Star.
London, England, 1829-07-02 00:00:00

THURSDAY EVENING, JULY 2, 1829.

way, either at law or in equity, to claim any interest in
land unless under 4 written instrument, containing t.le
terms of the contract, and signed by both the parties
or their authori ed agents. Provision may be mad t tot
the indemnity of purchasers who have been induced to
lay out money in improvements on the faith of agree-
ments not valid in law.

We are inquiring whether the length of deed, which
causes much expense and perplexity, may not be ma. '
serially abridged by making certain powers and obli-
gations legal incidents to certain estates and interests
to which they are now almost uniformly annexed
(though we feel this to be a matter of much delicacy).
or by recommending prescribed forms of conveyance,
to which, in certain cases, a given effect shall be im-
puted.
From the time when a written instillment vas re•
quire) to pass an interest in land, that alone should
have been sufficient ; and we are of opinion that all
estates should now be made transferable by simple deed
without the forms ot, livery of seisin or entry, or the
contrivances by way of substitution lir them. which are
all in reality secret and useless in the deduction of titles.
There will then no longer be any occasion fir two deeds
to effect one transfer, and the now almost universal
assurance by lease and release will immediately become
obsolete. We think that it should be permitted to
create directly, by deed, certain interests which can
now only be created indirectly through the Statute of
Uses, or by way of executory devise in wills, such as
a fee simple to arise on the determination of a prior
conditional fee simple, estates of freehold to commence
infaturo, and estates for life and other limited interests
in terms of years. We conceive likewise that it would
be advantageous to take away the various impediments
to the legal transfer of the right to arise on breach or
conditions, and of certain contingent and executory in-
terests in land. which can now be legally created by
deed, but are not allowed to pass from one to another,
or only in equity, or by indirect shifts. Tie n ecessity
should likewise be obviated roe the technical contrivance
'commonly called Trusts to preserve contingent reolain-
dens, used to prevent the wrongful or casual destruction
if lawful estates. But these impiovemet:t. must be
introduced with the greatest caution, that they may be
made to harmonize with the eAsblibheJ principles of
conveyancing.
At present the true ()lacer of real property, labile
wrongfully dispossessed, is not allowed to devise or
transfer it; such restraints, we think, may be safely re-
lazed. In rude times they had some colour of policy.
as they tended to prevent wealthy and powerful men
from oppressing persons in possession by acquiring liti-
gious claims to their estates; they have long merely
operated oppressively to persons out of possession, by
preventing them from disposing of their property, and
sometimes depriving them of the means of recovering
it. The laws against champerty and maintenance
likewise seem unsui,ed to the present state of society.
We have it in contemplation to propose a uniform
mode of executing powers of appointment, which we
trust will be sufficient to guard against fraud, and will
get rid of various niceties which now perplex practi-
tioners and often lead to injustice.
The subject of illusory appointments has also oc-
cupied our attention; and it has occurred to us that the
best mode of getting rid of the mischiefs produced by
the present state of the law on this subject may be, by
rendering every power of appointment exclusive, unless
a certain amount or proportion to be given to every
object be specified by the donor ot the power.
The raking law respecting devises appears to us to
be very incongruous arid defective. The smallest por-
tion of freehold land can only be devised by a will,
signed by the testator, and attested by three witnesses;
while a will of copyhuld or of le tsehold lands, of what-
ever value, requires no witness, and not even to be signed
by the testator. This distinction, from its technical
nature, has never been understood by the public, and
operates as a snare to the unlearned. Again, though
cupyhold lands may be passed by a will made before
the acquisition of them, yet some interests in co,syhuld
lands, as the interest of a devisee or voluntary bonen-
deree before admittance, are not devisable ; and estates
in many manors cannot be affected by a will, unless the
owner have transferred the legal estate to a trustee.—
Although a will is supposed for many purposes to refer
to the time of the testator's death, and although per-
sonal and leasehold and copyhold property to any
amount may be disposed of by a will properly framed
before its acquisition, yet from the construction lat
upon the Statute rf Wills, a will has no operation on
freehold lands, unless the testator's interest existed at
the publication of the will, except in some very
peculiar cases, by means of the equitable doctrine of
election, a doctrine perplexed by many niceties, and to
be applied only by means of a Chancery suit. If .he
rightful owner of land be disseised after making his
will, or if, being a remainder-man, his remainder is di-
vested by the disseisin if the tenant for life, the will is
inoperative; nay, if the testator, after retaking his will,
even with the intention of confirming it, does an act
by which he is supposed to have acquired a new estate
in the premises devised, the will is revoked. The dot.
trine by which effect is given to a ills of freehold land,
as from the day when they are supposed to be re-pub-
lished by the execution of codicits or other means,
which were introduced to mitigate these hardships, ac-
complishes a very uncertain and partial remedy, and
introduces new mischiefs. The numerous questiors
which arise upon the construction of wills and the fre-
quent instances in which, by an adherence to certain
technical rules, never understood but by lawyers, the
intention of the testator, which Courts always profess
to observe, is completely defeated. ale a reproach to
our law. By requiring words of inheritance, or some-
, thing equivalent to pass a fee, and by refusing to allow
an estate for life to go to a man and a remainder to his
heirs as purchasers by the same will, au estate for life
is held to pass where a fee was clearly intended, and
on the contrary, a devisee meant to sake only a life
estate is allowed to dispose of the fee.
We are employed in considering whether there may
not be one form prescribed for the execution of all wills;
whether all interests in real property may not be made
devisable; whether there be any objection to allow a
will of realty, like a will of personalty, to operate,
when framed for that purpose, upon all property of
which the testator may die seised, though acquired
after the execution of the will; whether disseisin or the
'divestment of estates, or any act done by the testator
without the intention to revoke his will, should interfere
with the exercise of his testamentary power ; and wise-,
titer some amendments may not be proposed in the,

PRICE SEVENPICNCR.

rules for the construction of wills in cases in which ex•
perience teaches that the legal interpretation of certain
forms of expression is at variance with the sense in
which these forms are ordinarily used, whereby liti-
gation may be diminished, and there may be a greater
probability of the testator's intention being effectuated.
Without presuming to suggest any transfer of the
jurisdiction over wills of personalty to the common law
tt ibunals, we think it deserving of consideration whether
a mode may not be provided of trying the validity of
will of leasehold lands by a Jury, instead rf its being
decided by the opinion of the Judge of an Ecclesiastical
C..utt, formed upon written depositions.
The expense and vexation now occasioned by the
necessity for obtaining probate of a will or letters of
administration, with a view to the assignment of trurt
terms, and by such probates and letters of administra-
tion, when obtained from a diocess or peculiar jurisdic-
tion, being absolutely void if the land does not lie
within the diocess or peculiar, or if it can be proved
th it the testator or inte•tate, at the time of his death,
had goods to the value ot five pounds in another diocess
or peculiar within the same provirce, have caused very
general complaints, and call loudly for a remedy.
The present mode of marshalling assets in equity, or
of distributing the various sorts ot property of a person
deceased among the different classes of his creditor,
gives rise to long•protracted and hatras►ing litigation;
and it may be fit to consider whether any remedy can
be found short of making real property subject to sim-
ple contract debts, and if not, and if this remedy would
be effectual, whether it may not be our duty to recom-
n end it.

The state of the law respecting the right of a creditnr
who has obtained a judgment for his demand over the
real property of his living debtor, appears likewise very
objectionable, whether regard be had to the compli-
cated and dilatory relief afforded by digit, where an
attempt is made to enforce the judgment, or to the con-
tinuing charge of dormatit judgments, which make the
land often in effect unsaleable. and add to the expense
and risk of every transfer. This is a subject seeming
to us to require our attention, as well as that of the
Commissioners appointed by your Majesty to inquire
into the practice of the Courts of Common Law.

A very serious impediment is occasioned to the
transfer of Real Property from the unlimited lien on
all lends belonging to persons indebted or under obliga-
tion to the Crown. and from there being at present no
means of ascertaining who are so indebted or bound.
or the extent of their liability. We shall strive to devise
a plan by which greater security may be given to pur-
chasers without endangering the rights or remedies of
the Crown.

We have been earnestly requested to consider of some
plan for obtaining and preserving evidence of pedigree.
Since the visitations of the heralds have ceased, this.
as far as public documents are concerned, has depended
entirely upon parish registers of marriages, baptisms,
and burials. But these have been and probably will
continue to be kept very inaccurately ; they give no
certain information* as to the time of birth ; they seldom
contain a description of the parties by which identity
can be established ; and they are liable to the insuperable
objection, that being of an ecclesiastical nature, and
recording only marriages. baptisms, and burials, at
which the clergy of the Established Church officiate,
there is a considerable portion of the population of the
country to which they do not at all apply. A civil re-
gister of births, marriages, and deaths, including all
classes and religious persuasions, and giving the addi-
tions, trades, or professions, and residences of the parties.
seems exceedingly desirable, exists in other States, and
we trust may be established in England.
But no measure has been suggested to us from so
many different quarters, or has been so earnestly pressed
upon us, as a general registry of deeds, whereby it is
contended that every transfer of land, and every encum-
brance upon it. would be placed within the means of
knowledge of every.person having occasion to deal with
te; all rights might be suffered to prevail (as natural
justice requires) according to their priority; the use of
outstanding legal estates, and the expense of keeping
them on foot and transferring them would cease ; the
investigation of titles would be materially abridged and
simplihed, and fraud in all transactions respecting real
property would be effectually prevented. We are aware,
however, of the numerous and weighty obstacles which
present themselves to the establishment of a plan so ex-
tensive, and, in crder to make it effective, so novel in
this country. The experiments which have been tried
in two English counties and in Ireland have been so
imperfect, both in principle and detail, and have keen
so marred by the doctrine of equitable notice, that they
afford no criterion of the utility of the measure, or the
means of accomplishing it. We found that information
upon this important subject must be sought not merely
from the practitioners of English law and from Engle- h
treatises, but from Scotland, where a genera term)
has been long established, which is the great boast of
the law of that country, but from the Continental States,
in many of which a similar institution has been intro-
duced with more or less success. ‘Ve have taken steps
for obtaining this information in the most authentic
shape; and we shall anxiously consider whether the
plan can be safely adopted in a country of so great ex-
tent as England, where transfers of land are more fre-
quent than in any other part of the globe, where the law
of real property must ever remain a peculiar and com-
plicated system, and where the disclosure of private
affairs may be dangerous to commercial credit.
We before stated that we were using our best endea-
vours to ascertain whether a Statute of Limitations may
not be framed for the church, and whether church pro-
perty may not be rendered more beneficial both to the
possessors and to the community. We here expect great
assistance from the answers to the questions which we
have had the honour to address to the Right Reverem:
the Bishops.
We are aware that even the subjects to which we have
now adverted as being under our consideration, form,
as it were, but a second stage in the progress of the in-
quiry committed to us, and that there remain behind
many important branches of the Law which it will be
our duty to investigate—as, for example, the Law or
Guardianship of Infants; the inconvenient and opp:es-
sire restrictions of the jurisdiction of Courts of Justice
over Real Property, in cases where infant heirs are in-
terested ; the mutual rights of proprietors of undivided
interest in land, whether as coparceners, joint tenants.
or tenants in common, and the mode of making par-
tition between them; the Law relating to covenants,
running with the land, and particularly as to the title
deeds of estates; the Law relating to Stamps upoc