possession but now this Law is changed and this kind of fine will barre none but such as are parties and privies thereunto But a fine by the Statute or a fine with Proclamations is now much of the same virtue and force as a fine at the common law was for by the Statute of 4 H. 7. it is provided That every fine after the ingrossing thereof shall be proclaimed in the Court the same Tearme and the three next following Tearmes foure severall daies in every Tearme which Proclamations so made the fine shall conclude all parties privies and strangers except women covert persons within 21. yeares of age in prison out of the Realme or of non sane memorie being no parties to the fine so as they or their heires take their action or lawfull entrie within five yeares after these imperfections removed Saving to all persons and their heires other then parties the right claime and interest which they have at the time of the fine so as they pursue it by action or entrie within five yeares after the Proclamations And saving to all other persons such right title claime and interest as first shall grow or come to them after the Proclamations by force of any matter before the fine so as they make their claime or entrie within five yeares after the same grow due or if at that time there be any impediment as aforesaid within five yeares after the impediment removed And by the Statute of 32 H. 8. which is an exposition of this Statute it is provided That all fines with Proclamations levied according to 4 H. 7. by any person of 21. yeares of age of any land c. before the fine levied entailed to him that doth levie the fine or any of his Ancestors in possession reversion remainder or use immediately after Proclamations had shall be a barre against him and his heires claiming only by force of any such entaile and against all others claiming only to the use of him or any heire of his body By which Statute it doth appeare that all the parties to the fine Conusors and Conusees whether they be femes Covert men de non sane memorie or others Infants only excepted who during minority may avoyd it and whether they have a naturall or civill capacity privies viz. privies in bloud as heires whether they be lineall or collaterall or privies in representation as executors and administrators and all strangers also viz. all others besides parties privies that have or pretend any present right or title except women covert and the rest that have impediment that doe make their entrie or claime or bring their action within 5. years after Proclamations had and those persons excepted also if they make not their claime c. within five yeares after the impediment removed all these are concluded i. so shut and closed up together for their right is so extinct hereby as they can never open their mouthes or lift up a finger against it Saving to all others i. such as have no present right at the time of the fine levied and were excepted before such right title claim or interest as shal accrew to them after the Proclamations upon any trust gift in taile or other cause before the fine levyed so as they make their claime c. within five years after their right first accrewed if they have then no impediment or if they have within five yeares after the impediment removed For a more full understanding of which Statutes and this matter these things in generall must first be observed 1. That the persons to be barred by a fine are 1 Parties 2 Privies 3 Estrangers The parties if they be of the age of 21. years are bound for ever by the fine and shall have no time to claim to preserve their right The privies also being heires and executors to the parties and voyd of impediment at the time of the fine levied or not if they claim by the same title that their Ancestor had that levied the fine are barred for ever by the fine and shall have no time to claime to preserve their right †Dyer 3. pasche 7. Jac. B. R. And therefore if my father disseise my Grandfather of land and then levie a fine of the land and then my Grandfather die and after my Father die by this fine I am barred of the land for ever And here note * Trin. 21 Jac. Com. B. Curia in in Will Godfreys case that he that is a privie within the intent of 4 H. 7. is an heire within the Statute of 32 H. 8. Et sic è converso And that privies or heires in estate and bloud as he that is heire to whom the land doth or should descend are within these Statutes and shall be barred by the fine of their Ancestor of that land And so also shall privies in estate that are not privies in bloud as where one hath land in burrow English and levie a fine of it hereby the youngest sonne is barred So if one bee tenant in taile to him and the heires females of his body and he levie a fine having a sonne and daughter hereby the issue female is barred and yet she is not the heire of his bloud But he that is privie in bloud only and not in estate also is not within these Statutes neither shall he be barred by the fine and therefore if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the son levie a fine and die without issue this is no barre to the daughter for howsoever she be heire of his bloud yet she is not heire to the estate nor shall need to make her conveyance to it by him The strangers that are to be concluded by the fine are either 1. Such as have present right and no impediment and these are barred within five yeares if they make not their claime within five yeares after the Proclamations 2. Such as have present right but have impediment of infancy c. and these are barred if they doe not make their claime within five yeares after the impediment removed 3. Such as have no present but future right upon cause precedent and they are either without impediment and then they are barred if they claime not within five yeares after their right doth acrew or they have impediments and then they are barred if they claime not within five yeares after the impediment removed 4. Such as have neither present nor future right at the time of the levying of the fine by reason of any matter before the fine but whose right groweth either entirely after or partly before and partly after the fine and these are not barred at all by the fine but they may make their claime c. when they will And parties privies and strangers to Plow 538. 337 375 378. fines that are barred thereby are such as have naturall capacities or civill for both these are barred And
n Plow 434 435. So if tenant in taile make a feoffement or be disseised and after levy a fine with proclamations for a stranger hereby his issues are barred for ever o Curia 21. Iac. Co. B. So if tenant in taile die and his issue before his entry having a freehold in law only doth levy a fine with proclamations this shall be a barre to his issues and to his collaterall heires and brothers of the halfe bloud p Idem So if a tenant in taile have foure daughters and one of them levy a fine in the life of the father this will be a barre to her issue for the fourth part of the land q Co. 3. 50 51. 9. 140. But in these cases before and such like where the issue in taile doth levy a fine in the life time of the tenant in taile the tenant in taile himselfe may after levy a fine of the land and thereby barre his issue and the Conusee also to whom his issue hath levied a fine and therefore in all these cases it is supposed that the tenant in taile doth dye and suffer the right to descend to his issue t Co. 10. 50. 9. 141. 3. 50 51. If lands be given by will to one when he shall come to his age of twenty four years to hold to him and the heires of his body and he after his age of twenty one years levy a fine of this land with proclamations this is a barre to the issue in taile If a disseisor make a gift in taile the donee make a feoffment to A. and after levy a fine with proclamations to B. that hath nothing in the land this fine will barre the issues in taile and they shall not avoid it by pleading that partes finis nihil habuerunt c. but it is no barre to the disseisee for he may avoid it by this plea when he will s Co. 3. 84. And à fortiori therefore if a fine be levied by the tenant in taile that hath only an estate of freehold in remainder or reversion is good as if A. be tenant for life the remainder to B. in taile and B. levy a fine albeit this be no discontinuance yet it is a barre to the estate Discontinuance taile t Trin. 21 Iac. Co B. Will. Godfrey versus Wades case But if tenant in taile have issue a sonne and a daughter and the sonne living the tenant in taile levy a fine and dye without issue and then the tenant in taile dieth by this the daughter and the estate taile is not barred So if the younger sonne levy a fine in the life of the father and then the tenant in taile dye this is no barre to the elder sonne So if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the sonne doth levy a fine of the land this is no barre to the daughter So if tenant in taile have a daughter his wife being with childe of a sonne and the daughter levy a fine and after the sonne is borne this fine shall not barre the sonne for these howbeit they be privies and heires to the bloud yet are not privies and heires to the estate 6. Albeit the estate passed by the fine be afterwards 〈◊〉 J Co. 3. 91. before all the proclamations had avoided yet the issue in taile is barred by it And therefore if tenant in taile discontinue in fee and after disseise the discontinuee and levy a fine with proclamations to a stranger and take an estate backe by Render in the same fine and the discontinuee before all the proclamations passe enter and claime and so avoid the fine yet hereby the estate taile is barred a Per Popham et Fenner Iust M. 39. 40. Eliz. B. R. And if tenant in taile infeoffe the issue in taile and after disseise him and levy a fine the issue enter and after the proclamations passe and after the issue in taile doth infeoffe the tenant in taile which levied the fine and dyeth it seemes this fine shall barre the issues in taile 7. This is a barre to the estate taile 7 Co. 1. 76. super Lit. 372. and to the issues onely and is no barre to him in remainder or reversion and therefore when the estate taile is spent this barre is at an end And therefore if an estate be limited to A. and B. his wife and the heires males of the body of A. the remainder to C. and A. and B. have issue and A. dye and B. and her issue or her issue alone levy a fine this will barre the issues of the issues whiles there be any but they faile it will not barre C. in remainder except he suffer five years to passe and so be barred by his non claime So if tenant for life and he that is next in the remainder in taile joyne in a fine this is a good barre to the issues in taile for ever as long as that estate taile shall continue but not to him that is next in remainder nor to any other that shall come in of any remainder in taile or in fee nor to him in reversion x Co. 10. 96. 9 Iac. B. R. If lands be given to A. and the heires males of his body the remainder to B. and the heires males of his body the remainder to the right heires of A. and A. doth bargain and sell this land by deed indented and inrolled to I. S. and his heires and after levy a fine of it sur Conusance de droit come ceo c. to him and his heires by this the remainder to B. is Discontinuance not discontinued but it is a barre to the estate taile by the Statutes and causeth the estate of the bargainee to last so long as the tenant in taile hath issues of his body but if the fine had been before the bargaine and sale it had been a discontinuance of the remainder but in neither case a barre to him in remainder unlesse he suffer himselfe to be barred by his non-claime within five yeares after his remainder happen to come in possession 8. If there be 8 Co. super Lit. 372 tenant in taile the remainder to him in taile and the tenant in taile levie a fine of this land hereby both his estates are barred Et sic de similibus y y Bro. Fines 121. Co. 6. 55. Dyer 4. Co. super Lit. 372. Co. 8. 17. 78. But all this notwithstanding If lands be conveyed to a woman in taile for her joynture within the Statute of 11 H. 7. chap. 20. and she levie a fine of this land this will not barre the issues in taile Or if lands be given in taile to any subject by the Kings own gift or provision and the tenant in taile levie a fine this fine shall not bind the issues in taile nor the King but others it will barre for these fines are
once after the proclamations made wholly removed and after they fall into the like againe and dye in this case their heires shall not have a new five years but the first five years begun in their Ancestors time immediately after the first impediments so removed shall proceed and non-claime of their heires during all the residue of the said five years bindeth them as their said Ancestors should have been bound thereby if they had remained void of such impediments during all the said five years Estrangers to fines that have no present but a future right and 4. That are without impediment having future right upon cause precedent that such as groweth wholly before the proclamations if they be Plow 373. Dier 224. void of impediment shall have five yeares time after their right title claime or interest first groweth remaineth descendeth or cometh to them after the proclamations And therefore if a Mortgagee be disseised and the disseisor doth levy a fine with proclamations and the five years passe and after the Mortgagor payeth or tendreth the money in this case he shall have time for five years after the tender or payment of the money to make his claime c. So if a man levy a fine of his land whereof his wife is dowable shee shall have five years after her husbands death to make her claime c. and not be bound by the five years after the fine l Plow 374. So if tenant in taile levie a fine with proclamations and after the five yeares dyeth without issue the donor shall have five years after his death without issue to bring his Formedon m Co. 78. Plow 373. 374. So if lessee for life levy a fine or make a feoffement in fee and the feoffee doth levy a fine in this case he in reversion or remainder shall not be bound by the next five years after the fine levied but he shall five years next after the death of the tenant for life and if he dye within the five years his heires shall have only so much time as to make up the time before his death five yeares n Plow 374. Co. 9. 105. So also is the law if lessee for life be disseised and the disseisor or a stranger levy a fine in this case he in reversion or his heires shall have five years after the death of the tenant for life and shall not be bound to the next five years after the time of the fine levied o Plow 374. 19 H. 8. 7. Co. 3. 87. 84. Dier 3. So if tenant in taile in possession levy a fine and dye without issue in this case he in the remainder shall have time for five years after the death of the tenant in taile without issue and if he make not his claime c. in that time he and his issues are barred for ever The same law is for him in reversion or the donor if there be no remainder p Co. 3. 87. And if tenant in taile discontinue in fee and the discontinuee levieth a fine with proclamations and five years doe passe and the tenant in taile dieth in this case his issue shall have five years after the Descender to bring his Formedon q 30 El. But if tenant in taile discontinue rendring rent and dye and the issue accept the Rent which doth barre him for his time and then the discontinuee levieth a fine and dyeth in this case the issue of the issue shall not be barred by the five yeares after the fine but shall have five yeares after the death of the issue r Plow 374. And if one de non sane memorie make a feoffement and the feoffee levie a fine and then the feoffer die in this case the heire shall have 5. yeares after the death of his Ancestor and not be bound by the 5. yeares next after the fine levied Estrangers to fines that have future right upon any cause precedent See the Statutes Plow 366 367. Dyer 3. Plow 358. being affected with such impediments when the right first accreweth 5. That have future right and impediment shall have 5. years after the impediment removed to make their claime c. And therefore infants that are borne or in their mothers wombe when such right doth happen to them women Covert mad men Lunaticks prisoners beyond the Seas shall have this time As if a man have issue a son and a daughter and the son doth purchase lands and die and the daughter entreth as his heire and is disseised by A who levieth a fine and 5. yeares claime without claime and tenne yeares after the father hath another sonne who is heire to his brother he shall have in this case a new full 5. yeares after he come to his full age for he is the first unto whom the right descended after the Proclamations But if a stranger to a fine to whom a remainder or other title first accreweth after the fine doe not pursue his right within 5. years hereby he and his issues are barred for ever And in like manner if the first issue in taile to whom the title of the taile first accreweth neglect to make his claime c. within the first 5. years after his title accrewed hereby he is bound for ever and the whole estate taile also And if one abate after the death of a tenant in fee-simple and make a feoffement upon condition and the feoffee levie a fine and 5. yeares passe without any claime made by his heire hereby the heire is barred for the present but if afterwards the condition bee broken and the Abator enter then the heire may have an assise of Mortdancester against the Abator or enter when he will Estrangers to fines that have neither present nor future right at 6. That have no right for any cause before the â—ine the time of the levying of the same fines by reason of any matter Plow in Stowels case before the fines levied whose right groweth entirely before the Proclamations or partly before and partly after may make their claime c. when they please As if a father die seised of land his elder sonne being professed and the younger sonne entreth and is disseised and a fine with Proclamations is levied and then the elder sonne is dearaigned in this case it seemes he is bound to no time So if a tenant cease one yeare and then a fine with Proclamations is levied and after the tenant ceaseth another yeare the Lord may have his Cessavit 20. years after the Proclamations And estrangers to fines that have severall future rights by divers 7. That have future rights by divers titles titles growing at severall times it seemeth shall have severall five Plow 537. 367. 372. years to make their claims c. commencing from the severall times that their titles do first accrew unto them As if tenant for life the remainder in fee make a feoffement in fee and the feoffee levie a fine
taile c. with divers remainders over and the tenant for life doth suffer a common recovery in which he doth vouch A who doth vouch the common vouchee in this case this is a good recovery and doth barre the estate taile the remainders and reversion also And if one be seised of land in fee and have two sonnes A by his first wife and B and a daughter by his second wife and he devise the land to his wife for her life the remainder to B his sonne in taile and the reversion of the fee descend to A and the writ of entry is brought against the tenant for life and shee vouch B and he doth vouch the common vouchee and so a recovery is had without the assent of the heire in reversion this is a good recovery and a barre to all the estates in possession remainder and reversion And if a writ of entry be brought against the tenant for life and he make default after default and then the next in remainder in taile is received or he pray in aid of him in reversion or remainder and then they vouch over and so a recovery is had this is a good recovery and a barre to all the estates in remainder and reversion But if the writ of entry be brought against the tenant for life him in the remainder in tail together and they vouch the common vouchee and so a recovery is had this will be no good recovery to barre the estate taile †See before in fines Co. super Lit. 44. And if Sprirituall persons as Bishops Deanes Parsons and such like suffer a recovery of their Ecclesiasticall lands such a recovery is voyd and will not bind the successor * Plow Manxelscase Co. 10. 37◠1. 94. Plow 357. But if it be not in some such prohibited case as before and the recovery be had and suffered by and between such persons and of such things and in such a manner as aforesaid in such cases albeit there be in truth no warranty made upon which the voucher is had and albeit there be nothing to be recovered in value for that the vouchee hath no land to recover over in recompence and albeit that no execution be done in the life time of the party against whom the recovery is had yet is the same regularly a perpetuall barre to the parties against whom the same is had and their heires of all the estates they have in fee simple fee taile or for life in them and against all them in remainder or reversion and their remainders and reversions that are depending upon the estates with this difference The recovery with the Co. 3. 59. Lit. Bro. Sect. 38. Plow Manxels case 12 Ed. 4. 13. 13 Ed. 4. 1. single voucher doth not barre any estate but such as the tenant in taile hath in possession at the time of the recovery had so that if the tenant in taile be in of any other estate as by disseisin or the conveyance of the disseisor or the like this estate is not barred But the recovery with the double voucher doth bind and barre all interests estates and titles that the vouchee hath at the time of the entry into the warranty All which is further illustrated by the examples following c Co. 3. 5. 10. 37. If the writ of entry be brought against the tenant in taile and he vouch the common vouchee and so a recovery is had this recovery with a single voucher is a good recovery and a barre to the estate taile if it be then in possession and not put to a right and to all the remainders and reversions depending thereupon d Co. 1. 135. 136. 3. 59. 12 E. 4. 19. 13 E. 4. Co. 10. 45. So if lands be given to A in taile the remainder to the right heires of B B being then living and the writ of entry is brought against the tenant in taile and he doth vouch over the common vouchee this is a good recovery and a barre to the estate taile and the remainder also But if the tenant in taile be disseised and then suffer a recovery with a single voucher or the disseisor make a new estate in taile to the tenant in taile and then the tenant in taile doth suffer a recovery with a single voucher or if the tenant in taile make a feoffement in fee of land and then take back a new estate to himselfe from the discontinuee in taile or in fee and then doth suffer a common recovery with a single voucher by this recovery the entaile is not barred But by a recovery with a double voucher in these cases the estate taile is barred And therefore as where the tenant in taile doth levy a fine make a feoffement or bargaine and sell the land by deed indented and inrolled and the writ is brought against the Conusee feoffee or bargainee and he doth vouch the tenant in taile and he doth vouch the common vouchee this doth barre the estate taile and the remainders and reversion depending thereupon So if in these cases the conusee feoffee or bargainee doth make a new estate in taile to the conusor feoffor or bargainor or he disseise the conusee feoffee or bargainee and then levy a fine make a feoffement or bargaine and sell to another against whom the writ of entry is brought and he vouch the tenant in taile and he doth vouch the common vouchee by this recovery the first and second estate taile Co. 3. 5. Plow in Manxels case 1. 8. and all the remainders and reversion depending thereupon are barred So if lands be given to I. S. and the heires males of the body of his wife engendred and he hath issue a sonne and after his wife dyeth and he discontinue and take an estate to him and the heires females of the body of his second wife and after discontinue againe and take an estate to him and the heires females of his owne body and after discontinue againe and the writ of entry is brought against the last discontinuee and he doth vouch the tenant in taile who doth enter into the warranty generally and voucheth the common vouchee this is a good recovery and a barre to all the estates in taile and the remainders and reversions also And if A before the Statute of uses had been tenant in taile and had made a feoffement in fee to B and he and B had after made a feoffement to C to the use of A and his wife and the heires of their two bodies and then shee had dyed and after A had entred upon C the feoffee and made a feoffement to W in fee against whom I S had brought a writ of entry and he had vouched A the tenant in taile this had been a good recovery and a barre to all the estates And if lands be given to husband and wife and the heires of the body of Co. 3. 5. 6. 32. the husband with remainders over to strangers and
body or the or his heires females of his body by this the grantee hath an estate taile So if ands be given to a man to have and to hold to him and the heires males or to him and the heires females of his body begotten in both these cases it is an estate tail If lands be given to a man his his wife to have and to hold to them Lit. idem Co. 1. 140. Co. super Lit. 20. Co. 7. 41. and the heires males or to them and the heires females of their two bodies begotten by this they both have an estate taile And if lands be given to them the heires males or heires females of the body of the husband begotten on the wife by this he hath an estate taile his wife an estate for life only And if lands be given to A to have and to hold to him and his heires on the body of B begotten by this A hath an estate taile and B hath nothing So if lands be given to a man and his wife to have and to hold unto them and the heires he shall beget on her body by this they have an estate taile in them both If lands be given to a man and his wife and the heirs of the body of the husband by this the husband hath an estate in generall taile and the wife but an estate for life If lands be given to him to have and to hold to him and his heires he shall beget on the body of his wife by this he hath an estate taile and she no estate at all If one give his land to his daughter or Cousin in Frankmariage Lit. Sect. 17. by this they have each of them an estate taile without any word of heires or heires of body c. If one give lands to B and his heires to have and to hold to B Co. super Lit. 21. Co. 7. 41. 5 H. 5 6. and his heires if B have heires of his body and if he die without heires of his body that it shall revert to the donor by this B hath an estate taile So if one give lands to B and his heires if he have issue of his body by this he hath an estate taile So if lands be given to B to have and to hold to him and his heires provided that if he die without heire of his body that the land shall revert So if lands be given to A B uxori ejus hered eorum aliis hered ipsius A si dict'hered de dict' A B exeunt ' obierunt sine herede de se c. by this they have an estate taile And so in all such like cases where after a limitation of a feesimple these or such like words are added viz. that if he die without heires of his body the land shall revert for in all these cases the habendum is construed to be a limitation or declaration what heires are meant before If lands be given to A and B a young man and maid unmaried to have and to hold to them and the heires of their two bodies Co. super Lit. 26. Plow 135. by this each of them hath an estate taile and if they mary their heires may inherite it If lands bee given to the sonne to have and to hold to him and Co. super Lit. 7. Co. 8. 87. Ass Pl. 47. 5 Ass 14. his heires of the body of his Father by this the sonne hath a fee-simple But if the words bee to have and to hold to him and the heires of the body of the Father engendred by this it is an estate taile in a deed as it is in a Will And if the Father be dead the Law Will. is so also but it seems the sonne shall have by this only an estate for life except he be issue in taile to his father per formam doni So if there bee grandfather father and sonne and the father dieth and lands be given to the son to have and to hold to him and the heires of the body of the grandfather this is an estate taile in the sonne but neither the father nor the grandfather have either of them any estate in these cases If lands be given to I S and the heires of the 12 H. 4. 1. body of his wife being dead begotten by this I S hath an estate taile If one grant lands to I S to have and to hold to him and the Co. super Lit. 385. heires of his body issuing the remainder to I D and his heires in forma predicta by this I S and I D after him have each of them an estate taile If one grant lands to A to have and to hold to him for life the Co. 2. 91 super Lit. 22. 39. Ass Plow 20. remainder to the first sonne of A and the heires males of the body of that first sonne by this the first sonne hath an estate in taile and A his father but an estate for life only But if lands be granted to A for life the remainder to the heires of the body of A by this A hath an estate taile in him And if lands be given to a man and his wife to have and to hold to them and one heire of their bodies lawfully begotten and to one heire of the body of that heire by this there is an estate taile made yet so as it shall last only during the lives of those two heires If one grant lands to another to have and to hold to him and to Co. super Lit. 26. his heires of the body of such a woman lawfully begotten by this he shall have an estate taile for begotten shall be intended by the donee on that woman If there be husband and wife and they have issue a sonne and Co. super Lit. 26. daughter and lands are given to the wife to have and to hold to her and the heires of her late husband on her body begotten by this the wife hath an estate for life and the son an estate in taile and if he die without issue it shall goe to his daughter per formam doni If lands be granted to the husband of A and wife of B to have Co. super Lit. 20. and to hold to them and the heires of their two bodies by this they have each of them an estate in taile in them for there is a possibility that one husband and wife may dye and then the other husband and wife may intermary If there be father and sonne and lands are given to the father 12 H. 4. 3. Dyer 247. to have and to hold to him and the heires of the body of his son by this the sonne hath an estate taile but the father as it seemes but an estate for life If lands be given to the mother for life the remainder to her son Lit. Sect. 352. and the heires of the body of his father on her begotten the father being dead by this the son
hath an estate taile If lands be granted to I S to have and to hold to him and the 12 N. 4. heires he shall happen to have of his wife by this he hath but an estate taile and no feesimple and his wife hath no estate at all If lands be granted to I S and the heires that the said I S shall Co. super Lit. 20. lawfully beget of his first wife and he hath no wife at the time of the grant by this he hath an estate taile If A have issue by B his wife C a sonne D a daughter and A Co. super Lit. 26. die and lands are granted to B to have and to hold to her and to the heires of A her late husband on her body begotten in this case and by this deed C hath an estate taile the woman hath only an estate for life and if C die without issue D his Sister shall have the land per formam doni But if one grant lands to A late wife of I S to have and to hold to the said A and the heires of I S on the body of the said A begotten in this case the son and heire shall take no estate by the grant And the same construction shall be upon the same words in his Will Will. If lands be granted to the husband and wife to have and to hold Co. super Lit. 26. to them and the heires of the body of the surviver of them by this the survivor shall have an estate taile after the death of the other If lands be granted to I S to have and to hold to him heredibus Co. super Lit. 20. de carne sua or heredibus de se or heredibus quos sibicontigerit in all these cases I S hath an estate taile and no more If lands be granted to husband and wife to have and to hold to Co. super Lit. 28. him and the heires of the body of the husband the remainder to the husband and wife and the heires of their two bodies begotten this remainder is void and therefore by this the husband hath an estate in taile and the wife a joint estate for life with her husband and no more If lands bee granted to I S and his heires of the body of Co. 1. 140. Jane a Noke begotten by this I S hath an estate taile and no more If lands be granted to I S heredibus de corpore procreatis by this the heires that shall be begotten afterwards shall take And Co. super Lit. 20. if lands begranted to I S heredibus de corpore procreandis by this the heires of his body before begotten shall take per formam doni as well as those that shall be begotten afterwards If one grant to I S that if he and the heires of his body bee not Co. super Lit. 146. yearely paid 40. that hee or they shall distraine in the lands of the grantor by this the grantee hath an estate in taile in the rent as if he grant to I S that if he and his heires be not paid c. that he or they shall c. he hath a feesimple in the rent For life If one give or grant land to another to have and to hold to him Lit. Sect. 283. 285. Co. 8. 85. 96. 2. 24. Finches Law 60. Co. super Lit. 9. Dyer 307. Co. 7. 23. or to him and his assignes and say not how long nor for what time and the grantor make livery of seisin according to the deed by this the grantee hath an estate for his owne life But no livery of seisin be made no estate at all but an estate at will doth passe by this deed And if he that doth grant the land be but a lessee for years of the land and he make no livery of seisin upon the grant by this his terme of years and that estate which he hath is granted But if he make livery of seisin upon the grant then an estate for the life of the grantee will passe and it is a forfeiture of the estate of the lessee for Forfeiture 17 Ass Pl. 17. years of which he in reversion may take present advantage And if one grant to another Common in his land when he doth put in his owne beasts or Estovers in his Manor when he commeth there and say no more by this it seemes the grantee hath an estate for life If one grant land to I S to have and to hold to him or his heirs Co. 5. 112. super Lit. 8. in the disjunctive this is but an estate for life and no more So if one grant lands to I S to have and to hold to him and his heire in the singular number by this I S hath only an estate for life and no feesimple If one bargaine and sell land to another for money and limit no Co. 1. 87. 130. Plow 539. time and expresse no estate by this the bargaine shall have only an estate for life But otherwise it was before the Statute of Uses for then it had been a fee simple If lands be granted to I S for life and after to the next heire Co. 1. 66. male of I S and the heires males of the body of such next heire male by this I S hath but an estate for life But if it be to the next heires males of I S it is an intaile If one grant land to I S to have and to hold to him in fee 20 H. 6. 33. simple or in fee taile without saying to him and his heirs or to him and his heires males or the like this is but an estate for life and no more So if one grant land to I S to have and to hold to him and his feed or to him and his issues generally without more Co. super Lit. 8. 20. words by this is made only an estate for life But in the construction of a Will the law is otherwise in most of these cases Will. If lands be granted to two heredibus without this word Suis 20 H. 6. 35 by this they have an estate for their lives and no longer If one grant lands to I S to have and to hold to him and his Co. 5. 112. 1. 140. heires for his owne life or for the life of I D by this I S hath an estate for life and no more If one grant lands to A and B Habendum sibi suis omitting Co. 4. 29. super Lit. 1. 8. all other words or to have and to hold to them and their assignes by this they have an estate for life only So if lands be granted to any naturall person to have and to hold to him and his Successors by this he hath only an estate for his life If one grant his lands to I S to pay his debts to have and to Co. 8. 96. hold to him generally without limiting
any estate in this case I S hath an estate for life only If lands be granted to A and B to have and to hold to them Dier 186. for their lives to the use of C for his life by this C hath an estate for his life if A and B live so long If a tenant in taile grant totum statum suum by this the grantee Lit. Sect. 613. Co. 1. 53. super Lit. 345. Plow 562. 162. Co. super Lit. 24. hath an estate for the life of the grantor and no longer And if a lessee for life grant all his estate hereby his estate for life doth passe for this is as much as he can lawfully grant If a man have a sonne and a daughter and die and lands be granted to the daughter and the heires females of the body of the father it seemes by this she hath only an estate for life If one grant land to another to have and to hold to her whiles Co. super Lit. 42. 234 235. she shall live sole or during her widowhood or so long as she shall behave her selfe well or so long as he shall dwell in such a house or so long as she pay 10 l. yearly or so long as the coverture between her and her husband shall continue or one grant lands to a man to have and to hold unto him untill he shall be promoted to a Benefice or the like in all these cases if livery of seisin be made according to the deed or if the grant be of such a thing whereof no livery is requisite the grantee hath an estate for his life and no more and that determinable also If one grant lands to I S. to have and to hold to him for life Co. super Lit. 183. 42. Plow 161. F. N. B. 168. and doth not say for whose life this regularly shall be taken for the life of I S the lessee and not for the life of the lessor But if the lessor himselfe have but an estate for life in the lands granted then the lease shall be construed to be and endure during that life only by which the lessor did hold to prevent a forfeiture And if he that doth make the lease be tenant in taile of the land this shall be taken to be a lease for the life of the lessor And if a tenant for life of land make a lease for years of it and then grant his reversion by the name of a reversion to another To have and to hold to him and his heires by this he hath only an estate for the life of the grantor and no more So if tenant in taile of land grant it to one for years and after grant his reversion to another To have and to hold to him and his heires this shall be construed to be an estate for the life of the tenant in taile and no longer and the atturnement of the tenants in these cases will not alter the cases And so it is in case of a Release also as if tenant in taile doth release to B being lessee for years of the land all his right to the land this shall be taken to enure but for the life of the tenant in taile and no longer as if a man retaine a servant and say not how long this shall be taken for a year Constructio legis non facit injuriam If one grant to I S that if he be not paid yearly for his life Co. super Lit. 147. Co. 8. 85. 40 s. that he shall distraine in the land of the grantor for it by this I S hath an estate for life in the rent And if a man by his deed grant a rent of 10 l. issuing out of all his land quarterly at the usuall feasts this is an estate for life of the grantee If one grant lands to I S and I D. To have and to hold to them Co. 5. 9. 11. 3. during their lives omitting these words and the longest liver of them by this notwithstanding they shall hold it during the life of the longest liver of them And if lands be granted to A To have and to hold to him during the lives of B C and D without any more words by this A hath an estate during all their lives and during the life of the longest liver of them * 38 Eliz. B. R. in the case of Ros Adwick And if lands be granted to A To have and to hold to him during his life and during the lives of B and C by this he hath a lease for his owne life and the lives of B and C and the longest liver of them But if a lease be made to I S of land to have and to hold to him during the time that A and B shall be Justices of Peace or during the time that A and B shall be of the Inner Temple or the like in these cases the â—ailer of one doth determine the estate †Adjudged B. R. 8 Eliz. Hobaâ—t Wisemores case And if a lease be made to B only To have and to hold to him and C for their lives by this B hath an estate for his owne life only and no more and C hath nothing at all And here by the way let it be observed in these and such like cases where lands are granted to one man to Co. super Lit. 41. 239. 388. Plow 556. 28. Dier 328. 321. 264. Co. 10. 98. Occupant have and to hold to him or to him and his assignes or to him his executors administrators and assignes during the life or during the lives of others and in most cases where a man is tenant pur auter vie i. for the life or lives of another or others if the tenant pur auter vie in possession die his estate shall not goe to his heires executors or administrators unlesse they can first get into possession after his death but he that can first get into the possession of the land after the death of the tenant pur auter vie shall have it for his life and after his death then he that can first get into the possession againe c. And therefore if the land were let by the tenant pur auter vie at the time of his death to any under tenant for years or for one year or at will and this undertenant be in possession at the time of the death of the tenant pur auter vie this undertenant shall have it for his life if the life or lives by which it is held so long live for the rule in this case is occupanti conceditur Et capiat qui capere potest And this estate is called an occupancy and he that hath it an occupant To prevent which mischiefe the lessee must take care when he takes his lease to have it made to him and his heires during the life or lives of him or them by whom it is held for in this case after his death his heire and none other shall
a feoffment bee to a bastard with warranty and hee die without issue and the Lord enter by Escheat in these cases the Lord shall never take advantage of these warranties But otherwise it is where a man comes to the land by limitation of use or a common recovery which is by the act of the party for if tenant in taile being in of another estate i. by disseisin or feoffement of a disseisor suffer a common recovery and a collaterall Auncestor of the tenant in taile doth realease with warranty to the recoveror and after the recoveror doth make a feoffment to uses which are executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth in this case the terre-tenants may take advantage of the warranty by way of rebutter albeit the estate be transferred in the post So if hee to whom the warranty is made suffer a common recovery and after the Auncestor dieth the recoveror may take advantage of this warranty by way of rebutter for any man that hath the possession of land albeit he have no deed to shew how he came by the possession of it or how he is assignee may rebut the demandant and so barre him and defend his owne possession And therefore the tenant by the curtesie donee in taile that is in of another estate an assignee by force of a warranty made to a man and his heirs feoffee of a donee in taile may rebut and bar the demandant by the warranty If one infeoffe another of an acre of ground with warranty Co. super Litt. 376. 1 Ed. 3. 13. 5 H. 7. 2. and hath issue two sons and dieth seised of another acre of land of the nature of Burrough English in this case albeit the warranty descend upon the eldest sonne onely yet both the sonnes may be vouched And so also it is of heires in Gavelkind the eldest shall be vouched as heire to the warranty and the rest in respect of the inheritance And in like sort the heire at the Common law and the heire of the part of the mother shall bee vouched or the heire at the Common law may bee vouched alone at the election of the tenant And in like sort the heire at the Common law shall be vouched with the heire in Burrough English And so also a bastard shall be vouched with a mulier And if a man die seised of certain lands in â—ee having issue a sonne and a daughter by one venter and a sonne by another and the eldest sonne entreth and dieth and the land doth descend to the sister in this case the warranty doth descend on the son and he may be vouched as heir and the sister also may be vouched as heir to the land If two make a feoffment with warranty and the one die the survivor shall not be charged alone with the warranty but the heir Co. 3. 14. â—uper Lit. 386. 16 H. 7. 13. 48 Ed. 3. 5. of him that is dead shall be charged also And if two be bound to warrant land and both of them die the heires of both of them ought to be vouched and shall be equally charged And if the heir be vouched in the ward of three severall persons the one of them onely shall not be charged but they shall be charged equally If a woman an heir of the disseisor infeoff me with warranty afâ—er she is maried to the disseisee in this case I may take advantage of Co. super Litt. 365. this warranty against the disseisee and rebut him upon it if he sue me for the land So if the husband and wife sue me for the land of his wife and I have a warranty of a collaterall Auncestor of the husbands descended to him in this case I may make use of this to barre the husband and wife A warranty lineall or collaterall may be defeated determined or 13. When a warranty shall be said to be defeated determined or avoided And how Or not Co. super Lit. 392. 393. avoided in all or in part And this is sometimes by matter in law and sometimes by matter in deed If the estate to which the warranty is annexed be gone the warranty annexed thereunto is gone also And therefore if an estate Co. 10. 96. 1 2 3. 62 Lit. Sect. 741. Co. super Lit. 392. tail towhich a waranty is annexed be spent the warranty is determined And if a man make a gift in taile with warranty and after the donee doth make a feoffment and die without issue the warranty is gone So if tenant in taile discontinue the taile and the discontinuee be disseised or make a feoffment on condition and a collateral auncestor of the issue release to the disseisor or feoffee on condition with warranty and after the discontinuee doth enter upon the disseisor or on the feoffee for the condition broken in these cases the warranty made by the collaterall auncestor is gone So if a Seigniory be granted with warranty and the tenanâ—y escheat so that the Seigniory is extinct hereby also the warranty is defeated So if a collaterall Auncestor heretofore had released with warranty and then had entred into Religion this warranty had bound but if after he had been dearaigned the warranty had been defeated If the father make a feoffment to his sonne and heire apparant Co. super Lit. 384. Bro. Garranty 27. with warranty and die so that the warranty doth descend upon the sonne hereby the warranty is gone And yet if a feoffment be made to a man and his heires and he dieth leaving issue daughters in this case the warranty shall be divided and is not determined If tenant in taile doth make a feoffment to his Uncle and after Lit. Sect. 743. Co. super Lit. 390. Lit. Sect. 744. the Uncle doth make a feoffment in fee with warranty c. to another and after the feoffee of the Uncle doth reinfeoffe againe the Uncle and after the Uncle doth infeoffe a stranger in fee without warranty and dieth without issue and the tenant in taile dieth hereby the warranty made to the first feoffee is defeated So if the Uncle make the warranty to the feoffee his heires and assignes and take backe an estate in â—ee and after doth infeoffe another But if one make a feoffment with warranty to the feoffee his heires and assignes and the feoffee doth reinfeoffe the feoffor and his wife or the feoffor and a stranger in these cases the warranty is not defeated but doth continue still So if two doe make a feoffment with warranty to one his heires and assignes and the feoffee doth reinfeoffe one of the feoffors in this case the warranty is not gone And â—f in the first case the feoffee make an estate to his Uncle in tail or for life saving the reversion or a lease for life the remainder over c. in this case the warranty is only suspended If one make a feoffment or release with warranty and after is
or profit out of land confirme to Lit. Sect. 535. 536. 537. the terretenant his estate in these cases notwithstanding this confirmation the signiory rent common c. doe continue and this shall not enure to extinguish it If the disseisee and a stranger disseise the heire of the disseisor Co. super Lit. 298. and the disseisee confirme the estate of his companion this shall not enure to extinguish the suspended right of the disseisee but when the heire of the disseisor shall reenter it shall be revived And if the grantee of a rent charge and a stranger disseise the tenant of the land and the grantee confirme the estate of his companionâ— this shall not enure to the rent suspended to extinguish it but after the reentry of the tenant the rent shall be revived If a man hold his land of me by Knights service rent suit of court Co. super Lit. 305. c. and I confirme his estate to hold of me by Knights service only for all manner of services and demands in this case albeit this doe abridge the service yet it shall not be construed to take away wardship reliefe aid to mary my daughter and make my sonne Knight and the like If I have an estate in land for my life and he in the reversion doth See before confirme the estate to me and my wife for the terme of our lives this shall enure only as a confirmation of my estate and not so as to give any estate to my wife But if I have a lease for life or yeares in right of my wife and he in the reversion doe confirme the estate to me and my wife To have and to hold to us for our lives this shall enure not only to confirme the estate but also to create an estate to me after my wives death And in the case of a lease for yeares it maketh our estate joint but in the case of a lease for life I shall take by way of enlargement of estate for my life after my wives death And if in this case the confirmation be to me and my wife To have and to hold the land to us two and our heires this shall enure to us in fee simple as Jointenants If land be let to husband Co. super Lit. 299. and wife To have and to hold the one moity to the husband for his life and the other moity to the wife for her life and the lessor confirme to them both their estate in the land To have and to hold to them and their heires in this case as to the one moity it doth enure only to the husband and his heires but as to the other moity they shall be Jointenants And yet if such a lease for life be made to two men by severall moities and the lessor confirme their estates in the land To have and to hold to them and their heires by this they are tenants in common of the inheritance If the disseisee confirme the estate of the disseisor To have and to Lit. Sect. 419. hold to him and his heires of his body engendred or To have and to hold to him for terme of his life this shall enure to him as a fee simple and shall confirme his estate for ever If my disseisor make a lease for life the remainder over in fee and Co. super Lit. 298. 297. I confirme the estate of the tenant for life this shall not enure to nor availe him in remainder And if the disseisor make a gift in tail the remainder to the right heires of the tenant in taile and the disseisee confirme the estate of the tenant in taile this shall not extend to the fee simple no more then if the disseisor make a gift in taile the remainder for life the remainder to the right heires of the tenant in taile and the disseisee confirme the estate of the tenant in taile for this shall extend only to the estate taile and not to the remainder for life or in fee. But if the disseisee in the first case confirme the estate of him in the remainder this shall enure to and availe the tenant for life And so if a disseisor make a lease for life and keepe the reversion and after the disseisee doth confirme to the disseisor this shall enure to the tenant for life And so if a disseisor make a lease for life to A and B and the disseisee confirme the estate of A this shall enure to B and make his estate good also in the other moity And so if there be two disseisors and the disseisee confirme the estate of one of them without saying more this shall enure to them both But if the confirmation be of the land To have and to hold the land to one in this case it may enure to him alone So if a disseisor enfeoffe A and B and the heires of B and the disseisee confirme the estate of B albeit it be but for his life yet this shall enure to both and to the whole fee simple If a lease be made for life to A the remainder to B for life and the lessor confirme their estates in the land To have and to hold to Co. super Lit. 299. them and their heires this shall enure as to the one moity to A in fee after the death of B and as to the other moity in fee to B after the death of A. If lands be given to two men and the heires of their two bodies Co. Idem begotten and the donor doth confirme their estates in the land To have and to hold the land to them two and their heires it seems this shall enure to them as a joint estate for their lives and after for severall Inheritances If the lessee for life or the disseisor doth make an absolute lease Lit. Sect. 516. 521. 519 520. 541. Co. 579. for yeares and he in the reversion or the disseisee doth confirme the estate of the lessee for yeares this makes the lease good for all the time So if the disseisor makes a lease for life and the disseisee doth confirme the estate of the lessee for life this makes the estate good for the life And if he in reversion confirme the estate of the termor but one houre this doth make it good for all the terme And if an estate for life or in fee be confirmed but for one houre it is a good confirmation for all the estate And if the disseisee confirme the estate of the disseisor To have and to hold for one houre yeare or for life or in taile this is a good confirmation for ever and makes his estate unavoidable And yet if the disseisee confirme the land Habendum the land for life or in taile c. contra If a voidable lease be made for forty yeares and the lessor confirme â—ier 52. 339 Co. 5. 81. the terme for twenty yeares this is a good confirmation of the whole terme
good Devise of the land in Fee-simple or Fee-taile * 〈◊〉 c. 9. â—ac New mans case And if a man make a Feoffment of his land to the use of his last Will and then devise that his Feoffees shall be seised to the use of I S this is a good Devise of the land per intentionem * Plow 54â— Coo. 4. 66. 8. 95. And if I devise that I S shall have hold and occupy my land for his life this is a good Devise of the land for his life * Dye◠〈◊〉 33. 128. Coo. 1. 83. 6. 42. Dyer 4. 33. If a man have a Lease for yeares of land and he devise his Lease or his Terme or his Ferme or the profits or occupation of the land by either of these Devises his whole lease and all his interest in the land is given as well as by any other forme of words 3. A man may devise lands tenements or hereditaments in possession in Fee for life or yeares or he may devise it in reversion viz. to one for life the remainder to another in Fee or in taile or in any other sort as a man may grant it by his Deed and such Devises are good But if the Fee-simple of land be devised to one the remainder cannot be devised to another albeit the first Devise be but conditionall And therefore if land be devised to I S and his heires and if he dye without heires that it shall remaine to I N and his heires this is a void remainder to I N. So if a man devise his land to I S in Fee ita quod solvat I N 20l. and if he faile that it shall remaine to I N and his heires this remainder to I N is void for if I S faile of payment I N shall not enter and have the land but the heire of the Devisor And yet perhaps a rent may be devised after this manner Howbeit if another man have a Rent-charge of 20l. a yeare issuing out of my land for Dyer â—39 â—4 20. yeares and he devise this unto me untill I have levied 100l by way of retainer the remainder to I S this remainder is not good 4. A Devise may be of lands goods or chattels simply and absolutely or conditionally the simple Devise also may be in praesenti Condition Pâ—â—w 〈◊〉 Peâ—k Sect. â—63 See 〈◊〉 〈◊〉 8. 95 or in futuro And therefore as a Devise to one and his heires in praesenti is good so a Devise to one and his heires after the death of I S is good If I devise land to I S and his heires on condition as so as or ita quod he pay 10l to W S or paying to W S 10l or ad solvendum 10l to I S the Devise in all these cases is a good conditionall Devise and if the condition be not performed or broken the estate is ended and the heire may take advantage of it And therefore if lands be so given to the heire the condition is idle because none can enter but him And if I devise that if I S pay my Executors 20l. that hee shall have White acre to him and his heires for ever or for life c. this is a good Devise and after the contingent shall take effect accordingly and in this case and such like the heire of the Devisor must keep the land untill the contingent doe happen In like manner as if it bee a chattell the Executor shall keep the thing untill the condition bee performed and after a condition broken hâ— shall take advantage of it 5. A Devise may be also with a limitation as in the cases before Limitation and as where one gives land to another and his heires so long as I S shall have heires of his body or where one doth devise his land to A his sonne and his heirs for ever paying to B his brother 20 l. when he shall come of age and then that he shall enter and have it to him and his heirs and if he die without heirs of his body the said B then living then that B and his heirs shall have it in the same manner And these and such like Devises are good 6. A man that is seised of land in Fee may devise that his Executors Coo. super Lit. 112. 11â— 236. shall sell it or may devise it to his Exâ—cutors to sell or Devise it to his Executors and that they shall sell it and these Devises are good 7. A Devise may be of a rent or of land reserving Dyer 348. 100. 8. 84. 85. Clause of Distresse a rent with clause of Distresse As if a man Devise land to I S paying 10 l. by the yeare to his wife and if it be unpaid â—arrantiae that she shall distraine for it this is a good Devise But a Warranty cannot be made by a Wilâ— And yet if a man devise land to Coo. super Litt. 38â— another for life or in Taile reserving a rent in this case the heires of the Devisor shall be bound to the Warranty in Law and the Devisee shall take advantage of it 8. A man may devise his land Plow 523. 540. Dyeâ— 357. Coo. 8. 94. 83 to one and devise a rent out of the same land to another and these Devises are good So a man may devise his land to one in Fee and after devise the same land to another for life or years and these are good Devises and may stand together So also if a man in the fore-part of his Will by generall words devise all his lands to one in Fee and in the latter part of his Will devise some speciall part of it to another in Fee these Devises are good and shall stand together as for example if one have a Farm and in the first part of his Will give this Farm to one and in the latter part of his Will give one Close a part of this Farm to another or a man devise all his land in B which is in the County of Glouâ— to A his daughter and the latter part of his Will deviseth all his land in the County of Glouâ— in the possession of I S to his sonne and part of the land in B. is in the possession of I S and in Gloucestershire these are good Devises and shall stand together * 38 Bliz. Co. B. Agreed divers times But otherwise it is when the generall clause doth come last as where one doth give his land to A his daughter and in the latter part of his Will doth give all his land in Hartfordshire in the possession of I S to W and the land given to A is in Hartfordshire and in the possession of I S in this case the Devises will not stand together for the first Devise is void and so also it is where both the Devises are particular as where first in a mans Will he doth give White Acre to A and his heirs and after in
except it be so called the Devise is void And yet by the Devise of the use profit or occupation of land the land it selfe is well devised and by the Devise of land it selfe the reversion thereof may be devised But if one intending to devise a horse doth devise an oxe or meaning to give gold doth give apparell these Legacies are void unlesse his meaning may appeare by some circumstance to be otherwise as if a man have but one horse and he be called Arundell and he devise his horse Bucephall this Legacy is good enough And if a man give all his mâ—ny in such a Chest when in truth there is no mony in that Chest or give to another the 10l which I S doth owe him when in truth I S doth not owe any such money this Devise is void And yet if the Devise bee thus viz. I give â—o A B 10l and I will that the same bee paid of the money I have in such a Chest or of the money which such a man doth owe me in this case the Devise is good albeit theâ—â—â—e not any money in the Chest or owing And if one give 10l remaining in such a Chest whereas in truth there is but 5 l. in the Chest in this case the Legacy is good for the 5 l. But error and mistake in the quantity and quality of the thing devised when the same for the substance of it is certaine doth not hurt And therefore if the Testator meaning to give the fourth part of his goods give the one halfe or meaning to give but 50 l. give 100 l. or è converso meaning to give a greater doth give a lesse quantity or sum in these cases the Legacy is good and the Legaâ—ary shall have as much as the Tâ—stator did meane If a man give his white horse when in truth he hath but one horse and that is black this is a good Devise of this horse And if the thing devised be under such generall words that Incertainty in the thing Devised Swinb part 7 cap. â—0 the minde of the Testator cannot bee knowne by it the Devise is void And therefore if the Testator say I doe bequeath something or I bequeath a substance or I bequeath a body or I bequeath or the like these Devises are void for incertainty So if he say I doe give lands or I doe give goods these Devises are void And yet if the Testator give a horse an oxe a gold chaine or the like indefinitely in these cases the Devise is good albeit he have no such thing But if one devise thus I give lead money wheat oyle or the like and say not how much or what quanitity this Legacy is void for incertainty or at least the Executor may deliver what quantity thereof he will and this shall satisfie the Legacy 7. As Seventhly in respect of the Tenures and conditions causes and ends of the Devise Swinb 2â—9 touching the terms of a Devise it must be known That if one devise any thing to wicked ends or upon wicked conditions as to the end that the Devisee shall kill a man or because he hath killed a man or the like these Devises are void in like manner as it is when the cause or motive is false as because one is my Cousin or hath lent me money I devise to him 20 l. and hee is not my Cousin or did not lend me money these Devises are void And as touching the rest of the properties of a good Devise see them before Coo. 3. 36. in the properties of a good Testament And here by the way A Caveat for making of Testaments be advised if thou hast land to settle rather to doe it by act executed by advice of learned Counseâ—l in thy life and health-time and therein adde such conditions and provisoes of revocation and otherwise as thou wilt or if thou wilt doe it by Will then doe it in thy perfect memory and by learned advice Let the Will bee indented and of two parts and leave one part with a friend that it be not suppressed after thy death Let there be credible Witnesses to the publication thereof and let their names be subscribed to it Let the whole Will be written with one hand and in one peece of paper or parchment for feare of alteration addition or diminution Let the hand and seale of the Devisor be set to it And if it be in severall parts let his hand and Seale and the hands of the Witnesses be to every part If there be any rasing or enter-lining let there be a Memorandum of it And if thou make any revocation of thy Will doe it by good advise and by writing Vox audita perit Litera scripta manet The generall rules for the Exposition of Wills are these That they Plow 540. Coo. supeâ— Litt. 322 8. The Exposition of Testaments and Devises and how they shall bee construed and taken Devises of Land First in respect of the peâ—son that is to take by the Devise and what when and how he shall â—o take by the Devise must have a favourable and benign interpretation and as neare to the minde and intent of the Testator as may be and yet so withall as his intent may stand with the rules of Law and bee not repugnant thereunto It is said to be therefore a maxime of Law Quod ultima voluntas testatoris perimplenda est secundum veram intentionem suam according to these Verses Sed legum servanda fides suprema voluntas Quod mandat fierique jubâ—t parere necesse est If a Devise be made of land to I S and the heirs males of his Termes of the Law tit Devise Coo. super Litt. 25. Plow 414. body by this Devise the sonnes and not the daughters of I S shall have the land And if a Devise be made of land to I S and the heirs Females of his body by this Devise the daughters and not the sonnes of I S shall have the land And yet it hath been said in these cases that if in the first case the Devisee have issue a daughter who hath issue a sonne or in the last case hath issue a sonne who hath issue a daughter that this sonne and daughter shall take by this Devise in these cases but it seemes the Law is otherwise If a Devise be made of land to I S and his heires males by this 27 H. 8. 〈◊〉 Grant Devise I S hath an estate Taile but otherwise it is of such a limitation 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 generall shall have it If a Devise be of land to I S and to the eldest heirs females of Coo. supeâ— Litt. 27. his body by this Devise all his daughters and not one of them only shall take it So if one devise gavelkind-Gavelkind-land to a man and his eldest heirs
this doth not alter the custome but by this all the sonnes shall take If a man devise his land to his wife for life the remainder to â—â—tz 〈◊〉 2. his sonne and the heirs males of his body engendred and for default of such issue the remainder to his next heir male and the heires males of the body of that heire male and after his sonne die without issue living his wife and the Devisor hath issue a daughter who hath issue a sonne in this case and by this Devise it seemes the daughter and not her sonne shall have the land and that in Fee-simple If a man devise his land to his wife for life and after to his own Trin. 9. â—ac Aâ—â—â—dged Curteâ—s case right heirs males and he hath issue three daughters and after his death one of them hath a sonne in this case and by this Devise the next collaterall heire male of the Devisor and not the sonne of the daughter shall have the land If a man have issue two sonnes and a daughter and devise his Dâ—er 122. land to his wife for tenne yeares the remainder to his younger sonne and his heirs and if either of the said two sonnes die without issue of their bodies the remainder to the daughter and her heirs and the younger sonne die in the life time of the father and after the father die in this case and by this Devise the daughter hath a good remainder but it seemes the elder sonne hath first an estate Taile by the intent of the Devisor If a man devise some land to A his eldest daughter and her Dâ—eâ— 330. heires and if she die without issue to T his youngest daughter and her heirs and if she die within 16 years that A shall have her part to her and her heirs and if A marry such a one that T shall have her part to her and her heirs and if T die having no issue that all her part shall goe to M and E his Neâ—ces and if A die without issue that T shall have her part to her and her heires and T after the 16 years doth die without issue in this case the Neeces M and E and not A shall have her part that is dead If land be devised to A for life the remainder to a Monke for Perk. Sect. 5â—6 â—67 life the remainder to I S in Fee by this Devise he in the remainder in Fee shall take presently after the first estate for life ended and if the Devise be to a Monke for life the remainder to I S in Fee by this I S shall take presently If a man devise his land to a womâ—n and her brother and the Dyer 326. heirs of either of their two bodies and for default of issue of the said woman and her brother the remainder to the right heires of the Devisor and after the death oâ— the Devisor the brother dyeth without issue and the sister hath issue and dyeth in this case and by this Devise her issue shall have a moity and no more of the land If one devise two parts of his Land to his four younger sonnes Dyer 304. in Taile and that if the Infant in the wombe of his wife be a sonne that he shall have the fifth part as co-heire with the four and if his five sonnes die without issue that the two parts shall revert and then the Devisor dyeth and after a sonne is born and after he and three of the other sonnes die in this case and by this Devise the Infant shall not take any thing because he is uncapable and the two parts shall not revert to the heire untill the five sons be dead without issue If one devise the Mannor of Dale to the eldest sonne of I S in Adiudged Co. B. M. 36. 37 Eliz. Brownes case Fee and the Mannor of Sale to I D for life the remainder to such of the children of I S as shall be then living and shall have the Mannor of Dale and the eldest sonne of I S after the Testators death doth sell the Mannor of Dale and after I D dyeth in this case and by this Devise none of the children of I S shall have the Mannor of Dale but it shall goe to the heires of the Devisor If one devise his land to the children of I S by this devise the children that I S hath at the time of the Devise or at the most the children that I S hath at the time of the death of the Testator and not any of them that shall bee borne after his death shall take If one have two daughters by divers women and devise a moity of Dyer 34â— his land to his wife for seven yeares and that the elder daughter shall enter into the other moity at her day of marriage and if his wife be with child of a daughter that then she shall have an equall portion with the other sister and the Devisor dyeth and the wife doth enter and hath not a daughter and then the elder daughter doth take a husband and enters upon a moity the younger daughter dies without issue and the seven years expire in this case and by this devise the collaterall heir of the younger daughter shall have the moity of the whole and not the moity of a moity only and that by discent If a man have issue B C and D sonnes and he devise his land Curia B. R. Mich. 20. Iaâ— Next of blood to D his sonne the remainder proximo de sanguine or to the next of blood of the Testator in this case and by this Devise B shall take after the death of D as the next of blood In like manner if the Testator have four daughters and he devise his land to the youngest in Taile the remainder to the next of blood by this Devise the eldest daughter and not all the rest shall have the land And if the Testator have issue B his elder sonne and C his younger son and B have issue D his sonne and B is attainted and dyeth and the Testator deviseth his land to I S for life the remainder to the next of blood of the Testator by this Devise D and not C shall have the land If a man have issue B and C sonnes and D a daughter and devise Broo. Dâ—scent Piâ— 19. 8. Aâ—â— Pl. 4. his land to C for life and after that it shall remaine to the next of blood to his children to the next heirs of the blood of his children and C dyeth and B dyeth without issue and D hath issue a daughter in this case and by this Devise the heires of A shall not take but the next of blood to the children of A which is the daughter of D and his children themselves are excluded and if the sonnes have any issues living they shall take with her by this Devise If the Testator have issue by A his first wife three daughters â—â—â—â—dged Mâ—
20. Iâ—c periâ— versâ—s Peaâ—se B. R. Joane Elizabeth and Anne and by B his second wife â—lice and Elizabeth and by C his third wife William a sonne and three daughters Mary Katharine and Johan and he devise his land to Johan his youngest daughter for life paying 1â—s 4d to the sonne and after her death to the sonne and the heirs of his body and after his death without issue to Elizabeth the daughter of the second wife and Mary the daughter of the third wife for their lives the remainder in Latin to the next of the blood of the Devisor for ever and the elder Joan hath issue I P and dyeth the sonne dyeth without issue the younger Joan hath issue and dyeth Elizabeth of the first wife hath issue and dyeth Anne dyeth having issue Alice dyeth without issue Mary and Elizabeth born of the second wife die without issue Katherine dyeth without issue in this case and by this Devise the sonne and heir of the elder daughter after the death of the sonne without issue and of Elizabeth and Mary and not all or any of the children or their children shall have the land because proximo in Latin doth devote a person certain and there be expresse Devises to others But if in this case the remainder bee limited in generall to the next of blood without any other matter all the daughters perhaps may have it as Joint-tenants If a man have two sonnes and a daughter which hath two daughters â—â—â—z Devise 9. Perk. Sect. 508. and he devise his land to a stranger for life the remainder to his second sonne for life the remainder in Fee to the next of blood to his sonne in this case if the eldest sonne die without issue the daughter and her daughters shall have the land Whatsoever will passe by any words in a Deed will passe by Secondly in respect of the thing devised See in the Exposion of Deeds supra the same words in a Will and more also for a Will is alwayes more favourably interpreted then a Deed And therefore if a man devise the profits use or occupation of land by this Devise the land it Coo. 8. 94. Plow 525. selfe is devised If a man devise thus I give all my lands to I S or I give all my Mevils case Fitz. Deviâ—e 4. Bâ—oo Done 41. tenemeâ—ts to I S or I give all my lands and tenements to I S by this Devise is given and I S shall have not only all the lands whereof the Devisor is sole seised but also all the lands whereof he is seised in common or co-parcinery with another and not only the lands hee hath in possession but also the lands hee hath in reversion of any estate in Fee-simple but by this Devise regularly Leases for years of lands will passe If a man devise thus I give all my land in possession only by Plow 66. this Devise there is given the lands he hath in possession only and none of the lands he hath in reversion If a man be seised of land in Fee-simple in Dale and devise thus Plow 343. 544. old N. 〈◊〉 89. Fitz. Devise 17. I give all my lands in Dale to I S and after Will made and published he doth purchase other lands in Dale and dyeth in this case and by this devise I S shall not have the new purchased lands and in this case it hath beene held further That if the Testator doe by word of mouth after the purchase of the same lands declare himselfe to be minded that I S shall have the same new purchased lands also by this Devise that notwithstanding I S shall not have them by this Devise * Trin. 37 Eliz. B. R. Breckford versus Parincoâ—e And yet it hath been adjudged That if in this case one come to the Devisor to buy his new purchased land and he say nay but I S shall have it as the rest that this is a new publication of the Will and that I S by this devise shall have these new purchased lands for a new publication of the Will in these cases will make the land to passe But if a man devise the Mannor of Dale and at the time of the devise he hath it not or devise his lands in Dale and at the time of the devise he hath no lands there and afterwards he doth purchase the Mannor of Dale or lands in Dale by this devise and in this case the Mannor and the new purchased lands will passe for in this case it shall be intended he meant to purchase it And yet the Statute enabling a man to devise lands saith Any person See before having c. Coo. 3. 30. If one have an ancient Tenement and lands belonging to it and Loftis versus Baker Hill 20. Ia. B. R. then purchase more lands and occupy them altogether with the Tenement many years and being all thus in his occupation he doth make a devise after this manner I give my Tenement in Dale and all my lands belonging to it now in my occupation to I S. by this devise I S shall have the ancient land onely and none of the new purchased land but if there be no ancient land belonging to the Tenement but new purchased land onely there perhaps it may be otherwise for in this case the words cannot else be satisfied As in case where a man hath some lands in Fee-simple and other lands for yeares onely in Dale and he devise all his lands and Tenements in Dale by this devise the lands he hath for years doth not passe but if he have no other lands in Dale but these lands in this case perhaps this land will passe If one have a moity of lands in Essex and a moity of lands in In Mevils case Kent and he devise thus I give my moities and all my other lands in Kent to I S it seems by this devise the moities in both Counties do passe and that I S shall have both the moities If a man be seised in Fee in possession of the moity of a Farm called Plich 20. 12â— Adiudged Scatergoods case the Farm of C. and of the reversion in Fee of the other moity expectant on a lease made to A and B for their lives and he make his Will thus I will that my wife shall have all my living which I now occupy untill my son come to 21. years of age and then I will have her have the thirds of all my living and that my sonne shall have all my Farm of C to him and his heirs by this devise if A and B dye before the heire be 21. yeares of age the wife shall have the thirds of the whole Farm and not of the moity in possession onely If a man be seised of land in a Village and in two Hamlets of the Dyer â—65 same Village and he devise all his lands in that Village and in one of the Hamlets by this
devises if the husband and wife have no children at the time of the devise is created an estate taile and if they have any children at the time of the devise then hereby is created an estate for all their lives onely in joyntenancie And if land be devised to A for life the remainder to B and the heires of his body the remainder to I S and his wife and after to their children by this devise I S and his wife have estates for their lives onely and their children after them estates for their lives joyntly And albeit they have no children at the time yet every child they shall have after may take by way of remainder And so also it seems is the law upon such a limitation by Deed Deed. If lands be devised to I S and his heires males or his heires females without saying of his body by this devise I S hath Deed Litt. Sect. 31. 9. H. 6. 25. 27. H. 8. 27. an estate taile But if such a limitation be by deed it is a Fee-simple If one have two sonnes and devise White Acre to his eldest sonne and his heires and Black acre to his youngest sonne and his heires Hill 22. Iac. B. R. Daniels case and if either of them dye without issue then that the other shall be his heire by this devise either of them hath an estate taile and no Fee-simple If one have land in Kent in W S and T and have one male child Adiudge M. 9. Iac. Wallops â—ase and a daughter and his brother hath three children B C and D and he devise his land thus Item I give my land in Kent to my male childe and his heires and if he dye without heires of his body that that the land in W shall go to B and his heires Item I will my land in S to C and his heires and my land in T to D and his heires in this case and by this devise the male child of the Devisor hath an estate taile in all the lands and after his death without heires it shall remaine according to the Will So that if one devise his land to his eldest sonne and his heires and if he dye without heires of his body that it shall remain to his youngest sonne and his heires by this devise the eldest sonne hath an estate taile and the youngest sonne the Fee-simple If one devise his land to his sonne W and if he marry and have any issue male begotten of the body of his wife then that issue to Coo. 9. 127 have it and if he have no issue male then to others in remainder by this devise it seems W hath an estate taile to him and the issues male begotten on the body of his wife If one devise White Acre to I S and the heirs of his body and then after saith thus and I will that I D shall have Black Acre in the same Perk. Sect. 561. 20. H. 6. 36. manner that I S hath White Acre by this devise I D hath an estate tail in Black Acre as I S hath in White Acre Et sic de similibus * Tr. 30. Eli. And if one devise White Acre to I S and then say Item Black Acre to I S and the heires of his body by this devise he hath an estate taile in both Acres If one devise his land to his wife for yeares the remainder to his younger sonne and his heires and if either of his two sonnes dye Dyer 122. without issue c. that it shall remaine to his daughter and her heires and the younger sonne dye in the life time of the Father and after the Father dyeth it seemeth by this devise the elder son shall have the land in taile If one devise his land to his wife for life and after to his sonne Adiudge Tri. 7. Iac. Co. B. Robinsons case and if his sonne dye without issue having no sonne or having no male then that it shall goe to another by this devise the sonne hath an Estate taile to him and the heires males of his body If lands be given to a man and woman unmarried and the heires of their two bodies or to the husband of A and wife of B and the Coo. super Litt. 20. 26. Plow 35. heires of their two bodies by these Devises are made estates in Taile If a man devise White acre to his three brothers and Black acre to C his brother so as he pay 10l to I S and otherwise that it shall remain Dyer 333. to the house provided that the same lands be not sold but go unto the next of name and blood that are males if it may be it seemes that by this devise C hath an estate tail in black acre and that if he die without issue it shall go to the three other brothers and their heires males in taile one after another and that white acre also is so entailed in every of their parts For the words shall remaine to the house shall be construed to the most worthy of the Family and the words that are males shall be construed in the future tense If land be devised to I S and the heires of his body and that if he die that it shall remain to I D by this Devise I S hath an estate Adiudg 14. Eliz. Coo. B. Trin. 9. Iac. B. R. Taile and the latter words do not qualify the former but I D must attend his death without heires of his body before he shall have the land If land be devised to I S and the heirs males of his body and if it Dyer 171. happen that he dye without heire of his body that it shall go to H and his heires by this Devise I S hath an estate to him and the heires males of his body and the subsequent words do not alter nor enlarge the estate If land be devised to I S and E his wife and to the heires of Coo. super Litt. 26. the body of the Survivor of them by this Devise the Survivor shall have a generall estate Taile If land be devised to I S and the heires he shall have by A his wife by this Devise I S hath a Fee Taile and not a Fee simple as Coo. super Litt. 26. Deed. he hath in case of such a limitation by deed If land be devised to I S and to the heires of the body of such a woman by this Devise I S hath an estate Taile and begotten Coo. super Litt. 26. shall be intended begotten by him If one devise land to his sonne and his heires and that if his sonne die within the age of 21 yeares or without issue that the land shall Adiudg M. 37. 38 Eliz. Sale versus Geâ—rard remain over and the son dieth within age having issue in this case and by this Devise the sonne hath an estate Taile and or in this place shall be taken for and If land
bee devised to a man and his wife and to one heire of their body and the heire of the body of that heire by this Devise Coo. super Litt. 22. Deed. an estate Taile is made in a Will as well as in a Deed. If a man devise his land thus I give White acre to A my sonne M. 18. Iac. B R. Gilberts case and his heires Black acre to B my sonne and his heires and Green acre to C my sonne and his heires provided that if all my said sons die without issue of their bodies that then all my said lands shall goe to M my wife and her heires by this Devise they have all of them estates in Taile of their land and as it seems crosse remainders to either of them of the land of each other If one devise his land thus I give my land in Dale to I S and if Coâ— 9. 128. he die without issue male of his body then that it shall remain over to I D by this Devise I S hath an estate Taile If a man hath issue three sonnes and devise his land thus viz. one part to two of his sonnes in Taile and another part to his third Litt. Broo. Sect. 4â—â— Broo. Devise 38. Done 44. sonne in Taile and that neither of them shall sell his part but that either of them shall be heire to other in this case and by this Devise either of them hath an estate Taile and if one of them dye without issue his part shall not revert to the eldest but shall remain to the other sonne for it is an implied remainder If there be husband and wife and they have issue a sonne and a Coo. super Litt. 26. daughter and the husband die and land is devised to the wife and the heires of her late husband on her body begotten in this case and by this Devise the wife hath only an estate for life the sonne an estate in Taile and so also the daughter in case he die without issue If one devise to I S that if he and his heires of his body be not For life Coo. supâ—r Litt. 147. 8. 85. paid 20l. rent yearely he and they shall distraine c. by this Devise I S hath an estate taile of this rent But if the Devise be that if I S be not paid 20l. yearly he shall distrain c. by this Devise I S hath only an estate for life So if one devise a rent of 10 l. out of his land to be paid quarterly and say not how long the rent shall continue this is but an estate for life If one devise his land thus I give my land in Dale to I S for his life or to I S without any more words or to I S and his Fitz. Devise 16. Coo. 6. 16. Perk. Sect. 577. heire in the singular number or I S and his children and I S hath children at the time of the Devise or to I S and his successors I S being a naturall person by all these and such like Devises I S hath only an estate for life in the thing devised * Mich. 13. Ia. B. R. Dyer sect 307. But if the Testator have only a Terme of yeares in the land whereof the Devise is made and devise this land to I S and doth not say for what time it seemes that by this Devise the whole Terme is devised unlesse the intent doth appeare to be otherwise And if one devise land whereof a man is seised in Fee to I S paying 10l to I D by this Devise albeit there be no estate expressed yet I S hath the Fee-simple of the land in respect of the paiment of See before Litt. Broo. Sect. 406. 125. the money But if the intent of the Testator appeare to be that I S shall have the land but for his life contra for there the consideraration will not alter the estate expressed upon the gift If land be devised thus I give my land in Dale to I S and his Deed assignes without more words by this Devise is held to be given Coo. super Litt. 9. 4. 29. no more but an estate for life by construction upon a Will as it is upon a Deed. And yet in the New Termes of the Law tit Devise the contraray is affirmed Ideo quâ—re If one devise thus I will that I S shall have and occupy my land Pasche 9. Iac Newmans case in Dale and say not how long by this Devise I S shall have the land for his life * Dyer 342. But if I devise that I S shall enter into my land and say no more by this Devise I S hath no estate at all but power to enter into the land only If a man have a sonne and a daughter and dieth and lands are Coo. super Litt. 2â— devised to the daughter and the heires females of the body of the Father by this Devise the daughter hath only an estate for her life for there is no such person for she is not heire If one devise his land thus I give my land in Dale to I S for Coo. 1. 6â— his life and after to the next right heire of I S in the singular number and to his right heires for ever by this devise I S hath only an estate for life So if one devise land to I S for life and after to the next heire male of I S and to the heires males of the body of such next heire male by this devise I S hath an estate for life only but if it be thus I give my land in Dale to I S for his life and after to the heires or to the right heires of I S by these devises I S hath the Fee-simple of the land And if it be to I S for life and after to the heires males of I S by this I S hath an estate Taile If one devise land to I S and E his wife and after their decease or the remainder to their children by this devise whether they Coo. 6. 16â— have or have not children at the time I S and E his wife have estates for their lives only If one devise a Moity of his land to his wife for life and the other Curiaâ— Ia. Co. B. Moity to his second sonne and after by another clause doth devise it all to his sonne after the death of his wife by this Devise the sonne hath only an estate for life after the wives death and no more If one devise his land to I S in Fee after the death of I B being Broo. Devise 48. 52. Litt. Broo. 107. 13 H. 7. 13. New termes of the Law tit Devise Plow 158. 414. 521. By Implication his sonne and heire apparant by this Devise I B hath an estate for ife by implication and untill the Devise take effect the law gives it to him by discent And so also it seemes the law is where
remaine to I D and his hâ—iâ—â—s in this case if the Devisee doe not pay the money I D shall not take advantage of it nor have the land according to the Devise but the heir of the Devisor shall enter and have the land and put out the Devisee And if one devise his land to I S for life on condition to pay 20 l. to I D and after to I D in Taile in this caâ— if I S doe not pay the 20l. it seemes the heire shall enter and hold the land during the life of I S and that I D shall not have it till then And in cases of Devises of goods or chattels other words will Swinb 136 make a Devise conditionall in divers cases as when as I give to to I S 10 l. when he shall be married and whiles as I give to I S â—0 〈◊〉 whiles he shall abide with my children which is as much as if he abide with my children and which as I give him 〈◊〉 which shall marry my daughter and the ablative Case absolute as my sonne being dead I give to I S 20 l. And of all these conditions regularly the Executor and no other shall take advantage But if the condition bee such for the matter and substance of it as is impossible unlawfull or the like there perhaps these words may not make a condition nor the thing devised conditionall but rather make the whole sentence void Whereof read Swinb part 4. Sect. 5. at large If one devise his land to his daughter and heir apparant in Fee-simple 11. Where a Devise void or voidable in his exception may become good by matter ex post facto or not â—itz tit Asâ—â—se 27. this Devise is void yet if in this case the wife of the Devisor be privily with child of a sonne which is born after his death now is the Devise become good for now shee is not heir to her father If a woman that hath a husband devise her land by Will during Plow 344. the Coverture and after her husbands death when she is sole she do publish and approve it in this case and by this meanes the Devise is become good but if she make and publish it during the Coverture and after her husband die and she become sole this accident without any more will not make the devise good the same Law is of the Devise of good and chattels If an Infant within age devise his lands or goods and publish his Plow 344. Will and after he comes to bee of full age he doth publish and approve it againe in this case and by this meanes the Devise is become good but if the Infant live to be of full age and doe not publish and approve it contrâ— If a Legacy of goods or chattels be given on condition to a man Swinb 340. uncapable and before the condition is extant he doth become capable in this case and by this meanes the Devise is become good See before at Numb 6. more of this matter A Devise that hath a good beginning is sometimes avoided and 12. Where 〈◊〉 Devise good in his inception shall or may become void by matter ex post facto or not Liâ—â— 16â— Coo super 〈◊〉 112. Plow 540. 541. Coo. 8. 〈◊〉 33. overthrown by subsequent matter in the same Will and sometimes by subsequent matter in another Will and sometimes by some other accident ex post facto For if a man make a subsequent or latter Devise either in the same or in another Will so contrary and repugnant to the former that both cannot stand together this doth overthrow tâ—e former And therefore if a man doe give White Acre to I S in Fee or his white horse to I S and after by the same or another Will doth give White Acre to I D in Fee or his white By a subsequent repugnant Will horse to I D these latter Devises doâ— overthrow the former cum duo inâ—â—r se pugnantia reperiuntur in testamento ultimum ratum est And as a latter Will doth overthrow the foâ—mer so the latter part of a Will doth overthrow the former part of the same Will But if the Devisees be such as they may stand both together and are not directly repugnant nor doâ— fight one against another there the latter shall not overthrow the former but both shall be received And therefore if one devise his land to I S and his heires and See before after by the same Will devise a Rent out of the same land to I D and his heires or è contra So if one devise White acre to A for life and afterwards give the same acre to B in Fee in this case the one may have it for his life and the other may have the Fee-simple afterwards If one devise his land to his sonne and heire in Fee-simple or Plow 〈◊〉 Perk. Sect. 569. Litt. Bâ—â—â— 453. Kitchin 127. Dyer 317. 350. devise it to a stranger for yeares the remainder to his sonne and heire By a waiving of the estate devised in Fee-simple and the heire after the death of the Devisor doth as he may waive the estate given him by the Devise and claime the the land by discent in this case and by this meanes the Devise is become void But if the Devise be to the sonne and heire in Taile the remainder to a stranger there he cannot waive the Devise and take it in any other manner And so if a man have only two daughters who are his heire and he devise his land to them or have Gavelkind land and dâ—vise it to all his sonnes they may not waive these Devises and take by discent for by Devise they shall take as â—ointenants who otherwise by discent shall take as Parciners If one devise his land to another in Fee simple Fee taile for life Litt. 〈◊〉 Sect. 482. Perk. Sect. 569. Dyeâ— 6â— Coo. 9 140. Ploâ— 543. â—4â— â—r yeares and the Devisee after the death of the Testator doth refuse and waive the estate devised to him in this case and by this meanes the Devise is become void And it seemes a verball waiver is sufficient in this case So if one give goods or chattels to another and the Devisee refuse it by this meanes the Devise is become void and any waiver or refusall will suffice in this case for a man shall not bee compelled Nolens volens to take a thing devised to him If a woman sole devise her lands or goods by Will and after take Plow 34â— a husband and die during the Coverture by this meanes the Devise is become void And yet if she survive her husband and die unmarried now is the Devise become good againe If one devise his land to I S and his heires and afterwards I S Plow 60 34â— 34â— 34â— die living the Testator by this meanes the Devise is become voyd And in this case no verball declaration of
to I S to have and to hold unto him and the heirs of his body to the use of him his heirs and assignes for ever this use is voyd d Dyer 169. Cromp. Iur. 53. Litt. Broo. Sect. 284. And where one doth bargain and sell land for money in which case the law doth make an expresse use no other use can be appointed And therefore if A for money bargain and sell land to B and his heirs to the use of A for life and after of B in Tail and after of A in Fee all these uses are void for a use cannot rise out of a use So if A make a Lease to B for years rendring Rent To have and to hold to the use of the Lessor this use is void as being against reason also And if a Feoffee to use before the Statute of uses had bargained and sold the land to one who Dyer 155. Coo. 1. 136. 137. had notice of the former use no use had been made hereby for there might not be two uses in being of the same land at one time And if A enfeoffe B to the use of C and his heirs with proviso that if D pay to C 100l that C and his heirs shall stand seised to the use of D and his heirs this last use is void for the use must arise out of the estate of the Feoffee and not out of the estate of the Cestuy que use The sixth thing whereunto respect must be had is the cause or Sâ—ixthly iÌ„ resâ—ect of the cause or conâ—â—â—eration of it and what shal be a â—ufficient consideration to raise or alter a use Or not consideration For howsoever in caâ—es where uses passe by way of transmutation of possession as by Fine Feoffment or Recovery there Coo. 1. 176 the consideration is not at all materiall for he that doth make the estate may appoint the use to whom he will without any respect to marriage kindred money or other thing for in this case his own will and consideration guideth the use and equity of the estate yet in Bargains acd Sales â—nd Covenants to â—and seised to uses it is otherwise for there consideratâ—on is so necessary that nothing will passe neither will any use rise without a Consideration i. e. some matter that may be a cause or occasion meritorious which amounteth Dyer 1â—9â— Comp. â—ur 62. to a mutuall recompence in Deed or in Law which must be expressed or impliâ—d in the Deed whereby the use is created ur else supplied Aveâ—ment by averment and proof â—or howsoever in this case an averment shall not be allowed and taken against a Deed that there was Dyer 146. Coo. 1. 176. 11 â—â—5 Dyer â—1â— no consideration given when there is an expresse consideration upon the Deed yet when the Deed expresseth no consideration or saith I for divers good conâ—â—derations or the like there an avâ—rment of a good consideration given shall be received for this is an aveâ—ment that may stand with the Deed and without consideration Inrolment will not help And therefore if one bargain and sell his land to another by Deed indented and inrolled without any consideration it seems no use will rise by this to the Bargainee e 41 â— Ad iudged So if one for divers good causes and considerations or for divers great and valuable considerations bargain and sell his land to another or covenant to stand â—eised of his land to the use of another that is not of his kindred no use will rise by this unlesse it be proved that mony or something else was given for it But if a man by Deed in consideration of money as in consideration of the summe of 100l to Plow 301. Brao Fait Inroll 9. Doct. St. 99 Cromp. Iur 60. 61. Dyer â—0 him paid or in consideration of a competent sum of money to him paid or otherwise promised to be paid or in consideration of other land or of giving of counsell or the like bargain and sell or by such like words grant his land to another in Fee-simple Fee-tail for life or years in these cases the use will arise to the bargain well enough And therefore if I covenant with B that when he doth Cromp. Iur 61. infeoffe me of White Acre I will stand seised of Black Acre to the use of him and his heirs and he doth infeoffe me accordingly in this case the use of Black Acre will rise to B and he and his heires shall have it according to the agreement f So if I agree with my Lessee for years that if he pay me 100l within his term that I will stand seised of the land to the use of him and his heirs and he â— Broo. Exposition of words 44. do pay me the 100l accordingly in this case the use will rise and he and his heirs shall have it aâ—cording to the agreement So if I covenant that my sonne shall marry the daughter of A and A promise to give me a 100l for the marriage portion and I covenant that iâ— the same marriage do not take effect I and my heirs will stand seised of the land to the use of A and his heirs untill the 100l bâ— paid in this case a good use will rise of the land accordingly if the marriage do not take effect But in all these and such like cases the covenant must be by Deed indented and it must be inrolled otherwise no uses will arise And when the Deed is inrolled it shall take effect as from the beginning by relation to avoid all intervenient estates and charges whatsoever And in like manner Relation Plow 302. â—â—H 7. 20. it is if one for no cause or for no consideration as because he is of his ancâ—ent acquaintance or because there hath been entire love or great familiarity between them or because he hath been his chamber-fellow school-â—ellow or fellow-servant or because he hath done him good service or because he was his Master and taught him or to the end that he may pay his Debts and Legacies and discharge his Funerals or for divers good causes and considerations if one for any of these or any such like cause and consideration covenant with another that he will stand seised of his land to the use of that other and his heirs or that he and his heirs shall have the land c. by this covenant whether it be inrolled or not no use at all will rise So if one covenant to stand seised to the use of I S who is his Dyer 374. Bastard sonne and his heirs no use will arise hereby And yet perhaps upon such a Covenant as this whereupon no use Covenant nor estate doth arise an Action of Covenant may lieâ—â— Buâ— Coo. 7. 11. 10. 143. 1. 83. Plow 301. Litt. Broo. Sect. 284. Coo. 1. 254. if one in consideration â—f â—â—ure kindred blood 〈◊〉 with ones selfe or any of â—is 〈◊〉 paiment of debts or
20â— in such a place in this case tender of this 20s in that place at any time is not good unlesse he happen to meet with A B at the place for then tender at any time is good but otherwise the Covenantor must give notice to A B what time he will tender the 20s in that place otherwise the revocation is not good If one be to marry his daughter to the sonne of another man and they do mutually covenant to stand Trin. 18. Ia. B. R. Savill sterlings case seised of their lands to the use of their sonne and daughter with Proviso to revoke the uses with the conâ—ent of the mothers if they or either of them be then living and one of them dye in this case a revocation by the consent of the surviving mother is sufficient 3. When the covenantor doth make void such uses by vertue of such a revocation he is seised again of the land in Fee-simple Coo. i. 111. 112. 113. super Litt. 237. as he was at first without any entry or claim 4. This power of revocation whether it be present as those before and most are or future as when they are upon contingent as if the Covenantor over-live I S or the like when it is reserved to the party himself that made the uses may by his â—ine or Feoffment be utterly extinguished As if he make a Feoffment or levy a Fine of the land whereunto the uses and proviso are annexed by this the Proviso is extinct And yet so as if he make a Feoffment or levy a Fine of part of the land only this shall extinguish his power but to that part only But if the power be reserved to a stranger it seems the Fine or Feoffment of him that made it will not extinguish it This power also when it is present may be extinguished by a Release made by him that hath the Release power to any one that hath any estate of Franktenement in the Deâ—eaâ—ance land in possession reversion or remainder or it may be avoided by Defeasance whether it be present oâ— future If one convey his lands to certain friends in trust to the intent 10. Other Trusts and Confidences or lands and of chattels â—â—all and personall The naâ—ture of such Trusts the duty of them that are trusted and the remedy to beâ— had against them for breach of their truâ—â— that they shall convey it to such persons as he shall set down in Cromp. Iur. 48. 59. 58. 54. Dyer 160. Fitz. Accompt 122 his last Will and Testament or if a man deliver money to a friend in trust to purchase land for him and his heirs to the end that he may have the profits thereof for his life and to the end it may be conveyed to them afterwards or if a man deliver money to his friend to buy land for him that doth deliver the money in his own name or if a man enfeoffe his friend and his heirs of land to the intent that he shall alien the land to whom I S shall appoint or if land be conveyed to me in Mortgage and I pay all the money but I to prevent the joynture of my wife or for some such like cause name a friend joynt purchasor with me and so the conveyance is made to us both if in any of these cases or in any other such like case the friend trusted prove false and do not perform the trust but turn the profits of the land to their own use or refuse to settle it according to the trust or the like the party grieved must have his remedy in Chancery for these are not Trusts or Uses within the Statute nor such for which there is any remedy at the Common-Law And in that case where the land is setled to the intent that the friends trusted shall settle it where I S shall appoint if I S do not appoint how it shall be setled it seems the Feoffees shall have it to their own use And if a man give or grant his goods or chattels as Leases for yeares or the like to friends in trust to the use of himself for life Cromp. Iur. 65. Dyer 369. Broo. Feofment al use 60. Câ—omp â—â—ur 62. 45 11 Ed 4. 2. 7 Edâ—â— 29. and after to perform his Will or the like these are such uses and trusts as are not within the Statute of uses and for the breach of which there is no remedy at the Common-Law but in Chancery only So if an Obligation or Statute be made to A B to the use of C D this is a trust of the same nature and if A B release the Obligation without the consent of C D or get the money into his own hands C D shall have reliefe in Chancery And in all these cases and such like cases the generall rules by which uses were governed at the Common-Law are still in force and to take place as those by which uses and trusts are now for the most part governed As 1. If there be any cause to sue for or about the lands or goods wherewith the parties are trusted as if they deny 7 Ed. 4. 29. or delay to perform the trust they must be compelled thereunto by suite in Chancery 2. The Cestui que use or party for Cromp. Iur. 62. 63. 65. 11 Ed. 4. 24. Ed. 4. 37. whom the trust is cannot of himselfe dispose of the lands or goods for the property and interest in Law is in the Trustees and if it be an Obligation or Statute that is made to the use of another Cestuy que use cannot release it but the Trustee must release it 3. If the parry trusted so with lands goods or chattels give grant or sell the same lands goods or chattels to one that hath knowledge of the same uses or trusts as it is alwayes preâ—umed he hath where the trusts are expressed upon the same Deed by which the lands goods or chattels are given or granted or if the things so given or granted be granted upon the same trusts or to the same uses or without any consideration at all in these cases he to whom the thing whereabout the trust is shall have the same thing upon the same trust and to the same use as he that did give or grant the same had it But in case where no trust or use is expressed upon the Deed the purchasor or buyer hath no notice or knowledge of the use or trust and hee gives a valuable consideration for the thing there for the most part the sale is good and the party grieved thereby hath no remedy but against the party first trusted in Chancery and the purchasor shall have and enjoy the thing so bought to his owne use for ever but he that is the party trusted will bee forced in Chancery to make the party grieved an amends in damages for this breach of trust And if there be any practise packing or combination betweene the buyer and the seller
Estoppell Estoppell And therefore if a lessee for yeers or a disseisee or one that hath right onely to a remainder or reversion levie a fine to a stranger that hath nothing in the land this fine is void or at least voidable as to and by any stranger thereunto and he that hath cause may shew that the freehold estate and seisin of the land was in another before and at the time of the fine levyed and that Partes finis nihil habuerunt tempore levationis finis And by this avoid it And yet a vouchee after he hath entred into the warranty may levy a fine unto the demandant but not to a stranger And a disseifor may levy a fine to a stranger that hath nothing in the land and this is a good fine for he hath the fee simple by wrong in him Also the issue in taile may be barred by way of Estoppell by a fine levyed by Ancester being tenant in taile albeit neither conusor nor conusee have any estate of freehold in the land a a 26 H. 8. 9. Dyer 334. 69. Plow 375. 338. E. 4. 13. 11 E. 4. 68. A Joint-tenant tenant in Common or Coparcenour may levy a fine of his part to a stranger and this will be a good fine And so also as it seemes may one Goparcenour or tenant in common to another One single member of a corporation aggregate of many cannot levy a fine of the lands of the corporation as the Maior or Master of a College cannot levy a fine without the communalty or his fellows c. But such persons may levy fines of the lands they are solely seised in their own right as other men may die Such as have estates of freehold in in Ecclesiasticall lands in the right Co. 11. 78. of their Churches houses c. as Bishops Deanes and Chapters Prebends Parsons and the like may not levy a fine of such lands for if they doe it will not bind the successor He that hath an estate of fee simple in lands in the right of his wife ought not to levy a fine thereof without her and if he doe shee Stat. 32 H. 8. chap. 28. 12 E. 4. 12. Co. 6. 55. Broo. Fines 121. Stat. 32 H. 8. ch 36. Co. 5. 3. 4. Stat. 1 H 7. chap. 20. and her heires may avoid it after his death Also he that hath an estate of lands given in taile by the King or by the provision of the King ought not to levy a fine of this land for it is void as against the issue in taile and the King Also he that hath an estate of lands that are prohibited to be sold by Act of Parliament ought not to levy a fine of such land Also she that hath an estate of lands of her husband or of any of his ancestors assured to her for her Jointure Dower or in taile by the meanes of her husband or any of his ancestors may not levy a fine of this land for if she grant a greater estate then for her own life this worketh a present forfeiture In the concords of Fines some things are to be regarded in the 5. In respect of the Concord and matters touching it And what concord or agreement may bee made by Fine or not West Symb. ubi supra Sect. 30. Co. 5 38. manner and forme and some things in the matter and substance First when a fine is levyed to divers Cognisees the right shall be limited to one of them As if a fine be levyed by A. to B. and C. it shall say Quod praedict ' A. recognoverit tenementa praedict ' esse jus ipsius B. ut ill'quae iidem B. et C. habent c. But the Kings tenant may acknowledge the right to be in divers Secondly the state shall be limited to his heires onely to whom the right is limited and not to the heires of all the cognisees as thus Quod praedict ' A. cognoverit tent ' praed c. esse jus ipsius B. ut ill quaeiidem B. C. habent de dono praedict ' A. ill'remisit quiete clam ' de se haered suis praefat ' B. et C. et haered ipsius B. c. The release and warrantie must be from the heirs of one of the Cognisors where there be more then one for in a fine from divers the fee is supposed to be in one onely And therefore it must be thus Quod praedict ' A. B. cogn ' ill'remisit c. de se et haered ipsius A. Et eidem A. et B. concesserunt pro sâ— et haered ipsius A. quod ipsi war ' tenementa c. si contra se et haereredes ipsius A. imperpetuum But if the fine be of lands in Gavel kind contra Fourthly the Concord need not to rehearse all the speciall names of the things contained in the writ but it is sufficient to say Tenementa praedicta as quod praedict ' recognoverit tenementa praedicta c. Fifthly as a Concord cannot be without an originall writ so it must pursue the originall writ and cannot be of any forain thing 1. such a thing as is not contained in the writ except it be consequent thereunto as when the writ is of land there may be in the concord of a rent out of this land but there may be more things in the Precipe then are named in the Concord And a Concord may be with an exception of some part but this exception must alwaies be of such things whereof the writ will lie and are mentioned therein must be certainly named must succeed the things out of which they be excepted as Precipe A. B. quod teneat C. D. convenâ— c. de manerio de D. cum pertineâ— in C. except uno messuagio duabus acris terrae et advocatione Ecclesiae de C. c. Et est concordia c. quod praed A. cogn ' tenementa praedict ' cum pertinen ' except praeexcept And in all these and such like cases as before where the concord is not formall the Judges ought not to receive the fine nor suffer it to passe but if they doe and the fine be finished it cannot afterwards be avoided by writ or error or otherwise for these faults The Concord and agreement may be made of an estate in fee simple See in West Symb. divers examples Perk. Sect. 629. Broo. Fines 108. fee taile for life or for yeeres it may be also of divers remainders and that to them that are no parties but strangers to the fine It may be also single or double with a render back again of some estate in the same land or some rent out of it so as a Concord may have in it a reservation of rent a clause of distresse or Nomine penae and a warrantie b Broo. Fines 106 118. Co. 6. 33. Plow 435. Dyer 279. Co. 1 76. And therefore if A. levy a fine to B. Sur cognisance de droit come ceo
and if it doe the party is not bound to seal it If one covenant to levy a fine at the next Assises for thirteene Curia Hil. 7 Iac. Co. B. years extunc this shall be taken from the time of the fine levied and not from the time of the covenant If one bargain and sell land to me by deed indented and before Adjudge in Sir Jo. Brets case the inrolment of the deed I do covenant with I S to convey all the land whereof I am seised and to doe this before such a day and before the day the deed is inrolled in this case my covenant shall not extend to this land conveyed to me by this bargain and sale If A covenant with B that in consideration of a mariage between Dier 371. the son of A and sister of B that hee at the costs of his son and by his sufficient deed will before Easter day assure land to his sonne and B doth covenant that if A doe performe this then hee will make him a generall release in this case albeit A be ready and the son doe not tender the assurance and the conveyance is not made B is not bound to make any release If one covenant to keep and leave a house in the same or as Fitz. Covenant 4. good plight as it was at the time of the making of the lease To repaire the houses in this case the ordinary and naturall decay of it is no breach of the covenant but the covenantor is here by bound to doe his best to keepe it in the same plight and therefore to keepe it covered c. If the words of a covenant be that the lessee shall have thornes Dier 19. by the assignment of the lessor and necessary fuell also it seemes For the having of houseboot c. by this that there must be an assignment of the fuell as well as of the thornes If the lessor covenant with his lessee that he shall have sufficient hedgeboote by assignment of the bailif of the lessor in this case Dier 19 20. and by this the lessee is not restrained from that liberty that the law doth give him and therefore that he may take without assignment But if the words be negative that he shall not take without assignment or that he shall take by assignment and not otherwise contra If A doth covenant with B that where as a mariage is intended Trin. 21 Jac. B. R. George versus Lane to be solemnized between A and C the daughter of B at or before To convey lands of the value of c. the fourteeneth day of August next and where the said B hath paid to the said A a thousand pound for portion c. the said A in consideration thereof doth covenant with B that he within one yeare of the day of the mariage will assure lands of the value of foure hundred pound per Annum in this case albeit the mariage be not before that day yet the covenant must be performed If one make a lease for years of a Manor and covenant that the That the lessee shall make estates lessee shall make estates for life or years and that they shall be good Per Justice Bridgman in this case it seemes this covenant shall not be taken to enable the lessee to make estates for a longer time then his estate will beare If the lessee covenant with the lessor that if the lessee be minded That if the lessee sell the lessor shall have the first refusall Dier 13. to sell his estate the lessor shall have the first refusall in this case when the lessee is minded to sell he need doe no more but acquaint the lessor with his purpose and know his mind and if he doe not answer him presently he may sell it to whom he will And if the covenant be further that the lessor shall give as much as another will the lessee must tell him what another doth offer him and aske him whether he will give so much and if he refuse or doe not accept it presently the lessee may sell to whom he will If one covenant to serve me a year and I covenant to pay him To doe one thing for another Co. super Lit. 204. Dier 371. Mich. 7 Jac. Co. B. tenne pound for it in this case albeit he doe not serve me yet I must pay him the tenne pound But if I covenant with him to pay him tenne pound if he serve me a yeare contra for in this case I am not bound to pay him the money unlesse he serve me a yeare So if one covenant to make new pales so as he may have the old in this case it seemes he is not bound to make the new pales unlesse he may have the old pales So if one covenant to pay money for service counsell or the like or covenant to mary ones daughter or make an estate and the covenant is penned conditionally and so as one thing is the cause of another and it is not set downe by mutuall and reciprocall covenants in all these cases if the cause or condition be not observed the covenant shall not be performed If one make a lease for tenne years and covenant that if the lessee Co. 1. 144. That the lessee shal have the fee. pay him tenne pound within the tenne years that he shall have the see simple and the lessee surrender his estate within the time in this case if the lessee pay the money the lessor is bound to make the fee simple to him But if the words of the covenant be that if he pay him tenne pound within the terme he shall have fee and the lessee surrender his terme and then pay the tenne pound in this case the lessor is not bound to make the fee simple for it was not paid within the terme If one covenant to doe a thing to I S or his assignes or to I S 27 H. 8. 2. Assignes and his assignes by a day and before the day I S die in this case it must be done to his assignes if he before the day name any assignee and if he doe not it must be done to his executor or administrator which is an assignee in law See more in Condition Num. 8. Obligation 7. If one be seised of land in fee or possessed of a terme of years Dier 303. Co. 9. 60. 7. When a Covenant in Deed or Law shall be said to be broken And when not And how and he doth alien it and supposing he hath a good estate he doth covenant that he is lawfully seised or possessed or that he hath a good estate or that he is able to make such an alienation c. and in truth he hath not but some other hath an estate in it before in this case the covenant is broken as soone as it is made * Adjudge Sir Perall Brocas case 32. Q. And if I
Sect. 719. be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the donee doth make a feoffment with warrantie and hath issue a sonne and a daughter and dieth this warrantie is lineall to the sonne and if the sonne die without issue male it is a lineall warrantie from the father to the daughter But if the brother in his life time release to the discontinuee c. with warrantie c. and after dieth without issue this is a collaterall warranty to the daughter Litt. Sect. 714. If lands bee given to the husband and wife and the heires of their two bodies engendred and they have issue and the husband discontinue and die and after the wife doth release with warrantie and die this is a lineall warrantie And if lands be given to a Co. super Litt. 375. man and a woman unmaried and the heirs of their two bodies and they intermary and are disseised and the husband doth release with warrantie and dieth and after the wife dieth this is a lineall warrantie to the issue for all the land And if tenant in taile Litt. Sect. 718. have issue three sons and discontinue and the middle brother doth release with warrantie and die without issue and after the father dieth and after the elder brother dieth without issue and after the father dieth and after the elder brother dieth without issue so that the warrantie doth descend to the younger brother this is a â—neall warrantie to him And if a father give land to his eldest son and the heirs males of his body c. the remainder to the second sonne c. if the eldest son alien in fee with warrantie c. and hath issue female and dieth without issue male this is a lineall warrantie to the second sonne And in all these cases of a lineall warrantie if Litt. Sect. 711 712. Doct. St. 152 153. Co. 8. 52. the right of the estate to be barred bee the right of an estate in fee simple it is a barre without any assets for the rule is That as to him that demandeth fee simple by any of his Auncestors he shall bee barred and bound by a lineall warrantie that doth descend upon him unlesse hee bee restrained by some Statute But it doth not binde the right of an estate in fee taile without assets for in that case the rule is That as to him that demandeth fee taile by writ of Formedon in the Descendor he shal not bee barred by a lineall warrantie unlesse he hath assets by descent in fee simple of other land from the same Auncestor that made the warrantie and then it is a barre for so much onely as doth descend to him no more And yet if the issue in taile doe Co. super Litt. 393. alien the assets descended and die in this case the issue of that issue is not barred by this warrantie and assets But if the issue to whom the warrantie doth descend bring his writ of Formedon and is barred by judgement by reason of the warrantie and assets in this case albeit he alien the assets afterwards yet the estate taile is barred for ever If tenant for life do alien in fee with warrantie or be disseised Co. 1. 67. 21 H. 7. 10. Litt. Sect. 725. 9. What shall bee said a collaterall warranty And how such a warranty shall bar release to the disseisor with warrantie and die and the warrantie descend on him in reversion or remainder this is a collaterall warrantie So if the lessee for life be disseised and a collaterall Auncestor of him in reversion release with warrantie and die and the warrantie descend on him in reversion this is a collaterall warrantie for that is collaterall which is collaterall to the title of the Litt. Sect. 707. Doct. St. 152. land And if a man seised of lands in fee have issue two sonnes and the father dieth and the younger sonne doth enter and doth alien the land with warrantie and die without issue this is now a collaterall warrantie that is descended on the elder brother And if a sonne bee disseised of his own land and bring an 21 H. 7. 10. Assise and after the father doth release to the disseâ—sor with warranty and dieth this warrantie that doth descend to the sonne is a collaterall warrantie And if a father disseise his son of the land Litt. Sect. 704. he hath of his own purchase without any intent to alien afterwards and to barre his sonne and after he doth make a feoffment wich warrantie and die before the entrie of his sonne so that the warrantie doth descend this is a collaterall warrantie If there bee Litt. Sect. 707. father and two sonnes and the father is disseised and the younger sonne doth release wiâ—h warrantie to the disseisor and die without issue and then the father dieth in this case the warrantie now descended is a collaterall warrantie If a lease be made Co. super Litt. 388. for life to the father the remainder to his next heir and the father is disseised and doth release with warrantie and dieth this is a collaterall warrantie to the heire And if the husband discontinue the right of his wife and an Auncestor collaterall to the wife to whom she is heir doth release with warranty and die and after the husband dieth this is a collaterall warranty and a bar to her And in every case where a man doth demand an estate taile by a Co. 10. 96. Litt. Sect. 709. Plow 234. Kelw. 78. writ of Formedon if any Auncestor of the issue in tail which hath or hath not possession maketh a warranty and the issue that is demandant cannot by any possibility that may be done convey to him a title by force of the gift from and by him that made the warranty this is a collaterall warranty as if tenant in taile discontinue the taile and die having issue and the uncle of the issue doth release with warranty to the discontinuee and die without issue so that the warranty doth descend on the issue in taile this is a collaterall warranty So if such a discontinuee make a feoffment in fee or be disseised and the uncle release with warranty to the disseisor or feoffee and die without issue and the warranty doth descend on the issue this is a collaterall warranty If a tenant in taile have Litt. Sect. 708. three sons and discontinue the tail in fee and the middle brother doth release to the discontinuee with warranty and after the tenant in taile dieth this is a collaterall warranty to the elder brother If one have issue three sonnes and giveth land to the eldest Litt. Sect. 716. and the heirs of his body and for want of such issue to the middle and the heirs of his body the remainder to the third and the heires of his body and the eldest doth discontinue the
taile in fee with warranty and die without issue this is collaterall to the middle sonne In the same manner it is in case where the middle sonne hath the same land by force of the same remainder because his elder brother made no discontuance but died without issue of his body and after the middle brother doth make a discontinuance with warranty c. and dieth without issue this is a collaterall warranty to the youngest sonne And in this case if any of the sonnes be disseised and the father that made the gift c. releaseth to the disseisor all his right with warranty this is a collaterall warranty to the son upon whom the warranty doth descend If lands be given to A and the heirs of his body and Co. 8. 52. Litt. Sect. 713. for want of such issue to E his sister and the heires of her body and A doth make a feoffement with warranty and die without issue having two sisters E and S this is a collaterall warranty to E. If lands be given to a man and the heires of his body begotten Litt. Sect. 741. who taketh a wife and hath issue a son by her and the husband doth discontinue the taile in fee and dieth and after the wife doth release to the discontinuee with warranty and dieth and the warranty doth descend to the sonne this is collaterall to him If tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile doth release to the disseisor with warranty in fee and dieth without ifsue and the tenant in taile hath issue and dieth this is collaterall as to the issue If tenant in tail have issue two daughters and die and the elder enter into all to her own use thereof make a feoffment in fee with warranty and die without issue this warranty as to the other sisters part is collaterall but not as to her own If Co. super Litt. 373. the husband and wife tenants in speciall tail have issue a daughter and the wife die and the husband by a second wife have issue another daughter and discontinueth in fee and dieth and a collaterall Auncestor of the daughters release to the discontinuee with warranty and dieth and the warranty descend upon both the daughters this is a collaterall warranty to them If lands be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the father die and the brother release with warranty and die without issue this is collaterall to the daughter If tenant in taile make a lease for life the Litt. Sect. 738. remainder to another in fee and a collaterall Auncestor doth confirm the estate of tenant for life with warranty and die and after the tenant in taile die having issue this is a good binding collaterall warranty during the estate for life And in all these and Litt. Sect. 712. Co. super Lit. 374. Co. 10. 96. Stat. of Glouâ— ch 3. Co. super Litt. 365. Stat. 11 H. 7 chap. 20. such like cases of a collaterall warranty whether the right bee the right of an estate taile or the right of an estate in fee simple that is to be barred it is a bar without any assets for in this case the rule is That a collaterall warranty is a barre to him that demandeth fee simple and also to him that demandeth fee taile without any other descent of lands in fee simple so that the heir on whom the same warranty is descend can never have the land so warranted whiles the warranty doth continue in force but is bound thereby except it be in some speciall cases restrained by Act of Parliament as where the husband alone during his wives life or after her death being tenant by the curtesie make a feoffement by fine or deed of his wives land which shee hath by descent or purchase with warranty this will not barre her heire without assets of other lands in fee simple descended from the same Auncestor that made the warranty Or where a wife after her husbands death shall alone or with her succeeding husband alien release confirm or discontinue with warranty the land she holdeth in dower or in taile of the gift of her former husband or any of his Auncestors this warranty is voidable and will not binde with assets If the son purchase land c. and after let it to his father or any Litt. Sect. 699 700 701 702. Finch 82. Co. super Litt. 〈◊〉 10. What shall be said a warranty that doth begin by Dissâ—â—sin And wâ—at such a warranty doth work other Auncestor for years or at will and he by his deed doth infeoffe a stranger and that with warranty and after dieth whereby the warranty doth descend upon the heire this warranty doth commence by disseisin So if tenant by Elegit Statute Merchant Guardian in Chivalry or Soccage or because of Nurture make a feoffement with warranty and this warranty doth descend on his heir this warranty doth commence by disseisin So if one that hath no right at all enter into my land and make a feoffement to another with warranty So if one Coparcenor enter into the whole land and make a feoffement in fee with warranty this warranty as to the one moity doth begin â—y disseisin So if father and sonne purchase lands to them jointly c. and the father alien the whole to another with warranty c. and after the father dieth this warranty as to the one moity doth beginne by disseisin But if the purchase bee to them two and the heires of the sonne it is otherwise for if the sonne enter in the life time of the father the warranty is avoided for all but if hee doe not enter then as to the fathers moity it is a collaterall warranty And if the purchase be to the father and son and the heirs of the father and the father alien with warranty c. in this case the warranty is good for the whole If the father be tenant for life the remainder to his son and heir Co. 5. 80. super Litt. 366. 367. in fee and the father by covin and consent of purpose to bar the heir by a collaterall warranty maketh a lease for years to the end that the lessee should make a feoffment in fee that the father may release to the feoffee with warranty and all this is done accordingly and the father dieth and the warranty doth descend to the sonne in this case the warranty shall be said to beginne by disseisin But if the father in this case make a feoffement in fee with warranty and die this is a good warranty to binde the sonne albeit it be done of purpose to bar him So if one brother make a gift in taile to another and the uncle doth disseise the donee and infeoffeth another with warranty the uncle dieth and the warranty descendeth on the donor and
19. Iac. B. R. after enter into a Statute to I S and then enter into another Statute to I D and after hee doth grant his estate to I S by this the Execution of the Statute made to I S is suspended and therefore during the suspention it seemes I D albeit he be after in time may sue and have he Rent in execution If the Conusor after he hath entred into a Statute or Recognisance 8. Where the Conusor or his heir or an alience or purchaser shall have contribution upon a Statute or Recognisance or not doth convey away his land to divers persons and then the Conusee Plow 72. Coo. 3. 12 6 13. sue Execution of the Statute upon the lands of one or some of them and not of all in this case he or they whose lands is or are taken in Execution may by an Audita Querela or Scire Facias have contribution from the rest wherein these differences must bee observed That one Purchasor shall have Contribution from another And therefore if the Conusor sell some lands to I S and other lands to I D and the Conusee sue Execution only of the lands of I S I S shall have contribution against I D. And the Feoffee of the Purchasor the Feoffee of the Heir of the Conusor the Feoffee of the Feoffee and another Feoffee shall have contribution of the Heir of the Conusor But the Conusor himselfe shall not have contribution from a Purchasor and therefore if hee sell part of his lands and keep part in his hands and the Conusee sue Execution only of the lands in the hands of the Conusor or his Hâ—ires in this case neither he nor his Heirs shall have any contribution from the Purchasors and one Heire shall have contribution from another And therefore if one be seised of two Acres the one in Burâ—ow English the other of other Land and he enter into a Statute and die and he hath but two daughâ—â—s and the Execution is sued upon the land of one them she shall have contribution from the other So where some land doth discend to the Hâ—ire of the part of the Father and some to the Heire of the part of the Mother If one be seised of lands in Fee in the County of A and B and enter into a Statute or Recognisance and the Conusor die and then the Conusee die also and his Executor doth â—uâ— Execution of the lands in B only and hath Execution and after the Heir doth sell these lands in this case the Vendee shall have no contribution So also it seems the Law is if the Hâ—iâ—e sell the land to divers and one of the Purchasors appear to the Seire Facias and the Iudgement is given against him and he afterwards sell the land his Vendee shall have no contribution And in all these cases where it is said the one Purchasor shall have contribut on it is not intended that the rest shall give or allow him any thing by way of contribution but that the party whose lands are extended may by Audita Querela or Seire Facias as the case requireth defeat the Execution and thereby shall be restored to all the meane profits and force the Conusee to sue his Execution upon all the land that the land of every one of the Terre-tenants may be equally extended And so wee fall from an Obligation by matter of Record to an Obligation by matter of Fait which is no Record CAP. XXI Of an Obligation AN Obligation is a Deed in writing whereby one man doth bind 1. Obligation Quid. Obligor Obligee Finches ley 49. himselfe to another to pay a summe of money or doe some other thing And hee that makes this Deed is called the Obligor and he to whom it is made is called the Obligee And it is sometimes Simple or Single which is when it is to pay 2. Quotuplex Coo. super Litt. 172. a summe of money or doe some other thing and when it is without any Defesance or Condition in or annexed to it which also is sometimes with a penalty called a penall Bill and sometimes without a penalty And this is that which is most properly called an Obligation and sometimes also it is called a single Bill or single Bond. And sometimes it is double or Conditionall which is when it is attended upon and accompanied with a Condition And then it is said to be a Bond containing a penalty with condition to pay money or doe or suffer some act or thing c. And this Condition is some times called a Defeasance and then especially when it is as sometimes it is in another Deed or Instrument for most commonly it is inserted into the same Deed wherein the Obligation being the other part of it is contained And then also it is either subscribed under the Obligation or included within the body of it or indorsed upon the back of it And quacunque vià if the condition be performed the penalty is saved if not the penalty is forfeit a a Broo. Obligat 67. â—0 An Obligation may be made upon parchment or paper and in loose 3. What shall be said a good Obligation in his originall creation or not parchment or paper b Trin. 49. Eliz. B. R. or in a peece of paper or parchment sowed in a book and either way it is good But if it be made on a Tally peece of wood or any other thing but paper or parchment albeit it be sealed and delivered yet it is voyd c Coo. super Lit. 229. Fitz Obligat 9. And it may be made in the first or in the third person notwithstanding the Statute of 38. Ed. 3. c. 4. which First for the manner and form of it and what words are sufficient to make an Obligation doth intend only Obligations made beyond the Sea And therefore an Obligation so made as Memorandum quod A de B debet C de D 10l In ou us c. is good Albeit the best manner and form of an Obligation is that which is Dyer 21. 22. 23. Coo. 9. 53. 37 H. 6. 9. 22 Ed. 4. 22. â—elw 34. a â— Ed. 4. 39. â—3 H. 7. 6. most usuall as Noveritis me A de B teneri firmiter obligari C de D in 20l. legalis c. Solvend eidem C autsuo cert Atturnat executoribus aut administratoribus suis Ad quam quidem solutionem bene fideliter faciendum obligo me haeredes executores adminstratores meoâ— firmiter perprasentes c. yet any words in a writing sealed and deliverd whereby a man doth prove and declare himselfe to have another mans money or to be indebted to him will make a good Obligation And therefore if a man by Deed say but this Memorandum that I A of B doe owe to C of D 20l. to be paid at Easter next Or memorandum that I A of B have had of C of D 20l. of which there is 10l
for portions in this case the daughters may not have an Accompt at the Common-law but they they may sue the executors in the Spirituall Court or in a Court of equity and if the executor be dead they may sue his executor If one devise a rent out of his land and do charge the land with Dyer 34â— a distresse the Devisee may make use of that remedy and distrain or the rent but unlesse power be given him by the Will to distrain he may not distrain for it If one be possessed of a term of years of land and devise it to his wife Plow 545. to the end that she with the profits thereof shal breed up his children in this case this is no Legacy to them and therefore it seemes they have no remedy but in Chancery or some other Court of equity against her if she refuse to do it Fitz. Devise 6. Plow 540. Perk. Sect. 57â— 483. 20. Ed. 4. 〈◊〉 Swinb 13â— And in cases of Devises of goods and chattels as Leases for years rents out of such Leases and the like the Legatee cannot take the thing devised before he have the Assent of the Executor or Administrator thereunto And therefore if in these cases the Executor or Administrator refuse to agree to performe and deliver the Legacy the Legatee may sue him in the Spirituall Court or in some Court of Equity to compell him thereunto But a Legatee may not sue for a Legacy in any of the Courts of Common-Law neither may hee sue the Executor or Administrator in the Spirituall Court for the Legacy untill the Will be proved but he may by Suit there compell him to prove the Will or to refuse the Administration And in these Courts and by thâ—se meanes the Devisee may recover his Legacy against an Executor or Administrator if he have Assets to pay the debts of the Testator for otherwise a Legacy is not recoverable at all but in case where the Executor or Administrator hath once agreed to the Legacy so as it is executed it is then so vested in the Legatee and he hath such a property therein that he may enter into or seise and take the thing devised as his own and if any man keep or take it from him he may have reliefe as in other cases If another doth claime by Deed of gift the goods a Legatee â—7 H. 6. 9. doth sue for this may bee tryed in the Ecclesiasticall Court If a debt obligation or any such like thing in action be devised Perk. Sect. 527. Swinb to another the Devisee hath no meanes to recover it but by a Suit in the Spirituall Court or in some Court of Equity to compell the Executor to sue for it himselfe or to make the Legatee a Letter of Atturney to sue for it in the Executors name for the Legatee cannot sue for it in his own name unlesse he be made Executor as to that debt c. which is the best course in these cases and yet if the Legatee have the Bond or Especialty in his hands he may deliver it up or cancell it If a man devise a term of years of land to I S and make another Plow 543. 5â—5 And of this opinion were Sâ—◠〈◊〉 â—â—tor and Sâ—r 〈◊〉 Bridge 〈◊〉 upon deliberate advise his Executor and the Executor having enough besides to pay the debts doth sell this term in this case albeit the sale be good and I S have no remedy nor meanes to recover the term yet he may sue the Executor for it and recover the worth of it in damages in a Court of Equity And now having done with the first part of a Testament viz. a Devise we come to that which doth concern the second parâ— viz. an Executor See before at Nuâ— 4. paâ—t 1. Any person that may make a Testament and devise his goods 18. what person may make oâ— appoint an Executor and what not and how and chattels may make an Executor a Fitz. Executor 28 husband as to the goods and chattels shee hath as Execuâ—rix to another and as to her own goods and things in action viz. debts due unto her upon Obligations and Especialties made to her alone befoâ—â— or afâ—er her marriage may make an Executor b Swâ—â—b â—87 Dveâ— 4. Broo. Executoâ— 155. 1 H. 〈◊〉 〈◊〉 Litt. Broo. Sect. 180. 3 H. 6. 7. Swinb 200. 19â— And he that 〈◊〉 make an Executor may make either one two three or more his Executors at his pleasure And he may if he will make one man his Executor for one yeare another man his Executor for another yeare or one man his Executor untill such a time and then another his Executor As one may make A and B his Executors and that B shall not meddle during the life of A. And a man may make one man Executor for one part of his estate and another man his Executor for the other part of his estate or one may make one man Executor as to part of his estate and die intestate as to the residue of his estate Also a man may appoint one to be his Executor if he will accept it and if he refuse that another shall be his Executor And lastly a man may make another his Executor upon condition viz. so as he give Bond to such and such men to performe his Will or the like And all these nominations and appointments of Executor are good Any person that may be a Legatee and take by the Devise of â—9 What person may bee made or appointed an Executor and what not and by what name goods and chattels may be an Executor And therefore it is said See at Num. 4. paâ—t 2. Numb 7. Swinb 222. Fitz. Executors 47. â—7 Devise 3. That any person or persons male or female of the Clergy or Laity children or strangers friends or enemies marryed or unmarryed creditor or debtor bond or free may be an Executor c Pitz. Executor 〈◊〉 88. Non-ability 18. Broo. Non-ability 38. And that a Bastard an Excommunicate or an Out-lawed person may be as able and as absosule an Executor as any other d Coo. 6. 67. And an Infant or child in utero matris may be an Executor but he cannot meddle with the Administration of the goods untill he bee of the age of 17 years and therefore the Ordinary must grant the Administration unto some other untill that time in trust and for the benefit of the Infant e Fitz. Executor 24. And a woman that hath a husband may be an Executrix Husband and wife to any other person f Fitz. Executor 24. Broo. Consultation 5. Also a woman may bee Executrix to her own husband and the husband may be Executor to his own wife and by this meanes hee may recover all the debts due to her upon Obligations Recognisances and the like made to her before or after the marriage all which the husband shall not have but by Executorship or an
the like cause or without any such exprese consideration at all Covenant to stand seised to the use of himselfe his wife children brothers sisters or cousins or their wives these are good considerations and the uses and estates thereupon thus raised and made are good And therefore if one covenant by his Deed without expression of any consideration to stand seised of his land to the use of himselfe for life and after of his wife for life and after of his child in Taile or for life and after of his brother in Taile or for life or in Fee or in any such like manner these uses will rise and the estates will bee well made hereby accordingly So if I agree with Plow 301. â—râ—o Feoffment al. useâ— 54. another that if he marry my daughter that from the time of the marriage they shall have my land to them and their heires in this case and by this agreement if he doe marry my daughter they will have my land according to the agreement So if I being about to marry with a woman covenant with I S to stand seised of my land to the use of my selfe for life and after to the use of the woman I am to marry for her life and after to the use of the heires of my body begotten on her these are good uses and estates that are made by this covenant But here by the way this difference Curia Trin. 10. Car. B. R. Hoskins case must bee observed where a man doth Covenant in consideration of a marriage to be had to stand seised to use and the marriage doth not take effect there no use shall arise So also if the parties disagree at their age of consent and so was it held in the Lord Harberts case But where one doth covenant to make a Feoffment or levie a fine to such uses and the Feoffment is made or fine levied accordingly there notwithstanding the marriage doth not take effect yet the use shall arise for there hee is in by the fine or Feoffment in which case there needs no consideration And therefore if A covenant with B that in consideration C is his kinsman and in consideration of a marriage to bee had between C and E hee will make a Feoffment and other assurances to the use of himselfe for life the remainder to C and E and the heires of their two bodies and after assurances are made accordingly by Fâ—ne or Feoffment but they do not intermarry but marry others in this case notwithstanding E shall have a Moity of the land So if I covenant in consideration of the love I beare to my wife to stand seised to the use of Coo. 7. 40. 11. 24. Dyer 374. her and her heirs of my body upon her begotten and after to the use of my brother hereby the use will rise to my brother also albeit he be not within the expresse consideration So if one covenant with his two sonnes for the love he doth beare to them to stand seised of his land to the use of himselfe for life and after of his wife for life and after of his two sonnes in taile one after another in this case the consideration is sufficient to raise the use to the husband and wife also So if one in consideration Plow 307. of the love he doth beare to his brother doth covenant to stand seised to the use of his brother and the wife of his brother for life or in taile in this case the consideration is sufficient to raise the usâ—s to them both So if I covenant in consideration of the marriage of my sonne with the daughter of another to stand seised to the use of my selfe for life and after of my sonne and his wife in Taile these are good uses and will rise accordingly If I covenant with I S to stand seised to the use of him his Executor Plow 307. Dyer 1â—4 c. he being none of my kindred for twenty years and after to the use of my sonne in Taile in this case the use will not rise to I S but it will rise to my sonne well enough For albeit the consideration of money given by one may be a consideration to all the estates yet the consideration of blood c. is singular and will raise the use of that only to which it goeth But if I covenant with B in consideration of the marriage of my sonne with the daughter of B to stand seised to the use of R a stranger for life and after to the use of my sonne and his wife in Taile in Inrolment this case the use shall rise to R albeit he be a stranger and that for the supportance of the remainder which cannot be without a particular estate and in all these and such like cases no inrolement of the Deed is necessary If I in consideration of 10 l. given to me by my sonne covenant with him to stand seised of land to Coo. 11. 24. 25. 7. 40. the use of him and his heires in this case no use will rise without inrolment by the implyed consideration because there is an expresse consideration Et expressum facit cessare tacitum And yet if I covenant that in consideration that I S is my sonne and hath paid mee 10 l. that I will stand seised Maâ—â—els case Trin. 3 â—ac B. R. Broo. Feoffment al use 15. Plow Manrels case 4. of land to the use of him and his heires in this case the use will arise without inrolment And if I covenant in consideration of 100 l. and of a marriage â—o stand seised to the use of my selfe for life and after of my sonne in Taile hereby the use is raised and the possession charged without inrolment So also where a Feoffment is made fine levied or recovery suffered and no use declared Coo. 1. 24. Dâ—â—t St. 97. 99. 101. thereupon and the same is without any consideration of fine or rent by this the use is noâ— changed for it doth result to the Feoffor Conusor and Recoveree and he hath the 〈◊〉 as he had it before but if in these and such like cases there be but a pâ—â—y oâ— a penny worth of consideration given or any rent reserved upon the Feoffment the use will rise well enough to the â—â—offâ—e c. And if any Tenure be created as where a gift in Taile Lease for life or years in made in these cases albeit there be no consideration given yet the use will rise well enough to the Donee or Leassee and especially if any rent be reserved for that is a kinde of consideration But if a Leassee for years grant over his term to another without any consideration at all it seemes by this no use at will â—ise to the Grantee and therefore that the Grantee shall hold all it to the use of the Grantor sed Quaere The seventh thing whereunto respect is to bee had is the manner and forme of words used in the
will adjudge this to be to the use of the wife and her heirs but if they sell her land for money and after levy a Fine thereof to the Vendee this shall be to the use of the Vendee and his heirs And if a man be seised of land of the part of his Mother and without any consideration make a Feoffment in Fee of it this shall be said to be to his use in the same nature he had it before So if two Jointenants be of land the one in Fee-simple and the other but for life and they without any consideration levy a Fine of it and make no declaration of use the use shall be to them of the same estate as they had before in the land So if â—â— tenant for life of land and B in reversion or remainder levy a Fine of this land generally this shall be to the use of A for life and to the use of B in Fee afterwards as it was before So if A be seised in Fee of an Acre of ground and he and B joyne together and levie a Fine of it to another without any consideration this shall be to the use of A and his heirs only If one make a giâ—t in taile or Lease for life or yeares albeit Perk. Sect. 533. it be without any consideration of Fine or Rent yet the Law will adjudge the use in the Donee or Lessee and not in the Donor or Lessor If one at this day by Deed indented bargain and sell his land Plow 539. Coo. 1 87. â—et see Litt. Broo. 536. Câ—ompt â—â—r â—7 2â— H. â— 6. Co. â— 110. to another for money and doth limit no estate but the Deed is Habendum to him only and not Habendum to him and his heirs or to him and the heires of his body or to him for life howsoever in this case before the Statute of uses was made it was other wise yet now the common received opinion is that by this there doth passe onely an estate for life and not a Fee-simple If a Feoffment be made to I S and his heires to the use of I D without any more words by this limitation I D hath only an Coo. super Litt. 42. Dyer 169. estate for life So if a Feoffment be made to I S and his heires to the use of I D for ever without saying and his heires hereby I D hath only as estate for life And so of other uses the construction shall be according to the rules of Law If a use be limited to I S and his heires untill A shall come from beyond the Sea and attaine his full age or dye in this case Pasche 3◠〈◊〉 B. R. the Lord Mordaâ—â— case if he come from beyond Sea attaine his full age or dye the use shall cease If one covenant to stand seised to the use of A his eldest sonne Hill 17. â—ac B. R. â—â— wayeâ— caâ—e and the heires males of his body and after to the use of B his second sonne in tail in the same manner or according to the limitation to A by this B hath an estate tail to him and the heires males of his body If a Feoffment in Fee be made to the use of a man and his wife Coo. super Litt. 28. for their lives and after to the use of their next issue male to bee begotten in Tail and after to the use of the husband and wife and of the heires of their two bodies begotten they having no issue male then by this the husband and wife are tenants in speciall Tail executed and after they have issue male they are tenants for life the remainder to the sonne in Tail the remainder to them in speciall Tail If one make a Feoffment to the use of himself for life and after his decease to the use of Alice whom he doth intend to marry Dyer 300. untill the issue he shall beget of her shall be of the age of 21 years and after the issue cometh to that age then to the use of the wife during her widdowhood and the husband dye without issue by this the wife shall have an estate at least during her widdowhood If I covenant with B that in consideration he will marry my daughter that from the time of the marriage I will stand seised to Coo. 1. the use of my self for life and after to the use of C a stranger and the heirs males of his body and after to the use of B and my daughter and the heirs of their two bodies in this case albeit the use limited to C the stranger be void yet it seems B and my daughter shall not have the land till the death of C without issue but that my heirs shall have it till that time If I covenant with B to stand seised to the use of my selfe for life and after my death to the use of C a stranger for the term of 20 years Coo. 1. 155. and after the end of the term to the use of my sonne in tail in this case the use limited to C is voyd and my sonne after my death shall have the land But if the words of the covenant be and after the end of 20 yeares insteed of and after the end of the term my sonne shall not have the land untill the 20 yeares be expired See more in exposition of Deeds Chap. 5. All such uses as are not within nor executed by the Statute of 8. Where and how Vâ—es of Land â—ay be extinguished and destroyed or suspended or noâ— And where the ancient Vses shal be revived by the entry of the Feoffees or not 27 H. 8. but remain at the Common-Law may be destroyed discontinued Co. 1. Chudleighs caâ—e or suspended as uses before the Statute might have been And therefore contingent uses may be extinguished or suspended at this day As it a man seised of land in Fee have three sonnes A B and C and he make a Feoffment of his land to divers Feoffees to the use of them and their heires during the life of A and after to the use of the first sonne that A shall beget and the heirs males of the body of such first sonne or if a Feoffment be made to the use of a man and the wife that he shall marry or the like if in these cases the Feoffees make a Feoffment over before the contingent uses happen to be in esse as before A have any sonne or the man take a wife c. albeit it be to one that have notice of these uses yet the uses are destroyed for ever and the Feoffees cannot enter and revive them contrary to their own Feoffment And if in these cases the Feoffees before the contingent remainder vest be disseised hereby the uses are suspended but then by the Reentry of the Feoffees the ancient uses will be revived again And therefore if the Feoffees release to the Disseisor and so barr themselves of their entry the uses
to pay them See more of this question in Numb 29. infra An Executor or Administrator regularly shall charge others for 28. Where and how an Executor or Administrator shall charge others in respect of the estate of the deceased and what actions remedy he may have against others and what not and how any debt or duty due to the deceased as the deceased himself might have done and the same actions the deceased might have had the same actions for the most part the Executor or administrator may have also And therefore he may have an a West 2. c. 22. action of account b F N B. 117. an action of Trespasse de bonis asportatis in vita testatoris c Dyer 322. an action of debt against a Gaoler upon the escape of a prisoner d Coo. 11. 41. a Writ of error upon the Statute of 27 Eliz. e Coo. 6. 80. an attaint upon the Statute of 23 H. 8. a Writ of restitution upon the Statute of 21 H. 8. f Coo. 9. 86. an action upon the case upon the assumpsit of the Testator g Stat 9. 11. 6. c. 4. an Indempnitate nominis when the deceaseds goods are taken upon an Out-lawry against another man of his name h Broo. Excutor 161. an action of Covenant for breach of a Covenant made to the deceased i Coo. 5. 27. an action upon the Case upon the Trover and Conversion of the goods of the Testator k 7 H. 4. 6. an Ejectione firme for an ejectment of the Testator out of a Terme l Coo. 4. 50. an action of debt for the rent behind in the life time of the deceased m Broo. Executor 169. an action of debt for the arrearages of an annuity due to the Testator in his life time n Broo. Executor 122. and a Ravishment or Ejectment of guard for a wrong due to the â—eceased o Coo. 9. 8â— But an Executor or administrator shall not charge another or have any action against him for a personall wrong done to the Testator when the wrong done to his person or that which is his is of that nature as for which dammages only are to bee recovered And therefore an Executor or Administrator cannot sue another for the beating or wounding of the deceased or for a Trespasse done to him in his cattle grasse or corn or for a waste done by his Tenant in his lands for these are said to be personall actions which die with the person according to the rule Actio personalis moritur cum persona If the Testament be kept from the Executor he may have remedy 36 H. 6. 7. Coo. 8. 135. to recover it in the Spirituall Court So if the goods of the deceased be kept from him he may sue there for them if he will or he may sue in any Court of Common-Law And if there bee a Will and an Executor made or two Administrations granted together hee that is rightfull Executor or administrator may sue the wrongfull administrator for the goods in his custody If one grant a rent out of his land for life provided that it Coo. super Litt. 146. shall not charge his person and the rent is behind and the Grantee dyeth in this case the executor or administrator of the Grantee may have an action of debt for these Arrearages If any rent or arrerages of rent be due to me upon a grant of rent Coo. 4. 50. Stat. 32. H. 〈◊〉 cap. 37. out of any land to me or reservation of rent upon any estate made by me of land in these cases my executor or administrator may have an action of debt for this rent or hee may distraine for it so long as the land chargeable with the rent and out of which it doth issue is in his possession that ought to pay it or in the possession of any one that doth claime by or under him If any of my houshold servants doe convey away and eloine or See Stat. 〈◊〉 H. 6. c. 〈◊〉 destroy any of my goods any executor or administrator may have a speciall Commission out of the Chancery to enquire of and to punish it And in case where a man doth sue as executor or administrator Coo. 5. 33. Broo. Treâ— passe 346. Fitz. Executor 1â— he must in his action name himselfe as he is i. e. if he bee an Executor he must name himselfe so and if an administrator he most name himselfe so And if there bee many Executors and some accept and some refuse if they bring any action they must be all named in the Writ And yet if one executor have goods in his possession and hee alone sell them perhaps for this contract he may bring an action for the money in his own name so also if the goods be taken out of his possession alone it is said he alone may sue for them but the safest way in these cases is to sue in the names of all the Executors for the possession of one of them is said to be the possession of all of them An executor or administrator regularly shall be charged by Coo. supeâ— Litt 209. 5. 17. Dyer 14. 23. 212. Doct. St. Broo. Discent 53. 29. Where and how an Executor or Administrator shall be charged by others and what Actions and remedy may be had against him or 〈◊〉 others for any debt or duty due from the deceased as the deceased himselfe might have beene charged in his life time so farre forth as he hath any of the estate of the deceased to discharge the same And therefore if a man bind himselfe by Obligation or Covenant to pay money or doe any such like thing and doe not bind his executors or administrators by name in this case the executor or administrator may be sued and may be charged as farre forth as if they were named And yet where the Covenant is but personall as where one doth make a Lease for yeares and the Leassor doth Covenant to pay the quit rents but he doth not say during the terme by this it seemes the executor or administrator of the Leassor shall not be charged o Coo. 9. â—6 Plow 18â— An action of the case lyeth against him upon an assumpsit or the simple contract of the Testator especiall where the ground of the Assumpsit is a true debt p F N B. 121 a rationabili parte bonorum lyeth against him q 3 H. 6. 35. 11 H. 4. 45. a Detinue lyeth against him for the goods delivered to the deceased if the executor or administrator doe still continue the possession of them Also an action of debt lyeth against him for Arreatages of account found upon the deceased before Auditors The executor or administrator of the father that hath levied Stat. 25. Ed. 1. c. 11. Aid of his Tenant for the marriage of his daughter shall bee charged with it and the daughter may sue for it The
executor or administrator of a Gardian in Chivalry that E N B. â—6 doth commit waste in the Wards lands shall be charged and may be sued for the heire for it If a man possessed of a term of years devise it to another and Coo. 5. 12. Coo. 8. 94. the executor or administrator of the Devisor before the assent to the Legacy doth commit Waste in the land in Lease in this case he shall be charged with and may be sued for this Waste by him in reveâ—sion But if the executor die his executor shall not bee charged with it for it is a personall wrong that dyeth with the person If a Bishop grant an annuity out of his lands to I S for life and Dyer 370. die in this case it seemes the executor or administrator of the Bishop shall bee charged with the Arrerages due in the Bishops time If a Lease for yeares be made rendring rent and the rent is behind Broo. Executor 127. Coo. 3. 24. 22. and the Lessee die in this case the executor or administrator of the Leassee shall be charged for this rent So also if Leassee for yeares assigne over his Interest and die his executor or administrator shall be charged with the Arrerages before the assignment but not with any of the Arrerages due after the assignment The executor or administrator of a Customer or Controller shall Broo. Exeâ—oâ— 157. be charged upon a Taile of the Exchequer showed to the Testator The executor or administrator shall bee charged for a Ravishment West◠〈◊〉 c. 35. or â—jectment of Ward by the deceased The Executor or Administrator may be charged in the Spirituall Trin. 7. Ia. B. R. 〈◊〉 N B. 51. all Court for Tythes due from the deceased buâ— he may not as it seemes be sued in any Temporall Court for them The executor or administrator of a man that recovereth a debt Curia 21. Ia. B. R. upon a judgement had by the deceased shall be chargable with restitution if the judgement be reversed for error An executor or administrator shall not be charged for any personall Coo. 9. 87. F N B. 117. Dyer 322. 〈◊〉 H. 4. 46. Doct. St. 76. Coo. 8. 94. 133. wrong done by the deceased and therefore no action may be brought against him for any such cause as because the deceased did burne the Deed of the lantiffe suffer a Prisoner at his suite to escape cut down his trees cat up his grasse beate or wound the body of the Plantiffe defame him in his name or the like for all these are said to be personall actions that dye with the person neither is there any remedy to be had against the executor or administrator in equity in these cases neither shall he be charged in any action of accompt for any receit or occupation by the deceased And yet perhaps an action of the case may lie in this case neither will an action of debt lie against him upon the simple contract of the deceased but an action of the case only r Adiudge Hill 40. â—liz B. R. Bowyeâ—â— case Neither will an action lie against an executor or administrator upon an arbitrement made in the life time of the deceased albeit it be made in writing s Hâ—â—l 7. Ia. BR â—per 3 Iustices Neither will any action lie against any Executor or administrator for costs given in the â—tar chamber or Chancery against the deceased in a Suite there but when the party dieth the same is lost and Coo 9. â—9â— 40 Broo. Executor 78. 136. 136. Fitz. Briefe 34â— where a man doth sue an executor or administrator in a Suite hee must charge him as he is v. z. if he be an Executor he must sue him by that name if an administrator then by that name And where there be many Executors and have all accepted they must be all sued but if some of them have refused perhaps the Suite may bee good enough against the rest But otherwise one Executor cannot be charged without his companions except it be in the case of Summons and Severance and in some speciall case where one alone doth the wrong and the like as where one Executor alone doth detain the deeds from the heir for in this case he alone may be charged See more infra at Numb 39. 21 Ed. 4. 25. 4 H. 7. 4. 16. H. 7. 4. Broo. Executors 66. 30. 65. 9. Ed. 4. 12. Fitz. Executors 10. All the Executors where there be more then one be they never 30. What act one Executor or Administrator alone may do And where the act or laches of one may prejudice or barr his companion and where not so many in the eye of the Law are but as one man in which respect the Law doth esteeme most acts done by or to any one of them as acts done by or to all of them And therefore the possession of one of them of the goods and chattels of the deceased is esteemed the possession of them all paiment of debts by or to one of them is esteemed a payment by or to them all the sale or gift of one of them of the goods and chattels of the dâ—ceased the sale and gift of them all a Release made by or to one of them is a Release made by or to them all and the assent of one of them to a Legacy the assent of them all * Adiudge M. 39. 40. Eliz. B. R. And therefore if there be two Executors and one of them deliver up the Obligation to the Debtor whereby he is bound the other Executor shall not recover him in a Detinue So if two Executors have lands or goods in execution and one of them release all his interest this is a totall discharge of the execution * Crompt Iac. 45. 4â—â— 7. 4. And yet if in this case there be any practise between the executor and the Creditor in this matter and there be not Assets besides to pay all the Debts and Legacies here perhaps the other Executor may have remedy in equity against his Co-executor and the Creditor But how the Law is of Administrators quaere for some think that one of them also may sell-goods release debts plead to actions or the like without the other If one Executor atturn to the Grant of a reversion or a rent Dyer 210. Coo. 4. 31. Additioâ— to â—ust Doâ—â—dge 4â— this is as good as if they did all atturn and bind all the rest as in case of assent to a Legacy for in this case the assent will bind all the rest albeit there be not enough to pay the debts besides the Legacy given away by assent but his assent shall not hurr his Co-executors in a Devastavit If one Executor appear to an action sued against them all or Coo. 9. 38. Dyerâ— 10. plead a Plea to it this for the most part shall be said to be the appearance and plea of them all and shall bind the rest