Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

Of Alienation by Devise

THE last method of conveying real property, is by devise, or disposition contained in a man’s last will and testament. And, in considering this subject, I shall not a present inquire into the nature of wills and testaments, which are more properly the instruments to convey personal estates; but only into the original and antiquity of devising real estates by will, and the construction of the several statutes upon which that power is now founded.

IT seems sufficiently clear, that, before the conquest, lands were devisable by will.1 But, upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feudal doctrine of non-alienation without the consent of the lord.2 And some have questioned, whether this restraint (which we may trace even from the ancient Germans3) was not founded upon truer principles of policy, than the power of wantonly disinheriting the heir by will, and transferring the estate, through the dotage or caprice of the ancestor, from those of his blood to utter strangers. For this, it is alleged, maintained the balance of property, and prevented one man from growing too big or powerful for his neighbors; since it rarely happens, that the same man is heir to many others, though by art and management he may frequently become their devisee. Thus the ancient law of the Athenians directed that he estate of the deceased should always descend to his children; or, on failure of lineal descendants, should go the collateral relations: which had an admirable effect in keeping up equality and preventing the accumulation of estates. But when Solon4 made a slight alteration, by permitting them (though only on failure of issue) to dispose of their lands by testament, and devise away estates from the collateral heir, this soon produced an excess of wealth in some, and of poverty in others: which, by a natural progression, first produced popular tumults and dissensions; and these at length ended in tyranny, and the utter extinction of liberty; which was quickly followed by a total subversion of their state and nation. On the other hand, it would now seem hard, on account of some abuses, (which are the natural consequence of free agency, when coupled with human infirmity) to debar the owner of lands from distributing them after his death, as the exigence of his family affairs, or the justice due to his creditors, may perhaps require. And this power, if prudently managed, has with us a peculiar property; by preventing the
very evil which resulted from Solon’s institution, the too great accumulation of property: which is the natural con of our doctrine of succession by primogeniture, to which the Athenians were strangers. Of this accumulation the ill effects were severely felt even in the feudal times; but it should always be strongly discouraged in a commercial country, whose welfare depends on the number of moderate fortunes engaged in the extension of trade.

HOWEVER this be, we find that, by the common law of England since the conquest, no estate, greater than for term of years, could be disposed of by testament;5 except only in Kent, and in some ancient burghs, and a few particular manors, where their Saxon immunities by special indulgence subsisted.6 And though the feudal restraint on alienations by deed vanished very early, yet this on wills continued for some centuries after; from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious. Besides, in devises there was wanting that general notoriety, and public designation of the successor, which in descents is apparent to the neighborhood, and which the simplicity of the common law always required in every transfer and new acquisition of property.

BUT when ecclesiastical ingenuity had invented the doctrine of uses, as a thing distinct from the land, uses began to be devised very frequently,7 and the devisee of the use could in chancery compel its execution. For it is observed by Gilbert,8 that, as the popish clergy then generally sat in the court of chancery, they considered that men are most liberal when they can enjoy their possessions no longer; and therefore at their death would choose to dispose of them to those, who, according to the superstition of the times, could intercede for their happiness in another world. But, when the statute of uses9 had annexed the possession to the use, these uses, being now the very land itself, became no longer devisable: which might have occasioned a great revolution in the law of devises, had not the statute of wills been made about five years after, viz. 32. Hen. III. c. 1. explained by 34 Hen. VIII. c. 5. which enacted, that all persons being seized in fee-simple (except feme-coverts, infants, idiots, and persons of nonsane memory) might by will and testament in writing devise to any other person, but not to bodies corporate, two thirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles the second, amounts to the whole of their landed property, except their copyhold tenements.

CORPORATIONS were excepted in these statutes, to prevent the extension of gifts in mortmain; but now, by construction of the statute 43 Eliz. c. 4. it is held, that a devise to a corporation for a charitable use is valid, as operating in the nature of an appointment, rather than of a bequest. And indeed the piety of the judges has formerly carried them great lengths in supporting such charitable uses;10 it being held that the statute of Elizabeth, which favors appointment to charities, supersedes and repeals all former statutes,11 and supplies all defects of assurances:12 and therefore not only a devise to a corporation, but a devise by a copyhold tenant without surrendering to the use of his will,13 and a devise (nay even a settlement) by tenant in tail without either fine or recovery, if made to a charitable use, are good by way of appointment.14

WITH regard to devises in general, experience soon showed how difficult and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law; which are so nicely constructed and so artificially connected together, that the least breach in any one of them disorders for a time the texture of the whole. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance: for so loose was the construction made upon this act by the courts of law, that bare notes in the hand writing of another person were allowed to be good wills within the statute.15 To remedy which, the statute of frauds and perjuries, 29 Car. II. c. 3. directs, that all devises of lands and tenements shall not only be in writing, but signed by the testator, or some other person in his presence, and by his express direction; and be subscribed, in his presence, by three or four credible witnesses. And a similar solemnity is requisite for revoking a devise.

IN the construction of this last statute, it has been adjudged that the testator’s name, written with his own hand, at the beginning of his will, as, “I John Mills do make this my last will and testament,” is a sufficient signing, without any name at the bottom;16 though the other is the safer way. It has also been determined, that though the witnesses must all see the testator sign, or at least acknowledge the signing, yet they may do it at different times.17 But they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument.18 And, in a case determined about twenty years ago,19 the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses: for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination however alarmed many purchasers and creditors, and threatened to shake most of the titles in the kingdom, that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues, (and these are the persons most likely to be present in the testator’s last illness) and if in such case the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II. c. 6. which restored both the competency and the credit of such legatees, by declaring void al legacies given to witnesses, and thereby removing all possibility of heir interest affecting their
testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (as well as that of all other witnesses) to be considered, on a view of all the circumstances, by the court and jury before whom such will shall be contested. And in a much later case20 the testimony of three witnesses, who were creditors, was held to be sufficiently credible, though the land was charged with the payment of debts; and the reasons of the former determination were adjudged to be insufficient.

ANOTHER inconvenience was found to attend this new method of conveyance by devise; in that creditors by bond and other specialties, which affected the heir provided he had assets by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 & 4 W. & M. c. 14. has provided, that all wills, and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple or having power to dispose by will, shall (as against such creditors may maintain their actions jointly against both the heir and the devisee.

A WILL of lands, made by the permission and under the control of these statutes, is considered by the courts of law not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject: with this difference, that in other conveyances the actual subscription of the witnesses is not required by law,21 though it is prudent for them so to do, in order to assist their memory when living and to supply their evidence when dead; but in devises of lands such subscription is now absolutely necessary by statute,22 in order to identify a conveyance, which in its nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time purchased lands will pass under such devise,23 unless, subsequent to the purchase or contract,24 the devisor re-publishes his will.25

WE have now considered the several species of common assurances, whereby a title to lands and tenements may be transferred and conveyed from one man to another. But, before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice, for the construction and exposition of them all. These are

1. THAT the construction be favorable, and as near the minds and apparent intents of the parties, as the rules of law will admit.26 For the maxims of law are, that “verba intentioni debent inservire“; and, “benignè interpretamur chartas propter simplicitatem laicorum.” And therefore the construction must also be reasonable, and agreeable to common understanding.27

2. THAT quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est:28 but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui haeret in litera, haeret in cortice. Therefore, by a grant of remainder a reversion may well pass, and e converso.29 And another maxim of law is, that “mala grammatical non vitiat chartam“; neither false English nor bad Latin will destroy a deed.30 Which perhaps a classical critic may think to be no unnecessary caution.

3. THAT the construction be made upon the entire deed, and not merely upon disjointed parts of it. “Nam ex antecedentibus et consequentibus fit optima interpretatio.”31 And therefore that every part of it, be (if possible) made to take effect; and no word but what may operate in some shape or other.32 “Nam verba debent intelligi cum effectu, ut res magis valeat quam pereat.”33

4. THAT the deed be taken most strongly against him that is the agent or contractor, and in favor of the other party. “Verba fortius accipiuntur contra proserentem.” For the principle of self-preservation will make men sufficiently careful, not to prejudice their own interest by the too extensive meaning of their words: and hereby all manner of deceit in any grant is avoided; for men would always affect ambiguous and intricate expressions, provided they were afterwards at liberty to put their own construction upon them. But here a distinction must betaken between an indenture and a deed poll: for the words of an indenture, executed by both parties, are to be considered as the words of them both; for, though delivered as the words of one party, yet they are not his words only, but the other party has given his consent to every one of them. But in a deed poll, executed only by the grantor, they are the words of the grantor only, and shall be taken most strongly against him.34 However, this, being a rule of some strictness and rigor, is the last to be resorted to, and is never to be relied upon, but where all other rules of exposition fail.35

5. THAT, if the words will bear two senses, one agreeable to, and another against, law; that sense be preferred, which is most agreeable thereto.36 As if tenant in tail lets a lease for life generally, it shall be construed for his own life only, for that stands with the law; and not for the life of the lessee, which is beyond his power to grant.

6. THAT, in a deed, if there be two clauses so totally repugnant to each other, that they cannot stand together, the first shall be received and the latter rejected:37 wherein, it differs from a will; for there, of two such repugnant clauses the latter shall stand.38 Which owing to the different natures of the two instruments; for the first deed, and the last will are always most available in law. Yet in both cases we should rather attempt to reconcile them.39

7. THAT a devise be most favorably expounded, to pursue if possible the will of the devisor, who for want of advice or learning may have omitted the legal and proper phrases. And therefore many times the law dispenses with the want of words in devises, that are absolutely requisite in all other instruments. Thus a fee may be conveyed without words of inheritance;40 and an estate-tail without words of procreation.41 By a will also an estate may pass by mere implication, without any express words to direct its course. As, where A devises lands to his heir at law, after the death of his wife: here, though no estate is given to the wife in express terms, yet she shall have an estate for life by implication;42 for the intent of the testator is clearly to postpone the heir till after her death; and, if she does not take it, nobody else can. So also, where a devise is of black-acre to A and of white-acre to B in tail, and if they both die without issue, then to C in fee: here A and B have cross remainders by implication, and on the failure of either’s issue, the other or his issue shall take the whole; and C’s remainder over shall be postponed till the issue of both shall fail.43 But, to avoid confusion, no cross remainders are allowed between more than two devisees:44 and, in general, where any implications are allowed, they must be such as necessary (or at least highly probable) and not merely possible implications.45 And herein there is no distinction between the rules of law and of equity; for the will, being considered in both courts in the light of a limitation to uses,46 is construed in each with equal favor and benignity, and expounded rather on its own particular circumstances, than by any general rules of positive law.

AND thus we have taken a transient view, in this and the three preceding chapters, of a very large and diffusive subject, the doctrine of common assurances: which concludes our observations on the title to things real, or the means by which they may be reciprocally lost and acquired. We have before considered the estates which may be had in them, with regard to their duration or quantity of interest, the time of their enjoyment, and the number and connections of the persons entitled to hold them: we have examined the tenures, both ancient and modern, whereby those estates have been, and are now, held: and have distinguished the object of all these inquiries, namely, things real, into the corporeal or substantial, and incorporeal or ideal kind; and have thus considered the rights of real property in every light wherein they are contemplated by the laws of England. A system of laws, that differs much from every other system, except those of the same feudal origin, in its notions and regulations of landed estates; and which therefore could in this particular be very seldom compared with any other.

THE subject, which has thus employed our attention, is of very extensive use, and of as extensive variety. And yet, I am afraid, it has afforded the student less amusement and pleasure in the pursuit, than the matters discussed in the preceding volume. To say the truth, the vast alterations which the doctrine of real property has undergone from the conquest to the present time; the infinite determinations upon points that continually arise, and which have been heaped one upon another for a course of seven centuries, without any order or method; and the multiplicity of acts of parliament which have amended, or sometimes only altered, the common law; these cases have made the study of this branch of our national jurisprudence a little perplexed and intricate. It has been my endeavor principally to select such parts of it, as were of the most general use, where the principles were the most simple, the reasons of them the most obvious, and the practice the least embarrassed. Yet I cannot presume that I have always been thoroughly intelligible to such of my readers, as were before strangers even to the very terms of art, which I have been obliged to make use of: though, whenever those have first occurred, I have generally attempted a short explication of their meaning. These are indeed the more numerous, on account of the different languages which our law has at different periods been taught to speak; the difficulty arising from which will insensibly diminish by use and familiar acquaintance. And therefore I shall close this branch of our inquiries with the words of Sir Edward Coke:47 “albeit the student shall not at any one day, do what he can, reach to the full meaning of all that is here laid down, yet let him no way discourage himself, but proceed; for on some other day, in some other place,” (or perhaps upon a second perusal of the same) “his doubts will be probably removed.”

Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    Wright of tenures. 172.
     2.    See pag. 57.
     3.    Tacit. de mer. Germ. c. 23.
     4.    Plutarch. in vita Solon.
     5.    2 Inst. 7.
     6.    Litt. § 167. 1 Inst. 111.
     7.    Plowd. 414.
     8.    on devises. 7.
     9.    27 Hen. VIII. c. 10.
   10.    Ch. Prec. 272.
   11.    Gilb. Rep. 45. 1 P. Wms. 248.
   12.    Duke’s charit. uses. 84.
   13.    Moor. 890.
   14.    2 Vern. 453. Ch. Prec. 16.
   15.    Dyer. 72. Cro. Eliz. 100.
   16.    3 Lev. 1.
   17.    Freem. 486. 2 Ch. Cas. 109. Pr. Ch. 185.
   18.    1 P. Wms. 740.
   19.    St. a. 1253.
   20.    M. 31 Geo. II. 4 Burr. I. 430.
   21.    See pag. 307.
   22.    1 P. Wms. 575.
   23.    Moor. 255. 11 Mod. 127.
   24.    1 Ch. Cas. 39. 2 Ch. Cas. 144.
   25.    Salk. 238.
   26.    And. 60.
   27.    1 Bulstr. 175. Hob. 304.
   28.    2 Saund. 157.
   29.    Hob. 27.
   30.    10 Rep. 133. Co. Litt. 223. 2 Show. 334.
   31.    1 Bulstr. 101.
   32.    1 P. Wms. 457.
   33.    Plowd. 156.
   34.    Plowd. 134.
   35.    Bacon’s Elem. c. 3.
   36.    Co. Litt. 42.
   37.    Hardr. 94.
   38.    Co. Litt. 112.
   39.    Cro. Eliz. 420. 1 Vern. 30.
   40.    See pag. 108.
   41.    See pag. 115.
   42.    1 Ventr. 376.
   43.    Freem. 484.
   44.    Cro. Jac. 655. 1 Ventr. 224. 2 Show 139.
   45.    Vaugh. 262.
   46.    Fitzg. 236. 11 Mod. 153.
   47.    Proeme to 1 Inst.