THE DISPOSAL OF A PERSON's ESTATE BY WILL AND TESTAMENT. CHAP. I. The Power a Man hath for difpofing of his Property by Will. What he may not difpofe of by Will. Eftates to be fo difpofed of as not to be rendered unalienable after a certain Time. IN N the former part of this work it has been fhewn, that all perfons may by will difpofe of their perfonal eflate to whom they think fit; and that male infants, if they are of fufficient difcretion at fourteen, and females at twelve years of age, may difpofe of their perfonal eftate by will. Perfonal eftate is generally understood in contradiftinction to real eftate, as money, goods, and chattels, particularifed in the second section of the second chapter of the law's difpofal, and there fhewn by what will go to the adminiftrator. As to real eftated, by ftatute 34 & 35 Hen. VIII. c. 5. and by virtue of the ftatute 12 Car. II. c. 25. all perfons (except married women, infants, idiots, and perfans of nonfane memory) are empowered to difpofe by wil in writing of the whole of their landed property (except their copyhold tenements) to whom they think fit, unless it be to bodies corporate; and that even to the total difinherifon of the heir at law, notwithstanding that erroneous opinion which fome entertain of the neceffity of leaving the heir a fhilling, or fome other exprefs legacy, in order to difinherit him effectually. a Page 101. b Page 113. 122. • Page 28-36, d Defined, Page 86. e Black, Com, 2 V. 375, 376. THUS THUS has the legiflature enabled perfons to difpofe of their landed property to any perfon or perfons, except it be to bodies corporate, the reafon of which exception will be fhewn hereafter. And as to freehold eftates held by one perfon during the life of another, styled estates pur auter vie, thofe are alfo devisable by will, as may be perceived by what has heretofore been mentioned f. But no provifion being yet made with refpect to copyhold eftates, the power of devifing is now indirectly exercifed over those by an application of the doctrine of uses, fimilar to that which was anciently reforted to in respect to freehold lands; for the practice is to furrender to the use of the owner's last will, and on this furrender the will operates as a declaration of the use and not as a devife of the land itself. So from hence we may obferve that the teftamentary power is now exercisable either directly or indirectly over land of every tenure now in ufe where the fame is not held in joint-tenancy, or fettered with intails, of which we fhall hereafter make mention. But with refpect to land, or real estate, it must be observed, that a devife will not operate thereon, unless the testator is in poffeffion thereof at the time of executing his will; yet as to perfonal estate it will operate upon whatever a man has thereof at the time of his death, concerning which we shall fee more in a fubfequent chapter ". WHERE there is a general devife of lands, and there is no furrender of the copyhold lands to the ufe of the will, the conftruction at law is, that those do not pass by the will; copyhold lands not being properly the subject of a devise, and therefore do not pass by the will, but by the furrender. So if I would devise a copyhold estate I must surrender it to the use of my will, otherwife, after my death application must be made to a court of equity for fupplying the defect thereof, which the court will do in fome cafes, as in favour of a child or widow, and in favour of creditors where there is a devise of real estate to pay debts, and there is no real estate but copyhold *, CONCERNING infants, married women, ideots, and perfons of nonfane memory, more will be said hereafter under a fubfequent head; and here we may obferve, that notwithftanding the law has given a man a large and extenfive power for difpofing of his property by will, yet there are fome estates and effects which he may by deed or otherwife dispose of in his life-time, but is not allowed to dispose thereof by will; and those shall be our next subject: AND here we shall first advert to what has been mentioned in the former part of this work, that all fuch chattels perfonal as a woman is poffeffed of, immediately on marriage veft in her husband; and that her chattels real he may make his own if he pleases. The former of thofe he may difpofe of by will to whom he thinks fit; but the latter, unless he exercised fome act of ownership to make them his own, as in cafe of leafehold eftates for years, or for years determinable upon lives, he may furrender the leafes, and take new leafes, or fell the estates and repurchase them, otherwise those willnot pafs by his will, but on his death will return to his wife; yet if he furvives her, will be his own to all intents". So it will be in respect of any debts that were due to the wife before marriage, and which were not received or got in by the husband and wife during their joint lives. So likewise it will be in respect to the wife's paraphernalia described in the former part of this work". As to joint-tenancy, if any eftate either real or perfonal is held in joint-tenancy, it cannot be devifed by will; for a devife of an estate whereof the devifor is jointly feifed is void, the will not taking effect till after the death of the devisor, and by his death all the eftate prefently comes by the law to k Law of Teft. 171. 4 Burn's Ecclef. Law, 59. Where the real estate generally is devifed for, or charged by will with, payment of debts, copyhold lands which are not surrendered to the ufe of the will, do not pafs thereby, if there be freehold fufficient to anfwer the purpofe; otherwife it fhall and the court will fupply the furrender. Yet the freehold, if any, fhall be firft applied; but this is to be understood of the legal eftate only, for an equitable eftate of copyhold will pafs by fuch devife without furrender. 3 P. Will. 98, Note 2. his companion which furviveth, and who takes the whole by prior title P.The nature and effects of joint-tenancy being very neceffary to be understood, I fhall here be fomewhat particular in defcribing it; and then fhew how a jointtenant may obtain power for devifing his part by will. Jointtenancy is where two or more perfons come to and hold an eftate jointly by one title, and thofe perfons are called jointtenants, because the eftate is conveyed to them jointly; as where a man is feifed or poffeffed of an estate in fee-fimple, and makes a conveyance to two or more and their heirs, or makes a leafe to them for life, or where two or more have a joint estate in a chattel real or perfonal, or a joint eftate in a debt, duty, covenant, contract, &c. it is a joint-tenancy, and the part of him that dies goes not to his heir, executor, or adminiftrator, but the whole to the furvivors or furvivor; and a will made by a joint-tenant during the continuance of the joint-tenancy is not a good will, even as to his share of the eftate under the ftatute of wills, notwithstanding a subsequent feverance of the joint-tenancy by a partition made after the making of the will and before the teftator's death, unless there be a republication of it after the partition. But as to jointmerchants for the wares, merchandizes, debts or duties, that they have as joint-merchants or partners, the fame shall not furvive but fhall go to the executors or administrators of him that dieth, by the law of merchants, which is part of the laws of this realm for the advancement and continuance of commerce and trade, as being for the public good. And for the encouragement of husbandry and trade, it is held, that a stock on a farm, though occupied jointly, and also a stock ufed in a joint undertaking by way of partnership in trade, fhall always be confidered as common and not as joint-property, and there shall be no survivorship therein. So that it may be in the power of the joint-merchant, joint-trader, or farmer, to devife his fhare by will; and in cafe he dies without will, the fame fhall go to his adminiftrators, as his other personal eftate; yet in deeds of partnership it is usual to infert a covenant for this purpose. In order to fhew how one joint-tenant may obtain power to devise his part by will, we may first take notice of the difference between joint-tenants and thofe called tenants in common; and then proceed to fhew how a joint-tenancy may be turned into a tenancy in common by either of the • Co. Litt. 185, 186. 6 r Burr. Mansf. 1488. s Co. Litt. 182. t Black, Com, a V. 399. tenants, tenants, and from that brought into a feparate eftate. Jointtenants have the eftate by one joint title and in one right, and tenants in common by feveral titles, or by one title and by feveral rights, but this property is common to them both, viz, that their occupation is undivided, and that neither of them knoweth his own separate part ", both having a unity of poffeffion, so that neither tenant is poffeffed of any particular part of the eftate, but each hath a fhare in and throughout the whole; and, as has been obferved, an estate held in joint-tenancy goes to the survivors or survivor, and never defcends to the heir nor goes to the executor or adminiftrator of the deceased, except in the cafe of joint-merchants, traders, &c. But an eftate held by a tenancy in common, either of the tenants may difpofe of his part to whom he pleases by will, and the devifee or devisees to whom the fame is devised will have a good title thereto; and in case the estate is not devised by will, and one of the tenants thereof dies inteftate, his fhare will defcend or go to his iffue or next of kin ". X THE creation of an estate in joint-tenancy depends on the wording the deed or devife by which the tenants claim title; for this eftate can only arife by purchase or grant, that is, by the act of the parties, and never by mere act of law ". If an eftate be given to two or more perfons without adding any reftrictive, exclufive, or explanatory words, as if an estate held in fee-fimple be devised to A and B and their heirs, this makes them joint tenants in fee thereof; fo if it be given to A and B for their lives, it makes them joint-tenants for life. So if a chattel real, as a leafehold eftate for years, or any chattel perfonal, as a horse, a piece of plate, or any household goods, be given to two or more perfons without adding any reftrictive, exclusive, or explanatory words, they are joint-tenants thereof. A tenancy in common may be created by exprefs limitation, but care must be taken not to insert words which imply a joint-eftate; but as in this respect there is great nicety in wording of wills as well as deeds, it is the most usual as well as the fafeft way, when a tenancy in common is meant to be created, to add exprefs words of exclufion as well as defcription, and limit the eftate, whether real or per* The word purchase is defined, Page 69. y Black. Com. a V. 189. u Co. Litt. 189. w Hawkins's Abr, Co, Litt, 267. |