Seventhly in respect of the manner and â—rame of the words used in the raising of uses and what manner of uses may be made or not making and raising of uses wherein there is much regard to the minde and intention of parties For if one covenant in consideration Coo. 3. 91. of 20 l. paid him by I S to stand seised of land to the use of I S and his heires or if one covenant that I S and his heires shall have his land if this Deed be inrolled this is a good bargain and sale to raise the use and will doe it as well as when it is made by the words bargaine and sell So if one for good consideration by words Coo. 2. in Sir Rowland Hay wards case Wards versus Lambert Co. B. Pasche 37 Eliz. of Demise and Grant make a Lease of his land for a term of years hereby the use will rise to the Leassee as well as if the Lease were made by the words bargaine and sell Et sio de similibus And yet if one by words of bargaine and sell convey his land to his son Inrolment no use will arise by this except there be money paid and the Deed be inrolled And if one in consideration of money grant his land to his sonne or any other by the word enfeoffe no use will rise by this unlesse Livery of Seisin be made thereupon because the intent of the parties in these cases doth appeare to be to passe it in another manner And if in the last case Livery of Seisin bee made Resolved in Stiles case 3â— Eliz. then the use shall be guyded by Law that is if nothing be given it shall be to the use of the Feoffor and not amount to a limitation of use to the sonne * 21 H. â— 18. Plow 308 301. Broo. Feost mental use 16. If one covenant with his sonne that his land shall remaine or that his land shall discend to him this is a good covenant to raise the use according to the limitation And yet if one covenant with his sonne upon his marriage that his land shall remaine revert or discend to his sonne in Fee or in Fee-Taile by this no use will be raised because it is so incertaine but perhaps this may amount to a covenant whereupon the sonne may have an Action of Covenant If I covenant for me and my heires that Covenant I and my heires and all others that are seised shall bee thereof seised to the use of c. this is a good covenant to raise the use albeit it be in words of the future tense If I covenant with my Dyer 374. eldest sonne and strangers to convey my land to the same strangers to the use of my selfe for life and after of my sonne in Taile c. and I grant by the Deed that the said persons seised of the said land shall be from thence seised to the said uses and none other use and no other conveyance is made it seemes this is sufficient to raise the use And yet if I be seised of land in Fee and Covenant with I S that A B and C D and their heires shall stand and be seised of this land to the use of c. it seemes this is not a good covenant to raise the uses If a Feoffment or other conveyance Coo. 1. 120. be made to the use of the Feoffor and the heires of his body on the body of M the wife of S T and for default of such issue to the use of him and the heirs of his body of S the now wife of W K and for default of such issue then to the use and performance of his last Will for 10 yeares immediatly after his death and after the term ended to the use of the Feoffees and their heirs during the life of W eldest sonne of the Feoffor and after his death to the use of the first issue male of the body of the Feoffor lawfully begotten and the heires of the body of such first issue male and for default of such first issue male to the second issue male c. in the same manner these are good limitations of uses So if a use be limited to I S for life without impeachment of waste and after to the use of Coo. 1. 90. B and C their Executors and Administrators for the term of twenty years and after to the use of C and the heires males of his body c. these are good uses So if a use be limited after this manner Coo. 6. 18. Lit. Sect. 462. 403. viz. to the use of a mans last Will and Testament or to the use of such person and persons and of such estate and estates as he shall limit and appoint by his last Will and Testament or to the use of such person and persons or to such uses and purposes as he shall by any writing under his hand and seale declare and appoint these are good limitations If I covenant with another in consideration of Coo. 1. 176. blood c. that I will stand seised of my land to the use of such of my sonnes or such of my cousins as the Covenantee shall name in this case after a nomination made the use will rise well enough But if I for and in consideration of 10l or the like good consideration Incertainâ—y covenant to stand seised of land to the use of such persons as the Covenantee shall name in this case albeit the Covenantee doe nominate some of my cousins or blood yet no use will rise by this for the incertainty of it If a Feoffment or other conveyance be to the use of I S and his heires provided that if the Foeffer pay 10l at such a day that then it shall be to the use of the Feoffer and his heirs this is a good limitation and the use will rise accordingly A use may be limitted to a woman durante viduitate sua and this Coo. 4. 3. is good If a man bee seised of two Manners and covenant to stand Coo. 11. 23. seised of the same to the uses following viz. of the one to the use of the Covenantor for his life and after to the use of his wife for life and after to the use of his eldest sonne in Taile c. And for the other Mannor to the use of his second son in Taile c. these are good limitations and the uses will rise accordingly If a man seised of land in Fee agree with another that a Fine Coo. 2. 69. 70. shall be levied of it and that the same shall be to the uses following viz. that I S the Conusor shall have one yearly â—ent of 50 l. during his life to be issuing out of the same land and as touching the land charged with the rent c. to the use of I D the Conusee untill default of payment of the said yearly rent and then to the use of I
body or the or his heires females of his body by this the grantee hath an estate taile So if ands be given to a man to have and to hold to him and the heires males or to him and the heires females of his body begotten in both these cases it is an estate tail If lands be given to a man his his wife to have and to hold to them Lit. idem Co. 1. 140. Co. super Lit. 20. Co. 7. 41. and the heires males or to them and the heires females of their two bodies begotten by this they both have an estate taile And if lands be given to them the heires males or heires females of the body of the husband begotten on the wife by this he hath an estate taile his wife an estate for life only And if lands be given to A to have and to hold to him and his heires on the body of B begotten by this A hath an estate taile and B hath nothing So if lands be given to a man and his wife to have and to hold unto them and the heires he shall beget on her body by this they have an estate taile in them both If lands be given to a man and his wife and the heirs of the body of the husband by this the husband hath an estate in generall taile and the wife but an estate for life If lands be given to him to have and to hold to him and his heires he shall beget on the body of his wife by this he hath an estate taile and she no estate at all If one give his land to his daughter or Cousin in Frankmariage Lit. Sect. 17. by this they have each of them an estate taile without any word of heires or heires of body c. If one give lands to B and his heires to have and to hold to B Co. super Lit. 21. Co. 7. 41. 5 H. 5 6. and his heires if B have heires of his body and if he die without heires of his body that it shall revert to the donor by this B hath an estate taile So if one give lands to B and his heires if he have issue of his body by this he hath an estate taile So if lands be given to B to have and to hold to him and his heires provided that if he die without heire of his body that the land shall revert So if lands be given to A B uxori ejus hered eorum aliis hered ipsius A si dict'hered de dict' A B exeunt ' obierunt sine herede de se c. by this they have an estate taile And so in all such like cases where after a limitation of a feesimple these or such like words are added viz. that if he die without heires of his body the land shall revert for in all these cases the habendum is construed to be a limitation or declaration what heires are meant before If lands be given to A and B a young man and maid unmaried to have and to hold to them and the heires of their two bodies Co. super Lit. 26. Plow 135. by this each of them hath an estate taile and if they mary their heires may inherite it If lands bee given to the sonne to have and to hold to him and Co. super Lit. 7. Co. 8. 87. Ass Pl. 47. 5 Ass 14. his heires of the body of his Father by this the sonne hath a fee-simple But if the words bee to have and to hold to him and the heires of the body of the Father engendred by this it is an estate taile in a deed as it is in a Will And if the Father be dead the Law Will. is so also but it seems the sonne shall have by this only an estate for life except he be issue in taile to his father per formam doni So if there bee grandfather father and sonne and the father dieth and lands be given to the son to have and to hold to him and the heires of the body of the grandfather this is an estate taile in the sonne but neither the father nor the grandfather have either of them any estate in these cases If lands be given to I S and the heires of the 12 H. 4. 1. body of his wife being dead begotten by this I S hath an estate taile If one grant lands to I S to have and to hold to him and the Co. super Lit. 385. heires of his body issuing the remainder to I D and his heires in forma predicta by this I S and I D after him have each of them an estate taile If one grant lands to A to have and to hold to him for life the Co. 2. 91 super Lit. 22. 39. Ass Plow 20. remainder to the first sonne of A and the heires males of the body of that first sonne by this the first sonne hath an estate in taile and A his father but an estate for life only But if lands be granted to A for life the remainder to the heires of the body of A by this A hath an estate taile in him And if lands be given to a man and his wife to have and to hold to them and one heire of their bodies lawfully begotten and to one heire of the body of that heire by this there is an estate taile made yet so as it shall last only during the lives of those two heires If one grant lands to another to have and to hold to him and to Co. super Lit. 26. his heires of the body of such a woman lawfully begotten by this he shall have an estate taile for begotten shall be intended by the donee on that woman If there be husband and wife and they have issue a sonne and Co. super Lit. 26. daughter and lands are given to the wife to have and to hold to her and the heires of her late husband on her body begotten by this the wife hath an estate for life and the son an estate in taile and if he die without issue it shall goe to his daughter per formam doni If lands be granted to the husband of A and wife of B to have Co. super Lit. 20. and to hold to them and the heires of their two bodies by this they have each of them an estate in taile in them for there is a possibility that one husband and wife may dye and then the other husband and wife may intermary If there be father and sonne and lands are given to the father 12 H. 4. 3. Dyer 247. to have and to hold to him and the heires of the body of his son by this the sonne hath an estate taile but the father as it seemes but an estate for life If lands be given to the mother for life the remainder to her son Lit. Sect. 352. and the heires of the body of his father on her begotten the father being dead by this the son
hath an estate taile If lands be granted to I S to have and to hold to him and the 12 N. 4. heires he shall happen to have of his wife by this he hath but an estate taile and no feesimple and his wife hath no estate at all If lands be granted to I S and the heires that the said I S shall Co. super Lit. 20. lawfully beget of his first wife and he hath no wife at the time of the grant by this he hath an estate taile If A have issue by B his wife C a sonne D a daughter and A Co. super Lit. 26. die and lands are granted to B to have and to hold to her and to the heires of A her late husband on her body begotten in this case and by this deed C hath an estate taile the woman hath only an estate for life and if C die without issue D his Sister shall have the land per formam doni But if one grant lands to A late wife of I S to have and to hold to the said A and the heires of I S on the body of the said A begotten in this case the son and heire shall take no estate by the grant And the same construction shall be upon the same words in his Will Will. If lands be granted to the husband and wife to have and to hold Co. super Lit. 26. to them and the heires of the body of the surviver of them by this the survivor shall have an estate taile after the death of the other If lands be granted to I S to have and to hold to him heredibus Co. super Lit. 20. de carne sua or heredibus de se or heredibus quos sibicontigerit in all these cases I S hath an estate taile and no more If lands be granted to husband and wife to have and to hold to Co. super Lit. 28. him and the heires of the body of the husband the remainder to the husband and wife and the heires of their two bodies begotten this remainder is void and therefore by this the husband hath an estate in taile and the wife a joint estate for life with her husband and no more If lands bee granted to I S and his heires of the body of Co. 1. 140. Jane a Noke begotten by this I S hath an estate taile and no more If lands be granted to I S heredibus de corpore procreatis by this the heires that shall be begotten afterwards shall take And Co. super Lit. 20. if lands begranted to I S heredibus de corpore procreandis by this the heires of his body before begotten shall take per formam doni as well as those that shall be begotten afterwards If one grant to I S that if he and the heires of his body bee not Co. super Lit. 146. yearely paid 40. that hee or they shall distraine in the lands of the grantor by this the grantee hath an estate in taile in the rent as if he grant to I S that if he and his heires be not paid c. that he or they shall c. he hath a feesimple in the rent For life If one give or grant land to another to have and to hold to him Lit. Sect. 283. 285. Co. 8. 85. 96. 2. 24. Finches Law 60. Co. super Lit. 9. Dyer 307. Co. 7. 23. or to him and his assignes and say not how long nor for what time and the grantor make livery of seisin according to the deed by this the grantee hath an estate for his owne life But no livery of seisin be made no estate at all but an estate at will doth passe by this deed And if he that doth grant the land be but a lessee for years of the land and he make no livery of seisin upon the grant by this his terme of years and that estate which he hath is granted But if he make livery of seisin upon the grant then an estate for the life of the grantee will passe and it is a forfeiture of the estate of the lessee for Forfeiture 17 Ass Pl. 17. years of which he in reversion may take present advantage And if one grant to another Common in his land when he doth put in his owne beasts or Estovers in his Manor when he commeth there and say no more by this it seemes the grantee hath an estate for life If one grant land to I S to have and to hold to him or his heirs Co. 5. 112. super Lit. 8. in the disjunctive this is but an estate for life and no more So if one grant lands to I S to have and to hold to him and his heire in the singular number by this I S hath only an estate for life and no feesimple If one bargaine and sell land to another for money and limit no Co. 1. 87. 130. Plow 539. time and expresse no estate by this the bargaine shall have only an estate for life But otherwise it was before the Statute of Uses for then it had been a fee simple If lands be granted to I S for life and after to the next heire Co. 1. 66. male of I S and the heires males of the body of such next heire male by this I S hath but an estate for life But if it be to the next heires males of I S it is an intaile If one grant land to I S to have and to hold to him in fee 20 H. 6. 33. simple or in fee taile without saying to him and his heirs or to him and his heires males or the like this is but an estate for life and no more So if one grant land to I S to have and to hold to him and his feed or to him and his issues generally without more Co. super Lit. 8. 20. words by this is made only an estate for life But in the construction of a Will the law is otherwise in most of these cases Will. If lands be granted to two heredibus without this word Suis 20 H. 6. 35 by this they have an estate for their lives and no longer If one grant lands to I S to have and to hold to him and his Co. 5. 112. 1. 140. heires for his owne life or for the life of I D by this I S hath an estate for life and no more If one grant lands to A and B Habendum sibi suis omitting Co. 4. 29. super Lit. 1. 8. all other words or to have and to hold to them and their assignes by this they have an estate for life only So if lands be granted to any naturall person to have and to hold to him and his Successors by this he hath only an estate for his life If one grant his lands to I S to pay his debts to have and to Co. 8. 96. hold to him generally without limiting
the heires of his body begotten on the wife he shall first mary or To have and to hold to him and his wife he shall first mary and the heirs of their bodies begotten in these cases the husbands have the whole estate and the wives nothing at all But Use otherwise it is it seemes when the estate is limited by way of use to a man and his wife that he shall afterwards mary for by this it seemes the wife shall take also If lands be granted to A a maried man and to S a maried wife 15 H. 7. 10. and to the heirs of their bodies engendred by this they have each of them an estate taile presently executed and whiles the wife of the husband and the husband of the wife live they shall hold it for their lives and if they happen to die and these to intermary and have issues their issues shall have it according to the intaile If lands be granted to A and B To have and to hold to A for Dier 126. 56. When the Habendum shall be said to be repugnant and void And when not but shall controll divide or expound the premisses life the remainder to B in fee by this A shall have the whole for his life and B the feesimple afterwards As touching this matter these differences are to be taken Co. 2. 23. 8. 56. Perk. Sect. 181. 14 H 8. 14. Co. super Lit. 183. Between things that are granted and between the estates When the things that are granted are such as lye in grant and take effect by the delivery of the deed only without any ceremony or take effect by the same ceremonie and when not but another ceremony is required to the perfection of the grant and estate And when there is an expresse estate made by the deed in the Premisses thereof and when but an implied estate only as for examples If one grant land rent common or any such like thing to one and his heires by the Premisses of the deed To have and to hold to him for life or To have and to hold to him and to his assignes without more words in this case the Habendum is repugnant and void and by this the grantee shall have an estate in feesimple if livery of seisin and atturnment as the case doth require be duly made for otherwise no estate at all but at will will passe So if a man grant a rent or any such like thing that lieth in grant to one and his heires To have and to hold to him for years this is a void Habendum and the grantee shall have the feesimple But if a man grant land to another and his heires To have and to hold to him for a certaine number of years in this case whether he make livery of seisin or not it is a good Habendum and by this the grantee shall have an estate for so many years and no more So if one grant land rent common or any such like thing to one in the Premisses of the deed without limitation of estate which in judgement of law is an implied estate for life To have and to hold to him for a certain number of years or at will this Habendum is good and shall stand with the Premisses and qualifie it and by this the grantee shall have but a lease for years or at will as the Habendum is And if one grant land by the Premisses Co. 8. 154. 21 H. 6. 7. Co. super Lit. 20. Dier 126. per curiam in Thurmans case Pasc 16 Jac. B. R. 21 H. 6. 7. of a deed to one and his heires of his body To have and to hold to him and his heires this Habendum shall stand and this shall be taken an estate taile and a feesimple expectant So vice versa If land be granted to one and his heires To have and to hold to him and his heirs of his body this shall be construed an estate taile and a feesimple expectant and so both shall stand together If lands be given to B and his heirs To have and to hold to B and his heires and if he die without heires of his body that it shall Co. super Lit. 21. revert to the donor it seemes this is a feetaile only and no feesimple expectant Voluntas donatoris in carta doni sui manifeste expressa observanda est If a lease for years be made of land and then the lessor by the premisses of the deed granteth the land to another To have and to Co. 10. 107. 108. hold the reversion of the land to him c. for life this Habendum shall stand So if by the Premisses of the deed the reversion be granted To have and to hold the land it selfe this is good and both shall stand together but nothing is granted in either case but the reversion If the next Advowson of a Church be granted to three To have Dier 304. Co. 5. 19. to hold to them and either of them jointly and severally this is joint and the Habendum is void * Co. 2. 55. And yet if one grant land to two by the Premisses of the deed To have and to hold to one of them for Super Lit. 183. Dier 106. life the remainder to the other for life this is not repugnant but shall stand together and make the estates severall and in remainder one after another So if a lease be made to two To have and to hold the one moity to the one and the other moity to the other by this they have severall estates Expressum facit semper cessare tacitum If a man have a lease for years of land and he reciting this by Dier 272. Plow 520. the Premisses of the deed doth grant all his estate in the land To have and to hold the land or the terme after his death or for part of the time only in this case the Habendum is void and the whole estate doth passe immediatly by the premisses If a tenant for life surrender a moity of his land and the lessor Dier 256. grant it all to a stranger To have and to hold the one moity for life and the other moity for 40. years after the death of the tenant for life this Habendum shall stand and enure according to the grant If a man seised of land in fee make a lease for life of it to one Curia pas 7 Jac. Co. B. and after grant the reversion of it to another To have and to hold the reversion and the tenements aforesaid cum post mortem forisfact ' c. vacare acciderit in this case the Habendum and premisses may stand together It is usuall in the Habendum of a deed to set down to what use the party to whom the deed is made shal have the thing granted But touching this and the matters that doe concern uses see Vse infra at large And see also more for the Exposition of Deeds
in Testaments Numb 8. Grant Numb 4. Leases cap. 14. Numb 4. And here note that parol-agreements and conveyances Note have the same construction for the most part made upon them as are made before upon deeds And therefore if a man by word of mouth without any writing grant all his lands in Dale to I S To have and to hold to him for life but doth not say for whose life this shall have the same construction as such a grant made in writing hath This is alwaies taken most in advantage of the feoffee grantee Co. 5. 111. 10. 106. 8. 71 Co. super Lit. 47. 213 214. lessee c. and against the feoffor grantor lessor c. and yet so as In the reservation of rent And how that shall be taken the rent be paid during the time And therefore if the reservation be only to the feoffor grantor c. and the deed doe not say also to his heires executors c. this reservation shall continue only for the life time of the grantor and shall determine with his death And so also it is where the reservation is to the feoffor or his heires in the disjunctive for in this case the rent shall continue only during the life of the grantor And yet if one make a lease for years rendring yearly during the said terme to the lessor or his heirs or executors this is a good reservation during all the terme by reason of these words during the terme So if the feoffor or lessor be seised in fee and make a feoffement in fee or lease for life or years rendring rent to the feoffor or lessor or his executors or assignes in Plow 171. 21 H. 7. 25. 27 H. 8. 19. Dier 45. this case the rent shall continue only for the life of the lessor But if the reservation be to the feoffor or lessor his heires and assignes in the copulative or in the disjunctive to him or his heires or to him and his successors if it be the lease of a Corporation during the terme then all the assignees of the reversion shall enjoy it And if the reservation be thus yeelding and paying so much rent without any more words this shall be taken for all the time of the estate and shall goe to him in reversion accordingly And if the reservation be rendring so much rent during the said terme and doth not say to whom in this case it shall be construed to be to him that hath the reversion and accordingly it shall be paid and shall continue during the term * So held in the case of Bland M. 8 Car. B. R. But if A be seised of land in fee and make a lease for years of it rendring rent to A without saying To his heires c. during the said terme this rent shall continue only during the life of A and no longer And yet if A be possessed of a terme only and make an under-lease or assignement with such a reservation Quere If the reservation be thus Yeelding and paying 20 s. during the said 27 H. 8. 19. terme omiting the word yearly this shall be taken to be not once only but yearly during the terme and accordingly it must be paid f Pas 21 Jac. Hudson Brent B. R. And if a lease be made for years rendring in every middle of the yeare quolibet medio Anni 20l. this shall be paid during the term If one by deed indented grant lands to A To have and to hold Co. 10. 107. to him for life the remainder to B and the heires of his body and for default of such issue to remaine to D in taile or for life yeelding therefore yearly c. in this case the reservation shall extend to all the estates If a lease be made the 10th day of August rendring rent at our Dier 130. Co. 5. 111. super Lit. 217. Lady day and Michaelmas in this case albeit our Lady day be first named yet the first payment shall be at Michaelmas next after the making of the deed If the reservation be at Michaelmas or within 20 daies after in Per Williams Yelverton Iust Ch. Iust contra 9 Jac. B. R. this case the 20th day shall be taken exclusive But if the rent be to paid at Michaelmas or by the space of 20. daies after in this case the 20th day shall be taken inclusive If a lease be made in December from the Nativity of Christ next for one yeare with this addition Et si in fine dicti Anni ambae partes Co. 10. 106. agrearent quod eadem dimissio foret renovata tunc habend tenend premissa dicto I S the lessee ab post dictum festum tunc proxim sequend usque finem trium Annorum Reddendo inde Annuatim durante dicto termino dict W S. c. in this case the reservation shall relate to both the terms and the rent shall be paid the first yeare although they doe not agree to renew the lease If two Jointenants by deed poll or by word make a lease for Co. super Lit. 214. life reserving a rent to one of them this shall goe to them both So if one of them be tenant for life and the other in fee and they joine in a lease for life or gift in taile reserving a rent the rent shall enure to them both But if tenant for life and he in reversion joine in a lease for life or gift in taile by deed reserving a rent the rent shall enure to the tenant for life only during his life and after to him in reversion If two tenants in common make a lease of their land rendring Plow 171. 289. Co. 10. 106. 20 s. rent this shall be but one 20 s. and not two 20 s. So if the lease be rendring a Hawke or a Horse by this they shall have but one Hawke and one Horse and not two Hawkes or two Horses as it shall be in cases where they doe joine in the grant of such things out of their land If one make a gift in taile of two acres of land the one at the Co. 10. 106. cōmon law the other in Burrow English rendring an oxe to him and his heires and the donee having two sonnes die and the eldest sonne doth inherite the one acre and the youngest sonne doth inherite the other in this case the donor and his heires shall have but one oxe c. If one make a lease of land for years if the lessee live so long Co. 10. 107 108. and after the lessor by his deed indented doth grant the land to another To have and to hold the reversion to the grantee for his life cum post mortem c. aut aliter acciderit vacare reddend inde Annuatim to the grantor and his heires cum reversio predicta acciderit 9 s. 4 d. per Annum in this case this reservation of rent shall not begin before the reversion
assets But if hee that doth so alien c. bee tenant by the courtesie this is no barre to the heire without assets in fee simple from the tenant by the curtesie and then it is a barre for so much And if the heire for want of this assets at the time doth recover the land from his mother and after assets doth descend from the father in this case the tenant shall recover the same land of the mother againe And if she that doth so alien c. to be tenant for Stat. 11 H. 7. chap. 20. Litt. Sect. 727. Co. super Litt. 365. life of the inheritance or purchase of her deceased husband or given unto her by any of the Auncestors of her husband or by any other person seised to the use of her husband or of any of his Auncestors in this case her alienation release or confirmation with warrantie shall not binde the heire whether hee have assets or not But if a man convey lands to the use of himselfe Co. 3. 58. B his wife and the heirs of his body and they have issue C and the father dieth and C disseiseth his mother or getteth a feoffement from a disseisor and then suffereth a recovery with a single voucher and after the wife doth release to the recoverer with warrantie in this case the warrantie is a barre to the issue and not void by the Statute of 11 H. 7. If the husband that is seised of lands in the right of his wife levy Co. super Litt. 366. 381. Stat. Glouc. ch 6. Litt. Sect. 332. a fine or maketh a feoffment in fee with warranty and the wife dieth and then the husband dieth this warranty shall not binde the heire of the wife without assets of other land in fee simple from the father albeit he be not tenant by the courtesie but it is before her death that he doth make the estate and the warranty But a Fine levied by the husband and wife in this case is a good bar to the heir If tenant in taile that is in of another estate i. either by disseisin Co. 3. 62. 22 Ass pl. 37. 29 Ass pl. 34. Fine or by the feoffment of a disseisor doth suffer a common recovery and a collaterall Auncestor of the tenant in taile doth release with warrantie to the recoverer and after the recoverer doth make a feoffment to uses executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth in this case albeit the estate of the land be transferred in the post before the descent of the warrantie yet it shall binde So if hee to whom the warrantie is made suffer a common recovery and after the Auncestor dieth But if tenant in dower enfeoffe a villain with warranty and the Lord of the villain enter into the land before the descent of the warrantie and after the woman dieth this warrantie shall not binde the right of the heir So if a collaterall warrantie be made to a bastard and his heirs and living the Auncestor the Bastard dieth without issue and the Lord by escheat doth enter and after the Auncestor dieth this warrantie shall not binde A collaterall warrantie may descend upon an issue in taile before the right descend and yet be good with this difference that Litt. Sect. 7 H. Co. super Litt. 388 the right be in esse in some of the Auncestors of the heir at the time of the descent of the warranty as if tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile releaseth all his right c. to the disseisor with warrantie and dieth without issue and the tenant in taile hath issue and dieth in this case the issue is barred But otherwise it is where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warrantie as if Lord and tenant be and the renant make a feoffment in fee with warrantie and after the feoffee doth purchase the Seigniory and after the tenant doth cease in this case the Lord shall have a Cessavit for a warrantie doth never bar any right that doth commence after the warrantie If the case be so that if no such warranty had beene made by Litt. Sect. 703. 711. 8. What shall be said a lineall warranty And how such a warranty shall barre the father or other Auncestor the right of the lands or tenements so warranted had or might have descended or come from the same Auncestor and that from and by him that made the same warranty such a warrantie is a lineall warrantie As if a man bee seised in fee of land and make a feoffment of it to another and binde him and his heires to warrant the land and hath issue and die and the warrantie doth descend upon the issue this is a lineall warrantie for that if none such had been Co. super Litt. 371. the right of the land had descended to him as heire to his father and he must have made his descent by him And if there be grandfather father and son and the grandfather be disseised and the father release to the disseisor being in possession with warranty c. and dieth and after the grandfather dieth this is a lineall warrantie to the son and albeit in this case the warrantie descend before the right yet it is a good bar And if there be two brothers Litt. Sect. 707. and the father is disseised and the eldest brother doth release with warranty and die without issue and after the father dieth and the warrantie doth descend to the younger sonne this is a lineall warrantie to him And if lands be given to A for life Co. 1. 66 67. the remainder to his right heires and hee doth make a feoffment with warrantie and die this is but a lineall warrantie And if two parcenours be and the eldest enter into all the land to her owne use and then doth make a feoffment with warrantie and dieth without issue this as to her owne part is a lineall warrantie but as to her sisters part is a collaterall warrantie And in every Co. 8. 52. New Terms of the Law tit Warrantie case where one doth demand an estate taile if any Auncestor of the issue in taile whether he had possession of the land or not hath made a warrantie and if the issue that were to bring a writ of Formedon may or might have by possibility by some matter that might have been done conveyed to himself a title by â—orce of the gift by him that made the warrantie this is a lineall warrantie As if a man be seised of land of an estate taile to him and the heirs of his body begotten and make a feoffment of it and bind him and his heirs to warrant it and hath issue and dieth this warrantie descending upon the issue is a lineall warrantie And if lands Litt.
this doth not alter the custome but by this all the sonnes shall take If a man devise his land to his wife for life the remainder to â—â—tz 〈◊〉 2. his sonne and the heirs males of his body engendred and for default of such issue the remainder to his next heir male and the heires males of the body of that heire male and after his sonne die without issue living his wife and the Devisor hath issue a daughter who hath issue a sonne in this case and by this Devise it seemes the daughter and not her sonne shall have the land and that in Fee-simple If a man devise his land to his wife for life and after to his own Trin. 9. â—ac Aâ—â—â—dged Curteâ—s case right heirs males and he hath issue three daughters and after his death one of them hath a sonne in this case and by this Devise the next collaterall heire male of the Devisor and not the sonne of the daughter shall have the land If a man have issue two sonnes and a daughter and devise his Dâ—er 122. land to his wife for tenne yeares the remainder to his younger sonne and his heirs and if either of the said two sonnes die without issue of their bodies the remainder to the daughter and her heirs and the younger sonne die in the life time of the father and after the father die in this case and by this Devise the daughter hath a good remainder but it seemes the elder sonne hath first an estate Taile by the intent of the Devisor If a man devise some land to A his eldest daughter and her Dâ—eâ— 330. heires and if she die without issue to T his youngest daughter and her heirs and if she die within 16 years that A shall have her part to her and her heirs and if A marry such a one that T shall have her part to her and her heirs and if T die having no issue that all her part shall goe to M and E his Neâ—ces and if A die without issue that T shall have her part to her and her heires and T after the 16 years doth die without issue in this case the Neeces M and E and not A shall have her part that is dead If land be devised to A for life the remainder to a Monke for Perk. Sect. 5â—6 â—67 life the remainder to I S in Fee by this Devise he in the remainder in Fee shall take presently after the first estate for life ended and if the Devise be to a Monke for life the remainder to I S in Fee by this I S shall take presently If a man devise his land to a womâ—n and her brother and the Dyer 326. heirs of either of their two bodies and for default of issue of the said woman and her brother the remainder to the right heires of the Devisor and after the death oâ— the Devisor the brother dyeth without issue and the sister hath issue and dyeth in this case and by this Devise her issue shall have a moity and no more of the land If one devise two parts of his Land to his four younger sonnes Dyer 304. in Taile and that if the Infant in the wombe of his wife be a sonne that he shall have the fifth part as co-heire with the four and if his five sonnes die without issue that the two parts shall revert and then the Devisor dyeth and after a sonne is born and after he and three of the other sonnes die in this case and by this Devise the Infant shall not take any thing because he is uncapable and the two parts shall not revert to the heire untill the five sons be dead without issue If one devise the Mannor of Dale to the eldest sonne of I S in Adiudged Co. B. M. 36. 37 Eliz. Brownes case Fee and the Mannor of Sale to I D for life the remainder to such of the children of I S as shall be then living and shall have the Mannor of Dale and the eldest sonne of I S after the Testators death doth sell the Mannor of Dale and after I D dyeth in this case and by this Devise none of the children of I S shall have the Mannor of Dale but it shall goe to the heires of the Devisor If one devise his land to the children of I S by this devise the children that I S hath at the time of the Devise or at the most the children that I S hath at the time of the death of the Testator and not any of them that shall bee borne after his death shall take If one have two daughters by divers women and devise a moity of Dyer 34â— his land to his wife for seven yeares and that the elder daughter shall enter into the other moity at her day of marriage and if his wife be with child of a daughter that then she shall have an equall portion with the other sister and the Devisor dyeth and the wife doth enter and hath not a daughter and then the elder daughter doth take a husband and enters upon a moity the younger daughter dies without issue and the seven years expire in this case and by this devise the collaterall heir of the younger daughter shall have the moity of the whole and not the moity of a moity only and that by discent If a man have issue B C and D sonnes and he devise his land Curia B. R. Mich. 20. Iaâ— Next of blood to D his sonne the remainder proximo de sanguine or to the next of blood of the Testator in this case and by this Devise B shall take after the death of D as the next of blood In like manner if the Testator have four daughters and he devise his land to the youngest in Taile the remainder to the next of blood by this Devise the eldest daughter and not all the rest shall have the land And if the Testator have issue B his elder sonne and C his younger son and B have issue D his sonne and B is attainted and dyeth and the Testator deviseth his land to I S for life the remainder to the next of blood of the Testator by this Devise D and not C shall have the land If a man have issue B and C sonnes and D a daughter and devise Broo. Dâ—scent Piâ— 19. 8. Aâ—â— Pl. 4. his land to C for life and after that it shall remaine to the next of blood to his children to the next heirs of the blood of his children and C dyeth and B dyeth without issue and D hath issue a daughter in this case and by this Devise the heires of A shall not take but the next of blood to the children of A which is the daughter of D and his children themselves are excluded and if the sonnes have any issues living they shall take with her by this Devise If the Testator have issue by A his first wife three daughters â—â—â—â—dged Mâ—
devise none of his land in the other Hamlet doth passe If a man make his Will the first day of May and thereby give the Plow 34â— Mannor of Dale to one in Fee and the tenth of May one of the Tenancies escheat and the 20. of May the Devisor dyeth in this case and by this devise it seems the Devisee shall have the Tenancie that doth escheat If one devise his land thus I give my land in Dale to I S and 3. In respect of the estate and time that is devised Fee-simple his heires or to I S in Fee or to I S in Fee-simple or to I S for Litt. Broo. Sect. â—â—3 Perk. Sect. 1. 6. Litt. Sect. 586. â—elw 4â— Coo. super Litt. 19. 20 H. 6. 35. Litt. B100 Sect. 432. 19. H 8. 10. ever or to I S Habendum sibi suis or to I S and his Assignes for ever or thus I give my land to I S to give sell or do therewith at his pleasure by all these and such like devises a Fee-simple estate is made of the thing devised and I S shall have the same to him and his heirs for ever But if land be granted by Deed after this manner I S by this grant in all these cases except onely in the Deed. first case hath onely an estate for life * Fitz Devise 111. And if a man devise his land to I S and say not how long nor for what time by this devise I S hath an estate for life only in the land If a man devise his land to I S and his Assignes without saying Coo. super Litt. 9. Perk. Sect. 57. 239 New Terms of the law tit Devise for ever it is said by some that by this devise I S hath onely an estate for life * Tâ—â—n 2. C. B. R. reply Daniels case Coo. 6. 16. Dyer 126. But the contrary is affirmed elsewhere and that it is a Fee-simple If one devise his land to his wife to dispose thereof at her will and pleasure and to give it to one of her sonnes in this case and by this devise she hath a Fee-simple but it is qualified for she must convey it to one of her children and cannot convey it to another If one devise his land to I S paying 10. l. and use no other words by this devise the Devisee hath the Fee-simple of the land albeit the 10. l. be not the hundredth part of the worth of the land * Adiudge Hill 36. Eliz Co. B. And yet if one devise his land to I S for his life paying 10. l. by this devise I S shall have an estate for life only If one devise land of the value of 50. l. per annum to J S for life the remainder to I D paying 40. l. to W. by this devise J D shall have the Fee simple of the remainder upon condition If one have two sonnes and he devise his land first to his wife and Hill 17. Iac. B. R. adiudged Spiceâ—s case then he saith thus In like manner I will that my sonne A. shall have it after my wives death and if my wife dye before my sonne B then that my sonne A shall pay to B 3. l. by the year during the life of B and also 20. l. to W S. by this devise A shall have the Fee-simple of this land â—f one devise his land thus I will my land to my sonne W for his life and after his death to my sonne T and if my sonne W purchase Câ—â—ia M 18. â—ac B. R. Green ver 〈◊〉 â—us Dewell land as good as that land for my sonne T then that my sonne W shall sell the land devised to my sonne T as his own and I will that my sonne W shall pay to his Sisters â—0 l. by 20. s. a year in this case and by this devise W hath a Fee-simple for power to sell giveth by implication an estate in Fee-simple and it is paying also c. If one devise land to his wife and her heires and if the heire put her out that she shall have other land by this devise she hath the Fee-simple Pasch 14. Iac. B. R. Curia of the first land and is not abridged by the latter words If one devise his land thus I give White Acre to my eldest sonne and his heires for his part Item Black Acre to my youngest sonne Trin. 30. Eliz. for his part by this devise the younger sonne shall have the Fee-simple of Black Acre So if I give White Acre to I S Item Black Acre to I S and his heires by this devise I S shall have the Fee-simple of White Acre also If one give land to his wife for life the remainder to his sonne and Perk. Sect. 566. the heires males of his body and for want of such issue the remainder to the next heire male of the Donor and the heires males of his body it seems by this devise that the next heire male of the sonne hath a Fee-simple If one devise his land thus I give my land in Dale to I S and to his or to the heires males or heires females of his body or of his Coo. super Lit. 21. 26. â—ee-taile body begotten or to I S and his issues male or his issues female or to I S and the heires males of his body begotten on M or to I S and E his wife and the heires males or heires females of their two bodies begotten or to I S and his heires if he shall have any heires of his body else that the land shall revert or to I S and his heires if he have any issue of his body or to I S and the right heires males of his body or to I S and his heires provided that if he dye without heires of his body that the land shall revert by all these and such like devises an estate taile is made of the thing devised and I S the Devisee shall have the same accordingly If one devise his land thus I give my land in Dale to I S et somini Coo. super Litt. 9. Broâ— tit taile 21. Coo. super Lit. 20. 6. 1â— suo by this devise I S hath an estate taile But if he say I give my Deed. land in Dale to I S et sanguini suo it is said by this devise I S hath the Fee-simple of the land If one devise his land to I S â—t exitibus vel prolâ—bus de corpore suo by this devise if I S have no children at the time it seems he hath an estate taile but by such a limitation by deed is made onely an estate for life If one devise his land thus I give my land in Dale to I S for life the remainder to I D and E his wife and their children or to I D and E his wife and their men children or to I D and E his wife and their issues by these
devises if the husband and wife have no children at the time of the devise is created an estate taile and if they have any children at the time of the devise then hereby is created an estate for all their lives onely in joyntenancie And if land be devised to A for life the remainder to B and the heires of his body the remainder to I S and his wife and after to their children by this devise I S and his wife have estates for their lives onely and their children after them estates for their lives joyntly And albeit they have no children at the time yet every child they shall have after may take by way of remainder And so also it seems is the law upon such a limitation by Deed Deed. If lands be devised to I S and his heires males or his heires females without saying of his body by this devise I S hath Deed Litt. Sect. 31. 9. H. 6. 25. 27. H. 8. 27. an estate taile But if such a limitation be by deed it is a Fee-simple If one have two sonnes and devise White Acre to his eldest sonne and his heires and Black acre to his youngest sonne and his heires Hill 22. Iac. B. R. Daniels case and if either of them dye without issue then that the other shall be his heire by this devise either of them hath an estate taile and no Fee-simple If one have land in Kent in W S and T and have one male child Adiudge M. 9. Iac. Wallops â—ase and a daughter and his brother hath three children B C and D and he devise his land thus Item I give my land in Kent to my male childe and his heires and if he dye without heires of his body that that the land in W shall go to B and his heires Item I will my land in S to C and his heires and my land in T to D and his heires in this case and by this devise the male child of the Devisor hath an estate taile in all the lands and after his death without heires it shall remaine according to the Will So that if one devise his land to his eldest sonne and his heires and if he dye without heires of his body that it shall remain to his youngest sonne and his heires by this devise the eldest sonne hath an estate taile and the youngest sonne the Fee-simple If one devise his land to his sonne W and if he marry and have any issue male begotten of the body of his wife then that issue to Coo. 9. 127 have it and if he have no issue male then to others in remainder by this devise it seems W hath an estate taile to him and the issues male begotten on the body of his wife If one devise White Acre to I S and the heirs of his body and then after saith thus and I will that I D shall have Black Acre in the same Perk. Sect. 561. 20. H. 6. 36. manner that I S hath White Acre by this devise I D hath an estate tail in Black Acre as I S hath in White Acre Et sic de similibus * Tr. 30. Eli. And if one devise White Acre to I S and then say Item Black Acre to I S and the heires of his body by this devise he hath an estate taile in both Acres If one devise his land to his wife for yeares the remainder to his younger sonne and his heires and if either of his two sonnes dye Dyer 122. without issue c. that it shall remaine to his daughter and her heires and the younger sonne dye in the life time of the Father and after the Father dyeth it seemeth by this devise the elder son shall have the land in taile If one devise his land to his wife for life and after to his sonne Adiudge Tri. 7. Iac. Co. B. Robinsons case and if his sonne dye without issue having no sonne or having no male then that it shall goe to another by this devise the sonne hath an Estate taile to him and the heires males of his body If lands be given to a man and woman unmarried and the heires of their two bodies or to the husband of A and wife of B and the Coo. super Litt. 20. 26. Plow 35. heires of their two bodies by these Devises are made estates in Taile If a man devise White acre to his three brothers and Black acre to C his brother so as he pay 10l to I S and otherwise that it shall remain Dyer 333. to the house provided that the same lands be not sold but go unto the next of name and blood that are males if it may be it seemes that by this devise C hath an estate tail in black acre and that if he die without issue it shall go to the three other brothers and their heires males in taile one after another and that white acre also is so entailed in every of their parts For the words shall remaine to the house shall be construed to the most worthy of the Family and the words that are males shall be construed in the future tense If land be devised to I S and the heires of his body and that if he die that it shall remain to I D by this Devise I S hath an estate Adiudg 14. Eliz. Coo. B. Trin. 9. Iac. B. R. Taile and the latter words do not qualify the former but I D must attend his death without heires of his body before he shall have the land If land be devised to I S and the heirs males of his body and if it Dyer 171. happen that he dye without heire of his body that it shall go to H and his heires by this Devise I S hath an estate to him and the heires males of his body and the subsequent words do not alter nor enlarge the estate If land be devised to I S and E his wife and to the heires of Coo. super Litt. 26. the body of the Survivor of them by this Devise the Survivor shall have a generall estate Taile If land be devised to I S and the heires he shall have by A his wife by this Devise I S hath a Fee Taile and not a Fee simple as Coo. super Litt. 26. Deed. he hath in case of such a limitation by deed If land be devised to I S and to the heires of the body of such a woman by this Devise I S hath an estate Taile and begotten Coo. super Litt. 26. shall be intended begotten by him If one devise land to his sonne and his heires and that if his sonne die within the age of 21 yeares or without issue that the land shall Adiudg M. 37. 38 Eliz. Sale versus Geâ—rard remain over and the son dieth within age having issue in this case and by this Devise the sonne hath an estate Taile and or in this place shall be taken for and If land
bee devised to a man and his wife and to one heire of their body and the heire of the body of that heire by this Devise Coo. super Litt. 22. Deed. an estate Taile is made in a Will as well as in a Deed. If a man devise his land thus I give White acre to A my sonne M. 18. Iac. B R. Gilberts case and his heires Black acre to B my sonne and his heires and Green acre to C my sonne and his heires provided that if all my said sons die without issue of their bodies that then all my said lands shall goe to M my wife and her heires by this Devise they have all of them estates in Taile of their land and as it seems crosse remainders to either of them of the land of each other If one devise his land thus I give my land in Dale to I S and if Coâ— 9. 128. he die without issue male of his body then that it shall remain over to I D by this Devise I S hath an estate Taile If a man hath issue three sonnes and devise his land thus viz. one part to two of his sonnes in Taile and another part to his third Litt. Broo. Sect. 4â—â— Broo. Devise 38. Done 44. sonne in Taile and that neither of them shall sell his part but that either of them shall be heire to other in this case and by this Devise either of them hath an estate Taile and if one of them dye without issue his part shall not revert to the eldest but shall remain to the other sonne for it is an implied remainder If there be husband and wife and they have issue a sonne and a Coo. super Litt. 26. daughter and the husband die and land is devised to the wife and the heires of her late husband on her body begotten in this case and by this Devise the wife hath only an estate for life the sonne an estate in Taile and so also the daughter in case he die without issue If one devise to I S that if he and his heires of his body be not For life Coo. supâ—r Litt. 147. 8. 85. paid 20l. rent yearely he and they shall distraine c. by this Devise I S hath an estate taile of this rent But if the Devise be that if I S be not paid 20l. yearly he shall distrain c. by this Devise I S hath only an estate for life So if one devise a rent of 10 l. out of his land to be paid quarterly and say not how long the rent shall continue this is but an estate for life If one devise his land thus I give my land in Dale to I S for his life or to I S without any more words or to I S and his Fitz. Devise 16. Coo. 6. 16. Perk. Sect. 577. heire in the singular number or I S and his children and I S hath children at the time of the Devise or to I S and his successors I S being a naturall person by all these and such like Devises I S hath only an estate for life in the thing devised * Mich. 13. Ia. B. R. Dyer sect 307. But if the Testator have only a Terme of yeares in the land whereof the Devise is made and devise this land to I S and doth not say for what time it seemes that by this Devise the whole Terme is devised unlesse the intent doth appeare to be otherwise And if one devise land whereof a man is seised in Fee to I S paying 10l to I D by this Devise albeit there be no estate expressed yet I S hath the Fee-simple of the land in respect of the paiment of See before Litt. Broo. Sect. 406. 125. the money But if the intent of the Testator appeare to be that I S shall have the land but for his life contra for there the consideraration will not alter the estate expressed upon the gift If land be devised thus I give my land in Dale to I S and his Deed assignes without more words by this Devise is held to be given Coo. super Litt. 9. 4. 29. no more but an estate for life by construction upon a Will as it is upon a Deed. And yet in the New Termes of the Law tit Devise the contraray is affirmed Ideo quâ—re If one devise thus I will that I S shall have and occupy my land Pasche 9. Iac Newmans case in Dale and say not how long by this Devise I S shall have the land for his life * Dyer 342. But if I devise that I S shall enter into my land and say no more by this Devise I S hath no estate at all but power to enter into the land only If a man have a sonne and a daughter and dieth and lands are Coo. super Litt. 2â— devised to the daughter and the heires females of the body of the Father by this Devise the daughter hath only an estate for her life for there is no such person for she is not heire If one devise his land thus I give my land in Dale to I S for Coo. 1. 6â— his life and after to the next right heire of I S in the singular number and to his right heires for ever by this devise I S hath only an estate for life So if one devise land to I S for life and after to the next heire male of I S and to the heires males of the body of such next heire male by this devise I S hath an estate for life only but if it be thus I give my land in Dale to I S for his life and after to the heires or to the right heires of I S by these devises I S hath the Fee-simple of the land And if it be to I S for life and after to the heires males of I S by this I S hath an estate Taile If one devise land to I S and E his wife and after their decease or the remainder to their children by this devise whether they Coo. 6. 16â— have or have not children at the time I S and E his wife have estates for their lives only If one devise a Moity of his land to his wife for life and the other Curiaâ— Ia. Co. B. Moity to his second sonne and after by another clause doth devise it all to his sonne after the death of his wife by this Devise the sonne hath only an estate for life after the wives death and no more If one devise his land to I S in Fee after the death of I B being Broo. Devise 48. 52. Litt. Broo. 107. 13 H. 7. 13. New termes of the Law tit Devise Plow 158. 414. 521. By Implication his sonne and heire apparant by this Devise I B hath an estate for ife by implication and untill the Devise take effect the law gives it to him by discent And so also it seemes the law is where
the same uses and shal binde the parties no naked Averment shal be received of any latter or other agreement contrary to the Indentures 6. The declaration of the uses must be certaine and that especially in three things in the persons to whom in the lands c of which and in the estates by which the uses are declared and if there want certainty in either of these the declaration is not good and it must be compleat of it self without any reference to Indentures or other writings to be made afterward for then it is but an imperfect communication and no compleat declaration 7. Where an Indenture precedent is to limit the uses of a subsequent Fine or Recovery and it is not pursued in some circumstance of time person quantity or the like yet if no other new meanâ— agreement may be proved the Assurance shall be in judgement of Law to the uses contained in the same Indenture but if the variance be in these particulars the form of the Indenture be not pursued there an Averment without writing may be taken that the fine or other Assurance was to other uses then are contained in the Indenture if none such can be made then it is left to construction of Law And therefore if A be seised of divers Mannors in Fee and by his Indenture dated 10 Martii 21 Eliz. doth covenant with B C that he before the end of Trinity Term next Will by Fine or other Conveyance assure one of these Mannors to them that the same Assurance shall be to the use of A and E his wife of the heirs of A and the 28th day the Deed is inrolled and the 29th day of the same moneth he doth by another Indenture Covenant with the same C and D to convey all the same Mannors to the same C and D before the Annuntiation next that the same Assurance shall be to the use of A and the heirs males of his body for default of such issue to the use of divers others in remainder by this Indenture doth covenant that if he shall not sufficiently convey this land by the day that he wil stand seised to the same uses c and no Fine is levied by the end of Trinity Terme but the 17th of September following a note oâ— a Fine is acknowledged to B and C and the heirs of B of the land within the first Indenture and the 18th of the same moneth another note of a Fine is acknowledged to C and D of the same and other land in the last Indenture and both these Fines are entred in Octabis Miâ—h following in this case these Fines cannot bee directed and declared by both Indentures and therefore it seemes the declarations are void As touching Averment of Uses i. e. the proofe of uses by witnesses 6. Averment oâ— Vâ—es and â—â—ere a use â—â— and may be Coo. â— â— 5. 2â— 25. Doct. St. 95. Coo. 2. 57. these things are to be known that where any use is expressed upon a Charter of Feoffment no other use contra or preter the use which is expressed shall be admitted But in cases of Fines and Recoveries averred upon any assurance And what shal be said a sufficient averment or not wherein no uses are expressed other uses then what Law construction will make may be shewed and proved to be agreed upon and the same assurances shall be to such uses as by proof shall be made to appear to be the intent of the parties As if a man and his wife sell her land for money and after levy a Fine to the vendee and his heirs in this case it may be averred it was for money and this shall carry the use to the Vendee without any declaration of use which otherwise would result to the woman and her heirs and yet if a Fine be with a Grant and Render no averment to prove it to be to other uses then what are contained in the Fine shall be received And where the uses of a Conveyance be declared by Coo. 9. 8. Indenture before or at the time of the same Conveyance no averment shall be received of any other uses then what are contained in the Indenture But if the Indenture of declaration be subsequent there an averment lieth and shal be received that there were other uses agreed upon at or before the time of the conveyance made And where an agreement is made to levy a Fine or suffer a Recovery Coo. 5. 26. before or at a time certain and that it shall be of such and such lands and to such and such persons and after it falleth out the Fine or Recovery is not had by that time or not of the same land or not between the same persons in these cases an averment may be had of other uses and of another agreement Where the uses of an assurance are certainly agreed upon and 7. To what use an assurance of land shall be by construction of law And how the Limitation of the Vses of land by a Deed shall be construed Doct. St. 25. Perk. Sect. 533. Coo. 1. 24. Dyer 18. Cromp Iur. 62. Coo. â— super Litt. â—7â— declared between the parties thereunto there regularly it shall be to such uses as are declared and agreed upon and to none others But if a conveyance be made of land by Fine Feoffment or recovery and no uses thereof declared and agreed upon the Law will limit and appoint the use according to equity and conscience And therefore if a man levy a Fine make a Feoffment or suffer a recovery of land without any consideration the Law will adjudge the use to be in the Feoffor Conusor and Recoveree who doth part with the land And so if a man make a Feoffment to the intent to perform his last Will or to the use of his last Will or to such persons as he shall limit by his last Will in all these cases the use shall be in the Feoffor and his heires whiles he doth live to dispose at his pleasure And so if one make a Feoffment of land to Bakers case Co. B. Hill 37 Bliz. I S and his heirs to the use of W S for 20 years and limit the use no further in this case the residue of the use after the 20 years shall be to the Feoffor and his heirs But if in these cases there be any consideration of money or the like though never so little given or any rent reserved upon the Feoffment the Law will adjudge the use in the Feoffee Conusee or Recoveror And yet in that case also if other uses be expressed upon the Deed it seems it shall go to the uses expressed as if A for 20l. paid by B enfeoffe B and his heirs to the use of C and his heirs If the husband and wife levy a Fine of the wives land without consideration Coo. 2. 57. 58. and without any declaration of use the Law
will adjudge this to be to the use of the wife and her heirs but if they sell her land for money and after levy a Fine thereof to the Vendee this shall be to the use of the Vendee and his heirs And if a man be seised of land of the part of his Mother and without any consideration make a Feoffment in Fee of it this shall be said to be to his use in the same nature he had it before So if two Jointenants be of land the one in Fee-simple and the other but for life and they without any consideration levy a Fine of it and make no declaration of use the use shall be to them of the same estate as they had before in the land So if â—â— tenant for life of land and B in reversion or remainder levy a Fine of this land generally this shall be to the use of A for life and to the use of B in Fee afterwards as it was before So if A be seised in Fee of an Acre of ground and he and B joyne together and levie a Fine of it to another without any consideration this shall be to the use of A and his heirs only If one make a giâ—t in taile or Lease for life or yeares albeit Perk. Sect. 533. it be without any consideration of Fine or Rent yet the Law will adjudge the use in the Donee or Lessee and not in the Donor or Lessor If one at this day by Deed indented bargain and sell his land Plow 539. Coo. 1 87. â—et see Litt. Broo. 536. Câ—ompt â—â—r â—7 2â— H. â— 6. Co. â— 110. to another for money and doth limit no estate but the Deed is Habendum to him only and not Habendum to him and his heirs or to him and the heires of his body or to him for life howsoever in this case before the Statute of uses was made it was other wise yet now the common received opinion is that by this there doth passe onely an estate for life and not a Fee-simple If a Feoffment be made to I S and his heires to the use of I D without any more words by this limitation I D hath only an Coo. super Litt. 42. Dyer 169. estate for life So if a Feoffment be made to I S and his heires to the use of I D for ever without saying and his heires hereby I D hath only as estate for life And so of other uses the construction shall be according to the rules of Law If a use be limited to I S and his heires untill A shall come from beyond the Sea and attaine his full age or dye in this case Pasche 3◠〈◊〉 B. R. the Lord Mordaâ—â— case if he come from beyond Sea attaine his full age or dye the use shall cease If one covenant to stand seised to the use of A his eldest sonne Hill 17. â—ac B. R. â—â— wayeâ— caâ—e and the heires males of his body and after to the use of B his second sonne in tail in the same manner or according to the limitation to A by this B hath an estate tail to him and the heires males of his body If a Feoffment in Fee be made to the use of a man and his wife Coo. super Litt. 28. for their lives and after to the use of their next issue male to bee begotten in Tail and after to the use of the husband and wife and of the heires of their two bodies begotten they having no issue male then by this the husband and wife are tenants in speciall Tail executed and after they have issue male they are tenants for life the remainder to the sonne in Tail the remainder to them in speciall Tail If one make a Feoffment to the use of himself for life and after his decease to the use of Alice whom he doth intend to marry Dyer 300. untill the issue he shall beget of her shall be of the age of 21 years and after the issue cometh to that age then to the use of the wife during her widdowhood and the husband dye without issue by this the wife shall have an estate at least during her widdowhood If I covenant with B that in consideration he will marry my daughter that from the time of the marriage I will stand seised to Coo. 1. the use of my self for life and after to the use of C a stranger and the heirs males of his body and after to the use of B and my daughter and the heirs of their two bodies in this case albeit the use limited to C the stranger be void yet it seems B and my daughter shall not have the land till the death of C without issue but that my heirs shall have it till that time If I covenant with B to stand seised to the use of my selfe for life and after my death to the use of C a stranger for the term of 20 years Coo. 1. 155. and after the end of the term to the use of my sonne in tail in this case the use limited to C is voyd and my sonne after my death shall have the land But if the words of the covenant be and after the end of 20 yeares insteed of and after the end of the term my sonne shall not have the land untill the 20 yeares be expired See more in exposition of Deeds Chap. 5. All such uses as are not within nor executed by the Statute of 8. Where and how Vâ—es of Land â—ay be extinguished and destroyed or suspended or noâ— And where the ancient Vses shal be revived by the entry of the Feoffees or not 27 H. 8. but remain at the Common-Law may be destroyed discontinued Co. 1. Chudleighs caâ—e or suspended as uses before the Statute might have been And therefore contingent uses may be extinguished or suspended at this day As it a man seised of land in Fee have three sonnes A B and C and he make a Feoffment of his land to divers Feoffees to the use of them and their heires during the life of A and after to the use of the first sonne that A shall beget and the heirs males of the body of such first sonne or if a Feoffment be made to the use of a man and the wife that he shall marry or the like if in these cases the Feoffees make a Feoffment over before the contingent uses happen to be in esse as before A have any sonne or the man take a wife c. albeit it be to one that have notice of these uses yet the uses are destroyed for ever and the Feoffees cannot enter and revive them contrary to their own Feoffment And if in these cases the Feoffees before the contingent remainder vest be disseised hereby the uses are suspended but then by the Reentry of the Feoffees the ancient uses will be revived again And therefore if the Feoffees release to the Disseisor and so barr themselves of their entry the uses
possession but now this Law is changed and this kind of fine will barre none but such as are parties and privies thereunto But a fine by the Statute or a fine with Proclamations is now much of the same virtue and force as a fine at the common law was for by the Statute of 4 H. 7. it is provided That every fine after the ingrossing thereof shall be proclaimed in the Court the same Tearme and the three next following Tearmes foure severall daies in every Tearme which Proclamations so made the fine shall conclude all parties privies and strangers except women covert persons within 21. yeares of age in prison out of the Realme or of non sane memorie being no parties to the fine so as they or their heires take their action or lawfull entrie within five yeares after these imperfections removed Saving to all persons and their heires other then parties the right claime and interest which they have at the time of the fine so as they pursue it by action or entrie within five yeares after the Proclamations And saving to all other persons such right title claime and interest as first shall grow or come to them after the Proclamations by force of any matter before the fine so as they make their claime or entrie within five yeares after the same grow due or if at that time there be any impediment as aforesaid within five yeares after the impediment removed And by the Statute of 32 H. 8. which is an exposition of this Statute it is provided That all fines with Proclamations levied according to 4 H. 7. by any person of 21. yeares of age of any land c. before the fine levied entailed to him that doth levie the fine or any of his Ancestors in possession reversion remainder or use immediately after Proclamations had shall be a barre against him and his heires claiming only by force of any such entaile and against all others claiming only to the use of him or any heire of his body By which Statute it doth appeare that all the parties to the fine Conusors and Conusees whether they be femes Covert men de non sane memorie or others Infants only excepted who during minority may avoyd it and whether they have a naturall or civill capacity privies viz. privies in bloud as heires whether they be lineall or collaterall or privies in representation as executors and administrators and all strangers also viz. all others besides parties privies that have or pretend any present right or title except women covert and the rest that have impediment that doe make their entrie or claime or bring their action within 5. years after Proclamations had and those persons excepted also if they make not their claime c. within five yeares after the impediment removed all these are concluded i. so shut and closed up together for their right is so extinct hereby as they can never open their mouthes or lift up a finger against it Saving to all others i. such as have no present right at the time of the fine levied and were excepted before such right title claim or interest as shal accrew to them after the Proclamations upon any trust gift in taile or other cause before the fine levyed so as they make their claime c. within five years after their right first accrewed if they have then no impediment or if they have within five yeares after the impediment removed For a more full understanding of which Statutes and this matter these things in generall must first be observed 1. That the persons to be barred by a fine are 1 Parties 2 Privies 3 Estrangers The parties if they be of the age of 21. years are bound for ever by the fine and shall have no time to claim to preserve their right The privies also being heires and executors to the parties and voyd of impediment at the time of the fine levied or not if they claim by the same title that their Ancestor had that levied the fine are barred for ever by the fine and shall have no time to claime to preserve their right †Dyer 3. pasche 7. Jac. B. R. And therefore if my father disseise my Grandfather of land and then levie a fine of the land and then my Grandfather die and after my Father die by this fine I am barred of the land for ever And here note * Trin. 21 Jac. Com. B. Curia in in Will Godfreys case that he that is a privie within the intent of 4 H. 7. is an heire within the Statute of 32 H. 8. Et sic è converso And that privies or heires in estate and bloud as he that is heire to whom the land doth or should descend are within these Statutes and shall be barred by the fine of their Ancestor of that land And so also shall privies in estate that are not privies in bloud as where one hath land in burrow English and levie a fine of it hereby the youngest sonne is barred So if one bee tenant in taile to him and the heires females of his body and he levie a fine having a sonne and daughter hereby the issue female is barred and yet she is not the heire of his bloud But he that is privie in bloud only and not in estate also is not within these Statutes neither shall he be barred by the fine and therefore if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the son levie a fine and die without issue this is no barre to the daughter for howsoever she be heire of his bloud yet she is not heire to the estate nor shall need to make her conveyance to it by him The strangers that are to be concluded by the fine are either 1. Such as have present right and no impediment and these are barred within five yeares if they make not their claime within five yeares after the Proclamations 2. Such as have present right but have impediment of infancy c. and these are barred if they doe not make their claime within five yeares after the impediment removed 3. Such as have no present but future right upon cause precedent and they are either without impediment and then they are barred if they claime not within five yeares after their right doth acrew or they have impediments and then they are barred if they claime not within five yeares after the impediment removed 4. Such as have neither present nor future right at the time of the levying of the fine by reason of any matter before the fine but whose right groweth either entirely after or partly before and partly after the fine and these are not barred at all by the fine but they may make their claime c. when they will And parties privies and strangers to Plow 538. 337 375 378. fines that are barred thereby are such as have naturall capacities or civill for both these are barred And
therefore it is held if such a Corporation as hath an absolute estate and authority of his possessions so as he may maintaine a writ of right thereof as Major and Communalty Deane and Chapter c. levie a fine of their lands they and their successors are barred presently but if a Bishop Deane or Prebend without assent of the Deane and Chapter or a Parson and Vicar without assent of the Patron and Ordinary had levied a fine this would not have barred the successor neither will it barre now with their assent for they are restrained by divers Statutes So also such persons are barred by the fines that are levied by others if they make not their claime in time as if one disseise a Corporation aggregate of land belonging to their Corporation and after levie a fine of it with Proclamations and they doe not make their claime c. within five years hereby they are barred 2. Where the Ancestor is barred by the fine there for Co. 9. 105. the most part the heire is barred also And therefore if tenant in taile be disseised and the disseisor levie a fine with Proclamations and the tenant in taile suffer five yeares to passe without claime c. hereby he and his issues are barred for ever so that the heire doth suffer for the laches of his Ancestor 3. The estates that shall be Co. 9. 104 5 124. barred by the fine are estates by the common Law or by Copihold in fee-simple fee-taile or for life or for yeares the estates also of â—enant by Statute Elegit and of Gardeins in Chivalrie and of Executors that have land untill debts and Legacies be paid And therfore if one enter upon and put out a Copiholder of land and levie a fine thereof and the Copiholder suffer five yeares to passe and make no claime c. the Copiholder and his Lord both are hereby barred for ever And if a lease be made for yeares and the lessor or another before entrie of the lessee levie a fine with Proclamations and the lessee doth not not make his claime c. within five yeares hereby the lessee is barred of his interest forever 4. The Plow 378. Bro. Fines 123. Co. 5. 124. things whereunto these Statutes doe extend are lands and tenements and not a Rent or other profit apprender out of the land and therefore if I have a rent common or Estovers out of land or a way over land or power to sell the land and a fine is levied of the land it selfe and I doe not make my claime of my rent c. within five yeares yet I am not hereby barred of my rent c. And for this cause it is that if a tenant in ancient demesne levie a fine of his land and five yeares passe the Lord is not hereby barred to avoid it foâ— herein he claimeth not the land but his ancient Seigniorie 5. The time in which they must make their claim or bring Plow Lord Zouches case 370. their action that have present right and no impediment is within five yeares after Proclamation had and the time for them which have impediments is within five yeares after the impediments removed 6. The time within which they must make their claime Dyer 3. Co. 3. 86 91. Plow 373. or bring their action whose right doth happen afterwards if they have no impediment is within five yeares after the time that their right doth accrew and if there be any impediment within five years after the impediment removed 7. The persons whose right is saved and preserved are mentioned in the first and second Saving of the Statute of 4 H. 7. and they are strangers and not parties nor privies 8. They that have benefit by the first Saving of the Statute shall have none by the second Saving for he that will be within the second Saving to have benefit by it must be 1 Another person 2 The right must come and acrew to him first 3 It must come to him after the fine and Proclamations 4 His right must be upon some cause or matter before the fine 9. No fine shall Co. 5. 124. 9. 106. barre any estate in possession reversion or remainder which is not devested and put to a right at the time of the fine levied And therefore if one levie a fine of my land whiles I am in possession of it this fine will not hurt me So if the tenant of the land out of which I have a Rent or Common c. levie a fine of the land this shall not barre me of my Rent or Common for I am still in possession of this in the judgement of the Law So if there be tenant for life the remainder for life or tenant in taile the remainder in taile and the first tenant in taile or for life doe bargaine and fell the land by deed indented and inrolled and after levie a fine to the bargainee in this case the remainders are not barred albeit five yeares passe without claime for the Law in these cases doth adjudge them alwayes in possession So if I make a Lease for yeares of land rendring a rent and a stranger levie a fine of the land and the lessee for yeares payeth his rent to me duly in this case I am said to be alwayes in possession and therefore am not barred by this fine of my reversion So if there be a tenant by Copy or lease for life the remainder for life and the first tenant for life accept of a fine of the land with proclamations and 5 years passe without claime c. hereby he that is in remainder is not barred So if one have a lease for years of land to beginne in futuro and a fine is levyed of the land and five years passe after the terme beginne it seemes this is no barre because this estate is not put to a right And for the further illustration of all these things see the examples following c Stat. 4 H. 7. 32 H. 8. Co. super lit 372. 1 Co. 9. 138. 140. Dier 3. If tenant in taile levy a fine of the land intailed with proclamations 2. Issue in taile barred by the fine of his Ancestor or some other according to the statutes this is a barre to the estate taile wherein these things are to be known 1. That wheresoever the issue doth claime by the same title and must make his Conveyance to the lands by him that levied the fine there the fine will barre him and therefore if lands be given to the husband and wife in speciall taile viz. to them and to the heires of their two bodies issuing or the like or if the gift be to them and the heires males or females of their two bodies or to them and the heires of their bodies with the remainder to the right heires of the husband in fee and the husband alone levieth a fine with proclamations by this the issue in taile is barred And yet so as the
right of the wife is saved so as she makes her claime c. within five years after her husbands death d Dier 354 So if husband and wife tenants in speciall taile have issue and the wife die and the husband marry another wife and have issue and levy a fine Sur cognisance de droit come ceo c. and take backe by the same fine an estate in speciall taile the remainder over c. and die the issue by the first wife is barred e Co. 3. 90. So if tenant in taile be disseised or make a feoffment in fee and after levie a fine with proclamations to the disseisor or to a stranger the issues in taile are hereby barred for ever the continuance of the possession in a nother notwithstanding f Co. super Lit. 372. So if a gift be made to the eldest sonne and the heires of his body the remainder to the father the heires of his body and the father dyeth and the eldest sonne levy a fine with proclamations and dyeth without issue this shall barre the second sonne for ever for the remainder descended to the eldest g Cûria trin 21 Jac. Co. E So if lands be given to an eldest sonne and the heires of the body of his father the father being then dead and he levy a fine of this land this will barre the younger brother h Dier 3. But if the issue in taile doe not make his title by him that did levy the fine there the fine will not barre and therefore if my father be tenant in taile and his brother disseise him and levy a fine and he and my father dye this fine shall not barre me as issue in taile because I doe not make my title to the land by him but if I suffer five years to passe and doe not make my claime c. by this meanes I may be barred by the fine i Plow 435. And if the fine be levied of another thing then the thing it selfe entailed As if the tenant in taile grant by fine a Rent Common or the like out of the land intailed this fine will not barre the issue So if a Rent be entailed and the tenant in taile of the Rent disseise the terre-tenant of the land out of which the rent doth issue and then levy a fine of the land this is no barre to the issue of the Rent 2. Albeit the fine be a double fine 2 Co. 76. 3. 85. super Lit. 353. Bio fines 118. Dier 279. with a grant and render yet it is within these Statutes and will barre the issue in taile as well as a single fine so as the grant and render be of the land it selfe and not of any profit apprender out of it And therefore if husband and wife be tenants in speciall taile and they levy a fine with proclamations and the Conusee grant and render the land to them and their heires this fine will barre the issue in taile And if tenant in taile joyne with I. S. and levy a fine to a stranger and the stranger doth grant and render the land againe to I. S. for years and to the tenant in taile in fee afterwards the issue in taile is barred by this fine So if there be tenant for life the Remainder in taile and he in remainder in taile accept of a fine from a stranger and grant and render to the stranger againe for years with a remainder over hereby the issue in taile is bound k Plow 435. If tenant in taile accept of a fine of the land entailed from a stranger and then grant and render a Rent out of the land to the stranger by the same fine this will not bind the issue in taile to pay the same Rent l Dier 117. If tenant in taile make a feoffement on Condition and die having two sisters inheritable to the taile and one of them levy a fine with proclamations sur Release to the feoffee of the whole in this case it is doubted whether the other sister be barred of her halfe or not 3. Albeit the tenant in 3 Co. 3. 86. 87. 1 in Shelleys Case taile die before all the proclamations be finished yet when they be finished as they may be after his death the issue in taile are bound by the fine for howsoever by the death of the tenant in taile the right of the estate taile doth descend to the issue yet when the proclamations are passed this right that doth descend is bound by the Statutes and the issue cannot by any claime c. save the right of the estate taile that doth descend unto him 4. Albeit the 4 Co. 3. 84. 91. issue in taile be within age out of the Realme under Coverture non compos mentis or in prison at the time of the fine levied and the proclamations passed yet the estate taile is barred by the fine And therefore if A. be tenant for life of land the remainder to B. in taile the reversion to B. and his heires expectant and B. levy a fine to C. and his heires and hath issue and die before all the proclamations are passed the issue in taile being then out of the Realme the proclamations are made and after the issue in taile cometh into the Realme and claimeth the remainder in taile upon the land in this case the estate taile is barred for ever 5. These Statutes doe extend to fines levied by tenant in taile by 5 Co. 3. 90. Dier 279. Plow 435. Conclusion and the issue shall be bound by the fine of their Ancestor unto whom they are privy in estate and bloud albeit partes finis nihil habuerunt tempore finis And therefore if the issue in taile in the life of his Ancestor when he hath onely a possibility As if there be grandfather father and sonne and the grandfather be tenant in taile and the father levy a fine of the land before the grandfathers death and then the grandfather dye before the father and after the father dye in this case the issue is barred by this fine †Curia Trin 21. Jac. Com. B. Godfry Wades case Dier 48. so also if the grandfather survive the father But in case of a collaterall descent if the collaterall Ancestor die in the life time of his father without issue this fine is no barre but if he survive his father contra So if lands be given to the grandfather and his wife in speciall taile and the grandfather dieth and the father doth disseise the grandmother and doth levy a fine with proclamations the grandmother dieth and then the father dieth in this case the sonne is barred m Co. 3. 50 51. 9. 140. So if lands be conveyed in taile to a woman for her Jointure within the Statute of 11 H. 7. cap. 20. and whiles shee liveth the issue in taile doth levy a fine of the land by this the issues inheritable to the estate taile are barred for ever
n Plow 434 435. So if tenant in taile make a feoffement or be disseised and after levy a fine with proclamations for a stranger hereby his issues are barred for ever o Curia 21. Iac. Co. B. So if tenant in taile die and his issue before his entry having a freehold in law only doth levy a fine with proclamations this shall be a barre to his issues and to his collaterall heires and brothers of the halfe bloud p Idem So if a tenant in taile have foure daughters and one of them levy a fine in the life of the father this will be a barre to her issue for the fourth part of the land q Co. 3. 50 51. 9. 140. But in these cases before and such like where the issue in taile doth levy a fine in the life time of the tenant in taile the tenant in taile himselfe may after levy a fine of the land and thereby barre his issue and the Conusee also to whom his issue hath levied a fine and therefore in all these cases it is supposed that the tenant in taile doth dye and suffer the right to descend to his issue t Co. 10. 50. 9. 141. 3. 50 51. If lands be given by will to one when he shall come to his age of twenty four years to hold to him and the heires of his body and he after his age of twenty one years levy a fine of this land with proclamations this is a barre to the issue in taile If a disseisor make a gift in taile the donee make a feoffment to A. and after levy a fine with proclamations to B. that hath nothing in the land this fine will barre the issues in taile and they shall not avoid it by pleading that partes finis nihil habuerunt c. but it is no barre to the disseisee for he may avoid it by this plea when he will s Co. 3. 84. And à fortiori therefore if a fine be levied by the tenant in taile that hath only an estate of freehold in remainder or reversion is good as if A. be tenant for life the remainder to B. in taile and B. levy a fine albeit this be no discontinuance yet it is a barre to the estate Discontinuance taile t Trin. 21 Iac. Co B. Will. Godfrey versus Wades case But if tenant in taile have issue a sonne and a daughter and the sonne living the tenant in taile levy a fine and dye without issue and then the tenant in taile dieth by this the daughter and the estate taile is not barred So if the younger sonne levy a fine in the life of the father and then the tenant in taile dye this is no barre to the elder sonne So if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the sonne doth levy a fine of the land this is no barre to the daughter So if tenant in taile have a daughter his wife being with childe of a sonne and the daughter levy a fine and after the sonne is borne this fine shall not barre the sonne for these howbeit they be privies and heires to the bloud yet are not privies and heires to the estate 6. Albeit the estate passed by the fine be afterwards 〈◊〉 J Co. 3. 91. before all the proclamations had avoided yet the issue in taile is barred by it And therefore if tenant in taile discontinue in fee and after disseise the discontinuee and levy a fine with proclamations to a stranger and take an estate backe by Render in the same fine and the discontinuee before all the proclamations passe enter and claime and so avoid the fine yet hereby the estate taile is barred a Per Popham et Fenner Iust M. 39. 40. Eliz. B. R. And if tenant in taile infeoffe the issue in taile and after disseise him and levy a fine the issue enter and after the proclamations passe and after the issue in taile doth infeoffe the tenant in taile which levied the fine and dyeth it seemes this fine shall barre the issues in taile 7. This is a barre to the estate taile 7 Co. 1. 76. super Lit. 372. and to the issues onely and is no barre to him in remainder or reversion and therefore when the estate taile is spent this barre is at an end And therefore if an estate be limited to A. and B. his wife and the heires males of the body of A. the remainder to C. and A. and B. have issue and A. dye and B. and her issue or her issue alone levy a fine this will barre the issues of the issues whiles there be any but they faile it will not barre C. in remainder except he suffer five years to passe and so be barred by his non claime So if tenant for life and he that is next in the remainder in taile joyne in a fine this is a good barre to the issues in taile for ever as long as that estate taile shall continue but not to him that is next in remainder nor to any other that shall come in of any remainder in taile or in fee nor to him in reversion x Co. 10. 96. 9 Iac. B. R. If lands be given to A. and the heires males of his body the remainder to B. and the heires males of his body the remainder to the right heires of A. and A. doth bargain and sell this land by deed indented and inrolled to I. S. and his heires and after levy a fine of it sur Conusance de droit come ceo c. to him and his heires by this the remainder to B. is Discontinuance not discontinued but it is a barre to the estate taile by the Statutes and causeth the estate of the bargainee to last so long as the tenant in taile hath issues of his body but if the fine had been before the bargaine and sale it had been a discontinuance of the remainder but in neither case a barre to him in remainder unlesse he suffer himselfe to be barred by his non-claime within five yeares after his remainder happen to come in possession 8. If there be 8 Co. super Lit. 372 tenant in taile the remainder to him in taile and the tenant in taile levie a fine of this land hereby both his estates are barred Et sic de similibus y y Bro. Fines 121. Co. 6. 55. Dyer 4. Co. super Lit. 372. Co. 8. 17. 78. But all this notwithstanding If lands be conveyed to a woman in taile for her joynture within the Statute of 11 H. 7. chap. 20. and she levie a fine of this land this will not barre the issues in taile Or if lands be given in taile to any subject by the Kings own gift or provision and the tenant in taile levie a fine this fine shall not bind the issues in taile nor the King but others it will barre for these fines are
not intended within but excepted out of the Statute of 32 H. 8. but the King himselfe being tenant in taile of the gift of some of his Ancestors being subjects may levie a fine of it to barre his issues in taile And in all cases where a recovery will not barre the issues in taile there a fine will not barre them Albeit the fine of the husband and wife together of the wives Dyer 72. Plow 373. 2 Wife barred by the fine of her husband or some other land or of the land of the husband and wife together be a perpetuall barre to her and her heires for ever yet if the husband alone levie a fine with Proclamations of such land and then he die in this case shee is not barred of her right but if she doe not make her claime c. within five yeares after her husbands death she is barred of her right for ever notwithstanding the Statute of 32 H. 8. a M. 18. Jac. Co. B. in Anne Twists case And if one seised of land in fee mary a wife and after make a lease of this land to A. for life the remainder to B. in fee and B levie a fine with Proclamations and the husband die and the wife doe not make her claime c. within five years after the death of her husband hereby she is barred of her dower for ever notwithstanding the estate for life in A. but if the remainder of B. had been put to a right at the time of the fine levied she might have avoided the fine by Plea Quod partes finis nihil habuerunt c. b Dyer 224. Co. 2. 93. And if the husband levy a fine of his owne land and die and his widow having no impediment doth not make her claime within five yeares after his death hereby she is barred of her dower for ever c Dyer 358. If a jointure be made to a woman after the coverture and her husband and she levie a fine of it hereby without question she is barred of her jointure in this land but it is thought that this is no barre of her dower in the residue of the land of the husband and especially then when the fine is Sur conusance de droit come ceo c. d Dyer 351. If lands be given to a man and his wife in taile the remainder to the right heires of the husband and the husband alone levie a fine of this this will not barre the wife except she suffer five years to passe after his death without making claime c. and therefore if the fine be to the use of the husband and his heirs in fee he may dispose it as a fee simple and his issue hath no remedy If a man disseise me of the land I have in fee simple or fee taile 3. Disseisee and the like barred by the fine of the disseisor c. Co. 9. 105. 3. 87. super Lit. 298. and after levie a fine of this land with Proclamations and I doe not make my claime c. within five years after the Proclamations had hereby I and my heires are barred for ever of this land And if I being such a tenant in fee make a lease for years or be the Lord of any Copyhold estate and my lessee for yeares or Copyholder in fee or for life be ousted and I thereby disseised and the disseisor levie a fine and neither I nor my lessee for yeares or Copyholder doe make any claime c. within the five years after the fine levied hereby we are all barred for ever And if one disseise me of land and after make a lease for life of it and then levie a fine with Proclamations and I suffer five yeares to passe hereby I am barred both of the reversion and of the estate for life also If tenant for life make a feoffment in fee and the feoffee levie Plow in Stowels case a fine with Proclamations and he in reversion or remainder doe not make his claime c. within five years hereby he is barred for ever If I pretend right or title to land and enter upon it and put him Co. 3. 79. out that is in possession and then I levie a fine with Proclamations with an intent to barre him and he doth not make his claime c. within five years hereby he is barred for ever albeit he had the true right and I no right at all If I purchase land of H. and after perceiving my title defeasible and that a stranger hath the right of the land I doe levie a fine Co. 3. 79. Doct. St. 83. 155. to or take a fine from another with Proclamations with intent and of purpose to barre him that hath right and he suffer five yeares to passe and doth not make his claime c. hereby hee is barred of his right for ever And in these and such like cases there is no reliefe Equitie to be had in equity See more in Numb 11. infra If there be tenant in taile the remainder in taile and the tenant 9. Where a Fine shall be a barre as to one person and not to another or as to one part of the land and not to another Co. 10. 95. 9. 106. in taile bargaine and sell the land by deed indented and inrolled and after levie a fine with Proclamations to the bargainee Sur Conusance de droit come ceo c. in this case as to the tenant in taile and his issue this is a barre but as to all others it is no barre albeit they never make any claime c. So if tenant in taile levie a fine of his intailed land this is a barre as to him and his issues but as to all others it is no barre at all and therefore he in remainder or reversion in their times may enter notwithstanding e Co. 9. 140. 142. So if lands be entailed to the husband and wife and the heires of their two bodies and the husband alone levie a fine of this land this as to the husband tenant in taile and his issues is a barre but not as to the wife for she shall be tenant in taile still and yet it seems she may not suffer Recoverie a recovery of this land afterward So if a man attainted of felony or treason levie a fine of his land this as to the King and Lord of whom the land is held is void and is no barre to their advantage and title of forfeiture but as to all others it is a good barre f 7 H. 4. 44. F. N. B. 98. Plow So if one levie a fine of Lands in Ancient demesne and of other lands together this as to the lands in Ancient demesne is not good nor any barre at all but as to the other lands it is a good barre By the ancient common law he that had right was bound to Co. super Lit. 254. 262 make claime c.
rent out of the land generally without any limitation this shall be construed to enure for a grant of the rent so long as the estate of the grantor doth continue But if he grant a rent by expresse words for the life of the grantee by this the grantee shall have it for all the terme if he live so long If one grant lands to I S To have and to hold to him for life Co. super Lit. 218. reserving the first seven years a rose and if he will hold the land over that he shall pay a rent in money and no livery of seisin is made by this it seemes in certaine is made a lease for seven years untill the Condition be performed and then also it seemes it is a lease for no longer time And so perhaps it will be if livery of seisin be made If one grant a rent of 5 l. per annum unto I S To have and to Co. super Lit. 42. Plow 273. hold to him c. untill he shall receive 20 l. in this case he shall have a lease for foure years of this rent But if lands be granted to I S To have and to hold c. untill he shall receive 20 l. out of the profits of it in this case if livery of seisin be made the grantee hath an estate determinable upon the levying of the money and if no livery be made he hath no estate at all but at will If one make a lease for life and say that if the lessee within one Co. super Lit. 218. yeare pay not 20 s. that he shall have but a term for 2. years by this if he doth not pay the money he hath only a lease for 2. years albeit livery of seisin be made upon it If one make a lease to I S To have and to hold to him his executors Co. 9. 63. 60. c. for 10. years if I D shall live so long and I D is dead at the time when the lease is made in this case I S hath an absolute lease for 10. years If one grant lands to I S To have and to hold to him his executors Plow 273. Co. super Lit. 45. Dier 24. c. for 3. years and so from 3. years to 3. years during the life of I S or from 3. years to 3. years during the life of the lessee by this it seemes I S hath a lease for 6. years and no more And if one grant lands to I S To hold for 3. years and after the end of those 3. years for 3. other years and after the end of those 3. years for 3. other years during the life of the lessor by this it seemes I S hath a lease for 9. years and no more And yet if in these and such like cases where a lease is made from so many years to so many for the life of any person livery of seisin be made upon this deed secundum formam chartae this perhaps may be an estate for life If lands be granted To have and to hold from our Lady day pro termino unius Anni sic de uno Anno in unum Annum quamdiu 14 H. 8. 10. Co. 6. 35. 10. 106. ambabus partibus placuerit by this the grantee hath a lease for 3. years only in certain and afterwards a lease at will And if lands be granted to have and to hold from the Nativity of Christ next pro termino unius Anni et si in fine dict' unius Anni ambae partes placerent quod eadem presens dimissio foret renovata tunc habend premissa to the lessee c. ab post dictum festum Nativitatis Domini usque terminum trium Annorum extunc prox ' sequen ' by this the grantee hath a lease in certaine but for one year only and if the parties agree againe a lease for 3. years If one make a lease to I S To have and to hold to him for years Co. 6. 35. 21. H. 7. 38. and say not how many years by this the lessee hath a lease for 2. years and no more If one grant his land to I S To have and to hold to him untill Co. 3. 19. I D shall come to 21. years of age in this case if I D die before that time the lease is ended If a man possessed of a terme of years of land doth grant the land to another and his heirs this by construction will amoumt Co. 1. 44. 7 H. 4. 42. to a good grant of his interest If lands be granted to husband and wife and to I S To have Limitation of estates to divers persons Dier 263. and to hold to them and to the heires of the husband and I S by this the wife hath only an estate for life in a moity w th her husband and the husband and I S have the feesimple in Jointenancy to them and their heires Co. 8. 87. 10. 50. super Lit. â—5 Dier 145. If lands be granted to two brothers or two Sisters or to a brother or sister or to a father and sonne or any others To have and to hold to them and the heires of their bodies begotten by this they have joint estates for their lives so that the survivor of them will have the whole for his life and severall inheritances i. estates in generall taile by moities in common one with another And if lands be granted to two men and their wives and the heires of their bodies begotten in this case they have joint estates for life and afterwards the one husband and wife shall have the one moity and the other the other moity in common And and if lands be granted to a man and two women To have and to hold to them and the heires of their bodies by this they have each of them an estate taile in common with the other If lands be granted to husband and wife To have and to hold Lit. Sect. 27 28 29. Co. super Lit. 26. Dier 340. Co. 1. 100. to them and their heirs of their bodies issuing or in any such like manner by this the wife hath an estate taile as farre forth as the husband But if it be granted to them To have and to hold to them and the heires of the body of the husband or to the husband and wife and the heires of the husband which he shall have by his wife or in any such like manner by this the wife hath only an estate for life and the whole estate taile is in the husband So via versa if lands be granted to husband and wife and the heires of the wife upon her body begotten by the husband by this he hath an estate for his life only and his wife the whole estate taile And if lands be granted to the husband To have and to hold to him and the heires of his body on the body of his wife begotten or To have and to hold to him and
use of B and his heires on condition that B shall pay to the feoffor twenty pound such a day this is a good condition So if one covenant to stand seised of lands to the use of B and his heirs on condition that if he pay him tenne pound the use shall be void or the like Also a condition may be Dier 1â—6 348. annexed to an estate created by Will as if one devise land to I S for his life Provided that he pay ten pound yearly to I D this is a good condition Whereof see in Testament A rent or any such like thing may be granted on condition that Co. 8. 17. 24 â—d 3. 29. if such a thing bee or bee not done the rent shall cease for a time and then revive again and this condition is good But in case of land it is otherwise for that cannot bee granted after this manner Also a condition to make an estate void for a part of the time is not good And therefore if a feoffment bee on condition that upon Co. 1. 86. Perk. Sect. 718. Co. 4. 121. Dier 6 such a contingent the feoffor shall enter and have the land for a time or the estate shall be void for a part of the time or make a lease for ten years provided that upon such a contingent it shall be void for five years these conditions are not good And yet if a feoffment bee made of two acres provided that upon such a contingent the estate shall bee void as to one acre onely this is a good condition A condition that a stranger or the heir of the feoffor shall doe Co. super Litt. 214. Doct. Stud. 94. 159. 100. Co. super Litt. 379. Co. 1. 84. Dier 33. 21 H. 7. 11. Dier 4. Co. 8. 95. an act is good as if a feoffment be made to I S on condition that I D shall pay to the feoffor ten pound at Easter next or if a feoffment be made on condition that if the heir of the feoffor pay twenty shillings to the feoffee that the feoffor and his heirs shall reenter But a condition to give a stranger a reentry is void so farre forth And therefore if an estate bee made upon condition that upon such a contingent a stranger shall enter or the estate shall cease and another shall have it howsoever this may be so drawne as it may be a good condition to give him his heirs c. that doth make the estate an entry yet it cannot be good to give the estate or the entry to the stranger So if a feoffment be made on condition that upon such a contingent the feoffor and a stranger shall enter this is not good to give an entry to the stranger but it is good to give the feoffor a reentry And yet by will a man may devise a terme after this manner If a man enfeoffe another upon condition that he and his heires Co. super Litt. 213. shall render to a stranger and his heires a yearely rent of twenty shillings c. and if hee faile of payment thereof that the feoffor shall reenter albeit this as a reservation of rent is meerely void and the condition that doth call it a rent is meerly mistaken yet the condition is good and ut res valeat the words shall be taken contrary to their proper sense If I enfeoffe I S of land on condition that if I D give to him ten Perk. Sect. 798. pound or goe to Rome before such a day c. that then the feoffee shall pay to me ten pound c. this is a good condition If a feoffment be made to one and his heirs on condition that if Co. super Litt. 207. the feoffee pay to the feoffor ten pound hee shall have the fee of land this is not a good condition But if he say further And if he fail to pay that the feoffor shall reenter this is good If a gift in tail be made to a man and the heirs of his body and Co. super Litt. 224. if he die without heirs of his body that then the donor and his heirs shall reenter this is a void condition for when the issues fail the estate is at an end Conditions that are so penned as they are insensible and altogether Muddy Gardners case Adjudge pasche 14. Jac. B. R. Co. 6. 41. incertain are void as if one make a lease on condition that if the rent be behinde to restrain and if there bee not sufficient the ground to enter into the premisses this condition is void for insensibility and the estate is absolute Et sic de similibus A condition to enlarge or encrease an estate may be good as if Co. 8. 75. Plow 477. 481. Litt. Sect. 350. Perk. Sect. 710. Plow 135. 10 Ass pl. 15. Perk. Sect. 745. 707. Plow 25. Litt. Sect. 707. 350. Plow 272 482 483. 4 H. 7. 4. See more in the Lord Staffords case Co. 8. 73. To enlarge an estate a gift be made in tail or a lease be made for life or years on condition that if such an act be done or not done the lessee shall have the land to him and his heirs as if one make a lease for life to one and if the lessor die without heir of his body then he doth grant the land to the lessee and his heirs for ever Or if land be granted to a man for 5 years on condition that if the grantee pay to the grantor within the two first years ten pound then that he shall have the â—eesimple otherwise that he shall have the land but for five years and livery of seisin be made according to the deed this is a good condition and by this upon the performance of the condition the feesimple will passe So if one grant land for five years rendring rent and that if the lessee will hold it over to him and his heirs that he shall pay twenty pound rent this is a good condition and if be pay the rent he shall have the feesimple So if a man make a lease for years and at the same time for the surety of the terme to the lessee makes a feoffment to him upon condition that if he be disturbed in his term he shall have the feesimple of the land and deliver both these deeds at one time and give livery of seisin accordingly this is a good condition So if a lease for life be made upon condition that if the lessor or his heirs pay to B or his heirs ten pound at a certain day that then the lessor may reenter and if he doe not pay it at that time and the lessee pay to the lessor or his heirs ten pound at a certain day after the former day that then the lessee shall have the land to him and his heirs for ever this is a good condition But in all cases where these kind of conditions are good to make the increased estate good there
a man by his last Will and Testament devise lands to antoher man for life or in tail rendring rent to this estate there is a warranty in Law annexed The words Dedi concessi or Dedi onely in a feoffment make a Co. super Litt. 384. F. N. B. 134. Co. 4. 80. good warranty in Law But the word Concessi onely in fine or feoffment doth not make a warranty in law And albeit there be an expresse warranty in the deed yet this doth not take away the implied warranty of the Law And this warranty in Law by Dedi Concessi or by Dedi onely is a generall warranty during the life of the feoffor Every partition and exchange implieth in it and hath annexed Partition Exchange Co. super Litt. 102. 384. to it a speciall warranty in Law and how it shall bar and be extended see in Exchange Every tenure by homage Auncestrel i. where a tenant and his Co. 4. 80. Auncestors have held land of a Lord and his Auncestors time out of mind by homage hath a warranty in Law annexed to it by which the Lord is bound to warrant it to the tenant and his heirs If one make a gift in tail or lease for life of land by deed or without Co. super Litt. 334. deed reserving a rent or of a rent-service by deed in these cases there is annexed an implied warranty against the donor or lessor his heirs and assignes When dower is assigned to a woman there is a warranty in Law included which is that the tenant in dower being impleaded shall Co. super Litt. 384. vouch and recover in value a third part of the two parts whereof she is dowable And this warranty in Law is of the nature of a lineall warranty Co. super Lit. 384. and shall bind as a lineall warranty onely for it doth never barre any collaterall title And hence it is that this warranty and assets in some cases is a good bar as if tenant in tail exchange for other lands which are descended to the issue and he hath accepted of them or if not that other lands are descended to him But if tenant in tail of lands make a gift in tail or lease for life rendring rent and die in this case this is no bar And yet if other assets in fee simple descend this warranty in Law and assets is a good bar To every good warranty in deed that must barre and binde these Co. super Litt. 367. 7. What shall bee said a good warranty in deed Or not And how it shall bar and bind Infant things are requisite 1. That the person that doth warrant bee a person able for if an infant make a feoffment in fee of land and thereby doth binde him and his heirs to warrant the land in this case albeit the feoffement bee onely voidable yet the warranty is void 2. That the warranty be made by deed in writing for if a Litt. Sect. 703. Co. super Litt. 386. man make a feoffement by word and by word binde him and his heirs to warrant the land this is not a good warranty So if a man give lands to another by his last Will and thereby binde him and his heires to warrant it this warranty albeit the Will bee in writing is void 3. That there be some estate to which the warranty Co. 10. 96. Super Litt. 384. is annexed that may support it for if one covenant to warrant land to another and make him no estate or make him an estate that is not good and covenant to warrant the thing granted in these cases the warranty is void 4. That the estate to Co. super Litt. 378. 26 H. 8. 9. which the warranty is annexed bee such an estate as is able to support it and therefore that it be a lease for life at the least for if one make a lease for years of land and bind himselfe and his heires to warrant the land this is no good warranty neither will it have the effect of a warranty but this may amount to a covenant on which an action of covenant may be brought 5. That the wartanty Co. super Litt. 12. Litt. fol. 161 Sect. 735. 〈◊〉 descend upon him that is heir of the whole bloud by the common Law to him that made the warranty and not upon another for if tenant in tail in Burrough English where by custome the youngest son is to inherit discontinue the tail and have issue two sons and the Vncle release to the discontinuee with warranty and dieth this is no good warranty to binde the sonne So if in this case tenant in taile discontinue the taile with warranty c. having two sonnes and die seised of other lands in the same Burrough in fee simple to the value of the lands in taile the younger sonne is not barred by this warranty So if one give his land Litt. â—o 161. to the eldest sonne and the heires males of his body the remainder to the second sonne c. and the eldest sonne doth alien with warranty having issue a daughter and die this is no good warranty to barre the second sonne So if tenant in taile have issue two daughters by divers venters and die and they enter and a Litt. Sect. 737. stranger doth disseise them and one of them doth release all her right and binde her and her heires to warrant it in this case the warranty is not good to barre the sister but if they had beene by one venter contra So if two brothers be by demy venters and Co. super Litt. 387. Litt. Sect. 718. the eldest doth release with warranty to the disseisor of the uncle and dieth without issue and the younger dieth this is no good warranty to barre the younger brother for a warranty must evermore descend upon him that is heire at the Common Law to him that made it 6. That he that is heir doe continue to be so and Litt. Sect. 745. 746. that neither the descent of the title nor the warranty be interrupted for if one binde him and his heires to warrant and after is attainted of treason or â—elony and die this warranty doth not binde his heire So if tenant in taile be disseised and after release to the disseisor with warranty and after the tenant in taile is attainted of felony and hath issue and die this warranty will not bind the issue 7. That the estate of freehold that is to bee Co. 10. 96. 97. super Litt. 388. 21 H. 7. barred be put to a right before or at the time of the warranty made and that he to whom the warranty doth descend have then but a right to the land for a warranty will not barre any estate of freehold or inheritance in esse in possession reversion or remainder that is not displaced and put to a right before or at the time of the warranty made though after at the time
of the descent of the warranty the estate of freehold or inheritance be displaced and devested And therefore if there be father and son and the sonne â—â—th a rent-service suit to a mill rent-charge rent-seck common of pasture or other profit apprender out of land of the father and the father maketh a feoffment in fee with warranty and dieth this shall not barre the sonne of the rent common c. And albeit the sonne after the feoffement with warranty and before the death of the father had been disseised and so being out of possession the warranty had descended upon him yet this warranty should not binde him So if my collaterall Auncestor release to my tenant for life with warranty and die and this warranty descend upon me this shall not binde my reversion or remainder But if in the case before the sonne be disseised of the rent c. and affirme himselfe to be disseised by the bringing of an Assise for otherwise he shall not be said to be out of possession of a rent or the like and after the father doth release with warranty and die in this case the collaterall warranty shall binde and barre the son of his rent c. And if in the last case my tenant for life be disseised and my Auncestor doth release to the disseisor with warranty and die this is a good warranty to barre and bind me 8. That Litt. Sect. 734. the warranty doe take effect in the life time of the Auncestor and thâ—t he be bound by it for the heire shall never be bound by an expresse warranty but where the Auncestor was bound by the same warranty and therefore a warranty made by Will is void 9. That the heire claim in the same right that the Auncestor doth Co. super Litt. 370. for if one bee a successor onely in case of a corporation hee shall not be bound by the warranty of a naturall Auncestor 10. That Litt. Sect. 726. Co. 1. 67. 140. super Litt. 380. the heire that is to be barred by the warranty be of full age at the time of the fall of the warranty for if my Auncestor make a feoffment or a release with warranty and at this time I am within age and after he die and the warranty descend upon mee within age this warranty shall not bind me but if I become of age after the warranty of my Auncestor and before his death in this case the warranty may barre mee And in the first case it will barre me also whiles it is in â—orce but I may by my entry avoid it And the same Law is of a woman covert And yet if the entry of an infant or a woman covert be not lawful when the warrantie doth descend in this case the warrantie shall binde them as well as any other for such a warrantie cannot be avoided but by entrie and avoiding the estate And where the husband is within age at the time of the descent of a warranty to his wife and the entrie of the wife is taken away there the warranty shall bind the wife If lands be given to A for life and after to the next heir male Co. 1. 66. 44 Ed. 3. 30. 44 Ass pl. 35 of A and the heires males of the body of that heire male and A having issue B makes a feoffment of the land with warrantie to I S this is a good warrantie and a barre to the issue for a man may be barred of his right by a warrantie which hee could never avoid as where lessee for life is disseised and a collaterall Auncestor of the lessor doth release to the disseisor with warrantie and die and this doth descend upon the lessor by this he is barred A warrantie made for life or in taile is good and shall binde Litt. Sect. 738 Co. super Litt. 387. for so long onely as if tenant in taile of land let it for life the remainder to another in fee and a collaterall Auncestor doth confirme the estate of the tenant for life and die and the tenant in taile hath issue this is a barre to the issue during the life of the tenant for life And in this case upon a voucher the recovery in value shall be put for life onely If one make a gift in taile and grant to warrant the land given Co. 10. 96. according to the gift this warrantie is good no longer then the estate doth last And no warrantie that a donor can make in this case can bar him of the land if the donee die without issue and the estate determine And where a warranty doth bar it is entire and doth extend to Co. 8. 52. super Litt. 373. all the land and to all persons upon whom it doth descend and is a barre of all the right that every one of them hath in the land so that if they have all right jointly or severally or one onely hath all the right and the rest none he that hath the right is barred And therefore if lands be given to A and the heirs of his body and for want of such issue to E his sister and the heirs of her body and A doth make a feoffment with warrantie and die without issue having two sisters E and S this is a bar to E for the whole albeit the warranty descend on her and another If there be tenant for life the remainder to his sonne and heire Co. 5. 79. apparant in taile and the father doth a feoffement in fee with warrantie and dieth in this case this is a good warrantie and will bar the son albeit it be made of purpose to bar him But if by agreement and covin between him and A and B he make a lease to A who makes a feoffment in fee to B to whom the father doth release with warrantie thinking by a collaterall warrantie to bar his son this is no bar for this warrantie began by disseisin And if in the first case the son doth enter in the life time of the father upon the land he doth avoid the warrantie If the father bee tenant for life the remainder to the next heire Co. 1. 66. male of the father and to the heires males of the body of such next heire male and the father makes a feoffment to I S with warrantie and dieth it seems this warrantie is a good bar to the heir and in this case the heir cannot enter in the life time of his father for he cannot be heire male unto his father untill his fathers death If tenant for life make a feoffement with warrantie or be disseised Co. super Litt. 366. 365. Co. 1. 67. Stat. Glouâ— ch 〈◊〉 6. Litt. Sect. 724 725. and release with warrantie and he in reversion being heir to the tenant for life doth not enter but suffer the lessee for life to die and thereby the warrantie to fall and descend upon him in this case this warrantie generally is a bar without any
Sect. 719. be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the donee doth make a feoffment with warrantie and hath issue a sonne and a daughter and dieth this warrantie is lineall to the sonne and if the sonne die without issue male it is a lineall warrantie from the father to the daughter But if the brother in his life time release to the discontinuee c. with warrantie c. and after dieth without issue this is a collaterall warranty to the daughter Litt. Sect. 714. If lands bee given to the husband and wife and the heires of their two bodies engendred and they have issue and the husband discontinue and die and after the wife doth release with warrantie and die this is a lineall warrantie And if lands be given to a Co. super Litt. 375. man and a woman unmaried and the heirs of their two bodies and they intermary and are disseised and the husband doth release with warrantie and dieth and after the wife dieth this is a lineall warrantie to the issue for all the land And if tenant in taile Litt. Sect. 718. have issue three sons and discontinue and the middle brother doth release with warrantie and die without issue and after the father dieth and after the elder brother dieth without issue and after the father dieth and after the elder brother dieth without issue so that the warrantie doth descend to the younger brother this is a â—neall warrantie to him And if a father give land to his eldest son and the heirs males of his body c. the remainder to the second sonne c. if the eldest son alien in fee with warrantie c. and hath issue female and dieth without issue male this is a lineall warrantie to the second sonne And in all these cases of a lineall warrantie if Litt. Sect. 711 712. Doct. St. 152 153. Co. 8. 52. the right of the estate to be barred bee the right of an estate in fee simple it is a barre without any assets for the rule is That as to him that demandeth fee simple by any of his Auncestors he shall bee barred and bound by a lineall warrantie that doth descend upon him unlesse hee bee restrained by some Statute But it doth not binde the right of an estate in fee taile without assets for in that case the rule is That as to him that demandeth fee taile by writ of Formedon in the Descendor he shal not bee barred by a lineall warrantie unlesse he hath assets by descent in fee simple of other land from the same Auncestor that made the warrantie and then it is a barre for so much onely as doth descend to him no more And yet if the issue in taile doe Co. super Litt. 393. alien the assets descended and die in this case the issue of that issue is not barred by this warrantie and assets But if the issue to whom the warrantie doth descend bring his writ of Formedon and is barred by judgement by reason of the warrantie and assets in this case albeit he alien the assets afterwards yet the estate taile is barred for ever If tenant for life do alien in fee with warrantie or be disseised Co. 1. 67. 21 H. 7. 10. Litt. Sect. 725. 9. What shall bee said a collaterall warranty And how such a warranty shall bar release to the disseisor with warrantie and die and the warrantie descend on him in reversion or remainder this is a collaterall warrantie So if the lessee for life be disseised and a collaterall Auncestor of him in reversion release with warrantie and die and the warrantie descend on him in reversion this is a collaterall warrantie for that is collaterall which is collaterall to the title of the Litt. Sect. 707. Doct. St. 152. land And if a man seised of lands in fee have issue two sonnes and the father dieth and the younger sonne doth enter and doth alien the land with warrantie and die without issue this is now a collaterall warrantie that is descended on the elder brother And if a sonne bee disseised of his own land and bring an 21 H. 7. 10. Assise and after the father doth release to the disseâ—sor with warranty and dieth this warrantie that doth descend to the sonne is a collaterall warrantie And if a father disseise his son of the land Litt. Sect. 704. he hath of his own purchase without any intent to alien afterwards and to barre his sonne and after he doth make a feoffment wich warrantie and die before the entrie of his sonne so that the warrantie doth descend this is a collaterall warrantie If there bee Litt. Sect. 707. father and two sonnes and the father is disseised and the younger sonne doth release wiâ—h warrantie to the disseisor and die without issue and then the father dieth in this case the warrantie now descended is a collaterall warrantie If a lease be made Co. super Litt. 388. for life to the father the remainder to his next heir and the father is disseised and doth release with warrantie and dieth this is a collaterall warrantie to the heire And if the husband discontinue the right of his wife and an Auncestor collaterall to the wife to whom she is heir doth release with warranty and die and after the husband dieth this is a collaterall warranty and a bar to her And in every case where a man doth demand an estate taile by a Co. 10. 96. Litt. Sect. 709. Plow 234. Kelw. 78. writ of Formedon if any Auncestor of the issue in tail which hath or hath not possession maketh a warranty and the issue that is demandant cannot by any possibility that may be done convey to him a title by force of the gift from and by him that made the warranty this is a collaterall warranty as if tenant in taile discontinue the taile and die having issue and the uncle of the issue doth release with warranty to the discontinuee and die without issue so that the warranty doth descend on the issue in taile this is a collaterall warranty So if such a discontinuee make a feoffment in fee or be disseised and the uncle release with warranty to the disseisor or feoffee and die without issue and the warranty doth descend on the issue this is a collaterall warranty If a tenant in taile have Litt. Sect. 708. three sons and discontinue the tail in fee and the middle brother doth release to the discontinuee with warranty and after the tenant in taile dieth this is a collaterall warranty to the elder brother If one have issue three sonnes and giveth land to the eldest Litt. Sect. 716. and the heirs of his body and for want of such issue to the middle and the heirs of his body the remainder to the third and the heires of his body and the eldest doth discontinue the
taile in fee with warranty and die without issue this is collaterall to the middle sonne In the same manner it is in case where the middle sonne hath the same land by force of the same remainder because his elder brother made no discontuance but died without issue of his body and after the middle brother doth make a discontinuance with warranty c. and dieth without issue this is a collaterall warranty to the youngest sonne And in this case if any of the sonnes be disseised and the father that made the gift c. releaseth to the disseisor all his right with warranty this is a collaterall warranty to the son upon whom the warranty doth descend If lands be given to A and the heirs of his body and Co. 8. 52. Litt. Sect. 713. for want of such issue to E his sister and the heires of her body and A doth make a feoffement with warranty and die without issue having two sisters E and S this is a collaterall warranty to E. If lands be given to a man and the heires of his body begotten Litt. Sect. 741. who taketh a wife and hath issue a son by her and the husband doth discontinue the taile in fee and dieth and after the wife doth release to the discontinuee with warranty and dieth and the warranty doth descend to the sonne this is collaterall to him If tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile doth release to the disseisor with warranty in fee and dieth without ifsue and the tenant in taile hath issue and dieth this is collaterall as to the issue If tenant in tail have issue two daughters and die and the elder enter into all to her own use thereof make a feoffment in fee with warranty and die without issue this warranty as to the other sisters part is collaterall but not as to her own If Co. super Litt. 373. the husband and wife tenants in speciall tail have issue a daughter and the wife die and the husband by a second wife have issue another daughter and discontinueth in fee and dieth and a collaterall Auncestor of the daughters release to the discontinuee with warranty and dieth and the warranty descend upon both the daughters this is a collaterall warranty to them If lands be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the father die and the brother release with warranty and die without issue this is collaterall to the daughter If tenant in taile make a lease for life the Litt. Sect. 738. remainder to another in fee and a collaterall Auncestor doth confirm the estate of tenant for life with warranty and die and after the tenant in taile die having issue this is a good binding collaterall warranty during the estate for life And in all these and Litt. Sect. 712. Co. super Lit. 374. Co. 10. 96. Stat. of Glouâ— ch 3. Co. super Litt. 365. Stat. 11 H. 7 chap. 20. such like cases of a collaterall warranty whether the right bee the right of an estate taile or the right of an estate in fee simple that is to be barred it is a bar without any assets for in this case the rule is That a collaterall warranty is a barre to him that demandeth fee simple and also to him that demandeth fee taile without any other descent of lands in fee simple so that the heir on whom the same warranty is descend can never have the land so warranted whiles the warranty doth continue in force but is bound thereby except it be in some speciall cases restrained by Act of Parliament as where the husband alone during his wives life or after her death being tenant by the curtesie make a feoffement by fine or deed of his wives land which shee hath by descent or purchase with warranty this will not barre her heire without assets of other lands in fee simple descended from the same Auncestor that made the warranty Or where a wife after her husbands death shall alone or with her succeeding husband alien release confirm or discontinue with warranty the land she holdeth in dower or in taile of the gift of her former husband or any of his Auncestors this warranty is voidable and will not binde with assets If the son purchase land c. and after let it to his father or any Litt. Sect. 699 700 701 702. Finch 82. Co. super Litt. 〈◊〉 10. What shall be said a warranty that doth begin by Dissâ—â—sin And wâ—at such a warranty doth work other Auncestor for years or at will and he by his deed doth infeoffe a stranger and that with warranty and after dieth whereby the warranty doth descend upon the heire this warranty doth commence by disseisin So if tenant by Elegit Statute Merchant Guardian in Chivalry or Soccage or because of Nurture make a feoffement with warranty and this warranty doth descend on his heir this warranty doth commence by disseisin So if one that hath no right at all enter into my land and make a feoffement to another with warranty So if one Coparcenor enter into the whole land and make a feoffement in fee with warranty this warranty as to the one moity doth begin â—y disseisin So if father and sonne purchase lands to them jointly c. and the father alien the whole to another with warranty c. and after the father dieth this warranty as to the one moity doth beginne by disseisin But if the purchase bee to them two and the heires of the sonne it is otherwise for if the sonne enter in the life time of the father the warranty is avoided for all but if hee doe not enter then as to the fathers moity it is a collaterall warranty And if the purchase be to the father and son and the heirs of the father and the father alien with warranty c. in this case the warranty is good for the whole If the father be tenant for life the remainder to his son and heir Co. 5. 80. super Litt. 366. 367. in fee and the father by covin and consent of purpose to bar the heir by a collaterall warranty maketh a lease for years to the end that the lessee should make a feoffment in fee that the father may release to the feoffee with warranty and all this is done accordingly and the father dieth and the warranty doth descend to the sonne in this case the warranty shall be said to beginne by disseisin But if the father in this case make a feoffement in fee with warranty and die this is a good warranty to binde the sonne albeit it be done of purpose to bar him So if one brother make a gift in taile to another and the uncle doth disseise the donee and infeoffeth another with warranty the uncle dieth and the warranty descendeth on the donor and
is not a good exchange And by the same reason it should seeme if lessee for twenty yeares of his land exchange with another for other land for forty yeares that this should not be a good exchange o Perk. Sect. 276. But if lessee for life be of an acre of land and he give another acre of land to his lessor in fee taile in exchange for a release of all his right in the acre that he holdeth for terme of his life To hold to him and the heires of his body engendred this is a good exchange p Co. 11. 80. Or if tenant for his owne life exchange with him that is tenant in taile after possibility of issue extinct this exchange is good q Perk. Sect. 275. 19 H. 6. 27. And yet if an estate for life be expressed to the one party upon the exchange and no estate is expressed to the other party it is said that this exchange is not good and yet where no estate is expressed the party shall have an estate for his owne life But in these cases it is not necessary that the parties to the Co. super Lit. 51. Perk. Sect. 289. Lit. Sect. 65. Perk. Sect. 280 281. Husband and wife Tenant in tail exchange be seised of an equall estate at the time of the exchange made for if tenant in taile or husband in right of his wife exchange their land in fee simple with another for lands he hath in fee simple this is a good exchange untill it be avoided by the issue or the wife r Idem Neither is it necessary that both estates be in possession for one may grant an acre in possession in exchange for an acre in reversion and this exchange is good s Idem Neither is it necessary that there be an equality in the value or quantity of the lands exchanged for if the land of one of the parties be worth one hundred pound and the land of the other but tenne pound or the land of one of the parties be one hundred acres and the land of the other but tenne acres if the estates given be equall the exchange is good t Idem Neither is equality in the quality or manner of the estates requisite For if two Jointenants be in fee of an acre of land and they grant that acre to another in exchange for other lands To have and to hold a moity to one of them and his heires and a moity to the other and his heires which is an estate in common or two men give lands in exchange to A and his heires for lands from A to them two and their heires albeit the one party hath a joynt estate and the other a sole estate yet the exchange is good The like law is if the land of one of the parties be of a defeasible title and the land of the other of an undefeasible title this exchange is good till it be avoided The fifth and last thing required in a good exchange is that there Co. super Lit. 50 51. Co. 1. 98. 105. Perk. Sect. 284. 286. 292. 289. be an execution and perfection of the exchange by entry or claime 5. In respect of the execution of it in the life time of the parties viz. That both the parties to the same exchange do enter into the things taken in exchange if they be such things as they may enter into for untill the exchange be executed by entry or the like the parties thereunto have no freehold in deed or in law in the things exchanged albeit the same things do lie in one County And if either of the parties die before he enter into the lands by him taken in exchange hereby the whole exchange is become void if his heir will but if one of the parties enter he shall not first begin to avoid the exchange But if the parties enter at any time during their lives it is sufficient unlesse the possession be before devested by an elder title as by entry for a condition broken entry by a disseisee or his heir or the like and not revested again before the entry As if an exchange be had betweene two of land and before their entry by force of the exchange they are or one of them is disseised of the land exchanged and the disseisor die seised thereof and then they enter according to the exchange and put out the heir of the disseisor this shall not be said to be an execution of the exchange but if the disseisee have recovered the same land against the heir of the disseisor by writ of entry and have execution then he may execute the exchange by entry And in case where a reversion rent or seigniory is granted in exchange it must be perfected and executed by the atturnment of the tenant in the life time of the parties otherwise the exchange is not good but in this case after atturnment is made it seems the exchange is perfect without any entry or claim If two Parsons exchange their Churches and resigne them into Perk. Sect. 257. the Bishops hands this is not a perfect exchange untill they be inducted and therefore if either of them die before they be both inducted the exchange is void Where a deed shall take effect as an exchange there must be all Perk. Sect. 255 256. Fitz. Exchange 14. Perk. Sect. 272. the conditions before mentioned in the case And yet note that 4. When a deed shall take effect as an exchange Or not where one thing is granted for another in the nature of an exchange and for some of the causes aforesaid the things cannot passe by way of exchange there they may passe notwithstanding by way of grant and the deed may take effect to other purposes albeit it may not enure and take effect as an exchange And therefore if two be seised of severall acres of land and the one of them by deed doth give his acre to the other and the other his acre to him without any word of exchange and each of them doth make livery of seisin to the other in this case albeit the acres will not passe by way of exchange yet will they passe by way of grant And in this case if no livery of seisin be made either of them shall hold the lands granted at will only And in like manner it is if two agree to exchange land and after each of them levy a fine or make a feoffment of the land to other by this the land will passe each to other but not by way of exchange So if A and B his wife and C and D his wife agree to exchange lands and A and B enter into the land they are to have in exchange and then they doe make a feoffment of their own land unto C and his father and not to C and D his wife this shall not enure as an exchange and therefore C and D may enter upon their own land again but the
certaine 14 H. 8. time surrender such land of his for an Annuity of so much as they shall agree upon and they agree upon 10l per annum in this case the Obligor is not bound to make the surrender untill the Annuity be made and tendred unto him If the condition bee to deliver to the Obligee an obligation Hil. 37. Eli. Co. B. Greeinghams case adiudg wherein the Obligee is bound c. or to seale and deliver to the Obligee such a Release of it as shall be devised by the counsell of the Obligee before Michaelmas and the counsell doe not advise any Release before Michaelmas in this case the Obligor is discharged of the obligation for the Obligee is to doe the first act If A be bound to B in an obligation with condition that A and Trin. 4. Iac. B. R. his wife shall levie a fine of land to C and D and their heires and at their costs and charges this shall be construed to be at the costs of the Obligor and not at the costs of the Conusees but if the word and be omitted perhaps it may be of otherwise If the condition be thus That if the wife die before Michaelmas Dyer 17. without issue of her body then living that the obligation shall bee void in this case then living shall relate ad proximum antecedens and not to the death of the wise and therefore if she hath issue and die and after before Michaelmas the issue dyeth also the obligation is void If the condition be that if the Obligor shall waste the goods of the Obligee his master and this waste within three Moneths after Golds case M. 13. Iâ— due proofe of it either by confession or otherwise bee notified to the Obligor that the Obligor shall satisfie the Obligee for it and the Obligor doe confesse the waste under his hand and seale in this case it seemes this proofe though it be extrajudiciall is sufficient When the condition of an obligation is to doe two things by a Coo. 5 22 super Lit. 207. Dyer 262. 15 H. 2. 4. H. 7. 4. day and at the time of making of the obligation both of them are Conditions Impossible possible but after and before the time when the same is to be done one of the things is become impossible by the act of God or by the sole act and laches of the Obligee himselfe in this case the Obligor is not bound to doe the other thing that is possible but is discharged of the whole obligation But if at the time of the making of the obligation one of the things is and the other of the things is not possible to be done he must perform that which is possible And if in the first case one of the things become impossible afterwards by the act of the Obligor or a stranger the Obligor must see that he doe the other thing at his perill And when the condition of an obligation is to doe one single thing which afterwards before the time when it is to bee done doth become impossible to be done in all or in part the obligation is wholy discharged and yet if it bee possible to be done in any part it shall be performed as neare to the condition as may be If the condition be to doe one of two things as to make a feoffment to me or pay me 20l. in this case if the obligor doe either 21 Ed. 3. 29 of them it is sufficient But if the condition be in the copulative as to enfeoffe me and pay me 20l. in this case the doing of one of them will not suffice but he must doe both If the condition be to pay to A B and C 30 l. a pece within a week after they come to 18 years of age or within 40 dayes after Per. Iustice Dodridge M. 2. Car. B. R. their dayes of marriage after notice given thereof which shall first happen in this case this notice must goe to both the parties so that notice must be given when they are 18 years of age otherwise and untill notice given it seemes the obligor is not bound to pay the money See more in Condition Numb 8. and Covenant Numb 6. The matter of a condition of an obligation is sometimes affirmative 8. When the Condition of an Obligation shall be said to be performed and the Obligation saved or not and compulsory and doth consist of something to be done and sometimes it is negative and restrictive and doth consist of something not to be done the not doing in the first case and doing in the latter case causeth the obligation to bee forfeit and the doing in the first case and not doing in the latter saveth the obligation If one be bound in an obligation to me with condition to enfeoffe To make a feoffment Coo. super Lit. 207. plo â— 7â— 17 Ed. 4. 3. me of land and the obligoâ— doe first make a Lease to me of it and afterwards he doth make a Release of it to me and my heires this is a good performance of the condition If a condition be to make me a feoffment of land and he tender me a feoffment and I refuse it by this the condition is performed So Tender and Refusall Perk. Sect. 784. Fitz. Barre 82. Perk. Sect. 758. 15 Ed. 4. 5. if the condition be to make a feoffment to my use and when it is is made I refuse it this is a good performance of the condition But if a man bind himselfe in an obligation to me with condition to make feoffment to a stranger and hee tender the feoffment to the stranger and he doth refuse it this is no good performance of the condition but the obligation is forfeit If the condition be to enfeoffe me and my wife and he tender it to me and I refuse it it seemes this is a good performance If one bind himselfe in an obligation to me with condition to 3 H. 7. 4. 4 H. 7. 4. Perk. Sect. 757. make me a feoffment of the Mannor of Dale by a day and he before the day grant a rent-charge out of the same Mannor to a stranger and afterwards and before the day also he doth make me a feoffment of the land this is a good performance of the condition and the grant of the rent no breach thereof But if the obligor sell away part of the Mannor before or make a feoffment to me but of a moity or a third part of the Mannor this is no good performance of the condition And if in this case the obligor before the day take a wife and before the day make his feoffment according to the condition but the marriage doth continue untill after the day in this case it seemes the condition is broken If the condition be that the obligor shall enfeoffe me of the Mannor Acceptance Perk. Sect. 749. 759. Dyer 1. Perk. Sect. 751. 9.
his Will he doth give White Acre to B and his heirs in this case the first Devise to A is void * Dyer in his Lecture 1. per Inst Dodr. And yet in this last case some have held the Devises shall be good and that A and B shall be Joint-tenants Ideo Quaere * Trin. 9. Ia. B R. If one devise all his land to I S and his heirs excepting 20 l. for seven years which he willeth shall be imployed for his children this is a good Devise of this summe of 20 l. a yeare 9. And a man may devise his land for so many yeares as I S shall name and after appoint that his Plow â—23 546. sonne shall have it during the minority of his sonne and both these Devises may stand together And therefore if A be possessed of the Mannor of D for yeares and he deviseth all his Term to his eldest sonne if he live so long and if he die before he have any issue of his body then to his younger sonne in the same manner but withall he doth appoint that his wife shall have the occupation of the land untill his eldest sonne be 21 years of age these Devises shall stand together and the wife shall enjoy the Mannor for that time by this Devise 10. A man may devise a term of years by way of remainder as for example a man that is possessed of a term of Coo. 8. 95. Plow 519. 546. 516. 539. Dyer 277. years of land may devise it to I S for life the remainder to I D or to I S for life and that it shall after remaine to I D or to I S for so many years as he shall live and after to I D or in any such like manner these are good Devises both to the first and to him in remainder also by way of Executory Devise though not by way of remainder and in this case the first Devisee cannot hinder the second Devisee of the remnant of the terme But a man cannot by Deed Grant in his life time grant his term in this manner * Coo. 10. 8â— â—7 pasâ—â— 17. â—ac B. R. child versâ—s Baily Nor if a man be possessed of a term can he entaile it by his Will And therefore if a man possessed of his terme of years of land Devise his term or his land to I S and his heires or to I S and the heirs of his body or to I S and his issues the remainder to I D this remainder is void and it is a good devise of the whole terme to I S and his Executors * 37 〈◊〉 6. 30. 〈◊〉 Broo. Sect. 388. 3â—4 209. Also a chattell personall may as it seemes be devised to one for life and afterwards to another but yet so as the one must have the property only and the first but the occupation only as if one devise that I D shall have the occupation of his plate for his life and after that it shall remaine to I S this is a good Devise of the plate to I S. But if the thing it selfe be devised to the first of them then the Devise to the second is void for the gift of a chattell personall for one houre is the gift of it for ever And so it did seeme in the Lady Daves case Hill 9. Car. B. R. 11. A Legacy of goods or chattels may be given Swinb part 4. Sect. â—7 to or untill a certaine time or from or after a time certaine or incertaine as for five years or from or untill the marriage of A or the like and these Dispositions are good 12. A man may Plow 524. devise his land for so many yeares as I S shall name and if I S doe name a certaine number of yeares in the life time of the Devisor this will bee a good Devise But if one devise his land for so many yeares as his Executor shall name it seemes this Devise is not good 6. As touching the sixth thing required in a good Devise these things are to be known 1. That Lands Tenements Dyer 371. Coo. 8. 83. 6. 16. super Litt. 111. Perk. Sect. 496. 500. 497. 538. Lit. Sect. 167. Dyer 155. old N. 〈◊〉 Sixthly in respect of matteâ— touching the thing devised and what may be devised and by what name and Heriditaments for the nature and quality of them are devisable as well as other things And therefore by the custome of some places lands in possession reversion or remainder are devisable in Fee for life or yeares and a man that hath a Lease for yeares of land may devise the land at his pleasure during his term But by the ancient Common-Law in favour to heires the lands that a man had in Fee simple were not devisable by Testament except only in Devise of lands and teâ—â—ements some speciall places by the custome of the place as Gavelkind-lands in Kent and lands within certaine Borrow-Townes as London Oxford c. and by the custome of those places such lands are devisable And in some places the custome is that they may devise their purchased lands only and in other places that they may devise their lands discended also And in some places the custome is that they may devise for life only and in other places that they may devise in Fee-simple and Fee-taile also And in all these places where such customes are they may devise their lands now as they might have done before the Statute for the Statute hath not destroyed their custome And therefore at this day they that have such lands in such places have their election eitheir to devise according to the power the custome doth give them or according to the power the Statute doth give them and in the first case the Devise is good against the heire for the whole and in the last case it is good against him for two parts in three only Also by the Perk. Sect. 496. 528. 538. Common-Law the Uses of lands were devisable as goods and chattels were as the pleasure of him that had them But otherwise and in other cases lands and tenements might not be devised and disposed by Will untill 32 H. 8. at which time the owners of lands tenements rents c. were by Act of Parliament enabled to devise and Stat. 32. H. 8 c 1. 34 H. 8. c. 5. dispose their lands as followeth He that hath any land in possession reversion or remainder by Socage Tenure and hath no land held in Capite or by Knights Service may devise all his land or any rent Common or other profit apprender out of it to any person in Fee-simple Fee-taile for life or years at his pleasure Hee that hath any such land held of the King in Capite by Knights Service or by Knights Service and not in Chiefe or held of any common person by Knights Service may devise two parts thereof in three to be devided or any rent c. out of
those two parts at his pleasure and no more for the third part must discend to the heir and come to satisfie the Lord his duties and therefore the Devise of the whole land in this case is void for the third part He that hath any such land held by Knights Service in Capite and other lands held by Socage Tenure may devise two parts of the whole and no more or any rent c. out of it at his pleasure He that doth hold land of the King by Knights Service only and not in Capite or if a meane Lord by Knights Service and hath also other lands held by Socage Tenuâ—e may devise two parts in three of all the land held by Knights Service or any rent c. out of it and all his Socage land at his pleasure So that now by these Statutes a man that hath lands in Fee-simple may devise them in Fee-simple Fee-taile for life or yeares absolutely or conditionall at his pleasure And therefore if one devise his land to one for life the remainder in Fee or Fee-taile to another or devise his land to B the remainder to the next heir male of B and the heires males of the body of such heire male or the like these are good Devises But for the more full understanding of these things it it to be known in the next place 2. That this Statute doth not enable men to devise land that are See the Statute Coo. super Litt. 111. Perk. Sect. 544. Lut. Sect. 287. Dveâ— 210. old N B 89. Perk Sect. 500 539 540. 496 497 498. disabled by Law in respect of their persons or minds as Infants women Covert men de non sane memory or the like nor such as are disabled in respect either of the nature of their land as Copi-holders for Copi-hold-land is not devisable or of the estate they have in the land as Tenants in Taile or pur autervie or Ioynt-tenants for these can no more devise the land they doe so hold then they could before the Statute But such as are seised of land in Common or Coparcenery may devise their land as well as those that are sole sâ—ised And if two be Ioint-tenants for life the Fee-simple to one of them he that hath the Fee-simple may devise his Fee-simple after the death of his companion Neither doth this Statute enable those that are seised of lands in Fee in the right of their houses and Churches to devise the same lands And therefore Bishops Deanes Pâ—rsons Vicars Masters of Hospitals or the like can no more devise the lands belonging to their Bishopricks c. then they could before the Statute but the lands they are seised of in their own right they may devise like other men 3. Heridiments that are not of any yearly value are some of them devisable 〈◊〉 10. 81. 〈◊〉 32. super 〈◊〉 111. and some not for if the King grant to one and his heirs bona catalla felonum fugitivorum vel ut lagatorum Fines and Amercements within such a Manner or Village in this case the owner can neither devise these things to another as part of the two parts nor leave them to discend for a third part And yet if one have a Mannor unto which a Leet Waife Estrayâ— or the like is appendant or appurtenant there by the Devise of the Mannor with the appurtenances these things may passe as incident to the Mannor But if a man have a Hundred with the goods of Felons Out-lawes Fines Amercements Retornabrevium and other such casuall Heriditaments within the same Hundred and these have been usually let to Farm for a rent in this case these things may be devised or left to discend for a third part 4. Such incertaine Franchises as before that are Heriditaments of no yearly value albeit Coo. 10. 8â— 82. super Litt. 111. Coo. 3. 35. 30. 34. they are not devisable yet may restâ—aine the devise of a mans lands and tenements and make it void for a third part if they be held in Capitâ— for if it is not requisite that the thing held by the Tenurâ— in Capite be deviseable and such things as may not bee left to discend to the Lord for a third part and to satisfie him his duties may notwithstanding be devisable or restraine the Devise of other lands and tenements and make it void for a third part And therefore a Reversion upon an estate taâ—le which is dry and fruitlesse if it be holden of the King by Knights Service in Capitâ— will hinder the Devise of the third part of a mans lands and tenements Also an estate taile of lands held in Capite may restraine the Devise of a third part of other lands And therefore if such lands be conveyed to one and the heirs of his body the remainder to another and he have other lands in Socage if he have any issue he can devise but two parts of his Socage land And where the Statute speaks of a remainder it is to be intended of such a remainder only as may draw Ward and marriage by the Common-Law and this is that remainder only that doth hinder a Devise And therefore if A be seised of lands in Socage Tenure and B be seised of lands in Fee held in Capite by Knights Service and B make a Lease for life or gift in Taile to C the remainder to A in Taile or in Fee in this case A during the estate for life or in Taile may devise all his Socage land notwithstanding this remainder But if a man make a Lease for life or yeares and after grant the reversion for life or in Taile the remainder in Fee and after the Grantee for life dyeth or Donee in Taile dyeth without issue in this case this remainder which now is in point of reversion will restraine the Devise of other lands and make it void for a third part 5. In all Coo. 10 81. 11 24. 3. â—0 34 35. supeâ— Lâ—â—t â—â—1 Dyer 158. cases where a man is restrained to devise any part of his lands held in Socage hâ— must have lands held in Capite at the same time and therefore the time of having of lands to devise and holding of other lands in Capite and disposing of the lands to be devised must concurre And therefore if a man be seised of an Acre of land in Fee held of the King in Chiefe by Knights Service and of other two Acres in Fee held in Socage and enfeoffee his younger sonne of the Acre held in Capite and of one of the other Acres or convey it to the use of his wife or for the paiment of his debts c. and after purchase land held in Socage in this case he may devise all the new purchased land held in Socage without restraint So if a man bee seised of lands held by Knights Service in Capite in possession reversion or remainder and of lands held in Socage and by his Will in writing doth devise all
the said lands and after the land held in Capite is recovered from him or aliened by him bonâ â—ide in these cases the Devise is good for all the land held in Socage And hence it is That if the King grant land to one in Fee Farm to hold in Socage at a rent and after grant this rent to another and his heires to hold in Capite and the Grantee of the rent doth grant it to him that hath the land in this case because the rent is extinct and he cannot be said to hold lands in Capite this shall not restraine the Devise of any of his lands And yet if a man hold some lands by Knights Service in Capite and other lands in Socage and bee disseised of the lands held in Capite he cannot devise all his Socage land but the Devise will be void for a third part for he is said to have that land still whereof hee hath the right And albeit the Statute say that he that hath lands held of the King in Capite and other lands in Socage may give two parts for the advancement of his wife paiment of his debts preferment of his children whereby he is restrained to devise any more And therefore if by act executed in his life time he convey two parts to any such uses or intents he cannot devise any more by his Will but the residue must discend yet this also is to be intended of the land he hath at the same time For if a man be seised of land held in Socage of the yearly value of 20l. per annum and he hath not any land held in Capite by Knights Service and he make his Will in writing and by it devise his Socage land to one in Fee and then purchase land of the value of 20 s. per annum held in Capite and die this will make the Devise void for a part of the land that is held in Socage But if a man seised of land in Fee of Socage Tenure assure it to the use of his wife for her â—ointure and after purchase lands held in Capite by Knights Service he may devise two parts in three of all this Capite land and the King shall not have any thing out of or for the Socage land If a man seised of lands part of which are Coo. 3. â—4 〈◊〉 â—4 held in Capite and part in Socage make a Feoffment of the lands held in Capite being two parts in three of the whole to the use of him and his wife for life with divers remainders over in this case he may not devise any of the Socage land And if a man have no Socage land but Capite land and convey it away iâ— Fee-simple keeping no Reversion to any such use and after purchase Socage land he may devise all the Socage land newly purchased 6. As Coo. 3. 32. the Testator enabled to devise by this Statute without restraint is and must be one that hath the land he doth devise at the time of the Devise made and no other land then to be an impediment to his Devise so he must have a sole estate as well in the land he doth leave to discend to the heir as in the land he doth Devise And therefore if lands held in Capite be conveyed to a man and his wife and the heirs of their two bodies and this man hath other lands whereof he is sole seised held of the King in Capite by Knights Service in this case he may not devise two parts of the whole supposing this may suffice for the Kings third part for he may devise but two parts of the residue i. e. of that whereof he is sole seised either at the time of making of the Will or at the least at the time of the death of the Testator 7. The estate of the land that is held must continue after Coo. 10. 8â— the death of the Tenant otherwise it will be no restraint And therefore if Tenant in Taile be to him and the heirs males of his body the remainder in Fee to another of Lands held by Knights Service in Capite and he is seised of other lands in Socage in Fee and by his Will in writing devise all the Socage land and die without issue male in this case the Devise is good for all the Socage land And so also it is where the estate the Ancestor had of the land held is defeated by condition 8. That which a man cannot dispose by any act in his life time shall not be taken for any such Mannors c. Coo. 〈◊〉 32. whereof a man may devise two parts by authority of this Statute at his death And therefore in the case of an indevided estate of lands between husband and wife where the husband can make no disposition for longer time then during the Coverture these lands are not to bee esteemed such as are to be accounted amongst the lands whereof two parts in three are devisable 9. The Tenure by Coo. 10. 84. 3. 34. Knights Service must continue after the death of the Devisor otherwise the land so held will be no restraint And therefore if the King grant land to one and his heires to hold during his life by Knights Service in Capite and after in Socage or to hold during his life in Socage and after by Knights Service in these cases the Grantee may devise all his land notwithstanding the Tenure of this land 10. The King or other Lord must have a full and clear Coo. 3. 32. 31. super L. 〈◊〉 111. 10. 8â— yearly value of the third part left to discend to him and the value is to be esteemed as it is and doth happen to be at the time of the death of the Testator for the King or other Lord must have the like and equall benefit for his third part as the Devisee hath for the two parts without diminution or substraction when therefore a man will have his Devise good for the residâ—â— he must take care that the third part be so left for if the third part be not valuable or be charged with any rent c. or be upon any incertainty as if it be upon a possibillity only as where a man and his wife be seised of a joint estate Taile made during the Coverture and he Devise other lands to her on condition that she shall wave her estate made during the Coverture and so intend that that part of his land shall be left for the Kings part this Devise will not be good for the residue and albeiâ— the wife doe wave the estate after the husbands death yet this will not help the matter or make the Devise good for that part for which it was void before But it is not materiall by what Tenure the third part discending be held For it is holden by the better opiâ—ion That if a man be seised of 20 l. land held of the King in Capite and 10 l. land held
of a Subject by Socage and he devise all the Capite land to a stranger that this is a good Devise for the whole and that the King shall be satisfied by the Socage land And if it be of the value of the third part albeit it be but of an estate Taile whereof the Ancestor was seised or it be new purchased land yet it is sufficient And therefore if some lands be given to a man and the heirs of his body of the value of 10 l. per annum and he be seised of other lands in Fee-simple to the value of 20 l. per annum and all or part of these are held in Capite by Knights Service in this case he may devise the lands in Fee-simple and leave the entailed land to discend for a third part And if a man be seised of such land and convey it to the uses within the Statute or any of them and after purchase new land and leave that to discend this is sufficient 11. The third part that is left to discend to satisfie the King or other Coo. 3. 34. Lord must discend immediately and he must not stay for it And therefore if a man be seised of three Acres of land held by Knights Service in Capite and make a Lease of one Acre for life and after devise the other two Acres this Devise is not good for the whole two Acres but for two parts in three thereof only and albeit the Tenant for life die afterwards yet this will not help the matter But if the Devisor leave a full third part immediately to discend in Fee-simple or in Fee-taile he may devise the other two parts at his pleasure And if he doe not leave a third part to the full it must be made up and supplyed out of the other two parts which in case of the King is done by Commission out of the Court of Wards and in case of a Subject by Commission out of the Chancery 12. As the Coo. super Litt. 111. 9. â—33 3. 32. 30. third part left to discend must bee of as good value as either of the other two parts is at the time of the death of the Testator or otherwise the Devise of all the residue will not be good so must it bee taken out of the lands of the Testator indifferently And therefore if a man be seised in Fee of land held in Chiefe by Knights Service and make a Feoffment of the one halfe of it to the use of himselfe for life and after to the use of one he doth intend to marry and after to the use of another in remainder or to any other such like uses within the Statute and after he doth marry the same woman and after he deviseth the other moity to his wife children or any other in this case albeit the wives estate have precedency yet the King shall have his third part out of both the moities equally So if one be seised of Gavelkind land held in Capite and his sonne being dead devise part of it to one of his grand-children and part of it to another and part to a third Taile in this case the Kings third part shall come out of all the three parts equally and accordingly the Devise will be void for so much to every one of them So if one hold three severall Mannors of three severall Lords he cannot devise two of these Mannors leaving a three to discend but he may devise two parts of every of the third Mannors and a third part of each Mannor must discend to each Lord for there must be an equallity in these things For further illustration of which things the examples following are to be heeded W B being seised of the Mannor of Thoby in Capite Coo. 3. â—ut ler Bakeâ—s câ—se and of lands in Fobbing held in Socage in Fee and he and his wife being seised of the Mannor of Hinton held in Capite to them and the heiâ—es of their two bodies begotten by an estate made to them during the Coverture for the joynture of the wise the reversion to W in Fee and Thoby doth amount to the value of two parts and Hinton and Fobbing to a third part and W B by his Will in writing doth devise Thoby to his wife for life upon condition that she shall not take her former Joynture with divers remainders over and die and shee refused her former Jointure in Hinton in this case it was adjudged that the Devise was not good for the whole Mannor of Thoby and that the Mannor of Hinton was not a sufficient third part to discend L L being seised of the Mannor of Affaland Coo. 10. 78. I â—onard Leoveis case Coo. 11. 24. Heaâ—ton Rillaton Pâ—ngelley Willesworthy and Trivesquite the last only held in Capite in Fee and having issue Thomas his eldest sonne William Humfry and Richard younger sonnes which Richard had issue Leonard makes a Feoffment of these Mannors to divers uses viz. of the Mannors of R P W and A to the use of the Feoffor for life and after to the use of such person as he should appoint by his last Will and after to the use of W his second sonne in Taile and after to his other sonnes in Taile and after to the use of the Feoffor and his wâ—fe in Taile and after to the use of the Feoffor and his heirs for for ever And of the Mannor of H to such like uses and of the Mannor of T also to such like uses and the same uses were with power of Revocation And after the Feoffor purchased eight Acres of other land held in Socage and after did revoke the uses of the Mannors of R P W and A and after devised some of the said Mannors excepting some peeces and the said eight Acres of land to his eldest sonne and the heirs males of his body for 500 yeares on certain conditions and if he die without issue that it shall goe to William c. and afterwards he dyed seised of the said eight Acres of land and the lands devised by the Will at the time of the death of the â—estator were of the yearly value of 24 l. 14 s. 10 d. per annum non ultra and the lands whereof the Feoffment was made and not revoked were at the time of the death of the Testator of the value of 55 l. 6 s. 8 d. in this caâ—e it was adjudged that the Devise of the eight Acres newly purchased was void at least for a third part and restrained by the reversion in Fee expectant upon the estate Taile made to the younger sonne of the Mannor held in Capite And it was resolved That if a man be seised of three Acres of equall yearly value one of them held of the King by Knights Service in Capite and have issue two sonnes and give the Acre so held and another of the Acres to his younger sonne whereby hee hath so executed his power by the Statute that hee
20. Iâ—c periâ— versâ—s Peaâ—se B. R. Joane Elizabeth and Anne and by B his second wife â—lice and Elizabeth and by C his third wife William a sonne and three daughters Mary Katharine and Johan and he devise his land to Johan his youngest daughter for life paying 1â—s 4d to the sonne and after her death to the sonne and the heirs of his body and after his death without issue to Elizabeth the daughter of the second wife and Mary the daughter of the third wife for their lives the remainder in Latin to the next of the blood of the Devisor for ever and the elder Joan hath issue I P and dyeth the sonne dyeth without issue the younger Joan hath issue and dyeth Elizabeth of the first wife hath issue and dyeth Anne dyeth having issue Alice dyeth without issue Mary and Elizabeth born of the second wife die without issue Katherine dyeth without issue in this case and by this Devise the sonne and heir of the elder daughter after the death of the sonne without issue and of Elizabeth and Mary and not all or any of the children or their children shall have the land because proximo in Latin doth devote a person certain and there be expresse Devises to others But if in this case the remainder bee limited in generall to the next of blood without any other matter all the daughters perhaps may have it as Joint-tenants If a man have two sonnes and a daughter which hath two daughters â—â—â—z Devise 9. Perk. Sect. 508. and he devise his land to a stranger for life the remainder to his second sonne for life the remainder in Fee to the next of blood to his sonne in this case if the eldest sonne die without issue the daughter and her daughters shall have the land Whatsoever will passe by any words in a Deed will passe by Secondly in respect of the thing devised See in the Exposion of Deeds supra the same words in a Will and more also for a Will is alwayes more favourably interpreted then a Deed And therefore if a man devise the profits use or occupation of land by this Devise the land it Coo. 8. 94. Plow 525. selfe is devised If a man devise thus I give all my lands to I S or I give all my Mevils case Fitz. Deviâ—e 4. Bâ—oo Done 41. tenemeâ—ts to I S or I give all my lands and tenements to I S by this Devise is given and I S shall have not only all the lands whereof the Devisor is sole seised but also all the lands whereof he is seised in common or co-parcinery with another and not only the lands hee hath in possession but also the lands hee hath in reversion of any estate in Fee-simple but by this Devise regularly Leases for years of lands will passe If a man devise thus I give all my land in possession only by Plow 66. this Devise there is given the lands he hath in possession only and none of the lands he hath in reversion If a man be seised of land in Fee-simple in Dale and devise thus Plow 343. 544. old N. 〈◊〉 89. Fitz. Devise 17. I give all my lands in Dale to I S and after Will made and published he doth purchase other lands in Dale and dyeth in this case and by this devise I S shall not have the new purchased lands and in this case it hath beene held further That if the Testator doe by word of mouth after the purchase of the same lands declare himselfe to be minded that I S shall have the same new purchased lands also by this Devise that notwithstanding I S shall not have them by this Devise * Trin. 37 Eliz. B. R. Breckford versus Parincoâ—e And yet it hath been adjudged That if in this case one come to the Devisor to buy his new purchased land and he say nay but I S shall have it as the rest that this is a new publication of the Will and that I S by this devise shall have these new purchased lands for a new publication of the Will in these cases will make the land to passe But if a man devise the Mannor of Dale and at the time of the devise he hath it not or devise his lands in Dale and at the time of the devise he hath no lands there and afterwards he doth purchase the Mannor of Dale or lands in Dale by this devise and in this case the Mannor and the new purchased lands will passe for in this case it shall be intended he meant to purchase it And yet the Statute enabling a man to devise lands saith Any person See before having c. Coo. 3. 30. If one have an ancient Tenement and lands belonging to it and Loftis versus Baker Hill 20. Ia. B. R. then purchase more lands and occupy them altogether with the Tenement many years and being all thus in his occupation he doth make a devise after this manner I give my Tenement in Dale and all my lands belonging to it now in my occupation to I S. by this devise I S shall have the ancient land onely and none of the new purchased land but if there be no ancient land belonging to the Tenement but new purchased land onely there perhaps it may be otherwise for in this case the words cannot else be satisfied As in case where a man hath some lands in Fee-simple and other lands for yeares onely in Dale and he devise all his lands and Tenements in Dale by this devise the lands he hath for years doth not passe but if he have no other lands in Dale but these lands in this case perhaps this land will passe If one have a moity of lands in Essex and a moity of lands in In Mevils case Kent and he devise thus I give my moities and all my other lands in Kent to I S it seems by this devise the moities in both Counties do passe and that I S shall have both the moities If a man be seised in Fee in possession of the moity of a Farm called Plich 20. 12â— Adiudged Scatergoods case the Farm of C. and of the reversion in Fee of the other moity expectant on a lease made to A and B for their lives and he make his Will thus I will that my wife shall have all my living which I now occupy untill my son come to 21. years of age and then I will have her have the thirds of all my living and that my sonne shall have all my Farm of C to him and his heirs by this devise if A and B dye before the heire be 21. yeares of age the wife shall have the thirds of the whole Farm and not of the moity in possession onely If a man be seised of land in a Village and in two Hamlets of the Dyer â—65 same Village and he devise all his lands in that Village and in one of the Hamlets by this
one doth devise his land to I S after the death of his wife that by this Devise the wife hath an estate for life by implication And therefore if a man devise thus I give my goods to my wife and that after her decease my sâ—nne and heire shall have the house where the goods are it is held by this Devise that the wife hath an estate for life in the house by implication for a man is bound to provide for his own wife But if a man devise his land to I S after the death of I W a stranger to the Devisor it seemes that by this Devise I W hath no estate at all by implication and that this doth but set forth when the estate of I S shall begin and that the intent of the Testator is that his heire shall have it untill that time If one devise land thus I give my land in Dale to I S to the intent Coo. 6. 16. 3. 20. Bâ—oo Estates 78. that with the profits thereof he shall bring up a child or to the intent that with the profits thereof he shall pay to A 10l or to the intent that he shall out of the profits thereof pay yearly 10l by these Devises I S hath only an estate for life albeit the payments to be made be greater then the rent of the land And therefore it is not like to the case before where a summe of money is to be paid presently If one devise his land thus I give my land to Alice my Cosin in Dyer 357. Fee-simple after her decease to W her sonne who is her heir apparant by this Devise she hath an estate for life first the remainder to her sonne for his life the remainder to the heirs of A in Fee-simple And so also is the Law when the Devise is to any other after that manner If my father be tenant for life of land the remainder to me in Fee Dver 371. and I devise this land to my wife rendring for her naturall life 40â— to the right heir of my father by this Devise my wife hath an estate for life after the death of my father If one devise his land unto his Executors untill his sonne shall Fâ—r 〈◊〉 come unto 21 yeares of age the profits to be imployed towards the â—oo 3. 20. performance of his Will and when he shall come to that age then that his sonne and his heires shall have it by this Devise the Executors shall have it untill he be 21 yeares of age and if he die before that time untill the time he should have been 21 yeares of age if he had lived so long and shall in this case shall be taken for should If one devise his land to his Executors for the paiment of his debts and untill his debts be paid by this Devise the Executors have Coo. super â—â—tt 42. but a chattell and an incertaine interest and they and their Executors shall hold it untill the debts â—e paid and no longer If one devise his land to I S and the heires males of his body Coo. 10. in Leonard â—oveis case 87. 46. for the term of fifty yeares it seemes that by this Devise I S hath but a Lease for so many yeares if the heires males of his body shall so long continue and that for want of issue male the terme of yeares shall end And in this case the Executor or Administrator 〈◊〉 not the heirs males of I S shall have it after his death If one devise his land thus I give to I S and I D and their Adiudged Loweâ— versus Câ—xe Mich. 37. 38. â—liz Co. B. Dyer 25. Lit. Bâ—o Seâ—â— 133. Lâ—tt 2â—3 Perk. Sect. 170. Dyer 350. heirs my land in Dale equally or my land in Dale to be equally Fourthly in respect of other 〈◊〉 divided by these Devises I S and I D shall have and hold the land not as â—ointenants but as Tenants in common so that the heire and not the servivor shall have his part that first dyeth And yet in case of such a limitation by Deed it is otherwise And if one devise his land to I S and I D and their heires without more words it seemes that by this Devise they shall take and hold as Joint-tenants * Dyer 326. And yet if one devise land to I S and I D and the heires of either of their bodies lawfully engâ—â—dred it seemes that by this Devise I S and I D shall take and hold aâ— Tenants in common and not as Ioint-tenants * Paâ—che 9. Ia. New mans case And if one devise his land to I S and I D thus I will that I S and I D shall have my lands in Dale and occupy them indifferently to them and their heires If one be possessed of a terme of yeares of land and devise the Hill â—3 Ia. B. R. Adiudged Blandfords case Devise of gâ—ods and chattels same to his wife during all the years and if she die within the years then to A and B his two sonnes if they have no issue male but if they or either of them have issue male then that it shall goe to First in respect of the person that shall take by the Dâ—vise the use of those issues male and she die and the two sonnes die without issue born one of their wives being privily with child of a sonne which after his death is borne in this case and by this devise this issue male shall have it assoone as he is borne If one be possessed of a terme of yeares and he dâ—vise it to another Coo. 10. 4â— Lampets case Perk Sect. 558. 559. and his heires or his heirs males by this Devise the Executors Executors or Administrators not the heirs of the Legatee shall have it And Hâ—ire therefore if Lessee for years of land devise all his interest therein to his wife if she live so long and after her death if any part of the term be to come devise the same to I S his sonne and the heirs of his body in this case and by this Devise the Executors and Administrators of I S not his heires shall have it at least so long as he hath any heires of his body And yet if one possessed of a term of years devise it to I S and after his death that the heir of I S shall have it in this case I S shall have so many years of the term as he shall live and the heir of I S and the Executor of that heir shall have the residue of the term If one give 10 l. to the children of I S and at the time of the Swinb 316. Devise I S hath foure children and after before the death of the Testator he happen to have two more in this case and by this Devise the two children he hath afterwards shall have no part of the 10 l. but those foure he had before shall have