be a citizen of London, or an inhabitant of the province of York, where the cuftoms interfere with the flatute) to make diftribution pursuant to thofe cuftoms and the ftatute; but it will probably require much more confideration, as well as a deal of pains and trouble for the adminiftratrix, after the has alloted each of thofe children their lawful share to convince them that it is the whole each can demand; fo that all may be fatisfied of justice being done, and thereby be prevented from calling in the aid of counsel, or fome perfon learned in the law, if not the aid of a court of equity, to fatisfy them refpecting their fhares of their deceased father's eftate; which latter aid having been often required when the former could not fatisfy, the consequence hath been, that confiderable fums of money have been spent in litigation, and that not only to the great lofs, but even to the utter ruin of fome of the inteftate's children; which might totally have been prevented, had he made a will with good advice, as by the affittance of fome perfon fufficiently verfed in the law. AGAIN, let us fuppose a man to die inteftate, leaving no wife, but a child or children, who may not be of the age the law requires to adminifter his eftate. Here as concerning the perfonal eflate, the ordinary affigns some person to take care thereof, and to provide for the infant's maintenance and education. Whereas the father might by will have vested his eftate in one or more of his judicious friends to have taken care thereof, and to have difpofed of it at fuch times, and in fuch manner as he might have directed; by which means he would not only have had one or more perfons of his own choosing to take care of his estate for his children, and to diftribute it to them according to his own direction, but would have faved the expence which the ordinary's affignment is attended with, and which ceases when either child attains twenty-one years of age, on which a new adminiftration is granted; the expence whereof as well as of that which ceases, is fomewhat more than the expence Black. Com. I V. 461. 463. of general general letters of adminiftration: fo that in this cafe here is perhaps more than double the expence to come out of the deceafed's eftate than the proving his will (if he had made a will) would have been attended with; and probably much greater expence than this, the children, when of proper age, may be occafioned, by calling the perfon affigned by the ordinary to account, and in getting his account fettled and adjusted. CONCERNING the utility of a will, and the benefit it may be of to a man's family or relations, much more might be faid; as any perfon after reading this work may clearly perceive, and thereby fee that fuch advantage may redound to a man's family or relations by a will, as to be convinced that the finall expence of employing counfel, or a person sufficiently versed in the law for making it, is not an object to be compared with the hazard of litigation that might be occafioned by a perfon's dying inteftate; and the lofs and detriment his family or relations may thereby fuftain.--By a will made with good advice, or by the affiftance of a perfon fufficiently verfed in the law, the teftator's eftate may be given and difpofed of fo as not to leave the leaft room for difpute or liti gation; yet if the will be not made with good advice, it may be attended with as bad confequences as if the teftator had died inteftate, and left his eftate to the difpofition of the law; and this is obvious to every perfon who has been converfant with the books of report, or hath attended the courts of juftice; and it is obferved by Sir William Black stone, that an ignorance of the forms which the policy of the laws hath made necessary for the wording of laft wills and testaments, and of the atteftation, must be of dangerous confequence to fuch as compile their own teftaments without any affiftance; and that those who have attended the courts of juftice, are the beft witneffes of the confufion and diftreffes that are thereby occafioned in families, and of the difficulties that arife in difcerning the true meaning of the teftator, or fometimes in difcovering any meaning at all; fo that in the end his estate may be vefted quite contrary to his intentions; because he has perhaps omitted one or two formal Com, 1 V. 7.. words, words, which are neceffary to afcertain the fenfe with indif putable legal precifion, or has executed his will in the prefence of fewer witneffes than the law requires. As an illuftration of those obfervations will appear in the enfuing part of this work, where the teftator has fuch inftructions for making his will, as by due attention thereto, he may be affifted and enabled to make it with accuracy; unless his eftate fhould be fo fettered with intails, or entangled by fettlements or conveyances, as to render him incapable of forming a juft conception thereof; and under fuch circumftances as well as when the eftate is of very confiderable value, it is advifable for him to apply to counfel, or fome perfon well verfed in the law, for further information we fhall now conclude this part of our work by just mentioning that as it hath been prefumed, where a will has been made contrary to the intereft and inclination of fome of the teftator's family or relations, the fame unknown to him has been destroyed before his death, or concealed afterwards; and thereby notwithstanding the care he may have taken to difpofe of his eftate and effects, the fame have been left to the difpofition of the law: for preventing fuch misfortune we may obferve lord Coke's advice; which is to make two parts of the will, and to leave one part thereof in the hands of a friend ; either of which parts may be proved, and hereby the teftator's will may be fecured; and if he should have a mind to cancel it at any time before his death, this will in no wife prevent or hinder him from fo doing; no more than if there was only one part. For the cancelling of one part when the fame is done with an intention to destroy the will, is as the cancelling of both, and a good revocation of the whole will. 8. -Where the eftate and effects are of any confiderable value, this method of making the will in two parts, and leaving one part thereof with a friend, is commonly used, f 3 Co. Rep. 36. 81 P. Will. 346. Note 1. 4 edit. The deftroying the will by cancelling the duplicate, depending on its being done with a mind or intention to revoke (unless the teftator makes another will, and thereby effectually revokes the former, concerning which we Ball treat in a fubfequent part of our work, p. 178,) it would be well for him at the time of cancelling the duplicate to mention his intention to fome difin terefted perfon, or to make a memo randum thereof in writing, which might be fubfcribed by witneffes fimilar to the form we have laid down for republishing a will, in page 187 THE DISPOSAL OF A PERSON's ESTATE BY WILL AND TESTAMENT. СНАР. І, 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 eftate 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 estate by will. Perfonal eftate is generally understood in contradiftinction to real estate, as money, goods, and chattels, particularifed in the fecond section of the fecond chapter of the Law's Difpofal, and there fhewn by what will go to the administrator. As to real estate, 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 persons of nonfane memory) are empowered to dispose by will 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 neceflity of leaving the heir a fhilling, or fome other express legacy, in order to difinherit him effe&tually.. THUS has the legislature enabled persons to difpofe of their landed property to any person or persons, except it be to bodies corporate, the reafon of which exception will be shewn hereafter. And as to freehold estates held by one perfon during the life of another, styled estates per auter vie, those are also devisable by will, as may be perceived by what has heretofore been mentioned. But no provision being yet made with respect to copyhold estates, the power of devifing is now indirectly exercised over thofe by an applica cation of the doctrine of ufes fimilar to that which was an ciently reforted to in refpect to freehold lands; for the prac tice is to furrender to the use of the owner's laft 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 exercifable 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 teftator 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 fhall 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 pafs by the will; copyhold lands not being properly the fubject of a devise, and therefore do not pass by the will, but by the furrender. So if I would devife a copyhold estate I must furrender it to the use of my will, otherwise, after my death application must be made to a court of equity for supplying the defect thereof, which the court will do in fome cafes, as in favour of a child or widow, • Page 138. f Page 49. Co. Litt. 111. Note 1. 13 edit. h Page 187, 188. i 1 Atkyns 388. In a cafe before Sir Lloyd Kenyon, mafter of the rolls, fitting for lord chancellor, May 1786, his honour determined that a me.e draught of a will, the figning and publication whereof were prevented by the fudden death of the teftator, yet being proved in the ecclefiaftical court as a teftamentary paper, was futhcient to pafs copyholds, which the teftator had before furrendered to the use of his will. 2 Bro. Cha. Rep. 53. and |