Chapter the twenty third.
Of ALIENATION by DEVISE.
THE laſt method of conveying real property, is by deviſe, or diſpoſition contained in a man's laſt will and teſtament. And, in conſidering this ſubject, I ſhall not at preſent enquire into the nature of wills and teſtaments, which are more properly the inſtruments to convey perſonal eſtates; but only into the original and antiquity of deviſing real eſtates by will, and the conſtruction of the ſeveral ſtatutes upon which that power is now founded.
It ſeems ſufficiently clear, that, before the conqueſt, lands were deviſable by will[1]. But, upon the introduction of the military tenures, the reſtraint of deviſing lands naturally took place, as a branch of the feodal doctrine of non-alienation without the conſent of the lord[2]. And ſome have queſtioned, whether this reſtraint (which we may trace even from the antient Germans[3]) was not founded upon truer principles of policy, than the power of wantonly diſinheriting the heir by will, and transferring the eſtate, through the dotage or caprice of the anceſtor, from thoſe of his blood to utter ſtrangers. For this, it is alleged, maintained the ballance of property, and prevented one man from growing too big or powerful for his neighbours; ſince it rarely happens,,
