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 Annex 
 
 PREFACE. j, 
 
 01 o 
 
 r I ^HE motive from whence this compilation 
 -*- originated, (for these sheets can hardly de- 
 serve a higher name,) was the daily observation of 
 the mischiefs attending the neglect of that duty 
 which every man owes to his family, friends, or 
 dependants, in the disposal and settlement of his 
 property by Will. A neglect arising from a 
 variety of causes ; the suddenness and violence 
 of bodily indispositions, the distance of legal 
 assistance, and the frequent mental incapacity of 
 many persons to act for themselves, in this con- 
 juncture. 
 
 LET it be understood, that this is not intended 
 as a treatise on all the nice distinctions which have 
 so long arisen, and still continue to arise, on the 
 construction of Wills : the legal questions which 
 are so repeatedly contested in courts of justice are 
 beyond the understanding of the common class of 
 men, who cannot easily comprehend subtleties 
 familiar to a lawyer. This work is meant for the 
 use of such persons, chiefly, as are not acquainted 
 a 2 either
 
 VI PREFACE. 
 
 cither with the doctrines or the forms of la\v ; but 
 who wish to be instructed how to act, without 
 being under the necessity of communicating the 
 knowledge of their private affairs to any other 
 person. 
 
 IT has been frequently lamented, even from the 
 bench, and at the bar, that the construction which 
 the law inforces in certain cases of Wills has been 
 supposed, and sometimes acknowledged, to be 
 directly opposite to the real intent of the maker of 
 the Will ; owing to the legal construction of the 
 words in which persons sometimes, unnecessarily, 
 choose to express that intention. The propriety, 
 h&wever, of abiding by rules laid down on the 
 mature consideration of ages, has overbalanced 
 the reluctance which must have arisen in the 
 minds of the Judges, in innumerable decisions. 
 The piibHc good and safety required the sacrifice 
 of private interest, and these decisions must serve 
 as beacons to warn all persons against settling 
 matters of moment, without legal advice and 
 assistance but unfortunately this is not always' at 
 hand, nor indeed in the power of every one ; and 
 oftentimes in those instances where it is of the 
 greatest importance, the time unavoidably taken 
 up in procuring it puts an end to the capacity of 
 profiting by it. 
 
 JUDGE BLACKSTONE, in the introduction to his 
 excellent Commentaries on the Laws of England, 
 
 inforcing
 
 PREFACE. Vll 
 
 info .ng the necessity of a competent knowledge 
 of law to every person, recommends some ac- 
 quaintance with the law of Wills to physicians 
 and apothecaries, to enable them to afford assist- 
 ance to their patients in this instance, as well as 
 in their professional capacity. The utility of this 
 knowledge must, indeed, forcibly strike those 
 gentlemen ; and if in country villages the clergy 
 would turn their thoughts a little to this matter, it 
 might be no small step towards preparing the 
 mind of the sick, and putting them into a situation 
 the better to attend to those offices, which are 
 more peculiarly within the province of the Divine 
 to enforce and assist in. This was the opinion cf 
 our ancestors, with whom it was a general rule 
 to call in the clergyman of the parish to assist in 
 making the Will ; which was then deemed a 
 solemn and almost indispensable act, even by those 
 who had but little to dispose of. Repeated in* 
 stances of this occur in the old registries of Wills, 
 where the name of the curate continually appears 
 as a witness ; and by whose exhortation chiefly we 
 may suppose they were in general made ; from 
 the almost universal custom of pious bequests for 
 the benefit of the soul of the deceased. If this 
 were a superstition, it must be allowed that it was, 
 as to this point at least, a beneficial one ; and it 
 would be well if other motives, as strong, would 
 at this day produce the same effects. 
 
 IT
 
 X PREFACE. 
 
 year, it is highly probable that innumerable law- 
 suits and disputes would be prevented. 
 
 IN the two concluding chapters, and in the 
 Appendix, particularly No. IX. directions are 
 given for the conduct of Executors and Adminis- 
 trators ; to render the discharge of their duty safe 
 and pleasant in proving and performing the Will, 
 and paying the debts and legacies of the Testator ; 
 and in distributing the estates of those who die 
 without Will, according to the rules of law. 
 
 THE Author was ever sufficiently aware of the 
 defects which must inevitably arise from a first 
 attempt of this nature ; he ventures to call it a first 
 attempt, since whatever had previously appeared 
 on this subject was addressed to the perusal and 
 consideration, and suited, chiefly to the compre- 
 hension of lawyers only ; which is the reason why 
 much excellent knowledge lies dead and unnoticed 
 by the many who wish to have advice conveyed to 
 them in a way suited to common capacities. For 
 these reasons particular care has been taken in this 
 book to avoid the appearance of formality or the 
 UNNECESSARY use of law terms ; but no diligence 
 has been spared to render the directions given 
 strictly legal ; that though not extended beyond 
 the daily occurrences of the middling state of life, 
 they may serve as a faithful guide, as far as those 
 extend. The forms suiting those common oc- 
 casions
 
 PREFACE. XI 
 
 casions may, it is trusted, be depended on ; and 
 the practical instructions given, through the whole, 
 are intended to prevent any mistakes in the appli- 
 cation. 
 
 THE work has met with so much success and 
 indulgence from the public, that, though capable 
 of numerous improvements in the eye of a lawyer, 
 it is now again published, with some additions, 
 in that form and manner which has been found so 
 convenient to the general class of readers, for 
 whose perusal it was, from the first, exclusively 
 intended. 
 
 THE utility of it has been evinced by its great 
 circulation. The Author, now engaged in more 
 laborious pursuits, while he is perhaps too partial 
 to this first effort of his pen, is yet desirous of 
 obliterating it, in the minds of the Profession, by 
 productions worthy their attention and applause j 
 the present, he is conscious, must ever have been 
 beneath their notice. 
 
 Hall Stair Case, Inner Tcmpk, 
 1301.
 
 Xll PREFACE. 
 
 IT has been thought useful to subjoin an ex- 
 planation or definition of such law-terms as are 
 immediately connected with the subject j and 
 which inevitably recur, with some frequency, in 
 the course of the following pages. 
 
 Testator, The person who makes the Will. 
 
 Intestate, A person who dies without a Will. 
 
 Intestacy, The dying without a Will. 
 
 Real Estate, or Realty, Freehold Lands, or 
 Houses, &c. 
 
 Personal Estate, or Personalty, Money, Leases 
 for Years, and .all other property not 
 freehold ; in which, for some particular 
 purposes of Wills, are included Copy- 
 holds. 
 
 Legatee Devisee, The person to whom a legacy 
 or devise in money or land is given by 
 Will. 
 
 Legacy Devise, A sum of money or estate given 
 by Will. Legacy is generally used in 
 cases of money : Devise in cases of land. 
 
 Heir at Law, The person entitled to the real 
 estate of the deceased, in case there is 
 no Will. 
 
 Next
 
 PREFACE. Xlll 
 
 Xe.tt of Kitty The person or persons entitled to 
 the personal estate, in such case. 
 
 Executor, The person named by a Testator, and 
 intrusted by him with the execution of 
 his Will. 
 
 Executrix, A woman made Executor. 
 
 Administrator, -The person to whom the distri- 
 bution of the personal estate of the de- 
 ceased is committed, by the Ecclesiastical 
 Court, when there is no Executor. 
 
 Administratrix, rA. Female Administrator. 
 
 Probate, The copy of a Will on stamps, and 
 proved in the Ecclesiastical Court. 
 
 Administration, or Letters of Administration, The 
 instrument by which the Ecclesiastical 
 Court gives authority to the Administra- 
 tor to act. 
 
 Assets, The estate and effects of the Testator, or 
 Intestate, in the hands or power of an 
 Heir, Executor, or Administrator; liable 
 to pay debts and legacies. 
 
 Descent, The rule and manner by which real 
 estates come to the Heir at Law. 
 
 Distribution, The rule and manner by w-hich 
 personal estate is divided amongst the 
 Next of Kin. 
 
 Fee-Simple An estate to one and his heirs forever. 
 
 Fee-Tail, or Estate-Tail,- An estate given to one 
 for life, and his children after him. 
 
 Half-blood^
 
 XIV PREFACE. 
 
 Half-blood> Children by the same fath.er, but 
 different mother or on the contrary. 
 
 Feme Covert, A married woman. 
 
 Feme Sole, An unmarried woma'n. 
 
 Nuncupative Will, -A Will made by word of 
 mouth. 
 
 Residue, The remainder of the estate and effects, 
 after payment of debts and legacies. 
 
 Residuary Legatee, The person to whom such 
 residue is given by Will. 
 
 Personal Representatives of the deceased, Execu- 
 tors or Administrators ; as the case may 
 happen. 
 
 CONTENTS.
 
 CONTENTS. 
 
 CHAP. I. 
 
 HAT a Will is; what a Codicil z>; 
 Rule as to the Execution and Repub- 
 lication of them l to 15 
 
 CHAP. II. 
 
 Who may make Wills, and who are* by 
 
 Law prevented from doing so - 16 >28 
 
 CHAP. III. 
 
 What may or may not be disposed of by 
 Willy Lands, Leases, Personal Es- 
 tate, Xc. - - r - 29 40 
 
 CHAP. IV. 
 
 Of the Disposal of Lands by Will; Descrip^ 
 tion of Freehold Lands ; Rules as to 
 the devisi?tg and settling them 41 54 
 
 CHAP. v. 
 
 Rules as to executory Devises of Land; 
 
 and as to contingent Remainders - 55 65 
 
 CHAP.
 
 XVI CONTENTS. 
 
 CHAP. VI. 
 
 Of the Revocation of Wills; Of the Dis- 
 posal of the Lands and Goods of such 
 as die without Will ; Rules as to such 
 Disposal, shewing who are a Maji's 
 Heirs-at-Law and Next-of-Kin ; Cus- 
 toms of London and York 66 9 i 
 
 CHAP. VII. 
 
 Qf Executor & and Administrators ; shewing 
 what they are, and the Distinction 
 between them 92 104 
 
 CHAP. VIII. 
 
 f)f the Duty of Executors and Adminis- 
 trators, in proving the Will, collecting 
 the Effects, paying Debts and Legacies, 
 and disposing of the Residue; icith 
 Rules for their Conduct in so doing 105 126 
 
 And see Appendix No. IX. 
 
 APPENDIX, 
 
 Containing Forms of Wills, Codicil, Re- 
 publication of a Will, with Notes and 
 Observations, Stamps and Duties on 
 Legacies, Receipt for Legacies, We. 
 and Table of the Expence of obtaining 
 Probate and Administration - 127 to the 
 
 End.
 
 ( xvfii ) 
 
 AMOUNT 
 
 OF THE STAMP-DUTY 
 
 ON 
 
 PROBATES OF WILLS, 
 
 OR LETTERS OF ADMINISTRATION. 
 
 Above the value of 20/. and under 100/ Ol. 10s. Otf. 
 
 Of ihe value'of 100 
 
 and under 200 
 
 <7 
 
 200 
 
 . 300 
 
 300 
 450 
 
 5 
 
 s 
 
 .' 450 
 
 600 
 
 . .11 
 
 600 
 
 800 
 
 . . .15 
 
 800 
 
 1,000 
 
 . .22 
 
 .1,000 
 
 1 ,500 . 
 
 . . . .30 
 
 1,500 
 
 . 2,000 
 
 . .40 
 
 2,000 
 3,500 
 
 3,500 
 5,000 
 
 ....50 
 60 
 
 5,000 
 7 500 
 
 7,500 
 10 000 . . 
 
 . . . .75 
 
 00 
 
 10,000 
 
 12,500.... 
 
 . . 110 
 
 12.500 
 
 15,000.... 
 
 ..135 
 
 15,000 
 
 17,500. .. 
 
 . . 16'0 
 
 17,500 
 
 20,000. . . . 
 
 . . 185 
 
 20,000 
 
 . 25,000 . 
 
 . . 210 
 
 25,000 
 
 30,000 . . 
 
 . . 260 
 
 30,000 
 
 35,000 . . 
 
 . . 310 
 
 35,000 
 40,000 
 
 40,000. . . . 
 45,000. . . 
 
 .. 360 
 . . 410 
 
 45,000 
 50,000 
 
 50 000 
 ()0,000 . . 
 
 . . 460 
 . . 550 
 
 60,000 
 
 70,000 . . 
 
 . . 650 
 
 70,000 
 
 80,000 . . 
 
 . . 750 
 
 so ooo 
 
 90 ooo . 
 
 . 850 
 
 .90,000 
 
 100.000 
 125000 
 150,000 
 175,0.iO 
 200 000 
 230,0!.0 
 300,000 
 350,000 
 400,000 
 500,000 
 
 100,000 
 125,000 
 150,000 
 175.000 
 200,000 
 250,: 00 
 300,000. . .. 
 350,000 
 400,000 
 500,000 
 or upwards 
 
 . . 950 
 1,200 
 1,400 
 1,600 
 2.000 
 2,500 
 3,000 
 3,500 
 4,000 
 -',,000 
 6,000 
 
 Probates, &c. of seamen, marines, or soldiers are exempted.
 
 FAMILIAR EXPLANATION 
 
 OF 
 
 THE LAW OF WILLS, 
 
 Sfc. 
 CHAPTER I. 
 
 WHAT A WILL OR TESTAMENT IS. 
 
 5 I. The Difference between them Distinction between Written^ and 
 
 Verbal or Nuncupative Wills. 
 a. Rules as to Nuncupative IVills. 
 3. ft 'hat a Codicil is. 
 5 4. If more Wllh or Codicils than one; and of contradictory and 
 
 double Legacies. 
 
 5 . Rules as to the Execution of Wills t and who are proper or improper 
 to be IVltnesses. 
 
 6. Of the Republic at ion of Wills. 
 
 1 . -L H E short and plain definition of a Will or 
 Testament is, that it is " the legal declaration of a 
 man's intention of what he zcills to be performed 
 after his death ;" a Will or Testament being of no 
 force till after the death of the Testator or person 
 making it. 
 
 A Will and a Testament, strictly speaking, are 
 not words of the same meaning : a Will is properly 
 limited to land, and a Testament only to personal 
 estate ; and the latter requires executors, who are 
 named, to take care and see it performed. So the 
 B word
 
 word devise seems most properly applicable to 
 the disposition of lands by Will : and bequest or 
 legacy to that of personal estate ; but in a course 
 of time the words have come to be applied indif- 
 ferently to a disposition of lands or goods, which are 
 frequently and continually distributed and devised 
 at the same time by the same Will. Wills .by which 
 lands are disposed of are regulated by several acts 
 of parliament made for the purpose, and are a con- 
 veyance unknown to the old common law, which 
 permitted a man only to dispose of his goods or per- 
 sonal property. 
 
 Upon the notion that a device of land by will ?> 
 merely a species of conveyance, is founded the 
 following distinction between such devises and 
 dispositions of personal estate ; that a devise of a 
 man's goods and personal property will operate 
 upon all such personal estate as the maker of the 
 Will dies possessed of, at whatever distance of time 
 he may die after making the Will : but a devise of 
 real estate will only operate on such estates as were 
 his at the time of executing and publishing his 
 WilL Lands, therefore, purchased after making the 
 Will, cannot pass under any devise in that Will, 
 unless the Will shall have been legally and formally 
 re-published subsequent to the purchase or contract, 
 and which re-publication is considered in law as 
 making a new Will. 
 
 These Wills and Testaments are divided into two 
 sorts ; first, written j and, secondly, verbal, or made 
 by word of mouth ; which latter the law calls Nun- 
 cupative. Written Wills, whereby land and real 
 estate, as well as personal property, are disposed of, 
 are the subject of the following pages. The verbal* 
 or nuncupative Wills, being in general very much 
 out of use, shall be treated of in a very few 'lines at 
 present, and which will contain all the knowledge 
 now necessary on the subject. 
 
 2. A NUN-
 
 2. A NUNCUPATIVE WILL, then, or one made 
 (as abovementioned) by word of mouth, extends 
 only to the personal property of the Testator, and is 
 his intention, declared in his last hours, before a 
 sufficient number of witnesses, and afterwards 
 reduced to writing. 
 
 As these verbal Wills (which were formerly more 
 in use than at present, when the art of writing is 
 become almost universal) are liable to great impo- 
 sitions, and may occasion many perjuries, an act 
 of parliament (29 Cha. 2. c. 3. commonly called the 
 Statute of Frauds) enacts, 
 
 1st, That no written Will shall be revoked or 
 altered by a subsequent nuncupative one, except 
 the same (the nuncupative Will) be, in the life time 
 of the Testator, put in writing, and read over to him 
 and approved ; and unless the same be proved to 
 have been so done by the oaths of three witnesses 
 at the least, who must be such as are admissible 
 upon trials at common law ; that is, against whose 
 credit or competency no objection can be made. 
 But where a man by Will in writing devised the 
 residue of his personal estate to his wife, and she 
 dying, he afterwards by a nuncupative Codicil 
 bequeathed to another tf all that he had given to 
 his wife ; " this was resolved to be good : for by 
 the death of the wife, in the Testator's life time, the 
 devise of the residue, made by the Will, was totally 
 void: and the nuncupative Codicil was no altera- 
 tion of the former. Will, but a new Will for the 
 residue. 
 
 2dly, That no Nuncupative Will shall be good, 
 (where the estate thereby bequeathed shall exceed 
 the value of 301.) which is not proved by the oaths 
 of three witnesses at the least, who were present at 
 the making of it; nor unless it be proved that the 
 Testator, at the time of pronouncing the same, did 
 bid the persons present, or some of them, bear 
 B 2 witness
 
 witness that such was his Will, or to that effect ; 
 nor unless such nuncupative Will were made in the 
 time of the last sickness of the deceased, and in 
 the house of his habitation or dwelling, or where 
 he hath been resident for the space of ten days or 
 more before the making of suchWill; except where 
 such person was surprized, or taken sick, being 
 from his own house, and died before he returned. 
 
 3dly, That after six months passed after thy 
 speaking of the pretended testamentary words, no 
 testimony shall be received to prove any nuncupa- 
 tive Will, except the said testimony, or the sub- 
 stance thereof, were committed to writing within 
 six days after making the said Will. 
 
 4thly, That no letters testamentary or probate of 
 any nuncupative Will, shall pass the seal of any 
 court till fourteen days at least after the death of the 
 Testator ; nor shall any nuncupative Will be at any 
 time received and proved, unless process have first 
 issued to call in the widow and next of kindred to 
 the deceased, that they may contest the same if they 
 please. Soldiers and sailors in actual service may 
 dispose of their moveables, wages, and personal 
 estate, as they might before this act. 
 
 The Legislature has, by the above restrictions, 
 provided against any frauds in setting up nuncu- 
 pative Wills, by so numerous a train of requisites, 
 that the thing itself is fallen into disuse ; and is 
 hardly ever heard of but in the only instance where 
 favour ought to be shewn to it, when a person is 
 surprized by sudden and violent sickness. 
 
 The words by which the devise is made must be 
 spoken with an intent to bequeath, not any loose, 
 idle discourse in his illness ; for the sick man must 
 require the by-standcrs to bear witness of such his 
 intention : the Will must be made at home, among 
 his family or friends, unless by unavoidable accident, 
 to prevent impositions from strangers ; it must be
 
 in his last sickness ; for if he recovers, he may alter 
 his disposition, and has time to make a writtenWill. 
 It must not -be proved at too long a distance from 
 the Testator's death, lest the words should escape 
 the memory of the witnesses (but which is permitted 
 to be remedied by their writing down within six 
 days what they heard the Testator say) ; nor yet too 
 hastily, and without notice, lest the family of the 
 Testator should be put to inconvenience or sur- 
 prized. 
 
 The law also takes notice of a particular gift, In 
 the nature of a Will, made by any one in contem- 
 plation of immediate death, which is called donatio 
 causa mortis (a gift in prospect of death). This is 
 where a man being ill, and expecting to die, gives 
 and delivers something to another, to be his in case 
 the giver dies; but if he lives, he is to have it 
 again. In every such gift there must be a delivery 
 made by the giver himself, or some person by his 
 order, in his last sickness, while he is yet alive ; for 
 the gift will not be good if the delivery is made 
 after his death. This delivery, however, may be 
 made either to the person himself for whom the 
 gift is intended, or to some other for his use, which 
 will be equally effectual, provided it is made in the 
 life time of the party giving. 
 
 3. A CODICIL is a supplement to a Will, or an 
 addition made by the person making the Will, 
 annexed to, and to be taken as part of the Will 
 itself, being for its explanation or alteration ; to add 
 something to, or to take something from, the former 
 dispositions ; or to make some alteration in the 
 quantity of the legacies, or the regulations con- 
 tained in the Will. This Codicil may also be either 
 written or verbal, under the same restrictions as 
 above mentioned with respect to Wills. 
 
 B 3 Whenever
 
 ( 6 ) 
 
 Whenever a Codicil is added to a Will or Testa- 
 ment, and the Testator declares that the Will shall 
 be in force, in such case, if the Will happens to be 
 void for want of the forms required by law in the 
 execution, or otherwise, yet it shall be good as a 
 Codicil, and shall be observed by the administrator. 
 And though executors cannot regularlybe appointed 
 in a Codicil, yet they may be substituted in the 
 room of others named in the Will, and the Codicil 
 is still good. If Codicils are regularly executed 
 and witnessed, they may be proved as Wills ; and so 
 if they are found written by the Testator himself, 
 they ought to be taken as part of the Will, as to the 
 personal estate, and proved in common form by 
 witnesses, to be the hand writing of the person 
 making the Codicil, and by giving an account 
 when, where, and how the same was found. 
 
 4. IF two Wills are found, and it does not 
 appear which was the former or latter, both are 
 void - } but if two Codicils are found, and it cannot 
 be known which was first or last, and one and the 
 same thing is given to one person in one Codicil, 
 and to another person in another Codicil, the Codi- 
 cils are not void, but the persons therein named 
 ought to divide the thing betwixt them. But if 
 the dates appear to the Wills or Codicils, the latter 
 Will is always to prevail, and revoke the former ; as 
 also the latter Codicil, as far only as it is contradic- 
 tory to the foimer; but as far as the Codicils are not 
 contradictory, they are allowed to be both in force. 
 For though J make a last Will and Testament 
 irrevocable, or unalterable, in the strongest words, 
 yet I am at liberty to revoke or alter it, because 
 my own act or words connot alter the disposition of 
 law, so as to make that irrevocable which in its own 
 nature is revocable. If in the same Will there are 
 two clauses or devises totally repugnant and contra- 
 dictory
 
 dictory to each other, it has been held that the 
 latter clause or devise only should take effect, on 
 the same principle as respects prior and subsequent 
 Wills : yet where an estate is given to two different 
 persons by different clauses of a Will, the courts will 
 be inclined to construe the devise so that the 
 devisees shall take the estate as joint tenants, or 
 tenants in common, according to the words of the 
 several devises. Where two legacies are given to 
 the same person by the same Will, or by Will and 
 Codicil, the rule is as follows : that by the devise of 
 the same sum to a person by a second clause in a 
 Will as had before been given him by a former 
 clause in the same Will, he shall only take one of 
 the legacies, and not both. But where a legacy is 
 given to a person by a Codicil as well as by a Will, 
 whether the legacy given by the Codicil be more or 
 less than, or equal to, the legacy given by the Will, 
 the legatee shall take both ; and if the executor con- 
 tests the payment, it is incumbent on him to shew 
 evidence of the Testator's intention to the contrary. 
 
 5. WITH regard to the execution of Wills, 
 several regulations have been made by the law, in 
 order to guard against any frauds in the disposition 
 of land and real estate, that having been always 
 considered of the greatest consequence. As to 
 such Wills as dispose of goods and personal pro 
 perty only, if the Will is written in the person's 
 own hand who makes it, though it has neither his 
 name nor seal to it, and though there are no witnesses 
 to it, the law has determined it to be good, if suffi- 
 cient proof can be obtained of the hand writing. 
 And even if it is in another person's hand writing, 
 though not signed by the Testator, it will be good, 
 if proof can be produced that it was made accord- 
 ing to his instructions, and approved of by him. 
 But as many mistakes and errors, not to say misfor- 
 B 4 tunes,
 
 ( 8 ) 
 
 tunes, must often arise from so irregular a method 
 of proceeding, it is the safer and more prudent way 
 for a person, at the time he executes his Will, 
 though it be only of personal estate, to call in two 
 witnesses, who- may see him sign and seal it, and 
 to whom he may declare it to be his last Will, and 
 desire them to witness it ; by this means leaving 
 less to the power of the Ecclesiastical Courts, who 
 always require two witnesses to the hand writing 
 of the Testator to be produced at the time of 
 proving the Will, if an attestation by two witnesses 
 does not appear on the face of the Will itself. 
 
 As to the disposition of land by Will, it is 
 expressly provided by the act of parliament before- 
 mentioned (29 Car'. 2. c. 3.) that all devises of 
 lands and tenements shall not only be in writing > 
 but shall also be signed by the party so devising the 
 same, or by some other person in his presence, and 
 by his express direction, and shall be witnessed and 
 subscribed in the presence of the person devising, 
 by three or four credible witnesses; or else the 
 devise will be entirely void, and the land will 
 descend to the heir at law. A Will made beyond 
 sea of lands in England, must be attested by three 
 witnesses, under this act of parliament. 
 
 In the construction of the above act of parliament 
 it has also been adjudged, that the name of the 
 person making the Will,, written nith his oicv hand, 
 at the beginning of his Will, as " I John Mills do 
 make this my last Will and Testament," is a suffi- 
 cient signing, without any name at the bottom. 
 But this seems doubtful, unless the whole Will.be 
 written by the Testator himself: and the safe and 
 proper way is to sign the name not only at the 
 bottom or end of the Will, but, as is usual and 
 regular, at the bottom of each page or sheet of 
 paper, if the Will contains more than one ; and the 
 witnesses to the\Vill, seeing the Testator sign all the 
 
 sheets,
 
 ( 9 ) 
 
 sheets, and put his seal (though this is not absolutely 
 necessary in law) as well as his name to the last 
 sheet, must write their names under the attestation 
 in the last sheet only ; as in the several forms in the 
 Appendix. 
 
 It has also been determined, that though the wit- 
 nesses must all see the Testator sign theWill, or at 
 least acknowledge the signing, yet they may do it 
 at different times ; but they must all subscribe their 
 names as witnesses in his presence, lest by any 
 possibility they should make a mistake ; and that a 
 Will is good, though none of the witnesses saw the 
 Testator actually sign it, if he owns it before them to 
 be his hand writing. And it is remarkable that the 
 act of Car. 2 does not say the Testator shall sign his 
 Will in the presence of the three witnesses, but 
 requires these three things; first, that the Will 
 should be in writing ; secondly, that it should be 
 signed by the person making the same ; and thirdly, 
 that it should be subscribed by three witnesses, in 
 his presence. But it is not at all requifite that the 
 witnesses should be acquainted with the contents of 
 the Will, provided they are able, when called on, 
 to identify the writing ; i. e. to say that the paper 
 then shewed them is the same they saw the Testator 
 sign. 
 
 The law, in order to avoid setting aside Wills on 
 mere niceties, has also settled, that though the act 
 of parliament has required that the witnesses to the 
 Will shall witness it in the Testator's presence, (in 
 order to prevent obtruding another Will in the place 
 of the true one) yet it is enough that the Testator 
 might see the witnesses ; it is not necessary that he 
 should see them signing ; for otherwise, if a man 
 should but turn his back, or look off, it might 
 make the Will void. And in a case where the Testa- 
 tor desired the witnesses to go into another room, 
 seven yards distant, to witness the Will - 3 in which 
 
 room.
 
 '(10) 
 
 room there was a window broken, through which 
 the Testator might see them ; it was by the court 
 adjudged to be a witnessing in his presence. So 
 where the Testator's carriage was drawn opposite 
 the windows of an attorney's office, in which the 
 witnesses attested the Will, this was determined to 
 be clearly in the Testator's presence. But if a Will 
 rs executed at one time, and at another time after- 
 wards the witnesses put their names to it/ the 
 Testator being then insensible, this will not be a 
 good Will, as it cannot be said to be witnessed 
 in his presence, if he is unconscious of what is 
 passing. 
 
 It is a determined point, that a Will devising 
 copyhold land, witnessed by one or two witnesses, 
 or even without any witness at all, is sufficient to 
 declare the uses of a surrender of such copyhold 
 lands made to the use of his Will ; and the reason 
 is, because the party to whom the land is given 
 becomes entitled to it by means of the surrender, 
 and not by the Will. 
 
 It is necessary also to be careful who are made 
 witnesses to the Will. Every difficulty on this sub- 
 ject will be avoided by calling in three indifferent 
 persons, (if there is any devise of lands in the Will, 
 otherwise, if the whole Will respects only personal 
 estate, two will be sufficient) who have no legacy 
 given them by the Will or Codicil which they are 
 required to witness the execution of, and not being 
 creditors to the person making the Will. Formerly 
 the Judges were extremely strict in regard to the 
 credibility, or rather to the competency, of the 
 witnesses; for they would not allow any legatee, 
 nor by consequence a creditor, where the legacies 
 and debts were charged on the real estate, to be a 
 competent witness to the devise, as being too 
 deeply concerned in interest not to wish the esta- 
 blishment of the Will j for, if it were established, 
 
 he
 
 he gained a security for his legacy or debt from the 
 real estate, whereas otherwise he had no claim but 
 on the personal effects. This determination however 
 alarmed many purchasers and creditors, and threat- 
 ened to shake most of the titles inthekingdom, which 
 depended on devises by Will. For, if the Will was 
 witnessed by a servant to whom wages were due, 
 by the apothecary or attorney whose very attend- 
 ance made them creditors, or by the minister of the 
 parish who had any demand for tithes or ecclesias- 
 tical dues, (and these are the persons most likely to 
 be present in the Testator's last illness) and if in 
 such case the Testator had charged his real estate 
 with the payment of his debts, the whole Will, and 
 every disposition therein, so far as related to real 
 property, were held to be utterly void. This occa- 
 sioned the act of parliament 25 Geo. 2. c. 6. which 
 restored both the competency and the credit of such 
 Legatees, by declaring void all legacies (and in this 
 are included devises of lands and other interests) 
 given to witnesses, and thereby removing all possi- 
 bility of their interest affecting their testimony. 
 The same statute likewise established the compe- 
 tency of Creditors, by directing the testimony of all 
 such 'creditors to be admitted, but leaving their 
 credit (like that of all other witnesses) to be consi- 
 dered, on a view of all the circumstances, by the 
 court and jury before whom such Will shall be 
 contested. And at length the courts have gone so 
 far as directly to hold the testimony of three wit- 
 nesses, who were creditors, to be sufficiently 
 credible, though the land were charged with the 
 payment of debts. 
 
 6. THE REPUBLIC ATION of Wills has already 
 been alluded to, and it may be right here to say a 
 few words concerning it. A Will a as to the dispo- 
 sition
 
 sition of land, and in some other circumstances, 
 takes effect, or is hindered from doing so, according 
 to its date ; it may therefore be necessary sometimes, 
 on certain occasions, as after mentioned, to renew 
 it, as it were, or in fact to make a new Will. And 
 if the Testator is exactly of the same mind ? as to the 
 method of the disposal of his property, and circum- 
 stances only require that the Will should bear date 
 at any particular time, it will be sufficient to call in 
 three proper witnesses, (agreeably to the foregoing 
 directions) and before them declare the signature to 
 be his hand writing, and use the same forms as in 
 the original execution. The three witnesses must 
 then sign their names to such new Will or repub- 
 lication, mentioning the date thereof; as in the 
 Appendix, Number III. 
 
 It is necessary therefore in this place to inform 
 the reader what amounts to a new publication, and 
 what are the effects of it. A new publication of a 
 Will is in truth, as has been already said, making it 
 a new Will ; so that after such publication it has 
 the force and operation of a Will just made at the 
 time of such publication. Therefore if a man by 
 his Will devises '' all his lands," and after making 
 the Will purchases other lands, and then new pub- 
 lishes his Will, this new publication has made it a 
 new Will, and consequently by the devise of all his 
 lands the newly purchased lands shall pass ; for 
 there is no necessity to make any alteration in this 
 case in the Will, the words being sufficient, upon the 
 new publication, to convey all the lands he had at 
 the time of such publication. So if a man by his 
 Will devises alt his lands to certain uses ; and after- 
 wards purchases copyhold lands, and surrenders 
 them to the uses declared or to be declared, (or to 
 the uses declared only) by his last Will ; this has the 
 effect of a republication of his Will, as to such 
 
 after-
 
 ( 13 ) 
 
 after-purchased copyhold lands, and they shall pass' 
 thereby : Or if a Testator, after making such a 
 devise, purchases freehold lands, and then makes a 
 Codicil duely executed to pass real estate ; though 
 no notice is taken of the after-purchased lands, yet 
 if the Codicil is annexed to or confirms the. Will,, or 
 (as it seems) has a reference to it, this will amount 
 to a republication of the Will, and the after- 
 purchased lands will pass under the general devise. 
 And, so inclined are the courts to effectuate the 
 intent of a Testator, where it can be done con- 
 sistently with the rules of law, such republication 
 jnay be effected by any deed (sufficiently executed) 
 referring to the Will. 
 
 The rule, as to the new publication of a Will, 
 should be understood with the following restriction, 
 viz. that the words of the Will at the time of the 
 nen" publication are such as are proper to convey the 
 lands, and also sufficiently to denote the person to 
 whom they are devised ; for if there is any change 
 with respect to the person who is to take the lands 
 by the Will between the time of the first making 
 the Will and the new publication of it, in such 
 case the new publication will not alter the intention 
 of the Will as originally made, nor change the 
 import of the words made use of, so as to make the 
 person named in the Will take in a different man- 
 ner than was intended at the time of such original 
 making the same. If therefore I devise land to 
 John and his heirs, and John dies in my life time, 
 \et a new publication after the death of John will 
 not make his heir take by the Will; for though 
 the original devise was to John and his heirs, and 
 from thence it appears to be my intention that his 
 heirs should have the land; yet because the heirs 
 were named in the Will to take by descent, as heirs 
 only, and not as the persons designed to take the 
 
 land
 
 ( i*; 
 
 land immediately, the devise to them was rendered 
 void by the death of John in my life time, and the 
 new publication of the Will could not make it 
 good ; the publication making no alteration in the 
 words of the Will, and having no other effect than 
 this, that if the words in the Will are proper to con- 
 vey and describe the person to take, and the land or 
 thing to be taken, it makes that Will, though of 
 never so long a date, to be as perfectly new as if 
 but then made. 
 
 If a man by his Will devises land, and afterwards 
 sells it to another, and re-purchases it, and then 
 republishes his Will, the land so sold and re-pur- 
 chased shall pass as if it had never been sold ; for 
 the republication made it a new Will, and the words 
 of themselves were sufficient to convey the land, 
 without any addition. 
 
 New publication of a Will is always favoured in 
 equity; and with respect to personal estate, very 
 ilender evidence will serve, though it is not safe to 
 trust to it. As if a man says, * my Will in the 
 hands of Robert shall stand j ' this will amount to a 
 good republication. But in the case of real estate, 
 the republication must be as formal as the original 
 execution. 
 
 A Republication of a Will being duely made 
 will supply a defect for want of capacity in the 
 Testator to make a Will, as well as any inability for 
 want of a subject matter whereon the Will may 
 attach. Therefore if one having, when under the 
 age of twenty-one, made a Will of land, duely 
 executed, but which is void by reason of his 
 infancy, execute it after he comes of age, with pro- 
 per requifites of witnesses, &c. this will render such 
 Will valid. 
 
 It may be proper to mention that no stamp 
 duty whatever is imposed on Wills, till after the 
 
 death
 
 ( li ) 
 
 death of the Testator; wlien the probate or letter* 
 of administration are charged with certain duties, 
 in proportion to the value of the deceased's 
 property. But a Will may be, and in practice 
 always is, written and executed by the Testator on 
 unstamped parchment or paper. 
 
 CHAP.
 
 CHAP. II. 
 
 WHO MAY MAKE WILLS, AND WHO ARE BY LAW 
 PREVENTED FROM SO DOING. 
 
 f I. Aliens. 
 
 a. Infants Idiots Childish Persons Mad People, or Lunatics- 
 Persons of mean understanding Drunken Persons Persons 
 Deaft Dumb, and Blind Rules and Precautions as to the Hills 
 of blind and illiterate Persons. 
 
 $ 3. Married Women Exceptions Persons under Fear from Threats, 
 fcfr. Ecclesiastical Court the Judge of Deceit in (fills of per- 
 sonal Estate. 
 
 4. traitors Felons Felones de se % or self-murderers Outlaws 
 Excommunicated Persons. 
 
 R- 
 EGULARLY every person lias lull power 
 and liberty to make a Will and Testament, who is 
 not under some special prohibition by our law, or 
 by custom ; which prohibitions are principally upon 
 three accounts. First, for want of sufficient discre- 
 tion in the person making the Will. Secondly, for 
 want of sufficient liberty and free-will. And thirdly, 
 on account of their criminal conduct. 
 
 It may not be amiss, perhaps, first to mention a 
 case which does not strictly come under either of 
 these heads, unless on some occasions it might be 
 supposed proper to be referred to the third; an 
 Alien (that is, one born out of the King's dominions, 
 and whose father was not a British subject) while 
 living under the English government, may obtain 
 money, goods, and personal property, and may 
 
 make
 
 make a Will, and dispose of such property as be 
 pleases; contrary to the ancient Law of France, 
 where the King, at the death of an alien, was 
 entitled to all he was worth in that kingdom : a. 
 Law repealed under the reign of the late unfor- 
 tunate Louis XVI. A distinction is made between 
 alien friends and alien enemies, meaning the sub- 
 jects of such States as are at war with ours, or in 
 peace with them ; but in case of an alien, the sub- 
 ject of a State at war with England, if he lives 
 here and trades, and is not guilty of any unfriendly 
 act, he is permitted to dispose of his goods and 
 money as freely as any subject ; and this under the 
 idea that he has the King's licence for staying in the 
 kingdom, and is therefore in some degree entitled 
 to the protection and privilege of a subject. But 
 an alien (friend or enemy) .not being capable of 
 acquiring any right in land for his own benefit, can 
 never, therefore, have any real estate to dispose of. 
 It seems undisputed however that an alien may be 
 a devisee even of lands, whatever the further effect 
 of his taking such lands may be. 
 
 As to the case of a foreigner having money in the 
 stocks, or other personal property in the kingdom; 
 if he has what is in law termed his domicil in a 
 foreign country, that is, if he is resident there, c.r 
 only occasionally absent therefrom, and is subject 
 to its laws, the disposition of such property, either 
 under his Will, or in case he dies without a Will, 
 shall be regulated by the laws of the country of 
 which he is a subject; but if he is domiciled in 
 England, then by the English laws. This has been 
 a very contested point in the case of several natives 
 of Scotland, as the succession to property is regu- 
 lated by different laws in Scotland and England ; 
 but the principle above stated seems now pretty 
 well established; though in all probability the cir- 
 cumstances of a neighbouring country, and the 
 C number
 
 ( 18 ) . 
 
 number of refugees from thence to this kingdom, 
 may produce some further discussion on this very 
 nice point. What shall or shall not be considered 
 as the domicily or habitation of the party as a sub- 
 ject to the State, is a question of fact to be governed 
 by the peculiar circumstances of every case. 
 
 2. IN the first class of prohibitions, want of 
 sufficient discretion, are included, 
 
 Infants,- or persons under age : and it is par- 
 ticularly provided by the act of 34 and 35 //. 8. 
 c. 5. sect. 14. that no person under the age of twenty- 
 one years shall make a Will or Testament of any 
 manors, lands, tenements, or other hereditament ; 
 and a Will made by any such Infant will not 
 (generally speaking) be taken to be good or effec- 
 tual in law, but will be absolutely void ; for until 
 that time, > by the common law of this kingdom, 
 they are accounted infants, and incapable of 
 governing themselves and their affairs. 
 
 Yet the law allows a male infant, of the age of 
 fourteen years and upwards, and a female of twelve 
 years or upwards, to make a Will respecting only 
 goods, money, and other personal estate ; but as 
 the ecclesiastical court is the judge of every Testa- 
 tor's capacity, and decides on disputes respecting 
 the validity of Wills relating to personal estates, 
 the discretion of the person making the Will mav 
 be disputed there, and his capacity of devising, let 
 him be of what age he will. No custom can be 
 good to enable any persons to make a Will under 
 the respective ages ot fourteen and twelve above- 
 mentioned; though by custom in particular places 
 infants may devise lands, after that age, and before 
 twenty-one. 
 
 An Idiot., or natural fool, is one who, notwith- 
 standing he may be of lawful age to make a Will, 
 yet has so little sense as to be unable to number to 
 
 twenty, 
 4
 
 twenty, or to tell what age he is of, or to answer 
 any common questions, by which means it may 
 plainly appear that he has not reason to discern 
 what is to his advantage or disadvantage, and who, 
 from his want of natural parts, is incapable of being 
 informed or instructed by any other ; and such an 
 idiot cannot, at any time, make a Will orTestament, 
 nor dispose either of his lands or goods. Upon 
 the same principle persons who are grown childish, 
 either through old age or any infirmity or distemper, 
 are, during the continuance of such incapacity., 
 disabled from making a Will. 
 
 Mad folks, or Lunatics, during the time of their 
 madness, cannot make a Will or Testament, nor 
 dispose of any thing thereby, and that for the most 
 forcible of all reasons, their utter incapacity of 
 knowing what they are doing ; arid it is a principle 
 of law r , that in making of Wills, integrity, sound- 
 ness, and perfectness of mind, are absolutely requi- 
 site, the health of the body merely not being 
 regarded. Yet if such mad persons have lucid (that 
 is, clear or calm) intervals of reason, then during 
 the time of such intervals, if they are fully possessed 
 of a sound and disposing memory and understand- 
 ing, they may make their Wills, which will be good 
 in law. If a person of a sound mind make his 
 Will, this shall not be revoked or affected by his 
 subsequent infirmity. 
 
 Every person, however, is presumed to be of 
 perfect mind and memory, unless the contrary is 
 proved ; and therefore if any one attempts to call 
 in question or overthrow the Will, on account of 
 any supposed madness or want of memory, in the 
 Testator, he must prove such impediment to have 
 existed previous to the date of the Will ; but peo- 
 ple of mean understanding and capacities, neither 
 of the wise sort nor of the foolish, but indifferent 
 betwixt both, even though they rather incline to 
 C 2 the
 
 i 20 ) 
 
 the foolish sort, (says a quaint writer on this subjetl) 
 arc not hindered from making their Wills. The law 
 will not scrutinize into the depth of a man's capa- 
 city, particularly after his death, if he was able to 
 conduct himself reasonably in the common course 
 of life, as it might be opening a wide door to support 
 pretensions of fraud or imposition on the Testator. 
 
 One overcome with drink is equally incapable of 
 using his reason, during his drunkenness, as a mad- 
 man ; and therefore, if he makes his Will at that 
 time, it is void in law. 
 
 Persons born Blind, Deaf, andDumby are incapable 
 of making a Will, as they want the common inlets 
 of understanding, and are incapable of having any 
 desire of bequeathing or obtaining any knowledge 
 with respect to property, or the disposal of it; and 
 are in as helpless and ignorant a situation as idiots 
 themselves ; and even those who are only deaf and 
 dumb by nature, cannot make a Will, unless it 
 very manifestly appears, by strong and convincing 
 proofs, that such persons understand what a Will 
 means, and they have a desire to make a Will ; for 
 if they are possessed of such understanding, and 
 desire, then they may, by signs and tokens, declare 
 their intentions. 
 
 A blind person may make a nuncupative or verbal 
 Will, by declaring his intentions before a sufficient 
 number of witnesses, and he may also mak a Will 
 in writing, provided the Will be read to him before 
 witnesses, and in their presence acknowledged by 
 him for his last Will ; but if a writing should be 
 delivered to a blind man, and he, not hearing the 
 same read, acknowledged the same for his Will, 
 this would not be sufficient ; for it might happen, 
 that if he had heard the same read, he would not 
 have acknowledged it for his Will. The best and 
 most sure way, therefore, in such a case, is, that the 
 Will be read over to the Testator, and approved by 
 
 him,
 
 ( 21 ) 
 
 him, in the presence of all the subscribing wit- 
 nesses ; and although the law of England does not 
 expressly require this regulation, in respect to the 
 Will of blind persons, yet a court of justice s* ill 
 demand satisfactory proof of some kind that the 
 identical Will was read over to him, though it was 
 not in the presence of the witnesses ; it is there- 
 fore good policy to let all the subscribing witnesses 
 be present at the reading over such a Will, as in 
 case of any dispute, which may V>e more likely in 
 such extraordinary circumstances, they will be 
 most capable of affording compleat satisfaction to 
 the minds of a judge and jury, 
 
 The above precautions, necessarv for authenti- 
 cating a blind man's Will, seem in like uegree 
 requisite in the case of a person who cannot read - t 
 for though the law, in other cases, may presume 
 that the person who executes a Will knows and 
 approves the contents of it, yet that presumption 
 will cease where, through defect of education, he 
 cannot read, or is by sickness incapacitated to read 
 the Will at that time, 
 
 3, UNDER the second head of persons disabled 
 from making a Will, are those who have not suft> 
 cient liberty and free will , and here shall first be 
 mentioned married women. 
 
 A married Woman (in law called a feme covert, 
 which means a woman covered or protected by 
 her husband) is restrained and prevented from 
 devising any land or real estate whatsoever ; being 
 particularly excepted out of the act of 34 and 35 
 //. 8. c. 5. enabling other persons to dispose of 
 their lands and tenements by Will ; and it is a 
 general rule that she cannot make any Will, even 
 of goods or personal estate, without the licence or 
 consent of her husband ; because by the law, as 
 C 3 soon
 
 ( 22 ) 
 
 soon as a man and woman are married, all the goods 
 and personal estate, of what nature soever, which 
 the wife had at the time of- the'marriage, or may 
 acquire after, belong to the husband, by force of 
 the marriage, which empowers him to make such 
 part of them his own as are not absolutely vested 
 in him immediately by marriage ; and therefore it 
 would be an inconsistency in the law to give her 
 power of defeating that rule, by bequeathing those 
 goods and chattels to another. 
 
 If a woman makes a Will, and afterwards mar- 
 ries, and dies during the life of her husband, yet 
 being at the time of her death incapable by law of 
 devising, because her husband is then living, the 
 Will is void ; for it is necessary, in order to make 
 her Will of force in law, that she had ability to 
 make a Will ; not only at the time of making 
 thereof, when the Will received its being, but also 
 at the time of her death, at which time only any 
 Will can receive its strength and confirmation. If 
 a wife survives her husband, a Will made during the 
 marriage is not good ; because she is, during such 
 time, by law restrained from making any Will : but 
 if a Will is made during the marriage, and she 
 survives her husband, and approves and confirms 
 the Will after his death, in this case it will be 
 good, by reason of her new consent or new decla- 
 ration of her Will ; for then it is, as it were, a new 
 Will, as has been before mentioned on another 
 occasion. If a woman makes her Will, and after- 
 wards marries and survives her husband, and dies 
 a widow, leaving such Will made before her mar- 
 riage ; it has been held that the Will was revived 
 and in force: but later determinations seem to 
 have settled that though she was able in law to 
 make a Will, both at the time of the execution of 
 it and at her death, yet such Will shall not be 
 
 good
 
 ( 23 ) 
 
 good or valid in law, without a republication, it 
 having been once absolutely revoked, and entirely 
 made void by the marriage. 
 
 Although a married woman is, generally speak- 
 ing, so entirely under the power of her husband, 
 that she cannot make what in propriety of speech 
 is called a Will, yet she may, with the consent of 
 her husband, make what is termed an Appointment, 
 and which, like a Will, does not take effect till her 
 death, and may be altered or revoked during her 
 life ; and the usual way in such cases is for the 
 intended husband to enter into marriage articles, or 
 a bond before marriage, in a sufficient penalty con- 
 ditioned, to permit his wife to make a Will, and to 
 dispose of money or legacies to a certain value, 
 and to pay what she shall appoint, not exceeding 
 such value ; and in that case, if after the marriage, 
 and during it, she makes any writing, purporting to 
 be her Will, and disposes of. legacies to the value 
 agreed on, though in strictness of law she cannot 
 make a Will, without her husband's positive assent 
 to the specific Will, but only something like a Will, 
 yet this shall be good as an Appointment, and the 
 husband is bound by his bond, agreement, or cove^ 
 nant, to allow the execution of it. And this Will, 
 or Appointment, must be proved in the Spiritual 
 Court. 
 
 To the above general rules there are also some 
 few other exceptions. 
 
 The Queen-Consort is exempted from these 
 restrictions, and she may dispose of her goods and 
 personal estate by Will, without the consent of her 
 lord. 
 
 If a married woman is executrix to some other 
 
 person, and in that right has goods and chattels, 
 
 these do not become the property of the husband 
 
 by marriage., because she has them not for her own 
 
 C 4 use,
 
 ( 24 ) 
 
 use, but as representing the person of another, 
 and therefore, in this case, she may, for the conti- 
 nuation of the executorfhip only, and for no other 
 purpose, make an executor, and consequently a 
 Will, without the consent of her husband; but ihe 
 cannot either in her life time, or by her Will, dis- 
 pose of the goods which she is thus possessed of in 
 the right of another, any otherwise than as by law 
 she is required to do as executrix. 
 
 If a married woman has any pin-money, or sepa- 
 rate maintenance, she may by Will dispose of any 
 savings made by her out of the same, without the 
 controul of her husband. 
 
 Another remarkable exception is in favour of a 
 married woman, whose husband is banished for his 
 life by act of parliament ; for she may make a Will, 
 and act in every thing as if she was unmarried, or 
 as if the husband was dead. 
 
 Where personal property is given to a married 
 woman for her sole and separate use, she may dis-r 
 pose of it by Will without the aflent of her husband. 
 
 Where lands are conveyed to trustees, a married 
 woman may have the power of appointing the dis- 
 position of them after her death; which appoint- 
 ment must be executed like the Will of an unmar-: 
 ried woman, and will be subject'to the same rules 
 of construction. It has also been determined bv 
 the House of Lords, that the appointment of a 
 married woman is effectual against the heir at law, 
 though such appointment depends only upon an 
 agreement of her husband before marriage, with- 
 out any conveyance of the estate to trustees. 
 
 As to debts due to the wife, and bonds or other 
 personal securities for money which were her's 
 before marriage, though the husband may make 
 them his own when he pleases, yet the wife mav, 
 by his consent, make a Will and devise them, and 
 
 this
 
 ( 25 } 
 
 this is properly a Will in law, and ought to be 
 proved in the spiritual court. 
 
 To this head of want of free-will may be also 
 referred the following directions : 
 
 A Will will be set aside which is made by a 
 person in consequence of any threats made use of 
 to him, whereby he is induced, through tear of any 
 injury, to make such a Will as he would not other- 
 wise have wished to do. On this point, no certain 
 rule can be laid down, but it is left to the discre- 
 tion of the court to determine upon the particular 
 circumstances of the case, whether or no such 
 persons could be supposed to have a free will in 
 the disposing of their estates, and the judge will, 
 on such an occasion, not only consider the quality 
 of the threats, but also the persons as well threat- 
 ening as threatened ; as in the person threat- 
 ening, his power and disposition ; in the person 
 threatened, the sex, age, courage, pusillanimity ; and 
 the like. But if after making the Will, 'when 
 there is no cause to fear,- the maker of it ratifies and 
 confirms it, it will be good in law. 
 
 If a man makes a Will in his sickness, at the 
 over-importunity of his wife, contrary to his own 
 wishes and desires, and merely that he may be 
 quiet, this is a Will made by restraint, and shall 
 not be good. 
 
 The spiritual or ecclesiastical court has jurisdic- 
 tion of fraud or deception relating to a Will of 
 personal estate, and can examine the parties by 
 allegation concerning such fraud and deceit ; as 
 if the Will was falsely read to the Testator, when it 
 is not his Will. But in the case of a real estate, a Will 
 cannot be set aside even by a court of equity, for 
 , fraud or imposition, but must be tried at law on the 
 question, whether the Testa tor did or did not in fact 
 devise, the fraud or imposition in this case being a 
 matter proper for a jury to enquire into. 
 
 * THE
 
 (26) 
 
 $ 4. THE third kind of disability arises from the 
 criminal conduct of the parties. 
 
 A Traitor lawfully convicted of high treason, 
 by verdict, confession, outlawry, or otherwise; 
 besides the loss of his life, shall forfeit to the king 
 all his goods and chattels, and all such lands and 
 freehold property as he shall have at the time of his 
 committing such treason, or at any time after ; and 
 so consequently is unable to dispose of any thing 
 by Will: and traitors are not only deprived of the 
 privilege of making any kind of last Will, from the 
 time of their being convicted and found guilty, but 
 any Will made before, does, by reason of such 
 conviction, become void, in respect both of goods 
 and lands: But if any person convicted of treason 
 obtain the king's pardon, he is thereby restored to 
 his former estate, and may make his Will as if he 
 had not been convicted ; or if he had made any 
 before his conviction and condemnation, such Will, 
 by reason of the pardon, recovers its former force 
 and effect. 
 
 A Felon, lawfully convicted, cannot make any 
 Will, or other disposition of any goods or lands, 
 because the law has disposed therepf already ; all 
 his goods being forfeited to the king, who is also to 
 hold his freehold estate for a year and a day after 
 his death, when it is forfeited to the chief lord of 
 the fee ; so that it cannot be in the power of the 
 felon to devise it. But in this case also, a pardon 
 restores him to his former estate and capacity of 
 making a Will. 
 
 If a person indicted for felom/, on his arraign- 
 ment would not answer or put himself on his 
 trial, but stood mute, he was by the common law 
 to receive the terrible punishment called the 
 peine forte et dure, that is, to be pressed to death ; 
 frut now, by a statute made in the present king's 
 reign, the standing mute in cases QI felony, as well 
 
 as
 
 ( 27 ) 
 
 as formerly in cases of high treason, and in offences 
 less than felony, us petty larceny, and all misde- 
 meanors, is equal to conviction, and the person 
 indicted shall be found guilty j which in the case 
 of high treason has the same effect, as to the for- 
 feiture of lands, and in felony of his goods, and to 
 every other purpose, as if he had put himself on 
 his trial, and been found guilty by the strongest 
 evidence. , 
 
 If a man wilfully kills himself, in which case he 
 is in law termed a felo de se, his Will, if he made 
 any, is void, both as to the appointment of an 
 executor, and also with respect to any legacy or 
 bequest of goods, for they are forfeited by the very 
 act and manner of his death ; but any devise of 
 land made by him is good, as that is not subjected 
 to any forfeiture. 
 
 An outlawed person is not only out of the king's 
 protection and out of the aid of the law, but also 
 all his goods and chattels are forfeited to the king, 
 by means of the outlawry, although it should only 
 be for debt; and even though the action in which he 
 is outlawed is not just, nevertheless his goods and 
 chattels are forfeited, by reason of his contempt in 
 not appearing , and therefore he that is outlawed 
 cannot make his Will of his goods so forfeited. 
 But a man outlawed for debt, or in any other per- 
 sonal action, may in some cases make executors ; 
 for he may have debts upon contract, which are 
 not forfeited to the king, and those executors may 
 have a writ of error to reverse his outlawry. 
 
 It is the better opinion, that an excommunicated 
 person may make a Will, though some disputes 
 have heretofore arisen as to the effect, of w r hat is 
 called the greater and lesser excommunication ; but 
 these niceties are nearly put an end to, by the 
 unusualncss of the case ever happening at this 
 time. 
 
 With
 
 ( 28 ) 
 
 With respect, however, to the Wills of traitors, 
 felons, outlaws, &c. though they are void as far as 
 concerns the king, or the lord who is entitled to 
 the forfeiture of their lands or goods, yet the Will is 
 of force against the testator and his representatives, 
 and all other persons whatever ; so that if the 
 king or the lord pardons the forfeiture, the Will is 
 suffered to take effect. 
 
 Formerly Papists were under several disabilities, 
 both as to the purchasing lands and taking them 
 by descent or devise ; but those are now done away, 
 and Papists rendered capable of purchasing and 
 devising lands, and taking them by descent, pur- 
 chase, and devise, on taking the oath prescribed to 
 them by the act of 18th Geo. 3- c. 60. which is 
 generally complied with, to the great credit both 
 of the Protestants and Papists ; the latter of whom 
 were also relieved from many other disabilities, by 
 the act of the 31st Geo, 3, c. 32, 
 
 CHAP.
 
 CHAP. III. 
 
 WHAT MAY BE DISPOSED OF BY WILL. 
 
 i. Customs restraining the Devise of persona! Estate abolished. 
 
 2. Lands Disposition of Lands to charitable Uses, bow restrained 
 De-vises in fraud of Creditors. 
 
 3. Rents, Tithes, &c. Estates for another's Life Mortgages 
 Advoiusons. 
 
 4. Lands agreed for and not conveyed, 
 
 5. Leases Debts, and Securities for Money. 
 
 6. What the Testator has not. 
 
 7. Joint Tenants, what they are, and how hindered from making 
 a Will. 
 
 8 . Corn growing. 
 
 9. Executors and Administrators. 
 
 10. Wife's Property. 
 
 11. Land acquired after the Will made. 
 
 1. JLJLNCIENTLY there were in different parts 
 of the kingdom, and particularly in Wales, and in 
 the province of York and in London, several cus- 
 toms, the remains of the old common law, which 
 prevented persons from disposing of more than one 
 third part of their goods and personal property: 
 which restraint continued till very modern times, 
 when, in, order to favour the power of bequeathing, 
 and to reduce the whole kingdom to the same 
 standard, three acts of parliament have been pro- 
 vided (one 4 and 5 William and Mary, c. 2. 
 explained by 2 and 3 of Anne, c. 5, for the Pro- 
 vince
 
 ( 30 ) 
 
 vince of York; another 7 and 8 IV ill. 3. c. 38. for 
 Wales; and a third 11 Gco. 1. c. 18. 17. for 
 London;} whereby all persons within those districts, 
 and liable to those customs, are enabled to dispose 
 of all their money and other personal estate by 
 Will; and the claims of the widows, children, and 
 other relations, to the contrary, under pretence of 
 the custom, are totally barred. Thu-s is the old 
 common law, restraining devises, and the customs 
 in those places which were the relicts of it, 
 entirely abolished throughout all the kingdom of 
 England ; and a man may give the whole of his 
 goods by Will, as freely as he formerly could his 
 third part, in disposing of which, he was bound by 
 the custom of many places to remember his lord 
 and the church, by leaving them his two best 
 chattels, and afterwards he was left at his own 
 liberty to bequeath the remainder as he pleased : 
 These customs, however, as far as they respect the 
 distribution of a person's goods who dies without 
 a Will, still remain in force ; as shall be taken more 
 particular notice of hereafter. 
 
 2. IT seems sufficiently clear that before the 
 Conquest Lands were deviseable by Will. But upon 
 the introduction of the military tenures, the re- 
 straint of devising lands took place : and some have 
 questioned whether this restraint was not founded 
 upon truer principles of policy, than the power 
 now allowed to be exercised of wantonly disin- 
 heriting the heir by Will, and transferring the 
 estate, through the dotage or caprice of the ances- 
 tor, from those of his blood to utter strangers. 
 However this be, we know that by the common law 
 of England, immediately subsequent to the Con- 
 quest, no estate greater tjian for a term of years 
 could be disposed of by Will : except only in Ke?it, 
 and. some ancient burghs, and a few particular 
 manors where the Saxon immunities by special 
 
 indulgence
 
 ( 31 ) 
 
 indulgence subsisted : and though the restraint 
 on alienations by deed vanished very early, that on 
 Wills continued for some centuries after, from an 
 apprehension of infirmity and imposition on the 
 Testator in his last moments, which made such dis- 
 positions suspicious. At length, after various 
 devices had been made use of to elude this restric- 
 tion of the common law, an act of parliament was 
 passed, viz. 32 Hen. 8. c. 1. (explained by 34 and 
 35 //. 8. c. 5.) which enacted that all persons who 
 had the fee simple, or absolute property, in lands 
 or 'tenements (except married women, infants, 
 idiots, and lunatics) might by Will in writing 
 devise certain portions of such lands and tenements ; 
 and by means of another act, 12 Car. 2. c. 25. 
 (which took away the reason of the former restric- 
 tions, by altering the tenures of estates) every per- 
 son is now enabled to dispose of the whole of his 
 freehold lands,, in which he has the fee simple or 
 absolute property, by Will, to any other persons, 
 but not to companies or corporations. Copyhold 
 lands pass by a particular mode of surrender to the 
 use of the Will, according to the different custom 
 of the several manors of which they are holden. 
 
 Corporations were excepted in these statutes, to 
 prevent the extension of gifts in mortmain, or the 
 too great accumulation of land in hands where it 
 lies dead, and not subject to change possessors ; 
 but by construction of a subsequent act of parlia- 
 ment, 43 Eliz. c. 4. it was held that a devise to a 
 corporation for a charitable use was valid, as ope- 
 rating in the nature of an appointment rather than 
 a bequest. To prevent however any imposition in 
 respect to the disposal of lands to charitable uses, 
 which might arise in a Testator's sickness, and in 
 some measure from just political principles, it is 
 now provided by the act of 9 Oca. 2. c. 36. that no 
 lands or tenements whatsoever, nor any money, or 
 
 securities
 
 ( 32 ) 
 
 securities for money, or other personal estate what- 
 ever, directed to be laid out in the purchase of 
 land, shall be given to or settled upon any persons 
 or corporations in trust, or for the benefit of, or 
 charged with, any charitable uses, unless such gift 
 is made by deed indented, executed in the presence 
 of two witnesses, twelve months at least before the 
 death of the giver of such land or money ; except 
 it consists of stocks in the public funds, to be laid 
 out in land, in which case the stock must be trans- 
 ferred six months before the giver's death: The 
 deed must be inrolled, within six months after 
 the execution, in the high court of Chancery, 
 and the gift must be made to take effect imme- 
 diately, for the benerit of the charity intended, and 
 must be without the power of revocation. By this 
 act all other gifts made to these purposes are 
 declared void ; therefore no devise can be made by 
 any last Will or Testament, of land, or money to 
 be laM out in land, for charitable uses, except to 
 the two universities of Oxford and Cambridge, or 
 to any ot the colleges there; or to the colleges or 
 schools of Eton, Winchester, and Westminster, for 
 the support of the scholars only at those schools, 
 which are expressly excepted out of the provi- 
 sions of the act ; which does not extend to Scot- 
 land. 
 
 It was to prevent frauds and perjuries, and to 
 remedy other inconveniencies which arose from the 
 acts enabling persons to devise land, that the act 
 29 Charles 2. c. 3. as to the execution of Wills, and 
 act 25 Geo. 2. c. 6. as to witnesses, stated in 5 of 
 chap. 1. were passed. But one inconvenience was 
 still found to attend this mode of conveying pro- 
 perty by devise ; as creditors by bond, &c. were by 
 this means defrauded of their securities, not having 
 the same remedy against the devisee of their debtor, 
 as they would have had against the heir to whom 
 
 the
 
 ( 33 ) 
 
 the estate would otherwise have descended. To 
 obviate this evil the act of 3 and 4 Will, and Mary, 
 c. 14. provides that all Wills and Testaments, limi- 
 tations, dispositions, and appointments, by persons 
 having power to dispose by Will, shall (as against 
 such creditors only) be deemed' to be fraudulent 
 and void : and that such creditors may maintain 
 their actions jointly against both the heir and 
 devisee. A devise to raise a portion for younger 
 children, according to an agreement before mar- 
 riage, and a devise for payment of debts, are ex- 
 ceptions in the act of parliament. 
 
 3. More immediately as to what things are 
 dwiseable- -In general it may be stated that every 
 thing in which a man has the absolute property 
 may now be devised by his Will : disputes at pre- 
 sent arising mostly on the words of the Will, and 
 not on the right to bequeath. Thus rents, tythes, 
 manors, franchises, and annuities may be devised 
 by virtue of the words " lands, tenements, and 
 hereditaments," in the statutes of Henry 8. So 
 may reversions, and vested remainders, expectant 
 after the estate tail : as to which, see more at large 
 in chapter V. Estates held in trust may also be 
 devised by the persons for whose benefit they are 
 held. 
 
 Where a man holds land for the term of another 
 person's life, he is said in law to have an estate 
 iwur autre vie ; and if he dies before the person 
 for whose life he holds the same, he may (by 29 
 Car. 2. c. 3. before mentioned) devise the same by 
 Will in writing, executed in the presence of three 
 witnesses, and subscribed by them in his presence; 
 such an estate being considered as a freehold. 
 
 If any one has money owing to him on mortgage, 
 he may devise this money to be paid when it 
 becomes due. 
 
 D A person
 
 ( 34 ) 
 
 A person may devise by his Will the right of 
 presenting to the next avoidance, or the inheritance 
 of an advowson of a benefice 5* and if such devise 
 is made by an incumbent or parson of any church 
 to whom the inheritance of the advowson of that 
 church belongs, it is good, though he is the incum- 
 bent or parson of the church when he dies ; for 
 though the Will has no effect but by the death of the 
 Testator, yet it has a beginning in his life time ; and 
 the disposition and bequest will be good also, if he 
 appoints by his Will who shall be presented to the 
 church by the executors, or that one executor shall 
 present the other, or that his executors shall grant 
 the advowson to any particular person. This case 
 being distinguished and excepted from the general 
 rule as to advowsons, which are by law forbidden 
 to be disposed of while there is no incumbent, and 
 the church is empty, in order to restrain the cor- 
 rupt and wicked practice of Simony. 
 
 4. IF a man has agreed to purchase an estate, 
 and the buyer and seller enter into articles for the 
 purchase, and the buyer dies, having by his Will 
 devised the land so agreed to be purchased, before 
 any deed to convey the same is made to him, yet 
 the land will, by force of equity, go to whomever 
 he may have devised it by his Will, he having a 
 right so to do, and to recover the land ; the 1 seller 
 only standing as trustee for him, and whom he 
 should appoint, till a regular conveyance be exe- 
 ecuted. 
 
 * In the former case, where only the next avoidance is disposed 
 of, t"jx> witnesses would be sufficient to the Will, that being part of 
 his personal estate; but if he disposes of the iv/io/e inheritance of th 
 dvowson, there must be tlrrec witnesses, the inheritance being part of 
 his real estate, and subject to the same rules as land. So also a 
 donative may be devifed. 
 
 4 5. A LEASE
 
 ( 35 ) 
 
 5. A LEASE for any number of years, deter 
 minable upon a life or lives, that is, if such or such 
 persons live so long, or a lease for 500 or 1000 
 years, or any other term absolute, may be given 
 and disposed of by Will, and are part of a man's 
 personal estate. 
 
 Where one by his last Will bequeaths any debt 
 due to him, or any bond or other personal security 
 for money belonging to him, the legacy is good and 
 effectual in law, and may be recovered by him to 
 whom it is given in two methods. First, either if 
 the Testator makes him executor of that particular 
 debt or security bequeathed him, then he may, as 
 executor thereof, commence an action in his own 
 name, and recover the same to his own use, against 
 him from whom it was due ; or if he is not made 
 executor of that debt or security, he may summon 
 the executor, appointed in the Will, in the Ecclesi- 
 astical Court, and compel him either to sue for that 
 debt, and upon recovery and payment thereof, to 
 pay it over to him ; or else to make a letter of attor- 
 ney to him for the recovery of it, in the executor's 
 name, to his own use. 
 
 6. SOME of our old writers on the Law of Wills 
 have very carefully stated that if a person devises to 
 another a horse or a yoke of oxen, the legacy is 
 good, though the Testator may have no horse or 
 oxen of his own, either at the time of his death or 
 making his Will ; and in these kind of legacies the 
 rule is, that if the words of the devise are directed 
 to the person to whom the legacy is given, as, 
 " I will that John Mills shall have a horse," the 
 choice of the horse belongs to John Mills , but if 
 the words are directed to the executor, as, " I will 
 that my executor give to John Mills a horse," the 
 choice belongs to the executor ; and they add that 
 D 2 both
 
 t 36 ) 
 
 both parties should be reasonable in their choice, 
 that the legatee may not choose a horse of too 
 great value, or the executor one of too little. 
 
 An estate depending upon a contingency may be 
 devised ; as where John leaves an estate to Thomas 
 and his issue, and in case Thomas dies without 
 issue then to Robert : Robert may devise this con- 
 tingent interest to whom he pleases, if he happens 
 to die before the contingency takes place j or before 
 it is prevented from doing so. See hereafter, 
 chapter V. 
 
 7. If two persons obtain an estate by pur- 
 chase, and hold by one and the same title, they are 
 called joint-tenants, and possess the land jointly, 
 each of them, as the law expresses it, by the half 
 and the whole 3 that is, there is no distinction 
 between them, each being equally entitled to the 
 estate, and during their joint lives to half the 
 profits. When one of such joint-tenants dies, he 
 who outlives the other shall have the whole of the 
 land ; and if one of them, during his life time, 
 devises his share in the land, and dies, this devise 
 will not be good, and the person to whom the 
 joint-tenant has devised his share takes nothing, 
 because the devise does not take effect till after 
 the death of the joint-tenant, and then the survi- 
 vor takes the whole land by a prior title, that is to 
 say, the deed of purchase. And although the 
 joint-tenancy is severed before the Testator's death, 
 (as it may be by process in Equity) yet a Will made 
 before such severance will have no effect unless 
 there be a republication of it after the severance 
 has actually taken place. 
 
 By the custom of the city of London, a joint- 
 tenant may devise what belongs to him, and no 
 other act is necessary to give the person to whom 
 
 the
 
 ( 51 ) 
 
 the land is devised, the same title as he himself 
 had ; but he shall take the land by the devise in 
 any manner the joint-tenant may direct. In other 
 cases, if one joint-tenant makes a Will, and devises 
 his share in the lands, if he dies before the other 
 joint-tenant it will not be good, but if he outlives 
 the other joint-tenant the devise may by a republi- 
 cation be made good for the whole estate, because 
 he has the whole by survivorship. 
 
 8. BY an act of 20 //. 3,'c. 2. widows may 
 bequeath the crop of their ground, as well of 
 their dowers (of which lands they are called tenants 
 in dower) as of their other lands and tenements; 
 and by 28 //. 8. c. 11. if the parson or incumbent 
 of a living, before his death, has caused any of his 
 glebe lands to be manured and sown 'at his own 
 expence, with any corn or grain, he may by his 
 Will devise such corn, and all the profit of it, 
 growing on the glebe land so manured and sown : 
 and if a man is possessed of land for the term of 
 his life only, and the land after his death descends 
 to his heir, yet he may devise the corn growing on 
 the land at the time of his death, away from the 
 heir, to some other person ; although he has it not 
 in his pov/er to devise the land whereon it grows. 
 
 Where a man has lands in right of his wife, and 
 sows them with corn, he may devise the corn grow- 
 ing on the lands at his death, the devise is good, 
 and the wife, though entitled to the land, shall not 
 have the corn. If a man thus possessed of lands in 
 right of his wife, lets them to another who sows the 
 ground, and afterwards the wife dies, the corn not 
 being ripe, yet in this case the person to whom the 
 lands were let is entitled to the corn, and may 
 devise it notwithstanding his estate and interest in 
 the land is determined. 
 
 D 3 Whenever
 
 ( 38 ) 
 
 Whenever a man marries a woman possessed of 
 freehold lands, if he ever has a child by her, male 
 or female, born alive, though it does not live to 
 grow up, and he survives his wife, he is by the law 
 of England entitled to the profits of those lands 
 during his life, and is called Tenant by the curtesy. 
 And if while he is thus tenant by the curtesy he 
 sows these lands, he may devise the corn growing 
 on them at the time of his death, as well as the 
 corn growing on other lands, though he cannot 
 dispose of the lands at all, by Will or otherwise. 
 
 In cases where a man's real estate is so settled 
 that he cannot devise it by Will, he cannot devise 
 any thing which ought to descend to the heir, or 
 which is affixed and belongs to the freehold, as the 
 trees growing on the land, or the windows, doors, 
 and wainscots of a house ; and if there are any 
 valuable moveables, furniture, or pictures, in a 
 house, that have by custom gone with the house 
 from heir to heir, he is also prevented from devis^ 
 ing these moveables; which obtain in law the 
 name of heir-looms, as belonging to the heir. 
 
 9. AN executor or administrator cannot devise 
 those goods which he has as executor or admini- 
 strator, and which belong to the person to whom 
 he is executor or administrator ; but the same must 
 be applied in payment of that person's debts, and 
 distributed in a due course of law. The executor 
 or administrator having these goods only for such 
 particular purposes, and not to his own absolute 
 use. Nor can a husband devise any effects which 
 his wife has as executrix, for the like reason. 
 
 10. ALTHOUGH, as has been already stated, 
 the personal estate of the wife becomes the pro- 
 perty of the husband immediately on marriage, as 
 he is thereby enabled to make all debts due to her, 
 
 and
 
 ( 39 ) 
 
 and bonds for money given her before marriage, his 
 own, yet unless he recovers such debts during the 
 marriage, and renews the bonds, and takes them in 
 his own name, he has not such an absolute intereft 
 in them as to be able to devise them by his Will, 
 but they will, after his death, again become the 
 property of the wife ; or if he survives his wife, 
 not having taken these necessary steps to make 
 this part of her personal estate his own, he may 
 take out administration to her, and will by that 
 means become absolutely entitled to and possessed 
 of them. But if a woman's fortune, or any part of 
 it, consisted in bonds given her before marriage, 
 and the husband on the marriage makes a settle- 
 ment on her in consideration of such fortune ; not- 
 withftanding the bonds are not renewed during 
 the marriage, yet the husband will be entitled to 
 them, being in this case considered as a purchaser 
 for a valuable consideration j he may therefore de- 
 vise them by his Will, and they shall go to his ex- 
 ecutor, even though the wife should survive him. 
 
 11. A MAN cannot by his Will devise lands 
 which he shall acquire after making his Will : the 
 Will only operating on such lands as he is pos- 
 sessed of at the time of publishing it. And though 
 a man does by express words in his Will give to 
 another all the lands which he shall have at the 
 time of his death, yet this devise will be good only 
 as to such lands as he had at the time of making 
 the Will ; and any lands, purchased afterwards, 
 will not pass by it, but go to the heir at law, unless 
 the Will is republished. But where a man is 
 entitled to an eftate in reverfion, expectant on the 
 determination of another person's life, who holds 
 the lands for his life, or in tail, he may by his Will 
 dispose of this ; and if the tenant in tail or for life 
 dies during the life time of the Teftator, such lands 
 
 which
 
 ( 4-0 ) 
 
 which will then come to his possession will pass 
 without any republication of his Will ; the rever- 
 sion at the time of the making the devise being a 
 certain present intereft, though it was to take place 
 in future. As to money and personal estate, the 
 rule is different, these being continually fluctuating 
 and uncertain. And for a further explanation of 
 the reasons of these rules, see before, c. I. p. 2, 
 and 6. also Appendix., No. III. 
 
 CHAP.
 
 CHAP. IV. 
 
 OF THE DISPOSAL OF LANDS BY WILL. 
 
 i. Lands Freehold, Leafebohl, and CofyboldDifllnSion between 
 them. 
 
 a. Freeholds^ their federal Kinds. 
 
 3. Divifton of this and the following Chapter on the deviftng and 
 fettling Land. 
 
 4. Wills conjirued favour ably ^ and Rules thereon, 
 
 5. What Words give a Fee-Simple, or the whole EJlate and Property 
 in Land And herein of Devifes on Trujl to pay Debts , &c. 
 
 6. What Words give an Eflate-fail and for Life. 
 
 1. AT has been already, in the former intro- 
 ductory chapters, explained by what acts of par- 
 liament persons are enabled to make their Wills of 
 lands, and the forms necessary thereto. This and 
 the following chapter shall be dedicated to the ' 
 consideration of the different modes of devising 
 and settling lands ; and for that purpose a few ex- 
 planations may be in the first place necessary for 
 the more clear comprehension of what follows. 
 
 By the word Lands, in its most extensive sense, 
 people in general understand all manner of estates 
 whatever, whether freehold, leasehold, or copy- 
 hold ; but the law distinguishes materially between 
 them. Lands in which a man has a freehold are 
 considered as real estate, while leasehold lands 
 make a part of his personal estate, and they, as 
 
 well
 
 ( 42 ) 
 
 well as copyhold lands, of which more shall be 
 said hereafter, may be disposed of by the same 
 kind of Will as his money and goods. And hence 
 arises the necessity of understanding what is meant 
 by those terms of law, so continually and unavoid- 
 ably made use of throughout this work. 
 
 2. FREEHOLD lands, then, are either, first, 
 such as a man is possessed of the whole property 
 in, and which eftate is in law called a fee-fimple, 
 being the higheft and beft eftate a man can possibly 
 gain, as he may dispose of it to whom he pleases, 
 cither in his life time, or by his Will, under the re- 
 gulations before mentioned. Secondly, such lands 
 as are intailedj that is to say, which after the 
 death of the parent are intended to descend to his 
 children 5 and this is called an estate in feet-tail ; 
 but to which lands the father can in his life time ac- 
 quire an absolute right, as much as if he had ori- 
 ginally the feersimple in them, by certain modes of 
 conveyance, and thus procure a title to dispose of 
 them by Will, in prejudice to his heirs. Thirdly, 
 Such lands as are held for the term of another per- 
 son's life, which also are considered as freehold, 
 and which in the last chapter [3./>. 33.] were 
 mentioned to be devisable by Will, if the person 
 for whose life they are held (who is called the 
 cestui que vie] survives the person possessing the 
 lands un4er that title. Fourthly, Such as a man 
 has an estate in for his own life, and over these he 
 can have no power by his Will, (except as before 
 mentioned in the case of corn growing on them,) 
 the land being then to go to some other person : 
 But such an estate is a freehold, and is by the law 
 of England considered as of an higher nature than 
 a leasehold interest for any term of years, how long 
 soever, even though it may be for 500 or 10OO 
 years. There are also some other estates for life,
 
 ( 43 ) 
 
 as tenant by the curtesy, and tenant in dower, al- 
 ready defined, [pa. 37, 38.] but not at present ne- 
 cessary to be further explained ; as, like the last 
 mentioned, they cease on the death of the pos- 
 sessor, and cannot be devised by Will. 
 
 3. HAVING thus settled the distinction be- 
 tween freehold and other lands, we will now pro- 
 ceed to deliver some plain information to regulate 
 the disposal of them. And for this purpose it is to 
 be enquired, first, what rules are to be observed in 
 the construction of Wills and Teftaments. Se- 
 condly, what words in a Will give a fee-simple, -or 
 the entire property in a freehold estate, to the de- 
 visee ; and what the law implies from certain parti- 
 cular forms of bequests. Thirdly, What words in a 
 Will bestow an estate-tail on the devisee ; that is, 
 an estate to him and his children, but which is liable 
 to be barred or prevented by his act ; and what 
 words give an estate for life. .Fourthly, How far 
 the law allows a man to dispose of his lands by 
 Will to several persons, one after another, in case of 
 their dyin^ without heirs ; and of devifing to fathers, 
 for their lives only, and after their deaths to their 
 children, without creating an estate-tail. And 
 here, as we shall be led into the most difficult part 
 of the Law of Wills, as to lands, some endeavour 
 will be made to explain the nature of Executory 
 Devises, being a bequest or limitation of a future 
 interest, not to take place immediately on the death 
 of the Testator, but to be executed only at a time 
 and under circumstances appointed by the Will. 
 A few words will be said on the learning of 
 Contingent Remainders, or, as they may be called, 
 chance estates ; that is, such as may or may 
 not take effect, according as certain events do or 
 do not happen. Fifthly, Of the giving a person 
 
 by
 
 by Will land for a term of years, or other uncer- 
 tain interest. Sixthly, How far these rules, as to 
 the disposition of freehold estates, apply to lease- 
 hold and copyhold estates. 
 
 I. 4. IN the construction of Wills it is an in- 
 variable rule, that a devise must be most favourably 
 expounded, to pursue if possible the intent of the 
 Testator, who, for want of advice or learning, may 
 have omitted the legal and proper phrases : There- 
 fore many times the law dispenses with the want of 
 those words in Wills which are absolutely requisite 
 in all other instruments. And thus the fee-simple 
 of, or entire property in, land may be conveyed by 
 Will, without using those words of inheritance, 
 and an estate-tail may be given without the words 
 of procreation, which are necessary to create those 
 estates by deed ; the intent of the devisor supplying 
 that defect. 
 
 By a Will also an estate may pass by mere 
 implication, without any express words to direct 
 its course. As where one devises lands to his heir 
 at law, after the death of his wife : Here, though 
 no estate is given to the wife in express terms, yet 
 she shall have an estate for life by implication ; for 
 the intent of the Testator is clearly to postpone the 
 heir till her death, and if she does not take it no- 
 body else can : But if an estate is given to a 
 stranger after the wife's death, the devise does not 
 raise an implication in favour of the wife, the estate 
 descending to the heir during her life. 
 
 In all cases where implications are allowed they 
 must be such as are necessary, or at least highly 
 probable, and not merely possible. 
 
 Under a devise to a wife for life, provided she 
 remained a widow, but in case she married a se- 
 cond husband then to J. S. when he should attain 
 
 his
 
 ( 45 ) 
 
 his age of 23 years, the wife was held to hare an 
 absolute estate till J. S. was 23, though she married 
 before that time. 
 
 Where a title depends upon the words of a Will, 
 any dispute relative to it is as properly determinable 
 in Chancery, by a court of equity, as before a judge 
 and jury , there being no distinction between the 
 rules of law and equity herein ; for the Will is 
 construed in each court with equal favour and be- 
 nignity, and expounded on its own particular cir- 
 cumstances, connected with and regulated by the 
 general rules of law and equity. 
 
 The intention of the Testator is said by a great 
 lawyer to be the pole star to guide the judges in 
 the exposition of Wills ; but though it is allowed 
 to be thus considered, in order to explain the 
 words of the Will, yet such intention must be col- 
 lected from the Will itself, and not from any re- 
 ports or evidence concerning it : the courts having 
 been at all times careful of admitting verbal testi- 
 mony of any kind in respect to a Will ; as it might 
 be the means of much perjury and contrariety of 
 evidence, which the legislature have now taken 
 great pains to avoid in regard to Wills. And little 
 credit being due to any thing that may have fallen 
 from a man himself, either before or after making 
 his Will ; it often appearing that insinuations may 
 be thrown out purposely to mislead those who are 
 interested in the disposal of his property. 
 
 Notwithstanding that wills are thus generally 
 favoured, yet where a person endeavours to make 
 a settlement of his estate against the reason and 
 policy of the common law, the judges are bound to 
 reject it. And where a man by his Will makes no 
 other disposition of his land than the law itself 
 would have done, had he not made any Will, there 
 such a Will is useless, and will be invalid. As if I 
 give land to my son and his heirs, or to John Mills 
 
 and
 
 ( 46 ) 
 
 and his heirs, and my son or John Mills is my heir 
 at law, this is a void devise, and the person to 
 whom the land is given shall not take the land 
 under the Will, but by descent, being the better 
 title, as if no Will had been made; for a descent 
 strengthens a title, taking away the entry of such as 
 may poffibly have right to the estate : But he who 
 has an estate by devise is said by law to be in by 
 purchase; a worse title than descent. If I give my 
 land to my wife for life, and after her death to my 
 son, who is my heir at law, or if I give it to my 
 executors for a term of years, in order to pay my 
 debts, and after the expiration of that term to my 
 son ; in both cases he shall not take the land by this 
 devise, but by descent; as without such direction 
 in the Will the land would have come to him after 
 the death of my wife, or payment of my debts. 
 
 But if I by my Will create an estate in my heir 
 different from what he would have taken by law, 
 there the devise shall be good, the quality of the 
 estate being altered, and it being indeed not the 
 same estate as would have descended to him. As 
 if I, being possessed of lands in fee-simple, give 
 my son an estate-tail in those lands, and after his 
 death without issue devise it to another, here he 
 shall take by the Will, which confines his interest, 
 and not by descent, by which he would have been 
 entitled to the fee-simple ; the intention of the 
 Testator being always to prevail : and here it is 
 manifest that the son shall not not have such an 
 estate as the law would have given him. 
 
 Those devises are also void and rejected where 
 the words of the Will are so general and uncertain 
 that no meaning can be collected from them. And 
 therefore where a man by Will gives " all to his 
 mother," these general words will not pass lands 
 to his mother; for since the heir at law .has a plain 
 and uncontrovertQd title, it would be severe and 
 
 unreasonable
 
 ( 47 ) 
 
 unreasonable to set him aside, unless the intention 
 of the Testator is evident, from the Will ; for that 
 would be to set up and prefer a dark, and at best 
 but a doubtful title, to a clear and certain one. 
 
 All devises that tend to introduce perpetuities, 
 of which more shall be said hereafter, are also 
 void. 
 
 If a man devises land to the heir of John Wil- 
 liams, John being alive at the time of making the 
 devise, and at the death of the Testator, the heir of 
 John shall take nothing by the devise ; because 
 during the life of John he can have no heir ; and 
 the devise being immediate to John's heir, if such 
 heir cannot take the land at the death of the Tes- 
 tator, he shall never have it. 
 
 So a devise of real estate to the heir of an alien is 
 void ; because an alien, according to the policy of 
 the English law, can have no heir, either to inherit 
 or to take by purchase. 
 
 II. 5. WHAT words give a fee-simple, or the 
 whole estate and property in land ; and herein of 
 charging debts on land, and devises on trust to pay 
 debts, &c. 
 
 It would be endless to multiply individual cases 
 as to the construction of Wills when the words 
 have been held to give an eftate in fee, in tail, or 
 for life. The general rule of construction, that 
 governs all uncertain cases, of which innumerable 
 instances occur in the law reports, may be stated 
 shortly as follows : If there be no words added to 
 the devise to limit the estate, or to render it per- 
 petual, so as to shew the intention of the Testator 
 to convey the inheritance of the land to the devisee, 
 he can only take an estate for life ; but wherever 
 there are words and expressions, either general or 
 particular, or any clauses in a Will which the 
 courts can lay hold of, to enlarge the estate of a 
 
 devisee.,
 
 ( 48 ) 
 
 devisee, they will do so, to effectuate the intention 
 of the Testator; but if that intention is doubtful, 
 the rule of law must take place. 
 
 This rule must be kept in mind in perusing the 
 several examples which follow : 
 
 If a man devises lands to another for ever, or in 
 fee-simple, or to him and his assigns for ever, or to 
 him and his ; in all these cases the fee-simple or 
 whole estate passes by the Will : for it is evidently 
 the Testator's intention, that the gift should 
 continue beyond the life of the person devised to. 
 So if one devises lands to another, to give, fell, or 
 do ichat he pleases u-ith them., these words, by the 
 intent of the giver, convey the fee-simple ; as does 
 also a devise to one and his blood ; because the 
 blood runs through every branch of a family. A 
 devise also to a man and his successors carries a 
 fee ; for by the word successors is intended heirs, 
 the heir succeeding to the father. 
 
 John devises his land to Thomas, on condition 
 that Thomas shall pay several sums of money in 
 gross, (that is, all at once) and not saying out of 
 the profits of the land ; or shall forgive a debt due 
 from the Testator to him ; Thomas in this case 
 shall have a fee-simple in the land, though all the 
 sums of money together which he is to pay do not 
 amount to a year's rent of the land ; for the cK 
 shall be intended for his benefit : and if he was to 
 have the land for his life only, he might die before 
 he could receive the amount of the legacies out of 
 the land, and consequently be a loser : for where 
 there is a sum thus to be paid all at once and im- 
 mediately, there the person to whom the land is 
 devised shall have the whole of it, though the sum 
 is not the value of the land, or near it. As if the 
 land was 100 acres, and Thomas was to pay only 
 101. to the executors, he has a fee-simple : for the 
 quantity of the sum thus to be paid in gross is not 
 
 material.
 
 ( 49 ) 
 
 material. But if a devise were to Thomas, pay- 
 ing so much, or such sums of money, out of ike 
 profits of the lands, there Thomas would take but 
 an estate for his life ; for though he takes the land 
 charged with payment of 'the money, yet he is to 
 pay no faster than he receives, and so he can be no 
 loser. 
 
 If I devise my land to Thomas, in consideration 
 that he will forgive and release to my executors 
 1001. which I owe him, Thomas has a fee-simple 
 in the land, upon his releasing his demand on me : 
 for the devise shall be intended for his benefit j and 
 if he had no more than an estate for life, it might 
 be determined before he could receive the 1001, 
 out of the land, which would be an injustice as 
 well as a hardship. 
 
 If one devises 1001. in legacies to different per- 
 sons, and directs them to be paid within a year, 
 out of land worth 101. a year, and then devises 
 the land to another, he to whom it is devised shall 
 have the land-in fee-simple : for though the devise 
 is not made to him paying 1001. yet since he must 
 take the land by the Will, subject to the charge of 
 the legacies, it is necessary he should have a fee- 
 simple, in order to gain any thing by the devise. 
 
 So if I by my Will give my wife 101. a year, to be 
 paid out of my estate of the value of 201. a year, by 
 my executor, and afterwards give " all and singular 
 my lands to him, to be freely possessed and en- 
 joyed," my executor shall have the lands in fee- 
 simple. 
 
 If I give " my whole estate" or " all my estate, 
 real and personal" to my wife, or any other, they 
 paying legacies and debts, my debts being 2Ol. 
 and my personal estate but 51. they shall have the 
 whole of my lands, by the words " my ichole 
 estate" or " all my estate, real and personal ; " for 
 in common acceptance these words are extended 
 E to
 
 ( 50 J 
 
 to land. And the former rule, where a person is 
 to pay a sum in gross, applies here, they being to 
 pay my debts. A devise of all his estate (or estates] 
 whatsoever, or of all his effects, real and personal, 
 comprehends all that a man has, land, money, 
 goods, or other property whatever: p^evic'ed, in 
 all the above cases, that the Will is duly executed, 
 and attested by three witnesses, so as to pass land. 
 And where there is a surrender to the use of the 
 Will, a copyhold estate will fall under the same 
 construction. 
 
 The reason why the word Estate or Es f *:tes has 
 been held to give the whole fee or prope~ f in land 
 is, that either of these words comprehend-* not 
 only the land which a man has, but also all the 
 interest which he has in it. 
 
 If I give lands to John and Robert, and their 
 heirs, John and Robert will be joint-tenants, and 
 the survivor or longer liver of them shall have the 
 lands in fee-simple. And it is the same if I give 
 them to three or more persons ; the heirs of the 
 person or persons first dying not being entitled to 
 any thing, and the persons dying not being en- 
 titled to dispose of any part by their Will, the 
 survivor bylaw taking the whole. But if I give 
 land to two or more persons, and their heirs, to be 
 equally divided between them, this will make them 
 tei.ants in common; each person's moiety or share 
 of the estate descending to his own heirs respec- 
 tively, and being devisable by Will, not surviving 
 to the other. It is proper therefore in all Wills, 
 when this latter estate is meant to be given, (and 
 which is generally the case \\here land is given 
 to two or more, otherwise than as trustees), to 
 add the words " to hold as tenants in common, 
 and not as joint-tenants," \\hich prevents a 
 possibility of doubt taking place. [See before, 
 page 36, 7.] 
 
 Where-
 
 ( 51 ) 
 
 Where a person has the fee-simple of a house, 
 and a lease for ninety-nine years of land adjoining 
 to it, and makes his Will, and thereby gives to his 
 son and his assigns all his estate and interest in the 
 house, lands, tenements, and appurtenances there- 
 unto belonging, upon trust that he shall, out of 
 the rents of the land thus held for a term of years, 
 pay 2001. a year during the term ; the son shall 
 have the fee-simple in the house which the father 
 had in fee-simple, and the land held under the 
 lease for ninety-nine years he shall have for the 
 remainder of the term. 
 
 If a man has lands in fee-fimple, and has also a 
 lease for several years of other lands, and by his 
 Will devises all his lands and tenements to any one, 
 the fee-simple lands only pass by the Will, and not 
 the lands held by lease for years. But if a man has 
 only a lease of land for years, and no fee-simple 
 lands, and devises all his lands and tenements ; in 
 this case the lease for years passes by the Will, or 
 otherwise the devise would be entirely void. 
 
 If lands are devised to trustees for any particular 
 purposes, without using the word heirs, yet by im- 
 plication of law the trustees must have an estate of 
 inheritance sufficient to support such trust : for 
 there is no difference between a devise to a man for 
 ever, and to a man upon trusts which may last for 
 ever. 
 
 In all cases of devises of land, in trust for par- 
 ticular purposes, or on certain conditions, it is 
 necessary to remark, that if the person to whom the 
 land is devised, and who is to perform the condition, 
 is heir at law, notice of a condition must be given 
 to him, because he having a title by descent, need 
 not take notice of any Will, lii.fess it is signified to 
 him. But if he to whom the land is devised is not 
 heir at law, he must inform himself of the estate de- 
 E 2 vised
 
 { 52 ) 
 
 vised to him, and upon what terms, and must take 
 notice of the condition at his peril. 
 
 III. 6. WHAT WORDS give an estate-tail, or 
 for life. 
 
 In deeds, the legal and necessary words to create 
 an estate-tail are, " To John Mills, and the heirs of 
 his body" which both in deeds and Wills give an 
 estate-tail. But here also the rule formerly laid 
 down will hold good; that the intention of the 
 maker of the Will supplies the want of those words 
 in particular cases. Though a man is not permitted 
 by his Will to direct an inheritance to descend 
 against the positive rules of law. 
 
 If I devise land to my son, and direct if he has 
 issue of his body lawfully begotten, that then the 
 issue shall have the land, and that if my son has no 
 issue, then that some other person shall have ir 
 after my son's death ; by this devise my son shall 
 have an estate-tail, the words in law being suf- 
 ficient for that purpose, notwithstanding my di- 
 recting how the land shall go in case of my son's 
 death without issue. 
 
 If I devise land to John Mills and his heirs male, 
 the law in favour of the Will supplies the words 
 " of his body" in this case, and will give him an 
 estate-tail. But if John Mills has a daughter, who 
 has issue a son, that son shall never inherit the land 
 under this devise, on account of the word male 
 after heirs. For this being distinguished by the 
 name of an estate in tail male, as descending to 
 sons only, the rule is, that any one claiming under 
 such a Will, must convey his descent from the 
 person to whom the land was originally given 
 wholly by male heirs, without any interruption of 
 females. 
 
 Where land is devised by Will to John Mills and 
 his heirs, and if he dies without issue, that then the 
 
 land
 
 ( 53 ) 
 
 land should go to another, this will be adjudged to 
 be an estate tail in John Mills, and not an estate in 
 fee. For here the extent of the general word 
 heirs is confined to the descendants or issue of the 
 body of John Mills ; since otherwise it would be 
 devising the whole of the estate to two different 
 persons ; firft to John Mills, and afterwards to the 
 other person ; which is transgressing a rule of law, 
 as shall be more fully explained hereafter. 
 
 So where a man gives the fee-simple and inheri- 
 tance of his land to John Mills, when he shall at- 
 tain his age of twenty-one years, and to his child 
 or children for ever ; but in case John Mills fhall 
 happen to die before twenty-one without issue, 
 then he gives the fee-simple and inheritance to 
 another ; John Mills shall only take an estate-tail ; 
 the generality of the words first used being re- 
 strained by a subsequent explanation. 
 
 If I devise to John Mills for life, and will that if 
 he dies without issue the land shall go to another, 
 this is an estate-tail in John Mills ; for it is not to 
 go to the other person till the issue of John Mills 
 is dead. If lands are given by Will to John Mills 
 and his heirs for erer, and if he dies without heirs, 
 then to his brothers or sisters, the devise to the 
 brothers and sisters is good, and John Mills shall 
 have but an estate-tail in the land ; as the intent of 
 the Testator appears that heirs of his body only 
 were meant, and not heirs in the general and most 
 extensive signification of the word. If a devise is 
 made to John Mills, and the heirs female of his 
 body begotten, and afterwards John Mills has a 
 son and daughter, and dies, the daughter shall have 
 the land and not the son, though he is in law the 
 moil worthy person, and heir to his father. But 
 because the intention of the deceased was that the 
 daughter should have it, law and conscience give 
 the land to her. 
 
 E3 Jf
 
 ( 5*) 
 
 If I give lands to a man and his heirs-male for 
 ever, this is adjudged to be an estate-tail. 
 
 If one has an estate in lands to him and his heirs 
 for another's life (being one of the freeholds before 
 mentioned at the beginning of this chapter) this 
 cannot be entailed by Will j because it is not strictly 
 an estate of inheritance, being uncertain in its du- 
 ration. 
 
 It is a positive rule in the construction of Wills, 
 in all cases where an estate is bequeathed to a man 
 for his life, and after his death to his children, with- 
 out any estate to any other person intervening, that 
 such person takes an estate-tail, notwithstanding 
 the first words give him only an estate for life. In 
 order therefore to prevent a father from taking any 
 thing more than an estate for life, it is necessary 
 to devise the land to trustees after his death, in 
 order (as the Jaw expresses it) to preserve the con- 
 tingent remainders ; that is, in fact, to secure to 
 the son such an estate as it is intended he shall 
 have, independent of the father, and which it shall 
 not be in the father's power to deprive him of : 
 Or perhaps the best way is to devise the estate in 
 the first instance to trustees, in trust, to receive the 
 rents and profits during the life of the father, to be 
 applied for his subsistence and maintenance, and 
 then to devise it after his decease to his children. 
 [See the form in the Appendix, No. V. 7.] 
 
 As to devises of copyhold estates, see afterwards, 
 Chap. V, 7. 
 
 If I am possessed of lands in fee-simple, and by 
 my Will devise them to John Mills, without saying 
 to his heirs, or any thing further than to " John 
 " Mills," he will have the lands during his life 
 only ; for the words will give him no better estate. 
 And if the devise is to John Mills and his assigns^ 
 without saying for ever, he will have only an estate 
 for life. 
 
 CHAP.
 
 ( w 
 
 CHAP. V. 
 
 OF EXECUTORY DEVISES, AND DEVISES OF 
 COPYHOLDS. 
 
 I. A Perpetuity , iv/jat it is, and <wby discouraged 
 
 a. Definition of an Executory Devise and Contingent Remainder. 
 
 3. Executory Devises, ibefrst Kind of 'them , and Examples tbtreof. 
 
 4. The second Sort of Executory Devises. 
 
 5. Rules as to both. 
 
 6. The third Sort of Executory Devises j and therein of disposing of 
 Ltasebold Lands to several Persons successively, 
 
 7. Copyhold Lands y Rules as to them. 
 
 8. Executory Devises of Money net good Otherwife of Goods and 
 personal Chattels. 
 
 IV. l. jY a Perpetuity is meant the settlement 
 of an interest in an estate, to go in the succession, 
 prescribed by the person granting or creating that 
 interest, without any pov;er of alienation or alte- 
 ration by the person or persons to whom the estate 
 is given, who are intended to take it one after 
 another, as the giver shall have appointed, and no 
 how else : or, in fewer words, it is an estate un- 
 alienable, though all mankind should join in the 
 conveyance. 
 
 These settlements or perpetuities have always 
 been held odious, and discouraged by the law, as 
 estates are by means of them rendered incapable of 
 answering the purposes of social commerce, or pro- 
 viding for the sudden innumerable contingencies of 
 private Lfe; be>;owin? on a man nothing more 
 E 4 than
 
 ( 56 ) 
 
 than an uncertain estate for life, and extending the 
 dominion over property long after the death of the 
 original possessor, who thus shews his desire of 
 incumbering an estate of which he was in his life 
 time absolute master, with fanciful and arbitrary 
 restrictions ; arising in general from whim and 
 caprice, and perhaps often from that unwillingness 
 to part with property, so distinguishingly the 
 mark of an avaritious mind. The law has, how- 
 ever, made some exceptions to the general rule in 
 favour of dispositions in last Wills and Testaments, 
 by which a man is allowed to settle his land and 
 property in a way which he is not permitted to do 
 by deed ; but this indulgence is confined by cer- 
 tain bounds of law which cannot be overleaped. 
 Executory devises, which are a restriction or re- 
 gulation of this power, and of which it is intended 
 shortly to treat in this chapter, are only so far valid 
 as they keep within the salutary prescriptions laid 
 down for them, and in which the welfare of a 
 future generation is considered as more than equi- 
 valent to the wishes of the present disposer. Yet 
 in this, as in other cases of Wills, the courts both 
 of law and equity will make a construction in 
 favour of the devise, in order to support the in- 
 tention of the testator, as far as it can possibly be 
 done, consistent with the rules of law. 
 
 For the above reasons, if there is a devise of lands 
 to John, and the heirs of his body, on condition 
 that he shall not alien, or that if he shall go about 
 or offer to alien the land, his estate shall cease and 
 go to an hospital, this devise to the hospital is void, 
 as an invention to create a perpetuity, and John 
 shall take the estate absolutely in the first instance. 
 
 2. AN Executory Devise has already (page 43) 
 been defined to be, A bequest or limitation of a 
 future interest in an estate, not to take place im- 
 mediately
 
 ( 57 ) 
 
 mediately on the death of the Testator ; but to be 
 executed only at a time and under circumstances 
 appointed by his Will. The various sorts of these 
 executory devises are intended to be explained and 
 elucidated in this chapter, with the several rules to 
 which they are subject, 
 
 Contingent Remainders are certain estates, which 
 are subject to particular rules, difficult to be under- 
 stood or comprehended by those unacquainted with 
 the terms and forms of law, They are here men- 
 tioned only as in some measure forming the foun- 
 dation of executory devises, the rules of which are 
 partly drawn from them by analogy ; and to which 
 there may be occasion to allude. But we shall be 
 careful of leading the reader into subtleties which 
 even now puzzle the bar and the bench, notwith- 
 standing the variety of determinations which they 
 have given rise to. 
 
 If land is devised by Will to John for his life, and 
 after his death to his son, John at the time of the 
 making the Will not having any son, and he dies 
 and leaves his wife with child, who after his death 
 is delivered of a son ; such child shall take the estate 
 under the Will, though born after the death of 
 John, this being a good devise, and consistent with 
 the legal rules by which Executory Devises and Con- 
 tingent Remainders are regulated and restrained. 
 
 3. THE first sort of Executory Devises which 
 shall be mentioned, is, where a man by his Will 
 devises an estate in his land to another, to take 
 place at a future time, and to arise only on the 
 happening or not happening of some particular 
 event ; in the mean time suffering his estate to 
 descend to his heir at law till such event happens, 
 as it would do if he had made no Will, and who, 
 in case the intended event does not arise, will 
 enjoy the estate for ever. This kind of estate, the 
 
 beginning
 
 ( 58 ) 
 
 beginning of which is so uncertain, and which 
 nay in fact never take place, is not allowed to be 
 created by deed, because the delivery of the land 
 (which in all conveyances of it in a man's life time 
 must be made either in fact or in law) always 
 makes the conveyance take effect from the moment 
 of the delivery, and not from any future period ; 
 but as in the case of Wills, such actual or legal 
 delivery cannot be made, the gift not taking effect 
 till the giver's death, it is of necessity dispensed 
 with. If, therefore, I devise, by my Will, lands 
 to Mar}/ Mills, and her heirs, to be conveyed to 
 her upon her day of marriage (Mary Mills at the 
 time of the making the devise being single) this is 
 a good executory devise of the fee-simple or whole 
 property of the land to Mary Mills, in case she 
 marries, and shall take effect immediately on her 
 day of marriage, and not before, till when it de- 
 scends to my heir ; and if she should never marry 
 she can never have the estate, the devise being 
 only to be executed on such event's happening to 
 her, and therefore it is called an executory devise. 
 
 To this head may be referred devises to an infant 
 not yet born, but as the law expresses it, in ventrc 
 sa mere, that is, in its mother's womb, and which 
 are good, though such child is not born till after 
 the Testator's death, as it shall take by way of 
 executory devise, when it is born. Such devises 
 were formerly held void, for that the infant not 
 being born, there was no person to take by the 
 Will ; but they are now held good, because the 
 law supposes that the Testator did intend it to him 
 when he should be born. By the same rule, an 
 executory devise of an estate of inheritance to a 
 grandson, or any other person unborn, when he 
 shall attain the age of twenty-one years, is good, 
 and there is no danger of creating a perpetuity. 
 
 4. By
 
 4. BY the second kind of these executory 
 devises, a man may give his land to several persons 
 in succession, under certain contingencies or limi- 
 tations, notwithstanding he at first apparently dis- 
 poses of the whole property or fee-simple to some 
 particular person ; and this the law calls limiting 
 a fee upon or after a fee, which cannot be done 
 by any other species of conveyance than a Will. 
 One may also hereby give an estate, for life only, 
 to one or more successively in land, and then 
 devise the fee-simple to some other after their 
 deaths. As for example : If I by Will give lands 
 to John Mills > and his heirs, and direct, notwith- 
 standing my having thus devised the fee-simple of 
 the land to him, that if John dies before he i.s 
 twenty-one years of age, then the land shall go to 
 Robert, and his heirs ; this is a good executory 
 devise in favour of Robert, who shall have the 
 land, if John dies under twenty-one ; and though 
 Robert happens to die before John, yet if John dies 
 under twenty-one, the heir of Robert shall have 
 the estate under this executory devise. 
 
 5. IN both the above kind of executory de- 
 vises, however, the law has directed, that the 
 contingencies on which the estates are to take 
 effect in future, must be such as will happen, if 
 at all, within a reasonable time after the death of 
 the Testator ; as within the life or lives of one or 
 more persons then living, or within a moderate 
 term of years ; not even a Will being indulged so 
 far as to create that perpetuity mentioned at the 
 beginning of this chapter, though an executory 
 devise is, in fact, a perpetuity as far as it goes. 
 The utmost length of time ever allowed by courts 
 of justice, after the death of the Testator, for the 
 taking place of the event on which the estate is to 
 vest or come in possession, is the life or lives of any 
 
 person
 
 ( 60 } 
 
 person or number of persons in being at the death 
 the Testator, and twenty-one years after, and in 
 the case of a posthumous child a few months 
 more ; as if I give lands to such son of a married 
 man or woman as shall first attain the age of 
 twenty-one years, and at the time of the Will 
 being made, or of the death of the Testator, 
 no such son is born, yet if any son is afterwards 
 born, he shall take the land by this executory * 
 devise, as the utmost length of time that can pass 
 before he comes into possession is the life of the 
 parent, the time from the death of the father to 
 the birth of the child, and his subsequent infancy, 
 being twenty-one years.* 
 
 So also, if I give lands, which I have in fee- 
 simple, to John and his heirs, and direct that in 
 case John dies without issue, in the. life of Robert, 
 that then the land shall go to Robert and his heirs ; 
 though this, as is before said, is a limitation of a 
 fee upon a fee, yet because Robert can only have 
 the estate on such a chance as must (if at all) 
 happen in the course of a life, namely, his own, 
 this will be held a good executory devise, by 
 which Robert will take the estate, if he survives 
 John y and John dies without issue. 
 
 If I devise, land to John for life, and after his 
 death to Robert, in fee-simple, and John dies in my 
 life time, yet the estate thus created by Will to 
 Robert is good, and he shall have the land imme- 
 diately on my death; my intention being clear that 
 he should have it after the death of John, r.nd the 
 nature of the estate given Robert by the Will, not 
 being at all altered by the death of John in my life 
 time, 
 
 V. 6. A THIRD kind of executory devise also 
 introduced in favour of Wills, and not allowed to be 
 
 * See Note (3) to No. II. in the Appendix. 
 
 created
 
 ( 61 ) 
 
 created by deed, is such whereby a man can dispose 
 of a term for years, or leasehold estate, or other 
 chattel interest, (as the law terms what is not free- 
 hold) to several persons in succession. It has been 
 before mentioned that an estate for life in lands is 
 esteemed by the law of a higher nature than one for 
 a term of even 500 or 1000 years, and from hence 
 arose the legal maxim or rule, that any grant, devise, 
 or disposition whatever, of such estate for years, 
 to a man for his life, gave him the whole term. 
 This rule is now a little dispensed with in favour of 
 Wills only ; and a man may devise a term for years 
 to John for his life, and after the death of John to 
 Robert, and may thus make as many life estates, 
 and estates in expectancy on their expiration, as 
 he pleases : But to prevent the danger of perpe- 
 tuities, it became a fixed and absolute rule, that 
 though these expectant estates (technically called 
 remainders] might be given or limited to as many 
 persons successively as the Testator thinks proper, 
 yet must all the persons who are designed to take 
 those estates be in existence, during the life of 
 him to whom the estate is first given ; for then, in 
 fact, the person who is to take last will be only 
 him who happens to survive the rest, and who will 
 thus obtain possession of the whole remainder of 
 the term unexpired ; or such future estate must be 
 directed to take effect upon such contingency or 
 condition only as must happen (if at all) during the 
 life of such first devisee. As if I give a lease for 
 vears to John for life, and after his death to Robert 
 for his life, and after the death of Robert to Peter ; 
 if Robert and Peter are alive at the time of John's 
 taking the estate under the will, this is a good 
 executory devise to them, and they shall take in 
 turn as named in the Will. 
 
 This rule has long been still further extended ; 
 and it is- now -settled, that a term for years, or any 
 
 chattel
 
 ( 62 ) 
 
 chattel interest may be given by an executory 
 devise to an unborn child of a person in existence 
 when it attains the age of 21 ; and that the limits 
 of executory devises of real and personal property 
 are precisely the same. 
 
 Thus if 1 devise a term of years to John for life, 
 and after his death to Robert, his son, for his life, 
 and then to the eldest issue male of Robert, though 
 Robert has no iflue male at the time of my making 
 the devise, nor at my death, yet if he has issue at 
 the time of his own death, such issue shall take the 
 term of years by way of executory devise ; for 
 though this is a contingency upon a contingency, 
 (that is, two chances instead of one) yet it must of 
 necessity take place (if at all) immediately after the 
 end of both the lives which were in being at the 
 time the father (to \\ihom it is first devised) took 
 the estate, and it is therefore held to be within the 
 rule above laid down. 
 
 If I give a lease for years, by Will, to my wife 
 for life, and after her death to such of my children 
 as shall be living at my death, and the survivor of 
 them, and in case all my children die without 
 issue, then I give the said lease to John Mills, this 
 is a good executory devise to him, and he shall 
 take the estate on the death of all my children 
 without issue, and not otherwise. 
 
 Though it is thus permitted to make executory 
 devises of personal estate by Will, yet wherever 
 the words, if applied to a freehold, would create 
 an express estate-tail, the whole intereft in the 
 personal estate so devised shall be in the first taker; 
 and any gift to another after the decease of such 
 first taker will not be suffered to take effect. 
 
 VI. 7. COPYHOLD lands are such as are held 
 by copy of court roll, at the will of the lord, ac- 
 cording to the custom of the manor. Of these 
 
 there
 
 ( 63 ) 
 
 there is a great variety, and the customs of the 
 several manors are infinitely diversified, which 
 in all dispositions of such lands must, in the first 
 place, be attended to ; no certain rules, therefore., 
 can be laid down, as to devising or settling the 
 same. 
 
 Copyholders regularly cannot transfer or alien 
 tleir estates, any otherwKe than by a surrender of 
 the.n into the hands of the lord of the manor, who is 
 now compellabie, on such surrender, to grant ano- 
 ther eftate at the will of the lord, according to the 
 custom of the manor, to him to whose use the sur- 
 render is made, the tenant having a settled interest 
 in the land, which his heir shall inherit, whether 
 the lord will or not ; the descent of copyhold (like 
 that of freehold) "state being in general governed 
 by the rules of the common law, except in some 
 instances where the custom of the manor is con- 
 trary ; but copyhold lands not being in other 
 respects similar to freehold lands, the rules respect- 
 ing the latter will not apply any further. 
 
 In certain cases the court of Chancery and other 
 courts of equity will supply the want of such sur- 
 render. It is said, however, to be now settled, 
 that, unless there be a valuable consideration, these 
 courts will not interpose for such purpose, but in 
 favour of three description of persons only, Credi- 
 tors, Wife, and Children ; and even in such cases 
 they proceed subject to several restrictions. For 
 though they will supply such surrender in favour 
 of Creditors, if the other eftates liable to the pay- 
 ment of debts are not sufficient, yet if there be 
 both freehold and copyhold estates devised for the 
 payment of debts, and the freehold be sufficient 
 for such purpose, the court will not supply the 
 surrender. 
 
 In supplying a surrender in favour of a Wife or 
 youngtfr Children, courts of equity respect the claims 
 
 of 
 
 4
 
 ( 64 ) 
 
 of the heir at law, and therefore will not interpose 
 if the heir would thereby be left totally unpro- 
 vided for. But the heir, whose claim is to be thus 
 respected, must be one for whom the Testator was 
 under as strong a moral obligation to provide, as 
 for the devisee. And if the supplying the sur- 
 render would not disinherit such heir, courts of 
 equity will supply it in favour of the wife, though 
 she should be otherwise provided for. But it has 
 been held, that they ought not to supply a sur- 
 render for younger children against an elder, to 
 make them in a better situation than the elder; 
 though this doctrine has been contested. 
 
 It has been also determined that equity will not 
 supply the want of such surrender in favour of a 
 grand-child, or of a bastard, who is not considered 
 as a child ; nor in behalf of legatees 5 but where 
 the surrender is refused, a Will of Copyhold lands 
 may be sufficient without it. 
 
 The regular way, therefore, to dispose of all 
 such copyhold lands, is, for the tenant to surrender 
 the same, according to the custom of the manor of 
 whch they are held, to the use of his Will, and 
 afterwards to make his Will in writing, declaring 
 how he disposes of the same ; and he may by this 
 means devise or appoint them to such uses as he 
 pleases, consistent with the custom of the manor 
 of which they are holden. 
 
 The above rules apply only where a person has 
 the actual legal property in a copyhold eftate j for 
 an equitable property in copyholds may be devised 
 by Will without surrender. Thus, where a man 
 mortgages a copyhold estate, and the mortgagee 
 is admitted and has the legal estate, the equity 
 of redemption may be devised by the mortgagor, 
 without any surrender ; for he has indeed no estate 
 which he can surrender to the use of his Will. 
 
 8. HAVING said thus much of executory de- 
 vises of lands, and chattel interests, it may now be 
 
 necessary
 
 ( 65 ) 
 
 necessary to give some short information relative to 
 a like disposal of goods and mere personal estate. 
 
 Money cannot be devised firft to one and then to 
 another; the first person to whom it is given being 
 entitled to it wholly, and money particularly having, 
 as the law expresses it, no ear-mark. As for 
 instance, if I have three daughters, and I give them 
 3001. to be equally divided between them, and 
 direct that if any of them die without issue, her 
 part shall go to the survivors, this latter devise is 
 void, and each of the daughters shall take 1001. 
 by the Will, without any benefit whatever of sur- 
 vivorship ; and if one of them dies after the death 
 of the Testator, and before the legacies are paid, 
 her share of the money shall be paid to her execu- 
 tor, or other personal representative. 
 
 But the use of chattels personal, as household 
 goods, moveables, &c. may be bequeathed to one 
 for life, and after his death the property to another; 
 as if I direct by my Will that John shall enjoy the 
 use of my household stuff during his life, and after 
 the death of John I give the same to Robert, this is 
 a good devise thereof to Robert ; but if the property 
 of the thing be bequeathed to the first of them, 
 then it is otherwise ; for the absolute gift of such 
 personal estate, though but for an hour, is a gift 
 thereof for ever. 
 
 It has, notwithstanding, been determined that a 
 devise of goods to John for life, and after his decease 
 to Robert, is a good devise to Robert, the devise for 
 life to John being to be interpreted as to the use only 
 of the goods; and, on application, the court of 
 Chancery will direct an inventory of the goods to be 
 signed by John, and deposited with a master in 
 Chancery ; and bills have been exhibited to compel 
 security to be given for the value ; but to which that 
 court is now unfriendly. 
 
 F CHAP,
 
 CHAP. VI. 
 
 OF THE REVOCATION OF WILLS: AND OF THE 
 DISTRIBUTION MADE, BY THE LAW, OF THE 
 ESTATES OF SUCH AS DIE INTESTATE : 
 THAT IS, WITHOUT A WILL. 
 
 i. Introduction. 
 
 a. Various Kinds of Intestacy, arising from informal Rills frills 
 
 revoked Revocations, and Ademptions of Legacies, either ex- 
 
 prefs or implied Instances of bet h. 
 3. Duplicates oflVills. 
 4. Revocations of Wills, by other Wills or Deeds made subsequent 
 
 thereto. 
 
 5. Rules at to Descent of Lands. 
 6. Distribution of Personal Estate. 
 7. Who are a Man's next of Kin. 
 8. Customs of London and York. 
 9. Bastards Married Women. 
 
 ITHERTO we have treated of such dispo- 
 sitions as persons are enabled to make by Will, 
 of their estates, as well real as personal. In a 
 former chapter it has been remarked, that if a man 
 by his Will disposes of his land only, in such a 
 manner as the law itself would have done without 
 any Will, such Will shall be void, and the heir 
 shall take by descent as his better title j it will be 
 necessary, therefore, to shew who are, by law, the 
 heirs of every one, and thereby entitled to his land; 
 and we shall also further proceed to explain in 
 
 what
 
 ( 67 ) 
 
 what manner the law distributes the personal estate 
 of such as die without Will (legally called In- 
 testates) j this distribution being regulated by 
 general rules, though in some places confined by 
 particular customs. The reader will then be in 
 possession of all the knowledge requisite both to 
 make his Will, and also to know when and how 
 the law will make it for him. This we shall en- 
 deavour to do in the clearest manner possible j and 
 shall then proceed to the mention of the duties of 
 Executors and Administrators, to whom in par- 
 ticular the attentive perusal of this chapter may on 
 many occasions be necessary. 
 
 ,2. IN order to proceed clearly, and without 
 confusion, it will be necessary to show in what 
 cases a person is said to die Intestate, that is, 
 without a Will, as this may happen in a variety of 
 methods, and a person may not be always aware 
 of his real situation in this respect. 
 
 First, if the Will is informal in its execution, 
 with respect to the disposition of land, as if it hath 
 but two witnefles to it, or if it is not signed by the 
 witneffes in the presence of the Testator, the law 
 will determine the maker of it to die intestate ; such 
 Will being in fact no Will at all. If a man by his 
 Will disposes both of real and personal property, 
 and such Will is attested only by two witneffcs, 
 it will be good to dispose of his personal estate as 
 he shall have thereby directed ; but it not being 
 sufficient, according to the directions of the act of 
 29 Car. 2. c. 3. to dispose of real estate, he shall, 
 as to that, be said to die intestate, and the land 
 shall descend to his heir, as though there were no 
 Will whatever. So in like manner, if a person, by 
 a Will duly executed, and properly and legally 
 witnessed, disposes only of part of his landed 
 estate or personal property, making no mention of 
 F2 the
 
 ( 68 ) 
 
 the rest, and not devising the residue of this estate 
 to any one, he is said to die intestate, as to such 
 part both of his land and personal property as is 
 not mentioned in the Will ; and the same shall 
 descend or be distributed as in the case of a perfect 
 intestacy, or dying without any Will at all. 
 
 A person is also said to die intestate, if after 
 having made his Will he revokes it, without 
 making any other Will, and such revocation may 
 arise from various causes both in fact and law, and 
 is either express or implied. Express, as if he 
 absolutely cancels the Will, by tearing off the seal 
 and the signature, or if he destroys or burns the 
 whole Will, or expressly declares his mind that his 
 Will should be revoked : Implied, where the state 
 or condition of the person devising, or of the estate 
 or thing devised, is altered, after making the Will. 
 
 The consequences of a REVOCATION of a Willy 
 which may frequently take place, without the 
 knowlege, and even against the consent of an 
 uninformed Testator, render it useful to state the 
 law on this subject somewhat at length. 
 
 By the statute of frauds, 29 Car. 2. c. 3. already 
 so often mentioned, it is enacted, That no devise 
 of land, in writing, shall be revocable, otherwise 
 than by another Will, or some other writing to be 
 executed in the presence of three witnesses, or by 
 burning, tearing, or cancelling the Will, containing 
 such devise, by f/ic person making the same, or in 
 his presence, or by /it's consent. But it has been 
 determined, since as well as before this statute, 
 that without an express revocation, if a man who 
 has made his Will afterwards marries and has a 
 child or children, whether such child is born before 
 or after his death, this is a presumptive or implied 
 revocation of his former Will which he made in 
 his state of celibacy, as well as to his real as his 
 personal estate ; and the above mentioned statute 
 
 does
 
 69 ) 
 
 does not extend to this case, but he shall be said 
 to die intestate, the Jaw supposing that he must 
 mean to provide in the first place for his family, 
 and distributing his estate for their benefit accord- 
 ingly. This, however, being only a presumptive 
 revocation, if it appears, by any expression, or 
 other means, to be the intent of the Testator that 
 his Will should continue in force, the marriage 
 "will be no revocation oi it As in the case where 
 a man devised an estate to a woman, whom he 
 afterwards married, and when he died she was 
 with child of a son, yet the Will was determined 
 to be good, and not revoked by the marriage ; and 
 such implied revocation may in all cases be ex- 
 plained away by evidence. 
 
 If a man by his Will devises his land, and then 
 sells the same land, and afterwards re-purchases it, 
 yet the Will stands revoked (as to the land) by the 
 'sale, and the re-purchase is no declaration of the 
 Testator's mind to set it on foot again, without a 
 re-publication. 
 
 If a woman before marriage makes her Will, and 
 thereby devises her land to John, and afterwards 
 marries him, or any other, and then dies, yet 
 neither John or the husband take any thing by his 
 Will, the marriage "being in law a revocation of it; 
 and a married woman not being capable, as has 
 been before mentioned, of making a Will of lands. 
 
 Where a man possessed of Stock or money in 
 the funds devises the exact quantity he is possessed 
 of to any one or more persons by his Will, this is 
 a specific legacy ; and if the Testator afterwards, 
 before his death, sells any part of the stock so 
 devised, such sale shall operate as a revocation (or 
 as the law terms it an ademption or taking away) 
 of so much of the legacy as shall be sold ; and the 
 legatee or legatees shall only be entitled to so much 
 stock as actually remains at the time of the Tes- 
 F 3 tator's
 
 ( 70 ) 
 
 tator's death ; and if there is no stock at all re? 
 maining, the whole legacy is gone, and the legatees 
 cannot come on the other part of the estate for a 
 satisfaction. If the Testator, however, after sale of 
 part of the stock, purchases other stock, this shall 
 restore the legatees to the amount of such pur- 
 chase. Thus, if a man, having 15001. 3 per cents, 
 bequeaths the same by his Will, and then sells 
 5001. and dies, the legatee shall have only the 
 10001. remaining ; but if before his death the Tes- 
 tator purchases other stock, and dies, leaving the 
 same unsold, the legatee shall have the \vhole 
 stock, if less than 15001. or if more, to the amount 
 of the legacy. 
 
 But if one, not having any stock at all at the 
 time of making his Will, give legacies, to consist 
 of stock, describing the same, this shall operate 
 not as a specific legacy, but as a direction to his 
 executors to purchase so much stock, and pay the 
 same to the legatee, who will then stand in the 
 same situation as all the other general legatees. 
 
 In the case of lands, where the law does not 
 imply a revocation, it must be in writing, operating 
 as a Will, and signed by the person making the 
 Will, or by some writing, by which the Testator 
 declares his intention to revoke the first Will, and 
 signed *by three witnesses, pursuant to the statute 
 or frauds. [See the Appendix, No. III.] 
 
 A subsequent devise to another person, though 
 he may be incapable of taking, is a revocation of 
 a precedent devise to a person who was capable 
 of taking, as it serves to shew the intent of the 
 Testator to revoke the first devise, though the 
 second cannot take effect. But one Will cannot 
 be revoked by another Will, though the latter Will 
 contain a clause declaring all former Wills to be 
 revoked; unless the second Will is valid and 
 effectual. Yet a Will may be revoked by a deed 
 
 or
 
 or instrument written merely for the purpose of 
 revocation ; if it is attested by three witnesses ; 
 and the testator must sign it in the presence of the 
 witnesses, which, as already noticed (page 8), is 
 not specifically directed by the statute of frauds in 
 the case of the execution of a Will. 
 
 S. IT often happens that there is a duplicate 
 of a Will made, and deposited in the hands of an 
 executor, or other person. In such case, a can- 
 celling of that part of the Will which is in the 
 possession of the Testator is a sufficient revocation 
 of both the parts, as well that in his own hands as 
 the duplicate in the hands of the executor ; they 
 being both in fact but one Will. But it is best 
 that such cancelling should be before witnefles. 
 And so if a Testator makes a second Will, and 
 duly executes the same, it shall, without any thing 
 further, revoke and make void the former Will 
 and Duplicate. 
 
 4. WHEN a latter W r ill is the instrument by 
 which a former is revoked, the revocation effected 
 thereby is liable to be recalled until the death of 
 the Testator , for although by making a second 
 Will, the Testator intends to revoke the former, 
 yet he may change his intention at any time before 
 his death, (until which neither of his Wills can 
 have operation) -, and then the latter (being a 
 revocable instrument itself, and only affecting the 
 former as far as it is itself efficient), being revoked 
 is as no Will j the consequence of which is, the 
 first Will never having been cancelled, but remaining 
 entire, stands in like manner as if no other had 
 been made. But if a prior Will be made, and 
 then a subsequent one, expressly revoking the 
 former, in such case, although the first Will be 
 left entire, and the second Will be afterwards 
 F 4 cancelled,
 
 ( 72 ) 
 
 cancelled, yet the better opinion seems to be that 
 the former is not thereby set up again ; and it has 
 been determined, that where a Testator having 
 made a new Will, actually cancelled the former 
 Will by tearing off the name and seal, &c. and 
 afterwards cancelled the latter Will, the former 
 Will was not revived thereby, although a counter- 
 part thereof was found in his possession uncan- 
 celled and undefaced : But the party was held to 
 die intestate, because the revocation was here an 
 express, independent, substantive act ; by which 
 the former Will became to all intents and purposes 
 void and incapable of taking any effect, unless as 
 a new Will by force of a republication. 
 
 Revocations of a Will may also take place by 
 an actual or intended alteration in the estate of the 
 Testator. And here it is to be observed, that the 
 principle which governs cases of such actual alte- 
 ration is clearly distinguishable from that which 
 governs cases of an intended alteration only : In 
 the former cases the revocation is a consequence 
 of law, uninfluenced by and independent of any 
 intent in the Testator to revoke or not ; but in the 
 latter cases the revocation is an inference from the 
 fact, as furnishing a ground to conclude that such 
 was the intent of the party. 
 
 The following general principles will explain 
 the nature of such revocations, and the decisions 
 of the Courts thereon ; and the instances quoted, 
 though few, may suffice in a work of this nature. 
 
 There is no feature in our law more prominent 
 than that of an uniform solicitude on every occasion 
 to favour the heir, and prevent his being dis- 
 inherited. This anxious attention to the interest 
 of the lawful representative has introduced into the 
 law, respecting devises of real estates, this fixed 
 principle, namely, that as at the time of making 
 his Will a man must be seised of the estate he 
 
 devises,
 
 ( 73 ) 
 
 devises, so the law requires that such estate should 
 remain in the same plight and unaltered, to the 
 time of the consummation of the devise by his 
 death ; and that his original intention in respect 
 thereto should continue unremittingly the same 
 until the object of it takes effect, and therefore 
 not only any alteration or new modelling, which 
 makes it a different estate, but also any intent of 
 the owner to alter or new model the estate, will 
 in construction of law render a disposition of it by 
 Will invalid. 
 
 Any alteration whatever in a freehold estate will 
 operate as a revocation, even although the act done 
 be necessary to give effect to the disposition made 
 by such devise; and the rule of law will be the 
 same although the act be expressly declared to be 
 done with a view to give effect to the Will, if by 
 its operation the devisor become possessed of the 
 estate as by a new purchase : for the rule being 
 introduced with a view to preserve the inheritance 
 in the heir at law, and not with a view, in this 
 instance, to carry into execution the intent of the 
 devisor ; the question here is not whether the de- 
 visor intended to revoke, but whether he intended 
 to do that, the effect of which in law will be to 
 alter the estate or interest which was in him, by 
 passing it away and taking it back through a new 
 channel ; for if that be his intention, whether he 
 meant to revoke or not is immaterial ; the alteration 
 operating as a revocation in law and not as a revo- 
 cation by the party, and therefore taking effect 
 without reference to the intent of the party as to 
 the stability or non-stability of the Will. 
 
 Since courts of equity have considered articles 
 for the sale of estates, or respecting the settlement 
 of them, as of the nature of actual conveyances, 
 from the time at which they are agreed to be 
 carried into execution, even covenants, when the 
 
 person
 
 1 1* ) 
 
 person with whom the covenant is made has a 
 right to a specific performance, have been allowed 
 in equity to operate as revocations of Wills prer 
 vioufly made. 
 
 But, upon the principle that no actual alteration 
 is made in the thing devised, the changing of 
 truftees, where the estate originally devised is onlv 
 the trust, will not amount to a revocation ; though 
 the estate is absolutely conveyed to different par- 
 ties from those who held it at the time of the de^ 
 vise, as in the case of an intended purchase being 
 completed, or a mortgage paid off, by the Testator. 
 
 Under the head of intended alterations of his 
 estate by the devisor may be arranged those cases, 
 where the devisor, after making his Will, attempts 
 a disposition of his estate, and intends a complete 
 conveyance, but fails therein ; either for want of 
 due formalities in the instrument that he uses, or 
 from an incapacity to take, in the person to whom 
 he means to convey. In these cases of intended 
 alteration, it may be shewn that the divisor had 
 no intent to alter the disposition he has made j and 
 if that be made out in proof, no revocation will 
 ensue, from the circumstance of there having been 
 such imperfect conveyance. 
 
 In all cases, where a person having lands in fee 
 devises them, and then parts with or conveys them 
 away, though he afterwards, nay immediately, 
 takes a new estate in fee, this will be a revocation 
 of his Will. And therefore where a person having 
 made his Will, and thereby devised his real estate, 
 afterwards, in contemplation of an intended mar- 
 riage, conveys that estate to trustees for the use of 
 himself and his heirs till the marriage should take 
 effect, and after the marriage for other particular 
 uses, but happens to die before any marriage 
 had; this has been determined to be a revocation 
 of his W r ill as to the disposal of such estate. But 
 
 in
 
 ( 75 ) 
 
 in the case of sisters being coparceners, or joint 
 heirs, as also in the case of any persons tenants in 
 common, having devised their several parts by 
 Will, any partition between them, or even the 
 levying a fine, in consequence of and to strengthen 
 the same, shall not revoke their Will ; if the con- 
 veyance is merely for the purpose of partition. 
 
 If a man possessed of lands in fee devises the 
 same by his Will, and afterwards mortgages them 
 in fee, to secure a sum of moaey, though in law 
 the legal estate is conveyed to the mortgagee, or 
 person to whom the lands are mortgaged, and 
 though such mortgage is therefore held in jaw to 
 be a revocation of the devise in the Will, yet in 
 equity it is now settled that these mortgages shall 
 only operate as a revocation in proportion, or, as 
 the law stiles it, pro tanto, that is, for so much as 
 the land is mortgaged for ; by which means the 
 devisee shall take the land under the Will, subject 
 to the mortgage. But if I devise lands to John 
 in fee, and afterwards mortgage the same lands to 
 John, this has been decreed to be an entire revo- 
 cation, it being inconsistent with the devise. 
 
 A conveyance by way of mortgage for years, 
 amounts both in law and equity only to a con- 
 ditional revocation pro tanto of a devise in fee ; 
 but the construction of the effect of such mort- 
 gage is different in law and equity. In law the 
 mortgage is considered as an absolute revocation 
 of the devise, during the term of years for which 
 the estate is mortgaged, but the reversionary right 
 to the estate after the expiration of that term is 
 held to pass by the Will : In equity such a mort- 
 gage is considered as a revocation pro tanto only, 
 and the right to the reversion gives the devisee 
 also a title to the equity of redemption. 
 
 If a man possessed of a leasehold estate in land 
 for a term of years, or for a life or lives, by his 
 
 Will
 
 ( 76 ) 
 
 Will bequeaths the same to Johw, and after making 
 his Will takes a new lease of the same land fry 
 another term of years, or for other life or lives, so 
 that the former lease is surrendered, in fact or in 
 law, this is a revocation of his Will, or at least 
 makes the same void as to this devise ; for this is 
 another lease, and not that which he had at the 
 time of the making of the Will. But these revoca- 
 tions turn merely on the penning of the Will ; that 
 is to say, whether the words are sufficient to pass 
 the subsequent renewed interest, and not on any 
 inability in point of law to give by Will an after- 
 taken lease ; and therefore if such lease be disposed 
 of by Will by a sufficient form of words, it will pass 
 notwithstanding any subsequent renewal. As if 
 one give " all his estate, right, and interest, he 
 shall have to come in such lease at the- time of his 
 .death." So such right of renewal will pass by a 
 general devise of the residue, or by a devise of 
 the lease together with the right of renewal ; and 
 the devise of the lease carries the right of renewal 
 as well as the lease itself. 
 
 In all the above cases, where a Will is deter- 
 mined to be revoked, and no other Will is made, 
 a person is said to die intestate ; at least as far as 
 concerns the devises thus revoked. In all cases 
 also of void devises, and which we have more 
 particularly specified, an intestacy shall take place 
 as to those, unless there is a particular devise 
 contained in the Will of the residue of the Tes- 
 tator's estate to some person ; in which case the 
 legacies sink into and become part of such residue, 
 and go to the residuary legatee. 
 
 5. HAVING thus settled in what cases a person 
 shall be aid to die intestate, we next proceed to 
 explain in what manner the law disposes of his 
 estate, as well real as personal. 
 
 But
 
 ( 77 ) ^ 
 
 But before proceeding to explain the descent of 
 lands, it may be necessary to mention two estates 
 created by' operation of law, viz. Tenancy by the 
 curtesy, and Tenancy in dower ; the former of 
 which prevents, for a time, the descent of the 
 whole estate to the heir immediately on the death 
 of the ancestor, and the latter the descent of one 
 third part of it. 
 
 Tenancy by the curtesy has been already men- 
 tioned. By freehold lands there we mean lands 
 which the wife has in fee-simple or fee-tail; and 
 on the death of the wife, in this case her husband 
 is, by the curtesy of England, entitled to remain in 
 possession of the receipt of the rents and profits 
 of all such land during his life, and after his death 
 it descends to her heir. 
 
 A widow is entitled to dower, that is, to one 
 third part of all such lands as her husband had at 
 any time during the marriage, in fee-simple or 
 fee-tail general: the rents and profits of which 
 third part she is by law entitled to, during her life 
 only. By fee-tail general, we mean such an estate 
 as will descend to any legitimate children what- 
 ever the father may have. There is in law an 
 estate in land called fee-tail special; that is, where 
 the land is limited to descend to the issue of the 
 father by some particular wife only. In such case, 
 only the wife whose issue is to inherit is entitled 
 to dower, and no other wife whatever. This 
 dower a widow is entitled to, whether she has 
 children by her husband or not. But if a woman 
 elopes from her husband, and lives in adultery 
 with another man, she forfeits her dower, by a 
 particular act of parliament made for the purpose. 
 
 Subject to the above mentioned rules, as to cur- 
 tesy and dower, land, or real estate, (which words 
 we will at present suppose to mean the same 
 thing) always descends to the Heir-at-law where 
 
 there
 
 there is no Will. Personal estate, on the con- 
 trary, is distributed, under the rules hereafter 
 mentioned, among all the Next-of-kin to the per- 
 son dying intestate : of whom the heir at law may, 
 as it will hereafter be seen, be only one. It shall 
 therefore be the business of a few pages to explain 
 the descent of real estate ; and afterwards we will 
 more at large consider the distribution of personal ; 
 and which being at present regulated by a parti- 
 cular statute, it would be useless, and perhaps dis- 
 agreeable, to enter into a detail of the ancient 
 rules of the common law, or the various modes 
 made use of by the Ordinary to engross the power 
 over the estate ; or to trace the rise, progress, and 
 decline of ecclefiaftical jurisdiction, now only al- 
 lowed under the authority of the statute, and 
 bound to act under that direction. 
 
 To regulate the descent of real estate, certain 
 rules arc laid down by the Engliih law, which it 
 would be tedious here to enumerate at length, but 
 the result of which is as follows. 
 
 On the death of any person possessed of the 
 whole property (or, as the law calls it, seized in 
 fee) of land which he had himself purchased, with- 
 out making any disposal thereof by Will, it is the 
 general rule that his eldest son, if alive, shall in- 
 herit. (The case of Borough-English lands forms 
 one exception, such lands by the custom descend- 
 ing to the youngest son ; and the custom of Ga- 
 velkind another, by which all the sons inherit to- 
 gether.) If such eldest son is dead, his eldest son 
 (or other issue, according to the rules immediately 
 laid down) succeed to the land. If the eldest son 
 is dead without leaving any issue, then the land 
 descends to the second, third, and all other sons 
 respectively of the intestate, in order of birth, or 
 their issue, in like order: the issue of an elder 
 brother being always preferred to the person of a 
 
 younger ;
 
 ts ) 
 
 younger that is to say, the children of the second 
 son to the third son himself, and so on. If a man 
 has no sons, nor any issue of them, living at his 
 death, his daughter is to inherit : or if he has more 
 than one, they take the land altogether, how many 
 soever there may be ; it being the rule of law, that 
 where there are tv> o or more males in equal degree, 
 the eldest only shall inherit land ; but that females 
 inherit altogether; and in this case the daughters 
 are called coparceners, as being joint partners in 
 the land. If the daughters are dead, leaving issue, 
 such issue shall inherit the land, the eldest son of 
 each taking his mother's share 5 or if no son, their 
 daughters equally. As for example, if a man has 
 three daughters, all of whom die in his life time, 
 the first leaving two sons, the second leaving two 
 daughters, and the third a daughter and a son, the 
 son being the youngest, his land shall be divided 
 thus : one third part to the eldest son of the first 
 daughter, one other third part between the two 
 daughters of the second daughter, as coparceners, 
 and the remaining one third to the son of the third 
 daughter ; it being a positive rule of law relative 
 to descents, that males are always to be preferred 
 to females. 
 
 If a man dies without any issue, the land de- 
 scends to his eldest brother of the whole blood, {that 
 is, a son of the father and mother of the deceased), 
 or his issue, in the order above prescribed with 
 respect to the issue of the owner of the land , or in 
 case of the death of his eldest brother without 
 issue, then to his second, third, or other whole 
 brothers respectively, in order of birth, or their 
 issue. If he has no brothers, then to his sisters of 
 the whole blood all together, or their issue, subject 
 to the same rules as above-mentioned with respect 
 to his daughters. If he has neither son nor 
 daughter, brother nor sister, the land then goes to 
 
 the
 
 ( 80 
 
 the eldest uncle, being the son of his father's 
 father and mother, or his issue ; and for want of 
 such, to his other uncles by the father's side, or 
 their issue. In defet of all these, to his aunts on 
 the father's side, equally among them all, in like 
 manner as to his daughters or sisters-. 
 
 It would be needless to trace the rule of descent 
 any further, the above being sufficient to extend 
 to all common cases. The reader is to observe 
 that land can never lineally ascend ; that is, it can 
 never go to the father or mother, grandfather or 
 grandmother, of the person dying ; but shall rather 
 escheat, i. e. lapse to, and become the property of 
 the King, or the Lord of the Fee, for default of 
 heirs. It may, however, ascend collaterally to his 
 uncles or aunts : and thus a man may, in certain 
 events, obtain lands by inheritance which were 
 formerly his son's; as where one dies without 
 Will, not having issue, leaving only a father and 
 an uncle (the father's brother) ; in this case the 
 uncle shall take the lands as heir to his nephew, 
 and if he also dies without Will, they will from 
 him descend to his brother, the father of the 
 original intestate. 
 
 But in case the person dying was not himself the 
 purchaser of the land, but that the estate in fatt 
 descended to him from his father or mother, or 
 any other ancestor, it is to be remarked, that the 
 blood of that line of ancestors from whom the land 
 did not descend can never inherit. Thus if the 
 land descended from his father, his mother's re- 
 lations, as sue/1, can never inherit it ; and in like 
 manner the father's relations can never inherit land 
 descended from the mother. 
 
 It is also necessary to remind the reader, that 
 
 Delations of the half blood only can never succeed 
 
 to land, but are entirely deprived of any title 
 
 .it soever to the land by descent. In all cases 
 
 therefore,
 
 ( 81 ) 
 
 therefore, the collateral heir (such as brother, 
 nephew, uncle, &c ) must be the nearest kinsn.an 
 of the zvhole blood ; that is, derived not only fiom 
 the same ancestor, but from the same couple of 
 ancestors. Thus if a man has two sons by two 
 diffe ; ent wives, and dies, and his firft son takes 
 the land, as heir to him, and dies without issue, 
 the son by the other mother, being only his half 
 brother, shall never inherit the land as heir to his 
 brother. But if one possessed of fee-simple land 
 dies, leaving a brother and two sons by different 
 wives, on his death his land shall descend to his 
 eldest son, as before mentioned ; and in case of 
 the death of such eldest son without issue, it shall 
 come to his uncle, the father's brother ; and then, 
 if the uncle should happen to die without issue, 
 the land shall from him descend to his nephew, 
 the half brother of the son from \vhom it came to 
 the uncle 5 such nephew being heir to the uncle 
 of the whole blood, notwithstanding he could not 
 inherit the land as heir to his elder brother. If, 
 also, the eldest of two half brothers happens to 
 die without entering on or taking possession of the 
 estate, the youngest brother may inherit the estate; 
 not as heir to his half brother, but as heir to their 
 common father. 
 
 The total exclusion of the half blood from the 
 inheritance being almost peculiar to our own law, 
 is looked upon as a strange hardship by such as 
 are unacquainted with the reasons on which it is 
 grounded ; and which arise from the best general 
 principles, without regard to any private incon- 
 veniences that may now and then happen. It is 
 remarkable^ however that the Crown, which is the 
 highest inheritance in the nation, may descend to 
 the half blood of the preceding Sovereign. 
 
 Before the death of a person possessed of real 
 
 estate, the person who is next in the line of suc- 
 
 G cession
 
 ( 82 ) 
 
 cession is called an Heir apparent, or Heir pi*~ 
 sumptive. Heirs apparent are such whose right of 
 inheritance cannot be defeated in case they outlive 
 their ancestor ; as the eldest son or his issue, who 
 must, by the course of the common law, be heir 
 to the rather whenever he happens to die. Heirs 
 presumptive are such, who, if the ancestor should 
 die immediately, would in the present circum- 
 stances of things be his heirs, but whose right of 
 inheritance may be defeated by the contingency 
 of some nearer heir being born ; as a brother or 
 nephew, whose presumptive succession may be 
 destroyed by the birth of a child ; or a daughter, 
 whose present hopes may hereafter be cut off by 
 the birth of a son. 
 
 This title to lands by succession may also be de- 
 feated, even after the person who was heir to the 
 ancestor at the time of his death, has obtained 
 possession of the lands. Thus if an estate hath 
 descended to a brother, nephew, or daughter ; in 
 the case of a brother or nephew the estate shall be, 
 as the law terms it, devested and taken away from 
 them, by the birth of a posthumous child ; that is, 
 a child of the ancestor from whom they inherit, 
 born after the death of such ancestor ; and in the 
 case of a daughter such estate shall also be totally 
 devested by the birth of a posthumous son. 
 
 So if lands are given to a son, who dies, leaving 
 a sister his heir, if the parents at any distance of 
 time afterwards have another son, this son shall 
 defeat the former descent upon the sister, and shall 
 take the land as heir to the deceased brother. The 
 same estate may even be frequently devested by the 
 future birth of nearer presumptive heirs before it 
 fixes upon an heir apparent ; as if an estate is given 
 to an only child, who dies, it may descend to an 
 aunt, who may be stripped of it by an after-born 
 uncle, on whom a subsequent sister may enter ; 
 
 and
 
 ( 83 ) 
 
 and who will again be deprived of the estate by the 
 birth of a brother, the heir apparent, whose title 
 cannot be defeated. 
 
 To enter further into this so nice a subject wouM 
 but perplex those for whom these sheets are in* 
 tended. We shall therefore immediately proceed 
 to the distribution of an Intestate's personal estate. 
 
 6. BY the statute 22 and 23 Car. 2. c. 10. 
 commonly called the Statute of Distributions, (be- 
 ing made in order to regulate the distribution of 
 estates of intestates, i. e. of such as died without 
 Will), it is enacted, that the remainder of the perso- 
 nal estates of such intestates, after paying their 
 debts and funeral expences, shall, at the expiration 
 of one full year from the death of the intestate, 
 which is allowed for the purpose of paying a due 
 regard (as the statute expresses it) ro creditors, be 
 distributed in trre following manner, viz : One 
 third part thereof shall go to the widow of the in- 
 testate, and the residue to be divided in equal pro- 
 portions among his children -, or if any of .them-are 
 dead, to their legal representatives, that is, their li- 
 neal descendants. If there are no children, or legal 
 representatives of them subsisting, then one half the 
 estate shall in all cases go to the widow, and the 
 other half be distributed equally among all the next 
 of kindred to the intestate, in equal degree, and 
 their representatives. If there is no widow, the 
 whole estate goes among the children ; if there is 
 neither widow nor children, the whole of the estate 
 shall be distributed among all the next of kin, in 
 equal degree, and the representatives of such of 
 them as may happen to be dead, if such next of 
 kin are brothers and sisters, but not else ; no repre- 
 sentatives of other relations being admitted. The 
 next of kindred here referred to shall be soon more 
 particularly specified. 
 
 G 2 Out
 
 .Out of -the above rule of distribution all such chil- 
 dren are cxcepted (except the heir at law) as may 
 have had an estate settled on them by the intestate 
 in* his- lite time, or may have been advanced by 
 him, by marriage portions or other gifts, equal to 
 the share which would be due to them under such 
 distribution. And if the estate or portion so given 
 them by the intestate in his life time is not equal to 
 their distributive share, they or their representa- 
 tives shall then be entitled to so much only of their 
 father's estate under this statute as will make the 
 shares of all the children as equal as possible. But 
 the eldest son and heir at law, or any other son 
 who may be heir by particular custom, as the 
 youngest son under the custom of Borough Eiag&sh, 
 though he may have land by descent of ever so 
 large a value, and though he may have had any 
 land given him by his father, the intestate, in his 
 life time, is nevertheless entitled to his proportion 
 in the intestate's personal estate equally with the 
 other children. But if the heir at law has had any 
 advancement from his father in money, he must, 
 like the other children, allow for that, to make his 
 share of the estate equal with their's. 
 
 In all cases where children have been advanced 
 in the father's life time by gift of a marriage portion 
 or otherwise, and the father afterwards dies intes- 
 tate, if this marriage portion is not equal to the 
 share due under the statute of distributions, the 
 rule is, for such children to allow what they have 
 so received to be part of the personal estate of the 
 deceased, and then to take their distributive share 
 out of the whole. Thus, if a man dies worth 
 20001. leaving three daughters, one of whom in 
 his life time has received 5001. from him, in order 
 to make an equal distribution under the statute, 
 the advanced daughter must bring this 5001. into 
 notchpot, that is, mix it with the other personal 
 
 estate
 
 ( 35 ) 
 
 estate of her father, making that by this means the 
 sum of 25001. to one third part of which whole 
 sum each daughter is entitled, being the sum of 
 8331. 6s. 8d. and which the two unadvanced 
 daughters will accordingly receive out of the 200O1. 
 the estate of the father at his decease, and will 
 thereby leave the sum of 3331. 6s. 8d. for the ad- 
 vanced daughter, which, with her former portion, 
 will make all their shares exactly equal. It is to 
 be remembered, that where the intestate leaves a 
 widow, her one third part or share is in all cases 
 to be in the first place deducted out of his whole 
 personal estate, before any distribution is made 
 among the children. 
 
 7. WE will now. proceed further to explain 
 who are the Next-of-kin. 
 
 A man's nearest of kin, and who are to take his 
 personal estate, under the above statute, together 
 with his widow, in the proportions before mention- 
 ed, or in case there is no widow, the whole of such 
 estate ; are, in the first place, his children and their 
 representatives, who are particularly provided for 
 in the act. In case there are no children, but only 
 grand-children, then the personal estate belongs 
 to such grandchildren. If he has no wife, chil- 
 dren, or grandchildren, or issue of them, and his 
 father is living, such father shall take the whole of 
 his personal estate. If his father is dead, then, by 
 the Act 1 Jac. 2. c. 17. his mother (if he has no 
 brothers and sisters) shall take the whole ; or if he 
 leaves brothers and sisters, the mother and they 
 shall divide his effects in equal proportions, whe- 
 ther such brothers and sisters are of the half or the 
 whole blood, this making no difference in the suc- 
 cession to personal estate. If he leave a wife, and 
 also a mother, and brothers and sisters, the wife 
 
 shall 
 G 3
 
 ( 86) 
 
 shall have only one half of his effects (see 6. p. 83) 
 the remainder going to his mother, brothers, and 
 sisters equally. If his wife, father, and mother are 
 all dead, then between all his brothers and sisters 
 equally, and the children of such of them as may 
 be dead ; or if he has only one brother or sister, 
 the whole estate goes to such one. If he has 
 neither children, father, mother, brothers, nor 
 sisters, it shall go to the grandfather, or if he is 
 dead, the grandmother.* If none of these are liv- 
 ing, then such of his uncles and aunts, and ne- 
 phews and nieces, as may be living at his death, 
 take his personal estate equally amongst them. 
 And lastly, if there are none of the above relations, 
 his first cousins equally share and share alike ; and 
 no person is ever admitted to take as a representa- 
 tive of another except the issue of the intestate's 
 children, and the children of his brothers and 
 sjsters. 
 
 In order to elucidate and explain the above, a 
 Jew observations may be necessary. And 1ft, it is 
 a rule, that in all cases where there is only one 
 person who is next of kin to the intestate, there be- 
 ing no other relation in equal degree, that one 
 person shall take the whole, as if there be but one 
 child and no grandchildren; and as in the case 
 above mentioned of the father of the intestate. 
 
 2dly, Where representation is allowed, all the 
 children of such deceased person, as maybe entitled 
 to a share, take such their parent's share among them 
 all. As if a man dies intestate, leaving two children, 
 a grandchild by another of his children, and two 
 
 * In a cate where the next of kin to an intestate were a grard- 
 father by the father's side, and a grandmother by the mother's side, 
 it was determined they should each take half of the estate. 
 
 grandchildren
 
 ( 87') 
 
 grandchildren of another, each of his two children 
 shall take one fourth part, the grandchild of one of 
 the deceased children shall have another one fourth 
 part, and the two grandchildren of the other de- 
 ceased child shall have the remaining one fourth 
 between them. The reason of this being, that the 
 grandchildren do not take this share in their own 
 right as next of kin, but as representatives of their 
 deceased parent, the children of the intestate. 
 For if a man leaves only grandchildren, as for ex- 
 ample, two grandchildren by one son, three by 
 another son, and five by a daughter, there each of 
 the grandchildren shall take one tenth part, be- 
 cause they, in this case, claim their share in their 
 own rights as next of kin, and al^are so in an equal 
 degree. 
 
 Sdly, If a person dies without children, grand- 
 children, father, or mother, and his estate is divided 
 between his brothers and sisters, or their children, 
 the same kind of rule is adopted as in the above 
 case of children and grandchildren j as if there are 
 two brothers, one sister, and three nephews and 
 nieces (children of a deceased brother or sister) 
 here the two brothers and the sister living each 
 take one fourth part, and the three nephews or 
 nieces the remaining one fourth between them, as 
 personal representatives of their deceased parent^ 
 the brother or sister of .the intestate, 
 
 4thly, If he has no children, grandchildren, fa- 
 ther, mother, brothers, nor sisters, but a grand- 
 mother living, she shall take the whole of the 
 estate, and his uncles and aunts, if he has any, shall 
 not share with her, contrary to the case of his own 
 mother, and brothers and sisters. 
 
 5thly, In case of an intestate's death, leaving 
 only uncles and aunts, and nephews and nieces, 
 (children of a deceased brother or sister of the in- 
 testate) the uncles and aunts of the intestate take 
 G 4 equally
 
 ( 83 ) 
 
 equally with his neohews and nieces, "being all Vie 
 next of kin in equal degree. 
 
 6-hIy, If when a man dies he leaves his wife with 
 chilJ, such c'.rld, when horn, shall have an eoual 
 share with his other children, or such other f r -::rc 
 as it would have b^en entitled unto, if born 
 livi'.g at the time of his death. 
 
 8. THUS an- attempt has been made familiarly 
 to explain the nature and rules of the distribu- 
 tion of the elites of such as die vi'ho t Will, 
 l^ift it is yet- further to be remarked, that the 
 sta'ute a x>ve me/.t o ed expressly excepts and re- 
 . >: custonis of the City of London, o^ the 
 province of Yorl% and of all othe^ places having 
 peculiar cu-tins, of distributing Intestates' estates; 
 ^t though, i i t k>Se r>hres, th- restrc?int which 
 persons were formerly iai.l under bv these custcros, 
 with respect ^o devising, is now removed bv t ]> e 
 Several statutes mentioned in the farmer part of 
 th'i'o - .vork ; ir et t!i' a^c : ent customs remain in full 
 f/>rc% as far is the*- re nect the distribution c r the 
 i^Btitea o c .uch as die witi^out Will ; some of ^hich 
 w<- shall *h refore proceed to mentirn. 
 
 In tie first place, in the citv of London and pro- 
 vince of York, the effects of the Intestate, after 
 r- n. i nt of his debts, are divided in the following 
 m inner, viz. If the deceased leaves a widow and 
 children, his person -il estate (deducting the widow's 
 apparel and furniture of her bed-chamber, which 
 in London is CHI led the widow's chamber) is di- 
 vided into three parts, one of which belongs to the 
 widow, another to the children, and the third to 
 the administ ator;- if only a widow, or only chil- 
 dren, they shall respectively, in either case, take 
 one half, and the administrator the other half; if 
 neither widow nor child, the administrator shall 
 have the whole, and this share, thus given to the 
 
 administrator,
 
 ( 89 ) 
 
 'administrator,- and called the dead man's par f , the 
 used to apply to his own use, till the- 
 staUi'e 1 J.'c. ( 2. c. 17. declared that the same 
 >e' subject to th: statutes of distribution; 
 -refore, this one third part is distributed in 
 rne manner, where these customs prevail, as 
 f - "/hole of the estate is in other cases of int,?s- 
 tacv% or dying without Will. So that if a 
 dies worth iSOOl. leaving a widow and a child or 
 children, the estate shall be .divided into three 
 parts v of these three parts the widow shall have 
 one, being 6001. by the custom, and the child or 
 children another 6001. also under the custom, ?.i d 
 the remaining one third, being the de.id man's 
 share, or 6001. is to be divided as directed by the 
 statute; that is, one third, being 2001. to the 
 widow, and the remaining two thirds, being 40OI. 
 to the child or children; so that in the whole the 
 widow has 8001. and the child or children 10001. 
 that 10001. to be divid-d among the children, if 
 more than one ; or if there is only one child to 
 belong to such one. If he leaves a widow, and 
 no child, the widow shall have three fourths of the 
 whole personal estate ; that is, one half of the 
 whole by the custom, and half of the remaining 
 half under the statute ; and the remaining one- 
 fourth part shall under the statute be distributed to 
 the next of kin. It is also to be observed, that if 
 the wife be provided for by a jointure before rrar- 
 riage, in bar of her customary part, she shall not 
 be entitled to any thing by virtue ot the custom ; 
 but she shall nevertheless have her share under the 
 statute of distributions of that one-third which the 
 custom gives to the administrator, and which he 
 is directed to distribute according!'/ ; unless she is 
 barred of that by special agreement. And if any 
 of the children are aivancel by the father in his 
 life time with any sum of money (not amounting to 
 
 their
 
 ( 90 ) 
 
 their full proportionate part) they must allow for 
 that to the rest of the brothers and sisters, in the 
 same manner as has been mentioned with respect 
 to distributions of the whole estate under the sta- 
 tute, but not to the widow, before they are entitled 
 to any benefit under the custom ; if they are fully 
 advanced, the custom entitles them to no farther 
 dividend. 
 
 Thus far in the main the customs of London and 
 of York agree ; but besides certain other less ma- 
 terial variations, which it would be here needless 
 to mention, there are two principal points in 
 which they considerably differ. One is, that in 
 London the share of the children (or as it is there 
 called their orphanage part) is not fully vested in 
 them till the age of twenty-one, before which they 
 cannot dispose of it by Will: and if they die under 
 that age, whether married or not, their share shall 
 survive to the other children ; but after the age of 
 twenty-one it becomes their absolute property, and 
 may be disposed of by Will, or, in case of their 
 dying without Will, distributed under the statute, 
 like their other personal estate. The other diffe- 
 rence is, that in the province of York, the heir at 
 common law, who inherits any lands, either in fee 
 or in tail, is excluded from any filial portion, or 
 reasonable part. 
 
 9. IN all the above cases, by children must be 
 understood legitimate chilren, i. e. such as are born, 
 in lawful wedlock; a bastard being in law ac- 
 counted the son of no one, and therefore incapable 
 of taking by descent or under the statute of dis- 
 tributions ; and if such bastard, who can have no 
 relations or next of kin, except his wife and chil- 
 dren, dies intestate, without a wife or any issue, 
 (children or grandchildren) leaving a personal 
 estate, in this case the King is entitled to such 
 
 personal
 
 (91 ) 
 
 personal estate, and administration thereof will te 
 granted to anyone whom the King shall appoint 
 by his letters patent ; and which is generally, in 
 such cases, grantee} by his Majesty to such person; 
 as appear to have the most equitable claim. 
 
 If a married woman dies without any Will, a? 
 she generally must, administration of all her good* 
 belongs of right to her husband, as her next oi 
 kin, or most lawful friend, within the statute of 
 distributions. - 
 
 And this is confirmed by the statute of 29 Car. 
 2. c. 3. enacting that the statute of distributions 
 shall not extend to the estates of married women 
 who shall die without Will, but that their hus- 
 bands may demand and have administration of 
 their rights, credits, and other personal estates, 
 and recover and enjoy the same as they might have 
 done before the making of the said act : and the 
 husband is accordingly entitled to the whole perso- 
 nal estate, and becomes her personal representative 
 to all intents and purposes. And if the husband 
 -dies after the wife, before administration taken 
 out by him, his executors or administrators, and 
 not the wife's next of kin, shall be entitled. 
 
 But where the wife is executrix to another, then 
 as to the goods which she had in that capacity, ad- 
 ministration must be granted to the next of kin to 
 the person to whom she was executrix, his personal 
 estate belonging to them 
 
 CHAP.
 
 
 CHAP. VII. 
 
 . 
 
 OF THE APPOINTMENT AND POWER OF 
 EXECUTORS AND ADMINISTRATORS. 
 
 i. Executors } iuhat they are. 
 
 2. Not compilable to aft, but may refuse If they refuse, they must 
 
 - r.ot meddle luitb the Efferts of the deceased. 
 
 3. Administrators, , <V)bat they are, and in lubat Cases to be ap- 
 pointed. 
 
 4. To -juhom Administration is to be granted. 
 5. Oath and Bond of an Administrator. 
 6. Distinction between an Executor and an Administrator, 
 7. Appointment of Guardians by Will. 
 
 1. JL~\.N Executor is he to whom another man 
 commits by Will the execution of that his last Will 
 and Testament ; and a devise of personal estate is 
 not looked upon to be of any effect until the Will 
 is proved by the executor. An executor cannot 
 give a Will in evidence concerning personal estate 
 without producing the probate ; for it is no Will 
 until it has received the sanction or allowance of 
 the spiritual court ; which court is to judge whether 
 it is a Will or not ; and the temporal or common 
 law courts are not to look upon it as a Will as re- 
 gards personal estate till probate be made. [See 
 post, Chap. VIII. 3.] 
 
 This appointment of an executor is held to be 
 essential to the making a Will or Testament of 
 personal estate, and may be performed either by 
 express words, or such as strongly imply the same. 
 
 All
 
 All persons arc capable of being executors v, h-> 
 are capable of making Wills, and many others be- 
 side ; as, married women and infants, nay, even 
 infants unborn, or yet in their mother's womb {in 
 -centre sa mere is the. legal term of such), may be 
 made executors: but it was always the rule of 
 law that no infant could act as executor before he 
 was seventeen years old, till which time adminis- 
 tration must have been granted to some other per- 
 son, during such infancy or minority. And now, 
 'by the Act 38 Geo. 3. c. 87. 6, 7, reciting that 
 great inconveniencies arise from granting probates 
 to infants under twenty-one, it is- enacted, that 
 where an infant is sole executor, administration, 
 with the Will annexed, shall be granted to the 
 guardian of such infant, or to such other person as 
 the spiritual court shall think fit, until such infant 
 shall have attained the full age of twenty-one 
 years, when, and not before, probate of the Will 
 shall be granted to him such administrator to 
 have the same power as other administrators, du- 
 rante minori cctate. [See post, 4.] 
 
 2. BUT though a person is appointed an 
 executor by a Will, he cannot be compelled to un- 
 dertake the executorship against his own desire, 
 unless he has, after the death of the testator, med- 
 dled with his goods as executor ; for then he is 
 not only to be compelled to perform the office of 
 an executor, but even if he should refuse so to do, 
 his refusal w r ould then be void, and he should be 
 charged as executor- and therefore if the executor 
 named in the Will is resolved not to act, but to re- 
 fuse the executorship, he must be particularly care- 
 ful that he does not administer the goods of the 
 deceased as executor; for if he has once adminis- 
 tered as executor he may at any time after be com- 
 pelled to undergo the burden of that office, and 
 
 may
 
 ( *') 
 
 maybe sued as such by the creditors of the Testator, 
 though he cannot sue any person debtor to the 
 Testator until he proves the Will, and which he 
 must then do in his own defence. 
 
 A person is said to administer as executor, so as 
 thereby to be compelled to accept the executorship, 
 when he performs those acts which are proper to 
 an executor, as by paying the debts due from the 
 Testator, or receiving any debts due to him, or 
 giving acquittances for the same, with other such 
 like acts; but generally whoever, as a mere tres- 
 passer, takes possession of any of the goods or 
 effects of the Testator, and converts the same to his 
 own use, and not to the use of the Testator (as to 
 the payment of his debts or legacies) does not ad- 
 minister as executor. The most safe course, how- 
 ever, is not to meddle at all, but to refrain entirely 
 from any disposition whatever of the Testator's 
 goods. Yet even where a person has not med- 
 dled with the goods of the Testator at all, and is 
 therefore not compellable to accept the executor- 
 ship, yet if a legacy is left to him as executor by 
 the Will, he may be compelled either to act as 
 executor, or on refusal to lose his legacy. 
 
 This refusal of a person to take upon him the 
 executorship, cannot be by word only, but it must 
 be entered and recorded in the ecclesiastical court. 
 
 If any person, not being appointed executor by 
 the Will of the deceased, nor having administration 
 granted to him by the Ordinary (as after mentioned) 
 takes upon him to intermeddle with the goods or 
 effects of the deceased, and to act as executor, he 
 becomes executor of his own wrong, (de son tort) 
 and shall be answerable both to the rightful exe- 
 cutor or administrator, and to the creditors of the 
 deceased, to the amount of the effects administered 
 by him, and he mav pay the Testator's just debts 
 with such effects, the payment of which debts 
 
 shall
 
 { 95 ) 
 
 shall he allowed him , and in case such executor 
 of his 6wn wrong dies, having any goods cf the 
 deceased in his hand, his executor or administrator 
 shall be liable to answer for the same, as he him- 
 self must have done if living. 
 
 Where there are several executors named in the 
 Will, some of whom refuse to act, and others of 
 them prove the Will, they who refuse may after- 
 wards at their pleasure administer, notwithstand- 
 ing such refusal, before the Ordinary : and this is 
 what in the spiritual court is called a double prc- 
 bate, which is in this manner ; the first executor 
 who comes in takes probate of the Will in the 
 usual form, with a reservation to the rest. After- 
 wards, if another comes in, he also is to be sworn 
 in the usual manner, and an engrossment or fair 
 copy of the original Will is to be annexed to his 
 probate, in the same manner it was to the first ; 
 and in the second grant such first grant is to be 
 recited, and so on if there are more that come in 
 afterwards: for notwithstanding their refusal at 
 first, they still continue executors, and at any time 
 during the lives of their fellow executors they may 
 prove the Will, they may pay debts, make releases, 
 and they must be joined in all suits where the 
 executors are plaintiffs, because they are all privy 
 to the Will ; though it is not necessary where the/ 
 are defendants ; because the plaintiff in any action 
 against them is not bound by law to take notice of 
 any but those who have proved the Will. 
 
 If a man makes two executors, and dies, and 
 one of them proves the Will in the name of them 
 both, without the consent of the other ; yet this is 
 not any administration by him who refused the exe- 
 cutorship, but he may plead to any action brought 
 against him as executor, that he never was exe- 
 cutor ; for neither the Will or probate make him 
 so, if he does not administer. 
 
 WHE2C
 
 ( 96 ) 
 
 3. WHEN all the executors named in the Will 
 refuse to act, the bishop of the diocese or Ordinary 
 may commit admini tration, with the Will of the 
 deceased annexed, under the rules aftermentioned; 
 and in such case the person to \\hom this adminis- 
 tration is granted is called the administrator of the 
 deceased with the Will annexed, and may admi- 
 nister the goods j and his duty is then very similar 
 to that of an executor. This authority of the ad- 
 ministrator, and any act done by him in pursurnce 
 of it, is good and effectual in law, till the executor 
 undertakes the executovship, and proves the \Y ill ; 
 as it is said he may even then do ; and that in such 
 case the Ordinary may afterwards revoke the ad- 
 ministration : but the Ordinary cannct certainly 
 repeal an administration at his pleasure ; and the 
 rule with respect to this seems to be, that an ad- 
 ministration may be repealed, although not arbi- 
 trarily, yet where there shall be just cause for so 
 doing, of which the courts of lav, 7 are to judge, as if 
 the administrator should happen to become insane, 
 insolvent, or the like. And so if the person who 
 is next of kin, at the time of the death of the in- 
 testate, happens to be incapable of administering-, 
 by reason of any legal impediment, (attaint or ex- 
 communication for example) and the Ordi' 
 commits administration to another; if the next of 
 kin afterwards becomes capable, the Ordinarv rr-av 
 repeal such administration, and commit it to the 
 next of kin. 
 
 If a man makes his Will without appointing any 
 persons to be his executors, or'the executors named 
 are unknown, and cannot be found out, or are in- 
 capable of acting, or disabled from being executors ,- 
 or in case the executor is dead before the Testator, 
 or dies after the Testator and before proving the 
 Will; in all these cases an administration must be 
 granted by the Ordinary, with the Will annexed,. 
 
 to
 
 to the person to whom the residue is bequeathed by 
 the Will, and if this person were the deceased 
 executor, then to his executor or personal repre- 
 sentative. If there were no devisee of The residue, 
 then to such persons as would be entitled to ad- 
 ministration in case there had been no Will : In 
 this latter case of dying without any Will (the con- 
 sequences of which have been more fully explained 
 in the foregoing chapter), administration shall be 
 granted to such persons as are appointed by the 
 several statutes, and who those persons are we will 
 immediately proceed to explain ; first observing, 
 that in all cases (except where there is a contro- 
 versy depending whether there is a Will or not) 
 the Ordinary may be compelled to grant adminis- 
 tration to the person who is entitled to it ; and that 
 if he refuses, a writ of mandamus will be granted 
 by the Court of King's Bench, commanding him 
 to grant it ; though the person entitled to adminis- 
 tration may if he pleases refuse to take it upon 
 him, and the Ordinary has no power whatever to 
 compel him to accept it. 
 
 By an act of parliament of 9 and 10 W. 3. c. 32. 
 persons denying the Trinity, or asserting that there 
 are more Gods than one, or denying the Christian 
 religion to be true, or the holy sciiptures to be of 
 divine authority, shall for the second offence be 
 disabled from being administrators. 
 
 4. THE statute of the 21 H. 8. c. 5. enacts, 
 that in case any person dies without a Will, or the 
 executors narncd in any Will refuse to prove it, 
 then the Ordinarv, or other person having authority 
 to take probate of \Vills, shall grant the adminis- 
 tration of the goods of the deceased to his widow, 
 or next of kin, or both y as the Ordinary shall think 
 proper. And where several persons claim the ad- 
 ministration, as next of kin, who are all equal in 
 H degree
 
 ( 98 ) 
 
 degree of kindred to the person deceased, or where 
 one person desires the administration as next of 
 kin, there being several persons in equality of kin- 
 dred with him ; in every such case the Ordinary 
 shall be at liberty to grant the administration to 
 the widow and one of the next of kin only, jointly 
 or separately, as he pleases. 
 
 By virtue of the statute last mentioned, adminis- 
 tration shall generally be granted to the widow or 
 next of kin. Who those next of kin are, comes 
 more properly under the head concerning the dis- 
 tribution of the estates of such as die without Will, 
 and which has been there fully explained ; those 
 who are entitled to share the estate being entitled, 
 under the above restrictions, to administration. 
 There is, ho\vever, one exception to this rule, as 
 to the next of kin, in case the executor refuses, or 
 having accepted the executorship, dies without 
 appointing any executor by his Will ; this excep- 
 tion is in favour of a residuary legatee in a Will , 
 or he being entitled to all that remains after debts 
 and legacies paid, has certainly the first and best 
 title to be administrator of the estate. The devise 
 of the residue to him taking away the presumption 
 xvhich the ftatute otherwise makes, that the Tes- 
 tator would have given such residue to the next 
 of kin. 
 
 Besides the administrators already mentioned, 
 there are also several others. As administrator 
 during the absence of the next of kin to an intes- 
 tate out of the kingdom, which is a great conve- 
 nience ; for if his next of kin happens to be 
 beyond sea at the time of the death of any one 
 dying without Will, the administration could not 
 otherwise be granted, and the effects of the de- 
 ceased might be squandered away, and the c. 
 due to him lost, for want of proper care and a 
 time I v administration. 
 
 Administration
 
 ( 99 ) 
 
 Administration is also sometimes granted to an 
 indifferent person while a suit is depending, which 
 is called in law an administration pendents lite ; or 
 if there is no dispute or controversy, then till the 
 executor comes in; and particularly under the 
 statute 38 G. 3. c. 87, in case of the executor's 
 absence out of the realm at any time after twelve 
 months from the death of the Testator, a creditor, 
 next of kin, or legatee, is allowed to take out a 
 special administration for the purpose of recovering 
 their demand against the Testator's effects. All 
 these limited administrations cease of course, as 
 soon as the consideration ceases on which they 
 were first granted. 
 
 We have already mentioned that an infant, 
 though ever so young, may be appointed an exe- 
 cutor, but that the execution of the Will shall not 
 be committed to him until he is twenty-one years 
 old, [see page 93,] till when administration is to 
 be granted to some one, who is in such case called 
 administrator dnrante minori tftate, i. e. during the 
 minority of the infant executor, and which admi- 
 nistration ceases as soon as the executor attains 
 his age of twenty-one ; and where the infant exe- 
 cutor is a female, who before twenty-one marries 
 a husband of full age, yet the administration shall 
 not cease till she herself is twenty-one years old 
 compleat. Formerly an administration, during 
 the minority of an infant executor, ceased at his 
 age of seventeen, but it was always the rule of 
 law that an administration during the minority of 
 an infant administrator (which is granted when 
 the next of kin, or other person, who is entitled 
 to the administration, is not of age) did not cease 
 till he was twenty-one years old ; the reason of this 
 was, because every administrator is obliged to 
 enter into a bond duly to administer the effects of 
 the deceased, an act which an infant under twenty- 
 H 2 one
 
 one is not permitted to do ; and this provision of 
 law is now very properly extended to infant exe- 
 cutors. Where administration is granted during 
 the minority of several executors, he who comes 
 first of age shall prove the Will, and the adminis- 
 tration shall immediately cease. 4 
 
 If a married woman, as next of kin, has a right 
 to administer, the administration ought not to be 
 granted to the husband and wife jointly, but to the 
 wife only ; for otherwise, if she should die before 
 him he would continue administrator against the 
 meaning of the act. But if a wife who, as a 
 residuary legatee, has a right to take administra- 
 tion, refuses so to do, and prays it may be granted 
 to another, and not to her husband, yet it may be 
 granted to him, he being, entitled to all she would 
 have as residuary legatee. 
 
 Where administration is granted to two persons, 
 and one dies, the administration survives to him 
 who is living. 
 
 If none of the next of kin will take out admi- 
 nistration, a creditor may, by custom, do it ; and 
 lastly, the Ordinary may, in defect of all these, 
 commit administration to such discreet person as 
 he approves of, or may grant to such person his 
 letters, merely to collect together the goods of the 
 deceased ; which do not make the person thus- 
 appointed either executor or administrator, his 
 only business being to keep the goods in his safe 
 custody, and wherewith the Ordinary is to satisfy 
 debts and legacies (if there is any Will) as far as 
 the goods will go ; to the payment of which the 
 Ordinary, by this means, becomes liable in the 
 same, manner as an executor or administrator. 
 
 5. IT may be here necessary just shortly to 
 mention the oath which an executor or adminis- 
 trator takes, on having probate of the Will, or 
 
 administration
 
 administration of the effects granted to him, and 
 also the bond which he is obliged to enter into ; in 
 order that every person may be aware what their 
 duty is, and what is imposed upon them by those 
 sacred obligations ; which (through the multi- 
 plicity of business) being entered into in a vast 
 hurry, may not always have that solemn attention 
 paid to them which objects of so highly serious a 
 nature deserve. 
 
 If the administration is granted in consequence 
 of there having been no Will, the administrator 
 swears, (or being a Quaker, solemnly affirms) that 
 he believes the deceased died without Will, and 
 that he (the administrator) is the son, next of kin, 
 &c. (as the case may be) to the deceased ; and 
 then, in that ahd all other cases, proceeds to bind 
 himself by his oath, well and truly to administer 
 all the goods of the deceased, and to pay his debts, 
 so far as hrs goods will extend, to exhibit a true, 
 full, and perfect inventory of such goods, and to 
 render a true account of his administration unto 
 the court from whence the administration issues, 
 when he shall be lawfully required so to do. 
 
 And by the statute of 22 &: 23 Car. 2. c. 10. on 
 granting administration, the administrator enters 
 into a bond, with two sureties, according to the 
 value of the estate; w r hich bonds are determined 
 to be legal, and by which he binds himself to the 
 Ordinary, or person having power to grant such 
 administration, to make, or cause to be made, a 
 true and perfect inventory of all the goods and 
 chattels, debts, and effects of the said deceased, 
 which have come, or shall or may come, to his 
 hands, possession, or knowledge, or to the hands 
 and possession of any other person or persons for 
 his use ; and to exhibit or shew the same inventory 
 into the registry of the court from whence the 
 administration issues, within a certain time, and 
 H 3 well
 
 ( 102 ) 
 
 well and truly to administer all such goods and 
 effects according to law ; and also to make a true 
 and just account of his said administration, within 
 the time mentioned in the bond, and to distribute 
 the residue or remainder of the deceased's estate 
 according to law; and in case any Will shall 
 appear and be proved in due form, then to relin- 
 quish the administration, and account with the 
 executor. 
 
 6. THE power of an executor is founded upon 
 the special confidence and actual appointment of 
 the deceased by his Will; but an administrator is 
 merely an officer of the Ordinary, prescribed to him 
 by act of parliament, in whom the deceased had 
 reposed no trust at all, and whose pow r er over the 
 effects of the deceased arises from several statutes 
 made for the purpose, and on whose death it 
 results back to the Ordinary to appoint another : 
 for this reason, the interest vested in my executor, 
 by my Will, may be continued and kept alive by 
 the Will of the same executor ; so that the executor 
 of my executor is, to all intents and purposes, my 
 executor and representative, as much as the person 
 -whom I originally named my executor, his execu- 
 tor representing him in the same manner as I 
 appointed him to represent me. But the Adminis- 
 trator of my executor has no privity or relation to 
 me, being only commissioned to administer the 
 effects belonging to my executor himself, and not 
 my goods which he had as executor; and in like 
 manner, if I die without Will, and an administrator 
 is appointed to me, who dies and appoints an ex- 
 ecutor, such executor shall not be my represen- 
 tative : but in all cases where an administrator 
 dies, and there remain any effects of the person to 
 whom he was administrator undisposed or or unad- 
 ministered, the Ordinary must commit the adminis- 
 tration
 
 
 ( 103 
 
 tration of such unadministered goods to another 
 person, who is then called an administrator de 
 boms no?i, that is, of the goods not administered 
 by a former administrator. And in such case, this 
 administrator de bonis non is the only legal and 
 personal representative of the deceased. 
 
 Having thus shewn what is an executor or ad- 
 ministrator, and the difference between them, we 
 will, in the next chapter, proceed to enquire into 
 some of the principal points, of their office and 
 duty ; first adding a few words with respect to the 
 appointment of guardians to the children of the 
 Testator. 
 
 .7. WHERE a person dies, leaving children 
 under age, it is now usual to appoint guardians, 
 but which were forjnerly, with respect to such as 
 were heirs to real estates, certain persons entitled 
 by law. The father, and he only, is authorised 
 to appoint a guardian to such children as may be 
 under twenty-one years of age at the time of his 
 death : and this he may do either by Deed or Will, 
 to be executed in the presence of two witnesses ; 
 such guardianship to continue till they are twenty- 
 one, or for any shorter time ; and bv the statute 
 of 12 C/ift. 2. c, 24. a remedy is given to the guar- 
 dian against any person who shall unjustly take 
 away such child, to recover him, and damages for 
 the child's benefit. This guardian has also the 
 management of the child's lands, goods, and 
 money, during its minority, and is to account for 
 the same, and to have all reasonable allowances. 
 Jt may often be prudent to make the executors of 
 a Will guardians to the children, but it is not 
 necessary ; the father being capable of appointing 
 whom he pleases, and this, though he himself 
 should happen to be under the age of twenty-one 
 sjt the time of making such appointment, or at 
 Ii 4 the
 
 ( 104 ) 
 
 the time of his death, and though he is therefore 
 incapable of disposing of his lands by Will. By 
 the custom of York, a mother may appoint a 
 guardian to her children, as to the personal estate, 
 but not as to land. And in all cases where no 
 guardian is appointed, or if the guardians' ap- 
 pointed die or refuse to act, the power of appoint- 
 ing guardians devolves to the Lord Chancellor, he 
 being (under the King) the supreme guardian of 
 infants, and all others not capable of acting for 
 themselves. 
 
 CHAP
 
 ( 105 ) 
 
 CHAP. VIII. 
 
 OF THE OFFICE AND DUTY OF EXECUTORS 
 AND ADMINISTRATORS. 
 
 i. Distinction between Executors and Administrators. 
 
 ^. Burying the Deceased. 
 
 3. Obtaining Probate of the Will, in common Form, or solemnly 
 Distinction and Reasons thereof. 
 
 4. Letters of Administration. 
 
 5. In what Court i Wills are to be proved. 
 
 6. Making Inventory Commission of Appraisement. 
 
 7. Collecting together Effects Payment of Debts, and Rules. as to 
 Priority and Preference in so doing Proceeding by Creditors 
 where the Executor is out of the Kingdom. 
 
 8. Payment of Legacies, and Rules therein Of Legacies in Satis- 
 faction of Debts. 
 
 9. Lapsing and vesting of Legacies Interest on Legacies Legacies 
 to Infants. 
 
 lo. Disposition of the Residue of the Estate. 
 
 1. JL HE duties of an executor and administrator 
 are in general very much the same, excepting, 
 first, that the executor being appointed by Will, is 
 bound to perform such Will, which an administrator 
 is not, unless where the Will is annexed to his 
 administration, and then he differs still less from 
 an executor : And secondly, that an executor may 
 do many things before he proves the Will ; but an 
 administrator can do nothing till letters of adminis- 
 tration are granted to him : the executor, as we 
 have already said, deriving his -power from the 
 
 Will,
 
 ( 106 ) 
 
 Will, and not from the probate ; whereas that of 
 the administrator arises entirely from the appoint- 
 ment of the Ordinary. 
 
 2. THE first thing necessary for, him to do is 
 to bury the deceased, in a manner suitable to the 
 estate which he leaves behind him. Necessary 
 funeral expences are allowed in preference to all 
 other -debts and charges whatever ; but if the ex- 
 ecutor or administrator is extravagant in the fune- 
 ral, it is a species o-f devastation or waste of the 
 effects of the deceased, which he is not justified 
 in, and which shall only be prejudicial to himself, 
 and not to the creditors or legatees of the deceased. 
 
 S. THE next duty of the executor is to prove 
 the Will of the deceased, and which must also be 
 done by the administrator, if there is any Will, and 
 where the administrator is appointed during the 
 minority or absence of an executor. This is done 
 either in common form, which is upon the oath of 
 the executor or administrator himself, and of the 
 witnesses to the Will, before the Ordinary or his 
 deputy ; or in case the validity of the Will happens 
 to be disputed, then it is proved in a more solemn 
 form of la\v. In this last case it is requisite that 
 all such persons as have any interest in the estate 
 of the deceased, that is to say, his widow and 
 next of kin, to whom the administration of his 
 goods ought to be committed, if he had died with- 
 out Will, must be cited or summoned to be pre- 
 sent at the probation and approbation of the Will, 
 in whose presence the Will is to be exhibited to 
 the judge, and a petition to be made by the part}* 
 who produced the Will and demands probate of 
 it ; then the witnesses to the Will, and others if 
 necessary, are received and sworn accordingly, and 
 are examined every one of them, privately and 
 
 separately,
 
 ( 107 ) 
 
 separately, not only upon the allegation or articles 
 made by the party producing them, and who re- 
 quires the probate to be granted him, but also 
 upon interrogatories or questions in writing put to 
 them by the adverse party summoned for that pur- 
 pose ; and the depositions of the witnesses thus 
 taken are then committed to writing, and after- 
 wards published ; and in case the proof is sufficient, 
 the judge, by his sentence or decree, pronounces 
 for the validity of the Will, and a probate thereof 
 is accordingly granted to the person requiring it. 
 
 This manner of solemnly proving the Will is 
 made use of for the greater security of the executor; 
 as, if the Will is at first only proved in common 
 form, the widow and next of kin of the deceased 
 may call on the executor afterwards for this solemn 
 proof, \vhen perhaps the witnesses to the Will are 
 dead, and many difficulties may arise to him. It 
 is also usual, when the executor has any conside- 
 rable part of the estate and effects left him, to prove 
 the Will thus solemnly in the first instance, and 
 which the executor may always do at his own will 
 and pleasure, citing the widow and next of kin in 
 particular, and all persons pretending interest in 
 general ; and then the Will can never afterwards 
 be disputed. If, however, the Will is proved in 
 common form only, but remains undisputed for a 
 certain number of years (it is said thirty years are 
 necessary) its validity cannot then be called in 
 question ; but it shall be supposed to have been 
 solemnly and incontestably proved at first. 
 
 To prevent neglects and frauds which had taken 
 place, by- persons acting as executors or adminis-. 
 trators without the regular authority from the ec- 
 clesiastical courts, it was enacted by 37 Geo. 3. c. 
 90. 10. that every executor or administrator shall 
 prove the Will of the deceased, or take out letters 
 of administration (to his personal estate) within six 
 
 calendar
 
 ( 108 ) 
 
 calendar months next after the death of his Tes- 
 tator or intestate, on penalty of fifty pounds in case 
 of neglect, one half to the King, and the other to 
 the informer. 
 
 4. IF the executor refuses to prove the Will, 
 the Ordinary may cite or summon him to the ec- 
 clesiastical court, for the purpose of proving the 
 same, or declaring his refusal to accept the exe- 
 cutorship, \vhich he must do in open court, and 
 which refusal will be entered of record accord- 
 ingly [see before, page 94 ;] in which latter case 
 the Ordinary will grant administration to the per- 
 son entitled to demand the same ; and, on the 
 other hand, if the Ordinary should refuse to grant 
 a probate, or administration, he may be compelled 
 so to do by a writ of mandamus for the purpose. 
 
 When the Will is thus proved, the original must 
 be deposited in the registry of the Ordinary before 
 whom it is proved ; and a copy of it in parchment 
 is made gut, together with a certificate of its having 
 been proved, under the seal of the Ordinary, and 
 delivered to the executor or administrator ; all 
 which together is commonly called the Probate* 
 If there is no Will, the person entitled to be ad- 
 ministrator must take out letters of administration, 
 which are also given under the Ordinary's seal, 
 and by which a power like that of an executor is 
 vested in him to collect and administer ; that i?, to 
 dispose of the goods of the deceased according to 
 law, and he then takes the oath, and enters into 
 the bond before mentioned for the faithful per- 
 formance of his trust. [Sec before, pa. 100, 101.] 
 
 5. WITH respect to the courts from whence 
 these probates and letters of administration issue, 
 a few words may b^ thought necessary. Ancicntb- 
 when any one died without a Will, the bishop o'f 
 
 the
 
 ( 109 ) 
 
 the diocese took possession of his personal fortune, 
 in order to dispose of it for the benefit of. his soul, 
 that is, to pious or charitable uses. It became 
 necessary, therefore, that the bishop should be 
 satisfied of the authenticity of the Will, where 
 there was any, before he resigned the right which 
 he had to take possession of the dead man's for- 
 tune, in case of intestacy. In this way, Wills, 
 and controversies relating to Wills, came within 
 the cognizance of ecclesiastical courts; under the 
 jurisdiction of which, \Vills of personal property 
 (the only Wills that were made formerly) still 
 continue, though, in truth, no more now-a-days 
 connected with religion, than any other instrument 
 of conveyance. This is a peculiarity in the English 
 law. The bishops are called the Ordinaries of 
 the several dioceses within which the person dying 
 has effects. But as, trom the extension of pro- 
 perty consequent to the commercial spirit of the 
 country, it often, and indeed where the person 
 dying is worth any thing considerable, necessarilr, 
 happens that his effects lie in different dioceses, in 
 order to avoid so many probates or letters of ad- 
 ministration as would have been otherwise made, 
 from each Ordinary claiming to grant them for the 
 effects in his diocese, it was necessary to lay down 
 some rule which might prevent the uncertainties 
 which would arise from thence to creditors and 
 legatees, who would be ignorant upon which of 
 the several executors or administrators they were 
 to make their demands. It is now therefore set- 
 tled, that where a man dies having goods and 
 effects in more dioceses than one, the archbishop 
 shall, by his prerogative, grant probate or adminis- 
 tration of the whole goods and effects to the 
 executor or administrator. And to avoid uncer- 
 tainty, the quantity of goods in different dioceses 
 must be of such a value as to be sufficiently re- 
 markable 
 
 -4
 
 markable to attract some little notice. This is 
 now settled at 51. If any one, therefore, has goods 
 or effects to the value of 51. or upwards in two or 
 more different dioceses, his Will must be proved, 
 or in case there is no Will, letters of administration 
 must be applied for, in the prerogative court of the 
 archbishop, so called from the circumstances above 
 mentioned. These, however, are circumstances 
 which depend on the peculiar situation of the de- 
 ceased's affairs, and concerning which the executor 
 or administrator will always be properly instructed 
 by those whose interest it is not to mislead him. 
 
 6. THE executor or administrator must imme- 
 diately proceed to make an inventory or catalogue 
 of all the personal estate, goods, and effects of the 
 deceased whatever; as well those in his possession, 
 viz. ready money, money in the funds, goods, 
 chattels, stock on farm or in trade, &c. as ,also all 
 debts owing to the deceased, and all securities 
 for money, which are by the law called things in 
 action, (as distinguished from things in absolute 
 possession) and other valuable property whatever ; 
 and in short every thing which belonged to the 
 deceased, and which he has or might have devised ; 
 which inventory the executor or administrator is to 
 deliver in to the Ordinary, upon oath, whenever 
 he is thereto lawfully required. This inventory he 
 ought immediately and correctly to make, in order 
 to shew what effects of the deceased he in fact 
 ever has the possession .of; as on neglect of so 
 doing be is liable to be charged with the payment 
 of all debts and legacies, and subjects himself 
 besides to the imputation of .'having embezzled the 
 estate of the deceased. In this inventory, the 
 executor is not to include the necessary wearing 
 apparel of the widow (if any) ; she being entitled 
 to retain that, and also such watches, rings, and 
 
 jewels,
 
 ( 111 ) 
 
 jewels, as she used to wear in her husband's life 
 time, and as are undisposed of by his Will: These 
 are called her paraphernalia, and (unless on a de- 
 ficiency in the husband's estate, in which case they 
 must be included in the inventory) are not liable, 
 however valuable they may be, to answer his debts, 
 and are to be reserved to the widow in preference 
 to all legacies. It has even been determined, that 
 a husband cannot by his Will dispose of such 
 jewels of his wife, as are suitable to her rank and 
 situation. 
 
 The value of the goods and effects should also 
 be specified in this inventory, although this is not 
 binding on the executor or administrator, nor is it 
 very much regarded at the common law ; for if it 
 is too high, it shall not be prejudicial to him ; and 
 if it is too low, he shall reap no advantage from it : 
 but the real value of them is to be found by a jury, 
 whenever it may come in question, on any dispute 
 whether the executor has fully administered*, or 
 has any effects left in his hands, or not. The time 
 for exhibiting this inventory to the Ordinary is left 
 entirely to him, and he may excuse the making or 
 exhibiting it for a reasonable cause, as where it 
 may be expedient that the- quantity and value of 
 the effects should not be divulged. When ex- 
 hibited in the ecclesiastical court, the inventory 
 must be written on a stamp, [For a form, see 
 the Appendix, No. VIII.] 
 
 Sometimes, before the granting, or at least before 
 the issuing, of the letters of administration, or 
 probate of the Will, instead of this inventory cf 
 the goods of the deceased, upon the oath of the 
 executor or administrator, the judge of the eccle- 
 siastical court, at the request of some person having 
 interest, issues a commission for the appraisement 
 and true valuation of the goods, rights, and credits, 
 and inspection of the bonds, leases., and other
 
 securities and papers whatsoever, concerning the 
 personal estate of the deceased, at the house of the 
 deceased, or elsewhere, wherever his effects may 
 be. But this is done only in extraordinary cases 
 of great moment. 
 
 7. THE Executor or Administrator is to col- 
 lect together and get in all the estate and effects 
 so inventoried ; and to that end he has very large 
 powers and interests conferred on him by law ; 
 being the representative of the deceased, and 
 having the same property in and right to his goods 
 as the deceased had when living, and the same 
 remedies to recover them. If there are two or 
 more executors, a sale of goods, or on acquittance 
 for a debt, or any act done by one of them, shall 
 be good against all the rest ; the Testator having, 
 by appointing them, placed an equal confidence 
 in each of them. ' But in the case of administrators 
 it is otherwise ; it being necessary they should all 
 join in doing any act relative to the estate of the 
 deceased ; the power granted them being only to 
 them jointly, and not separately. 
 
 Whatever is so recovered and got into the hands 
 of the executor or administrator, which is of a 
 saleable nature, and which can be converted into 
 ready money, is called assets (from the French 
 word assez) in his hands, that is* sufficient or enough 
 to make him chargeable to creditors and legatees, 
 to pay them their debts and legacies, so far as the 
 value of such goods and effects extends, in the 
 proportions and according, to the rules after men- 
 tioned ; and he may convert them into money, in 
 order to satisfy such demands. And in case one 
 possessed of an estate for another's life dies with- 
 out leaving any heir to take such estate, it shall 
 come to his. executors or administrators, in whose 
 hands it shall be liable to the payment of debts 
 
 onfy,
 
 only, and not kgacies. But if there is any heir, 
 it will then (under the statute of 29 Car. 2. c. 3.) 
 be liable in his hands to all such debts as are 
 chargeable on the real estate. The method and 
 rules therefore of such payment are next to be 
 taken into consideration. 
 
 The executor or administrator must pay the 
 debts of the deceased ; an d in payment of these he 
 is bound to observe the rules of law, which give a 
 preference to them accordingly as they are dif- 
 ferently secured ; otherwise, on any future de- 
 ficiency of effects, if the executor or administrator 
 pays debts of a lower degree first, he will be ob- 
 liged to answer those of a higher nature out of rjis 
 own estate. First, then, he may pay all necessary 
 funeral charges, and the expences attendant on 
 proving the Will, or granting letters, of adminis- 
 tration,* which latter, as has been before said, is 
 necessary with respect to an administrator, to give 
 him power to act. Secondly, he must pay debts 
 due to the King, on record or specialty. Thirdly, 
 such debts as are by particular acts of parliament 
 directed to be preferred to others , as the for- 
 feitures for not burying in woollen (if any), money 
 due from an overseer of the poor for rates collected 
 by him and not paid, and for letters to the post- 
 office. Fourthly, debts of record due from the 
 deceased to private persons, as money due upon 
 judgments -, (if regularly docketed, or entered ac- 
 cording to the directions of an act of 4 and 5 W. 
 and M. c. 20 ;) money due under a decree in 
 Chancery; statutes and recognizances, being a par- 
 
 * For the expence of probates and letters of administration, and 
 the stamps necessary for the discharge of legacies, see Appendix, 
 No. IX. and No. XL 
 
 I ticular
 
 ( II-* ) 
 
 ticular sort of security on the estate, entered into 
 by the deceased ; and in this class are also in- 
 cluded mortgages; all which debts shall carry 
 interest to the time of payment, as do also debts 
 due on bond. Fifthly, debts due from the deceased 
 on special contracts, as for rent; (but for which the 
 landlord has often a better remedy in his own 
 hands, by distraining on the premises); or upon 
 bonds and covenants under seal. Lastly, debts on 
 simple contracts ; that is, upon notes unsealed, 
 and verbal promises, as well where the deceased 
 has really promised, as where the law will imply 
 that he has, as for goods bought, &c. Among 
 these simple contracts, servants wages are by 
 many, with great reason, preferred to all others, 
 and it was in fact an absolute rule of our ancient 
 law so to do-. 
 
 Among debts of equal degree, the executor or 
 administrator is allowed to pay himself his whole 
 debt first, by retaining in his hands so much as his 
 debt amounts to. But he is obliged to pay all 
 debts of a higher nature before he can retain his 
 own of an inferior one ; being only allowed this 
 privilege against such as have no better security 
 than himself. But an executor of his own wrong 
 is not allowed to retain his own debt, for this 
 might tend to encourage creditors to strive who 
 should first take possession of the goods of the de- 
 ceased, and would besides be taking advantage of 
 his own illegal act, which is contrary to a rule of 
 law. If a creditor appoints one who is his debtor 
 to be his executor, the debt is discharged, whe- 
 ther the executor acts or not j provided there are 
 effects enough besides to pay all the Testator's 
 debts : for though this discharge of the debt shall, 
 in this case, take place of all legacies, yet it would 
 be unfair to defraud the Testator's creditors of their 
 just debts, by a release which is absolutely volun- 
 tary
 
 tary, and without any consideration. If no suit is 
 commenced against the executor or administrator 
 for any debt due from the deceased, he may pay 
 any one creditor in equal degree his whole debt, 
 though he should in consequence have nothing left 
 for the rest ; for without a suit commenced, the 
 executor or administrator has no legal notice of the 
 debt ; (except debts due on record, which he is 
 bound to take notice of without suit.) 
 
 It is also necessary that an executor should be 
 attentive to the application of the different funds 
 of a Testator's estate in payment of his different 
 debts ; so that he may not pay the personal debts 
 out of the real estate, or on the contrary pay debts 
 which are a charge on the real estate only, out of 
 the personal effects. 
 
 On this head therefore it is to be remembered by 
 the executor, that the personal estate of a Testator 
 shall in all cases be, in the first place, applied in 
 discharge of his personal debts or general legacies, 
 unless he does, as he may, by express words or 
 manifest intention exempt it. As every loan 
 creates a personal debt from the borrower, whether 
 there be any bond or covenant for payment or not, 
 the personal estate shall be in the first place liable 
 to answer such debts by loan, although such per- 
 sonal debt be also secured by mortgage. But , 
 where the charge is on the real estate principally, or 
 in the first instance, although there be a collateral 
 personal security, there the real estate shall be in 
 the first place answerable ; as it shall be where the 
 debt, though personal in its creation, was originally 
 contracted by another. 
 
 With respect to the priority of application of the 
 real estates of a Testator in payment of his debts, 
 when the personal estate is not sufficient to pay, or 
 is exempted from such payment, it seems that in 
 the first place the executor fhall apply the real 
 I 2 estate
 
 estate expressly devised for payment of debts; 
 secondly, to the extent of specialty debts, the real 
 estate descended ; thirdly, the real estate specifi- 
 cally devised, subject to a general charge of debts, 
 It being the object of a court of equity that every 
 claimant upon the effects of a person deceased 
 shall be satisfied, as far as such effects can by any 
 management, consistent with the nature of the 
 respective claims, be applied in satisfaction thereof, 
 it has been determined in Chancery that where 
 one claimant has more than one fund to resort to 
 and another claimant has only one, the first claim- 
 ant shall resort to that fund on which the second 
 has no claim : If therefore a specialty creditor, 
 whose debt is a charge on the real estate, is paid 
 out of the personal estate, a simple contract creditor 
 shall stand in his place against the real effects, so 
 far as the amount of such specialty creditor's debt. 
 So where lands are subjected to payment of all 
 debts, a legatee shall stand in the place of a simple 
 contract creditor, who has been paid out of the 
 personal estate; for such creditor might have come 
 upon the real estate, and left the personal estate 
 open to the claims of the legatee. 
 
 Where a Testator is very much indebted, and the 
 effects are not sufficient to pay every one their full 
 demand, and the executor is desirous to be rid cf 
 the estate, but is afraid of many disputes and con- 
 troversies for priority among the creditors ; his 
 safest way is to file a bill in Chancery against all 
 the creditors ; in order that they may, if they please, 
 contest each others debts, and dispute who ought 
 to be preferred in payment ; and on a decree ob- 
 tained, the executor will be fullv justified in pay- 
 ing them according to the directions given thereby. 
 
 Difficulties having arisen to creditors in recover- 
 ing their debts in cases where the executor was out 
 of the kingdom, the legislature thought proper to 
 pass an Act of Parliament, 38 Geo. 3. c. 87. by 
 
 which
 
 ( H7 ) 
 
 which it was enacted, that if at the expiration of 
 twelve months from a Testator's decease, the exe- 
 cutor to whom probate has been granted fhall re- 
 side out of the jurisdiction of the English courts of 
 justice, any creditor may obtain a special adminis- 
 tration , on a stamp of only 5s. 
 
 The Creditor applying for such administration 
 shall take the oath, and the administration shall 
 be granted in the form, stated in the Act: and 
 which is copied in the Appendix to this book, 
 No. XII. 
 
 The creditor then proceeds to exhibit his bill in 
 a court of equity, to be paid his demand out of 
 the Testator's effects ; and the court are authorised 
 by the Act to appoint persons to collect the out- 
 standing debts, and any money in the funds be- 
 longing to the estate of the deceased may be trans- 
 ferred into the name of the Accountant General in 
 Chancery, in trust for such purposes as the court 
 shall direct. If the executor returns to reside 
 within the jurisdiction of the court, he must then 
 be made a party to the suit, 
 
 8. WHEN the debts are all discharged, the 
 legacies are next to be attended to ; and which are 
 to be paid by the executor or administrator, so far 
 as the effects which remain after payment of the 
 debts will extend ; but he may not give himself 
 the preference in this case, as he may in the case 
 of debts. 
 
 A Legacy is a gift or bequest of goods, money, 
 or other effects by will ; and the person to whom 
 it is given is in law called the legatee ; which 
 every person is capable of being, unless particu- 
 larly disabled by the common law or statutes ; as 
 traitors, popish recusants convict, and some others j 
 such chiefly as have been formerly mentioned as 
 incapable of making Wills. The bequest transfers 
 an imperfect property in the thing devised to the 
 I 3 legatee 5
 
 legatee ; but the legacy is not perfect without the 
 consent of the executor : for if I have a general or 
 peculiar legacy left me of one hundred pounds, or 
 a specific one of a piece of plate, I cannot in either 
 case take it without the consent of the executor. 
 For all the effects of the deceased are by the Will 
 and probate vested in the executor ; and it is his 
 business in the first place to see whether there is a 
 sufficient fund to pay the debts of the Testator: the 
 rule of law and equity both being that a man must 
 be just before he is permitted to be generous. 
 And in case there should not be effects sufficient to 
 pay both debts and legacies, all the general 
 legacies must then abate proportionably, in order 
 to pay the debts ; but a specific legacy (that is, a 
 bequest of a piece of plate, a horse, or the like) is 
 not to abate at all or allow any thing, unless the 
 whole of the effects are insufficient to pay the debts; 
 In which case no respect is paid to any legacies 
 whatever, but all must abate in proportion. Upon 
 the same principle it is, that if the legatees have 
 been paid their legacies, they are obliged to refund 
 in equal proportions, in case debts should after- 
 wards happen to appear to an amount larger than 
 the residue of the estate after the legacies paid. 
 And an executor is not bound to pay a legacy 
 without taking security from the legatee that he 
 will refund in case of necessity ; if the executor has 
 reason to expect he may in future be called on for 
 debts not known at the time of paying the legacy. 
 
 Legacies being gratuities and no duties, an 
 action at law cannot be maintained for their re- 
 covery. The proper remedy is by bill in Chan- 
 cery against the executor, who is considered as a 
 trustee for the legatee in respect of his legacy, and 
 who may in that case be compelled to give security 
 for a legacy payable at a future day, or to bring the 
 fund from which it is payable into court. 
 
 If
 
 If a person, being indebted to another, by his 
 Will gives his creditor a legacy, equal in value to, 
 or more than, the amount of the debt, without 
 mentioning or taking any notice of the debt, this 
 Jegacy shall generally be considered as a satisfac- 
 tion of any debt due at the time of making the 
 Will ; and the legatee shall not be paid both the 
 debt and the legacy, because, as has been before 
 remarked, the law supposes a man will be just 
 before he is generous. Yet, notwithstanding this 
 general doctrine, if the Testator leaves sufficient 
 effects, and clearly shews his intention to be that 
 his creditor shall have a legacy beside his debt, 
 the legacy shall take effect ; and such legacy shall 
 in no case be deemed a satisfaction for any debt 
 accruing due after the time of making the. Will, 
 because it cannot be supposed that the Testator 
 could have such future debt in contemplation ; nor 
 if the legacy is less than the debt, shall it be taken 
 as a proportionable satisfaction, but the legatee 
 shall be paid both. 
 
 Where a legacy is given to a creditor upon a 
 contingency which may or may not happen (and the 
 not happening of which prevents the Jegacy from 
 taking effect), or where it is not made payable 
 immediately on the Testator's death, such legacy is 
 no satisfaction of a debt, even though the contiiv 
 gency on which it is payable takes place, and the 
 legacy thereby becomes due ; because a debt, 
 which is a certain duty, shall not be lost by an 
 uncertain and contingent recompence ; for whatr 
 ever is to be a satisfaction of a debt, ought to be so 
 at the moment it is given, which such contingent 
 or proviiional legacy is not. 
 
 These rules are also applied to the cases of 
 legacies given to a wife, children, or other relations 
 entitled to marriage portions, or other provisions, 
 under a settlement made bv a testator previous to 
 his Will. 
 
 I 4- W T here
 
 ( 120 ) 
 
 r Where a person being indebted to another, 
 makes him his executor, and gives him a legacy, 
 as it is possible that such legacy may prevent the 
 executor from being entitled to the residue (if any) 
 of the estate, it shall not operate also as a satis- 
 faction of his debt, but he may retain and pay 
 himself both. 
 
 9. IN general, where the legatee dies before 
 the Testator, or before the condition upon which 
 the legacy is given be performed, the legacy be- 
 comes a lost or lapsed legacy, and shall sink into 
 the residue of the estate, as if the Sequest had 
 never been made. [.4s in the case of land } see 
 before^page 13, 14.] Thus where one bequeathed 
 money to trustees, in trust for a daughter till she 
 should attain 21 years of age, and then to pay the 
 same to her ; and if such daughter should die under 
 21, leaving a child or children, then in trust for 
 them; but if she died under 21, without children, 
 then in trust for the Testator's niece; the daughter 
 attained 21, married, had two children, and died 
 in the life-time of the Testator ; it was determined 
 that the daughter's children took nothing by the 
 Will. But if a man by his Will gives 1001. a-piece 
 to his children, payable at their respective ages of 
 twenty -one years, and directs that if any of them 
 die before twenty-one, then the legacy given to the 
 child so dying shall go to the surviving children-, 
 and one of the children dies in the father's life time, 
 though the rule is, that where the legatee dies in 
 the life-time of the Testator, his legacy shall lapse, 
 yet it only means that it shall lapse as to the legatee 
 himself so dying ; and that wherever, as in this 
 case, the legacy is further devised or given over 
 after the death of the legatee to other persons in 
 being, it immediately, on the death of the legatee, 
 vests in them, and it shall not be in the power of 
 
 anv
 
 any court to divest or call it back a^ain. And in 
 all cases a bequest may be so specially framed as 
 to prevent the death of the legatee from causing a 
 lapse of the legacy. 
 
 If a contingent legacy is left to any one, that is, 
 such a legacy, the payment of which depends on 
 some chance mentioned by the Testator, as when 
 the legatee attains, or if he attains, the age of 
 twenty-one, and he dies before attaining that age, 
 though after the death of the Testator, this is also 
 a lapsed legacy. But a legacy or bequest to any 
 one, to be paid when he attains the age of twenty- 
 one years, is what the law calls a vested legacy ; 
 that is, an interest which commences at the death 
 of the Testator, although it is not to be paid till 
 some future time.- And in this case, though the 
 legatee dies before that age, his representatives 
 shall receive it out of theTestator's personal estate, 
 at the time at which it would have become payable 
 in case the legatee had lived. This distinction is 
 borrowed from the civil law, and has been adopted 
 in our courts, not so much on account of its in- 
 trinsic equity, as of its having been before adopted 
 by the ecclesiastical courts. For as the court of 
 Chancery has a concurrent jurisdiction with them, 
 in regard to the .recovery of legacies, it is but 
 reasonable that the subject should have the same 
 measure of justice in whatever court he sues. But 
 \vhere such contingent legacies are charged upon 
 land, in both the above cases they shall lapse, and 
 be lost to the representatives of the legatee, for the 
 benefit of the heir. And the reason of this latter 
 difference is, that with respect to devises charged 
 upon lands, the ecclesiastical court has no concur- 
 rent jurisdiction, as they have in regard to personal 
 Estate. 
 
 This doctrine of the lapsing of contingent lega- 
 icies has been the subject of much contest. In 
 
 general
 
 ( 122 ) 
 
 general where a legacy, payable at a future time, 
 is charged upon personal estates only, if the person 
 entitled to it dies before the time of payment, his 
 personal representative will be entitled to it. On 
 the other hand, where a legacy is charged upon 
 real estate, if the person entitled to it dies before 
 the time of payment, it sinks into the land, for the 
 benefit of the owner of the inheritance. The latter 
 rule has been considered as applicable to the case 
 of a mixed fund, consisting both of real and per- 
 sonal estate. 
 
 This rule has however in some cases been de- 
 parted from ; and, perhaps, the general rule, as 
 it now stands, is, That when a legacy is given, 
 charged upon a real or mixed estate, and payable 
 at a future time, and there are no express \vords in 
 the Will to make it immediately a vested interest, 
 there (if a stronger implication to the contrary does 
 not arise from the other parts of the Will) its being 
 so charged, and so payable, will be considered as 
 circumstances amounting to an implication that 
 the Testator's intention was, that it should not rest 
 till the time it was made payable. It is in the 
 Testator's power (by express words in his Will, 
 showing his intention) to make a legacy vested 
 and transmissible, though charged upon a real or 
 mixed estate, and payable at a future time. And 
 there seems little doubt that this may be equally 
 done by implication. Therefore if there are any 
 circumstances or expressions in a Will, from which 
 the implication, that it was the Testator's intention 
 to make a legacy immediately vested, is stronger 
 than the implication of law to the contrary, which 
 arises from its being charged upon a real or mixed 
 fund, and payable at a future day, the legacy is in 
 that case to be considered as a vested or transmis- 
 sible interest, and paid by the executor to the 
 personal representatives of the deceased legatee. 
 
 In
 
 ( 123 ) 
 
 In all these cases of legacies which are thus 
 vested on the Testator's death, though payable at a 
 future day, where they are charged on land, or 
 consist of money in the funds, both of which yield 
 an immediate and constant profit, interest shall be 
 paid on them to the legatee from the Testator's 
 death to the time of payment. But if the legacies 
 are charged only on the personal estate generally, 
 which cannot be immediately got in, they shall 
 then carry interest only from the end of one year 
 after the death of the Testator; which time the ex- 
 ecutor or administrator is allowed to settle his 
 affairs in. 
 
 If a father devises legacies or portions to his 
 daughters or younger children, to be paid or pay- 
 able at their respective ages of 21 years, or any 
 other time certain, without making any provision 
 for their maintenance in the mean time, and die ; 
 in this case, they shall have interest for their por- 
 tions from fiis death till paid, because the father 
 was obliged to have provided for them if he had 
 lived; but if such portions had been devised to 
 them by a stranger, to be paid or payable at such 
 an age, their legacies should not carry interest in 
 the mean time, because he, being a stranger, was 
 under no such obligation to provide tor them. 
 
 When a legacy is given to one conditionally only, 
 as in case he do or omit any particular act, the 
 legacy is not due or payable until the condition is 
 performed; and therefore if the legatee dies before 
 performance of it, the legacy is in general extin- 
 guished. 
 
 Where a legacy of money or other personal 
 estate is given to one who is an infant (under 
 twenty-one years of age) at the Testator's decease, 
 without appointing the legatee's age of twenty-one 
 years, or any other certain time, for the payment 
 of it} this legacy cannot be paid before the legatee 
 
 is
 
 (-124 ) 
 
 is "twenty-one years old, he not being capable 
 before that time of giving the. executor a legal 
 discharge for the same. It is often the course for 
 executors in such instances to pay the father or 
 guardian of the infant the legacy, in order to dis- 
 burden themselves of the trouble of the executor- 
 ship. This can only be safely done, where such 
 parent or guardian, being a person in good cir- 
 cumstances, will sufficiently indemnify the executor 
 by bond against any future demand of the legacy 
 by the infant, who is entitled to payment of the 
 same from the executor when he comes of age, 
 notwithstanding such former payment to his father 
 or guardian, 
 
 10. WHEN all the debts, and!, in case of any 
 Will, all the legacies given by such Will, are dis- 
 charged, the surplus or residue must be paid to 
 the residuary legatee, if any is appointed by the 
 Will. And if no residuary legatee is named, it 
 was long a settled notion that the undevised surplus 
 devolved to the executor, for his own use, by 
 virtue of his executorship. Whatever ground there 
 might have formerly been for this opinion, it is. 
 now to be understood with this restriction ; that 
 although where the executor has no legacy at all 
 given him by the Will, the undevised residue, after 
 payment of debts and legacies, shall generally be 
 his own, yet wherever there is sufficient on the 
 face of the Will, from which it may be implied 
 that the Testator did not intend his executor should 
 have it, the residue of the estate thus undevised 
 shall be distributed among the next of kin to the 
 Testator. 
 
 Many questions have been made as to this right 
 of the executor to the undevised residue ; for by 
 law the appointment of an executor vests in him, 
 for his own benefit, all the personal estate of the 
 
 Testator,
 
 ( 125 ) 
 
 Testator, not otherwise disposed of. Where he is 
 expressly named an executor in tnisf, or where 
 any other expressions occur shewing the office only* 
 to be intended him, and not the beneficial interest, 
 an executor shall be considered only as a trustee for 
 the benefit of the next of kin. So he shall, where, 
 though there is a residuary clause, the name of the 
 residuary legatee is not inserted, or where the re- 
 siduary legatee dies in the life-time of theTestator. 
 A pecuniary or specific legacy also to a sole execu- 
 tor excludes him from the undevised residue ; and 
 equal pecuniary legacies to two or more executors 
 exclude them both; and it makes no difference 
 though the executor is the wife or next of kin of 
 the deceased. 
 
 In all these cases an executor will stand upon 
 exactly the same footing as an administrator; who, 
 where there is a Will, is bound to distribute the 
 residue, after payment of debts and legacies, ac- 
 cording to the rules laid down in Chapter VI. 
 among the next of kin to the deceased ; and, where 
 there is no Will, the whole effects of the deceased, 
 after payment of his debts, are to be distributed 
 in the same manner. 
 
 But wherever the legacy to an executor is con- 
 sistent with the intent that he should take the 
 whole, a Court of Equity will not deprive him of 
 that which is his legal right ; and therefore, where 
 the gift to the executor is only an exception out of 
 another legacy, it shall not exclude him from the 
 undevised residue, "because it is necessary to make 
 such exception expressly. So a legacy to one only, 
 of two or more executors, shall exclude neither 
 from such undevised residue; because theTestator 
 might intend to such a one a preference, to the 
 amount of such legacy. The same rule and reason 
 hold wiiere several executors have unequal pecu- 
 niary legacies ; in which cases they shall divide 
 
 the
 
 ( 126 > 
 
 the residue equally between them. As to specific 
 legacies, it is determined that a specific legacy will 
 exclude a sole executor from the residue ; but that 
 distinct specific legacies of unequal value shall not 
 exclude two or more executors. No case has 
 been yet determined that distinct specific legacies, 
 of equal value, to several executors, should exclude 
 them from the undevised residue ; but in such a 
 case, most probably, Courts of Equity would in- 
 cline in favour of the next of kin : for specific 
 and pecuniary legacies have generally been con- 
 sidered in such courts as standing precisely on the 
 same ground, in questions of this nature. 
 
 None of these observations apply to the case of 
 an executor having a legacy, and being also ap- 
 pointed a residuary legatee : In this case he shall 
 take the benefit of both devises according to the 
 express will of the Testator. 
 
 APPENDIX.
 
 ( 127 ) 
 
 APPENDIX. 
 
 INTRODUCTION TO THE FOLLOWING 
 
 FORMS OF WILLS. 
 
 jnL MAN's whole property is by the law divided into real 
 and personal estate. Real estates consist of freehold lands, 
 tenements, houses, &c. Personal, of leasehold lands, 
 money, goods, chattels, and the like. 
 
 All freehold estates, for the several kinds of which, see 
 before, page , are called real estates, as are also (in 
 many respects) copyhold estates, which descend to the 
 heir at law, if not bequeathed by Will. 
 
 Leasehold terms of years in land, though ever so long, 
 as for 500 or 1000 years, are part of the personal estate, 
 and go as the rest of the personal estate to the executor 
 or administrator. 
 
 It may perhaps be objected, that the forms of Wills 
 here given are short and few. To this we answer, that 
 one general precedent will include a variety of particular 
 cases ; and also that we have in these forms, as in the 
 whole work, avoided running into subtleties and niceties, 
 and have therefore omitted any long and tedious forms 
 of difficult entails, contingent remainders, and executory 
 
 devises ;
 
 ( 128 ) 
 
 devises ; these not being ever necessary or required, but 
 in the devising and settling of large and extensive pro- 
 perty, and for which it might be as well unsafe as difficult, 
 to lay down certain precedents. Where the estate is of 
 so much value as to demand such settlement, 'it is right 
 that every one should consult those who are capable of 
 advising them, and who must necessarily be informed of 
 all the particular circumstances, which cannot be foreseen 
 or provided for by general rules. We also refer our reader 
 to the beginning of the fifth chapter, in which we have 
 endeavoured to give some slight idea of those difficult and 
 abstruse subjects. 
 
 NUMBER
 
 ( 129 ) 
 
 NUMBER I. 
 
 Form of a last Will and Testament, disposing of Goods, 
 Money, and personal Effects, and not containing any 
 Devise of Lands. 
 
 IN THIS WILL ARE BEQUESTS 
 
 r. To the Poor of the Parish. 
 
 2. To the Testator's Children. 
 
 3. And to Grandchildren: the Money to be invested in the Funds, to 
 
 be paid them at the Age of twenty-one Tears, or Days of Mar- 
 riage, with Interest in the mean Time for their Maintenance. 
 
 4. A De-vise to a Man, of Part of a Debt owing from him to the 
 
 Testator. 
 
 5 . A Devise of Household Goods to the Wife for Life, and after her 
 
 Death to the Son. 
 
 6. Devise of the Residue, And 
 
 7. Appointment of the Wife to be Executrix. 
 
 IN the Name of God, Amen. I John Mills, of 
 Cheapside, in the parish of Saint Mary le Bow, in 
 the city of London, linen-draper, 1 being of sound and 
 disposing mind, memory, and understanding, 2 but 
 mindful of my mortality, do this loth day of March, 
 in the year of our Lord I785, 3 make and publish this 
 my last Will and Testament, in manner and form fol- 
 lowing: That is to say, First, I desire to be decently 
 and privately buried in the church-yard belonging to 
 the parish in which I shall happen to die, without any 
 funeral pomp, and with as little expence as may be ; 
 
 1. and I give and bequeath unto the poor of such parish 
 the sum of lol. to be diilributed in such proportions 
 and manner as my executrix, herein after named, shall 
 
 2. think fit. Also, I give and bequeath unto my eldest 
 son, John Mills, the sum of 500!. Also, I give and 
 bequeath unto my second son, William Mills, the like 
 sum of 500!. Also, I give and bequeath unto my 
 
 See the Notes at the end referred to by this and the other figures 
 in the Will. 
 
 K daughter,
 
 ( 130 ) 
 
 Daughter, Mary Roe, the like sum of ool. The said 
 several and respeftiver legacies to be paid unto them 
 severally and respectively; immediately after the ex- 
 
 3. piration of one year after my decease. Alfo, I give to 
 my three grand-daughters, Sarah, Catherine, and Mary, 
 children of my said daughter, Mary Roe, the sum of 
 i col. each. And I do desire that the said several sums 
 of jool. shall, within the space of one month after my 
 deceafe, be. placed and invested in some or one of the 
 public funds of this kingdom, at the discretion of my 
 executrix, hereinafter named ; and that the .said several 
 sums of lool. or the 'funds or securities to be purchased 
 therewith, shall be paid and transferred to my said 
 grand-daughters respectively, when and as they shall 
 severally and respectively attain their several and re- 
 spective ages of twenty-one years, or day or days of. 
 marriage, which shall first happen ; and that the in- 
 terest accruing and arising therefrom, in the mean 
 time, shall be applied towards their education and 
 maintenance respectively until they shall severally and 
 respectively attain their said -ages, or day or days of 
 marriage as aforesaid : and in case any or either of 
 them the said Sarah, Catherine, and Mary, shall 
 happen to die before her or their attaining their said 
 age of twenty-one years, and unmarried, then I give 
 the share of her or them so dying, unto the survivors 
 or survivor of them ; and if all my said grand-daughters 
 shall happen to die before attaining the age of twenty- 
 one years, and unmarried, then I give and bequeath 
 the whole of the said several sums of loci, making in 
 the whole the sum of 300!. unto my said daughter 
 
 4. Mary, if she. shall be then living. 4 And whereas John 
 Doe, of Fleet-street, London, barber, is indebted to 
 me in the sum of 200!. principal money, upon bond : 
 now I do hereby give, forgive, and release unto the 
 said John Doe, the sum of lool. part of the said sum 
 of 200!. and do hereby will and direct that my execu- 
 trix, hereinafter named, do excuse and 'release tha 
 
 5. said sum of lool. to him. Also I give to my wife, 
 Mary Mills, the use of all my plate, houshold goods, 
 and furniture whatsoever, which shall be in my dwel- 
 ling-house at the time of my death, during her life- 
 time ; and after her decease, I give the same to my 
 son, John Mills, his executors, administrators, and 
 
 assigns.
 
 6. assigns. And as to all the rest, residue, and remainder 
 of my estate whatsoever and wheresoever, and of what 
 nature, kind, and quality soever the same may be, and 
 not herein before given and disposed of, after payment 
 of my debts, legacies, funeral expences, and the ex- 
 pence of proving this my will, I clo htreby give and 
 bequeath the same, being all personal, unto my dear 
 wife, the said Mary Mills, her executors, administra- 
 tors, and arfigns, to and for her and their own use and 
 
 7. benefit absolutely; and I do hereby make, ordain, 
 constitute, and appoint my said wife, Mary Mills, sole 
 executrix s of this my list Will and Testament, hereby 
 revoking all former and other Wills and Testaments by 
 me at any time heretofore made. In witness whereof 
 I have to this my last Will and Testament set and 
 subscribed my hand and seal, the day and ; year first 
 above written. 
 
 y -, 
 J ofin 
 
 Signed, sealed, published, and 
 declared by the said Testator, 
 John Mills, as and for his last 
 Will and Testament, in the 
 presence *of us, who at his request, 
 in his presence, and in the presence 
 of each other, 6 subscribed our 
 names as witnesses thereto.* 
 
 JoJm Denn, 
 Richard Fenn." 1 
 
 * If a duplicate, or other part of the Will, is executed at the same time, 
 say, " As we have likewise done to a duplicate of the above written Will 
 " at the same time." 
 
 Notes and Observations on the foregoing 
 necessary to be attended to. 
 
 1 THE Testator, or person making the Will, should be 
 
 careful to make such a description of himself as may 
 
 avoid any confusion or uncertainty, every Will being to 
 
 be registered among a variety of others, and many persons 
 
 K 2 being
 
 ( 183 ) 
 
 feeing concerned and interested therein. This description 
 is in law called his " addition" After the place of abode 
 it is necessary, as here, to add the trade, occupation, or 
 profession. Single women, never married, use the ad- 
 dition of "spinster;" widows, that of "widow," which 
 are sufficient, without mentioning any trade or business, 
 though they may exercise such. It is still more necessary 
 to be exact in the description of the legatees, in order to 
 prevent any mistakes with respect to them.* 
 
 2 " Of sound and disposing mind, &c." This being a 
 circumstance absolutely necessary to the validity of Wills, 
 it is right that it should be recognized in every Will by 
 the Testator himself. 
 
 3 The date is necessary on a variety of accounts. See 
 page 12 14. As it is not usual to date legal instruments 
 on a Sunday, it has been thought that if a Will is made 
 on that day, it would be right to date it on the preceding 
 day ; but this might be attended with great inconvenience 
 on queflions of insanity, and in other cases ; and it is 
 therefore right to date it on the day it is actually made. 
 
 4 In this case, if the grand-daughters should all die 
 under age and unmarried, and the daughter to whom the 
 legacies are in such case given over, should not be living 
 at their death, they would fall into and become part of 
 the residue of the estate, and go to the residuary legatee 
 (in this case the wife) or her personal representative, 
 
 5 'A woman is called an execurmr, but the whole law 
 of executors applies to her ; and that, as has been men- 
 tioned in page 23, 24, though she is a married woman. 
 
 * If a married woman, as is sometimes the case, makes a Will, in 
 consequence of a settlement or agreement, the Will should begin in the 
 following form : 
 
 " I Mary Roe, wife of Richard Roe, of Islington, in the county of 
 " Middlesex, Esquire, do by this my writing, purporting to be my last 
 " Will and Testament, dispose of my estate and effects, pursuant and 
 *' according to the authority to me given and reserved in and by a deed 
 " of settlement made on my marriage with the said Richard Roe, bearing 
 " date (and setting out the date of and parties to the settlement, if 
 " kno\vn) and by virtue of the said deed, and of all other powers and 
 " authorities whatsoever to me given or reserved, in manner as follow.-; 
 ** That ii to say, I give," &c, as in other Wills, 
 
 6 Though,
 
 ( 133 j 
 
 c Though, as has been before mentioned, page , it is 
 not absolutely requisite that the execution of Wills of 
 goods, money, and personal estate, should be as formal 
 as is here prescribed, yet it is the safest way, and that all 
 the circumstances in Italics should concur. 
 
 7 Two witnesses are sufficient to a Will of personal 
 estate. When the person making the Will executes it, 
 he must, in the presence of the witnesses, write his name 
 opposite the seal, (or if he has previously written it, he 
 must acknowledge it to be his writing.) If he cannot 
 write, he must make his mark, and then say to the 
 witnesses, " I publish and declare this as my lail Will, 
 and desire you to witness it." 
 
 K 3 NUMBER
 
 ( 134 ) 
 
 NUMBER II.* 
 
 Form of a Will disposing of Lands only ; containing, 
 
 X. A Devise of Freehold Lands to one in Fee Simple. 
 
 2. A De-vise of other Lands to one in Tail ; and an Executory Devise t* 
 
 another in Fee Simple. 
 
 3. A Devise of Copyhold Lands. 
 
 4. A Devise of Freehold Lands to one in Tail 
 
 5. Devises to Tenants in common aud Joint-tenant}. 
 6' A Devise of the Residue. 
 
 THIS is the last Will and Testament of me John 
 Doe, of Fleet-street, in the city of London, gen- 
 tleman, being of sound and disposing mind, memory, 
 
 j. and understanding. First, I give, devise, and bequeath 
 unto Richard Roe the younger, of Fleet-street afore- 
 said, gentleman, all those my freehold messuages, 
 lands, tenements, hereditaments, and premises, with 
 the appurtenances, whereof I am seised in fee, situate, 
 lying, and being at Cheshunt, in the county of Hert- 
 ford, and now or late in the several tenures or occu- 
 pations of John Mills, &c. (mentioning the naircs of 
 the tenants of the premises) or some or one of them, 
 their or some or one of their under-tenants, or assigns, 
 to have and to hold all and every the said lands, tene-r 
 ments, and hereditaments, with the appurtenances, 
 situate as aforesaid, to him the said Richard Roe, 
 
 2. his hens and assigns for ever. 1 Also, I give, devise, 
 and bequeath to my second son, William Doe, all 
 that my freehold farm, lands, and premises, situate at 
 Cheshunt aforesaid, and now in the possession of 
 Richard Fcnn, as tenant thereof to me, to hold the 
 same farm, lands, and premises, unto my said son, 
 William Doe, and the heirs of his body ; 2 but in case 
 ray said son shall die without leaving heirs of his body, 
 
 * Sec the notes on this Number, page 156. 
 
 then
 
 ( 135 ) 
 
 then I give, devise, and bequeath the said farm, lands, 
 and premises, tj my daughter, Mary Doe, her heirs 
 
 3. and assigns, for ever. Also, I give and bequ^.ih unto 
 William Thomas, of Islington, in the county of Mid- 
 dlesex, Esquire,' all those my copyhold lands, mes- 
 suages, tenements, and hereditaments, and which I 
 have surrendered to the use of my Will, 3 situate, 
 lying, and being at Enfield, in the county of Middle- 
 sex, and which now are, or lately were, in the tenure 
 or occupation of Edward Reeves, his under-tenants or 
 assigns ; to have and to hold the said copyhold lands, 
 messuages, and tenements, to the said William Tho- 
 mas, his heirs and assigns, for ever, according to the 
 custom of the manor of which the same are holden. 
 
 4. And I do hereby give, devise, and bequeath unto my 
 said son, William Doe, all those my four freehold 
 messuages or dwelling-houses, situate in Fleet-street, 
 London, aforesaid, being Nos. 106, 107, 108, and 109, 
 and now being in the several tenures or occupations 
 of, &c. (mentioning the tenants names) to have and to 
 hold the same to my said son, William Doe, and to the 
 heirs of his body, lawfully begotten, or to be begotten. 4 
 
 5. Also I give, devise, and bequeath unto John Dem?, 
 of Cheapside, London, mercer, and Richard Fenn, of 
 Fleet-street, London, aforesaid, linen-draper, all that 
 my freehold estate, farm, lands, and premises, whereof 
 I am seised in fee, situate, lying, and being at Hack- 
 ney, in the county of Middlesex, and now in the 
 tenure or occupation of Henry Roberts, as tenant to 
 me of the same, under a lease for twenty-one years, 
 from Lady-day, 1783, to have and to hold the same 
 estate, farm, lands, and premises, with the appurte- 
 nances, unto the said John Denn and Richard Fenn, 
 [their heirs and assigns for ever, as tenants in com- 
 mon and not as joint-tenants.] If It Is intended to make 
 the devisees joint-tenants, the words of the devise are to be 
 exactly similar till the beginning of the brackets, and then* 
 instead of the words inserted between thcrn^ say [and the 
 survivor of them, his heirs and assigns for ever, as 
 
 6. joint-tenants, and not as tenants in common.] > And 
 as to all the rest, residue, and remainder of my real 
 and copyhold estates whatsoever, and wheresoever 
 the same may be situate, lying, and being, I do 
 hereby give, devise, and bequeath the same to mv 
 
 K 4 fuid
 
 ( 136 ) 
 
 said son, William Doe, to have and to hold the same 
 to my said son William Doe, his heirs and assigns, 
 for ever. In witness whereof I the said John Doe 
 have, to this my last Will and Testament, set and sub- 
 scribed my hand and seal, the 2oth day of March, in 
 the year of our Lord 1783. 
 
 Signed, sealed, &c. (as in the 
 attestation to No. I.) To 
 be executed in the presence Jhn Doe. 
 
 of, and signed by three wit- 
 nesses. See page 8, &c. 
 
 Notes and Observations referred to in No. II. 
 
 1 " To the said R. D. his heirs and assigns for ever." 
 These are the plain and simple words which convey to a 
 man the fee-simple or entire property in freehold lands or 
 houses, without a possibility of dispute or misunder- 
 standing. See further, page 47, 48. 
 
 a " And the heirs of^ his body ; but" &c. By these 
 words an estate-tail is given to the son, in the lands, and 
 by the words immediately following, the lands are given, 
 by an executory devise,' to the daughter in fee. See 
 page 5 7 to 63. 
 
 In addition to what is said in Chapter V. on Executory 
 Devises, it is now necessary to state, that by an act passed 
 during the last session of parliament, 39 and 40 G. 3. 
 c. 98, (generally called The Executory Devise Act], no 
 person can by deed or Will settle or dispose of any real 
 or personal property, so as that the rents or profits shall 
 be accumulated for a longer term than the life of the 
 fettler; or 2 1 years after his decease ; or during the mi- 
 nority of any person living at his decease ; or during the 
 minorities of persons beneficially entitled. 
 
 3 As
 
 ( 137 ) 
 
 3 As to the necessity and effect of this surrender of 
 copyhold estates, see page 62, 63. 
 
 4 This is a devise of an estate tail to the son -, for an 
 explanation of which see page 52. 
 
 5 These several forms of words will avoid all ambiguity 
 in devises of lands to two or more persons, and will clearly 
 shew what estate the Testator intends giving. See pages 
 36 and 50. 
 
 N. B. Where a Will contains devises of lands only, 
 there is no occasion for the appointment of an executor, 
 as is necessary in the case of personal estate ; and where 
 no disposition is made by Will of such personal estate, 
 the deceased is said, as to that, to die intestate, and it 
 will be distributed according to the rules laid down in the 
 last chapter of the work. In the word lands, leasehold 
 estates are not meant or included, they being part of the 
 personal estate, and to be disposed of or distributed ac- 
 cordingly, unless the Testator has no lands but lease- 
 holds; in which case the Will must operate on them or 
 not at all. 
 
 NUMBER
 
 ( 138 ) 
 
 NUMBER III. 
 
 Republication of the foregoing Will. 
 
 For the Occasion, Reason and Effect of this Republi- 
 cation, seepage n, &c. 
 
 WHEREAS since the making and publishing of 
 the above last Will and Testament of me the 
 said John Doe, 1 have purchased divers freehold lands, 
 messuages, tenements, hereditaments, and premises, 
 situate in the several counties of Hertford and Mid- 
 dlesex : Now I do hereby republish my said last Will 
 and Testament, and do hereby declare that it is my 
 desire and intention that the said Will and Testament 
 shall be good and valid, to all intents and purposes, as 
 if the same had been this day originally made and 
 published ; any act, deed, matter, or thing whatsoever, 
 by me heretofore done, committed, or omitted, to the 
 contrary thereof in any wife notwithstanding. In wit- 
 ness whereof I have hereunto set and subscribed my 
 hand and seal, this ist day of May, in the year of our 
 Lord 1784. 
 
 Signed and sealed by the said 
 Testator, John Doe, in the 
 presence of us, who at his 
 request, in his presence, 
 
 =. s 
 
 is 
 
 and in the presence of each John Dae. 
 other, have subscribed our 
 names as witnesses to the 
 above republication of his 
 said last Will and Testa- 
 ment. 
 
 To be executed in the presence of, and signed by three 
 witnesses, in the same manner as the original WilL 
 
 NUMBER
 
 { 139 ) 
 
 NUMBER IV. 
 
 Form of a Will of personal Estate, containing, 
 
 I. A Bequest of Money to a Wife provided for by Marriage Settlement* 
 a. Bequest of Household Goods to her. 
 
 3 . Legacies to several Persons for Mourning. 
 
 4. Legacy to Executors for their Trouble. 
 
 5 . Devise of the Residue to Executors upon Trust, to invest the same 
 
 in the public Funds, for the Bent/it of such Children as the Testator 
 should leave at his Death ; the Interest to be applied towards their 
 Maintenance and Education, and the Principal to be paid to the 
 Males at twenty-one, and to the Females at that Age, or Day or 
 Days of Marriage, with Benefit of Survivorship. In case of all 
 their Deaths without Issue, th. Interest to the Wife for Life, and 
 after her Death, ths Principal to be paid to the Testators Brothers 
 and Sisters. 
 
 6. Devise of the Guardianship of Testator's Children to his Wife and 
 
 Executors. 
 
 7. Appointment of Executors. 
 
 8. Clauses to Indemnify the Executors against all Expences and involun* 
 
 tary Loss. 
 
 9. Revocation of all former Wills, and Conclusion. 
 
 THIS is the 'ill and Testament of me John 
 Smith, o . . parish of St. Ann, Aldersguie, in 
 the c'ity of London, grocer, who am in health, and 
 of '-<>'ind and disposing mind, memory, and under- 
 g. First, I commend my soul into the hands 
 .aighty God, who gave it, and my body I com- 
 mit to the earth, to be decently and frugally interred, 
 at the discretion of my executrix and executors herein 
 after named ; and as to all my worldly estate what- 
 soever and wheresoever, wherewith it may please God 
 to bless me, being all personal, I give, devise, and 
 bequeath the same, after payment of my funeral ex- 
 pences, the expence of proving this my Will, and all 
 my just debts, as herein after is mentioned : Whereas 
 my dear wife, Mary Smith, is already sufficiently and 
 
 handsomely
 
 handsomely provided for by settlement made on her 
 at her marriage, and otherwise, yet notwithstanding 
 the same, and in token of the great affection which I 
 have for her, I gire and devise unto her my said dear 
 wife, the said Mary Smith, the sum of 500!. of good 
 and lawful money of Great Britain, to be paid to her 
 within six months after my decease, to and for her 
 I. own use and benefit. Also, I give and bequeath unto 
 my said wife, the said Mary Smith, all and singular 
 my household goods, books, plate, linen, china, fur- 
 niture, and utensils whatsoever, in and belonging to 
 my dwelling-house, to and for her own use and 
 benefit ; and also the sum of 20 guineas for a ring and 
 
 3. mourning. Also I give unto my three sisters, Eliza- 
 beth, Anne, and Jane Smith, and to my brother, 
 Thomas Smith, the sum of 30 guineas each, for a 
 
 4. ring and mourning. Also, I give unto Robert Porter, 
 of Chcapside, gentleman, and -William Symonds, of 
 the same place, linen-draper, two of my executors 
 and my trustees, herein after named, the sum of 50 
 guineas each, for the trouble they may have in exe- 
 
 5. cuting this my Will. And lastly, after payment of 
 all my just debts as aforesaid, and of the legacies in. 
 this my will contained, with the payment of all which 
 1 do hereby charge all my personal estate, I give and 
 bequeath all and singular the rest, residue, and re- 
 mainder of my estate and effects whatsoever and 
 wheresoever, unto the said Robert Porter and William 
 Symonds, and the survivor of them, and the executors 
 and administrators of such survivor, upon trust, to sell 
 and dispose of, collect and get in the same, and to 
 invest the money arising from the said residue, in 
 some or one of the public funds of this kingdom, in 
 the names of them the said Robert Porter and William 
 Symonds, or the survivor of them, or the executors 
 or administrators of such survivor, upon the trusts, 
 and to and for the uses, intents, and purposes herein 
 after .declared, of and concerning the same ; (that is 
 to say ;) upon trust, that they do and shall apply the 
 dividends and interest of the said securities, so as 
 aforesaid to be purchased, or so much of the same 
 interest and dividends as shall, in the discretion of 
 my said trustees, or the survivor of them, or the exe- 
 CUtors or administrators of such survivor, be thought 
 
 proper
 
 proper and necessary, in and upon the maintenance 
 and education of all and every such child or children 
 as I may happen to leave at my death, equally, share 
 and share alike, until such or them as shall or may 
 happen to be male's, shall respectively attain their age 
 or ages of twenty-one years, and until such of them 
 as may happen to be females shall respectively attain 
 the said age of twenty-one years, or day or days of 
 marriage, respectively, which shall first happen ; and 
 when and as my said children shall respectively attain 
 their said respective ages or days of marriage, then, 
 upon trust, to pay, assign, and transfer the funds and 
 securities in which the same residue shall have been 
 so invested, equally unto and amongst all my children, 
 who shall attain the said age, or day or days of mar- 
 riage, immediately as they shall respectively attain 
 the same ; and in case there shall be only one such 
 child which shall attain that age, or marriage as afore- 
 said, then, in trust, to pay the s,sme residue to such 
 only child, if all my other children shall have died 
 without issue. And in case any or either of the said 
 children shall happen to die, such of them as shall be 
 males, before he or they shall respectively attain his, 
 her, or their age of twenty-one years, and without 
 issue, and such of them as shall be females, before 
 attaining the said age, or their day or days of marriage 
 respectively, and without issue, then the parts or 
 shares of him, her, or them so dying under age, un- 
 married, and without issue, shall go to and amongst, 
 and be in trust for the surviving child and children, 
 and be equally divided between or among them, share 
 and share alike, if more than one, and be payable 
 when and as his, her, or their original parts or' shares 
 shall by virtue of this my Will become payable ; and 
 be liable to the same contingencies of surviving to and 
 among the surviving child or children, in case of the 
 death of any other of the said children in manner 
 aforesaid, as I have herein before directed, concerning 
 his, her, or their original parts or shares. But in case 
 all the said children shall happen to die, such of them 
 as shall be males, before they shall'attain the age of 
 twenty-one years, and without issue, and such of them 
 as shall be females, before attaining that age, or their 
 days of marriage respectively, and without issue, then 
 
 and 
 4
 
 ( 142 ) 
 
 and in such case, I will and direct, that the said 
 Robert Porter and William Symonds, my said execu- 
 tors, and the survivor of them, and the executors and 
 administrators of such survivor, shall from thenceforth 
 stand and be possessed of such residue, and the secu- 
 rities so to be purchased therewith as aforesaid, and 
 the dividends, interest, and produce thereof, to, for, 
 and upon the following uses, trusts, intents, and pur- 
 poses ; that is to su ; upon trust, to pay the interest, 
 dividends, an-, produce of the said residue, unto my 
 said loving wife, Mary Smith, and her assigns, during 
 the term of her natural life, and her remaining my 
 widow, sole and unmarrried, and from and after the 
 death or marriage of my said wife, Mary Smith, and 
 in case of all my said children dying, as aforesaid 
 respectively, under age, unmarried, and without issue, 
 then, and in such case* I give, devise, and bequeath 
 the said residue, or the funds and securities in which 
 the same shall have been invested, equally, share and 
 share alike, unto and amongst my said sisters and 
 brother, their executors, administrators, and assigns, 
 
 6. to and for their own use and benefit. And I do 
 hereby devise the guardianship, care, and education 
 of my said children during their minorities as afore- 
 said, unto my said loving \vife, Mary Smith, and the 
 said Robert Porter and William Symonds, and the 
 survivors and survivor of them. But it is my will and 
 desire, that the guardianship of my said wife shall 
 cease on her marriage, and ceasing to remain my 
 
 7. widow. And I do hereby nominate, constitute, and 
 appoint my said dear wife, the said Mary Smith, and 
 the said Robert Porter and William Symonds, executrix 
 and executors of this my last Will and Testament ; 
 
 8. Provided, and my will is, that mv said trustees, and 
 executrix, and executors, herein before named, and 
 the survivor of them, and the executors and adminis- 
 trators of such survivor, shall and may at all times in 
 the first place reimburse and indemnify themselves, 
 herself, and himself respectively, and deduct and 
 retain to themselves, herself, and himself respectively, 
 out of the said trust premises respectively, all such 
 costs, charges, damages, and expences, as they or 
 either of them shall or may at any time expend, lay 
 ut, and be put unto, for or by reason or means of all, 
 
 anv,
 
 any, or either of the trusts hereby in them reposed ; 
 and that neither of them shall be answerable for any 
 loss which may happen to any of the said trust pre- 
 mises, unless such loss happen through his, her, or 
 their wilful neglect or default, nor one for the other 
 or others of them, nor for more monies than shall 
 actually come to each of their hands respectively; but 
 each and every of them for his, her, and their o*vn 
 acts, deeds, receipts, neglects, and defaults only; nor 
 for any loss which shall or may happen by occasion 
 of depositing any money in the hands, keeping, or 
 custody of any public or common banker. And I do 
 hereby revoke and make void all former and other 
 Wills by me at any time heretofore made, and do 
 declare these presents only to be and contain my last 
 Will and Testament. In witness whereof I the said 
 John Smith, the Testator, have to this my Will, con- 
 tained in three sheets of paper, set my hand at the 
 bottom of each of the two preceding sheets, and my 
 hand and seal to this third and last sheet*, this loth 
 day of May, in the year of our Lord 1784. 
 
 Signed, sealed, &c. as in 
 
 No. I. to be witnessed John Smith. 
 
 by two witnesses. f 
 
 ll 
 
 . 8 
 ' 8, 
 
 * See Page 8, 9. 
 
 f In this, as in other cases where the Will exceeds one sheet, it is the 
 regular way for the Wifnessf- to put their names at the bottom of the pre- 
 ceding sheets, at the corner opposite to that where Uie Testator signs. 
 
 NUMBER
 
 ( 144 ) 
 
 NUMBER V. 
 
 Form of a Will disposing both of real and personal Pro- 
 perty, Lands, Money in the Funds, Leasehold Estates, 
 &c. containing, 
 
 l. A Formal Introduction. 
 
 a. A Devise to Executors of jfoc/. Stock, in Trust to pay the Interest 
 to Testator's Father during his Life, and after bis Death t9 
 transfer same to a Bret her of Testator's. 
 
 3. A Devise <f a Freehold House to a younger Son in Fee. 
 
 4. A Devise of another Freehold. House to the Testator's Daughter, 
 
 being a married Woman, far her o<wn Use, exclusive of her Hus- 
 band, for her Life, and after her Death to a Son of the Testator's, 
 in Tail. 
 
 5. Devise' of 6oo/. three per Cents, the Interest to be paid for the 
 
 Education of Testator's Son, till tzventj-one Tears of Age, when 
 the Principal to be transferred to him. 
 
 6. Proviso that the Executors may apply loo/, in putting him out 
 
 Apprentice. 
 
 }. Devise of a Freehold Estate ti Trustees for the Use of a Son during 
 Life, and after bis Death to bis Children. 
 
 8. A Devise of a Leasehold Estate to one for Life, and the Remainder 
 
 after bis Death to his Son. 
 
 9. A Devise of a Freehold Farm, subject to an Annuity payable to the 
 
 Testator's 
 
 10. A Devise of an Annuity to the Testator's H'ido-j;, charged on the 
 
 lust devised Estate. 
 
 11. A Power given to. the Wife, to distrain, or enter on the Lands 
 
 charged with the Annuity, in case of Non-Payment rf the Annuity. 
 
 12. Devise to Executors of 4OO/. in order to purchase an Annuity for 
 
 the Life of a Bi other of Testator's, but the said Annuity not to be 
 sold or assigned by him, or if assigned to be forfeited. 
 
 15. Devise of 5OG/. the Interest to be paid to Testator's Niece till 
 t-.i'fnty-one, or Day of Marriage, if under that Age, with Consent 
 of Trustees ; but in case of Death, or Marriage under Age 
 without Consent, then to sink into the Residue. 
 
 14. Paiu/r given tc. Executors to stll Lands. 
 
 ij. Fewer
 
 f;. Power given to Executors to manage the Estete and Fortunes of 
 the Testator's Children during their Minorities. 
 
 1 6. Specific Devises of Watch and Plate. 
 
 17. Devise to a City Company, for the Use of their Poor. 
 
 1 8. Devise to a Public Charity. 
 
 19. Appointment of Executors, and Devise to them for their Trouble. 
 
 20. Devise of Residue. 
 
 i. TN 
 beinc 
 
 the NAME OF GOD, AMEN. I John Doe, of 
 Islington, in the county of Middlesex, Esquire, 
 eing weak in body, but of sound and disposing mind, 
 memory, and understanding, praised be God for the 
 same, do make, publish, and declare this my last 
 Will and Testament, in manner and form following: 
 First, I commend my soul into the hands of Almighty 
 God, my Creator, hoping for a remission of all my 
 sins by the merits and mediation of my Saviour Jesus 
 Christ : and my body I commit to the earth, to be 
 decently interred, at the discretion of my executors, 
 herein after named. And as to all my worldly estate, 
 both real and personal, I give, devise, and bequeath 
 the same as follows : First, I give and bequeath unto 
 my brother, Benjamin Doe, of the parish of Saint 
 Alary Somerset, in the city of London, butcher, and 
 John Williams, of the parish of St. George, Hanover- 
 square, ift the said county, pawnbroker, my executors 
 herein after named, the sum of 500!. three per centum 
 per annum consolidated annuities, transferable at the 
 Bank of England, in trust that they my said executors, 
 and the survivor of them, and the executors and ad- 
 ministrators of such survivor, do and shall pay and 
 apply the interest and dividends thereof (to be paid 
 by them quarterly and every quarter) by even and 
 equal portions, unto my father, Thomas Doe, of 
 Bollon, in the county of York, during the term of his 
 natural life, without any deduction whatsoever. And 
 from and after the death of my said father, I give and 
 bequeath the said 500!. annuities unto my said brother, 
 Benjamin Doe, his executors, administrators, and 
 assigns, for his own use and benefit. And I will that 
 he and my said other trustee and executor, and the 
 survivor of them, and the executors and administrators 
 of such survivor, shall stand possessed of and transfer. 
 L the
 
 , ( 146 ) 
 
 the same accordingly. Also I give, devise, and be- 
 queath to my younger son, William Doe, all that my 
 freehold messuage and tenement and premises wherein 
 I now live, situate, lying, and being at Islington afore- 
 said ; to have and to hold the said messuage or tene- 
 ment and premises to my said son- William Doe, his 
 heirs and assigns, for ever. Also I give, devise, and 
 bequeath all that my other freehold messuage and 
 tenement, with the appurtenances, situate, lying, and 
 being in the Lower-street, in Islington aforesaid, and 
 now in the possession of John Denn, as tenant thereof 
 to me, unto my daughter, Charlotte Fenn, wife of 
 Richard Fenn, of (&c. describing him) to have and 
 to hold to my said daughter, Charlotte Fenn, and her 
 assigns, for and during the term of her natural life, 
 without impeachment of waste*; and to have, receive, 
 and take the rents, issues, and profits of the said 
 messuage or tenement, with the appurtenances, to my 
 said daughter Charlotte Fenn, to and for her sole 
 and separate use and benefit, notwithstanding her 
 coverture. And it is my will and desire that the said 
 messuage or tenement, ' and the rents, issues, and 
 profits thereof, and the estate and interest of my said 
 daughter Charlotte Fenn therein, shall not be liable 
 to the debts, controul, or engagements of her prcrent 
 husband, the said Richard Fenn, or of any ot- 
 future husband ; but that the receipts and acquittances 
 of the said Charlotte Fenn alone, without her said 
 present or any other or future husband, shall be suf- 
 ficient discharges for the payment of the said rents 
 and profits, to all intents and purposes as if she was 
 sole and unmarried. And from and immediately after 
 the decease of my said daughter Charlotte Fenn, I 
 give, devise, and bequeath the same messuage or 
 tenement, with the appurtenances, unto my said son 
 William Doe, and the heirs of his body lawfully to 
 fee begotten ; and for default of such heirs, then to 
 
 * By these words, " without impeacJment of waste," the daughter holds 
 the house during her life as advantageously as she could if she had the 
 fee-simple, or whole property, not being answerable to the heir, or persoiy 
 next in reversion or remainder, for any damage done to it during her estate 
 in it, or for any alteration of any kind which she may think proper to 
 raaJte io the same,, as ske would otherwise be. 
 
 my
 
 my own right heirs for ever. Also I give and bequeath 
 the sum of 6ool. three per cent, consolidated annuities 
 transferable at the Bank of England, unto my said 
 executors Benjamin Doe and John Williams, and the 
 survivor of them, and the executors and administrators 
 of such survivor, in trust to pay and apply the interest 
 and dividends to grow due thereon from time to time, 
 from and after my decease, for or towards the main- 
 tenance and education of my son David Doe, until he 
 shall attain the age of twenty-one years ; and then in 
 trust that they my said trustees shall and do assign 
 and transfer the said 6ool. annuities to my said son 
 David Doc, his executors and administrators. Pro- 
 vided always, that it shall and may be lawful, and it 
 is my Will, that my said trustees and executors shall 
 and may sell and dispose of a sufficient part of the 
 said principal sum of 6ool. annuities, herein before 
 intended for the benefit of my said son David Doe, in 
 order to raise a sum not exceeding lool. in money, to 
 pay and apply the same in and towards the placing out 
 of the said David Doe an apprentice, or otherwise for 
 his benefit during his minority, in such manner as they 
 my said trustees and executors shall, in their discretion, 
 think nt. Also I give and devise unto the said Benja- 
 min Doe and John Williams, and their heirs and assigns, 
 and the survivor of them and his heirs, All, &c. 
 (describing the premises) Upon special trust and confi- 
 dence, that they the said Benjamin Doe and John 
 Williams, and their heirs, and the survivor of them 
 and his heirs, shall stand .seised of the said premises 
 for and during the term of the natural life of my son 
 Robert Doe, to such use and bcncof <*$ is herein alter 
 mentioned : That is to say, that the said Benjamin ' 
 Doe and John Williams shall, yearly, and every year, 
 during t!."e natural life of the' said Robert Doe, my 
 son, take and receive the rents, issues, and yearly 
 profits of the said premises; ana my will and .mind is, 
 and I do hereby order, t.;at such rents, issues, and 
 yearly profits shall be applied for the subsistence and 
 maintenance of the said Robert Doe during his natural 
 life as aforesaid ; and immediately from and after the 
 decease of lae said Robert Doe, my son, then I do 
 hereby gi e and devise the said premises unto the 
 heirs of the body of the said Robert Doe, my son, 
 L 2 lawfully
 
 { 148 ) 
 
 lawfully to be begotten, and for default of such issue, 
 then I give and devise the same unto the right heirs 
 
 8. of me the said John Doc for ever. Also I give and 
 devise unto Samuel Hawkins, of Broad-street, London, 
 merchant, all that my leasehold messuage or tene- 
 ment, with the appurtenances, situate in Newgale- 
 street, in the said city of London, and now in the 
 tenure or occupation of William Hr.mfries, and which 
 I now hold by or under a lease from Nathaniel 
 Harvey, Esq. hearing date the fifth day of April, 
 1769, for the term of sixty-one years, from Lady-day, 
 1769; and all my estate^ right, title, term and in- 
 terest of and in the same premises, with the appur- 
 tenances, to have and to hold to him the said Samuel 
 Hawkins, and his assigns, to and for his and their 
 use and benefit, for and during so long of the re- 
 mainder of the said term of sixty-one years, which 
 shall be to come and unexpired at the time of my 
 death, as he the said Samuel Hawkins shall happen 
 to live ; and from and immediately alter the death of 
 the said Samuel Hawkins, before the expiration of 
 the said term of sixty-one years, I give, devise, and 
 bequeath the said leasehold premises, with the ap- 
 purtenanccs, to his son Richard Hawkins, his execu- 
 tors, administrators, and assigns, to and for his and 
 
 9. their own use and benefit. Also I give and devise 
 unto my son-in-law, the said Richard Fenn, all thai 
 my freehold farm, lands, and premises, with the ap- 
 purtenances, situate, lying, and being at Croydon, in 
 the county of Surrey, and now in the occupation of 
 
 1 John Cullingharu, as tenant thereof, to have and to 
 hold the said farm, lands, and premises to him the 
 said Richard Fenn, his heirs and assigns, for ever; 
 subject nevertheless to, and charged and chargeable 
 with the annuity, yearly rent, or sum of 30!. herein 
 after mentioned and devised to my dear wife Mary 
 
 10. Doe. And 1 do hereby giye, devise, and bequeath 
 unto my dear wife Mary Doe, and her assigns, for 
 and during the term of her natural life, one annuity, 
 or clear yearly rent or sum of 30!. of lawful money of 
 Great Britain, free and clear of and from all taxes 
 and deductions whatsoever, parliamentary or others. 
 The said annuity to be chargeable and charged on 
 and issuing and payable out of the said farm, lands, 
 
 and
 
 ( 149 ) 
 
 and premises at Croydon aforesaid, herein before 
 given and devised to my son-in-law Richard 1'cnn ; 
 and to be paid and payable by him the said Richard 
 Fenn by four even and equal quarterly payments, 
 (that is to say) on the Feast Days of the Annunciation 
 of the Blessed Virgin Mary, the Nativity of St. John 
 the Baptist, Saint Michael the Archangel, and the 
 Birth of our Lord Christ, in every year : the first pay- 
 ment thereof to begin and be made on such of the same 
 feasts as shall first and next happen after my decease. 
 And I do hereby charge and subject the said freehold 
 farm, lands, and premises last mentioned to and with 
 the payment of the said annuity, yearly rent, or sum 
 u. of 30!. accordingly. And it is my will and' desire, 
 that in case the said annuity or yearly rent or sum of 
 30!. or any part thereof, shall at any time during the 
 life of the said Mary Doe be behind or unpaid by the 
 space of twenty days next over or after any or either 
 of the aforesaid feasts or days of payment whereon 
 the same is herein before directed to be paid as 
 aforesaid, being lawfully demanded, that then and so 
 often it shall and may be lawful to and for my said 
 wife, and her assigns, to enter upon the said farm, 
 lands, and premises, hereby charged with the said 
 annuity, as aforesaid, and to distrain for the same 
 annuity, or for so much thereof as shall be so in 
 arrear ; and the distress and distresses then and there 
 found to detain and keep, until she shall be fully paid 
 and satisfied all such arrears of the said annuity, with 
 costs and charges in and about the making and keep- 
 ing the said distresses for the same. And in case the 
 said annuity, or any part thereof, shall be behind and 
 unpaid for the space of forty days next after any of 
 the said days of payment whereon the same ought to 
 be paid as aforesaid, that then and so often it shall 
 and may be lawful for my said wife, and her assigns, 
 to enter into and enjoy all and singular the premises 
 hereby charged with the said annuity as aforesaid, 
 and to receive and take the rents, issues, and profits 
 thereof, to and for her and their own use and benefit, 
 until she or they shall be therewith and thereby paid 
 and satisfied, or until the person or persons who shall 
 be then entitled to immediate possession of the said 
 premises shall pay, satisfy, and discharge ' unto my 
 L 3 x sai'd
 
 ( 150) 
 
 said wife, the said Miry Doe, all the arrears cf the 
 said annuity, and every part thereof, incurred before, 
 and that shall incur during such time as she shall 
 receive the rents, issues, and profits thereof, or be 
 entitled to receive the same, by virtue of such entry, 
 to be made as aforesaid ; together with all her costs, 
 damages, and expences whatsoever to be laid out and 
 sustained by reason of the non-payment thereof, or 
 
 12. for any part thereof.* Also 1 give and bequeath unto 
 my said executors and trustees, the said Benjamin 
 Doe and John Williams, the sum of 400!. of lawful 
 money of Great Britain, in trust that they, or the 
 survivor of them, or the executors and administrators 
 of such survivor, do and shall, immediately on my 
 decease, lay out the same at his and their discretion, 
 in the purchase of an annuity for the life of my 
 brother William Doe, to be well secured ; and then 
 to pay the said annuity quarterly, by equal portions, 
 unto my said brother William Doe for his life, for his 
 own use and benefit. But I will that the said annuity 
 shall not be sold, assigned, or in any wise disposed 
 of, or incumbered, by the said William Doc. And 
 in case the said William Doe shall so sell, assign, or 
 
 / incumber the said annuity, I will that the same shall 
 sink, and go into the residue of my estate, and shall 
 be disposed of as is herein after mentioned with 
 
 13. respect to the said residue. And I also give and 
 bequeath unto my said executors, the said Benjamin 
 Doe and John Williams, the farther sum of 500!. of 
 the said three per cent, per annum consolidated an- 
 nuities, in trust that they, and the survivor of them, 
 and the executors or administrators of such survivor, 
 do and shall pay and apply the interest, dividends, 
 and proceeds thereof unto and towards the education 
 and maintenance of my niece Mary Doe, daughter of 
 my late brother Stephen Doe,, until she shall attain 
 the age of twenty-one years : and when she shall 
 attain that age, on trust to assign and transfer to her 
 
 * This remedy by distress is proper to he pursued in case of non-pay- 
 ment of an annuity charged on lands. The clause giving the annuitant 
 power to enter and take the rents may be useful ih case no sufficient 
 distress can be found on the premis.cs. 
 
 the
 
 ( 151 ) 
 
 the said 500!. annuities, for her own use and benefit. 
 Provided nevertheless, in case my said niece shall 
 many under that age, without the consent in writing; 
 of my said trustees and executors, or the survivor of 
 them, or in case of her death under that age, although 
 she may be married, (unless by the consent herein 
 after mentioned), I will that the said 500!. annuities 
 do sink, and go into the residue of my estate herein 
 after mentioned. But it is my Will, and I do hereby 
 declare, that in case my said niece shall marry before 
 she attains her age of twenty-one years, provided 
 such marriage be with such consent in writing, that 
 then my said trustees and executors, and the survivor 
 of them, and the executors or administrators of such 
 survivor, may and do, immediately on such marriage, 
 assign and transfer the said last mentioned 500!. an- 
 nuities to the said Mary Doe, or as she shall direct or 
 appoint. Also, I will and ordain that my said execu- 
 tors, the said Benjamin Doe and John Williams, and 
 the survivor of them, and the executors or adminis- 
 trators of such survivor, for and towards the perform- 
 ance of this my Will, and in order to raise money 
 for the payment of my debts, and of the several 
 legacies contained herein, shall and may, with all 
 convenient speed after my decease, bargain, sell, and 
 alien, in fee-simple, all those my freehold lands and 
 premises, situate at Stockwell, in the county of Surrey, 
 and now in the several tenures and occupations of, 
 &c. (the tenants) for the doing, executing, and perfect 
 finishing whereof, I do by these presents give to my 
 said executors, and the survivor of them, and to the 
 .executors or administrators of such survivor, full 
 power and absolute authority to grant, alien, bargain, 
 sell, convey, and assure all the same freehold lands 
 and premises, to any person or persons, and their 
 heirs, for ever, in fee-simple, by all and every such 
 lawful ways and means in the law, as to my said 
 executors, or the survivor of them, or the executors 
 or administrators of such survivor, or to his or their 
 counsel learned in the law, shall seem fit or necessary. 
 [For a devise of the guardians/rip <?f the children, see 
 . clause- 5 of No. IV.] Also I do authorise, impower, 
 and direct my said executors, and the survivor of 
 them, and the executors or administrators of such 
 L 4 survivor,
 
 ( 152 ) 
 
 survivor, from and after my decease, until all my 
 aforesaid children shall respectively attain their several 
 and respective ages of twenty-one years, to manage 
 and improve the eftate and fortunes of my said chil- 
 dren, respectively by me herein before given to them, 
 respectively for their and each and every of their use 
 and benefit. And to lease all or any part of the free- 
 hold or leasehold estates, which they or any of them 
 . shall be entitled unto, under this my Will, or other- 
 wise ; and to lend and place out upon good security 
 or securities, at interest, or otherwise improve, ac- 
 cording to his or their discretion, or discretions, all 
 or any part of the monies belonging to or arising from 
 the said estates and fortunes of ail or any of my said 
 children res,. actively, and to pay unto and account 
 with ail my said children respectively for all such 
 rents, interest, produce, and improvements, as shall 
 arise from or be made of or produced by their said 
 estates, monies and fortune, hereby given and de- 
 vised to them respectively, when and as they shall 
 respectively attain his or their age of twenty-one 
 years. [For a clause to indemnify the executors against 
 expences and losses, to be inserted in this place, see before, 
 
 1 6. clause 7 and 8 of No. V.] Also I give and devise to 
 my said son David Doe my gold repeating watch, 
 and my two-handied silver cup, with my arms and 
 crest engraved thereon. Also 1 give to my son Wil- 
 liam Doe my silver coffee-pot and stand. Also I 
 give to the said Benjamin Doe and John Williams a 
 mourning-ring, of the value of one guinea each. 
 
 17. Also { give and devise to the Master, Wardens, 
 Assistants, and Commonalty of the freemen of the 
 art or mystery of Painters, otherwise Painters Stainers, 
 within the city of London and the suburbs and liberties 
 thereof, of which company I am a liveryman, the 
 sum of iool. for the use of the poor of the said com- 
 pany ; the same to be paid and distributed among the 
 poor of the said company at the discretion of the 
 Master, Wardens, and Court of Assistants of the said 
 
 1 8. company, for the time being. Also I give to the 
 President, Treasurer, and Governors of Christ's Hos- 
 pital, London, the sum of 500!. for the use of the 
 said Hospital j the same to be paid within six months 
 
 after
 
 ( 133 ) 
 
 19. after my decease.* And I do hereby make, ordain, 
 nominate, constitute, and appoint my said brother, 
 the said Benjamin Doe, and the said John Williams, 
 and the survivor of them, executors and executor of 
 this my last Will and Testament. And I do hereby 
 give and bequeath to my jaid executors and trustees 
 the sum of lool. each, in consideration of the pains 
 and trouble they will have in the execution of this 
 
 20. my Will. And finally, as to all the rest, residue, and 
 remainder of all my estate and effects, real and per- 
 sonal, whatsoever and wheresoever, not herein before 
 otherwise effectually disposed of, after payment of 
 my debts, legacies, and funeral expcnces, and other 
 charges and deductions as aforesaid, I do give, devise, 
 and bequeath the same unto my eldest son John Doe, 
 his heirs, executors, administrators and assigns, for 
 ever, to and for his and their own use and benefit. 
 In witness, &c. as in No. IV. 
 
 To be witnefled by three witnesses. 
 
 * In all devises to bodies corporate, as companies, hospitals, &c. it is 
 proper to be accurately informed of the corporate niutic by v\ hich they ar^ 
 incorporated, and to devise to them by that name accordingly. 
 
 NUMBER
 
 ( 154 ) 
 
 NUMBER VI. 
 
 Form of a Codicil. 
 
 Although by a Codicil any Bequests or Dispositions of a Will 
 may be altered, new Legacies given, and other Executors 
 appointed In the room of those named In the Will, yet where 
 the alteration is of considerable importance, it Is much better 
 to make a new Will; which is always less Halle to suspicion 
 or misinterpretation. If a'ny real Estate is disposed of by 
 the Codicil, (!KP or any alteration Is made in the former 
 disposal of such real Estate, though only by naming new 
 7rusccs for the sale, or the like), it must, as well as a 
 Will, be attested by three Witnesses. 
 
 WHEREAS I Richard Roe, of Fleet-street, London, 
 linen-draper, have made and duly executed my 
 last Will and Teftament in writing, bearing date the icth 
 day of March, 1 783 ; now I do hereby declare this present 
 writing to be a Codicil to my said Will, and I do direct 
 the same to be annexed thereto, and to be taken as part 
 thereof, and I do hereby give and bequeath to my son, 
 Richard Roe, in my said Will named, the further sum of 
 200!. in addition to what I have given him in and by my 
 said Will : And whereas I did in and by my said Will, give 
 and bequeath unto John Fenn, the sum of icol. now I 
 <do hereby revoke the said legacy, and do give unto him, 
 the said John Fenn, the sum of lol. and no more ; and I 
 do hereby ratify and confirm my said Will, in all the 
 other particulars thereof. In witness whereof I the said 
 Richard Roe have, to this Codicil, set my hand and seal, 
 this i6th day of August, in the year of our Lord 1783. 
 
 Signed, sealed, published, and 
 declared by the said Testator, 
 Richard Roe, as and for a 
 Codicil, to be annexed to his 
 last Will and Testament, and 
 to be taken as part thereof, 
 jn the presence of us. 
 
 NUMBER
 
 ( 155 ) 
 
 NUMBER VII. 
 
 A Nuncupative Will.* 
 
 THIS is the last Will and Testament of Richard Roe, 
 late of Fleet-street, London, linen-draper, deceased, 
 declared by him by word of mouth, the ist day of Janu- 
 ary, 1714, " My Will is, cc." (here put down the very 
 words spoken by the deceased, and then conclude thus) 
 These words, or to the like effect, the said deceased 
 declared in the presence of us the witnesses, whose names 
 are hereunto subscribed, with an intention that the same 
 should stand for and be his last Will and Testament; and 
 he the said Richard Roe bid us the witnesses, or some of 
 us, bear witness thereunto. 
 
 To be signed by three witnesses 
 present at the making of such 
 nuncupative Will. 
 
 * See Chapter I. page 3 5. 
 
 NUMBER
 
 ( 156 ) 
 
 NUMBER VIII.* 
 
 Form of an Inventory, to be exhibited by the Executor or 
 Administrator, of the Goods and personal Estate of the 
 deceased, pursuant to the Oath and Bond entered into 
 at the Time of obtaining Probate or Administration. 
 (See Page no, in.) 
 
 A True and perfect Inventory of all the Goods, Chattels, Wares, 
 and Merchandizes, as well moveable as not nioveable, and 
 other personal Estate and Effects of John Doe, late of the parish 
 of , in the county of , in the diocese of , Gen- 
 tleman, deceased, made by us whose names are hereunto subscribed, 
 the 5th day of June, in the year of our .Lord 1785. 
 
 <. s. d. 
 
 The purse and wearing apparel of the said deceased - 20 
 ..200 'I hree per cent, consolidated Bank annuities, in 
 the books of the Bank of England, in the name of 
 
 the said deceased, at 55 1 : - - - 11015 
 
 Horses and ilaruess - - - - - - 30 00 
 
 Horned cattle, viz. 2 cows and 3 oxen - - 40 
 
 40 Sheep 30 
 
 20 Swine 500 
 
 Poultry - 330 
 
 Corn growing at the time of his death - - 10 
 
 Hay and corn in his stables and out-houses - 10 
 Ploughs, carts, waggons, and other implements of 
 
 husbandry - - - - - - - 23150 
 
 Plate, household goods, and furniture - - 50 
 One lease foi 21 years, from Lady-day, 1779, of the 
 house in which the deceased resided at the time of 
 
 his death - - - - - ' - - - 20 00 
 
 Rent in arrear, due to the said deceased at the time of 
 his death, from the tenants of sundry houses situate, 
 
 (&-c. describing them) - - - - - 35 10 
 
 Other debts due to the deceased - - - - 130 15 
 
 Total - . 518 18 
 /Other debts due to the deceased, but supposed to be 
 
 irrecoverable - - - - - - -56 90 
 
 Debts owing by the deceased . 173 10. 
 
 Appraised by us the day and year above written, 
 
 JOHN DENN. 
 RICHARD FENN. 
 
 5^?> The above inventory, when exhibited in the ecclesiastical courts, must be 
 stamped with a bs. aamp, pursuant to several Acts of Parliament. 
 
 NUMBER
 
 ( 157 ) 
 
 NUMBER IX. 
 
 fjY the Acts of the 20 Geo. 3. c. 28; 23 Geo. 3. c. 58, 
 and 29 G<J. 3. c. 51 ; the following stamp-duties were im- 
 posed on all discharges lor legacies, in proportion to the value. 
 
 On all Difckarges for Legacies 
 
 Of or under 2o/. a stamp duty of o 5 
 
 Above 2o/. and under ioo/. .... o 10 
 
 Of io/. and under 2oo/. ..... 2 o 
 
 Of 2oo/. and under 3007 ...... 3 o 
 
 Of 3oo/. and under 4oo7 ..... 4. o 
 
 Of 4007. and under 5007 ...... 6 o 
 
 Of 5007. and under 6co7. ..... 8 o 
 
 And after that increasing 2/. for every hundred above 4oo7. as 
 
 s. 
 
 On a legacy of ,iooo/. . . 18 o 
 
 ---- 2ooo/. . . 380 
 
 Being zo/. on every thousand after the first. 
 
 The above stamps were also, by the same acts, imposed on 
 all discharges given for the residue or any part of the personal 
 estate distributed under the statute of distributions, where there 
 was nf> Will. 
 
 But the wife, children, and grandchildren of the Testator, 
 or Intestate, were exempted from the duties imposed by the 
 latter acts, and were only chargeable with the following duties, 
 viz. 
 
 s. d. 
 
 For any sum under 2o/ ..... o 2 6 
 Of 2o/. and under ioo7. .050 
 ioo7. and upwards ...... i o o 
 
 So that they were not in any case subject to a higher stamp 
 duty than i7. though the legacy given to them, or their share 
 of the personal estate, might be considerably more than 
 
 ICO/. 
 
 The
 
 ( 158 ) 
 
 The Act 36 Gfo. 3. r. 52, which imposed a per-centage 
 stamp-duty on legacies to Collateral Relations and others, re- 
 pealed the above stamps, as to those legacies only which were 
 liable to such per-centage duty. The stamp therefore on lega- 
 cies, &c. to a IFife, Children, and Grandchildren, remained as 
 before, viz. from 2*. 6d. to \L\ which latter remained the 
 highest legacy-stamp duty which such relations were liable to 
 pay, for any sum. 
 
 But by Act 45 Geo. 3. c. 28, the above-mentioned Act of 
 36 Geo. 3. c. 52, was repealed as far as regarded the amount 
 of Duties, and the following duties imposed in lieu thereof, 
 viz. 
 
 On every Legacy, specific or pecuniary, of the amount or 
 value of 2O/. or more ; and upon the clear Residue and every 
 part of the clear Residue of the personal estate of any Testator 
 or Inteftate, amounting to ioo/. or more, which shall be given 
 or pass, 
 
 1. To children of the deceased or their descendants, i/. per 
 cent. 
 
 2. To a brother or sister of the deceased ; or their descen- 
 dants, 2/. IO5. per cent. 
 
 3. To a brother or sister of the deceased's father or mother ; 
 or their descendants, 4/. per cent. 
 
 " 4. To a brother or sister of the deceased's grandfather or 
 grandmother, or their descendants, f/. per cent. 
 
 5. To any collateral relation or to a stranger in blood, io/. 
 per cent. 
 
 N. B. The husband or wife of the deceased is exempt from 
 these duties. 
 
 In order to enforce the payment of these duties, several 
 regulations are made by these Acts; to which it behoves 
 Executors and Administrators to be particularly attentive : 
 the main scope and end of all the clauses being to compel 
 the executors or administrators, and all trustees acting in 
 the payment of legacies, to be personally answerable for the 
 payment of the legacy-stamp. They must therefore at all 
 times whenever they pay a legacy, or residue, or any 
 part of it, take a Receipt, in the form, and containing the 
 particulars, hereafter noticed : They must also, at the 
 same time, deduct or retain the amount cf the stamp-duty; 
 (unless it has been previously paid, or is otherwise pro- 
 vided for in the Testator's Will ;) and, within twenty-one 
 days, they must take the receipt to be stamped, and pay 
 
 the
 
 ( 159 ) 
 
 the duty on the amount of the legacy or residue contained 
 in such receipt, to the Commissioners in Town, or the 
 Receivers in the Country. In cases of the payment of 
 annuities, or any yearly produce of a fund, Executors, &c. 
 mull, on making the four payments which complete each year 
 cf the first four years, take a like receipt, deduct the duty, 
 and act in ail respects as they are directed with respect to 
 other legacies. (See 8 of the Act, in pa. 160, 161). The 
 receipts in all cases are liable to no stamp but the legacy- 
 stamp. 
 
 The following is the substance of the clauses of the Act, 
 containing; these and other provisions. 
 
 The Commissioners of Stamps are, as usual in other 
 cases, to appoint Receivers of the duties in the several 
 counties, &c. who are to receive the same, and to keep 
 accounts, shewing the personal estates in respect of which 
 the duties have been paid ; so that it may at all times 
 appear, on their books, what payments have been made 
 in respect of the personal estate of any Testator, Tes- 
 tatrix/ or Intestate. 4, 
 
 1 he Commissioners are to provide printed forms of 
 receipts, which may be used, or the form transcribed, by 
 the executor, on any other paper not provided by the 
 Commissioners. The following is the form of a receipt. 
 
 STAMP-OFFICE. 
 
 OX Account of the Personal Estate of John Denn, deceased, 
 between John Doe, taking the Administration of the said Estate, 
 and Richard Roe, Legatee, [or Next-of-kiu as the case may be.~\ 
 
 of. S. d. 
 
 Amount of the Sum [or Value if not in Money] ) ' 
 
 accounted for ------ \ l 
 
 Duty allowed, at the Rate of Two [or as the > j 
 
 case may be] per cent. f 
 
 Balance received - . 98 
 
 RECEIVED the 1st day of August, 1796, the above balance, in 
 full, [or part, as the case may be] of my Legacy [or Share, as 
 the case may be] out of the personal Estate above mentioned. 
 
 Signed Richard Roe. 
 
 Yv it ness, 
 R. Fcnn. 
 
 In
 
 ( 160 ) 
 
 In cases of an annuity or annual produce of any fund, 
 the duty on which is to be deducted by the Fxecutcrs 
 only on rrfaking the payment which completes each year 
 of the first four years, state the account thus : 
 
 . s. d. 
 The payment compleating the first [second,~) 
 
 third, or fourth, as the case may be] yearf Q Q 
 
 of an annuity of lool. [or the interest of a f" ^ 
 fund producing lool.] ~ " ~ ) 
 
 One fourth of the duty on the valuation of ^ 
 
 the said annuity [or interest} being 1020!. 2S. > 5 2 o 
 at the rate of two per cent. j 
 
 Balance received - 19 1 8 o 
 
 The duties are to be paid by the executors or adminis- 
 trators, on paying the legacies, or any part of them, to 
 the legatees ; or on retaining their own legacies to them- 
 selves. If the executors pay or retain the legacy without 
 paying the duty, or if they pay the legacy deducting the 
 duty, the amount of such duty shall become a personal 
 debt from them to the King: or if they pay the legacies 
 without deducting the duty (unless it is otherwise paid and 
 provided for, as it may be, out of the deceased's property,) 
 then the duty shall be a debt to the Kin, both from the 
 executor and the party receiving the same. 6. 
 
 . Every gift by Will, whether by way of annuity, of in 
 any other form, chargeable on or payable out of personal 
 estate, or charged also on real estate ; and every donation 
 mortis causa, shall be deemed a legacy. 7. 
 
 The value of annuities, and the c.uty thereon, is to be 
 calculated according to certain tables annexed to the act. 
 The duty in such case to be paid upon the capital or 
 amount of the valuation of the annuity, by four equal 
 payments ; the first to be made before, or on completing, 
 the payment of the first year's annuity ; and the three 
 others before or on completing the respective payments of 
 the three succeeding years. But if the legatee dies within 
 the four years, the duty to be payable in proportion only 
 to so many cf the payments of the annuity as have 
 actually accrued, and become due and payable : and in 
 case of the determination of an annuity by any other 
 conringejicy than death, so much of the duty paid shall 
 
 be
 
 be returned as will reduce it to the duty on an annuity 
 calculated according to its real existence. 8. 
 
 Where an annuity is made payable out of another 
 legacy, the value of such annuity, and the duty payable 
 thereon by the annuitant, is to be calculated according 
 to the tables in the act ; and being deducted out of the 
 legacy, the original legatee shall pay duty for the remain- 
 ing amount. 9. 
 
 If a legacy is given, by directing executors to purchase 
 an annuity to a certain amount, the duty shall be paid on. 
 the valuation of the annuity according to the same tables, 
 as in case of a pecuniary legacy ; and the annuity shall 
 abate proportionally. 10. 
 
 [If therefore a Testator directs an annuity of zool. to be 
 
 Purchased for a life or lives, let the executor go to the 
 tamp-office, where he will learn the value put upon it 
 by the act ; as for example, on a life of 28 years of age 
 1505!. 6s. The duty on this at 2!. per cent, will be some- 
 thing more than 30!. Let the executor pay this to the 
 Stamp-office, and deduct so much from the annuity as 30!. 
 vviil purchase, which will be 2!. per annum, thus making 
 the annuity 98!. clear of the stamp duty.] 
 
 The duty on legacies, the value of which can only be 
 ascertained, from time to time, by the actual application 
 of the allotted fund, is to be charged on the money as it 
 shall be applied. 1 1. 
 
 When legacies or residuary estates are, by any means, 
 made payable to persons in succession, if all the persons 
 are liable to the same rate of duty, it shall bfe charged on 
 the legacy, &c. as it would in case it were given to one 
 only. If the legatees, &c. are liable to different rates of 
 duty, they who are entitled to the interest, for life only, 
 shall pay as annuitants ; and the persons who shall at last 
 become absolutely entitled, shall pay the duty when they 
 receive the legacy. 12. Such duty to be paid by the 
 cxccutorsy upon payment of every or any part of the 
 legacy to any legatee or their trustees : or if the fund is 
 transferred to trustees^ or the legacy or interest is payable 
 by one to another legatee, such trustee or legatee shall 
 be liable for the duty as executors are, and be considered 
 as debtors to the King for the same. 13, 15. 
 
 Any legacy subjected to a power of appointment for 
 the benefit of persons specially described, shall be charged 
 with duty as property given to different persons in suc- 
 cession. 18. 
 
 M Plate,
 
 ( 162' ) 
 
 Phte, furniture, &c. while enjoyed in kind, is not 
 liable to the duty, till it comes into possession of persons 
 having power to dispose thereof. 14. 
 
 The duty on legacies in joint-tenancy is to be paid, 
 from time to time, in proportion to the, interest of the 
 parties, and as they benefit by the legacies. 16. 
 
 The duty on legacies subject to contingencies is to 
 be charged (to the executor) as in the case of an ab- 
 solute bequest ; and if the contingency happens, and the 
 legacy goes to a person from whom a larger duty is due, 
 such legatee shall pay the difference. 17. 
 
 Personal estate directed to be laid out in the purchase 
 of real estate shall pay duty as a personal legacy ; unless 
 when it is given to be enjoyed by persons in succession, 
 and then the duty is to be paid only till it is actually 
 applied in purchase of real estate. 19. 
 
 Estates for the life of another, applicable by law as 
 personal estate, shall pay duty as such. 20. 
 
 The Testator may charge any fund with the payment of 
 the duty on all or any of his legacies, so that the legacy 
 may go duty-free to the legatee ; and the sum so left 
 for payment of the duty shall not be liable to duty as a 
 legacy. 21. 
 
 In cases of specifick legacies, or where a residue shall 
 consist of property not reduced into money, the executor, 
 or the person liable to the duty, may set a value on such 
 legacy or residue ; or require the Commissioners of 
 Stamps to appoint a person to value the same at the 
 expence of the legatee or executor; and the duty is to be 
 gssessed on such valuation. If the executor or legatee is 
 dissatisfied with the valuation of the Commissioners, it 
 may be reviewed by the Commissioners of Land-tax, by 
 way of appeal ; at the expence of the executor, &c. in 
 case their valuation exceeds that of the Commissioners 
 of Stamps: and in cases of dispute between the executor 
 and legatee, the duty shall be assessed by the Stamp 
 Commissioners, with appeal to the Land-tax Commis- 
 sioners ; such appeal hvall cases to be made to the Land- 
 tax Commissioners for the district where the effects are, 
 at their next meeting after the Stamp Commissioners shall 
 have assessed and required payment of the duty, if at 
 fourteen days distance ; or otherwise at their next suc- 
 ceeding meeting, giving six days notice to the Stamp 
 Commissioners. 22. 
 
 The
 
 ( 163 ) 
 
 The duty on legacies, not satisfied in money, is to be 
 paid according to the value of the property taken in 
 satisfaction ; and in case of a legacy given in satisfaction 
 of another legacy, the duty shall not be paid on both, 
 but on that which yields the largest duty. 23. 
 
 If legatees refuse to accept legacies duty deducted, and 
 sue for the same, the court in which they sue, may, 
 though no actual tender has been made, order the lega- 
 tees to pay the costs ; and in suits where the party sued 
 mav wish to stop proceedings on payment of legacies, 
 deducting duties, the court may make order therein 
 accordingly. 24. 
 
 If a suit be instituted concerning administration, the 
 court shall provide for payment of the duty. 25. 
 
 Executors may discharge legacies in part, on payment 
 of a proportion of the duty accrued. 26. 
 
 fjr* No executor, administrator, trustee, or other 
 person liable to pay the duty shall pay, satisfy, or com- 
 pound for, any legacy or residue, or part thereof liable 
 to duty, without taking a receipt or discharge in writing 
 for the same, containing the date, or time of payment, 
 the name of the testator or intestate, the name of the 
 legatee, amount of the legacy, and amount of the duty. 
 And no receipt for any legacy or residue or part thereof 
 shall be received in evidence or available, unless stamped 
 according to the Act : and no evidence shall be admitted 
 of any payment of a legacy, except the stamped receipt, 
 unless actual payment of the duty shall be first given in 
 evidence : for which purpose the copy of the entry of 
 payment of the duty at the Stamp-office is sufficient. 
 Such receipts are required for annuities, or legacies 
 charged as annuities, only on completing the payments 
 of each year for the first four years. 27. 
 
 A penalty of lol. per cent, on the sum paid is imposed 
 on the party paying, and also on the party receiving 
 legacies, or any part thereof, without taking and giving 
 receipts duly stamped according to the act. 28. 
 
 All receipts for legacies, &c. shall be taken, within 
 twenty-one days after they bear date, to the nearest 
 Stamp-office, to be stamped, paying the duty for the 
 same, when an acknowledgment of the payment of the 
 duty shall be written on them by the proper officer: 
 receipts rriay be stamped at any time within three 
 months, on payment of the duty, and lol. per cent, 
 M 2 thereon
 
 ( 164 ) 
 
 thereon as a penalty. 29. And mistakes in paying 
 the duty may be rectified on payment of the difference, 
 and lol. per cent, thereon within three months if no 
 suit is instituted, 30. Altering any receipt incurs 
 a penalty of 500!. and forging the stamp is felony, 
 punishable with death, 39, 40. Persons swearing falsely 
 are liable to the penalties' of perjury. 
 
 (l^f 3 Persons paying or receiving money contrary to 
 the provisions of the act shall be indemnified, on discover- 
 ing the other offender within twelve months. 31. 
 
 Penalties if sued for within three months, half to the 
 informer and half to the King ; or if sued for afterwards 
 by the Crown, the Commissioners may reward the in- 
 former to the amount of half the penalty. 43, 44. 
 
 If, by reason of infancy or absence, legacies cannot be 
 paid, the money after deducting and paying the duty 
 may be paid into the Bank, in the name of the accountant 
 general of the court of chancery, on account of the lega- 
 tees, and laid out in the 3 per cents. If such money 
 be improperly paid in, the Chancery may dispose thereof 
 to the parties entitled : if more than the proper duty has 
 been paid the Commissioners for Stamps may return the 
 excess; and if less, on payment of the full duty, the 
 Chancery may order repayment to the party. 32. 
 
 [When money is so paid, the certificate thereof given 
 by the accountant general shall be filed in the report 
 office of the Court of Chancery: and the accountant 
 general's drafts on the Bank for the money shall be 
 entered in the same office, and signed by the register, 
 and shall then be a warrant to the Bank for payment of 
 the money to the parties entitled. 37 Geo. 3. c. 135.] 
 
 If it shall appear to the Commissioners Tor Stamps, at 
 the end of two years after the death of any person, that 
 it will require time ti> collect the effects, or will be dif- 
 ficult to ascertain the residue of the personal estate, the 
 duty may be compounded for ; on application to the 
 Courts of Exchequer in England or Scotland, on affidavit 
 stating the circumstances ; and the Court may appoint a 
 person to value such residue accordingly. 33. 
 
 If at any time, after payment of duty on any legacy or 
 residue, any debt should be recovered against the estate, 
 by reason whereof any legatee or entitled person shall 
 be obliged to refund, the Commissioners are, on proof 
 thereof on oath, to repay the duty. 34. 
 
 Executors
 
 ( 165 ) 
 
 Executors and administrators, previous to their re- 
 taining their own legacies or share of the residue, are, 
 (at the time when they shall in due course of administra- 
 tion be entitled to retain such legacies,) to transmit the 
 particulars with the duty offered, to the Commissioners 
 of Stamps, who shall charge the same with the duty, and 
 on payment give a receipt for the same. The penalty 
 on'executors neglecting payment of the duty for fourteen 
 days, in such case, is treble the value or amount of the 
 duty. 35. 
 
 If any administration be made void, and any duty shall 
 have been improperly paid, it shall be repaid ; but if it 
 ought to have been paid it shall be allowed in account 
 with the rightful executors. 37. 
 
 [The above Act applies to the effects of persons dying 
 after April 26, 1796: though their Wills may have 
 been made years before.] 
 
 NUMBER
 
 ( 166 ) 
 
 NUMBER X. 
 
 Form of a Receipt for a Legacy, which may be 
 adopted where the Old Stamp-duty takes place: 
 or where the per-centage Duty is provided for 
 by the Will of the Testator. - 
 
 RECEIVED the 2501 day of September, 1786, of Mr. 
 John Adams, and Mr. \Viiliam Thomson, executors 
 of the last Will and Testament of John Doe, late of 
 Cheapside, London, linen-draper, deceased, the sum of 
 one hundred pounds, (and if it is stock, add [three per 
 centum per annum consolidated annuities, transferable 
 at the Bank of England, by a transfer of the same in the 
 books of the Governov and Company of the said Bank] 
 or as the case may be) being in full for a legacy to that 
 amount, devised to me in and by the said last Will and 
 Testament of the said John Doe, bearing date the 3d of 
 January, in the year 1785. [The stamp-duty for the 
 said legacy having been provided for by the Will of the 
 said John Doe.] As witness my hand, 
 
 JOHN DENX. 
 Witness, RICHARD FENN. 
 
 NUMBER
 
 ( 167 
 
 NUMBER XL 
 
 xpei;ces of obtaining Probates or Letters of Administration. 
 (Including the Stamps imposed by the Act 37 Geo. 3. c . 90. ) 
 
 
 In common Form. 
 
 By Commission. f 
 
 \V here the v alue of the 
 Goods * is. 
 
 Probates. 
 
 Adminis- 
 
 Probates. 
 
 Adminis- 
 
 
 
 tration. 
 
 
 tration . 
 
 
 * A. 
 
 ,- s- d. 
 
 . s. d. 
 
 s - d. 
 
 Under 5!. 
 
 070 
 
 096 
 
 o 17 o 
 
 o 18 o 
 
 5!. and under 61. 
 61. and under 20!. 
 
 o 15 6 
 
 120 
 
 I 2 6 
 
 i 9 2 
 
 I 13 7 
 
 210 
 
 i 19 8 
 2 8 8 
 
 20!. and under 40!. 
 
 230 
 
 2 4 ; 
 
 3 14 o 
 
 3 6 8 
 
 40!. and under iool. 
 
 2 3 o 
 
 2 14 6 
 
 3 14 o, 3 19 8] 
 
 100!. and under 300!. 
 
 4 15 6 
 
 5 7 io ! ; 6 9 o 
 
 6 13 o 
 
 300!. and under 6ool. 
 
 10 12 2 
 
 ii 4 6, 
 
 12 6 6 
 
 1298 
 
 6ool. and under loool. 14 15 6 
 
 15 7 10 16 9 10 16 13 o 
 
 loool, and under 2000!. ,24 * Io 
 
 24 17 8 ;25 17 10 
 
 26 3 6 
 
 2000!. and under 5000!. '35 2 10 35 17 8 36 17 10 37 3 6' 
 
 5000!. and under i ooool.; 5 2 2 Jo 
 
 52 17 8 53 17 1054 3 6 
 
 tooool. and upwards j68 16 2 69 ii o 70 ii 2 
 
 70 16 10 
 
 To a Seaman or Marine ; and Warrant, Petty, or Nbn-Commissione(J 
 Officer in the Navy; according to stat. 32 Geo. 3. c. 34, 31, 32, 33. 
 
 1. If granted to Ike H'idnic, Child, Parent, Brother or Sister, being Executor 
 or Xfrt of Kin to receive Wages, &c. 
 
 2. If granted to other Persons being E realtors or Next of Kin to receive 
 Wages. 
 
 3. 'If granted to Widov:, Children, Parents, Brother or Sister for othe- 
 general purposes. 
 
 Where the Value of the 
 Goods is 
 
 In common Form. 
 
 j By Commission. 
 
 Probates. 'Adminis- 
 j (ration. 
 
 :Probates. 
 
 Adminis- 
 tration. 
 
 f Under 20!. 
 J2ol. and under 40!. 
 r> J4ol. and under 6ol. 
 ^6ol. and under jool. 
 
 f Under 20!. 
 j 20!. and under 40!. 
 2 'j4ol. and under 6ol. 
 ^6ol. and under iool. 
 
 ,3. If under iool. 
 
 . f. d., . s. d. 
 o 6 o: o 14 o 
 o 19 6 76 
 130; ii o 
 i 7 6j .15 6 
 
 ./.<* 
 
 o 18 o 
 15 o 
 19. 6 
 6 o 
 
 . s. d. 
 
 i 6 o 
 
 * 3 I 
 276 
 
 2 14 
 
 o 15 2! 42 
 i 8 8; 17 8 
 
 : 10 2 
 i ii 8 
 
 I 14- 2 
 
 16 8 
 
 I I 9 2 
 
 3 o 8 
 3 ii 6 
 3 14 o 
 
 i i 13 8 2 ii o 
 
 o 5 oj o 5 o|| o 10 o 
 
 10 
 
 Notes
 
 ( 168 ) 
 
 Notes, &c. to the preceding Page. 
 
 * In valuing a Testator's or Intestate's property, the 
 yalue of funded property is ta^en at the price of the day 
 when the administration, &c. is granted. 
 
 i Commissions are necessary where the executors or 
 administrators are ill, or live in the country ; and the 
 probate or administration is grantable in the Prerogative 
 Court in London, and the executor or administrator does 
 not personally appear. 
 
 These fees are the least which are at any time taken ; 
 and respect only such Wills as are very short ; for if the 
 Will exceeds three or four sheets (containing ninety 
 words in each sheet) the expence will be more, increasing 
 at the rate of about two shillings for every such sheet. 
 And as the amount of the stamp increases, proctors 
 charge proportionably for their trouble and advance of 
 capital j generally at the rate of about 15 per cent, on the 
 money actually laid out by them. 
 
 If a man has goods or effects to the value of 5!. or 
 upwards in two or more several dioceses of the same 
 province, the administration must be taken out of the 
 prerogative court of the archbishop of the diocese. If 
 in several dioceses of the province of Canterbury, and 
 several of York, there must be two prerogative adminis- 
 trations ; and if in one diocese of each province, each 
 Bishop of the diocese must grant one.. 
 
 fj^* All Bills by Proctors, for Letters of Administration 
 to Creditors of Seamen, &c. are to be examined and 
 taxed by the Regifter of the Prerogative Court. 
 
 NUMBER
 
 ( 169 ) 
 
 NUMBER XII. 
 
 Form of the Oath of a Creditor, who wishes to 
 obtain Administration to receive his debt; where 
 the executor is out of the kingdom ; under the 
 Act 38 Geo. 3. c. 87. (See p. 103.) 
 
 I A. B. of do swear, that there is due and owing 
 
 to me, upon bond or simple contract, or upon 
 account unsettled, [as the case may happen to be, in 
 which latter case he shall swear to the best of his belief 
 only], from the estate and effects of deceased, the 
 
 sum of and that C. D. the only executor capable 
 
 of acting, and to whom probate hath been granted, hath 
 departed this kingdom, and is now out of the jurisdiction 
 of his Majesty's courts of law and equity, and that this 
 deponent is desirous of exhibiting a bill in equity in his 
 Majesty's court of for the purpose of being paid 
 
 his demand out of the assets of the said testator, 
 
 Form
 
 ( 1*0 } 
 
 NUMBER XIII. 
 
 form of the Administration to be granted in 
 such case. 
 
 By divine providence, Archbishop of Canterbury, 
 ^_ __^ Primate of all England and Metropolitan, to our 
 well-beloved in Christ, Greeting : Whereas it hath 
 
 been alledged before the Worshipful Doctor of 
 
 Laws, Surrogate of Doctor of Laws, Master, 
 
 Keeper, or Commissary of our Prerogative Court of Can- 
 terbury, lawfully constituted by you the said That 
 
 did, whilst living and of sound mind, memory, 
 and understanding, make and duly execute liis last Will 
 and Testament in writing, and did thereof nominate, 
 constitute, and appoint his executors, (or, sole 
 
 executor,) who in the month of proved the said 
 
 Will by the authority of our said Court, and now reside 
 (or, resides) out of this kingdom, and out of the juris- 
 diction of his Majesty's courts of law and equity, (as in 
 and by an affidavit duly made and sworn to by and 
 
 brought into and left in the registry of our said Court, 
 reference being thereunto had, will more fully and at large 
 appear) : And whereas the Surrogate aforesaid, having 
 duly considered the premises, did, at the petition of the 
 said decree letters of administration of all and 
 
 singular the goods, chattels, and credits of the said 
 deceased, to be committed and granted to you 
 the said named by or on the behalf of the said 
 
 a creditor, (legatee) or (one of the next kin) of 
 the said deceased, (as the case may be), limited for the 
 purpose, to become and be made a party to a bill or bills 
 to be exhibited against you in any of his Majesty's courts 
 of equity, and to carry the decree or decrees of any of 
 the said court or courts into effect, but no further or 
 otherwise, (justice so requiring) : And we being desirous 
 that the said goods, chattels, and credits, may be well 
 and faithfully administered, applied, and disposed of, 
 according to law, do therefore, by these presents, grant 
 full power and authority to you, in whose fidelity we 
 
 confide,
 
 confide, to administer, and faithfully dispose of the said 
 goods, chattels, and credits, according to the tenor and 
 effect of the said Will, limited as aforesaid, so far as 
 such goods, chattels, and credits of the deceased will 
 thereto extend, and the law requires, you having been 
 already sworn, well and faithfully to administer the same, * 
 and to make a true and perfect inventory of all and 
 singular the said goods, chattels, and credits, so far as 
 the same may come to your hands, and to exhibit the 
 same into the registry of our said Prerogative Court of 
 Canterbury, on or before the next ensuing, and 
 
 also to render a just and true account thereof: And we 
 do by these presents ordain and constitute you Adminis- 
 trator of all and singular the goods, chattels, and credits 
 of the said deceased, limited as aforesaid, but no further, 
 or otherwise. 
 
 GIVEN at London, the day of in the 
 
 year of our Lord and in the year of our 
 
 translation. 
 
 INDEX.
 
 INDEX 
 
 The Figures refer to the Pages ; Ap. means the Appendix, 
 
 A. 
 
 \ DMINISTRATION, 
 
 /\ (letters of), 96, 97, 
 98, 101, and see Probate. 
 
 Form of, when granted 
 
 to a Creditor under 38 G. 
 0.87. Ap. No. XIII. 
 
 Administrator. See Execu- 
 tor, Infant. 
 
 his powers and du- 
 ties, 96, 102, 105. 
 
 his oath and bond, 
 
 101. 
 
 Administratrix. See Mar- 
 ried Women. 
 
 Advowson, 34, 
 
 Aliens, 15, 47. 
 
 Assets, 112. 
 
 Banished man's wife, 24. 
 
 Bastard, 90. 
 
 Benefice, 34. 
 
 Blind, 21. 
 
 Bonds (devising), 35. 
 
 of administrator, 101. 
 
 Borough-English, 78, 84. 
 
 C. 
 
 Charity (devises for), 31. 
 Codicil, 5. Ap. No. VI. 
 Companies, 31. 
 Condition, 51. 
 Contingent Legacy. See 
 
 Legacy. 
 
 Contingent Remainder, 57. 
 Coparceners, 79. 
 Copyhold, io, 31, 50, 62. 
 Corporations, 31. 
 Creditor, 100, 116. Ap. 
 
 No. XII. XIII, 
 Curtesy of England, 38, 72. 
 Customs of London and 
 
 York, 29, 36, 90. 
 Custom of London (as to. 
 
 joint-tenants), 36. 
 
 Deaf people, 20. 
 
 Debts due (devise of), 35. 
 
 (devise to pay), 48. 
 
 Payment of. See 
 
 Executor. 
 
 satisfaction of, by 
 
 legacy, 119. 
 Descent of real estate, 78.
 
 INDEX. 
 
 Devise, executory. See 
 Executory Devise. 
 of Lands. Sec Lands. 
 of Legacies. See Le- 
 gacies. 
 void, 47. 
 Distribution of Estate. See 
 Intestate and Residue. 
 Donatlo Causa Afortis, 5. 
 Double Legacy. See Le- 
 gacy. 
 Dower, 37, 77. 
 Drunken Persons, 20. 
 Dumb Persons, 20. 
 Duplicate of Will, 71. 
 
 E. 
 
 Estate. See Fee-Simple, 
 Tenant, &c. Real and 
 Personal Estate. 
 Estate for Life, 47. 
 
 or legacy, 117, 
 
 cles, ii 8. and see Ap. 
 No. IX. 
 title to residue, 
 124. 
 Executory devise of lands, 
 
 56, 57- 
 of goods or money, 
 
 65- 
 F. 
 
 Fee simple, 42, 47. 
 Fee tail. See Estate tail. 
 Felons, 26. 
 Feme covert. See Married 
 Woman. 
 Fraud in making Wills, 25. 
 Freeholds, 42. 
 Funds. See Stocks. 
 
 G. 
 
 Gavelkind, 78. 
 Guardians, 103. 
 
 H. 
 
 Half-blood, 80. 
 Heir at law, 79, 8c. 
 
 Tenant pour autre vie. 
 Estate-Tail, 43, 52, 77. 
 Excommunicated Persons, 
 27, 96. 
 Execution of Wills. See 
 Wills. 
 Executor (devise by), 38. 
 Executor, 92, 102. 
 de son tort, or of 
 his own wrong, 99. 
 
 him, 45, 46, 51. 
 Hotchpot, . 
 
 I. 
 
 Idiots, 1 8. 
 Implication, devises by, 44. 
 Infants (of Wills by), 18. 
 unborn, 57. 
 
 
 
 108. 
 
 94, 108. 
 inventory, no. 
 (joint executors), 
 
 I 12. 
 
 
 
 Intention of testator, 44. 
 
 debt, 114.
 
 INDEX. 
 
 friterest on debts, 1 14. 
 
 legacies, 123. . 
 
 Intestacy (or dying without 
 . Will), 67. m 
 Intestate, distribution of his 
 
 estate, 76, 83. 
 Inventory by executor, 1 10, 
 
 in. Ap. No. VIII. 
 Joint tenants, 36, 50. 
 
 K. 
 
 Kin, next of, 78, So. 
 King. See Queen. 
 
 Lands purchased after mak- 
 ing Will, 39, 69. 
 
 agreed to be pur- 
 chased, 34. 
 
 of devising them, 8, 
 
 30, 38, 41, Ap. No. II. 
 
 Leasehold estate, 35, 51, 
 60, . 
 
 Legacy, double, 6, 7. 
 
 -specific, 69, 1 1 8. 
 
 payment of, 1 18. 
 
 to infants, 123. 
 
 in satisfaction of 
 
 debts, 119. 
 
 lapsed and vested, 
 
 1 20, 123. 
 
 survivorship in, 120. 
 
 contingent or con- 
 ditional, 121, 123, 
 
 interest on, 123. 
 
 receipts for, stamps 
 
 on, and rules to execu- 
 tors as to the payment 
 of, Ap. No. IX. X. 
 
 London, customs of. 29, 36. 
 88, 90. 
 
 Lunatics, 19. 
 
 Married" woman, or feme 
 covert, 21, 69, 88, 98. 
 
 administratrix, 98, 
 
 Mortmain, 31. 
 Mortgage, devise of, 33. 
 after devise, 75. 
 
 N. 
 
 Next of kin, 78, 83, 85. 
 Nuncupative Will, v, Ap. 
 No. VII. 
 
 o. 
 
 Outlaws, 27. 
 P. 
 
 Papists, 28. 
 
 Paraphernalia, no, iii. 
 Parson, 34. 
 Payment. See Debts and 
 
 Legacies. 
 
 Perpetuities, 47, 55. 
 Personal estate, what, 112. 
 Pin money, 24. 
 Posthumous Children, 82. 
 Probate, 107, 109. 
 expences of, Ap. 
 
 No. XL 
 
 Q. 
 
 Queen Consort, 23. 
 
 [Particular powers, as to 
 Devises, have been given 
 to the Queen (and to the 
 King) by an Act which 
 passed after this page 
 was printed, viz. 39 Sc 
 40 G. 3. c. 88.]
 
 INDEX. 
 
 R. 
 
 Receipt for Legacy, Ap. 
 
 No. X. 
 
 Republication ") of Wills. 
 Revocation } See Will. 
 Residue, distribution of, 
 
 124. 
 
 Refusal. ) c T- 
 Retainer.} See Executor. 
 
 Satisfaction of debts by 
 
 legacy, 119. 
 Stamp duty (none) onWills, 
 
 14. 
 on legacy receipts, 
 
 Ap. No. IX. ' 
 on probates. See 
 
 Ap. No. XI. 
 Stocks, of money in the 
 
 funds, 69. 
 
 T. 
 
 'Tenant in common, 50, 75. 
 
 Tenant pour autre vie, (for 
 
 another's life), 33, 43, 
 
 Tenant by the curtesy, 43, 
 
 77- 
 
 Testament, i. 
 Threats (make Wills void,) 
 
 25- 
 
 Traitors, 26, 28. 
 Trustees, 47. 
 
 U. 
 
 Universities, 32. 
 W. 
 
 Will (what), i; 
 
 where two are found, 
 
 6. 
 rules as to execution 
 
 7, 8, 9, 10. 
 republication of, 1 1, 
 
 Ap. No. III. 
 
 who may make, 16. 
 
 revocation of, 68. 
 
 Witnesses to Wills, 10, 11. 
 Wife's estate, 37. 
 
 FINIS, 
 
 Collins, Printer, Sarum,
 
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