CHAP. XIV. CHAP. XV. XII. Of Devises by persons who have both Lands in fee and for years - 159 XIII. Of Devises by persons who have both freehold and copyhold Lands 168 XXII. Of a Devise by a Donee of a Power XXIII. Of a Devise to Executors to pay Debts A TREATISE ON THE EXPOSITION OF WILLS OF LANDED PROPERTY. CHAPTER I. INTENTION, THE LAW OF DEVISES. THE cases on the subject appear to authorize the general position, that the intention of the testator is the law of devises. In a deed, technical form and language are often essential to give effect to the intention of the parties, on the principle, that a deed is made with mature deliberation, and with knowledge of the laws. (a) A greater latitude of construction is permitted of wills, on the principle, that a testator is not supposed (b) to be acquainted with legal form and language; (c) and that it is a reasonable indulgence, to leave to every one the power to make his own will in his own way. [ *2 ] *The exposition of wills has always been governed by the intention of the testator. Before the Statute of Wills, 32 Hen. VIII., c. 1, this was a part of the common law. (d) Since the Statute of Wills, the same principle has been invariably acknowledged. The early(e) cases all notice it; and many of the most learned of the judges, in later times, have insisted on this principle in pointed and remarkable language. Mr. Justice Wilmot has said, "the principle that must govern all cases of this kind, is the intention of the testator, which is the Pole-star for the direction of devises."(f) Lord Chief Justice Willes: "The rule is, that voluntas testatoris totum est."(g) Lord Kenyon, also: "I am clearly of opinion, that the inten tion of the testator is the Polar-star, by which we should be guided in the construction of wills."(h) And Lord Loughborough: "It is my duty to give effect to the will, as far as the intention can be clearly made out. It is not permitted to me to be affectedly ignorant of the intention; much less to control a certain established intention upon my own idea of the fitness or unfitness, the liberality, or the political tendency of it."(¿) [ *3 ] *CHAPTER II. OF ILLEGAL DEVISES. SECTION I. OF PROSPECTIVE DEVISES OF AFTER-PURCHASED LANDS. In the position, that the intention of the testator is the law of devises, the intention meant is, an intention of the testator legally(a) to dispose of his property. This is the intention which the law will, if possible, fulfil. An intention, illegally to dispose of it, the law will frustrate. It should seem, a person cannot do more by his will than, with legal advice, he is able to do by a conveyance in his lifetime. He may, indeed, effect any given object in a different way, by his will; but the rules of law, which govern the objects themselves of a settlement of real property, are as applicable to a will as to a deed; and if an object is illegal, a will cannot attain it. A will of lands, held for a freehold estate, is considered to be a species of conveyance. It will not, therefore. operate on lands in which the testator has no interest when he makes his will.(b) "Although," observes Lord Mansfield," as to personal estate, the law of England has adopted the rules of the Roman testament, yet a devise of lands in England is considered in a different light from a *Roman will. For a will, [ *4 ] in the civil law, was an institution of the heir. But a devise in England is an appointment of particular lands to a particular devisee, and is considered in the nature of a conveyance by way of appointment; and upon that principle it is, that no man can devise lands which he has not at the date of such conveyance. It does not turn upon the construction of the statute 32 Hen. VIII., which says, that any person having lands, &c., may devise;' for the same rule held before the statute, where lands were devisable by custom.(c) It may, then, perhaps, be said to be illegal, prospectively to devise lands of inheritance, which the testator may agree to purchase after the making of his will; or prospectively to devise a freehold lease, which is not the property of the testator when (h) 2 East, 42. (i) 4 Ves. 341. See, also, ibid, 312, 42. 329, 574; 2 Vern. 337. (a) 2 Burr. 1112. 1 Atk. 377. 2 East, (b) Cowp. 90. 2 Bl. C. 378. his will is made; or, if the testator has a subsisting freehold lease, prospectively to devise a renewed (d) lease of the same lands. Terms of years, it may be added, are personal property, and the principle mentioned does not extend to them. It is in the power, therefore, of a testator, if he pleases, to devise (or bequeath) a lease for years, which he is not possessed of at the time he makes his will. As the devise is legal, it will be carried into effect."(e) SECTION II. OF DEVISES IN PERPETUITY. A SETTLEMENT in perpetuity, (which is any period longer than the time the law permits land to be unalienable,) is illegal; and cannot be effected by any assurance *whatever. The object of the law against settlements in perpetuity is, to facilitate the change [ *5 ] of landed property from one hand to another. (f) A means to this end is, to prevent its being tied up, beyond a reasonable period, in the hands of persons unable to sell, or otherwise dispose of the whole estate in it: if the estate be in fee, then of the fee-simple; if for years, of the term. The law permits land to be made unalienable for a period, from the day the land is settled, of a life, or any number of lives, then in being,(g) and 21 years, and the farther period of nine months, or any additional time, within which a posthumous child must, if at all, be born.(h) Any longer period is, in law a perpetuity. The point from which the law begins to count a perpetuity, is, it is apprehended, the day on which the property is settled. A will of lands seems to be a settlement made on the day of the testator's death; and from that day, it should seem, a perpetuity is, therefore, to be reckoned. But it appears, so strict and cautious is the law not to permit a perpetuity, that it is not sufficient if, in event, at the death of the testator, it turns out that the estate is alienable within the prescribed time; but the will, and not accident, must make it so: and if a limitation in a will is too remote when the will is published, the limitation is then, in its creation, void, and accident is not permitted to make it afterwards legal. (¿) It does not appear that the law against a perpetuity requires, that, within the limited time, the whole estate, in fee or for years, is to be vested in one person, and that he, singly, without the concurrence of other persons, is to have the right to alien it. It seems only to require that *the estate in fee, or the term, shall then be alienable; but ] whether by one person singly, or by many, as by a particular [ *6 tenant and remainder-men, seems to be immaterial. The law against a perpetuity appears not to be infringed on, if, within the limited period, there are persons in existence who are entitled, in the case of a fee sim (d) See 6 Madd. Rep. 84. (e) 11 Ves. 390. Colegrave v. Manby, 6 Madd. Rep. 72. (f) 1 Eden, R. 416. 11 Ves. 137. (g) Ibid. 134, 136. (i) Lady Lanesborough v. Fox, Forrester, 262. ple, to alien the whole fee, and, in the case of a term of years, to alien the whole term. Consistently with the law against a perpetuity, a person seised in fee may legally devise to A., a person living, for life, remainder to A.'s first son unborn in tail, or to A. for life, remainder to A.'s first son unborn for life,(j) remainder to B., a person living, in tail or in fee; or to A. for 500 years, in trust to pay the testator's debts and legacies,(k) remainder to B., a person living, for life, remainder to B.'s first son unborn, for life, remainder to C., a person living, in tail or in fee. In neither of these instances, is a perpetuity created. In each, the fee simple is alienable within the prescribed period. In the first, by A. and A.'s first son, on his attaining 21; in the second, by A., A.'s first son at 21, and B.; in the third, by A., B., B.'s first son at 21, and C. It may, in this place be observed, that a tenant per auter vie is incapable, by the nature of his estate, of creating a perpetuity. His own estate being only for the lives of persons in being, an estate of longer continuance cannot be created out of it. (7) In whatever way a testator may attempt to create a perpetuity; whether 1, By devising successive estates for life to persons unborn; or *2, By depriving a tenant in tail of his power to suffer a common recovery; or [ *7 ] 3, By limiting an executory devise, which is not to take effect within the period prescribed by law; or 4, By means of a power; or 5, By a devise on trusts which would make the estate unalienable longer than the law permits-the intention of the testator cannot be carried into effect. 1. A person devised his lands "to the Draper's Company and their successors, in trust to convey the premises to his godson, Matthew Humberston, for life, and afterwards, upon the death of the said Matthew, to his first son for life, and so to the first son of that first son for life, &c.; and if no issue male of the first son, then to the second son of the said Matthew Humberston for life, and so to his first son, &c.; and in failure of such issue of Matthew, then to another Matthew Humberston for life, and to his first son for life, &c., with remainders over to other persons for their lives successively, and their respective sons, when born, for their lives; without giving an estate tail to any of them, or making any disposition of the fee."(m) As this case is reported in Vernon, the Court, in giving judgment, said, "an attempt to make a perpetual succession of estates for life is vain, and not practicable; however, there ought to be a strict settlement made, and the intent of the testator followed, as far as the rules of law will admit of;" and it directed, "the settlement to be made, so that such who were in being, should be only tenants for life; but where the limitation was to be to a son not in being, there he must be made tenant in tail male."(n) The words of the decree were, "that the Master do see a settlement made of the [ *S ] residue of the trust estate, pursuant to the will of the testator, with limitations to the several parties named to be tenants for life in the (j) Hay v. Earl of Coventry, 3 T. R. 83. (m) Humberston v. Humberston, 1 P. W 332. 2 Vern. 737. See 1 Eden, 422. (n) 1 Vern. 738. See 1 Eden, 422 |