and therefore operating only on lands which the testator possessed at the time of making such appointment; and partly from a desire to favour the heir. The effect of it was, to defeat the intentions of testators: even though their inten SECT. 3. tions might be declared in express words. Nei- Langford v. Pitt, ther would lands contracted for pass by the will 2 P. Wms. 629. of the intended purchaser, unless such contract was binding within the Statute of Frauds. Ireland, 1 Russ. & M. 250. 6 Cru. D. 36. Attorney-Gene Many cases of great hardship were decided against reason, in accordance with this doctrine, which, except where the will has been considered Churchman v. to raise a case of implied condition, so as to put the heir to his election, was held universally; for a distinct principle ruled the seeming exceptions of a tenancy escheated, and a copyhold surrendered, to the lord of a manor, after he had devised the manor. And it must be remembered, that copyholds, which passed according to a will ral v. Vigor, 8 Ves. 286. made previously to the purchase of them, if surrendered to the use of such prior will, passed by the surrender, not by the will; the latter operated only as a declaration of uses. The present Act enables a man to devise all the real estate to which he may be entitled at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will. SECT. 4. Provides, that the dues of the manor shall be still payable to the lord as before, in all cases SECT. 4. where à devisee claims customary or copyhold estates which might have been surrendered to the use of the will. This is a re-enactment of sect. 2 of 55 G. 3, c. 192, with an additional proviso of a similar kind for cases where the testator shall have devised without having been admitted himself, under the power given by section 3 of this act. SECT. 5. Provides, that where a devisee claims customary or copyhold estates which could not have been devised before the passing of this act, the same dues shall be payable to the lord of the manor, as if they had descended to the customary heir. And it enacts that in all cases of devise, an entry of the will shall be made in the court rolls. SECT. 6. Re-enacts 29 Ch. 2, c. 3, s. 12, and 14 G. 2, c. 20, s. 9, leaving the law as it was with respect to undevised estates pur autre vie, but extending its operation to estates of copyhold, and every other tenure, and also to incorporeal hereditaments, which, as has been stated above, were not mentioned in the former statutes. CHAPTER III. THE PERSONS BY WHOM WILLS MAY BE MADE. SECT. 7. ENACTS, that no person under the age of twenty- Age of Testator. one years shall have the power of making a valid will; thus abolishing many distinctions which have obtained at common law, or by particular customs, and which have served to render the rule anomalous and ill-ascertained, without conducing to public utility. Freehold estates could not be devised by force of the Statute of Wills, by any person within the age of twenty-one years, who are especially excepted by the 14th 6 Cru. D. c. 2, section, though, if there has been a local custom, that lands within a certain district should be de visable by all persons of the age of fifteen years or upwards; a devise of such lands by an infant s. 5. Litt. 89, b. of fifteen years would be good. Personal estate Harg. n. to Co. could be lawfully bequeathed by persons of more n. (6). tender age; but it was long unsettled at what age a male and female respectively acquired this testamentary power. However, the rule of the Roman law, which made the testamentary power to commence in males at fourteen, in females at 44 SECT. 7. 4th Rep. of R. P. Comm. p. 28. Lord Langdale's speech in the House of Lords, twelve, has been of late fully established. There seems no reason for any exception to the rule of law, which, for the protection of minors, renders them incapable of making any disposition or The expediency of the alteration in the law, introduced by this section, was much discussed in the House of Commons.-[See Parliamentary Debates for 1835.] contract. In the select committee of that House it was considered, that persons under twenty-one might Feb. 23, 1837.' be entrusted to make their wills, and seventeen was the age there proposed and adopted. But this change was not acquiesced in by the House. Married SECT. 8. The law remains unaltered with respect to the 34 & 35 H. 8, validity of the wills of married women. c. 5, s. 10; 2 Ves. 610; 1 Inst. 33 a; Portland v. Prodger, 2 Vern. 104. A wo man covert is disabled by the Statute of Wills from devising her lands. But she can appoint lands by will in exercise of a power, where the lands have been conveyed to trustees; and, if her husband has abjured the realm, or been banished for life by act of parliament, she may in all things act as a feme sole, and therefore Wright v. Ca- may devise her lands. And it has been held, dogan; 2 Eden, that she may dispose of her real estate by will, 239; 1 Bro. P. C. 486, S.C; by the agreement of her husband before mar Rippon v. Ambl. 565. riage, without any conveyance to trustees. For her heir, to whom the legal estate will have descended, is considered in equity as a trustee, and bound to convey to her appointee. |