:

will in all the United States: and the statute regulations on the subject are substantially the same, and they have been taken from the English statute of 32 Hen. VIII. and 29 Charles II. In order to give a distinct view of the outlines or elements of the law on the subject of devises, I shall proceed to consider the competency of the parties to a devise; the things that are devisable; the solemnities requisite to a due execution of the will; and, lastly, some of the leading rules applicable to the construction of deises.

(2.) Of the parties to a devise.

The general rule is, that all persons of sound mind are competent to devise real estate, with the exception of infants, and married women. This was the provision in the English statute of wills, and, I presume, the exceptions equally exist in this country. But a feme covert, by deed of settlement made prior to her marriage, and vesting her estate in trustees, may be clothed with a testamentary disposition of her lands; and a Court of Chancery will enforce such a power made during coverture, under the name of an appointment, or declaration of trust. She may devise by way of execution of a power. But the will that she makes, in such a case, must be executed with the same solemnities as if she had executed the will while sole. An ufant cannot, in any case, be enabled to devise through the medium of a power; and the New-York statute spegally excludes the exercise of a power by a married woman during her infancy.d

Testaments of chattels may be made by infants of the

a N. Y. Revised Statutes, vol. ii. 56. sec. 1.

b Sce Vol. ii. of this work, p. 143, 144. and N. Y. Revised Statutes, vol. i. 735. sec. 110.

c Casson v. Dade, 1 Bro. 99.

d N. Y. Revised Statutes, vol. i. 735. sec. 111.

This is

age of fourteen if males, and twelve if females. the English rule. The laws of the several states are not uniform on this point, and by the New-York Revised Statutes, the age to make a will of personal estate, is raised up to eighteen in males, and sixteen in females. can a married woman make a testament of chattels, any more than of lands, except under a power, or marriage contract."

But infants, femes covert, and persons of non-sane memory, and aliens, may be devisees, for the devise is without consideration. A devise to the heir at law is void, if it gives precisely the same estate that the heir would take by descent if the particular devise to him was omitted out of the will. The title by descent has, in that case, precedence to the title by devise. The test of the rule, says Mr. Crosley, is to strike out of the will the particular devise to the heir, and then, if without that he would take by descent exactly the same estate which the devise purports to give him, he is in by descent, and not by purchase. Even if the lands be devised to the heir charged with debts, he still takes by descent, for the charge does not operate as an alteration of the estate. Corporations are excepted out of the English statute of wills; and the object of the law was to prevent property from being locked up in perpetuity, and also to prevent languishing, and dying persons, from being imposed upon by false notions of merit

a 2 Blacks. Com. 497.

b Vol. ii. 60.

e 2 Blacks. Com. 498. Steadman v. Powell, 1 Addams' Rep. 58. d Though an alien may be a devisee as well as purchaser, he takes a defeasible estate. See vol. ii. 53. The N. Y. Revised Statutes, vol. ii. 57. sec. 4. have judiciously declared such devises void, if to persons who are aliens at the death of the testator.

e Hurst v. Earl of Winchelsea, 1 W. Blacks. Rep. 187.

f Crosley's Treatise on Wills, edit. London, 1828, p. 101.

g Allan v. Heber, Str. 1270. Hurst v. Earl of Winchelsea, 1 W. Blacks. Rep. 187.

or duty to give away their estates from their families. In times of popery, said Lord Hardwicke, the clergy got nearly half the real property of the kingdom into their hands, and bewondered they had not got the whole." But, under the statute of 43 Elizabeth, commonly called the statute of charitable uses, a devise to a corporation for a charitable use is valid. The New-York Revised Statutes have turned the simple exception in the English, and in the former statute of New-York, into an express prohibition, by declaring, that no devise to a corporation shall be valid, unless the corporation be expressly authorized to take by devise. There was, however, the same construction of the pre-existing statute; and though the English statute of charitable uses has not been re-enacted either in New-York, New-Jersey, Pennsylvania, or Maryland, nor probably in any of the United States; the better opinion, in point of authority, would, however, seem to be, that a devise of a charity, not directly to a corporation, but in trust for a charitable corporation, would be good. This is on the principle that a court of equity, independent of statute, and, upon the doctrine of the common law, has jurisdiction over bequests and devises to Charitable uses; and will enforce them, provided the objects

a Lord Hardwicke, 1 Vesey's Rep. 223.

b This was so held in Flood's case, Hob. 136.; and the court, in that case, admitted that the devise was void in law, because contrary to the statute of wills, but that such a devise in mortmain was clearly within the relief of the statute of Elizabeth. Mr. Crosley, in his learned and able Treatise on Wills, p. 116, 117. condemns this decision as a strained construction, and a repeal of the exception in the statute of wills. The statute of 9 Geo. II. was a new statute of mortmain, which has since corrected this construction, and rendered all devises for charitable uses void, except to the two universities and certain colleges.

c Vol. ii. 57. sec. 3.

d Jackson v. Hammond, 2 Caines' Cases in Error, 337.

be suceatly definite, so as to shut out all arbitrary discretion rest upon the doctrine of cypress.

Wesses to a will are rendered incapable of taking any bengal interest under it, except it be creditors whose debts, by the wall, are made a charge on the real estate.

as was by the statute of 25 Geo. II. and it has probably been generally adopted in the United States as a salutary provision. The English statute was the consequence of the decision of the K. B. m Holdfast v. Dowsing, which estabished, after three several arguments at the bar, that whe ever took any interest under a will was an incompetent wit Dess to prove it This determination, says Sir Willian Fackstone, threatened to shake most of the titles in the kingdom that depended on devises by will. The statute has been recently re-enacted in New-York, with some quaEestions The restoration of the competency of subscribing

• Orgoan Asylum Society v. M-Cartee, 9 Cowen's Rep. 437. Wtman v. Lex. 17 Serg. & Rawle, 88. Lord Redesdale, in Attorney General v. Mayor of Dublin, 1 Bagh, 347. The case of Dashiell v. Attorney General, 5 Herr. & Johns, 392, is a strong authority in opposition to the doctrine of the other American cases which are mentioned; but a that case, there was no provision by the will for desiguating the poor who were to be relieved. The object was too indefinite. See the additional authorities cited, supra, vol. ii. 229–232 where this port as uso mentioned and discussed. It is to be regretted, that a the recent revision of the laws of New-York, this very interesting and vexatious question was not put at rest, by an expacit proVISOR, enter in favour of the equity jurisdiction over such charities, to the extent, perhaps of the statute of Elizabeth, or else by an express denial of a power to devise a charity to any persons whatever, in trust even for a charitable ourporation. In Virginia, corporations were not excepted out of their statute of wils; and if it be the law still the question cannot arise in that state.-Dr. Tucker's Blackstome, vol in $75. note.

Str. 1253.

e2 Com. 377.

NY. Reward Statutes, vol. ii. 57. sec. 6. Ibid. 63. sec. 50, 51. The statute, p. 53. sec. 12. requires all the witnesses to the will, who are kving in the state, and of sound mind, to be produced and exr

witnesse by declaring their beneficial interest under the will put an end to a greatly litigated question, which apse in the time of Lord Mansfield. The question was, whether a witness was competent to prove a will, who was interested when he subscribed his name, and whose interest had been discharged when he was called on to testify. Lord Mansfielda held it to be sufficient that the competency, or disinterested character of the witness, existed when called as a witness. This decision was opposed with great ingenuity and eloquence by Lord Camden, though the majority of the court over which he presided followed, and very reasonably, the decision of the K. B., and which was founded upon a proposition which would seem to be too plain for discussion.

(3.) Of things devisable.

It is the settled rule of the English law, that the testator must be seised of the lands devised at the time of mathe will. The devise is in the nature of a conveyance, or an appointment of a particular estate, and therefore lands, purchased after the execution of the will, do not pass by it. The testator must likewise continue seised

mined, on proof of the will before the surrogate; and yet the provision is, that the beneficial devise, legacy, or interest, to a witness, is void, in case "such will cannot be proved without the testimony of such witness." There seems to be no room for the application of this exception, if all the witnesses must be produced and examined. But if such a witness would have been entitled to a share of the estate, if the will had not been made, so much of such share is saved to him, as will not exceed the value of the devise to him, and he shall recover that share of the devisees or legatees. This last is a very equitable qualification of the general rule.

a Windham v. Chetwynd, 1 Burr. Rep. 464.

b Doe v. Kersey, C. B. East, 1765. Powell on Devises, 131. 1 Day's Conn. Rep. 41. note.