 1 Ventr. 376. after her death; and if she does not take it nobody else can. So where a devise is of black acre to A., and of white acre to B. in tail, and if they both die without issue, then to C. in fee; here A. and B. have cross-remainders by implication, and on the failure of either's issue, the other, or his issue, shall take the whole; and C.'s remainder over shall be postponed till the issue of both shall fail; to avoid confusion no such cross-remainders are allowed between more than two devisees, 1 Ventr. 224. and in general where any implications are allowed, they must 2 Show. 139. Freem. 484. Cro. Jac. 655. (g) And since the act 7 Wm. 4, and 1 Vict. c. 26, "a general disposition by will executes vi sua general powers; but such disposition by deed does not so operate unless it would otherwise fail of effect”.—Hayes' Conveyancing, 345. be such as are necessary (or at least highly probable), and not merely possible implications; and the rule in equity is the same, the will being considered in both courts in the light of a limitation of uses. sonal. CHAPTER XXIV. OF THINGS PERSONAL. Of things per- THINGS personal include all sorts of moveables, the whole of which are comprehended under the general name of chattels Chattels are distributed by the law into two kinds, chattels real and chattels personal. Chattels real and personal. Chattels real. 1 Inst. 118. Chattels real are such as concern or savour of the realty; as terms for years of land; the next presentation to a church; estates by statute merchant; statute staple; elegit, or the like. These are called real chattels, as being interests issuing out of, or annexed to, real estates: of which they have one quality, viz. immobility, which denominates them real; but want the other, viz. a sufficient legal indeterminate duration and this want constitutes them chattels. Chattels personal are properly, and strictly speaking, things moveable; which may be annexed to, or attendant on, the person of the owner, and carried about with him from one part of the world to another. Such are animals, household stuff, money, jewels, corn, garments, and every thing else that can properly be put in motion and transferred from place to place. CHAPTER XXV. OF PROPERTY IN THINGS PERSONAL. PROPERTY in chattels personal may be either in possession ; which is not only the right to enjoy, but the actual enjoyment of the thing; or in action; which is a bare right, without any occupation or enjoyment. Property in possession, is divided into an absolute and a qualified property. Property in chattels personal in possession absolute, is the sole and exclusive right, and also the occupation of any moveable chattels. With regard to animals, the law distinguishes |