Swinb. 12.
Dyer, 143.
Co.
super

112.

Lit.

Lit. Sect. 168.
Co. 4. 61.

charged, as the executor; for they differ not in
nature, but in name only. And yet the adminis-
trator is but the ordinary's deputy; and he may
revoke the administration, or call the administrator
to an account (2); [not generally and rightfully, ad
libitum, but only where the grant of the letters
thereof is obtained by surprise or a false suggestion,
or contrary to the legal title to have administration.]

Lit. Bro. Sect. parere necesse est.

300.

testament, and of

a codicil.

A testament is of that nature, that it doth much 3. The nature differ from other acts and deeds, that men do and and effect of a execute in their lifetimes: for albeit it be made, sealed, and published in ever so solemn a manner, yet it hath no life nor virtue in it until the testator's death; for it is a maxim in law, omne testamentum morte consummatum est; et voluntas est ambulatoria usque ad extremum vitæ exitum: it is therefore resembled until death to the interlocutory sentence, and after death to the definitive sentence, of a judge. And hence it is said, sed legum servanda fides: suprema voluntas, quod mandat, fierique jubet, And for this cause a man may alter or make void his will at his pleasure; and he [Revocation.] may make as many new wills and testaments as he will; and there are no[t any] means under the sun to bar a man of this liberty. [When a man covenants not to revoke or alter his will, this covenant will not control the will, or bar the party of his right to alter it. It will merely give a right to damages if the covenant be broken. So a man may covenant to give certain legacies, or make certain dispositions by his will. The only conclusion to be drawn from the text is, that under whatever obligation a man may be not to revoke his will, or if the paper expressing his will be conceived in absolute terms, and contain words expressly directed to preclude him of the liberty to annul his will, and declare what his mind may be in future, no regard shall be paid to such restriction; but a will of a later date shall supersede and repeal the effect of that will which bears a more early date. But should a man by bond, covenant, or agreement, stipulate not to revoke his will, the consequence after a revocation would be, that the bond would be forfeited, the covenant broken, or the agreement departed from, and an action might be maintained

(2) See more amply, as to the different kinds of executors, in Swinb. 379, 6th edit; and in Todf. Orp. Leg. 75.

*P. 402.

against him, or his representatives, for the breach
or non-observance of his agreement.] And the Lit. Sect. 168.
latter testament doth always revoke and overthrow Perk. Sect. 478.
the former; but otherwise it is of a codicil (3); for Swin. 13, 14-
a man may make as many of these [codicils] as he

b

a

112.

will, and make no testament at all; or if he make Bro. Testa-
a testament he may afterwards make as many codi- ment, 20.
cils as he will, and one of them will not overthrow
the other, [unless they be repugnant, or annulled by
an express revocation;] for in the first case they
must be all annexed to the letters of administra-
tion, and the administrator must perform them;
and in the latter case they must be all annexed to
the testament, and the executor must take care to
perform them. A testament therefore is said to have Plow. 343, 344-
three degrees: 1. An inception, which is the making
of it. 2. A progression, which is the publication of
it. 3. A consummation, which is the death of the Co. super Lit.
testator. In grants, therefore, the first [grant] is
of greatest force; but in testaments the last [will]
is of greatest force: [and, as between two repug-
nant clauses in a will, the latter will be effectual,
while, as between two repugnant clauses in a deed,
the latter will be rejected. See chap. Expositions.]
But when a testament is perfect by the death of
the party, it doth as effectually give and transfer
estates, and alter the property of lands and goods,
as acts executed by deeds in the lifetime of the
parties; [except that goods will not pass to the
legatee, till assent by the executor;] for hereby Lit. Sect. 167,
[i. e. by wills,] descents of lands [and escheats,]
are prevented and a man may make estates
in fee simple, fee tail, for life, or years, of
lands, tenements, rents, reversions or services,
as effectually by testament, as by deed; and
these estates also will be good without any
livery of seisin or attornment. And hereby also
rents, and power to distrain for them, may be
transferred [or created;] conditions created and

168.

(3) Which is either for the explanation or alteration of something in, or for addition of something to, or for substraction of something from, the testament: and a codicil hath this further use and force in law, that wherever it is added to a testament, wherein the testator declares that he will have the disposal of his estate to be in force, either by way of a testament, or codicil, or whatever other way the law allows; in that case, if the testament to which such codicil is annexed, afterwards proves to be invalid as a testament, that is, as to the appointing or constituting of an executor, yet it shall stand good as a codicil; and be observed as such by him who administers to the same. God. Orp. Leg. 4. See Harwood v. Goodright, Cowp. 87, mentioned afterwards in p. 395; and S. P. in 4 Burr. 2512, "that if the second is cancelled, the former revives."

Dyer, 221.

annexed to estates [given by the will,] or to things Perk. Sect. 505. devised. And therefore they that take by devises of lands, are said to take in the nature of purchasers, [i.e. by donation, as distinguised from heirship (4).] And if therefore a tenant in tail make a feoffment, [thus effecting a discontinuance,] to the use of himself in fee, and after devise the same land to his wife in fee, and die; the son is not remitted, though the father die seised, [and although there would have been a remitter if the son had taken the fee by descent;] for the devise doth prevent the descent (5). [But if the father had devised to the son in fee, he would have taken by descent as his better title; and in that case he would have been remitted. It is on many accounts highly important, to ascertain whether the person who is heir and also a devisee, take by descent, or by donation, or purchase. Mr. Watkin's excellent work on Descents should be consulted on this subject.] To the making of every good testament, these things are requisite:

Co. 6. 23.

Stat. 32 & 34
H. 8. 5.

Co. 4. 51.
Bro. Testa-

ment, 13.

12 H. 7. 14.

4. What shall be said a good and a sufficient testament; or not. First, in respect that doth make it, and the thing whereof

of the person

may make a

1. That the testator be a person able to make a testament, and not disabled for any special cause, either in respect of his person, mind, or condition, or in respect of the thing whereof the testament is to be made. And for this it must be known, that a woman that hath a husband cannot make a testament of her lands or goods, except it be in it is made; and some special cases (6); for of her lands she can make what persons Perk. Sect. 502. no testament, either with or without her husband's testament; and consent, [except through the medium of a power or of what things; trust:] of the goods and chattels she hath as how. executrix to any other, she may make an executor A feme covert. without her husband's consent; for if she do not so, the administration of them must be granted to the next of kin to the deceased testator, and shall not go to the husband; but of them [her lands] she can make no devise, either with or without her

Fitz. Execut.

40.

Plow. 526. Fitz. Executor, 109.

or not; and

(4) See the difference between purchase and descent in the books. In Harg. Co. Lit. 18, b. note 2, it is said, That instead of distributing all the several titles to land under purchase and descent, it would be more accurate to say, that the title to land is either by purchase, to which the act or agreement of the party is essential, or by mere act in law, and under the latter to consider, first descent, and then escheat, and such other titles not by descent, as yet, like them, accrue by mere act of law. See further, 2 Bl. Com. 201. 241.

(5) See further, as to the nature and effect of a will and codicil, in Bac. Abr. Wills (E.) ; Swinb. 51.

(6) A wife, whose husband is banished by act of parliament for life, may make a will, and act in every other respect as a feme sole. Countess of Portland v. Prodgers, 2 Vern. 104.

*P. 403.

Perk. Sect. 501. Fitz. Executor, 5. 28. 109. ment, 11.

18 Ed. 4. 11.

Bro. Testa

husband's leave, for they are not devisable, [except
under a power or trust;] and if she do devise
them, the devise is void (7). And of the things
due to the wife, whereof she was not possessed
during the marriage, as things in action (8), and
the like, it seems she may make her testament,
[with her husband's licence or consent;] at least
she may make her husband executor of her para- 12 H. 7. 24.
phernalia, viz. her necessary wearing apparel, being
that which is fit for one of her rank. Some say she
may make a testament without her husband's leave;
others doubt of this; howbeit all agree, that she
and not his executor, shall have this [the para-
phernalia] after her husband's death, and that the
husband cannot give it away from her. [But cre-
ditors of the husband may claim even the parapher-
nalia of the wife, except necessary apparel. Query;
and vide 2 Pr. Wms. 80] (9). And of the goods and
chattels her husband hath, either by her or other-
wise, she may not make a testament, without the
licence and consent of her husband first had so to
do; [and even if he does consent, the gift does not
pass the property as from the wife, but from the
husband.] But with his leave and consent she
may make a testament of his goods, and make him
her executor, if she will. And it is said also, that
if she do make a testament of his goods, (in truth,
without his leave and consent,) and he, after her
death, suffer the will to be proved, and deliver
the goods accordingly; in this case the testament
is good, [or rather the gift by the husband is
efficient.] And yet if the husband give his wife
leave to make a testament of his goods, and she do
so, he may revoke the same at any time in her
lifetime, or after her death before the will be

(7) But although the wife, being executrix, may without her husband's licence make her testament of such goods whereof she is possessed as executrix, yet the profits arising therefrom during the marriage shall accrue to her husband, and not unto herself as executrix; so that without her husband's approbation she can make no testament of such profits. God. Orp. Leg. 31.

(8) In the case of Adams v. Cole, Ca. temp. Talb. 168, Lord Talbot decreed a bond which the husband had in right of his wife, but whereon he had never recovered, to go to the husband's representative; the husband being a purchaser of his wife's fortune by the settlement he had made upon her.

(9) If a woman saves money out of her pin-money or separate maintenance, she may dispose of such money, or of any jewels, &c. bought with it, by writing in nature of a will, if she dies before her husband; and shall have it herself if she survives him; and such money, jewels, &c. shall not be liable to her husband's debts. See Herbert v. Herbert, Prec. in Chan. 44.

Stat. 32 Ed. 34 H. 8. c. 5.

504.

Br. Custom, 50.
Swin. 37, 38.

proved. But a woman, after contract with any
man, may, before the marriage, make a testament
as well as any other, and is not at all disabled
hereby (10). [This is an allusion to those cases,
it is apprehended, in which a marriage was deemed
inchoate by the contract. But if there was a
contract per verba de præsenti, query, if this
marriage was not so far complete, that the woman
was under the control of the man. But a subse-
quent marriage would be a revocation of the will;
and though her husband died in her lifetime, the
effect of the testamentary disposition would not be
revived. A republication is required to give this
paper the effect of a new will. And if the hus-
band be bound to permit his wife to make a will,
the bond will be forfeited if he resist the claims of
those who are legatees under the will.]

An infant, until he be of the age of one-and- An infant. Perk. Sect. 503, twenty years, can make no testament of his lands by statutes of 32 & 34 Hen. 8. But by special custom in some places, where land is devisable by custom, he may devise it sooner (11). And of his goods and chattels, if he be a boy, he may make a testament at fourteen years of age, and not before; and if a maid, at twelve years of age, and not before; and then they may do it without and against the consent of their tutor, father, or guardian. [These are now the acknowledged ages for this purpose] (12). And yet some say, an infant cannot make a testament of his goods and chattels until he be eighteen years of age (13). A mad

Co. super Lit. 89.

(10) But the marriage being afterwards had renders the will a nullity. See accordingly and further, as to a testament made by a feme-covert, of what things it may be made, and in what cases it shall operate, in Swinb. 88; 1 Wood, 790; God. Orp. Leg. 29; Com. Dig. Devise (H. 3.); 4 Burn's Ecc. Law, 45.

(11) An infant may alien gavelkind lands at fifteen years of age, Rob. on Gav. 193; but it must be by feoffment. Ibid. 194. But the custom must be taken strictly, and does not extend to any other conveyance or assurance, Noy's Max. 40; and therefore does not enable him to make a will of these lands at fifteen. Co. Cop. § 33.

(12) The general excellence of the Touchstone is peculiarly conspicuous in this point of doctrine; for this dictum appears, by the following elaborate note, to be well founded. "There is," says Mr. Hargrave, in note 6, to Co. Litt. 89, b. " a great abundance of irreconcileable opinions in our books, about the earliest age at which a will may be made of personal estate." [And then the observations of Mr. Hargrave are copied in the MSS., but at too great length to be inserted.]

(13) See fully, with respect to the earliest age at which a will may be made of personal estate, in note 6, to Co. Litt. 89, b. 13th edit.; where the various authorities, relating to that disputed point of doctrine, are collected and judiciously considered. And further in Com. Dig. Devise (H. 2.)