Page images

unsatisfactory even to the people of that time. The celebrated expression in the case of Wynfacd and Leofwine is used to prove this. It is as follows: " Then would have followed the whole full oath of both men and women; but the Witan who were there said it would be better to omit the oath rather than give it, because after the oath there could be no amicable arrangement:" Essays on Anglo-Saxon Law, p. 356; Cod. Dip., DCXCIII.

The large number of suits, however, settled, and this suit in particular, do not show, it seems to us, that the methods of Anglo-Saxon legal procedure were unsatisfactory to the people, but that in many instances, is carried to their legitimate conclusion, the state would not have accomplished its primary object in interfering between the disputes of private individuals. That primary object is not the administration of justice, the determination of the right between man and man, but the final settlement of a controversy which would otherwise be continued indefinitely by personal altercation and violence. When the assembly, perceiving, as it must often have perceived, that the judgment of the court in strict legal form would not have pacified the disputants and ended the quarrel, then the friends of both parties stepped in and effected a compromise. In doing this, they did not attempt to reach an equitable conclusion, as would have been the case to-day, but a conclusion which both parties would abide by; or, perhaps, that which was more likely to occur—a conclusion which the stronger party would submit to, when such party would not have abided by a decision entirely against him.

Finally, one word as to the technicality of the procedure; that if thc defendant, in denying the claim of the plaintiff, stumbled or hesitated, or did not deny in the strict formula prescribed by law, he lost his case. This strictness, which seems to us at first only the dictate of imaginary and useless consistency, was, we believe, in fact necessary to obtain any regular administration of justice at all among not only the Saxon, but any primitive people. If any latitude had been allowed to the defendant in denying, or the plaintiff in stating his claim, a slight variation might have brought forth a ques

tion as to whether the denial was a denial or not. Now, questions of this kind the Saxon tribunal, as the primitive tribunal of all peoples, was wholly incompetent to decide. The strictness and technicality of the rules were necessary in order to avoid the possibility of all such nice questions as whether a fact in issue had been raised.

We have said these few words in answer to a common criticism of the institutions of a past age. Its value, perhaps, is slight, except the ethical one, that we should not misjudge those who have gone before us. For, if we are careful to judge from the standpoint of past conditions, past ideas and institutions, our descendants, following our good example, will be more lenient than they otherwise would be with respect to some of our own ideas and actions.

[ocr errors]

The Annotations are prepared by the following Editor and Assistants : Department of PRACTICE, PLEANING AND EVIDENCE.

Hon. George N. Dallas, Editor. Assistants : Andemus Stewart,

Henry N. Smaltz, John A. McCarthy, William Sanderson Furst Department of COXSTITUTIONAL LAW.

Prof. Christopher G. Tiedeman, Editor. Assistants : Wm. Draper

Icwis, Wm. Struthers Ellis. Department of MUNICIPAL CORPORATIONS.

Hon. John F. Dillon, LL. D., Editor. Assistant : Mayne R. Long

streth. Department of Equity.

Richard C. Mc.Murtrie, LI.. D., Editor. Assistants : Sydney Department of Torts.

Melrulle M. Bigelow, Esq., Editor. Assistants : Benjamin H.

Lowry, Alex. Durbin Lauer, Patrick C. B. O'Donovan. DEPARTMENT OF CORPORATIONS.

Angelo T. Freedley, Esq., Editor. Aseistants : Lewis Lawrence

Smith, Clinton Rogers Woodruff, Maurice G. Belknap, H.


Charles F. Beach, Jr., Esq., Editor. Assistants : Lawrence God.

kin, Owen Wister, Victor Leovy, Cyrus E. Woods. Department of ADMIRALTY.

Morton P. Henry, Esq., Editor. Assistant: Horace L. Cheyney. Departnicnt of COMMERCIAL Law.

Frank P. Prichard, Esq., Editor. Assistants: H. Gordon Mc

Couch, Chas. C. Binncy, Chas. C. Townsend, Francis H.

Boblen, Oliver Boyce Judson. Department of INSURANCE.

George Richards, Esq. Editor. Assistants : George Wharton

Pepper, Luther E. Hewitt, Samuel Kaho Louchein. Department of CRIMINAL LAW AND CRIMINAL PRACTICE.

Prof. Geo. 8. Giraham, Editor. Assistants : E. Clinton Rhoads,

C. Percy Wilcox. Department of Patent Law.

George Harcink, Esq., Editor. Assistant : Hector T. Fenton, Department of PROPERTY.

Hon. Clement B. Penrose, Editor. Assistants : Alfred Roland

Haig, Wm. A. Davis, Jos. T. Taylor. Department of MEDICAL JURISPRUDENCE.

Hon. Marshall D. Ewell, LL. D., Editor. Assistants: Thomas

E. D. Bradley, Milton O. Naramore.

Ilon. Wm. N. axhman, Editor. Assistants: Howard W. Page,

Charles Wilfred Conard, Joseph Howard Rhoads, William

Henry Loyd, Jr., Edward Brooks, Jr., Samuel D. Matlack. Department of TRUSTS AND COMBINATIONS IN RESTRAINT OF TRADE. H. La Barro Jayne, Esq., Editor. Assistants: George S. Patterson,

Charles F. Eggleston, 778




Assisted by





The testator by his will devised a portion of his real estate to his son. and other portions to his daughter. After the execution of his will be conveyed to his daughter part of the real estate he had devised to his son. On bill filed by the son to compel the daughter to elect whether she would take under the deed or under the will; Held (1), That the couveyance by the testator, after the execution of his will, of the lands devised to the son, operated as a rerocation of the devise to the son. (a) That the daughter was not under an obligation to make an election between the conveyance to ber by deed, and the benefits to be derived under the will.


PROPERTY. While this case presents no very difficult or novel question, it contrasts clearly the two doctrines, of equitable election and what is known as the "revocation" of a devise, by the subsequent alienation of the property devised; and illi:strates happily the nature of each of these doctrines.

The object of this annotation will be to examine into the present state of the law in America, as regards the effect pro duced upon devises by subsequent dealings, on the part of the testator, with the devised property. "Reported in 29 Atl. Rep. 187.

The prccisc point of the principal case was decided, in South Carolina, as long ago as 1847. in the case of Thompson 1. Thompson, ? Strob. 48. There, the testator, long after the date of his will. conveyed land therein devised to A, to B. who was also a devisee under the will; and it was held that the testator thereby gave to B the land in addition to that given by the will, and that the doctrine of clection did not apply. As quoted in the principal case (p. 190) the court there said, • When the testator gives his own estate to one person, and the estate of that person to another, the intention is manifest that the second devisce shall have the estate of the first, and that intention creates a condition that the first devisce shall not tüke the estatc given to hini unless he relinquish his own cstatc to the person to whom the testator has devised it. If, in this case, the testator had first conveyed the plantation to the defendant, and afterwards devised it to thc plaintiff, the defendant could not take by the convcyance without defcating the devise to the plaintiff. To take his own estate by the clecd, and, in addition, claim what was given by the will, would be against the intention of the testator; and the defendant would be put to an clcction, either to take under the deed, and relinquish his claim under the will, or to take under the will, and relinquish to the devisee the plantation claimed by the deed. But the conveyance to the defendant was made after the date of the will. By it the devise to the plaintiff was revoked, with the samc cffcct as if the plantation had been devised to the defendant by a codicil. It was the. intention of the testator that the defendant should take both under the deed and under the will, and there is no subject for clcc

At the outset it scems imperative, in the cause of clearess and consistency, to quarrel with the common nomenclature of the doctrine which is to be considered.

The error, if error it be, dates far back; for, in the earliest reported decisions, there are numerous loose cxpressions to the effect that alienation or other dealing with the property devised effected a revocation of the will: Powell, 377; Dister

Dister, 3 Lev. 108; Cotter v. Layer, 2 P. Wms. 623;


« PreviousContinue »