THE DISPOSAL OF A PERSON'S ESTATE BY WILL AND TESTAMENT. CHAPTER I. OF THE POWER A MAN HATH FOR DISPOSING OF HIS PROPERTY BY WILL. WHAT HE MAY NOT DISPOSE OF BY WILL. ESTATES TO BE SO DISPOSED OF AS NOT TO BE RENDERED UNALIENABLE AFTER A CERTAIN TIME. age, In the former part of this work it has been shewn, that all persons may by will dispose of their personal estate to whom they think fit a; and that male infants, if they are of sufficient discretion at fourteen, and females at twelve years of may dispose of their personal estate by will b. Personal estate is generally understood in contradistinction to real estate, as money, goods, and chattels, particularized in the second section of the second chapter of the Law's Disposal, and there shewn by what will go to the administrator c. As to real estate, by statute 34 & 35 Hen. VIII. c. 5. and by virtue of the statute 12 Car. II. c. 25. all persons (except married women, infants, idiots, and persons of nonsane memory) are empowered to dispose by will in writing of the whole of their landed property (except their copy a Page 129. b Page 144. 154. Page 33-44. hold tenements) to whom they think fit, unless it be to bodies corporate; and that even to the total disinherison of the heir at law, notwithstanding that erroneous opinion which some entertain of the necessity of leaving the heir a shilling, or some other express legacy, in order to disinherit him effectually. Thus has the legislature enabled persons to dispose of their landed property to any person or persons, except it be to bodies corporate, the reason of which exception will be shewn hereafter. And as to freehold estates held by one person during the life of another, styled estates pur auter vie, those are also devisable by will, as may be perceived by what has heretofore been mentioned f. But no provision being yet made with respect to copyhold estates, the power of devising is now indirectly exercised over those by an application of the doctrine of uses similar to that which was anciently resorted to in respect to freehold lands; for the practice is to surrender to the use of the owner's last will, and on this surrender the will operates as a declaration of the use and not as a devise of the land itself. So from hence we may observe that the testamentary power is now exerciseable either directly or indirectly over land of every tenure now in use, where the same is not held in jointtenancy, or fettered with intails of which we shall hereafter make mention. But with respect to land, or real estate, it must be observed, that a devise will not operate thereon, unless the testator is in possession thereof at the time of executing his will; yet as to personal estate it will operate upon whatever a man has thereof at the time of his death, concerning which we shall see more in a subsequent chapter. Where there is a general devise of lands, and there is no surrender of the copyhold lands to the use of the will, the construction at law is, that those do not pass by the will; copyhold lands not being properly the subject of a devise, and 2 Black. Com. 375, 376. & Co. Litt. 111. note 1. 13th edit. f Page 62. M therefore do not pass by the will, but by the surrender 1 (1). So if I would devise a copyhold estate I must surrender it to the use of my will, otherwise after my death application must be made to a court of equity for supplying the defect thereof, which the court will do in some cases, as in favour of a child or widow, and in favour of creditors where there is a devise of real estate to pay debts, and there is no real estate but copyholdi. And a surrender of copyhold estate hath been supplied for creditors, though there was freehold specifically devised by the same will k. h 1 Atkyns, 388. In a case before Sir Loyd Kenyon, master of the rolls, sitting for lord chancellor, his honour determined that a mere draught of a will, the signing and publication whereof were prevented by the sudden death of the testator, yet being proved in the ecclesiastical court as a testamentary paper, was sufficient to pass copyholds, which the testator had before surrendered to the use of his will. 2 Bro. Ca. Rep. 58. Law of Test. 171. 4 Burn's Eccles. Law, 59. k Bixby v. Eley. 2 Bro. Cha. Rep. 325. (1) The necessity of a surrender in order to render a devise of copyhold lands effectual is now dispensed with, and consequently, the equitable doctrine of supplying surrenders, which is discussed in the text, is no longer a subject of useful enquiry. By statute 55 Geo. III. c. 192., it is enacted, "that in all cases where by the custom of any "manor in England or Ireland any copyhold tenant of such "manor may by his or her last will and testament dispose of "or appoint his or her copyhold tenements, the same having "been surrendered to such uses as should be declared by "such last will and testament, every disposition or charge "made or to be made by any such last will and testament, by any person who shall die after the passing of this act, of any such copyhold tenements, or of any right, title, or "interest in or to the same, shall be as valid and effectual to "all intents and purposes, although no surrender shall have "been made to the use of the last will and testament of such 66 person, as the same would have been if a surrender had "been made to the use of such will." This, statute, however, only supplies the want of a mere formal surrender, and not of a surrender which is matter of substance. Doe d. Nethercote v. Bartle, 5 Barn. & Ald. 492. 66 Where the real estate generally is devised for, or charged by will with, payment of debts, copyhold lands, which are not surrendered to the use of the will, do not pass thereby, if there be freehold sufficient to answer the purpose; otherwise, the copyhold shall pass, and the court will supply the surrender. Yet the freehold, if any, shall be first applied: but this is to be understood of the legal estate only, for an equitable estate of copyhold will pass by such devise without surrender1; as where a copyholder has mortgaged his copyhold and the mortgagee is admitted, the mortgagor, not having the legal estate of copyhold in him, has no estate that he can surrender, and therefore may devise the copyhold premises without any surrender m, as also he may where the legal estate is in trustees". -- A surrender shall be supplied for a limited interest (a wife for life) though the devisees over (nephews and nieces) are not entitled to have it supplied for them. And a surrender will be supplied for a wife against a distant heir (a nephew) not provided for by the testator P. And for children wherever the heir is provided for, though the provision be not from the testator. If there be a custom in a manor, that copyhold shall not be surrendered to the use of a will, such custom is bad 9. Where the testator by his will, taking notice that he had not surrendered copyhold estates, which he devised, but directing his son to convey them, and devising to the son other estates, though the copyholds were not devisable by custom, the surrenders were decreed to be made. And lord chancellor was clearly of opinion that, though those copyholds were not devisable by the custom, yet, as the testator might dispose of them, and had marked his intention so to do, that brings it within the principle upon which the court proceeds in supplying surrenders for payment of debts or provisions for youngest 13 P. Will. 98. note 2. 4th edit. m Ibid. 360. note 1. n 481. 2 Atk. 38. 1 Bro. Cha. Rep. • Marston v. Gowan, 3 Bro. Cha. Rep. 170. P Chapman v. Gibson, Ibid. 229. children, which are considered as meritorious considerations; and decreed the surrender prayed by the bill r. Concerning infants, married women, idiots, and persons of nonsane memory, more will be said hereafter under a subsequent head; and here we may observe, that notwithstanding the law has given a man a large and extensive power for disposing of his property by will, yet there are some estates and effects which he may by deed or otherwise dispose of in his lifetime, but is not allowed to dispose thereof by will; and those shall be our next subject. And here we shall first advert to what has been mentioned in the former part of this work, that all such chattels personal as a woman is possessed of, immediately on marriage vest in her husband; and that her chattels real he may make his own if he pleases. The former of those he may dispose of by will to whom he thinks fit; but the latter, unless he exercised some act of ownership to make them his own, as in case of leasehold estates for years, or for years determinable upon lives, he surrender the leases, and take new leases, or sell the estates and repurchase them, otherwise those will not pass by his will, but on his death will return to his wife; yet if he survives her, they will be his own to all intents t. So it will be in respect of any debts that were due to the wife before marriage, and which were not received or got in by the husband and wife during their joint lives. So likewise it will be in respect to the wife's paraphernalia described in the former part of this work ". And in case of joint-tenancy, if any estate either real or personal is held in joint-tenancy, it cannot be devised by will; or a devise of an estate whereof the devisor is jointly seised is void, the will not taking effect till after the death of the devisor, and by his death all the estate presently comes by the law to his companion who surviveth w, and who takes the whole by prior title *. The nature and w Co. Lit. 185, 186. * Gilb. on Wills, 123. |