The Queen 號 17 vide. Tit. 32. #. 2. § 8, Who are dis abled from devising, Infants. Perk. 504. Bedell v. Married Vide Tit. 32. 13. Majesty, or shall come to him, his heirs or successors, by gift, devise or descent, or otherwise, from any of his or their ancestors, or any other person or persons, not being Kings or Queens of this realm. 5. The same statute, § 8. after reciting, that by the law of England the Queen consort, wife of the King, was capable of taking, granting or disposing of property, as if she were a feme sole ; but that doubts might arise, how far this capacity of granting or disposing of property extended; and especially whether, during the life of the King her husband, it included the power of devising and bequeathing by last will and testament; and reciting that his Majesty was desirous that her Majesty, during the King's life, should have full power, by her last will and testament, to dispose of any manors, messuages, lands, tenements, and hereditaments purchased by or in trust for her Majesty, or which should thereafter vest in *her Majesty, or in any person in trust for her, as fully as if she were sole and unmarried; it is enacted, that it shall be lawful for her Majesty, by her last will and testament in writing, attested by three or more witnesses, to dispose of such estates as she is authorized by that statute to grant by deed; and, by the 9th section, the like power is given to all future Queens. 6. With respect to the persons who are disabled from devising lands, the statute of wills mentions four personal disqualifications to the power of devising. 7. The first of these is infancy; and therefore persons under the age of twenty-one years are incapable of devising their lands.(1) 8. But if there be a local custom, that lands and tenements within a certain district, shall be devisable by all persons of the age of fifteen, or upwards; a devise of such lands, by an infant of fifteen, will be good. 9. An infant may devise the guardianship of his child, by virtue of the statute 12 Cha. II. c. 24.; and it has been contended, that such a disposition will draw after it the land, as incident to the guardianship; but this point has not been determined. 10. Married women are also expressly disabled by the statute of wills from devising their lands; but married women are now frequently enabled to dispose of lands by wills, operating as appointments under powers.(2) (1) A female (unmarried) at the age of Eighteen years may devise real estate in Maryland Griff. Law. Treat. vol. 4. p. 919. (2) Fitch v. Brainerd, 2 Day's Rep. 163, Portland v. 11. A woman whose husband has abjured the realm, or who 1 Inst. 133 a. has been banished for life by act of parliament, may in all things Prodger, act as a feme sole; and may therefore make a will of her 2 Vern. 104. lands.(1) Persons of nonsane 12. The two other disabilities which are expressly mention- Idiots and ed in the statute of wills are, idiocy, and non-sane memory. But it should be observed, that every person who makes a will, memory. is presumed to be of sound understanding, till the contrary is proved; so that the onus probandi lies on the other side. *18 Disabilities Will. 11 Mod. 123. 13. Where a devisor is under any of the disabilities before Removal of mentioned, at the time when the will is made, it is absolutely does not esvoid, although the disability be removed before the death of the tablish a devisor; for the parties must be capable of devising at the time when the will is made. 14. A man of full age declared, in the presence of several Hawe v. witnesses, that his will, made when he was under stand; it was however adjudged that the will was void, count of the infancy of the devisor at the time of the first publication. But if the will had been republished, after the devisor 1 Salk. 238. attained his full age, it would have been good. age, should Burton, 15. It is the same where a married woman makes a will, 11 Mod. 157. and afterwards becomes a widow; for the will was void, in its inception. 16. Thus it is said by Lord Keeper Wright, that if a will is 2 Vern. 475. made by a feme covert of lands of inheritance to J. S., and the baron dies, and then the wife dies, though her intention is plain, and though after the decease of the baron, when she became sui juris, she might have devised the lands to J. S., or by a republication have made the former will good, yet it was not relievable in equity. 17. It is laid down by Lord Ch. J. Trevor, that if a man 11 Mod. 157, be non compos, and not in his right mind, at the time of making his will, though he afterwards, never so long before his death, becomes a man of understanding, and sound judgment and mem`ory, yet the will is void, and can by no means be made good, because he wanted the disposing power at the time of making the will. * 19 To whom *18. All natural persons who are in esse at the time when a will is made, and who are capable of acquiring lands by pur- Lands may chase, such as infants, &c., may be devisees. be devised. Unborn 19. It was formerly much doubted whether an infant in ventre matris, could be a devisee in a will; but it is now settled that such a devise is good.(2) Infants. Doe v. Clarke, 2 Hen. 20. A person devised to his brother Henry Clarke and his assigns, for his life, remainder to the use and behoof of all and Black, 399. every such child or children of his said brother as should be living at the time of his decease. Henry Clarke died leaving several children, and his wife pregnant, who was delivered seven months after of a daughter. The question was, whether the posthumous child took any thing under this devise. Married Women. 1 Inst. 112 a. Aliens. 2 Ves. 362. * 20 Bastards. 1 Inst. 3 b. uncertain. Bate v. Nor 82. Bodies Poli tic cannot Lord Ch. J. Eyre said, it was plain, on the words of the will, the testator meant that all the children whom his brother should leave behind him should be benefited. But, independent of this intention, he held that an infant in ventre matris, who by the course and order of nature was then living, came clearly within the description of children living at the time of his decease. Judgment was given accordingly. 21. A married woman is not thereby disabled from being a devisee in a will: and although she cannot take any thing from her husband directly by deed; yet neither the custom of devising, nor the statute of wills, disqualify a wife from being the devisee of her husband; because the devise does not take effect till the death of the husband, by which the marriage is dissolved, and they cease to be one person. 22. Lord Hardwicke has said, there is no rule of law, or upon the statute of wills, to prevent an alien *from taking by devise, although it is a doubtful matter for whose benefit he is enabled to take. 23. A bastard may be a devisee, but he must have gained a name by reputation; and therefore a devise to a bastard in ventre matris is void, for he cannot have a name by reputation till he is born. good; and a 24. A devise to a person uncertain, as to such of the daughters of A. as shall marry a person of the name of Norton, is devise to a person not in existence at the time ton, T. Raym, when the will is made, as to the first son of A. B., who has then no son, is good by way of remainder, or executory devise. 25. Bodies politic and corporate are expressly disabled by be Devisees. the stat. 34 & 35 Hen. VIII. c. 5. § 14. from taking by devise, in conformity to the spirit of the laws against mortmain; it was however held, in consequence of the stat. 43 Eliz. c. 4., that a devise to a corporation, for a charitable use, was valid, as operating in the nature of an appointment; but now the stat. 9 Geo. II. c. 36. has rendered all devises for charitable uses Tit. 32. c. 2. void, except such as shall be made to the two universities, and to the colleges of Eton, Winchester, and Westminster. The King being both a body politic and corporate, is incapable of taking by devise. 44. must submit Forrest R. 82. 26. It is laid down by Lord Talbot, that when a person takes Devisees upon him to devise what he has no power over, upon a supposi- to the whole tion that his devise will be acquiesced under; the Court of Will. Chancery will compel the devisee, if he will take advantage of the devise, to take entirely, but not partially under it; there being a tacit condition annexed to all devises of this nature, that the devisee do not disturb the disposition which the devisor has made.(1) Noys v. *21 Mordaunt, *27. A. having two daughters, B. and C., devised lands whereof he was tenant in fee simple to B., and lands of which he was only tenant in tail to C. It was held, that if B. claimed a share of the entailed lands, she must relinquish her claim to Bor v. Bor, the fee simple lands devised to her for the testator having dis- 3 Bro. Parl. posed of his whole estate amongst his children, what he gave Doe v. Caventhem was upon an implied condition, that they should release to dish, 4 Term each other. Ca. 167. Rep. 741. 28. A person, by articles previous to his marriage, agreed Streatfield v. to settle lands to the use of himself and his wife for their lives, Forrest, 176. Streatfield, with remainder to the use of the heirs of their bodies. He afterwards made a settlement, which was not pursuant to the articles; and on the marriage of his son, settled other lands on him in the usual manner, and levied a fine of the lands comprised in the articles, to the use of himself in fee. By his will he devised part of those lands to his daughters, and the rest of his estates to his grandson. Lord Talbot held, that the grandson, being entitled to the lands comprised in the articles, should be put to his election, whether he would take under the will or the articles. 29. Where a will is void, as a devise of land, either from the incapacity of the devisor, or from its not being properly executed, and is good as to personal estate; the heir may take a legacy under it without relinquishing his right by descent; because, as to the land, there is in fact no disposition of its and consequently no election. so. In the case of Hearle v. Greenbank, the daughter, by Tit. 32. c. 19. a will made when she was only nineteen years old, gave a leg- 32. acy to her heir at law, and disposed of the real estate to another person; the question was, whether, as the will was void as to the land, and good as to the legacy, the heir should have the land, and also the legacy, or be obliged to make his election. Lord Hardwicke declared his opinion, that the heir was not obliged to make his election, for the will was void; and when (1) Cogdell's Ex. v. Cogdell's Heirs, 3 Desans, Cha. Rep. 688. * 29 infra, c. 3. Thelusson v. Woodford, 13 Vesey, 209. *23 Vide infra, .20. the obligation arose from the insufficiency of the execution, or invalidity of the will, there was no case where the legatee was obliged to make an election, for there was no will of the land. A man devises a legacy to his heir at law, and his land to another; the will is not well executed according to the statute of frauds for the real estate; the court would not oblige the heir at law, upon accepting the legacy, to give up the land. 31. But where the heir becomes entitled to a real estate by descent, in consequence of its having been purchased after the execution of his father's will, by which interests are bequeathed to him, he cannot take both, but must make his election. 32. P. Thelusson devised several real estates to trustees, upon trust to accumulate the rents to a certain period; and directed, that in case he should enter into any contracts for the purchase of lands, and die before the conveyance thereof, such contracts should be carried into execution, and the conveyance be to his trustees, upon the trusts of his will. He also devised certain interests to his son. After the execution of this will, the testator contracted for the purchase of some real estates, and died without republishing his will. The heir claimed the lands contracted for, and also the interests given him by the will. Lord Erskine." The Prayer of the bill filed by the heir at law, with reference to this point, is, in effect, that the personal estate of the testator shall be applied to the completion of these contracts, directed by *the will to be carried into execution for the benefit of the heir; and that he, in opposition to the will, may take as heir those estates so contracted for; and the trustees may stand seised to his use, instead of the uses of the will. I give the judgment which I find myself bound to give with some reluctance, considering this will as dictated by feelings not altogether consistent with convenience. But this appears to me to be a case of election. The jurisdiction exercised by this Court, compelling election, may be thus described. A person shall not claim an interest under an instrument, without giving full effect to that instrument, as far as he can. If therefore a testator, intending to dispose of his property, and making all his arrangements under the impression that he has the power to dispose of all that is the subject of his will, mixes in his disposition property that belongs to another person, or property as to which another person has a right to defeat his disposition, giving to that person an interest by his will; that person shall not be permitted to defeat the disposition where it is in his power, and yet take under the will: the reason is the implied condition that he shall not take both; and the consequence fol |