CHAPTER V. buted (h). Leaseholds for years, and other chattel-hold -leasehold for tenements, were not subject to any of the rules in ques years. ritual courts over testa ments; tion, notwithstanding that they were, in one sense, real estate, (as being chattels real), and that long terms of years, often equal in value to the inheritance, were very common; for this important mass of property was wholly governed, in these respects, by the testamentary law reOf the jurisdic- lating to personal estate. Probate, granted by the proper tion of the spi- ecclesiastical court, carried with it, until revoked by the same authority, evidence of testacy to all other jurisdictions, so far as personal estate, including every chattel interest in land, was concerned; but probate was ineffectual in regard to real estate, (except, indeed, by providing for the safe custody of the instrument), and, if the instrument concerned real estate exclusively, probate was impossible. Whatever distinction the feudal policy may have dictated, no reason could exist in modern times for drawing a broad line of separation between freehold tenants and other proprietors of the soil; yet we have seen that the legislature, at a period subsequent to the abolition of the military tenures (i), anxiously guarded with ceremonies the devises of the former (k), passing by, as of little account, the wills and testaments of the latter. To the contempt in which terms of years were originally held, may be ascribed the actual subjection of a large portion of the landed property of the kingdom, on the death of the proprietor, to the cognizance, primarily, of the ecclesiastical judge, whose fiat of authentication, in matters testamentary (1), came to be received with implicit deference by the temporal courts, where, at the same time, the original validity, as well as the construction and effect, of a devise, was exclusively deter -particularly (h) Carey v. Askew, 2 Bro. C. C. 59; Doe d. Cook v. Danvers, 7 East, 299. (i) 12 Car. 2, c. 24. (k) 29 Car. 2, c. 3. (1) See Gingell v. Horne, 3 Jur. 194. ... The Courts of Commmon law had formerly relusive jurisdiction in questions arising on the solidlitin of a rice of real estate. Whist the ceclesiastical courts had the like aclusia timorliction mees of personal estate. But 20021 Vie 244 amended by 212 22 he c95 established a тей рибний - in which wills of personal property me now reg? to be proved mined. Judicial decisions upon the validity of the same instrument, pronounced by tribunals of an opposite character, administering different laws in a different spirit, could not but occasion some incongruities (m),—an effectual will of lands of inheritance; a void testament of lands held for a term of ten thousand years-laying out of consideration the natural consequences of that policy which protected devises by peculiar ceremonies, and which was, of course, abundantly productive of the converse result. CHAPTER V. Further disregards the crepancies, as mode of dispo sition. III. Again, the old law distinguished between the modes or forms of dominion over both real and personal estate-between interests, on the one hand, and powers or authorities, on the other. Devises and bequests, under that law, may, therefore, be divided into two classes, namely, direct or proper, and indirect or improper; the first class comprising such dispositions as are based upon some transmissible right of property in the testator, and the second class comprising such dispositions as consist in the exercise of an option to dispose, not resulting from the proprietary right, but capable, even when placed in immediate contact with that right, of existing wholly unconfounded with it (n). The rules already stated were applicable generally to the first class. But with respect to Oftestamentary the second class, the express terms of the power or authority gave the law to the testator, as to both the matter and the form of the disposition. If a power of appointment by will, over real estate, required only sealing and one witness, or a like power, over personal estate, required signing, sealing, and three witnesses, the donee of the power was bound to observe its requisites, in regard to execution and attestation, and was absolved from all others. (m) See 8 Ad. & Ell. 55; Tyr- Ves. 567; 10 Ves. 246. Vide rell's Suggestions, 257. ante, 295. appointments, particularly as tion and attes regards execu tation; CHAPTER V. relief against The disposition was effectual, if the power was pursued, though the ceremonies required by the general law, in regard to wills of the same subject-matter proceeding on ownership, were curtailed or omitted, and was ineffectual, if the power was not pursued, though the ceremonies of the general law were satisfied. Since the author of the power was, to this extent, the law-maker, -and equitable he might, and sometimes did, enjoin observances purely formal defects. fanciful and arbitrary; and as the special requisitions of powers were often forgotten in the execution and attestation of wills, cases of hardship arose, which not only induced courts of equity to relieve, by supplying, on behalf of certain favoured objects, the defective execution of powers, or, in other words, by dispensing with the prescribed ceremonies, but even tempted courts of law (0) to depart from a train of decisions, which, whether originally sound or not, were supposed to have ascertained the observances requisite to satisfy particular words of frequent occurrence in powers; so that the license allowed to the author of the power was productive of dangerous precedents on both sides of Westminster Hall. Besides, where a general devise or bequest was made by the donee of a testamentary power of appointment, if the will neither professed to exercise the particular power or powers generally, nor specified the property subjected to the power, nor by irresistible intendment, arising from the absence of other property to answer the gift, pointed at the subject of the power, the devise or bequest was inoperative, as respects the power, at law and in equity, though perfected, perhaps, with ceremonies specially prescribed by the power (p); for, in Effect of gene ral disposition, as regards the' execution of powers. (0) Doe d. Spilsbury v. Burdett, 6 Nev. & M. 259; (reversed in Exch. C. by four Judges against three, 1 Per. & D. 670; and now before the House of Lords on ap peal); and see Mackinley v. Sison, 8 Sim. 561. (p) Lempriere v. Valpy, 5 Sim. 108. legal contemplation, it indicated no intention to execute the power, and the want of internal evidence of such an intention could never be supplied. The doctrine as to powers even enabled the testator to dispense, in his own favour, with the statutory solemnities, by conveying his real estate, in his lifetime (q), to such uses, or to a trustee upon such trusts, as he, by a will attested by one or more witness or witnesses, or unattested, should appoint. The legal estate in copyhold lands did not, ordinarily, admit of a direct and proper devise; being, in general, devisable only through the medium of a surrender to the use of the owner's will, actual or presumed, (an actual surrender, so far as it was a mere form, having been rendered unnecessary by statute (r)), and of a will operating as an appointment or direction of that use; but equitable interests in copyholds (which interests, not being the subject of tenure, could not regularly be surrendered) were directly devisable (s). IV. The old law abstained from interfering by positive enactment with the construction of wills, which it was the peculiar province of the judicature to determine; and, perhaps, it would have been well if the duties of ordaining general laws, and of moulding particular rules,—laws, which must be positive and unbending, rules, which should be flexible and adaptive-had never been confounded. There existed, however, certain old and nar (q) The position that "the owner of freehold property could not give to himself a power to dispose of it by a will to be executed without the solemnities prescribed by the Statute of Frauds" (Fourth Rep. of R. P. Com.) requires qualification. It is so obvious that he could not by his will reserve such a power as to render it diffi- (s) Hussey v. Grills, Amb. 299; CHAPTER V. -whether the fee passed? row rules, against which the courts had long struggled without any other result than a vast and still accumulating mass of adjudication, raised, for the most part, on verbal peculiarities. Such was the rule which required words of inheritance to pass the fee (t), a rule which, though generally condemned, and though, during a long season of judicial disfavour, compelled to admit of exceptions so numerous (u) as to furnish matter for a treatise, was yet permitted of late to recover somewhat of its obsolete influence (v), and, with singular inaccuracy as well as inconsistency, was so strained in a modern case that words of limitation were held essential to pass the whole estate of a testator entitled pur auter vie (x). The rule, too, sed by a gene- which excluded leaseholds for years from the operation of a general devise, where the testator had freeholds to satisfy its terms (y), was alternately respected and evaded, according as the individual Judge inclined more strongly to the written law or to the presumable intention; and the result, as happens in the case of every judicial struggle against an arbitrary rule, was to aggravate the mischief by petty distinctions. On the other hand, a train of inadvertent modern decisions had involved some questions of construction in a state of embarrassment, which seemed to require that the judicature should either revise its doctrine or stand corrected by the legislature. Such -whether leaseholds pas ral devise? -what estate (t) Ante, 8. (u) 2 Pow. Dev. by Jarm. c. xx.; Hay. & Jarm. Wills, 3rd ed. 235, n. (v) Doe v. Tucker, 3 Barn. & Ad. 473; Doe v. Clarke, 1 Cr. & Mee. 39; Doe v. Gwillim, 2 Nev. & M. 247; Doe v. Lawes, 7 Ad. & Ell, 495. See also Silvery v. Howard, 1 Nev. & P. 346; Phillips v. Allen, 7 Sim. 446; Doe v. Lawton, 6 Scott, 303. (x) Doe v. Robinson, 2 Man. & Ry. 249; (but see Mr. Manning's note). See Doe v. Evans, 1 Per. & D. 472. (y) Rose v. Bartlett, Cro. Car. 293; Thompson v. Lawley, 2 Bos. & P. 303; Fitzroy v. Howard, 3 Russ. 225; Hobson v. Blackburn, 5 Myl. & K. 571; Weihall v. Brome, 6 Sim. 99; Arkell v. Fletcher, 3 Jurist, 1099. |