Tit. Prerog. pl. 5. 39 & 40 G. 3. c. 88. § 4. The Queen Consort. act only authorized our Kings to dispose of their personal property; for it is stated, in Brooke's Abridgement, to have been laid down by Fortescue, in 35 Hen. VI., that the King could not devise land by his testament: but it appears from the Rolls of Parliament that the Kings of England were in the practice of conveying lands to trustees, to the use of their last wills. 4. It has however been enacted by a modern statute, that his Majesty, his heirs and successors, may, by will, devise any manors, messuages, lands, tenements, and hereditaments, purchased by, or which shall come to, his Majesty, his heirs or successors, out of any monies issued and applied for the use of his or their privy purse, or with any other monies not appropriated to any public service; or any manors, &c. which have come to his 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 witnes ses, to dispose of such estates as she is authorized by Vide Tit. 32. that statute to grant by deed; and, by the 9th section, c. 2. § 8. the like power is given to all future Queens. abled from 6. With respect to the persons who are disabled Who are disfrom devising lands, the statute of wills mentions four personal disqualifications to the power of devising. devising. 7. The first of these is infancy; and therefore Infants. persons under the age of twenty-one years are inca pable of devising their lands. 8. But if there be a local custom, that lands and Perk. § 504. tenements within a certain district, shall be devisa ble 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. Bedell v. Constable, Women. 10. Married women are also expressly disabled by Married 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 Vide Tit. 32. powers. c. 13. Portland v. Prodger. 2 Vern. 104. 11. A woman whose husband has abjured the 1 Inst. 133 a. realm, or who has been banished for life by act of parliament, may in all things act as a feme sole; and may therefore make a will of her lands. 12. The two other disabilities which are expressly Idiots and mentioned in the statute of wills are, idiotcy, and Persons of nonsane non-sane memory. But it should be observed, that memory. VOL. VI. C Removal of does not es every person who makes a will, is presumed to be of sound understanding, till the contrary is proved; so that the onus probandi lies on the other side. 13. Where a devisor is under any of the disabilities before mentioned, at the time when the will is made, tablish aWill. it is absolutely void, although the disability be remov 11 Mod. 123. ed before the death of the devisor; for the parties must be capable of devising at the time when the will is made. Hawe v. Burton, Comb. 84. 14. A man of full age declared, in the presence of several witnesses, that his will, made when he was under age, should stand; it was however adjudged that the will was void, on account of the infancy of the devisor at the time of the first publication. But 1 Salk. 238. if the will had been republished, after the devisor attained his full age, it would have been good. 11 Mod. 157. 2 Vern. 475. 11 Mod. 157. 15. It is the same where a married woman makes a will, 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 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 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 judgement and memory, 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. Lands may be devised. 18. All natural persons who are in esse at the time To whom when a will is made, and who are capable of acquiring lands by purchase, such as infants, &c., may be devisees. Infants. Doev. Clarke, 2 Hen. Black. 399. 19. It was formerly much doubted whether an Unborn infant in ventre matris, could be a devisee in a will; but it is now settled that such a devise is good. 20. A person devised to his brother Henry Clarke and his assigns, for his life, remainder to the use and behoof of all and 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. 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. Judgement was given accordingly. Women. 21. A married woman is not thereby disabled from Married being a devisee in a will: and although she cannot take any thing from her husband directly by deed; Lit. § 168. yet neither the custom of devising, nor the statute of 1 Inst. 112 a. 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 Aliens. 2 Ves. 362. law, or upon the statute of wills, to prevent an alien Bastards. 1 Inst. 3 b. Metham v. Devon. 1. P Wms. 529. vide infra, c. 10. Persons uncertain, Bate v. Norton, T.Raym. 82. Bodies Politic cannot be Devisees. 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. 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 good; and a devise to a person not in existence at the time 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 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 Tit. 32. c. 2. the stat. 9 Geo. II. c. 36, has rendered all devises for $44. Deviseesmust submit to the Forrest R. 82. charitable uses 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. 26. It is laid down by Lord Talbot, that when a whole Will, person takes upon him to devise what he has no power over, upon a supposition that his devise will be acquiesced under; the Court of 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, |