he should have all the Goods and the Kindred be defrauded which is not reasonable and therefore such Administration shall be void CHAP. XXXV Of Succession in the Right Line Ascendent 1. Whether Parents specially the Mother be next of Kin to her Child 2. The method of Succession by the Civil Law in the Right Line Ascendent 3. How the Succession goes by the Civil Law when some of the Collaterals concurr with those of the Ascendent Line 4. Whether by the same Law the deceaseds Brothers and Brothers Children may concurr with their Parents to the Succession 1. NOtwithstanding that Maxime at the Common Law That Inheritance cannot Lineally Ascend yet is the Parent more nigh of blood to the Child even by that Law than is the Uncle And by the Civil Law as the Son and Daughter be in the first degree of Kindred in the Line Descendent So the Father and Mother are in the first degree of Kindred in the Line Ascendent To constitute a Kindred it is sufficient that the Relations do centre and agree in aliquo Tertio or flow from one common Head or Fountain or spring from the same Stock or Root Thus the Father and the Daughter the Mother and the Son the Mother and the Daughter the Father and the Son they flow from one and the same Fountain they spring from the same Root viz. the Grand-Father and therefore are of Kin each to other And by the Laws of this Realm Parents are reputed to be of Kin to their Children and the Mother to be of Kin to her Child and therefore by the Statute Law if a man seized of Lands in Socage his Heir being within the Age of Fourteen years In this case the Mother shall have the Wardship of her Son as being next of Kin to whom the Lands cannot descend Indeed by the Law of the twelfth Table the Mother could not Succeed to her Children nor they to her But this is now altered the Law now being otherwise It cannot be denyed but that this Question viz. Whether the Mother be of Kin to her Child hath been much controverted amongst the ablest Lawyers and in the close of all after much dispute it hath been adjudged in the Negative viz. That the Mother is not of Kin to her Child As in that remarkable of the D. of Suffolk in Ed. the sixth's time wherein an Administration was granted away from the Mother to a Sister of the half blood According to which Judgement divers other Administrations for several years after were granted away from the Mothers to the Brethren and Sisters as next of Kin. Notwithstanding all which the Law indeed being all that while quite otherwise than was practised at last the Truth prevailed and the practice now frequent and Judgement every where given for the Mother that she is of Kin to her Child who dying Issueless and Intestate the Administration of his Goods may be committed to her as next of Kin according to the Statute Or if he be Issueless but not Intestate and maketh his Kin his Executor or bequeath the residue of his Goods to his Kin the Mother in this case is Admissable to the Executrixship as next of Kin to her Child or on the same account to enjoy the Legacy during her life and after her death then the other next of Kin. 2. If the deceased leave no Children they in the Right Line Ascendent do by the Civil Law succeed him but in this Order First the Father and Mother succeed equally and exclusively to all others that are of a more remote degree or the Mother only if the Father be not alive or the Father only if the Mother be dead And if there be several Parents of a distinct Line who are equal in degree but unequal in number they succeed according to their Stock or Root not according to their number thus the Grand-Father by the Fathers side shall have as much as both Grand-Father and Grand-Mother by the Mothers side But if the Parents be in an unequal or different degree then the right of Representation doth cease and the nigher shall ever exclude the more remote Thus the Father excludes both the Grand-Fathers by the Fathers and Mothers side and the Mother both the Grand-Mothers 3. There are also some of the Collateral Line who by the Civil Law do concur with those of the Ascendent Line for the Brothers and Sisters of the deceased do succeed him together with the Father and Mother And the Succession when the Brothers concur is proportioned according to their number But if there be divers Kindred of the same degree to the Intestate whose Father is dead whereof some are by the Fathers side others by the Mothers side as if the deceased leave a Grand-Father by his Fathers side and a Grand-Father and Grand-Mother by the Mothers In this Case the Succession is not proportioned according to their number but it is to be divided into two equal parts and the Grand-Father by the Fathers side draws the one Moity the Rest the other Moity And if it happens that together with those of the Line Ascendent and with Brothers of the whole blood to the deceased there be the Sons of other Brothers of the whole blood deceased In this Case the Sons of such Brothers deceased shall Succeed together with the others but not according to their Number but according to their Stock or Root that is those Sons of such deceased Brothers shall among them all have only that proportion which would have come to their Fathers if they had been alive Here Note that this is meant only of the Children of such Brothers deceased therefore the Grand-children and others more remote are not admitted together with the Parents and Brothers and Sisters of the deceased 4. Brothers and Sisters only of the half blood to the deceased do not concur with the Parents in the Succession Thus the Grand-Father in Succession to his Grand-child doth exclude the Brothers of half blood to such Grand-child unless the Brothers be of the same blood and of the same side with such Grand-Father And if a man dye Intestate leaving a Mother and the Children of his Brothers deceased behind him the Mother alone shall Succeed to the Intestate unless there be other Brothers of the deceased then living for then the said Children of the said Brothers deceased shall concur with the Mother Thus Brothers and Brothers Children may concur with their Parents to the Succession of the deceased but all other Collaterals are excluded by the Parents insomuch that the Uncles both by the Fathers and the Mothers side are excluded by the Grand-Father and Grand-Mother of the deceased CHAP. XXXVI Of Succession in the Line Transversal or Collateral 1. The Line Collateral is Two-fold In which Line the Jus Repraesentationis holds only in Brothers Children not in their Grand-Children 2. Regularly the whole
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
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.
to rest in Peace Vide 4. Ed. 6. tit Estates 78. 29. H. 8. Br. Testam 18. Dyer 371. Wellock Hamonds Case 32. 33. Eliz. Cited in Borastons Case Co. 3. 20 21. And Colliers Case Co. 6. 16. A Man by the Premises of his Will Deviseth his Land to I. S. in Fee and by the Sequele he Deviseth the same Land to I. N. in Fee they both shall take by this Testament and shall be Joynt-Tenants A Devise made Canonicis Ecclesiae Catholicae Pauli Lond. in perpetuum is a good Devise to all the Canons joyntly in Fee and the Survivor shall have the Entierty the Law is otherwise in Case of a Devise made Civitati Lond. in perpetuum the Corporation of the Mayor and Commonalty shall take by this Devise A Man hath Two Wives and he Deviseth his Land to his latter Wife in Fee the first Wife shall have it Likewise if one hath Two Sons called I. and one of them is a Bastard and Born before Marriage and he makes a Devise to his Son I. the Legitimate I. shall have it and not the Bastard A Man hath Issue a Son and Land is Devised to the Father Habend sibi Haered de corpore suo Legitime procreand and after the Devisee hath Issue another Son the second shall have the Land A Man Seised of Three Messuages Devised by his Testament to his Son A. one of them Naming it and A. to enter after his Wives death and Devised another of the Messuages to his second Son paying 10 l. to his Sister and he to enter at his Age of 21. Years and Devised the Third Messuage to his Third Son in like manner as to his Second Son And after in his Testament willed That if either of his Sons dyed before 21. Years of Age that then his part should be divided among the Survivors and each of them to be the others Heir they all attain to the full Age and the Two Younger Sons paid their Sister the several Sums as was appointed in the Will The Question being what Estate the Two Younger Sons had in those Messuages Devised them by the Will it was held a Fee-simple CHAP. X. Certain Cases touching Devises of Land by way of Entail 1. How Lands Devised by way of Entail may happen to be devested out of one and be vested in another upon the birth of an Issue in Tail 2. Tenant in Tail may not by any Devise Condition or Limitation be Barred from Alienating by suffering a Common Recocovery 3. A Difference in Point of Entail between Devises by Will and Grants by Deed. 4. The several ways of Entails by Devise with the difference between Devising Semini suo and Sanguini suo 5. The Question whether Issue born or not at the time of making the Devise may put a difference between an Estate-Tail and Joynt-Tenancy 6. What shall be a Fee-simple by Deed which is but an Estate-Tail by Devise 7. In what Case the Younger Son may have Fee-simple and the Elder but an Estate-Tail 8. Otherways how an Estate-Tail may be Created by Devise 9. Instances of Law for further illustration of Entails by way of Devise 10. In what case the Word Or shall be taken for And to Create an Estate-Tail by Devise 11. Other Cases of Estates-Tail by Devise with Cross-Remainders 12. An Estate-Tail by Devise with implyed Remainder 13. How there may be a Devise of an Estate-Tail of Rent as well as of Land and how a Tail limited to some Lands shall not extend to others therewith Devised 1. A Man Seised of Lands in Fee Devised them to his Wife for life and after to his Two Sons if they had not Issue Males for their lives and if they had Issue Males then to their Issue Males and if they had not Issue Males then if any of them had Issue Male to the said Issue Male The Wife dyed the Sons entred into the Lands and then the Eldest Son had Issue Male who afterwards entered the Younger Son put out the Issue In this Case the Lands by the birth of the Issue Males are divested out of the Two Sons and vested in the Issue Male of the Eldest and he hath an Estate-Tail therein 2. A Man Seised of Lands in Capite Devised them to his Wife for life and after her decease his Son John to have it and if his Son John marry and have by his Wife any Issue Male of his Body Lawfully begotten then his Son to have it if no Issue Male then his Son Thomas to have the House and if Thomas marry having Issue Males of his Body his Son to have the House after his decease And if any of his Sons or Issue Males go about to Alien or Mortgage the House then the next Heir to enter c. In this Case it was 1 Resolved That the Sons had an Estate-Tail in them severally and to the Heirs Males of their Bodies for that these words if he have no Issue Male his Son Thomas to have it are sufficient to create Tail to John and so of the rest 2 Resolved That no Condition or Limitation be it by Act Executed or by Limitation of Use or by Devise by last Will can Bar Tenant in Tail to Alien by suffering a Common Recovery 3. If a Devise be made of Land to A. B. and the Heirs Males of his Body and he hath Issue only a Daughter who hath Issue a Son the Son shall not take by this Devise Or if such Devise be made to him and the Heirs Females of his Body and he hath Issue only a Son who hath Issue a Daughter she shall not take by this Devise And here Note That in point of Entails there is a Difference between Devises by Will and Grants by Deed for if a Devise of Land be made to A. B. and to his Heirs Males by this Devise A. B. hath an Estate-Tail Otherwise it is if such a Limitation be made by Deed for if one by Deed give Land to another and his Heirs Males by this the Donee hath a Fee-simple and his Heirs General shall have it But if a Devise of Land be to A. B. and to the Eldest Heirs Females of his Body by this Devise all his Daughters and not one of them only shall have it And if a Man Devise his Land to his Wife for life and after to his own right Heirs Males and he hath Issue Three Daughters whereof one after his death hath a Son In this Case and by this Devise the next Collateral Heir Male of the Devisor and not the Son of the Daughter shall have the Land If a Man Devise his Land to A. B. and to his or to the Heirs Males or Heirs Females of his Body or of his Body begotten or to him and his Issues Male or his Issues Female or to him and the Heirs Male of his Body begotten on M. or to him and E. his Wife and the Heirs
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.
One Devised all his Lands to another and the Heirs of his Body begotten and after in the same Will Devised That if the Devisee die the said Lands should remain to another in Fee The Court held That the Devisee hath notwithstanding an Estate Tail by the first words and no Estate pass'd by the last words One Devised his Land to W. his Son for Term of his Life and after his decease to the Men-children of his Body and in case the said W. dyed without any Man-child of his Body that then the Land should remain to another c. The Testator dies W. dies without Issue Male of his Body c. and the Question was What Estate he had the Justices of the Bench held that he had an Estate to him and the Heirs Males of his Body F. Seised of Land in Gavelkind had Three Sons and Devised part to one part to another the other part to the Third and if either of them dyed without Issue the other should be his Heir It was Adjudged an Entail in each and a Fee-simple by the words Heir to other And so it was Adjudged Hill 32. Eliz. in Carters Case C. B. If a Devise be made to one and his Heirs and in Case that he hath Issue a Daughter that she shall have the Lands If the Devisee hath Issue a Son and a Daughter and die the Son shall have the Land and although the Daughter afterwards take a Husband and hath Issue a Son he shall not eject the other CHAP. XI Certain Cases in Law touching Devises of Land for Life only 1. A Devise of Land to one not saying How long is an Estate only for life 2. Power of Distraining Devised to one without other words on Non-payment of a certain Annual Sum is only an Estate for Life 3. A Devise of Land to one and his Heir in the Singular Number or to one and his Children is but an Estate for life 4. Several Instances of Law touching Estates only for Life by way of Devise 5. Several Instances of Estates for Life by Implication Devised 6. A Devise of Land to one thereby obliged to a present Payment Creates a Fee-simple But if Payment be to Issue out of the Profits of the Land Devised it makes only an Estate Tail 7. A Devise of an Estate for Life in Reversion 8. A Devise of Two Estates for Lives the one to some in Being the other to others in Reversion 9. A. Devise of Lands in Esse or Posse Conditioned upon an Annual Payment to be made by the Devisee during his or her life which Devise is made by one in the Remainder in Fee and not in Possession doth pass an Estate only for life 10. A Devise by general words of all a Mans Estate Mortgages c. may pass as to the Real no more than an Estate for Life and not a Fee by Implication 11. The Law ever accommodates the Testators words whatever they be as nigh as possible to his intent and meaning 1. IF a Man Deviseth his Land to A. B. and say not how long nor for what Time by this Devise A. B. hath an Estate only for Life in the Land But if a Man Devise his Land to A. B. and his Assigns without saying For ever it hath been a Question whether he hath only an Estate for Life as was held by some or a Fee-simple as hath been Affirmed by others 2. In the latter part of the last Chapt. it was said That it was an Estate Tail of the Rent if one Devised to A. B. that if he and the Heirs of his Body be not paid 20 l. Rent yearly he and they shall distrain But now if the Devise only be That if A. B. be not paid 20. l. yearly he shall distrain c. by this Devise A. B. hath only an Estate for Life Likewise if one devise a Rent of 10 l. out of his Land to be paid quarterly and say not how long the Rent shall continue this is but an Estate in the Rent only for Life 3. If one Devise his Land to A. B. for his Life or to him without any more words or to him and his Heir in the Singular Number or to him and his Children he then having Children By all these and such like Devises A. B. hath only an Estate for life in the thing Devised And if one Devise That A. B. shall have and occupy his Land in D. and say not how long by this Devise A. B. shall have the Land as aforesaid only for life But If I Devise that A. B. shall enter into my Land and say no more by this Devise A. B. hath no Estate at all but power to enter into the Land only 4. A Man having a Son and a Daughter dies Lands are Devised to the Daughter and the Heirs Females of the Body of the Father by this Devise the Daughter hath only an Estate for her life for there is no such person for she is not Heir Likewise if one Devise his Land in D. unto A. B. for life and after to the next right Heir in the Singular Number and to his right Heirs for ever by this Devise A. B. hath only an Estate for life Or if one Devise Land to A. B. for life and after to the next Heir Male of A. B. and to the Heirs Males of the Body of such next Heir Male by this Devise also A. B. hath but an Estate only for life But if he Devise his Land to A. B. for his life and after to the Heirs or to the right Heirs of A. B. by these Devises A. B. hath the Fee-simple of the Land And if it be to him for life and after to his Heirs Males then he hath an Estate Tail But if one Devise Land to F. G. and M. his Wife and after their decease or the Remainder to their Children by this Devise whether they have or have not Children at the time F. G. and M. his Wife have Estates only for their lives 5. If one Devise his Land to A. B. in Fee after the death of C. D. being his Son and Heir apparent by this Devise C. D. hath an Estate for life by Implication and till the Devise take effect the Law gives it to him by descent The Law is the same where one doth devise his Land to A. B. after the death of his Wife by this Devise the Wife hath an Estate for life by Implication Likewise if a Man Devise in this manner I give my Goods to my Wife and that after her decease my Son and Heir shall have the House where the goods are it is held That by this Devise the Wife hath an Estate for life in the House by Implication But if a Man Devise his Land to A. B. after the death of I. G. a Stranger to the Devisor it seems that by this Devise I. G. hath no Estate at all by Implication
Rent where none is in arrear and after Deviseth his Reversion this Devise is not good 3. A Man possessed of a Term for 40. Years Devised that his Eldest Daughter should have the same to her and the Heirs of her Body the Remainder if she dyed without Issue Within the Term to C. his second Daughter in Tail The Eldest Daughter took Husband and dyed within the Term without Issue Her Husband Sold the Term. It was the Opinion of the Court That his Sale thereof was good and that the younger Daughter had no Remedy for it because it was a void Remainder being of a Term which was a Chattel-real and so is to go to the Husband 4. A Lease was made to A. for 41. Years if he should so long live and if he dyed within the said Term that then his Wife should have it for the Residue of the said Years It was held That the limitation to the Wife in Remainder was void for that the Term ended by the death of A. and then there was no Residue to remain to his Wife 5. A Man possessed of certain Goods Devised them by his Will to his Wife for life and after her decease to I. S. and dyed I. S. in the life time of the Wife did Commence Suit in a Court of Equity there to secure his Interest in Remainder A Prohibition was granted in this Case and the Reason was because a Devise in Remainder of Goods was void and therefore no Remedy in Equity for Equitas sequitur Legem It was agreed That a Devise of the Use and Occupation of Lands is a Devise of the Land it self but not so of Goods for one may have the Occupation of them and another the Interest in them 6. Suppose a Man Deviseth a Reversion depending upon an Estate for life to the Parson of D. and to his Successors if the Parson die and after a new Parson be made and the particular Tenant die also the new Parson shall have it Also if a Man Devise Land to one for Term of life the Remainder over in Fee and the Devisee for life refuse yet he in the Remainder may enter but if the Will were That the Executors shall make a Lease for life the Remainder over in Fee and they offer to make a Lease accordingly and the Lessee refuseth he in the Remainder shall not have the Remainder 7. I. S. hath issue Two Sons and dyeth the Elder hath Issue a Daughter who hath Issue a Son and dyeth Land is given by Testament to one for life the Remainder to the next Male of the Body of I. S. begotten the second Son of I. S. shall have the Land and not the Son of the Daughter It would be otherwise if the Remainder were so Entail'd by Deed. 8. If Land be Devised to one for life the Remainder to the Church of D. the Parson of the said Church shall have it And if a Man willeth that after 20. years after the death of the Devisor I. S. shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor 9. A Man Deviseth his Land to his Daughter and Heir being a Feme Covert and to the Heirs of the Woman the Reversion over in Fee and dyeth the Husband refuseth to take by the Devise he in the Remainder entereth he shall retain the Land during the lives of the Husband and Wife but after their decease he Issue of the Wife may enter upon him 10. A Man Seised of Land in Fee hath Issue Two Sons and a Daughter the Father Deviseth the Land to his Wife for Term of life the Remainder propinquioribus de sanguine puerorum of the Devisor the Daughter hath Issue and dyeth the Issue of the Daughter shall have this Remainder and although that the Sons have Issue after yet their Issue shall not have it 11. A Man hath a Term of a Hundred Years to come and he Deviseth this to one for Term of life the Remainder over to I. S. this is a void Remainder it were otherwise if the Devise were that the Devisee shall have the Occupation of the Land during his life the Remainder over 12. A Lease is made for life the Remainder over in Fee reserving Rent by Indenture and for default of Payment that it shall be Lawful for the Lessor to enter and detain during the life of the Lessee he Re-enters for the Rent Arrear he in the Remainder Deviseth the Remainder such Devise of the Remainder is void 13. If Land be given to Two Persons Habendum to the one for life and after his decease to the other in Fee he that hath the Fee may Devise his Reversion thereof Likewise if Land be given to one for life and that after his death it shall descend to I. S. in Fee he may Devise this Remainder Or if a Lease be made dummodo solverit 10 l. to the Lessor for his life he may Devise the Reversion with the Rent Or if a Lease be made to an Infant or Feme-sole for life the Remainder in Fee and the Infant at his full Age or the Feme after Coverture disagree he in Remainder may Devise his Remainder 14. If the Fee-simple of Land be Devised to one the Remainder cannot be Devised to another albeit the first Devise be but Conditional And therefore if a Man Devise his Land to A. B. in Fee so that he pay 100 l. to C. D. And if he fail that then it shall remain to G. D. and his Heirs this Remainder to C. D. is void for upon the Failure of Payment by A. B. the said C. D. may not enter and have the Land but the Devisors next Heir Likewise if Land be Devised to F. G. and his Heirs and if he die without Heirs that then it shall remain to I. M. and his Heirs this is a void remainder 15. A Man may Devise a Term of Years by way of Remainder and the first Devisee cannot hinder the second of the Remnant of the Term. But yet a Man possessed of a Term of Years cannot Entail it by his Will And therefore if a Man Devise his Term to A. B. and his Heirs or to him and the Heirs of his Body or to him and his Issue the Remainder to B. C. this Remainder is void and the Devise is good for the whole Term of Years to A. B. and his Executors 16. A Man Seised of Two Acres in several Towns in one County that is of the one for life and of the other in Fee and maketh a Feofment by Deed of all his Lands in the same County and makes Livery in the Acre in Fee in the name of both the Lessor notwithstanding this may Devise the Reversion of the Acre for life 17. If a Man grants a Rent-charge out of Lands devisable to one for life the Remainder over to the Grantor and his
right Heirs and after the Grantor Devise the Land to a Stranger in Fee and die the Heir of the Devisor may Devise the Remainder of the Rent in Fee 18. A Lease for Term of 100. Years is made to a Bishop and his Successors he maketh a Lease for life Rendring Rent to him and his Successors and after he Deviseth the Reversion with the Rent in Fee this is a good Devise for the Reversion but not for the Rent 19. If a Man having Two Sons and a Daughter Devise his Land to his Wife for Seven Years the Remainder to his Younger Son and his Heirs and if either of the said Two Sons die without Issue of their Bodies the Remainder to the Daughter and her Heirs and the Younger Son die in the life Time of the Father and after the Father die in this case and by this Devise the Daughter hath a good Remainder but it seems the Elder Son hath first an Estate Tail by the Intent of the Devisor 20. If Land be Devised to A. for life the Remainder to B. for life the Remainder to I. S. in Fee in this Case if B. be a Person incapable of a Devise then he in the Remainder in Fee shall take presently after the first Estate for life ended And if the Devise be to a Person incapable for life the Remainder to I. S. in Fee then shall I. S. take presently 21. If a Man Devise his Land to two persons by name and the Heirs of either of their Two Bodies and for default of such Issue the Remainder to the right Heirs of the Devisor after the Devisors death one of the said Devisees dies without Issue the other Devisee hath Issue and dyeth In this Case and by this Devise the issue of such surviving Devisee shall have a Moity and no more of the Land 22. A Lease is made to I. S. for the Term of the life of I. N. the Remainder to the same I. N. for Term of life of the said I. S. I. N. in Remainder releaseth all his right to the said I. S. and dyeth In this Case the Lessor may Devise the Reversion And if a Man who hath a Reversion Deviseth this Reversion by the name of all his Inheritance or Hereditaments in D. it is a good Devise 23. If a Man having Issue Three Sons A. B. and C. doth Devise his Land to C. the Remainder to the next of Blood to the Testator In this Case and by this Devise A. shall have the Land after the death of C. as the next of Blood Likewise if a Man having Four Daughters Devise his Land to the Youngest in Tail the Remainder to the next of Blood by this Devise the Eldest Daughter and not all the rest shall have the Land after the Estate Tail Also if a Man hath Two Sons and a Daughter who hath Two Daughters Devise his Land to a Stranger for life the Remainder to his second Son for life the Remainder in Fee to the next of Blood to his Son in this Case if the Eldest Son die without Issue the Daughter and her Daughters shall have the Land 24. If Land be Devised to A. for life the Remainder to B. and the Heirs of his Body the Remainder to C. D. and his Wife and after to their Children by this Devise C. D. and his Wife have Estates for their Lives only and their Children after them Estates for their Lives Joyntly And albeit they have no Children at the Time yet every Child they shall have after may take by way of Remainder If one Devise his Land in this manner viz. I give my Land to A. in Fee-simple after his decease to B. his Son who is his Heir apparent By this Devise A. hath an Estate for life first the Remainder to his Son for his life the Remainder to the Heir of A. in Fee-simple One Devised his Land to I. S. from Michaelmas following for five Years Remainder after the Plaintiff and his Heirs He dyed before Michaelmas The Question was Whether this were a good Remainder Because it could not enure instantly by his death for it may not begin until the particular Estate which was not to begin till after Michaelmas and a Freehold cannot be in Expectancy But all the Court held That it very well might Expect For in Case of a Devise the Free-hold in the mean Time shall descend to the Heir and vest in him Wherefore without Argument it was Adjudged accordingly and that the Remainder was good If one Devise a Personal Chattel to one for life the Remainder over to another it is a void Remainder If a Man Devise a Term to one for life the Remainder to another for life with divers Remainders over The Executors Consent to the first Devisee will be a Consent as to all the other Remainders Or in Case a Man Devise a Term to one and a Rent thence issuing to another and dies the Executors Consent to the Devise of the Term is an Assent also as to the Rent If an Estate be given to the Husband and Wife and the Heirs of their Two Bodies the Remainder to the right Heirs of the Husband he may Devise that Remainder to his Wife CHAP. XIV Touching Devises of Lands with Limitations and upon Condition 1. The Condition of a Devise of Land not written in the Testators Life Time makes the whole Devise as void as if the Devise it self had not been written 2. A Fee-simple of Remainder upon Condition by way of Devise 3. In what Case the Executors of a substituted Devisee cannot claim the Lands Devised under Limitations 4. A Condition or Limitation may not continue a Devised Estate for part and defeat it for the residue 5. In what Case the word Paying shall be construed only as a Limitation and not as a Condition 6. Not he in Remainder but the Heir shall take the advantage of a Condition broken annexed to a Devise of Lands 7. A Condition or Proviso contrary to Law is a void Condition 8. The Heir may enter upon a breach of Condition notwithstanding a failure of somewhat that ought to have been done by a Third Person 9. The Heir may not enter where it is but a Limitation and not a Condition 10. If the Condition be That a Lessee shall not Demise the Premises for above one Year and he Devise the Premises it is a breach of the Condition 11. Lands Devised upon Condition of superstitious Vses are vested in the Crown 1. IF a Man give order for the writing a Devise of his Land to A. B. upon Condition and the Devise to him be accordingly written but the Testator dyeth before the writing of the Condition in this Case the whole Devise to A. B. is void And as in the case of Goods and Chattels conditionally bequeathed the Executor shall keep the Thing until the Condition be performed and after the Condition broken shall take advantage thereof So
in Case of Lands Conditionally devised to one and his Heirs for ever or for life the Heir of the Devisor shall keep the Land till the contingent Condition happen to take effect 2. If one Devise Land of the value of 100 l. per annum to A. for life the Remainder to B. paying 50 l. to C. by this Devise B. shall have the Fee-simple of the Remainder upon Condition 3. If one Devise his Land to his Wife for her life and if she live till his Son come to the Age of 25. Years that then he shall have the Land and if she die before he comes to that Age that then A. B. shall have it till his Son come to that Age. A. B. dies before the Wife and after she dies before the Son comes to the Age of 25. Years In this Case the Executors of A. B. shall not have the Land till the Son comes to the Age of 25. Years 4. A. Seised of Lands in Fee had Issue Six Sons and one Daughter and Devised the said Lands to I. S. for 90. Years if the said I. S. and G. his Wife or any of them should so long live the Remainder to P. his Eldest Son and the Heirs Male of his Body the Remainder to these other Sons the Remainder to his Daughter Provided that if the said P. his Son or any of the Sons of the said Devisor or any of the Heirs Males of their Body should endeavour by any Act to Alien Bargain or Discontinue then after such Attempt or Endeavour and before any such Bargain Sale c. were Executed that the Estate of such person attempting c. should cease as if he were naturally dead and that then the Premises should descend remain and come to such person to whom the same ought to come remain and be by the intent and meaning of his Will and dyed P. Levyed a Fine of the Lands he in the next Remainder entered and claimed the Reversion by force of the Devise It was Adjudged in this Case That the Conuzee had the Reversion in him and might maintain an Action of wast because the Proviso of Restraint in the Will of A. was void and repugnant to Law and a Proviso Condition or Limitation ought to defeat the whole Estate and it cannot continue it for part and defeat it for the Residue 5. A Copy-holder of Lands in Borough-English having Three Sons and one Daughter Deviseth his Lands to his Eldest Son paying to his Daughter and every one of his other Sons Five Pounds within Two Years and surrendred to the use of his Will The Eldest Son was admitted and did not pay the Five Pounds within Two Years In this Case it was Resolved 1 That although the yearly Profits of the Lands for Two Year did exceed the Money to be paid yet the Eldest Son had a Fee-simple 2 Although this word Paying in the Case of a Will makes a Condition yet in this Case the Law shall Construe this unapt word Paying a Limitation For if it should be a Condition the same should descend to the Eldest Son and then it should be at his pleasure whether the Daughter or Brothers should be paid or not and therefore in this Case the Law should judg the same a Limitation of which the youngest Son should take advantage 6. A Man Devised Lands to his Wife upon Condition that she should bring up his Son at School c. and that after the death of his Wife the Land should remain to his second Son in Fee and dyed The Wife entered the Condition was broken the Eldest Son after his full Age entered for the Condition broken in this Case it was held 1 That a Condition might be annexed to a will by the Stat. of 32. H. 8. of Wills which gives liberty to a Man to Devise for the advancement of his Wife c. That a particular Estate may be upon Condition though the Remainder be without Condition 3 That he in the Remainder should not take advantage of the Condition but the Heir because he is prejudiced in the Inheritance by the Devise 7. If a Man make Two Men his Executors Proviso that one of them shall not Administer his Goods the Proviso is void because it restrains the Authority which was given by the first part of the will and agrees not with the Law for by Law every Executor may Administer the Goods And such was the Opinion of Baldwin and Egglesfield But Fitzh conceived the Proviso to be good for that he might bring an Action although he did not Administer 8. A Man Seised of Tenements in London Devised the same to Two Persons upon Condition that they should pay to his Wife 10 l. per annum issuing out of the said Tenements at Two Feasts and if the Rent be behind by the space of Six Weeks being demanded that it should be lawful for the Wife to distrain It was held a good Condition and that if the Rent be behind yet the Wife cannot distrain before a demand of the Rent but the Heir of the Husband might enter for the condition broken though the Wife did not demand the Rent A Man Devised his Land to his Younger Son when he should accomplish the Age of 24. Years upon Condition that he should pay 20 l. to the Daughter of the Devisor and if he shall die before the Age of 24. Years then his Eldest Son shall have the Land upon Condition that he pay the said 20 l. and if both his Sons failed that the Land should remain to his Daughter and dyed The Younger Son entered after 24. Years of Age and did not pay the 20 l. to the Daughter the Eldest Brother entered upon him It was Resolved by the Court in this Case That the same was a Limitation and not a Condition and therefore the entry of the Elder Brother was not lawful 10. A Man made a Lease for Years upon Condition That if the Lessee shall Demise the Premises or any part of it other than for one Year to any person or persons then the Lessor and his Heirs to re-enter the Lessee afterwards Devised it by his Will to his Son It was held by the Court That it was a breach of the Condition 11. If Lands be Devised upon Condition of superstitious Uses as to find a Chaplain to say Mass or the like superstitious Uses mentioned in the Will the Remainder over for the like Uses and if they in Remainder perform not the Condition then to forfeit their Estate and the Lands to remain to the right Heirs of the Devisor In this Case it was held That although the Land was Devised but Conditionally to find a Priest to say Mass yet that it was within the Stat. of 1. Ed. 6. Cap. 13. whereby the Lands were vested in the Crown because the said Uses were superstitious Uses to which the Condition of the Devised Lands did refer F. C. Seised of the Mannor of S.
part not expressed is a Moiety implyed p. 293. § 23. p. 310. § 11. p. 441. § 49 50. Paying In what Sense that word shall be construed only as a Limitation not as a Condition p. 267 268. § 5. Payment not full in what case Equivalent to none at all p. 289. § 11. PiousVses Testaments to that end their Priviledges p. 8. § 4. Poor disagreement among the DD. touching Legacies to the Poor in such generall words p. 291. § 18. Pope whether he may alter the Wills of Testators p. 149. § 107. Portion of Goods not expressing what proportion Bequeathed signifies 〈◊〉 Mâ—ity p. 447. § 100. Portions or Filiall Portions the Law in that case p. 167 c. Possibilities in Expectation are Devisable as well as Possessions in Actual Demes 〈…〉 es p 311 § ult Presentations void not Devisable p 288 § 5. To whom belongs the Presentation in case of Intestation p 82 § 6. Prisoners In what Sense said to be Intestable or not p 15 § 3. Priviledged Testaments what the severall kinds thereof p. 7 § 1. Probate of Testaments the Law thereof when where how by and before whom with the Fees thereof p. 35 c. In what case the Executor may be compelled to Prove the Will notwithstanding his former refusall and thereupon Letters of Administration granted to another p. 165 § 2. What Proof Requisite for the Probate of a Will p. 40. c. Prohibition in what Cases it doth not lie p 113 § 7. In what Cases touching Lands Devised to be Sold a Prohibition may lie or not p 275 § 9. It doth not lie in case of the Husbands Release for the Wives Legacy p. 282 § ult R. Recovery by Fraud against an Executor no Plea in Barre to a just Debt p 108 109 § 7. Refusalls to Prove the Will p 39 40 § 6. How to Proceed in case of Refusall of Executorship p. 91 92 § 1. It is no absolute Barre to a Subsequent Administration p Ibid. § 3. It may be done by a Letter Extrajudicially as well as by a Judiciall Act. p 93 § ult How Refusers to Administer may yet afterwards be admitted or excluded p. 163 § ult Refusall in one to take by a Devise shall not prejudice him in Reversion or Remainder p 263. § 9 13. Release or Discharge in what Sense it may be said to be Bequeathed p 322 § 3 p 439 § 32. To Release is a good word to Devise Lands by p 235 in fin A Release of Actions by an Administrator whose Letters of Administration are after Revoked is void p 216 § ult Action for Executors upon a a Release p. 103. § ult Remainders and Reversions Devised p 261 c. What of that kind may be Devised p Ibid § 1. Remainders and Cross-Remainders by Devise of Estate Tail p 252 § 11. With Implyed Remainders Ibid § 12. Remainders Entail'd by Devise and by Deed how they differ p 262 § 7. Remainders Devised to a Church accrews to the Parson thereof Ibid. § 8 He in Remainder or Reversion shall not be prejudiced by the Refusall of him that should take by a Devise p 263 § 9 13. How the Issue of the Daughters without naming them shall have the Devised Remainder in preference to the Issue of the Sons Ibid. § 10. Several Cases wherein he in Remainder may Devise his Remainder p Ibid. § 13. Reversion of Land for life may be Devised by the Lessor notwithstanding a Feoffment in Fee p 264 § 16. Remainder of a Rent-charge is Devisable to one where the Land out of which it arises is Devised to another Ibid. § 17. A Devise may be good for the Reversion of a Term where it is otherwise for the Rent p 264 § 18. Remainder Devised may be good where yet an Estate Tail precedes Ibid. § 19. He in Remainder may instantly take where the Devisee is incapable Ibid. § 20. Remainder may be Devised by one to his own right Heirs Ibid. § 21. Reversion may be Devised by the name of all a Mans Inheritances or Hereditaments p. 265 § 22. Remainder Devised to the next of Blood Ibid. § 23. In what case Remainder after Remainder makes the former Remainder but an Estate for Life p. Ibid. § 24. Remainders Devised what void p 261. § 2 p 262 § 3 to 6 p 264 § 15. A Hundred Years to come Devised for Life the Remainder over is a void Remainder p. 263 § 11. Remainder in Fee after a Lease Devised by him in Remainder is a void Remainder if the Lessor Re-enter Ibid § 12. Remainder after a Fee Devised is Indeviseable albeit such Devise were but Conditional p 263 § 14. A Term of Years by way of Remainder is Devisable but a Devise by way of Entail with remainders over is void p Ibid § 15. Rents Devised p 270 c. As Devisable as the Land itself Ibid § 1. They are Devisable for another mans life Ibid § 2. Rents issuing out of a Common not Devisable § 3. Several ways of Devising Rents § 4. Reversion of Rents Devised upon a false suggestion a void Devise p 271 § 5. Rent Devised in what case the Land it self doth thereby pass p 138 § ult What Rent not Devisable p 225 § 2. In what case the Rent is due to the Heir not to the Executor p 103 104 § ult Rent due to the Executors of the Husband of the Tenant in Dower Ibid. Rent of Land in Fee received by Executors no Assets because belonging to the Heir p 85 § 3. The Land-lords Rent is payable by the Executor for the Ground whose fruit for the Term may be Devised to another p 298 § 46. Residue of a Term is as Devisable as the Term it self p 258 § 7. Residuary-Regatary hath an Advantage when others Refuse p. 291 § 17. Retainer of a Testators Goods by an Executor to pay himself good p 133 § ult p 149 § ult Reviver of a Will Revoked p. 34 § 1. Revocations Testamentary the severall kinds thereof p 31 § 1. Revocations by Marriage Ibid § 2. Revocation of a Will by a Wife after Marriage whether good or not p. 236 § ult Whether Revocation of Administration may without any Sentence in Court be by the Bishop who granted it p 166 167 § ult Revocations of Legacies and Devises p 331 c. What amounts to a Revocation of a Devise of Land p 228 in fin Severall Cases in Law touching what shall amount to a Revocation or Countermand of a Legacy or Devise p. 443 § ult Four Cases wherein Legacies are irrevocable p 443 § 74. S. Sale of Lands Devised to be made by Executors p 273 c. with or without the Assent of others p 274. § 5. In what case it may or not be by one alone where there are Two or more Executors p 275 276 § 10 12. How it becomes void for want of sufficient Authority p 175 § 11. In what Case it may be made by
in the Womb at the Testators death seems to be void Yet if a Man Devise to such an Infant and he happen to be Born before the Testators death it seems that in this case the Devise is good Again A Devise made to a person altogether uncertain and not certainly Named or Described is altogether void yet a plain Description of a Person without naming him is sufficient so that a Devise made to the Dean of Pauls without naming him is good A Man Deviseth his Land to Elianor the Daughter of I. S. who hath divers Daughters whereof one is named Hellen and none Eleanor This is a good Devise to Hellen. Likewise if a Man hath Two Wives and he Deviseth his Land to his latter Wife in Fee the first Wife shall have it or if he hath Two Sons called John and one of them is a Bastard born before Marriage and he makes a Devise to his Son John the Legitimate John shall have it and not the Bastard The Husband can be no Devisee as to a Devise of Lands from his Wife There are Three Brothers by the same Father and Mother and the middle Brother Seized of Land Deviseable giveth it by his Testament Propinquiori fratri suo it seems that neither of them shall have it Suppose a Man who hath a Term Deviseth the Land to one and his Heirs the Devisee dyeth leaving Executors his Heirs shall have the Land and not his Executors the Law is otherwise in case the Entire Term were so Devised A Devise of Land made to the Canons of a certain Cathedral for ever or Canonicis Ecclesiae D. Pauli Lond. in perpetuum is a good Devise to all the Canons joyntly in Fee and the Survivor shall have the Entierty If a Man willeth that his Executors shall Sell his Land for the Payment of his Debts and they all die save one who maketh the Sale in this case the Vendee shall not have the Land the Law were otherwise if the Land had been Devised to the Executors to be Sold. If a Man hath Issue a Son and Land is Devised to the Father Habend sibi Hered de Corpore suo Legitime procreand and after the Devisee hath Issue another Son the second shall have the Land If a Man Deviseth by the Will That after the death of his Wife the Land Devisable shall go to I. S. his Wife shall have it for her Life by this Devise Or if a Man willeth that after 20. Years after the death of the Devisor I. S shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor 5 A Testament Nuncupative is not good for a Devise of Land nor a Testament made in Print if it were never written yet a Testament written though no Executor be named therein is good for Lands but not for Goods Likewise a Testament without Sealing or Subscribing is good enough for a Devise of Land so as it be put into Writing in the Testators Life Time although it be never proved before the Ordinary But if in a Testament there are these words viz. Haec est voluntas intentio mea A. B. c. This is not good for the disposition or devise of Land without saying ultima voluntas according to the Lord Dyers Opinion who in his Learned Readings on the Stat. of Wills 32. and 38. H. 8. if he were indeed the Author of that Impression 1648. doth further Affirm That if a Man makes a Testament of his Land in one County and long after makes a Testament of his Land in another County These are good Also that if Two Men severally Seized of Lands make a Joynt-Testament of their Land This shall be good and several Testaments Also that where a man is in making his Testament and having Devised a parcel of his Land dies before the perfection and finishing thereof This shall be good for so much as is Devised That a Man willing by his Testament that his Lands shall be Sold to pay his Debts not declaring by whom This is a good Will and shall be performed by his Executors or Administrators That a Man making a Will of Land in which he hath nothing and after Purchaseth the same Land and dyeth This is not good That a Woman Covert making a Will of her Land and after taking a Husband who hath Issue the Husband dyeth the Wife dyeth this is not a good Will That if a Man make a Will of his Land and after alien this Land in Fee and after repurchaseth the same Land This is not a good Will That a Man making a Will and after making a new Will and after on his Death-bed saith That the first Will shall be his last Will This is good Also that where a Man giveth Land by his Will in Fee and after by another Will giveth the same Land to another but for Term of Life This is a Revocation of the Entire first Will. Also if a Man Devise another Mans Land This Devise is void but if he after the Devise made Purchase this Land then the Devise is good CHAP VIII Certain Cases touching Devises of Land Void or not 1. Lands What and how Devisable 2. Certain void Devises of Land 3. To what Persons and in what Cases Devises of Land may be good or not 4. The same Lands twice Devised to several Persons in the same Will how both Devises may stand good 5. The Profits of Land Devised do pass the Land it self in which Case Testaments more favourably construed then Deeds 6. How Lands Purchased after a Devise of Lands made may pass by that Devise or not 7. Several Cases in Law referring to this Subject 1. ALthough Lands made Devisable by Statute cannot be Devised otherwise then by Will in Writing yet Lands and Tenements Devisable by Custom may be Devised by a Nuncupative Will without any Writing But Copy-hold Land is not Devisable nor can Tenants in Tail or pur auter vie or Joynt-Tenants Devise their Eestate in the Land they so hold no more then they could before the making of the said Statute which doth not impower them thereunto But such as are Seized of Land in Common or Coparcenary may devise the same And if there be Two Joynt-Tenants for Life and the Fee-simple to one of them he that hath the Fee-simple may Devise his Fee-simple after the death of the other Joynt-Tenant for Life And in such places where Lands were Devisable by Custom before the making of the Stat. of 32. H. 8. a Devise of Lands may be good against the Heir for the whole but by the Stat. impowering to dispose of Lands by Will a Devise of Land is not good against the Heir save only for Two parts in Three 2. He that Deviseth Land ought to have a Right to and possession of the Land he Deviseth otherwise the Devise is not good and therefore if
a Disseisor Devise the Land he hath gotten by Disseizin this Devise as to the Disseizee is void Likewise if a Man be Disseized of his Land so that he hath nothing but a Right thereof left and then he Devise this Right or the Land this Devise is also void So if one Contract for Land and pay his Money for the same but hath no Assurance made him of the Land and he Devise the same to another such Devise cannot be good yet possibly he that received the Money may be compellable in a Court of Equity to Assure and Settle the Land according to the Devise Likewise if one Devise another Mans Land such Devise is void but if after such Devise made he Purchase this Land and die without Revocation now is that Devise good Also if A. Bargain and Sell Land to B. on Condition of Re-entry if he pay to B. Twenty Pounds and B. Covenants that he will not take the Profits until default of Payment and A. make a Lease of Seven Years thereof to another and after break the Condition in this case B. may Devise the Land and the Devise will be good 3. If one Devise his Land to the Children of A. B. by this Devise the Children that A. B. hath at the Time of the Devise made or at most at the Time of the Testators death and not such as shall be Born after his death shall take by that Devise and have the Land Also if a Devise of Lands or Goods be made to the Heirs of A. B. he then and at the Time of the Testators death being alive this Devise is void because the person to whom a Devise is made must be capable of the Devise by that Name by which the Devise is made to him when there is no other description whereby to infer the Testators meaning yet if Lands or Goods be Devised to the Executors of A. B. and he die before the Testator and make Executors This is a good Devise to such Executors or if a Man make a Feofment of his Land to the use of his last Will and then Devise that his Feoffees shall be Seized to the use of B. C. This is a good Devise of the Land per intentionem Also a Devise of Land to one paying so much a Year to another with a Clause of Distress upon failure of Payment is a good Devise but a Warranty cannot be made by a a Will Yet if Land be Devised for Life or in Tail Reserving a Rent in this case the Devisors Heirs shall be bound to the Warranty in Law and the Devisee shall take advantage thereof Also a Devise of Land may be made to one and a Devise of a Rent out of the same Land to another in the same Will and both stand good Likewise Land may be Devised to one in Fee and after the same Land in the same Will may be Devised to another for Life or for Years and both these Devises may be good and may well consist together 4. In like manner if a Man in the former part of his Will Devise all his Lands by general words to one in Fee and in the latter part of his Will Devise some special part thereof unto another in Fee Both these Devises are good and may stand together that is The former Devise is good for as much as is not afterwards more specially Devised notwithstanding the Subsequent Specification and the latter is good for so much as is so specially Devised notwithstanding the precedent general Disposition It is otherwise when the general Clause comes last for then the first Devise is void So also it is supposed to be where both the Devises are particular that then the first Devise is void As suppose a Man doth first in his Will Devise Long-acre to A. and his Heirs afterwards in the same Will he doth Devise the same Land to B. and his Heirs in this case some have held the first Devise to A. is void which others have denyed holding that both the Devises are good and that A. and B. in this case shall be Joynt-Tenants 5. If a Man Devise the Use Profits or Occupation of his Land by this Devise the Land it self is Devised Or if a Man Devise only the Profits of his Land this is a Devise of the Land it self For Lands will pass by words in a Will which will not pass by the same words in a Deed but whatsoever will pass by any Words in a Deed will pass by the same Words in a Will The Reason is because Wills are always more favourably interpreted than Deeds and there is good Reason for that also If a Man says in his Will I give all my Land or all my Tenements to A. B. he shall have not only all the Lands whereof the Devisor is Sole Seized but also all the Lands whereof he is Seized in Common or Co-parcenary with another and not only all the Lands he hath in possession but also the Lands he hath in Reversion of any Estate he hath in Fee-simple But if he say I give all my Lands in Possession only then the Lands he hath in Reversion are excluded out of that Devise 6. If a Man Seized of Land of Fee-simple in the Parish of Grade saith in his Will I give all my Lands in the said Parish to A. B. and after the Will made and published he doth Purchase other Lands in the said Parish and dyeth in this case and by this Devise A. B. shall not have the new Purchased Lands Yet by a new Publication of the Will after the Purchasing of such Lands they will pass to A. B. the Devisee Yea though he hath no Land in the said Parish at the Time of making the said Devise yet if afterwards he doth Purchase Lands in that Parish in this case such ne 〈…〉 Purchased Lands will pass by the said Devise because it shall in that case be intended that he meant to Purchase them Also if a Man hath some Lands in Fee-simple and other Lands only for Years in Dale and he Devise all all his Lands and Tenements in Dale by this Devise the Lands and Tenements he hath for Years doth not pass but if he hath no other Lands in Dale but those for Years in this case probably they will pass 7. A. Deviseth his Lands to M. his Wife until E his Daughter shall accomplish the Age of 21. Years the Reversion to the said E. and the Heirs of her Body upon Condition that she shall pay unto his said Wife during her Life in Recompence of her Dower of all his Lands 20 l. and upon default of Payment he wills his Wife shall enter and enjoy all the Lands during her life the Remainder ut supra the Remainder to I. S. in Tail and dies M. the Wife enters E. the Daughter being within the Age of 14. Years M. takes to Husband I. D. The Husband and
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
C. and his Heirs or to him and the Heirs of his Body This is a good Devise of the Land in Fee-simple or Fee-tail There are also several other ways of Fee-simple by Will For suppose Land be given to a Man Habend sibi Haeredi suo This indeed is not Fee-simple otherwise it is if it be given sibi duobus Haeredibus suis tantum So if Land be given to a Man Habend sibi Haered with warranty of the Land sibi Haeredibus suis This is a good Fee-simple Or if a Man Devise Land to A. B. for his Life and after to the Heirs or to the right Heirs of A. B. By these Devises A. B. hath a Fee-simple in the Land Also if one Devise his Land to his Wife to dispose thereof at her will and pleasure and to give it to one of her Sons by this Devise she hath a Fee-simple but it is qualified for she must Convey it to one of her Children and cannot Convey it to another 2. When in a Will power is given to a Devisee of Land by the Testator to Sell that Land such Devisee hath a Fee-simple in that Land for power to Sell giveth by Implication an Estate in Fee-simple Also if one Devise his Land to A. B. paying 10 l. without other words By this the Devisee hath the Fee-simple of the Land albeit the 10 l. be not the Dundredth partvalue of the Land In like manner If one Devise Land whereof he is Seized in Fee to A. B. paying 10 l. to G. D. By this Devise albeit there be no Estate expressed yet A. B. hath the Fee-simple of the Land in respect of the Payment of the Money This holds True only in case the Intent of the Testator doth not appear to be otherwise 3. If one in his will devise his Land to his Wife in the first place and then saith my Will is That my Son A. shall have it after my Wives death and if my Wife dye before my Son B. that then my Son A. shall pay to B. 10 l. by the Year during the Life of B. and also 100 l. to I. S. In this Case A. shall have the Fee-simple of the Land Also if one Devise his Land in this manner viz. I give White-acre to my Eldest Son and his Heirs for his part Item Black-acre to my youngest Son for his part by this Devise the the Youngest Son shall have the Fee-simple of Black-acre Or thus I give White-acre to A. B. Item Black-acre to A. B. and his Heirs by this Devise A. B. shall have the Fee-simple as well of White-acre as of Black-acre 4. If a Man Devise his Land in this manner Item I give to A. B. and C. D. and their Hoirs my Land in Kent equally or my Land in Kent equally to be divided by these words A. B. and C. D. shall have and hold the Land not as Joynt-Tenants but as Tenants in Common so that the Heir and not the Survivor shall have his part that first dyeth And yet in case of such a Limitation by Deed it is otherwise But if one Devise his Land to A. B. and C. D. and their Heirs without more words it seems that by this Devise they shall take and hold as Joynt-Tenants Yet if one Devise Land to A. B. and C. D. and the Heirs of either of their Bodies lawfully begotten it seems that by this Devise A. B. and C. D. shall take and hold as Tenants in Common and not as Joynt-Tenants Likewise the Case is the same if one Devise his Land to A. B. and C. D. in this manner viz. I Will that A. B. and C. D. shall have my Lands in Kent and occupy them indifferently to them and their Heirs But if one who hath Two Daughters only give or Devise his Land to them in Fee by this Devise they shall take as Joynt-Tenants and not be in by Descent as Partners for the Testators Will shall take place 5. If Land be given to the Mayor and Commonalty of London or any other Corporation to have and to hold for Term of their Lives it is a Fee-simple Or if a Man say I give to A. B. my House with all the Lands for 21. Years and that A. B. shall have all my Inheritance provided it be not contrary to Law In this Case A. B. shall have the Fee Or if he give it to his right Heirs Males and Issue of his Issue of his Name this also is a Fee-simple And although it be affirmed by some That if the Testator Devise his Land to A. B. and his Assigns without saying For ever A. B. shall have an Estate only for Life Yet the contrary is Asserted by others and that it is a Fee-simple 6. If a Testator saith I will my Land to my Son A. during his Life and after his decease to my Son B. And in case my Son A. shall hereafter Purchase Lands of as good Value as that Land for my Son B. that then my Son A. shall Sell the Land Devised to my Son B. as his own and shall pay 20 l. to C. D. In this Case A. hath a Fee-simple implyed by the Power which A. hath to Sell beside the Payment of Money Also if one Devise Land to me and my Heirs and in Case the Heir at Law put me out that then I shall have other Land instead thereof in this Case and by this Devise I have the Fee-simple of the first Land notwithstanding the latter words Likewise if a Testator Devise Land to me for my life the Remainder to his own Son and the Heirs Males of his Body and in default of such Issue the Remainder to the next Heir-male of the Testator and the Heirs-males of his Body In this Case the next Heir-male of the Son hath an Estate in Fee-simple 7. Suppose a Man Seised of Lands make his Will in this manner viz. Imp. I Devise to my Wife Black-acre for her life the Remainder to my Son T. in Tail Item I Will to my Son T. all my Lands in D. also all my Lands in S. also my Lands in V. Also I give to the said T. my Son all my Island or Land enclosed with Water which I Purchased of I. S. To have and to hold all the said last before Devised Premises to the said T. my Son and the Heir of his Body In this Case the Habendum shall extend to all the Lands in D. S. and V. and shall not limit the Devise only to the Island because the thing last Devised by the Will was an Island in the Singular Number which cannot Answer to the Habendum in the Plural which if extensive to the Island only T. then should have but for Life in the Lands of D. S. and V. But it was otherwise Resolved viz. That the Habendum should extend to all the Lands in D. S. and V.
8. A Man Seised of a Messuage holden in Socage in Fee Devised the same by these words I Devise my Messuage where I dwell to A. B. and her Assigns for 10. Years and A. B. shall have all my Inheritances if the Law will In this Case the Devise in Fee of the Messuage is good and by the general words of the Will all his Inheritances do also pass 9. If a Man Devise Lands to one for ever there he hath a Fee for such an Estate might be conveyed by Act Executed But if he further Devise That if the Devisee do such an Act that then another shall have the Land to him and his Heirs the same is void for when as he hath disposed of the Estate in Fee to one he hath not power after in the same Will to dispose the same to another it being a Rule in Law That such an Estate which cannot by the Rules of the Common Law be conveyed by Grant Executed in his life time by Advice of Council learned in the Law such an Estate cannot be Devised by the Will of a Man who is presumed to be void of Council 10. A Man having Lands in Fee-simple and goods to the Value of 5 l. only Devised to his Wife all his Estate paying his Debts and Legacies his Debts and Legacies amounting to 40 l. It was Adjuged in this Case That all his Lands did pass by the Devise and that the Devisee had a Fee-simple in the Lands the word Paying enforcing it for they are to be paid presently which cannot be if the Lands pass not in Fee And if a Man Deviseth all his Rents It was held That all his Lands do pass 11. Note That by intendment of Law a Devise shall be for the benefit of the Devisee and not to his prejudice As if Land to the Value of 3 l. per annum be Devised to A. and that A. shall pay out of it 50 s. per annum In this Case A. hath but an Estate for life for he may pay it out of the Profits of the Lands and is sure to be at no loss But if it be Devised to B. for life the Remainder to A. paying 50 s. per annum out of it In this Case A. hath a Fee-simple by Implication because after the Payment thereof A. may dye before he can receive satisfaction for the same out of the Profits of the Land and therefore such Devise shall be a Fee-simple because the Law intends that the Devise was for the benefit of the Devisee 12. Note also That if a Man hath Lands in Fee and Lands for Years and he Deviseth all his Lands and Tenements the Fee-simple Lands pass only and not the Lease for Years 2 If a Man hath a Lease for Years and no Freehold and Deviseth all his Lands and Tenements the Lease for Years passeth 3 That if one Deviseth his Lands which he hath by Lease to his Executor for life the Remainder over that there ought to be a special Assent thereunto by the Executors as to a Legacy otherwise it is not Executed 13. A. Devised his Lands in London to his Son and his Heirs after the decease of his Wife and in Case his Daughter should Survive his Wife and his Son and his Heirs that then the Daughters should have it for Life and after their death I. and R. should have the same and that they should pay 6 l. 16 s. yearly to the Company of Merchant-Taylors to be disposed of to Charitable Uses In this Case three Points were Argued 1 Whether the Wife had an Estate for life by Implication of the Will And it was Resolved That she had 2 Whether the Son had a Fee-simple or Fee-tail And it was Resolved That he had a Fee-tail by Implication of these words viz. if his Daughters Survive his Wife and his Son and his Heirs whereby it is plainly implyed That the Heirs there intended are the Heirs of his Body and not his Heirs in Fee for so long as the Daughters live the Son could not dye without a Collateral Heir 3 What Estate I. and R. have after the death of the Daughters And as to That it was Resolved That they have a Fee-simple by Reason of the Annual Payment of Money and it is not to be regarded what Annual Value the Land is of over and above the Sums they pay for every Sum of Money paid or payable doth cause the Devisee to have a Fee-simple And Coke Chief Justice said That a Devise to A. and his Successors is a Devise of a Fee-simple without the word Heirs because it implyes a Fee-simple although it wants the express words Between L. Plaintiff and B. Defendant L. Seised of Land in Fee Devised it unto Two Persons Equaliter and to their Heirs Whether this made them Joynt-Tenants or Tenants in Common was the Question It was holden by the whole Court That they were Joynt-Tenants and not Tenants in Common A Man Seised of Lands Devised them by his Testament to his Wife to dispose and imploy them for her and his Sons at her own Will and Pleasure And it was held by Dyer Weston and Welch That she had a Fee by such words as if he had Devised the Lands for ever For the Construction of Law supplies the defect in these words of the Devisor according to his meaning And it was held by Dyer and Welch That the Estate in her is Conditional because these words ea intentione make a Condition in every Devise but not in a Feofment Gift or Grant unless it be in Case of the King And these words do amount as much as to say she should not convey it away to a Stranger but keep it and give it to his Sons S. Seised of Land in Fee holden in Socage and Devisable in Gavelkind Devised it to his Feme for her life paying 3 l. per annum to T. his Son during his life and that he should take but Two Load of Wood for Fire-boot And if she dyed before the said T. then he Devised all his Lands to R. his Son paying to the said T. 3 l. per annum and paying to such one of his Sisters 20 s. and to another Sister 20 s. The Feme dyes R. enters The Question was what Estate R. had by this Devise And it was Adjudged he had a Fee For when he Devised it to his Feme for life expresly c. and to R. generally without limiting the Estate and apppointed him to pay to T. 3 l. per annum during his life That carries in it an Intendment that he should have Fee especially when his Father therein further willed That his Son R. should pay two other Sums in Gross and none of them to be out of the Profits it is by Intendment and by Implication a Fee wherefore upon the first Argument it was Adjudged for the Defendant for they said That these Things which have been so often Adjudged ought
well as by any other words 7. The Residue of a Term is as the Term it self 8. A Man may Devise such an Estate by Will which he cannot make by Act Executed Or he may Create an Interest by his Will which by Grant or Conveyance in his life time he could not do 9. That may be the Devise of a Lease for Years in Law which doth not seem to appear such in Fact 10. The whole Term though not named shall pass by a Devise where no other can pass by Implication 1. IF one Devise his Land unto his Executors until his Son shall come unto the Age of 21. Years the Profits to be imployed towards the performance of his Will and when he shall come to that Age that then his Son and his Heirs shall have it By this Devise the Executors shall have it until he be of 21. years of Age and if he die before that time the Executors shall also have it until the time he should have been 21. Years of Age if he had lived so long and the word Shall in this case is taken for Should Likewise if one Devise his Land to his Executors for the payment of his Debts and until his Debts be paid by this Devise the Executors have but a Chattel and an uncertain Interest and they and their Executors shall hold it until the Debts be paid and no longer 2. If one Devise his Land to A. B. and the Heirs males of his Body for the Term of 99. Years it seems that by this Devise A. B. hath but a Lease for so many Years if the Heirs Males of his Body shall so long continue and that for want of Issue Male the Term of Years shall expire And in this case the Executor or Administrator not the Heirs Males of A. B. shall have it after his death 3. If one possessed of a Term of Years Devise the same to another and his Heirs or his Heirs Male by this Devise the Executors or Administrators not the Heirs of the Legatee shall have it So that if a Lessee for Years of Land Devise all his Interest therein to his Wife if she live so long and after her death if any part of the Term be to come Devise the same to A. B. his Son and to the Heirs of his Body in this Case and by this Devise the Executors or Administrators of A. B. and not his Heirs shall have it 4. If a Man Devise all his Lands and Tenements in D. yet Leases for Years do not pass by these words for by Lands and Tenements is intended Frank-tenements or Free-hold and not Chattels 5. If one hath a Lease for Years of Land and Devise it to A. B. for life by this Devise the whole Term is Devised and A. B. shall have the whole Term if he live so long and yet A. B. shall not have an Estate for life by this Devise So likewise the Law seems to be the same upon a Grant by Deed made in that manner And if a Man possessed of a Term of Years of Land Devise his Term or his Lease or the Land it self by a Devise in either of these words the whole Term doth pass A Term of Years is Devised to the Church-wardens of the Church of D. and to their Successors This is not good but for Goods so Devised the Law is otherwise A Man who hath a Term Deviseth the Land to one and his Heirs the Devisee dyeth and hath Executors his Heirs shall have the Land and not his Executors The Law is otherwise if the entire Term were so Devised 6. If a Lessee Devise his Lease or his Term or his Farm or his Profits Tenure or Occupation thereof by either of these Devises his whole Lease and all his Interest in the Land is bequeathed as well as by any other form of words But if a Man Devise his Land only for so many Years as his Executor shall name it seems this Devise is not good Yet if it be for so many Years as A. B. shall name and he name a certain Number of Years in the Testators Life Time this is a good Devise 7 A Man possessed of a Term of Years may Devise all the Residue of that Term of Years that shall be to come at the Time of his death And if a Testator having only a Term of Years in certain Lands doth Devise the said Land to A. B. and doth not say for what Time it seems that by this Devise the whole Term is devised unless the Testators Intent doth appear to be otherwise 8. A Man possessed of a Term for 40. Years by his Will Deviseth the same to I. S. after the death of his Wife and that the Wife should enjoy it during her life and that I. S. should neither Devise it nor Sell it but leave it to descend to his Son and in the mean Time my Will is That my Wife shall have the use thereof during her life yielding 10 l. Yearly to I. S. during her life at Two Feasts and made his Wife Executrix and dyed The Wife entered and paid the 10 l. Yearly according to the Will In this Case Three Points are Resolved 1 That I. S. doth not take by way of Remainder but by way of Executory Devise And a Man may Devise such an Estate by his Will which he cannot make by Act executed And that the Case is no more but this That after the death of I. S. the Wife should have the Residue of the Term. 2 The Devise is good being but a Chattel which may vest and devest at the pleasure of the Devisor 3 That there is no difference when one Deviseth his Term the Remainder over and when a Man Deviseth his Land or his Lease or the Use or Occupation or the Profits of his Land That a Man by his Will may Create an Interest which by Grant or Conveyance he cannot Create in his life Time 9. A. Devised his Lands to his Daughter and her Heirs when she came to the Age of 18. Years and that the Wife should take the Profits of the Land to her Use without any accompt to be made until the Daughter come to 18. Years and made his Wife his Executrix and dyed provided the Wife should pay the old Rents and find the Daughter at School the Wife enters proves the Will takes Husband and dyes It was found that all the Conditions were performed and that the Daughter was within the Age of 18. Years It was Resolved in this Case That it was a Term for Years in the Wife and a good Lease 10. A Man was Lessee for 40. Years of a House and by his Will gave the House to I. S. without limiting any Estate That he should have in it It was the Opinion of the Court That he should have the whole for no other Estate in the House either for Life or at Will shall pass by Implication or for one Year
this case she hath those Lands for life and she having no Issue hath not any Interest to dispose but hath an Authority to nominate two who shall dispose of the Lands and they may make Sale thereof 9. A man did Devise his Lands which were held in Socage to be sold by his Executors and that the Money thereof coming should be disposed of in payment of special Legacies which he Appointed by his said Will the Executors sold the Lands One of the Legatees after the Will was Proved sued the Executors in the Ecclesiastical Court for his Legacy whereupon a Prohibition was prayed It was resolved in that Case 1 That the Money was Assets in the Executors hands 2 That there was no Remedy for it but by Suit in the Ecclesiastical Court and therefore a Prohibition did not lye in the Case But Querie of the second payment for it was held by all the Justices of both Benches Where a man Deviseth that his Executors shall sell Lands and of the Money coming shall give such a Portion to his Daughter That this was not a Legacy because going out of Lands and that Suit did not lye for it in the Ecclesiastical Court But an Accompt lyes at Law for the Money And therefore in that case a Prohibition was granted to stay the Suit in the Ecclesiastical Court 10. A Devise was made to A. B. for life the Remainder to C. D. in tayle and if C. D. dye without Issue of his body that then the Land shall be sold by his Executors he maketh two Executors and dyeth A. B. dyeth C. D. dyeth without Issue of his body In this case it seemeth that one of these Executors alone can not sell the Lands 11. A man Devised his Lands to his Wife for term of her life the Remainder to D. his Daughter in tayle and if she dyed without Issue that then after the death of his Wife the Lands should be sold for the best value by his Executors with the Assent of A. and B. And made his Wife and a Stranger his Executors and dyed the Wife Entered and dyed A. and B. dyed and the Executor who survived sold the Land alone The Opinion of the Court was That the Sale was not good because he wanted sufficient Authority 12. A man seised of divers Mannors and Lands Devised all the said Mannors and Lands to his Sister and her Heirs for ever Except out of this General Grant my Mannor of R. which I do Appoint to pay my Debts and made two Executors by Name and dyed One of the Executors dyed the other took upon him the charge and Execution of the Will and afterward sold the Mannor of R. for 300 l. for the purpose aforesaid in Fee It was the Opinion of the Court that he might well sell it for by the Circumstances it appeareth That such was the Testators intent and not to leave the Reversion to Discend to his Heir but to trust his Executors with the Sale of it for the payment of his Debts 13. A. made B. and C. his Executors and by his Will appointed that they should have and hold the Issues and Profits of his Lands until his Heir should come to the age of 21 years to the intent that the Executors with the Profits thereof should pay his Debts and Legacies and bring up his Children One of the Executors dyed the surviving Executor made his Executor and dyed also the Heir being within age It was the Opinion of the Court in this case that the Executor of the survivor might receive the profits of the Lands and dispose of them during the Non-age of the Heir because it was an Interest in the Executors and not an Authority or a Trust only 14. If a man hath Feoffees and makes his Will That his Executors shall alien his Land if the Executors Refuse the Administration of his Goods yet they may sell the Lands because the Will is not of a thing Testamentary But the Executors have not a power to meddle with the Land unless such a special power be given to them If a man makes his Will of his Lands and that his Executors without naming them by their proper Names shall sell them if they refuse to be Executors yet they may sell the Land But if a man makes his Will that his Lands which his Feoffees have shall be sold and doth not say by whom the Executors shall sell the same and not his Feoffees because the Moneys which come by the Sale shall be Assets in the hands of the Executors which is a proof that they may sell them And if his Will be That the Executors shall sell the Lands before the Alienation the Heir may take and Receive the profits thereof and if no Sale be made the Heir shall hold the Land for ever 15. A man Deviseth That his Executors shall sell his Lands Now by the Stat. of 21. H. 8. cap. 4. If the one refuseth the other may sell the Lands but the Sale can not be made to him who refuseth 16. A man made his Will and made A. B. C. D. his Executors and Devised his Lands to the said A. B. C. D. by their special Names and to their Heirs And further Devised that the Devisees should sell the Lands to F. G. if he would give for it before such a day 100 l. and if he would not that then they should sell it to any other to the performance of his Will viz. the payment of his Debts F. G. would not give the 100 l. one of the Executors refused to intermeddle the other three sold the Land It was the Opinion of the Court that the same being a special and a Joynt-Trust that it could not survive and that the Sale by the Three was void 17. By the Premises it is Evident That if a man Willeth that his Executors shall sell his Lands for the payment of his Debts and they all dye but one and the survivor make the Sale the Vendee shall not have the Land and that the Law is otherwise if the Lands were Devised to the Executors to be sold The Reason is as aforesaid because in the former case the Executors have only an Authority in the other case they have an Interest But if a man maketh two Executors and willeth that they shall sell the Lands for the payment of his Debts And they sell it only for term of life the Remainder to one of themselves and the Vendee dyeth he in the Remainder may Enter Sed Q. CHAP. XVII Of Legacies and Devises in respect of Marriage As also Between Husband and Wife 1. A Condition of Marriage may be annexed to a Legacy but an unlawful Condition thereof is void and doth not prejudice the same 2. A Condition of Marriage with the Consent of a Third person doth oblige the Legatary to Marry if he will have the Legacy but doth not oblige him to have such Consent 3. A
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
cap. 2. h Plow 144. Fitz. Devise 7. a St. 32. H. 8. c. 1. St. 34. H. 8. c. 5 Coke sup Lic III. Perk. Sect. 544. Lit. Sect. 287. Dyer 210. Old N. B. 89 Perk. Sect 500. 539 540. 446. 497 498. A man seized of Land Deviseable Deviseth totum staâ—um suum to one and his Heirs This is good for the Land Dyers Read on Stat. of Wills Sect. 4. §. 6. b Plow 485. c NevillsCase d Plow 144. Fitz. Devise 7. e Adjudged Powscley and Blakemans Case A man Deviseth his Land to Elianor the Daughter of I. S. and he hath divers Daughters whereof one is named Hellen and none Elianor This is a good Devise to Hellen Vid. Dyer's Read Stat. on Wills Sect. 3. §. 15. f Pasch 9. Jac. New mans Case g Co. sup Lit. 386. h Plow 523. 540. Dyer 357. Co. 8. 24. 83. i 38. Eliz. Co. Banc. k Quaere Dyer in his Lect. 1. per Inst Dodr. l Co. 8. 94. Plow 525. m Brownl 80. 1. Part. n Plowd 66. o Plow 343 344. Old N. B. 89. Fitz. Devise 17. p Trin. 37. Eliz. B. R. Breckford vers Parincote q Hill 20. Jac B. R. Loftis vers Baker r Mich. 30. El. in C. B. Geslin Werburrons Case Leon. Rep. p. 137 138. s 5. P. M. vid. Owen 30. Hugh Abridg. t Mich. 24. Car. in B. R. rot 2052. Preston and Holmes's Case Styles 148 149. u Trin. 1649. rot 849. in B. R. Beal and Wyman's Case Styles 240. x 42. Eliz. in C. B. Tayler and Sawyers Case y Trin. 20. Jac. in B. R. rot 811. Knights Case Godbolt 358. z Mich. 2. Car. in B. R. Baffield and Byboro's Case Popham 188. a Dyer's Read on the Stat. of Wills Sect. 3. § 5. b Mich 8. Eli. in C. B. Leon. 3. Part. 11. Hughe's Abr. 3. Vol. in Appen tit Wills Testaments and Devises c Trin. 36. Eliz. Browne and Pease Case Anders Rep. Case 315. d Trin. 37. El. Beckford vers Parnecott Cro. par 3. e Mich 34. El. In the Court of Wards The Lord Cheneys Case Co. 5. part 67. f Mich. 48 39. Eliz. C. B. Bon. vers Smith Cro. par 3. pl. 64. g Trin. 39. Eliz. C. B. Jobsons Case Cro. par 3. h Mich. 41. Eliz. B. R. Yates vers Clinkard Cro. par 3. i Trin. 2. Jac. Horton vers Horton B. R. Cro. par 2. pl. 4 k Mich. 37. H. 8. Anders Case 83. l Mich. 30 31 C. B. Ander Case 117. vid. dict Case m Pasc 5. El. Moo Rep. nu 143. n Mich. 30. El. in c. B. Sir Ant. Denny's Case Leon. 2 Part. 190. Hugh's Abridg. Appen tit Devis o Pasc 16. El. in B. R. Leon. 2. Part. 221. Hughs Abridg. ibid. p Hill 30. Eli. B. R. Carden Tucks Case Cro. 3. Part. 89. Hughe's ibid q Trin. 30. El. B. R. Crickmere Patersons Case Cro. 3. Part. 146. Hughe's ibid. r Mich. 30. El. B. R. Bon Smith's Case Cro. 3 Part. 532. vid. Trin. 39. Eliz. c. B. Johsons Case Cro. 3 Part. 576. Adjudged acc s Pasc 30. El. B. R. Nash Edwards Case Leon. 113. It was the Opinion of the whole Court that the Devise was vaid and Wray Chief Justice said That if he Appoint A. to write his Will and it is Written by B. the Devise is void But if after he ha Written the Will he had Read it to the Devisor and he confirmed it it had been a good Will It was the Opinion of the Court That the Plaintiff being Heir at Law should have Judgement to Recover the Lands against the Three Sisters t Trin. 30. El. Rot. 1160. Whisker Cleytons Case Leon. Rep. p. 156. u Hill 43. Eli. B. R. Beckford Parnecoles Case Goldesb 150. vid. Bret. Rigdens Case Plow Com. 340 w Mich. 45. Eliz. in c. B. Rot. 125. Kerry Dirricks Case Cro. 2. Part. 104. Hughs Abridg. tit Devise x Vid. Plow d Com. 342. in a Bret Rigdens Case a Lit. Broo. Sect. 133. Perk. Sect. 1. 6. Lit. Sect. 586. Kelway 43. Co. sup Lit. 19 20. H. 6. 35. Lit. Bâ— Sect. 432. 19. H. 8. 10. b Dyer Lect. in Stat. Wills cap. 5. §. 1. c Ibid. d Dyer ubi supra cap. 3. §. 3. e Co. 6. 16. Dyer 126. f 18. Jac. B. R. Green vers Dewel g Mic. 13. Jac. B. R. Dyer Sect 307. h Hill 17. Jac. B. R. Adjudge ed. Spicers Case i Trin. 30. El. If I Devise Lands to two equally divided between them they are Tenants in Common But if I Devise Lands to Two equally to be divided between them by I. S. Till such Division be made they are Joynt-Tenants Mich. 31. Eliz. in B. R. Dickons Marshes Case Goldesbr 182 183. k Adjudged Lowen vers Cox Mich. 37 38. El. Com. B. Dyer 25. Lit. Broo. Sect. 133. Lit. 283. Perk. Sect. 170. Dyer 350. l Dyer 326. m Pasch 9. Jac Newmans Cafe Brown Rep. 1. part 131. 169. n Goldsb 141. Plow 53. o Dyer Lecture in Stat. of Wills Sect. 5. §. 13. p Hob. Rep. 7. q Brown 129. 147. 149. 1. part part 2. 272. 177. r Co. sup Lit. 9. Perk. Sect. 57 239 New Terms of Law tit Devise s Trin. 2. Car. in B. R. t Mich. 18. Jac. B. R. Green vers Dewel u Pasch 14. Jac. in B. R. w Perk. Sect. 567. x Trin. 28. El. in C. B. rot 1458. Wiseman Wisemans Case Leon. Rep. 57. 58. y Mich 11. Jac. in C. B. Wedlock Hardings Case Godbolt 208. z Co. 1. part 85. in Corbets Case a Trin. 1651. in B. R. Kirman Johnsons case Styles 293 Mich. 45. Eliz. in C. B. Riches case b Ibid. c Coo. 6. part 16. Colliers case d Trin. 7. Car. in B. R. Rose Bartlets case Cro. 1. part 213. Trin. 14. Jac. B. R. Moo Rep. Gu. 1164. Lowen Bedds case Anders par 2. case 10. Pasch 6. El. Moo Rep nu 162. Pasc 17. Jac. B. R. Spicer vers Spicer Coke the Queens Attourney demanded of the Court A Man hath Two Daughters being his Heirs Deviseth his Land to them their Heirs and dyes Whether shall they take as Joynt-Tenants by Devise or as Coparceners by Descent And all the Justices held clearly That they shall have it as Joynt-Tenants for the Devise giveth it them in another Degree then the Common Law would have given it them and after the benefit of Survivorship between them Anonimus Cro. par 3. B. R. e Dyer's Read on Stat. of Wills Sect. 3. §. 3. f Ibid. §. 8. g Ibid. §. 16. h Ibid. §. 17. i Ibid. §. 18. Mich. 15 16. Eliz. Anders case 100. a Hill 13. Jac. in B. R. Blanfords Case Godbold 266. b Hill 8. Jac. in the Court of Wards Sandays Case Co. 9. part 128. c Terms of Law tit Devise Co. sup Lit. 25. Plow 414. d 27. H. 8. c. 17 e Coo. sup Lit. 27. f Trin. 9.