chargable for so much as is committed to him as the testator or intestate himselfe for this cause the Executor is said to represent the person of the Testator for as to the estate committed to his trust he may charge others and be charged himself sue and be sued as the Testator himselfe might And the estate he hath by his Executorship is said to be in him to the use of the Testator and in his right and that he doth in the disposition of his estate is said to be in the right and to the use of the Testator also And the Administrator hath the same power and property over and in the goods and chattels the same remedy by Suit and so farr forth shall be charged as the Executor for they differ not in nature but in name only And yet the Administrator is but the Ordinaries deputy and he may revoke the Administration or call the Administrator to an account Swinb 12. Dâ—er 143. Coo. super Littl. 112. Litt. Sect. 168. Coo. 〈◊〉 â—1 A Testament is of that nature that it doth much differ from 3. The nature and effect of a Testament and of a Codicill other acts and deeds that men doe and execute in their life times for albeit it be made sealed and published in never so solemn a manner yet it hath no life nor vertue in it untill the testators death for it is a Maxime in law Omne Testamentum morte consummatunâ— est Et voluntas ambulatoria usque aâ— extremum vitae exitum it is therefore resembled untill death to the interlocutory sentence and after death to the definitive sentence of a Iudge And hence it is said Sed legum servandafides suprema voluntas Quod mandat fieriqu jubet parere necesse est a 〈◊〉 〈◊〉 〈◊〉 Sect. 30â— And for this cause a man may alter or make void his will at his pleasure and he may make as many new Wills and Testaments as he will and there is no meanes under the Sun to barre a man of this liberty b Lin. Sect. 168. Perk. Sect. â—7â— And the latter Testament doth alwaies revoke and overthrow the former but otherwise it is of a codicill c Swâ—â—b 13. 14. for a man may make as many of these as he will and make no Testament at all d Broo. Testament 20. or if he make a Testament he may afterwards make as many codiciâ—s as he will and one of them will not overthrow the other for in the first case they must be all annexed to the letters of administration and the Administrator must perform them and in the latter case they must be all annexed to the Testament and the Executor must take care to performe them e Plow 343 â—44 A Testament therefore is said to have three degrees 1. An Inception which is the making of it 2. A Progression which is the publication of it 3. A Consummation which is the death of the testator f Coo. super Litt. 112. In Grants therefore the first is of greatest force but in Testaments the last is of greatest force But when a Testament is perfect by the death of the party it doth as effectually give and transferre estates and alter the property of lands and goods as acts executed by deed in the life time of the parties 〈◊〉 for hereby discents of lands are prevented and a man may make estates in Fee-simple â—â—itt Sect. 1â—7 168. Fee-taile for life or yeares of lands tenements rents reversions or services as effectually as by deed and these estates also will be good without any Livery of Seisin or Attournement And hereby also rents and power to distraine for them may be reserved conditions created and annexed to eâ—â—ates or things devised 〈◊〉 And therefore they that take by devises of lands are said to take 〈◊〉 Perk. Secâ— 505. in the nature purchasors 〈◊〉 And if therefore a tenant in taile make a Feoffment to the use of himselfe in Fee and after devise the same 〈◊〉 Dyer 221. land to his wife in fee and die the sonne is not remitted though the Father die seised for the devise doth prevent the discent To the making of every good Testament these things are requisite Coo. 6. 23. 4. What shall â—e said a good and a sufficient Testament Or not 1. That the Testator be a person able to make a Testament and not disabled for any speciall cause either in respect of his person mind or condition or in respect of the thing whereof the Testament is to be made And for this it must be knowne k Sâ—â—t 32. 34 H. 8. c. 5. Coo 4. 51. Broo. Testament 13. That a woman that hath a husband cannot make a Testament of her land First in respect of the person that doth make it and the thing whereof it is made And what Persons may make a Testament And of what things or not And how or goods except it be in some speciall cases for of her lands shee can make no Testament with or without her husbands consent l 〈◊〉 H. 7. 14. Perk. Sect. â—0â— Fitz. Executor 〈◊〉 of the goods and chattels she hath as Executrix to any other she may make an Executor without her husbands consent for if she do not so the Administration of them must be granted to the next of kin to the deceased Testator and shall not goe to the husband m Plow 526. Fitz. Executor 109. but of them she can make no devise with or without her husbands leave for they are not devisable and if shee doe devise them the devise is void And of the things due to the wife whereof she was not possessed during the marriage as things in action and the like it seemes she may make her Testament at least she may make her husband Executor n 12 H. 〈◊〉 24. 18 Ed. 4. 11. Perk. sect 501. Fit Executor 5. 28. 109. Broo Testament 〈◊〉 of her Paraphonalia viz. A Fame Covert her necessary wearing apparell being that which is fit for one of her rank some say shee may make a Testament without her husbands leave others doubt of this howbeit all agree that shee and not his Executor shall have this after her husbands death and that the husband cannot give it away from her And of the goods and chattels her husband hath either by her or otherwise shee may not make a Testament without the licence and consent of her husband first had so to do But with his leave and consent she may make a Testament of his goods and make him her Executor if shee will And it is said also that if shee do make a Testament of his goods in truth without his leave and consent and he after her death suffer the Will to bee proved and deliver the goods accordingly in this case the Testament is good And yet if the husband give his wife leave to make a Testament of his goods and she do so he may
end of their life viz. a Testament CAP. XXIII Of a Testament A Testament is the full and compleat declaration of a mans minde or last Will of that he would have to be done after his death 1. Testament Quid. Termes of the Law Lit. Broo. Sect. 300. Coo. super Lit. 111. Swinb of Wills 24. It is in Latin Testamentum i. Testatio mentis the witnesse of a mans minde and to devise by Testament is to speak by a mans Will what his minde is to have done after his death And this is sometimes called a Will or last Will for these words are Synonima and are as it seemes promiscuously used in our Law Howsoever by the Civill Law it is then only said to be a Testament when there is an Executor made and named in it and when there is none Codicâ—â— Quid. but a Codicill only for a Codicill is the same that a Testament is but that it is without an Executor and a man can make but one Testament that shall take effect but he may make as many Codicills as he Will. And by the Common-Law where Lands or Tenements are devised in writing albeit there be no Executor named yet there it is properly called a last Will and where it doth concerne Chattels only a Testament He that doth make the Testament Testator â—â—testate is called the Testator And when a man dyeth without Will he is said to die intestate Of Testaments there be two sorts namely a Testament in writing Quotuplâ—x Perk. Sect. 476. Coo. super Lit. â—11 or a written Testament which is where the minde of the Testator in his life time by himself or some other by his appointment is put in writing And a Testament by word or without writing which is where a man is sick and for feare least death or want of memory or speech should surprize him that he should be prevented if he stayed the writing of his Testament desireth his neighbours and friends to beare witnesse of his last Will and then declareth the same presently by words before them And this is called a Nuncupative or Nuncupatorie Testament And this being after his Nuncupative death proved by Witnesses and put in writing by the Ordinary is of a great force for any other thing but land as when at the first in the life of the Testator it is put in writing A Codicill also is in writing or by word as a Testament is The Civilians have other divisions of Wills and Testaments as solemn and unsolemn priviledged and unpriviledged whereof the Common Law maketh no mention The parts of every compleat Testament whereof it doth consist 〈◊〉 The 〈◊〉 of it Termes of the Law tit Devise Coo. super â—â—tt 211. Swinb lib. 1. c. 7. are two 1. The making of Devises or giving of Legacies 2. The making and Ordination of an Executor for a Testament can bee no more without then a Codocill can be with an Executor A Devise or Legacy is where a man in his Testament doth give Devise or Legacy Quid. any thing to another the first of these termes is properly applied to the gift of lands and the last to the gift of goods or chattels and therefore a Devise strictly is said to be where a man in his Testament doth give his lands to another after his decease and a Legacy is said to be where a man in his Testament doth give any chattell to another to have after the death of the Testator but the word is promiscuousâ—y applied to the one and to the other And hee that gives by such a Will is called the Devisor and he to whom the thing Devisor Devisee or Legatee is given the Devisee or Legatee And a devise is sometimes simple and without condition as Dyer 317. 7â— Coo. super Littl. 217. Swinb 132. 134. 136 where I give my land to another and his heires or I give 20l. to Quotuplex another without more words And sometimes it is with a condition which is when there is a quality added to the devise or legacy whereby the effect of it is suspended or hindred and it is thereby made to depend on some future event And this condition in this case may be made almost by any words as if I give to one Conditionall Devise my land if he pay 20l. to my daughter or so as he pay 20l. to my daughter or paying 20l. to my daughter or I give one 20l. if he marry my daughter or when he shall marry my daughter or I give my wife 20l. a yeare whiles she shall live unmarried or I give to him or to whomsoever shall marry my daughter 20l. or the like in all these cases the devise is conditionall The first kind of devise is called by the Civilians a simple assignation and the latter a conditionall assignation An Executor in a large sense s taken for any one that is appointed New Terms of the law Coo. 8. 135. Plow 288. Coo. super â—ittl 209. Coo. 9. 40. to have the disposition and ordering of the goods and chattels of a man that is dead And so there are three kinds of Executors Executor Quid. the first is à lege constitutus who is therefore called legitimus and such a one is the Ordinary of the Diocesse who hath ordinary Iurisdiction in matters Ecclesiasticall the second is à Testatore constitutus Ordinary who is therefore called Testamentarius and hee is strictly and properly called an Executor and is defined to be one appointed by a mans last Will and Testament to have the disposing and administration of all or part of a mans goods and chattels and to perform a mans last Will and Testament according to the contents thereof the third is ab Episcopo constitutus who is therefore said to be Dativus And such a one is an Administrator who is defined to be one that hath the goods and chattels of a man dying Administrator intestate committed to his charge by the Ordinary for want of an Executor And his power benefit and charge is in all things equall to the power benefit and charge of an Executor The Executor and Administrator also is sometimes universall or totall 〈◊〉 one that hath the power and disposition of the whole Dyer 4. Brâ— Executor 155. Coo. 6. 19. Quotuplex personall estate committed to him And sometimes he is particular or partiall i. one that hath the power and disposition of some part of the estate or of all the estate for a time only committed to him And sometimes he is absolute i. such a one that hath an absolute power of the estate as Executor or Administrator and sometimes he is conditionall i. one that hath a limited and conditionall Coo. super 〈◊〉 209. St. 81. E◠〈◊〉 c. 11. Coo 9. 40 8. 135. power of the estate only And in both cases he shall be Represent the person of the Testator charged and
C this doth not make the estate conditionall Or a lease is made for yeares without impeachment of waste proviso quod non prosternet domus voluntarie in this case howsoever this doth make the priviledge yet doth it not make the estate conditionall Or a lease is made for years rendring rent provided that the lessor shall not distrain for the rent in this case this is a good condition but not annexed to the estate So if in a deed of bargaine and sale of land after the Habendum there are these Dier 318. words viz upon these conditions following viz. that if the vendor pay the vendee twenty pound at Easter and enfeoffe him of a meadow called S before Whitsontide that the bargain shall bee void Provided neverthelesse that the bargainer shall hold the land fortwenty years without the let of the bargainee it seemes this Provided in this case doth not make a condition So if a lease be 27 H. 8. 15. Bâ—o Condition 7. made of a house amongst the covenants these words are inserted Provided also that if the lessor will dwell upon it or keep it in his hands then the lessee his executors and assigns doth covenant upon one yeares warning to remove and give place to the lessor this lease notwithstanding it seemes this is no condition but a covenant onely a Câ—â—ia pasche 14 Jac. Br. in the case of Muddy Co. super Litt. If a lease be made provided that if the rent bee behinde without any more words this is no good condition The word si also doth not always make a condition for sometimes it makes a limitation as when a lease is made for years if I S shall live so long There are other words also that in the Kings grant in last Wils Co. super Litt. 236 237. Doct. Stud. 122. Dier 138. Plow 142. 7 H. 4. 22. Co. super Litt. 204. Co. 10. 42. Dier 318. Doct. Stu. 34. and Testaments and other speciall cases doe make conditions as ea intentione ad effectum propositum intentionem paying and the like So that if one devise his land to I S ea intentione c. that he shall pay to W S tenne pound or paying or so as he pay to W S tenne pound or to sell c. these are good conditions But these words regularly doe not make a condition when they are used in deeds And therefore if one make a feoffment in fee ea intentione ad effectum c. that the feoffee shall doe or not doe such an act these words doe not make the estate conditionall but it is absolute notwithstanding And yet perhaps these words being conjoined with some others may make a condition as if lands be granted ea intentione quod si defecerit c. tunc quod reintrabit or the like Also conditions are sometimes made especially in estates and leases Doct. Stu. â—4 Dier 6. 91. 63. 92. for years without any of these formall words when the apparent intent of the lessor is to make the estate conditionall albeit the words be not used as the words of the lessor but as the words of the lessee or indefinitely of neither And therefore it hath been said That if an Indenture bee made between A and B thus It is agreed and covenanted between the parties aforesaid that B shall have the land for yeares and that hee shall not alien it that this estate is conditionall But it seems this is not law But if this clause be inserted amongst other covenants viz. If the lessee hinder the lessor to fell cut and cary away the trees upon the lands devised that the lessor may reenter and the lease shall be void this is a good condition and so it hath been adjudged in the case of Haward and Fulcher Hil. 3. Car ' B. R. And if a lessee for yeares doe covenant in his lease that if hee his executors or assignes shall alien that it shall be lawfull for the lessor to reenter it seems this is a good condition and not a covenant onely And if a lease for years be made and this clause is inserted in the deed It is agreed between the parties that if the lessee do not pay 10 pound to the lessor at Easter that from thenceforth the lease shall bee void this is a good condition And if a lease bee made with this clause inserted in the deed it is agreed that whosoever shall have the estate or interest that he or they shall find sureties within the year for the rent otherwise the estate shall cease it seems this is a good condition And if a lease for years be made with this clause inserted Dier 66. 65. Curia Mich. 37 38. Eliz. B. R. And that it shall not be lawfull for the lessee to alien without licence of the lessor under pain of forfeiture this is a good condition And if a lease for years be made of a house with this clause inserted in the deed And the lessee shall continually dwell upon Dier 79. 27. Co. super Litt. 204. the same house upon pain of forfeiture of the said terme this is a good condition And if in a lease for years the lessee covenant to Plow 132. pay so much rent and then these words are inserted And if it shall happen the said yearly rent c. then the lessee doth covenant and grant c. that the lease shall be void it seems this is a good condition and so hath it been ever taken as was said by Just Dodridge Hil. 3. Car ' And in all these cases the estate is conditionall But in cases of feoffments in fee gifts in taile and leases for Co. super Litt. 204. Doct. St. 94. Dier 65. 138. life it seemes words penned in this manner will not make conditions but that in these cases the precise and formall words of a condition are requisite And therefore that if a feoffment be made by deed and therein is inserted this clause That it is agreed or that the feoffee doth covenant that if the feoffor doe such an act that the feoffor shall reenter this is no condition nor the estate hereby made conditionall And yet see Perk. Sect. 744. If one make a lease for yeares on condition to pay rent at foure feasts and after there is a clause in the deed And if the rent shall Dier 348. be behinde c. that he shall distrain this clause doth not take away the condition but the same doth continue and the estate is conditionall still See more in the next question In the making of eâ—ates the cause is regarded And in case of Co. super Litt. 204. the grant of lands or tenements causa doth sometimes make a condition as if a woman give lands to a man and his heirs causa man imonii praelocuti in this case if she either mary the man or the man refuse to mary her shee shall have the land again to her and her heirs
must be these things in the case 1. There must be a precedent particular estate as an estate in tail for life or years for a foundation to erect the subsequent estate upon and that first estate also must be certain and irrevocable not upon contingency or with power of revocation 2. The privity must remain untill the time of the performance of the condition for if the donee or lessee doe grant away the first estate the condition cannot afterwards be performed to effect and produce the encreasing estate 3. The subsequent estate must vest â—o instanti when the contingency upon which the condition dependeâ—h shall happen or never 4. The first and second estate must take effect by one and the same deed or else by two deeds delivered at the same time for quae incontinenti fiunt iâ—esse videntur 5. The condition upon which the increase is must be possible and lawfull for upon an impossible condition it cannot and upon an unlawfull condition it shall not increase If one make a lease for life provided that if the lessee die within Co. 1. 155. Dier 150. sixty years that his executors shall have the land for so many of the sixty years as shall be to come at the time of his death this is no good condition to make the estate to increase but it may be a Covenant And if a lease for years be made on condition that Covenant Co. 1. 84. if the lessor sell the reversion of the same land the lessee shall have the fee of it this is no good condition to increase the estate And a possibility cannot decrease upon a possibility as a lease for years Co. 8. 75. to a lease for life by one contingent the lease for life to a feesimple by another And if a lease be made to a man and a woman for Co. super Litt. 218. their lives on condition that which of them two shall first mary that one shall have the fee and they intermary in this case neither of them shall have the fee for incertainty If a man make a lease for life and adde this condition that if To â—bridge an estate Co. super Litt. 218. 50 Ed. 3. 27. the lessee within one year doe not pay twenty shillings that he shall have but a term of two years and he doe not pay the 20 s. by this his lease for life is gone and he hath now but a lease for two years If a lease be made on condition that if a stranger dislike it or be 2. For the matter substance of it 1 H. 8. 13. discontented with it that the lease shall be void this is a good condition If a lease be made on condition that if the lessee be outlawed the Hil. 6. Jac. B. R. Curia lease shall be void it seems this is a good condition If a feoffment be made on condition that if the feoffee commit Preâ—ogâ—ive Trin. 3 E. 6. per Curiam treason that the feoffor shall reenter in this case the condition is vain for if the feoffor enter his entry is not lawfull for the King is intitled and his title shall be preferred No condition or limitation be it by act executed limitation of a Testament Co. 1. 83. 6. 43. Co. 9. 128. use or by devise or last Will that doth contain in it matter repugnant and tending to the utter subversion of the estate or matter Use that is against law or matter that is impossible to be done is good And therefore in all such cases if the condition be subsequent the estate is absolute and the condition void And if the condition bee to goe before the estate the estate and the condition both are void If a feoffment or other conveyance be made of land or a grant of Repugnant conditions To restrain Alienation Co. super Litt. 223. rent c. in feesimple by deed or will upon condition that the feoffee or grantee shall not alien to certain persons as to I S or to I S and W S this is a good condition So if one make a feoffment in fee of land on condition that the feoffee shall not alien it in Mortmain this is a good condition So if A be seised in fee of black acre and B doth infeoffe A of white acre in fee on condition that he shall not alien black acre this is a good condition But if the condition be that the feoffee or grantee shall not alien the thing granted to any person whatsoever or that if he doe alien to any person that he shall pay a fine to the feoffor these conditions are void in the case of a common person as repugnant to the estate But in case of the King such conditions are good And in the cases of a common Pâ—erogative person also the alienation is good until it be avoided by the feoffor And in Pasc 19 Jac. B. R. it was held by Just Dodridge and Chamberlain that if a feoffment be on condition that if the feoffee alien he Bragge and Tanners case shall pay 10 l. to the feoffor that this is a good condition but Ch. Just and Just Haughton held the contrary for then this shal be a circumvention of the law If a gift had been made to an Abbot his successors on conditioÌ„ not to alien this had been a good condition Doct. St. 124. If one make a feoffment of land to an infant on condition hee shall not alien to any person this is a good condition during the Co. super Litt. 224. 10 H. 7. 11. 13 H. 7. 23. Co. 10. 30. Perk. Sect. 739. 21 H. 6. 33. minority of the infant but not afterwards In like manner as if one make a feoffment to a husband and wife on condition they shall not alien this condition to some intent is good i. to restrain alienation by feoffment or deed and to some intent repugnant and void i. to restrain alienation by fine for that is lawfull So if a gift be made in tail on condition that the tenant in tail may alien for the profit of his issues this is a good condition And so if land be given in tail upon condition that the tenant in tail or his heirs shall not alien in feesimple feetail nor for the term of any others life but for their own lives this condition is good But if lands be given in tail on condition that the tenant in tail or his heirs in tail shall not suffer a common recovery levy a fine with Proclamations according to the Statutes of 4 H. 7. and 32 H. 8. to bar the issues or on condition that he shall not make copyhold estates of copyhold land according to the custome of the place or make leases according to the Statute of 32 H. 8. ca. 28. these conditions are held to be repugnant and for that cause void And yet see for the last of these cases the opinion in
on condition and the lessee doth Co. 8. 92. not know of it and after the lessor doth by will give the land to the lessee without condition and the lessee doth such an act as is a breach of the condition in this case the condition is not broken for the lessee must have notice of the condition ere he can breake him If a lease be made rendering rent on condition that if the rent Doct. Stud. 35. 13 H. 4. 17. To pay rent be not paid within twenty daies the lessor shall reenter and the rent is not paid in this case the condition is broken but the lessor cannot enter untill he hath made a legall demand and if he die before he doe it his heire shall never take advantage of that breach but it is discharged for ever When an act is to be done in time convenient or otherwise and the party doe it not by the time appointed by law the condition is Li. Sect. 353. Plow 30. broken If one grant an annuity pro consilio impenso impendendo and the To give advise grantor require advise and the grantee refuse or neglect to give it 21 E. 3. 7. 8 H. 6. 24. Dier 369. this is a breach of the condition and a forfeiture of the estate And if the deed be that he shall goe to such a place to give counsell and he require him to goe thither and he refuse it this is a forfeiture of the estate But if he refuse to goe with him to another place or give counsell to his adversary being not required to give counsel to him this is no breach of the condition nor forfeiture of his annuity And if one had heretofore devised his land to be sold by his executors Lit. Sect. 383. to have been distributed for his soule the executors had not sold it in time convenient or had taken the profits to their own use this had been a breach of the condition See more in the last foregoing division and in Obligation Numb 10. Covenant Numb 7. The same law is for the most part of conditions of obligations See Obligation Numb 10. Every particular estate hath a condition in law annexed to it and Co. 2. 15. 8. 44. super Lit. 233. 11. When a condition in law shall be said to be broken Or not therefore if tenant for life in dower by the courtesie or after possibility of issue extinct lessee for years tenant by statute merchant elegit or the like make any absolute or conditional estate of the lands they hold in fee simple fee tail or for life give livery of seisin thereupon Forfeiture or levy a fine Sur conusance de droit or suffer a recovery of the land or the like this is a breach of the condition in law and a forfeiture of their estate Also if any such tenant except tenant in taile after possibility of issue extinct doe wast in the lands they doe so hold this is a breach of the condition in law and a forfeiture of their estate in so much as the wast is committed But if an Infant Infant Womencovert or feme covert that hath such an estate shall make any such estate c. this is no breach of the condition in law And yet if such a person doe wast this is a breach of the condition in law And so also if any such person be an officer and doe any thing which is a cause of forfeiture in another this will be a forfeiture in him or her also If any keeper of a Parke without warrant kill any Deere fell Co. super Lit. 223. or cut any wood and convert it to his owne use pull downe the lodge or any house within the Parke used for hay for the Deere or the like this is a breach of the condition in law So also if a keeper shall not looke to the game but the Deere be killed by his default and damage come to the Lord by this also the condition is broken But the not attending upon such an office for two or three dayes if the Lord have no speciall losse thereby is no cause of forfeiture Offices that are for the Administration of Justice or of clark ship in any Court of Record or concerning the Kings treasure revenue Co. super Lit. 234. account alnage auditorship c. have also conditions in law annexed to them and therefore if such officers shall sell their offices or misdemeane themselves in their offices by this the condition in law may be broken and they may forfeit them As no man may create or annex a condition to an estate but he 12. Who may enter for a condition broken And what persons shall take advantage of a condition or a limitation And what not Lit. Sect. 347. Plow 175. Co. 3. 62. 347. 5. 56. Dier 131. Co. super Lit. 214 215. Doct. Stud. 93. Perk. Sect. 830 831. 833 835. Plow 488 489. that doth create the estate it selfe so neither can a man give or reserve the power title or benefit of reentry and avoidance of an estate upon the breach of a condition to any other but to him or them or at least to one of them that doth make the estate his or their heirs executors and administrators c. for it is a rule of the common law That none may take advantage of a condition but parties and privies in right and representation as heires executors c. of naturall persons and the successors of politique persons and that neither Privies nor Assignees in law as Lords by Escheate nor in deed as grantees of reversions nor Privies in estate as he to whom a remainder is limited shall take benefit of entry or reentry by force of a condition And therefore if a man had made a lease for life reserving rent on condition that if the rent be behind the lessor his heires and assignes shall reenter and after had granted the reversion to a stranger this grantee should not by the common law have had benefit by this condition But if the lessor had died his heire or the Gardian in Chivalry or Socage of such an heire if he had been an Infant and inward might have taken advantage by the condition And if one had been possessed of a lease for years and had granted his terme upon condition and had died his executors or administrators might have had advantage of this condition And at this day the law is still the same as touching Privies in Co. super Lit. 202. 12. blood for an heire shall take advantage of a condition though no estate descend to him from the Ancestor And therefore if one be seised of land of the part of his mother and he make a feoffement in fee of it on condition and die and the condition is broken in this case the heire of the part of the father shall enter but as soone as he hath entred the heire of the
and if it doe the party is not bound to seal it If one covenant to levy a fine at the next Assises for thirteene Curia Hil. 7 Iac. Co. B. years extunc this shall be taken from the time of the fine levied and not from the time of the covenant If one bargain and sell land to me by deed indented and before Adjudge in Sir Jo. Brets case the inrolment of the deed I do covenant with I S to convey all the land whereof I am seised and to doe this before such a day and before the day the deed is inrolled in this case my covenant shall not extend to this land conveyed to me by this bargain and sale If A covenant with B that in consideration of a mariage between Dier 371. the son of A and sister of B that hee at the costs of his son and by his sufficient deed will before Easter day assure land to his sonne and B doth covenant that if A doe performe this then hee will make him a generall release in this case albeit A be ready and the son doe not tender the assurance and the conveyance is not made B is not bound to make any release If one covenant to keep and leave a house in the same or as Fitz. Covenant 4. good plight as it was at the time of the making of the lease To repaire the houses in this case the ordinary and naturall decay of it is no breach of the covenant but the covenantor is here by bound to doe his best to keepe it in the same plight and therefore to keepe it covered c. If the words of a covenant be that the lessee shall have thornes Dier 19. by the assignment of the lessor and necessary fuell also it seemes For the having of houseboot c. by this that there must be an assignment of the fuell as well as of the thornes If the lessor covenant with his lessee that he shall have sufficient hedgeboote by assignment of the bailif of the lessor in this case Dier 19 20. and by this the lessee is not restrained from that liberty that the law doth give him and therefore that he may take without assignment But if the words be negative that he shall not take without assignment or that he shall take by assignment and not otherwise contra If A doth covenant with B that where as a mariage is intended Trin. 21 Jac. B. R. George versus Lane to be solemnized between A and C the daughter of B at or before To convey lands of the value of c. the fourteeneth day of August next and where the said B hath paid to the said A a thousand pound for portion c. the said A in consideration thereof doth covenant with B that he within one yeare of the day of the mariage will assure lands of the value of foure hundred pound per Annum in this case albeit the mariage be not before that day yet the covenant must be performed If one make a lease for years of a Manor and covenant that the That the lessee shall make estates lessee shall make estates for life or years and that they shall be good Per Justice Bridgman in this case it seemes this covenant shall not be taken to enable the lessee to make estates for a longer time then his estate will beare If the lessee covenant with the lessor that if the lessee be minded That if the lessee sell the lessor shall have the first refusall Dier 13. to sell his estate the lessor shall have the first refusall in this case when the lessee is minded to sell he need doe no more but acquaint the lessor with his purpose and know his mind and if he doe not answer him presently he may sell it to whom he will And if the covenant be further that the lessor shall give as much as another will the lessee must tell him what another doth offer him and aske him whether he will give so much and if he refuse or doe not accept it presently the lessee may sell to whom he will If one covenant to serve me a year and I covenant to pay him To doe one thing for another Co. super Lit. 204. Dier 371. Mich. 7 Jac. Co. B. tenne pound for it in this case albeit he doe not serve me yet I must pay him the tenne pound But if I covenant with him to pay him tenne pound if he serve me a yeare contra for in this case I am not bound to pay him the money unlesse he serve me a yeare So if one covenant to make new pales so as he may have the old in this case it seemes he is not bound to make the new pales unlesse he may have the old pales So if one covenant to pay money for service counsell or the like or covenant to mary ones daughter or make an estate and the covenant is penned conditionally and so as one thing is the cause of another and it is not set downe by mutuall and reciprocall covenants in all these cases if the cause or condition be not observed the covenant shall not be performed If one make a lease for tenne years and covenant that if the lessee Co. 1. 144. That the lessee shal have the fee. pay him tenne pound within the tenne years that he shall have the see simple and the lessee surrender his estate within the time in this case if the lessee pay the money the lessor is bound to make the fee simple to him But if the words of the covenant be that if he pay him tenne pound within the terme he shall have fee and the lessee surrender his terme and then pay the tenne pound in this case the lessor is not bound to make the fee simple for it was not paid within the terme If one covenant to doe a thing to I S or his assignes or to I S 27 H. 8. 2. Assignes and his assignes by a day and before the day I S die in this case it must be done to his assignes if he before the day name any assignee and if he doe not it must be done to his executor or administrator which is an assignee in law See more in Condition Num. 8. Obligation 7. If one be seised of land in fee or possessed of a terme of years Dier 303. Co. 9. 60. 7. When a Covenant in Deed or Law shall be said to be broken And when not And how and he doth alien it and supposing he hath a good estate he doth covenant that he is lawfully seised or possessed or that he hath a good estate or that he is able to make such an alienation c. and in truth he hath not but some other hath an estate in it before in this case the covenant is broken as soone as it is made * Adjudge Sir Perall Brocas case 32. Q. And if I
this lease is void as to him in reversion or remainder Cessante statu primitivo cessat derivativus So if a Prebend Parson or Vicar make a lease for yeares not warranted by the Statutes this is void by the death of the lessor and the successor need not make any entry or claime to avoid it So if a tenant for life make a lease for yeares and after die in this case the lease for yeares is void And therefore in all these and such like cases no acceptance of rent after will affirme such leases But Acceptance otherwise it is in cases of leases for yeares made by Bishops albeit they be confirmed by Deane and Chapter and of leases made by Deanes and Chapters or tenants in taile as to their successors and issues when the leases are not warranted by the Statutes And otherwise it is also in the case of leases for life made by these or any of the former lessors for in all cases of leases for life it must be avoided by entry c. and therefore such leases are not void but voidable viz. The leases of Bishops and Deanes after their death by their successors and that by the Statute law and the leases of tenants in taile by their issues after their death and that by the common law And in these and such like cases the acceptance of the Acceptance rent by the issue or successor will make good the lease at least for their time If a lease be made for yeares on condition that upon such a contingent Co. 3. 65. it shall be void in this case so soone as the thing doth happen the lease is void ipso facto without any reentry c. But if a lease for life be made on such a condition in this case the lessor must enter c before the lease will be void CHAP. XV. Of a Feoffment Gift Grant and Lease A Feoffment Grant or Lease in writing may become void by 1. Where and bv what meanes a feoffment gift grant or lease and the estate thereby made being good at first becometh void by matter ex post facto and may be avoided Or not And how rasure interlining and the like as hath been shewed before in Deed supra And a feoffment grant or lease and the estate thereby made may become void by forfeiture or upon a breach of a condition or by a limitation For which See Condition and Vses Also Co. 3. 26 27. 5. 119. Doct. Stud. 119. Perk. Sect. 44. 45. Fitz. Done 4 5. Bro. Done 29. 30. 59. they may become void by disagreement or refusall And this may be either by the disagreement of the party himselfe to whom it is made or by the disagreement of another Of the party himselfe for no estate can be made to a man of any thing in see simple for life or otherwise against his will And therefore by his disagreement or refusall of it the estate it selfe and the deed whereby it is conveyed may become void By the disagreement of another as the husband in case of a feoffment c. made to his wife may by disagreement avoid it And for the first of these the law is thus That all such acts that give estates directly or by way of use are good at first and the thing granted when the deed of grant is delivered to his use shall vest in the grantee before he hath notice of the grant or agree to accept of the thing granted so that if lands be limited to a man by way of use or granted immediately by feoffment gift grant or lease or goods or chattels be given or granted to a man in these cases the things granted shall be said to be in the grantee and the grant good before notice and agreement untill disagreement And before agreement the grantee may waive it and so avoid the estate and the deed also whereby the estate is made And if it be but a lease for yeares that is made he may waive and avoid that by word of mouth in the country as well as a gift of goods or an obligation delivered to his use But if it be an estate of free hold that is made by feoffment it seemes he cannot waive and avoid that but in a Court of Record When the cause of a grant faileth and the thing granted is executory Co. super Lit. 204. Plow 134. 15 E. 4. 4. Dier 76. 9 E. 4. 20. the grant is become void As if one grant an annuity for an acre of land for tithes or for counsell in this case pro is conditionall and therefore if the land be evicted by an elder title or the grantee disturbed in the tithes or he refuse to give counsell the annuity is determined But if a feoffment or lease for life or yeares be made of an acre of land pro una acra c. as in the case before albeit the acre be evicted c. yet the grant in this case of the acre of land is good And if one grant an annuity for counsell if the grantee will not give counsell the grant is not of force So if one grant to make new pales in a place for the old pales if in this case he cannot have the old pales it seemes the grant shall not bind him to make new pales So if one grant a rent for a way stop the way and the rent shall be stopped If one that hath a lease for life or yeares of a Manor to which an advowson is appendant grant the next avoidance that shall happen Co. 8. 144 145. during the lease or grant a rent out of the Manor and then surrender the Manor so that his estate is gone in this case notwithstanding the grant of the next avoidance and of the rent doth continue good and the grantee shall enjoy it according to the grant as long as the estate that is surrendred should have had continuance If the heire of the Kings tenant enter and make a lease before livery sued and after an intrusion is found against him by this it seems the lease is avoided So if tenant in taile make a lease warranted by the Statute and after dieth without issue by this the lease H. 7. is determined If a tenant in taile make a feoffment to his heire within age and Co. super Lit. 349. he after he is of full age make a lease for yeares of the land and after the tenant in taile dieth and the heire is remitted the lease in this case is not avoided If an annuity be granted to one untill he be advanced to a benefice Plow 272. 15 H. 7. 1. by the grantor and the grantor die and the heire or executor of the grant or tender a benefice it seemes this will not determine the grant If A be lessee for yeares of an advowson and grant the next avoidance Co. 8. 145 7. 39. to B if it shall happen to become void during the terme and A doth
discharge a rent before the day of paiment come By a release of all promises or Assumpsits without more Of promises Adjud Hil. 16 Jac. B. R. Briscoe vers Heires Co. 10. 51. words a man may barre himselfe of a contingent or future thing that by other words could not be released as if a man promise to me that if I S doe not pay me one hundred pound the tenth of March next that he will pay it me the twentieth of that moneth and before the time I release to him all actions and demands this will not discharge the promise But if I release to him all promises this will barre mee Et sic de similibus By a release of all Judgements without more words is he Lit. Sect. 507. Co 8. 151. super Lit. 290. that maketh it barred of the effect of any Judgement he hath Of Judgements Of Executions against the relessee for if execution be not taken out he is now barred of it And if the relessee or his land c. be in execution he and it shall be discharged thereof by Audita Querela And by a release of all executions without more words a man is barred of taking or having out of any execution upon any Judgement either before Scire facias or after But if after execution be made by Capias ad Stat. Elegit or fieri facias the Audita Querela plaintife release to the defendant all executions he cannot plead such a release but he must have an Audita Querela and that he may have to discharge him of execution By a release of all appeales are discharged all appeales of Co. super Lit. 287 288. felony of death of robbery of rape of burning of larceny Of Appeales depending and all causes not yet moved also By this release of all advantages it seems actions of debt upon Of Advantages account are discharged Co. 8. 150. By a release of all conspiracies all conspiracies past are discharged Kelw 113. Of Conspiracies and such also as are only begun and shall be prosecuted and perfected after the release are likewise hereby discharged By a release of all forgeries before publication the forgery is Of Forgeries Co. 10. 48. discharged but not the publication and therefore the relessor may take his remedy for that notwithstanding A release of all demands is the best release of all and this Of Demands or Clâ—imâ—s Co. super Lit. 291. Co. 8. 54. Lit. Sect. 501 509 510. word is the most effectuall word of all and doth in deed include and comprehend within it most of all the releases before By a release therefore of all demands without more words are released all rights and titles to land warranties conditions annexed to estates before they be broken or performed and after they be broken Also by this release are released and discharged all Statutes Obligations Contracts Recognisances Covenants Rents Commons and the like Also all manner of actions reall and personall Appeales Debts duties Also all manner of Judgements Executions Also all Annuities and Arrearages of Annuities and Rents And therefore if a man have a title of entry by force of a condition c. or a right of entry into any lands by such a release the right and title is gone And if a man have a rent-service rent-charge estovers or other profit to be taken out of the land by such a release to the tenant of the land it is discharged and extinct And therefore if a termor for yeares grant the land by indenture to A rendring rent and at the end of the first yeare Adjudg B. R. pasc 17 Jac. Wottons case he release to the grantee all demands the rent is hereby extinct during all the time And a release of all claimes it seems is much of the same nature But by a release of all demands or of all claimes is not released Co. 5. 70. any such thing as whereof a release cannot be made as a meere possibility or the like Neither will this release discharge a covenant or promise that Hil. 4 Jac. B. R. Hancocks case adjudge is future and contingent before it be in being Nor a covenant before it is broken and therefore if the lessee of a house covenant to leave it as well in the end of his terme as it was in the beginning of his terme and before the end of the terme the lessor release to the lessee all demands this is no barre to an action brought for a breach of the covenant afterwards And if a man in consideration of a summe of money given to Hil. 6 Jac. B. R. Belcher Hudsons case him by a woman sole assume to her that if shee mary one M that he will pay to her after the death of M one hundred pound by the yeare if shee survive him and shee mary him and the husband release all demands and then die this is no barre to the duty So if one promise a woman that if shee will mary him that he will leave her worth one hundred pound if shee doe survive him and before the mariage shee release to him all actions and demands this doth not discharge the promise And note that all these words are of the same force when they are joined with other words as when they are alone Note If two tenants in common of land grant a rent-charge of Co. super Lit. 267. forty shillings out of it to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of law is severall If one have severall causes of action against two and make a joint release to them this shall be taken to be a release of all 19 H. 6. 4. joint and severall causes of action So if an executor have some cause of action for himselfe and Bro. Release 31. 29. some for his testator and he release all Actions indefinitly this release doth discharge both sorts of actions If the tenancy be given to the Lord and a stranger and to the heires of the stranger and the Lord release to his companion Co. super Lit. 280. all his right in the land this shall enure not only to passe his estate in the tenancy but also to extinguish his right in the Seigniory If there be Lord and tenant of two acres and the Lord release all his right in one of them to the tenant hereby the Perk. Sect. 71. Bro. Release 85. 9 E. 3. services are extinct for both So if one have a rent charge out of twenty acres and release all his right in one acre hereby all the rent is extinct And yet if A lease white acre to B for life rendring rent and afterwards doth release part of the rent this is good only for such part If I be seised of land in fee and I make a lease of it to one for life and after I
it it shall be deemed in earnest but if it bee by way of discourse only or of somewhat â—e would do hereafter or the like it shall be taken for nothing The third thing required in a good Testament is that the minde of the Testator in the making of it bee free and not moved by Thirdly in respect of the occasion or motive of it Swinb 283. 284. 285. 286. feare fraud or flattery for when a Testator is moved to make his Testament by feare or circuâ—vented by fraud or overcome by some immoderate flattery the samâ— is void or at least voidable by exception And therefore if a man by occasion of some present fear or violence or threatning of future evils do at the same time or afterwards by the same motive make a Testament this Testament is void not only as to him that put him so in feare but as to all others albeit the testator confirm it with an arch But if the cause of feare be some vaine matter or being weighty is removed and the testator doth afterwards when the â—eaâ—e is past confirm the Testament in this case perhaps the Testament may beâ— good And if a man by occasion of some fraud or deceit bee moved to make a Testament if the deceit be such as may move a prudent man or woman and if it be evill also the Testament is void or voidable at the least but if the deceit be light and small or if it be to a good end as where a man is about to give all his estate to some lewd person from his wife and children and they perswade the Testator that the lewd fellow is dead or the like and thereby procure him to give his estate to them this is a good Testament And one may by honest intercessions and modest perswasions procure another to make himselfe or a stranger Executor to him or the like and this will not hurt the Testament Also a man may use fair and flattering speeches to move the Testator to make his Testament and to give his estate unto himself or some friend of his exâ—â—pt it be in case where the â—latterer doth first beate or â—hreaten him or put him in fear or to his â—lattery joineth fraud and deceit or the Testator is a person of weak judgement or under the danger or government of the â—latterer as when the Physician shall perswade his Patient under his hands to make his Testament and give his estate to himself or the wife attending on her husband in his sicknesse shall neglect him and continually provoke him to give her all or where the perswader is importunate and wil have no denial or when there is another Testament made before for in all these cases the Testament wil be in danger to be avoided And if I be much priviâ— to another mans minde and he tell me often in his health how hee doth intend to settle his estate and he being sick I doe of mine own head draw a Will according to his minde before declared to me and bring it to him and ask him whether this shall be his Will or no and he doth consider of it and then deliver it back to me and say yea this is a good Testament But if otherwise some friends of a sick man of their own heads shall make a Will and bring it to a man in extremity of sicknesse and read it to him and ask him whether this shall be his Will and he say yea yea Or if a man be in great extremity and his friends presse him much and so wrest words from him especially if it be in advantage of them or some friends of theirs in these cases the Testaments are very suspiâ—ious But as touching these two last things Quâ—re how they shall avail in the Wills of land which are not regulated so much by the Civill Law The fourth thing required in the making of a good Testament is Swinb 112. Broo. Test 20. Fourthly in respect of the manner and form of the disposition that that form and order that the Law prescribeth be observed in the the disposition And therefore 1. that there be an Executor named in all Testaments of goods and chattels and that that Executor named be capable of the Executorship for this is said to be the head and foundation of the Testament for if there be never so many First naming of an Execuâ—or Legacies given and no Executor made this disposition is but a a Codicill and cannot properly bee called a Testament for in this case the party dead is said to die intestate and the Administration of his goods must be granted to the Widdow or next of kinne whereas on the other side if an Executor be appointed albeit there be no Legacy given yet this disposition is and is properly said to be a Testament 2. If the Testament be of lands or Tenements it must be Secondly if it be of lands it must be in writing in writing and it must be committed to writing at the time of the Stat. 32. 34 〈◊〉 8. Perk. Sect. 476 47â— Dyer 72. Plow 345. Coo. 4. 60. Dyer 53. making thereof And it is not sufficient that it bee put in writing after the death of the Testator being first made by word of mouth only for then it is but Nuncupative still But if the Testament bee first made by word of mouth and be afterwards written and then brought to the Testator and he approve it for his Testament Or if the Testator when he doth declare his minde doth appoint that the same shall be written and thereupon the same is written accordingly in the life time of the Testator these are good Testaments of land and as good as if they be written at the first If therefore one be very sick and another come to him and ask him whether his wife shall have his land and he say yea and a Clerk being present doth put this in writing without any precedent commandement or subsequent allowance of the sick man this is no good Testament of the land So if one declare his whole minde before Witnesses and send for a Notary to write it and die before he come and he write it after his death this is no good Testament for his lands but a good Nuncupative Will for his goods and chattels except he declare his minde to be that it shall not be his Will unlesse it bee put in writing for then perhaps it may not be a good Will for his goods and chattels So if â—he that doth write the Will cannot hear Adâ—udged Trin. 10. 〈◊〉 the party speak and another that stands by the sick man doth tell him what he doth say in this case if there be none others prâ—sent to prove that he reported the very words of the sick man this will be no good Testament of the Land But if a Notary take direction from the sick man for his Will and after goe away and write it and then doth
appeare plainly to be the expresse Will of the Testator to revoke the former or unlesse the Testator himselfe did dictate the latter or in case the latter be in favour of the children of the Testator or others who are to have the Administration of his goods if he die intestate 2. When the Testator doth make two Testaments a former and a latter both being written and afterwards lying sick upon his death bed they are both presented unto him and he is desired to deliver to one of the standers by which of them he will have to stand for his last Will and he deliver the former 3. When the latter doth agree in all points with the former for then both of them are as one in divers writings 4. When in the latter Testament there is no Executor named for then it is but a Codicill or addition to the former 5. When the latter is made upon some sudden discontent against the Executor of the former Testament and afterwards he and the Executor are reconciled againe in these and such like cases the latter Testament is no Revocation of the former * Lit. Broo. 55. If the husband licence his wife to make a Testament and after her death he forbid the Probate this is a Countermaund of of the Testament But note here that Revocations in generall are not favoured in Law and therefore he that will a void a former Will by Revocation must see he prove it well 2. * Swinb 〈◊〉 7. part sect â—6 A good Secondly by cancelling oâ— it Testament may become void by cancelling or other destruction of it as where the Testator himself or some other by his commandement doth cut or teare it in pâ—eces deface it or cast it into the fire by this meanes the Testament is made void except it be in case where the Testator doth it unadvisedly or it be done by some other without his consent or by some casualty or when he doth willingly pull away the Seales and then he doth afterwards sâ—ale it againe or where the whole Testament is not cancelled or defaced but some or the chiefe part thereof as the naming of the Executor or the like for it is good still for the residue or where there be severall papers or writings of one ten or each of them containing the whole Testament the cancelling or defacing of some of them doth not hurt the Testament unlesse it can be proved that the Testators mind were to avoid it all or where the Testament is lost in the life time of the Testator or after for in this case so much as can be proved by Thirdly by â—â—teration of the estate oâ— the Testaâ—â—â—â— Witnesses is still in force 〈◊〉 A good Testament may become void by Swinb part 〈◊〉 Sect. 17. alteration of the estate of the Testator as when a man after the time of making the Testament and before his death is convicted or condemned of some great crime for the which the Law depriveth him of the making of a Testament as Treason Felony or the like And yet if the crime be pardoned and purged before his death the Testament may be good enough And if a man of sane and perfect â—â—o 4. 62. memory make his Testament and after become inopsmentis as â—very man for the most part is before his death this doth not hurt the Testament 4. A good Testament may become void by an intention Fourthly by intention to alâ—â—â— it only to aâ—ter it when the Testator is hindered in his intention Swinb parâ— 7. sect 18. that it cannot take effect And therefore if when the Testator intendeth to alter his Testament or to make a new one he be by feare or fraud forbidden or letten that he dare not or cannot alter it or the Notary or Witnesses dare not or may not be suffered to come to him as when a wife or some other that is to have benefit by the former Will under pretence that she hath a charge from the Physitian that none shall come at him or under pretence that he is asleep or the like will not suffer any body to come at him or when the Notary and Witnesses are all present and they make such a noise or quarrelling that they hinder the effect of hiâ— intent or when the Testator is kept from doing it by importunate requests and flattering perswasions in all these cases and by these meanes the former Testament may become void But if it appear the Testator hath no purpose to alter the Testament when hee is let as as aforesaid the feare is a vaine feare the Testator is prohibited at another time and not the time when he doth intend to alter the Testament but he hath sundry opportunities after that time to doe it and doth it not or he is drawn only by the faire speeches of a wife or friend or by the weeping or other trouble arising from the griefe of the Legatary or Executor for the Testators sicknesse only he is disturbed in these cases perhaps it may not be void And where it is void by the prohibition of a Legatary only it is void for so much as doth concern him only and not for the rest of the Testament 5. A good Testament may become void by making Swinb paâ—â— 7. â—ect 11. Perk. Sect. 479. another of the same date for if two Testaments be found after the Fifthly by making another of the sâ—me date death of the Testator and it cannot be discerned or proved which was made former or latter the one of them doth overthrow the other and both of them are become void except they be both to the same purpose or one of them be made in favour to wife and children c. and the other to strangers And yet in the first case also the Testator by declaration of his minde which of them he will have to take effect may make either of them good 6. A good Sixthly by the declaration of the Testator Testament may be made void by the declaration of the Testators minde as if a man have two Testaments lying by him the one made after the other and they are both shewed or delivered to the Testator when he lyeth sick and hee by word or signe declare that he will have the former to stand this declaration doth revoke the latter and affirme the former And where a man would revoke a Will for any of these causes he must presently after the death of the Testator put in a Caveâ—t or exception in that Court where the Will is to be proved and thereupon proceed to question it or by a prohibition in some cases he may stay the Probate in the Spirituall Court See more infra at Numb 12. If a woman covert without the leave of her husband make a 6. Where a Testament void voidable in his Inception may become good by some matter or accident ex post â—acto And where not Perk. Sect. 501. Coo. 〈◊〉 99.
name But if it be such a cause of action as is altogether uncertain as where a man may have an action against another for taking away his goods or to compell him to make an account or the like this is such a cause of action as is not deviseable And yet possibilities and incertainties are in divers cases devisable Perk. Sect. 527. Litt. B100 Sect. 437. Dyer 272. Plow 520. And therefore if one have money to be paid him on a Mortgage he may devise this money when it comes as if I enâ—eosse a stranger of land upon condition that if he do not pay me 20l. such a day that I may reenter in this case I may devise this 20l. if it be paid and the Devise is good albeit it be made before the day of paiment come Childs case 17. Ia. B. R. And if a man be possessed of a Terme of yeares and devise all the residue of that Terme of yeares that shall be to come at the time of his death this Devise is good and yet such a Grant by deed is void Grant * But a meer possibility and a thing altogether incertain is no more devisable by will then it is grantable by deed 19. Emblements i. e. the Devise of Emblements Perk. Sect. 520. 521. c. See in grantâ— corne that is sowen and growing upon a mans ground at the time of his death and which himselfe should have reaped if he had lived to the harvest as in most cases he shall where he doth sowe it are devisable And therefore if a man have land in Fee simple Fee taile for life or yeares and sowe it with corne he may devise the corne at his death to whom he please And yet if Lessee for yeares sowe his land so little while before his Terme expire that it cannot be â—ipe before the end of the Terme and he die it seemes he cannot devise this corne for if he had lived he could not have reaped it after the end of the Terme 20. Obligations Counterpanes of Leases and Perk. Sect. 527. such like things also are devisable but in this case the Devisee cannot Devise of Obligations Counterpanes of Leaseâ— c. sue upon the Obligation in his own name nor enter for the condition broken upon the Lease if there he cause but he may cancell give sell or deliver up the Obligation or Counterpane to the Obligor or Lessee And finally whatsoever shall come to the Executor See inâ—â—â— in Numb after the death of the Testator in the right of his Executorship may be devised by the last Will and Testament of the Testator 21. Devise ofâ— the things a man hath in Iointure wiâ—h another Perk. Sect. 52. Litt. Sect. 287. Doct. St. 167. The goods and chattels that a man hath joyntly with another are not devisable And therefore if there be two Iointenants of goods or chattels as where such things are given to two or two do buy such things together and one of them devise his part of the things to a stranger this Devise is void Insomuch that if in this case the Testator make the other Ioyntenant his Executor the Will as to this is void and he shall not be charged as Executor for those goods but he shall have them altogether by right of survivorship 22. The Devise of the things a man hath in anothâ—â—s right Plow 525. B100 Administrator 7. 〈◊〉 Adm. 〈◊〉 goods and chattels that a man hath in anothers right are not devisable and therefore an Executor or Administrator cannot devise the goods and chattels he hath as Executor or Administrator for such a Devise is void Howbeit the Executor may appoint an Executor of the goods of the first Testator which the Administrator cannot do And of the profits that do arise by the goods and chattels the Executor or administrator hath during the time of his Administration he may make disposition The goods and chattels belonging to Colledges and Hospitals may not be devised by the Testaments of the Masters or governours thereof noâ— the goods and chattels belonging Doct. St. lib. 2. c. 39. Perk. Sect. 4â—6 49â— 49â— to other Corporations by the Mayors Bayliffes or Heads thereof * And the goods and chattels that Churchwardens have in the right of the Church are not devisable * Perk. Sect. 560. Doct â—t c. 7. All the chattels reall that a man Husband and wife hath in the right of his wife by her means and all the Obligations that are made to her alone before or during the time of the Coverture and the chattels reall or personall that his wife hath as Executrix to any other are not devisable by the Testament of the husband But all the chattels personall that a man hath by his wife which she hath in her own right and the debts due upon Obligations made to the husband and wife both during the Coverture are devisable by the Testament of the husband 23. Such things as are annexed and incident Devise of things that are incident and annexed to some other thing to a Freehold or inheritance so that it cannot be severed from Perk. Sect. 526. Relw. 88. See before it by him that hath the propertie of them as wainscot and glasse to houses and the like are not devisable but in such cases where the thing it selfe to which it is annexed is devisable 24. The goods and chattels that are another mans are not devisable and therefore Plow Granthams case Câ—o. super Litt. 185. Coo. super Litt. 308 Devise of things that are not the Devisors or belong not unto his Executor if a man give another mans horse it is is a void Devise So if one devise the things that by speciall custome of some places as the heire loomes do belong to the heire this Devise is void for it is not devisable from him 25. If a Bishop have a Ward belonging to his Trin. 13. Ia. Curia B. R. Bishoprick fallen he may devise it but if a Church of his become void in his life time he cannot devise the Presentation If a Parson of a Church have the Advowson in Fee and he devise that his Executors Devise of a Preâ—entation to a Church two or three of them shall present at the next avoydance this is a good Devise 26. All these things before that are devisable Swinb part 7. c. 5. Plow 525. Perk. Sect. 500. when they are devised must be named and devised either by their proper name or otherwise described by some other matter whereby Mistake or error in the 〈◊〉 devised the mind of the Testator may be known and discerned for if he erre and mistaken in the name or substance of the thing devised or it be so incertainly devised and described that it cannot be perceived what he intendeth the Devise is void And therefore if one devise a piece of ground by the name of a Mesuage
Administration of her goods and chattels And all these persons that may be Executors may be Executors by that name See before at Numb 7. Swâ—b 29â— as they may be Devisees And yet if there be two of one name and the Testator make one of that name his Executor and doth not say neither can it be discerned which of them he doth intend in this case neither of them shall bee Executor But it is said that an Heretick Apostaâ—e Traitor Felon Recuâ—ant Swinb 2â—â— 223. Coo. 9. 39. convict Sodomite Libeller Bastard begotten in Incest or a notorious Usurer cannot be an Executor And that if a man be for any of these causes uncapable at the time of the death of the Testator when the Executor is to take upon him the Executorship that hee is for ever uncapable but it hath beene held â—roo Non-ability 18. Fitz. Excomengment â—3 by the Common-Law that a person attaint may bee an Executor The most apt and proper words whereby to constitute an Executor 20. By what words a man may be made an Executor and what words in a Testament shall make a man full Executor or not but a Coadjutor or Supravisor and who shall be an Executor by such words Swinb part 4. Sect. 17. â—8 1â— Dyer 〈◊〉 19 H. 8. 8. 21 H. 6. 6. Fitâ— Executor 43. â—roo Executor 98. 73. Fitz. Executors 113. 121. Briefe 999. are I make I S my Executor or I make I S the Executor of my Will c. But an Executor may be constituted by other words equivalent or by implication And therefore if a man say in his Will I will that I S shall be my generall Administrator or I will that I S shall administer all my goods or I will that I S shall dispose all my goods and chattels or I commit all my goods to I S or I commit all my goods to the disposition of I S or I make I S Lord of all my goods or I make I S Legatary of all my goods or I leave all my goods to I S or I give all my goods to I S and make no other Executor in all these cases I S by intendment of Law is made Executor of all the goods and chattels of the deceased So if a man say Of all my goods I make I S and say no more but omit the word Executor by these words I S is made Executor So if one say I will that I S shall dispose all the goods that are in his hands by these words I S as to those goods is made Executor So if I deliver goods to I S to keep untill my death and then to distribute ad pios usus or for my soule hereby I S shall be my Executor if I D will not by this I D is made Executor in the first place by implication and if he refuse then I S shall be Executor But if a man make A and B his Executors and say I will that I S shall be a Coadjutor or helper to A and B ad distribuendum or ad administrandum bona mea or I will that I S shall be Surveyor or Supravisor of my Will in these cases and by these words I S is not made Executor with A and B. And yet if he say I will that I S shall have Administration of my goods or bee Executor with A and B or be Administrator with A and B in these cases and by these words I S is made joynt Executor with A and B. And if one supposing I S to be dead say I will that I D shall be my Executor because I S is dead in this case and by these words I S if he be living is made Executor first and if he refuse I D shall be Executor If one make A B and C his Executors and 〈◊〉 6. 6 7. then saith afterwards And I will that B shall administer my goods alone or that B only shall administer my goods it seemes in these cases B only is made Executor and that A and C are not made joint Executors with him In all Cases where a man hath any goods or chattels to administer 〈◊〉 Where and in what â—ase an Administâ—ation is grantable o◠〈◊〉 And to whom it doth belong to◠〈◊〉 to whom 〈◊〉 must 〈◊〉 Coo. 9. 〈◊〉 Plow 276. Doct. Stud 78. 132. Dyer 236. 〈◊〉 H. 7. 13. and he doth die a naturall or civill death and dyeth inâ—estate either in deed i. e. doth make no Will at all nor appoint any Executor or in Law i. e. that doth make one or more his Executor or Executors and he or they so appointed is or are such persons as are not in being or if they be in being is or are so incertainly named that it cannot be discerned whom the Testator doth intend or if he is or they be well named he is or they are all incapable by reason of some legall impediment or if otherwise they bee capable they doe all die before the Will be proved or if they live if being cited to come in before the Ordinary to prove the Will they either refuse to appear or if they doe appeare they refuse to prove the Will and to take upon them the Administration of the goods and chattels of the deceased in all these cases the Ordinary may and ought to grant the Administration of all the goods and chattels of the deceased to him that of right it doth belong unto according to his discretion And if a man make a Will and after the death of the Testator the Executor prove it and then die intestate the Ordinary must grant the Administration of the goods of the first Testator not administred in the hands of the Executor to some competent person or persons according to his discretion but where a man hath no goods and chattels to administer i. e. either he hath none or if hee have they are none of his or if they are there is an Executor named in rerum natura capable and well named and he doth accept or at least hath not refused the Executorship in these cases the Administration ought not to be granted or if it be granted it will be void or voâ—dable at the least And where an Administration is grantable it is to be granted by and had from the Ordinary of Stat. 31 Ed. 3. chap. 11. 21 H. 8. c. 5. Fitz. Administration 7. Litt. Bâ—oo Sect. 276. See infra Numb the Diocesse where the party whose goods are to be administred lived at the time of his deathâ— for regularly he that shall have the Probate of a Will in case where a man doth make a Will shall have the granting of the Administration of his good and chattels in case he die intestate And therefore if all the goods and chattels of the party deceased be within the same Diocesse wherein the intestate lived and dyed the Ordinary of that Diocesse or his lawfull Deputy or Commissary or the Arch-deacon of the Diocesse
to I S to have and to hold unto him and the heirs of his body to the use of him his heirs and assignes for ever this use is voyd d Dyer 169. Cromp. Iur. 53. Litt. Broo. Sect. 284. And where one doth bargain and sell land for money in which case the law doth make an expresse use no other use can be appointed And therefore if A for money bargain and sell land to B and his heirs to the use of A for life and after of B in Tail and after of A in Fee all these uses are void for a use cannot rise out of a use So if A make a Lease to B for years rendring Rent To have and to hold to the use of the Lessor this use is void as being against reason also And if a Feoffee to use before the Statute of uses had bargained and sold the land to one who Dyer 155. Coo. 1. 136. 137. had notice of the former use no use had been made hereby for there might not be two uses in being of the same land at one time And if A enfeoffe B to the use of C and his heirs with proviso that if D pay to C 100l that C and his heirs shall stand seised to the use of D and his heirs this last use is void for the use must arise out of the estate of the Feoffee and not out of the estate of the Cestuy que use The sixth thing whereunto respect must be had is the cause or Sâ—ixthly iÌ„ resâ—ect of the cause or conâ—â—â—eration of it and what shal be a â—ufficient consideration to raise or alter a use Or not consideration For howsoever in caâ—es where uses passe by way of transmutation of possession as by Fine Feoffment or Recovery there Coo. 1. 176 the consideration is not at all materiall for he that doth make the estate may appoint the use to whom he will without any respect to marriage kindred money or other thing for in this case his own will and consideration guideth the use and equity of the estate yet in Bargains acd Sales â—nd Covenants to â—and seised to uses it is otherwise for there consideratâ—on is so necessary that nothing will passe neither will any use rise without a Consideration i. e. some matter that may be a cause or occasion meritorious which amounteth Dyer 1â—9â— Comp. â—ur 62. to a mutuall recompence in Deed or in Law which must be expressed or impliâ—d in the Deed whereby the use is created ur else supplied Aveâ—ment by averment and proof â—or howsoever in this case an averment shall not be allowed and taken against a Deed that there was Dyer 146. Coo. 1. 176. 11 â—â—5 Dyer â—1â— no consideration given when there is an expresse consideration upon the Deed yet when the Deed expresseth no consideration or saith I for divers good conâ—â—derations or the like there an avâ—rment of a good consideration given shall be received for this is an aveâ—ment that may stand with the Deed and without consideration Inrolment will not help And therefore if one bargain and sell his land to another by Deed indented and inrolled without any consideration it seems no use will rise by this to the Bargainee e 41 â— Ad iudged So if one for divers good causes and considerations or for divers great and valuable considerations bargain and sell his land to another or covenant to stand â—eised of his land to the use of another that is not of his kindred no use will rise by this unlesse it be proved that mony or something else was given for it But if a man by Deed in consideration of money as in consideration of the summe of 100l to Plow 301. Brao Fait Inroll 9. Doct. St. 99 Cromp. Iur 60. 61. Dyer â—0 him paid or in consideration of a competent sum of money to him paid or otherwise promised to be paid or in consideration of other land or of giving of counsell or the like bargain and sell or by such like words grant his land to another in Fee-simple Fee-tail for life or years in these cases the use will arise to the bargain well enough And therefore if I covenant with B that when he doth Cromp. Iur 61. infeoffe me of White Acre I will stand seised of Black Acre to the use of him and his heirs and he doth infeoffe me accordingly in this case the use of Black Acre will rise to B and he and his heires shall have it according to the agreement f So if I agree with my Lessee for years that if he pay me 100l within his term that I will stand seised of the land to the use of him and his heirs and he â— Broo. Exposition of words 44. do pay me the 100l accordingly in this case the use will rise and he and his heirs shall have it aâ—cording to the agreement So if I covenant that my sonne shall marry the daughter of A and A promise to give me a 100l for the marriage portion and I covenant that iâ— the same marriage do not take effect I and my heirs will stand seised of the land to the use of A and his heirs untill the 100l bâ— paid in this case a good use will rise of the land accordingly if the marriage do not take effect But in all these and such like cases the covenant must be by Deed indented and it must be inrolled otherwise no uses will arise And when the Deed is inrolled it shall take effect as from the beginning by relation to avoid all intervenient estates and charges whatsoever And in like manner Relation Plow 302. â—â—H 7. 20. it is if one for no cause or for no consideration as because he is of his ancâ—ent acquaintance or because there hath been entire love or great familiarity between them or because he hath been his chamber-fellow school-â—ellow or fellow-servant or because he hath done him good service or because he was his Master and taught him or to the end that he may pay his Debts and Legacies and discharge his Funerals or for divers good causes and considerations if one for any of these or any such like cause and consideration covenant with another that he will stand seised of his land to the use of that other and his heirs or that he and his heirs shall have the land c. by this covenant whether it be inrolled or not no use at all will rise So if one covenant to stand seised to the use of I S who is his Dyer 374. Bastard sonne and his heirs no use will arise hereby And yet perhaps upon such a Covenant as this whereupon no use Covenant nor estate doth arise an Action of Covenant may lieâ—â— Buâ— Coo. 7. 11. 10. 143. 1. 83. Plow 301. Litt. Broo. Sect. 284. Coo. 1. 254. if one in consideration â—f â—â—ure kindred blood 〈◊〉 with ones selfe or any of â—is 〈◊〉 paiment of debts or