*499 been transmitted down, in constant *activity, from distant ages, and on whose foundations the best part of English real property reposes. In Sergeant Wilson's Essay on Fines, they are said to be "the strength of almost every man's inheritance." Such a great innovation may have an unpropitious influence upon the character, policy and stability of the English jurisprudence. It will, however, favourably abridge the labours of students, and make great havoc in an English law library. Volume after volume, filled with essays and adjudications upon fines and recoveries, will be consigned to oblivion.a

Besides the extended view of the law of fines and recoveries, in all the abridgments of the law, and in Sheppard's Touchstone, there are the treatises of Piggott, Wilson, Cruise, Preston, Bayley and Hands, on fines and recoveries. The English put more to hazard, in meddling with their jurisprudence, than any other European nation; and they ought to be more jealous than any other, of the spirit of innovation and codification which is abroad in the land. When a free people have their constitution and system of laws well established, construed and understood; when their usages and habits of business have accommodated themselves to their institutions, and especially when they are secure in their persons and property, under an able and impartial administration of justice, they ought, above all things, to beware of theory, for "in that way madness lies."

Since the above note was penned, the statute of 3 and 4 Wm. IV. c. 74, has swept away fines and recoveries in England, and substituted more simple modes of assurance. The disposition of land by tenants in tail, is to be by deed, (as if seised in fee,) but not by will or contract. If by a married woman, the disposition is to be by deed, as if she was a feme sole, provided it be with her husband's concurrence, and be acknowledged by her separately, &c. But the English statute endeavoured to preserve the benefit of the advantageous arrangements, that could be made in fines and recoveries, by providing and designating a person in family settlements, to be called the Protector of the Settlements.

LECTURE LXVIII.

OF TITLE BY WILL OR DEVISE.

A WILL is a disposition of real and personal property to take effect after the death of the testator. When the will operates upon personal property, it is sometimes called a testament, and when upon real estate, a devise; but the more general and the more popular denomination of the instrument, embracing equally real and personal estate, is that of last will and testament. (1) The definition of a will or testament, given by Modestinus in the Roman law, has been justly admired for its precision. Testamentum est voluntatis nostræ justa sententia de eo quod quis post mortem suam fieri velit.Þ

a

I. Of the history of devises.

The law of succession has been deemed by many speculative writers, of higher and better obligation than the fluctuating and oftentimes unreasonable and unnatural distributions of human will. The general interests of society, in its career of wealth and civilization, seem, however, *to *502 require that every man should have the free enjoyment and disposition of his own property; for it furnishes one of the strongest motives to industry and economy. The law of

Howard, in his Dict. de la Cout. de Norm. vol. i. 197, gives the true derivation of the word devise: "devise, (divisa,) marque de division de partage de terres; ce mot vient du Latin diverde." Crosley on Wills, 1, note.

Dig. 28. 1. 1. Vinnius thinks, however, that it would be a more perfect definition to say, Testamentum est suprema contestatio in id solenniter facta, ut quem volumus, post mortem nostram habeamus hæredem. Vinn. Com. in Inst. lib. 2. tit. 10. Etym. sec. 2.

(1) An instrument may operate as a deed in one part, and as a will in another. Robinson ▼, Schly, 6 Georgia R. 515.

our nature, by placing us under the irresistible influence of the domestic affections, has sufficiently guarded against any great abuse of the power of testamentary disposition, by connecting our hopes and wishes with the fortunes of our posterity. In the primitive age of many nations, wills were unknown. This was the case with the ancient Germans, and with the laws of Lycurgus, and with the Athenians before the age of Solon. But family convenience, and a sense of the absolute right of property, introduced the use of testaments, in the more advanced progress of nations. The Attic laws of Solon allowed the Athenians to devise their estates, provided they had no legitimate children, and were competent in mind, and not labouring under any personal disability. If they had children, the power to devise was qualified; and it allowed the parent to devise if the sons died under the age of sixteen; or, in the case of daughters, with the condition that the devisees should take them in marriage; and no devisee was allowed to take possession of the estate, except under the adjudication of a court of justice. The introduction of the law of devising, by Solon, was accompanied with great fraud and litigation; though his laws are said, by Sir William Jones, to have had the merit of conciseness and simplicity.b

■ Successores sui cuique liberi, et nullum testamentum. Tacit. M. G. c. 20. Taylor's Elem. of the Civil Law, 522. 524. Jones' Com. on Isaus. According to Vinnius, in his Com. on the Institutes, lib. 2. tit. 2. Etym. sec. 4, the restraint upon the devise of real estate existed, in his day, with the Poles, Swedes, Danes, and some parts of Germany. Among the Jews, the father could not devise the inheritance from the regular line of succession. Antiquities of the Jewish Republic, by Th. Lewis, vol. iii. 324, 325.

b Plutarch's Life of Solon, by J. & W. Langhorne. Jones' Isæus, pref. Dis. on the Attic Laws. The speeches of Isæus related chiefly to the abuses of the law of wills. The claims of heirship and of blood were urged with vehement eloquence, against the frauds suggested in procuring wills, or the bad passions which dictated them, or the perfidy which suppressed the revocation of them. Most of the speeches involve the discussion of the allegation of a forged will; and they are replete with the bitterest personal reproaches. In one of them, the mode of procuring certain and infallible evidence, by the torture of slaves, is commended. These specimens of forensic discussion are the most ancient monuments extant of the kind; but they do no honour to the morals and manners of the Athenians. Cicero (Orat. pro L. Flacco, sec. 4, 5) speaks most contemptuously of the character of the Greeks for probity and truth. The writings of the Greek historians, philosophers and orators, Thucydides, Xenophon, Plato, Aristotle, Isæus and Lysias; the striking details in the profound and searching history of Mitford, and the testimony

Prior to the time of the decemvirs, no Roman citizen could break in, by will, upon the order of succession, unless the act was done and permitted in the assembly of the people. But wills were allowed at Rome by the twelve tables, and they gave the power to an unlimited extent, which was afterwards qualified by the interpretation and authority of the tribunals. They were executed with great ceremony, before five citizens, who were to represent the people; and the transaction was in the form of a purchase of the inheritance. They were, at last, by the law of the prætors, placed under the burdensome check of seven witnesses, who were required to affix their seals and signatures. The power of devise was checked by the Emperor Justinian; and unless a fourth part of the inheritance was reserved for the children, they were allowed to set aside the testament as inofficious, under the presumptive evidence of mental imbecility.b

It seems to be the better opinion, that lands were devisable, to a qualified extent, with the Anglo-Saxons. The folcland was held in independent right, and devisable by will.c But upon the establishment of the feudal system, *at *501 the Norman conquest, lands held in tenure ceased to be devisable, in consequence of the feudal doctrine of nonalienation without the consent of the lord; for the power of devising would have essentially affected many of his rights and privileges. There were exceptions to the feudal restraint on wills existing as to burgage tenures and gavelkind lands.d

of St. Paul, afford abundant and sad proofs of the corruption of ancient morals. How, indeed, could sound morality and pure practice be expected among a people who had no due sense of the existence and presence of the Father of Lights, from whom cometh down every good and every perfect gift?

■ See Inst. 2. 10. 2, 3. Dig. 50. 16. 120. Novel, 115. 8 Gibbon's Hist. 78. Esprit des Loix, liv. 27.

Inst. 2. 18. pr. Ibid. sec. 1, 2, 3. Vide supra, vol. ii. 327. The French civil code declares, that all persons may dispose by will, excepting those whom the law declares incapable. Code Civil, sec. 902.

• Spelman on Feuds, c. 5. Wright on Tenures, 171. Bocland was granted by. charter, and was synonymous with inheritance; and Sir Francis Palgrave says, that testamentary dispositions were unknown to the Teutons or Teutonic nations, and he is of the highest authority as to all Anglo-Saxon and German antiquities.

d Launder v. Brooks, Cro. C. 561. Co. Litt. 111. b. In Wild's Case, 6. Co. 16, it was declared, that at common law, lands were not devisable, except by custom, and in ancient cities and boroughs, of houses and small things. In the reign of 36

VOL. IV.

The restraint upon the power of devising did not give way to the demands of family and public convenience, so early as the restraint upon alienation in the lifetime of the owner. The power was covertly conferred by means of the application of uses; for a devise of the use was not considered a devise of the land. The mode of doing this was by a feoffment to the use of the feoffor's last will, and the feoffor being considered as seised of the use, not of the land, could devise it. The devise of the use was supported by the courts of equity, as a disposition binding in conscience; and that equitable jurisdiction continued, until the use became, by statute, the legal estate. The statute of uses of 27 Hen. VIII., like the introduction of feuds, again destroyed the privilege of devising; but the disability was removed within five years. thereafter, by the statute of wills of 32 Hen. VIII. That statute applied the power of devising to socage estates, and to two thirds of the lands held by knight service; and this last and lingering check was removed, with the abolition of the military tenures, in the beginning of the reign of Charles II., so as to render the disposition of real property by will absolute.b

The English law of devise was imported into this country by our ancestors, and incorporated into our colonial jurisprudence, under such modifications, in some instances, as

were deemed expedient. Lands may be devised by *505 *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 statutes of 32 Hen.

Henry II., only one third part of the personal estate was devisable. The other parts went to the wife and children. Glanville, lib. 7. c. 5. Blackstone, who gives a clear and succinct history of the law of bequests of personal property, (Com. vol. ii. 491-493,) says that we cannot trace the precise time when the old common law restrictions were abolished, and the free disposition of chattels allowed.

Hoffman, Ass. V. Ch., in 1 Hoffman's Ch. Rep. 253.

The statute of wills, or a substitute for it, has been adopted throughout the United States; but not its preamble, either in letter or spirit. That preamble is a curiosity, as being a sample of the most degrading and contemptible servility and flattery that ever were heaped by slaves upon a master. In Scotland, down to a very recent period, almost all a man's heritage, and a great part of his estate acquired by purchase, could not be devised from the lineal heir.