(2) CHAP. VIII. Of void Devises. CHAP. IX. Of the Construction of Devises.-General Rules. CHAP. X. Construction.-What words create a Devise, and describe the Devisees, and the Things devised. CHAP. XI. Construction. What words create an Estate in CHAP. XII. Construction. What words create an Estate Tail. CHAP. XII. Construction. What words create an Estate for Life, a Term for Years, and uncertain Interests. CHAP. XIV. Construction.Of the Rule in Shelley's Case. CHAP. XV. Construction. What words create a Joint Tenancy, or Tenancy in Common, and Cross Remainders. CHAP. XVI. Construction. What words create a Condition, and make Lands liable to Debts, and enable Persons to sell Lands. CHAP. XVII. Executory Devises.- Devise over after a Devise in Fee Simple. (3) CHAP. XVIII. Executory Devises. - Devise over of a Freehold Devists. THE HE last mode of conveying real property is by Origin of devise, or disposition contained in a person's last will and testament, to take place at the death of the devisor. The word devise appears to be derived from divide, and originally meant any kind of division or distribution of lands; but it was used to denote a will so early as in the time of Glanville, who says, Potest enim quilibet homo, majoribus debitis non invo, Lib. 7. c. 5. lutus, de rebus suis, in infirmitate sua, rationabilem devisam facere. 1 Inst. 111b. Ten. 173. 2. It is generally agreed that the power of devising 2.1.2 Inst. 7. lands existed in the time of the Saxons *; but, upon Wright's the establishment of the Normans, it was taken away; because it was inconsistent with the principles of the feudal law and although many of the restraints on Lib. 7. c. 1. alienation by deed were removed before Glanville wrote, yet the power of devising lands was not allowed for a long time after; partly from an apprehension of imposition on persons in their last moments; and partly on account of the want of that public notoriety, which the common law required in every transfer of real property. And therefore it is said, in the same chapter of Glanville from which the passage in the preceding section is taken, which relates to personal property only; that no person could dispose of his lands by will. De hareditate vero nihil in ultima voluntate disponere potest. Lit. § 167. Rob. Gav. 234. Tit. 11. c. 2. § 36. 3. The power of devising, however, continued as to socage lands, situated in cities and boroughs; and also as to all lands in Kent, which were held by the custom of gavelkind: and as the ancient Saxon laws are supposed to have remained unaltered in Kent, this is an additional proof that lands were devisable in the time of the Saxons. 4. We have seen that a power of devising lands. was indirectly acquired by means of the invention of uses; and this power appears not only to have been allowed by the Crown and the legislature, but even, in some particular instances, to have received their sanction; for by the statutes 7 Hen. VII. c. 3. and 14 & 15 Hen. VIII. c. 14., persons who were in the * The will of King Alfred is preserved in a register of the Abbey of Newminster, at Winchester, which is still extant; and has been lately published at the Clarendon press, Oxford. L King's service in the wars, were allowed to alien their lands for the performance of their wills, without licence, or fine for alienation. 5. The practice of devising the use of lands carried the power to dispose of real property much farther than was consistent with the nature of tenures. It tended to deprive the lords of their wardships, profits of marriages, and reliefs; and the King of his primer seisin, livery, and fines for alienation; which constituted a considerable part of the ancient revenue of the Crown. This, together with many other inconveniences that flowed from the doctrine of uses, was Tit. 11. c. 3. removed by the statute 27 Hen. VIII. c. 10., which uniting the legal seisin of the land to the use, effectually took away the power of devising. Wills. 6. The inconveniences which attended this re- Statutes of straint on the disposition of lands by devise, induced the legislature, in a few years after, to give every one a power to devise a certain portion of his land. An act was made, 32 Hen. VIII. c. 1., intituled, "The act of wills, wards, and primer seisins, &c." reciting that persons of landed property could not conveniently maintain hospitality, nor provide for their families, the education of their children, or payment of their debts, out of their goods and moveables; it therefore enacts, that all and every person and persons, having manors, lands, tenements, or hereditaments, may give and dispose of them, as well by last will and testament in writing, as by any act executed in their lifetime, in the following manner: if they held in socage, they might devise the whole; and if they held of the King, or of any other person, by knight service, they might devise two parts, or as much as should amount to the yearly value of two parts in |