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by the statutes of 32 Hen. 8. c. 1. and 34 Hen. 8. c. 5. usually called the statutes of wills.
By these statutes, all persons having any manors, lands, tenements, or hereditaments, in possession, reversion, or remainder, holden by soccage tenure, or in the nature of soccage tenure, and having no lands held in capite, or by knight's service, were enabled to devise all their lands, or any rents, commons, or profits, out of them, to any person, in fee simple, fee tail, for life, or for years, at their pleasure. Those holding of the king in capite by knight's service, or by knight's service and not in chief, or of any common person by knight's service, might devise two parts thereof in three, and no more; the other third part being to descend to the heir, for satisfying the duties of the tenure, and, therefore, the devise of the whole land in such a case would be void. The person holding any such land by knight's service in capite, and other lands by soccage tenure, might devise two parts of the whole, and no more, or any rent, &c. out of it, at his pleasure. He that held lands of the king by knight's service only, and not in capite, as if a mesne lord by knight's service had also other lands held by soccage tenure, might devise two parts in three of all the land held by knight's service, or any rent, &c. out of it, and all his soccage lands at pleasure. But which disposing power was only to be exercised by a will or testament committed to writing, in the life-time of the testator.
By the conversion of military tenures into common soccage, the statute 12 Car. 2. 24, brought the greatest portion of the lands of this kingdom within the above-mentioned statutes of Hen. 8. and made them disposeable by the last wills of such as possessed them in fee simple. By this statute, which, as the title declares, was " for taking away the court of wards and liveries, and tenures in capite, and by knight's service, and purveyance, and for settling a revenue upon his majesty in lieu thereof," all tenures by knight's service of the king, or of any other person, and by knight's service in capite, and by soccage in capite of the king, and the fruits and consequents thereof, are taken away and converted into free and common soccage and it is thereby enacted, that all tenures thereafter to be created by the king, his heirs or successors, upon any grants of any manors, lands, or hereditaments, of any estate of inheritance, at the common law, shall be in free and common soccage, and not by knight's service, or in capite.
But the tenure by copy of court roll, and the services incident to the same, are untouched by this act of Charles 2. nor does the statutes of Hen. 8. abovementioned extend to them, as they do not come within the description of soccage tenure. The tenure in frankalmoign, and the honorary services of grand serjeants, other than of wardship, marriage, and the charges incident to the tenure by knight's. ċ
The loose construction of the
service, were likewise unaffected by this act of Charles*.
It appears, however, that there was something to statutes of wills. regret in the almost boundless facility which was given to the testamentary power, by the operation of these statutes; in so much that a celebrated writer has remarked, in speaking of the operation of the statute of wills, that experience soon shewed how difficult and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law, which are so nicely constructed, and so artificially connected together, that the least breach in any one of them, disorders, for a time, the texture of the whole. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance; for so loose was the construction made upon this act by the courts of law, that bare notes in the hand-writing of another person, were allowed to be good wills within the statute,
It appears by the cases upon this statute, that the testament of lands and tenements ought not only to be in writing, but that it must be committed to writing at the time of the making thereof, or at least
*This Act made some alterations also in soccage tenure. It took away the aids pur file marier, and pur faire fitz chevalier, which were incident to all soccage tenures. And it relieved soccage in capite from the burthen of the King's primer seizin, and fines of alienation to the King, to both of which seccage in capite was equally liable with tenure by Knight's service, See Harg. Co, Litt. 93. c. (3).
in the life-time of the testator; and that it is not sufficient to put it into writing, after the testator's death. But if the will be made by parol, and is afterwards written, and then carried to the testator for his approbation, and he approves of it, it is a good will of lands, under the statutes of Henry the Eighth; and it has been held, that if the testator, when he declared his will by word of mouth, had ordered the same to be written, and the will was accordingly written in his life-time, the testament was as good as if it had been written at first. But, if a man were on his death-bed, and another came to him, and asked him whether his wife should have his land, to which he answered, yes, and a clerk being present did put this into writing, without any precedent command, or subsequent allowance of the sick person, this was not a good testament of land, according to the exigency of the statute of wills; and if a man declared his will before witnesses, and sent for a notary to write it, and died before he came, and then it was written, this was no good will of lands, though it would have been sufficient, at that time, as a puncupative will of chattels.
But if a notary took direction from a sick person for his will, and afterwards went away and wrote it, and then brought it again, and read it to the testator, who approved of it, or if it were written from his mouth by the notary, by the direction of the testator himself, although it were not shewn or read to him afterwards, these were held to be valid dispo
sitions of land, under the statutes of Hen. 8. And further, it has been held upon these statutes, that if a notary did only take ude notes or directions from the sick man, which he did agree to, and they were afterwards written fair in his life-time, and not shewn to him again, or not written fair till after his death, this was an effectual will to dispose of lands.
In the case of Laurence v. Kete', we have the sentiments of the judges much at large, respecting the sufficiency of a will under these statutes. A. being sick, said that he had devised all his lands to his wife, for life, and limited several remainders of several parcels of them, and about an hour afterwards expressed a wish that one K. were there to write his will, whereupon the wife, without acquainting her husband with it, sent for K. who, from the mouth of the witnesses who heard the devise, wrote the same; but because they differed in their testimony, touching the limitations of the remainders, he wrote two wills, and this without the privity of the husband, who, before the writing was finished, became senseless, and presently afterwards died.
And thereupon the following points were agreed to by the court, and given in charge to the jury: 1st, That an actual devise by word, is no sufficient ground for a stranger to write the will, but there ought to be an actual desire expressed to have the will written, nor is a bare wishing sufficient; there
• Perk. sect. 476, 477. Dyer, 53. 72. Plowd. 345. 4 Rep. 60. Alleyn Rep. 54.