CHAPTER V. children nominatim, (as," John, Thomas, &c.,") then, as the shares of the deceased children would have lapsed (y), the statute might operate, indirectly, for the benefit of the families of those children, in the mode already explained. When a testator has provided for a child nominatim, it is less probable that he should neglect to alter his will on the death of the child, than where he has provided for children as a class.

It is to be feared that many a testator may, under an impression that the legislature, by its superior providence and skill, has rendered his own exercise of those qualities superfluous, rely on the statute, as supplying a public codicil to his will, in cases which it is apparently incapable of reaching, or may, in ignorance of these enactments, suffer them to operate, where the inductive motive to his bounty is strictly personal to the object (≈), or where his wishes, if consulted, would have strongly pointed to a substitution of the husband, widow, or issue of the deceased devisee or legatee.

But it must be recollected, that all the enactments comprised under the fourth and fifth heads, other than those relating to devises to trustees or executors (a), are expressly subject to this qualifying clause-"unless a contrary intention shall appear by the will," and that, as the act leaves such intention to be collected by the ordinary process of taking the whole will together, and of ap

(y) Page v. Page, 2 P. Wms.
489.

(x) "A man
should guard
against this inconvenient rule (s.
33), where he does not intend it
should operate, by a gift in this
form: I give to my son John,
if he survives me, 500l.'" Sugd.
Wills, 153. This form is not, per-
haps, explicit enough; it seems

better to say: "I give to my son John 5001.; but this gift shall be of no effect, if he shall die in my lifetime, notwithstanding that he shall leave issue, and any such issue shall survive me;" or, where there are several gifts to children or issue, a general clause to the same effect may be inserted.

(a) See ss. 30, 31.

plying to its contents the established rules of construction, CHAPTER v. the legislative interpretation is always liable to be excluded by something short of a specific declaration.

As to some mat

ters relating to

copyholds;"

Some enactments, not falling under any of the preceding heads, remain to be noticed. Where copyhold or customary lands are devised, the devisee is (s. 4) chargeable with the stamp duties, fees, fines, and sums of money which would have been payable in respect of the deficient surrender, or, as the case may be, the deficient admittance and surrender; and the devisee of customary or copyhold lands, not previously devisable (b), is chargeable with the fine, heriot, dues, duties, and services which would otherwise have been due from the customary heir on descent. Every devise of customary or copyhold estate must be entered on the court rolls, but exclusive of any trusts declared of the devised estate, though the fact of there being such trusts must be noticed (s. 5). Es--and to estates tates pur auter vie, of a freehold nature, devolving upon the heir by special occupancy, are made assets by descent, and estates pur auter vie, of whatsoever tenure or quality, not subjected to special occupancy, are to devolve upon the executor or administrator of the grantee, and estates pur auter vie, devolving, either by special occupancy or under the act, upon the executor or administrator, are to be applied in the same manner as the other personal estate of the testator or intestate.

pur auter vie.

trast between

new law, and

This statute has given greater consistency to one branch Points of conof the law, but has unavoidably placed it in strong oppo- wills, under the sition to another. The points of difference (c) between deeds. dispositions by will, on the one hand, (which were already peculiarly favoured), and assurances inter vivos, on the other, have been heightened and increased. Thus, seisin still governs the conveyance by deed, but has altogether (c) Ante, 404, n. (k).

(b) Ante, 347.

CHAPTER V.

As to the temporal jurisdiction over devises, and the

lost its influence over the devise. Rights of entry are now
devisable, but are not otherwise transferable. Words of
inheritance are still necessary to pass the fee by deed, but
words of restriction, or of express limitation of a less estate,
are necessary to prevent the fee passing by devise. An
indefinite limitation to a trustee will have different effects,
under the same circumstances, according as the limitation
may be found in a deed or in a will. Leaseholds for
years will pass by a devise of lands in general terms, al-
though there should be freeholds to satisfy it, but will not
pass by deed in a similar case (d). A conveyance by
deed of property, however valuable, needs, in general, no
witness; but the bequest of even a trinket requires two.
Appointments, if by will, must, as respects execution and
attestation, disregard the power and conform to the act;
if by deed, they must conform to the power in all re-
spects. Witnesses to an appointment by deed, in ex-
ecution of a power requiring witnesses, must be com-
petent; but the execution of a power by will is well
attested by persons who cannot be examined as witnesses
in any court of judicature. A general disposition by will
executes vi suâ general powers; such a disposition by deed
does not so operate, unless it would otherwise fail of effect.
As to some of these points, modifications of the law with
respect to deeds may hereafter be deemed requisite, in
order to remove the technical barrier which separates
them from wills, and to place the disposing power gene-
rally on the same broad basis of intention.

Again, the statute has established uniformity, as regards competency to make, and the ceremony of spiritual juris- making a will, whether of real or of personal estate; but the old anomaly remains of submitting the validity of the same instrument, considered, not merely as re

diction over testaments;

(d) Shep. Touch. 88. But see Doe v. Williams, 1 Hen. Black. 25.
X. Auke 3487.

CHAPTER V.

possible con

spects the natural distribution of property into moveable and immoveable, but even as respects the artificial distinction between certain modifications of immoveable property-considered, on the one hand, as a devise of freehold and customary estates, and on the other, as a testament of chattel-hold estates-to jurisdictions so opposite in their origin, constitution, proceedings, and objects, as the spiritual and temporal courts (e). The same and their positive law, is, indeed, now propounded to both jurisdic- flict. tions; but they may differ widely in its exposition; their conflicting judgments, on points equally within their cognizance, would be of equal authority; and between tribunals, so far removed, in almost every sense, from each other, a compromise might prove more difficult than between the sometimes jarring, but not essentially discordant elements of Westminster Hall. As to the vali- Conclusiveness of probate, as to dity of the testamentary act, the Ecclesiastical Court, personalty. though bound to respect the provisions of the positive law, retains its ancient jurisdiction, and probate, therefore, is still conclusive evidence of a testament; while, in the temporal courts, a devise, though contained in the same writing, and attended with the same extrinsic circumstances, may be as authoritatively (if not so conclusively (ƒ)) rejected. As, in ordinary cases, probate is granted without any other evidence of a compliance with the requisites of the statute than appears upon the face of the instrument itself, it may be thought that the temporal courts should now require the very same proof of due execution and attestation, whether the question relate to real or to personal estate. Indeed, as the legislature has conferred, expressly and substantively, the same power of ultimate volition over property of every kind, without any distinct reservation of the previous law, it may, perhaps, be even doubted whether the (e) See 8 Ad. & Ell. 55. (ƒ) Ante, 238.

CHAPTER V.

Real and per

sonal estate still disjoined, in

new law does not tacitly supersede the old jurisdiction over testaments (g); but, there are obvious reasons, independently of those afforded by the statute itself, for refusing seriously to entertain such a doubt.

Thus, it appears that, though the technical distinctions between freehold and chattel interests in land, and, indeed, point of juris- between real and personal estate generally, have been

diction.

General merits of the new law of wills.

Suggestions as to the framing

of wills.

gradually disappearing before the influence of increasing wealth, and of a wiser policy, (a policy approved by the legislature in the statute before us), no attempt has been made to correct that diversity of jurisdiction which has long formed so singular a feature of our system, and which every approximation of the general laws, with respect to the two species of property, renders more prominent.

As this statute, above the rest, addresses itself to popular notice, its merits appear to have been canvassed with even more than professional ardour. When admiration, as of some extraordinary boon, on the one hand, and exaggerated fears, on the other, shall have passed away, the judgment, then calmly pronounced, may probably be, that so far as the statute is an enabling, and not a regulating or restraining statute, it is entitled to rank among measures of public utility. From the extension of the disposing power over real estate, rather than from the ceremonies imposed or the rules of construction propounded, must flow those benefits that flow as valuable privileges extended to all.

As the Statute of Wills is the last of the new series, so that we may now digress without occasioning any interruption, and as this chapter is already of a somewhat excursive character, the reader will not, perhaps, deem altogether out of place the following discussion on a subject hitherto but slightly considered in books-the prac(g) Ante, 348.