WILL OR TESTAMENT.

Ant. You will compel me, then, to read the will?
Then make a ring about the corpse of Cæsar,
And let me show you him that made the will.

Julius Cæsar, Act iii. Sc. 2.

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King Richard. Let's choose executors and talk of wills :

And yet not so, for what can we bequeath
Save our deposed bodies to the ground?
Our lands, our lives and all are Bolingbroke's,
And nothing can we call our own but death
And that small model of the barren earth
Which serves as paste and cover to our bones.

Richard II., Act iii. Sc. 2.

So Shakespeare, as in these passages, makes no distinction between the terms Testament and Last Will, but uses them indifferently, or

one for another.

Fourth Cit. We'll hear the will: read it, Mark Antony.

All. The will, the will! we will hear Cæsar's will. Ant. Have patience, gentle friends, I must not read it ; It is not meet you know how Cæsar loved you. You are not wood, you are not stones, but men ; And, being men, hearing the will of Cæsar, It will inflame you, it will make you mad: 'Tis good you know not that you are his heirs ; For, if you should, O, what would come of it!

Julius Cæsar, Act iii. Sc. 2.

Our Common Law calls him heir who succeeds by right of blood to any man's lands or tenements in fee, for by the Common Law nothing passeth jure hereditatis but only the fee; moveables or chattels immoveable are given by testament to whom the testator listeth, or else are at the disposition of the ordinary, to be distributed as he in conscience thinketh meet. -Cowell.

But Shakespeare in this passage evidently makes Antony use the word heir in the sense in which it is used by the civilians, who call heredem, qui ex testamento succedit in universum jus testatoris.

Since the publication of my first attempt to illustrate obscure passages in the works of Shakespeare,* it has been suggested that Shakespeare may have drawn his own Will, and that in disposing of his second best bed with the furniture in these words, 'Item I gyve unto my wief my second best bed with the furniture,' he shows his technical skill, by omitting the word devise, which he had used in disposing of the realty.† This statement has been made in ignorance of the ancient legal signification of the word devise; for although the word devise is now applied by Real Property Lawyers to real property, and

the word bequeath to personal property, yet such distinction was not made in Shakespeare's time. The word devise is used in the disposition of the real estate in Shakespeare's Will, together with the word bequeath, which is not now applied to real estate; moreover, the word devise, in connection with the word bequeath, is applied in another part of Shakespeare's Will to personal property, namely, to the sum of one hundred and fifty pounds.

If the devise be of goods; as when the testator dooth bequeath his signet, his books, or his horse, &c., first to one person, and afterwards to another person: then in case the second legacie be simple (I meane without mention of the former), the former legacie is not taken away, but the two legataries concurring, ought to divide the legacie betwixt them. -Swinburn, 284.

A legacie (otherwise tearmed of our common lawyers a Devise) is a gift lefte by the deceased, to bee paide or performed by the executor, or administrator.-Swinburn, 15.

Suppose that in the testament it is written, that the testator dooth bequeath such landes to such person to have and to holde to him and to his assignes for evermore. Howsoever in this devise there is not any mention of heires, without which worde an estate of inheritance cannot passe, by any deed or gift made whiles a man yet liveth; yet because in testaments, the wil and the intent of the testator is preferred before formal or prescript wordes, an estate of inheritance dooth thereby passe, as if he had made expresse mention of his heires.-Swinburn, 191.

The goodes of the church can not be devised by testament. But the corne growing upon the glebe, and certaine other goods, may be bequeathed. Those thinges which after the death of the testator, descende to the heire of the deceased, and not to his executor, can not bee devised by testament, except in such cases where it is lawfull to devise landes, tenementes, or hereditaments. And therefore if a man seased of landes in fee or fee taile, bequeath his trees growing upon the said land at the time of his death, this devise is not good except as before. Swinburn, 93.

Concerning the second kind of thinges deviseable by testament, namelie goods and chattelles; this may be delivered for a rule: That all manner of goods and chattelles maie be bequeathed or devised by will or testament, certaine cases onelie excepted. Which rule is cleane contrarie to the former of the devise of lands, tenements and hereditaments; for they can not be devised, saving where some custome or statute hath gained libertie, of bequeathing or devising of the same. --Swinburn, 91.

Divisa: A last will or devise of worldly goods.(Cowell.) Notum facio quod apud Waltham feci divisam meam de quadam parte pecuniae meae in hunc modum Testamen. Hen. II. apud Gervas Dorobern. sub ann. 1182.

The word devise cometh of the French Divisir, separare, or deviser to confer unto, and is properly attributed in our Common Law to him that bequeaths his goods, by his last will and testament in writing: and the reason 'DIVIDE ME LIKE A BRIBE BUCK.' 17

is, because those that now appertain only to the devisor, by this act are distributed into many parts. -Cowell.

XIII.

Therein three sisters dwelt of sundry sort,
The children of one syre by mothers three;
Who, dying whylome, did divide this fort
To them by equall shares in equall fee.

SPENSER'S Faerie Queene, Book ii. Canto 2.

And I think Shakespeare understood the precise legal signification of this term, for he makes Falstaff say in the 'Merry Wives of Windsor,' Act v. Sc. 5

Divide me like a bribe buck, each a haunch: I will keep my sides to myself, my shoulders for the fellow of this walk, and my horns I bequeath your husbands. Am I a woodman, ha? Speak I like Herne the hunter? Why, now is Cupid a child of conscience: he makes restitution. As I am a true spirit, welcome!

Shakespeare may, in this passage, play upon the word woodman, using it in the sense of a forester or huntsman, in connection with Herne the hunter, and in the sense of a mad or wood man in connection with the words divide and bequeath, because, as Swinburn says, in his Briefe Treatise of Testaments and Last Willes, 'Madfolkes and lunaticke persons, during the furor or insanitie of minde, cannot make a testament, nor dispose