it is enacted, (§ 2.) that all wills and testaments shall be deemed and taken, only as against creditor or creditors by bond or other specialty, in which the heirs are bound, their heirs, successors, executors, administrators, and assigns, to be fraudulent and utterly void. With an exception (§ 4.) of devises for payment of Infra, c. 16. debts, or children's portions, pursuant to a marriage agreement. B. 1. c. 4. 14. Bro. R. 311. 4 Ves. Jun. 550. 21. Mr. Fonblanque has observed, that in conse- Treat. of Eq. quence of this exception, bond and other specialty 1 creditors, whose demands do in their nature affect the lands, are still liable to be prejudiced by the right of their debtor to devise his real estate; for if he devise, subject to the payment of his debts, his simple contract creditors will by such devise be entitled to be paid pari passu with his bond or specialty creditors; because, in conscience, their debts are to be equally favoured, being equally due. 22. A case has been already stated in which it was determined that an estate in reversion is within this statute; that a devise of the reversion by the heir of the obligor, is also within the act; and that in such a case the lands are liable. 23. Persons who claim lands under a will, having the law on their side, are entitled, as against the heir of the devisor, to the aid and assistance of a court of equity, for a discovery of the deeds and writings relating to the estate devised, and to have them delivered up, as following the lands. This course of proceeding is said arguendo to be founded on the highest reason; for otherwise all wills of land might be disappointed, and the heir at law, by obtaining possession, and getting the deeds into his custody, unless compelled to discover and produce them, in order to make out the title of the devisee, might defend himself at law, by setting up prior incumbrances, and by that means prevent a legal trial of the validity of the will, and totally frustrate the intention of the testator. Kinaston v. Clarke, Devisees enequity. titled to aid in Newcastle v. 3 Bro. Parl. Pelham, Ca. 460. Tit. 15. c. 4. § 4. A will of lands need not be proved in the Ecclesiastical Court. Cro. Car. 296. 346. 4 Burn's Ecc. Law, 195. 1 24. A devisce is also entitled, in equity, to have any incumbrance which may be on the devised estate paid off for his benefit. 25. A will of freehold lands need not be proved in the Ecclesiastical Court; although that is usually done, because most wills of land contain also a disposition of personal estate; for the probate of such a will cannot be given in evidence, because the proceedings, so far as they relate to freehold interests in land, are coram non judice; the Ecclesiastical Courts having no power to authenticate such instruments. 26. It is therefore frequently necessary to produce the original will, and for that purpose to get it out of the Ecclesiastical Court, in which it was proved; and in such a case, an application must be made to 4 Bro. R. 476. the Court of Chancery for an order to have the will 1 Atk. 627. Tit. 8. But may be registered. Vide Tit. 32. c. 27. delivered. 27. This principle does not, however, apply to wills of chattels real, or terms for years, because they vest in executors; consequently they must be proved in the Ecclesiastical Court, having jurisdiction where the lands lie. 28. By the statute 2 & 3 Ann. c. 4. § 20. it is enacted, that all memorials of wills that shall be registered, of any lands in the west riding of the county of York, within the space of six months after the death of every respective devisor dying in England or Wales, or within the space of three years after the death of every devisor dying abroad, shall be as valid and effectual against subsequent purchasers, as if the same had been registered immediately after the death of such devisor. 29. By the next section it is provided, that in case the devisees, by reason of the contesting of such wills, shall be disabled to exhibit a memorial for the registry thereof within the times before limited; then and in such case the registry of the memorial within the space of six months next after the attainment of the will, or a probate thereof, or removal of the impediment, shall be a sufficient registry within the meaning of the act. 30. By the statute 6 Ann. c. 35. § 14. the same provision is made for registering wills of lands in the east riding of Yorkshire, as in the above act; and by the next session it is provided, that in case the devisee, by reason of the contesting such will, or other inevitable difficulty, without his wilful neglect or default, shall be disabled to exhibit a memorial for the registry thereof within the times limited, and that a memorial shall be entered in the office of such contest or other impediment, within six months after the decease of the devisor who shall die within the kingdom of Great Britain, or within three years after the decease of such person who shall die beyond sea; then and in such case the registry of the memorial of such will within six months after the attainment of such will, or a probate thereof, or removal of the impediment, shall be a sufficient registry within the meaning of this act. 31. By the statute 7 Ann. c. 20. § 8. the same provision is made for registering wills of lands in the county of Middlesex, as in the stat. 2 & 3 Ann.; and it is provided, (§ 9.) that if the devisee, by reason of the concealment or suppression, or contesting such will, or other inevitable difficulty, shall be disabled to exhibit a memorial for the registry thereof within the times limited, and that a memorial shall be entered in the office of such contest or other impediment, within two years after the death of such devisor, dying in Great Britain, or four years after the death of such person, dying beyond sea; then and in such case the registry of the memorial of such will within six months after its attainment, or a probate thereof, or removal of the impediment, shall be a sufficient registry within the meaning of the act: provided that in case of any concealment or suppression of any will or devise, any purchaser shall not be disturbed or defeated in his pur chase, unless the will be actually registered within five years after the death of the devisor. 32. By the statute 8 Geo. II. c. 6. § 15. the same provision is made for registering wills of lands in the north riding of Yorkshire, as in the stat. 2 & 3 Ann. ; and it is provided, (§ 16.) that in case the devisee, by reason of the contesting such will, or other inevitable difficulty, shall be disabled to exhibit a memorial within the times limited, and that a memorial shall be entered in the office of such contest or impediment, within six months after the decease of such devisor, dying in Great Britain, or three years after the death of such person, dying beyond sea; then and in such case the registry of the memorial of such will within six months after its attainment, or a probate thereof, or removal of the impediment, shall be a sufficient registry within the meaning of the act: and it is provided by the next section, that in case of any concealment or suppression of any will or devise, no purchaser or purchasers for valuable consideration shall be defeated or disturbed in his or their purchase, nor any judgment or statute creditor shall be defeated of their debts, by any title made or devised by such will, unless the will be actually registered within three years after the death of the devisor. SECTION 1. vise. To the validity of every devise, it is necessary that Who may dethere should be a devisor capable of disposing of, and a devisee or devisees capable of taking the lands devised. With respect to the persons who are capable of devising, all those who have a power of disposing of their real estates by any conveyance inter vivos, may dispose of them by will. 2. It is stated in Brooke's Ab. Tit. Prerogative, 5. to The King. have been laid down by Fortescue in 35 Hen. VI,, that the King could not devise land by his testament; but it appears from the Rolls of Parliament that the kings of England were in the practice of conveying lands to trustees, to the use of their wills; and it has been enacted, by a modern statute, 39 & 40 Geo. III. c. 88. § 4., that his Majesty, his heirs and successors, may, by will, devise any manors, messuages, lands, tenements, and hereditaments, purchased by, or which shall come to his Majesty, his heirs, or successors, out of any monies issued and applied for the use of his or their privy purse, or with any other monies not appropriated to any public service; or any manors, &c. which have come to his Majesty, or shall come to him, his heirs or successors, by gift, devise, or descent, or otherwise, from any of his or their ancestors, or any other person or persons, not being Kings or Queens of this realm. 3. The same statute, § 8. after reciting, that by the The Queen law of England the Queen consort, wife of the King, was capable of taking, granting, or disposing of property, as if she were a feme sole; but that doubts arise, how far this capacity of granting or disposing of property extended; and especially whether, during the life of the King her husband, it included the power of devising and bequeathing by last will and testament; and reciting that his Majesty was desirous that her Majesty, during the King's life, should have full power, by her last will and testament, to dispose of any consort. |