In the case of terms of years and personal chattels, the vesting of an interest which in reality would be an estate tail, bars the issue and all the subsequent limitations; but terms of years and personal chattels may be intailed by executory devise or by deed of trust, as effectually as estates of inheritance; if it is not attempted to render them unalienable beyond the duration of lives in being and twenty-one years after, and perhaps in the case of a posthumous child a few months more; a limitation of time wisely adopted in analogy to the case of freeholds of inheritance, which cannot be so limited by way of remainder as to postpone a complete bar of the intail by fine or recovery for a longer space. By a series of decisions every species of property is in substance equally capable of being settled in the way of intail, and though the modes vary according to the nature of the subject, yet they tend to the same point, and the duration of the intail is circumscribed almost as nearly within the same limits as the difference of property will allow 2.

Hence may be perceived, that notwithstanding the law has vested persons with great power for disposing of their real and personal estates by will, yet it has not left them to their own vain humour and caprice, in disposing thereof, but judiciously prescribed bounds whereby those estates may be rendered most beneficial to the succeeding generation; and upon those principles, and to prevent the extensive gifts in mortmain, corporations were excepted in the statute 34 & 35 Hen. VIII. as the gift to a corporation which never dies must tend to a perpetuity.

It having been held that the statute 23 Hen. VIII. did not extend to any thing but superstitious uses, and that

z Co. Lit. 20. note 5. 33d edit.

was held that the bequest amounted to a direct gift of the chattels, and that the son and eldest grandson took only for life, and that the deceased infant great-grandson took the absolute interest, which, consequently, vested in his personal representative. Lord Deerhurst v. the Duke of St. Albans, 5 Madd. 232.

therefore a man might give lands for the maintenance of a school, an hospital, or any other charitable uses; it was apprehended, that persons on their death-beds might make large and improvident dispositions even for those good purposes, and thereby defeat the political ends of the statutes of mortmain; it is therefore enacted by the statute 9 Geo. II. c. 36. that no manors, lands, tenements, rents, advowsons, or other hereditaments, corporeal or incorporeal, whatsoever, nor any sum or sums of money, goods, chattels, stocks in the public funds, securities for money, or any other personal estate whatsoever, to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments shall be given, limited, or appointed by will, to any person or persons, bodies politic or corporate, or otherwise, for any estate or interest whatsoever, or any ways charged or incumbered by any person or persons whatsoever, in trust or for the benefit of any charitable use whatsoever; but such gifts shall be by deed indented, sealed, and delivered in the presence of two or more credible witnesses twelve calendar months at least before the death of such donor, and be inrolled in the high court of chancery within six calendar months after execution, and the same to take effect immediately after the execution for the charitable use intended, and be without any power of revocation, reservation, or trust for the benefit of the donor. And all gifts and appointments whatsoever of any lands, tenements, or other hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect any lands, tenements, or hereditaments, or any personal estate to be laid out in the purchase of any lands, tenements, or hereditaments, or any estate or interest therein, or of any charge or incumbrance affecting or to affect the same, to or in trust for any charitable use whatsoever, made in any other manner than is directed by this act, shall be absolutely null and void. But the two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act; but with this proviso, that no college shall be at liberty to pur

chase more advowsons than are equal in number to one moiety of the fellows, or students upon the respective foundations. -Where a devise was to the fellows and scholars of Christ and Caius colleges the same was held good, and within the abovementioned exceptiona.

Upon the construction of this statute it has been deter mined, that if a man deviseth his land, that is, real estate (which the law terms land and agreeable thereto I have sometimes used the word land, instead of the words real estate, which imply one and the same thing), to trustees to be turned into money, and that money to be laid out in a charity, the devise is not good; for it is an interest arising out of land. So a devise of a mortgage or a term of years to a charity is not good. And if money be given to be laid out in lands, this is expressly within the act, but money given generally is not; which particulars will be enlarged on in our sixth and last chapter.

CHAPTER II.

OF MAKING THE WILL.

THE power persons have and may obtain for disposing of their estates and effects by will, having now been treated on, and likewise the bounds prescribed by the law, as limits to that power; whereby some of the requisites necessary to be observed in making the will may be perceived, we shall here proceed to treat on further requisites necessary to be attended to; and first take notice of persons who being under some special prohibition by law or custom, as for want of sufficient discretion, or for want of sufficient liberty and free-will, or on account of their criminal conduct are obliged to die intestate; and then consider the manner of making the will; whereby both real and personal estate is given or bequeathed, Attorney General v. Tancred, Ambler's Rep. 351.

a

N

and where the will only concerns personal estate: who may be made executors, and whom the testator should beware of appointing; who may be devisees, and take by devise; and the manner of their taking real and personal estate by the will: the manner of bequeathing to married women and infants, and of appointing guardians: conditions not to trouble executors, and for preventing indiscreet marriages: the nature and effects of a gift in case of death; and of a nuncupative or verbal will.

As to persons restrained from making wills for want of sufficient discretion, some of those are infants, ideots, and persons of nonsane memory, who with married women are excepted out of the statute 34 & 35 Hen. VIII. c. 5. before mentioned b; so that infants or persons under twentyone years of age, who are styled infants, till then cannot by will dispose of their real estate; yet, as has been shewn, may thereby dispose of their personal estate at certain ages. And aliens, who were mentioned in the third section of the fourth chapter of the former part of this work, as not being capable of holding lands e, consequently can never have any to dispose of; yet aliens may acquire a property in goods, money, and other personal estate, here in England, and dispose thereof by will, provided they are alien friends, or such whose countries are at peace with ours d.

Amongst those persons disabled from making wills for want of sufficient discretion, as ideots and persons of nonsane memory, may be reckoned such persons as are grown childish by reason of old age or distemper, and such as have their senses besotted with drunkenness; all of whom are incapable, by reason of mental disability, to make any will so long as such disability lasts. To these also may be referred such persons as are born deaf, blind, and dumb; who having always wanted the common inlets of understanding, are incapable of having, as it is termed, animum testandi; and therefore any will made by them is void e.

b

Page 160.

c Page 123.

d

1 Black. Com. 372. e 2 Ibid. 497.

An ideot, or natural fool, is he who, notwithstanding he be of lawful age, yet he is so witless that he cannot number to twenty, nor can tell what age he is of, nor knoweth who is his father or mother, nor is able to answer any such easy question; whereby it may plainly appear that he hath not reason to discern what is to his profit or damage, nor is apt to be informed or instructed by any other; and such an ideot cannot make any testament, nor dispose either of his lands or goods. An old man, who, by reason of his great age, is grown childish again, or so forgetful that he forgets his own name, cannot make a will; for a will made by such an one is void 8. A drunken man, when so excessively drunk as to be deprived of his reason and understanding, during that time may not make a will; for it is requisite, when the testator makes his will, that he should be of sound memory, and that he hath a competent memory and understanding to dispose of his estate with reason". A man of a mean understanding, neither of the wise or foolish sort, but indifferent, as it were, betwixt a wise man and a fool, and though he rather incline to the foolish sort, such an one is not prohibited to make a testament, unless he be yet more foolish, and so very simple, that he may be easily made to believe things incredible or impossible, and hath not as much wit as a child may have at ten or eleven years of age, who is therefore intestable by the law for want of judgment i.

Mad folks and lunatic persons, during the time of their furor or insanity of mind, cannot make a testament, nor dispose of any thing by will, because they do not know any thing they do; for in making a testament, the integrity or perfectness of the mind, and not health of the body, is requisite k. And so strong is this impediment of insanity of mind, that if the testator makes his testament after his furor hath overtaken him, and whilst it doth possess his mind, although the furor doth after depart or cease, and the testator

f Law of Test. 41. 4 Burn's Eccles. Law, 44.

Swinb. part 11. sect. 1. 6 Co. Rep. 23.

h Swinb. part 11. sect. 1.

i

Ibid. sect. 4.

k Law of Test. 89. 4 Burn's Eccles. Law, 44.