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so given and specified in that part, may be devised by a nuncupative codicil, and so the will might be altered contrary to the words of the statute: but it was answered by the Court, that if such part of a will was so obtained, it was no part of the will, and so such codicil would be no alteration of what was not, but would be an original will for so much. And they further said, that if A. be possessed of an estate of 10001. and by will in writing, gives a part of it as 5001. to B. he might give the residue by a nuncupative will, so as he did not change the executor.
It has been held, that a disposition, not valid as a nuncupative will, for want of the observance of the formalities required by the statute, may be supported as a trust in equity. The case cited in support of which proposition, is that of Nab v. Nab', where a daughter, having deposited 1801. in the hands of her mother, made her will, and gave several legacies, and made her mother executrix, but took no notice of the 1801.; but afterwards, by word of mouth, desired her mother, if she thought fit, to give the 1801. to her niece; and on a bill filed by the niece for this sum, it was proved in the cause, for the plaintiff, that the daughter, after making the will, had said, she had left her niece 1901. as a legacy, but the parol declaration of the daughter appeared only by the answer of the mother upon oath.
1 10 Mod. 403, Gilb. Eq. Rep. 146.
It was agreed, that this was not good as a nuncupative will, being above 301. and not reduced into writing within six days after the speaking, as the statute of frauds requires. But the mother was decreed to be a trustee for the niece. I find no other case that comes up to this doctrine, and, perhaps the courts will not hereafter, if the point should arise, be disposed to be guided by a single precedent, so opposite to that feeling of regret which, of late, they uniformly express in being forced into a departure from the plain and wholesome provisions of the statute, by the stress of authorities.
By the 23d section of this statute, soldiers in of soldiers' and
seamen's wills. actual military service, and mariners and seamen at sea, are excepted out of the clauses restraining the testamentary power, in respect to personal estate. Soldiers may still, therefore, make nuncupative wills, or revocations of personal estate, and dispose of their goods, wages, and other chattels, without the forms required by the law in other cases. And by statute 5th William 3. c. 21. sect. 6. the probate of any common soldier, was and continues to be exempted from the duties imposed by that act. With respect to seamen, however, the power of making nuncupative wills left to them by the statute of frauds in the unfettered state in which it stood previous to that statute, has been laid under restrictive provisions by subsequent statutes, for their better security and protection against fraud and im
position. The regulations which regard this object will be found in the abstracts of the statutes, 26 Geo. 3. cap. 63. and 32 Geo. 3. cap. 34. subjoined to this volume, for the convenience of reference
THE progress and changes of the law under the various provisions by statute, in respect to gifts in mortmain, deserve to be distinctly treated of in a work upon wills and testaments.
Statutes of mortmain.
A gift in mortmain, was a phrase signifying a donation of lands or tenements to corporations, sole or aggregate, and implying that by such a gift as well the fruits of tenure due for such property to the Lord of the fee, as the services due out of such fees for the defence of the realm, became extinguished and lost, and the lands were as unproductive as if they were in the hands of a dead man. By Magna Charta it was therefore provided, that " it should not be lawful for any one to give his lands to any religious house, and to take the same again to hold of the same house ; nor should it be lawful to any house of religion to take the lands of
and to lease the same to him from whom they received it, And if any from thenceforth should give his lands to any religious house, and thereupon be convict, the gift should be utterly void, and the land should accrue to the Lord of the fee."
A great many subsequent statutes became necessary to defeat the devices of the ecclesiastics, (who, in early times, were the persons most learned in the law,) to elude restraints which went in a great measure to cut up the sources of their wealth and accumulations. Thus the statute de religiosis, 7 Ed. 1. st. 2. after reciting the prevailing artifices whereby the former prohibition had been evaded, ordained that “no person, religious or other, whatsoever he be, should buy or sell any lands or tenements under the colour of gift or lease, or receive by reason of any other title, whatsoever it be, or by any other craft or engine, lands or tenements, under pain of forfeiture of the same.” But this statute being held to extend only to gifts, alienations, and other conveyances, the ecclesiastics evaded it, by pretending title to the land which they were desirous of obtaining, and so recovering it in an action, by collusion with the tenant'. By the 13th Ed. 1. c. 32. they were precluded from acquiring lands by purchase, gift, lease, or recovery; whereupon they resorted to the method of causing the lands to be conveyed to other persons and their heirs, to the use of them and their successors; which answered for some time, till by the statute 15 Ric. 2. c. 5. this was also
a 2 Inst. 76.
enacted to be mortmain, and within the forfeiture of the statute de religiosis. But as the statute of Richard was held only to extend to corporations, the statute 23 H. 8. c. 10. carried the prohibition to parish churches, chapels, guilds, fraternities, commonalties, companies, or brotherhoods, without corporation.
But it still continued to be held that lands might be given to any persons and their heirs, for the finding of a preacher, maintenance of a school, relief of maimed soldiers, sustenance of poor people, reparation of churches, highways, bridges, causeways, discharging the poor inhabitants of a town of common charges, for the making of a stock for poor labourers in husbandry and poor apprentices, and for the marriage of poor virgins, or for any other charitable uses. . And it was further held, that by obtaining proper licences from those who would be entitled to the forfeiture (1), alienations in mortmain might still be made, as appears from the
* i Rep. 26.
(1) These grants in mortmain were never avoided so as to let in the heirs at law; but the title by the forfeiture was given to the King or the mesne lords. The Statute of Wills, 32 H. 1. general power of devising, but the explanatory act, 34 H. 8. c. 5. excepted corporations; so that devises to corporations were void, and could not be dispensed with by licence ; and by consequence let in the heir, from the passing of the stat. of 34 H. 8. c. 5. to the 43 El. c. 4. except where there happened to be a custom for devising in mortmain. See the Year Book, 45. Ed. 3. 26.