CHAPTER XXVII.

OF TITLE BY DEVISE OR BEQUEST.

SECTION 1. Definitions and General Principles.

A DEVISE or bequest is a disposition of lands and other property by will. It is but little more than three hundred years since real estate could be disposed of by will; the principles of the Feudal System being such, that the holder had ́ not such absolute and unqualified estate as would enable him to dispose of land by will. At present, the American rule is, that all persons competent to contract or convey may freely dispose of all their property by will, to whomsoever they please. There is a common, but unfounded, idea that a father in making a will must give something to each of his children or the will will be invalid. A father may devise his entire estate to strangers, to the complete disinheritance of his children; and however unnatural such a will may appear, if the maker of it is of full age, of sound mind and memory, and free from restraint or undue influence, the will is valid and effective. Persons incompetent to contract and convey are, in general, incompetent to devise. There are, however, in most of the States, statutes empowering married women, under certain limitations and conditions, and also minors who have arrived at an age named in the statute, to make a valid will. All natural persons, and, in this country, all corporations, whose charters allow them so to acquire property, may take estate by devise.

Wills of personal property might, at common law, be made by infants of the age of fourteen, if males, and twelve, if females. Parties witnessing a will are usually incapable of taking anything under it by devise; the rules of law requiring such a witness to be disinterested.

The statutes of the different States, to avoid the inconvenience which would arise from invalidating wills for such a cause, generally provide that if a legacy be left to one who is a subscribing witness, and the will cannot be proved without him, the bequest is void, unless he would be entitled to a portion as heir in case there had been no will; in which case, so much of that portion is sometimes saved to him as would be equal to the legacy. Parties making a will should carefully bear this in mind, and whenever a person is called upon. to witness a will, who has reasonable cause to believe that he is a legatee under it, he should call attention to the objection.

Any interest in real or personal property, which can be conveyed, may also be devised. By the English law, a devise can pass only such real estate as the testator is owner of at the date of the will, even though he expressly attempts to devise all of which he may die seized or possessed. The idea

was, that the devise was in the nature of a conveyance or appointment of a particular estate; therefore, land purchased after the execution of the will could not pass. This rule of law has been adopted in some of the States; but, in most of them, legislative provisions declare that, by a general disposition of all his estate, lands and all other property, which the testator owns at his death, will pass by force of the provisions of the will. This is believed to be the rule of the statute law of Maine, Massachusetts, New Hampshire, Connecticut, Vermont, Alabama, New York, Pennsylvania, Ohio, Kentucky, Virginia, North Carolina, South Carolina, Illinois, and perhaps some of the other States.

A devise to an heir-at-law, if it give only the same interest that he would otherwise inherit, is void, and the heir will take by descent.

Less technical accuracy is required in the conveyance of an estate by devise than by deed, upon the ground that wills are often made in haste and by inexperienced persons. Thus an absolute estate in fee simple may be devised without the word "heir;" as where the language is, "all my real estate whatsoever," or, "to hold forever;" so, to a man "and his successors," would be good to pass an estate to his heirs; so,

to a man "for his own use, and to give away at his death to whom he pleases," will pass the fee: the rule being that the intent of the testator is to be carried out, however imperfectly, as to technical language and accuracy, it may have been expressed. A devisee does not, like an heir, take title to the estate from the moment of the death of the ancestor, but has no title till after probate of the will.

SECTION 2.

How Estates may be Limited by Devise.

There has always been more or less jealousy of perpetuities; and devises, for tying up an estate beyond the lifetime of persons in being, were strenuously resisted for a long time. The limitation of an estate to several persons in succession was held to be good, if they were all alive at the same time, Chief Baron Hale observing that all the candles were lighted together, and that the whole period could not amount to more than the life of the last survivor.

An effort was made, on the part of the English aristocracy, so to entail real estate in the family of the possessor as to secure the wealth and grandeur of ancient families. But such perpetuities were resisted by the nation at large, as being inconsistent with that free and unfettered enjoyment of property, which was deemed beneficial to a commercial nation. In 1685, in the great case of the Duke of Norfolk, it was decided, that settlements of property by executory devise might properly be limited to a life or lives in being and twenty-one years afterwards. The question was discussed in subsequent cases, and was finally settled and defined by more precise limits in 1736. This has ever since been the general doctrine of the common law, both in England and in this country. If an estate is so limited that it cannot take effect within this period, it would generally be held void, as too remote, and tending to create a perpetuity. See Proprietors of the Church in Brattle Square vs. Grant, 3 Gray, 142.

An estate devised by a husband to his wife may legally be limited to her, so long as she shall remain unmarried: but, if a father should devise an estate to an unmarried daughter, conditioned that the devise should become void upon her marriage, such condition would be void, and the devisee would take an absolute estate; the policy of the law requir ing that marriage should be free and unrestrained to all persons who have never entered into that relation.

CHAPTER XXVIII.

OF TITLE BY PURCHASE.

SECTION 1. Of Forms of Conveyance.

BLACKSTONE divides conveyances into two kinds, viz: conveyances at common law, and such as receive their force and efficacy by virtue of the statute of uses. These, again, he divides into original or primary conveyances, by which he means those whereby the estate is created or first arises; others he defines as derivative or secondary, by which the estate originally created is enlarged, restrained, transferred or extinguished.

Of original conveyances, at common law, he names the fol lowing: 1st, Feoffment; 2d, Gift; 3d, Grant; 4th, Lease; 5th, Exchange; 6th, Partition. And of Derivative Conveyances at common law, as follows: 1st, Release; 2d, Confirmation; 3d, Surrender; 4th, Assignment; 5th, Defeasance.

In addition to these forms of conveyance at common law, there are several species of deeds which derive their force and effect from the statute of uses: as our common deed of bargain and sale; the form of conveyance by Lease and Release, which was at one time considerably used; and a form of conveyance by Covenant to stand seized to uses.

There are also deeds to declare the uses of other more direct conveyances, or upon which a party in possession holds his estate. Of those deeds not now in common use, I shall give only a brief definition, in the order in which they have been named.

First, of Feoffments. This is said to be the most ancient form of conveyance, and is the most public, notorious, and easily remembered. It was performed by delivery of posses