DEVISE. Republication. the will, so as to entitle the married daughter to a moiety of the remaining moiety of the testator's estate; et per Curiam, the testator, by the codicil, confirmed his will, subject to the articles, which confirmation was a republication of his will, and as if he had written it over again, or had afterwards, for a valuable consideration, assigned over a moiety of his real estate to his eldest daughter, by which the moiety so disposed of did no longer continue any part of the testator's estate; so that the testator afterwards, by devising a moiety of his real estate, must be intended to have meant the remaining moiety only, and to have divided that moiety into moieties'. But as a codicil does not, in republishing, give any quality to a will that did not belong to it previous to its revocation, its operation being merely to set it up again in the same state and condition in which it subsisted from its inception, except as to making it efficient as far as the expression used therein will reach at the time of the republication; a devise, not properly executed at its inception, will not be helped by a codicil, although that be executed pursuant to the statute of frauds. Thus, where a testator devised his freehold lands to trustees, but the will had no witnesses; afterwards he made a codicil, which was duly executed, and subscribed by four witnesses, in which he recited the will; and it was held that the will was nevertheless void; for although there were three subscribing witnesses to the codicil, yet that would not support the will, unless it had been itself executed pursuant to the statute of frauds. But we must be careful to distinguish cases of the above sort, in which there is a will and a codicil taking effect as distinct instruments, from the case of an entire instrument made and executed at several times, as to several distinct parts of the testator's property, but not attested • Rider v. Wager, 2 P. Wms. et al. Prec. Ch. 270; S. C. 2 Vern. 597; 3 Rep. Ch. 81. 329. Attorney Gen. v. Barnes until the whole is completed; for, in the latter case, the several parts will be considered as one writing, making together a will, and the attestation to the latter part will give validity to the former, although that alone relate to land, and there is no real devise in the latter part of the writing. Thus it was held, in the case of Carleton v. Griffin", that the testator's subscribing the sheet of paper in the presence of three witnesses, and then taking it in his hand and declaring it to be his last will and testament in their presence, and their attesting and subscribing it in his presence and in the presence of each other, was sufficient to give validity to the whole writing within the statute of frauds; the latter bequest not being considered by the testator, nor by the court, as a codicil, but as a memorandum added to his will, and the whole constituting one entire will, made at different times, and attested agreeably to the statute of frauds. A will may also be republished by the testator's repeating, respecting the instrument, the ceremonies required by the statute of frauds to attend the publication of wills; and such republication will supply a defect, for want of capacity in the testator to devise, as well as an inability for want of a subject matter, upon which the will may attach. And therefore, if one having, under age, made a will of land, duly executed according to the statute, which is void by reason of his infancy, re-execute it after he come of age, with the circumstances required by the statute, this will render such a will valid. But where a man of full age declared, in the presence of several witnesses, that his will, made and duly published when he was under age, should stand, it was held that the will being void by reason of infancy at the time of the first publication, was not made good by the latter publication, because the will wanted " Carleton v. Griffin, 1 Burr. 549. Herbert v. Turball, a DEVISE. Republication. DEVISE. the circumstances required by the statute, which never made any retrospect*. Republication. And such new publication may be made on the same day on which an infant comes of age; for the hour of his birth is not material, there being no fraction of days. Lastly, it is to be observed, there is no republication in equity that is not so in law, although the inaccuracy of reporters, who are very apt to say that a thing is so and so in equity, tends to mislead the student, and make him imagine that there is a distinction". * Hawe v, Burton, Comberb. 84. Herbert v. Turball, 1 Sid. 162, pl. 17; 1 Keb. 589, pl. 52. z Cowp. 132. BOOK V. PART I. OF THE MODE IN WHICH LANDS WILL DESCEND CHAP. I. OF DESCENTS. HAVING treated of the several species of real property, DESCENTS. the estates and interests which may be had in them, the means by which they may be transferred from one person to another, by the act of the party, together with the several subordinate incidents to each of those heads; we now come to the LAST subject of inquiry proposed to be considered, namely, the manner in which they will descend upon the owner's involuntary dereliction of them by his decease. The doctrine of descents, or law of inheritances in feesimple, is a point of the highest importance; and is indeed, says Sir William Blackstone, the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequentl imitations are to work. Thus a gift in tail, or to a man and the heirs of his body, 2 2 Com. 201. DESCENTS. is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in its descent to such heirs only of the donee as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, other son alone, or all the sons together, shall be his heir, this is a point that we must result back to the standing law of descents in fee-simple to be informed of. In order, therefore, to treat a matter of this universal consequence the more clearly, it will be proper to inquire into, I. WHAT PERSONS ARE CAPABLE OF TAKING BY II. THE RULES OR CANONS BY WHICH THE MODE III. THE MEANS BY WHICH THE ORIGINAL COURSE IV. How A DESCENT MAY BE PREVENTED, AND THE Monsters. I. WHAT PERSONS ARE CAPABLE OF TAKING BY GENERALLY speaking, all persons are capable of taking lands by descent, according to the rules of law, unless disabled by some rule of national policy: these alone, therefore, need be mentioned. The first description of persons usually mentioned in the books as incapable of taking by descent, is a monster, which not having the shape of mankind, but in part bearing the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, although brought forth in marriage; but, although it hath deformity in any part of |