CHAPTER XIV. OF ABSTRACTS OF TITLE UNDER WILLS, DESCENTS, DECREES OF COURTS OF EQUITY, AND EQUITABLE TITLES, EXCHANGES, AND POWERS. THIS chapter will be divided into-I. Titles under wills.-II. Titles under descents.-III. Titles under decrees of courts of equity, and equitable titles.-IV. Titles under exchanges: and V. Titles under powers. I. TITLES UNDER WILLS. All persons capable of aliening their lands in their lifetime, may dispose of them by will. An infant, therefore, cannot devise except by force of a local custom; (a) nor can a feme covert, unless her husband has abjured the realm, is an alien, enemy, or has been banished for life; (b) and persons of unsound mind are under a similar disability; (c) and partial insanity, or morbid delusion, will vitiate a will. (d) An infant, however, may make a will of his personal estate at the age of eighteen, or even perhaps at an earlier age. (e) (a) Perk. s. 504. (b) Co. Litt. 133 a. Portland v. Prodgers, 2 Vern. 104. Darley v. Duchess of Mazarine, Salk. 116. Newsome v. Bowyer, 3 P. Wms. 37, 6th edit. (c) 6 Cru. Dig. 14. (d) Dew v. Clerk, 3 Add. 79. (e) Co. Litt. 89 b, and Harg. not; Swinb. 114, 2 Mod. 315. Perk. s. 503. By the 39 and 40 Geo. III. c. 88, (a) the king has a power of devising; and by sec. 8, a similar power is given to the queen, in the same manner as if she were a feme sole. All persons in existence at the time of the will may be devisees, and an infant in ventre sa mere may be a devisee. (b) Devises to bodies politic and corporate, and to charitable uses, are either void, or restricted under the Statutes of Mortmain. (c) In titles derived through wills, the attention should be particularly directed to the formalities prescribed by the Statute of Frauds; (d) and it must be remembered that every will and every codicil must be separately attested by three witnesses; (e) and the attestation of a codicil will never operate as the attestation of a will, to which it is declared to be annexed. (ƒ) In devising copyholds, a surrender to the use of the will of the copyholder was formerly necessary; (g) but now, by the 55 Geo. c. 192, it is enacted that in all cases where by the custom of any manor in England and Ireland, any copyhold tenant of such manor might by his last will and testament dispose of his copyhold tenements, the same having been surrendered to such uses as should be declared by his last will and testament, every disposition or charge made by such last will and testament, by any person who shall die after the pass (a) s. 4. (b) Doe v. Clark, 2 H. B. 399. As to devises to bastards in ventre sa mere, see Vol. II. p. 281; and Dawson v. Dawson, 6 Madd. & Geld. 292. (c) 9 Geo. II. c. 36; and statutes in margin, Ruffhead's edit. (d) 29 Car. II. c. 3. s. 5. (e) Lea v. Libb, Rep. temp. Holt, 742. (f) Att. Gen. v. Barnes, Gilb. Rep. 5 S. C.; 2 Vern. 597. (g) Murrell v. Smith, 4 Co. 24 b ; Co. Cop. s. 30 ; Tr. 83. ing, of this act, (12th July, 1815) shall be as valid and effectual to all intents and purposes, although no surrender shall have been made to the uses of such last will and testament of such person, as the same would have been if a surrender had been made to the use of such will. This statute, it will be observed, only applies to the wills of persons who shall die after the passing of the act, so that when a will occurs in an abstract of a person who died before the 12th July, 1815, inquiry must be made as to whether his lands were surrendered to the use of his will. (a) The statute 55 Geo. III. c. 192, applies only to formal surrenders to the use of a will, and not to cases where the surrender is matter of substance, and require, by the custom of the manor, to be accompanied by prescribed ceremonies, as the separate examination of a wife. (b) Where a testator surrenders some of his copyholds to the use of his will, and leaves others unsurrendered, and devises all his copyhold messuages, lands, &c., whatsoever and wheresoever, and which he had surrendered to the use of his will;" it was held that the unsurrendered as well as the surrendered estates passed by the will. (c) A devise of" all my real estate" will pass copyhold surrendered, and if there are no freeholds, will, for favoured objects, pass copyhold not surrendered. (d) (a) And see ante, p. 83. (b) Doe v. Bartle, 5 B. & A. 492. (c) Strutt v. Finch, 2 Sim. & Stu. 229; and see Oxenforth v. Cawkwell, 2 Sim. & Stu. 558. v. Mount, 3 Ves. 191. Wilson (d) Wentworth v. Cox, 6 Madd. & Geld. 363; and see Chapman v. Hart, 1 Ves. 273. Byas v. Byas, 2 Ves. 164. Lindopp v. Eborall, 3 B. C. C. 188. Judd v. Pratt, 13 Ves. 168; 15 Ves. 390. Church v. Mundy, 15 Ves. 396. Copyholds are not comprised within the Statute of Frauds, or the Statute of Wills, and therefore a devise of copyholds need not be either signed or attested ; (a) and any instrument which would be a good will of personal estate, will be good as to copyholds. (b) But a devise of customary freeholds must be executed according to the Satute of Frauds. (c) A will of stock should be attested by two witnesses, but it will be effectual, although it be not thus attested; for the stock will vest in the executor as part of the personal estate, and the will will be considered as a direction how to apply it. (d) The jurisdiction over a will relating to personal estate, or to real and personal estate, belongs exclusively to the Ecclesiastical Courts; (e) but if it relate only to land, then, if the Ecclesiastical Court attempt to proceed in proving it, prohibition lies, although, if no objection be made, it may be proved there. (ƒ) Where the will relates to personal estate, it must be seen that it has been proved in the proper Ecclesiastical Court. If probate be granted in a wrong jurisdiction, it is void in the case of a bishop or inferior judge, but voidable only in the case of an archbishop; and in the latter case will be in force till reversed by sentence. (g) Formerly, where a vendor claimed under a modern (a) Doe v. Danvers, 7 East, 299. Roe v. Heyhoe, 2 W. Bla. 1114. (b) See Jervoise v. D. of Northumberland, 1 J. & W. 570; and Vol. II. 358. (c) Hussey v. Grills, Amb. 301; and see ante, p. 89, et seq. (d) 1 Geo. I. st. 2. c. 19. s. 12; ante, p. 130. n. (c) and p. 75. Ripley will, by which the heir at law was disinherited, it was usual to require that the will should be proved in equity against the heir at law; (a) but the practice is now almost wholly discontinued, and the title will be valid without this ceremony. (b) It is not unusual, however, to require the heir to join in the conveyance, if his concurrence can be easily obtained; and where he is a party to a conveyance in any other character, he is invariably made a conveying party, although in strictness this could not be insisted on. (c) And according to a recent case in Ireland, it is every day's practice to get a release from the heir at law. (d) If it should even be thought that a modern will must be proved against the heir at law, yet it seems clear that equity would not compel the vendor, at the suit of the purchaser, to prove the will per testes. The objection, therefore, under any construction, could only be set up as a defence to a specific performance. (e) If a will was executed, it must be produced before a purchaser can be compelled to accept the title, although, having been treated as a nullity by a professional man, it has been mislaid, and the seller being heir of the testator, has rested upon his title as heir. (f) A purchaser will not be compelled to take a title depending on the words of a will, which were too doubtful ever to be settled without litigation. (g) (a) Fearne, Post. W. 234. (b) Sug. V. & P. 342, 8th edition. (c) Ib. (d) Mark v. Willington, 1 Beatt. 138. (e) Sug. V. & P. 343, 8th edit. Stevens v. Guppy, 2 Sim. & Stu. 439. (g) Sharp v. Adcock, 4 Russ. 374. |