Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/607

Rh WILL 571 English law of testamentary succession to personalty has become a modified form of the dispensation under which the inheritances of Roman citizens were administered.&quot; l At the same time there are some broad and striking differ ences which should be borne in mind. The following among others may be noticed. (1) A Roman testator could not, unless a soldier, die partly testate and partly intestate. The will must stand or fall as a whole. This is not the case in England. (2) There is no one in English law to whom the universitas juris of the testator descends as it did to the Roman keres, whose appointment was essential to the validity of a formal will, and who partook of the nature of the English heir, executor, ad ministrator, devisee, and legatee. (3) The disabilities of testators differed in the two systems. The disability of a slave or a heretic is peculiar to Roman law, of a youth between fourteen and twenty-one to English law. (4) The whole property may be disposed of in England ; but it was not so at Rome, where, except by the wills of soldiers, children could not be disinherited unless for specified acts of misconduct. During the greater part of the period of Roman law the heir must also have had his fourth in order to induce him to accept the inheritance. (5) In English law all wills must conform to certain statutory require ments ; the Romans recognized from the time of Augustus an informal will called codicilli. The English codicil has little in common with this but the name. It is not an informal will, but an addition to a will, read as a part of it, and needing the same formalities of execution. (6) There is a striking difference, unknown to Roman law, between wills of realty and wills of personalty. Probate is necessary for the latter but not for the former. The Roman legation applied to both movables and immovables ; in England a legacy or bequest is a gift of personalty only, a gift of real estate being called a devise. 2 (7) The Roman will spoke from the time of making ; the English speaks from the time of death. This difference becomes very important in case of alteration in the position of the testator between the making of the will and his death. As a rule the Roman will could not, the English can, pass after- acquired property. Liberty of alienation by will is found at an early period in England. To judge from the words of a law of Canute, intestacy appears to have been the exception at that time. 3 How far the liberty extended is uncertain : it is the opinion of some authorities that complete disposition of land and goods was allowed, of others that limited rights of wife and children were recognized. However this may be, after the Conquest a distinction, the result of feudalism, to use a convenient if inaccurate term, arose between real and personal property. It will be convenient to treat the history of the two kinds of will separately. It became the law after the Conquest, according to Sir E. Coke, 4 that no estate greater than for a term of years could be disposed of by will, unless in Kent, where the custom of GAVELKIND (g.v.) prevailed, and in some manors and boroughs (especially the City of London), where the pre-Conquest law was preserved by special indulgence. The reason why devise of land was not acknowledged by law was, no doubt, partly to discourage death-bed gifts in mortmain, partly because the testator could not give the devisee that SKISIN (q.v.) which was the principal element in a feudal conveyance. By means of the doctrine of uses, however, the devise of land was secured by a circuitous method, generally by conveyance to feoffees to uses in the lifetime of the feoffer to such uses as he should appoint 1 Ancient Law, chap. vi. 2 The distinction between bequest and devise did not always exist. For instance, the Assize of Northampton, c. 4, speaks of a devise (dtvisa) of chattels. 3 Secular Laws, c. 68. 4 2 hist., 7. by his will (see TRUST). 5 On the passing of the Statute of Uses lands again became non-devisable, with a saving in the statute for the validity of wills made before the 1st of May 1536. The inconvenience of this state of things soon began to be felt, and was probably aggravated by the large amount of land thrown into the market after the dissolution of the monasteries. As a remedy the Act of 32 Hen. VIII. c. 1 was passed in 1540, and was after wards explained by 34 and 35 Hen. VIII. c. 5. TJie effect of these Acts was to make lands held in fee simple de visable by will in writing, to the extent of two-thirds where the tenure was by knight service, and the whole where it was in socage. Corporations were incapacitated to receive, and married women, infants, idiots, and lunatics to devise. The Act 12 Car. II. c. 24, by abolishing tenure by knight service, made all lands devisable. In the same reign the Statute of Frauds (29 Car. II. c. 3) dealt with the formalities of execution. Up to this time simple notes, even in the handwriting of another person, constituted a sufficient will, if published by the testator as such. The Statute of Frauds required, inter alia, that all devises should be in writing, signed by the testator or by some person for him in his presence and by his direction, and should also be subscribed by three credible witnesses. The strict interpretation by the courts of the credibility of witnesses led to the passing of 26 Geo. II. c. 6, making interested witnesses sufficient for the due execution of the will, but declaring gifts to them void. The will of a man was revoked by marriage and the birth of a child, of a woman by marriage only. A will was also revoked by an alteration in circumstances, and even by a void conveyance inter vivos of land devised by the will made subsequently to the date of the will, which was presumed to be an attempt by the grantor to give legal effect to a change of intention. As in Roman law, a will spoke from the time of the making, so that it could not avail to pass after- acquired property without republication, which was equiva lent to making a new will. Copyholds were not devisable before 1815, but were usually surrendered to the use of the will of the copyhold tenant ; 55 Geo. III. c. 192 made them devisable simply. Devises of lands have gradually been made liable to the claims of creditors by a series of statutes beginning with 3 and 4 W. and M. c. 14. The history of wills of personalty was considerably Person- different, but to some extent followed parallel lines. In allv - both cases partial preceded complete power of disposition. The general opinion of the best authorities is that by the common law of England a man could only dispose of his whole personal property if he left no wife or children ; if he left either wife or children he could only dispose of one- half, and one-third if he left both wife and children. The shares of wife and children were called their pars ration- abilis. This pars rationabilis is expressly recognized in Magna Charta. At what period the right of disposition of the whole personalty superseded the old law is uncertain. That it did so is certain, and the places where the old rule still existed, the province of York, Wales, and the City of London, were regarded as exceptions. The right of be quest in these places was not assimilated to the general law until comparatively recent times by Acts passed between 1 693 and 1726. A good will of personalty could be made by a male at fourteen, by a female at twelve. The formalities in the case of wills of personalty were not as numerous as in the case of wills of land. Up to 1838 a nuncupative or oral will was sufficient, subject, where the gift was of 30 or more, to the restrictions contained in the Statute of Frauds. The witnesses to a written will need not be 5 Many instances of such conveyances occur in Sir Harris Nicolas s Testamenta Vctustct and in Fifty Earliest Emjliah Wills (1337-1439), edited bv Mr F. J. Furnivall in 1S82.