this purpose, to a stranger, it frequently happened that parties without whose concurrence the freehold could not be effectually conveyed, were by some mistake not joined in the proceedings, or refused to join in them, or could not be discovered (p). But under the new system, all these annoyances are by a neat and simple arrangement, avoided, while the only real benefit resulting from the ancient practice, is at the same time effectually secured. For as the protector is always constituted by the same settlement as the tenant in tail, there can rarely be any difficulty in finding him out; and supposing the relation of parent and child to exist between them (as will usually be the case), there can be no reason to fear that compliance will be refused from an unworthy motive; nor, in case of compliance, will any conveyance to a stranger be necessary, the mere consent of the protector (given in due form) being all that the act requires. It ought, lastly, to be mentioned as a farther recommendation of the new assurances, that they are capable of being executed at any time that convenience may require; in which respect they differ very materially, from the former methods, particularly that of recovery, which the law did not allow to be transacted, except during the terms; for as it is at those stated times only, that the Court of Common Pleas is open, some of the proceedings in the fictitious suit were necessarily confined to the same periods; from which circumstance it frequently resulted that the death of parties would intervene to prevent the intended recovery, and defeat for ever, the purposes which it was designed to effectuate (g).

The Fine and Recovery Act, to which our attention has been hitherto confined, is not however the only statute by

(p) Vide First Real Property Re. port, p. 24.

(q) The reader desirous of farther information with respect to the Fine

and Recovery Act, will find an ample and luminous disquisition upon it, in the first volume of Mr. Hayes's Introduction to Conveyancing.

which tenants in tail and married women have been relieved from restriction in respect to the power of aliening their real estate. For by 32 Henry VIII. c. 28, a tenant in tail may make a lease binding on his issue in tail (but not on those in remainder or reversion (r),) to endure for three lives, or twenty-one years; and a husband seised in right of his wife, in fee simple or fee tail, may also demise in like manner (provided the wife joins in the lease), and bind her and her heirs thereby (s). [But then many requisites must be observed, which the statute specifies, otherwise such leases are not effectual. 1. The lease must be by indenture, and not by deed poll, or by parol. 2. It must begin from the making, or day of the making, and not at any greater distance of time. 3. If there be any old lease in being, it must be first absolutely surrendered, or be within a year of expiring. 4. It must be either for twenty-one years or three lives, and not for both. 5. It must not exceed the term of three lives, or twenty-one years, but may be for a shorter term. 6. It must be of corporeal hereditaments, and not of such things as lie merely in grant, for no rent can be reserved thereout by the common law, as the lessor cannot resort to them to distrain. 7. It must be of lands and tenements most commonly letten for twenty years past, so that if they had been let for above half the time (or eleven years out of the twenty) either for life, for years, at will, or by copy of court roll, it is sufficient. 8. The most usual and customary feorm, or rent for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste. These are the guards imposed by the statute (which was made for the security of farmers, and the consequent improvement of tillage) to prevent unreasonable abuses in prejudice of the issue or the wife:] and to such restrictions is every lease still subject, where it is to be made under the provisions

of this statute. But the fine and recovery act, in giving increased facilities to tenants in tail and femes covert, with respect to the alienation of their estates in general, comprises (as we have seen) (among other dispositions) those by way of lease; and seems likely therefore, to reduce to a great extent, the practical importance of the statute of Henry VIII., by rendering it, in most cases, unnecessary to resort to its provisions.

CHAPTER XX.

OF DEVISES.

THE modes of assurance hitherto examined, all operate or come into force from the time of the execution of the instrument (a); but there is another (and it is the last conveyance of an ordinary kind, to which we shall have occasion to refer), which is founded on a different principle, namely, a devise by last will and testament (b). For a will is of no force until after the death of the disposing party, but during his life is (in the language of the law) merely ambulatory, that is, of an unsettled and fluctuating character. Omne testamentum morte consummatum est, et voluntas testatoris est ambulatoria usque ad mortem (c).

A will or testament are terms generally used without distinction, to express the instrument by which a man makes disposition of his property, after his death. Testaments are said, both by Justinian (d) and Sir Edward Coke(e), to be so called, [because they are testatio mentis; an etymon which seems to savour too much of conceit, it being plainly a substantive derived from the verb testari, in like manner as juramentum, incrementum, and others, from other verbs. The definition of the old Roman lawyers is much better than their etymology; voluntatis nostræ justa sen

(a) Shelford on Wills, 5.

(b) The term conveyances is sometimes applied to voluntary alienations inter vivos exclusively, and so as not to include wills. But it is also pro

perly used in the larger sense assigned
to it, in the present work.

(c) 2 Bl. Com. 502.
(d) Inst. 2, 10.

(e) Co. Litt. 112 b, 322 b.

[tentia, de eo quod quis post mortem suam fieri velit (f); which may be thus rendered into English, the legal declaration of a man's intentions, which he wills to be performed after his death. It is called sententia, to denote the circumspection and prudence with which it is supposed to be made; it is voluntatis nostræ sententia, because its efficacy depends on its declaring the testator's intention, whence in England it is emphatically styled his will; it is justa sententia, that is, drawn, attested, and published, with all due solemnities and forms of law; it is de eo quod quis post mortem suam fieri velit, because it is of no force until after the death of the testator (g).] While defining a will, we may also take occasion to explain the term codicil, which is derived from the Latin codicillus (importing a little book or writing), and is an instrument made subsequently to the original will, by which its dispositions are explained or altered (h). It is subject, in general, to the same remarks as the original instrument itself, of which indeed it is considered as forming a part(); so that what may be laid down as law relating to a will, may be taken generally as applicable also to all codicils thereto annexed (k).

With respect to the principle on which a disposition by will is allowed, [we have more than once observed, that when property came to be vested in individuals by the right of occupancy, it became necessary for the peace of society, that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it, which introduced the doctrine and practice of alienation. But these precautions would be very short and imperfect if they were confined to the life only of the occupier, for then upon his death all his property would again become common,

(f) Ff. 28, 1, 1.

(g) 2 Bl. Com. 500.

(h) Ibid.

(i) Ibid.

VOL. I.

N N

(k) In the new Statute of Wills, 7 Will. 4 and 1 Vict. c. 26, the term "will" is to be taken as extending to a codicil also; sect. 1.