writ of waste was brought against him as tenant by the courtesy, it was holden that it did lie, and that he was not in by the devise. And a custom set up that quælibet fæmina viro co-operta might devise land, whereof she was seised in fee according to the custom of the manor, to her husband, and surrender it in the presence of the reeve and six other persons; was disallowed, the court being of opinion that the custom was unreasonable, because it could not have a lawful commencement'; for it should be intended that the wife, being sub potestate viri, did it by the coercion of her husband. That the same law was of a custom, that the wife might lease to her husband. But, if the husband be banished for his life by act of parliament, the wife may make a will". make a will". For the husband being by act of parliament banished for life, the wife may in all things act as a feme sole, and as if her husband be dead, the necessity of the case requiring that she should have such power. And now, since the authority of courts of equity has been fully established, and the doctrines of powers and trusts extended to answer those purposes of family arrangement which could not be obtained whilst the strictness of common law conveyances prevailed, modes have been adopted by which femes covert may, by agreement, retain or procure in that situation the same powers over their own estates, real as well as personal, as they possess whilst sole. And if such agreement be made before marriage, it may be done without a fine or recovery; but if after marriage, there must be a fine levied, or recovery suffered; because the property of a feme covert, pending * Cited Godb. 15; et vid. Fitz. Abr. tit. Dev. 15; Bro. tit. Test. 13; S. C. Lib. Ass. 31; 185, a. 3. Skepwith's case, Godb. 14, pl. 22; Ibid. 143, pl. 178; sed vid. 3 Com. Dig. 14, tit. Dev. Hen. 3, et note, m Countess of Portland v. DEVISE. DEVISE. Coverture. incapacity of the person devising to do any act relating to the disposition of his property, and consequently is a common law disability. It is therefore necessary that every one must be of good and sane memory at the time of disposing of his property. And it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason; and that is such a memory which the law calls a sane and perfect memory. And what shall be said to be a sane and perfect memory at the time of devising of land, is a question to be determined at common law f. The fourth disqualification, expressly enacted by the statute of 34 Hen. 8, is coverture, which, as has been said, is a civil disqualification at common law, arising from want of power, or free agency; for the law, having put a wife under the obedience of her husband, and submitted her will to his, presumes, (and admits no evidence to the contrary,) all acts, done by her during coverture, to be done by the constraint of her husband, and to be his acts and not hers; and, consequently, infers that she wants free-will as the others want judgment. And therefore it has been holden, that a feme covert cannot devise to her husband; for that would be the act of the husband to convey the land to himself'. So, in 29 Edw. 3, where a woman, seised of lands devisable, took a husband, and had issue, and devised lands to the husband for his life, and died, and a d Cro. Jac. 497; Dyer, 148, b. Marquis of Winchester's case, 6 Co. 23; Dyer, 72, a, in margin, per Coke; i Ch. Rep. 13; Combes's case, Moore, 760. 88. h i Dy. 354, pl. 34; Swinb. 3 Edw. 3, tit. Dev. Bro. 43, so cited Godb. 15; but 4 Co. Rep. 61, cites same case, 3 Edw.3, Dev. 12; but see Bro. Dev. 34, which is f 6 Co. 23, b. the case referred to; and S.P. 4 Co. 61,b; Hob. 225; Bro. Dev. 33, and 31 Ass. 3. Co. Lit. 112, b. writ of waste was brought against him as tenant by the DEVISE. courtesy, it was holden that it did lie, and that he was not in by the devise. And a custom set up that qualibet fæmina viro co-operta might devise land, whereof she was seised in fee according to the custom of the manor, to her husband, and surrender it in the presence of the reeve and six other persons; was disallowed, the court being of opinion that the custom was unreasonable, because it could not have a lawful commencement'; for it should be intended that the wife, being sub potestate viri, did it by the coercion of her husband. That the same law was of a custom, that the wife might lease to her husband. But, if the husband be banished for his life by act of parliament, the wife may make a will". For the husband being by act of parliament banished for life, the wife may in all things act as a feme sole, and as if her husband be dead, the necessity of the case requiring that she should have such power. And now, since the authority of courts of equity has been fully established, and the doctrines of powers and trusts extended to answer those purposes of family arrangement which could not be obtained whilst the strictness of common law conveyances prevailed, modes have been adopted by which femes covert may, by agreement, retain or procure in that situation the same powers over their own estates, real as well as personal, as they possess whilst sole. And if such agreement be made before marriage, it may be done without a fine or recovery; but if after marriage, there must be a fine levied, or recovery suffered; because the property of a feme covert, pending * Cited Godb. 15; et vid. Fitz. Abr. tit. Dev. 15; Bro. tit. Test. 13; S. C. Lib. Ass. 31, 185, a. 3. Skepwith's case, Godb. 14, pl. 22; Ibid. 143, pl. 178; sed vid. 3 Com. Dig. 14, tit. Dev. Hen. 3, et note, m Countess of Portland v. DEVISE. the coverture, cannot be affected by any act of herself or her husband, unless through the medium of those species of common assurance. There are two modes of settlement equally apt for this purpose; viz. either by way of trust, or by way of power over an use". First, by way of trust, as if a woman having a real estate, by a proper conveyance, convey the same, either before or after her marriage, to trustees, in trust for herself during her coverture for her separate use, and, afterwards, that it shall be in trust for such person as she shall, by any writing under her hand and seal, or writing in nature of a will, appoint, and in default of appointment, for her heirs; and then marry, and make such appointment accordingly: this will be a good declaration of the trust, and a court of equity will support it; and no conveyance can be made to the heir at law contrary to this direction to the trustees. Secondly, by way of power over an use (which is the most usual mode of making such settlement). As if a woman convey an estate to the use of herself for life, remainder to the use of such persons as she by writing, &c. shall appoint, and in default of appointment, to her own right heirs; the execution of such power reserved to her will be supported in equity. And, in the case of Southby v. Stonehouse, Lord Hardwicke was clearly of opinion, that such writing, in nature of a will, made by a feme covert by virtue of a power reserved to her in a settlement, was good. And his Lordship, in delivering his opinion, observed, that these appointments through the medium of powers being mere modifications of uses, originally fell under the jurisdiction of courts of equity only; for before the statutes relating to uses, courts of law could neither judge of the consideration upon which uses arose, nor of any conveyance of n 2 Ves. 191. Southby v. Stonehouse, 2 Ves. 612. uses. But the several statutes respecting uses, and, par- DEVISE. |