Previously to this act, when a title to dower had once attached, it was not in the power of the husband alone to defeat it by any act in the nature of alienation or charge. (a) It was a right attaching by implication of law, which, although it may never take effect, as if the wife died in the husband's lifetime, yet, from the moment marriage and seisin concurred, was so fixed as to become a title paramount to that of any person claiming under the husband by a subsequent act. (b) Opinions of persons in the profession vary as to the policy of thus allowing the husband the power of defeating the dower of the wife after it has attached; and one writer of the greatest eminence (c) gives a very strong opinion upon the subject. Speaking of a former effort to render a declaration by the husband on the purchase of the estate a sufficient bar to the dower, he says, "It was no infringement upon the right of the wife; for, as the husband might have limited the estate to uses to bar dower, so as to prevent dower from attaching, there was no reason why his simple declaration should not have the same operation; and the object was to prevent the unnecessary creation of powers. But the vesting of a power in the husband to defeat the wife's right after it has attached, must be defended upon different grounds." Such, however, is the law as it now stands, and it is enough for our present purpose to have pointed it out. The act for the amendment of the law with respect to wills (d) is one of the most important measures that has passed the legislature in modern times; and although opinions are divided as to some of its clauses, the general voice, both of the public and of the profession, is decidedly in its favour. The conflicting decisions respecting the construction of certain words; the doubts, constantly arising, whether the intention of the testator was that his will should speak as from the time of making his will, and with reference to then present state of his family, or whether with reference to the state of things at his death; the questions daily submitted to the courts as to the provisions of the acts of parliament relating to the execution of wills having been duly complied with; and the various (a) 3 Lev. 386. (c) Sug. Vend. & Pur. 9 ed. 366. (b) Co. Litt. 32. a. (d) 1 Vict. c. 26. other difficulties in the way of a clear and definite understanding of the law relating to this most important mode of disposition of property, called loudly for some general enactment regarding it. The present act has been passed with a view to remedy such defects, and it will be sufficient for our present purpose to point out its general effect, reserving such observations, as well upon some of its particular clauses as upon the old law generally, as may be thought useful to be made, until we come to that part of the Selection which treats of wills. - After repealing the several statutes relating to wills, from the reign of King Henry VIII. to that of George III., it enacts, that every person may devise or bequeath all property, comprising customary freeholds and copyholds, without surrender and before admittance, and also such of them as could not before be devised; estates pur autre vie; contingent interests; rights of entry; and property acquired after the execution of the will: — it declares no will shall be valid made by any person under 21, nor of any married woman, except such as she could make before the passing of the act that every will must be in writing and signed, or the signature acknowledged by the testator, in the presence of two witnesses at one time: - appointments by will to be executed like other wills, and to be valid, though the forms required by the power are not complied with that:—publication shall not be requisite: — that the will shall not be void on account of the incompetency of the attesting witness:—that gifts to the attesting witnesses shall be void; but creditor or executor may be a witness: that a will shall be revoked by subsequent marriage: — that no will shall be revoked by any presumption whatever, but must be done by some express act, as another will, or destruction of the old one: - that the will shall be construed to speak from the death of the testator: -that any devise without words of limitation shall pass a fee: that the words "die without issue" shall be construed to mean "without issue living at the death." Such are the principal features of this act, though there are other clauses of great practical importance, to which reference will hereafter be made. SECTION III. Of the Framing of Instruments. Every one who gives or takes by his own contract the property which is the subject of the deed, should be a party to the deed. The parties to a lease for a year are usually all those Parties. who are to join as conveying parties in the release; and the parties to whom the release is to be made are of course essential parties as lessees, in order to give them a vested estate, and by reason of their privity to enable them to be releasees in the release. The parties to the release as grantors should be all those who are intended to pass any estate, right, title, or interest; and as grantees, all who are to take an immediate estate under the deed. (a) There are also many instances where it is advisable to make persons who neither give nor take by the deed parties to it, in order to affect them with notice of its contents; as, where a party has mortgaged his estate, and is about to make a second mortgage to a third party, the first mortgagee is made a party to the deed, in order that if he lend any further sum he may not be entitled to take precedence of the second lender by reason that he had not notice of the second incumbrance, for if he be a party to the second mortgage deed, all doubt is obviated. Again, the holder of deeds belonging to an estate is often made a party to covenant for their production with a person who takes no beneficial or other interest under the deed; and many other cases may arise in practice. Although no particular order of arrangement of the parties is of importance, it is usual to make them stand in the order in which they are to act in the operative part of the deed; and it has been the practice of some practitioners, where one party acts in the deed in two different capacities, to insert his name twice amongst the parties: but this, though strictly accurate, is an unnecessary precaution, and very rarely indeed now resorted to. It is usual, and very convenient, though not important, to describe in what capacities the several parties (a) Co. Litt. 231. a. Recitals. act, as "A. B., eldest son and heir-at-law of" &c., or “ C. D., the brother and devisee in fee named in the last will," &c. &c. Recitals are used to show what is the object of the deed, and although they are not of absolute necessity used, still they have become, in the modern system of conveyance, a matter of vast importance. Indeed, a conveyancer of the greatest eminence (a) considered that, where a party was originally trustee for one, and then another became entitled to the benefit of the trust, it was absolutely necessary that such fact should be stated on the face of the deed in such manner as would justify the trustee in making the conveyance, for that a general statement that the second party had become so entitled would not be sufficient. As a general rule it may be considered, that there should not be recitals of recitals; so that if a person, having his estate incumbered with jointures, mortgages, portions, annuities, and other incumbrances, executes an instrument by which a totally new arrangement takes place, it seems nugatory to recite in any future deed the anterior state of the incumbrances; and for the same reason it is unnecessary, generally speaking, to recite the motives of the deed in recital as for instance, in the recital of a mortgage, there seems to be no reason to recite that the mortgagor wanted the money and applied to the mortgagee to lend it. It is better to recite deeds as principal deeds, than as recited deeds, if the party has the original deeds, or can depend on the recital of them; but if he has not the deeds, and cannot depend on the recital of them, with which he is furnished, then it is better to recite them as recited deeds. Thus, if it be necessary to recite several deeds anterior to the year 1790, and also to recite the deed of 1790, which deed of 1790 contains recitals of all the former deeds, if the party thinks these recitals may be depended upon, he may insert them as the immediate recitals of the deeds themselves; but if he cannot depend on them, he may begin with the last deed, and state that as reciting the former deeds; as for instance, "Whereas by an indenture bearing date on or about the day of (a) The late Mr. Butler, from whose notes on deeds this section is mainly compiled. 1790, and made, &c. reciting that by an indenture &c. and reciting, &c. [all the former deeds] it is by the indenture now in recital witnessed," &c. In case, however, it should happen that this principal deed of 1790 should be grounded on a lease for a year, care should be taken to avoid an inaccuracy of frequent occurrence, and pointed out in a modern work on conveyancing. "A conveyance by lease and release," the author observes, "is frequently recited after this fashion:- Whereas by indentures of lease and release, the indenture of release being made between, &c., AFTER RECITING that, &c., IT IS WITNESSED that, &c.' This, however, is a very inaccurate and slovenly form of recital. The lease does not so recite or witness." (a) Where, therefore, it is necessary to refer to the recitals, it should be done thus: "Whereas by an indenture of release bearing date the and days of 1790, and made or expressed to be made between, &c. (grounded upon a lease for a year bearing date the day of the said month of,) reciting that, &c., it is witnessed, &c." - Sometimes, a direct recital of a deed is used, and sometimes it is convenient only to recite the effect of it. In the first instance, the language of the original deed should, in its important words, be rigidly adhered to; in the second instance, greater latitude is allowable. When the former is used, the recital should be framed thus: "Whereas by indentures of lease and release bearing date respectively, &c., the release being made, &c., it is by the said indenture of release witnessed, that in consideration of the sum of 1000l. to the said A. B. paid by the said C. D., and for a nominal consideration paid by the said E. F., the said A. B., by the direction of the said C. D. (testified as in the said indenture of release is mentioned), did grant, release, and confirm unto the said E. F. and his heirs the messuages or tenements, lands, and other hereditaments herein-after particularly mentioned and described, and intended to be hereby granted and released, with their appurtenances, To hold the same unto the said E. F., his heirs and assigns for ever, nevertheless in trust for the said C. D., his heirs and assigns for ever." When the effect only is wished to (a) Hayes's Introduction to Conveyancing, p. 328. |