The right of testamentary alienation of lands is a matter depending upon act of parliament. We have seen, that previously to the reign of Henry VIII. an estate in fee simple, if not disposed of in the lifetime of the owner, descended, on his death, to his heir at law (a). To this rule, gavelkind lands, and lands in a few favoured boroughs, formed exceptions; and the hardship of the rule was latterly somewhat mitigated by the prevalence of conveyances to uses; for the Court of Chancery allowed the use to be devised by will(b). But when the Statute of Uses (c) came into operation, and all uses were turned into legal estates, the title of the heir again prevailed, and the inconvenience of the want of testamentary power then began to be felt. To remedy this inconvenience, an act of parliament (d), to which we have before referred (e), was passed six years after the enactment of the Statute of Uses. By this act, every person having any lands or hereditaments holden in socage, or in the nature of socage tenure, was enabled by his last will and testament in writing, to give and devise the same at his will and pleasure; and those who had estates in fee simple in lands held by knights' service were enabled, in the same way, to give and devise two third parts thereof. When, by the statute of 12 Car. IT. c. 24 (f) socage was made the universal tenure, all estate in fee simple became at once devisable, being all then holden by socage. This extensive power of devising lands by a mere writing unattested was soon curtailed by the Statute of Frauds (g), which required that all devises and bequests of any lands or tenements, devisable either by statute or the custom of Kent, or of any borough, or any other custom, should be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and should be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they should be utterly void and of none effect. And thus the law continued till the year 1837, when an act was passed for the amendment of the laws with respect to wills (h). By this act the original statute of Henry VIII. (i) was repealed, except as to wills made prior to the 1st of January, 1838, and the law was altered to its present state. This act permits of the devise by will of every kind of estate and interest in real property, which would otherwise devolve to the heir of the testator, or, if he became entitled by descent, to the heir of his ancestor (j); but enacts (k), that no will shall be valid, unless it shall be in writing, and signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses, present at the same time; and such witnesses shall attest, and shall subscribe the will in the presence of the testator. One would have thought that this enactment was sufficiently clear, especially that part of it which directs the will to be signed at the foot or end thereof. Some very careless testators, and very clever judges, have, however, contrived to throw upon this clause of the act a discredit which it does not deserve. And it has accordingly been enacted (l), by way of explanation, that every will shall, so far only as regards the position of the signature of the testator, or of the person signing for him, be deemed to be valid, if the signature shall be so placed at, or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will; and that no such will shall be affected by the circumstance that the signature shall not follow, or be immediately after, the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause, or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after or under or beside the names, or one of the names, of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page, or other portion of the paper or papers, containing the will, whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page, or other portion of the same paper, on which the will is written, to contain the signature; and the enumeration of the above circumstances is not to restrict the generality of the above enactment. But no signature is to be operative to give effect to any disposition or direction which is underneath, or which follows it; nor shall it give effect to any disposition or direction inserted after the signature shall be made. The unlearned reader will perhaps be of opinion that there is not one of the positions above so laboriously enumerated, that might not very properly have been considered as at the foot or end of the will within the spirit and meaning of the act; except in the case of a large blank being left before the signature, apparently for the purpose of the subsequent insertion of other matter: in which case the fraud to which the will lays itself open would be a sufficient reason for holding it void.
Statute of Wills.
(a) Ante, p. 62.
(b) Ante, p. 152.
(c) Stat. 27 Hen. VIII. c. 10; ante, p. 153
(d) 32 Hen. VIII. c. 1, explained by statute 34 & 35 Hen. VIII. c. 5.
(e) Ante, p. 62.
The Statute of Frauds.
(f) Ante, p. 119. (g) 29 Car. II. c. 3, s. 5. (h) Stat. 7 Will. IV. &1 Vict. c. 26.