each executor may have a copy for his informa tion, and thereby the expenses charged by attor→ neys and proctors for copies, and the duty of which is rated according to the number of the words which the will contains, and which is payable on copies of wills obtained after probate; and, secondly, by adopting this prudent measure, forged wills would be prevented; or, should a testator have different wills in his possession, he would be certain that his last disposition of his property would be given effect to, provided he had taken the precaution to deposit the various copies, sealed up, in the hands of his bankers, or some trustworthy friend.

10. And, lastly, as it has been considerately observed, if, in addition to the above necessary precautions, every testator would take the trouble to look over his will once a-year, as regularly as he balances his books, and consider for a few minutes what alteration has taken place in his circumstances in the preceding year, it is highly probable that innumerable law-suits and disputes would be prevented.

THE ORIGIN OF WILLS.

The free disposal which every man has over his goods during life, and the transmission of them to such persons as, by the ties of friendship and

affection, he may be desirous shall enjoy them after his death, is a power inherent in property, and acknowledged by the laws of every civilized country, and seems so to correspond to the dictates of nature, that history hardly carries us back to a time when the notion of the admission of this claim did not prevail among mankind. For, as all men must die, and leave their property behind them, this must either revert to the common stock, from which all property is supposed to be taken, or it must become the property of some successor. But the latter mode was deemed by far the preferable. For the same motives which led mankind to a distribution at first, recommended also the perpetuity of it, when it was once introduced. The law, therefore, of most societies has given to the proprietor a right of continuing his property, after his death, to such persons as he shall name; and, in defect of such appointment or nomination, or where no nomination is permitted, the law of every society has directed it to be vested in certain particular individuals, (viz. such as have a right to demand it by the order of nature,) exclusive of all other persons. The former method of acquiring property, according to the express directions of the deceased, is called by the name of testamentary succession, that is, when the estate of the deceased is transmitted according to some rule or direction, some signification of the will and pleasure which

he has thought proper to leave behind him. The latter is known by that of legal succession, which is, when the goods, possessions, or property of the person deceased descend in the channel of blood, according to the order of proximity. The descent of personal property, which the deceased has not controlled by his express directions, is called an administration.

The right of controlling this succession by the private will of the possessor, and of giving a perpetual existence to the fleeting goods of fortune, so as to preserve them for ever to ourselves and our families, is certainly of high antiquity. But as to the precise period of its origin, history does not furnish us with any satisfactory data. Till the legislation of Solon, it seems doubtful whether the direct testamentary disposition, even of moveables, was allowed among the Athenians, or among the Romans, before the introduction of the laws of the Twelve Tables. In every state, however, in which we can trace its existence, we may rest assured that it was the product of an improved period of its legislation. For permission to direct the succession of property implies a state of order and security which does not exist in the beginnings of

nations.

When the testamentary disposition of lands was first exerciseable in this kingdom is not certain. This, however, is sufficiently clear, that, on the

introduction of military tenures, by the Norman conquest, the restraint of devising lands (except in some particular cities and boroughs where the Saxon institutions were, by special indulgence, allowed to subsist) naturally took place, as a branch of the feudal doctrine of non-alienation, without the consent of the lord. But as the feudal system imperceptibly declined in this island, the alienation of landed property was again thrown open by virtue of the statute 32 Hen. VIII. c. 1, explained by the 34th Hen. VIII. c. 5, (usually called the Statutes of Wills;) and, through the conversion of military tenures into free and common socage, by the statute 12 Car. II. c. 24, all lands held in fee simple are disposable by last will and testament. The tenure by copy of court-roll and the services incident to the same are untouched by these statutes.

With respect to moveables, the power of bequeathing seems to have been coeval with the first rudiments of our law. But, according to Glanville and Bracton, this testamentary disposition of moveables extended only to a third part, called the dead man's part, as, of the remaining two-thirds, the heirs and lineal descendants of the possessor were entitled to one, and his wife to the other. By a variety of statutes and by imperceptible degrees, however, these restraints have become

obsolete, and testamentary power over goods and chattels is unshackled.

The nature and effect of the instruments by which property is, by this testamentary power, continued to the nominee of the deceased possessor, and the designation made by the law, where no such nominee is declared, together with the office and duties of those who are appointed to carry into execution such instruments on such designation, are the subjects of the following pages.

2. Of the Nature and Effect of Wills and Testaments, Codicils, Nuncupative Wills, and Donations Mortis Causâ.

Wills or testaments are of two kinds; namely, written, and verbal, or nuncupative. To constitute the former, the intention of the testator must appear in a written instrument; but the latter is his oral declaration made in his last hours, before a sufficient number of witnesses, but afterwards reduced to writing, from the recollection and deposition of the witnesses. Though the words will and testament are, in common parlance, used indiscriminately, yet, legally and strictly speaking, they are not words of the same import; a will is properly limited to the disposition of lands, and requires no executors, but must be attested by three witnesses; while a testament extends to the dis