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sonal estate, but remained a charge upon the real ; and the present Chancellor seems to have approved of that judgment'; who says that “ Lord Alvanley, as he understood upon conversing with him, proceeded upon this, that it was not the case of a legacy given, as in Brudenell v. Boughton, and that legacy altered, modified, or extinguished by a subsequent testamentary paper; but a charge created upon two funds; and the testator, by a subsequent paper, withdrew, not the gift of the thing, but one of the funds, which by the former paper was made liable to the payment of that charge, still leaving a subsisting demand; for, being given out of the real as well as the personal estate, the gift out of the real remained, though that out of the personal was gone; not because the thing given was destroyed, but the fund out of which it was given.” If the presumption of adding any thing to his Lordship’s remarks on the point in Buckeridge v. Ingram, may be excused, it might be suggested, that the power of distress accompanying the annuity in that case, seemed to mark the real property as an original fund in the testator's contemplation for producing the annuity,
In the early case of Hyde v. Hyde", which appears Devise of a rent to have been the first case upon this subject, Lord must be by will, Chancellor Cowper observed, that these legacies attested by three
charged upon land by an unattested codicil, were
out of land
| 8 Vez. Jun. 500.
* 1 Eq. Abr. 400,
not devised out of the land like a rent, but were only secured by land, which before was well devised. And the same Chancellor clearly held, that a rent out of freehold would not pass but by a will attested by three witnesses. So Mr. Justice Buller' put the case as to rents strongly thus, “ It is clear upon the statute, that a rent cannot pass without three witnesses; for the statute says, 'lands and tenements,' and a rent is a tenement; and if a tenement could pass without witnesses, it would be in direct
opposition to the act.”
Whatever comes properly within the description of a tenement, or to use the words of the Master of the Rolls in Buckeridge v. Ingram”, wherever a perpetual inheritance is granted, which arises out of land, or is in any degree connected with, or, as it is expressed by Lord Same doctrine Coke, exerciseable within it, it is that sort of pro- gation shares, perty which the law denominates real, and cannot fits of a scalage, pass without three witnesses.” It seems not to be petty customs,
market, fair, doubted, therefore, but that tolls", where they are
piscary. not for terms of years only, navigation shares', commons, the profit of a stallage, petty customs', market, fair, or piscary, which are the subjects of dower”, are' within the clauses respecting the execution and revocation of wills. But in Stafford v. Buckley",
'2 Vez, Jun. 232. • 2 Vez. Jun. 663-4. 1 2 Blackst. Com. 20.
• Drybutter v. Bartholomew, 2 P. Wms. 127, Buckeridge v. Ingram, 2 Vez. Jun. 652.
» Mayor of Yarmouth v. Eaton, 3 Burr, 1402. Negus v. Coul. ter, Ambl. 367. . Co. Litt. 19, 20.
" 2 Vez, 170,
Lord Hardwicke held an annuity in fee, granted out of the 41 per cent. duties, upon goods exported from the West Indies, to be a personal hereditament; and in Lady Holderness v. the Marquis of Carmarthen”, it was held by Lord Thurlow, that an annuity charged upon the post-office, till a sum to be laid out in land should be paid, was a personal annuity; and the inference is, that such property may be passed by a will not attested by three witnesses.
Terms attend- TERMS of years will pass (1) by a will unattested, ant upon the inheritance are but terms attendant on the inheritance, are, as to the within the statute.
equitable interest in them, within the statute, though the legal estate is exempt from its operation. The case of Whitechurch v. Whitechurch o will explain this point. Edward Whitechurch took a mortgage of Batcomb Lodge from one Bisse, for 500 years, to commence from the making, for securing the sum of 2001, and interest, and afterwards took another security of the same lands from Bisse, the mortgagor, for 1000 years, in the name of another person, but in trust for himself, to commence also from the making. After this Edward Whitechurch purchased the inheritance of the premises in his own name, and having no wife or issue male, made his will entirely in his own hand-writing, whereby he devised the premises to his nephew, being the son of his younger brother Joseph Whitechurch, for his life, remainder to his son Edward Whitechurch, and to the heirs male of his body for ever, and made his brother, Joseph Whitechurch, his executor and residuary legatee.
91 Bro. C. R. 377.
a 2 P. Wms. 236.
(1) But they cannot be created but by a will attested, because the creation of a term affects the real estate. The statute of frauds takes notice of all lands deviseable by the statute of wills or by the custom of Kent, and which shews that only freeholds of inheritance are within it, for terms of years are not within the statute of wills, nor devisable by custom. Attorney General v. Graves, Ambl. 155.
It happened that this will, (though intended to be perfected as such) by reason of the testator's sudden death, had no date, nor any name subscribed thereto, nor was the same attested, but the executor had proved it in the spiritual court, and assented to the devise to the nephew; whereupon the elder brother's daughter, who was heir to the testator, brought her bill, in order to compel the executor and the devisee to assign over the term to her.
It was objected for the defendants, that the executor had assented to the devise, and that the will, though not attested by three witnesses, was, however, good at law to pass this term of 500 years, which was a subsisting term, and not merged in the inheritance, by reason of the intermediate term, and which intermediate term operated as a grant
of the reversion and not as a grant of a future interest, (for it was admitted, that a future interest would not prevent a merger) but this grant of 1000 years, being to commence from the making, did pass the reversion for 1000 years; which was acceded to by the court.
Then if this will would pass the term at law, and was agreeable to the intention of the party, it was said to be very hard that equity should interpose to disappoint the will, especially when it was in favour of so near a relation as a nephew of the testator, and one of his own name, and all this for the sake of one not more nearly related; of one, who, on her marriage, would probably change her name. It was furthermore added, that in all cases between volunteers, (as the heir and devisee were here) he that had the law on his side used to prevail.
But it was decreed by the Master of the Rolls, that as this was a term which would have attended the inheritance, and in equity have gone to the heir and not to the executor, in which respect, it was to be considered as part of the inheritance, so the will which was not attested by three witnesses, as the law required it to be when land was to pass, should not carry this term ; that though it was true, such a will