on a revocation by word follow controversies, some
of the witnesses affirming it to be in one manner, and
some in another manner."
1 /;,///,, ,m,l Bakers Case, 3 Coke's Rep., 25a (1591), to the
report of which these rules ore added as a note. The case dealt with
the requisites of a will, and what real estate might at that time be
devised.
s The advice to indent the copy is a relic of the old theory of a
will as a conveyance. See p. 11. A deed of grant is generally >>y
indenture.
* Publication is not now necessary.
4 Credibility is not a condition of valid attestation since the Wills
Act. See p. 13.
6 There is no need to seal a will, though it may bo sealed if the
testator please. Sealing without signing is not a sufficient execution.
6 Such revocation would not be valid in any case since the Wills Act.
CHAPTER IV
THE WILL OF LANDS
THE law of what may be called the external and
internal validity of the will of lands (under which any
kind of real estate is included) depends partly on
decisions of the courts, mostly on statute. The principal
part of the law depending on decisions is that dealing
with the internal validity of the will where questions of
public policy arise.
The will of lands differs fundamentally from the will
of personalty in being itself evidence, while the probate
copy is the only legal evidence of the will of personalty,
or of the will of both lands and personalty combined. A
will of lands thirty years old, coming from the proper
custody, will be presumed to have been duly executed.
In two cases only is probate of a will of lands granted :
(1) where executors are appointed to carry out its
provisions, (2) where the probate is in solemn form
pursuant to the Court of Probate Act, 1857. 1 The
same act provides that in any case where it would be
necessary, according to the then existing law, to produce
and prove an original will, in order to establish a devise
or other testamentary disposition of or affecting real
1 P. 125,
40 THE WILL OF LANDS
estate, the party intending to give such proof may give
to the opposite party ten days at least before the trial
notice of his intention to give in evidence the probate
in solemn form, and such probate shall be sufficient
evidence of the will, and of its validity and contents,
unless the opposite party, within four days after receiving
the notice, give notice that he intends to dispute the
validity. 1 An action will lie in the Chancery Division
to perpetuate the testimony of the attesting witnesses,
where a devisee apprehends an attempt on the part of
the heir to impeach the validity of the will. Where
land devised by a will is in one of the register counties
(Middlesex and Yorkshire), in order to give it validity
as a document of title a memorial should be registered
in the registry of the county or riding, containing, ///A r
alia, the dates of the will and of the testator's death,
the names and addresses of the witnesses, a description
of the lands affected by the will, and the names of the
parishes where they are situated. The Registry Acts
do not apply to devises of copyholds, and the Middlesex
Act does not apply to the City of London. It is pro-
vided by the Vendor and Purchaser Act, 1874 (37 and
38 Viet, c. 78, s. 8), that where the will of a testator
devising land in Middlesex or Yorkshire has not been
registered within the period allowed by law in that
behalf (in ordinary cases six months from the testator's
death), an assurance of such land to a purchaser or mort-
gagee by the devisee, or by some one deriving title un-
der him, shall, if registered before, take precedence of and
prevail over any assurance from the testator's heir-at-law.
A devise by will may be either immediate or execu-
tory. An executory devise is one the operation of which
1 a 64.
REGISTRY ACTS EXECUTORY DEVISE 41
is postponed until a certain time after the testator's death.
" To take a common instance ; a man may by his will
devise lands to his son A, an infant, and his heirs ; but
in case A should die under the age of twenty-one years,
then to B and his heirs. In this case A has an estate
in fee simple in possession, subject to an executory
interest in favour of B. If A should not die under age,
his estate in fee simple will continue with him unim-
paired. But if he should die under that age, nothing
can prevent the estate of B from immediately arising
and coming into possession, and displacing for ever the
estate of A and his heirs." l The difference between an
executory devise and a contingent remainder is of smaller
importance than it was, as by an act passed in 1877,
(40 and 41 Viet., c. 33), a contingent remainder is
capable of taking effect as an excutory devise in the
event of the particular estate determining before the
contingent remainder vests. 2 It can of course take effect
only where the executory devise could take effect, and if
the executory devise would be void for remoteness, the
remainder will be equally void.
The sections of the Wills Act affecting real estate
are the following :
" The words ' real estate ' shall extend to manors,
advowsons, messuages, lands, tithes, rents, and heredita-
ments, whether freehold, customary freehold, tenant right,
customary, or copyhold, or of any other tenure, and
whether corporeal, incorporeal, or personal, and to any
undivided share thereof, and to any estate, right, or
interest (other than a chattel interest) therein." S. 1.
1 Williams on Real Property, pt. ii, ch. iii, s. 1. Another example
is afforded by a devise in case of death without issue as construed by
s. 29 of the Wills Act. See p. 88.
2 See the work on Real Property in this series.
VOL. I 4
42 TIIK WILL OF I. ANUS
The power of devising real estate extends to all real
estate to which the testator shall be entitled either at
law or in equity at the time of his death, and which, if
not so devised, would devolve upon the heir-at-law or
customary heir of him, or, if he became entitled by
descent, of his ancestor. It also extends to customary
freeholds and copy holds without surrender and before
admittance, and also to such as could not at the time of
the passing of the Act have been disposed of owing to the
want of a custom to devise or surrender, or to the custom
that a will or surrender should continue in force for a
limited time. The power also extends to estates pur attire
vie 1 of whatever tenure, to contingent, executory, or
other future interests, and to rights of entry. (S. 3.) This
section gives the right to dispose of all kinds of real
estate, whether in possession, reversion, or remainder,
'even those to which he has only a possessory title. The
only exception seems to be estate of which there is a joint
tenancy, for on death of one joint tenant the estate passes
to the survivor or survivors, and the power of devise is
confined to the last survivor. Heirlooms 2 and fixtures
are, though in their nature personal, regarded by the law
as real property, except as far as, in the case of fixtures,
exceptions have been introduced by Act of Parliament.
Where any real estate of the nature of customary f rce-
1 That is, an estate dependent on the life or lives of another, or
others, called restui que vie or catuu que vie. Such estates were at one
time commonly granted by certain cor|>orations, such as colleges and
deans and chapters, but are now comparatively rare. An estate pur
au t re vie is a freehold.
2 Heirlooms are properly such chattels as by local custom pass with
the inheritance. But the term is often applied, and less correctly, to
gifts of such chattels as jewels and pictures intended by the testator
to devolve with land. Heirlooms of the latter kind may by leave of
the court now be sold by a tenant for life under the powers given by
. 37 of the Settled Land Act, 1882.
THE WILLS ACT 43
hold or tenant right or customary or copyhold might have
been surrendered to the use of a will, and the testator
has not surrendered it to the use of his will, no person
entitled thereto is to be admitted except on payment of
such stamp duties and fees as are chargeable in respect of
a surrender or the presenting, registering, or enrolling of
such surrender. Where the testator was entitled to have
been but was not admitted, the person entitled under
the will is liable to the stamp duties and fees which would
have been payable on admission of the testator in addi-
tion to those payable on his own admission. (S. 4.)
Wills or extracts of wills disposing of a customary
freehold or tenant right or customary or copyhold are to
be entered by the lord or steward of the manor on the
court rolls ; and the lord is entitled to the same fine,
heriot, dues, duties, and services from the devisee as
would have been due from the customary heir had the
estate descended. (S. 5.)
If no disposition by will be made of an estate pur autre
vie of a freehold nature, the same is chargeable, if it come
to the heir by special occupancy, 1 as assets by descent ;
in the absence of a special occupant of any estate pur
autre vie, whether freehold or otherwise, and whether a
corporeal or incorporeal hereditament, 2 it goes to the
executor or administrator of the party that had the
1 The heir entering and holding possession of an estate pur autre
vie granted to the grantee and his heirs is known as the special occupant,
as distinguished from the personal occupant, that is, the first person
entering after the death of the tenant for life of an estate pur autre vie,
who until the coming into operation of the Statute of Frauds was en-
titled to hold it as his own. The Statute of Frauds abolished general
occupancy.
" Incorporeal hereditaments, which cover much the same ground
as the res incorporates of Roman law, are such property as is (to
use the language of the text-books) of an intangible nature, e.g. rents,
annuities, advowsons.
44 THE WILL OF LANDS
estate thereof by virtue of the grant, and is assets in his
hands, distributable in the same manner as the personal
estate of the testator or intestate. (S. 6.)
The remaining sections of the Wills Act which refer
to real estate are instances of statutory construction,
and will be found in the chapter on construction.
Recent legislation has dealt to a considerable extent
with the power of devising real estate. The interpreta-
tion clause of the Settled Estates Act, 1877, includes
" will " under " settlement," so that the powers of the
act may be exercised over property devised by will.
The same is the case with the larger powers of disposi-
tion of settled land given by the Settled Land Act, 1882.
The latter act also includes under "settlement" an estate
or interest not disposed of by a settlement,and reverting
to the settlor or descending to the testator's heir. By the
Conveyancing Act, 1882, s. 10, a restriction is placnl
on executory limitations. 1
It may be useful to group together certain cases in
which the law from motives of public policy refuses to
give validity to certain devises and bequests. Whether
or not a particular devise or bequest is of this nature is
a question of construction, and some part of the law will
more properly fall under that head. 2
(1) Public policy in general. This would practically in-
clude all cases not included under classes of a more special
nature, for instance, such as Egcrton v. Earl BrownLm:'
It generally comes to be considered under the head
of devises upon condition. There are, however, one or
two statutes restricting express devises on the ground of
their being against public policy. The most interesting
is perhaps 53 Geo. Ill, c. 49, forbidding devises for the
1 Se below. J P. 08. P. 99.
MORTMAIN 45
purpose of multiplying votes for Parliament. This has
become of comparatively small importance since recent
alterations in the law have made it impossible henceforth
to create forty-shilling rent-charges for the purpose of
giving votes.
(2) Mortmain. The law of mortmain now depends
chiefly on the Mortmain and Charitable Uses Act, 1888
(51 and 52 Viet., c. 42), which partly, but not altogether,
consolidates the previous law on the subject. The
effect of the act is that in general real estate or personal
estate " savouring of realty " l cannot be left by will for
charitable purposes and that no corporation can hold
land in mortmain unless by licence from the Crown or
by statute, under penalty of forfeiture to the Crown or
a mesne lord. No gift to a corporation or charity, in-
volving the acquisition of land even indirectly, can be
made unless in accordance with the terms of the act.
Thus gifts of money to erect a schoolhouse, a chapel, a
dispensary, etc., have all been held void under previous
mortmain acts. By the present act every assurance of
land or of money to be laid out in the purchase of land
to or for the benefit of any charitable uses must be by
deed inter vivos executed in the presence of at least two
witnesses, and must, unless it be made in good faith and
for valuable consideration (which may take the form of
a rent or rent-charge), be made at least twelve months
before the death of the assuror. If the assurance be of
stock in the public funds, it must be made six months
1 Sometimes called "impure personalty." It includes leaseholds,
mortgage debts, and emblements. Whether debentures and bonds in
a company are pure or impure personalty depends on the remedies
against the real estate of the company given to the debenture-holders
and bond-holders. So strict is the rule as to impure personalty that
even legacy duty on a charitable bequest given free of duty cannot be
paid out of impure personalty.
48 THE WILL OF LANDS
before the death of the assuror. If the assurance be of
land or personal estate other than stock in the public
funds, it must within six months after execution be en-
rolled in the central office of the Supreme Court of
Judicature. The exemptions from the provisions of the
act (as far as regards the law of wills) are as follows :
(a) Assurances of land by will to an extent not ex-
ceeding twenty acres for a public park, and two acres
for a public museum, and one acre for a schoolhouse
for an elementary school, provided that a will containing
such an assurance must be executed not less than twelve
months before the death of the assuror, or be a reproduc-
tion in substance of a devise made in a previous will in
force at the time of such reproduction, which was
executed not less than twelve months before the death
of the assuror, and must be enrolled in the books of the
Charity Commissioners within six months after the death
of the testator.
(5) Assurances of land or personal estate to be laid
out in the purchase of land to or in trust for any of the
Universities of Oxford, Cambridge, London, Durham,
and the Victoria University, or any of the colleges or
houses of learning within any of those universities, or in
trust for any of the colleges of Eton, Winchester, and
Westminster, for the better support and maintenance
of the scholars only upon the foundations of those last-
mentioned colleges, or to or in trust for the warden,
council, and scholars of Keble College.
Further exceptions from the policy of the Mortmain
Act are made by numerous Acts of Parliament, many of
which relate to gifts of land for Church purposes. Thus
by 3 and 4 Viet., c. CO, a licence in mortmain is not re-
quired in cases of endowment unless the endowment
MORTMAIN 47
exceeds the clear annual value of 300. In some cases
a limit of amount is fixed, in others not. 43 Geo. Ill,
c. 108, empowers a testator, by will duly executed at least
three months before his death, to devise land not exceeding
five acres, or goods and chattels not exceeding in value
500, towards the erecting or providing any church or
chapel. 1 Occasionally relief from the provisions of the
Mortmain Act is given in an indirect manner, as by
s. 37 of 7 and 8 Viet., c. 37, which enacts that where
a grant has been made for a school site the death of the
grantor within twelve months does not avoid the grant.
Many of the exceptions from the Mortmain Act
affect chiefly or wholly gifts by deed inter vivos. This
is the case with the Church Building Acts, the New
Parishes Acts, the act of 17 and 18 Viet., c. 112
(enabling grants of land to the extent of one acre to be
made to literary and scientific societies), and the Com-
panies Act, 1862 (enabling companies formed for art,
etc., not for profit, to hold land not exceeding two
acres, and more with the licence of the Board of Trade).
Numerous public and charitable institutions are ex-
empted by special Acts of Parliament. Among these
are the British Museum, the Governors of Queen Anne's
Bounty, the Ecclesiastical Commissioners, the Conserva-
tors of the Thames, the Prison Commissioners, Uni-
versity College, London, the Guardians of the Poor of
Plymouth, and certain hospitals, as Westminster, St.
George's, Greenwich, the Foundling, and Bath. In
most of these cases there is a limit fixed to the amount
which may be left by will. By the custom of London
1 All the law relating to such gifts, as far as they are for church
building purposes, will be found in 1 Stephens's Laws Relating to the
Church and Clergy, 137, s. v. "Benefactions."
48 THE WILL OF LANDS
a citizen of London may still devise land in the city of
London to a corporation other than a charity. A will
relating to a charity may, by the Charitable Trusts Act,
1855, be enrolled by the Charity Commissioners. It
should be noticed that the power of the Crown to grant
licences in mortmain applies only to mortmain proper,
i.e. the holding of land by a corporation, not to charit-
able uses. Bequests for charitable purposes have been
upheld under circumstances where they would have
been void for uncertainty had the legatees been private
persons. For instance, bequests for charitable and
deserving objects to the poor, to the poor inhabitants
of a particular parish, etc.
(3) Perpetuity. The Mortmain Act deals specially
with devises and bequests to corporations and charities. 1
The law which forbids property to be tied up for more
than a limited period in a particular line of succession
depends to a great extent on the same principles, but is
the creation of the courts rather than of statute, as
there appear to be only two Acts of Parliament forbid-
ding perpetuity. The law, it has been said, abhors
perpetuities : in the words of Lord Coke, " Perpetuities
. . . were born under an unfortunate constellation, for
as soon as they have been been brought in question,
judgment has always been given against them, and none
at any time given for them." 2 It was to conditions
1 Charities in all cases, and corporations with a licence to hold in
.mortmain, either from the Crown or under an Act of Parliament, arc
of course exceptions to the ordinary rules of law OH to peri>t!tuitie.
Charitable uses are any of those mentioned in the preamble to 43
Eliz., c. 4. This act was rejwaled by the Mortmain Act of 1888, but
it was enacted by the latter act that references to charities in Acts of
Parliament within the meaning, purview, and interpretation of the
act of Elizabeth, are still to be construed by reference to the preamble
of that act.
1 LfyiU'i Case, 10 Coke's Kep. 113/> (1639).
PERPETUITY 49
restraining tenants in tail from alienation that the term
"perpetuity" was first applied. 1 Such attempts at
creating perpetuity were looked upon with disfavour by
the courts of common law ; and finally, in the reign of
Edward IV, they allowed a tenant in tail, by suffering a
common recovery a fictitious judicial proceeding, to
bar the entail, in spite of the terms of the statute De
Donis Conditionalibus. The tenant in tail in remainder
was on coming of age enabled, with the concurrence of
the tenant in tail in possession, to bar the entail by a
recovery. On a similar principle it has become the rule
that the latest period at which an estate limited by way
of executory use can be allowed to vest is twenty-one
years after the expiration of some life or lives in being
at the time when the devise was made, with a further
period allowed for the time of gestation, in case of a
person entitled being en ventre sa mire when his right
accrues. This rule forbids the tying up of an estate
for a longer period than until the unborn child of some
living person shall come of age. A gift to the first son
of A, a living person, who shall attain the age of
twenty-four, will be altogether void void for remote-
ness, as it is termed, not simply void for the three years
beyond the legal limit. The rule as to creation of con-
tingent remainders is that no estate can be given to an
unborn person for life, followed by an estate to the
child of such person. No remainder, in fact, can be
given to the child of a person not in existence. This is
called, in old legal language, limiting a possibility upon
a possibility, or a double possibility ; and the rule exists,
it has been recently held, 2 independently of the rule
1 Third Report of the Real Property Commissioners, 30 (1830).
2 Whiffy v. Mitchell, Law Rep., 44 Chancery Div., 85 (1890).
50 THE WILL OF LANDS
against perpetuities, though the principle of both the
rules is, from the view of public policy, the same. The
act of 1877, already referred to, appears not to preserve
the contingent remainder if the particular estate on
which it depends be defeated by its determination
owing to remoteness before the remainder vests. 1 The
Conveyancing Act, 1882, 2 enacts that where a person is
entitled to land for an estate in fee, or for life, or a
term of years absolute or determinable with life, with
an executory limitation over on default or failure of
issue, the executory limitation is to become void as
soon as there is living any issue who has attained the
age of twenty-one. This enables him to alienate with-
out the concurrence (previously necessary) of those
taking under the limitation. Where a question of
perpetuity arises from the exercise of a power of
appointment, the calculation of the time from which
perpetuity is reckoned varies as the power is general or
special. The donee of a general power has the same
capacity of disposition as an absolute owner, therefore
the date from which the perpetuity is to be reckoned is
that of the exercise of the power. But where the power
is special, e.g. among members of a class, such as the
children of A, the appointment is not valid unless it
would have been unobjectionable in point of remoteness
if it had been contained in the instrument creating the
power. A general power exercisablc only by will is on
the same footing in this respect as a special power. As
a will speaks from the death of the testator, a power
created by will may bo duly exercised when it would
have been too late had it been exercised by deed on
1 Lcwin on Trtwts, c. xvi, H. 12.
* 46 and 46 Viet., c. 39, . 10.
PERPETUITY 51
the day of the execution of the will. With regard to
accumulations of income, an act passed in 1800 (39
and 40 Geo. Ill, c. 98), known as the Thellusson Act, 1
forbids the accumulation of income for any longer term
than the life of the grantor or settlor, or twenty-one
years from the death of the grantor, settlor, devisor, or
testator, or during the minority of any person living or
en venire sa mkre at the death of the grantor, etc., or
during the minority only of any person who under the
settlement or will would for the time being, if of full
age, be entitled to the income directed to be accumu-
lated. The act extends to income of both real and
personal property, but not to any provision for the pay-
ment of debts, or for raising portions for children, or to
any direction touching the produce of timber or wood.
A direction to accumulate is, if it transgress the limits
named, not void altogether, like an executory devise
beyond the limits allowed by law, but is valid to the
extent of the time allowed by the act.
Many of the cases as to perpetuity have arisen on
testamentary trusts for keeping tombs in repair. A
distinction has been drawn between tombs outside and
tombs inside the walls of a church. A trust for the
former purpose is void, but for the latter purpose
good, as it is for the benefit of the congregation that it
should be kept in good repair. It is a charitable gift,
which the former is not, as no living person is benefited
by it. One of the most interesting cases on the question
1 The act was passed in consequence of the will of a Mr. Thellus-
son, the terms of which directed an accumulation of the testator's