611 



L A W. 



Deeds that 



r and 



property. 



I.aw where the freehold is to be conveyed to n stranger with- 

 ^ out the formalities of livery, that an estate for a year or 

 """Y"" other definite time be made to him, that he may be 

 capable of receiving a release. 



19- Deeds, which do not convey, but only charge 

 real property, are, 1. Obligations. 2. Recognizances. 

 .1. Defeasances. Obligation, or bond, is a deed contain- 

 ing a penalty, with a condition annexed, for payment 

 of money, performance of covenants, and the like; if 

 without a condition, it is called single, (simplex obliga- 

 tio, ) but if there be a condition, and that condition 

 is performed, the bond becomes void. Recognizance 

 is an obligation of record, which a man enters into be- 

 fore some court of record, or magistrate duly autho- 

 rized, with condition to do some particular act ; as to 

 appear at the assizes, to keep the peace, to pay a debt 

 previously contracted, c. A Defeasance on a bond 

 or recognizance, is a condition Which, when performed, 

 defeats or undoes it, and n&y be indorsed upon the 

 back of the bond. 



Assurances 20. Assurances by mailer of record, are conveyances ' 

 by matter of o f lands and hereditaments, witnessed and substantiat- 

 ed by some court of record ; these are, 1. Private acts 

 of Parliament. 2. The king's grants. 3. Fines. 4. 

 Common recoveries. 



As, 1. Pri- 21. Private acts of Parliament, are calculated to give 

 vate acts of such reasonable powers to a person in possession of an 

 rarhament. es tate, as he may be barred of by the stipulations under 

 which it is limited ; as granting leases, settling a join- 

 ture, &c. 



22. The king's grants are also matters of record ; 

 these are contained in charters or letters patent direct- 

 ed to all his subjects. In grants by a private person, 

 implications run strongly against the granter ; but it is 

 the reverse where the interest of the crown is concerned. 



23. A Fine, is an amicable composition and agree- 

 ment of an actual or fictitious suit, whereby the estate in 

 question is acknowledged to be the right of one of the 

 parties. A fine bars the right of all strangers, unless 

 they make claim within five years after proclamations 

 made ; except they be feme coverts, infants, prisoners, 

 persons beyond seas, and persons of non-sane memory ; 

 who have five years further allowed them and their 

 heirs to put in claims after their legal incapacities are 

 removed. 



and 4. Tom- 24. A common recovery is an actual or fictitious Suit, 

 monreco- ^ or ac tion, (carried on to judgment,) for land, brought 

 ery- - against the tenant of the freehold ; who thereupon 

 vouches another, who undertakes to warrant the tenant's 

 title ; but upon such vouchee's making default, the land 

 is recovered by judgment at law against the tenant ; 

 who in return obtains judgment against the vouchee 

 to recover lands of equal value in recompence. A re- 

 covery is .in absolute bar, not only of all estates tail, but 

 of remainder and reversions, expectant on the determi- 

 nation of such estates. 



25. Assurances by special custom, are where copy-hold 

 lands held in ancient demesne pass from one owner to 

 another. This is effected, 1. By surrender, which is the 

 yielding up of the estate into the hands of the lord to 

 be regranted according to the custom of the manor, 

 upon the conditions expressed in the surrender. 2. 

 Presentment, which is made by the homage of such sur- 

 render ; and usually made at the next court baron held, 

 or by custom at any other subsequent court. 3. Admit- 

 tances, which are of three kinds, 1. Upon the voluntary 

 grant of the lord, when lands have escheated or revert- 

 ed to him. 2. Admittances upon the surrender of an- 

 other ; and then the lord is esteemed merely as a con- 



2. The 

 king's 

 grants 



3, Fine ; 



Assurances 

 by special 

 custom. 



duit through which the land passes to the surrenderee. J.aw 

 3. Admittances upon descent ; when the lord takes no- f Kn^bi 

 tice of the heir as his tenant, instantly upon the death "" ""V* 

 of his ancestors. f f 



26. A devise is the disposition of a person's proper- Devise. 

 ty to take effect after death. The deed containing this in- 

 tention is called the testator's will ; which, to pass real 

 estates, must be in writing, and signed by the testator, 



or some other person in his presence, by his express 

 direction, and subscribed in his presence by three or 

 four credible witnesses. If the will is only to pass copy, 

 holds, or terms of years, and other personalities, sign- 

 ing only will be sufficient, without the form of wit- 

 nesses. 



27. The execution of a will in a court of law, is Probate o 

 proved by calling one of th subscribing witnesses, who devise or 

 proves, that the testator executed his will by signing w 



and sealing in his presence ; and in the presence of the 

 two subscribing witnesses ; but where a bill is filed to 

 establish a will, all the subscribing witnesses living 

 must be examined, unless they are abroad, and then 

 their hands- writing must be proved, as if they were 

 dead. 



28. By the statute of wills, no person under the age Who can I 

 of twenty-one years can devise any manors, lands, te- devise or 

 nements, or other hereditaments ; but a male infant b *4 ue * 

 above fourteen years old, and a female infant above 

 twelve years, are capable of bequeathing personal pro- 

 perty. 



29. And here it may be remarked, that all things what mn 

 whether real or personal, hereditable or moveable, of be t!c\itei 

 which a man has the absolute property, he may by the * 

 law of England devise by will. A nuncupative or ver- Nuncupa. 

 bal will, extends only to personal property. But a co- tive will. 

 dicil, which is a supplement to a will, and may be either Codicils, 

 written or verbal under the same restrictions as regards 



wills, is a form under which, if written and duly execut- 

 ed, real estates may pass. 



30. The construction put upon wills shall be as fa- How wills 

 vourable, and as near the intention of the testator as the are tobe [ 

 rules of law will admit ; and where the intention is constru ed- 

 clear, too minute a stress shall not be laid on the strict 



and precise signification of words. 



31. An executor, is he to whom another man com- Adminis. ' 

 mits the execution of his last will and testament. The tration ano 

 appointment of an executor is essential to the making ex . ecu "' . 

 of a will, and it may be performed either by express * " r ' 

 words, or such as strongly imply the same ; but if the ^ c 

 testator makes an incomplete will, by not naming an 

 executor, or if he names incapable persons, or if the ex- 

 ecutors named refuse to act ; in any of these cases, the 

 ordinary must grant administration to some person, cum Adminis- 

 testamento annexo. Where a person dies wholly intes- trators. 

 tate, without either making a will or naming execu- 

 tors, then general letters of administration must be 

 granted by the ordinary to such administrator as the 

 statutes of 31st E. III. c. 11, and 21st Hen. VHI. c. 5, 



direct. The office of an executor and administrator Tllciroffice . 

 are very much the same, except that an executor is nc;ll ij. d& t 

 bound to perform a will, which an administrator is not, 

 unless where a testament is annexed to his administra- 

 tion, and he can do nothing before letters of adminis- 

 tration are granted ; but an executor may do many acts 

 before he proves the will ; as, commence an action, 

 assent to a legacy, &c. 



32. If a stranger takes upon himself to act as an ex- what if a 

 ecutor, he is called in law an executor of his own stranger in- 

 wrong, de son tort ; but, locking up the goods, or bury- termeddle, 

 ing the corpse of the deceased, will not amount to such 



3 



