By the Court.
The question is, can a feme-covert legally devise, or dispose of real estate by will ? What she may do with respect to personal estate, in certain cases, with the consent of her husband, or without, is not a part of this case, nor determinable on principles, which apply to it.
[189]*189It being well understood, that a right to devise is not a natural, but municipal right, it must, so far as it exists, have a statute or custom for its creation. Has it had such creation in favour of a feme-covert, here, or in the country from which we emigrated ?
For though the common law of England hath not, as such, nor ever had, any force here ; yet, in the progress of our affairs, whatever was imagined at the beginning, it long since became necessary, in order to avoid arbitrary decisions, and for the sake of rules, which habit had rendered familiar, as well as the wisdom of ages matured, to make that law our own, by practical adoption—with such exceptions as a diversity of circumstances, and the incipient customs of our own country, required. The same may be said of ancient English statutes, not penal, whose corrective and equitable principles had become so interwoven with the common law, as to be scarcely distinguishable therefrom.
But does either the statute, or common law of England, recognize the right in question ? The only statutes which bear upon the case, those of 32d and 34th of Hen. VIII., which grant generally the right of devising, expressly except femes-co-vert ; negating, at once, the expediency of extending the right to them» and the fact of their having it before.
\VTth respect to the common law, as it formerly stood, the uniform doctrine of elementary writers, and one which authorities well support, and well account for,, is, that a feme-covert cannot devise—except by special custom : and even such custom has been adjudged ill, on the ground, that it could not have had a reasonable commencement.
Our own statute next to be considered, is, omitting the parenthesis of 1784,—« That all persons of the age of “ twenty-one years, of right understanding and memory, « whether excommunicated or other, shall have full power, [190]*190authority and liberty to make their wills and testaments, “ and all other ¡swí-jJ alienations of their lands and other “ estates ; and fc gb,e tLcii vote, verdict, or sentence in any “ mat'er cause,'’—-Does it create the right of devising,or &i »v declare the age competent for its exercise ? The former cc’sanction has been resorted to, but the latter best comports with the provisions of the statute throughout ; and is, indeed, the only one, that can rescue it from ridicule and absurdity. For, who will say, that all sane persons, twenty-one years old, females as well as males, and femes-evoert as well as femes-soie, are qualified, in all respects, and have plenary authority, for all the acts there specified ? And if not qualified, in all respects, they must be deemed so only in respect of age. Any construction, other than one of these, would be wholly arbitrary.
It may, perhaps, afford further light to trace the statute to its origin, or as far as there are printed documents to guide us.
In 16/2, the laws were collected from their scattered situation through the records, formed into an alphabetical digest, and for the first time printed. They bear the marks of momentary offspring—proceeding from difficulties that were felt, without much provision for such as were likely to occur, or much solicitude about future interpretation.— Among them is the following : “ That all persons of the “ age of twenty-one years, whether excommunicated or “ other, and of right understanding and memory, shall have “ full power and liberty to make their wills and testaments, “ and other lawful alienations of their lands and estates.”
By all persons here, can only be intended all estate-holders. Such only can be the subjects of the power declared, which is to dispose of their estates. Femes-covert were not then estate-holders. For, in the preamble of an act of 1723, it was declared to be (< a general custom,” commencing from the beginning, and which, for the time past [191]*191was to be holden good, “ that the real estate of any person, “ which either by descent cr will, became the estate of his “ daughters, whether they were seised of it at the time of “their marriage, or whether it descended or came to “ them during their coverture, became ihereby the proper “ and sole estate of their husbands ”
Again;—by “ all persons” can only be understood, all such as could alienate other-wise than by will. Such only can be the subjects of the power declared ; for it is to make their wills and other alienations of their lands and estates. Such other alienations of lands and estates, femes-covert, if they had any, could not make before the statute, nor in consequence of it. They are not included in the statute, whatever it may amount to.—But what doth it for any description of persons ■ Does it create the right to dispose cf their estates in the manners mentioned, or, presupposing the existence of such right, only declare at what age there shall be full power for its exercise?
The latter construction will satisfy the words of the statute ; and with it only will comport the clause “ and other lawful alienations of their lands and estates.” For it could not then be intended to create the right of such kind of alienation as was lawful before. Nor, indeed, is it supposabie, that emigrants from England, where the right of alienating in both ways had been very long enjoyed, and who were not civilians to distinguish rights, which looked and felt like natural ones, from such as were strictly so,—that they would ever once doubt of their right to dispose of their estates as they pleased, by will or sale ; so as to require a statute for its creation. But they might doubt, and well doubt, when it would be expedient, in this country, for full age to commence ; which commences at different periods in different countries, and, with respect to devising, did, by reason of local customs, commence at different periods in the country they had left. And it is certain, that with respect to age as a qualification for divers acts, they did early depart from the [192]*192general practice in England, as also at different periods? from their own practice. So that the statute may be well accounted for, regarding it, not as a statute of wills, but of age.
It has, however, two provisions, not yet remarked upon. One includes the excommunicated in the benefits of the act, in common with others—protesting against that civil law, that governed in courts of which there had been too much experience. It denotes the age of the statute, and does little more.
The other provision respects persons under sentence of death, and is that they shall not “ dispose of” their estates. Hut why, it may be asked, this provision, unless the statute had created the right to dispose of them ? The answer is, in the first place, that as the right to sell certainly pre-existed the statute, the malefactor having now the statute age, might alienate, but for this restriction.
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By the Court.
The question is, can a feme-covert legally devise, or dispose of real estate by will ? What she may do with respect to personal estate, in certain cases, with the consent of her husband, or without, is not a part of this case, nor determinable on principles, which apply to it.
[189]*189It being well understood, that a right to devise is not a natural, but municipal right, it must, so far as it exists, have a statute or custom for its creation. Has it had such creation in favour of a feme-covert, here, or in the country from which we emigrated ?
For though the common law of England hath not, as such, nor ever had, any force here ; yet, in the progress of our affairs, whatever was imagined at the beginning, it long since became necessary, in order to avoid arbitrary decisions, and for the sake of rules, which habit had rendered familiar, as well as the wisdom of ages matured, to make that law our own, by practical adoption—with such exceptions as a diversity of circumstances, and the incipient customs of our own country, required. The same may be said of ancient English statutes, not penal, whose corrective and equitable principles had become so interwoven with the common law, as to be scarcely distinguishable therefrom.
But does either the statute, or common law of England, recognize the right in question ? The only statutes which bear upon the case, those of 32d and 34th of Hen. VIII., which grant generally the right of devising, expressly except femes-co-vert ; negating, at once, the expediency of extending the right to them» and the fact of their having it before.
\VTth respect to the common law, as it formerly stood, the uniform doctrine of elementary writers, and one which authorities well support, and well account for,, is, that a feme-covert cannot devise—except by special custom : and even such custom has been adjudged ill, on the ground, that it could not have had a reasonable commencement.
Our own statute next to be considered, is, omitting the parenthesis of 1784,—« That all persons of the age of “ twenty-one years, of right understanding and memory, « whether excommunicated or other, shall have full power, [190]*190authority and liberty to make their wills and testaments, “ and all other ¡swí-jJ alienations of their lands and other “ estates ; and fc gb,e tLcii vote, verdict, or sentence in any “ mat'er cause,'’—-Does it create the right of devising,or &i »v declare the age competent for its exercise ? The former cc’sanction has been resorted to, but the latter best comports with the provisions of the statute throughout ; and is, indeed, the only one, that can rescue it from ridicule and absurdity. For, who will say, that all sane persons, twenty-one years old, females as well as males, and femes-evoert as well as femes-soie, are qualified, in all respects, and have plenary authority, for all the acts there specified ? And if not qualified, in all respects, they must be deemed so only in respect of age. Any construction, other than one of these, would be wholly arbitrary.
It may, perhaps, afford further light to trace the statute to its origin, or as far as there are printed documents to guide us.
In 16/2, the laws were collected from their scattered situation through the records, formed into an alphabetical digest, and for the first time printed. They bear the marks of momentary offspring—proceeding from difficulties that were felt, without much provision for such as were likely to occur, or much solicitude about future interpretation.— Among them is the following : “ That all persons of the “ age of twenty-one years, whether excommunicated or “ other, and of right understanding and memory, shall have “ full power and liberty to make their wills and testaments, “ and other lawful alienations of their lands and estates.”
By all persons here, can only be intended all estate-holders. Such only can be the subjects of the power declared, which is to dispose of their estates. Femes-covert were not then estate-holders. For, in the preamble of an act of 1723, it was declared to be (< a general custom,” commencing from the beginning, and which, for the time past [191]*191was to be holden good, “ that the real estate of any person, “ which either by descent cr will, became the estate of his “ daughters, whether they were seised of it at the time of “their marriage, or whether it descended or came to “ them during their coverture, became ihereby the proper “ and sole estate of their husbands ”
Again;—by “ all persons” can only be understood, all such as could alienate other-wise than by will. Such only can be the subjects of the power declared ; for it is to make their wills and other alienations of their lands and estates. Such other alienations of lands and estates, femes-covert, if they had any, could not make before the statute, nor in consequence of it. They are not included in the statute, whatever it may amount to.—But what doth it for any description of persons ■ Does it create the right to dispose cf their estates in the manners mentioned, or, presupposing the existence of such right, only declare at what age there shall be full power for its exercise?
The latter construction will satisfy the words of the statute ; and with it only will comport the clause “ and other lawful alienations of their lands and estates.” For it could not then be intended to create the right of such kind of alienation as was lawful before. Nor, indeed, is it supposabie, that emigrants from England, where the right of alienating in both ways had been very long enjoyed, and who were not civilians to distinguish rights, which looked and felt like natural ones, from such as were strictly so,—that they would ever once doubt of their right to dispose of their estates as they pleased, by will or sale ; so as to require a statute for its creation. But they might doubt, and well doubt, when it would be expedient, in this country, for full age to commence ; which commences at different periods in different countries, and, with respect to devising, did, by reason of local customs, commence at different periods in the country they had left. And it is certain, that with respect to age as a qualification for divers acts, they did early depart from the [192]*192general practice in England, as also at different periods? from their own practice. So that the statute may be well accounted for, regarding it, not as a statute of wills, but of age.
It has, however, two provisions, not yet remarked upon. One includes the excommunicated in the benefits of the act, in common with others—protesting against that civil law, that governed in courts of which there had been too much experience. It denotes the age of the statute, and does little more.
The other provision respects persons under sentence of death, and is that they shall not “ dispose of” their estates. Hut why, it may be asked, this provision, unless the statute had created the right to dispose of them ? The answer is, in the first place, that as the right to sell certainly pre-existed the statute, the malefactor having now the statute age, might alienate, but for this restriction. Further, if the right to devise, as well as sell, was understood to preexist the statute, as has been shewn probable, then the malefactor, having the statute age, would be understood to be at liberty to alienate either way, but for this restriction. Tliis provision, also, is therefore consistent with the con-struclion assumed.
Subsequent to this statute, though brought forward in the same digest, is another, taking up the qualification of age more extensively. It is, “ That the age for passing away “ of lands, and such kind of heriditaments, or for giving vote, “ verdict, or sentence in any civil courts or causes, shall not u> be under twenty-one years : But in case of guardians, four- “ teen years.” This last act manifestly respects qualifications in point (if age only. And as a further reason for supposing that the other respected that only, they are both, in the revision of 1702, incorporated into one,—as follows :
“ That all persons of the age of twenty one years, and of [193]*193<s right understanding and memory, -whether excommunicated or other, shall have full power and liberty to make “ their wills and testaments, and all other lawful alienations “ of their lands, and all other estates : and for giving vote, “ verdicts, or sentence in any civil courts, or causes.”
Here the predicating words “ shall have full power and “ liberty,” go to the cases enumerated in the last of the two statutes, as well as to those in the first; and as they can only mean with respect to the latter, shall be deemed of compe* tent age, they are restrained to that meaning with respect to the former. The sense thus early,, and thus authoritatively given to the first statute, is conclusive.
The statute of 1702, is the same we have at present, excepting the clause of “ not otherwise legally incapable,” in-* serted in the revision of 1784,—a clause which neither adds nor diminishes,but only expresses what must have always been understood. Taking the statute literally, as it now reads, disabilities other than those arising from defect of age, or from excommunication, are not touched. That arising from cover* ture, of course, is not, nor ever has been removed ¡—-so far as we have yet seen.
It remains only to inquire, has there been, from the early settlement of the state, a practice for femes-covert to devise ; which might serve for a different exposition of the statute, or might, as a custom, have acquired the force of law ?
Of such a practice there are neither memorials nor tradition. And we can not presume from the condition of the early settlers, and still less from their character, that they would have introduced it. They, who could declare to the world, as prefatory to their first code of laws, “ we have en* deavoured not only to ground our capital laws on the word of “ God, but also all our other laws in the justice and equity held [194]*194“ forth in that word, which is a most perfect rulef
There has, indeed, been one ultimate decision, of a divided court, in favour of the right in question, in the case of Kellogg and Adams ; but that decision, we are constrained to say, after much deliberation, was not law.
Whether the refinements of the present age, require a departure from the ancient law upon this subject ; or whether the supposed benefits of a change would countervail its obvious mischiefs, are legislative, not judicial questions.— In this case, the Court is unanimously of opinion, there must be a reversal.
Preface to Slat. edit. 1672.