Vide Tit. 32. c. 2. Who are disabled from devising. Infants. Bedell v. Constable, Vaugh. 177. Married women. manors, messuages, lands, tenements, and hereditaments purchased by or in trust for her Majesty, or which should thereafter vest in her Majesty, or in any person in trust for her, as fully as if she were sole and unmarried; it is enacted, that it shall be lawful for her Majesty, by her last will and testament in writing, attested by three or more witnesses, to dispose of such estates as she is authorized by that statute to grant by deed; and, by the 9th section, the like power is given to all future queens. 4. With respect to the persons who are disabled from devising lands, the statute of wills mentions four personal disqualifications to the power of devising. 5. The first of these is infancy; and therefore persons under the age of twenty-one years are incapable of devising their lands. But if there be a local custom that lands and tenements, within a certain district, shall be devisable by all persons of the age of fifteen years or upwards, a devise of such lands by an infant of fifteen will be good. 6. An infant may devise the guardianship of his child, by virtue of the statute 12 Cha. II. c. 24.; and it has been contended, that such a disposition will draw after it the land, as incident to the guardianship; but this point has not been determined. 7. Married women are also expressly disabled by the statute of wills from devising their lands. But married women are now frequently enabled to dispose Tit. 32. c. 13. of lands by wills, operating as appointments under powers contained in conveyances to uses. 1 Inst. 133. a. Portland v. Prodger, 2 Vern. 104. Idiots and lunatics. 8. A woman whose husband has abjured the realm, or who has been banished for life by act of parliament, may in all things act as a feme sole; and may therefore make a will of her lands. 9. The two other disabilities which are expressly mentioned in the statute of wills are idiocy and nonsane memory or lunacy. But it should be observed, that every person who makes a will is presumed to be of sound understanding, till the contrary is proved, so Vide Att. Gen. that the onus probandi lies on the other side. 10. Where a devisor is under any of the disabilities before mentioned at the time when the will is made, it is absolutely void; although the disability be removed before the death of the devisor; for the party must be capable of devising at the time when the will is published. v. Parnther, Removal of dis abilities has no effect, Burton, Comb. 84. 11. A man of full age declared, in the presence of Hawe v. several witnesses, that his will, made when he was under age, should stand; it was however adjudged that the will was void, on account of the infancy of the devisor at the time of the first publication. But if 1 Salk. 238. the will had been republished, after the devisor attained his full age, it would have been good. 12. It is the same where a married woman makes a 11 Mod. 157. will, and afterwards becomes a widow; for the will was void in its inception. 13. Thus it is said by Lord Keeper Wright, that if 2 Vern. 475. a will is made by a feme covert of lands of inheritance to J. S., and the baron dies, and then the wife dies, though her intention is plain, and though after the decease of the baron, when she became sui juris, she might have devised the lands to J. S., or by a republication have made the former will good, yet it was not relievable in equity. 14. It is laid down by Lord Ch. J. Trevor, that if a 11 Mod. 157. man be non compos, and not in his right mind, at the time of making his will, though he afterwards, never so long before his death, becomes a man of understanding, and sound judgment and memory, yet the will is void, and can by no means be made good, because he wanted the disposing power at the time of making the will. 15. All natural persons who are in esse at the time To whom lands when a will is made, and who are capable of acquir- may be devised. ing lands by purchase, such as infants, &c. may be devisees. Unborn infants. Doe v. Clarke, Married wo men. 16. It was formerly much doubted whether an unborn infant, but in ventre matris, could be a devisee in a will. It is, however, now settled that such a devise is good. 17. A person devised to his brother Henry Clarke and his assigns, for his life, remainder to the use and behoof of all and every such child or children of his said brother as should be living at the time of his decease. Henry Clarke died leaving several children, and his wife pregnant, who was delivered seven months after of a daughter. The question was, whether the posthumous child took any thing under this devise. Lord Ch. J. Eyre said, it was plain, on the words of the will, the testator meant that all the children whom his brother should leave behind him should be benefited. But, independent of this intention, he held that an infant in ventre matris, who by the course and order of nature was then living, came clearly within the description of children living at the time of his decease. Judgment was given accordingly. 18. A married woman is not thereby disabled from being a devisee in a will. And although she cannot 1 Inst. 112. a. take any thing from her husband directly by deed; yet Lit. § 168. 1 Aliens. 2 Ves. 362. Bastards. 1 Inst. 3 b. Persons uncer tain. neither the custom of devising, nor the statute of wills, disqualify a wife from being the devisee of her husband; because the devise does not take effect till the death of the husband, by which the marriage is dissolved, and they cease to be one person. 19. Lord Hardwicke has said, there is no rule of law, or upon the statute of wills, to prevent an alien from taking by devise, although it is a matter of doubt for whose benefit he is enabled to take. 20. A bastard may be a devisee of land, but he must have gained a name by reputation; and therefore a devise to a bastard, in ventre matris, is void, for he cannot have acquired a name by reputation till he is born. 21. A devise to a person uncertain, as to such of the daughters of A. as shall marry a man of the name of T. Raym. .... Norton, is good. And a devise to a person not in Bate v. Norter, existence at the time when the will is made, as to the first son of A. B., who has then no son, may be good, by way of remainder or executory devise. Bodies politic visees. cannot be de 22. Bodies politic and corporate are expressly disabled by the statute 84 & 35 Hen. VIII. c. 5. § 14. from taking by devise, in conformity to the spirit of the laws against mortmain. It was, however, formerly held, in consequence of the statute 43 Eliz. c. 4. in support of charitable uses, that a devise to a corporation, for a charitable use, was valid, as operating in the nature of an appointment. But now, by the statute 9 Geo. II., all devises to charitable uses are rendered Tit. 32. c. 2. void; except such as shall be made to the two universities, and the colleges of Eton, Winchester, and Westminster. But the King, being both a body politic and corporate, is incapable of taking by devise. 23. It is laid down by Lord Talbot, that when a person takes upon him to devise what he has no power over, upon a supposition that his devise will be acquiesced under, the Court of Chancery will compel the devisee, if he will take advantage of the devise, to take entirely, but not partially under it; there being a tacit condition annexed to all devises of this nature, that the devisee do not disturb the disposition which the devisor has made. It was 1 Att. Gen. v. Tancred, Eden, 10. Devisees must whole will. submit to the Forrest, R. 82. Noys v. Mordau nt Vern. 581. 24. A. having two daughters, B. and C., devised lands whereof he was tenant in fee simple to B., and lands of which he was only tenant in tail to C. held, that if B. claimed a share of the entailed lands, she must relinquish her claim to the fee simple lands devised to her: for the testator having disposed of his whole estate amongst his children, what he gave them was upon an implied condition, that they should release Rep. 741. to each other. 25. A person, by articles previous to his marriage, agreed to settle lands to the use of himself and his wife for their lives, with remainder to the use of the Bor v. Bor, 3 Bro. Parl. ca. 167. Doe v. Caven dish, 4 Term Streatfield v. Streatfield, Tit. 32. c. 13. Infra, c. 3. heirs of their bodies. . ii Ch. ii. He afterwards made a settlement, which was not pursuant to the articles; and on the marriage of his son, settled other lands on him in the usual manner, and levied a fine of the lands comprised in the articles, to the use of himself in fee. By his will he devised part of those lands to his daughters, and the rest of his estates to his grandson. Lord Talbot held, that the grandson, being entitled to the lands comprised in the articles, should be put to his election, whether he would take under the will, or the articles. 26. Where a will is void as a devise of land, either from the incapacity of the devisor, or from its not being duly executed, and is good as to personal estate, the heir may however take a legacy under it, without relinquishing his right by descent; because as to the land, there is, in fact, no disposition of it, consequently no election. 27. In the case of Hearle v. Greenbank, the daughter, by a will made when she was only nineteen years old, gave a legacy to her heir at law, and disposed of the real estate to another person; the question was, whether, as the will was void as to the land, and good as to the legacy, the heir should have the land, and also the legacy, or be obliged to make his election. Lord Hardwicke declared his opinion, that the heir was not obliged to make his election, for the will was void; and when the obligation arose from the insufficiency of the execution, or invalidity of the will, there was no case where the legatee was obliged to make an election, for there was no will of the land. A man devises a legacy to his heir at law, and his land to another; the will is not well executed according to the statute of frauds for the real estate; the Court would not oblige the heir at law, upon accepting the legacy, to give up the land. 28. But where the heir becomes entitled to a real estate by descent, in consequence of its having been purchased after the execution of his father's will, by which interests are bequeathed to him, he cannot take both, but must make his election. |