Will only to Land and a Testament only to Chattels requiring Executors which a Will only for Land doth not require For it seems that by the Common Law where Lands or Tenements are only devised by writing albeit there be no Executor named yet that is properly called a Last Will and where it concerns only Chattels a Testament The truth is a Testament taken strictly according to the said definition differeth from a Last Will yet not as opposite thereto but only as the Special differeth from the General for every Testament is a Last Will but every Last Will is not a Testament In a word a Last Will is a general word and agrees with each several kind of Last Wills or Testaments But a Testament properly so called is only that kind of Last Will wherein an Executor is named or appointed Plowden in his Commentaries doth define a Testament to be the Witness of the mind and to be compounded of these two words viz. Testatio and Mentis But this is no adequate definition of a Testament neither is it a compound word but a single word such as is Calceamentum Paludamentum and the like And if it be demanded whether a Testament may be good in Law without a Seal it is Answered in the Affirmative for a Seal is not absolutely necessary to a Testament though it may be fit and expedient For a Will not being properly and legally a Deed may be good enough without a Seal which is one essential part of a Deed yet hath a Will the force and effect of a Deed. CHAP. II. Of the several Distinctions or kinds of Testaments A Testament is either Solemn or Vnsolemn This though the first and greatest distinction of Testaments yet of least force or use with us now in England 2. Testaments are either written or Nuncupative 3. They are either priviledged or unpriviledged Of Priviledged Testaments there are three sorts whereof some are called Militarie Testaments others are called Testaments only among the Testators own Children and others are Testaments to Charitable and Pious uses But if no Executor be named or appointed then it hath not the name of a Testament yet it shall retain the name of a Last Will and comprehends one of these three viz. either a Codicil or a Legacy and Devise or a Gift in regard or by reason of death CHAP. III. Of Testaments Solemn and Vnsolemn IN Solemn Testaments are comprehended the Solemnities of the Civil Law as the presence of seven Witnesses their subscription or subsignation the making or expediting the act of the Will it self at one and the same time with divers other Solemnities necessarily required by the Civil Law as Essential to a Testament whereof we have no use here in England being not obliged to such Ceremonies In Vnsolemn Testaments the said Ceremonies are omitted and such are our Testaments here in England wherein we are no further obliged than to the observation of such Requisites as are necessary Jure Gentium which requires but two Witnesses And saving in a Devise of Land wherein Writing is also necessary and that it be made in the Testators life time The Testator if he please may make use of more than two witnesses and procure their subscription yea for prevention of Forgery to every page of the Testament but no obligation hereto CHAP. IV. Of Testaments Written and Nuncupative 1. Testament Written what 2. Difference between Devise of Lands and Bequest of Goods 3. Lands of Burgage tenure and by Custome deviseable may pass Nuncupatively 4. Naming Executor not necessary in a Will only for devise of Lands 5. Notes taken in writing-sufficient for devise of Lands 6. Testament Nuncupative what 7. The Will whether Nuncupative or Written in case the Executors Name be omitted out of the writing 8. Law Cases relating to this subject § 1. A Written Testament is such as at the time of making thereof is committed to writing By which words are excluded such Testaments as are afterwards put into writing For being first made by word of mouth they still remain Nuncupative notwithstanding the reducing thereof into writing after the Testators death Among other advantages that a Testator hath by a written Will this is one that he may conceal the Contents thereof from the Witnesses which in a Nuncupative Will he cannot do And it is sufficient if taking his Will in his hand he say unto the Witnesses This is my Last Will and Testament or herein is contained my Last Will or other words to the like effect 2. As touching the disposition of Land of Inheritance by Will if it be not fully written before the Testators death so far at least as concerns the disposition of the said Land it may not be for that part made good by reducing it to writing after the Testators death but as touching Goods and Chattels it may Nevertheless if it be written before the Testators death though it be never brought nor read to him after the writing thereof yet is it good enough and that not only for Land but also for Goods and Chattels provided that there be an Executor named And this shall be a Will in writing and not verbal only yea though it want the subscription of the Testators Name For many cannot write at all and some want hands Nor is the subscribing the name of the Maker any essential part of a Deed much less of a Will which needs not sealing as a Deed doth 3. Lands and Tenements deviseable by Custome may pass by a Nuncupative Will for any time whatsoever for in a Devise of Lands Tenements and Hereditaments held in Burgage-tenure it is not necessary that the same should be written because such may pass sufficiently by Will Nuncupative because such Lands were deviseable before the making of the Statute of H. 8. enabling to devise Lands Tenements and Hereditaments by Will in writing in the Testators life-time which cannot pass by a Nuncupative Testament or Will without writing So that Lands of Burgage-tenure and by Custome deviseable may pass Nuncupatively though Lands of other tenures are not deviseable but by Will in writing 4. Though the naming or appointing of an Executor be essential to constitute a Testament or Last Will yet this properly refers only as to Goods and Chattels for a man may by his Last Will in writing devise his Lands Tenements and Hereditaments though he make no Executors because an Executor hath nothing to do with the freehold of Land 5. If the Writer doth only take Notes from the mouth of the Testator of his Last Will for the devise of Lands Tenements and Hereditaments and afterwards write the same but the Testator dies before it be shewed unto him yet this is sufficient for a Will in writing for the coveying of Lands Tenements and Hereditaments Likewise it is sufficient if Notes or Articles be made and read to
the Testator though the same be not ingrossed at large or in form of Law until after the Testators death 6. Testaments are called Nuncupative when the Testator without any writing doth declare his Will before a sufficient number of Witnesses and such Nuncupative Will is of as great force and efficacy except for Lands Tenements and Hereditaments as any written Testament Yea this verbal oral or Nuncupative Will being after the Testators death reduced to writing and having the Court Seal affixed thereunto is of as good validity touching the disposal of Goods and Chattels as if it had been written in the Testators life-time 7. Although many Legacies be made and written in a Will and many things expressed to be done yet if no Executor be named in the writing only A. and B. by word of mouth appointed to be Executors this shall not amount to a Will in writing but to a Nuncupative will only because one essential part of the Will viz. the appointing of an Executor is omitted out of the writing Nay the appointing of him Executor who is named in such a Note left with C. D. is no sufficient making of an Executor at all Nor is the appointing of any one by a doubtfull and uncertain Name a sufficient making either of an Executor or Legatary unless some other sufficient circumstance doth make it plainly appear whom the Testator meant so tender and cautious is the Law of fixing the interest of any upon meer doubts and uncertainties 8. A man took Notes of a Will of one who lay sick and afterwards he drew up the Will in writing but the sick person dyed before it was shewed to him Yet it was the opinion of the whole Court that the same was a good Will within the Statute of 32 H. 8. to convey Socage Land Trin. 6 E. 6. Dyer 72. So was it adjudged in 4 and 5 Eliz. in Hinton's Case where Articles were read to the Devisor concerning the disposition of his Lands and the Articles were written and engrossed after his death and yet it was a good Will within the said Statute of 32 H. 8. A man intended Land to J. S. for life the remainder to J. D. and before the remainder was written the Devisor dyed It was the opinion of the Court that the same was a void Devise for the whole Lands within the Statute of 32 H. 8. because that the one did depend upon the other But in that case it was holden that if a man seised of two Acres intends one of them to J. S. and the other to J. D. and the Devise to one is written but the Devisor dyeth before the Devise of the other Acre to the other is written It is a good Devise for the Acre which is written but not for the other Acre B. Brought Writ of Entry in nature of an Assize against his Fathers Wife The Case upon Evidence was this viz. H. B. the Plaintiffs Father and Husband of the said Wife being sick at London sends for A. desiring him to write the Last Will and Testament of his Lands A. desires B. to declare what he would have his Last Will and Testament to be and who to be his Executors whereupon A. wrote short Notes of his Last Will and every Legacy and who should be his Executors then return'd to his own House there wrote the said Will in Order and Form and therewith returning to the House of H. B. within half an hour after 12 intending to have read the same unto him was then told that the said H. B. dyed at twelve of the clock just before Whereupon A. delivered the same to the Executors that were therein named The Wife enters on the Testators Tenements and what was Devised to her the Son enters upon her the Wife re-enters whereupon the Plaintiff brought his Writ The Opinion of all the Justices was That it was a good Will in writing according to the Stat. of 32 H. 8. and declared their Opinion on the Evidence given whereupon it passed for the Wife and she enjoy'd the Land CHAP. V. Of Testaments Priviledged and Unpriviledged 1. Testaments Priviledged what and how many kinds thereof 2. Military Testaments their priviledges 3. Testaments made in favour of the Testators Children their priviledges 4. Testaments made for good and pious uses their priviledges 5. Testaments Vnpriviledged what § 1. TEstaments Priviledged are such as are qualified by some special freedome or benefit contrary to the common course of Law or by some special freedome are discharged from the usual Requisites and Observations of Common and General Law whereof there are as in the second Chapter chiefly these three kinds viz. 1. Military Testaments 2. Testaments made in favour of the Testators Children 3. Testaments for good and pious uses 2. The priviledges of Military Testaments or of a Testament made by a Souldier are many but chiefly these Four viz. 1. A Souldier is not disabled from making his Testament by any of those impediments which disable others unless for want of Reason or other like grand causes whereby he is disabled Jure Gentium 2. Whereas divers persons are prohibited from being Executors or Legataries to other persons yet the Law doth not so prohibite them from being Executors or Legataries to a Souldier save in some very few Cases specially limited in the Law 3. Souldiers are clearly acquitted from the observation of the Solemnities of the Civil Law in making of Testaments 4. Whereas no other person can dye with two valid Testaments yet a Souldier may and both Testaments shall stand good according to the intent or meaning of the Testator Other priviledges there are peculiar to Souldiers in making their Testaments but they being many it would not answer the design of a Compendium to make a specification thereof Only let it not here escape our Observation that these Priviledges belong only to such Souldiers as are in expedition or actual Service of war and not to such as lye safely and securely in some Castle Garrison or other like place of defence 3. The priviledges of Testaments made in favour of the Testators Children are chiefly these three viz. 1. If two Testaments be found after the Testators death of divers tenures and it appear not which of them is the latter Testament In this Case that shall be presumed the latter and so prevail which is made in favour of the Testators Children 2. The Testament made in favour of the Testators Children is not so easily revoked as possibly other Testaments may be 3. A Fathers Testament among his Children shall take effect though there be no Witnesses to prove the same being written or subscribed by the Testators hand or by him procured to be written by some other Howbeit these two last Priviledges by the Custome of England the latter of them especially are common to all English mens Testaments so also are all
of Succession distinguish thus viz. Either he hath only Brothers of the whole Blood or only such Brothers Children or he hath Brothers by the half Blood or such Brothers Children In the first case the Brothers only succeed in the second case only the Brothers Children in the third case the half Brothers and such Brothers Children succeed equally according to their Stock or Root not according to the number of their persons Likewise if one dye leaving one Brother and three Children of another Brother deceased of the whole Blood the Brother alone shall have as formerly declared as much as the said three Children and these do succeed exclusively to all other collateral Kindred Also Brothers of the half Blood do exclude other collaterals Ascendent as Uncles Aunts whether by the Father or the Mothers side and that without distinction of Sex But put case a man dies without Children or Parents leaving one Brother by the Fathers side only another Brother by the Mothers side only for instance A man having had two Wives and a Son by each dies and the second Wife takes another Husband having a Son by him then if the Son by the second Wife of the first Husband dies he leaves a Brother of the half Blood by the Father and a Brother of the half Blood by the Mother In this case the Civil Law sayes that the Brother by the Fathers side shall succeed in the Goods that came by the Father and he by the Mothers side in the Goods which came by the Mother and both of them equally as to all Goods otherwise acquired but our Law knows no such distinction for they shall succeed equally being equal in degree and equal in Blood because by Marriage all was invested in the Father THE Orphans Legacy The Third Part. OF Legacies and Devises THE CONTENTS OF THE CHAPTERS of the Third Part. Â Chap. OF Legacies and Devises in General 1. Of Devisors and Devises or Legataries 2. Of Words and Expressions sufficient for Legacies 3. Of Conditions and their Resemblances incident unto Legacies 4. Of the several Marks and Kinds of Conditions and Questions in Law touching the same 5. What things are Devisables by Will and whether a Testator may Bequeath what is not his own 6. Of Lands Devisable by Will 7. Certain cases touching Devises of Lands void or not void 8. Certain Cases touching Devises of Land in Fee-simple 9. Certain Cases touching Devises of Land by way of Entail 10. Certain Cases in Law touching Devises of Land for Life only 11. Certain Cases in the Law touching Devises of Leases or for a Term of Years 12. Law Cases touching Devises of Reversions or Remainders 13. Touching Devises of Lands with Limitations and upon Conditions 14. Touching Devises of Rents 15. Of Devises touching the Sale of Lands by Executors or others 16. Of Legacies and Devises in respect of Marriages as also between Husband and Wife 17. Of Legacies and Devises to a Child in the Womb. 18. Certain Cases of Devises touching Lands and Real Chattels 19. Cases in the Law touching Legacies of Chattels Personall 20. Of Legacies touching Goods in Generall also what is to be understood under that Notion of Goods and what by Moveables and Immoveables 21. Law Cases touching Money Bequeathed by the Testator 22. Of Legacies relating to Debts with certain cases in the Law touching the same 23. Touching Election in point of Legacies to whom The Election of a Legacy expressed with too much Generality or Dubiety belongs whether to the Executor or to the Legatary with certain cases in the Law touching the same 24. When and how Legacies are null or become void or voidable with certain cases in the Law touching the same 25. Certain Positions or Assertions of Law for the better understanding of this Subject of Legacies and Devises with certain mixt cases touching the same 26. THE ORPHANS LEGACY The THIRD PART OF Legacies Devises CHAP. I. Of Legacies and Devises in General 1. What a Legacie or Devise is 2. What are the Requisites to the making of a good Devise 3. Whether is more Considerable as to Legacies the Time of making the Testament or of the Testators death 4. In what Court Legacies and Devises are properly Recoverable 1. A Legacy called a Devise at the Common Law is some particular thing or things given or left either by a Testator in his Testament wherein an Executor is appointed to be paid or performed by his Executor or by an Intestate in a Codicil or Last Will wherein no Executor is appointed to be paid or performed by an Administrator The Word Devise is specially appropriated to a Gift of Lands The Word Legacy to a Gift of Chattels though both are used promiscuously For a Devise is said to be where a Man in his Testament giveth or bequeatheth his Goods or his Lands to another after his decease Observe it is formerly said That a Legacy is a particular thing given by last Will and Testament For if a man dispose or transfer his whole Right or Estate upon another That according to the Civil Law is called Haereditas and he to whom it is so transferr'd is termed Haeres but at Common Law he is the Heir to whom all a mans Lands and Herediditaments do descend by right of Blood And by the same Law the Word Devise from the French Deviser is properly attributed to him that bequeaths his Goods by his last Will or Testament in writing the Reason being for that those Goods that now appertain only to the Devisour are by this act distributed and divided into many parts 2. To the giving of Legacies or to the making of a good and sufficient Devise there are several things Required The Person of the Devisor must be Legally qualified to Devise the thing Devised must be such as is Legally Devisable The Devisor at the time of making the Devise must have Animum Testandi That the Devisee or Legatary be in his Person such as is capable of taking by way of Devise That there be no Co-action on the Testator but that his Will be free and independent without fear force or flattery or other Sinister Contrivances That the Devise be made in that due manner and form as it ought to be That the thing Devised be Devised upon none other then if any Lawful Terms and Conditions That the words of the Devise be such as do clearly declare the Mind and Intention of the Devisor That Probate be made of the Testament after the Devisors death And in case it be of Land then that the Devisor be solely seized thereof in a Fee-simple Estate and not joyntly with another and that the Testament wherein such Devise of Land is be made in writing 3. To find out the Testators mind and meaning which is the very Index of the Testament the time of making thereof is regularly more considerable in point of Legacies then the Time of the Testators death
Justices That this was a Condition for so was the Intent of the Devisor For otherwise the Younger Sister had no Remedy for the Rent And in this Case it was Adjudged That the Younger Sister might enter upon a Moity of the Land for breach of the Condition in Non-payment of the Rent for which the Action was brought A Man had Issue a Son and a Daughter and he Devised his Lands to his Son in Tail and if he dyed without Issue it should remain to the next of his Name r The Son dyed without Issue the Daughter being then Married The Question was whether she should have the Lands It was Resolved by the whole Court That she should not for that she had lost her Name by her Marriage But if she had not been Married at the Time of her Brothers death she should have had it for she was the next of Name A. B. Seised of Lands in Socage Devised the same by Words to his Three Sisters a Stranger present Recited the Testators words to him whereat he Affirmed the same Afterwards the Stranger for his own Remembrance puts the words into Writing but read them not to the Devisor before his death This Devise so Reduced into Writing mode forme is void because it was written without the order or direction of the Devisor and consequently not within the Statute But if after the writing thereof he had read the same to the Devisor and thereupon the Devisor had Affirmed the same it had then been a good Devise It was the Opinion of c. A. deviseth his Lands to W. after the decease of his Wife and if he fail then he willeth all his part to the discretion of his Father and dyed W. Survived the Father being dead before without any disposition of the Land In this Case the Father hath a Fee-simple there being no difference where the Devise is That I. S. shall do with the Land at his Pleasure and the Devise thereof to I. S. to do with it at his discretion A Man Seised of Lands in A. hath Issue four Daughters A. B. C. D. and devised all his Lands in A. to A. and B. Two of his Daughters and made them his Executrices Afterwards he Purchased other Lands in A. A Stranger being desirous to Buy this Land of him newly Purchased he refused saying That this Land should go with the Residue of his Land to his Executors as his other Lands should go Afterwards the Testator made a Codicil and caused it to be annexed to his Will but in the Codicil no mention was made of this new Purchased Land In this Case this new Purchased Land shall not pass For Notwithstanding that the Reading of the Will and the making of a Codicil may amount to a new Publication yet it doth not manifest the Intent of the Devisor to be that more shall pass by that then he intended at the first Also the new Reading of the Will and the annexing of a Codicil may not properly be termed a new Publication And without an express Publication for this Land newly Purchased this Land shall not pass A Man Let several Houses and Lands by several Leases for Years rendring several Rents amounting to 10 l. per annum and made his Will in this manner viz. I Bequeath the Rents of D. to my Wife for Life the Remainder over in Tail By this Devise the Land it self shall pass for it appears his Intent was to make a Devise of all his Lands and Tenements and that he intended to pass such an Estate as should have continuance for a longer time then the Leases should endure and the words are apt enough to convey the Lands it being an usual manner of speaking of some Men who name their Lands by their Rents A Man Devised Lands to another Man and his Heirs The Devisee dyed in the Life of the Devisor and then the Devisor dyed In this Case the Heirs shall not take by the Devise for that the Heirs are not named as words of Purchase but only to express and limit the Estate which the Devisee should have for without these words Heirs the Devisee could not have the Fee-simple and the Heirs are named only to Convey the Lands in Fee-simple and not to make any other to be Purchaser but the Devisee CHAP. IX Certain Cases touching Devises of Land in Fee-simple 1. A Fee-simple may pass by several Words and Expressions in a Will which will not pass it by Deed. 2. A Power to Sell Land Devised passeth the Fee-simple so doth the Devise of the Land without other words on the least Consideration of a Payment to be made by the Devisee 3. A Fee-simple will pass in a Will as well by the Implication as Expression of the Word Heirs 4. A nice Distinction between Joynt-Tenancy and Tenancy in Common 5. A Devise of Lands to a Corporation for Life is a Fee-simple and whether it may pass by the Word Assigns without the Word Heirs or the Words For ever 6. A Fee-simple passeth in a Will by Implication of a power to Sell the Lands as well as by Payment of Money enjoyn'd the Devisee 7. In what Sense the Habendum shall be Construed where the Devise of Lands seems somewhat doubtful 8. In what Case a Fee-simple and all the Testators Inheritances may pass by General Words to the Devisee 9. A Devise in Fee made to one cannot in the same Will be made to another 10. How the Word Paying doth Create a Fee in a Devise and bow by a Devise of Rents the Land it self doth pass 11. A Devise shall be for the Dvisees Benefit not Prejudice also in what other Case a Fee shall pass by Implication 12. In what Case and by what Words the Fee and not Leases or the Leases and not Fee do pass by a Devise 13. Other Cases in Law touching this Subject 1. THere are many Words and Expressions whereby Lands will pass in Fee-simple by a Will which by a Deed will not so Convey the same As suppose a Man devise his Land in this manner viz. I give my Land in Dale to A. B. and his Heirs or to A. B. in Fee or to A. B. for ever or to A. B. Habendum sibi suis or to A. B. and his Assigns forever or to A. B. to give away or Sell or do therewith at his Pleasure All these and such like in a Will Create a Fee-simple Estate and A. B. shall have the Land to him and his Heirs for ever yet by such words in a Deed no more will pass then an Estate for Life save only in the first Case Also if any now since the making of the Statute of Uses Devise that the Feoffees of his Land shall be Seized of the Land to the Use of B. C. and his Heirs or to the Use of B. C and the Heirs of his Body or that his Feoffees shall make an Estate of the Land to B.
And before the said respective Ages of twelve and fourteen years neither of them can make any Testament at all no though it be ad pios usus But at the accomplishment of the said respective Ages each of them may even without the consent of his or her Guardian or Parent if they have any Goods in their own right make a Testament thereof though not of Lands of Inheritance unless the Custome of the place doth enable them for it But before the said respective Ages neither of their Testaments is good though made by the approbation and with the consent of their Guardians yea though they afterwards attain to the said Ages and then neglect to ratifie them But if he or she hath attained to the last day of the said Ages of twelve or fourteen years the Testament so made by him in the very last day of the Age of fourteen years or by her in the very last day of the Age of twelve years is as good and lawful as if the said day were then already expired or if after the accomplishment of the said Ages respectively he or she doth expresly approve and ratifie the Testament made during their minority then is the same made good and effectual by this new declaration thereof 2. Such as are Mad persons can make no Testament during the time of their insanity of mind no not so much as ad pios usus Nay the Testament made at such a time shall not be good though afterward the party recover his former understanding howbeit if such Lunatick persons have any Lucida intervalla or intermissions then during the time of such freedome from the Lunacy they may make their Testaments betwixt the fits And here Note that every person is presumed to be of perfect mind and memory until the contrary be proved So that he that objecteth Insanity of mind must prove the same for which it is sufficient if he prove that the Testator was beside himself or had lost his Reason but just before he made his Testament though he prove not the Testators madness at the very time of making the same unless the contrary be proved or circumstances to induce a contrary presumption For it is a very tender and difficult point to prove a man not to have the use of his Reason and Understanding therefore it is not sufficient for the Witnesses to depose that the person was mad unless withall they render upon knowledge a sufficient reason thereof Neither is one Witness sufficient to prove a man mad nor two in case the one depose of the Testators madness at one time and the other of his madness at another time but both agreeing in time if then the one Witness deposeth of one mad act the other of another mad act at one and the same time these sufficiently prove that the Testator was then mad though they do not both depose of one and the same mad act But in contrary depositions these Witnesses are to be preferred which depose that the Testator was sound of memory And if he used to have some intervals of Reason and it be not certainly known whether the Testament were made in or out of his fits of Lunacy in this case if no argument of frenzie or folly can be collected by the Testament it shall be presumed to be made during the intermissions of the Lunacy and so adjudged to be good yea though it cannot be proved that the Testator used to have any clear and calm intermissions at all provided the same Testament be wisely and orderly made otherwise not For in this case the least word sounding to folly is sufficient to induce a presumption that the Lunatick person had no intermission of perfect Reason and sound Memory at the making of such Testament for one foolish word in that case may frustrate the validity of the whole But if a man who is of good and perfect Memory maketh his Will and afterwards by the visitation of God he becomes of unsound Memory as every man for the most part before his death is this Act of God shall not be a Revocation of his Will which he made when he was of good and perfect memory Cook 4. part 124. Beverlyes Case 3. Ideots are likewise excluded from making Testaments nor may they dispose either of their Lands or of their Goods But he that only is of a mean capacity or understanding or one who is as it were betwixt a man of ordinary capacity and a fool such an one is not prohibited from making a Testament provided that he hath understanding enough to conceive what is the nature of a Testament or Last Will being well informed thereof otherwise he being destitute of such understanding is not fit to make a Will Here Note that by the Laws of this Land he that can measure a yard of cloth or rightly name the dayes of the week or beget a Child shall not be accounted an Ideot or a Natural Fool yet it will not be indisputably granted that an Act so Natural as the begetting of a Child can so qualifie a Natural Fool as to render him in the charitablest construction of Law Testable For if he be such a Natural Fool as that though of Lawful Age yet cannot declare of about what Age he is nor number twenty nor knoweth his Natural Parents by their several names and Relations or the like easie questions such an Ideot is undoubtedly intestable Notwithstanding all which if it may appear by sufficient circumstances and conjectures that such Ideots had the use of Reason and Understanding at such time as they did make their Testaments then are such Testaments good in Law 4. Persons grown Childish by reason of old Age can no more make their Testaments then Children yet old Age alone doth never deprive a man of the power of making his Testament But when a man by reason of extream old Age is become even a Child again in his Understanding or rather in the want thereof or by reason of extreme old Age or other infirmity is become so forgetful that he now knoweth not his own Name he is then no more fit to make a Testament then is a Natural Fool or Child or Lunatick person 5. Such as are Drunk during the time of their being Drunk can make no Testament that shall be good in Law yet understand this as only when he is so excessively drunk that he is altogether deprived for the time of the use of Reason and Understanding being according to the Flaggon-phrase as it were dead-drunk for if he be but so drunk that his Understanding is but somewhat clouded and obscured and his Memory but troubled he may in that case make his Testament and it may be good in Law 6. A. Executor of J. S. brought
live or die still remain in and to her only whereof she may make her Will without her Husbands consent and him if she please Executor for otherwise he may not have them after his Wifes decease because of such goods the Wife dying without will the next of Kin to the Wifes Testator may take the Administration as de bonis non Administratis And here Note that though the Wife being Executrix to another may without her Husbands License make her Testament of such Testators Goods yet she may not bequeath them by Legacy without making an Executor But if the Wife be made as well Legatary as Executrix and she accept of the Testators Goods not as Executrix but as Legatary in this case she cannot dispose of the said Goods by Will or otherwise without the Husbands consent for by accepting them as Legatary she makes them her own and consequently her Husbands And Note further that although the Wife being Executrix may without her Husbands License make her Testament of such Goods whereof she is possessed as Executrix yet the fruit and profit arising during the Marriage out of such Goods shall accrew to her Husband and not unto her self as Executrix so that without her Husbands approbation she can make no Testament of such fruits and profits so arising And if it doth not appear whether the Wife accepted the same as Executrix or as Legatary she shall by the Laws of this Land herein not agreeable to the Civil Law be deemed and presumed to have accepted the same as Executrix Q. The ground or reason of such presumption 4. A Wife without her Husbands Licence or Consent may make her Testament of such Goods and Chattels whereof she was not possessed during marriage and as to such things she may make her Husband Executor if she please And the Husband cannot by Will bequeath or make an Executor of an Obligation which he hath in right of his Wife nor of any other thing meerly in Action For debts or things in Action are not devested out of the Woman into the Husband by marriage yet she cannot make an Executor thereof without her Husbands assent for during her life he may receive them or release them though after her death he shall not be entitled to them unless his Wife make him Executor thereof or after her death he take the Administration of her Goods whereby he then becomes lyable for her debts out of the same when he shall have received them And thus also Chattels real are not so devested out of the Woman into the Husband by marriage but that she surviving him and no alteration made of the property in her life-time by her Husband who had then power to dispose thereof though not by Will they continue to her and remain in her as before marriage yet such a Woman in her Husbands life-time could not without his consent make her Will touching such Real Chattels but he surviving her they would by the operation of Law accrew unto him 5. As without the Husbands consent the Wife may not make her Will so likewise without his consent she may not take upon her the Office of an Executrix But if once the Will be proved and the Execution thereof committed to the Wife though against the Husbands mind and consent probably it may stand good Also the Wives Administring without the Husbands privity though no Will be proved will probably barr the Husband as well as her self from pleading in any Suit commenced against them That she neither was Executrix nor ever Administred as Executrix On the other side if a married Woman named Executrix refuse the Execution of the Will against her Husbands mind and desire it is supposed the Law will not fix the Executrixship upon her against her Will yet the Husband may Administer and Prove the Will for his Wife Also if the Husband no Will being Proved doth Administer in his Wifes right but against her Will This notwithstanding her dissent will so bind her that during her Husbands life she can hardly decline the Executrixship for that by the Law of the Land she cannot be sued alone as Executrix and being sued with her Husband she must joyn in Plea with him whereby the Administration by her Husband will conclude her also but not so after his death for then she may refuse 6. If a Feme Sole make a Will and after take a Husband the same is a Revocation thereof For the making of a Will is but the inchoation or inception thereof which hath no effect till the Testators death Because Omne Testamentum morte consummatum est voluntas est ambulatoria usque ad extremum vitae exitum And therefore it being no perfect Will when she takes a Husband and after marriage her Will being her Husbands and subject to it by her taking a Husband she hath wholly revoked the Will formerly made by her Debt upon an Obligation the Condition was Whereas the Defendant had taken A. S. to Wife who was a Widow being possess'd of divers Goods if he would permit his said Wife to make a Will and to dispose in Legacies so much as she would not exceeding fifty pound and perform what she appointed That then c. The Defendant pleaded that she did not make a Will whereupon Issue was joyned it was found that she made a Will and thereby disposed of divers Legacies not exceeding fifty pound but that she was a Feme Covert at the time of the making of the Will In this Case it was adjudged for the Plaintiff For although she being a Feme Covert could not in Law be permitted to make a Will to dispose of any Goods without the Husbands assent yet it is a Will within the intent of the Condition for it was in the intent of the Condition That she should make a Will to that purpose notwithstanding the Coverture and it is but her appointment which the Husband by his Obligation is bound to perform and the finding that she was a Feme Covert was not in this Case material If a Feme Covert make a Testament and Devise Goods to another and the Husband after her death deliver the Goods to the Devisee accordingly it will bind him A Defendant Covenanted by Indenture with the Plaintiff That whereas he intended to marry E. S. a Widow That he would pay all the Legacies which she by her Last Will in writing bearing date 1 May 20 Eliz. did give and bequeath and was bound by Obligation to perform the Covenants in the Indenture In Debt upon the Obligation the Defendant pleaded that after the making of the Will and the Obligation he intermarried with the said E. S. which marriage continued till her death so the Will and Devise of E. S. was void and demanded Judgement c. And it was adjudged that the Plaintiff shall recover For notwithstanding it was not a Will
the C. B. and Tanfield Chief Baron That if one make his Will in writing and then sayes I will alter it or add to it that is not his Will because it is not compleat or finish'd nor publish'd for his Will but is deferr'd or delayed till the Alteration or Addition be made to it And if the party die before such Alteration or Addition and without publishing it to be his Will that Will is not his Will But if he make his Will and publish it and after it come to his mind to alter or add to it and he say that he will alter it or add to it but dies before he make any Alteration or Addition then the former shall be his Will CHAP. XVIII Of Testamentary Revocations 1. The several kinds of Revocations 2. Revocations by Marriage 3. Where two Wills are found and it be not known which was made First or Last which shall be presumed the Latter Will 4. In what cases the former Will stands unrevoked notwithstanding the making of a Latter Will 5. Cases in Law touching Revocations 1. REvocations may be either of Executorship or of Legacies and that either in whole or in part and this may be either by Word or by Deed or by Act and Operation of Law or by Marriage The Testator at any time before his death hath power to revoke or alter his Will at his pleasure And as a Will may be made by word only so even a written Will may by word alone be revoked and annulled For by making a Nuncupative or Verbal Will one may revoke a written Will yea one may by word only express the alteration of his mind thus far That the Will by him formerly made shall not stand but be revoked and annulled and this shall stand and be effectual So that if he then die without making a new Will or new publication or re-affirmance of the former he dieth intestate But a Will advisedly made shall not be nullified by doubtful speeches of the Testator without clear and perspicuous Revocation or words which tant amount Nor can there be a Revocation of Legacies among Children without precise mentioning the first Will and the Legacies thereby given to the Children The Law is the same when the Testator having no Children deviseth Legacies to his Brothers And as a Will may be wholly revoked so also in part only Also the Executorship of one or more of the Executors may wholly or in part be revoked and yet the Will may stand good in all the other parts so as there be any one or more Executors left unrevoked but if all the Executors be revoked then the whole Will is revoked And this revocation as aforesaid may be by word only without being expressed in the Will or any other writing Likewise Revocations may be by Act and operation of Law as well as by Fact or by any direct and express terms as thus when the Testator maketh a Feoffment to one man of the same Land by Deed which he had formerly devised or bequeathed to another by Will Also if one bequeath his black horse by Will yet afterwards selleth or giveth him away and buyeth another black one this latter black horse shall not pass by the Will because the Testator had him not at the time of making the Will as also because such his sale or gift of the former black horse was an actual revocation of his Bequest or Legacy thereof The like of Corn in the Barn or other thing whereof the Testator makes any Act of Alienation contrary to the disposition thereof in his Will Lastly although a Testator may by word revoke a Will made in writing that is good yet he cannot by word affirm a Will made in writing that in it self is void 2. There are likewise Revocations by Marriage as thus If a Woman Sole make a Will and afterwards take a Husband this without any more shall work a Revocation or Annullation But in case the Husband be Bound or Covenanted to make good or perform the Womans Will which if he afterwards refuse to do his Bond or Covenant stands good against him and is also Suable Yet a married Woman cannot by word countermand and revoke her Will formerly made when she was Sole and unmarried by reason of the Coverture taking away the freedom of her Will And if the Husband doth give his Wife Licence to make a Will of his Goods yet he may revoke the same not only at the making of the Will but also after her decease at least before the Will be Proved 3. No man can properly be said to die with two Testaments except a Field-Souldier in actual Service yet a man may make two Testaments and both stand good and both be proved provided they be of and as touching distinct and several things and the Executors thereof limited accordingly and the one no way derogatory to the other But of the same things there can be but one Will for the Last rescinds all former Wills Yet a man may die with divers Codicils and the latter doth not infringe the former so long as they be not contrary the one to the other But if two Testaments be found and it appear not which was the latter both are Null and Void yet if one of them be made inter Liberos or ad Pios Vsus that shall be presumed to be the latter and so take place yea or if one of them be made in favour of such as ought to have had the Administration in case of intestation But if one of them be in favour of the Testators Children or of them that ought to have had the Administration and the other be ad pios usus In this case if they that should have had the Administration be the Testators Children then that shall take place yet that ad pios usus shall have priority of a Testament of the same date made in favour only of collateral Kindred But if two Codicils be found not appearing which was made First or Last and one and the same thing be given to one person in one Codicil and to another person in the other Codicil in this Case the Codicils are not void but the persons therein made Legataries ought to divide the bequest equally betwixt them 4. The former Will shall stand good and unrevoked notwithstanding a later Will in case the later Will be voidable by any wayes or means whereby Wills become void and the former be without any such just exception or in case it be justly suspected that the Testator was circumvented by fraud or compelled by violence to make that later Testament Or in case in the former Will there be inserted a clause derogatory of not making any other Testament and sufficient mention or express revocation thereof be omitted in the later For if in the former Testament there be a clause derogatory
of Wills and Testaments afterwards to be made as if the Testator sayes Whatsoever Testament I shall hereafter make I will the same to be void and of no force In this case it is not infringed by a later Testament unless in that later there be mention thereof sufficiently made to amount unto a legal revocation of that former Testament or clause derogatory 5. If a man saith that he will revoke his Will hereafter which he hath made that is not any revocation without the doing of some other Act. Likewise if one saith that he will make a Feoffment thereof to another that is no revocation before it be done But if a man Devise Land to another by his Will in writing and after Devise it unto another per paroll albeit that is void as a Will yet it is a revocation of the former Will If a Devisor alien the Land Devised and afterwards repurchase the same Land yet the Will is revoked as to that Land 44 Ed. 3. 33. 44. Ass D. 3 4 P. M. 143. 55. Contra. 2 R. 3. 3. b. Trespass upon evidence where one hath made his Will in writing and devised his Land to A. and her heirs and afterwards being sick and lying upon his death-bed because A. did not come to visit him affirmed that A. should not have any part of his Lands or Goods It was held by all the Court that it was not any revocation of his Will being but by way of discourse and not mentioning his Will But the revocation ought to be by express words that he did revoke his Will and that she should not have his Lands given unto her by his Will or such like words which might shew his intent to make an express revocation thereof Ejectione Firmae Upon evidence to a Jury it was resolved by the Court and so delivered to the Jury that if one makes his Will in writing of Land and afterwards upon Communication saith That he hath made his Will but it shall not stand or I will alter my Will c. These words are not any revocation of the Will for they are words but in futuro and a declaration what he intends to do but if he saith I do revoke it and bear witness thereof he doth hereby absolutely declare his purpose to revoke it in praesenti and it is then a revocation Also Mountague said to the Jury and it was not denied by any other of the Justices That as one ought to be of a good and sane memorie at the disposing so ought he to be of as good and sane memory when he revokes it And as he ought to make a Will by his own Directions and not by Questions so ought he to revoke it of himself and not by Questions CHAP. XIX Of a Reviver of a Will Revoked 1. How a Will Revoked may be Revived 2. How an Executor Revoked may be Revived 3. How one may dye both Testate and Intestate 1. OF a Will Revoked there may be a Reviver by a new publication of that revoked Will also a Will revoked may without making a New Will be revived and set on foot again by annexing a Codicil thereunto or by adding any thing to the Will or by making a new Executor or by express speech and word that it shall stand good and be his Will yea and sometimes without either of these as thus A man makes his Will many years after he makes another then in his sickness both these Wills are put into his hands and being demanded which of these Two he will have to stand for his Last Will and Testament and being required to deliver back that which he will have to stand and to detain the other in his hands he delivers back the Will he first made possibly many years before the later In this case the former Will though once made void by the later is now revived again and shall stand as the parties Last Will and Testament 2. If one of the Executors Names be stricken out of the Will and afterwards a stet be written over it by the Testator or by his appointment he is then a revived Executor but then Note that if the stet shall stand good the Executors Name over which it is written ought not to be so blotted out but that it may be read and discerned otherwise the stet is over nothing at all Or if the Testator express by word in the presence of witnesses that the party put out shall yet be Executor he is then also a revived Executor Lastly if the verbal re-affirmance renew the Executorship then is the Will partly in Writing partly Nuncupative his Name not being to be found in the written Will for the appointing of the Executor doth create the Will though it hath not life till the Testators death which is Divinity as well as Law 3. If a man seized of Lands in Fee-simple dispose of the same or part thereof by his Will in writing it shall stand good for the whole or part according to the difference of Tenure though no Executor be named or appointed so that the party shall die Intestate as touching his Goods whereof Administration is to be committed yet shall have a Will as touching his Lands because Land is not properly Testamentary And so a Will may be good in part only But where the strictness of the Civil Law is observed there a man cannot die partly Testate and partly Intestate though here in England where that Ceremonial strictness is not observed but all immunities enjoyed being not obliged to any other observance in making of Testaments than what is Juris Gentium a man may thus and several other wayes die partly Testate and partly Intestate CHAP. XX. Of the Probate of Testaments 1. Where and before whom the Will is to be proved 2. By whom and at whose instance the Will is to be proved 3. When is the Will to be proved 4. How and in what manner is a Will to be proved 5. What are the Fees upon Probate of a Testament 6. Touching refusal to prove the Will 1. EVery Last Will and Testament after the Testators death ought to be duly Proved before a Competent Judge in the Ecclesiastical Jurisdiction A Testament or Last Will is to be Proved before the Bishop of that Diocess within which the Testator had his Domicil or Habitation or before his Official unless by Custome or Prescription within certain Lordships or Mannors it appertains to the Chief Lord or unless the Testator died within some peculiar Jurisdiction in which case the Probation of the Testament may be Prescription or Composition belong to the Judge of the peculiar or unless the Testament be such as wherein only Lands Tenements and Hereditaments and no Goods be devised or unless the Testator had Bona Notabilia at his death in divers Diocesses in which Case the Probation of the Testament appertains to that Arch-Bishop within whose
England Two Witnesses without exception are requisite for the due Proof of a Testament and Two such are sufficient So that it is not necessary to have any more than Two and it may be in vain to have no more but One for a Nuncupative Testament must be proved by at least Two Witnesses without exception But 2. A Testament written by the Testators own hand Proves it self without the help of such Witnesses yea though it hath not his Name subscribed to it nor his Seal affixed to it nor witnesses present to it Provided it be undoubtedly known to be his writing or can be sufficiently proved so to be yet shall it have the more Authority if so be it be subscribed by himself and Witnesses and Sealed Nor is it necessary to the Proof of a written Will that the Witnesses hear it read or subscribe it so as they can depose that the Testator declared before them that the self-same writing now produced is was or should be his Last Will and Testament For in a written Will or Testament it is not necessary that there be any Testimony of Witnesses where it is certain and undoubted that the Testament is written or subscribed with the Testators own hand or that the Testator caused the same to be written by another but if these be doubtful then the testimony of Witnesses is necessary Also the Witnesses ought to prove the very identity of the writing that is that the writing now shewed is the very same writing which the Testator in his life-time affirmed before them to be his Last Will or to contain his Will or other words full to this purpose so that it is not sufficient for the Witnesses to say this is the Testators own hand for or because we know his hand neither is it sufficient by comparing other writings of the Testators own hand with the Testament for hands may be counterfeited therefore proof by similitude of hands is not full proof except where the style and practice of the Court runs otherwise Nevertheless if the Witnesses depose that they saw the Testator write or subscribe the Testament and know the same to be his Testament and Hand or that they had heard the Testator to confess that he had made his Testament and that the same was in such a mans Custody or if the Testament were found in the Testators Chest among other his writings in these Cases the proof made by comparing of hands is a full and sufficient proof yea though there appear not any of those helps by probable circumstances yet if there be no suspicion of fraud nor fear of subornation proof made by comparing of hands may be allowed for full and sufficient proof Likewise if it be proved that the Testator in his life-time did acknowledge that his Testament was contained in a writing left in such a mans hands or custody and that man produce a writing deposing it to be the same which the Testator left in his custody such proof is sufficient without any further comparing of hands But if the Testator did also acknowledge that his Testament contained in such a writing left in the custody of such a person was written with his own hand then such proof is not sufficient without comparing of hands whereby it may appear to have been written by the Testator himself 3. Regularly all persons are held competent Witnesses to prove a Controverted Will save such as the Law holds incompetent such are such as are parties interessed or presumed in Law to be byassed in affection or the like also infamous persons as perjured or the like also such as for want of judgement and understanding the Law rejects And if it cannot be proved whether it be a Testament or a Codicil the circumstances being so indifferent to either then is it most safe in regard of the Statute to commit the Administration to the Widow or next of Kin demanding the fame to avoid the forfeiture of Ten pounds in case the Judge before whom such penalty is demandable should adjudge the party to have died Intestate or without a Will 4. A Legatary may be a competent witness for the proof of a Will in all parts thereof saving for what concerns the Legacy therein bequeathed to himself So that suppose never so many Witnesses to a Will wherein each of them hath a Legacy they cannot sufficiently prove the Will as to their own Legacies but for the rest of the Will they may 5. It is very observable that the most considerable Requisite the Law aimes at to the constituting of an Executor and making of a Testament is to be proved more by Circumstances than by Witnesses and that is Animus Testandi or the intent or purpose of the Testator to make his Will For it is the mind purpose and intent of the Testator more than his words that giveth life and being to the Testament The circumstances that prove the intent or purpose must also themselves be proved by Witnesses These Circumstances proving such a purpose in the Testator are many as when the Testator is in any more than ordinary danger of death or that he orderly composeth himself for such a work or that he required the Witnesses to bear witness thereof with many other the like circumstances as to the person time place occasion manner of speech deportment and in whose presence All which the circumspect Judge is to take into consideration for since the mind and intention of the Testator is the essential qualification of every Testament and not capable of a Being otherwise than by such intention and the mind and intention of man not so much as conjecturable otherwise than by outward circumstances it is most necessary that they fall under a due proof by sufficient Witnesses CHAP. XXII Bona Notabilia 1. What shall be accounted as Bona Notabilia 2. Where the Will is to be Proved in case there be Bona Notabilia 3. How or when Debts and Bonds may make Bona Notabilia 4. Law-Cases touching this Subject 1. IT is agreed by all that Five Pounds is the summ or value of Bona Notabilia provided that where by composition or custome in any County Bona Notabilia are rated at a greater summ the same is to continue unaltered as in the Diocess of London it is Ten Pounds by composition Provided also that if any man die in itinere or in a journey the Goods that he hath then about him or with him shall not be as Bona Notabilia to cause Administration to be committed or the Will to be Proved in the Prerogative Nor is it necessary that the party must have five pounds in each and every of the several Counties where his Goods are dispersed but it is sufficient if the party deceased were possessed of Goods and Chattels in some other County than that wherein he lived and
Words implying an Executor equivalent to the word Executor 3. Instances of an Executorship without naming the word Executor 4. Small Errours in a Will no prejudice to the Will 1. THe bare naming of an Executor in the name of a Will without giving any Legacy or appointing any thing to be done by an Executor is sufficient to make it a Will and as a Will it is to be Proved for the naming of Executors is by Implication a gift or Donation to them of all the Goods Chattels Credits and personal estate of the Testator and the laying upon them an obligation of satisfying the Testators debts to the just value of the said Goods and Chattels 2. Although no Executor by the word Executor be expresly in the Will nominated or appointed yet if any other words or circumlocutions equivalent to the Function of an Executor or to the charge and office which in any part pertains to an Executor be recommended or committed to any one or more it shall amount to as much as the Ordaining or Constituting of him or them Executors by the very word Executor For the Law in the interpretation of Wills and Testaments regardeth not so much the words as the meaning of the Testator Besides it is not alwayes necessary to express the word Executor in the making of an Executor nor indeed hath every Testator skill enough so to do or to think it necessary Wherefore it is sufficient if the Testators meaning doth appear by other words of the like sence Hence then it is evident that such words as do imply the office of an Executor are as valid as the word Executor it self so that if the Testator declare by his Will that A. B. shall have his Goods after his death to pay his debts or otherwise to dispose thereof at his pleasure or to that effect he shall be his Executor Insomuch that he that doth commit all his Goods to the disposition of another doth not die Intestate yea if only Administration be by that word in a Will granted to one Executorship doth thereby pass And unto whom the Testator doth leave the residue of his Goods none else as aforesaid being appointed Executor to him the whole Executorship doth pass by that general Legacy at least the Administration as aforesaid is to be granted to such a general Legatary the reason being because the ignorant and vulgar sort know not for the most part how better to express their meaning of an Executor or the function thereof 3. If the Testator saith I commit all my Goods to the Administration or to the disposition of A. B. in this case he is made Executor it being in effect as if he had said I make him my Executor Or if he saith I will that A. B. shall dispose of my Goods which be in his custody he is thereby made Executor of those parcells of Goods or if the Testator saith I commit all my Goods to the hands and disposition of A. B. In this Case also he is made Executor of all his Goods So also if he saith I make A. B. Lord of all my Goods or I leave all my Goods to A. B. or thus I make A. B. Legatary of all my Goods or I leave the residue of all my Goods to A. B. or if the Testator saith I will that A. B. be my Executor if C. D. will not in this Case C. D. is appointed to be Executor and may if he please be admitted to the Executorship and exclude A. B. Or if the Testator supposing his Child his Brother or his Kinsman to be dead doth say in his Will viz. Forasmuch as my Child my Brother c. is dead I make A. B. my Executor In this Case if the person whom the Testator thought dead be alive he shall be Executor Or if the Testator being demanded by another whether he doth make A. B. his Executor doth answer Yea I do or What else or Why not or Whom else should I make Executor or I cannot deny it or other words to that purpose cum animo Testandi this shall be a pure and simple assignation of A. B. to be Executor Also if the Testator doth make A. B. or C. D. his Executors in this Case both of them shall be his Executors because as aforesaid or is here taken for and Provided alwayes in all the Cases aforesaid and in every other the like Case that the Testator have a firm and constant purpose and meaning to make his Will whensoever he uttereth any such words And as it matters not by what significant words the Executor is appointed So it is not material in what part of the Will or Testament he is appointed as whether in the beginning or in the middest or in the end thereof So as that he be therein expressed or sufficiently implyed as aforesaid 4. False English or words mis-spelt in a Will or other common mistakes shall not prejudice the Will or disposition or Executorship if it may evidently appear what or whom the Testator meant and that at the same time he was not non sanae memoriae yea though the Will want the words of conclusion viz. In witness whereof c. It is good in case it may otherwise appear to be the Testators Last Will and Testament CHAP. VI. Of persons incapable of being Executors or Administrators A Postates Traytors Felons persons Out-lawed Incestuous Bastards Famous Libellers manifest Usurers Sodomites uncertain persons and Recusants Convict are all excluded from being Executors yet each of these hath his respective qualifications And all these are incapable both of Executorship and Legacies if they be such either at the time of making the Testament or at the time of the Testators death or when they assume the Executorship Yet Incestuous and Adulterous Bastards are incapable of being Executors only to or receiving Legacies only from their own Natural Parents necessary means of sustentation only excepted But as to other Legataries it is sufficient if they are capable only at the time of the Testators death And the foresaid Rule relating to Incestuous Illegitimates is attended with more ampliations and restrictions in the Law than to insert here is adequate to the design of this summary Collection Add to these persons Excommunicated who so long as they lie under the sentence of Excommunication are not to be admitted either to Executorship or to Legacie nor during such time can such commence any suit for Legacies they cannot sue that is proceed in suit as Executors till they be absolved for this works not a nullity of the Executorship nor overthrows the suit but stays it only from proceeding untill absolution be had and obtained Yet a person Out-lawed as is reported also a person attainted may be an Executor where it is also said that an Alien may
out the Executor unless the money for the Land to be sold be to be distributed in pios usus because in this Case the Frank-tenement after the Testators death is in the Executors not in the Heir for which reason the Heir cannot enter in this Case as he might in the former 3. In an Action of Debt brought against Executors They were at Issue if Assets were in their hands or not and the Jury found by a Special Verdict That the Testator was seized of a House in Fee and made a Lease thereof and of certain Implements of household in it for years rendring Rent to Him his Heirs and Assigns and found that the Executors after the death of the Testator continually received the Rent and prayed Advice of the Court if the same were Assets in the Executors hands And the Opinion of the Court was That it was not Assets for that the whole Rent was to go with the Land in Reversion as magis digne and so did belong to the Heir not the Executors A man Willeth that after twenty years after the death of the Devisor J. S. shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor CHAP. XV. What goes neither to the Heir nor Executor and in what Cases 1. Bona Paraphernalia go neither to the Heir nor to the Exeeutor 2. Things in joynt-Tenancy go neither to the Heir nor to the Executor 3. Things willed by the Testator to be sold for certain uses go to neither of them 4. A Lease simply for Three Lives goes neither to the Heir nor Executor 1. BY the Civil Law those Goods belonging to the Wife called Bona Paraphernalia descend neither to the Heir nor to the Executor neither are they by that Law subject unto the payment of the Husbands debts But now under that notion of Bona Paraphernalia we are not to understand the Wifes Apparel with her Bed Jewels and Ornaments for her person to be comprehended but her convenient Apparel and onely such as is agreeable to her degree and such shall go to the Wife onely the rest unto the Executor And thus much the very word being Etymologized doth imply 2. The Goods and Chattels which one hath in Joynt-Tenancy with another shall not on his death go to his Executor nor to his Heir but to the other surviving Joynt-Tenant and that by right of survivorship Otherwise it is with Tenants in common for if A. and B. have Goods or Chattels in Joynt-Tenancy and if either of them grant what belongs to him unto a Third person in this Case that Third person and he which kept his part unsold are Tenants in Common and therefore if either of them Two die the deceaseds part of such Goods and Chattels shall go to his Executor and not to the surviving Tenant in Common Also if Husband and Wife be Joynt-Tenants of Land and the Husband die the very Corn growing thereon shall survive to her together with the Land and though the Husband sowed it yet shall it not go to his Executor 3. The Monies or Profits arising out of Lands Willed by the Testator to be sold are not accounted as any of the Goods or Chattels of the person deceased and consequently do go neither to the Heir nor to the Executor but to the uses for which it was willed to be sold 4. If one have a Lease simply for Three Lives to him and his Assigns this is no Chattel therefore shall not go to the Executor and it is no Land therefore it shall not go to the Heir but in this Case it shall go to him who first after the Testators death Enters and Claims it as an Occupant if no assignment thereof be made in the life-time of the Lâ—ssee But a Lease for years determinable upon Lives is a Chattel and shall go to the Executor So also doth an Extent upon a Statute CHAP. XVI Of the Indivisibility of the right and interest of Co-Executors Their Indivisibility 1. In point of Power and Authority 2. In point of Interest and Possession 3. In Case of Plaintiffs and Defendants 1. WHere there are more Executors than One or Joynt-Executors to the same Testator One of them cannot give nor release his Interest to the other or if he doth it is void and he who so releaseth shall still have as much Interest as he to whom he released because each had the whole before Therefore if one Executor release but his part of a debt it hath been held that the whole is discharged But if one Executor alone sell Goods of the Testator he alone may maintain an Action of debt for the money So if Goods be taken out of the possession of one Executor he alone may maintain an Action for the same and that without naming himself Executor Also one Executor not joyning in suit with another may any time before judgment release but after Judgement he cannot because then it is altered in nature and turn'd into Rem Judicatam And though many Executors to one and the same Testator make but one Executor yet the devastation wast or misdoing of one shall not charge the rest nor make their Goods lyable for recompence but himself shall answer for it with his own Goods yet no further than the value of the Testators Goods so wasted or misadministred 2. If one of the Executors where there be Two or more grant his part of the Testators Goods all passeth and nothing is left to the other for that each hath the whole and there be no Parts or Moities between Executors Thus if an Horse come to four Executors each hath a Horse and yet all four have but one Also though a Lease for One thousand Years of One thousand Acres of Land come to Two Executors or more no partition or division can be made between them because it is not between them as between joynt-Lessees of Land where each hath but a Moitie in Interest though possession of and through the whole but among Executors each hath the whole and therefore if he grants his part he grants the whole yet one Executor may demise or grant the Moitie of the Land for the whole term and so may the other and this way they may settle a Moitie for each in some Third person intrusted for them but one Executor cannot make a Lease to the other of any part because he had the whole before nor can one of them Sue the other as Executor unless the Testator devise to one of his Executors all his Goods after such Debts and Legacies paid and satisfied for in such Case after satisfaction thereof that Executor may take the remainder of the Goods and maintain an Action of Trespass against the other if he take them from him and consequently an Action of Detinue if he keep or detain them but this he may do not as
be in the Debet and Detinet because he is bound by special words in the Obligation and here the debt which in the time of the Administratrix occurr'd is her debt and in Dyer 6 Ed. 6. 81. the Action is brought in the Debet and Detinet for Rent Arrear in the time of the Executor and admitted to be good Popham accord For the being charged with the Rent in her time it accrews by reason of the Profits of the Land which she her self received and therefore she is charged having quid pro quo For if an Executor hath a Lease for years of Land of the value of Twenty pound per Ann. rendring Ten pound per Ann. Rent it is Assets in his hands only for Ten pound over and above the Rent Fenner agreed to this Opinion and to that purpose cited 10 H. 6. 11. That the Husband shall be charged after the death of the Feme for Rent Arrear in his own time because he received the Profits of the Land So as the Rent grew due in respect of the occupation and taking of the Profits And therefore she is chargeable and not meerly as Executrix Clinch agreed with them wherefore it was then adjudged for the Plaintiff Note That afterwards this Judgement was reversed in the Exchequer Chamber for the point in Law For all the Judges of the Common Bench and Barons of the Exchequer held That she ought to be charged in the Detinet because she is charged only by the Contract of the Intestate 5 Co. 31. The Case was One died Intestate in the County of York and a Stranger prayed Letters of Administration to be granted to him which was Repealed by the Delegates at York there was an Appeal to the Court of Delegates in the Chancery who did Repeal the former Sentence at York and adjudged that the Party made no Will and granted Letters of Administration to him who Appealed to them The Arch-Bishop of Canterbury granted Administration to a second person and the Arch-Bishop of York to a Third person who made a Release unto the Debtor of the Intestate upon which Release debt was brought by the first Administrator against the Defendant who pleaded the Release made to him And whether this grant of Letters of Administration by the Judges Delegates were good or not was the Question But the better Opinion of the Court was That the Letters of Administration which were granted by the Judges Delegates was not good but there being Bona Notabilia the Administration was to be granted by the Arch-Bishop And it was said That if the Party who died Intestate had Goods in several Provinces both the Arch-Bishops there having a Peculiar might grant Letters of Administration and although the King be Supream Ordinary and by Delegates may do many Acts yet the Court of Delegates cannot do this nor have they power to Prove any Wills for the power of the Judges Delegates is Potestas Delegata corrigere non exequi And the Court said That it was adjudged in one Brakenburies Case That the Judges Delegates had not power to grant any Letters of Administration An Exception was taken to a Declaration because the Plaintiff conveyed his Interest to an Administrator to whom the Arch-Bishop of Canterbury did grant the Administration of all the Goods of the Lessee and did not shew how the Arch-Bishop granted it either as Ordinary or by his Prerogative And this was held by all the Court a material Exception But it was afterwards alledged That all the Presidents in this Court viz. B. R. and in C. B. were so in general without special shewing how and for that they would not change the Presidents they disallowed the Exception And in this Case it was held That if an Administrator doth grant Omnia bona catalla sua a Term which he hath as Administrator doth not pass for it is not suum but he hath it in right of the Intestate But if one hath a Lease as Executor or Administrator of the Mannor of D. and he granteth all his right and interest in the Mannor the Term which he hath as Executor c. doth pass for he had no other Right in it and his intent is to pass it but by general words it shall not pass Debt against the Defendant as Administratrix she pleaded Plenè Administravit the Jury found That the Intestate was indebted to divers by Obligations and that after his death the Defendant had taken in the Obligations and had obliged her self to pay the greater part of the summs contained in the Obligations at certain dayes to come and for the residue had promised to the parties That in consideration of delivery in of the said Obligations that she would pay c. And by the Opinion of Anderson Windham and Periam it was held clearly a good Administration so that the property of the Goods of the Intestate to that value were altered and changed in the Defendant Action Sur Trover And Declares as Administrator of J. S. and that Administration was committed to him by A. B. Official to the Bishop of Peterborrough and sheweth not that he was Ordinary of the Place or that the granting of Administration did belong to him and this matter after Verdict was alledged in Arrest of Judgement but because divers Presidents had been so and that such Declarations had been allowed the Court did give Judgement for the Plaintiff Debt as Administrator to one Philips and Declares That Administration of the Goods of Philips was committed to him per Adrian Vane Sacrae Theologiae Doctorem such a day apud Monmouth and the Plaintiff recovered in the Common Bench by default and Writ of Errour was thereon brought and the Errour Assign'd because it is not shewn that Vane was Ordinary of Monmouth nor that the committing of Administration appertained to him and in regard it was in a Declaration which ought to be certain and he is not a Bishop nor any person who may be intended to be the Ordinary the Judgement was therefore reversed It was moved by Coke the Queens Atturney That the committing of Administration being by the Arch-Bishop although he had not Goods in divers Diocesses because it is in his Province wherein he hath Jurisdiction it is not void but only voidable by Sentence and it is not like to an Administration committed by another Bishop of the Goods of a man who died in another Diocess or who had Goods in divers Diocesses and this difference hath been taken and agreed in the Queens Bench c. But the Justices said it was all one and the Administration is void in both cases and not voidable only Debt upon an Obligation of One hundred pound one of the Defendants was Out-lawed the other pleaded that he who was Out-lawed was made Executor and solely Proved the Will and Administred and that the Defendant as Servant unto him took divers of the Testators Goods by his Delivery and by his appointment had sold them
because the presumption of Law is That his mind is not altered unless it may otherwise appear by sufficient Evidence Therefore the Testators words are specially to be referr'd to the Time when the Testament was made and most especially if the Testators words be generall words So that if a Father bequeath to his Son who is a Student all his Books and after buy other Books those other pass not by that Legacy Or if he bequeath 10 l. to his Parish Church and after remove his Habitation into another Parish where he dyes the 10 l. is due to the Parish wherein he lived at the time of making his Testament and not to the Parish wherein he dyed Yet if the Testator bequeath any thing to his Kindred in such general words the Kindred which were at the time when the Testament was made are not so included as to exclude such as were his Kindred at the time of his death Also if a Testator bequeath his Moveables such only are understood to be bequeathed as were the Testators when he made his Testament Likewise if the Testator Bequeath Releases to all his Debtors there are no more comprehended in that Legacy then were his Debtors when he made his Testament Or if he give to a certain Hospital all his Moneys in the Bank or in Bankers hands after his Debts paid and there be at that time a 1000 l. in their hands over and above his Debts and he lives so long that at his death there is 3000 l. in their hands above his Debts In this case there is only one 1000 l. due by that Legacy to the Hospital because the Legacy is to be computed according to what he had in their hands at the time of making his Will and not according to what he had at the time of his decease Also if he Bequeath all his Moveables having at that time Fruits of the Earth not seperated from the Soyl which yet afterwards and before his death are seperated In such case such Moveables pass not by that Bequest because they were not Moveables at the time of making the Testament But this is not uncontrovertable for in this point there are some of the Learned of another Opinion Or if a Man Bequeath so many pieces of such a certain Coyn which afterwards doth rise or fall in its value The Legacy in that case shall be estimated as the said Coyn was in value at the time when the Testament was made not at more nor less Also if a House with all things therein be Bequeathed such things as the Testator afterwards brings into that House are not within that Legacie And here observe That what has been said as to the Time of making the Testament holds True likewise and so is to be understood as to the time of making a Codicil the words whereof are chiefly to be referr'd to the time of the making thereof Insomuch that in case by way of Codicil a man Bequeath all his wearing Apparel to his Wife and after some Tract of Time makes a Will and dyes no more Apparel doth pass by that Codicil supposing it not contradicted by the Will then the Testator had when he made that Codicil And yet notwithstanding all this which hath been said that the Time of the making of the Testament is chiefly and specially to be referr'd to in the due Construction of Legacies yet this is to be understood only when the words of the Testator speak of the time Past or Present Not when he speaks of the time to come by words of the Future Tense Nor when he speaks by such words of the Present Tense as cannot take effect but for the future Also when the Legacy is Universal under some Name Appellative and in its Nature Collective as Herd Flock and the like such a Legacie admitting of Increase and Decrease the Time in that case of the Testators death is more to be inspected and considered then the Time when he made the Testament So likewise if the Testator willeth that such a one shall dispose of the Profits of his Estate it shall be understood of such Profits thereof as were at the Time of his death because the word Profits is universal and therefore not to be restrained only to the time of the making of the Testament Or if he Bequeath his Money in the Bank the Profits thereof at the time of his death shall pass by this Legacy which if you observe it differs from that Case of money in the Bank abovesaid also if the thing Bequeathed be such as is in ordinary use and by using is consumed and another of like kind had instead thereof That other shall pass by this Legacy for in such case not the Time of making the Testament but the Time of the Testators death shall be considered Nor is the Time of the Testaments making so considerable when the Legacy is Conditional for then the performance of the Condition will fall under chiefest Consideration Also the Time of the Testators death when it most tends to the upholding of the Testament is more considerable then the Time of the making thereof And therefore though the words in the Testament be of the Time Past or Present yet in that the Will of the Testator holds free and good even to his last-Breath They shall also Refer to the Future in those things that depend on the meer Will of the Testator And if he Bequeath indefinitely his Corn it shall be understood all such as he hath at the time of his death Observe finally That if the Testators words in a Bequest be doubtful whether they Refer to the Time Past or to the Time to Come they shall be understood to relate unto the time that is to come 4. Where a Devise is made of Goods if the Executor will not Deliver the same to the Devisee he hath no Remedy by the Common Law but must have recourse against him by way of Citation out of the Ecclesiastical Court to appear before the Ordinary to shew cause why he performeth not the Testators Will for the Devisee may not take the Legacy and serve himself but it must be Delivered to him by the Executor So that the Legatary hath no Remedy by the Common Law for any Legacy of Goods to him bequeathed except as that Law sayes in case where some particular thing as the Testators Horse Signet or the like is bequeathed Or if the Testator willeth that his Executors shall sell his Land and pay such and such Legacies out of the Proceed of the Sale thereof in such case the Legatories may Sue at the Common Law for the same But if the Legacies be Bequeathed to be paid out of Leases and not out of Fee-simple Lands then the Legatary may likewise Sue in the Ecclesiastical Court for the same For though Legacies
Wife came and demanded the 20 l. and none ready to pay it Whereupon the Husband and Wife brought a Writ of Devise and Recovered In this Case it was Resolved were the 20 l. Rent or a Sum in gross That by the bringing of the Writ of Dower the Wife of the Devisor had lost all the benefit which was to come to her by the Devise because the said Rent was Devised to her in Recompence of her Dower so that it was not the meaning of the Devisor that the Wife should have both In the Time of Queen Mary Benloes Serjeant moved this Case A Man Seized of Lands and Tenements in London devised them by these Words viz. I Will and bequeath unto my Wife A. my livelihood in London for Term of her Life and that by this Will the Lands in London pass to the Wife by this Word Livelihood Note for Brook Justice said That it was in ancient Time used so in divers places of this Realm and had been taken for an Inheritance Unto which Dyer also agreed A. having Two Sons by Two Wives devised his Land to I. his Eldest Son and his Heirs after the death of his Wife to whom he devised them for her Life The Question was Whether the Son should take them by Devise as a Purchasor or as Heir at Common Law by descent The Court held that the Devise was void and that it was not in the power of the Son to make Election to take by descent or by Purchase but he must of necessity take the Land as the Law directs which is by descent And it is against a Maxime of Law to give a Thing to such a person to whom the Law gives it if it had not been given A Man made his Will in these Words viz. I give and Bequeath one half of my Lands to my Wife and after her death I give all my Lands to the Heirs Males of any of my Sons or next of Kin. In this Case it was held That the Devise was void because of uncertainty and the words being in the disjunctive and we ought not to frame a Sense upon the Words of a Will where we cannot find out the Testators meaning Likewise it hath been adjudged That Lands devised to a Mans Issue was uncertain and therefore such Devise void If a Man hath in his Occupation several Farms together and then doth Devise one of the Farms called D. and all the Lands to the same belonging the other Farms shall not pass with it although they be occupied altogether If a Man doth Will and Devise That A. and B. his Feoffees shall stand Seised and be Seised to the use of I. S. for his Life the Remainder over c. when in Truth he hath no Feoffees It is a good Devise to I. S. by reason of the Intention Or if a Man make a Feofment to his own use and afterwards Devise That his Feoffees shall be Seised to the use of his Daughter A. who in Truth is a Bastard it is a good Devise of the Lands by Intention Three Brothers are of one Father and Mother the middle Brother Seised of Land Devisable giveth this by his Testament Propinquiori fratrisuo It seemeth that none of them shall have it Note it was held by the Justices That if a Man Seised in Fee of a Mannor and Lands Deviseth the same by his Will to his Son and afterwards in another part of the same Will deviseth a Third part of the same Lands to another of his Sons That they are Joynt-Tenants of the Lands And so if a Man in one part of his Will deviseth his Lands to A. in Fee and afterwards by another Clause in the same Will he deviseth the same Lands to another in Fee they are Joynt-Tenants Between B. and P. the Case was this I. W. being Seised of the Mannors of W. and C. in Socage made his Testament devised the Two Mannors in Form following viz. The Mannor of W. to the Eldest Son of R. F. his Cousin and his Heirs and further he devised the other Mannor to M. W. during her life and if she dies and then any of my Cousin F's Sons Living then I will my said Mannor of C. to him that shall have my Manner of W. R. F. had Two Sons G. and I. G. enters on the Mannor of W. and the said M. enters on the other Mannor After G. dies without Issue I. enters on the Mannor of W. and alienates the Fee thereof Afterwards M. dies I living The Question was Whether I. ought to have the M. of C. or not The Court agreed That he could not have it for that he was not such Person as was named or limited to take by the Will for that he had not the Mannor of W. at the Time of the decease of M. and therefore not the Person intended by the Will The Case was That R. P. Seised of divers Lands in A. and having Issue Four Daughters B. I. F. M. made his Will 27. Eliz. in Writing and thereby all his Land in A. he devised to B. and I. his Daughters and made them his Executrices and after in 33. Eliz. Purchased other Lands in A. which are the Lands in Question and after one I. S. came to the Devisor and desired that he would Sell unto him those Lands which he lately Purchased And he said No they shall go with my other Lands in A. to my Executrices Afterwards in 34. Eliz. he fell Sick the Will was read unto him and he said nothing thereto but then gave divers Legacies of Goods to others and caused them to be written and annexed in a Codicil thereto and dyed Whether these Lands newly Purchased shall pass to the Executrices by that Will was the Question viz. Whether by those words used to a Stranger or the annexing of a Codicil to the Will being only concerning Goods be as a new Publication of his Will to make these Lands to pass c. First It was agreed by the Council on both sides and by the Justices That if the Devisor after the Purchase of that Land had made new Publication of his Will and shewed his Intent that those Lands should pass it had been a good Devise of them For the Words in the Will are all his Lands in A. which are apt enough and sufficient to carry them and he could not have added more apt words thereto But afterwards all the Justices Gawdy absente held that it is a new Publication of his Will and sufficient by the words to I. S. For that shews his intent sufficiently and the Will writ hath words sufficient And Fenner held That the annexing of the Codicil thereto is a new Publication as to it For therein he Affirmed That it should be his Will at that Time But the other Justices doubted thereof because he doth not shew thereby any intent That this Will should be for his Purchased Lands nor that he then
remembred them But for the foresaid Reasons it was adjudged for the Plaintiff That those Lands well passed by the Will Suppose a Man hath Two Sons both named John and conceiving his Eldest Son to be dead he Deviseth his Land by his Will to his Son John generally when in Truth the Eldest Son is living In this Case the Younger Son may alleadge and give in Evidence the Devise to him and may produce Witnesses to prove the Intent of his Father And if no Proof can be made the Devise shall be void for the uncertainty of it Glanvile Serjeant prayed the Opinion of the Court in this Case A Man had Issue a Son and a Daughter and Devised his Lands to his Son in Tail and if he dyed without Issue That it should remain to the next of his Name and dyed The Son dyed without Issue the Daughter being then Married whether she should have the Land was the Question And held per Curiam That she should not For she had lost her Name by her Marriage but it should go to the next Heir-male of the Name But if she had not been Married at the Time of her Brothers death the Daughter should have had it for she was the next of the Name One Devised certain Lands in N. in Tail the Remainder to the next of the Kin of his Name and at the Time of the Devise the next of his Kin was his Brothers Daughter who was then Married to I. S. the Devisor dyed The Tenant in Tail dyed afterwards without Issue Whether the Daughter should have the Land was the Question upon a special Verdict and adjudged without Argument that she should not For she is not now of the Name of the Devisor but of her Husbands Name But if she had been unmarried at the Time of the Devise and death of the Donor although she had been Married at the Time of the death of the Tenant in Tail without Issue yet she should have had the Land Wherefore it was adjudged accordingly Ejectione Firmae For certain Lands in A. upon Evidence to a Jury a Devise was shewn of an House with the Appurtenances and thereby Land in the Field was claimed And Popham doubted whether it should pass But Fenner said That it well might pass And that upon Demurrer in 28. Eliz. it was adjudged accordingly The Defendant then to make it clear shewed That the House was Copyhold and the Land Freehold And the whole Court thereupon conceived That it could not be said Appurtenant although it had been used with it Wherefore the Plaintiff was Nonsuited In the Case between H. and H. all agreed the Case of 13. H. 7. That a Testators Devise to his Heir of his Land after the death of his Feme is a good Devise by Implication to the Feme of that Land during her life for it appears he intended his Heir should not have it until the death of his Feme And none other can have it besides the Feme And therefore it is a good Devise to the Feme by Implication But if such a Devise had been to a Stranger after the death of his Feme it might peradventure have been otherwise for the Heir in the Interim might have had it Note That the Opinion of all the Justices was That if one make his Testament wherein are these words viz. I Release all my Lands c. to A. and to his Heirs It is a good Devise of the said Lands to A. and his Heirs Upon a special Verdict the Case was this A Woman Seised of Lands made her Will and devised the same to one and his Heirs after they Intermarry After Marriage the Woman intending to revoke her Will doth revoke it by words after Marriage and saith That her Husband shall not have the Land by her Will and after dyes Whether the Husband by that Will or the next Heir to his Wife shall have the Land was the Question The Case was Argued Pro Con several Arguments on both sides In fine it was Adjudged That the Will was void and that the Husband could take nothing thereby A Man Devised his Lands to his Wife from Year to Year until his Son I. come to the Age of 20. Years and dies the Wife enters I. dies before he attain the Age of 20. Years And it was moved by Harper whether her Interest were thereby determined And it was held by all the Justices That by the death of the Son the Estate of the Wife was determined and that she had no longer any Estate therein For it is to be intended that the Will of the Devisor was That his Wife should have the Land during the Minority of his Son for that he himself could not Legally dispose of the Land being within Age. And Dyer said That by these words de anno in annum It is intended that the Will of the Devisor was That the Interest of the Wife should determine by the death of his Son But if the Words had been until his Son should Come or might Come to that Age of 20. Years then notwithstanding his death the Estate of the Wife had continued A. Seised of the Mannor of Chessam extending into Chessam and the Town of Hertford and also of Lands in Hertford Devised by Will the Mannor of Chessam to B. his Eldest Son in Tail and the Lands in Hertford to C. his Younger Son It was held by all the Justices That the Younger Son should have all that part of the Mannor of Chessam which lay in the Town of Hertford A. Devised that his Lands should descend to his Son but Willed That his Wife should take the Profits thereof until the full Age of the Son for his Education and bringing up and dyed The Wife Married another Husband and dyed before the full Age of the Son It was the Opinion of the Justices in this Case That the second Husband should not have the Profits of those Lands till the full Age of the Son For nothing is Devised to the Wife but a Confidence and she is a Guardian or Bailiff for to help the Infant which by her death is determined and the same Confidence cannot be transferred to the Husband A Man Seised of a Messuage to which a Garden and a Curtilage did belong Enclosed with a Wall and there was no way to the Garden but through the Messuage He Devised the Messuage to his second Son in Fee not mentioning the Garden nor Curtelage nor saith cum pertinentijs It was Adjudged in this Case That the Garden and Curtelage did pass by this Devise They said a Curtelage is parcel of the House as a Stable and a Dovehouse and the Garden shall pass because it is as well for Necessity to it as for Pleasure A. Seised of Lands had Two Daughters and Devised the Lands to the Eldest and her Heirs that she pay to her Younger Sister yearly 30 l. It was the Opinion of all the
Male or the Heirs Female of their Two Bodies begotten or to him and his Heirs if he shall have any Heirs of his Body else that the Land shall revert or to him and his Heirs if he shall have any Issue of his Body or to him and the right Heirs Male of his Body or to him and his Heirs provided that if he die without Heirs of his Body that then the Land shall revert by all these and such like Devises an Estate Tail may be Created of the Land so Devised Likewise if one Devise his Land in Dale to A. B. semini suo by these Words A. B. hath an Estate Tail But if he say I give my Land in Dale to A. B. sanguini suo it is said That by this Devise A. B. hath the Fee-simple of the Land 5. Suppose a Devise be made thus viz. I give my Land in Dale to A. B. for life the Remainder to C. D. and E. his Wife and their Children or to them and their Men-children or to them and their Issues by these Devises if C. D. and E. his Wife have no Children at the Time of the Devise an Estate Tail is Created but if they have any Children at the time of the Devise then hereby is Created an Estate for all their lives only in Joynt-tenancy 6. If one Devise his Land to his Wife for life the Remainder to his Son and if his Son die without Issue not having a Son that then it shall remain over this is a good Estate Tail Likewise if Lands be Devised to A. B. and his Heirs Males or his Heirs Females without saying of his Body by this Devise A. B. hath an Estate Tail But if such a Limitation be by Deed it is said to be a Fee-simple 7. If one having Two Sons Devise part of his Land to his Eldest Son and his Heirs another part of his Land to his Youngest Son and his Heirs and if either of them dye without Issue that then the other shall be his Heir by this Devise either of them hath an Estate Tail and no Fee-simple But if one Devise his Land to his Eldest Son and his Heirs and if he dye without Heirs of his Body that it shall remain to his Youngest Son and his Heirs by this Devise the Eldest Son hath an Estate Tail and the Youngest Son the Fee-simple 8. If one Devise his Land to his Son W. S. and if he marry and have an Issue Male begotten of the Body of his Wife then that Issue to have it and if he have no Issue Male then to others in Remainder by this Devise it seems W. S. hath an Estate Tail to him and the Issues Male begotten of the Body of his Wife Also if one Devise Long-acre to A. and then say Item Broad-acre to A. and the Heirs of his Body by this Devise he hath an Estate Tail in both Acres 9. If one Devise his Land to his Wife for years the Remainder to his Younger Son and his Heirs and if either of his Two Sons die without Issue c. that it shall remain to his Daughter and her Heirs and the Younger Son die in the life Time of the Father and after the Father dyeth it seems by this Devise the Elder Son shall have the Land in Tail Or if one Devise his Land to his Wife for life and after to his Son and if his Son die without Issue having no Son or having no Male that then it shall go to another by this Devise the Son hath an Estate Tail to him and the Heirs Males of his Body Or if Lands be Devised to Man and Woman unmarried and the Heirs of their Two Bodies or to the Husband of A. and Wife of B. and the Heirs of their Two Bodies by these Devises are made Estates in Tail 10. If Land be Devised to A. B. and the Heirs of his Body and that if he die it shall reman to C. D. by this Devise A. B. hath an Estate Tail and the latter words do not qualifie the former but C. D. must attend the death of A. B. without Heirs of his Body before he shall have the Land Also if Lands be Devised to A. B. and the Heirs he shall have by C. his Wife by this Devise A. B. hath a Fee-Tail and not a Fee-simple Likewise if one Devise Land to his Son and his Heirs and that if his Son die within the Age of 21. Years or without Issue that the Land shall remain over and the Son dyeth within Age having Issue in this case and by this Devise the Son hath an Estate Tail and Or in this place shall be taken for And 11. If a Man Devise his Land in this manner viz. I give White-acre to my Son A. and his Heirs Black-acre to my Son B. and his Heirs and Green-acre to my Son C. and his Heirs provided that if all my said Sons die without Issue of their Bodies that then all my said Lands shall go to M. my Wife and her Heirs by this Devise they have all of them Estates in Tail of their Land and as it seems Cross-Remainders to either of them of the Land of each other Also if one Devise his Land to A. B. and if he die without Issue Male of his Body then that it shall remain over to C. D. by this Devise A. B. hath an Estate Tail 12. If a Man having Issue Three Sons Devise his Lands in this manner viz. One part to Two of his Sons in Tail and another part to his Third Son in Tail and that neither of them shall Sell his part but that either of them shall be Heir to other by this Devise either of them hath an Estate-Tail and if one of them die without Issue his part shall not revert to the Eldest but shall remain to the other Son for it is an implyed Remainder 13. If one Devise to A. B. that if he and the Heirs of his Body be not paid 20 l. Rent yearly he and they shall distrain by this Devise A. B. hath an Estate-Tail of this Rent Also if a Man Devise his Mannor of D. to his Eldest Son and also all his Lands in S. in Tail in that case the Entail is limited for the Land in S. and shall not extend to the Mannor of D. But if the words had been I Devise my Mannor of D. and all my Lands in S. to my Son in Tail the Son had had an Estate Tail in both But suppose a Man Deviseth his Lands to his Wife for Life the Remainder to his Son in Tail and if he die without Issue the Land to remain to A. B. and his Wife for their lives and after their deceases to their Children In this Case the Court was divided whether the Children of A. B. had an Estate in Tail or only an Estate for life Mich. 40. Eliz. in B. R. Goldesb 138.
and that this doth but set forth the Time when the Estate of A. B. shall begin and that the Intent of the Testator is That his Heir shall have it until that Time The Reason of the difference is because a Man is bound to provide for his own not so for a Stranger and so the Law presumes what Nature doth teach 6. If one Devise his Land in this manner viz. I give my Land in D. to A. B. to the intent that with the Profits thereof he shall bring up my Child or my Children or to the intent that with the Profits thereof he shall pay to I. M. 10 l. or to the intent that out of the Profits thereof he shall pay yearly 10 l. By these Devises A. B. hath only an Estate for life albeit the Payments to be made be greater than the Rents of the Land Otherwise it is in case the Sum of Money is to be paid presently and not appointed to be paid out of the Profits of the Land in which case A. B. should have a Fee-simple in the Land 7. If the Father of A. be Tenant for life of Land the Remainder to A. in Fee And A. devise the Land to his Wife Rendring for her natural life 5 l. to the right Heir of the Father of A. by this Devise the Wife of A. hath an Estate for life after the death of his Father 8. Land was Devised to Husband and Wife and after their decease to their Children they then having Issue a Son and a Daughter In this case the Husband and Wife have but an Estate for Term of their lives the Remainder to their Children for life and no Estate Tail for the intent of the Testator here shall be construed according to the Rules of the Common Law and by the Common Law the Husband and Wife have but an Estate for their lives with a Remainder to their Children for their lives 9. The Son Seised of a Remainder in Fee after the death of his Father who was Tenant for life devised the same by these Words viz. I Devise to D. my Wife the Lands which I have or may have in Reversion after the death of my Father paying therefore yearly during her life to the right Heirs of my Father 40 s. and dyed his Father living It was the Opinion of the Court That no Estate passed by this Devise but for Term of the life of the Wife and that she should not pay the 40 s. until the Reversion did fall after the death of the Father 10. A. Seised of divers Lands in A. B. and C. the Lands in C. being in him by Mortgage forfeited Devised the Lands in A. and B. to several Persons and then adds this Clause in his Will All the rest of the Goods Chattels Leases Estates Mortgages whereof he was possessed he devised to his Wife after his Debts and Legacies paid made his Wife his Executrix and dyed The Wife entered into the Mortgaged Lands and devised it to the Defendant and his Heirs and dyed The Question was whether the Fee passed to the Wife by this Devise by the Name of all his Estate Mortgages c. It was the Opinion of the whole Court That an Estate for life only passed unto her and not a Fee by Implication of the general words in the Will 11. Note That there is a difference when one Deviseth his Term for life the Remainder over and when a Man Deviseth the Land or his Lease or Farm or the Occupation or Use or Profits of his Land For in a Will the intent and meaning of the Devisor is to be observed and the Law makes construction of the Words to answer and satisfie his intent and puts them into such order that his Will shall take effect And when a Man deviseth his Lease to one for life it is as much as to say He shall have so many Years in it as he shall live and that if he dyeth within the Term that another shall have it for the Residue of the Years And although at the beginning it is uncertain how may Years he shall live yet when he dyeth it is certain how many Years he hath lived and how many Years the other shall have and so by a subsequent Act all is made certain A Man made his Will in this manner Item I give my Mannor of Dale to my second Son Item I give my Mannor of Sale to my said Son and his Heirs what Estate he had in the Mannor of Dale was the Question It was held by Dyer Weston and Welch That in the first he had but an Estate for life for that it is as much as to say as if he would give his Mannor of Dale to him for his life for that as much is included therein without saying His Heirs And that Item seems a new Gift to a greater degree in the second place to make amends for the other Brown e Contra and that the Item is a Conjuntion Copulative and that the word Heirs expressed in the latter Clause extends to both the Mannors But if the Word Heirs were put in the Gift of the former Lands it would be otherwise Dyer if in the first place or Clause there were not any person named but that the words were Item I give the Mannor of D. Item I give the Mannor of S. to I. K. and his Heirs there and in that Case it would refer to both the Mannors W. C. by his Will Devised a Messuage in these words viz. I give to A. L. my Cousin the Fee-simple of my House and after her decease to W. her Son The Judges held That A. L. had an Estate for life and her Son a Fee-simple in Remainder And so it was adjudged R. D. Seised in Fee of a House and Possess'd of Goods made his Will in these words viz. The rest of my Goods Lands and Moveables whatsoever after my Debts Legacies and Funeralls paid to my Three Children I. T. and M. equally to be divided amongst them And it was Adjudged That they have an Estate only for life in the House and are Tenants in Common not Joynt-tenants CHAP. XII Certain Cases in the Law touching Devises of Leases or for a Term of Years 1. In what Case the Word Shall is taken for Should in Devise of a Term. 2. A Devise of Lands for 99. Years may be only for no more of that Term then the Issue Male of the Devisee shall continue 3. The Devise of a Term to one and his Heirs shall go to the Devisees Executors or Administrators and not to his Heirs 4. Chattel-Leases and Leases for Years pass not by a Devise of all his Lands and Tenements 5. By a Lease for Years Devised for Life doth pass the whole Term yet is it not an Estate for Life 6. The whole Interest of a Lessee in his Lease-Lands doth pass by a Devise of his Lease Term Farm Profits Tenure or Occupation thereof as
Executors who Refuse to Administer the Goods may yet sell the Testators Lands Devised to be sold 15. Lands Devised to be sold by Executors the one Refusing the other may sell but not to the Refuser 16. A Sale by some only of the Executors is void where there is a special and Joynt-Trust 17. The Difference between an Authority and an Interest in Executors in point of Sale 1. IN all Cases of Devises of Land to Executors to sell the same it is most Prudential to make it as clear and certain as may be that is That the Executors or the Survivor of them or such or so many of them as take upon them the Probat of the Will if his intent be so shall sell it And it is safer to give only an Authority than an Estate unless his meaning be that they shall take the Profits of the Land until the sale And if he do so then it is Requisite that he Appoint that the mean Profits until the Sale shall be Assets in their hands for otherwise it shall not be so 2. If one Devise Land to others to the intent that with the Profits thereof they shall Educate Children or pay such Sums of Money or the like In this case the Devisees must do accordingly or they may be compelled thereunto And Regularly the Heir and not a Stranger shall take the Advantage of a Breach of a Condition annexed to Devises touching sale of Lands And therefore if one Devise Land to another and his Heirs Provided that he pay 100 l. to A. B. Otherwise that the Land shall remain to C. D. and his Heirs in this case if the Devisee do not pay the Money C. D. shall not take Advantage of it nor have the Land according to the Devise but the Heir of the Devisor shall enter and have it and Eject the Devisee 3. If the Testator intending to have his Land or part thereof sold for the payment of Debts or Legacies doth Devise the same in this manner viz. I will that my Executors or that A. B. and C. my Executors shall sell my Land In this case the Executors have only an Authority and no Interest For which reason the Land in the mean time Descends to the. Heir of the Devisor who shall enjoy the Profits thereof until it be sold In which case also the Executors may sell it when they please unless they be hastned thereto by order of Court And are all to joyn in the Sale Insomuch that if one or more of them dye before the Sale the surviving Executors or the Executors of the deceased Executors may not sell it by this Authority The Case is the same if any of the Executors Refuse the charge of the Will in which Case the rest of the Executors which accept the said charge may not alone sell the Land unless the words in the Will be That his Executors or some of them shall sell it But now by the Stat. of 21. H. 8. cap. 4. Some of them may sell it without the rest in case any of the Executors dye before the Sale 4. But if the Testator Devise the Land in this manner viz. I give my Land to my Executors to be sold c. In this case the Exeeutors have as well an Interest in the Land as an Authority to sell it And therefore it doth not here descend unto the Heir as in the former case but the Executors shall keep it till the Sale and may sell it when they will so as it be within any competent or convenient time for otherwise the Heir may Enter and Eject them by a Condition in Law annexed to the Interest And in this case the mean Profits until the Sale is no Assets but the Money or Proceed upon the Sale shall be Assets in their hands And in this case if before the Sale one or more of the Executors dye or refuse the rest may sell it for the Estate surviveth But it is supposed they may not sell to him that doth refuse the charge of the Will Neither may they in either of these Cases transfer their power of selling to any other nor keep the Land themselves though they pay the value thereof with their own Money 5. If the Devise be that the Executors shall sell with the Assent of A. B. in this case if A. B. dye before he Assent the Executors can not sell and in his life-time they can not sell without his Assent And if one Deviseth that his Lands shall be sold to pay his Debts and say not by whom in this case it shall be sold by his Executors Or if one Devise all his Land except Ten Acres which he doth appoint to pay his Debts by this Devise his Executors or the survivor of them may sell the said Ten Acres But if one say by his Will that A. B. shall have as well the Guardianship and Education of his Children as the disposing letting and setting of his Lands in this case A. B. hath not power to sell the Land Or if one Devise that his Land shall be sold after his Wife's death by his Executors with the Assent of A. B. And make his Wife and another his Executors and dye and after A. B. dye In this case the Land can not be sold for the Authority is determined 6. Suppose a man seised in Fee of a Messuage with which certain Lands have been occupied time out of mind give his Instructions for the making of his Will inter alia declares That his meaning is that his said Messuage and all his Lands in W. shall be sold by his Executors And the party that writes his Will Pens it in this manner viz. I will that my house with all the Appurtenances shall be sold by my Executors the Devisor dyes The Executors sell part of the Lands By this Devise such Sale is good and the Lands do pass for the words with all the Appurtenances are effectual to enforce the Devise and extend to all the Lands specially because the Devisor gave Instructions accordingly 7. A Copy-holder Deviseth his Land to his Wife for her life and that after his death the Wife or her Executors should sell the Land and Surrendred to the use of his Will which was Entered thus viz. To the use of his Wife for life Secundum formam ultimae voluntatis In this Case she hath an Estate in the Land to her own use for her life and also an Estate in Fee to sell it otherwise the clause secundum formam ultimae voluntatis should be void 8. A man Deviseth by his Will his Lands to his Wife and if she have Issue by the Devisor that his Issue shall have it at his age of 21 years and if the Issue dye before that age or before his Wife or if she have no Issue that then she shall choose two Atturneys and she to make a Bill of Sale of any Lands to her best Advantage In
3. If one be possessed of a Term of Years of Land and Devise the same to his Wife during all the Term and if she die within the Years of the Term then to A. and B. his Two Sons if they have no Issue Male but if they or either of them have Issue Male then that it shall go the use of those Issues Male the Wife dies and the Two Sons dye without Issue Born one of their Wives being privily with Child of a Son who after his Fathers death is Born In this Case and by this Devise the Issue Male shall have it as soon as he is Born 4. Suppose a Man possessed of an Estate to the value of 721 l. hi Wife being with Child did Devise in this manner viz. Whereas my Wife is with Child I Will that if she be delivered of a Son that then that Son shall have 480 l. 13 s. 4 d. And my Wife shall have 240 l. 6 s. 8 d. But in Case she be delivered of a Daughter then my Will is That that Daughter shall have the 240 l. 6 s. 8 d. and my Wife shall have the 480 l. 13 s. 4 d. and dies It happens That the Wife is after delivered both of a Son and a Daughter The Question is How each Legatary shall be satisfied his and her Legacy according to the Intention of the Testator for by the Will a Legacy is given to each of them It is Resolved That according to the Testators Intention which is the Index of the Testament the Son shall have double to the Wife and the Wife double to the Daughter and consequently the Son shall have 412 l. the Wife 206 l. and the Daughter 103 l. Which in all amounts to 721 l. the full value of the Testators said Estate So that each person is to have a Portion answerable to the Rate of Proportion mentioned in the Will But if the Child which the Mother brings forth be an Hermophrodite then it shall have the Portion due to that Sex whereof the Hermophrodite doth most participate But if that also be doubtful it is to be presumed according to the more worthy Sex viz. the Masculine 5. In Case a Testator saith If my Wife bring forth any Child I give to the same 100 l. and she bring forth Two or Three Children In this Case every Child may obtain a Hundred Pounds if there be Assets sufficient and the Testators Goods will suffice to satisfie the same otherwise there must be a proportionable deduction 6. There is a Case wherein by the Birth of a Child after his Father the Testators death a Devise becomes good to another which otherwise would be void when none is given to himself As thus If one Devise his Land to his Daughter and Heir apparent in Fee-simple this Devise is void yet if in this Case the Wife of the Devisor be privily with Child of a Son which is born after his death now is the Devise become good for now she is not Heir to her Father Q. Mead and Pyriam Justices in the C. B. Affirmed That it had been there Adjudged in the Lord Dyers Time That if Lands are Devised to Two Men and the Child where with the Devisors Wife then goeth that such Devise is good and the Child shall take by such Devise But whether they shall take in Common or Joynt-tenancy the Lord Dyer doubted A. possessed of a Lease for Years Devised the same to his Eldest Son and the Heirs of his Body and if he dyed without Issue then to P. his Younger Son and the Heirs of his Body and for default of such Issue that the Term should remain to his Daughters The Testator dies leaving Two Daughters and afterwards another Daughter is Born The Eldest Son Sells the Term and dies without Issue the Younger Son dies also without Issue the Three Daughters enter and the Term was Adjudged to them Three although the Youngest Daughter was not Born at the Time of the death of the Devisor otherwise if he had named the Two Daughters in the said Devise by their proper Names CHAP. XIX Certain Cases of Devises touching Lands and Chattels-real 1. The difference in Power of Devising between him in Fee and Tenant in Tail for Life 2. What Vses are Devisable 3. Money payable on a Mortgage is Devisable though Devised before the day of Payment 4. Obligations or Chattels-real in right of a Wife as Executrix or not are not Devisable by the Husband 5. A void Presentation is not Devisable in what kind an Advowson in Fee may be 6. Whether Leases and Rents may pass under the Notion of Immoveables as also Bonds and Specialties under the Notion of Moveables 7. What shall pass by a Devise of all Goods Chattels Moveables or Immoveables 8. The difference between an universal Successor and a naked Executor or particular Legatary 9. Devise made under Coverture may be good by new Publication of the Husbands death otherwise not 10. The same Law as to a Devise made by an Infant during Minority disqualified 11. Not full Payment Equivalent to no Payment 12. A Personal Charge incumbent on a Legacy is to be defrayed by the Executor not the Legatary 13. Equity in Election to be Regulated by the Testators Intention 14. Circumstances of a Devise not Restrictive nor joyned to the Devise it self ought not to minorate the same 15. A Devise shall be interpreted to the utmost Consistency with the Devisors words to the best advantage of the Devisee 16. Comprehensive words ought not to be extended beyond what is Rational in Construction of Law 17. The Advantage of a Residuary-Legatary when others refuse 18. Discrepancy among the DD. touching a Legacy to the Poor 19. Accessory Advantages to a Legatary between the making the Testament and the Testators death 20. The Devise of a Thing not in rerum natura at the Testators death is void 21. The Testators Estimation of a Legacy doth not alter the Condition thereof 22. The Executor may not exceed his Testators Estimate to a Legataries prejudice 23. The Devise of a part not expressing what part implyes a Moity 24. Constructions of Law to avoid uncertainty and the Law touching Elections 25. Where a Legacy is given Nomine poenae and failure in the Executor the Legatary may take either but not both Legacy and Penalty 26. Where there happen Two Elections in one Devise the Legatary shall have the first the Executor the second 27. The Law touching a Devise of a House where the Testator had none or many or burnt or ruin'd or pull'd down or demolish'd or re-edified 28. In what Case a Mill joyning to a House shall pass by a Devise of the House or not 29. One Thing ought not to be Compriz'd under the Appellation of another beside the Testators Intention 30. One Stable or one Kitchin to Two Houses shall pass with that Devised House whereto they are most nigh or most Contiguous 31. The Law touching
Daughter Whether may the Daughter compel C. D. to sell the Jewel and restore her the overplus It is held in the Negative But she may compel her Brother who is her Fathers Executor to Commence his Action at Law against C. D. in order to the Premises Or if the Testator say I will that C. D. receive 100 l. and restore the Jewel to my Daughter not expressing of whom he shall receive the 100 l. In that case the Executor is lyable for the 100 l. 11. Suppose a Testator in his Will saith Whoever shall be my Executor for the Goods and Chattels I have in Ireland shall give 10 l. to A. B. in Dublin the Testator makes three Executors for his said Estate in Ireland and dyes The Question is whether every of these Co-executors each of them having Administer'd to the said Irish Estate and each of them having a part thereof in his possession is obliged to pay 10 l. to A. B And whether that universal word in the Legacy whoever hath that force in it as to make each of them obliged in the case for 10 l. each It is Resolved A. B. shall have but 10 l. in all to be paid by from and among all the three Executors The Reason is Evident because they all make but one Representative being distinct rather in their persons than in their Office 12. A Testator having made A. B. and C. D. his Executors in his Will faith That either A. B. shall pay 10 l. to J. G. in lieu of a Legacy or C. D. alone shall be his Executor and dyes They both Administer In this case J. G. may sue both of them for the whole Legacy and C. D. is as far forth lyable to the payment thereof as A. B. 13. A Testator whose Wife is big with Child saith I will that if there be any Daughter born to me my Executor shall pay her 100 l. and dyes After the Wife is delivered of Twins viz. Two Daughters In this case the Executor shall pay 100 l. to each unless it appear the Testator intended the contrary In like manner if a man bequeaths 1000 l. to his Daughters without other words and dyes and his Wife after his death be within due time delivered of another Daughter that Posthume Daughter shall claim proportionably with the others in the 1000 l. if the Testator by his Will made no other provision for her 14. A Testator bequeaths in this manner viz. I give to A. B. 300 l. And I will that my Executors do pay 100 l. thereof out of the Arrears of Rent due to me out of such Lands naming them the other 200 l. out of such and such Goods to be sold after the Testator receives in his life time the said Arrears of Rent and Converts them to other uses and dyes without altering his Will In this case A. B. shall notwithstanding have the whole 300 l. The Reasons in Law are 1 Because it was no Condition but only a Demonstration that had relation to the Legacy bequeathed 2 Because a bare designation how or whence a Legacy may be paid set after a Legacy given makes it not Conditional 15. Suppose a Testator saith I bequeath some Money for the repairing of my Parish Church not expressing how much In this case the Legacy in favour of Pious uses is good though it be somewhat uncertain And his Executor shall expend so much Money as will suffice for the repairing thereof unless it require a vast Sum at least much too great for the Testators Estate conveniently to bear In which case it shall be presumed the Testator intended no more than his Estate would conveniently admit and the Ordinary in such case shall moderate the Sum with respect had to the Testators Estate 16. A man possessed of Goods and Chattels in England and Ireland makes his last Will and Testament and therein his Son a Minor his sole Executor and A. B. his Guardian and the Overseer of his said Will to whom he therein bequeaths 100 l. and dyes A. B. willing to have himself excused from the said Guardianship in part refuses it as to the Estate in Ireland In this case he shall lose the whole Legacy of 100 l. because the Law is That a Legatary refusing the Office or Duty imposed on him by the Will though but in part forfeits his Legacy in the whole 17. A Testator makes his last Will and Testament and therein appoints A. B. and C. D. his Executors after doth annex a Codicil to his Will and therein saith I will that A. B. one of my Executors shall give J. G. 10 l. when I shall have given him the said A. B. 100 l. And dyes without bequeathing him any such 100 l. The Questions are whether A. B. by reason of such words spoken by the Testator may have a right to that 100 l And whether he be obliged to pay 10 l. to J. G They are both answered in the Negative The reason in Law is because words meerly Enunciative relating to something that should be done in time past or to come without expressing the very thing it self signifie nothing as to a sufficient disposal of any thing which is not deduceable from any such bare Enunciations 18. If the Testator saith I give thee 100 l. when thou shalt Marry and thou art Married at that time when the Testator so made his Testament and demandest the 100 l. upon the Testators death In this case thou shalt have the 100 l. if the Testator at the giving thereof were ignorant of thy being then Married But if he then knew thereof thou shalt not have it till thou art Married a second time 19. If in two several and distinct Writings or Instruments bearing one and the same date the same last Will and Testament be found written verbatim save that in the one there is mention made of a lesser Legacy to one than there is to him in the other the lesser only is due As thus A. B. going beyond Sea makes his last Will and Testament the Tenor of which Will is exemplified or duplicated in two distinct Papers as if the one was only a Duplicate of the other only in the one of these is found a Legacy of 100 l. to C. D. But in the other a Legacy only of 50 l. to him whereof the Testator takes one with him to Sea the other he leaves at home behind him In this case C. D. ought not to have more than one of these Legacies and that the lesser also viz. That of the 50 l. only 20. A Testator being possessed of 800 l. value in Goods appoints A. B. and C. D. his Executors and bequeaths 400 l. to A. B. And after sayes whoever shall be my Executor shall pay 200 l. to J. G. and gives several other Legacies to the full value of his 800 l. Estate and dyes C. D. refuses the Executorship In this case A. B. is obliged
be certain though the Legatary dies before it comes the Legacy shall accrew to his Executors for in that Case the Legacy was due at the Testators death though not payable till that day certain be come But if the day or time be altogether uncertain the Legacy is then as if it were Conditional And the breach or non-accomplishment of a Condition in it self Lawfull and Possible doth either suspend or extinguish the Legacy And as to that frequent Condition relating to Marriage so commonly annexed to the Execution of a Legacy it is not Impertinent here to insert That albeit a Condition absolutely against Marriage is unlawfull yet not so if it be only against Marriage with such or such a Person or with such kind of Persons and therefore the Condition is good if the Testator gives his Daughter 100 l. under this Proviso That she Marry with a Merchant or a Merchants Son otherwise the Legacy to be void In which Case if she Marry first with a Merchant and after his decease with another who is not a Merchant nor a Merchants Son she shall loose her Legacy 26. Lastly The Legacy is but equivalent to a Cypher by the voluntary waiver and refusal of the Legatary declaring his dissent thereunto As also by the Actual and total destruction of the Thing it self Bequeathed for if neither the Quantity nor the Quality thereof can appear the Legacy is void Hence it is That the Bequest of a Debt is void if Payment thereof be made to the Testator in his life time otherwise if after his death it be paid by the procurement of his Executor But if the Testator himself doth exact the Debt the Legacy thereof is extinguish'd Otherwise if paid to the Executor by whose default if any other thing Bequeathed doth perish it shall be no loss to the Legatary nor any loss to him in Case the Legacy be something in general as a Horse or an Oxe not saying which or in Case the Legacy consist in Quantity as so many Bushels of Corn not saying of what Grain or in what Garner or Granary In which and other like Cases the Legacy is not void albeit the Thing so Bequeathed shall uttterly perish Upon Evidence in Trespass the Case was A. made his Will in writing and thereby Devised his Lands to E. H. and her Heirs and afterwards lying sick because the said E. H. did not come to visit him he Affirmed That E. H. should not have any part of his Lands or Goods It was the Opinion of the Court That it was no Revocation of the Will being but by way of Discourse and not mentioning his Will But the Revocation ought to be by express words that he did Revoke his Will and that she should not have any of his Lands given her by his Will Lands Devised by Will to one and after a Feofment thereof made by the Devisor to another the said Devise is Revoked by such subsequent Feofment As in the Lord Bourchers Case touching his Will made 23. H. 8. Note By all the Justices upon an Evidence to the Jury in an Ejectione Firme That if a Man hath a Lease and disposeth of it by his Will and afterwards surrenders it up and takes a new Lease and after dyeth That the Devisee shall not have this last Lease because this was a plain Countermand of his Will A Feme Sole was Seized of Lands in Socage and by her last Will Devised them to I. S in Fee and afterwards she took the Devisee to Husband and during the Coverture she Countermanded her Will saying That her Husband should not have the Land nor any other Advantage by her Will. It was Adjudged upon great deliberation that it was a Countermand of the Will the words being spoken after Marriage for the making of a Will is but the Inception thereof and takes not Effect till the Devisors death One Devised Lands to his Sister in Fee and after made a Lease to her for Six Years of the Lands to begin after his Decease and delivered it to a Stranger to the use of his Sister which Stranger did not deliver it to her in the Testators life time and she Refused and Claimed the Inheritance In this Case it was Resolved because the Devise and the Lease made to one and the same Person beginning at the same time cannot stand together in one and the same Person That it was a Countermand of the Devise But it was there Agreed by all the Justices That if the Lease had been made to any other than the Devisee they might stand together and the Lease should not have been a Revocation of the Will as to the Inheritance but only during the Term. In an Ejectione Firme upon Evidence to a Jury It was Resolved by the whole Court That if one maketh his Will in Writing of Lands and afterwards upon Communication saith That he hath made his Will but that shall not stand Or I will Alter my Will c. That these words are not any Revocation of the Will for they are words but in futuro But if he saith I do Revoke it and bear witness thereof hereby he absolutely declares to Revoke it in praesenti and it is then a Revocation And in this Case it was Agreed by the Justices That as one ought to be of good and sane Memorie at the disposing so he ought to be of as good and sane Memorie at the Revoking of it And as he ought to make a Will by his own directions and not by Questions So he ought to Revoke it of himself and not by Questions If a Man Devise 20 l. to the Poorest of his Kindred it is void by Reason of the uncertainty whom the Court shall judge the Poorest A Legacy of 20 l. given by a Testator to his Daughter to whom his Executor gave Bond in 40 l. for payment thereof according to the Will The Daughter takes Husband who sued the Executor in the Ecclesiastical Court for the Legacy The Ex-Executor pleaded payment according to the Bond and because the Ecclesiastical Judge would not allow the Plea the Executor brought a prohibition shewing by way of surmize the matter aforesaid Tanfield Serjeant moved for a Consultation because the Suit was for a Legacy which is of Ecclesiastical Cognizance And albeit the Executor pleaded Payment which is not there allowed yet he ought not to have a prohibition because Payment is a good Plea in that Court and if the Judge there will not allow it the other may appeal to the Superiour Judge and if this should be suffered in the Case of a Legacy then the Ecclesiastical Court should trie nothing But according to Gandy Fenner and Yelverton Justices the Surmize is good for the Executor by entring into Bond to the Daughter for Payment of the Legacy had Extinguish'd the Legacy and had made the 20 l. Devised a Debt Suable meerly at the Common Law and not
Husband 93. Legacies and Bequests of a Dubious sense ought to have such Construction as may render them of use to the Legataries For which Reason if a Testator Bequeaths his Debts he shall be understood to have Bequeathed his Credits In like manner if he Devise his Wood or Sylva it shall be a Devise also of the Fruit or Proceed thereof That so the Legatary may have power to cut it down convert it into Ligna and Sell the same for otherwise the Devise would be nothing worth to the Devisee 94. When the Testators sense and meaning is somewhat dark and clowdy it may be Requisite in some Cases to have due Reflections on or as the Phrase now currant is to take their Measures by the Quality of the Legatary as if the Testator should say I allow A. B. the use of some of my Horses until my Executor shall have Sold them In that Case if A. B. be a Farmer he shall not use his Hunting-Horses nor his Coach-Horses but his Cart-Horses and such only as were imployed about his Husbandry Affairs otherwise e contra if A. B. were of a more refined Quality 95. If the Testator saith I Bequeath to A. B. whatever Debts are made contracted and due to me that shall be found at my decease A. B. shall in that Case have only such Debts as were contracted at that Time when the Testament was made not such as were afterwards made or contracted The Reason is because those latter words which shall be found at my decease are not Augmentative but Restrictive as relating to the words precedent and therefore ought not to work an Extension of that Legacy least a limiting and diminuting Induction should operate an Augmentation For if less Debts were found at the Testators death than had been made to him at or before the making of his will there could no more pass by this Legacy than such much less others that were made and contracted afterwards 96. In llke manner if the Testator Bequeath all his Books to A. B. after Buys many other Books after makes another Will wherein he ratifies and confirms the first as to the Legacies therein Bequeathed Even in this Case A. B. shall not have the Books bought after the making of the first Testament Because this Confirmation in such latter Will Ratifies nothing to any Extension beyond what is adequate to the Legacy Bequeathed in the former 97. But if the Testator shall say I give A. B. all I can or whatever I can out of the Goods and Chattels which I have In such case whatever shall be afterwards acquired of that kind by the Testator is contained in such Legacy and shall enure to A. B. Otherwise in case the Testator had limited the words of the said Bequest to any certain place 98. If a Testator saith I Bequeath my things to A. B. his Money doth pass by that Bequest because of its Generality Otherwise if he saith I Bequeath my Gold and Silver to A. B. Because such words are not Generical enough to be Monies infallible continent for a Man may have very current Money that is neither Gold nor Silver 99. A Testator gives 1000 l. to his Daughters and dies After his Relict is delivered of another Daughter by that Husband Deceased That Daughter shall share with the other in 1000 l. Otherwise if the Testator had limited the Legacy to any Number of Legatees and said I give 1000 l. to my Three Daughters 100. A Testator saith I give a Portion of my Estate or a Portion of my Goods to A. B. without expressing specially what proportion In this Case he shall have the one half or Moity thereof The same Law in Case the Testator had said I give A. B. part of my Estate or I give him part of my Goods The Reason is because a Dimidiety is the most just and equallest part of the whole And the Case may so happen as that Pars shall be taken Legally in one sense as well as Figuratively in another pro toto as when a Testator Bequeaths to his Wife that part of his House he most frequented and used to live in she shal have in that case not only this or that part of the House as his Bed-chamber or the like but the whole of his Habitation that he made use of with and for his Family 101. If a Legacy be given between thee and a Child in the Womb and that Child after happen to be dead born or never born thou shalt have the whole to thy self albeit the Testator Assigned each one his entire proportion thereof 102. If a Herd of Cattle or a Flock of Sheep be Bequeathed whereof all of each save one do die the Legatary shall have that one 103. By the Bequest of Bonds or Specialties the Debts due or to be due thereon as also the right of Action for the same are Bequeathed Likewise by the Devise of a Purchase-Deed the thing Purchased together with all the Testators Right Title and Interest to and in the same doth pass to the Devisee 104. A Bequest of Wines doth convey the Vessels wherein they are to the Legatary not as if a Man in his Liquor should think for no Man else will the Vessels were part of the Wines as Meddals of Gold or Silver are part of such Mettals but because the Testators intention in the Eye of the Law seems to Bequeath them as Accessories to the Principal excepting such as by reason of the greatness of their Bulk and wide Capacity cannot without much difficulty be removed out of the Cellars where they are 105. If a Legacy be given to the Bishop of such a Diocess without naming him and he happen to die before the day for payment thereof come his Successors shall have it because it is presumed the Testator intended it not to that person so dignified but to the Dignity it self and because the Dignity is not as the Person Mortal but Sempervive by Succession For the same Reason a Legacy given to a King who dies before it becomes payable accrews to the next Successor because the Regal Authority never dies Otherwise if the Legacy were given to A. B. by name Bishop of D. because then the Person not the Dignity is the Legatary the Dignity being mention'd only for distinction 106. If a Legacy be given to the Child in the Wâ—mb and the Birth prove Monstrous that is very contrary to the common form and shape of Mankind as with a Grows Beak instead of a Nose or with the Face of an Asse instead of a better in such an ill favoured Case the Legacy is void Otherwise if it be Born only with some of the less principal Members imperfect or Supernumerary as with half a Thumb or Two Thumbs or Six Fingers on a Hand or the like But if the Birth not accidentally be imperfect as to
Condition of Superstitious Vses vests the Land in the Crown Ibid § 11. What Provision of Law in Case the Legatary die before Condition broken or the time for performance be come p. 281 § 11. Conditions Testamentary in reference to Marriage p 27 c. Conditions directly against Marriage are unlawfull with the Limitations thereof p. 342 343 § 25. Condition of Marriage is annexable to a Legacy or Devise but an unlawfull Condition thereof is void p 279 § 1. Condition of Marriage with the consent of another doth oblige the Legatary to Marry but not to have such consent Ibid § 2. Condition of Marriage with the Advice of another obligeth the Legatary to Ask it but not to follow it Ibid § 3. What in case the Legatary were Married before Ibid. § 4. p 316 § 18. Though a Condition against Marrige be void yet the Legacy is not p 280 § 5. The Canon Laws Distinction in case of Conditions directly contrary to Marriage p 280 § 9. Conditions of Non-alienation are intended only of voluntary Alienations p 438 § 17. Conditions necessary are as no Conditions Ibid § 18. Conditions implyed by Relative Pronouns Ibid § 19. Positions in Law touching Conditions p 438 § 16 to 26. Conditional Testaments how and when such p 22 23. The several kinds thereof p 23 to 27. Confidence in a Feme Covert is not transferrable to the Husband upon her death p 236. infin Consent or Delivery by an Executor requisite to a Legacy or Divise p 440 § 39 c. Corne standing is Devisable where the Land it self may not be p 225 § 2. p 304 § 13. Corporations or any Member thereof may not Devise the Land they have in right of their Corporations p 225 § 3. Costs not payable by an Executor Non-suited on Judgment against him p 104 § ult p 110 § ult p 117 § ult Given in Chancery against a Testator doth not charge his Executor p 108 § 6. Coverture nulls a Devise it may revive by a new Publication after the Husbands death p 289 § 9. Courtelage passeth by the Devise of a House p 237 in pr. Creditors made Executors p 74 to 77 They may pay themselves first the Limitations of that Rule p 75 76 § 3. Custome of London in reference to Executors or Administrators touching Debts by simple Contract p 116 117 § ult D. Deaf and Dumb naturally not Intestable absolutely p 19. Whether they may make a Devise of Lands p 226 § 3. Death of the Legatary before the existence of a possible Condition annexed to his Legacy insignificates the same p 325 § 13. Debet Detinet in what Cases And in what Cases in the Detinet only p 113 § 7 p 157 § ult Debts Bequeathed p 321 322 c. p 440 § 36 40 41. p 446 § 95. What Debts not Devisable p 440 § 38. Debts and Things in Action are Devisable by Will some only excepted p 321 § 1. Debts Bequeathed how extinguished or not p 324 § 11. Debt Bequeathed twice is due but once p 325 § 12. Debt Bequeathed to Joint-Debtors Ibid Debt Bequeathed the Executor is discharged by Assigning the Bond to the Legatary p 326. § 17. Debt is where the Bond is but upon a Contract it follows the Person p 157 § ult Where Debt upon a simple Contract may by the Custom be paid by an Administrator as soon as a Debt upon a Bond. p 116 117. § ult Debt is Assets though the Debtor be Administrator p 76 § 4. That can be no Debt in the Executor which was none in the Testator p. 107 § 6. Debt lieth not against an Executor upon a simple Contract of the Testator but an Action of the Case only p. 107 108 § 6 p 109 115 § ult It lyeth against them for Rent of Land Leased to their Testator p 115 § ult Debts by Bonds and Specialties are not Comprized in a general Legacy p 327 § 19. Whether Debts Bonds and Specialties are Comprized under the Notion of Moveables or Immoveables p 310 § 10. The Executors Method in paying of Debts p 142 c. Debts upon Record to be first satisfied p 108 § 7. In what case a Statute may be paid before a Judgment p. 137 138 § ult Debts to be paid before Legacies p 142 § 1. The Reason thereof in Law p. 440 § 45. What Debts to the Crown have Priority to the Subjects Debts p 143 § 3. Executors may satisfie their own Debts before any other of equal quality and degree p 142 § 2. What the Law is in Case of Debts for Rent upon Leases p 146 147 § 9. Declaration precedent Derogatory to the subsequent doth prevail against it p 302 § 4. An Exception to that Rule Ibid. Deed of Purchase Devised what it signifies p 448 § 103. Delegates or Judges Delegate whether they may grant Letters of Administration p 158 § ult Demonstrations false destroy not Legacies p 210 § 3 p 441 § 48. Vnderstand it of False Necessary not False Superfluous Demonstrations p 213 § 1. The difference between that and a False Cause p 214 § 2. Designation how a Legacy shall be paid makes it not Conditional nor Questionable whether it shall be paid p 315 § 14. Detinue in what Cases it lies or not p 102 § 7 § ult p 107 § 5. How it lies for an Infant-Executor against an Administrator Durante Minoritate p 162 § ult Devastavit What and in how many ways it may be in what Cases it lies the Method of proceeding therein and Execution thereupon p 134 c. Devise what p 200 § 1. Its Requisites p 202 § 2. In what Court properly recoverable p 204 § 4. Refused to be Delivered by Executors what remedy Ibid. What words or expressions sufficient for a Devise p 209 c. Wherein a Devise of Lands differs from a Bequest of Goods p. 4 § 2. Devise of a thing not in rerum Natura at the Testators death void p 292 § 20. It is as inferrable from the Testators Intention as intelligible by his expression p 295 § 36. An Omission of what the Testator said he would make a description of doth not null a Devise p. 296 § 37. The same thing twice Conditionally Devised by two Testators to several persons how or in what Case good to either or not p 297 § 41. Devisable what p. 221 c. p 311. § 15. Whether a Testator may Bequeath what is not his own p 221. § 2. What things in particular may be Devised Ibid. § 1. How the Testator may Bequeath what is his Executors p. 222 223. § 3. A Bequest to one of what was his own before Ibid. § 4. The difference between the Common and Civil Law in this point of Devising what is another mans Ibid. § 5. Goods in Joint-Tenancy are not Devisable p. 223. § 6. Devisee or Devisor who may be such p. 205 c. Deuisee must be capable of
Joynt-Tenants in what cases p. 233 § ult p. 242 § 4 p 245. A nice distinction between-such and Tenants in Common p 242 § 4. To whom Goods in Joynt-Tenancy belong at the death of either Joynt-Tenant p 86. § 2. Such Goods are not Devisable p 223 § 6. Issue A Devise made in general to the Issue void by reason of uncertainty p 233 in prin The difference between Issue Born and not Born at the time of making the Devise in point of Entail or Joynt-Tenancy p 249 § 5. Jus Representationis what it signifies p 172 § 1. In the Line Transversall or Collaterall it holds only in the Brothers Children not in their Grand-children p 177 § 1. K. Kindred and Consanguinity how they differ p 170 § 3. Collaterall Kindred how far and to what degree they may succeed each other p 179 § 4. Kindred or of Kin to the Testator at the time of his death sufficient to take by a Legacy to his Kindred though they were not such when the Will was made p. 444 § 80. L. Lands Devisable by Will p 224 c. What and how much thereof Ibid § 1. What may pass by a Devise under that Notion Ibid § 2. By and to what persons Land is Devisable or not p 225 to 228 § 3 4. By what kind of Testament p 228 § 5. Lands may pass by Will where no Executor is named p 5 § 4. Lands may by the Common Law be Devised to whom Goods cannot by the Civil Law be Bequeathed p 226 § 4. A Devise of another mans Land void p. 228 § 5. Land twice Devised in the same Will to several persons how both may be good p 230 231 § 4. Whether Lands new purchased pass by a Will formerly made p 231 § 6 ult Leases for years pass not by a Devise of Lands if the Devisor had any Lands in Fee Ibid § 6. Customary Lands may pass by a Will without Writing other Lands not p 4 5 § 3. Lands Devised on a present Payment or on Payment out of the Profits thereof what different Estates they create p 254 § 6. Lands Devised with Limitations and upon Condition p. 266 c. Land Devised by a Coppyholder to his Wife p 274 275 § 7. Land Devised for life by the Husband to the Wife not for her Jointure no Barre to her Jointure p. 282 § 14. How the Devise of another mans Land may become a good Devise p. 228. § 5. Devises of Land void or not p 229 c. p. 441 § 47. Several Cases in Law touching Lands Devised p 288 c. Lambs Bequeathed understand such as are under a Year old p 441 § 54. Lease simply for Lives belongs neither to the Heir nor to the Executor p. 86 § 4. Lease made in trust by a Woman for her use who after Marries enures not to her Husband but to her Executor when she dies p 99 § ult Leases of Terms of Years Devised p. 256 c. Though Devised for 99 Years yet determinable upon one Life Ibid. § 2. Chattell-Leases pass not by a Devise of all the Lands p 257 § 4 By a Lease for Years Devised for Life doth pass the whole Term yet is it not an Estate for life Ibid. § 5. By what words a Lease and the Interest of the Lessee may be Devised p 257 258 § 6 The Residue of a Term is as Devisable as the Term it self p 258 § 7. A Devise of a Lease for Years may be in Law which doth not so appear in Fact p Ibid § 9. The whole Term though not named shall pass by a Devise where no other can pass by Implication p 259. § 10. Legacy what p 200. § 1. What Words or Expressions sufficient for a Legacy p 209 c. Whether the time of making the Testament or of the Testators death be the more considerable in Legacies p 202 203. § 3 p 227 § 4. In what Court Legacies are properly Recoverable p 204 205 § 4. The difference between Bequeathing a Legacy to one whenhe shall be of full Age and to one to be Payed when he shall be of full Age. p 281. § 12. Legacies and Devises in respect of Marriage p 279 c. What of her Legacy shall the Wife have if she Marry after her Election to the contrary p 280. § 8. Legacies between Baron and Feme p 279 c. Legacies grounded upon wrong Suppositions in the Testator inherent in the very Body and Substance of the Legacy it self do not oblige his Executors p 305. § 17. Several Sums Bequeathed to the same Party in two Instruments both otherwise containing the same Will the lesser only is due p 316. § 19. Legacy forfeited upon non-performance of some duty enjoyned p 446. § 92. Legacies referring to Debts and Cases in the Law touching the same p 321 c. They fall under four Heads p. Ibid. § 2. Legacies by Creditors to Debtors e Contra. p. 322. § 4 5. to § 10 A Legacy Bequeathed in fraudem Legis is void p 320. § ult A Legacy of a Debt is extinguish'd by payment of that Debt to the Testator p 324. § 11. Whether the Testators not having what he Bequeaths voids the Legacy p 330. § 8. The same Thing twice Bequeathed or Bequeathed unto two distinctly which of them shall have it p. 331. § 9. A Legacy given indistinctly to A. B. and there be two of the name who shall be preferred to the Legacy Ibid. § 10. If a Single Legacy be given only to one though it be Devisable yet it is not Dividable p. 332. § 15. ult Legataries who are incapable of being p. 206 207. § 2 A Legatary refusing his Office or Duty imposed on him by the Will though but in part looses his Legacy in the whole p. 316. § 16. In what case the Legatary shall have his Legacy presently though it be given him when he shall die p. 280. § 6. What the Legatary that Marries shall have when more is Bequeathed him in case he Marries not than if be doth Marry p. Ibid. § 7. The Legatary must expect the Executors delivery of his Legacy p. 440. § 39. How one may be a Legatary in Construction of Law only p. Ibid. § 42. Whether a Legatary-Executor may after Debts paid first satisfie himself p. 317. § 20. A Legatary if capable at the Testators death sufficient for the Legacy though he were not so when the Will was made p. 446. § 88. Letter from one friend to another sufficient to contain a Will or Devise p. 212. § ult p. 443. § 73. Letters of Administration in what case they may be granted p. 154 § 7. To whom p. 151. § 2. They may be granted in England by a Bishop of Ireland p. 155. § ult Whether they ought to be shewn in Court by Administrators in Actions brought by them p. 103 104. § ult Whether it be necessary to set forth in a Declaration by whom they were
440. § 43. It may be void also upon the Legataries non-performance of some duty enjoyned him by the Testator p. 445. § 84. Use or Occupation of a thing is Devisable for any time but the thing it self not Devisable for any time less than Forever p. 301. § 1. What Uses are Devisable p 288. § 2. Usurers Manifest and Notorious not capable of being Legataries p 206. § 2. W. Wages Servants Wages of what kind payable by Executors p. 106. § 2. They are payable before Legacies p. 147. § 10. Warranty cannot be made by Will p. 230. § 3. Wast what acts do amount to a Wast how many ways it may be Committed and how it shall charge the Executor de bonis proprijs p. 135 c. § 2 3 4. Wast Committed by one Co-executor shall not charge another Ibid. § 4. vid. Devastavit Wedge of Silver Bequeathed the Vessel after made therewith shall pass thereby p 303. § 8. A limitation thereof Ibid. Wife her Advantage by the Civil Law if she lives and dies in her Widowhood p 280 281. § 10. If she plays the Whore she looses her Legacy p 341. § 22. Two Wives in Being at once the first only shall have the Legacy p 227. § 4. Will or Last-will what relating properly to Land p. 2. § 2. Written without the Testators precedent Order or Subsequent Affirmance void p. 237. § ult The Will of the Testator is a Law to himself p. 302. § 4. If subordinated to the Absolute Will of his Executor all Legacies therein Bequeathed are void p. 312 313. § 3 4. A Testator by making his Executors Will Absolute makes his own Will insignificant Ibid. p 440 § 44. The Testators Will is Ambulatory to the other world p. 341. § 22. Will Tacite and Implicite in the Testator sufficient to null a Legacy not an Executorship so easily p. 341 § 23. Wills are capable of Devising what Grants and Deeds are not of Conveying Or a Man may Devise by Will an Interest which he could not Convey by any Act Executed in his life time p 258 § 8. Wines Bequeathed a Bequest thereof contains the Vessels which contain them p. 448 § 104. Woman Covert in what Sense Testable or not p. 15 to 19. Whether the Husband may Compel her to Accept the Executrixship Or whether she may accept it without or against his Consent p 72 § 1 2 5. Or whether he may make himself her Executor vid. Feme-Covert Wood what passeth by a Devise thereof or by that Name p 442 § 62. Wooll Bequeathed what is to be understood thereby p 441 § 59 60. Words of the Testator how to be Construed p 437 438 § 8 to 16 p 439 § 27 to 31 § 34. They are by Law ever Accommodated to the Testators mind and meaning p. 255 § 11. Any Words plainly Declaratory of the Testators Intention may serve for a Devise or Testamentary Disposition p. 297 298 § 45 p 317 § 21 22 p 445 § 85 86. Words Comprehensive are not to be strained beyond a Legal Rationality p. 290 291 § 16. Generall Words convey more by Implication than Expression p. 302 § 5. Words meerly Enunciative signifie little or nothing p. 316. § 17. How the Copulative word And shall be taken for That is p. 308 § 3. How the Disjunctive word Or in Devises is frequently understood for the Conjunctive word And. p. 299 § 50. How the Word Or shall be taken for And to Create an Estate-Tail by Devise 250 § 10. How the word Shall is to be taken for Should in the Devise of a Term. p 256 257 § 1. How the Word All is to be understood in certain Legacies p 311 § 14. In what Case the Word If doth not amount to a Condition p 216 § 5. How the words If Untill So long as do vary the Sense p 242 243 § 72. What the Words More than this do signifie in a Devise p 319 § 27. Of what force the Word Ought may be in some Cases p 326 § 14. In what Cases the Words Have or I have shall be taken in the Present Tense p 259 § ult In what case the Word Paying shall be Construed only as a Limitation and not as a Condition p 266 267 § 5. What shall pass in a Devise by the Word Appurtenances p 274 § 6 Writings which concern the Inheritance do belong not to the Executor but to the Heir p. 82. § 6. FINIS ERRATA Page Line Errors Rectified 080 32 And dies And D. dies 065 22 Administrator Executor 157 10 To By 232 11 Devise Dower 280 45 His Her 286 09 Of After 290 43 C. D. C. B. 291 26 C. D. C. B. 295 27 Issuers Issues 324 11 No Not 327 18 To Do 302 42 She He 334 39 Are All 340 11 It Its 449 05 Society Saciety 229 20 The words Without Surrender Are omitted 292 11 Death 436 42 Away a L. 1. ff de testa b Mant. de con ult vol. lib. 1. tit 4. n. 10. c Ibid. tit 8. d l. 10. ff de jur Cod. Plow Com. 185. in Woodward Darcyes Case e Inst de haered l. 1. l. 2. ff de Vulg. Substit l. haered palam ff de Testam Broo. tit Execut. 20. Six Inferences from the definition of a Testament Such a Testament as whereto the appointment of an Executor is essential doth properly refer to Goods and Chattels for Lands by vertue of the Statute may be devised by a Will in writing where no Executor is named f Sheph. Epit. cap. 155. g D. D. post glos in dict l. 1. ff de testa h Mantic. ubi sup tit 5. i Aul. Gel. lib. 6 c. â—2 to Serv. Sulp. Sealing not absolutely necessary to a Will k Offic. ex cap. 2. l Ibid. a L. hac consult C. de Testa b l. 1. ff de iniust rupt irrit testa c Myns Inst de testa ordin §. fin d Mant. ubi sup l. 1. tit 57. a Tract de Rep. Angl. lib. 3. cap. 7. Lynw. Const in cap. Stat. verb. probatis tit de testa lib. 3. Bract. de Leg. Consuet Angl. l. 2. c. 25. b Mant. ubi sup lib. 6. tit 3. nu 9. in fine c St. H. 8. an 32. cap. 1. a Myns Inst de testa ord §. Sed cum paulat b Myns ibid. §. fin c L. hac consult Cod. de Testa glos ibid. d Auth. non observato Cod. de Testa DD. ibid. e Offic. Exec. cap. 2. f 6 H. 6. Dyer 32. g Offic. Exec. ubi supra h Swinb part 1. §. 11. n. 5. i Stat. H. 8. an 32. c. 1. k Dyer iâ— Ca 〈…〉 inter Sack vile Browne l Ibid. sup ult vol. cujusdam Hanton m Inst de test ordinan §. fin l. heredes ff de testa n l. hac Consultat §. per nuncupat C. de testa o Stat. 14 H. 6. 5. 5 H. 5. 〈◊〉 M. 15. â—6