disposition of his personal estate; and if a man charges his lands by his will with all his debts and legacies, and afterwards gives other legacies by a codicil, not properly executed within the statute of frauds, the new legacies would affect the land, notwithstanding the insufficiency of the codicil to pass lands; because this is considered as done in execution of a power which the testator had reserved to himself, by charging his lands with his debts and legacies in general; according to Masters v. Masters, 1 P. Wms. 421. And there is no more inconvenience in this, than in a charge upon his lands of all his debts; where debts contracted at any time after, during his life, would certainly affect all his lands. So if a man makes two wills, one of his real, the other of his personal estate, legacies given by the second will, though executed only so as to pass the personal estate, would still affect the land, if there was a general charge of his debts and legacies upon the land, by the first. But in our case the second legacies are not new legacies, they are but a modification of the former; and had they been given in the same manner as the first, there could not have been a doubt of this matter. The difficulty arises only from the difference of interests given by the one will, and the other; but still it is only an alteration of the intent of the testator as to the quantum, and a modification of the former; they remain Vide 5 Term part of the former, and the revocation but pro tanto." 58. This doctrine is founded on the principle, that a charge of debts or legacies amounts to no more than making the real estate auxiliary to the personal; or in other words directing it to be converted into, and applied as part of the testator's personal estate, and in aid thereof. And Mr. J. Buller, in the case of Habergham 2 Ves. Jun. v. Vincent, cited the case of the Duke of Bolton v. Williams, in which a term for years was created by a will duly attested, for payment of all such legacies as the testator should mention in a codicil. He afterwards made a codicil unattested, giving legacies and annui R. 95. Fearne's Op. 434. 8 Ves. 495. 231. Smart v. Prujean, 6 Ves. 560. Rose v. Cuninghame, 12 Ves. 29. ties; the annuities were held to be legacies. And Lord Loughborough observed, that all the cases of this kind were not cases of a primary substantive and independent charge upon the real estate, but a charge upon it in aid of the personal, which was primarily charged; and that the statute of frauds did not prevent a man from creating, by will, a fluctuating charge upon real, in aid of personal. 59. But if a person, by a will duly attested, charges his real estate with such legacies and annuities as he shall afterwards give and charge upon that estate, whether attested or not, a charge by an unattested codicil will not be good. 60. A person by his will duly executed, devised to trustees, their heirs, executors, &c. a plantation in the island of Grenada, upon trust, by and out of the produce thereof, to pay off debts and incumbrances; and also to pay off and discharge all such annuities, legacies, or bequests, as he should give by his will, or by codicil or codicils thereto, or by any writing or any writings at any time or times after signed by him, or in his own handwriting, whether witnessed or not, The testator by an unattested codicil gave an additional annuity of 100l. to his wife, out of his Grenada estate; and the question was, whether this codicil was sufficient to charge the Grenada estate. Sir W. Grant, M. R.-" The ground upon which it is contended that this additional annuity of 1001. might be good as a charge upon the Grenada estate is, that the estate being once charged with all legacies and annuities, the testator may afterwards give either legacies or annuities by an unattested codicil. That the rule is so settled in many cases; and if this were that case, unquestionably it is too well established to be now disturbed; though it may be doubted whether it is perfectly consistent with the statute of frauds; for in effect the testator does dispose of his land by an unattested codicil, when he is at liberty to burden it with legacies so given. However, in this case, the testator does not charge the Grenada estate with legacies or annuities generally, but with such only as he shall afterwards give and charge upon that estate; so that, as legacy or annuity, it is not at all chargeable upon the estate; but it is as he has thought fit, by an unattested codicil, to declare, that it shall be a charge upon the estate. The reason that debts and legacies may be a burden upon the estate, is, that they constitute a fluctuating charge. It is impossible previously to ascertain what debts a man may owe at the time of his death; and it is difficult to ascertain, when he is making his formal and regular will, what legacies he may think fit, or his fortune shall enable him to give. The Court has therefore said, that when he has by a will duly exccuted, charged debts and legacies, it is only necessary to show that there is a debt, or that there is a legacy, in order to constitute a charge; for the moment that character is shown to belong to the demand, you show that it is already charged upon the estate. Then an unattested instrument is itself perfectly competent to give a legacy; and when given, you predicate of it, that it is a legacy; and then the charge immediately attaches, by virtue of the executed will. But here, the testator says, he does not now determine that all annuities, and all legacies he shall hereafter give, shall be charges; but only that if at some future period he shall think proper to declare legacies and annuities to be charges upon this real estate, then the trustees shall pay them out of the real estate. Therefore not only the legacy is to be found, but also the will of the testator, to make it a charge upon this estate; without which it is not a charge. That is only an attempt to reserve, by a will duly executed, a power to charge by a will not duly executed. It is the case of Habergham v. Ante, § 54. Vincent. It might as well have been contended in that instance that there was an adoption into the will of that future instrument. But the opinion of the Lord Devises of trust estates are Chancellor and the Judges was, that it was not competent to a man to give himself such a power; viz. a power to dispose of land by an unattested instrument. That is the reservation this testator attempts to make; for unless he thinks fit, when he makes his codicil, to declare his intention that his land shall be charged with the legacy or annuity, it shall not be charged. Then it is through the medium of an unattested instrument that it is to be a charge upon land; and that cannot be within that case." 61. Although a trust estate is now what a use was within the sta- before the statute 27 Hen. VIII., yet it is settled that it can only be devised by a will executed according to the statute of frauds. tute. Wagstaff v. 3 Atk. 151. 62. Lands were conveyed to trustees and their heirs, to the use of them and their heirs, in trust, after raising certain sums of money, to convey the premises to J. S. and his heirs. J. S. by a will, attested by two witnesses only, devised his trust estate to J. N. Lord Macclesfield said, there could be no question but that a trust of an inheritance could not be devised, otherwise than by a will duly attested by three witnesses, in the same manner as a legal estate; for if the law were otherwise, it would introduce the same inconveniences as to frauds and perjuries, as were occasioned before the statute by a devise of a legal estate. 63. An estate in mortgage, though only held as a equities of re- pledge for securing the repayment of money borrowed, can only be devised by a will executed according to the And also of mortgages and demption. Tit. 15. c. 2. Idem. statute of frauds. The same rule applies to an equity redemption, which is considered as real property, and similar to a trust estate. 64. Some modern writers have asserted that where a mortgagee disposes of money due to him on a mortgage, by an unattested will, the legal estate in the lands comprised in the mortgage, will pass. I can find no authority for this position; and I apprehend that nothing more than the money would pass; with a right in equity to call on the heir of the mortgagee for a conveyance of the land. 65. It has been stated that the statute of wills does not extend to copyhold estates; but that the power of devising them was indirectly exercised by means of a surrender to the use of a will; and it was determined that in those cases a will made in pursuance of such a surrender need not be executed according to the statute of frauds, because the copyhold passes by the surrender, not by the will; which is only a declaration of the uses of the surrender. But not wills of copyholds. 66. Thus in the case of Wagstaff v. Wagstaff, Lord Ante, § 62. Macclesfield said, "That as to the case which had been put of a copyhold surrendered to the use of a will, and afterwards devised by a will attested by one or two witnesses, this had been adjudged to be good; and his opinion was, never to shake any settled resolutions touching property, or the title of land; it being for the common good that these should be certain and known, however ill-grounded the first resolution might be. But if that had not been settled, it might be more reasonable to say; when I have surrendered my copyhold to the use of my will, a will of this copyhold shall be so executed, and in such manner, as by the act of Parliament a will of lands ouglit to be executed; but this case having been ruled otherwise," he would not 2 Ves. Jun. shake it; however, he was not for carrying it one jot further." to 204. Askew, 67. In a modern case, there was a will duly executed Carey v. pass lands; and a paper of instructions for a new 2 Bro. R. 58. will, which the testator did not live to execute; but which had been proved in the Ecclesiastical Court as a testament. And one of the questions was, whether copyholds surrendered to the use of the will, would pass by the unattested paper. The Master of the Rolls (Sir L. Kenyon) said it had been held, that a will received by the Ecclesiastical Court, would govern the surrender of a copyhold. It would be removing land |