UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 a 
 
 3RIES OF LETTERS 
 
 an of |l»roperfp, 
 
 O N T H £ 
 
 SALE, PURCHASE, MORTGAGING, 
 
 LEASING, SETTLING AND DEVISING 
 
 O F 
 
 ESTATES. 
 
 BY EDWARD BURTENSHAW SUGDEN, ESQ. 
 
 OF LINCOLNS . INN, BARRISTER AT LAW. 
 
 THE THIRD EDITION. 
 
 LONDON: 
 
 PRINTED FOR REED AND HUNTER, LAW BOOKSELLERS; 
 BELL-YARD, LlNCOLN's-INN. 
 
 1815.
 
 r 
 
 5k. 332,5 
 
 \$\5 
 
 Primed by li. Milks, 89, Chancery Lane, London.
 
 i 
 K 
 
 CONTENTS. 
 
 INTRODUCTORY LETTER, p. U 
 LETTER II. - p. 3. 
 
 OF SALES AND PURCHASES. 
 
 Difference between law and equity — par- 
 tial execution of a contract — purchaser's 
 remedy where the title is bad. 
 
 LETTER III. - p. 14 
 
 SALES AND PURCHASES CONTINUED. 
 
 Effect of the contract — revokes a will — 
 option to purchase — how purchase money is to 
 be paid — leaseholder buying the fee- — effect of 
 codicils, 
 
 LETTER IV. - p. 25 
 
 SALES AND PURCHASES CONTINUED. 
 
 Moral and legal duties of a seller — misre- 
 presentations — concealments — misdescriptions 
 
 a 2
 
 ( iv ) 
 
 — incumbrances — value — rent— examination 
 of title — conditions of sale — auctioneer giving 
 credit — buying-in an estate — puffing — return 
 of auction duty — agent not pursuing his au- 
 thority, 
 
 LETTER V. - p. $6 
 
 SALES AND PURCHASES CONTINUED. 
 
 Purchaser relieved against what — incum- 
 brances and defects — purchaser not bound to 
 disclose advantages — false representations by 
 a stranger — inquiry after incumbrances — no- 
 tice of lease — taking possession — giving no" 
 tice to trustee — purchase with notice of ano- 
 ther s right — implied notice — register acts — 
 employing the sellers attorney. 
 
 LETTER VI - p. 50 
 
 SALES AND PURCHASES CONTINUED. 
 
 Countermand of a bidding at an auction — 
 verbal contradiction of particulars of sale- — 
 agent bidding beyond his authority — princi- 
 pal denying the author'/ tit — agent buying i?i 
 his own name — purchase in the name oj ano-
 
 ( v ) 
 
 ther — purchase by a trustee of the trust pro- 
 perty — purchase by an assignee of a bankrupt 
 — purchase or exchange by tenant for life 
 with his own trustees — conveyance in the name 
 of a stranger, or a zvife, child, or grandchild 
 — joint purchase — desisting to bid in favour 
 of another person. 
 
 LETTER VII. . p. 61 
 
 SALES AND PURCHASES CONTINUED. 
 
 Writtten agreement essential — letters — 
 proposals — receipt — delivery of rent rolls, 8(c. 
 — price of the estate — heir selling his expec- 
 tancy — price to be fixed by arbitrators — in- 
 vestment of deposit in stock — loss by selling 
 or buying stock — interest -loss by fire or 
 otherwise before the conveyance — dropping 
 of lives, fyc. — purchase by mistake of a 
 mans own estate. 
 
 LETTER VIII. - p. 73 
 
 SALES AND PURCHASES CONCLUDED. 
 
 Simony —purchase of presentation during 
 vacancy — <f the a&vcwion during vacancy — 
 intention to present a particular person—
 
 ( vi ) 
 
 father and child — purchase by a clergy- 
 man — bonds of resignation. 
 
 LETTER IX. - p. 77 
 
 OF MORTGAGES. 
 
 Usury — interest made principal —tender of 
 money and notice to pay it off— power of 
 mortgagor — of mortgagee — devises, leases — 
 elections — money belongs to executor — mort- 
 gagee in possession — accounts — waste — ad- 
 vowson — mortgagor barred of his redemption 
 by twenty years possession — redemptioned 
 opened — payment of money presumed by 
 nonpayment of interest — redemption by bill 
 in equity —foreclosure— fraudulent mortga- 
 g ors — transfer — usury — life annuities. 
 
 LETTER X. - p. S3 
 
 OF LEASES. 
 
 Leases by parol — written agreement essen- 
 tial — letters — minute of covenants — insurance 
 against fire — condition against assignment — 
 property taw — lease for 7 or 14 years, by 
 whom determinable — tenant for life — power of
 
 ( vii ) 
 
 leasing— eviction of tenant— fine or bonus — 
 best rent — granting a lease under a power for 
 a man's own benefit — lease of lands, some of 
 which are leased under a power, 
 
 LETTER XI. - p. 100 
 
 OF SETTLEMENTS. 
 
 Written agreement essential — letters — 
 fraud — incumbered estate — jointure and por- 
 tions — common modes of settlement — provision 
 for a future marriage — pin-money — powers 
 to least, sell, 8$c. — sale of estates under a 
 power, and investment of money in stock — 
 right to cut timber — tenant for life pulling 
 down mansion-house — appointment of property 
 to children — execution of powers — hotchpot — 
 covenant to settle estates — covenant to leave 
 a child a fortune" equal to the other children — ■ 
 settlement revoking a will — republication of a 
 will. 
 
 LETTER XII. . £.118 
 
 OF WILLS. 
 
 Instructions — leaseholds — children's por-
 
 ( viii ) 
 
 tions — dower — advancement to a child on 
 marriage — copyholds — payment of debts — 
 execution of will— appointment if executor — 
 witnesses — gift of an estate out and out— con,' 
 tingencies — additional legacies to the same 
 person — republication of a will— subsequent- 
 will — revocation — giving the heir a shilling 
 - — implied revocation by marriage and birth of 
 a child. 
 
 INDEX . . . p. 137
 
 SI JG DEN'S LETTERS. 
 
 LETTER I. 
 
 YOU complain to me, my dear sir, that; 
 although utterly ignorant of law, you are 
 constantly compelled to exercise your own 
 judgment on legal points: that you cannot 
 always have your solicitor at your elbow ; and 
 yet a contract for the sale, purchase, or lease 
 of an estate, a loan, or, perhaps, even an agree- 
 ment to make a settlement on a child's marriage, 
 must be entered into off hand; and it is not 
 until you have gone too far to retreat, that you 
 learn what errors you have committed : that 
 you are even at a loss in giving instructions 
 for your will, and wholly incapable of making 
 the most simple one for yourself: that, in a 
 word, you have been plunged into a law-suit, 
 which a slight previous knowledge might hap- 
 
 B
 
 ( 2 ) 
 
 pily have prevented. It is unquestionably a 
 matter of profound regret, that so vast a pro- 
 portion of contracts respecting estates should 
 lead to litigation. It is equally to be re- 
 gretted, that, however desirous the man of 
 property may be to understand the effect of 
 his daily contracts, there is no source to which 
 he can apply for the desired information. You 
 ask me to remove the cause of your complaint. 
 This I may undertake as a friend, without any 
 violation of professional etiquette j and I shall, 
 therefore, readily comply with your wishes. 
 
 In the prosecution of my promise, I shall, 
 endeavour successively to point out the pre- 
 cautions to which you must attend in selling, 
 buying, mortgaging, leasing, settling, and de- 
 vising estates. This I shall do concisely, and 
 without incumbering you with many technical 
 phrases. I must premise, that I shall say little 
 which is not warranted by decided causes ; but 
 1 shall not burden you with references to them, 
 as they lie scattered in many a bulky volume to 
 which you have not access.
 
 ( 3 ) 
 
 LETTER II. 
 
 Xo enable you to understand some terms which 
 I must necessarily use in speaking of the re- 
 medy for breach of contract, I must explain 
 the difference between law and equity. It is 
 peculiar to the constitution of this country, 
 that the law on the same case is frequently 
 administered differently by different courts; 
 and that not from a contrary exposition of the 
 same rules. It must sound oddly to a fo- 
 reigner, that on one side of Westminster Hall 
 a man shall recover an estate without argu- 
 ment, on account of the clearness of his title ; 
 and that on the other side of the Hall his ad- 
 versary shall, with equal facility, recover back 
 the estate. In all other countries the law is 
 tempered with equity, and the same grounds 
 rule the same case in all the courts of justice. 
 The division of our law into what is termed 
 . b3
 
 ( 4 ) 
 
 legal and equitable, arose partly from necessity, 
 and partly from the desire of the ecclesiastics 
 of former times to usurp a control over the 
 common law courts. Our legal judges here- 
 tofore adhered so strictly to technical rules, 
 although frequently subversive of substantial 
 justice, that the chancellors interfered, and mo- 
 derated the rigour of the law according, as it 
 is termed, to equity and good conscience. The 
 judges in equity soon found it necessary, like 
 the common law judges, to adhere to the de- 
 cisions of their predecessors ; whence it has in" 
 evitably happened, that there are settled and 
 inviolable rules of equity, which require to be 
 moderated by the rules of good conscience, as 
 much as ever the most rigorous and inflexible 
 rule of law did before the chancellors inter- 
 posed on equitable grounds. However, as the 
 law of property is now administered in the dif- 
 ferent forums, allowing for the imperfection of 
 all human laws, it exhibits a most splendid 
 and comprehensive code of jurisprudence ; and 
 the man will deserve ill of his country who
 
 ( 5 ) 
 
 shall ever attempt to confound the rules by 
 which the courts of law and equity are seve- 
 rally guided. Lord Mansfield, than whom a 
 more enlightened judge never graced the 
 bench, and who may be said to have created 
 in this country an unrivalled system of commer- 
 cial law, was unhappily too prone to adminis- 
 ter equity in a court of law. The landmarks 
 of the law of real property received a severe 
 shock in his time j and it is painful to reflect, 
 that although his successors have now nearly 
 subverted the principle of every important de- 
 cision pronounced by him on the law of pro- 
 perty, yet during the period he was chief 
 justice of England, there was scarcely a dif- 
 ference of opinion on the bench where he pre- 
 sided, so implicitly were his equitable princi- 
 ples adopted. 
 
 The essential difference between law and 
 equity, as it affects the subject upon which I 
 am writing, consists in this, that equity will 
 give you the thing itself for which you have 
 contracted, whereas the law can only give you 
 b3
 
 ( 6 ) 
 
 a pecuniary compensation for the dishonesty 
 of the other party in not fulfilling his contract. 
 Thus, if you were to sell your estate to your 
 neighbour Tompson, and were afterwards, dis- 
 liking the bargain, to refuse to convey it to 
 him, he would have it in his election to pro- 
 ceed against you either at law or in equity. 
 If he resolved to proceed at law, he would 
 bring an action against you for the recovery 
 of damages for breach of contract, and a jury 
 would decide the amount of the damages 
 which you ought to pay; but still you would 
 retain the estate in the same manner as if you 
 had never contracted to sell it. But if he 
 wished to have the estate itself, he would file 
 a bill in eq jity against you for what is termed 
 a specific performance, or a performance in 
 specie, and the court would not, like a court 
 of law, in effect, let you ofTthe contract, on 
 payment of damages, but would compel you 
 to convey the estate itself to the purchaser 
 upon his paying the purchase-money to you. 
 Hut, of course, as the court compels you to
 
 ( 1 ) 
 
 ■perform the agreement, there are no damages 
 to pay. This equity is founded upon the 
 principle, that the court considers that as ac- 
 tually performed which is agreed to be done ; 
 so that the instant after you have entered into 
 a contract to sell an estate, the court considers 
 the estate as belonging to the purchaser, and 
 the purchase-money as belonging to you, and 
 so vice versa. The terms specific performance, 
 and action for breach of contract, will now, I 
 hope, be familiar to you. I shall frequently 
 be compelled to use them in the course of my 
 correspondence. 
 
 The remedy in equity, I must remark, 
 is open to a seller as well as a buyer, although 
 a seller merely wants the purchase-money ; so 
 that if a vendor would prefer getting rid of 
 the estate, and receiving the whole purchase- 
 money, to keeping it and taking his chance of 
 the amount of damages at law, he may apply 
 to equity for a specific performance. 
 
 But equity will not interfere in every case. 
 A man acting without good faith cannot require 
 b 4
 
 ( 8 ) 
 
 the extraordinary aid of the court, but will be 
 left to his remedy at law, where his bad con- 
 duct will have its full operation with a jury. 
 And in many cases equity will not interfere, 
 although the applicant or plaintiff, as he is 
 called, has acted bona fide: for instance, 
 where the estate has by surprise or mistake 
 been sold at an undervalue. Thus, where the 
 known agent of the seller bid for the estate at 
 an auction on behalf of the purchaser, and 
 other persons present, thinking that he was 
 bidding as a puffer on the part of the seller, 
 were deterred from bidding, the court, on the 
 ground of surprise, refused to interfere against 
 the seller, who resisted the sale. 
 
 Equity, also, looks to the substantial in- 
 tention of the parties, whereas the courts of 
 law adhere more strictly to the letter of the 
 contract. Thus, if an estate is described in a 
 particular of sale to be in good repair, and it 
 turns out to be in bad repair, the seller cannot 
 enforce the contract at law ; but equity, if the 
 purchaser is not in want of immediate posses-
 
 ( 9 ) 
 
 s>ion, so that there is time to do the repairs 
 before possession is essential to him, will com- 
 pel him to take the house upon being allowed 
 a sufficient sum to repair it : if a man sell a 
 leasehold estate, as having 70 years to run, 
 and the term is only 68, the purchaser will in 
 equity be decreed to take the estate with an 
 abatement ; at law, the contract cannot be en- 
 forced by the vendor : again, if a time is sti- 
 pulated for the performance of the contract, 
 that stipulation is of the essence of the con- 
 tract at law ; whereas in equity, if the time 
 was not material, or the party complaining 
 was aware of the cause of the delay at the time 
 of the agreement, and the other party is not 
 wilfully lying by, equity will compel a speci- 
 fic performance in the same manner as if the 
 party had been ready to perform his agree- 
 ment by the time stipulated : if the seller can- 
 not make a title to the whole estate sold, the 
 purchaser is not at law compellable to take 
 the part to which a title can be made ; but in 
 equity, if the part to which a title cannot
 
 ( 16 ) 
 
 be made is not necessary to the enjoyment of 
 the rest, equity will compel him to take it, 
 and will allow him a proper abatement out of 
 the purchase-money. On this head, by the 
 way, the equity is a little in the air : a man 
 has been compelled to take an estate, subject 
 to tithes, although he expressly contracted 
 for the estate tithe-free, and proved that his 
 object was to buy an estate not subject to 
 tithes : a man has been forced to purchase a 
 house alone, when he contracted for the house 
 and a wharf adjoining. And in one case a 
 man purchased a house on the north side of 
 the Thames,^ which was supposed to be in 
 Essex, but which turned out to be in Kent, a 
 small part of which county happens to be on 
 the oilier side of the river. The purchaser 
 was told he would be made a churchwarden 
 of Greenwich, when his object was to be 
 a freeholder in Essex ; yet he was compelled 
 to take the house. These instances will suf- 
 ficiently shew the difference, in these respects, 
 between law and equity. The latitude which
 
 ( 11 ) 
 
 a court of equity allows itself in enforcing 
 agreements against the letter, and, perhaps, 
 in some cases contrary to the spirit, of the 
 contract, may be narrowed by the express sti- 
 pulation of the parties. This should always 
 be attended to; for instance, if you buy an 
 estate, which is stated to be tithe-free, it should 
 be provided that you shall not be compelled to 
 perform the contract if the property js subject 
 to tithes. In the face of such a stipulation 
 equity could not compel you to take the estate 
 without the tithes. 
 
 The ground upon which equity proceeds 
 in the cases which I have mentioned is, that 
 the agreement can be performed in substance. 
 A purchaser cannot be compelled, even in 
 equity, to take an undivided part of an estate, 
 if he contracted for the entirety; nor a lease- 
 hold, however long the terra in it may be, or 
 a copyhold, instead of a freehold. And if you 
 were to buy at an auction a mansion-house in 
 one lot, and farms, &c. in others, equity 
 would relieve you from the whole contract,
 
 t 12 ) 
 
 if no title could be made to the mansion- 
 house. 
 
 From the different rules of law and equity, 
 it frequently happens that both courts are re- 
 sorted to with relation to the same contract. 
 I will give you an instance of this : suppose 
 you had bought an estate of Tompson, and 
 that the agreement was to be performed by a 
 day named, and that he made out his title, 
 and was ready to convey to you at the time, 
 but your money was not ready ; Tompson 
 might bring an action against you for damages 
 for breach of the contract ; but if the day ap- 
 pointed was not material, you might file a bill 
 against him for what is termed an injunction, 
 and a specific performance ; and equity would 
 accordingly injoin him not to proceed further 
 with the action, and would compel him to 
 convey the estate to you upon payment of the 
 purchase-money. 
 
 If you sell an estate, your title to which 
 proves bad, and you cannot cure the defect, 
 equity of course cannot relieve the purchaser,
 
 ( 13 ) 
 
 unless he choose to take the title with all its 
 faults ; but the purchaser may recover da- 
 mages against you at law. However, where a 
 man is without fraud incapable of making a 
 good title, a purchaser can even at law only 
 recover what are called nominal damages — a 
 shilling for instance. I dare say that you 
 think it high time this long letter should end. 
 You must, however, preserve your patience, 
 or I shall never make a lawyer of you.
 
 ( 14 ) 
 
 LETTER III. 
 
 In my last, letter I mentioned the principle 
 upon which a specific performance is decreed, 
 viz. that the court considers that which is 
 agreed to be done as actually performed ; so 
 that from the time of an agreement for sale 
 the estate in equity belongs to the purchaser, 
 and the purchase-money to the vendor. I 
 hasten to unfold to you the very important 
 consequences of this doctrine, to which a slight 
 inattention on your part might totally over- 
 throw your plans in the disposal of your pro- 
 perty amongst your family. 
 
 I shall first consider you as a seller. As 
 the estate is no longer your's, if you have de- 
 vised it, it will not pass to the devisee, except 
 as a mere trustee for the purchaser ; and even 
 if you have by your will directed it to be sold, 
 and actually given the money to arise by the 
 sale to a legatee, yet if you sell the estate
 
 ( 15 ) 
 
 yourself, he will not be entitled either to the 
 purchase-money or the estate. But the pur- 
 chase-money, although not paid, will go to 
 your personal representative in the same way 
 as the rest of your personal property. There- 
 fore, where you wish the money to go to the 
 person who would have taken the estate, you 
 should make a bequest of it to him at the time 
 you enter into the agreement. And as you may 
 afterwards abandon the contract, by consent 
 of the other party, or it may be such a con- 
 tract as a court of equity will not enforce, it 
 seems desirable that you should also provide 
 for a sale of the estate, at all events, in favour 
 of the object of your bounty : for it is doubt- 
 ful whether your prior will can stand, al- 
 though the agreement is never carried into 
 execution. 
 
 It is material here to observe, that if you 
 give a man only an option to purchase your 
 estate, yet if he accept it, even after your 
 death, the nature of the property is changed. 
 I think that I can make this quite plain to
 
 16 ) 
 
 you. You have now both land and money, 
 I will suppose that you have by your wilt 
 given your estate to your eldest son, and the 
 money amongst your younger children. You 
 then grant a lease of the land to Tompson, 
 and give him an option to purchase the estate 
 for 20,000/, at any time within 10 years. 
 You would think, no doubt, that you had 
 secured the estate to your eldest son. But on 
 the contrary, if you die before the end of the 
 10 years, and Tompson, after your death, 
 elect to purchase the estate, the money would 
 go to your younger children, and your eldest 
 son would be stripped of all his fortune ! To 
 obviate this, if you should enter into such a 
 contract after making your will, you must, by 
 a codicil, give the money to arise by sale to 
 the person to whom you have given the estate, 
 and then he will be secure of the property : 
 and if you make your will after the contract, 
 expressly declare that your devisee shall have 
 the purchase-money, if the lessee make his 
 option to take the estate.
 
 ( 17 ) 
 
 I shall now consider you as a buyer. The 
 estate is your's from the moment the contract 
 is executed, and the purchase-money must be 
 paid out of your personal property. The con- 
 sequeuce of equity, thus deeming- the estate to 
 belong to you, is, that you may dispose of it 
 by your will; or otherwise, even before the 
 conveyance, just the same as if you had paid 
 the purchase-money, and the estate were actu- 
 ally conveyed. You must, therefore, upon a 
 purchase, always reflect that your disposable 
 cash is decreased by the amount of the pur- 
 chase-money ; and that unless you otherwise 
 dispose of it, the estate will go to your heir. 
 A moment's reflection will shew what serious 
 consequences may follow from a neglect on 
 your part ; for suppose you purchase an 
 estate with the 50,000/. in the funds, which 
 you have given by your will to your younger 
 children, and which constitutes the bulk of 
 your personal property, and should neglect to 
 devise the estate, the money must go to pay for 
 it, at the expense of your younger children^ 
 
 c
 
 ( 18 ) 
 
 who would be left nearly destitute, whilst 
 your eldest son, to whom the estate would de- 
 scend, would have an overgrown fortune. 
 Distressing cases of this kind are continually 
 happening. 
 
 If your personal property undisposed of is 
 not sufficient to pay for the estate, it would be 
 better, perhaps, to direct it to be sold again, 
 and the first purchase-money to be paid out of 
 the money produced by the re-sale. You 
 must always remember that in devising or suf- 
 fering an estate to descend which you have 
 purchased and not paid for, your devisee or 
 heir will be entitled to have the purchase- 
 money paid out of your personal property, 
 although you may have given it all to another 
 person. A most vexatious case once happen- 
 ed. A younger brother agreed to purchase 
 an estate from his elder brother ; the convey- 
 ance was accordingly executed, but the money 
 was not paid. The younger brother then mad© 
 his will, giving his property to his brother, 
 subject to legacies, and made him executor.
 
 ( 19 ) 
 
 The will, however, was not executed so as to 
 pass the estate. The younger brother died, 
 and the elder brother took the estate as his 
 heir, and also paid himself the purchase-money 
 out of the personal property ; by which he dis- 
 appointed the legatees, who lost their legacies, 
 whilst he got both the estate and the purchase- 
 money for it. 
 
 On the other hand, you must guard against 
 the chance of the estate not being ultimately 
 conveyed, according to the agreement. For 
 if equity should for any reason refuse to exe- 
 cute the contract, or a good title cannot be 
 made, the person to whom you have given, or 
 suffered the estate to descend, will not be en- 
 titled to have it paid for out of your personal 
 property, although he may be willing to ac- 
 cept such a title as can be made to it ; because 
 equity will not interfere, unless there is a bind- 
 ing contract at the death of the party. You 
 should, therefore, provide for the purchase of 
 another estate, of equal value, for your de- 
 visee or heir, in case the one purchased should 
 
 c2
 
 ( 20 ) 
 
 not be conveyed to him* I must, however, 
 remark, that if by your will you direct an 
 estate to be bought, for which you have not 
 actually contracted, and the estate cannot be 
 bought according to your direction, yet equity 
 will decree the money to be laid out in the pur- 
 chase of another estate, for the benefit of the 
 devisee. 
 
 Before I close this letter, I shall give you a 
 caution as to your Hampshire estate, wherein 
 you have only a long term of years, which you 
 have bequeathed to your second son, John. 
 You tell me that you are about to purchase 
 the fee, or, as you express it, to buy the estate 
 out and out. Now the effect of a conveyance 
 of the fee to you will clearly be to put an end 
 to the term, and to give you the entire inte- 
 rest in the estate discharged from the lease, and 
 so the bequest to John would be defeated ; 
 and I fear that the effect will be the same, 
 immediately after the contract is executed, 
 and even before the conveyance. This, there- 
 fore, must be provided against by a codicil to
 
 ( 21 ) 
 
 jour will. And in giving this estate to John, 
 after you have agreed to buy the fee, but be- 
 fore the conveyance, you must go a step fur- 
 ther, and expressly declare that he shall have 
 the lease, although he cannot obtain the fee. 
 For if you shew an intention to give him the 
 fee, he would not without an express provision 
 be entitled to the lease, unless he could get 
 the fee also. This actually happened in a case 
 where the person who agreed to sell the fee 
 was not owner of it, and the owner sold it to 
 another person. 
 
 I must remind you that any estate which you 
 may hereafter purchase will not pass by your 
 present will, but will descend to your heir-at- 
 law, although, indeed, if you expressly devise 
 all the estates of which you may die seised, 
 and make other provisions by your will for 
 your heir-at law, equity would compel him to 
 elect to take under or in opposition to the will. 
 If he elect to take under it he must convey the 
 after-purchased estate to your devisee. If he 
 take in opposition to your will the after-pur- 
 c3
 
 ( 22 ) 
 
 chased estate will of course belong to him, but 
 the benefits provided for him by your will, 
 will go to the disappointed devisee. 
 
 If you do not intend to dispose of an after- 
 purchased estate from your heir-at-law, you 
 must be cautious not to execute any codicil to 
 your will in the presence of three witnesses 
 without proper advice ; because such a codicil, 
 although you merely give a money-legacy by 
 it, may be held to pass the estate under general 
 words in your will. You must be satisfied 
 with this caution without the reasons that 
 suggest it. 
 
 But where you have devised the estate after 
 the agreement for purchase of it, but before it 
 is actually conveyed to you, I would advise you 
 to republish your will after the conveyance is 
 executed, for it may happen that the mere 
 form of the conveyance may operate as a re- 
 vocation of your will in this respect.
 
 ( 23 ) 
 
 LETTER IV. 
 
 I have not yet written to you upon the pre- 
 cautions to be observed on the sale and pur- 
 chase of estates as between yourself and the 
 other party. This I shall now do, and first as 
 to your conduct and duty as a seller. 
 
 I will not argue with you, whether in 
 selling an estate you are bound in conscience 
 to disclose all its defects to the purchaser. 
 Moralists, as you know, agree that a seller is 
 bound to do so, although the principle has 
 been controverted. I shall content myself with 
 stating how the law on this subject stands. 
 
 If the person to whom you sell was aware 
 of all the defects in the estate, of course he 
 cannot impute bad faith to you in not repeat- 
 ing to him what he already knew ; neither will 
 you be liable, if you were yourself ignorant 
 of the state of the property. And even if the 
 purchaser was, at the time of the contract, 
 c 4
 
 C 24 ) 
 
 ignorant of the defects, and you are ac- 
 quainted with them, and did not disclose 
 your knowledge to him, yet he will be with- 
 out a remedy, if they were such as might 
 have been discovered by a vigilant man. The 
 disclosure of such defects is at most what 
 the civilians term a duty of imperfect obli- 
 gation. Vigilantibus non dormientibus jura 
 subveniunt, is an ancient maxim of our law, 
 and forms an insurmountable barrier against 
 the claims of an improvident purchaser. If, 
 however, you should, during the treaty, in- 
 dustriously prevent the purchaser from seeing a 
 defect which might otherwise have easily been 
 discovered — for example, if you carefully 
 conceal from him the necessary repairs of a 
 wail to preserve the estate from the sea — you 
 certainly could not obtain a specific perform- 
 ance against him; and I conceive that you 
 could not even maintain an action for breach 
 of contract ; or, in other words, the contract 
 would not bind the purchaser either at law or 
 in equity.
 
 ( 25 ) 
 
 So if there is a latent defect in your estate 
 of which you are aware, and which the pur- 
 chaser could not by any attention whatever 
 possibly discover, you are it seems bound to 
 disclose it to him, although you should sell the 
 estate expressly subject to all its faults. Upon 
 this point however the authorities are divided. 
 
 If you actually describe the estate in the 
 particulars of sale or agreement, you will of 
 course be bound by the description. And if 
 you misdescribe the estate with a fraudulent 
 intent, it is unimportant that you expressly 
 stipulated that an error in the description of 
 it should not annul the sale. This was de- 
 cided in a late case, where the estate was de- 
 scribed to be about a mile from a borough town ; 
 and it was provided, in the conditions of sale, 
 that an error in the description should not viti- 
 ate the sale. It turned out that the estate was 
 between three and four miles from the place, 
 and, therefore, the purchaser resisted the con- 
 tract, and brought an action for recovery of 
 the deposit which he had paid. It was left to 
 the jury to say, whether this was merely an
 
 ( 26 ) 
 
 erroneous statement, or the misdescription was 
 wilfully introduced to make the land appear 
 more valuable from being in the neighbour- 
 hood of a borough-town. In the former case, 
 the contract remained in force j but in the 
 latter case, the purchaser was to be relieved 
 from it, and was entitled to recover back 
 his deposit. The purchaser had a verdict, 
 so that the jury must have thought the misde- 
 scription fraudulent. 
 
 But although you misrepresent the nature 
 of the property, yet the purchaser cannot be 
 relieved, if he bought with full knowledge of 
 the actual state of it : thus if you describe an 
 estate to be in a ring-fence, and the buyer knew 
 that it was intersected by other lands, or you 
 warrant a house to be in perfect repair, and he 
 knew that it was without a roof or win- 
 dows, he cannot in either case object that 
 the property does not agree with the descrip- 
 tion of it. 
 
 The same rules apply to incumbrances on 
 the estate, and defects in the title to it, as to 
 defects in the estate itself. You must either
 
 ( 27 ) 
 
 deliver to the purchaser the instrument by 
 which the incumbrances were created, or on 
 which the defects arise, or you must acquaint 
 him with the facts, if they do not appear on 
 the title deeds. If you neglect this, you are 
 guilty of a direct fraud, which the purchaser, 
 however vigilant, has no means of discovering. 
 And if your attorney keep back any incum- 
 brance, he, as well as you, will be answerable 
 for the fraud. 
 
 Thus I have told you what truths you 
 must disclose. I shall now tell you what 
 falsehoods you may utter in regard to your 
 estate. In the first place, you may falsely 
 praise, or, as it is >ulgarly termed, puff your 
 property •, for our law, following the civil law, 
 holds that a purchaser ought not to rely upon 
 vague expressions uttered by a vendor at ran- 
 dom in praise of his property. And it has 
 even been decided, that no relief lies against 
 a vendor for having affirmed, contrarily to 
 truth, that a person bid a particular sum for the 
 estate, although the bujer was thereby in-
 
 ( 28 ) 
 
 duced to purchase it, and was deceived in the 
 value. So you may affirm the estate to be of 
 any value which you choose to name, for it is 
 deemed a purchaser's own folly to credit a bare 
 assertion like this. Besides value consists in 
 judgment and estimation, in which many men 
 differ. 
 
 But if you should affirm that the estate 
 was valued, by persons of judgment, at a 
 greater price than it actually was, and the 
 purchaser act upon such misrepresentation, 
 you could not enforce the contract in equity. 
 Nor can you with impunity misstate the quan- 
 tum of rent paid for the estate, because that 
 is a circumstance within your own knowledge: 
 the purchaser may have no other source of in- 
 formation ; or your tenants, if he were to 
 apply to them, might combine with you, and 
 so misinform and cheat him. And the pur- 
 chaser will have a remedy against you for 
 the fraud, although he did not depend upon 
 your statement, but inquired further. 
 
 What I have hitherto said applies mostly
 
 ( 29 ) 
 
 to your own conduct. I have still a few cau- 
 tions to give you in regard to those things 
 which must be performed by your agents. 
 
 Although it is usually done, yet you should 
 never permit the particulars and conditions of 
 sale to be prepared by an auctioneer. Auc- 
 tioneers know nothing of the title, and conti- 
 nual disputes arise from their misstatements. 
 When a man has an estate to sell, he generally 
 goes first to an auctioneer ; but I advise you to 
 go to an attorney. 
 
 If the estate which you intend to sell has 
 been in your family for a length of time, or 
 the title has not been recently investigated, it 
 would be prudent to have an abstract of it 
 submitted to counsel in the first instance. 
 This will enable you to clear up any objection 
 which occurs, before you enter into a contract 
 for sale of the estate. By this precaution you 
 will prevent any delay on your part, which 
 might impede the completion of the sale, by 
 the time stipulated ; and you will, in many 
 cases, avoid the expense necessarily attending
 
 ( 30 ) 
 
 tedious discussions of a title. Another ad- 
 vantage of this measure is, that, if there should 
 be any defect in the title "which cannot be 
 cured, it will be known only to your own 
 agents and counsel. It is, believe me, of the 
 utmost importance to keep defects in your title 
 from the knowledge of persons not concerned 
 for you. It has frequently happened, that 
 persons concerned for purchasers have com- 
 municated fatal defects in a vendor's title to 
 the person interested in taking advantage of 
 them, by which many titles have been dis- 
 turbed. 
 
 It would be useless to state to you what 
 provisions should be contained in the particu- 
 lars and conditions of sale. They must be 
 prepared by your solicitor. I may, however, 
 observe, that the nature of the property should 
 be correctly stated, and that where the estate 
 i% 1m Id under the same title, and sold in lots, 
 same provision should be made as to the ex- 
 pense of copies of deeds, to which all the pur- 
 ckateri would otherwise be entitled at your
 
 ( 31 ) 
 
 expense ; a burden that has frequently consu 
 derably reduced the amount of the purchase- 
 money. It is generally provided that the 
 auction-duty shall be paid in moieties by the 
 vendor and purchaser. If no stipulation is 
 made as to it, the whole will fall upon you. 
 
 If your auctioneer, without an authority 
 for that purpose, give credit to the purchaser, 
 or accept a security for the deposit, it is en. 
 tirely at his own risk — you may recover the 
 money from him. But the auctioneer is en. 
 titled to retain the deposit paid to him, until 
 the contract is completed, because he is con- 
 sidered as a stake holder or depositary of it. 
 And you should be cautious whom you em- 
 ploy, for it is not clear that any loss by his 
 insolvency would not fall upon you. 
 
 If you, or your agent, buy in the estate at 
 an auctiou, no auction duty will be payable ; 
 but before you venture to bid, you must ascer- 
 tain that the proper notices required in this 
 case, by act of parliament, have been given to 
 jthe auctioneer ; for otherwise you must pay
 
 ( 32 ) 
 
 the duty on jour bidding, in the same way 
 as if you had actually purchased another's 
 estate. If the auctioneer state to you, before 
 •witnesses, that he has done what is necessary 
 to avoid payment of the duty, you will be 
 safe ; and if he has neglected, or even mis- 
 taken the proper means, he himself will be 
 liable to it. With the above precaution, you 
 may, without public notice, safely appoint a 
 person to bid for you at the sale, in order to 
 prevent the estate from being sold at an under- 
 value. This is generally termed puffing. 
 Cicero in his Offices, declares his opinion, 
 that a vendor ought not to appoint a puffer to 
 raise the price, nor ought the purchaser to 
 appoint a person to depreciate the value of an 
 estate intended to be sold. And Huber, the 
 civilian, lays it down, that if a vendor employ 
 a puffer, he shall be compelled to sell the 
 estate to the highest bona Jide bidder, because 
 it is against the faith of the agreement, by 
 which it is stipulated that the highest bidder 
 shall be the buyer. Great contrariety of opi-
 
 ( S3 ) 
 
 nion haa prevailed in our courts, as to tliG 
 legality of appointing* a puffer; but it is nov? 
 settled, that you may employ a person to pre- 
 vent a sale at an undervalue. But if you go 
 beyond this, and send a puffer to take advan- 
 tage of the eagerness of bidders to screw up 
 the price, that will be deemed a fraud, arid 
 the sale will not be binding on the purchaser. 
 Neither can you safely appoint more than one 
 person to bid. It is highly proper, that a mart 
 should be permitted to appoint a person to 
 guard his interests against the intrigues of bid- 
 ders ; but it does not follow that he may ap- 
 point more than one. The only possible ob- 
 ject of such a proceeding is fraud. An auction 
 so constituted is simply a mock auction. Your 
 case, it may be thought, would be obnoxious 
 to the same rule were you to appoint even one 
 puller, with unlimited power, to take advan- 
 tage of the eagerness of bidders to increase 
 the biddings. And if you state in the particu- 
 lars, or advertisements, that the estate is to be 
 s^ld without reserve, it seems clear that the sale
 
 ( 34 ) 
 
 would be void against a purchaser, if any 
 person were employed as a puffer, and actually 
 bid at the sale. * 
 
 If the estate is sold at the auction, but your 
 title prove bad, so that the purchase goes off, 
 vou will be entitled to a return of the auction- 
 duty. This is provided for by the auction- 
 duty acts; but the provision is too frequently 
 a dead letter, owing to the very strict evidence 
 which is required by the commissioners of 
 excise, of the seller's inability to make a title. 
 It has frequently happened, that although a 
 man was bona fide incapable of making a title, 
 and the sale was not completed, yet he has, in 
 direct opposition to the provision which I have 
 referred to, been refused a return of the duty. 
 This is not the mode to render revenue laws 
 respected, and to procure their observance. 
 
 If you employ an agent to sell an estate by 
 public auction, a sale by private contract is 
 not within his authority; nor does it seem to 
 be material, that the estate sold for more than 
 the ;'iicc fixed, for it might have fetched a
 
 ( 35 ) 
 
 Still greater sum at a public auction. But if 
 an agent is directed to sell an. estate by priyate 
 contract, and he dispose of it by public auc- 
 tion for a larger sum than the principal re- 
 quired, I conceive, that in most cases, the sale 
 would be binding on the principals 
 
 b2
 
 ( 36 ) 
 
 LETTER V. 
 
 1 shall now dismiss you from your character 
 of a seller, and treat you as a buyer. 
 
 In running over, in my last letter, the mis- 
 statements which a seller may with impunity 
 make, you will hardly suspect me of intend- 
 ing to point out, as a guide for your own con- 
 duct in selling, the exact limit of prudent 
 rascality. I, of course, was looking to the 
 situation in which I now consider you to 
 stand: for when you know how far an un- 
 principled vendor may with safety go, you 
 can guard against fraud, by not trusting to 
 misrepresentations, which are made without 
 fear of retribution. 
 
 With the exception of a vendor, or his 
 agent, suppressing an incumbrance, or a de- 
 fect in the title, it seems clear that a purchaser 
 cannot obtain relief against him for any in- 
 cumbrance or defect to which his covenants
 
 ( S7 ) 
 
 do not extend ; and, therefore, if a purchaser 
 neglect to have the title investigated, or his 
 counsel overlook any defect in it, he has no 
 remedy beyond what the seller's covenants may 
 afford. It has even been laid down, that if 
 one sell another's estate, without covenant or 
 warranty for the enjoyment, it is at the peril 
 of the purchaser, because he might have look- 
 ed into the title ; and there is no reason he 
 should have an action by the law, where he 
 did not provide* for himself. I may remark, 
 by the way, that as counsel, that is barristers, 
 have no remedy for recovery of their fees, 
 which are considered purely gratuitous and 
 honorary, they are not deemed liable to their 
 clients for any blunders which they commit, 
 however gross. But it is otherwise as to attor- 
 nies. They may maintain an action for their 
 fees j and if a purchaser is damnified by the 
 gross want of skill in an attorney, or by his 
 neglect to search for incumbrances, he may 
 recover, at law, against the attorney, for any 
 Joss which he may suj -ain. But where the 
 
 d 3
 
 C 38 ) 
 
 attorney has acted under the advice of counsel, 
 he is safe. To return : — Yon will collect from 
 the observations in my last lc;ter 3 that as a 
 purchaser, you are entitled to relief, on ac- 
 count oi aiiv latent defects in the estate, or the 
 title to it* which were not disclosed to you, 
 and of which the vendor, or his agent, was 
 aware. In addition to this protection afforded 
 by the law, you, as a provident man, ought 
 not to trust to the description of the vendor, 
 or his agents, but to examine and ascertain the 
 quality and value of the estate yourself, and 
 you should have the title to it inspected by 
 counsel. 
 
 I may here remark, that although a vendor 
 is bound to tell the purchaser of latent defects, 
 yet a purchaser is not bound to acquaint the 
 vendor with any latent advantage in the estate 
 < — if you were to discover that there was a 
 mine on an estate, for which you were in 
 treaty, you would not ! e bound to disclose 
 that circumstance to the ve; dor, although you 
 knew that Ue was ignorant of it. Nor need
 
 ( 29 ) 
 
 you as a purchaser adhere closely to truth, in 
 procuring the estate at as cheap a price as you 
 can. In a late case, where a false statement 
 by a purchaser was held not to give the seller 
 a right of action, Lord C. J. Mansfield said, 
 that the question was, whether the purchaser 
 was bound to disclose the highest price he 
 chose to give, or whether he was not at liberty 
 to do that as a purchaser which every seller in 
 this town does every day, who tells every false- 
 hood he can to induce a buyer to purchase. 
 
 In regard to false representations to a pur- 
 chaser of value or rent, I must still observe, 
 that the same remedy will lie against a per- 
 son, not interested in the property, for making 
 such false representations, as might be resorted 
 to, in case such person were owner of the 
 estate ; but the statement must be made frau- 
 dulently, that is, with an intention to deceive, 
 whether it be to favour the owner, or from an 
 expectation of advantage to the party himself, 
 or from ill-will towards the other, or from 
 mere wantonness, is immaterial. And in these 
 d 4
 
 ( 40 ) 
 
 cases, to use the language of the master of the 
 rolls., it will be sufficient proof of fraud to 
 shew first, that the fact as represented is false : 
 secondly, that the person making the repre- 
 sentation, had a knowledge of a fact contrary 
 to it. The injured party cannot dive into the 
 secret recesses of the other's heart, so as to 
 know whether he did or did not recollect the 
 fact j and, therefore, it is no excuse in the 
 party who made the representation to say, that 
 though he had received information of the 
 fact, he did not, at that time, recollect it. 
 
 And on the same ground, if a person having 
 a right to an estate, permit, or encourage a 
 purchaser to buy it of another, the purchaser 
 Mill be entitled to hold it against the person 
 v>ho has the right, although a married woman, 
 or under age. And the same rule has even 
 beer extended to a case, where the representa- 
 tion was made through a mistake, as the person 
 rnakmg it might have had notice of his right. 
 
 If you photl]d suspect that any person has, 
 * claim on an estate which you have con
 
 ( 41 ) 
 
 traded to buy, you should, before proper 
 witnesses, enquire the fact of him, at the same 
 time stating that you intend to purchase the 
 estate; and if the person of whom the en- 
 quiry is made, have an incumbrance on the 
 estate, and deny it, equity would not after- 
 wards permit him to enforce his demand 
 against you. The witnesses, in this case, 
 should take a note of what passes, because a 
 witness may refresh his memory, by looking at 
 any paper, if he can afterwards swear to the 
 facts from his own memory. 
 
 Where it is stated upon a sale, even by 
 auction, that the estate is in lease, and there 
 is no misrepresentation, the purchaser will not 
 be entitled to any compensation, although 
 there arc covenants in the lease contrary to 
 the custom of the country, because whoever 
 buys, with notice of a lease, is held conusant 
 of all its contents: whenever, therefore, you 
 have notice of a lease, or even that the estate 
 is in the occupation of a tenant, you should not 
 sign a contract for the purchase of the estate,
 
 ( 4S ) 
 
 until your solicitor has seen and read the 
 leases, ynless the vendor will stipulate, in 
 writing, that they contain such covenants only 
 as are justified by the custom of the country. 
 And even such a stipulation is not quite satis- 
 factory, for there is frequently great difference 
 of opinion, as to what is the custom of any par- 
 ticular place. 
 
 Where difficulties arise in making out a 
 good title, you must not take possession of the 
 estate, until every obstacle is removed. Pur- 
 chasers frequently take this step, under an 
 impression, that it gives them an advantage 
 over the vendor, but this is a false notion : 
 such a measure would, in most cases, be deemed 
 an acceptance of the title, If, however, the 
 objections to the title be remediable, and 
 you should be desirous to accept possession of 
 the estate, you may, in most cases, venture 
 to do so, provided the seller will sign a me- 
 morandum, importing that your taking pos- 
 session shall not be deemed a waver of the ob- 
 jections to the title. And although it is not
 
 ( 43 ) 
 
 advisable to do so, yet you may, with the 
 concurrence of the seller, safely take posses- 
 sion of the estate at the time the contract is 
 entered into; because you cannot be held to 
 have waved objections of which you were not 
 aware; and if ultimately the purchase cannot 
 be completed,, on account of objections to the 
 title, you will not be bound to pay any rent 
 for the estate, unless the occupation of it prove 
 beneficial to you. 
 
 Where you purchase any equitable right, 
 of which immediate possession cannot be had — 
 for instance, money in the funds, standing 
 in the names of trustees, in trust for a father 
 for life, and after his decease for his son; and 
 you buy the son's interest during the father's 
 life-time — you should previously to complet- 
 ing the contract, enquire of the trustee, in 
 whom the property is vested, whether he has 
 had notice of any incumbrance. If the trustee 
 make a false representation, equity would 
 compel him to make good the loss which you 
 may sustain in consequence of the fraudulent
 
 ( ** ) 
 
 statement. When the contract is completed, 
 you should give notice of the sale to the 
 trustee. The notice would certainly affect 
 bis conscience, so as to make him liable in 
 equity, should he convey the property to any 
 subsequent purchaser; and would also, I ap- 
 prehend, give you a preferable title to any 
 former purchaser, or incumbrancer, who had 
 neglected the same precaution. 
 
 If you should purchase, with notice of the 
 claim of another, although he has not a con- 
 veyance, and you actually procure the estate 
 to be conveyed to you, yet you will be bound 
 in equity by the notice ; for it is a general 
 rule in equity, that a purchaser, with notice, 
 is bound to the same extent, and in the same 
 manner, as the person was of whom he pur- 
 chased. I will give you an instance of this. 
 You know that I have lent Tompson 1000J. 
 and that he has agreed to secure it by a mort- 
 gage upon his estate. Now this- gives me 
 merely an equity, that is, a right to call upon 
 him in a court of equity to execute a mort-
 
 ( 15 ) 
 
 gage to me, Till that is done, the entire 
 ownership at law remains in him. If you 
 should purchase the estate from him before 
 the mortgage is executed, and had not had 
 notice of my loan, you would hold the estate 
 discharged from it ; for by the conveyance 
 you would get the legal estate, and by the 
 contract the equitable estate j so that having 
 both law and equity on your side, you would 
 prevail over me who have equity only. For 
 it is a rule, never departed from, that a bona 
 jlde purchaser, for a valuable consideration, 
 and without notice, shall not be affected ill 
 equity. This has been carried so far, that a 
 purchaser has been allowed to take advantage 
 of a deed, relating to the estate, which he stole 
 out of a window, by means of a ladder. I 
 could hardly, however, advise you to be so 
 bold at the present day. But in my case, as 
 you have notice of the loan, you would be 
 bound by it, although you procure the legal 
 estate, and equity would accordingly compel 
 you to execute a mortgage to me pursuant to
 
 ( 46 ) 
 
 Tompson's agreement. In all these cases* 
 there fee, you should stop your hand. 
 
 Notice, I must observe, before payment of 
 all the purchase-money, although it be se- 
 cured, and the conveyance actv^illy executed* 
 or before the execution of the conveyance* 
 notwithstanding that the money be paid, is 
 equivalent to notice before the contract. 
 
 It is not necessary, that you should have 
 express notice ; for instance, in my case, it is 
 not essential that you should actually see 
 and read Tompson's agreement with me ; fot 
 equity holds many acts to amount to construc- 
 tive notice to a purchaser 5 and constructive 
 notice is equally binding with actual notice* 
 Against some of these you cannot guard by 
 any precaution, but there is one of which 1 
 must warn you. Notice to your counsel, at- 
 torney, or agent, would be notice to you, for 
 otherwise, to use Lord Chancellor Talbot's 
 words, a man who had a mind to get ano- 
 ther's estate, might shut his own eyes, and 
 employ another to treat for him, which would
 
 ( 47 ) 
 
 be a manifest cheat. And the same rule 
 prevails, although the counsel, attorney, or 
 agent, be the vendor, or be concerned for both 
 vendor and purchaser. The notice, however, 
 must be in the same transaction, because, as 
 Lord Chancellor Hardwicke observed, if this 
 were not the rule of the court, it would be 
 of dangerous consequence, as it would be an 
 objection against the most able counsel, be- 
 cause of course they would be more liable 
 than others of less eminence to have notice 
 as they are engaged in a great number of 
 affairs of this kind. 
 
 It can seldom happen, that jour attorney, 
 or agent, has notice of any incumbrance on 
 an estate which you intend to purchase, un- 
 less he is employed by the seller, as well as 
 you ; attornies are frequently employed on 
 both sides, in order to save expense. This 
 practice has been discountenanced by the 
 courts, and is often productive of the most 
 serious consequences ; for it not rarely hap» 
 pens, that there are incumbrances on an estate.
 
 ( 48 ) 
 
 which can only be sustained in equify, and 
 which will not bind a purchaser who obtains 
 a conveyance without notice of them. Now, 
 as I have just mentioned, notice to your agent, 
 although concerned for the vendor as well as 
 you, is treated in equity, as notice to you ; 
 and, therefore, if the attorney is aware of 
 any incumbrance, you will be bound by it, 
 although you jourself were ignorant of its 
 existence. 
 
 And by employing the vendor's attorney 
 you may even deprive yourself of the benefit 
 to be derived from the estate lying in a regis- 
 ter county ; the register may be searched, and 
 no incumbrance appear; yet if the attorney 
 have notice of any unregistered incumbrance, 
 equity will assist the incumbrancer, in esta- 
 blishing his demand against you. I must ex- 
 plain to you, that the register counties are 
 Middlesex and York ; and all instruments af- 
 fecting lands in those counties are required, 
 by act of parliament, to be registered in oftlces- 
 kept for that purpose, and they are declared
 
 ( 49 ) 
 
 to be binding, according - ; to their priority 
 of registry. But although your conveyance 
 should be duly registered, yet if you had no- 
 tice of a prior unregistered conveyance, equity 
 would hold you liable to it; for the acts of 
 parliament were only intended to give you 
 notice of prior deeds ; and if you have notice 
 independently of the acts, the intent of the 
 legislature is answered. 
 
 Another powerful reason why you should 
 not employ the vendor's attorney is, that if 
 the vendor be guilty of a fraud in the sab of 
 the estate, to which the attorney is privy, you, 
 although it be proved that you were innocent, 
 will be responsible for the misconduct of your 
 agent. In one case a purchaser lost an estate, 
 for which he gave nearly 8000/. merely by- 
 employing the vendor's attorney, who waa 
 privy to a fraudulent disposition of the pur- 
 chase-money. 

 
 ( 50 ) 
 
 LETTER VI f 
 
 I have not yet dismissed you from your cha- 
 racter of a purchaser. 
 
 In bidding at an auction, you may coun- 
 termand your bidding*, at any time before the 
 lot is actually knocked down ; because the 
 assent of both parties is necessary to make the 
 contract binding ; that is signified on the part 
 of the seller, by knocking down the hammer. 
 Every bidding is nothing more than an offer 
 on one side, which is not binding on either 
 side, till it is assented to. If a bidding was 
 binding on the bidder, before the hammer was 
 knocked down, he would be bound by his 
 ofier, and the vendor would not, which can 
 never be allowed. 
 
 At a sale you need only look at the parti- 
 culars and conditions. An auctioneer cannot 
 contradict them at the time of sale, by a 
 verbal statement 5 although, perhaps, you $£
 
 ( 51 ) 
 
 would be bound, if he could bring home to 
 you particular personal information of it. A 
 mere general statement to the company will 
 not however affect you, either at law, or in 
 equity. I need not suggest to you how far 
 a man may, consistently with good faith, take 
 advantage of the omission in the particulars, 
 if he distinctly understood the verbal state- 
 ment at the sale. 
 
 If you employ a person to bid for you, and 
 he bid more for the estate than you empowered 
 him to do ; he himself would be liable, but 
 you would not. But unless you expressly 
 limited him as to price, it seems that you 
 would be bound. 
 
 If after employing a man to bid, you 
 should be so dishonest as to deny the authority 
 (in seeking instruction, you must not quarrel 
 with your master's mode of conveying it), 
 the agent, unless he could prove the commis- 
 sion, would be compelled to complete the 
 purchase himself; but he would afterwards, 
 by filing a bill in chancery, be able to put 
 e2
 
 ( 52 ) 
 
 you to your oath as to the transaction j and 
 if you denied the authority, he might have 
 the question tried by a jury ; and if you ad- 
 mitted, or he could prove the authority, you 
 would be compelled to take the estate at the 
 sum which you authorized him to bid for it. 
 I need not tell you, that by falsely denying 
 the authority in your answer to his bill, you 
 would incur the risk of the pillory. 
 
 On the other hand, if you merely employ 
 a man by parol, that is by word of mouth, to 
 buy an estate for you, although he buy it " 
 accordingly, yet if he hold himself out as the 
 real purchaser, and no part of the purchase- 
 money was paid by you t you cannot compel 
 him to convey the estate to you, because that 
 would be directly in the teeth of an act of 
 parliament, called the statute of frauds (29 
 Charles the Second, chapter 3.) which re- 
 quires a writing in such cases. And although 
 the man should afterwards be convicted of 
 perjury in denying the trust, yet that will not 
 enable equity to compel him to convey the
 
 ( 53 ) 
 
 estate to you ; but as you cannot avail your- 
 self, in any civil proceeding, of the man's 
 conviction, you would be a competent wit- 
 ness to prove the perjury. You would, there- 
 fore, have at least the satisfaction of making 
 an example of him : the only legitimate object 
 of all punishment. 
 
 The vendor cannot object that your agent 
 purchased in his own name, whereas he is a 
 trustee for you ; for it happens in a vast pro- 
 portion of cases, that the contract is entered 
 into in the name of a trustee, and the mere 
 fact of a quarrel having taken place between 
 the seller and you, totally unconnected with 
 the subject of the contract, or even a bare re- 
 fusal by the seller to deal with you, is not a 
 sufficient ground for his refusing to convey 
 to you. 
 
 But if you applied to purchase the estate, 
 and the owner expressly refused to treat with 
 you, unless the money was paid down, which 
 you were unable to do, and then you procured 
 some other person to purchase the estate on 
 e 3
 
 ( 54 ) 
 
 your account, it seems clear, that at least the 
 purchase-money must be ready at the very day 
 appointed. So if you should apply to Mr. 
 Bigg, to sell you an estate on behalf of 
 Tompson, for whom, as we know, he has a 
 great affection, and Bigg should, on that ac- 
 count, be induced to take less for the estate 
 than he otherwise would have done ; or even, 
 perhaps, without this circumstance, the agree- 
 ment could not be enforced against Bigg, un- 
 less it was really made on behalf of Tompson ; 
 but if Tompson would patronise the sale, ex- 
 ecution of the agreement would be compelled, 
 although he might sell the estate to you the 
 next day. 
 
 The following case shews to what extent 
 this doctrine is carried. A purchaser of a 
 house adjoining to another occupied by the 
 seller, agreed with the seller verbally, that 
 he would not let the house to any person not 
 agreeable to him. A man of the name of 
 Langstafle applied for a lease, and stated that 
 lie knew the vendor intimately, and that there
 
 ( 55 ) 
 
 would be no objection (o granting him a lease, 
 The seller, however, disapproved of Lang* 
 stafie, and so far from knowing him intimately, 
 had only seen him at a tavern. Lord Chancellor 
 Camden set aside the agreement which Lang- 
 staffe had obtained, with costs. A similar case 
 is mentioned in Hawkins's Life of Johnson. 
 
 I must here observe that you cannot, even 
 at an auction, purchase any property for your- 
 self], of which you are a trustee for another. 
 If, however, the person for whom you are a 
 trustee is, what we lawyers term, sui juris, 
 that is of legal capacity to contract for him- 
 self, he may certainly sell to you, but you 
 must first, with his assent, shake off your 
 character of a trustee, and you must freely 
 disclose to him all your knowledge cf the pro- 
 perty. For the rule is, not that you may 
 not buy from the person for whom you are 
 trustee, but t that as a trustee you canuot buy 
 from yourself. And in all cases of this na- 
 ture, equity looks with a very jealous eye on 
 the transaction. The same rule forbids an 
 e 4
 
 ( 56 ) 
 
 assignee of a bankrupt to buy the bankrupt's 
 estate himself, without at least the consent of 
 the majority of the creditors j and it has even 
 been thought by high authority, that the con- 
 sent of all the creditors is absolutely requisite. 
 
 I may here notice a case which will pro- 
 bably happen to you. Under your settlement, 
 on your first marriage, you are tenant for 
 life, with a power to sell or exchange the 
 estate with the consent of your trustees j and 
 tinder the settlement on your second marriage, 
 you are tenant for life of another estate, with 
 a similar power, only it is to be exercised by 
 the trustees, with your consent. Now, under 
 similar powers, many tenants for life have, with 
 the concurrence of the trustees, bought the 
 estates themselves, or taken them in exchange 
 for some of their other estates of equal value ; 
 and such sales and exchanges have been consi- 
 dered by great authorities to be authorized by 
 the powers, notwithstanding a doubt which had 
 prevailed in the profession on the point. But 
 the question has again been agitated in prac-
 
 ( 57 ) 
 
 tice, and I would not, until the poiut is settled, 
 advise you to deal with jour trustees under 
 either of jour powers. 
 
 If you purchase an estate, and take a con- 
 veyance of it in the name of a stranger, as the 
 real purchaser, although jou have no declara- 
 tion of trust from him, jet jou will be en- 
 titled to the estate, if it can be proved that it 
 was paid for with jour monej. If, however, 
 you deliberately declare, although verbally, 
 that the purchase was made for the man's 
 benefit, he will be entitled to retain the estate 
 as his own. And if you take a conveyance in 
 the name of one of your children, for whom 
 you have not made a provision, without de- 
 claring him a trustee for you, the consideration 
 of blood between you, will fix the estate in the 
 child, although illegitimate, for his own be- 
 nefit ; nor can you defeat his claim by any 
 subsequent declaration of your intention. The 
 same rule applies to a purchase in the name of 
 your wife, or of a grand-child, if its parent is 
 dead. But all purchases of this kind are open
 
 ( 58 ) 
 
 to much objection. If you intend the con-* 
 vcyance to be for the party's own benefit, it 
 should be expressly declared to be so on the 
 face of it. If, on the contrary, you mean it to 
 be in trust for yourself, the trust should be 
 declared bv the deed, or vou should take a de- 
 claration of trust by a separate instrument. 
 
 If you and another purchase lands, and 
 advance the money in equal portions, and take 
 a conveyance to yourselves and your heirs, the 
 survivor will take the whole estate ; for the 
 purchase would be considered to be made by 
 you jointly of tjie chance of survivorship, 
 which may happen to the one of you as well 
 as the other. But where the proportions of 
 the money are not equal, and this appears in 
 the deed itself, the rule is otherwise, and the 
 survivor will be a trustee for the representatives 
 of the other, in proportion to the sums which 
 you severally advanced. However, even where 
 the money is advanced equally, you should 
 never take a conveyance in this way ; but the
 
 ( 59 ) 
 
 estate should be conveyed to you, and the other 
 purchaser, in moieties. There is no relying on 
 the joint-tenancy : the other party may defeat 
 it by a secret deed, which, if you survive, 
 will be produced, and his heir will be entitled 
 to his share; whereas, if he survive, he will 
 keep it back, and claim the whole estate. 
 
 I must still observe, that in all cases of 
 joint undertaking or partnership, although the 
 estate will belong to the survivor tet law, yet 
 in equity he will be a trustee as to the share 
 of the deceased partner for his representatives ; 
 so that if you and another were to take a 
 building-lease jointly, and lay out money in 
 erecting houses on the land, the survivor 
 would be compelled to assign a moiety of it to 
 the representatives of the deceased. 
 
 If you and another are in treaty for the 
 purchase of an estate, and you agree to desist 
 and permit him to go on with the intended 
 purchase, upon his promising to let you have 
 a part of the estate, you should require a
 
 ( 60 ) 
 
 written agreement from him j for it seems, 
 that although he should get the estate, he 
 would not be bound by a mere parol, or verbal 
 agreement; to convey part of it to you.
 
 ( 61 ) 
 
 LETTER VII. 
 
 My observations upon sales and purchases 
 now draw to a close, and I dare say that you 
 think it is high time they should. The present 
 letter concerns you both as a buyer and seller. 
 
 Generally speaking, a written agreement is 
 essential to a valid contract for the sale or 
 purchase of an estate. This is rendered essen- 
 tial by the statute of 29 Car. II. c. 3. usually 
 called the statute of frauds ; and it must be 
 signed by the party whom you wish to be 
 bound by it, or his agent, to whom a verbal 
 authority for that purpose will be sufficient ; 
 and the agreement must distinctly contain all 
 the terms, such as the names of the parties, 
 the estate to be sold, and the consideration 
 to be given for it : nothing can be supplied by 
 parol evidence. There are, indeed, some ex- 
 ceptions to this rule in equity — If the party 
 resisting the contract admit the agreement,
 
 ( 63 ) 
 
 and do not claim the benefit of the statute, or 
 if he have acted fraudulently, equity will 
 compel the fulfilment of the agreement, al- 
 though merely verbal, and not reduced to 
 writing, and signed by the parties. As an 
 instance of what is deemed a sufficient fraud 
 to enable equity to relieve, I may observe, that 
 if you were verbally to sell me an estate, and 
 I in performance of part of the agreement were 
 to lay out money in repair?, you could not 
 afterwards resist my claim to a conveyance of 
 the estate. 
 
 Letters which have passed between parties 
 have frequently been held to amount to an 
 agreement j therefore, in writing about the 
 sale or purchase of an estate, you should al- 
 ways cautiously declare your offer, or propo- 
 sal, not to be final, lest the other party should 
 entrap you, against your intention, into a bind- 
 ing contract. If upon a treaty for sale of your 
 estate, you should write a letter to the person 
 wishing to buy it, stating that if you part with 
 it, it shall be upon such and such terms (spe-
 
 ( 63 ) 
 
 cifying them), and such person, upon receipt 
 of the letter, accept the terms mentioned in it, 
 your letter will be deemed equivalent to an 
 agreement. So if you are hi company, and 
 make offers of a bargain, and then write them 
 down, and sign them, and another person take 
 them up, and prefer his bill against you, the 
 proposal will be binding on you. But if it 
 appears, that on being submitted to any person 
 for acceptance, he had hastily snatched it up, 
 had refused you a copy of it, or if from other 
 circumstances, fraud in procuring it may be 
 inferred, it seems, that in case of an action, 
 it would be left to the jury to say, whether 
 you intended it, at first, to be a valid agree- 
 ment on your part, or as only containing pro- 
 posals in writing, subject to future revision ; 
 and if the aid of equity be sought, these cir- 
 cumstances would have equal weight with the 
 court. In every case it must be considered^ 
 whether the note, or correspondence, import a 
 concluded agreement : if it amount merely to 
 treaty, it will not sustain an action or suit,
 
 ( 64 ) 
 
 and a letter must, like a regular agreement, 
 contain all the terms. 
 
 A receipt for the purchase-money, if it 
 contain the terras, will be a sufficient agree- 
 ment. And even a letter to your attorney, 
 stating the terms, and directing him to carry 
 the agreement into execution, will have the 
 same operation. 
 
 It is not, however, sufficient, that a person 
 present at the making of the agreement re- 
 duced it into writing, unless it was signed by 
 the parties ; nor is the delivery of rent-rolls, 
 particulars of the estate, abstracts of title, &c. 
 on the treaty for sale, equivalent to an agree- 
 ment ; neither is it sufficient, that both parties 
 verbally direct an attorney to prepare the con- 
 veyance : with the exceptions before alluded 
 to, there must be an agreement signed by the 
 party to be charged ; that is, by the party 
 against whom relief is sought ; for if you sign 
 an agreement to sell or buy an estate; the other 
 party acting bona fide may proceed against 
 you, although he himself never signed it.— » 

 
 ( 65 ) 
 
 You should always require the party, with 
 whom you deal, to sign when you do. 
 
 I may observe, that the price to be paid 
 for the estate is not weighed in very nice 
 scales. As the rule now stands, the consider- 
 ation must, indeed, be grossly inadequate, or 
 unreasonable, to enable equity to refuse its 
 aid ; and at law, unless it is merely fraudulent 
 and nominal, the amount of the consideration 
 would not prevent the party benefitted from 
 recovering damages for a breach of the coi.- 
 tract by the other party. But fraud is an 
 exception to every rule. A case arose, where 
 an agreement was made for sale of land, at a 
 halfpenny per square yard. The price was 
 in all about 500/. the real value 2000/. The 
 purchaser went out to an attorney, got him 
 to calculate the amount, and desired him not 
 to tell the vendor how little it was ; then car- 
 ried the agreement to the vendor, and prevailed 
 on him to sign it immediately. The desire 
 of concealment was considered such a fraud 
 as would void the transaction, because parties
 
 ( 66 ) 
 
 to a contract arc supposed, in equity, to treat 
 for what they think a fair price. 
 
 But I must remark, that the case of an 
 heir selling his expectancy stands on its own 
 grounds, and very slight circumstances will 
 enable equity to set aside the contract. It has 
 been laid down, that the heir of a family, 
 dealing for an expectancy in that family, shall 
 be distinguished from ordinary cases, and an 
 unconscionable bargain made with him shall 
 not only be looked upon as oppressive in the 
 particular instance, and therefore avoided ; but 
 as pernicious in principle, and therefore repress- 
 ed. There are two powerful reasons why sales 
 of reversions, by heirs, should be discounte- 
 nanced ; the one,' that it opens a door to tak- 
 ing an undue advantage of an heir being in 
 distressed and necessitous circumstances, which 
 may, perhaps, be deemed a private reason ; the 
 other is founded on public policy, in order to 
 prevent an heir from shaking off his father's 
 authority and feeding his extravagancies, by 
 disposing of the family estate.
 
 ( 67 ) 
 
 Never leave the price to be fixed by sur- 
 veyors or arbitrators ; for if they refuse to 
 value the estate, or disagree in the valuation, 
 you cannot enforce the performance of the 
 contract. This, however, is not the case, 
 where it is merelv agreed, that the estate shall 
 be taken at a fair valuation, without specify- 
 ing the mode in which it shall be made. But 
 even this mode is objectionable. 
 
 If upon the purchase of an estate you pay 
 a deposit, and afterwards become entitled to a 
 return of it, because the seller cannot make a 
 title, you would not be compelled to take any 
 •tock, in which he may have thought proper 
 to invest it without your consent. And you? 
 assent will not, it seems, be implied from notice 
 having been given to you of the investment, 
 to which you did not reply. It would not 
 however, be prudent to be silent iu such a 
 case. Where the deposit is considerable, and 
 it is probable that the purchase .may not be 
 completed for a long time, it is for the benefit 
 of both parties to enter into an arrangement 
 
 f2
 
 ( 68 ) 
 
 for an investment of the deposit, so as to make 
 it productive of interest. 
 
 You cannot as a purchaser, because delays 
 arise, deposit your money at a private bank- 
 er's, or in the Bank of England, or convert it 
 into stock at the risk of the seller ; notwith- 
 standing such a deposit, the principal will re- 
 main entirely at your own risk j nor is it ma- 
 terial that you gave the vendor notice of the 
 deposit, unless he took the risk on himself, by 
 agreeing to accept it as a payment. And as 
 he would not be bound, without his express 
 assent, by a deposit, he could not, unless he 
 had bound himself, come and claim any be- 
 nefit by a rise in the funds. So if you sell out 
 ftock to answer the purchase-money, and the 
 title prove bad, without any fraud in the seller, 
 and then you re- purchase at a loss, you are 
 not entitled to any allowance on that account: 
 for you had a chance of gaining as well as 
 losing by a fluctuation in the price of the stock. 
 
 Coiitinnal dis; utes arise as to interest* The 
 purchaser is entitled to the profits of the
 
 ( 69 ) 
 
 estate from the time fixed upon for com- 
 pleting the contract, whether he does or does 
 not take possession of the estate ; and as from 
 that time the money belongs to the vendor, the 
 purchaser will be compelled to pay interest 
 for it, if it be not paid at the day. Upon this 
 rule, no difficulty could ever arise, if the pur- 
 chase-money were not frequently lying dead j 
 in which case it becomes a question upon 
 whom the loss of interest shall fall. The loss 
 must be borne by the party by whom the de- 
 lay has been occasioned. It seems, however, 
 that although the delay is with the seller, and 
 the money is lying ready, and without interest 
 being made by it, yet notice should be given 
 to him that the money is lying dead, because 
 otherwise there is no equality, the one knows 
 the estate is producing interest, the other does 
 not know that the money does not produce in- 
 terest ; and in all cases where a purchaser re- 
 sists the payment of interest, he must shew 
 that the money was lying dead, and bona jide 
 appropriated to answer the purchase. But I 
 f3
 
 ( 70 ) 
 
 would advise you never to let jour money lie 
 dead ; you can at least lay it out in exchequer- 
 bills ; and some how or other, each party in- 
 variably insists that the other has occasioned 
 the delay. 
 
 In the case of timber on an estate to be 
 taken at a valuation, interest on the purchase- 
 money will only commence from the valuation, 
 although the interest on the purchase-money 
 for the estate itself may be carried a great way 
 back, because surveyors always value timber 
 according to its present state ; and the augment- 
 ed value of the timber by growth, is an equi- 
 valent for the interest from the time of the 
 contract to the making of the valuation. 
 
 The usual rate of interest allowed in equity 
 is four per cent. ; but in proper cases the court 
 will give five, because that is now the current 
 interest of money ; and to give only four is 
 holding out an inducement to persons to delay 
 the completion of contracts. 
 
 I nuiy here observe, that as the estate be- 
 longs to the purchaser from the time of the
 
 ( 71 ) 
 
 contract, he is entitled to any benefit which 
 may accrue, and must bear any loss which may 
 happen to it before the conveyance. If a 
 house is even burned down, yet the purchaser 
 must pay for it, although the seller permit 
 the insurance to expire without giving him 
 notice. You should, therefore, upon enter- 
 ing into an agreement to buy a house, provide 
 for the insurance of it till the completion of 
 the contract : again, if you agree to buy an 
 estate held for lives, and all the lives drop the 
 next day, still you must pay your money. On 
 the other hand, if you purchase a reversion 
 subject to an estate for life, you will be en- 
 titled to a conveyance at the original price, 
 although the estate has fallen into possession 
 by the death of the tenant for life. In all these 
 respects our law agrees with the civil law. 
 
 If you buy an estate, in consideration of 
 an annuity, which you are to pay to the seller 
 for life, and he die before the estate is con- 
 veyed to you, or even before a payment of the 
 annuity become due, yet you will be entitled 
 
 f4
 
 ( 9 ) 
 
 to a conveyance of the estate without, in fact, 
 paying for it. But in a case of this kind, if a 
 payment of the annuity become due before 
 the conveyance is executed, )ou should cau- 
 tiously pay it on the very day ; for a neglect 
 on your part would, it seems, bar your right 
 to the estate, if the seller should afterwards 
 die before it is conveyed to you. 
 
 As a concluding observation, I may re- 
 mark, that if a man, by mistake, purchase 
 from another an estate, to which he himself is 
 entitled, he may recover back the money 
 which he paid for it.
 
 ( ™ ) 
 
 LETTER VIII. 
 
 As you are anxious to obtain church prefer- 
 ment for one of your sons, I shall state to you 
 how far you may legally buy it. The great 
 object is to steer clear of simony, which is a 
 corrupt contract for an ecclesiastical benefice. 
 It derives its name from Simon Magus. 
 
 It is clear and direct simony to purchase a 
 presentation whilst the living is vacant, but 
 the great probability of a speedy vacancy is 
 immaterial, if the purchase be not corrupt. 
 It is unimportant, therefore, that the incumbent 
 is on his death-bed, and that it is uncertain 
 whether he will live over the night. A man, 
 with full notice of this circumstance, may 
 safely purchase, and the death of the incum- 
 bent the next moment, will not impeach the 
 validity of the transaction. A man may pur- 
 chase, whilst the living is full, the next or any 
 other presentation; and he may purchase the
 
 ( » ) 
 
 advowson, either whilst the living is full, or 
 even during its vacancy ; but in the latter case, 
 the presentation could not be obtained by the 
 purchase of the advowson, for the avoidance 
 cannot be granted, because it is against public 
 utility, and opens a door to simony. But al- 
 though the avoidance does not pass in such a 
 case, yet, if the purchaser of the advowson 
 usurp the right of presentation, the offence of 
 simony will be committed. 
 
 But a man cannot purchase a presentation, 
 even whilst the living is full, with an intent to 
 present a particular person, and afterwards 
 legally present him ; it is even doubtful, whe- 
 ther such a purchase and subsequent presenta- 
 tion can be legally made by a father for his 
 child. And where the living is vacant, if the 
 advowson is purchased with a corrupt view for 
 presenting, that may avoid the purchase. And 
 therefore if you purchase a presentation or an 
 advowson, whatever your intentions may be, 
 you should not disclose them. 
 
 A clergyman is prohibited from buying a'
 
 ( 75 ) 
 
 presentation, but he may purchase the ad vow. 
 son itself, and .upon a vacancy cause himself 
 to be presented. 
 
 Where a man has an advowson, and is desir- 
 ous to present a particular person, for example 
 one of his sons, and a vacancy happen before 
 he is capable of filling the living, it is usual to 
 present some person, who gives a bond to the 
 patron to resign, «hen the person for whom 
 the living is ultimately intended shall be of 
 age to receive it. This is a case which is very 
 likely to happen in your family. General 
 bonds of resignation were formerly very com- 
 mon, by which the incumbent became bound to 
 resign the living at any time, upon the request 
 of the patron. Such bonds had repeatedly 
 been held to be legal, but equity always inter- 
 posed, and prevented them from being made 
 an instrument of oppression, or from being used 
 for the commission of simony. In the time of 
 Lord Chancellor Thurlow, however, it was de- 
 cided in the House of Lords, upon a division, 
 J 9 against 18, that such bonds are illegal.
 
 ( 76 ) 
 
 The courts have however not given up their 
 ancient rule, where the case is not precisely 
 like that determined in the Lords. Therefore, 
 you may take a bond from the incumbent to 
 reside on the living, or to resign to the ordinary 
 if he do not return to it within a time to be 
 fixed after notice, and also not to commit 
 waste, for such a condition only inforces the 
 performance of moral, legal, and religious du- 
 ties. So you may make it a condition, that he 
 shall keep the buildings in repair, and that he 
 shall resign upon notice, in order that one 
 of your infant sons may be presented to the 
 benefice. 
 
 I do not think it necessary to point out to 
 you the forfeitures and punishments which are 
 incurred by simony. They are very heavy, and 
 yet are not sufficient to deter men from every 
 day committing the crime which they are in- 
 tended to punish. 
 
 I have now discharged my promise to you, 
 so far as relates to your sales and purchase*.
 
 r 7? ) 
 
 LETTER IX. 
 
 Mortgages are the next subject to which I 
 shall direct your attention. 
 
 A mortgage is a security for money lent. 
 The borrower is stiled the mortgagor, the lender 
 the mortgagee. 
 
 You cannot by any device, elude the statutes 
 against usury, which prohibit you from reserv- 
 ing or taking more interest than 5/. per cent, 
 per annum ; so that although you only reserve 
 5 per cent, yet you will commit usury, if you 
 take more. An exception has, however, been 
 introduced by the legislature, in favour of es- 
 tates in Ireland and the West Indies, upon mort- 
 gages of which 6 per cent, is allowed to be 
 taken. The wit of man cannot devise a mean 
 of avoiding- these statutes, and even a collateral 
 benefit to the lender, as a lease granted to him 
 at the time of the loan, has been relieved 
 against in equity, on account of its usurious
 
 ( 78 ) 
 
 tendency, but it is not usurious to receive the 
 interest quarterly or half yearly. 
 
 It is also settled, that you cannot prospec- 
 tively make interest principal, so as to carry 
 interest ; therefore a stipulation in a mortgage 
 deed, that every quarter's interest in arrear 
 shall become principal and carry interest, 
 would be void. You must wait till the inter- 
 est is actually due, and then a regular instru- 
 ment should be executed, making the interest 
 principal. 
 
 A day is always named for payment of the 
 principal. If it is not paid at the day the 
 mortgagee (the lender) may at any time re- 
 cover it, hut the mortgagor (the borrower) can- 
 not compel the mortgagee to receive it, without 
 first giving him 6 calendar months notice of 
 his intention to pay it off. If he make a regu- 
 lar tender of the money on the day on which 
 the notice expires, although the lender refuse 
 to accept it, yet interest will no longer run : 
 but to stop the interest, a regular tender must 
 be made on the precise day.
 
 ( 79 ) 
 
 In advancing money on mortgage, the estate 
 is regularly transferred by conveyance to the 
 lender, but is made redeemable on repayment 
 of the money and interest. The mortgagee 
 takes the absolute interest in the estate at law, 
 but in equity, the mortgagor is still owner of 
 the estate to all intents and purposes. He may 
 settle or devise the estate in the same manner 
 as if he had not mortgaged it ; and if he devise 
 it before the mortgage, his prior disposition 
 will, subject to the mortgage, still remain 
 good, nor will a reconveyance to him upon 
 paying off the money, affect the validity of the 
 will. But if he make a disposition of the es- 
 tate beyond the mortgage, it may operate as a 
 total revocation of a prior will. 
 
 In mortgages of copyholds, it is not usual 
 for the mortgagee to be admitted. If the 
 owner surrender the estate to his will (which 
 is an essential circumstance to enable him to 
 devise his copyhold estate) he may devise it 
 "without a new surrender, although he has sub- 
 sequently surrendered to a mortgagee, but if
 
 ( 80 ) 
 
 he have not surrendered it to his will, his sur- 
 render to a mortgagee, who is not admitted, 
 will not enable him to devise, but he must first 
 make a surrender to his will. If, however, the 
 mortgagee be admitted, then the owner may, 
 in equity, devise the estate without any fur- 
 ther surrender. 
 
 So the mortgagor may sell the estate, and 
 pay off the mortgage out of the purchase mo- 
 ney, or he may sell it subject to the mortgage; 
 but a purchaser in the latter case, should either 
 require the mortgagee's concurrence, or should 
 be satisfied that the account stated by the mort- 
 gagor alone is correct, and should give notice 
 to the mortgagee of the sale immediately after 
 it is completed. — A man buying an estate sub- 
 ject to a mortgage, is without any express sti- 
 pulation bound to indemnify the seller against 
 the debt. 
 
 A mortgagor cannot after a mortgage, make 
 a lease binding on the mortgagee. The mort- 
 gagee may at any time evict a tenant holding 
 under such a lease.
 
 ( 81 ) 
 
 It is always stipulated in mortgage*, thai, 
 until default shall be made in payment of the 
 money, the mortgagor shall quietly enjoy the 
 estate. After default has been made, the mort- 
 gagee may obtain possession of the estate, but 
 although he becomes absolute owner of the 
 estate at law, yet he cannot make a lease of the 
 lands without an absolute necessity so to do, 
 which will bind the mortgagor; and as in these 
 cases the property is considered a mere security 
 for the debt, which belongs to the personal es- 
 tate, although the estate descend to the heir 
 of the mortgagee, yet he will be a mere trustee 
 for the executor. It is usual in order to pre- 
 vent the difficulty of obtaining a conveyance 
 from an heir at law, who may be an infant or 
 a married woman, or may be out of the king- 
 dom, for mortgagees to expressly devise the 
 estates vested in them by way of mortgage to 
 trustees, with a declaration that the mortgage 
 money shall be considered as personal estate. If 
 a mortgagee in possession, wish the estate to 
 vest in his devisee, as real estate for his own 
 
 a
 
 ( 82 ) 
 
 benefit, he should expressly devise it to him, 
 and not trust to its passing under a general de- 
 vise of all his real estate. 
 
 A mortgagor, even after default in payment 
 of the money, is not liable to account to the 
 mortgagee for the rents during the time which 
 he has been suffered to remain in possession. 
 
 A mortgagor may vote at an election not- 
 withstanding the mortgage, unless the mortga- 
 gee be in the actual possession or receipt of the 
 rents of the estate, in which case the latter is 
 entitled to vote, nor can a mortgagee qualify 
 himself as a member of the House of Com- 
 mons under a mortgage whereof the equity of 
 redemption is in any other person, unless he 
 shall have been in possession of the estate for 
 seven years before the time of his election. 
 
 A mortgagee in possession, should keep re- 
 gular accounts ; for he is liable to account to 
 the mortgagor for the profits which he has, or 
 might have received, without fraud or wil- 
 ful neglect ; he is answerable for wilful neglect, 
 although not guilty of actual fraud ; for in-
 
 ( S3 ) 
 
 stance, if the mortgagee turns out a sufficient 
 tenant, and having notice that the estate was 
 under let, takes a new tenant, another substan- 
 tial person offering more. But in general, if 
 the mortgagor knows that the estate is underlet, 
 he ought to give notice of that circumstance to 
 the mortgagee, and to afford his advice and 
 aid for the purpose of making the estate as. 
 productive as possible. A mortgagee in pos- 
 session, may appoint a bailiff and receiver, and 
 charge the estate with their salaries ; but if he 
 choose to take the trouble on himself, he can- 
 not charge for it, not even if the mortgagor 
 agree to make him an allowance, for that would 
 be to give him something beyond his principal 
 and interest. 
 
 The mortgagee cannot justify committing 
 waste on the estate, unless the security is de- 
 fective, and in that case the waste must be 
 productive of money, which must be applied 
 in relief of the estate, nor can he enter upon 
 any speculation at the risk of the mortgagor ; 
 therefore, if he open a miue or quarry, he 
 g2
 
 ( 84 ) 
 
 must do it at his own risk, and yet, the profit 
 from it would be brought into the account 
 against him. He need only keep the estate in 
 necessary repair, and if he increase the interest 
 in the estate, as by renewing the lives, where 
 the estate is held upon lives, he will be enti- 
 tled to be repaid the sum advanced with inter- 
 est, which will be considered as an additional 
 charge on the estate. 
 
 Generally speaking, a mortgagee of an ad- 
 vowson cannot present to it ; because it would 
 be illegal to sell the presentation. The mort- 
 gagee therefore, as he cannot bring the presen- 
 tation into the account, must present the nomi- 
 nee of the mortgagor. But where the mortgage 
 is absolute, equity will not restrain the mort- 
 gagee from presenting, unless the mortgagor 
 will pay oft' the mortgage money at a short day, 
 for it may be, that the mortgagor will not re- 
 deem, and in that case the presentation belongs 
 to the mortgagee. 
 
 Neither the mortgagor nor mortgagee can by 
 any adverse act, bar the right of the other.
 
 ( 86 ) 
 
 And if a man with a bad title make a mort- 
 gage, and afterwards, by any means acquire a 
 good title, he must confirm the mortgage. So 
 if he obtain an increased interest in the estate, 
 as a renewal of a lease, it will be considered as 
 a graft upon the original stock, and be liable 
 to the mortgage. And by a parity of reason, 
 if the mortgagee acquire a renewed interest in 
 the mortgaged estate, it will, subject to the 
 mortgage, be in trust for the mortgagor. 
 
 If a mortgagee is allowed to remain twenty 
 years in possession without account, the 
 mortgagor is barred of all his right in the es- 
 tate, for after that period, equity will not assist 
 him in redeeming the estate. But if the mort- 
 gagor was under any disability to prosecute his 
 claim, viz. infancy, coverture, insanity, impri- 
 sonment, or beyond the seas, ten years would 
 be allowed after the removal of the disability. 
 These periods are not arbitrarily chosen, but 
 are fixed by analogy to the statutes of limita- 
 tation, which require persons who have a right 
 of entry on an estate, to prosecute their rights 
 g3
 
 ( 80 ) 
 
 within those times ; and in these eases, if (he 
 time onee begin to run, no subsequent disability 
 will stop it. 
 
 An account settled between the parties, or a 
 deliberate acknowledgement by the mortgagee 
 that he is still only a mortgagee, as by devis- 
 ing or transferring, the mortgage as such, will 
 open the redemption ; and in these cases, a 
 mortgagee who is not desirous to open the re- 
 demption, should be cautious not even in con- 
 versation to admit that the estate is redeemable. 
 
 On the other hand, if the mortgagor is suf- 
 fered to remain twenty years in possession with- 
 out any demand or payment of interest, it will 
 in general be presumed that the principal and in. 
 tcrest have been paid, and the estate reconvened. 
 
 If a mortgagee will not reconvey upon pay- 
 ment of the principal, and interest, and costs, 
 and the right to redeem is still open, the mort- 
 gagor may, by a bill in equity, compel a re- 
 demption. On the other hand, if the mort- 
 gagee is desirous either to obtain back his 
 money, or to have the estate discharged of any
 
 ( 87 ) 
 
 right of redemption, he may file a bill against 
 the mortgagor for what is termed a. foreclosure, 
 and the mortgagor will be decreed to pay the 
 money and interest at a day named, or to stand 
 foreclosed of all right to redeem the estate. 
 After such a decree is perfected, if default is 
 made in payment of the money, the mortgagee 
 becomes absolute owner of the estate. But 
 equity will be anxious not to hastily foreclose 
 the mortgagor, and therefore under proper 
 circumstances the time limited for payment of 
 the money will be enlarged more than once, if 
 there is a fair prospect of the mortgagor being 
 able to repay the money. This is frequently a 
 great hardship on the mortgagee, but the rule 
 is not extended to a bill by the mortgagor for 
 redemption ; the time there will not be en- 
 larged. 
 
 If a man make a second mortgage, without 
 giving the second mortgagee notice of the first 
 mortgage, or if he make a mortgage after 
 having otherwise incumbered the estate, and 
 do not within six months after notice given to 
 o 4
 
 ( 8S ) 
 
 him by the mortgagee, pay off the incumbrances, 
 he will, by a legislative provision, be barred of 
 all equity of redemption, or right to redeem the 
 estate. 
 
 A mortgage is assignable, and the concur- 
 rence of the mortgagor in the transfer is not 
 essential. But the assignee will take subject 
 to the real state of the account between the 
 mortgagor and mortgagee, and therefore he 
 should be well satisfied that the account is 
 correct if he dispense with the mortgagor's 
 concurrence. An assignee of a mortgage is 
 entitled to the whole sum due, although he 
 buy it at a less price. 
 
 In the outset of this long letter, I told you 
 that you cannot legally take more than 5 per 
 cent, per annum as interest for the loan of 
 money. The policy of this provision has 
 frequently been questioned. Bentham's inge- 
 nious defence of usury is in the hands of 
 every one. Experience has shown that if
 
 ( S9 ) 
 
 the wants of mankind rise above the 
 law, it must, however strictly penned, 
 give way to them. History proves, that in 
 every country where laws have been made 
 against usury, they have been evaded when- 
 ever the supply of money was not equal to 
 the demand. Most countries have been anx- 
 ious to establish a low rate of interest, because 
 that is deemed an almost infallible proof of the 
 flourishing condition of a state. In England, 
 as in other countries, the laws against usury 
 have been completely evaded. This was ef- 
 fected by the introduction of life annuities. 
 The borrower agrees to give 10 per cent., for 
 example, for the loan. The lender then names 
 three lives, and the borrower grants him an 
 annuity for those lives, and the survivor of 
 them, equal to the 10 per cent. ; and in some 
 cases, the expense of insuring the last life. 
 The annuity is made repurchasable by the 
 borrower. It was a considerable time before 
 this sort of transaction in all its bearings was 
 deemed legal. After its validity was estab-
 
 ( 90 ) 
 
 lished, life annuities, from the pressure and ex- 
 travagance of the times, became so common, 
 and such gross frauds were -practised on bor- 
 rowers, that the Legislature deemed it proper 
 to interpose its strong arm, and place these 
 transactions under certain restraints. The chief 
 object was to disclose the name of the real len- 
 der, and to gi\e publicity to the transaction. 
 This measure, however, was not attended with 
 all the salutary consequences which were ex- 
 pected ; it was therefore lately repealed, and 
 more simple provisions substituted for attain- 
 ing the same end. Three lives in these cases 
 are named, in order to save the expense of insur- 
 ance ; for in all these cases, the lender will not 
 advance his money unless his principal can be 
 assured to him ; and it is taken for granted, that 
 the annuity will be repurchased. The borrower 
 cannot secure the repayment of the principal. 
 That would render the transaction usurious. 
 For the ground upon which life annuities are 
 not deemed within the statutes of usury is, 
 that the principal is sunk, and it is not consi-
 
 ( 91 ) 
 
 dered an objection to this doctrine, that the 
 grantor or borrower may repurchase the annuity. 
 But in point of fact, the borrower always does 
 secure the repayment of the principal ; for he 
 either grants the annuity for so long a period 
 as to render it certain, that the annuity will be 
 repurchased before it expires ; or if the annuity 
 is grauted only upon one life, which is done 
 where the borrower has only a life interest to 
 secure the annuity upon, the amount of the in- 
 surance is invariably added to the rate of inter- 
 est agreed to be given, so that the lender either 
 stands his own insurer, which however is rarely 
 done, or insures the life in one of the public 
 offices. By these means, he receives the stipu- 
 lated rate of interest, and when the annuity 
 ceases he receives back his principal. The 
 only essential difference, therefore, between this 
 case and a common loan is, that the lender's 
 capital is tied up during the peri; d agreed 
 upon ; and he cannot compel the repayment, of 
 it. For this inconvenience, he should certainl y
 
 ( 92 ) 
 
 be allowed to receive more than common in- 
 terest, but whether some better plan than the 
 present might not be adopted for effecting this 
 end, I must leave it to wiser heads than mine to 
 determine.
 
 ( 93 ) 
 
 LETTER X. 
 
 It now comes in order to give you a few in- 
 structions as to leases. What I have to say 
 on this head will lie in a narrow compass. 
 
 Leases not exceeding three years from the 
 time of making them, whereupon the reserved 
 rent amounts to two-thirds of the improved 
 value, may be granted by parol, or word of 
 mouth ; but all other leases must be in writ- 
 ing, according to the provisions of the statute 
 of frauds, which I have before mentioned, 
 and so must an agreement for a lease, however 
 short the term ; although here, as in the case 
 of purchases,, equity will in some instances, for 
 which I refer you to my 7th letter, enforce 
 even a parol agreement to grant a lease. To 
 this,, however, a party should not trust. 
 
 An agreement for a lease, like an agree- 
 ment for purchase, must contain the names of 
 the parties, the consideration, viz. the rent
 
 ( m ) 
 
 and also the property to be demised, and for 
 what term. The parties must sign the agree- 
 ment by themselves, or their agents, in like 
 manner as an agreement for a purchase. And 
 the caution which I before gave you, in re- 
 gard to writing letters, about the sale or pur- 
 chase of an estate, applies equally to leases. 
 I must observe, that nothing can be added to 
 an agreement of this kind by parol evidence : 
 you cannot, for instance, if the agreement is 
 silent on that head, shew that the tenant agreed 
 verbally to pay the land-tax. The parties 
 must stand or fall by the written agreement. 
 Therefore, whatever the terms are upon which 
 you agree, you must reduce them to writing. 
 
 If you should ever be under the necessity 
 of entering into an agreement to grant a lease, 
 without the assistance of your solicitor, insert 
 an express declaration, that it is meant to be 
 an agreement, and not an actual lease. It 
 has frequently happened, that what was in- 
 tended by the parties as an agreement only, 
 has been construed to he a lease, by which
 
 ( 95 ) 
 
 means the tenant has evaded the conditions 
 which would have been imposed on him, if a 
 regular lease had been granted. 
 
 It is highly desirable, that agreements for 
 leases should contain a minute of the covenants 
 to be entered into by the tenant. Disputes fre- 
 quently arise as to the covenants to which the 
 landlord is entitled. If you wish your tenant 
 not to part with the lease without your consent, 
 you should stipulate by the agreement, that a 
 proper clause for that purpose shall be con- 
 tained in the lease ; because you cannot insist 
 upon such a restraint, unless it is bargained for. 
 If you agree to grant a building lease, the 
 tenant must engage by the lease to insure the 
 property, although the agreement was silent 
 on that head; but the rule is otherwise as to 
 tenants at a full rent, or, as we term it, a rack- 
 rent. If, therefore, you mean that a tenant at 
 rack-rent shall insure at his own costs, you must 
 make him agree to do so by the contract. If 
 you omit this, the lease must be so framed as 
 to exempt him from making good accidents by 
 fire. But even in this case you are not bound
 
 ( 06 ) 
 
 to insure ; and although the house should be 
 burned down, yet the tenant must continue to 
 pay the rent : so that each bears his burden, 
 you lose jour house, and the tenant loses his 
 rent during the terra. If, however, you have 
 insured, although not bound to do so, and re- 
 ceived the money, you cannot compel payment 
 of the rent, if you decline to lay out the money 
 in re-building. It is material, however, to 
 observe, that whatever may have been the 
 agreement, unless the tenant is exempted by 
 the lease from making good accidents by fire, 
 he must, under the common covenants to re- 
 pair, rebuild the house if it is burned down. 
 
 You cannot make your tenant pay your 
 property-tax ; for if he even agree to do so, the 
 agreement will be void. 
 
 If you agree to grant a man a lease, and he 
 afterwards says that he is merely a trustee for 
 an insolvent who claims the lease, you are not 
 bound to grant it. 
 
 It may be useful to state, that if you grant, 
 or even agree to grant a lease, to hold for seven 
 or fourteen, or any other number of years, in
 
 (*97 ) 
 
 Qre alternative, the option to determine the 
 lease at the end of the first term mentioned is 
 hi the tenant, and not in you ; therefore/ if this 
 is not your intention, you should expressly 
 provide by the agreement, or lease, that the 
 option shall he in you as well as the tenant. 
 
 You should always before granting a lease 
 consider what interest you have in the estate. 
 If you are merely tenant for life, without a 
 power of leasing, you must not grant a lease 
 beyond your own life. If you have only apoiver 
 to grant a lease, which is the case with every 
 man whose property is settled on his family, 
 you should communicate that circumstance to 
 your solicitor, and furnish him with a copy of 
 the power, because a very slight deviation from 
 it — for instance, executing the lease in the pre- 
 sence of one witness, instead of two — may ren- 
 der the lease void, by which you may not only 
 ruin your innocent tenant, but may, by the co- 
 venant which you must enter into with him, for 
 quiet enjoyment of the land, subject your estate 
 to make good his loss, in case he is evicted by 
 
 H
 
 ( 98 ) 
 
 the person entitled to the estate after your death. 
 This has too frequently happened. A very 
 painful instance occurred in the year 1778. 
 Sir John Astley, and his wife, settled her estate 
 to certain uses, with a power of leasing to Sic 
 John. They then, under a power in the settle- 
 ment, gave the estate, after their deaths, to 
 Lord Taukerville. Sir John granted a iease 
 under his power, and died. Lord Tankerville, 
 when he came into possession, took advantage 
 of a defect in the lease, and turned out the 
 tenant, who recovered his loss out of Sir John's 
 estate, under a covenant entered into by him 
 for quiet enjoyment : so that his property suf- 
 fered severely by the act of the person to whom 
 he had joined, with his wife, in giving the estate. 
 If you are restrained by your power from 
 taking a fine on granting a lease, you must 
 not accept any sum whatever from the tenant. 
 But, although you are required to reserve 
 the best rent which can be obtained, yet you 
 arc not compellable to take the highest actual 
 tffer for a lease, provided you act bona jide,
 
 ( 99 ) 
 
 and reserve a proper rent ; because in the 
 choice of a tenant there are many things to be 
 regarded, besides the mere amount of the rent 
 offered. There should, however, be some 
 strong prudential reason to induce you to 
 grant a lease to one at a lower rent than is 
 oiTered by another. 
 
 You may exercise a power of leasing for 
 your own benefit. For this purpose you must 
 procure some person as your trustee, to be- 
 come bound for the rent, &c. For if a pro- 
 per person is legally bound to pay the rent 
 and perform the covenants, it is unimportant 
 to the person succeeding to the estate, that 
 the beneficial interest belongs to another. The 
 person to whom the lease is granted should 
 execute a deed, declaring him to be a trustee 
 for you. I have only one other caution to 
 give you as to leases. Carefully avoid com- 
 prising in the same lease, at an entire rent, pro- 
 perly, some your own, and some over which you 
 have merely a power ; such a lease would be 
 void as to the property comprised in the power. 
 h2
 
 ( 100 ) 
 
 LETTER XI. 
 
 Ihe subject for the present letter is the set- 
 tlement of your estates, 
 
 I may premise that the statute of frauds, 
 to which I have so often referred you, re- 
 quires agreements, made upon consideration 
 of marriage, to be in writing, and signed by 
 the party to be charged therewith, or his 
 agent. A letter, however, is considered a suf- 
 ficient agreement, if it contain the terms, and 
 amount to an offer. In one case a man wrote 
 a letter, signifying his assent to the marriage 
 of his daughter, and that he would give her 
 150OA ; and afterwards, by another letter, 
 upon a further treaty concerning the marriage, 
 he receded from the proposals of his letter. 
 And, at some time afd rwards, he declared, that 
 he would agree to what was propounded in 
 his first letter. It was held, that this letter 
 was a sufficient promise in writing!; and that
 
 ( 101 ) 
 
 the last declaration had set up again the terms 
 in the first letter. Reliance, however, should 
 never be placed on a mere letter. 
 
 Equity will, in some cases, relieve a party, 
 on the ground of fraud, although there is not 
 a valid agreement. A man of the name of 
 Halfpenny, upon a treaty for the marriage of 
 his daughter, signed a writing, comprising the 
 terms of the agreement ; and afterwards de- 
 signing to elude the force of it, and get loose 
 from his agreement, ordered his daughter to 
 put on a good humour, and get the intended 
 husband to deliver up the writing, and then 
 to marry him, which she accordingly did ; and 
 Halfpenny stood at the corner of a street, to 
 see them go by to be' married, and afterwards 
 refused to perform the agreement. He was, 
 however, compelled by equity to do so ; al- 
 though, while the case was before the court, 
 he walked backwards and forwards, calling 
 out to the judge to remember the statute, 
 which he humorously said, Ida, I do ; and 
 h 3
 
 ( 102 ) 
 
 he held the case to be out of the statute, oa 
 the ground of fraud. 
 
 In settling an incumbered estate, you 
 should always make some provision for pay- 
 ment of the incumbrances, otherwise the in- 
 cumbrancer might, as sometimes has happened, 
 enter and receive all the profits, to the exclu- 
 sion of your wife and children. Where a con- 
 siderable jointure is provided for a wife, and 
 large portions for younger children of the 
 marriage, it is desirable to appropriate a part 
 of the estate for each, and not to charge the 
 whole estate with both. If you make a set- 
 tlement on a son's marriage, in your life-time, 
 you should make some provision for the event 
 of his dying before you, leaving children. A 
 fund must be provided for their maintenance 
 in that event] 
 
 The common settlement on a marriage, 
 of the intended husband's real estate, is to the 
 husband for life, then to secure the wife's 
 jointure and the younger children's portions
 
 ( 103 ) 
 
 and subject thereto ; to the first, and other 
 sons, successively in tail ; and then to the 
 daughters as tenants in common in tail, with 
 cross remainders in tail, and ultimately to the 
 husband in fee. The operation of such a set- 
 tlement, is to give the estate after the hus- 
 band's death, subject to the jointure, and 
 younger children's portions, to the eldest son, 
 and after him to his issue ad infinitum ; and 
 if they fail, to the other sons, and their issue, 
 successively in like manner. If they all fail, 
 then the daughters take equally, and the 
 share of each daughter goes to her issue in 
 like manner ; but if there is a failure of issue 
 of any daughter, her share goes over to the 
 other daughters and their issue. If all the 
 children die without issue, the estate reverts 
 to the husband, and he may dispose of it by 
 deed or will, subject to the interests of his 
 widow and children. The estates which chil- 
 dren thus take are termed estates tail. When 
 the eldest son attains twenty-one, he, and his 
 father together, can unfetter the estate, and 
 
 h 4 /
 
 ( 104 ) 
 
 re-settle it as they please, subject only to th®. 
 jointure and portions. And after the father's 
 death, the son may do it by himself: nor can 
 the father defeat his power of alienation. 
 Where a son attains twenty-one, in his fa- 
 ther's life-time, the father frequently grants 
 his son a provision during their joint-lives, in 
 consideration of which the son joins with his 
 father in re-settling the estate in such manner 
 that if he dies without issue, the estate may 
 go over to the younger branches of the fa. 
 mily. Sometimes, instead of a rent-charge, 
 the estate itself is given to the wife for life, 
 after her husband's death j in which case the 
 son cannot, after his father's death, and during 
 her life-time, unfetter the estate without her 
 concurrence. 
 
 The desire of continuing an estate in the 
 male branch frequently induces the parent to 
 give the estate, in the first instance, to the 
 issue male of his sons, with remainder to his 
 daughters, not altogether, but successively, 
 and to thejr issue male only ; and in that case
 
 ( 105 ) 
 
 no provision is made for the female issue of 
 his sons and daughters, unless there is a failure 
 of issue male. This mode of settlement, a 
 lawyer would shortly describe thus : to the 
 first and other sons, successively in tail male ; 
 remainder to the first, and other daughters 
 successively in tail male ; remainder to the 
 first, and other sons successively in tail gene- 
 ral ; remainder to the first, and other daugh- 
 ters successively in tail general. The mischief 
 of this plan is, that the estate may go back- 
 wards and forwards from one branch of the 
 family to the other. Thus if you have an only 
 son, and he dies, and leaves a daughter, but 
 no son, the estate will go over to your eldest 
 daughter ; but if she dies, and leaves no son, 
 although she leaves daughters, 4he estate will 
 belong to the daughter of the eldest son. 
 
 It is very usual to give the estate merely 
 to the issue male of the marriage, and then to 
 direct it to revert to the parent, subject to the 
 widow's jointure, and the daughters' portions j
 
 ( 106 ) 
 
 but where this plan is adopted, additional 
 portions are mostly provided for the daugh- 
 ters, in case there is a failure of issue male. 
 On the other hand, an estate is sometimes 
 given amongst all the children, as well sons as 
 daughters, and their issue equally ; in which 
 case, of course, no money is directed to be 
 raised for the portions of younger children. 
 
 In making a marriage settlement, a man 
 should always look to a future marriage. His 
 wife may die young, leaving an infant family, 
 and he may have no power to jointure any 
 other wife, or to provide portions for the 
 children of any other marriage. The same 
 observations apply to a woman who is about to 
 settle property on her marriage. 
 
 Sometimes a separate provision is made for 
 a wife during her husband's life-time. This is 
 called pin-money. It is always the first 
 charge on the estate, so that the husband 
 takes subject to it. If, however, a wife permit 
 her husband to receive her pin-money, or what
 
 ( 107 ) 
 
 is the same thing, don't claim It, and ht 
 maintain her, she cannot, after his death, com- 
 pel payment of the arrears out of his estate. 
 
 It is usual to reserve such powers in a set- 
 tlement as will conduce to the benefit of the 
 parties, or the estate. Thus powers are al- 
 most always given to grant building leases, 
 and leases at rack or full rents, and even 
 to sell the estates and buy others, or to ex- 
 change them for others. Sometimes a party 
 objects to the introduction in his settlement of 
 powers to lease, or to sell and exchange ; but 
 it is almost useless to make such an objection, 
 for the settlor himself may wish to have such 
 powers during his own lifej and after his 
 death, the persons succeeding to the estate, 
 may with cv e get the omission supplied by a 
 private act of parliament. Where an undi- 
 vided part of an estate is settled, a power 
 should be given to the trustees, to join in a 
 partition of the entirety, and take back a 
 divided part of the estate. 
 
 In executing the powers vested in you by
 
 ( 108 ) 
 
 your settlement, you must always be guided 
 by good faith : if under a power to lease at 
 rack or full rent, without taking a fine or pre- 
 mium, you accept a bonus, you commit a 
 fraud on the power, and your lease will ac* 
 cordingly be void ; if you exercise a power to 
 jointure your wife, with a stipulation that she 
 shall join with you in securing your debts 
 on her jointure, the appointment will be void. 
 Nor must you abuse your authority. If you 
 have a power to sell settled estates, and to lay 
 out the money in the purchase of other estates j 
 although there is a direction in the settlement, 
 that until a purchase is found, the money shall 
 be laid out in the funds ; yet the intent of the 
 power is, that one estate shall be sold only for 
 the purpose of laying out the money in the 
 purchase of another. Therefore you cannot 
 sell the estate, in order to keep the purchase- 
 money out at interest, for that would increase 
 your income at the expense of the capital. It 
 would, it is true, give you five per cent, instead 
 of three j but the same money would not, at a
 
 ( 109 ) 
 
 distance of time, purchase an estate of the 
 same value as that which you sold. 
 
 In some instances, equity will restrain rights 
 given hy a settlement, with which you may con- 
 ceive that they ought not to interfere. Under 
 your marriage settlement, you are tenant for 
 life, without impeachment of Waste, or in other 
 words, you are not punishable for committing 
 waste, and consequently you may legally cut 
 down as much timber on the estate as you 
 please. But still equity will not suffer you to cut 
 down any trees which are an ornament, or af- 
 ford shelter to the mansion-house, or to any of 
 the buildings on the estate, or which grow for 
 ornament in any of the vistas, avenues, walks, 
 pleasure-grounds, or plantations, on the estate. 
 Nor can you justify the act, by having your- 
 self planted even millions of trees on the estate 
 subsequently to the settlement ; therefore, if 
 a man making a settlement really mean to re- 
 serve power to cut whatever timber he please, 
 whether it afford ornament or shelter, or not, 
 the intention should be expressly declared in
 
 ( no ) 
 
 (he settlement. The power which the courts of 
 equity have assumed, to restrain the exercise 
 of the right, which the words " without im- 
 " peachment of waste" confer at law, is a 
 power which one cannot but lament they should 
 possess. The court can, in general, ouly judge 
 of the ornament or shelter afforded by the 
 trees from the affidavits in the cause. Men 
 unhappily are but to ready to support the 
 cause of their principal, without always con- 
 sidering- sufficiently the justice of it: affida- 
 vits flatly contradicting each other are, in 
 these cases, almost invariably made by the 
 agents of the different parties. This facility 
 of restraining a tenant for life from exercis- 
 ing his legal right, foments and irritates do- 
 mestic strife ; makes the son the shameless 
 antagonist of his parent in an open court of 
 justice, and fixes into eternal enmity that 
 disagreement which conciliation might hap- 
 pily have effaced, If such a proceeding 
 wound the peace of a parent, in the evening 
 of his days, how severe a punishment does th«
 
 ( 111 ) 
 
 child inflict on himself! To save a few pe- 
 rishable trees, he preserves, whilst they last, 
 a monument of his want of filial duty : he 
 keeps a signal to remind his own children of 
 the duty which they owe to him. I remember 
 a pretty little story which you may not think 
 inapplicable to this subject. — A father gave 
 up his estate to his son, and went to dwell in 
 his son's house. The son soon neglected the 
 unhappy parent. One day in particular he, 
 by ill usage, drove the poor old man from the 
 company at dinner to his own room, where, 
 with (oars, he lamented the bitter ingratitude 
 of his son. A child of ihe son's came into the 
 dining-pariour, and said thai his grandpapa 
 was crying. Go, said jtbe unnatural son, and 
 give him a blanket to go begging in. No, 
 said the child, I will give him half only.— 
 "Why half only? — I will keep the other half 
 against I turn you out a begging, when 1 am a 
 man. 
 
 Equity will also restrain a tenant for 
 life, although without impeachment of waste,
 
 ( 11:2 ) 
 
 from defacing or pulling down the mansion- 
 house. This was done in the year 17 16, in 
 Lord Bernard's case. He had almost tofally 
 defaced the mansion-house, by pulling down 
 great part of it, and was going on entirely to 
 ruin it, whereupon the court not only enjoined 
 him not to proceed further, but compelled him 
 to re-build, and put it in the same plight 
 and condition it was at the time of his entry 
 thereon. 
 
 Where money, to any amount, is settled, 
 a power should be reserved of laying it out in 
 land, to be re-sold when convenient, and in the 
 mean time to be treated as money. 
 
 In money settlements generally, and some- 
 times even in settlements of real estate, a power 
 is reserved to the parent to appoint the pro- 
 perty to all, or such of the children as he shall 
 think fit. If the power is only to appoint the 
 proportions amongst the children, he cannot 
 exclude any : every one must have a share, 
 and although the gift of a share merely nomi- 
 nal would be a bad execution of the power,
 
 ( 113 ) 
 
 jet he may make a vast disproportion in the 
 shares. Of course, where the power is to 
 appoint to any exclusively, he may give all to 
 one. But still in this, as in all other cases^ 
 the power must not be abused. An appoint- 
 ment cannot be made to a child under any sti- 
 pulation for the parent's benefit ; for example^ 
 that he shall join in a sale of the estate, al- 
 though the child may, after the appointment, 
 if he think fit, join with his father in selling 
 the estate, and the transaction cannot be im- 
 peached, if the money is fairly paid to the 
 father and son. So if you have a power to 
 appoint a sum to any of your children, at what 
 age you please, you cannot appoint it to a sickly 
 child, under age, in order that upon his death 
 you may ^et it as his administrator. 
 
 Almost any instrument, however informal, 
 Upon which the intention clearly appears, will 
 be deemed in equity a good execution of a 
 power of jointuring, or of appointing pro- 
 perty to your children; but such difficulties 
 arise in these cases, that I cannot too much 
 I
 
 ( H4 ) 
 
 impress upon you the necessity of never doing 
 any act in relation to estates over which you 
 have only a power, without first applying to 
 your solicitor. 
 
 Where a power is given to appoint a fund 
 amongst children, and the property is given to 
 them in default of appointment, it is mostly 
 declared, that no child shall take a share of any 
 part unappointed, without bringing his appoint- 
 ed share into hotchpot — which word hotch- 
 pot, our famous judge Littleton, with great 
 gravity, tells us is, in English, a pudding. 
 The object of this provision is to compel a 
 child, to whom part is appointed, to bring his 
 appointed share into the general fund, if lie 
 is desirous to take a share of the part unap- 
 pointed. Thii.^, suppose there to be two chil- 
 dren, and the fund to be ^£200, if you 
 give £10 to one, he must give up that, in 
 order to obtain an equal share of the £200 
 with the other child. This you should al- 
 ways keep in view, and more particularly 
 where there is not such a clause iu the settle-
 
 ( US ) 
 
 merit ; for in that case a child would not only 
 take the part actually appointed to him, but 
 would be entitled equally with the other chil- 
 dren' to the residue, although this can seldom 
 be the intention of the party executing the 
 power. 
 
 If you should ever covenant to purchase and 
 settle estates, you will, if you are wise,, perform 
 the covenant in your life-time. However, if 
 you do purchase estates, which are proper io 
 go in performance of your agreement, they 
 must go accordingly, although you have per- 
 mitted them to descend to your heir ; conse- 
 quently he will not be entitled to retain them 
 for his own benefit. 
 
 It is not unusual for a parent upon a 
 daughter's marriage, to agree to leave her at 
 his death, a fortune equal to his other chil- 
 dren. Such an agreement does not confine 
 or restrict the father's power ; he may alter 
 the nature of his property from personal to 
 real, or he may give scope to projects, or in- 
 dulge in a free and unlimited expense — but 
 
 i 2
 
 ( H6 ) 
 
 lie will not be allowed to entertain mere partial 
 inclinations and dispositions towards one child, 
 at the expense of another. If his partiality 
 does rise so high, and he will make a differ- 
 ence, he must do it directly, absolutely, and by 
 a gift surrendering all his own right and inte- 
 est, he must give out and out ; he must not 
 exercise his power by an act, which is to take 
 effect, not against his own interest, but only at 
 a time when his own interest will cease. He 
 cannot, for instance, give property in his life- 
 time to one child, reserving the interest to him- 
 self; for such a gift is, in fact, testamentary, and 
 in fraud of his agreement. 
 
 If after you have disposed of an estate by 
 will, you make a settlement of it, under which 
 the estate is still vested in you, subject to the 
 interest given to others j I advise you to repub- 
 lish your will. Partial interests may in some 
 cases be created, so as not to affect the ope- 
 ration of a prior will as to the interest left iu 
 the settlor ; but the form of settlements is ge- 
 nerally such as to revoke a prior will: and,
 
 ( H7 ) 
 
 therefore, if you only settle the estate on your 
 wife for life, you should cautiously inquire 
 whether the conveyance renders a republica- 
 tion of your will essential, or, perhaps, it 
 would be better to re-publish your will without 
 inquiry. 
 
 Sometimes a man is advised, under the cir- 
 cumstances of his title, to levy a fine, or suffer 
 a recovery. Now these acts operate as a 
 revocation of a prior will ; and, therefore, if 
 you should do either, immediately afterwards 
 re-publish your will. 
 
 I have no more cautions to give you as to 
 settlements, and therefore adieu. 
 
 I 3
 
 { 118 ) 
 
 LETTER XII. 
 
 I now write to you upon the last subject ou 
 which I have promised you any information. 
 It has been in some measure anticipated in my 
 third letter : and the 11th contains a few hints 
 as to re-publishing your will. 
 
 Before making >our will, there are many 
 
 questions which you must ask yourself! — Is 
 
 it j i obubie that I shall be much in debt at my 
 
 dece ise ? -hat is the nature of my property ? 
 
 Is arr part of it already settled on my family ? 
 
 Have I char; red poriu :s on .my part of it for 
 
 in* childi n ? Is my wife dowable of any 
 
 part .<f it ? These are questions which you 
 
 should resolve before you give instructions for 
 
 your will. If any part of your family estate 
 
 is leasehold, you should direct it to go along 
 
 with the estate with which it is held. This 
 
 easily effect, to the utmost limits 
 
 h the law allows. If your children are 
 
 to portions, you should declare, whe-
 
 ( "9 ) 
 
 ther you intend what you give them by your 
 will to be in addition to their portions, or in 
 satisfaction of them. The same observation 
 applies to your wife's dower ; for if you even 
 give her an annuity out of the very estate of 
 which she is dowable, yet she will be entitled 
 to her dower also, unless you declare it to be in 
 lieu of dower. 
 
 If you have given your children legacies by 
 your will, and afterwards advance portions with 
 them on their marriage, you should declare, by 
 a codicil, whether they are still to be entitled 
 to the legacies. 
 
 Should you wish family pictures or plate, 
 or other valuable articles to go with your estate, 
 you should give them as heir-looms. 
 
 If you have a copyhold estate, you must 
 carefully surrender it to the use Off your will, 
 and I advise you to expressly devise it as copy, 
 hold estate. If, indeed, you make other pro- 
 visions for your heir at law, which he is 
 desirous to take, he will, on the principle 
 of election, be bound to make good your dis- 
 
 i 4
 
 ( 120 ) 
 
 position of your copyhold estates, although not 
 surrendered to the use of jour will. But upon 
 this you should never rely. Immediately after 
 you are admitted to a copyhold estate, surren- 
 der it to the use of your will. 
 
 In giving instructions, where you wish 
 your estate to remain in your family, state to 
 your solicitor, whether you mean your sons' 
 daughters to be preferred to your own or not ; 
 and whether your sons' daughters are to be 
 preferred to your daughters sons, and so on j 
 and also state what powers you wish them to 
 have — as to lease, jointure, grant portions for 
 younger children, sell and exchange, &c. 
 Never in your will say generally, that your 
 debts shall be paid. Such a declaration al- 
 ways creates a question out of what fund they 
 are payable ; for as you are not in trade, your 
 real estate is by law exempt from your simple 
 contract debts, that is, debts not secured by 
 bond, judgment, or the like. The fund out 
 of which your debts arc to be paid should be 
 particularly specified. I need not remind you,
 
 ( 121 ) 
 
 that he who neglects to provide a sufficient 
 fund for payment of his debts, is justly said to 
 sin in his grave j and yet it is, as it seems to 
 me, very far from desirable, that the legisla- 
 ture should put real estate on the same footing* 
 in this respecc with personal property. 
 
 I am somewhat unwilling to give you any 
 instructions for making your will, without 
 the assistance of your professional adviser, 
 it is quite shocking to reflect upon the liti- 
 gation which has been occasioned by men 
 making their own wills. To put off making 
 your will, until the hand of death is upon you, 
 evinces either cowardice or a shameful neglect 
 of your temporal concerns. Lest, however, 
 such a moment should arrive, I must arm you 
 in some measure against it. 
 
 If your estate consists merely of what is 
 called personalty, as money, goods, leasehold es- 
 tates, and the like, you may make your will 
 jourself, without any witness ; and any two 
 persons who know your hand-writing, may, after 
 your death, prore it. But it is better to have
 
 ( \%2 ) 
 
 > r 
 
 witnesses, in order that the execution of the 
 will may be proved without difficulty. Bat 
 if you make your will by yourself, do not put 
 upon it any attestation, as it is termed, for a 
 witness to sign. If you do, and afterwards ne- 
 glect to get a witness to sign it, your will 
 will be deemed incomplete, on the ground that 
 you did not intend it to operate until it was 
 attested. The attestation to a will of person- 
 alty generally runs, <f Signed and published by 
 the above-named testator, in the presence of us;'* 
 and under this the witnesses sign their names. 
 In making your will always appoint an executor, 
 which ma) be done in these words, C( I appoint 
 my friend William Stewart, executor of this 
 my will." 
 
 It is not uncommon for a man to make his 
 own will at intervals. If a man will act so 
 unadvisedly, he should icgularly sign his name 
 where he leases off, declaring that he means 
 what precede- t>> stand for his will. If he 
 neglect this, however numerous his dispositions 
 inav be, they will all be held void on the
 
 ( 123 ) 
 
 ground that the will is incomplete. And if 
 the will comprise real estate, it must be at- 
 tested in the same manner as if it were a com- 
 plete will, of which I shul! presently speak. 
 
 In giving a leasehold estate, do not be- 
 queath it generally, or during your present 
 term, but give it " for all the term which 
 you shall.be entitled to therein, at the time 
 of your decease." For unless you adopt this 
 mode, a renewed lease will not pass by your 
 will, without a republication. And if the 
 estate is held for lives, and not for years, you 
 must republish your will, in case you renew 
 the lease. 
 
 Never give a legacy of stock or money as 
 part of any fund in your possession, but give 
 it generally. For if you give a man 500/. 
 part of the 8 per cents, standing in your name, 
 that will make the legacy specific ; and if you 
 afterwards sell the stock the legatee will lose 
 his legacy, although you should die worth 
 millions ; but if you give him 500/. 3 per cents. 
 generally, your executor must buy that sum
 
 ( 124 ) 
 
 for the legatee out of your personal property, 
 if you leave no stock to answer it. 
 
 To pass real estate, the statute of frauds 
 (c9 Charles II. c. 5. s. 15.) to which I have so 
 frequentl . had occasion to refer you, requires 
 the will to be in writing, and signed by your- 
 self, or some other person in your presence, 
 and by your express directions, and to be at- 
 tested and subscribed in your presence, by three 
 or four credible witnesses. I will not disclose 
 what is deemed a sufficient compliance with 
 this provision, but I will tell you, that a pru- 
 dent man will sign and seal his will, in the 
 presence of three witnesses, tell them that it 
 is his will, and that he publishes it as such, 
 and requests them to witness it ; and he should 
 see that they do, in his presence, sign the 
 following attestation to be written at the end 
 of the will: "Signed, sealed, published, and 
 declared, by the above-named testator, as 
 and for his last will and testament, in the pre- 
 sence of us, who in his presence, and at his 
 request, and in the presence of each other,
 
 ( 125 ) 
 
 have hereunto signed our names as witnesses 
 thereto." 
 
 It often happens, that the witnesses are ser- 
 vants who cannot write, and in that case their 
 marks will be sufficient. Witnesses who only 
 make a mark, are usually called marksmen. 
 Do not let any person witness your will to 
 whom you have given a legacy, for by be- 
 coming a witness he will lose the benefit of it. 
 This the legislature found it necessary to 
 enact, in order that such witnesses might be 
 competent to prove the will ; the judges hav- 
 ing previously held, that a legacy to a witness 
 affected his competency. 
 
 There is one thing of which I must par- 
 ticularly warn you. If you were to give all 
 your goods to me, I should take the entire in- 
 terest in them, without further words j but if 
 you were to give me all your freehold, or 
 copyhold lands, without saying more, I should 
 only take a life estate in them, and after my 
 death they would go to your heir. This is a 
 distinction, which is not generally understood,
 
 ( \26 ) 
 
 except by lawyers. The books swarm wild 
 cases on questions like this. They arise daily. 
 A man thinks, when he gives his house to 
 another, that he gives hitn the entire interest in 
 it, in the same way as if it were a horse. If, 
 however, you intend to give the estate out and 
 out, you must either add what we call words 
 of inheritance to the gift, or words tantamount 
 to them. It is better not to tell you what 
 is equivalent to words of inheritance, you 
 should use the very words themselves. Thus 
 if 30U wish to give your estate in Kent to 
 your wife, not for her life merely but out and 
 out, you should give it to " her, her heirs, and 
 assigns for ever:—- "I give to my wife, her 
 heirs and assigns for ever, my mansion-house, 
 and all and singular my lands and other heredi- 
 taments in the county of Kent, with their appur- 
 tenances." These words, heirs and assigns, I 
 must observe, enlarge the gift, so as to invest 
 the devisee with the uncontroulable right in 
 the estate, and make it descendible to his heir, 
 if he do not otherwise dispose of it. Where
 
 ( 127 ) 
 
 you intend to give a life estate only, say, " I 
 give to my wife, and her assigns, during her 
 life, my mansion-house," &c. as before j and 
 if you wish the devisee for life to have a power 
 to cut timber, add, te without impeachment of 
 waste." 
 
 If you give a country-house, carefully 
 specify what closes or lands you mean to go 
 with it. 
 
 If you wish to tie up your property in 
 your family, you really must not make your 
 own will- It were better to die without a 
 will, than to make one which will only waste 
 your estate in litigation to discover its mean- 
 ing. The words "children," " issue," " heirs 
 of the body," or " heirs," sometimes operate to 
 give the parent the entire disposition of the 
 estate, although the testator did not mean any 
 such thing. They are seldom used by a man 
 who makes his own will, without leading ( 
 a law suit. It were useless for me to attempt 
 to shew you how to make a strict settlement 
 of your property, and therefore I will not try.
 
 ( 128 ) 
 
 I could, without difficulty, run over tlftf 
 names of many judges and lawyers of note, 
 whose wills made by themselves have been set 
 aside, or construed so as to defeat every inten- 
 tion which they ever had. It is not even a pro- 
 found knowledge of law which will capaci- 
 tate a man to make his own will, unless he has 
 been in the habit of making the wills of others. 
 Besides, notwithstanding that fees are purely 
 honorary, yet it is almost proverbial, that a 
 lawyer never does any thing well for which 
 he is not feed. Lord Mansfield told a story 
 of himself, that feeling this influence, he once 
 when about to attend to some professional 
 business of his own, took several guineas out 
 of his purse, and put them into his waistcoat 
 pocket, as a fee for his labour. 
 
 Always avoid, and particularly when you 
 make your own will, conditional gifts and 
 devises over in particular events. It is the 
 folly of most testators to contemplate a great 
 many events, for which they too often badly 
 provide. You give me a horse, cl and if I
 
 ( 129 ) 
 
 die/* you give it to my son. Here a question 
 at once arises, when the death is to happen — 
 Generally ? In your life-time, or in my son's ? 
 Pray avoid this, and if you must give a thing 
 over, after you have given the entire interest 
 to one, state precisely in what event, and if 
 depending upon the death of the first legatee, 
 whether you mean a death in your life-time, 
 or in the life-time of the legatee over : And I 
 must tell you, that where you have given the 
 absolute interest, you ought not to make any 
 gift over, which will not take effect in a 
 life, or lives, who shall be in existence at 
 your death. The rule goes somewhat further, 
 but I would not advise you, without advice, 
 to go beyond the line which I have marked 
 out ; and, indeed, without advice, you 
 will be more bold than wise to go even 
 so far. 
 
 Where a man has a large family to provide 
 for, it is often advisable to direct all his pro- 
 perty to be turned into money, out of which
 
 ( 130 ) 
 
 lie may order his debts and legacies to be 
 first paid, and the residue to be laid out at 
 interest in the names of trustees for the benefit 
 of his family. 
 
 If you have given a person a legacy by 
 your will, and you afterwards give the same 
 person another by a codicil, you must declare, 
 whether you mean it to be in addition to the 
 legacy in the will, or in lieu of it. 
 
 So if you have given your children legacies 
 by will, and afterwards advance them sums in 
 your lifetime, you should declare by a codicil, 
 whether you mean the sums so advanced, to 
 go in satisfaction of the legacies. 
 
 If you have, by your will, given all your 
 estates generally to the same person, and you 
 afterwards purchase any other estates, which 
 you mean to go the same way, you need only 
 re-execute, or, as it is called, republish your 
 will. Take your will, and sign and seal it 
 once more, in the presence of the former, or 
 any other three witnesses, and let them sigu 
 the following attestation at your request, and
 
 ( iyi ) 
 
 in jour presence: " Re-signed, re-sealed, re- 
 published, and re-declared by the above-named 
 testator, this 24th day of May, 1809,' as and 
 for his last will and testament, in the presence 
 of us, who, in his presence, at his request, and 
 in the presence of each other, have hereunto 
 set our names as witnesses thereto." 
 
 A. subsequent will, duly executed, will re- 
 voke a prior one, if inconsistent with it, but 
 in making a second will, it is better expressly to 
 revoke the first. You may also destroy 
 your will, by cancellation, as tearing off the 
 seal, and drawing lines across it, or by tear- 
 ing, burning, or obliterating it, although 
 verbal evidence is in these cases admissible as 
 to your intention, for the act must be done 
 animo revocandi. Therefore, if by mistake 
 you should throw ink all over your will, in- 
 stead of sand, the will would be good, if it 
 could be made out. And if you make a will 
 which you don't destroy, and then make 
 another inconsistent with the first, but with- 
 out actually revoking it, and afterwards burn 
 X 2
 
 ( 132 ) 
 
 or otherwise destroy the second, your first 
 Will thereupon revives, and is of the same 
 force as if you had not made another. You 
 must not lose sight of this. 
 
 In some instances, the courts have assumed 
 a power of making a man's will void on the 
 presumption that he himself must have in- 
 tended to revoke it. We seem to have borrowed 
 this from the civil law. The Civilians, in- 
 deed, carried the doctrine so far as to hold every 
 will void in which the heir was not noticed, 
 on the presumption that his father must have 
 forgotten him. From thi?, as Blackstone 
 reasonably conjectures, has arisen that ground- 
 less vulgar error of the necessity of giving the 
 heir a shilling, or some other nominal sum, 
 to shew that he was in the testator's remem- 
 brance. The practice is to be deprecated, as 
 it wounds unnecessarily the feelings of a dis- 
 inherited child : This you may say don't 
 always happen — " I give my sou Tom, sa)s a 
 testator in his will, a shilling to buy him a rope 
 to bang himself with. Cod grant, says Tom,
 
 ( 133 ) 
 
 upo 1 hearing the will read, after bis father's 
 death, (ha he hid lived to enjoy it himself!" 
 But not to keep you in suspense, the case in 
 which our courts hold a man's will void, al- 
 though duly executed, and not revoked, is 
 where he makes his will, and afterwards mar- 
 ries, and has a child, and no provision is made 
 l>y his will for his wife or child. It is consi- 
 dered, that he must have intended to revoke his 
 wilL But I must observe, that as the will 
 is merely held to be revoked on the pre- 
 sumption of the man's intention, this presump- 
 tion may, I conceive, be re-butted by even 
 parol or verbal evidence j therefore, if it 
 can be proved that subsequently to his 
 marriage, and the birth of his child, he de- 
 clared distinctly and solemnly, that his will 
 should stand, the presumption ceases, and 
 the will cannot be impeached. This. I ap- 
 prehend, will turn out to be the law, although 
 the question seems to be, at present, afloat. 
 In analogy to other cases, it will be found 
 difficult to refuse the evidence. It is, how- 
 
 k3
 
 ( 1^4 ) 
 
 ever, a question which ought never to arise., 
 When a man marries, he should immediately 
 make a new will to meet the obligations which 
 he has imposed on himself. If he really mean 
 his old will to stand, he should expressly 
 declare so by a codicil. 
 
 I have now only to express my hope, that 
 you may derive some benefit from my corres- 
 pondence. If it merely teach you to distrust 
 your own knowledge on the subject, it will 
 not have been written in vain. I claim no 
 merit for what I have written : it has cost me 
 little more than the labour of writing currente 
 calamo. The learning which my letters con- 
 tain is of common occurrence ; but you will 
 not, therefore, find it of less use. It has 
 been justly observed, that refined sense, and 
 enlightened sense, are not half so good as 
 common sense. The same may be said of 
 lc:ral learning:. It would have been idle in 
 uic to have furnished you with nice disqui-
 
 ( 135 ) 
 
 sitions on abstruse points of law. I have felt 
 no anxiety in any case, to point out to you, 
 how you may evade, or break inupon any rule. 
 1 have avoided the lanes and by-ways, and en- 
 deavoured to keep you in the public high road. 
 If you wander from it, the blame will rest 
 with yourself. 
 
 THE END.

 
 I N D E X. 
 
 Accidents, p age 
 
 to the estate, before the conveyance fall on the 
 
 purchaser • . . 70 
 
 ADVOWSON, 
 
 may be purchased whilst the living is vacant 74 
 
 may be purchased by a clergyman , ib. 
 
 See Mortgagee. 
 AGENT, 
 
 cannot bind his principal by bidding beyond his 
 
 authority . . . 51 
 
 of the agent's remedy, where the principal de- 
 nies the authority . . ib. 
 
 in what cases an agent may fraudulently retain 
 
 the benefit of his purchase . . ib. 
 
 a seller cannot object that the estate was bought 
 in the name of an agent, in what cases 53 
 
 AGREEMENT, 
 
 the difference between the remedy at law, and 
 
 in equity, upon an agreement . . 3
 
 I3S INDEX. 
 
 T*ge 
 
 AGREEMENT— Continued. 
 
 a partial execution of an agreement will be 
 
 compelled, in what cases < . 9 
 
 the effect of an agreement to buy or sell an 
 estate, on the property of the buyer and seller 14 
 
 if two are in treaty for an estate, and one agree 
 to let the other go on, and get the estate for 
 their mutual benefit, there must be a written 
 agreemeut . . . 59 
 
 for the sale or purchase of an estate, must be 
 
 in writing ... 61 
 
 letters, or receipts for purchase. money, are tan- 
 tamount to an agreement, in what cases 6*2 
 
 what acts are not tantamount to an agreemeut 63 
 
 in what cases equity will relieve, although there 
 
 is not a written agreement . . 01 
 
 agreement to purchase and settle estates, what 
 
 is a performance of it . .115 
 
 agreement to leave a child a portion equal to 
 
 the other children, what is a Lreach of it ib. 
 
 ANNUITY, 
 
 estate bought for an annuity, belongs to the 
 purchaser, although the annuitant dies before 
 the conveyance, in what cases . 71 , 
 
 ARBITRATION. See Price or an Estatb. 
 ATTESTATION. See Will 
 ATTORNEY, 
 
 in what cases liable for his want of skill 37
 
 INDEX. 
 
 139 
 
 Page 
 
 ATTORNEY- Continued. 
 
 a purchaser should not employ the seller's at- 
 torney ... 47 
 a purchaser is liable for any fraud committed 
 
 by his attorney ... , 4>Q 
 
 AUCTION, 
 
 seller may buy in the estate . ; 31 
 
 seller may privately appoint a person to bid, in 
 
 what cases . . • 32 
 
 bidding at an auction may be countermanded 
 
 before the hammer is down . . 50 
 
 See Agent. Conditions, 
 AUCTION DUTY . . 31,34 
 
 AUCTIONEERS, 
 
 ought not to prepare the conditions of sale 29 
 
 are entitled to retain the deposit till the con* 
 
 tract is completed . • 31 
 
 not authorised to give credit . . ib. 
 
 seller is liable in case of the auctioneer's insol- 
 vency ... ib. 
 where liable for a mistatement to a seller 32 
 BANKERS. See Deposit. 
 BARRISTERS, 
 
 cannot maintain an action for their fees 37 
 
 are not liable for want of skill . , ib. 
 
 BEQUEST. See Leaseholds. Will.
 
 140 INDEX. 
 
 BIDDING, 
 
 at an auction may be countermanded before 
 
 the hammer is down . . 60 
 
 See Auction. 
 BUYER. See Purchaser, 
 CHILD, 
 
 the effect of taking a conveyance in the name of 
 
 the purchaser's child . • 57 
 
 power to appoint to children, must not be frau- 
 dulently exercised . . .113 
 agreement to leave a child a portion equal to 
 the other children, how performed . 115 
 See Revocation <f a Will. 
 CODICIL, 
 
 effect of a codicil on after purchased estates 22 
 
 See Will. 
 CONDITIONS OF SALE, 
 
 what provisions should be contained iu them 3© 
 
 cannot be contradicted by a verbal statement at 
 
 the sale ... 50 
 
 CONSIDERATION. See Annuity. Price. 
 CONVEYANCE, 
 
 in the name of a stranger, the effect of it 57 
 
 in the name of a child, grand-child, or wife, the 
 effect of it . . . ib 
 
 COPYHOLD, 
 
 purchaser not bound to take a copyhold estate 
 
 if he contracted for a freehold . 11
 
 INDEX. 141 
 
 Page 
 COPYHOLD— Continued. 
 
 should be surrendered to the use of a will 119 
 
 should be devised us copyhold . ib. 
 
 where an heir will be put to his election, al- 
 though the estate is not surrendered to the ib. 
 use of the will . , , 
 
 DEATH. See Annuity. 
 DEBTS, 
 
 how they should be charged by will . 120 
 
 DEPOSIT, 
 
 if a purchaser is entitled to a return of his de- 
 posit, he is not bound to lake stoi k in which 
 it has been invested without his consent 67 
 
 purchaser cannot deposit the purchase-money 
 at a banker's, &c. at the risk of the seller, 
 without his assent . . fj8 
 
 See Auctioneer 
 DEVISE, 
 
 purchaser may devise an estate contracted for, 
 
 before it is conveyed to him 17 
 
 copyholds should be devised as such . 119 
 
 See Revocation. Will. 
 DOWER, 
 
 provision by will, in lieu of it, should be * x- 
 
 pressly declared to be so . . 119 
 
 ELECTION, 
 
 where the heir will be put to his . 21 
 
 EQUITY, 
 
 what it is .
 
 142 INDEX. 
 
 Page 
 EXCHANGE. See Tenant for Lift. 
 
 FALSE REPRESENTATIONS, 
 
 stranger makiug a false representation to a pur- 
 chaser is liable . . .39 
 incumbrancer denying his charge to a purchaser, 
 
 cannot recover it . . 40 
 
 See Rent. Repairs. Seller. 
 FATHER AND CHILD. See Conveyance. Sxmont. 
 FIRE, 
 
 accidents by fire before the conveyance, fall on 
 
 the purchaser . . f@ 
 
 in what cases a tenant is bound to insure against 
 
 fire . .95 
 
 FREEHOLD. See Copyhold. Leasehold. 
 FRAUD. See Agent. Agreement. False 
 Representations. Powers. Settle- 
 ments. Title. 
 GRANDCHILD, 
 
 the effect of taking a conveyance in the name of 
 
 a grandchild . . 5/ 
 
 HEIR, 
 
 selling his expectancy, in most cases relievable 63 
 estates purchased after a will go to the heir, in 
 
 what cases . . • 17 
 
 is entitled to copyhold estates, not surrendered 
 
 to the use of a will, although devised t I f> 
 
 may in some cases be put to his election ib. 
 
 of the gift of a shilling to him< . 132 
 
 iiee Copyhold.
 
 INDEX. 143 
 
 i Page 
 
 HOTCHPOT, 
 
 what it is . • • H4 
 
 HOUSE. See Repairs. 
 
 HUSBAND AND WIFE. See Jointure. Pin- 
 money. Wife. 
 INADEQUATE PRICE . . 6S 
 
 INCUMBRANCER. See False Representations. 
 
 INCUMBRANCES, 
 
 in what cases a purchaser will be relieved 
 
 against them . . .36 
 
 See Settlements. 
 
 INTEREST, 
 
 from what time payable by a purchaser 63 
 
 in what cases payable by a purchaser , 69 
 
 on purchase-mouey for timber . 70 
 
 at what rate payable by a purchaser . ib. 
 
 See Mortgage. 
 
 JOINTURE, 
 
 power to, cannot be exercised for the husband's 
 
 own benefit 4 . . I0S 
 
 JOINT-PURCHASE, 
 
 the effect of it . 5* 
 
 LANDLORD AND TENANT. See Lease. 
 
 LEASE, 
 
 purchaser having notice of lease, is bound by 
 
 all its contents . . .41 
 
 what leases may be made by parol . 93 
 
 agreements for leases must be in writing ib. 
 
 agreements for leases should contain a minute 
 
 •f the covenants . g§
 
 Pag* 
 
 144 INDEX. 
 
 LEASE — Continued. 
 
 agreement to grant a lease for 7 or 14 years, the 
 
 option is in the tenant . . . g(J 
 
 taking a fine for a lease, under a power to lease 
 
 at rack-rent, makes the lease void • gg 
 
 what amounts to a reservation of the best rent ib. 
 
 under a power, may be granted to a trustee for 
 
 the pc j r .on exercising it , .99 
 
 lease of land under a power with other land, 
 
 at an entire rent, is bad . . • ib. 
 
 renewed lease will pass by a prior will, in 
 
 what cases . „ ; 123 
 
 See Mortgagee. Mortgagor. 
 LEASE I] OLDS, 
 
 sold for a longer term than the seller is entitled 
 
 to, what is the consequence . 9 
 
 purchaser not bound to take a leasehold estate 
 
 when he contracted for a freehold . 1 1 
 
 how a leasehold estate should be bequeathed 
 See Will. 
 -LEGACIES . . 123 
 
 LET IE US, 
 
 in what cases they are tantamount to an agree- 
 ment ... 62 
 See Agreement. Leases. Purchaser. 
 Settlements. 
 LOTS, 
 
 the consequence of a s*ller not having a title to 
 
 all the lots sold i • .11
 
 INDEX. 145 
 
 Page 
 MANSION-HOUSE. See Tenant for Life. 
 
 MARRIAGE. See Settlements. 
 
 MISDESCRIPTION 
 
 of an estate, the consequences of it . 25 
 
 MISTAKE, 
 
 purchase, by mistake, of a man's own estate, 
 
 will be relieved in equity . . 72 
 
 MORAL DUTIES, 
 
 of a seller . . • • 23 
 
 MORTGAGE, 
 
 what it is . . . 77 
 
 interest cannot be made principal . 78 
 
 money cannot be repaid after day appointed 
 
 without six months notice . . ib. 
 
 MORTGAGEE, 
 
 his rights . . . 79 
 
 how he may obtain possession of the estate 81 
 
 cannot make a lease • . ib. 
 
 may qualify as a member of H. C • 82 
 
 is liable to account . 83 
 
 must not commit waste . . ib. 
 
 cannot present to an advowson „ 84 
 
 is barred by non-claim of interest for 20 years 86 
 
 may compel a foreclosure • • 87 
 
 MORTGAGOR, 
 
 his rights . .80 
 
 cannot make a lease binding on the mortgagee ib. 
 
 may vote at an election . . S2
 
 146 . INDFX. 
 
 Page 
 MORTGAGOR— Continued. 
 
 is barred by twenty years possession of the 
 
 mortgagee . . .85 
 
 unless he was under a disability . ib. 
 
 may compel a redemption . . 86 
 
 is barred by his right to redeem by fraud, in 
 what cases . . .89 
 
 NOTICE, 
 
 if property purchased is vested in a trustee, no- 
 tice of the sale should be given to him 43 
 purchaser buying with notice of the claim of 
 
 another, is bound by it . . 44 
 
 is sometimes implied . . 46 
 
 notice to the purchaser's agent is notice to him ib. 
 PAROL AGREEMENT. See Agreement. 
 PART OF AN ESTATE, 
 
 in what cases a purchaser must take a part of 
 
 the estate, when he contracted for the whole 9, 11 
 See Tithes. 
 PARTNERSHIP. See Joint Purchase. 
 PIN-MONEY, 
 
 if a wife permit her husband to receive her pin- 
 money, she cannot recover the arrears after 
 his death . . .106 
 
 POSSESSION, 
 
 must be d( livered of an estate purchased, at 
 
 the d inted, in what cases . 9 
 
 purchaser should not take possession, if the 
 title is not clear . . 42
 
 INDEJT. 147 
 
 Page 
 
 POWERS, 
 
 of sale and exchange may be exercised by te- 
 nant for life, for his own benefit . 56 
 estates cannot be sold under a power of sale 
 and exchange, in order to keep the mom y 
 out at interest . . 108 
 how powers to appoint property to children 
 
 may be exercised . . 112 
 
 how powers to jointure may be exercised 108 
 
 lease under powers . . 97 
 
 what, should be reserved in settlements 107 
 
 See Lease. Tenant for Life. 
 
 PRESENTATION, 
 
 cannot be purchased by a clergyman . 74 
 
 See Simony. Resignation Bonds. 
 
 PRICE OF AN ESTATE, 
 
 of inadequate and unreasonable prices . 65 
 
 to be fixed by arbitrators • . 67 
 
 PRINCIPAL A ND AGENT. See Agent. 
 
 PROFIT AND LOSS, 
 
 to an estate before the conveyance goes to th© 
 
 buyer's account . . 70 
 
 See Stock. 
 
 PROPERTY TAN, . 94 
 
 PUFFER, 
 
 may be appointed by a seller to bid at an auc- 
 tion, in what cases . . 33 
 
 PURCHASE-MONEY, 
 
 must be paid out of the purchaser's persona! 
 
 estate . . . 16 
 
 x2
 
 148 INDEX. 
 
 frag* 
 
 PURCHASE. MONEY— Continued. 
 
 cannot be invested or deposited by the pur- 
 chaser, at the risk of the seller, without his 
 
 express assent . • 6S 
 
 PURCHASER, 
 
 is entitled to the estate from the time of the 
 contract, and may devise it before the con- 
 veyance * • . 17 
 
 buying an estate misdescribed, with notice of 
 
 the actual state of it, is bound . 26 
 
 is entitled to what relief in respect of defects 
 
 and incumbrances . . 36 
 
 should examine the estate before he buys 38 
 
 is not bound to disclose latent advantages to 
 
 the seller, as a mine . . ib. 
 
 the effect of a purchaser taking a conveyance 
 
 in the name of a stranger, &c. . 57 
 
 should not write letters pending a contract 
 
 without what precaution . . 62 
 
 is entitled to any benefit, and must bear any 
 
 loss to the estate before the conveyance 71 
 
 SeeAGENT. Attorney. Joint Pur- 
 chase. Notice. Seller. Will. 
 RECEIPTS, 
 
 for purchase-money amount to an agreement, 
 
 in what cast's . . .61 
 
 REGISTER COUNTIES . . 48 
 
 REN , 
 
 a seller is answerable for a false statement to a 
 pui chaser ol the quantum of rent payable 28
 
 INDEX. 149 
 
 RENT— Continued. 
 
 Pagt 
 
 in what cases it must be paid by a tenant, al- 
 though the house is burned down . 86 
 
 See Lease. 
 REPAIRS, 
 
 the consequence of falsely stating a house upon 
 
 sale to be in good repair . . 8 
 REPUBLICATION OF A WILL, 
 
 in what cases a will should be republished 116 
 
 the effect of republishing a will . 130 
 
 how a will should be republished . ib. 
 
 RESIGNATION, 
 
 bond of, where valid . . 75 
 
 REVOCATION OF A WILL, 
 
 purchase of the fee by a tenant for years re- 
 vokes a bequest of the term by him . 20 
 
 subsequent will revokes a prior one, in what 
 
 cases . . . 131 
 
 how a will may be revoked . . ib. 
 
 marriage and birth of a child, a revocation of 133 
 a prior will, in what cases . . 
 
 SALE AND EXCHANGE. See Powers. Te. 
 
 nant ron Life. 
 SELLER, 
 
 must disclose what defects in the estate 23 
 
 is bound by a misdescription of the estate 25 
 
 must disclose incumbrances and defects in 
 
 the title . . . 26 
 
 may puff his property . . 27 
 
 may make what misstatements as to value or rept 28 
 
 See Agent. Axjctioxeer. Purchaser. 
 Title-
 
 150 
 
 INDEX. 
 
 Pa"; 
 
 SETTLEMENTS, 
 
 agreement for a settlement must be in writing 100 
 
 a letter is a sufficient agreement, in what cases ib. 
 
 equity will in some cases enforce a verbal 
 
 agreement by reason of fraud . 101 
 
 how an incumbered estate should be settled 102 
 
 tin- common modes of settlement . ib. 
 
 a future marriage should be provided for in 
 
 making a setlement . . 106 
 
 what pjwers should be reserved in settlements 107 
 
 See Powers. Wills. 
 SIMONY, 
 
 It is simony to purchase a vacant living 73 
 
 but not upon a prospect of a speedy vacancy ib* 
 
 it is simony to purchase a living though full for 
 
 a particular person, and then present him 74 
 
 See Advowson. Resignation Bonds. 
 
 STOCK, 
 
 deposit laid out in stock, not binding on the 
 
 purchaser without his assent . 67 
 
 purchaser cannot invest his purchase-money in 
 stock at the risk of the seller, without his 
 express assent . . .68 
 
 purchaser is not entitled to any allowance for 
 a loss in the sale of stock, if the title prove 
 bad, without any fraud in the seller . ib. 
 
 TENANT FOR LIFE, 
 
 may himsi If. under powers of sale and ex- 
 change, buy or take the settled estates in 
 . exchange ... 56 
 
 cannot sell the estate under a power of sale and 
 exchange, in order to ketp the money out at 
 interest . . 108 
 
 cannot cut ornamental timber, although not 
 
 punishable for waste . . 109 
 
 must not deface the mansion-house . 112
 
 INDEX. 151 
 
 Page 
 TIMBER, 
 
 interest on the purchase. money for timber pay- 
 able only from the valuation . 70 
 equity will not suffer a tenant for life to cut 
 
 ornamental timber . . 109 
 
 TITHES, 
 
 estate purchased free from tithes, the purchaser must 
 take the estate, although it is subject to tithes. 
 TITLE, 
 
 seller only liable nominally where he is without 
 
 fraud incapable of making a title . 13 
 
 in what cases it should be examined before a 
 
 sale . . 29 
 
 •TRUSTEE, 
 
 cannot buy the trust estate of himself , 55 
 
 See Notice. 
 
 UNREASONABLE PRICE . . 65 
 
 USURY, 
 
 what it is . . , . 77 
 
 a grant of a life annuity is not • 89 
 
 VALUE, 
 
 seller answera.ble for misstatements of value, 
 
 in what cases . . .28 
 
 VENDOR. See Seller. 
 
 WASTE, . . . .109 
 
 See Tenant for Life. 
 WIFE, 
 
 the effect of taking a conveyance in the uarae 
 
 ef the purchaser's wife . . 5J 
 
 SeeJoiNTURE. Pi v Money. Re- 
 vocation of a Will. 
 WILL, 
 
 a contract to sell an estate revokes a prior de- 
 vise or it by the seller . . 1 i 
 so, although oisly an option is given to a man 
 
 to buy if he accept it . . 15
 
 152 INDEX. 
 
 Fajr. 
 
 WI LL — Contin tied. 
 
 purchaser may devise an estate before it is 
 
 conveyed to him . . 17 
 
 bus if a title cannot be made by the seller, the 
 
 devisee will not be entitled to it . 19 
 
 purchase of ihe fee by tenant for years revokes 
 
 a bequest of a term by him . . 20 
 
 estates purchased after a will r'on't pass by it 21 
 
 effict of a codicil on after-purchased estates 22 
 
 where it should be republished . 116 
 
 •what instructions should be given for a will 120 
 
 how debts should be charged • . ib. 
 
 of personalty, may be without witnesses 121 
 
 should not have an attestation for witnesses to 
 
 sign at a future time . . 122 
 
 of personalty, how it should be attested ib. 
 
 of copyholds mortgaged . . 80 
 
 of real estate, how it must be executed and at- 
 tested . . . 124 
 who may be witnesses . . 125 
 how an estate should be devised, where it is in- 
 tended to be given out and out . ib. 
 additional legacies to the same person, what 
 
 declaration should be added to them 130 
 
 the effect of republishing a will . ib. 
 
 how to be republished c . ib. 
 
 revoked by a subsequent one, in what cases 131 
 
 how it may be revoked . . ib. 
 
 marriage and birth of a child a revocation of a 
 
 prior will, in what cases , . 13S 
 
 See Copyholds. Dower. IIeik. 
 WITNESSES. See Will. 
 IVR [TIEN AGREEMENT. See Agreement. 
 
 R, WilkSj Printer, 89, Chancery lane.
 
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