DEVISE, in English law, the conveyance of land by will. As personal property or chattels is said to be bequeathed, so lands are said to be devised. It is said, Co. Litt. 111 b. n. 1, that, under the Saxon and Danish rule in England, the owners of land were entitled to convey their lands by will. It is certain that so soon as feudal customs were established in this country, the testamentary power over land ceased; and from the conquest to the reign of Edward IV., this species of property could be transferred by conveyance inter vitas only; but•during the' reign of the latter monarch, a new mode of transfer began to he adopted, called a conveyance to. uses.(q.v.). By means of this species of conveyance, a party wishing to convey land otherwise than the common law allowed, actually conveyed the land to another person, to such uses as he should appoint. The equity courts then regarded the party in whose favor the conveyance had been made as a mere trustee, and obliged him to relinquish the land in favor of any one whom the original owner might appoint. The power of appointment thus remain o- in the owner might be exercised by will. By a statute of 27 Henry VIII., this modo of passing land by will was abolished; but, five years after, by 32 hIenry VIII. e. 1, followed by 35 Henry VIII. c. 5, Awns enacted that all persons having estates in fee simple should have power to devise the whole of their socage (q.v.) lands, and two thirds of their land holden by knight's service, (q.v.). Finally, by 12 Charles II. e. 24, tenure by knight's service was abolished, and converted into socage; so that the power of devis ing land was extended to all lands except copyholds (q.v.). But to the general rule that laud could not pass by will, there had always existed an exception in favor of lands, which, by the custom of the manor, had always been so conveyed; and this mode of devise by custom continued to exist even after the statute of wills of Henry VIII. For this practice there were two grounds: 1. That the power of devising lands
was limited by statute to two thirds of the land held by knight's service, whereas devise by custom might carry the whole land. 2. In order to an effectual devise of ]and under the statutes of Henry VIII., it was necessary that there should be a will in writ ing, while a verbal or nuncupative will would carry laud by custom. By 29 Charles II. c. 3, the statute of frauds (q.v.), this distinction was removed, and it was enacted. that a will in writing, attested by three or four witnesses, should be necessary for conveyance of all lands. It must be observed that this power of devising lands was confined to lands belonging to the testator at the time of making his will, so that after-acquired lands would not pass by it; and also, that religious bodies and other corporations were, by the law of mortmain (q.v.), restrained front being devisees of land. Thus stood the low at the period of the recent wills act, 7 Will. IV., and 1 Viet. e..2G. By this statute, devises of land are placed on the same footing as to execution as °thus wills, and will carry all landed estates belonging to the devisor at the time of his death. See WILLS, and generally on this subject, see Jarman on. Wills.
In Scotland, it is usual to convey lands by deed, which has, however, precisely a similar effect to a will, so that the difference between English and Scotch wills is chiefly formal. In foreign countries the power is subject to various rules differing from those in force iu England. Hence, where a person resides in one country, and is possessed of landed property in another, questions of jurisdiction frequently arise as to the law which shall govern the power of disposal. In these cases, it is now a recognized principle that the lex ref sitce is that which must prevall.—See Story's Conflict of Laws, p. 719, at seq.