American authors are:

Schouler, Underhill, Bigelow,

Chaplin and Page. The books by Underhill and Professor Page are both recent works. There are also many valuable monologues on the various special topics in the subject of wills. For these the student is referred to the catalogues of the various law book publishers.

To those students of law who desire an up-to-date and general summary of the law and decisions in the various States of the Union on the law of wills, or succession after death, as well as the practice prevailing in the various jurisdictions in regard to the administration of estates, we recommend the "second edition of The American and English Encyclopædia of Law," published by the Edgar Thompson Company, of Northport, N. Y., and the volumes of the "Lawyers' Reports Annotated," embracing the most valuable decisions rendered in the highest courts of the various States and published by the Lawyers' Co-operative Publishing Co., of Rochester, N. Y.

Sec. 929.

CHAPTER II.

ORIGIN AND HISTORY OF WILLS.

ORIGIN OF WILLS COINCIDENT WITH THE RISE OF PRIVATE PROPERTY. -Among very primitive peoples there was neither personal property nor realty in the hands of the individual, and consequently there could be no subject matter for wills. With the development of property rights in the individual came also the custom or privilege sanctioned by the public sentiment of the community, of allowing the owner to designate who shall succeed to his holdings. And also a general rule indicating who should take the property of a deceased person when he failed to dispose of it himself. These rules or customs were not always the same, and varied according to the theory of descent prevailing in the community where they had their origin.

In nearly all primitive nations property belonged to the community as a whole, and the right of the individual was to use, but not to segregate. Though later, and by degrees, the right of the individual to the lands surrounding his own habitation became recognized.*

Wills are thus of very ancient origin; their use and legal sanction having been well known to the Greeks and Romans. In England at the time of the Norman Con

*Page on Wills, 5.

quest, wills of both real and personal property were common. In the Roman law the will, though originally a public and irrevocable act, had come, prior to the time of Justinian's code, to have a striking similarity in its elements and effects to the modern will.

Sec. 930. THE STATUS OF THE WILL IN ENGLAND PRIOR TO 1066.-Prior to the Norman Conquest, A. D. 1066, the Anglo-Saxon law recognized the right of the owner to will both personal and real property. Although some authorities seem to think that this right was not general, but confined only to great personages, as the king, bishops, earldormen and the like.* It is quite possible that only such persons had property sufficient to warrant the trouble of making a will. There is some doubt also whether this pre-Norman will was revocable, or not, after being made.†

Sec. 931. THE STATUS OF THE WILL AFTER 1066 A. D.-The Conquest of England by the Normans in 1066, A. D., and the introduction of the feudal system, or the theory that all land belonged to the king and was leased or rented out by him to his head men upon their rendering military services,-naturally put an end to the disposition of land by will, as the two theories were incompatible.

The will, however, did not give place to the theory of the feudal system without a struggle, and though the

*Pollock and Maitland's History of English Law, Vol. II, 318; Page on Wills, 7.

Pollock and Maitland's History of English Law, Vol. II 318-319.

Common Law held that land could not be transferred by will, there were, in Kent, and some other boroughs and manors, exceptions to the general rule, and in these places lands could be devised. Personal property remained free to be disposed of by will, and an estate for years, being considered as personalty, could be disposed of by will.*

In 1285, the statute de donis (13 Ed. I, Stat. I) was passed making the conditions in the deed or grant of the donor obligatory, and it was thought that where the word "devisee" was used in a deed of lands that such lands could thereafter be disposed of by will. But the courts held otherwise.†

Sec. 932. THE ATTEMPT OF THE COURTS OF EQUITY TO REVIVE THE RIGHT TO WILL LANDS.-In the fourteenth and fifteenth centuries the courts of equity in England undertook to modify the Common Law rule forbidding the disposition of lands by will. They did it in this way, the conveyancers had invented a plan by which the owner of land could deed it to a grantee to hold to the grantor's use, or to the use of any other person he might designate, and the equity courts would enforce the conditions of this grant; so when the grantor undertook to appoint to this use by will, the equity courts continued to uphold and enforce the use, thus practically making land, or its benefits, devisable.

In 1535, Parliament attempted to put an end to this *Black. Com. II, 375.

†Pollock and Maitland's History of English Law, Vol. II, 27.

roundabout method of devising land, through the doctrine of uses by passing what is known as the Statute of Uses. (27 Hen. VIII, Ch. 10.) The Statute of Uses provided in effect that the "seisin," or title, should follow the use and that the person taking the use should, in law, take the entire legal title. So when the grantor devised to his own use, he still held the legal title and when he devised to the use of a third person, such person was thereby put into possession of the full legal

estate.

This statute would have put an end to the devising of lands in England, had not the equity courts, in their attempt to outwit Parliament and the Common Law, devised a new expedient. The method used was to interpose a second trust, that is, lands were deeded to A for the use of B in trust for C, and the equity courts simply upheld C's beneficiary interest, and allowed such an interest to be created by will.*

Sec. 933. THE STATUTE OF WILLS.-In 1540, just five years after the passage of the Statute of Uses, Parliament passed the Statute of Wills (32 Hen. VIII, Ch. 1), which was followed in 1542-43 by an act to interpret the Statute of Wills. (34-35 Hen. VIII, Ch. 5.) The purpose and effect of these two acts was to remove the restriction upon the devise of land at Common Law; under these statutes persons holding lands in fee simple, or in socage tenure, were enabled to devise the same at their will and pleasure, except to bodies cor

*Black. Com. II, 375-376.