This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Will and conveyance distinguished.
Attestation and subscription.
Holographic and nuncupative wills.
Lapsed and void devises.
The revocation of a will.
Children or issue omitted from will.
While, before the Norman Conquest, and for a century thereafter, persons were allowed to make post obit gifts of land, to take effect in possession after the death of the donor, the rule was established by the king's court, late in the twelfth century, in favor of the heir, that a transfer of a freehold interest in land, though to take effect only after the death of the transferor, must be by livery of seisin, and so any transfer of such an interest, answering to our modern will or devise, became impossible, except in the case of certain lands devisable by local custom.1 Eventually the invention of uses enabled one to devise his land by making a feoffment to uses to be declared by his last will, in which case chancery would enforce the use so declared.2 The power of thus making a will by the declaration of a use was, however, put an end to by the Statute of Uses, this being in fact one of the purposes of its passage, as recited in the preamble. But the inconvenience of this prohibition of testamentary disposition was so greatly felt that, five years later, the Statute of Wills3 was passed, by which statute tenants in fee simple were empowered to dispose by will of all their lands held in socage tenure, and two-thirds of those held by knight service, and, after the change of all tenures into socage tenures,4 all lands came within the operation of this statute, and were devisable.5
1. 2 Pollock & Maitland, Hist. Eng. Law, 324-329.
2. 1 Sanders, Uses & Trusts
(5th Ed.) 64; Williams, Real Prop. (21st Ed.) 168. See ante, Sec. 96.
A will of real property was in early times, and likewise after the Statute of Wills, regarded as a species of conveyance, to take effect at a future time, that is, on the death of the testator.6 This theory had important results upon the law of wills of real property, as distinct from wills of personalty. One most important result of this theory was that, since one could convey only such land as he owned, a will could operate upon such real property only as the testator owned at the time of making the will.7 And for this reason, if one, after having made a will, aliened property covered by the will, such property did not pass under the will, even though he subsequently reacquired it.8
The rule that after-acquired real property does not pass under a will has been changed by statute in most, if not all, jurisdictions. In England the Wills Act9 provided that a testator might dispose of all real and personal estate to which he might be entitled at the time of his death, and that every will should, in the absence of indications of a contrary intention, be construed to take effect, with reference to the real and personal estate comprised in it, as if executed immediately before the death of testator. The effort of these
3. 32 Hen. VIII. c. 1 (A. D. 1540).
4. Ante, Sec. 12.
5. Digby, Hist. Real Prop. c. 8.
6. Pollock & Maitland, Hist. Eng. Law, 313; Williams, Real Prop. (21st Ed.) 250.
7. Harwood v. Goodrlght, 1 Cowp. 87; Brydges v. Chandos. 2 Ves. Jr. 417, 427; Williams, Real Prop. 250.
8. Post, Sec. 475.
9. 7 Wm. IV. and 1 Vict. c. 2C Sec.Sec. 3, 24 (A. D. 1837).
Provisions is that a gift in general terms, such as "all my real estate," or "all my property," or "all my land," passes after-acquired interests, unless a contrary intention appears, and that a "residuary devise," that is, a devise of all one's property not otherwise disposed of, has the same effect.10
In some of the states there are statutes substantially similar to those in England,11 and having a similar operation.12 In other states the statute provides that after-acquired real property shall pass by the will only when it appears from the will that such was the testator's intention.13
Another effect of the theory that a devise was a conveyance was that a residuary devise was regarded as a specific devise of such land as the testator owned at the time of making the mil, and did not otherwise dispose of therein, a matter which will be considered hereafter more particularly in connection with "lapsed and void devises."14
A further result of the theory that a disposition of real property by will was in effect a conveyance appeared in the fact that a devise of real property, unlike a legacy of personalty, was regarded as passing the land directlv to the devisee, without the intervention of the executor or administrator. This rule still prevails in the majority of jurisdictions, though it has been changed by recent statutes in England and some states.15
The king's courts, in the twelfth century, having established the principle that there could be no testamen10. 1 Jarman, Wills, 291, 612.
11. 1 Stimson's Am. St. Law, Sec.Sec. 2806, 2809.
12. See Webb v. Arcbibald, 128 Mo. 299, 34 S. W. 54; Jacobs' Estate, 140 Pa. St. 268, 11 L. R. A. 767, 23 Am. St. Rep. 230, 21 Atl. 318.
13. 1 Stimson's Am. St. Law, Sec. 2809 (C.). See Church v. Warren Mfg. Co., 14 R. I. 539; Briggs v.
Briggs, 69 Iowa, 617, 29 N. W. 632; Paine v. Forsaith, 84 Me. 66, 24 Atl. 590; Woman's Union Missionary Soc. of America v. Mead. 131 111. 33, 23 N. E. 603; Kimball v. Ellison, 128 Mass. 41.
14. See post, Sec. 474.
15. 2 Woerner, Administration, Sec. 337; 11 Am. & Eng. Enc. Law (2d Ed.) 1037 et seq.
Tary gift of land, relinquished the jurisdiction of the personal property of decedents to the ecclesiastical courts, and thereafter the law of succession to personal property, including chattels real, was developed by these latter courts.16 As a result, the civil-law conception of a will, not as a conveyance, but as a secret and revocable instrument, which was to take effect at the death of testator only, has always been applied in the case of personalty;17 and likewise the position of an executor or administrator as the personal representative of the deceased, to whom all his personal property passes on his death, including that disposed of by will, became established at an early date.18