| 
1. Howard, in his Dict. de la Cout. de Norm. vol. i. 197. gives the true derivation of the word devise:-" devise (divisa) marque de division de Partage de terres; ce mot vient du Latin dividere." Crosley on Wills, p. 1. note.
2. Dig. 28. 1. 1. Vinnius thinks, however, that it would be a more perfect definition, to say, Testamentum est suprema contestatio in id solenniter facts, ut quem volumus, post mortem nostram habeamus haerer dem.-Vinn. Com. in Inst. lib. 2. tit. 10. Etym. sec. 2.
3. Successores sui cuique liberi, et nullum Testamentum.-Tacit. M. G. c. 20. Taylor's Elem. of the Civil Law, 522. 524. Jones' Cons. on Isaeus. According to Vinnius, in his Com. on the Institutes, lib. 2. tit. 2. Etym. sec. 4. the restraint upon the devise of real estate existed, in his day, with the Poles, Swedes, Danes, and some parts of Germany.
4. Plutarch's Life of Solon, by J. & W. Langhorne. Jones' Isaeus, Pref. Dis. on the Attic Laws. The speeches of Isaeus related chiefly to the abuses of the law of wills. The claims of heirship and of blood, were urged with vehement eloquence, against the frauds suggested in procuring wills, or the bad passions which dictated them; or the perfidy which suppressed the revocation of them. Most of the speeches involve the discussion of the allegation of a forged will; and they are replete with the bitterest personal reproaches. In one of them, the mode of procuring certain and infallible evidence, by the torture of slaves, is commended. These specimens of forensic discussion are the most ancient monuments extant of the kind; but they do no honor to the morals and manners of the Athenians. The profound and searching history of Mitford, and the testimony of St. Paul, afford equally sad proofs of the corruption of ancient morals. How, indeed, could sound morality and pure practice be expected among a people, who had no due sense of the existence and presence of the Father of Lights, from whom comes down every good and every perfect gift?
5. Inst.2.10.2,3. Dig. 50. 16. 120. 8. Gibbon's Hist. 78. Esprit des Loix, Liv. 27.
6. Inst. 2. 18. pr. Ibid. sec. 1, 2, 3. See supra, vol. ii. 264.
7. Spelman on Feuds, ch. 5. Wright on Tenures, 171.
8. Launder v. Brooks, Cro. C. 561. Co. Litt. 111. b.
9. The statute of wills, or a substitute for it, has been adopted throughout the United States; but not its preamble, either in letter or spirit. That preamble is a curiosity, as being a sample of the most degrading and contemptible servility and flattery that ever were heaped by slaves upon a master. In Scotland, down to a very recent period, almost all a man's heritage, and a great part of his estate acquired by purchase, could not be devised from the lineal heir.
10. N.Y. Revised Statutes, vol. ii. 56. sec. 1.
11. See Vol. ii. of this work, p. 143, 144. and N.Y. Revised Statutes, vol. i. 735. sec. 110.
12. Casson v. Dade, 1 Bro. 99.
13. N. Y Revised Statutes, vol. i. 735. sec. 111
14. 2 Blacks. Com. 497.
15. Vol. ii. 60.
16. 2 Blacks. Con. 498. Steadman v. Powell, 1 Addams' Rep. 58.
17. Though an alien may be a devisee as well as purchaser, he takes a defeasible estate. See vol. ii. 53. The N.Y. Revised Statutes, vol. ii. 57. sec. 4. have judiciously declared such devises void, if to persons who are aliens at the death of the testator.
18. Hurst v. Earl of Winchelsea, 1 W. Blacks. Rep. 187.
19. Crosley's Treatise on Wills, edit. London, 1828, p. 101.
20. Allan v. Heber, Str. 1270. Hurst v. Earl of Winchelsea, 1 W. Blacks. Rep. 187.
21. Lord Hardwicke, 1 Vesey's Rep. 223.
22. This was so held in Flood's case, Hob. 136.; and the court, in that case, admitted that the devise was void in law, because contrary to the statute of wills, but that such a devise in mortmain was clearly within the relief of the statute of Elizabeth. Mr. Crosley, in his learned and able Treatise on Wills, p. 116, 117. condemns this decision as a strained construction, and a repeal of the exception in the statute of wills. The statute of 9 Geo. H. was a new statute of mortmain, which has since corrected this construction, and rendered all devises for charitable uses void, except to the two universities and certain colleges.
23. Vol. ii. 57. sec. 3.
24. Jackson v. Hammond, 2 Caines' Cases in Error, 337.
25. Orphan Asylum Society v. McCartee, 9 Cowen's Rep. 437. Witman v. Lex, 17 Serg. & Rawle, 88. Lord Redesdale, in Attorney General v. Mayor of Dublin, 1 Bligh, 347. The case of Dashiell v. Attorney General, 5 Harr. & Johns. 392. is a strong authority in opposition to the doctrine of the other American cases which are mentioned; but in that case, there was no provision by the will for designating the poor who were to be relieved. The object was too indefinite. See the additional authorities cited, supra, vol. ii. 229-232. where this point is also mentioned and discussed. It is to be regretted, that in the recent revision of the laws of New York, this very interesting and vexatious question was not put at rest, by an explicit provision, either in favor of the equity jurisdiction over such charities, to the extent, perhaps, of the statute of Elizabeth, or else by an express denial of a power to devise a charity to any persons whatever, in trust even for a charitable corporation. In Virginia, corporations were not excepted out of their statute of wills; and if it be the law still, the question cannot arise in that state.-Dr. Tucker's Blackstone, vol. ii. 375. note.
26. Str. 1253.
27. 2 Com. 377.
28. N.Y. Revised Statutes, vol. ii. 57. sec. 6. Ibid. 63. sec. 50, 51. The statute, p. 58. sec. 12. requires all the witnesses to the will, who are living in the state, and of sound mind, to be produced and examined, on proof of the will before the surrogate; and yet the provision is, that the beneficial devise, legacy, or interest, to a witness, is void, in case "such will cannot be proved without the testimony of such witness." There seems to be no room for the application of this exception, if all the witnesses must be produced and examined. But if such a witness would have been entitled to a share of the estate, if the will had not been made, so much of such share is saved to him, as will not exceed the value of the devise to him, and he shall recover that share of the devisees or legatees. This last is a very equitable qualification of the general rule.
29. Windham v. Chetwynd, 1 Burr. Rep. 464.
30. Doe v. Kersey, C. B. East, 1765. Powell on Devises, 131. 1 Day's Conn. Rep. 41. note.
31. Bro. Abr. tit. Devise, pl. 15. Butler v. Baker, 3 Co. 25. a. Bunker v. Coke, 1 Salk. Rep. 237. 1 Bro. P. C. 199. S. C.
32. 8 East's Rep. 552. 1 Taunt. Rep. 578.. S. C.
33. 3 Term Rep. 88. 1 H. Blacks. Rep. 30. S. C.
34. Lord Hardwicke, in Avelyn v. Ward, l Vesey's Rep. 423. Pres. ton on Abstracts, vol. ii. 204. Mr. Preston doubts whether a mere possibility of reverter be devisable; but there seems to be no reason for doubt, since the decision in Jones v. Roe.
35. Doe v. Tomkinson, 2 Maule & Selw. 165.
36. 7 Cowen's Rep. 238. S. C. 2 Wendell, 166.
37. Minuse v. Cox, 5 Johns. Ch. Rep. 441.
38. 4 Greenleaf, 341.
39. 2 Blacks. Com. 378.
40. Parker, Ch. J., 5 Pick. Rep. 114.
41. N.Y. Revised Statutes, vol. ii. 57. sec. 2. 5.
42. Turpin v. Turpin, 1 Wash. Rep. 75. Hyer v. Shobe, 2 Munf. 200. Tilghman, Ch. J., 4 Serg. & Rawle, 433.
43. Griffith's Law Register, tit. Kentucky.
44. Litt. sec. 287. Co. Litt. 135. b. Perkins, sec. 500. Butlers note 68. to lib. 3. Co. Litt.
45. Vol. ii. 63. sec. 40, 41.
46. Anthon's Collection of Statutes. Griffith's Register. Dr. Tucker's note to 2 Blacks. Com. 379.
47. N.Y. Revised Statutes, vol. ii. 63. sec. 40.
48. 3 Lev. 1.
49. Sheeres v. Glascock, 2 Salk. Rep. 688. Casson v. Dade, 1 Bro. 99. Todd v. Earl of Winchelsea, 2 Carr. & Pay, 488. Russell v. Falls, 3 Harr. & McHenry, 457. Edelen v. Hardy, 7 Harr. & John. 61.
50. Stonehouse v. Evelyn, 3 P. Wms. 254. Grayson v. Atkinson, Vesey's Rep. 454. Ellis v. Smith, 1 Vesey, jr.1
51. Bond v. Seawell, 3 Burr. Rep. 1773.
52. Doug. Rep. 241.
53. Cook v. Parsons, Prec. in Chan. 184. Jones v. Lake, 2 Atk. Rep. 176.
54. Swinb. on Wills, p. 6.
55. Perkins, sec. 476. Swinburne, p. 32.
56. Coles v. Mordaunt, 28 Charles II. 4 Vesey's Rep. 196. note.
57. See the case of Prince v. Hazleton, 20 Johns. Rep. 502. which affords memorable proofs of such practices.
58. Vol. ii. 60. sec. 22. Ibid. 63. sec. 40.
59. 5 Vesey's Rep. 285.
60. Lemann v. Bonsall, 1 Addams' Rep. 389.
61. Civil Code of Louisiana, art. 1567-1614.
62. Vinyor's case, 8 Co. 81. b.
63. See the N.Y. Revised Statutes, vol. ii. 64. sec. 42. Griffith's Law Register. Collection of Statutes, by J. Anthon. Esq.
64. De Orat. 1. 1. c. 38.
65. 1 Dig. 28. 5. 92.
66. Cic. de Orat. 1. 57. Inst. 2. 13. 1. Ferriere Com. h. t. 1 Huber, 2. 13. 5. Ibid. tit, 17. sec. 1.
67. Overbury v. Overbury, 2 Show. 253.
68. 1 Ld. Raym. 441. Salk. Rep. 592.
69. 5 Term Rep. 51. note.
70. 1 Eq. Cas. Abr. 413. pl. 15. 1 P. Wms. 304. note by Mr. Cox.
71. Parsons v. Lanoe, 1 Vesey's Rep. 189. Amb. 557. Jackson v. Hurlock, 2 Eden, 263.
72. Wellington v. Wellington, 4 Burr. Rep. 2165.
73. Dickens' Rep. 445.
74. Doe v. Lancashire, 5 Term Rep. 49.,
75. Doug. Rep. 31.
76. Lord Alvanley, 4 Vesey's Rep. 848.
77. 2 East's Rep. 530.
78. Ex parte the Earl of Ilchester. 7 Vesey's Rep. 348.
79. 4 Johns. Ch. Rep. 506.
80. 5 Term Rep. 51. note.
81. 4 Maule & Selw. 10.
82. 1 Phillimore, 447.
83. Gibbons v. Cross, 2 Addams' Rep. 455.
84. Denn v. Gaskin, Cowp. Rep. 657. Jackson v. Schauber, 7Cowen'.s Rep. 187. S. C. 2 Wendell, 1.
85. N.Y. Revised Statutes, vol. ii. 65. sec. 49.
86. It would appear, by the reading of the statute of Connecticut, of 1801, that an after-born child, and no provision for it, revokes the whole will. In Pennsylvania and Delaware, marriage, or an after child not provided for, is a revocation pro tanto only. In Ohio, the birth of a child avoids the will, if it was made when the testator had no child.
87. Laws of the several States, in Mr. Anthon's collection. Griffith's Law Register, h. t. 6 Harr. & Johns. 54. N.Y. Revised Statutes, vol. ii. 66. sec. 52. It is not improbable that I may be involved in some little inaccuracies in respect to the variations in the laws of the several states. The regulations cross each other so constantly, that it is difficult to be perfectly exact, without giving a very minute detail of the laws of each state, and which the limits of the present work would not permit
88. Vol. ii. 64. sec. 43.
89. The statute must mean here to refer equally to the posthumous issue.
90. Forse and Hemblig's case, 4 Co. 60. b. Supra, vol. ii. 143. S. P,
91. Plowd. Rep. 343. a.
92. Hodsden v. Lloyd, 2 Bro. 534. Doe v. Staple, 3 Term Rep. 684.
93. Vol. ii. 69.
94. Vol. ii. 64. sec. 44.
95. Hitchins v. Bassett, 3 Mod. Rep. 203. Goodright v. Harwood, Cowp. Rep. 86.
96. Cotter v. Layer, 2 P. Wms. 622. Rider v. Wager, ibid. 332. Mayer v. Gowland, Dickens' Rep. 563. Knollys v. Alcock, 5 Vesey's Rep. 654. Vawser v. Jeffery, 2 Swanst. Rep. 268. Walton v. Walton, 7 Johns. Ch. Rep. 258.
97. Montague v. Jeffereys, 1 Rol. Abr. 615.
98. Roper v. Radcliffe, 10 Mod. Rep. 230. Lord Hardwicke and Lord Eldon, 3 Atk. Rep. 748. 803. 7 Vesey's Rep. 273. 2 Swanst. Rep. 288.
99. Lord Eldon, 7 Vesey's Rep. 373.
100. Dister v. Dister, 3 Lev. 108. Darley v. Darley, 3 Wils. Rep. 6.
101. Trevor, Ch. J. in Arthur v. Bockenham, Fitzgib. 240.
102. 3 Atk. Rep. 748.
103. 3 Burr. Rep. 1491. Doug. Rep. 722.
104. Charman v. Charman, 14 Vesey's Rep. 584. Vawser v. Jeffery, 2 Barnw. & Ald. 463.
105. Goodtitle v. Otway, 1 Bos. & Pull. 576. 7 Term Rep. 399. S. C. 3 Vesey's Rep. 650.
106. Sparrow v. Hardcastle, 3 Atk. Rep. 798. S. C. 7 Term Rep.416. n. Bridges v. The Dutchess of Chandos, 2 Vesey, jr. 417. Cave v. Holford, 3 Vesey's Rep. 360. 7 Term Rep. 399. 1 Bos. & Pull. 576. S. C. Harmood v. Oglander, 6 Vesey's Rep. 221.
107. Walton v. Walton, 7 Johns. Ch. Rep. 258.
108. Ballard v. Carter, 5 Pick. Rep. 112.
109. Brant v. Wilson, 8 Cowen's Rep. 56
110. Goodright v. Glazier, 4 Burr. Rep. 251
111. Burtonshaw v. Gilbert, Cowp. Rep. 49. Semmes v. Semmes, 7 Harr. & Johns. 388. There are contradictory opinions of Lord Mansfield, as given in Cowp. Rep. 53. and 92., on the point whether, if the first will be not cancelled, in point of fact, but he revoked by the terms of the second will, and the second will be cancelled, the first will to be thereby restored, without republication.
112. Onions v. Tyner, 1 P. Wms. 393. Burtonshaw v. Gilbert, Cowp. Rep. 49. Jackson v. Holloway, 7 Johns. Rep. 394. Sir John Nichols, in Rogers v. Pittis, 1 Addams' Rep. 30.
113. Bibb v. Thomas, 2 Blacks. Rep. 1043.
114. Sutton v. Sutton, Cowp. Rep. 812. Larkins v. Larkins, 3 Bos. & Pull. 16. Short v. Smith, 4 East's Rep. 419.
115. Vol. ii. 66. sec. 53.
116. N.Y. Revised Statutes, vol. ii. 64. sec. 45-48.
117. Co. Litt. 111. a.
118. Townson v. Tickell, 3 Barnw. & Ald. 31. Doe v. Smyth, 6 Barnw. & Cress. 112. To give the devise effect, as against the heir, the N Y Revised Statutes. (vol. i. 748. sec. 3.) require the will to be duly proved, and recorded in the surrogate's office, within four years after the testator's death, with the usual exception in case the devisee be under disabilities.
119. Comyn's Dig. tit. Devise, n. 4. Doe v. Morgan, 6 Barnw. & Cress. 512. Sheppard's Touchstone, by Preston, 439. Preston on Estates, vol. ii. 68-173. Mr. Preston has given a very extended citation and discussion of authorities on the construction of wills, as to the quantity of interest devised, and as to the operation of the word estate. His conclusion is, (p. 146.) that the word estate, used in application to real property, will be construed to express either the quantity of interest, or describe the subject of property as the sense in which it is intended to be used, shall appear from the context of the will. It will carry a fee, though it point at a particular house or farm, unless restrained by other expressions; for it will be intended to designate as well the quantity of interest as the locality of the land. (Ibid. p. 130.) The whole of the sixth chapter, in the second volume of Preston on Estates, p. 68. to 288., is a very laborious and complete collection and analysis of cases on the construction of wills, and more especially as to the efficacy of the term estate. If to this we add Cruise's Digest, tit. Devise, chapters 9, 10, 11. 13. we have then a full view of the immense accumulation of English cases on the subject. In the latter work they are very clearly classified and arranged.
120. Jackson v. Coleman, 2 Johns. Rep. 391. Herrick v. Babcock, 12 ibid. 389. Jackson v. Robins, 16 ibid. 587, 588. Case of Flintham, 11 Serg. & Rawle, 16.
121. Com. Dig. tit. Devise, n. 4. Preston, ub. sup. Beall v. Holmes, 6 Harr. & Johns. 205.
122. Co. Litt 4. b. 8 Co. 95. b. 2 Ves.& Beame, 68. 1 Johns. Ch. Rep. 499. 9 Mass. Rep. 372. Andrews v. Boyd, 5 Greenleaf, 199.
123. Denn v. Gaskin, Cowp. Rep. 657. Jackson v. Wells, 9 Johns. Rep. 222. Jackson v. Embler, 14 ibid. 198. Ferris v. Smith, 17 ibid. 221. Hawley v. Northampton, 8 Mass. Rep. 38. Morrison v. Semple, 6 Binney's Rep. 94. Steele v. Thompson, 14 Serg. & Rawle, 84. Wright v. Denn, 10 Wheat. Rep. 204. Beall v. Holmes, 6 Harr.& Johns. 209, 210.
124. Whaley v. Jenkins, 3 Dess. Eq. Rep. 80. Jenkins v. Clement, Slate Eq. Rep. S. C. 72. Dunlap v. Crawford, 2 McCord's Rep. 171. By statute in South Carolina, of 1824, words of inheritance are declared not to be necessary to pass a fee.
125. Sargent v. Towne, 10 Mass. Rep. 303.
126. Vol. i. 748. sec. 1. Ibid. vol. ii. 57. sec. 5.
127. The suggestion of the want of such a legislative provision, directing a fee to pass, in every case of a devise of land, unless clearly restrained, was made in Beall v. Holmes, 6 Harr. & Johns. 228. by Ch J.Buchanan, who gave an elaborate and powerful opinion in support of the existing English rule of construction, as being still in Maryland the established law of the land. Since that decision, the law in Maryland has been altered, and, by statute, in 1825, all devises of land without words of perpetuity, pass the whole estate, unless it appear, by a devise over, by words of limitation, or otherwise, that the testator intended to devise a less estate. 1 Harr. & Gill's Rep. 138, note.
128. Judge Paterson, in Lambert v. Paine, 3 Cranch's Rep. 134. Lord Kenyon, in Doe v. Wright, 8 Term Rep. 66. Nott, J. in Carr v. Porter, 1 McCord's Ch. Rep. 71, 72. Parsons, Ch. J. in Ide v. Ide, 5 Mass. Rep. 501.
129. Hogan v. Jackson, Cowp. Rep. 299.
130. Jackson v. Bull, 10 Johns. Rep. 148. Jackson v. Martin, 18 ibid. 35. Gibson v. Horton, 5 Harr. & Johns. 177. Beall v. Holmes, 6 ibid. 208. Lithgow v. Kavenagh, 9 Mass. Rep. 161. Story, J.10 Wheat. Rep. 231. 3 Mason's Rep.209-212. Cruise's Digest, tit. Devise, ch. 11. sec. 49-70. Preston on Estates, vol. ii. 207. 217-220. 228. 235. 243-250.
131. 6 Co. 16.
132. Preston on Estates, vol. ii. 188.192.206. Beall v. Holmes,6 Hair. & Johns. 205. where this point is thoroughly examined.
133. Bro. tit. Devise, pl. 52. Willis v. Lucas, 1 P. Wms. 472. Frogmorten v. Holyday, 3 Burr. Rep. 1618. Doe v. Cundall, 9 East's Rep. 400. 1 Simons & Stuart, 547. 550. Preston on Estates, vol. ii. 252. Cassell v. Cooke, 8 Serg. & Rawle, 290.
134. Doe v. Underdown, Willes's Rep. 293. Lord Hardwicke, in Durour v. Motteux, 1 Vesey's Rep. 322.
135. Doe v. Sheffield, 13 East's Rep. 526. Doe v. Scott, 3 Maule & Selw. 300.
136. 6 Conn. Rep. 292.
137. 5 Pick. Rep. 528.
138. The law of legacies has grown into a copious system, and has been well digested by Mr. Roper, but with much more force, precision, and accuracy, by Mr. Preston. It is too full of detail, and too, practical, to admit of much greater compression than Mr. Preston has given it, and I have been obliged, in the present extended state of this work, to desist from the attempt.