if A. dies his Executors not his Heirs shall have it for it is no Inheritance Or if such a Termer grant a Rent out of the Land to A. and his Heirs or the Heirs Male of his body yet shall it go to the Executor not to the Heir for it being derived out of a Chattel it self remains a meer Chattel and becomes not any Inheritance Also if a Rent be granted out of Land to one in Fee-Simple Fee-Taile for Life or Years and it be not paid to him in his life-time the Arrerages shall go to his Executor not to his Heir Or if a man seized of Land and possessed of a stock of Cattel Let it for Years and Covenant with the Lessee that he pay to Him and his Wife their Heirs and Assigns one hundred pound per annum during the Term in this Case after the death of the Lessor his Wife surviving him her Executor and not his Heir shall receive this payment Again if A. grant the next Presentation of the Church of B. unto D. In this Case if D. dies his Executor shall have it as a Chattel Not the Heir Or if A. grant a Lease for years of Land to D. and his Heirs and dies his Executor and not his Heir shall have this Term. And if A. possessed of a Term of years of Land grant it by Deed or give it by Will to D. and his Heirs or to D. and his Heirs Males or devise it by Will to B. for life the remainder to D. and his Heirs in these Cases D. shall have these Terms of years as Chattels and after his death his Executor shall have them Also if a Lessee for life make a Lease for years absolutely This in Law is a Lease for so many years if the life live so long and shall go to the Executor after his death And if one makes a Feoffment in Fee of Land the Feoffee covenanting to do divers things to the Feoffor and to forfeit five pound to him and his Heirs as oft as he shall fail performance and the Feoffee doth fail and break his Covenant divers wayes and the Feoffor dieth in this case his Executor not his Heir shall have and recover all the Forfeitures that are past and unpaid Also if any Goods or Chattels be granted to any Heads of Bodies Politick and their Successors their Executors and not their Successors shall have them In like manner if a Lease for years be made to a Bishop and his Successors and he die his Executor not his Successor is to have it 4. Among the living Chattels Personal that go to the Executor may be comprehended an Apprentice for years the interest of a Debtor in Execution for debt and in a Prisoner taken Jure belli Also Cattel of all kind yea and Fishes in a Pond Conies in a Warren Deer in a Park Pigeons in a Dove-house where the Testator was but a Termer or Lessee thereof for then they are to go to his Executor as Accessory Chattel following the State of their Principal viz. the Pond Warren Park and Dove-house Or if the Conies Pigeons or Deer were all tame they are then likewise to go to the Executor and not to the Heir so likewise are Hawkes reclaimed yea it is felony to steal Hawkes young in the Nest which implyes that they are Goods and belong to the Executor 5. Chattels Personal without life and moveable as all Householdstuff Implements and Utensils Money Plate Jewels Corn Pulse Hay Wood felled Wares Merchandise Ships Carts Plows Coaches c. are evident to belong to the Executor not to the Heir And generally all things sowed and not arising from the Earth without manuring go to the Executorsâ— and such things as grow of themselves to the Heir therefore Corn in the field growing or standing shall go to the Executor Also Hops though not sowen if planted likewise Hemp and Saffron do like Corn growing pertain to the Executor Also after Corn reaped and before the Tythes set out the Inheritor of the Tythes dying his Executor and not his Heir seems to have the best right to the Tythe after set out Also things above ground in Gardens as Mellons of all kind and the like go to the Executor not to the Heir as also all other things as have such a yearly setting or manurance as severs them in interest from the soile Also the Writings and Evidences that concern not the inheritance but only Leases Terms Goods Chattels or Debts pertain to the Executor If one that holdeth Land for the Life of A. B. sow the Land and A. B. happen to die ere it be ripe and cut and he that so holdeth the Land happen to die also before it be ripe the Executor of the Tenant shall have the Corn. And if the Tenant in Tayl sow the Land he doth so hold and die ere it be cut the Executor not he in Reversion nor the Heir nor the Issue in Tayl shall have it Also if A. make a Feoffment of Land to B. excepting the Trees thereon which he afterwards grants to B. for years in this Case the Trees are in the nature of a Chattel and if B. dies his Executor shall enjoy them Or if A. seized in Fee of Lands whereon Trees grow sell these Trees to B. who then dies before they be felled in this Case the Executor or Administrator of B. shall have them and may sell or cut them down Lastly The Executor without contradiction of the Heir may in any convenient time after the Testators death enter into the house descended to the Heir for the removing and taking away of the Goods so as the door be open or at least the key be in the door but he cannot justifie the breaking open of the door of any Chamber to take Goods thence But if the Goods be not removed in convenient time the Heir may distrain them as Dammage Fesante 6. If a Lease for years be made to a Bishop and his Successors and he die his Executor not his Successor is to have it If a Presentment to a Church happen to a Tenant in Tayle and he die before he Presents his Executor not his Issue in Tayle shall Present because the Chattel is not devested Likewise if a Termer have a Presentment which doth happen during the Term though he do not Present yet he shall have it If a Parson Vicar Master of a Hospital or any Body Politick be possessed of any Goods or Chattels in their own Right and die they shall go to their Executors or Administrators not to their Successors If a Lease be made for years or the next Advowson of a Church or Covenant for payment of money or the like be granted or an Obligation made to one and to his Heirs In all these Cases he hath this as a Chattel and it shall go to his
in the Womb at the Testators death seems to be void Yet if a Man Devise to such an Infant and he happen to be Born before the Testators death it seems that in this case the Devise is good Again A Devise made to a person altogether uncertain and not certainly Named or Described is altogether void yet a plain Description of a Person without naming him is sufficient so that a Devise made to the Dean of Pauls without naming him is good A Man Deviseth his Land to Elianor the Daughter of I. S. who hath divers Daughters whereof one is named Hellen and none Eleanor This is a good Devise to Hellen. Likewise if a Man hath Two Wives and he Deviseth his Land to his latter Wife in Fee the first Wife shall have it or if he hath Two Sons called John and one of them is a Bastard born before Marriage and he makes a Devise to his Son John the Legitimate John shall have it and not the Bastard The Husband can be no Devisee as to a Devise of Lands from his Wife There are Three Brothers by the same Father and Mother and the middle Brother Seized of Land Deviseable giveth it by his Testament Propinquiori fratri suo it seems that neither of them shall have it Suppose a Man who hath a Term Deviseth the Land to one and his Heirs the Devisee dyeth leaving Executors his Heirs shall have the Land and not his Executors the Law is otherwise in case the Entire Term were so Devised A Devise of Land made to the Canons of a certain Cathedral for ever or Canonicis Ecclesiae D. Pauli Lond. in perpetuum is a good Devise to all the Canons joyntly in Fee and the Survivor shall have the Entierty If a Man willeth that his Executors shall Sell his Land for the Payment of his Debts and they all die save one who maketh the Sale in this case the Vendee shall not have the Land the Law were otherwise if the Land had been Devised to the Executors to be Sold. If a Man hath Issue a Son and Land is Devised to the Father Habend sibi Hered de Corpore suo Legitime procreand and after the Devisee hath Issue another Son the second shall have the Land If a Man Deviseth by the Will That after the death of his Wife the Land Devisable shall go to I. S. his Wife shall have it for her Life by this Devise Or if a Man willeth that after 20. Years after the death of the Devisor I. S shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor 5 A Testament Nuncupative is not good for a Devise of Land nor a Testament made in Print if it were never written yet a Testament written though no Executor be named therein is good for Lands but not for Goods Likewise a Testament without Sealing or Subscribing is good enough for a Devise of Land so as it be put into Writing in the Testators Life Time although it be never proved before the Ordinary But if in a Testament there are these words viz. Haec est voluntas intentio mea A. B. c. This is not good for the disposition or devise of Land without saying ultima voluntas according to the Lord Dyers Opinion who in his Learned Readings on the Stat. of Wills 32. and 38. H. 8. if he were indeed the Author of that Impression 1648. doth further Affirm That if a Man makes a Testament of his Land in one County and long after makes a Testament of his Land in another County These are good Also that if Two Men severally Seized of Lands make a Joynt-Testament of their Land This shall be good and several Testaments Also that where a man is in making his Testament and having Devised a parcel of his Land dies before the perfection and finishing thereof This shall be good for so much as is Devised That a Man willing by his Testament that his Lands shall be Sold to pay his Debts not declaring by whom This is a good Will and shall be performed by his Executors or Administrators That a Man making a Will of Land in which he hath nothing and after Purchaseth the same Land and dyeth This is not good That a Woman Covert making a Will of her Land and after taking a Husband who hath Issue the Husband dyeth the Wife dyeth this is not a good Will That if a Man make a Will of his Land and after alien this Land in Fee and after repurchaseth the same Land This is not a good Will That a Man making a Will and after making a new Will and after on his Death-bed saith That the first Will shall be his last Will This is good Also that where a Man giveth Land by his Will in Fee and after by another Will giveth the same Land to another but for Term of Life This is a Revocation of the Entire first Will. Also if a Man Devise another Mans Land This Devise is void but if he after the Devise made Purchase this Land then the Devise is good CHAP VIII Certain Cases touching Devises of Land Void or not 1. Lands What and how Devisable 2. Certain void Devises of Land 3. To what Persons and in what Cases Devises of Land may be good or not 4. The same Lands twice Devised to several Persons in the same Will how both Devises may stand good 5. The Profits of Land Devised do pass the Land it self in which Case Testaments more favourably construed then Deeds 6. How Lands Purchased after a Devise of Lands made may pass by that Devise or not 7. Several Cases in Law referring to this Subject 1. ALthough Lands made Devisable by Statute cannot be Devised otherwise then by Will in Writing yet Lands and Tenements Devisable by Custom may be Devised by a Nuncupative Will without any Writing But Copy-hold Land is not Devisable nor can Tenants in Tail or pur auter vie or Joynt-Tenants Devise their Eestate in the Land they so hold no more then they could before the making of the said Statute which doth not impower them thereunto But such as are Seized of Land in Common or Coparcenary may devise the same And if there be Two Joynt-Tenants for Life and the Fee-simple to one of them he that hath the Fee-simple may Devise his Fee-simple after the death of the other Joynt-Tenant for Life And in such places where Lands were Devisable by Custom before the making of the Stat. of 32. H. 8. a Devise of Lands may be good against the Heir for the whole but by the Stat. impowering to dispose of Lands by Will a Devise of Land is not good against the Heir save only for Two parts in Three 2. He that Deviseth Land ought to have a Right to and possession of the Land he Deviseth otherwise the Devise is not good and therefore if
a Disseisor Devise the Land he hath gotten by Disseizin this Devise as to the Disseizee is void Likewise if a Man be Disseized of his Land so that he hath nothing but a Right thereof left and then he Devise this Right or the Land this Devise is also void So if one Contract for Land and pay his Money for the same but hath no Assurance made him of the Land and he Devise the same to another such Devise cannot be good yet possibly he that received the Money may be compellable in a Court of Equity to Assure and Settle the Land according to the Devise Likewise if one Devise another Mans Land such Devise is void but if after such Devise made he Purchase this Land and die without Revocation now is that Devise good Also if A. Bargain and Sell Land to B. on Condition of Re-entry if he pay to B. Twenty Pounds and B. Covenants that he will not take the Profits until default of Payment and A. make a Lease of Seven Years thereof to another and after break the Condition in this case B. may Devise the Land and the Devise will be good 3. If one Devise his Land to the Children of A. B. by this Devise the Children that A. B. hath at the Time of the Devise made or at most at the Time of the Testators death and not such as shall be Born after his death shall take by that Devise and have the Land Also if a Devise of Lands or Goods be made to the Heirs of A. B. he then and at the Time of the Testators death being alive this Devise is void because the person to whom a Devise is made must be capable of the Devise by that Name by which the Devise is made to him when there is no other description whereby to infer the Testators meaning yet if Lands or Goods be Devised to the Executors of A. B. and he die before the Testator and make Executors This is a good Devise to such Executors or if a Man make a Feofment of his Land to the use of his last Will and then Devise that his Feoffees shall be Seized to the use of B. C. This is a good Devise of the Land per intentionem Also a Devise of Land to one paying so much a Year to another with a Clause of Distress upon failure of Payment is a good Devise but a Warranty cannot be made by a a Will Yet if Land be Devised for Life or in Tail Reserving a Rent in this case the Devisors Heirs shall be bound to the Warranty in Law and the Devisee shall take advantage thereof Also a Devise of Land may be made to one and a Devise of a Rent out of the same Land to another in the same Will and both stand good Likewise Land may be Devised to one in Fee and after the same Land in the same Will may be Devised to another for Life or for Years and both these Devises may be good and may well consist together 4. In like manner if a Man in the former part of his Will Devise all his Lands by general words to one in Fee and in the latter part of his Will Devise some special part thereof unto another in Fee Both these Devises are good and may stand together that is The former Devise is good for as much as is not afterwards more specially Devised notwithstanding the Subsequent Specification and the latter is good for so much as is so specially Devised notwithstanding the precedent general Disposition It is otherwise when the general Clause comes last for then the first Devise is void So also it is supposed to be where both the Devises are particular that then the first Devise is void As suppose a Man doth first in his Will Devise Long-acre to A. and his Heirs afterwards in the same Will he doth Devise the same Land to B. and his Heirs in this case some have held the first Devise to A. is void which others have denyed holding that both the Devises are good and that A. and B. in this case shall be Joynt-Tenants 5. If a Man Devise the Use Profits or Occupation of his Land by this Devise the Land it self is Devised Or if a Man Devise only the Profits of his Land this is a Devise of the Land it self For Lands will pass by words in a Will which will not pass by the same words in a Deed but whatsoever will pass by any Words in a Deed will pass by the same Words in a Will The Reason is because Wills are always more favourably interpreted than Deeds and there is good Reason for that also If a Man says in his Will I give all my Land or all my Tenements to A. B. he shall have not only all the Lands whereof the Devisor is Sole Seized but also all the Lands whereof he is Seized in Common or Co-parcenary with another and not only all the Lands he hath in possession but also the Lands he hath in Reversion of any Estate he hath in Fee-simple But if he say I give all my Lands in Possession only then the Lands he hath in Reversion are excluded out of that Devise 6. If a Man Seized of Land of Fee-simple in the Parish of Grade saith in his Will I give all my Lands in the said Parish to A. B. and after the Will made and published he doth Purchase other Lands in the said Parish and dyeth in this case and by this Devise A. B. shall not have the new Purchased Lands Yet by a new Publication of the Will after the Purchasing of such Lands they will pass to A. B. the Devisee Yea though he hath no Land in the said Parish at the Time of making the said Devise yet if afterwards he doth Purchase Lands in that Parish in this case such ne 〈…〉 Purchased Lands will pass by the said Devise because it shall in that case be intended that he meant to Purchase them Also if a Man hath some Lands in Fee-simple and other Lands only for Years in Dale and he Devise all all his Lands and Tenements in Dale by this Devise the Lands and Tenements he hath for Years doth not pass but if he hath no other Lands in Dale but those for Years in this case probably they will pass 7. A. Deviseth his Lands to M. his Wife until E his Daughter shall accomplish the Age of 21. Years the Reversion to the said E. and the Heirs of her Body upon Condition that she shall pay unto his said Wife during her Life in Recompence of her Dower of all his Lands 20 l. and upon default of Payment he wills his Wife shall enter and enjoy all the Lands during her life the Remainder ut supra the Remainder to I. S. in Tail and dies M. the Wife enters E. the Daughter being within the Age of 14. Years M. takes to Husband I. D. The Husband and
remembred them But for the foresaid Reasons it was adjudged for the Plaintiff That those Lands well passed by the Will Suppose a Man hath Two Sons both named John and conceiving his Eldest Son to be dead he Deviseth his Land by his Will to his Son John generally when in Truth the Eldest Son is living In this Case the Younger Son may alleadge and give in Evidence the Devise to him and may produce Witnesses to prove the Intent of his Father And if no Proof can be made the Devise shall be void for the uncertainty of it Glanvile Serjeant prayed the Opinion of the Court in this Case A Man had Issue a Son and a Daughter and Devised his Lands to his Son in Tail and if he dyed without Issue That it should remain to the next of his Name and dyed The Son dyed without Issue the Daughter being then Married whether she should have the Land was the Question And held per Curiam That she should not For she had lost her Name by her Marriage but it should go to the next Heir-male of the Name But if she had not been Married at the Time of her Brothers death the Daughter should have had it for she was the next of the Name One Devised certain Lands in N. in Tail the Remainder to the next of the Kin of his Name and at the Time of the Devise the next of his Kin was his Brothers Daughter who was then Married to I. S. the Devisor dyed The Tenant in Tail dyed afterwards without Issue Whether the Daughter should have the Land was the Question upon a special Verdict and adjudged without Argument that she should not For she is not now of the Name of the Devisor but of her Husbands Name But if she had been unmarried at the Time of the Devise and death of the Donor although she had been Married at the Time of the death of the Tenant in Tail without Issue yet she should have had the Land Wherefore it was adjudged accordingly Ejectione Firmae For certain Lands in A. upon Evidence to a Jury a Devise was shewn of an House with the Appurtenances and thereby Land in the Field was claimed And Popham doubted whether it should pass But Fenner said That it well might pass And that upon Demurrer in 28. Eliz. it was adjudged accordingly The Defendant then to make it clear shewed That the House was Copyhold and the Land Freehold And the whole Court thereupon conceived That it could not be said Appurtenant although it had been used with it Wherefore the Plaintiff was Nonsuited In the Case between H. and H. all agreed the Case of 13. H. 7. That a Testators Devise to his Heir of his Land after the death of his Feme is a good Devise by Implication to the Feme of that Land during her life for it appears he intended his Heir should not have it until the death of his Feme And none other can have it besides the Feme And therefore it is a good Devise to the Feme by Implication But if such a Devise had been to a Stranger after the death of his Feme it might peradventure have been otherwise for the Heir in the Interim might have had it Note That the Opinion of all the Justices was That if one make his Testament wherein are these words viz. I Release all my Lands c. to A. and to his Heirs It is a good Devise of the said Lands to A. and his Heirs Upon a special Verdict the Case was this A Woman Seised of Lands made her Will and devised the same to one and his Heirs after they Intermarry After Marriage the Woman intending to revoke her Will doth revoke it by words after Marriage and saith That her Husband shall not have the Land by her Will and after dyes Whether the Husband by that Will or the next Heir to his Wife shall have the Land was the Question The Case was Argued Pro Con several Arguments on both sides In fine it was Adjudged That the Will was void and that the Husband could take nothing thereby A Man Devised his Lands to his Wife from Year to Year until his Son I. come to the Age of 20. Years and dies the Wife enters I. dies before he attain the Age of 20. Years And it was moved by Harper whether her Interest were thereby determined And it was held by all the Justices That by the death of the Son the Estate of the Wife was determined and that she had no longer any Estate therein For it is to be intended that the Will of the Devisor was That his Wife should have the Land during the Minority of his Son for that he himself could not Legally dispose of the Land being within Age. And Dyer said That by these words de anno in annum It is intended that the Will of the Devisor was That the Interest of the Wife should determine by the death of his Son But if the Words had been until his Son should Come or might Come to that Age of 20. Years then notwithstanding his death the Estate of the Wife had continued A. Seised of the Mannor of Chessam extending into Chessam and the Town of Hertford and also of Lands in Hertford Devised by Will the Mannor of Chessam to B. his Eldest Son in Tail and the Lands in Hertford to C. his Younger Son It was held by all the Justices That the Younger Son should have all that part of the Mannor of Chessam which lay in the Town of Hertford A. Devised that his Lands should descend to his Son but Willed That his Wife should take the Profits thereof until the full Age of the Son for his Education and bringing up and dyed The Wife Married another Husband and dyed before the full Age of the Son It was the Opinion of the Justices in this Case That the second Husband should not have the Profits of those Lands till the full Age of the Son For nothing is Devised to the Wife but a Confidence and she is a Guardian or Bailiff for to help the Infant which by her death is determined and the same Confidence cannot be transferred to the Husband A Man Seised of a Messuage to which a Garden and a Curtilage did belong Enclosed with a Wall and there was no way to the Garden but through the Messuage He Devised the Messuage to his second Son in Fee not mentioning the Garden nor Curtelage nor saith cum pertinentijs It was Adjudged in this Case That the Garden and Curtelage did pass by this Devise They said a Curtelage is parcel of the House as a Stable and a Dovehouse and the Garden shall pass because it is as well for Necessity to it as for Pleasure A. Seised of Lands had Two Daughters and Devised the Lands to the Eldest and her Heirs that she pay to her Younger Sister yearly 30 l. It was the Opinion of all the
Justices That this was a Condition for so was the Intent of the Devisor For otherwise the Younger Sister had no Remedy for the Rent And in this Case it was Adjudged That the Younger Sister might enter upon a Moity of the Land for breach of the Condition in Non-payment of the Rent for which the Action was brought A Man had Issue a Son and a Daughter and he Devised his Lands to his Son in Tail and if he dyed without Issue it should remain to the next of his Name r The Son dyed without Issue the Daughter being then Married The Question was whether she should have the Lands It was Resolved by the whole Court That she should not for that she had lost her Name by her Marriage But if she had not been Married at the Time of her Brothers death she should have had it for she was the next of Name A. B. Seised of Lands in Socage Devised the same by Words to his Three Sisters a Stranger present Recited the Testators words to him whereat he Affirmed the same Afterwards the Stranger for his own Remembrance puts the words into Writing but read them not to the Devisor before his death This Devise so Reduced into Writing mode forme is void because it was written without the order or direction of the Devisor and consequently not within the Statute But if after the writing thereof he had read the same to the Devisor and thereupon the Devisor had Affirmed the same it had then been a good Devise It was the Opinion of c. A. deviseth his Lands to W. after the decease of his Wife and if he fail then he willeth all his part to the discretion of his Father and dyed W. Survived the Father being dead before without any disposition of the Land In this Case the Father hath a Fee-simple there being no difference where the Devise is That I. S. shall do with the Land at his Pleasure and the Devise thereof to I. S. to do with it at his discretion A Man Seised of Lands in A. hath Issue four Daughters A. B. C. D. and devised all his Lands in A. to A. and B. Two of his Daughters and made them his Executrices Afterwards he Purchased other Lands in A. A Stranger being desirous to Buy this Land of him newly Purchased he refused saying That this Land should go with the Residue of his Land to his Executors as his other Lands should go Afterwards the Testator made a Codicil and caused it to be annexed to his Will but in the Codicil no mention was made of this new Purchased Land In this Case this new Purchased Land shall not pass For Notwithstanding that the Reading of the Will and the making of a Codicil may amount to a new Publication yet it doth not manifest the Intent of the Devisor to be that more shall pass by that then he intended at the first Also the new Reading of the Will and the annexing of a Codicil may not properly be termed a new Publication And without an express Publication for this Land newly Purchased this Land shall not pass A Man Let several Houses and Lands by several Leases for Years rendring several Rents amounting to 10 l. per annum and made his Will in this manner viz. I Bequeath the Rents of D. to my Wife for Life the Remainder over in Tail By this Devise the Land it self shall pass for it appears his Intent was to make a Devise of all his Lands and Tenements and that he intended to pass such an Estate as should have continuance for a longer time then the Leases should endure and the words are apt enough to convey the Lands it being an usual manner of speaking of some Men who name their Lands by their Rents A Man Devised Lands to another Man and his Heirs The Devisee dyed in the Life of the Devisor and then the Devisor dyed In this Case the Heirs shall not take by the Devise for that the Heirs are not named as words of Purchase but only to express and limit the Estate which the Devisee should have for without these words Heirs the Devisee could not have the Fee-simple and the Heirs are named only to Convey the Lands in Fee-simple and not to make any other to be Purchaser but the Devisee CHAP. IX Certain Cases touching Devises of Land in Fee-simple 1. A Fee-simple may pass by several Words and Expressions in a Will which will not pass it by Deed. 2. A Power to Sell Land Devised passeth the Fee-simple so doth the Devise of the Land without other words on the least Consideration of a Payment to be made by the Devisee 3. A Fee-simple will pass in a Will as well by the Implication as Expression of the Word Heirs 4. A nice Distinction between Joynt-Tenancy and Tenancy in Common 5. A Devise of Lands to a Corporation for Life is a Fee-simple and whether it may pass by the Word Assigns without the Word Heirs or the Words For ever 6. A Fee-simple passeth in a Will by Implication of a power to Sell the Lands as well as by Payment of Money enjoyn'd the Devisee 7. In what Sense the Habendum shall be Construed where the Devise of Lands seems somewhat doubtful 8. In what Case a Fee-simple and all the Testators Inheritances may pass by General Words to the Devisee 9. A Devise in Fee made to one cannot in the same Will be made to another 10. How the Word Paying doth Create a Fee in a Devise and bow by a Devise of Rents the Land it self doth pass 11. A Devise shall be for the Dvisees Benefit not Prejudice also in what other Case a Fee shall pass by Implication 12. In what Case and by what Words the Fee and not Leases or the Leases and not Fee do pass by a Devise 13. Other Cases in Law touching this Subject 1. THere are many Words and Expressions whereby Lands will pass in Fee-simple by a Will which by a Deed will not so Convey the same As suppose a Man devise his Land in this manner viz. I give my Land in Dale to A. B. and his Heirs or to A. B. in Fee or to A. B. for ever or to A. B. Habendum sibi suis or to A. B. and his Assigns forever or to A. B. to give away or Sell or do therewith at his Pleasure All these and such like in a Will Create a Fee-simple Estate and A. B. shall have the Land to him and his Heirs for ever yet by such words in a Deed no more will pass then an Estate for Life save only in the first Case Also if any now since the making of the Statute of Uses Devise that the Feoffees of his Land shall be Seized of the Land to the Use of B. C. and his Heirs or to the Use of B. C and the Heirs of his Body or that his Feoffees shall make an Estate of the Land to B.
C. and his Heirs or to him and the Heirs of his Body This is a good Devise of the Land in Fee-simple or Fee-tail There are also several other ways of Fee-simple by Will For suppose Land be given to a Man Habend sibi Haeredi suo This indeed is not Fee-simple otherwise it is if it be given sibi duobus Haeredibus suis tantum So if Land be given to a Man Habend sibi Haered with warranty of the Land sibi Haeredibus suis This is a good Fee-simple Or if a Man Devise Land to A. B. for his Life and after to the Heirs or to the right Heirs of A. B. By these Devises A. B. hath a Fee-simple in the Land Also if one Devise his Land to his Wife to dispose thereof at her will and pleasure and to give it to one of her Sons by this Devise she hath a Fee-simple but it is qualified for she must Convey it to one of her Children and cannot Convey it to another 2. When in a Will power is given to a Devisee of Land by the Testator to Sell that Land such Devisee hath a Fee-simple in that Land for power to Sell giveth by Implication an Estate in Fee-simple Also if one Devise his Land to A. B. paying 10 l. without other words By this the Devisee hath the Fee-simple of the Land albeit the 10 l. be not the Dundredth partvalue of the Land In like manner If one Devise Land whereof he is Seized in Fee to A. B. paying 10 l. to G. D. By this Devise albeit there be no Estate expressed yet A. B. hath the Fee-simple of the Land in respect of the Payment of the Money This holds True only in case the Intent of the Testator doth not appear to be otherwise 3. If one in his will devise his Land to his Wife in the first place and then saith my Will is That my Son A. shall have it after my Wives death and if my Wife dye before my Son B. that then my Son A. shall pay to B. 10 l. by the Year during the Life of B. and also 100 l. to I. S. In this Case A. shall have the Fee-simple of the Land Also if one Devise his Land in this manner viz. I give White-acre to my Eldest Son and his Heirs for his part Item Black-acre to my youngest Son for his part by this Devise the the Youngest Son shall have the Fee-simple of Black-acre Or thus I give White-acre to A. B. Item Black-acre to A. B. and his Heirs by this Devise A. B. shall have the Fee-simple as well of White-acre as of Black-acre 4. If a Man Devise his Land in this manner Item I give to A. B. and C. D. and their Hoirs my Land in Kent equally or my Land in Kent equally to be divided by these words A. B. and C. D. shall have and hold the Land not as Joynt-Tenants but as Tenants in Common so that the Heir and not the Survivor shall have his part that first dyeth And yet in case of such a Limitation by Deed it is otherwise But if one Devise his Land to A. B. and C. D. and their Heirs without more words it seems that by this Devise they shall take and hold as Joynt-Tenants Yet if one Devise Land to A. B. and C. D. and the Heirs of either of their Bodies lawfully begotten it seems that by this Devise A. B. and C. D. shall take and hold as Tenants in Common and not as Joynt-Tenants Likewise the Case is the same if one Devise his Land to A. B. and C. D. in this manner viz. I Will that A. B. and C. D. shall have my Lands in Kent and occupy them indifferently to them and their Heirs But if one who hath Two Daughters only give or Devise his Land to them in Fee by this Devise they shall take as Joynt-Tenants and not be in by Descent as Partners for the Testators Will shall take place 5. If Land be given to the Mayor and Commonalty of London or any other Corporation to have and to hold for Term of their Lives it is a Fee-simple Or if a Man say I give to A. B. my House with all the Lands for 21. Years and that A. B. shall have all my Inheritance provided it be not contrary to Law In this Case A. B. shall have the Fee Or if he give it to his right Heirs Males and Issue of his Issue of his Name this also is a Fee-simple And although it be affirmed by some That if the Testator Devise his Land to A. B. and his Assigns without saying For ever A. B. shall have an Estate only for Life Yet the contrary is Asserted by others and that it is a Fee-simple 6. If a Testator saith I will my Land to my Son A. during his Life and after his decease to my Son B. And in case my Son A. shall hereafter Purchase Lands of as good Value as that Land for my Son B. that then my Son A. shall Sell the Land Devised to my Son B. as his own and shall pay 20 l. to C. D. In this Case A. hath a Fee-simple implyed by the Power which A. hath to Sell beside the Payment of Money Also if one Devise Land to me and my Heirs and in Case the Heir at Law put me out that then I shall have other Land instead thereof in this Case and by this Devise I have the Fee-simple of the first Land notwithstanding the latter words Likewise if a Testator Devise Land to me for my life the Remainder to his own Son and the Heirs Males of his Body and in default of such Issue the Remainder to the next Heir-male of the Testator and the Heirs-males of his Body In this Case the next Heir-male of the Son hath an Estate in Fee-simple 7. Suppose a Man Seised of Lands make his Will in this manner viz. Imp. I Devise to my Wife Black-acre for her life the Remainder to my Son T. in Tail Item I Will to my Son T. all my Lands in D. also all my Lands in S. also my Lands in V. Also I give to the said T. my Son all my Island or Land enclosed with Water which I Purchased of I. S. To have and to hold all the said last before Devised Premises to the said T. my Son and the Heir of his Body In this Case the Habendum shall extend to all the Lands in D. S. and V. and shall not limit the Devise only to the Island because the thing last Devised by the Will was an Island in the Singular Number which cannot Answer to the Habendum in the Plural which if extensive to the Island only T. then should have but for Life in the Lands of D. S. and V. But it was otherwise Resolved viz. That the Habendum should extend to all the Lands in D. S. and V.
to rest in Peace Vide 4. Ed. 6. tit Estates 78. 29. H. 8. Br. Testam 18. Dyer 371. Wellock Hamonds Case 32. 33. Eliz. Cited in Borastons Case Co. 3. 20 21. And Colliers Case Co. 6. 16. A Man by the Premises of his Will Deviseth his Land to I. S. in Fee and by the Sequele he Deviseth the same Land to I. N. in Fee they both shall take by this Testament and shall be Joynt-Tenants A Devise made Canonicis Ecclesiae Catholicae Pauli Lond. in perpetuum is a good Devise to all the Canons joyntly in Fee and the Survivor shall have the Entierty the Law is otherwise in Case of a Devise made Civitati Lond. in perpetuum the Corporation of the Mayor and Commonalty shall take by this Devise A Man hath Two Wives and he Deviseth his Land to his latter Wife in Fee the first Wife shall have it Likewise if one hath Two Sons called I. and one of them is a Bastard and Born before Marriage and he makes a Devise to his Son I. the Legitimate I. shall have it and not the Bastard A Man hath Issue a Son and Land is Devised to the Father Habend sibi Haered de corpore suo Legitime procreand and after the Devisee hath Issue another Son the second shall have the Land A Man Seised of Three Messuages Devised by his Testament to his Son A. one of them Naming it and A. to enter after his Wives death and Devised another of the Messuages to his second Son paying 10 l. to his Sister and he to enter at his Age of 21. Years and Devised the Third Messuage to his Third Son in like manner as to his Second Son And after in his Testament willed That if either of his Sons dyed before 21. Years of Age that then his part should be divided among the Survivors and each of them to be the others Heir they all attain to the full Age and the Two Younger Sons paid their Sister the several Sums as was appointed in the Will The Question being what Estate the Two Younger Sons had in those Messuages Devised them by the Will it was held a Fee-simple CHAP. X. Certain Cases touching Devises of Land by way of Entail 1. How Lands Devised by way of Entail may happen to be devested out of one and be vested in another upon the birth of an Issue in Tail 2. Tenant in Tail may not by any Devise Condition or Limitation be Barred from Alienating by suffering a Common Recocovery 3. A Difference in Point of Entail between Devises by Will and Grants by Deed. 4. The several ways of Entails by Devise with the difference between Devising Semini suo and Sanguini suo 5. The Question whether Issue born or not at the time of making the Devise may put a difference between an Estate-Tail and Joynt-Tenancy 6. What shall be a Fee-simple by Deed which is but an Estate-Tail by Devise 7. In what Case the Younger Son may have Fee-simple and the Elder but an Estate-Tail 8. Otherways how an Estate-Tail may be Created by Devise 9. Instances of Law for further illustration of Entails by way of Devise 10. In what case the Word Or shall be taken for And to Create an Estate-Tail by Devise 11. Other Cases of Estates-Tail by Devise with Cross-Remainders 12. An Estate-Tail by Devise with implyed Remainder 13. How there may be a Devise of an Estate-Tail of Rent as well as of Land and how a Tail limited to some Lands shall not extend to others therewith Devised 1. A Man Seised of Lands in Fee Devised them to his Wife for life and after to his Two Sons if they had not Issue Males for their lives and if they had Issue Males then to their Issue Males and if they had not Issue Males then if any of them had Issue Male to the said Issue Male The Wife dyed the Sons entred into the Lands and then the Eldest Son had Issue Male who afterwards entered the Younger Son put out the Issue In this Case the Lands by the birth of the Issue Males are divested out of the Two Sons and vested in the Issue Male of the Eldest and he hath an Estate-Tail therein 2. A Man Seised of Lands in Capite Devised them to his Wife for life and after her decease his Son John to have it and if his Son John marry and have by his Wife any Issue Male of his Body Lawfully begotten then his Son to have it if no Issue Male then his Son Thomas to have the House and if Thomas marry having Issue Males of his Body his Son to have the House after his decease And if any of his Sons or Issue Males go about to Alien or Mortgage the House then the next Heir to enter c. In this Case it was 1 Resolved That the Sons had an Estate-Tail in them severally and to the Heirs Males of their Bodies for that these words if he have no Issue Male his Son Thomas to have it are sufficient to create Tail to John and so of the rest 2 Resolved That no Condition or Limitation be it by Act Executed or by Limitation of Use or by Devise by last Will can Bar Tenant in Tail to Alien by suffering a Common Recovery 3. If a Devise be made of Land to A. B. and the Heirs Males of his Body and he hath Issue only a Daughter who hath Issue a Son the Son shall not take by this Devise Or if such Devise be made to him and the Heirs Females of his Body and he hath Issue only a Son who hath Issue a Daughter she shall not take by this Devise And here Note That in point of Entails there is a Difference between Devises by Will and Grants by Deed for if a Devise of Land be made to A. B. and to his Heirs Males by this Devise A. B. hath an Estate-Tail Otherwise it is if such a Limitation be made by Deed for if one by Deed give Land to another and his Heirs Males by this the Donee hath a Fee-simple and his Heirs General shall have it But if a Devise of Land be to A. B. and to the Eldest Heirs Females of his Body by this Devise all his Daughters and not one of them only shall have it And if a Man Devise his Land to his Wife for life and after to his own right Heirs Males and he hath Issue Three Daughters whereof one after his death hath a Son In this Case and by this Devise the next Collateral Heir Male of the Devisor and not the Son of the Daughter shall have the Land If a Man Devise his Land to A. B. and to his or to the Heirs Males or Heirs Females of his Body or of his Body begotten or to him and his Issues Male or his Issues Female or to him and the Heirs Male of his Body begotten on M. or to him and E. his Wife and the Heirs
Male or the Heirs Female of their Two Bodies begotten or to him and his Heirs if he shall have any Heirs of his Body else that the Land shall revert or to him and his Heirs if he shall have any Issue of his Body or to him and the right Heirs Male of his Body or to him and his Heirs provided that if he die without Heirs of his Body that then the Land shall revert by all these and such like Devises an Estate Tail may be Created of the Land so Devised Likewise if one Devise his Land in Dale to A. B. semini suo by these Words A. B. hath an Estate Tail But if he say I give my Land in Dale to A. B. sanguini suo it is said That by this Devise A. B. hath the Fee-simple of the Land 5. Suppose a Devise be made thus viz. I give my Land in Dale to A. B. for life the Remainder to C. D. and E. his Wife and their Children or to them and their Men-children or to them and their Issues by these Devises if C. D. and E. his Wife have no Children at the Time of the Devise an Estate Tail is Created but if they have any Children at the time of the Devise then hereby is Created an Estate for all their lives only in Joynt-tenancy 6. If one Devise his Land to his Wife for life the Remainder to his Son and if his Son die without Issue not having a Son that then it shall remain over this is a good Estate Tail Likewise if Lands be Devised to A. B. and his Heirs Males or his Heirs Females without saying of his Body by this Devise A. B. hath an Estate Tail But if such a Limitation be by Deed it is said to be a Fee-simple 7. If one having Two Sons Devise part of his Land to his Eldest Son and his Heirs another part of his Land to his Youngest Son and his Heirs and if either of them dye without Issue that then the other shall be his Heir by this Devise either of them hath an Estate Tail and no Fee-simple But if one Devise his Land to his Eldest Son and his Heirs and if he dye without Heirs of his Body that it shall remain to his Youngest Son and his Heirs by this Devise the Eldest Son hath an Estate Tail and the Youngest Son the Fee-simple 8. If one Devise his Land to his Son W. S. and if he marry and have an Issue Male begotten of the Body of his Wife then that Issue to have it and if he have no Issue Male then to others in Remainder by this Devise it seems W. S. hath an Estate Tail to him and the Issues Male begotten of the Body of his Wife Also if one Devise Long-acre to A. and then say Item Broad-acre to A. and the Heirs of his Body by this Devise he hath an Estate Tail in both Acres 9. If one Devise his Land to his Wife for years the Remainder to his Younger Son and his Heirs and if either of his Two Sons die without Issue c. that it shall remain to his Daughter and her Heirs and the Younger Son die in the life Time of the Father and after the Father dyeth it seems by this Devise the Elder Son shall have the Land in Tail Or if one Devise his Land to his Wife for life and after to his Son and if his Son die without Issue having no Son or having no Male that then it shall go to another by this Devise the Son hath an Estate Tail to him and the Heirs Males of his Body Or if Lands be Devised to Man and Woman unmarried and the Heirs of their Two Bodies or to the Husband of A. and Wife of B. and the Heirs of their Two Bodies by these Devises are made Estates in Tail 10. If Land be Devised to A. B. and the Heirs of his Body and that if he die it shall reman to C. D. by this Devise A. B. hath an Estate Tail and the latter words do not qualifie the former but C. D. must attend the death of A. B. without Heirs of his Body before he shall have the Land Also if Lands be Devised to A. B. and the Heirs he shall have by C. his Wife by this Devise A. B. hath a Fee-Tail and not a Fee-simple Likewise if one Devise Land to his Son and his Heirs and that if his Son die within the Age of 21. Years or without Issue that the Land shall remain over and the Son dyeth within Age having Issue in this case and by this Devise the Son hath an Estate Tail and Or in this place shall be taken for And 11. If a Man Devise his Land in this manner viz. I give White-acre to my Son A. and his Heirs Black-acre to my Son B. and his Heirs and Green-acre to my Son C. and his Heirs provided that if all my said Sons die without Issue of their Bodies that then all my said Lands shall go to M. my Wife and her Heirs by this Devise they have all of them Estates in Tail of their Land and as it seems Cross-Remainders to either of them of the Land of each other Also if one Devise his Land to A. B. and if he die without Issue Male of his Body then that it shall remain over to C. D. by this Devise A. B. hath an Estate Tail 12. If a Man having Issue Three Sons Devise his Lands in this manner viz. One part to Two of his Sons in Tail and another part to his Third Son in Tail and that neither of them shall Sell his part but that either of them shall be Heir to other by this Devise either of them hath an Estate-Tail and if one of them die without Issue his part shall not revert to the Eldest but shall remain to the other Son for it is an implyed Remainder 13. If one Devise to A. B. that if he and the Heirs of his Body be not paid 20 l. Rent yearly he and they shall distrain by this Devise A. B. hath an Estate-Tail of this Rent Also if a Man Devise his Mannor of D. to his Eldest Son and also all his Lands in S. in Tail in that case the Entail is limited for the Land in S. and shall not extend to the Mannor of D. But if the words had been I Devise my Mannor of D. and all my Lands in S. to my Son in Tail the Son had had an Estate Tail in both But suppose a Man Deviseth his Lands to his Wife for Life the Remainder to his Son in Tail and if he die without Issue the Land to remain to A. B. and his Wife for their lives and after their deceases to their Children In this Case the Court was divided whether the Children of A. B. had an Estate in Tail or only an Estate for life Mich. 40. Eliz. in B. R. Goldesb 138.
One Devised all his Lands to another and the Heirs of his Body begotten and after in the same Will Devised That if the Devisee die the said Lands should remain to another in Fee The Court held That the Devisee hath notwithstanding an Estate Tail by the first words and no Estate pass'd by the last words One Devised his Land to W. his Son for Term of his Life and after his decease to the Men-children of his Body and in case the said W. dyed without any Man-child of his Body that then the Land should remain to another c. The Testator dies W. dies without Issue Male of his Body c. and the Question was What Estate he had the Justices of the Bench held that he had an Estate to him and the Heirs Males of his Body F. Seised of Land in Gavelkind had Three Sons and Devised part to one part to another the other part to the Third and if either of them dyed without Issue the other should be his Heir It was Adjudged an Entail in each and a Fee-simple by the words Heir to other And so it was Adjudged Hill 32. Eliz. in Carters Case C. B. If a Devise be made to one and his Heirs and in Case that he hath Issue a Daughter that she shall have the Lands If the Devisee hath Issue a Son and a Daughter and die the Son shall have the Land and although the Daughter afterwards take a Husband and hath Issue a Son he shall not eject the other CHAP. XI Certain Cases in Law touching Devises of Land for Life only 1. A Devise of Land to one not saying How long is an Estate only for life 2. Power of Distraining Devised to one without other words on Non-payment of a certain Annual Sum is only an Estate for Life 3. A Devise of Land to one and his Heir in the Singular Number or to one and his Children is but an Estate for life 4. Several Instances of Law touching Estates only for Life by way of Devise 5. Several Instances of Estates for Life by Implication Devised 6. A Devise of Land to one thereby obliged to a present Payment Creates a Fee-simple But if Payment be to Issue out of the Profits of the Land Devised it makes only an Estate Tail 7. A Devise of an Estate for Life in Reversion 8. A Devise of Two Estates for Lives the one to some in Being the other to others in Reversion 9. A. Devise of Lands in Esse or Posse Conditioned upon an Annual Payment to be made by the Devisee during his or her life which Devise is made by one in the Remainder in Fee and not in Possession doth pass an Estate only for life 10. A Devise by general words of all a Mans Estate Mortgages c. may pass as to the Real no more than an Estate for Life and not a Fee by Implication 11. The Law ever accommodates the Testators words whatever they be as nigh as possible to his intent and meaning 1. IF a Man Deviseth his Land to A. B. and say not how long nor for what Time by this Devise A. B. hath an Estate only for Life in the Land But if a Man Devise his Land to A. B. and his Assigns without saying For ever it hath been a Question whether he hath only an Estate for Life as was held by some or a Fee-simple as hath been Affirmed by others 2. In the latter part of the last Chapt. it was said That it was an Estate Tail of the Rent if one Devised to A. B. that if he and the Heirs of his Body be not paid 20 l. Rent yearly he and they shall distrain But now if the Devise only be That if A. B. be not paid 20. l. yearly he shall distrain c. by this Devise A. B. hath only an Estate for Life Likewise if one devise a Rent of 10 l. out of his Land to be paid quarterly and say not how long the Rent shall continue this is but an Estate in the Rent only for Life 3. If one Devise his Land to A. B. for his Life or to him without any more words or to him and his Heir in the Singular Number or to him and his Children he then having Children By all these and such like Devises A. B. hath only an Estate for life in the thing Devised And if one Devise That A. B. shall have and occupy his Land in D. and say not how long by this Devise A. B. shall have the Land as aforesaid only for life But If I Devise that A. B. shall enter into my Land and say no more by this Devise A. B. hath no Estate at all but power to enter into the Land only 4. A Man having a Son and a Daughter dies Lands are Devised to the Daughter and the Heirs Females of the Body of the Father by this Devise the Daughter hath only an Estate for her life for there is no such person for she is not Heir Likewise if one Devise his Land in D. unto A. B. for life and after to the next right Heir in the Singular Number and to his right Heirs for ever by this Devise A. B. hath only an Estate for life Or if one Devise Land to A. B. for life and after to the next Heir Male of A. B. and to the Heirs Males of the Body of such next Heir Male by this Devise also A. B. hath but an Estate only for life But if he Devise his Land to A. B. for his life and after to the Heirs or to the right Heirs of A. B. by these Devises A. B. hath the Fee-simple of the Land And if it be to him for life and after to his Heirs Males then he hath an Estate Tail But if one Devise Land to F. G. and M. his Wife and after their decease or the Remainder to their Children by this Devise whether they have or have not Children at the time F. G. and M. his Wife have Estates only for their lives 5. If one Devise his Land to A. B. in Fee after the death of C. D. being his Son and Heir apparent by this Devise C. D. hath an Estate for life by Implication and till the Devise take effect the Law gives it to him by descent The Law is the same where one doth devise his Land to A. B. after the death of his Wife by this Devise the Wife hath an Estate for life by Implication Likewise if a Man Devise in this manner I give my Goods to my Wife and that after her decease my Son and Heir shall have the House where the goods are it is held That by this Devise the Wife hath an Estate for life in the House by Implication But if a Man Devise his Land to A. B. after the death of I. G. a Stranger to the Devisor it seems that by this Devise I. G. hath no Estate at all by Implication
Rent where none is in arrear and after Deviseth his Reversion this Devise is not good 3. A Man possessed of a Term for 40. Years Devised that his Eldest Daughter should have the same to her and the Heirs of her Body the Remainder if she dyed without Issue Within the Term to C. his second Daughter in Tail The Eldest Daughter took Husband and dyed within the Term without Issue Her Husband Sold the Term. It was the Opinion of the Court That his Sale thereof was good and that the younger Daughter had no Remedy for it because it was a void Remainder being of a Term which was a Chattel-real and so is to go to the Husband 4. A Lease was made to A. for 41. Years if he should so long live and if he dyed within the said Term that then his Wife should have it for the Residue of the said Years It was held That the limitation to the Wife in Remainder was void for that the Term ended by the death of A. and then there was no Residue to remain to his Wife 5. A Man possessed of certain Goods Devised them by his Will to his Wife for life and after her decease to I. S. and dyed I. S. in the life time of the Wife did Commence Suit in a Court of Equity there to secure his Interest in Remainder A Prohibition was granted in this Case and the Reason was because a Devise in Remainder of Goods was void and therefore no Remedy in Equity for Equitas sequitur Legem It was agreed That a Devise of the Use and Occupation of Lands is a Devise of the Land it self but not so of Goods for one may have the Occupation of them and another the Interest in them 6. Suppose a Man Deviseth a Reversion depending upon an Estate for life to the Parson of D. and to his Successors if the Parson die and after a new Parson be made and the particular Tenant die also the new Parson shall have it Also if a Man Devise Land to one for Term of life the Remainder over in Fee and the Devisee for life refuse yet he in the Remainder may enter but if the Will were That the Executors shall make a Lease for life the Remainder over in Fee and they offer to make a Lease accordingly and the Lessee refuseth he in the Remainder shall not have the Remainder 7. I. S. hath issue Two Sons and dyeth the Elder hath Issue a Daughter who hath Issue a Son and dyeth Land is given by Testament to one for life the Remainder to the next Male of the Body of I. S. begotten the second Son of I. S. shall have the Land and not the Son of the Daughter It would be otherwise if the Remainder were so Entail'd by Deed. 8. If Land be Devised to one for life the Remainder to the Church of D. the Parson of the said Church shall have it And if a Man willeth that after 20. years after the death of the Devisor I. S. shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor 9. A Man Deviseth his Land to his Daughter and Heir being a Feme Covert and to the Heirs of the Woman the Reversion over in Fee and dyeth the Husband refuseth to take by the Devise he in the Remainder entereth he shall retain the Land during the lives of the Husband and Wife but after their decease he Issue of the Wife may enter upon him 10. A Man Seised of Land in Fee hath Issue Two Sons and a Daughter the Father Deviseth the Land to his Wife for Term of life the Remainder propinquioribus de sanguine puerorum of the Devisor the Daughter hath Issue and dyeth the Issue of the Daughter shall have this Remainder and although that the Sons have Issue after yet their Issue shall not have it 11. A Man hath a Term of a Hundred Years to come and he Deviseth this to one for Term of life the Remainder over to I. S. this is a void Remainder it were otherwise if the Devise were that the Devisee shall have the Occupation of the Land during his life the Remainder over 12. A Lease is made for life the Remainder over in Fee reserving Rent by Indenture and for default of Payment that it shall be Lawful for the Lessor to enter and detain during the life of the Lessee he Re-enters for the Rent Arrear he in the Remainder Deviseth the Remainder such Devise of the Remainder is void 13. If Land be given to Two Persons Habendum to the one for life and after his decease to the other in Fee he that hath the Fee may Devise his Reversion thereof Likewise if Land be given to one for life and that after his death it shall descend to I. S. in Fee he may Devise this Remainder Or if a Lease be made dummodo solverit 10 l. to the Lessor for his life he may Devise the Reversion with the Rent Or if a Lease be made to an Infant or Feme-sole for life the Remainder in Fee and the Infant at his full Age or the Feme after Coverture disagree he in Remainder may Devise his Remainder 14. If the Fee-simple of Land be Devised to one the Remainder cannot be Devised to another albeit the first Devise be but Conditional And therefore if a Man Devise his Land to A. B. in Fee so that he pay 100 l. to C. D. And if he fail that then it shall remain to G. D. and his Heirs this Remainder to C. D. is void for upon the Failure of Payment by A. B. the said C. D. may not enter and have the Land but the Devisors next Heir Likewise if Land be Devised to F. G. and his Heirs and if he die without Heirs that then it shall remain to I. M. and his Heirs this is a void remainder 15. A Man may Devise a Term of Years by way of Remainder and the first Devisee cannot hinder the second of the Remnant of the Term. But yet a Man possessed of a Term of Years cannot Entail it by his Will And therefore if a Man Devise his Term to A. B. and his Heirs or to him and the Heirs of his Body or to him and his Issue the Remainder to B. C. this Remainder is void and the Devise is good for the whole Term of Years to A. B. and his Executors 16. A Man Seised of Two Acres in several Towns in one County that is of the one for life and of the other in Fee and maketh a Feofment by Deed of all his Lands in the same County and makes Livery in the Acre in Fee in the name of both the Lessor notwithstanding this may Devise the Reversion of the Acre for life 17. If a Man grants a Rent-charge out of Lands devisable to one for life the Remainder over to the Grantor and his
right Heirs and after the Grantor Devise the Land to a Stranger in Fee and die the Heir of the Devisor may Devise the Remainder of the Rent in Fee 18. A Lease for Term of 100. Years is made to a Bishop and his Successors he maketh a Lease for life Rendring Rent to him and his Successors and after he Deviseth the Reversion with the Rent in Fee this is a good Devise for the Reversion but not for the Rent 19. If a Man having Two Sons and a Daughter Devise his Land to his Wife for Seven Years the Remainder to his Younger Son and his Heirs and if either of the said Two Sons die without Issue of their Bodies the Remainder to the Daughter and her Heirs and the Younger Son die in the life Time of the Father and after the Father die in this case and by this Devise the Daughter hath a good Remainder but it seems the Elder Son hath first an Estate Tail by the Intent of the Devisor 20. If Land be Devised to A. for life the Remainder to B. for life the Remainder to I. S. in Fee in this Case if B. be a Person incapable of a Devise then he in the Remainder in Fee shall take presently after the first Estate for life ended And if the Devise be to a Person incapable for life the Remainder to I. S. in Fee then shall I. S. take presently 21. If a Man Devise his Land to two persons by name and the Heirs of either of their Two Bodies and for default of such Issue the Remainder to the right Heirs of the Devisor after the Devisors death one of the said Devisees dies without Issue the other Devisee hath Issue and dyeth In this Case and by this Devise the issue of such surviving Devisee shall have a Moity and no more of the Land 22. A Lease is made to I. S. for the Term of the life of I. N. the Remainder to the same I. N. for Term of life of the said I. S. I. N. in Remainder releaseth all his right to the said I. S. and dyeth In this Case the Lessor may Devise the Reversion And if a Man who hath a Reversion Deviseth this Reversion by the name of all his Inheritance or Hereditaments in D. it is a good Devise 23. If a Man having Issue Three Sons A. B. and C. doth Devise his Land to C. the Remainder to the next of Blood to the Testator In this Case and by this Devise A. shall have the Land after the death of C. as the next of Blood Likewise if a Man having Four Daughters Devise his Land to the Youngest in Tail the Remainder to the next of Blood by this Devise the Eldest Daughter and not all the rest shall have the Land after the Estate Tail Also if a Man hath Two Sons and a Daughter who hath Two Daughters Devise his Land to a Stranger for life the Remainder to his second Son for life the Remainder in Fee to the next of Blood to his Son in this Case if the Eldest Son die without Issue the Daughter and her Daughters shall have the Land 24. If Land be Devised to A. for life the Remainder to B. and the Heirs of his Body the Remainder to C. D. and his Wife and after to their Children by this Devise C. D. and his Wife have Estates for their Lives only and their Children after them Estates for their Lives Joyntly And albeit they have no Children at the Time yet every Child they shall have after may take by way of Remainder If one Devise his Land in this manner viz. I give my Land to A. in Fee-simple after his decease to B. his Son who is his Heir apparent By this Devise A. hath an Estate for life first the Remainder to his Son for his life the Remainder to the Heir of A. in Fee-simple One Devised his Land to I. S. from Michaelmas following for five Years Remainder after the Plaintiff and his Heirs He dyed before Michaelmas The Question was Whether this were a good Remainder Because it could not enure instantly by his death for it may not begin until the particular Estate which was not to begin till after Michaelmas and a Freehold cannot be in Expectancy But all the Court held That it very well might Expect For in Case of a Devise the Free-hold in the mean Time shall descend to the Heir and vest in him Wherefore without Argument it was Adjudged accordingly and that the Remainder was good If one Devise a Personal Chattel to one for life the Remainder over to another it is a void Remainder If a Man Devise a Term to one for life the Remainder to another for life with divers Remainders over The Executors Consent to the first Devisee will be a Consent as to all the other Remainders Or in Case a Man Devise a Term to one and a Rent thence issuing to another and dies the Executors Consent to the Devise of the Term is an Assent also as to the Rent If an Estate be given to the Husband and Wife and the Heirs of their Two Bodies the Remainder to the right Heirs of the Husband he may Devise that Remainder to his Wife CHAP. XIV Touching Devises of Lands with Limitations and upon Condition 1. The Condition of a Devise of Land not written in the Testators Life Time makes the whole Devise as void as if the Devise it self had not been written 2. A Fee-simple of Remainder upon Condition by way of Devise 3. In what Case the Executors of a substituted Devisee cannot claim the Lands Devised under Limitations 4. A Condition or Limitation may not continue a Devised Estate for part and defeat it for the residue 5. In what Case the word Paying shall be construed only as a Limitation and not as a Condition 6. Not he in Remainder but the Heir shall take the advantage of a Condition broken annexed to a Devise of Lands 7. A Condition or Proviso contrary to Law is a void Condition 8. The Heir may enter upon a breach of Condition notwithstanding a failure of somewhat that ought to have been done by a Third Person 9. The Heir may not enter where it is but a Limitation and not a Condition 10. If the Condition be That a Lessee shall not Demise the Premises for above one Year and he Devise the Premises it is a breach of the Condition 11. Lands Devised upon Condition of superstitious Vses are vested in the Crown 1. IF a Man give order for the writing a Devise of his Land to A. B. upon Condition and the Devise to him be accordingly written but the Testator dyeth before the writing of the Condition in this Case the whole Devise to A. B. is void And as in the case of Goods and Chattels conditionally bequeathed the Executor shall keep the Thing until the Condition be performed and after the Condition broken shall take advantage thereof So
Executors who Refuse to Administer the Goods may yet sell the Testators Lands Devised to be sold 15. Lands Devised to be sold by Executors the one Refusing the other may sell but not to the Refuser 16. A Sale by some only of the Executors is void where there is a special and Joynt-Trust 17. The Difference between an Authority and an Interest in Executors in point of Sale 1. IN all Cases of Devises of Land to Executors to sell the same it is most Prudential to make it as clear and certain as may be that is That the Executors or the Survivor of them or such or so many of them as take upon them the Probat of the Will if his intent be so shall sell it And it is safer to give only an Authority than an Estate unless his meaning be that they shall take the Profits of the Land until the sale And if he do so then it is Requisite that he Appoint that the mean Profits until the Sale shall be Assets in their hands for otherwise it shall not be so 2. If one Devise Land to others to the intent that with the Profits thereof they shall Educate Children or pay such Sums of Money or the like In this case the Devisees must do accordingly or they may be compelled thereunto And Regularly the Heir and not a Stranger shall take the Advantage of a Breach of a Condition annexed to Devises touching sale of Lands And therefore if one Devise Land to another and his Heirs Provided that he pay 100 l. to A. B. Otherwise that the Land shall remain to C. D. and his Heirs in this case if the Devisee do not pay the Money C. D. shall not take Advantage of it nor have the Land according to the Devise but the Heir of the Devisor shall enter and have it and Eject the Devisee 3. If the Testator intending to have his Land or part thereof sold for the payment of Debts or Legacies doth Devise the same in this manner viz. I will that my Executors or that A. B. and C. my Executors shall sell my Land In this case the Executors have only an Authority and no Interest For which reason the Land in the mean time Descends to the. Heir of the Devisor who shall enjoy the Profits thereof until it be sold In which case also the Executors may sell it when they please unless they be hastned thereto by order of Court And are all to joyn in the Sale Insomuch that if one or more of them dye before the Sale the surviving Executors or the Executors of the deceased Executors may not sell it by this Authority The Case is the same if any of the Executors Refuse the charge of the Will in which Case the rest of the Executors which accept the said charge may not alone sell the Land unless the words in the Will be That his Executors or some of them shall sell it But now by the Stat. of 21. H. 8. cap. 4. Some of them may sell it without the rest in case any of the Executors dye before the Sale 4. But if the Testator Devise the Land in this manner viz. I give my Land to my Executors to be sold c. In this case the Exeeutors have as well an Interest in the Land as an Authority to sell it And therefore it doth not here descend unto the Heir as in the former case but the Executors shall keep it till the Sale and may sell it when they will so as it be within any competent or convenient time for otherwise the Heir may Enter and Eject them by a Condition in Law annexed to the Interest And in this case the mean Profits until the Sale is no Assets but the Money or Proceed upon the Sale shall be Assets in their hands And in this case if before the Sale one or more of the Executors dye or refuse the rest may sell it for the Estate surviveth But it is supposed they may not sell to him that doth refuse the charge of the Will Neither may they in either of these Cases transfer their power of selling to any other nor keep the Land themselves though they pay the value thereof with their own Money 5. If the Devise be that the Executors shall sell with the Assent of A. B. in this case if A. B. dye before he Assent the Executors can not sell and in his life-time they can not sell without his Assent And if one Deviseth that his Lands shall be sold to pay his Debts and say not by whom in this case it shall be sold by his Executors Or if one Devise all his Land except Ten Acres which he doth appoint to pay his Debts by this Devise his Executors or the survivor of them may sell the said Ten Acres But if one say by his Will that A. B. shall have as well the Guardianship and Education of his Children as the disposing letting and setting of his Lands in this case A. B. hath not power to sell the Land Or if one Devise that his Land shall be sold after his Wife's death by his Executors with the Assent of A. B. And make his Wife and another his Executors and dye and after A. B. dye In this case the Land can not be sold for the Authority is determined 6. Suppose a man seised in Fee of a Messuage with which certain Lands have been occupied time out of mind give his Instructions for the making of his Will inter alia declares That his meaning is that his said Messuage and all his Lands in W. shall be sold by his Executors And the party that writes his Will Pens it in this manner viz. I will that my house with all the Appurtenances shall be sold by my Executors the Devisor dyes The Executors sell part of the Lands By this Devise such Sale is good and the Lands do pass for the words with all the Appurtenances are effectual to enforce the Devise and extend to all the Lands specially because the Devisor gave Instructions accordingly 7. A Copy-holder Deviseth his Land to his Wife for her life and that after his death the Wife or her Executors should sell the Land and Surrendred to the use of his Will which was Entered thus viz. To the use of his Wife for life Secundum formam ultimae voluntatis In this Case she hath an Estate in the Land to her own use for her life and also an Estate in Fee to sell it otherwise the clause secundum formam ultimae voluntatis should be void 8. A man Deviseth by his Will his Lands to his Wife and if she have Issue by the Devisor that his Issue shall have it at his age of 21 years and if the Issue dye before that age or before his Wife or if she have no Issue that then she shall choose two Atturneys and she to make a Bill of Sale of any Lands to her best Advantage In
this case she hath those Lands for life and she having no Issue hath not any Interest to dispose but hath an Authority to nominate two who shall dispose of the Lands and they may make Sale thereof 9. A man did Devise his Lands which were held in Socage to be sold by his Executors and that the Money thereof coming should be disposed of in payment of special Legacies which he Appointed by his said Will the Executors sold the Lands One of the Legatees after the Will was Proved sued the Executors in the Ecclesiastical Court for his Legacy whereupon a Prohibition was prayed It was resolved in that Case 1 That the Money was Assets in the Executors hands 2 That there was no Remedy for it but by Suit in the Ecclesiastical Court and therefore a Prohibition did not lye in the Case But Querie of the second payment for it was held by all the Justices of both Benches Where a man Deviseth that his Executors shall sell Lands and of the Money coming shall give such a Portion to his Daughter That this was not a Legacy because going out of Lands and that Suit did not lye for it in the Ecclesiastical Court But an Accompt lyes at Law for the Money And therefore in that case a Prohibition was granted to stay the Suit in the Ecclesiastical Court 10. A Devise was made to A. B. for life the Remainder to C. D. in tayle and if C. D. dye without Issue of his body that then the Land shall be sold by his Executors he maketh two Executors and dyeth A. B. dyeth C. D. dyeth without Issue of his body In this case it seemeth that one of these Executors alone can not sell the Lands 11. A man Devised his Lands to his Wife for term of her life the Remainder to D. his Daughter in tayle and if she dyed without Issue that then after the death of his Wife the Lands should be sold for the best value by his Executors with the Assent of A. and B. And made his Wife and a Stranger his Executors and dyed the Wife Entered and dyed A. and B. dyed and the Executor who survived sold the Land alone The Opinion of the Court was That the Sale was not good because he wanted sufficient Authority 12. A man seised of divers Mannors and Lands Devised all the said Mannors and Lands to his Sister and her Heirs for ever Except out of this General Grant my Mannor of R. which I do Appoint to pay my Debts and made two Executors by Name and dyed One of the Executors dyed the other took upon him the charge and Execution of the Will and afterward sold the Mannor of R. for 300 l. for the purpose aforesaid in Fee It was the Opinion of the Court that he might well sell it for by the Circumstances it appeareth That such was the Testators intent and not to leave the Reversion to Discend to his Heir but to trust his Executors with the Sale of it for the payment of his Debts 13. A. made B. and C. his Executors and by his Will appointed that they should have and hold the Issues and Profits of his Lands until his Heir should come to the age of 21 years to the intent that the Executors with the Profits thereof should pay his Debts and Legacies and bring up his Children One of the Executors dyed the surviving Executor made his Executor and dyed also the Heir being within age It was the Opinion of the Court in this case that the Executor of the survivor might receive the profits of the Lands and dispose of them during the Non-age of the Heir because it was an Interest in the Executors and not an Authority or a Trust only 14. If a man hath Feoffees and makes his Will That his Executors shall alien his Land if the Executors Refuse the Administration of his Goods yet they may sell the Lands because the Will is not of a thing Testamentary But the Executors have not a power to meddle with the Land unless such a special power be given to them If a man makes his Will of his Lands and that his Executors without naming them by their proper Names shall sell them if they refuse to be Executors yet they may sell the Land But if a man makes his Will that his Lands which his Feoffees have shall be sold and doth not say by whom the Executors shall sell the same and not his Feoffees because the Moneys which come by the Sale shall be Assets in the hands of the Executors which is a proof that they may sell them And if his Will be That the Executors shall sell the Lands before the Alienation the Heir may take and Receive the profits thereof and if no Sale be made the Heir shall hold the Land for ever 15. A man Deviseth That his Executors shall sell his Lands Now by the Stat. of 21. H. 8. cap. 4. If the one refuseth the other may sell the Lands but the Sale can not be made to him who refuseth 16. A man made his Will and made A. B. C. D. his Executors and Devised his Lands to the said A. B. C. D. by their special Names and to their Heirs And further Devised that the Devisees should sell the Lands to F. G. if he would give for it before such a day 100 l. and if he would not that then they should sell it to any other to the performance of his Will viz. the payment of his Debts F. G. would not give the 100 l. one of the Executors refused to intermeddle the other three sold the Land It was the Opinion of the Court that the same being a special and a Joynt-Trust that it could not survive and that the Sale by the Three was void 17. By the Premises it is Evident That if a man Willeth that his Executors shall sell his Lands for the payment of his Debts and they all dye but one and the survivor make the Sale the Vendee shall not have the Land and that the Law is otherwise if the Lands were Devised to the Executors to be sold The Reason is as aforesaid because in the former case the Executors have only an Authority in the other case they have an Interest But if a man maketh two Executors and willeth that they shall sell the Lands for the payment of his Debts And they sell it only for term of life the Remainder to one of themselves and the Vendee dyeth he in the Remainder may Enter Sed Q. CHAP. XVII Of Legacies and Devises in respect of Marriage As also Between Husband and Wife 1. A Condition of Marriage may be annexed to a Legacy but an unlawful Condition thereof is void and doth not prejudice the same 2. A Condition of Marriage with the Consent of a Third person doth oblige the Legatary to Marry if he will have the Legacy but doth not oblige him to have such Consent 3. A
Son to his Mother 10. A man bequeaths the House wherein he lives to A. B. his Wife quamdiu she shall continue a Widdow and dyes A. B. doth not Re-marry but lives and dyes a Widdow In this case the said House by the Civil Law comes to A. B. and his Heirs for ever Note that what in the premises hath been said touching the invallidity of Conditions against Marriage annexed to Legacies in relation to Females holds the same in Law touching the like illegal Conditions in reference to Males or Masculines 11. A man Devised to his Daughter 500 l. towards her Marriage In this Case it was the Opinion of the Court That if she die before Marriage her Executors shall have it But if the words were To be paid at the day of her Marriage or at the age of 21 years and she dyeth before both it is otherwise The latter part of which Judgment seems not to agree with the Civil Law in that point which sayes the time of the age of a Legatary may be joyned either to the substance of the Legacy or to the execution and performance of the same if the time of the age of the Legatary be joyned to the substance of the Legacy as when the Testator doth give thee 100 l. when thou shalt be of the age of 21 years In this case if thou dyest before that time thy Executors cannot recover the 100 l. But if the time of the age of the Legatary be joyned only to the execution or performance of the Legacy as when the Testator doth give thee 100 l. which he willeth shall be paid when thou accomplish the age of 21 years In this case although thou dye before thou accomplish the age of 21 years yet thy Executors or Administrators shall recover the same when the time is accomplished wherein thy self if thou hadst been then living mightst have recovered the same 12. Consonant whereunto is that which we find Reported viz. That it was agreed by the Court That if a man Deviseth to his Daughter 100 l. when she shall be Married or to his Son when he shall be of full age and they dye before the time appointed and make Executors their Executors shall not have it But it is otherwise if the Devise were to them to be paid at their full ages and they dye before that time and make Executors there the Executors shall have it Which difference was since likewise so Agreed and Adjudged 13. A Feme Sole Deviseth Lands to A. B. in Fee to whom afterwards she was Married and during the Coverture Countermands her Will saying her Husband should not have the Land nor any other benefit by her Will and dyes In this case the Husband shall not have the Land not only because of her Countermand but because of the disability of a Feme Covert to make a Will which takes no effect till the parties death And therefore if a Feme sole Deviseth Lands to a man and then takes him to Husband and dyes This Inter-marriage is a reversion of the Devise and the Heir of the Woman shall have the Lands and not the Husband because after Marriage the Will of the Wife in Judgment of Law is subject to the Will of her Husband and a Feme Covert hath not any Will for the making of the Will is but the Inception thereof and takes no effect till the death of the Devisor 14. If a man Deviseth Lands generally to his Wife for the Term of her life It cannot be averred to be for the Joynture of the Wife and in satisfaction of her Dower But if a man Deviseth Lands to his Wife for life or in tail for her Joynture and in satisfaction of her Dower the same is a good Joynture within the Stat. of 27 H. 8. 15. A man Devised the Moiety of his Goods to his Wife and dyed It was the opinion of the Court That she should have the Moiety of them as they were at the time of his death if his Executors had Assets sufficient to pay his Debts If a Legacy be given to a Woman Covert and her Husband give a Release and afterwards he and his Wife sue in the Ecclesiastical Court for the Legacy the party sued shall not have a Prohibition upon the Husbands Release because the Temporal Judges cannot meddle with a Legacy nor consequently determine whether the Release will extinguish the same As the Case 29 Eliz. Adjudged The Husband may Devise to his Wife although they are but one person in Law for it takes no effect till after his Death CHAP. XVIII Of Legacies and Devices to a Child in the Womb. 1. A Devise to an Infant in the Womb is good 2. It may be good though the Infant be rip'd alive out of the Womb. 3. It is good though it be a Devise in Remainder or in Tail 4. How the Divident of a Devise shall be in case of Twins unexpected or an Hermophrodite 5. How the Legacy shall be apportioned when bequeathed to any Child in the Womb and more then One or Two happen to be Born 6. Where a Devise void or voidable in his Inception may become good by matter ex post facto 1. THat a Child in the Womb to whom a Legacy is bequeathed or Lands Divised is after his or her Birth though subsequent to the Testators death capable of taking by such Devise is a Truth now not to be controverted though it hath been Contradicted and otherwise Resolved for we find it Reported in a Case thus stated viz. A Man had Issue Five Sons his Wife being with Child with the Sixth at the time of his death and by his last Will declared That the Third Part of his Land should descend and come to his Son and Heir the other Two Parts he bequeathed to his Four Younger Sons by Name and to the Heirs Males of their Bodies and if the Infant in the Mothers Womb be a Son then he to have a Fifth Part as Co-heir with his Four Elder Brothers The Sixth Son was Born after the death of his Father in this Case it was Resolved That the Son Born after the death of the Father should not have any thing because he was uncapable as a Purchasor when the Devise was first to take effect because he was not then in esse or rerum natura Notwithstanding which it was not long after in another Case otherwise understood in which Case it was Admitted That a Devise to an Infant in his Mothers Belly was good It is presumed the intendment is of such an Infant as was born after the Testators death In other Cases also it hath been held That Devise to an Infant in his Mothers Belly is good 2. A Man Deviseth his Land to his Wife being with Child the Remainder to the Issue en ventre safeme his Wife in Travail dyeth and the Son is rip'd from his Mother alive he shall have the said Remainder
Will only to Land and a Testament only to Chattels requiring Executors which a Will only for Land doth not require For it seems that by the Common Law where Lands or Tenements are only devised by writing albeit there be no Executor named yet that is properly called a Last Will and where it concerns only Chattels a Testament The truth is a Testament taken strictly according to the said definition differeth from a Last Will yet not as opposite thereto but only as the Special differeth from the General for every Testament is a Last Will but every Last Will is not a Testament In a word a Last Will is a general word and agrees with each several kind of Last Wills or Testaments But a Testament properly so called is only that kind of Last Will wherein an Executor is named or appointed Plowden in his Commentaries doth define a Testament to be the Witness of the mind and to be compounded of these two words viz. Testatio and Mentis But this is no adequate definition of a Testament neither is it a compound word but a single word such as is Calceamentum Paludamentum and the like And if it be demanded whether a Testament may be good in Law without a Seal it is Answered in the Affirmative for a Seal is not absolutely necessary to a Testament though it may be fit and expedient For a Will not being properly and legally a Deed may be good enough without a Seal which is one essential part of a Deed yet hath a Will the force and effect of a Deed. CHAP. II. Of the several Distinctions or kinds of Testaments A Testament is either Solemn or Vnsolemn This though the first and greatest distinction of Testaments yet of least force or use with us now in England 2. Testaments are either written or Nuncupative 3. They are either priviledged or unpriviledged Of Priviledged Testaments there are three sorts whereof some are called Militarie Testaments others are called Testaments only among the Testators own Children and others are Testaments to Charitable and Pious uses But if no Executor be named or appointed then it hath not the name of a Testament yet it shall retain the name of a Last Will and comprehends one of these three viz. either a Codicil or a Legacy and Devise or a Gift in regard or by reason of death CHAP. III. Of Testaments Solemn and Vnsolemn IN Solemn Testaments are comprehended the Solemnities of the Civil Law as the presence of seven Witnesses their subscription or subsignation the making or expediting the act of the Will it self at one and the same time with divers other Solemnities necessarily required by the Civil Law as Essential to a Testament whereof we have no use here in England being not obliged to such Ceremonies In Vnsolemn Testaments the said Ceremonies are omitted and such are our Testaments here in England wherein we are no further obliged than to the observation of such Requisites as are necessary Jure Gentium which requires but two Witnesses And saving in a Devise of Land wherein Writing is also necessary and that it be made in the Testators life time The Testator if he please may make use of more than two witnesses and procure their subscription yea for prevention of Forgery to every page of the Testament but no obligation hereto CHAP. IV. Of Testaments Written and Nuncupative 1. Testament Written what 2. Difference between Devise of Lands and Bequest of Goods 3. Lands of Burgage tenure and by Custome deviseable may pass Nuncupatively 4. Naming Executor not necessary in a Will only for devise of Lands 5. Notes taken in writing-sufficient for devise of Lands 6. Testament Nuncupative what 7. The Will whether Nuncupative or Written in case the Executors Name be omitted out of the writing 8. Law Cases relating to this subject § 1. A Written Testament is such as at the time of making thereof is committed to writing By which words are excluded such Testaments as are afterwards put into writing For being first made by word of mouth they still remain Nuncupative notwithstanding the reducing thereof into writing after the Testators death Among other advantages that a Testator hath by a written Will this is one that he may conceal the Contents thereof from the Witnesses which in a Nuncupative Will he cannot do And it is sufficient if taking his Will in his hand he say unto the Witnesses This is my Last Will and Testament or herein is contained my Last Will or other words to the like effect 2. As touching the disposition of Land of Inheritance by Will if it be not fully written before the Testators death so far at least as concerns the disposition of the said Land it may not be for that part made good by reducing it to writing after the Testators death but as touching Goods and Chattels it may Nevertheless if it be written before the Testators death though it be never brought nor read to him after the writing thereof yet is it good enough and that not only for Land but also for Goods and Chattels provided that there be an Executor named And this shall be a Will in writing and not verbal only yea though it want the subscription of the Testators Name For many cannot write at all and some want hands Nor is the subscribing the name of the Maker any essential part of a Deed much less of a Will which needs not sealing as a Deed doth 3. Lands and Tenements deviseable by Custome may pass by a Nuncupative Will for any time whatsoever for in a Devise of Lands Tenements and Hereditaments held in Burgage-tenure it is not necessary that the same should be written because such may pass sufficiently by Will Nuncupative because such Lands were deviseable before the making of the Statute of H. 8. enabling to devise Lands Tenements and Hereditaments by Will in writing in the Testators life-time which cannot pass by a Nuncupative Testament or Will without writing So that Lands of Burgage-tenure and by Custome deviseable may pass Nuncupatively though Lands of other tenures are not deviseable but by Will in writing 4. Though the naming or appointing of an Executor be essential to constitute a Testament or Last Will yet this properly refers only as to Goods and Chattels for a man may by his Last Will in writing devise his Lands Tenements and Hereditaments though he make no Executors because an Executor hath nothing to do with the freehold of Land 5. If the Writer doth only take Notes from the mouth of the Testator of his Last Will for the devise of Lands Tenements and Hereditaments and afterwards write the same but the Testator dies before it be shewed unto him yet this is sufficient for a Will in writing for the coveying of Lands Tenements and Hereditaments Likewise it is sufficient if Notes or Articles be made and read to
the Testator though the same be not ingrossed at large or in form of Law until after the Testators death 6. Testaments are called Nuncupative when the Testator without any writing doth declare his Will before a sufficient number of Witnesses and such Nuncupative Will is of as great force and efficacy except for Lands Tenements and Hereditaments as any written Testament Yea this verbal oral or Nuncupative Will being after the Testators death reduced to writing and having the Court Seal affixed thereunto is of as good validity touching the disposal of Goods and Chattels as if it had been written in the Testators life-time 7. Although many Legacies be made and written in a Will and many things expressed to be done yet if no Executor be named in the writing only A. and B. by word of mouth appointed to be Executors this shall not amount to a Will in writing but to a Nuncupative will only because one essential part of the Will viz. the appointing of an Executor is omitted out of the writing Nay the appointing of him Executor who is named in such a Note left with C. D. is no sufficient making of an Executor at all Nor is the appointing of any one by a doubtfull and uncertain Name a sufficient making either of an Executor or Legatary unless some other sufficient circumstance doth make it plainly appear whom the Testator meant so tender and cautious is the Law of fixing the interest of any upon meer doubts and uncertainties 8. A man took Notes of a Will of one who lay sick and afterwards he drew up the Will in writing but the sick person dyed before it was shewed to him Yet it was the opinion of the whole Court that the same was a good Will within the Statute of 32 H. 8. to convey Socage Land Trin. 6 E. 6. Dyer 72. So was it adjudged in 4 and 5 Eliz. in Hinton's Case where Articles were read to the Devisor concerning the disposition of his Lands and the Articles were written and engrossed after his death and yet it was a good Will within the said Statute of 32 H. 8. A man intended Land to J. S. for life the remainder to J. D. and before the remainder was written the Devisor dyed It was the opinion of the Court that the same was a void Devise for the whole Lands within the Statute of 32 H. 8. because that the one did depend upon the other But in that case it was holden that if a man seised of two Acres intends one of them to J. S. and the other to J. D. and the Devise to one is written but the Devisor dyeth before the Devise of the other Acre to the other is written It is a good Devise for the Acre which is written but not for the other Acre B. Brought Writ of Entry in nature of an Assize against his Fathers Wife The Case upon Evidence was this viz. H. B. the Plaintiffs Father and Husband of the said Wife being sick at London sends for A. desiring him to write the Last Will and Testament of his Lands A. desires B. to declare what he would have his Last Will and Testament to be and who to be his Executors whereupon A. wrote short Notes of his Last Will and every Legacy and who should be his Executors then return'd to his own House there wrote the said Will in Order and Form and therewith returning to the House of H. B. within half an hour after 12 intending to have read the same unto him was then told that the said H. B. dyed at twelve of the clock just before Whereupon A. delivered the same to the Executors that were therein named The Wife enters on the Testators Tenements and what was Devised to her the Son enters upon her the Wife re-enters whereupon the Plaintiff brought his Writ The Opinion of all the Justices was That it was a good Will in writing according to the Stat. of 32 H. 8. and declared their Opinion on the Evidence given whereupon it passed for the Wife and she enjoy'd the Land CHAP. V. Of Testaments Priviledged and Unpriviledged 1. Testaments Priviledged what and how many kinds thereof 2. Military Testaments their priviledges 3. Testaments made in favour of the Testators Children their priviledges 4. Testaments made for good and pious uses their priviledges 5. Testaments Vnpriviledged what § 1. TEstaments Priviledged are such as are qualified by some special freedome or benefit contrary to the common course of Law or by some special freedome are discharged from the usual Requisites and Observations of Common and General Law whereof there are as in the second Chapter chiefly these three kinds viz. 1. Military Testaments 2. Testaments made in favour of the Testators Children 3. Testaments for good and pious uses 2. The priviledges of Military Testaments or of a Testament made by a Souldier are many but chiefly these Four viz. 1. A Souldier is not disabled from making his Testament by any of those impediments which disable others unless for want of Reason or other like grand causes whereby he is disabled Jure Gentium 2. Whereas divers persons are prohibited from being Executors or Legataries to other persons yet the Law doth not so prohibite them from being Executors or Legataries to a Souldier save in some very few Cases specially limited in the Law 3. Souldiers are clearly acquitted from the observation of the Solemnities of the Civil Law in making of Testaments 4. Whereas no other person can dye with two valid Testaments yet a Souldier may and both Testaments shall stand good according to the intent or meaning of the Testator Other priviledges there are peculiar to Souldiers in making their Testaments but they being many it would not answer the design of a Compendium to make a specification thereof Only let it not here escape our Observation that these Priviledges belong only to such Souldiers as are in expedition or actual Service of war and not to such as lye safely and securely in some Castle Garrison or other like place of defence 3. The priviledges of Testaments made in favour of the Testators Children are chiefly these three viz. 1. If two Testaments be found after the Testators death of divers tenures and it appear not which of them is the latter Testament In this Case that shall be presumed the latter and so prevail which is made in favour of the Testators Children 2. The Testament made in favour of the Testators Children is not so easily revoked as possibly other Testaments may be 3. A Fathers Testament among his Children shall take effect though there be no Witnesses to prove the same being written or subscribed by the Testators hand or by him procured to be written by some other Howbeit these two last Priviledges by the Custome of England the latter of them especially are common to all English mens Testaments so also are all
to all intents and purposes yet the Indenture referreth to that which did bear the name of a Will And although it was not a Will indeed it was not material A Feme Covert Executrix may without her Husbands consent make an Executor of those Goods she hath as Executrix Likewise she may make an Executor of the Things in Action due to her A Woman Covert may make a Testament if her Husband agree to it after her death And such albeit she be an Executrix cannot Devise any of the Goods she hath as Executrix without her Husbands consent or his agreement to it afterwards yet she may make an Executor thereof without his consent Likewise a Feme Covert cannot Devise things in Action which she hath without the consent and agreement of her said Husband If a Woman Covert die Intestate Administration may be committed of her Goods for possibly she had things in Action which are not given by the Law to her Husband D. 8 Eliz. 251. 90. Admitt CHAP. XI Of Persons Intestable by reason or for want of their Principal Senses HE that is both Deaf and Dumb by Nature can make no Testament or Last Will except it may appear upon good and sufficient ground that he doth understand what a Testament means and also that he hath Animum Testandi for if so then he may by plain significative tokens and signs declare his Testament But in case he be Deaf and Dumb only by accident he may if he be able write his Testament with his own hands or otherwise not being able to write yet having understanding he may as the other make his Will by signs else not at all Such as are only Deaf and not Dumb may make their Testaments Also such as are Dumb and not Deaf may write their own Testaments if they can otherwise they may make them by good and sufficient signs well known to the Witnesses then present Also a Blind man may make a Nuncupative Testament before a sufficient number of Witnesses but not a Written Testament unless the same being read to him before Witnesses he in their presence acknowledge the same for his Last Will and Testament So that the bare acknowledging thereof to be his Last Will without hearing the same read unto him is not sufficient CHAP. XII Of Persons Intestable by reason of some Criminal Convictions 1. Traytors Intestable from the time of the Crime committed 2. Felons not Intestable before Conviction 3. Hereticks Intestable till they reclaim their Heresie 4. Apostates Intestable 5. Incestuous Intestable saving to their Parents and Children 6. Sodomites are Intestable 7. Self-murderers Intestable under Limitations 8. Out-Laws and Excommunicates not absolutely Intestable 9. Outlawry in an Intestate no good Plea in Bar to a Creditors Action against his Administrator 1. TRaytors are Intestable for they lose both their Lives Lands and Goods whereof they were possessed at the time of the Treason committed or at any time after Insomuch that Traytors are Intestable not only from the time of their Conviction but also from the time of the Crime committed So that the Testament before made doth by reason of the conviction become void both in respect of Goods and also of Lands Tenements and Hereditaments Howbeit a Traytor that is pardoned and restored may make his Testament Neither shall such Goods as the Traytor hath as Executor to another be forfeited whence it follows that of such Goods he may make his Testament which also extends to persons Out-law'd for Debt also to persons attainted or convicted of Felony 2. Felons are likewise intestable being lawfully convicted for the Law hath otherwise disposed of their Lands and Goods But if a man be only Indicted of Felony and die before his Conviction or Attainder he may make his Testament both of Goods and Lands Or being Indicted and thereon Arraigned stands Mute and Dumb and will not Answer in this Case he forfeits only his Goods and therefore may make a Testament of his Lands And here Note that in respect of a Felons Lands the time of the Fact committed is to be respected but in respect of his goods the time of his Judgement So that he loseth his Lands from the time of committing the Fact but his Goods only from the time of Conviction insomuch that at any time before his Conviction he may bequeath sell or otherwise alienate his Goods and Chattels Howbeit if he make his Testament before his Condemnation it will be frustrated and prevented by his Judgement So that the Testament of a Felon convicted is void though he be never Executed void even by force of the Condemnation unless he afterwards doth obtain his pardon 3. Hereticks if they be Convicted or publickly Excommunicated cannot make a Testament of their Goods and Chattels But if they reclaim their Heresie they are not Intestable 4. Apostates or they who do wholly renounce the Christian Faith which once they did profess and do become Jews Turks or Infidels are worthily excluded by the Law from being capable of making a Last Will or Testament 5. Incestuous persons are prohibited to dispose of any Goods or Chattels by Will saving to their Children begotten in marriage that is in lawful marriage or to their Parents Brothers Sisters Unkles or Aunts Where by Parents understand all of each Sex in the right Line ascending and by Children all of each Sex in the same Line descending 6. Sodomites or such as are guilty of that wicked and abominable sin against Nature mentioned in the Holy Scripture are intestable and prohibited to bequeath their Goods or Chattels 7. Self-murderers or such as wilfully destroy themselves are intestable nor can they make any bequest of their Goods for they are all Confiscate Yet there are Those who distinguish between the kinds or rather the occasions of Self-murther viz. 1. That which is occasioned through the fear of Execution of a Judgement of Condemnation 2. That which is occasioned through a tired sense of a long tedious and irksome life 3. That which is occasioned through the pain and violence of some Disease In the first case it is said they lose like other Felons both Lands and Chattels in the second Chattels only in the third neither Lands nor Chattels 8. Out-lawed persons though out-lawed but in an Action personal forfeit all their Goods and Chattels and therefore cannot make any Testament thereof But the Out-lawed for Felony forfeiting their Lands as well as their Goods and Chattels cannot make any Testament of either Though the Out-lawed only in an Action personal may make his Testament of his Lands yet not so of his Goods and Chattels And as for Excommunicate persons if they be excommunicated for Heresie or other cause which renders them in it self legally intestable in such cause they cannot make
of Wills and Testaments afterwards to be made as if the Testator sayes Whatsoever Testament I shall hereafter make I will the same to be void and of no force In this case it is not infringed by a later Testament unless in that later there be mention thereof sufficiently made to amount unto a legal revocation of that former Testament or clause derogatory 5. If a man saith that he will revoke his Will hereafter which he hath made that is not any revocation without the doing of some other Act. Likewise if one saith that he will make a Feoffment thereof to another that is no revocation before it be done But if a man Devise Land to another by his Will in writing and after Devise it unto another per paroll albeit that is void as a Will yet it is a revocation of the former Will If a Devisor alien the Land Devised and afterwards repurchase the same Land yet the Will is revoked as to that Land 44 Ed. 3. 33. 44. Ass D. 3 4 P. M. 143. 55. Contra. 2 R. 3. 3. b. Trespass upon evidence where one hath made his Will in writing and devised his Land to A. and her heirs and afterwards being sick and lying upon his death-bed because A. did not come to visit him affirmed that A. should not have any part of his Lands or Goods It was held by all the Court that it was not any revocation of his Will being but by way of discourse and not mentioning his Will But the revocation ought to be by express words that he did revoke his Will and that she should not have his Lands given unto her by his Will or such like words which might shew his intent to make an express revocation thereof Ejectione Firmae Upon evidence to a Jury it was resolved by the Court and so delivered to the Jury that if one makes his Will in writing of Land and afterwards upon Communication saith That he hath made his Will but it shall not stand or I will alter my Will c. These words are not any revocation of the Will for they are words but in futuro and a declaration what he intends to do but if he saith I do revoke it and bear witness thereof he doth hereby absolutely declare his purpose to revoke it in praesenti and it is then a revocation Also Mountague said to the Jury and it was not denied by any other of the Justices That as one ought to be of a good and sane memorie at the disposing so ought he to be of as good and sane memory when he revokes it And as he ought to make a Will by his own Directions and not by Questions so ought he to revoke it of himself and not by Questions CHAP. XIX Of a Reviver of a Will Revoked 1. How a Will Revoked may be Revived 2. How an Executor Revoked may be Revived 3. How one may dye both Testate and Intestate 1. OF a Will Revoked there may be a Reviver by a new publication of that revoked Will also a Will revoked may without making a New Will be revived and set on foot again by annexing a Codicil thereunto or by adding any thing to the Will or by making a new Executor or by express speech and word that it shall stand good and be his Will yea and sometimes without either of these as thus A man makes his Will many years after he makes another then in his sickness both these Wills are put into his hands and being demanded which of these Two he will have to stand for his Last Will and Testament and being required to deliver back that which he will have to stand and to detain the other in his hands he delivers back the Will he first made possibly many years before the later In this case the former Will though once made void by the later is now revived again and shall stand as the parties Last Will and Testament 2. If one of the Executors Names be stricken out of the Will and afterwards a stet be written over it by the Testator or by his appointment he is then a revived Executor but then Note that if the stet shall stand good the Executors Name over which it is written ought not to be so blotted out but that it may be read and discerned otherwise the stet is over nothing at all Or if the Testator express by word in the presence of witnesses that the party put out shall yet be Executor he is then also a revived Executor Lastly if the verbal re-affirmance renew the Executorship then is the Will partly in Writing partly Nuncupative his Name not being to be found in the written Will for the appointing of the Executor doth create the Will though it hath not life till the Testators death which is Divinity as well as Law 3. If a man seized of Lands in Fee-simple dispose of the same or part thereof by his Will in writing it shall stand good for the whole or part according to the difference of Tenure though no Executor be named or appointed so that the party shall die Intestate as touching his Goods whereof Administration is to be committed yet shall have a Will as touching his Lands because Land is not properly Testamentary And so a Will may be good in part only But where the strictness of the Civil Law is observed there a man cannot die partly Testate and partly Intestate though here in England where that Ceremonial strictness is not observed but all immunities enjoyed being not obliged to any other observance in making of Testaments than what is Juris Gentium a man may thus and several other wayes die partly Testate and partly Intestate CHAP. XX. Of the Probate of Testaments 1. Where and before whom the Will is to be proved 2. By whom and at whose instance the Will is to be proved 3. When is the Will to be proved 4. How and in what manner is a Will to be proved 5. What are the Fees upon Probate of a Testament 6. Touching refusal to prove the Will 1. EVery Last Will and Testament after the Testators death ought to be duly Proved before a Competent Judge in the Ecclesiastical Jurisdiction A Testament or Last Will is to be Proved before the Bishop of that Diocess within which the Testator had his Domicil or Habitation or before his Official unless by Custome or Prescription within certain Lordships or Mannors it appertains to the Chief Lord or unless the Testator died within some peculiar Jurisdiction in which case the Probation of the Testament may be Prescription or Composition belong to the Judge of the peculiar or unless the Testament be such as wherein only Lands Tenements and Hereditaments and no Goods be devised or unless the Testator had Bona Notabilia at his death in divers Diocesses in which Case the Probation of the Testament appertains to that Arch-Bishop within whose
Province such Bona Notabilia are Or unless by Custome it appertains to the Major of some Borough for ordinarily and regularly though Wills and Testaments are to be Proved before the Judge of that Jurisdiction within which the Testator died or rather within which he had his usual habitation and made his last aboad yet some Testaments may be Proved in some Boroughs before the Major thereof by Custome where it shall be understood to be only in respect of the Burgages within such places deviseable but in respect of their Goods they shall be Proved according to the Law Communi Formā and there only where the Lands are bequeathed which is nothing strange when as aforesaid in some Mannors by Prescription Testaments may be Proved before the Stewards thereof yea though no Lands be bequeathed therein The Probate of Testaments did belong to Ordinaries but of later Times de Consuetudine Angliae non de Communi Jure and the power to grant Administration was granted to the Ordinary by the Stat. of 31 Ed. 3. cap. 11. And before that time the King was accustomed to seize the Goods of the Intestate to the intent they might be bestowed for the burial of the dead and the payment of the Intestates Debts and the advancement of his Wife and Children and the Ordinary himself hath not power to sell the Goods of the Intestate though they be in danger of perishing nor release a Debt due to the Intestate by the Stat. of 31 Ed. 3. The Commissary of the Bishop of the Diocess granted Letters ad colligendum ad vendendum ea quae peritura essent inde computum reddere the Grantee sold Goods which would not keep but perished and an action of Debt was brought against him as Executor in his own wrong and it was adjudged maintainable because the Ordinary himself had not such power and therefore he could not give it to another 7 Eliz. Dyer 256. Again the practice hath been when Testaments have been Proved before other than such as are mentioned in the Premises as appears by this Case A Testament is disproved in the Ecclesiastical Court and the party appeals to the Metropolitan and it is there disproved and afterwards there is an Appeal to the Court of Delegates and it is there disproved also and at last the party appealed to the Queen in Chancery by the Stat. 25 H. 8. and there also it was disproved before the Commissioners And if the Queen ex Authoritate sua Regali might grant Letters of Administration was the Question The Opinion of the Justices of the Common Pleas was That she might because the said Court of Chancery is the Highest Court and the matter being once there it cannot be determined in any Inferiour Court and then the party may shew in his Declaration generally the matter and that Administration was granted to him by the Queen Ex sua Regali Authoritate under the Seal of the Court of Delegates Mich. 24 Eliz. in C. B. See after 10 Jae in B. R. Stephenson's Contrary That the Court of Delegates cannot grant Letters of Administration A Lessee for years of Lands by his Last Will Devised his Term to one whom he made his Executor and died the Devisee entered before any Probate of the Will and held the Land for a year and more without any Probate and then died The Question was whether his Executor or Administrator should have the Term or that the Ordinary should commit Administration of the Goods of the first Testator It was the Opinion of the Court That the property of the Term was lawfully in the Executor by his Entry and the Devise well executed without any Probate In Debt against Executors it was Resolved That if any of the Exccutors refuse before the Ordinary yet he that refused may Administer the Testators Goods at his pleasure and Prove the Will but if all the Exccutors do refuse before the Ordinary there Administration shall be granted and they cannot after Administer 2. That in Debt brought against an Executor it is a good Plea That the Testator made him and another Executor who is alive not named without saying that the Testament is Proved 3. Resolved That the Lords of Mannors in former times had the Probate of Wills in their Courts and in ancient time when a man died Intestate and had made no disposition of his Goods the trust of them was committed to the King who was and is Parens Patriae And the Ordinary was Constituted by the King in loco Parentis and his Power was given to him by the Stat. of 31 E. 3. cap. 11. 4. Resolved that although the Ordinary had the Power given to him as before yet no Power thereby is given to the Ordinary to sell or dispose of the Goods either to his own use or to the use of any other and that he hath not any absolute property in the Goods but a property only secundum quid 2. The Testament is to be Proved by the Executor whom the competent Judge either ex Officio or at the instance of the interessed may call before him to Prove the same and to declare his acceptance or refusal of the Execution thereof yea some think it may be done at the instance of such as have no interest to the intent that thereby they may be certified whether the Testator left them a Legacy And because it often happens that a Last Will or Testament is left in the Custody of some other Friend than the Executor the Law hath provided that in whose hands soever it remains he is compellable to produce the same and to exhibite such Testament And if he once had it the Law presumes him to have it still untill he prove the contrary by good evidence or by his own oath at least Also an Executor dying before he hath Proved his Testators Will his Executor that is the Executors Executor may not Prove both the Wills and so become Executor to both the Testators but in case the Goods of the first Testator were after Debts paid bequeathed to the first Executor then may his Executor take Administration of the first Testators Goods with the Will annexed 3. The time when the Will is to be Proved is somewhat uncertain and left to the discretion of the Judge according to the distance of the place the weight of the Will the quality of the Executors the absence of the Witnesses the importunity of Creditors and Legataries and other circumstances incident hereunto Yet regularly Testaments ought to be insinuated to the Official or Commissary of the Bishop of the Diocess within four months next after the Testators death And the Ordinary may sequester the Goods of the deceased untill the Executors have Proved the Testament so may the Metropolitan if the Goods be in divers Diocesses Also the Ordinary may compell the Executor to Prove the Will and to accept or refuse
be Administrator and have Administration of Leases as well as of personal things because he hath them as an Executor in anothers right and not to his own use Yea it is also said that a Bastard an Excommunicate or an Out-lawed person may be as able and as absolute an Executor as any other Also Infants may be made Executors but the performance of that Office shall not be committed to them untill they have attained unto the Age of seventeen years To the first forementioned may be added Corporations which although lawful ones yet may not stand Executors unless they can duely Prove the Will and take an Executors Oath Finally note that what hath been here formerly said of Executors may be also applyed to and understood of Administrators CHAP. VII Of an Executors Executor 1. That the Executor of a sole Executor is Executor to the first Testator 2. That an Executors Executor cannot perform a Trust committed by the first Testator 3. An Executors Executor hath nothing to do with the first Testators Goods where there is a surviving joynt-Executor 4. In what Case an Executors Executor shall have to do with the first Testators Goods when the surviving joynt-Executor shall not meddle therewith 1. AN Executors Executor where there is no joynt-Executor is Executor to the first Testator as he is to the second and consequently hath a right to all the profit and is liable to all the charge that the first Executor had or was subject unto yet with this caution and difference that the one Testators Goods shall not stand charged for the other Testators debts but each for his own respectively And if in such case the Executors Executor assume the Administration of the first Testators Goods he cannot afterwards refuse the Administration of the Goods of the later Testator but he may accept the later yet refuse the former but not è contra Also an Executors Executor shall not be admitted to Administer the Goods of the first Testator where the first Executor who was his Testator refused to Administer or died before Probate unless all the residue of the first Testators Goods after the debts paid be given in the Will to the first Executor 2. Where a special trust is by Will recommended to an Executor as to sell Lands c. This being not performed in his life-time shall not be performable by his Executor after his death Contrariwise it is of an interest as to take the profits of Lands for certain years towards payment of Debts and Legacies or for recovery of Rents of Inheritance left unpaid in the Testators life-time 3. If Two Executors be appointed whereof one maketh his Testament wherein he nameth his Executor and dieth his joynt-Executor surviving in this Case the Executor of the Executor is not to be joyned with the said joynt-Executor surviving neither in the Execution of the Will nor in Suits or Actions And if such Executor of the Executor have any Goods which did belong to the first Testator the surviving Executor of the same first Testator may have an Action against such Executors Executor for the same Insomuch that if the surviving Executor doth afterward die intestate yet may not the Executors Executor meddle with the Goods of the former Testator for the power of the Executor who died first was determined by his death the other then surviving And the Judge in this Case may commit the Administration both of the surviving Executor who died afterwards intestate and of the Goods of the former Testator not before Administred And if the Executor of the Executor who died first meddle with the Goods of the first Testator he may be sued by the Creditors of the first Testator as Executor in his own wrong But where there is no joynt-Executor there most things which concern immediate Executors extend also to the mediate or more remote Executors that the mediate Executor in the fourth fifth or further degree stands in like manner Executor to the first Testator as the first and immediate Executor and may sue or be sued as the former 4. Suppose Two Executors whereof One refuses to Prove the Will and Administer the other Proves it Administers and dies Testate In this Case the Executor of that joynt-Executor that so Proved the Will shall be the first Testators Executor and the surviving Executor so formerly refusing shall not now be admitted to intermeddle therewith because his Election determined at his Co-Executors death But it is otherwise where the surviving Executor hath accepted the Executorship for in that Case he shall have the sole disposing of the Estate and the Co-Executors Executor is not to intermeddle therewith but to surrender to the other what Goods belonging to the first Testator happen to be in his Custody Errour the Errour assign'd was That W. E. had brought debt upon an Obligation by the name of W. E. Administr Bonorum Catallorum A. E. durante minori aetate of J. E. Executor of the said A. E. Executor of R. E. and demands a Debt upon an Obligation of Twenty nine pound made to the said R. E. the first Testator whereas he could not bring an Action by this Name but as Administrator of R. E. But it was said that Administration of the Goods of R. E. being committed to him by this name omnium Bonorum c. A. E. it may well be committed to him by this Name especially when A. E. did not die Intestate but made an Executor 10 Ed. 4. 1. That by the grant of the Administration of the Goods of the Executor Administration is by it granted of all the Goods of the first Testator 27 H. 8. 7. Curia Contra clearly For by this Administration committed he hath no Authority to meddle with the Goods of the first Testator and for this cause the Judgement was reversed Debt against the Executor of an Executor The Defendant pleaded that the Executors Testator had fully Administred and that he had nothing in his hands at the time of his death and it was found that he had Assets Whereupon a Fieri facias issued to the Sheriff and he returned that the Defendant had nothing And it was held that the Sheriff should be amerced for he should have stopt making such Return And that it should be no prejudice to the Plaintiff for that the Debt shall be charged so long as the Record remains in force not Reversed by Errour nor Attaint And if he hath no Goods of the Testators he shall be charged of his own proper Goods For that when he pleaded that the first Testator had fully Administred he did not say that Assets did not come to his hands after his Testators death CHAP. VIII Of an Executor in his own wrong 1. Who is an Executor in his own wrong and what Acts make him such 2. How far an Executor in his own wrong is chargeable and how impleadable 3. What Acts shall not make a
Executor and not to his Heir So if any such thing be granted to one and his Successors his Executors shall have it And if the Heir or Successor get the Deed the Executor may Recover it from them If one hath a Box or Chest or Trunk full of Writings at his death and the same is open not sealed or locked this shall go as Goods to his Executor but if it were sealed or locked as incident to the writings it would be the Heirs whose the Writings be If a man hath a Term and Deviseth the same to one and the Heirs of his body his Heir shall not have it but it shall go to his Executors because a Term which is but a Chattel cannot be Entayled vid. 28 Eliz. Peacocks Case and 21 Eliz. Higgins and Mills Case Adjudged acc In like manner if a Devise be made of Land to one and the Heirs of his body for Five hundred years it is a Release for years and his Executors shall have it For an Executor shall have all Leases for years and although the Heir and not the Executor shall have the writings which concern the Inheritance yet the Executor and not the Heir shall have the Chest wherein such writings are if the Chest were not lock'd but if lock'd then the Heir shall also have the Chest as aforesaid CHAP. XIV Of the Heirs Rights exclusively to the Executors 1. Of things Personal that go to the Heir not to the Executor 2. Of things Real that belong to the Heir not to the Executor 3. A Law Case touching the same 1. TO the Heir not to the Executor do belong Fishes in a Pond Conies in a Warren Deer in a Park and Pidgeons in a Dove-house where the Testator had the Inheritance in the Pond Warren Park or Dove-house for such are not Chattels at all in that case nor to go to the Executor but to the Heir together with the inheritance Also Grass growing for Hay and Trees growing or standing except as in the last precedent Chapter and the Fruit thereon go to the Heir not the Executor Also Glass whether by nails or otherwise affixed to the windows either by the Lord or the Lessee descends not to the Executor but to the Heir as being made parcel of the Freehold or Inheritance of the house But if there be Glass from the windows or Wainscot loose or doors more than are used that are not hanging they shall then go to the Executor As to the Heirs Rights the Law is the same as to Wainscot if affixed or fastned to the house yet by the Civil Law such things as are in the house more for Ornament than Structure pertain not to the house Nor is it material whether the Wainscot be fastned by great or little nayles by skrews or irons thrust through or by other wayes or means for it sufficeth to make it parcel of the Freehold and consequently to go to the Heir not to the Executor if it be any way affixed or fastned to any part of the house The Law is also the same concerning all things fastned to the Freehold or to the ground by morter or stone as Tables Dormant Leads Mangers Milstones Anvils Doors Keys Glass-windows and the like for none of these be Chattels but parcels of the Freehold and therefore belong to the Heir not to the Executor Also Writings and Evidences that concern the Inheritance do pertain to the Heir also the Boxes and Chests wherein the Writings and Evidences of Inheritance are kept and usually have ever been imploy'd only for that Service shall go to the Heir not to the Executor whether sealed or not sealed lock'd or not lock'd Also in some Cases Corn in the ground shall go to the Heir not to the Executor for if a Lessee for years Certain sow the Land a little before the end of his Term and the Term end before it be cut in this Case he that is to have the Land not the Executor of the Lessee for years shall have the Corn. And if one be seized of Land in Fee and thereof make a Lease for years paying Rent at Michaelmas or within ten dayes next after and the Lessor happen to die within the term after Michaelmas and before the ten dayes expired in this Case the Heir of the Lessor and not his Executor shall have the last half years Rent due at Michaelmas Lastly Things under ground whether in Gardens or elsewhere as Carrets Parships Turneps Skerrets and other such like things under ground shall go to the Heir not to the Executor 2. Where a Rent is reserved upon a Lease for years there it shall not go to the Executor but to the Heir with the Reversion other than the Arrerages of such Rent as were behind at the time of the Testators death for such belong to the Executor not to the Heir If A. mortgage the Inheritance of Land to B. upon Condition of Redemption by payment of one hundred pound to B. his Heir or Executor and B. dies the Deeds being delivered into his hands In this Case the Heir not the Executor shall have the Deeds for though the money may be paid to the Executor yet in the mean time the Land descends to the Heir nor is there any debt to the Executor because it is in the Election of A. whether he will pay or not But if on the other side the Land had been sold for one hundred pound not paid to A. but a Condition that if not paid to him his Heir or Executor by such a day then to Re-enter and A. dieth In this Case there is a debt to his Executor and no Land descended to the Heir of A. yet shall the Heir have the Deeds because there is a Condition descended to him But if a Feoffee in Mortgage before the day of payment which should be made to him make his Executors and die and his Heir entereth into the Land as he ought In this Case the Feoffor ought to pay the money at the day appointed to the Executors and not to the Heir of the Feoffee Unless the Condition were that the Feoffor pay to the Feoffee or to his Heirs such a summ of money at such a day then it ought to be paid to the Heir Also where the Testator recovereth Land and Dammages or a Deed and Dammages and dies before Execution the Heir shall have Execution for the Land or Deed and the Executor for the Dammages but until the Heir sue a Scire Facias the Executor cannot sue Execution for the Dammages for Execution must be first of the Deed then of the Dammages Also if Executors keep in their own hands for the space of one two or three years Lands devised by Will to be sold for any purpose converting in the mean time the profits thereof to their own proper use the Heir of the Testator may enter to the Lands and put
out the Executor unless the money for the Land to be sold be to be distributed in pios usus because in this Case the Frank-tenement after the Testators death is in the Executors not in the Heir for which reason the Heir cannot enter in this Case as he might in the former 3. In an Action of Debt brought against Executors They were at Issue if Assets were in their hands or not and the Jury found by a Special Verdict That the Testator was seized of a House in Fee and made a Lease thereof and of certain Implements of household in it for years rendring Rent to Him his Heirs and Assigns and found that the Executors after the death of the Testator continually received the Rent and prayed Advice of the Court if the same were Assets in the Executors hands And the Opinion of the Court was That it was not Assets for that the whole Rent was to go with the Land in Reversion as magis digne and so did belong to the Heir not the Executors A man Willeth that after twenty years after the death of the Devisor J. S. shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor CHAP. XV. What goes neither to the Heir nor Executor and in what Cases 1. Bona Paraphernalia go neither to the Heir nor to the Exeeutor 2. Things in joynt-Tenancy go neither to the Heir nor to the Executor 3. Things willed by the Testator to be sold for certain uses go to neither of them 4. A Lease simply for Three Lives goes neither to the Heir nor Executor 1. BY the Civil Law those Goods belonging to the Wife called Bona Paraphernalia descend neither to the Heir nor to the Executor neither are they by that Law subject unto the payment of the Husbands debts But now under that notion of Bona Paraphernalia we are not to understand the Wifes Apparel with her Bed Jewels and Ornaments for her person to be comprehended but her convenient Apparel and onely such as is agreeable to her degree and such shall go to the Wife onely the rest unto the Executor And thus much the very word being Etymologized doth imply 2. The Goods and Chattels which one hath in Joynt-Tenancy with another shall not on his death go to his Executor nor to his Heir but to the other surviving Joynt-Tenant and that by right of survivorship Otherwise it is with Tenants in common for if A. and B. have Goods or Chattels in Joynt-Tenancy and if either of them grant what belongs to him unto a Third person in this Case that Third person and he which kept his part unsold are Tenants in Common and therefore if either of them Two die the deceaseds part of such Goods and Chattels shall go to his Executor and not to the surviving Tenant in Common Also if Husband and Wife be Joynt-Tenants of Land and the Husband die the very Corn growing thereon shall survive to her together with the Land and though the Husband sowed it yet shall it not go to his Executor 3. The Monies or Profits arising out of Lands Willed by the Testator to be sold are not accounted as any of the Goods or Chattels of the person deceased and consequently do go neither to the Heir nor to the Executor but to the uses for which it was willed to be sold 4. If one have a Lease simply for Three Lives to him and his Assigns this is no Chattel therefore shall not go to the Executor and it is no Land therefore it shall not go to the Heir but in this Case it shall go to him who first after the Testators death Enters and Claims it as an Occupant if no assignment thereof be made in the life-time of the Lâ—ssee But a Lease for years determinable upon Lives is a Chattel and shall go to the Executor So also doth an Extent upon a Statute CHAP. XVI Of the Indivisibility of the right and interest of Co-Executors Their Indivisibility 1. In point of Power and Authority 2. In point of Interest and Possession 3. In Case of Plaintiffs and Defendants 1. WHere there are more Executors than One or Joynt-Executors to the same Testator One of them cannot give nor release his Interest to the other or if he doth it is void and he who so releaseth shall still have as much Interest as he to whom he released because each had the whole before Therefore if one Executor release but his part of a debt it hath been held that the whole is discharged But if one Executor alone sell Goods of the Testator he alone may maintain an Action of debt for the money So if Goods be taken out of the possession of one Executor he alone may maintain an Action for the same and that without naming himself Executor Also one Executor not joyning in suit with another may any time before judgment release but after Judgement he cannot because then it is altered in nature and turn'd into Rem Judicatam And though many Executors to one and the same Testator make but one Executor yet the devastation wast or misdoing of one shall not charge the rest nor make their Goods lyable for recompence but himself shall answer for it with his own Goods yet no further than the value of the Testators Goods so wasted or misadministred 2. If one of the Executors where there be Two or more grant his part of the Testators Goods all passeth and nothing is left to the other for that each hath the whole and there be no Parts or Moities between Executors Thus if an Horse come to four Executors each hath a Horse and yet all four have but one Also though a Lease for One thousand Years of One thousand Acres of Land come to Two Executors or more no partition or division can be made between them because it is not between them as between joynt-Lessees of Land where each hath but a Moitie in Interest though possession of and through the whole but among Executors each hath the whole and therefore if he grants his part he grants the whole yet one Executor may demise or grant the Moitie of the Land for the whole term and so may the other and this way they may settle a Moitie for each in some Third person intrusted for them but one Executor cannot make a Lease to the other of any part because he had the whole before nor can one of them Sue the other as Executor unless the Testator devise to one of his Executors all his Goods after such Debts and Legacies paid and satisfied for in such Case after satisfaction thereof that Executor may take the remainder of the Goods and maintain an Action of Trespass against the other if he take them from him and consequently an Action of Detinue if he keep or detain them but this he may do not as
Executor but as Legatee 3. Where there are divers Executors they are all but as one person and therefore cannot plead several pleas being sued all of them represent the Testators person and they must all joyn in Suits as Plaintiffs and be joyned as Defendants or at least so many of them as have Administred therefore one Executor sued if he plead that there is another Executor not sued must also plead that that other hath Administred Thus Executors though never so many represent the person of the Testator as one person Therefore all of them shall have but one Essoyn neither before appearance nor after because their Testator himself whose person they represent could have no more And therefore where Executors as Defendants have appeared if any one of them will confess the Action this binds and concludes the rest but if one will plead one Plea and the other another some are of Opinion that that shall be received which is best for the Testators Estate So where they Sue such as will not prosecute shall be severed and the rest without them may proceed It is evident by what hath been said That Two Joynt-Executors being Sued cannot plead two distinct Pleas because they both represent but one person viz. the Testator who could have but one only Plea Yet others say they shall have several pleas and the most peremptory shall be tryed And if any one of Joynt-Executors Plaintiffs dies the Writ abates though he so dying was for non-appearance on summons before severed and so it is if one of the Co-Executors Defendants dies Yea if a Creditor Sue A. B. C. as Executors where only A. and B. are Executors even there by the death of C. the Writ abates Also if a man make Three Executors whereof Two refuse the Administration yet they shall be Executors by the Will and may Administer when they please and an Action ought to be in all their Names otherwise the Writ shall abate CHAP. XVII Of the Executors Interest and Possession and how it differs from that which he hath in his own proper Goods 1. What may be said to be in the Executors Actual Possession or not 2. How the Executors Interest in the Testators Goods differs from that which he hath in his own 3. Whether an Executor may by Will bequeath the Goods he hath as Executor 4. Whether the Administrator of an Intestate Executor may intermeddle with the Goods of the first Testator 5. How Testators and Executors are Correlatives as to Chattels 1. IN Chattels Personal the Executor hath such an Actual Possession presently upon the Testators death though never so far distant from him and without any laying his hands actually on them as that he may maintain an Action of Trespass against any taking them away or spoiling them though he or any for him never came near them but Chattels Real as Leases for years are not in his possession till himself or some for him actually enter thereupon But a Lease for years of Tithes be the Executor never so far distant from them at the time of the Testators death shall be in his actual possession instantly upon the setting out thereof so as he may maintain an Action of Trespass against any that shall take the same so set out though he nor any for him did never actually lay their hands thereon But in Glebe Lands into which Entry may be made the Case may be otherwise Nor are Debts accounted to be in the Executors hands till recovered So likewise Arrears of Rents yea of Inheritance behind in the Testators life-time for Executors are qualified to receive them also 2. An Executors Interest as Executor is only in his Testators Right his Interest in his own Goods is absolute and proper therefore though the Lord of a Villain might take all the Villains own Goods yet he might not take the Goods he had as Executor And from hence some have been of Opinion that an Executor granting all his Goods these are excepted which he hath as Executor except the Executor according to the Lord Dyer who is the Grantor be named Executor in the Grant 3. Nor can the Executor by Will bequeath the Goods he hath as Executor without a precedent alteration of the property thereof and with a Reconveyance thereof back to himself again 4. An Executor dying Intestate his Administrator cannot meddle with those Goods the Intestate Executor had as Executor but thereof Administration must be granted As De Bonis non Administratis to the next of Kin of the Intestate Executors Testator For thè reason aforesaid the Goods which a man hath as Executor are not liable for the Executors debts and therefore cannot be taken in Execution for his own proper debts For the same reason also the Goods which a Woman hath as Executrix are not devested out of her into her Husband by marriage nor can he have them after her death without being his Wifes Executor Upon the same ground it is as was but now hinted that the Goods and Chattels of the first Testator in the hands of his Executors Executor no alteration of the property thereof being made by his Executor shall not be liable for satisfaction of the debts of his said Executor As thus suppose A. makes B. his Executor and dies B. makes C. his Executor and dies Now if B. made no alteration of the property of the Goods of A. but meerly left them to C. In this Case the Goods which so came to B. as Executor to A. and so from B. to C. shall not be liable in Law to pay the debts of B. the immediate Executor of A. 5. There is a further discovery of an Executors Interest as to Chattels Real wherein Testators and Executors are as Correlatives for if a man make a Lease for life to one the remainder to his Executors for twenty one years the term of years shall immediately vest in the Lessee for even as Ancestors and Heirs are Correlatives as to Inheritance so are Testators and Executors Correlatives as to Chattels And therefore if a Lease for life be made to the Testator the Remainder to his Executors for years the Chattel shall vest in the Lessee himself as well as if it had been limited to him and his Executors And thus a Remainder of years limited to the Executors of a Lessee shall presently vest in the person of the Lessee himself because Testators and Executors are Correlatives as to Chattels CHAP. XVIII Of the Executors Right in opposition to the Heirs in reference to Mortgages 1. How the Executor doth more represent the person of the Testator than the Heir doth the person of his Ancestor 2. The difference in point of payment whether to the Heir or to the Executor in Case of Mortgages 1. IF the Feoffee in Mortgage before the day of payment which should be made to him make his Executors and die and his Heir entereth into the Land as he
per parol and Cited a Rule in the Civil Law Non vult esse haeres qui ad alium vult transferre haereditatem and Haereditas est totum jus quod defunctus habuit And to the second matter he said Qui semel repudiaverit haereditatem amplius haereditatem petere non potest and Qui semel repudiaverit shall not after be Executor quia transit in contractum And that Executors cannot refuse for one time but for ever but they may pray time to Advise or Consider of taking upon them the Executorship and it ought to be granted and in that Case the Ordinary is to grant in the mean time Letters ad Colligendum c. but is not to grant Administration And for these Reasons there being a refusal the Grant made after Administration committed was void and so was the Opinion of the Court. CHAP. XX. Touching what Acts may or may not be done by an Executor as well before as after Probate of the Will 1. An Executor may before Probate of the Will enter into the house of the Heir to seize on the Testators Goods 2. A limitation or qualification of that Power 3. In what Case payment must be made by or to an Executor though no Will yet Proved by him 4. What Actions an Executor before Probate of the Will may or may not maintain 5. An Executor may before Probate of the Will make an Inventory of the Testators Goods and Chattels 6. Several other things which an Executor may do before he hath Proved the Will 7. An Executor may retain the Testators Goods to satisfie his own Debt 1. THe Power of an Executor dependeth wholly upon the Will and designment of the Testator Now an Executor may before his Proving of the Will seize and take into his hands any of the Testators Goods yea enter into the house of the Heir if not locked so to do and to take the Specialties of debts and generally he may do all things which to the Office of an Executor pertaineth except only bringing of Actions and prosecution of Sutes for they cannot Sue till they have the Will under the Seal of the Probat-Office 2. Although an Executor may after the Testators death enter into the house where he lived and died and where his Goods are and thence take them away even before Probate of the Testament yet understand it with this caution That he must do this within convenient and reasonable time as within or about thirty dayes next after the Testators death and that also in a due and peaceable manner when the doors are open 3. An Executor may also before Probat of the Will pay debts and receive debts and make acquittances of debts owing to the Testator Yea if before such Proving of the Will the day be come for payment upon Bond made by or to the Testator payment must be made by or to this Executor though the Will be not yet Proved and that upon like pain of forfeiture as if the Will were Proved Also an Executor may before Probate give or sell any of the Goods and Chattels of the Testator not otherwise bequeathed in the Wiil and for the same may maintain his Action 4. For an Executor for Goods of the Testator taken from him or for a Trespass done upon the Lease Lands or for a distraining or impownding of the Goods or Cattel may maintain Actions of Trespass or Replevin or Detinue even before the Will be Proved because these Actions arise out of the Executors own possession But an Action of Debt or the like contracted by the Testator he cannot maintain before the Will be Proved for therein he must shew forth the Will Proved under the Court-Seal And as at the Common Law If a man be bound to another in a certain summ of money to pay at a certain day and the Obligee before the said day Release unto the Obligor all Actions he is barred of the duty for ever though he could not have an Action at the time of the Release made even so may an Executor before Probate of the Testament Release an Action And the Reason of both is because the right of Action is in them for that the Debt is a thing consisting meerly in Action and therefore though no Action as yet then lieth for the Debt yet because the Right of Action is in them the Release of all Actions is a discharge of the Debt it self 5. Another thing that an Executor may do before the Proving of the Will and which is expedient for him though as yet not so necessary is the making of an Inventory for the Executor had need be cautious that he do not intermeddle with or Administer the Testators Goods until he hath made an Inventory for although the Act of an Executor is said to hold in Law before the Proving of the Will and the making of an Inventory yet for intermeddling with the Testators goods as Executor before he hath made an Inventory or caused the same to be made though not exhibited he was according to Law punishable unless it were for doing such things as could not conveniently be deferred till the Inventory were made as concerning things relating to the Funerals or disposing such things as Servando servari non possint and such like Besides if he make not an Inventory and yet Administer he may be compelled to discharge out of his own purse more Debts and Legacies than happily the Testators Goods and Chattels did amount to 6. There are several other things which an Executor may do before he hath Proved the Will and he may also keep any of the Goods of the Testator so as he pay out of his own money the value thereof in Administration of the Testators Estate he may also if he want money to pay Funerals or discharge Debts sell any of the Chattels Real or Personal whereof the Testator died possessed yea though that thing were particularly bequeathed As if a man be possessed of a Term of years and bequeath the same to A. B. the Executor may notwithstanding the bequest at any time before his Assent given to the Legacy if he have not Assets sufficient to pay the Debts sell this Term of years and the Legatee is remediless So also he may do although there be Assets enough besides to pay the Debts but in such Case the Legatee may not be without all relief in a Court of Equity against the Executor as to Dammages but the Sale is unavoidable Lessee for years Devised his Term to one whom he made his Executor and died The Devisee entered before any Probate of the Will and held and enjoyed the Land for a year and more without Proving of the Will and then died it was a Question whether his Executor or in Case he died Intestate his Administrator should have the Term It was the Opinion of the Court That the Term was lawfully setled in the Executor by his Entry and it
or Keyes nor Fishes in the Pond nor Doves in Dove-houses scituate in Lands belonging to the Heir Nor Bona Paraphernalia that is the Wives convenient Apparel suitable to her Degree For as they are not to be put into the Inventory of her Husbands Goods so neither are they liable to the payment of his Debts But the Wives Jewels Chains and Borders and other Rich Ornaments of her Person are to be put into the Inventory of her deceased Husbands Goods Also Debts due to the Testator are to be put into the Inventory But Monies raised upon Lands given by the Testator for the payment of Debts or Legacies are not to be inserted into the Inventory Likewise all House-hold-stuff is to be put into the Inventory under which word are comprized Tables Stools Forms Chairs Carpets Hangings Beds Bedding Linnen Bason with Ewers Candlesticks with all sorts of Domestick Vessels whether of Earth Wood Glass Brass or Pewter yea Apparel Books Weapons Tools Cattel of all kind Victuals Corn and Grain of all Sorts Waynes Carts Plow-geare Coaches though no House-hold-stuff also Plate and Jewels and generally all things not affixed to the Free-hold but coming to the Executor and not descending to the Heir are to be Inventaried but such things as are affixed to and so become part and parcel of the Free-hold and all things that descend to the Heir and come not to the Executor are to be exempted out of the Inventory The Lady C. was possessed of divers Leases and conveyed them in Trust and afterwards married with A. B. the Lady received the money upon the Leases and with part of the money she bought Jewels and other part of the money she left and died A. B. took Letters of Administration of the Goods of his Wife and in a Sute in the Ecclesiastical Court the Court would have compelled him to have given an account of the Jewels and for the Money to have put them into the Inventory but the Opinion of the whole Court of B. R. was That he should not put them into the Inventory because the property of the Jewels was absolutely in him as Husband and he had them not as Administrator but of such things as be in Action as he shall have as Administrator he shall be accountable for and they shall be put into the Inventory And for the Monies received upon Trust it was resolved that the same was the Monies of the Trustees and the Wife had no remedy for it but in Equity and therefore the Husband should have it as Administrator And in that Case it was Resolved That if a Woman do convey a Lease in Trust for her use and afterwards marrieth That in such Case it lies not in the power of the Husband to dispose of it And if the Wife die the Husband shall not have it but the Executor of the Wife CHAP. XXII Of Actions mantainable by Executors or Administrators 1. The several kinds of Actions maintainable by Executors 2. An Action Personal in the Testator is none in the Executor 3. An Executor may sue for Rents and the Arrerages thereof yea in some Case where the Testator himself could not 4. An Executor Out-Lawed or Attainted may yet have Action 5. In what Case one Co-Executor may Sue another 6. In what Court Executors ought to Sue 7. Cases in Law touching this Subject 1. REgularly Executors may Charge all others for any Debt or Duty due to the Testator as the Testator himself might have done and the same Actions that the Testator himself might have had the same for the most part may Executors have also And therefore Executors may have Actions of Account Actions of Trespass de bonis asportatis in vita Testatoris Actions of Debt against Goalers upon escape of Prisoners Writs of Errour upon the Statute of 27 Eliz. Attaints upon the Stat. of 23 H. 8. Writs of Restitution upon the Stat. of 21 H. 8. An Indemnitate Nominis when the Testators Goods are taken upon an Out-Lawry against another man of his Name Actions of Covenant for breach of a Covenant made to the Testator Action upon the Case upon the Trover and Conversion of the Testators Goods an Ejectione firmae for an Ejectment of the Testator out of a Term an Action of Debt for Rent behind in the Testators life-time also an Action of Debt for the Arrerages of an Annuity due to the Testator in his life Likewise an Executor for Goods taken from him that belonged to the Testator or for a Treaspass done upon the Lease-Lands or a distraining or an impownding of Goods or Cattel may maintain Actions of Trespass or Replevin or Detinue even before the Will be Proved Likewise c. 2. But an Executor shall not have an Action for a Personal 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 be Recovered and therefore an Executor can bring no Action for the beating or wounding the Testator or for a Trespass done to him in his Cattle Grass or Corn or for a Wast by his Tenant done in his Lands for all these are but Personal Actions and die with the Testators person 3. If one grant a Rent out of his Land for life Provided that it shall not charge his Person and the Rent be behind and the Grantee dieth in this Case the Grantees Executor may have an Action of Debt for those Arrerages Likewise if any Rent or Arrerages of Rent be due to one upon a Grant of Rent out of any Land to him or reservation of Rent upon any Estate made by him of Land in these Cases his Executor may have an Action of Debt for this Rent or he may distrain 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 any claiming by or under him Yea an Executor in some Cases may have his remedy by Action for the Arrerages of Rent which the Testator himself in his life-time could not for if a man grant a Rent-charge out of certain Lands to another for life with a Proviso in the Deed that the Grantee shall not in any sort charge the Person of the Grantor generally and the Rent be behind the Grantee dieth the Executors of the Grantee shall have an Action of Debt against the Grantor and charge his person for the Arrerages in the life of the Grantee notwithstanding that Proviso because the Executors have no other remedy against the Grantor for the Arrerages for Distrain they cannot because the Estate in the Rent is determined and the Proviso cannot leave the Executors without remedy so that the word Proviso in this Case doth work only a qualification or limitation not a Condition or a Covenant 4. One that is Out-Lawed or Attainted in his own person may yet Sue as Executor because
Rent belongs to the Heir where it is reserved by a Lay-person and he dies after Michaelmas and before the moneth ended Wherefore it was adjudged accordingly vid. 10. Co. 129. Action brought by an Administrator for Rent reserved upon a Lease for years by the Intestate and for Rent arrear in his time the Action was brought and he shews how Administration was committed by the Arch-Bishop but doth not say Quod profert hic in curia Literas Administrationis The Defendant pleaded and found for the Plaintiff And it was moved in Arrest of Judgement That the not shewing the Letters of Administration was matter of Substance which made the Declaration vicious and not aided by the Statute of 18 Eliz. or 32 H. 8. by the Verdicts for that enables the Plaintiff to his Action and the omission thereof takes from the Defendant the advantage which he might have by demanding Oyer thereof and c. The Court resolved That it was a matter of Substance which ought to be shewn by the Plaintiff to enable him to his Action And the Defendant shall have advantage thereof at any time wherefore it was adjudged for the Defendant Vid. 28 H. 6. 31. 16 Ed. 4. 8. 21 H. 6. 23. Plowd 52. Errour in a Judgment in C. B. The Errour Assigned for that in Assumpsit brought as Executor although he shews himself to be Executor to him to whom the Promise was made yet he saith not Testamentum hic in Curia prolatum The Defendant pleaded non Assumpsit and found against him and Judgement accordingly And this being assigned for Errour was held to be matter of Substance and not of form only and was therefore Reversed An Executor brings Debt upon an Obligation The Defendant pleads non est Factum and found for him And now the Question was whether the Plaintiff should pay Costs upon the New Statute of 4 Jac. which exacts That in every Action where the Verdict passeth for the Defendant the Plaintiff should pay Costs but it was resolved That this Case is not within the intent of the Statute he being in anothers right and of matter which lay not in his cognizance therefore the Law never intended to give Costs against him And so it is upon the Statute of 8 Eliz. where Costs be given in case the Plaintiff is Non-suted As it was ruled in one Fords Case and so it was Ruled here And although Manne said Costs had been allowed in the like Cases they appointed that henceforth it should no more be so It was held That an Administrator shall have Trespass de bonis asportatis in vita Intestati by the equity of the Statute of 4 Ed. 3. And an Executors Executor by the Stat. of 25 E. 3. On a Scire Facias the Case was this Goth was in debt to one Couper who died Intestate his Wife took Administration and brought Debt and had Judgement to recover and died Intestate Yate the Plaintiff took Administration of the Goods of Couper non Administrat and brought Scire Facias to have Execution on the Judgement But it was adjudged that it doth not lie for want of Privity but it is clear that he may have a new Action of Debt And by Popham and Yelverton if an Administrator recover Dammages on Trespass de bonis asportatis in vita Testatoris and then dye Intestate his Administrator shall have Execution thereon otherwise of a Debt recovered which was due to the Intestate Tenant in Dower makes a Lease for years reserving Rent and takes a Husband the Rent is in arrear the Husband dies and it was agreed by the whole Court That his Executors shall have the Rent If A. make a Promise to B. and after B. die Intestate and Administration of his Goods be committed to C. who after dies also Intestate and after Administration is committed to D. of the Goods of C. In this Case D. cannot have an Action on the Promise made to B. as Administrator to G. For he is not Administrator to B. in that Administration was not granted to him of the Goods of B. unadministred by C. CHAP. XXIII Of Actions maintainable against Executors or Administrators 1. Executors lyable to be sued by Creditors though their Testators Goods not actually possessed by them or imbeziled from them 2. What kind of Servants wages Executors are lyable to pay and discharge 3. How Executors are lyable in Case of breach of Covenant by their Testator in his life-time 4. In what Case an Executor may be lyable to pay his Testators Debt out of his the Executors own proper money 5. Several other Cases wherein Executors are lyable to be sued 6. Certain Cases wherein Executors are not lyable 7. Several Law-Cases touching Actions against Executors and Administrators 1. ALthough the Executor hath not actually and particularly laid his hands upon any of the Testators Goods yet shall he be said to be in possession of them so as to stand lyable to the Creditors so far as they extend in value though afterwards others do purloyne or imbezil them 2. Executors are lyable for the payment of the wages of the Testators Servants retain'd in Husbandry and the like but not for the wages of Waiters or Serving-men the reason of the difference is because of the Statute compelling the one not the other to serve Yet for them also an Action did lie against the Testator himself because of his Covenant 3. Where a breach of Covenant happens in the Testators life-time the Executor stands chargeable Therefore if one make a Lease of Land by Deed wherein he hath nothing and die before an Action of Covenant be brought against him it will be maintainable against his Executor though no express Covenant Also if a Lessee for years Covenants to repair the Buildings or to pay the Quit-Rents issuing out of the Lands Lett the Executor to whom the Term cometh must as well as his Testator perform that Covenant although he did not Covenant for him and his Executors Likewise if one be Lessee for years or for life without any Indenture or Deed as he may be and his Rent being behind dieth In this Case his Executor shall be lyable to the payment of this Rent though without any specialty But if the Lessee for years sell or grant away his Term or Lease and die his Executor shall not be charged for any Rent due after the death of his Testator though himself in his life-time was still lyable for the Rent to grow due after until the Lessor accept the Assignee for his Tenant So that if a Lease for years be made rendring Rent and the Rent be behind and the Lessee die his Executor shall be charged for this Rent or if the Lessee for years Assign over his Interest and die his Executor shall be charged with the Arrerages before the Assignment but not with any of the Arrerages due after the Assignment Also an Executor is chargeable for Tythes due
Lease for years worth Fifty pound per annum or more out of which he payes Ten pound yearly Rent and dies in this Case not the full value of the Land yearly but only so much as is above the said Rent shall be deemed Assets in the hands of the Executor or Administrator Or suppose the deceased dies possessed of Goods and Chattels to the value of Two hundred pound and in debt to M. Two hundred pound and to N. One hundred pound and to O. Fifty pound and to P. Twenty pound and Composition is made with M. for Sixty pound or other Summ more or less under Two hundred pound In this Case the Executor is deemed to have Assets chargeable to the other Creditors for so much as is above the Summ so compounded unto Two hundred pound Or where a man is indebted Forty pound to one and Thirty pound to another and dies leaving but Forty pound in all and his Executors agree with the Creditor of Forty pound for Ten pound and have his Acquittance for the Forty pound yet the Thirty pound remaining in their hands shall be Assets 2. If Executors do Recover any Dammages for Trespass or other wrong done to the Testator the money recovered will be Assets in their hands as well as Debts recovered upon Bonds or Bills or Lands by them taken in extent upon Statutes Recognizances or Judgements Yea without ever having these monies Executors may make them Assets in their hands viz. by making Releases or Acquittances or Acknowledgement of Satisfaction for this amounteth to a Receit and chargeth the Executors towards the Creditors with the whole penal Summ though possibly they receive but part as the Principal or some such proportion But Debts or Dammages recovered by a Judgement had by the deceased in his life-time whereof no Execution was are not Assets in his Executors or Administrators hands until Execution be made yea though Execution be made and the Dammages so recovered that they be gotten into the Executors hands or possession yet if the Judgement be Erroneous and the Execution avoidable it shall not be deemed Assets in his hands for which Cause a Debt Sued and Recovered by one as Administrator to A. B. and afterwards a Testament made by A. B. produced and proved is not Assets in the Administrators hands because the Executor in the said Testament may recover it from him 3. A Mortgage Redeemed is Assets unless the Executors redeemed it with their own money Likewise Goods of the Testators redeemed by the Executor with the Testators money are Assets in the Executor it is otherwise if the Executor having no monies of the Testators doth redeem them with his own money If the Testator grant a Lease for years or Horses Sheep Plate or other Cattle unto A. upon some Condition that A. did not perform after the Testators death in this Case the Chattel reverts and comes back to the Testators Executors and is Assets in their hands Also if A. Covenant with B. to make him a Lease of such or such Land by such a day and B. dieth before the day and before any Lease made now must A. make the Lease to the Executor of B. and the Lease so made to him shall be Assets in his hands because the Executor shall have the Term only as Executor So if A. undertake to deliver in to B. Twenty loads of Coles Wood or other Merchandize whatsoever and this is not performed in the life of B. but afterwards to his Executor this shall be Assets in his hands as well as the money recovered in Dammages for non-performing should have been Likewise any Goods or Chattels whatsoever given or bequeathed to any person by the Testator upon a Condition certain and the Condition not afterwards performed by such Conditional Legatary the said Goods and Chattels conditionally bequeathed do revert to the Executor and become Assets in his hands 4. Encrease gotten to the Executors by Merchandizing with the Testators Goods shall be Assets in their hands and shall charge them Likewise Dammages recovered by an Executor in an Action of Trespass shall as aforesaid be Assets and yet they were never in the Testator Also if a Lease be made to one for life the Remainder to his Executors for years and he dieth this will be Assets in the hands of his Executors though it never were in the Testator So where a Lease for years is bequeathed to A. for life and after to B. who dieth before A. although B. never had this Term in him so as that he could grant or dispose it yet shall it rest in his Executor as his Goods and be Assets in his Executors hands Likewise a Remainder for years so in the Testator that he might grant or dispose it at his pleasure though the same fell not in possession to the Testator in his life-time yet this is Assets to the Executor even whilst it continues a Remainder and before it falleth into possession because it is presently valuable and vendible In like manner Gain gotten by Trading as aforesaid with the Testators money Wool growing upon Sheep after the Testators death also the encrease of Sheep or other Cattel after the Testators death though never in the Testators actual possession shall yet be Assets in the Executor Likewise a Feoffment made to the Feoffors use for life and after him to the use of his Executors or Assigns for a certain number of years that number of years shall be Assets in the hands of the Feoffors Executor Also Goods hypothecated or pledged to the deceased in his life-time and not redeemed or the money thereof when redeemed is Assets in the Executors or Administrators hands Likewise the money raised by the Sale of the deceaseds Lands sold by his appointment by the Executors for the payment of his debts as when the deceased did in his life-time appoint that his Executors shall sell his Lands to pay his debts shall as aforesaid be Assets in the Executors hands Also if Executors had a Villein for years and the Villein purchased Lands in Fee and the Executors entered they had a Fee-Simple but it was Assets The reason was because they had the Villein in auter droit viz. as Executors to the use of the dead And if Executors having Assets do wast it or pay Debts or Legacies in any other order or method than the Law hath prescribed they must answer it out of their own Estates 5. Debts due to the Testator be not Assets in the Testators hands so as to charge him for the payment of Debts and Legacies until Judgement and Execution had or they be otherwise recovered received or released by him And an Executor paying the just value of the Testators Goods to the Creditors may retain the same Goods in his hands which nevertheless shall not afterwards charge the Executor as Assets But if question be concerning the value it is received by all that the
own use So that the Executor paying the just value of the Testators Goods to his Creditors may retain the same Goods in his hands which shall not charge the Executor as Assets Finally this is a sure Rule That where no fault is in the Executor there he shall not be bound to pay more for his Testator than the Testators Goods do amount unto 13. Action of Debt was brought against Executors the issue was whether there were Assets in the hands of the Executors the day of the Writ brought it was given in Evidence for the Plaintiff in the Action That the same day the summ of One hundred pound was paid to the Executors in the Prerogative Court and presently by the Order of the said Court the Executors paid the said One hundred pound to another Creditor of the Testator but the Opinion of the Court was in regard the money was once in the Executors hands that payment of it over by the Order of the Court of Prerogative was not to the purpose and therefore the same was adjudged to be Assets in their hands But yet it was holden That upon special pleading of such matter peradventure it might not be Assets in their hands to pay another debt When an Administrator compounds with one who hath a Judgement of One hundred pound for Sixty pound who offereth to acknowledge satisfaction upon Record and the other defers it to the intent to suffer it to stand in force to deceive a Creditor this shall not hurt the Creditor but he shall recover and the money remaining in the Administrators hands-shall be Assets notwithstanding such Composition If I devise Lands to my Executors for Three years for the payment of my Debts and I make Executors and dye this is Assets in my Executors hands But if I Devise my Land to be sold for the payment of my Debts and I make Executors and dye this is no Assets before the Lands be sold Also if an Executor doth make gain of the Testators money the same shall be Assets in his hands It is not requisite that every Assets be a thing in possession or once in the hands of the Testator for a thing may be Assets which was never in the Testators hands if those things come in lieu of the things which were in the Testators hands as money for Land or other Goods sold Also things in Action or Possession certain or uncertain if they be released are Assets the reason is because by such release is given away that which might have been Assets And therefore if Trespass be done to the Testator in his life-time for taking his Goods and he dieth and his Executors release all Actions the same is Assets because it might be proved to the Jury That had the Executors not released but had brought their Action of Trespass de bonis asportatis in vita Testatoris that they might have recovered Dammages which would have satisfied Debts or Legacies and therefore the release of Executors in such Case shall be Assets An Administrator may take the Goods which are given by the Intestate to defraud Creditors for that the gift is void and therefore they shall be accounted Assets Also if a man doth Administer as Executor and then takes Letters of Administration it is at the Election of the party to Sue him as Executor or Administrator If a Testator Mortgages a Lease for years and dies his Executors may redeem it with their own money and the Lease shall be Assets in their hands for so much as the Lease is worth above the summ which they paid for the redemption of it If a Debtee dye Intestate and the Ordinary commit Administration to the Debtor whereby the debt is extinct yet it shall be Assets in his hands as to debts because the Ordinary had no power to discharge the debt as was agreed per Curiam If a Feme Executrix to her former Husband take another to Husband to whom her former Husband was indebted the debt is extinct and shall not be Assets It was held by all the Justices That if a Feme Executrix hath a Term and she take a Husband who purchased the Reversion the Term is extinct as to the Feme if she survive yet in respect of all Strangers she shall account as Assets in her hands Debt against D. as Executor the Defendant pleads Plenè Administravit and issue upon Assets the Jury found that he Administred and had Assets in Ireland And whether that were Assets here they prayed the discretion of the Court and all the Justices besides Walmesley held that it was well found for they may find a thing in Ireland and when they find that he hath Assets that is sufficient and when they further say in Ireland it is idle and vain It was therefore adjudged for the Plaintiff Debt against the Defendant as Executor of J. S. he pleaded Fully Administred c. and upon a special Verdict it was found that J. S. made the Defendant his Executor being then within Age and thereupon the Ordinary committed Administration to A. and B. who Administred and they had in their hands when the Defendant came to his full Age of the Goods of the Testators Six hundred pound and the Defendant at his Age Proved the Will and then released to A. and B. all Actions And it was adjudged that it was Assets Anderson said The doubt was because it was uncertain what he released and for that only an account lyeth but here the certainty appeareth by the Verdict And Piriam said If an Executor doth release an account and it is not certain what he shall recover it is not Assets but if it can appear or be Proved that so much was due it is Assets For the Law presumeth he hath received so much as he doth release and the Plaintiff had Judgement Nota Rhodes said That in 17 Eliz. it was Ruled that where one made his Last Will and thereby willed That none should have any dealing with his Goods until his Son came to the Age of Eighteen years except J. S. that by this J. S. was Executor during the minority of the Son and that it hath been adjudged that when as one upon his death-bed said to his Wife That she shall pay all and take all by this she was Executrix Debt upon an Obligation against one as Executor of A. the Defendant pleads plenement Administravit and issue thereupon the Jury find a special Verdict That A. made E. his Executrix and died possessed of divers Goods which E. made a fraudulent gift of all her Goods to J. S. c. and continued in the possession of them and took the Defendant to Husband and died That the Defendant is possess'd of part of these Goods to the value of c. and paid Legacies and if those Goods should be found to be Assets in his hands they found for the Plaintiff and if c. then for the Defendant
is that no Action lyeth against the Executor of him who in his life-time carried away his Corn Hay c. without setting forth the Tenth and died before recovery had against him for the same although during his life the treble value were recoverable against him in an Action of debt and this holds true though the Testator were a Lessee for years so as his State came to his Executors The Law is the same and upon the foresaid Reason and Rule in Law if a Lessee for years commit wast and die no Action lyeth against his Executor for this wast Yet the Law is otherwise against Executors of Ecclesiastical persons in case of Dilapidations for if a Parson or Vicar do suffer the buildings of his Benefice to go to decay and dies his Executors are lyable by the Spiritual Law to the Successors Sute 4. An Executor shall not be charged with nor in respect of any other Goods than those which came to his hands after his taking upon him the charge of the Executorship or by vertue thereof And although the Executor of an Executor shall answer others to whom the first Testator was indebted as much as he shall recover of the Goods of the first Testator yet if that Executor did Alienate and Convert to his own use all the Goods which did belong to the former Testator in this Case no Action doth lye against the Executor of the Executor for Recovery of any debts due by the first Testator Likewise where A. makes B. Executor and B. makes C. Executor there the Goods which came from or were left by A. be not in the hands of C. lyable unto the Judgements had against B. Nor on the other side are the Goods of B. in the hands of C. subject to the Judgements had against A. And the like is to be understood of Statutes Recognizances and Bonds Also by the Laws of this Land an Executor shall not be charged by any bequest made by his Testator of the Goods that did belong to another man Indeed by the Civil Law it is otherwise for there it is lawful for the Testator to bequeath another mans Goods which the Heir at the Civil Law must buy or pay the value thereof if the Owner will not sell them 5. If a Woman in debt marry and dye before the debt be recovered against her though leaving to her Husband much more than the value of the debt yet is he not lyable in Law to pay one penny of her debts after her decease because he neither is her Executor nor Administrator nor came to her Goods by wrong Insomuch that a Woman indebted One thousand pound and having Leases and other immoveable Goods to the value of Three or Four thousand pound marrying with A. B. and then dye before the debt be recovered against her In this Case the Husband shall have all the value of his Wifes Estate and yet in Law not be lyable for her debts during her life he is lyable but not afterwards This seems a defect in the Law whereby Creditors are at a loss without remedy therefore let them sue in her life-time for Lex fit vigilantibus non dormientibus 6. If a man be indebted and dye Intestate or if the Executors of one who hath made a Will refuse to be Executors whereby the Goods do come to the hands of the Ordinary the Creditors may have a Writ of Debt against the Ordinary by the Stat. of West 2. cap. 19. and in this case he must be sued by the name of Ordinary But after Administration committed the Ordinary shall not be sued 7. An Executor may make himself chargeable of his own proper Goods either by Omission or by Commission By Omission as when he being sued upon an Obligation or the like there being at the same time a Judgement in force against him or the deceased and hath but just enough in his hands to satisfie that Judgement yet doth not plead this in Bar of the present Action but suffers the Plaintiff to recover against him in this Case he must satisfie the second debt out of his own Estate Or by Commission as when he doth something that is a Wast in him and thereupon a Devastavit is return'd against him in which case he must answer as much as he wasted out of his own Estate or when a sute being against him he pleads such a false Plea therein as tends to the perpetual Bar of the Plaintiffs Action and yet being of a thing within his certain knowledge as when he pleads he is not Executor nor ever Administred as Executor and upon tryal of this issue it be found against him that he is a lawful Executor or Executor in his own wrong in this Case he must satisfie the debt out of his own Estate whether he hath Assets or not and the Execution had upon the Judgement shall be levied upon his own proper Goods Likewise if an Executor or Administrator sued doth plead to the Action Plenè Administravit and upon Tryal it be found against him in this Case if he have any of the deceaseds Goods left in his hands the Execution shall be of them but if he have none such then the Execution shall be and he shall be charged for so much as is found to the value thereof to be in his hands of his own proper Goods But where one is sued upon a Promise made by the Testator and he plead Non Assumpsit to it or where he is sued upon a Deed made by the Testator and he plead Non est factum to it or the like and these issues upon Tryal are found against him or when he shall confess the Action or suffer a Judgement to pass by default against him or plead any vain Plea In all these Cases he shall not be chargeable of his own Estate neither shall the Judgement and Execution in these Cases be de bonis Propriis but de bonis Testatoris only for the Debt and de bonis Propriis for the Costs And yet if an Executor or Administrator shall intreat a Creditor to forbear his debt until a day and then promise to pay him by this promise he hath made himself chargeable as for his own debt howbeit it shall be allowed him upon his account And if a debt be recovered against one who dieth before Execution sued leaving Goods sufficient to satisfie then shall not the Land descended to the Heir be charged therewith nor by like reason any Land conveyed after Judgement Or if a Creditor be made Executor by his Debtor and pay himself part out of the Goods he cannot sue the Heir for the rest because the debt cannot be apportioned but otherwise he may 8. In all Cases where a man is charged of his own Estate and the Execution be de bonis Propriis the Judgement is ever de bonis Testatoris And the method or form of proceedings in such cases is this viz. The first Execution is against
Executors if they have no further Authority or Interest than only to sell the Land and distribute the money for then the Frank-Tenement doth descend to the Heir and the Executors are bound to perform the Devise in convenient time But if the money for the same be to be distributed in pios usus then the Frank-Tenement is in the Executors after the death of the Testator and not in the Heir So that in such Case he may not Enter as in the former Yea if Lands Devised to be sold be not accordingly so done by the Executors the Law will then enforce them to sell the Lands so soon as they can because the mean Profits in that Case taken before Sale are not Assets to charge the Executors as compellable to pay debts of the same But if a man Devise that his Executors shall sell his Land there they may sell it at any time for that they have but a bare and naked Power and no Profit 4. If many Executors be named in a Will wherein Power is given to them to sell Land for any purpose and some of these Executors refuse the Executorship In this Case the other Executors who stand to the Will may dispose and sell the Land without the consent of the other who so refused the Executorship But Note That an Executors Executor cannot sell the Land of the first Testator who by his Will gave Power to his Executor to sell the same unless there be a Co-Executor surviving 5. Although the surviving Executor may sell the Land which a Testator doth bequeath to his Executors to be Sold because as the State so the Trust shall survive yet in case the Executors in that part of the Will impowering them to Sell be particularly Named each by his particular Name and one of them refuse and dye before Sale made then the Survivors cannot sell the same because the words of the Testator one of the Executors refusing or being dead cannot be satisfied unless the Testator express in his Will a Power to the Survivors or Survivor of them or to such or so many of them as take upon them the Probate of the Will without which words the Executors being particularly Named it is otherwise But if the Land to be Sold be left to his Executors generally not particularizing their Names then Sale made by some of them only in this Case is good for that now by the Statute of 21 H. 8. cap. 4. it is Provided That where Lands be Willed to be sold by Executors though part of them refuse yet the residue may sell But here Note That they may not sell to him that so refused because he is yet a party and privy to the Last Will and remains an Executor still so long as any Co-Executor lives For it was the Opinion of the c. Note that by the Opinion of the Justices if a man makes his Last Will and Wills that his Executors shall sell his Land and Devises his Land to his Executors to be sold and one of the Executors refuse the Administration of the Testators Goods before the Ordinary the other Executors cannot sell the said Land to the Executor so refusing the Administration by the Statute 21 H. 8. cap. 4. For that Executor notwithstanding such his refusal is still a party and privy to the said Testament and is one of the Executors at his pleasure It was adjudged in B. R. between Vincent and Lee where a man devised That his Sons in Law should sell the Reversion of his Land without mentioning their particular Names if some of them dye that the others may sell Upon a special Verdict the Case was A man seised of Lands in Possession and of other Lands in Reversion upon an Estate for life Deviseth by his Will in writing That his Executors should have all his Lands Free and Customary in D. for Ten Years to perform his Will and the Will of his Father with the Profits thereof and that after the Ten Years his Executors or any of them should sell it for the payment of his Debts He makes Three Executors and dies The one dies the Ten Years expire Tenant for Life dies the Two surviving Executors sell the Land c. Spurling This Sale is not good 1. The Reversion of the Estate for Life passed not because he had other Lands there to satisfie the words and it was not his intent to pass it because there were not any Profits to be taken thereby 2. The Sale by the Two surviving Executors is not good for it ought to have been by all or by one of them only But the Court resolved to the contrary in both wherefore it was adjudged accordingly The same Case is Reported by Anderson thus viz. J. T. brought Ejectione Firmae against J. W. and others The Defendants pleaded Non Culp whereupon Special Verdict was given the which in effect was That one Smith being seised of Twenty Acres of Land made a Lease thereof to one for Life and being also seised of Sixty other Acres made his Will in manner following viz. I Will and Charge my Executors and every of them to fulfill my Fathers Will and this my Last Will in which were divers Legacies In Consideration whereof I give all my Lands and Tenements to my Executors and they to take the Profits thereof by the space of Ten Years and those Ten Years ended I will the same to be sold by my said Executors or by one of them And made Three Executors and died after the Tenant for life died one of the Executors died also The Two Executors Enter on the Sixty Acres and receive the Profits thereof for Ten Years but Entered not on the Twenty Acres but after the Ten Years ended the surviving Executors sold the Twenty Acres to J. H. who Entered and Leased the same whereon the Action is brought It was said That the Executors did not Sell but it was adjudged that the surviving Executors might Sell For it appeared that the Intention of the Testator was That the Land should be sold for the performance of his Will which the surviving Executors might Execute and consequently do what the Testator appointed in order thereunto CHAP. XXVIII Of Debts Legacies and Mortuaries and the Executors method in the payment thereof 1. Debts to be paid before Legacies 2. The Executor may pay himself first 3. What Debts to the Crown shall have priority of payment before Debts to the Subject 4. Judgements upon Record to be satisfied next after the Debts due to the Crown 5. Next after Judgements upon Record Debts by Statutes or Recognizances are payable before meer Personal Debts 6. After Statutes and Recognizances Debts due by Obligations or penal or single Bills are to have the next precedency in payment 7. Debts upon Specialties Bonds and Bills are to be satisfied before Debts upon a simple Contract 8. After Obligations Debts due upon simple Bills Merchants Books and other Specialties are
is due because it was not the Testators mind to Bequeath any thing to him but rather to lessen or diminish it if any thing had been given him For a Deminution Ademption or taking from in such case hath its operation to evince by how much the less not by how much the more the Legacy is due But if the Testator say I Bequeath 100 l. to A. B. beside my Field Long-acre In this case Long-acre is presumed to be Bequeathed as well as the Hundred Pounds And whereas it is heresaid That a false Demonstration doth not vitiate or make void the Legacy Understand it thus That is if the Demonstration be altogether and totally False But if it be False only in part Then the Legacy is void only for that part and it may hold for another part To this may be added Case If the Testator say I Bequeath to A. B. the Hundred pounds which I have in my Chest there is nothing due to A. B. and the Legacy is void if it be not in his Chest because he that so says doth not Bequeath a Hundred pounds simply but the Hundred pounds in his Chest And these words which are in his Chest doth demonstrate That the Testators meaning was to Bequeath rather by way of certainty as to the Species or Corpus then as to the quantity 4. If the Testator say I Depute such a thing to A. B. Or I Assign such a thing to C. D. This is a good Bequest or Legacy Yet withall here observe That a Legacy may be Given or Bequeathed only by Signs or Becks or Nodds by the Head Hands or Eyes But this is more clear and less Dubitable when a Legacy in such manner is left by a Testator who by Reason of the violence and surprize of some Disease is deprived of his Speech at least of speaking articulately though not deprived of his Speech totally The greatest doubt is concerning him who though he can speak articulately yet doth Bequeath by Signs or Nodds for some are of Opinion That such cannot dispose of a Legacy in that manner But this is commonly rejected as the more unsound Opinion Now a Legacy is then understood to be left in this case when the Testator being asked by some one whether he will leave a Hundred pounds or such a thing to â—imself or some other doth not Answer to the Question but by Signs or by Nodding his Head shewing a pleased or displeased Countenance or by other motion of the Body doth plainly discover his Will and Pleasure therein 5. Suppose the Testator speak only after this manner viz. If my Son A. B. Marry with C. D. let not my Executor give him a Hundred Pounds whether from these words by the contrary sense is the Legacy of a Hundred Pounds understood to be left to his Son A. B. under the contrary Condition viz. If he do not Marry with C. D. This is held in the Affirmitive Yet this would not hold if he should appoint an Executor after this manner and say If my Son A. B. Marry with C. D. let him not be my Executor or one of my Executors The Reason is because an Executor may not be Instituted nor the Office of an Executor inferred only by Conjecturals Again a Legacy taken away under a Condition is not only from thence understood to be given under the contrary Condition because a Legacy due only under a Condition may not be argued or inferred from a contrary sense by force of a bare ademption but by force of a Legacy formerly so Bequeathed as may not be understood to be taken away though the Condition fails but only when the Condition takes place or effect 6. In Cases doubtfull touching Legacies and the Testators Mind or Meaning as to the same Recourse must be had rather to what he doth Express by Words then what he doth imply by any Acts or Deeds when there appears any discrepancy between them Hence suppose a Parent having divers Sons and Daughters doth appoint them all his Executors and to his eldest Daughter doth deliver all his Keys and his Signet Ring which he commonly used And having delivered these to her to keep doth withall Order and Assign That his said Daughters Son or Servant be it expresly either shall have such Apparel Moneys or other things as he hath in his Care and under his Custody Whether in this case doth the Parent seem to Bequeath to that eldest Daughter whatsoever is under Lock shut up or Sealed The Answer is in the Negative 7. Lastly The Testators words may possibly be such and carry in them such a sense by direct implication as whereby the Legacy may casually become greater then at first was apprehensively express'd by him For Explanation whereof add to the former this one Memorable Case more Suppose a Legacy be given by a Testator to the Son of him who is indebted to the Testator adding withall these Words viz. I should or I would leave him more if his Father had paid me what he owes me In this case it is held That if afterwards that Son happen to be his Fathers Executor he is by these Words freed from that Debt which his Father owed to the Testator If there be a Devise of a Legacy to one and his Assigns though the Devisee die before Payment yet his Administrator shall have it as his Assign Amersam said to Moore That Popham now Chief Justice of England held in his Readings That if one by a Letter express his Will for the Disposal of his Lands it is sufficient For it was the Case of one Weast who went beyond Sea and wrote such a Letter wherein he will'd That his Lands should go in such manner And it was held a good Devise CHAP IV. Of Conditions and their Resemblancies Incident unto Legacies 1 A False Necessary Demonstration doth vitiate a Legacy but not a False Snperfluous Demonstration 2. The Parity of Operation between a False Cause and a False Demonstration and whether a False Cause doth vitiate a Legacy 3. Whether a False Condition doth vitiate a Legacy 4. The Difference between Modus and Conditio 5. In what Cases the Word if doth not amount to a Condition 1. WHat Conditio is or by what Words it is express'd or implyed with the several Kinds thereof incident to Testaments hath been formerly hinted at And as a Condition relates to Legacies It is such a Quality added or annexed to the Devise or Legacy as whereby the effect thereof is suspended till some future Event whereon it depends doth come to pass For in the Bequeathing of Legacies as well as in the Appointing of Executors there is for the most part either That which the Law calls Conditio or Modus or Causa or Demonstratio The two former whereof refer to the Time to Come The two Latter to the Time Present or the Time Past And a Demonstration is instead of
whereof he dyed actually Possessed or Interessed in Expectancy in his own and not in anothers Right nor in Joynt-Tenancy with another saving in some certain Cases in the Law specially excepted are Deviseable As now also are Lands Tenements and Hereditaments whereof some are Deviseable by Custom as Gavelkind and Burgage Tenure others by virtue of certain Statutes But more specifically first as to Chattels Real all Leases in Lands or Houses either for Years or Years Determinable upon Life or Lives or by Extents Statutes or Recognizances or Rents not Rents reserved by the Inheritor yet the Arraerages of them also Likewise Commons Advowsons Tithes Faires Markets Profits of Leet and the like in the Testator for Years and all such Creatures as a Termer hath in a Warren Park Pond Dove-house or the like in the Testator for Years Secondly as to Chattels Personal all Debtors taken in Execution Captives Apprentices all Cattle of all kinds Creatures naturally Tame or being otherwise are by Act reduced thereto as Hawks reclaimed or the like also Hounds Greyhounds Spannels Mastiffs Ferrits and the like also all Merchandable Goods and Commodities whatever Likewise Ships and other Vessels Naval with their Guns Rigging Tackle Apparel Furniture and Provisions Likewise Weapons for War Books Musical Instruments and the like Also Corn whether in the Ground Field or Barn And Trees Fell'd or not Fell'd being Sold from the Inheritance of the Ground or excepted by the Seller of the Inheritance of the Land Also all other Grain as Corn Also Hops Saffron Hemp and the like whether on the Ground or in the House Likewise Hay and all Fruits gathered but not Grass ready to be cut for Hay nor Fruits on the Trees but such as are seperate from the Inheritance therefore not Garden-Fruits in the Ground or not seperate from it Also Bills Bonds Mortgages Statutes and the like Also Money Plate and Jewels Likewise all Householdstuff Implements and Utinsils not fixed to the Freehold All Coaches Carts Waggons Plows and the like with their Appurtenances Likewise Desks Cabinets Trunks Chests and Boxes Excepting such as contain only the Evidences of the Inheritance and have used so to do Also all Linnen Bedding Pewter Brass and Iron that is Moveable and not fastened to the Freehold as aforesaid Therefore not such Coppers Cesterns or Furnices nor Locks and Keys Waynscot or Window-glass Finally here Note That Things in Action as Debts or the like are Deviseable so are Obligations and Counterparts of Leases Likewise Uses not Executed by the Statute of Uses but remaining at the Common Law And though Actions altogether uncertain are not Deviseable yet possibilities and uncertainties in divers cases are Deviseable 2. In and by the Question Whether a Testator may Bequeath any thing which is anothers and not his own is meant and intended any thing wherein neither the Testator nor the Executor nor the Legatary hath any just Propriety or which doth not of Right belong to either of them Now in order to the Resolution of this Question according to the Civil Law discrepant from the Common Law in this point the known Distinction is That if the Testator did certainly know the thing Devised to belong unto another and not unto himself at the Time when he Devised the same Then such Devise is good and the Executor if there be Assets sufficient is to purchase the same and Deliver it to the Devisee Otherwise it is in case the Testator were Ignorant thereof and supposed it to be his own unless the True Owner consent to the Legacy or that it was Bequeathed to Pious used And in case the Owner thereof will not Sell the same at least not at any reasonable Rate the Executor is to pay the Legatary the just value thereof 3. Suppose a Testator doth Bequeath something that is his Executors In this case the Legatary shall have it whether the Testator did or did not know it to be his The Law is the same though there be Co-Executors and the thing so Bequeathed belong only to one of them But in that case they shall all bear a proportion to be allowed them in Assets but if Assets fail the Legacy fails also 4. If a Testator Bequeath to A. B. the same thing which did appertain to A. B. in his own proper Right at the Time when the Testament was made it is a void Devise yea though A. B. should afterwards alienate the Thing so as that the property thereof were out of him at the Time of the Testators death 5. Notwithstanding what hath hitherto been said according to the Civil Law yet by the Common Law the Goods and Chattels that are another Mans are not Deviseable and therefore if one Man gives or devises another Mans House it is a void Devise So also if one Devise the Things that by special Custom of some Places as the Heir-looms do belong to the Heir this Devise is void for it is not Devisable from him 6. The Law with us is so far from countenancing a Devise of what is another Mans that it doth not allow the Goods and Chattels which the Testator himself hath joyntly with another to be Devisable and therefore if there be Two Joynt-Tenants of Goods and Chattels as when such Things are given to Two or Two do Buy such Things together and one of them Devise his part of the Things to a Stranger This Devise is void Insomuch that if in this case the Testator make the other Joynt-Tenant his Executor the Will as to this is void and he shall not be charged as Executor for these Goods but he shall have them altogether by Survivorship Nay the Goods and Chattels which the Testator hath but not in his own Right but in Right of another are not Devisable And therefore an Administrator cannot Devise the Goods and Chattels he hath as Administrator for such Devise is void Howbeit an Executor may appoint an Executor of the Goods of the first Testator which an Administrator cannot do CHAP. VII Of Lands Deviseable by Will 1. Whether Lands are Deviseable what Lands and how much thereof 2. What things may be Bequeathed under a Devise of Lands and what not 3. What Persons incapable of Devising Lands 4. Who may be Devisees or what Persons may take by a Devise of Lands and what not 5. What kind of Testament sufficient for a Devise of Land and what not 1 LAnds Tenements and Hereditaments held in Gavelkind are Customarily Devisable by Will So likewise are Lands held in Burgage-tenure whereof the Will may be only Nuncupative and without Writing and into which the Devisee after the Testators death may enter without any Livery of Seysin thereof made unto him yet this shall not prevent Survivorship in case of Joynt-Tenancy in such Tenure And though by the Common Law of this Realm Lands Tenements and Hereditaments are not Devisable yet now by Statute they are if held in Socage
all Devisable and Two parts of Three though held in Knight-service But then the Will must be in Scriptis not Nuncupative Now though Land be thus Deviseable partly by Custom partly by Statute yet there are certain persons incapable of Devising Lands and there are certain Lands incapable of being Devised as appears by what follows in this Chapter 2. As Lands are now Devisable so there are certain Things in some certain cases that pass by way of Bequest by and under a Devise of Lands As thus A Man Seized of Land Devisable Buildeth a House thereupon the House is Devisable the Law is the same as to a Rent-charge de novo created Also a Man Disseisee of Land Deviseable Deviseth to the Disseisor in Fee in Recompence of a Release which the Disseisor made unto him This is a good Devise Also where a Man hath Land in Right of his Wife and he granteth parcel of it to another and after Deviseth the Residue to another This also is good Likewise where a Man hath a Seigniory to him descended of the part of his Mother and after the Tenancy descendeth unto him of the part of his Father both being Devisable and he not having any Issue In this case he may make Devises to several persons that is the Seigniory to one and the Tenancy to another The Lord Dyer also saith That a Termor of Land which is not Deviseable erecting a Furnace and fixing it in the midst of a House in the said Land may Devise this Furnace Also that where a Man is Seized of Land Deviseable and Deviseth totum statum suum to one and his Heirs This shall be a good Devise for the Land Likewise where a Man deviseth primam vesturam seu tonsuram prati which is Deviseable it is good and the Law is the same as to Trees growing and to grow for ever Also Tenant in Fee-simple or in Fee-taile may Devise the Corn though the Land be not Deviseable but as to Trees in that case the Law is otherwise Also a Man Seized of a Mill may Devise the Runner Stone but not the under Stone unless the Mill it self be Devised Likewise a Man Seized of a Common granteth a Rent out of the Land although that the Land be Deviseable yet that Grant is void and by consequence a Devise thereof Nor is an Advowson in gross Deviseable nor any other Thing which lyeth not in Tenure but a Mesnalty or Seigniory is Deviseable because they lye in Tenure And if the Husband Devise the Corn upon his Wives Land and dyes This is good whether the Corn were Sowen before the Marriage or after 3. The persons not qualified to Devise Lands by Will are such as These viz. A Bishop may not Devise the Land of his Bishoprick but of the Arrearages of the Rent of the Bishoprick he may make a Devise by Testament The Law is the same as to a Deane or Parson of a Church Also the Master of an Hospital cannot Devise the Lands of the Hospital nor the Arrearages of Rent issuing out of the same In a word Spiritual Persons Arch-Bishops Bishops Deanes Arch-Deacons Prebends Parsons Vicars or any Member of a Corporation may not Devise the Land or Goods which they have in right of their Churches or Corporations For the Head or any of the Members of a Corporation cannot make a Testament or a Devise of such Lands or goods they have in Common because they are to go in Succession Also an Infant of the Age of 16. Years Seized of Lands Deviseable who may Alien it by the Custom yet he cannot make a Testament or a Devise thereof or if an Infant maketh a Will of his Land within Age and dyeth after that he cometh to full Age making no Revocation This is not a good Will And yet although an Infant until he be of the Age of 21. Years can make no Devise of his Lands Yet it is held that by special Custom in some places where Land is Deviseable by Custom they may Devise it sooner Also a Woman under Covert cannot make a Devise of her Land with or without her Husbands consent neither to her Husband nor to any other Yet of the Goods she hath as Executrix to another she may make an Executor without his consent but of them she can make no Devise either with or without his consent because they are not Deviseable and if she do Devise them the Devise is void Touching such as are Born both Deaf and Dumb The Lord Dyer says They may make a Will of their Land by Signs Though others Affirm That a Man that is both Deaf and Dumb and that is so by Nature cannot make a Testament but that a Man that is so only by Accident may by Writing or Signs so also may a Man that is only Deaf or Dumb whether by Nature or Accident Also an Alien Born and not Denizon'd cannot make a Testament of his Lands yet if an Alien Purchaseth Land in Fee and maketh a Will and after the King maketh him a Denizon after he dyeth his Will is then good as to his Lands or Goods Also a Traytor Attainted from the Time of the Treason committed can make no Devise either of his his Land or Goods for they are all forfeited to the King yet a Pardon from the King restores him to a capacity of dying Testate as to both Likewise a Man Attainted or Convicted of Felony cannot by Testament Devise either Lands or Goods for they are also forfeited but if he be only Indicted and die before Attainder he is then Testable as to both or being Indicted will not Answer upon his Arraignment his standing Mute may possibly preserve him a power of Devising his Lands And although the Testament of a Felo de se be void as to his Goods and Chattels yet as to his Lands it is good So likewise although a Person Outlawed in a Personal Action cannot so long as the Outlawry doth continue in force make a Testament of his Goods and Chattels yet of his Lands he may not so of Persons Outlawed for Felony the Law is the same as to a Man Attainted of a Praemunire It is otherwise if a Man be only Excommunicated 4. Regularly all Persons who may be Grantees may be also Devisees Insomuch that a Devise of Lands is good within the Statute of Wills even to such persons as to whom a Legacy by the Civil Law is void except in certain cases such as Hereticks Apostates Traytors Felons Excommunicates Out-laws Bastards unlawful Colledges Libellers Sodomites manifect Usurers and Recusants Convict It is a Rule That the Devisee must be capable of the thing Devised at the Time of the Devisors death if it be then to take effect in Possession or if it be a Remainder he must be capable of it at the Time when the Remainder shall happen otherwise the Devise is void If so then a Devise to an Infant
Wife came and demanded the 20 l. and none ready to pay it Whereupon the Husband and Wife brought a Writ of Devise and Recovered In this Case it was Resolved were the 20 l. Rent or a Sum in gross That by the bringing of the Writ of Dower the Wife of the Devisor had lost all the benefit which was to come to her by the Devise because the said Rent was Devised to her in Recompence of her Dower so that it was not the meaning of the Devisor that the Wife should have both In the Time of Queen Mary Benloes Serjeant moved this Case A Man Seized of Lands and Tenements in London devised them by these Words viz. I Will and bequeath unto my Wife A. my livelihood in London for Term of her Life and that by this Will the Lands in London pass to the Wife by this Word Livelihood Note for Brook Justice said That it was in ancient Time used so in divers places of this Realm and had been taken for an Inheritance Unto which Dyer also agreed A. having Two Sons by Two Wives devised his Land to I. his Eldest Son and his Heirs after the death of his Wife to whom he devised them for her Life The Question was Whether the Son should take them by Devise as a Purchasor or as Heir at Common Law by descent The Court held that the Devise was void and that it was not in the power of the Son to make Election to take by descent or by Purchase but he must of necessity take the Land as the Law directs which is by descent And it is against a Maxime of Law to give a Thing to such a person to whom the Law gives it if it had not been given A Man made his Will in these Words viz. I give and Bequeath one half of my Lands to my Wife and after her death I give all my Lands to the Heirs Males of any of my Sons or next of Kin. In this Case it was held That the Devise was void because of uncertainty and the words being in the disjunctive and we ought not to frame a Sense upon the Words of a Will where we cannot find out the Testators meaning Likewise it hath been adjudged That Lands devised to a Mans Issue was uncertain and therefore such Devise void If a Man hath in his Occupation several Farms together and then doth Devise one of the Farms called D. and all the Lands to the same belonging the other Farms shall not pass with it although they be occupied altogether If a Man doth Will and Devise That A. and B. his Feoffees shall stand Seised and be Seised to the use of I. S. for his Life the Remainder over c. when in Truth he hath no Feoffees It is a good Devise to I. S. by reason of the Intention Or if a Man make a Feofment to his own use and afterwards Devise That his Feoffees shall be Seised to the use of his Daughter A. who in Truth is a Bastard it is a good Devise of the Lands by Intention Three Brothers are of one Father and Mother the middle Brother Seised of Land Devisable giveth this by his Testament Propinquiori fratrisuo It seemeth that none of them shall have it Note it was held by the Justices That if a Man Seised in Fee of a Mannor and Lands Deviseth the same by his Will to his Son and afterwards in another part of the same Will deviseth a Third part of the same Lands to another of his Sons That they are Joynt-Tenants of the Lands And so if a Man in one part of his Will deviseth his Lands to A. in Fee and afterwards by another Clause in the same Will he deviseth the same Lands to another in Fee they are Joynt-Tenants Between B. and P. the Case was this I. W. being Seised of the Mannors of W. and C. in Socage made his Testament devised the Two Mannors in Form following viz. The Mannor of W. to the Eldest Son of R. F. his Cousin and his Heirs and further he devised the other Mannor to M. W. during her life and if she dies and then any of my Cousin F's Sons Living then I will my said Mannor of C. to him that shall have my Manner of W. R. F. had Two Sons G. and I. G. enters on the Mannor of W. and the said M. enters on the other Mannor After G. dies without Issue I. enters on the Mannor of W. and alienates the Fee thereof Afterwards M. dies I living The Question was Whether I. ought to have the M. of C. or not The Court agreed That he could not have it for that he was not such Person as was named or limited to take by the Will for that he had not the Mannor of W. at the Time of the decease of M. and therefore not the Person intended by the Will The Case was That R. P. Seised of divers Lands in A. and having Issue Four Daughters B. I. F. M. made his Will 27. Eliz. in Writing and thereby all his Land in A. he devised to B. and I. his Daughters and made them his Executrices and after in 33. Eliz. Purchased other Lands in A. which are the Lands in Question and after one I. S. came to the Devisor and desired that he would Sell unto him those Lands which he lately Purchased And he said No they shall go with my other Lands in A. to my Executrices Afterwards in 34. Eliz. he fell Sick the Will was read unto him and he said nothing thereto but then gave divers Legacies of Goods to others and caused them to be written and annexed in a Codicil thereto and dyed Whether these Lands newly Purchased shall pass to the Executrices by that Will was the Question viz. Whether by those words used to a Stranger or the annexing of a Codicil to the Will being only concerning Goods be as a new Publication of his Will to make these Lands to pass c. First It was agreed by the Council on both sides and by the Justices That if the Devisor after the Purchase of that Land had made new Publication of his Will and shewed his Intent that those Lands should pass it had been a good Devise of them For the Words in the Will are all his Lands in A. which are apt enough and sufficient to carry them and he could not have added more apt words thereto But afterwards all the Justices Gawdy absente held that it is a new Publication of his Will and sufficient by the words to I. S. For that shews his intent sufficiently and the Will writ hath words sufficient And Fenner held That the annexing of the Codicil thereto is a new Publication as to it For therein he Affirmed That it should be his Will at that Time But the other Justices doubted thereof because he doth not shew thereby any intent That this Will should be for his Purchased Lands nor that he then
8. A Man Seised of a Messuage holden in Socage in Fee Devised the same by these words I Devise my Messuage where I dwell to A. B. and her Assigns for 10. Years and A. B. shall have all my Inheritances if the Law will In this Case the Devise in Fee of the Messuage is good and by the general words of the Will all his Inheritances do also pass 9. If a Man Devise Lands to one for ever there he hath a Fee for such an Estate might be conveyed by Act Executed But if he further Devise That if the Devisee do such an Act that then another shall have the Land to him and his Heirs the same is void for when as he hath disposed of the Estate in Fee to one he hath not power after in the same Will to dispose the same to another it being a Rule in Law That such an Estate which cannot by the Rules of the Common Law be conveyed by Grant Executed in his life time by Advice of Council learned in the Law such an Estate cannot be Devised by the Will of a Man who is presumed to be void of Council 10. A Man having Lands in Fee-simple and goods to the Value of 5 l. only Devised to his Wife all his Estate paying his Debts and Legacies his Debts and Legacies amounting to 40 l. It was Adjuged in this Case That all his Lands did pass by the Devise and that the Devisee had a Fee-simple in the Lands the word Paying enforcing it for they are to be paid presently which cannot be if the Lands pass not in Fee And if a Man Deviseth all his Rents It was held That all his Lands do pass 11. Note That by intendment of Law a Devise shall be for the benefit of the Devisee and not to his prejudice As if Land to the Value of 3 l. per annum be Devised to A. and that A. shall pay out of it 50 s. per annum In this Case A. hath but an Estate for life for he may pay it out of the Profits of the Lands and is sure to be at no loss But if it be Devised to B. for life the Remainder to A. paying 50 s. per annum out of it In this Case A. hath a Fee-simple by Implication because after the Payment thereof A. may dye before he can receive satisfaction for the same out of the Profits of the Land and therefore such Devise shall be a Fee-simple because the Law intends that the Devise was for the benefit of the Devisee 12. Note also That if a Man hath Lands in Fee and Lands for Years and he Deviseth all his Lands and Tenements the Fee-simple Lands pass only and not the Lease for Years 2 If a Man hath a Lease for Years and no Freehold and Deviseth all his Lands and Tenements the Lease for Years passeth 3 That if one Deviseth his Lands which he hath by Lease to his Executor for life the Remainder over that there ought to be a special Assent thereunto by the Executors as to a Legacy otherwise it is not Executed 13. A. Devised his Lands in London to his Son and his Heirs after the decease of his Wife and in Case his Daughter should Survive his Wife and his Son and his Heirs that then the Daughters should have it for Life and after their death I. and R. should have the same and that they should pay 6 l. 16 s. yearly to the Company of Merchant-Taylors to be disposed of to Charitable Uses In this Case three Points were Argued 1 Whether the Wife had an Estate for life by Implication of the Will And it was Resolved That she had 2 Whether the Son had a Fee-simple or Fee-tail And it was Resolved That he had a Fee-tail by Implication of these words viz. if his Daughters Survive his Wife and his Son and his Heirs whereby it is plainly implyed That the Heirs there intended are the Heirs of his Body and not his Heirs in Fee for so long as the Daughters live the Son could not dye without a Collateral Heir 3 What Estate I. and R. have after the death of the Daughters And as to That it was Resolved That they have a Fee-simple by Reason of the Annual Payment of Money and it is not to be regarded what Annual Value the Land is of over and above the Sums they pay for every Sum of Money paid or payable doth cause the Devisee to have a Fee-simple And Coke Chief Justice said That a Devise to A. and his Successors is a Devise of a Fee-simple without the word Heirs because it implyes a Fee-simple although it wants the express words Between L. Plaintiff and B. Defendant L. Seised of Land in Fee Devised it unto Two Persons Equaliter and to their Heirs Whether this made them Joynt-Tenants or Tenants in Common was the Question It was holden by the whole Court That they were Joynt-Tenants and not Tenants in Common A Man Seised of Lands Devised them by his Testament to his Wife to dispose and imploy them for her and his Sons at her own Will and Pleasure And it was held by Dyer Weston and Welch That she had a Fee by such words as if he had Devised the Lands for ever For the Construction of Law supplies the defect in these words of the Devisor according to his meaning And it was held by Dyer and Welch That the Estate in her is Conditional because these words ea intentione make a Condition in every Devise but not in a Feofment Gift or Grant unless it be in Case of the King And these words do amount as much as to say she should not convey it away to a Stranger but keep it and give it to his Sons S. Seised of Land in Fee holden in Socage and Devisable in Gavelkind Devised it to his Feme for her life paying 3 l. per annum to T. his Son during his life and that he should take but Two Load of Wood for Fire-boot And if she dyed before the said T. then he Devised all his Lands to R. his Son paying to the said T. 3 l. per annum and paying to such one of his Sisters 20 s. and to another Sister 20 s. The Feme dyes R. enters The Question was what Estate R. had by this Devise And it was Adjudged he had a Fee For when he Devised it to his Feme for life expresly c. and to R. generally without limiting the Estate and apppointed him to pay to T. 3 l. per annum during his life That carries in it an Intendment that he should have Fee especially when his Father therein further willed That his Son R. should pay two other Sums in Gross and none of them to be out of the Profits it is by Intendment and by Implication a Fee wherefore upon the first Argument it was Adjudged for the Defendant for they said That these Things which have been so often Adjudged ought
and that this doth but set forth the Time when the Estate of A. B. shall begin and that the Intent of the Testator is That his Heir shall have it until that Time The Reason of the difference is because a Man is bound to provide for his own not so for a Stranger and so the Law presumes what Nature doth teach 6. If one Devise his Land in this manner viz. I give my Land in D. to A. B. to the intent that with the Profits thereof he shall bring up my Child or my Children or to the intent that with the Profits thereof he shall pay to I. M. 10 l. or to the intent that out of the Profits thereof he shall pay yearly 10 l. By these Devises A. B. hath only an Estate for life albeit the Payments to be made be greater than the Rents of the Land Otherwise it is in case the Sum of Money is to be paid presently and not appointed to be paid out of the Profits of the Land in which case A. B. should have a Fee-simple in the Land 7. If the Father of A. be Tenant for life of Land the Remainder to A. in Fee And A. devise the Land to his Wife Rendring for her natural life 5 l. to the right Heir of the Father of A. by this Devise the Wife of A. hath an Estate for life after the death of his Father 8. Land was Devised to Husband and Wife and after their decease to their Children they then having Issue a Son and a Daughter In this case the Husband and Wife have but an Estate for Term of their lives the Remainder to their Children for life and no Estate Tail for the intent of the Testator here shall be construed according to the Rules of the Common Law and by the Common Law the Husband and Wife have but an Estate for their lives with a Remainder to their Children for their lives 9. The Son Seised of a Remainder in Fee after the death of his Father who was Tenant for life devised the same by these Words viz. I Devise to D. my Wife the Lands which I have or may have in Reversion after the death of my Father paying therefore yearly during her life to the right Heirs of my Father 40 s. and dyed his Father living It was the Opinion of the Court That no Estate passed by this Devise but for Term of the life of the Wife and that she should not pay the 40 s. until the Reversion did fall after the death of the Father 10. A. Seised of divers Lands in A. B. and C. the Lands in C. being in him by Mortgage forfeited Devised the Lands in A. and B. to several Persons and then adds this Clause in his Will All the rest of the Goods Chattels Leases Estates Mortgages whereof he was possessed he devised to his Wife after his Debts and Legacies paid made his Wife his Executrix and dyed The Wife entered into the Mortgaged Lands and devised it to the Defendant and his Heirs and dyed The Question was whether the Fee passed to the Wife by this Devise by the Name of all his Estate Mortgages c. It was the Opinion of the whole Court That an Estate for life only passed unto her and not a Fee by Implication of the general words in the Will 11. Note That there is a difference when one Deviseth his Term for life the Remainder over and when a Man Deviseth the Land or his Lease or Farm or the Occupation or Use or Profits of his Land For in a Will the intent and meaning of the Devisor is to be observed and the Law makes construction of the Words to answer and satisfie his intent and puts them into such order that his Will shall take effect And when a Man deviseth his Lease to one for life it is as much as to say He shall have so many Years in it as he shall live and that if he dyeth within the Term that another shall have it for the Residue of the Years And although at the beginning it is uncertain how may Years he shall live yet when he dyeth it is certain how many Years he hath lived and how many Years the other shall have and so by a subsequent Act all is made certain A Man made his Will in this manner Item I give my Mannor of Dale to my second Son Item I give my Mannor of Sale to my said Son and his Heirs what Estate he had in the Mannor of Dale was the Question It was held by Dyer Weston and Welch That in the first he had but an Estate for life for that it is as much as to say as if he would give his Mannor of Dale to him for his life for that as much is included therein without saying His Heirs And that Item seems a new Gift to a greater degree in the second place to make amends for the other Brown e Contra and that the Item is a Conjuntion Copulative and that the word Heirs expressed in the latter Clause extends to both the Mannors But if the Word Heirs were put in the Gift of the former Lands it would be otherwise Dyer if in the first place or Clause there were not any person named but that the words were Item I give the Mannor of D. Item I give the Mannor of S. to I. K. and his Heirs there and in that Case it would refer to both the Mannors W. C. by his Will Devised a Messuage in these words viz. I give to A. L. my Cousin the Fee-simple of my House and after her decease to W. her Son The Judges held That A. L. had an Estate for life and her Son a Fee-simple in Remainder And so it was adjudged R. D. Seised in Fee of a House and Possess'd of Goods made his Will in these words viz. The rest of my Goods Lands and Moveables whatsoever after my Debts Legacies and Funeralls paid to my Three Children I. T. and M. equally to be divided amongst them And it was Adjudged That they have an Estate only for life in the House and are Tenants in Common not Joynt-tenants CHAP. XII Certain Cases in the Law touching Devises of Leases or for a Term of Years 1. In what Case the Word Shall is taken for Should in Devise of a Term. 2. A Devise of Lands for 99. Years may be only for no more of that Term then the Issue Male of the Devisee shall continue 3. The Devise of a Term to one and his Heirs shall go to the Devisees Executors or Administrators and not to his Heirs 4. Chattel-Leases and Leases for Years pass not by a Devise of all his Lands and Tenements 5. By a Lease for Years Devised for Life doth pass the whole Term yet is it not an Estate for Life 6. The whole Interest of a Lessee in his Lease-Lands doth pass by a Devise of his Lease Term Farm Profits Tenure or Occupation thereof as
well as by any other words 7. The Residue of a Term is as the Term it self 8. A Man may Devise such an Estate by Will which he cannot make by Act Executed Or he may Create an Interest by his Will which by Grant or Conveyance in his life time he could not do 9. That may be the Devise of a Lease for Years in Law which doth not seem to appear such in Fact 10. The whole Term though not named shall pass by a Devise where no other can pass by Implication 1. IF one Devise his Land unto his Executors until his Son shall come unto the Age of 21. Years the Profits to be imployed towards the performance of his Will and when he shall come to that Age that then his Son and his Heirs shall have it By this Devise the Executors shall have it until he be of 21. years of Age and if he die before that time the Executors shall also have it until the time he should have been 21. Years of Age if he had lived so long and the word Shall in this case is taken for Should Likewise if one Devise his Land to his Executors for the payment of his Debts and until his Debts be paid by this Devise the Executors have but a Chattel and an uncertain Interest and they and their Executors shall hold it until the Debts be paid and no longer 2. If one Devise his Land to A. B. and the Heirs males of his Body for the Term of 99. Years it seems that by this Devise A. B. hath but a Lease for so many Years if the Heirs Males of his Body shall so long continue and that for want of Issue Male the Term of Years shall expire And in this case the Executor or Administrator not the Heirs Males of A. B. shall have it after his death 3. If one possessed of a Term of Years Devise the same to another and his Heirs or his Heirs Male by this Devise the Executors or Administrators not the Heirs of the Legatee shall have it So that if a Lessee for Years of Land Devise all his Interest therein to his Wife if she live so long and after her death if any part of the Term be to come Devise the same to A. B. his Son and to the Heirs of his Body in this Case and by this Devise the Executors or Administrators of A. B. and not his Heirs shall have it 4. If a Man Devise all his Lands and Tenements in D. yet Leases for Years do not pass by these words for by Lands and Tenements is intended Frank-tenements or Free-hold and not Chattels 5. If one hath a Lease for Years of Land and Devise it to A. B. for life by this Devise the whole Term is Devised and A. B. shall have the whole Term if he live so long and yet A. B. shall not have an Estate for life by this Devise So likewise the Law seems to be the same upon a Grant by Deed made in that manner And if a Man possessed of a Term of Years of Land Devise his Term or his Lease or the Land it self by a Devise in either of these words the whole Term doth pass A Term of Years is Devised to the Church-wardens of the Church of D. and to their Successors This is not good but for Goods so Devised the Law is otherwise A Man who hath a Term Deviseth the Land to one and his Heirs the Devisee dyeth and hath Executors his Heirs shall have the Land and not his Executors The Law is otherwise if the entire Term were so Devised 6. If a Lessee Devise his Lease or his Term or his Farm or his Profits Tenure or Occupation thereof by either of these Devises his whole Lease and all his Interest in the Land is bequeathed as well as by any other form of words But if a Man Devise his Land only for so many Years as his Executor shall name it seems this Devise is not good Yet if it be for so many Years as A. B. shall name and he name a certain Number of Years in the Testators Life Time this is a good Devise 7 A Man possessed of a Term of Years may Devise all the Residue of that Term of Years that shall be to come at the Time of his death And if a Testator having only a Term of Years in certain Lands doth Devise the said Land to A. B. and doth not say for what Time it seems that by this Devise the whole Term is devised unless the Testators Intent doth appear to be otherwise 8. A Man possessed of a Term for 40. Years by his Will Deviseth the same to I. S. after the death of his Wife and that the Wife should enjoy it during her life and that I. S. should neither Devise it nor Sell it but leave it to descend to his Son and in the mean Time my Will is That my Wife shall have the use thereof during her life yielding 10 l. Yearly to I. S. during her life at Two Feasts and made his Wife Executrix and dyed The Wife entered and paid the 10 l. Yearly according to the Will In this Case Three Points are Resolved 1 That I. S. doth not take by way of Remainder but by way of Executory Devise And a Man may Devise such an Estate by his Will which he cannot make by Act executed And that the Case is no more but this That after the death of I. S. the Wife should have the Residue of the Term. 2 The Devise is good being but a Chattel which may vest and devest at the pleasure of the Devisor 3 That there is no difference when one Deviseth his Term the Remainder over and when a Man Deviseth his Land or his Lease or the Use or Occupation or the Profits of his Land That a Man by his Will may Create an Interest which by Grant or Conveyance he cannot Create in his life Time 9. A. Devised his Lands to his Daughter and her Heirs when she came to the Age of 18. Years and that the Wife should take the Profits of the Land to her Use without any accompt to be made until the Daughter come to 18. Years and made his Wife his Executrix and dyed provided the Wife should pay the old Rents and find the Daughter at School the Wife enters proves the Will takes Husband and dyes It was found that all the Conditions were performed and that the Daughter was within the Age of 18. Years It was Resolved in this Case That it was a Term for Years in the Wife and a good Lease 10. A Man was Lessee for 40. Years of a House and by his Will gave the House to I. S. without limiting any Estate That he should have in it It was the Opinion of the Court That he should have the whole for no other Estate in the House either for Life or at Will shall pass by Implication or for one Year
or Years and therefore the whole shall pass to the Devisee A Man possessed of a Term of Years Devised the same in these words viz. The residue of my Goods Moveable and Immoveable I give to my Son John whom I make my Executor and to him I give my whole Years that I have in my Farm of M. and if he die I give it to my Daughters John the Executor and Devisee proveth the Will claiming the Lease according to the Will and dyeth Intestate His Administrator for good Consideration Selleth the Lease that remains Whence the doubt or Question was whether the Daughters or the Assignee should have the Lease The Case was referr'd to the Two Chief Justices and Justice Walmesley who all agreed That the Assignee should enjoy the Lease and not the Daughters Q. Whether a Devise to them in such manner be void One made a Lease for life after Leased the same to A. for 99. Years if he so long lived to Commence after the decease of the Lessee for life And if A. dyed during the said Term of 99. Years or the Lease otherwise determined and after the death of the Lessee for life then the Lessor granted for him and his Heirs that the Land should remain to the Executors of A. for 20. Years Lessee for life dyes A. Leased for 20. Years Rendring Rent and dyes Intestate B. takes his Administration and brings Action of Debt for the Rent It was Adjudged That it doth not lye for it seem'd to Gaudy and Yelverton That the Contingent of 20. Years was never Vested in A. But if A. had made Executors he might take by way of Purchase Executors being in name of Purchase As in Cranmers Case 14. Eliz. Dyer But if it had been limited to the Executors for Payment of the Debts of A. or the like then by the intent apparent there would be an Interest in A. and in the Executor for the use of A. as Popham and Fenner agreed in point of Law as to an Action of Debt A Man made his Will in this manner viz. I have made a Lease for 21. Years to I. S. paying but 20 s. Rent And it was held That it was a good Lease by the Will For that Word I have shall be taken in the Present Tense as is the word Dedi in a Deed of Feofment A Man Seised of a Mannor part in Demesnes and part in Lease upon Rent Suit and Service Devised by his Testament to his Wife during her life all his Lands in Demesnes and also by the same Testament did Devise to her all his Services and high Rents for 15. Years and further by the same Testament did Devise all his Mannor to another after the death of his Wife And it was Agreed by all the Justices That the last Devise took not effect for any part of the Mannor till after the death of the Wife and that the Heir after the Expiration of the 15. Years and during the Wives life shall have the Services and Chief Rents If a Man possessed of a Lease for Years of Land Devise the same to one for Life the Remainder to another although the first Devisee hath the whole Estate or Term in him and no Remainder can depend thereon at Common Law yet it is a good Devise to the second Devisee by way of an Executory Devise If certain Lands be Devised to one he cannot take them without the delivery of the Executor Or if a Man be possess'd of a Lease for Years of Land and Devise the same to another the Devisee cannot have it or enter upon it without the Executors or Administrators Consent CHAP XIII Law-Cases touching Devises of Reversions or Remainders 1. What Devise of a Reversion is good and what Remainder may be Devised 2. As the Limitation so the Devise of a Remainder after a Fee is void 3. In what Case the Devise of a Remainder of a Chattel-real may be void 4. The Devise of a void Limitation is a void Devise 5. A Devise in Remainder of Goods is void 6. In what Case the Devise of a Remainder over in Fee after Lease for Life made by Executors is void 7. The Difference between a Remainder Entail'd by Devise and Entail'd by Deed. 8. A Remainder Devised to a Church accrews to the Parson of that Church 9. A Refusal in one to take by a Devise shall not prejudice another in Reversion or Remainder 10. How the Devisors Daughters Issue without naming her shall have the Devised Remainder before the Issue of his Sons 11. A Termer of a 100. Years to come Deviseth it to one for Life the Remainder over it is a void Remainder 12. A Devise of a Remainder in Fee after a Lease which Devise is made by him in Remainder is a void Devise if the Lessor Re-enter 13. Several Cases wherein he in Remainder may Devise his Remainder 14. Fee-simple Devised to one the Remainder cannot be Devised to another albeit the first Devise were but Conditional 15. A Term of Years by way of Remainder is Devisable but a Devise by way of Entail with Remainder over is void 16. Lessor may Devise the Reversion of Land for Life notwithstanding a Feofment in Fee 17. Remainder of a Rent-charge in Fee may be Devised to one where the Land out of which the Rent doth arise is Devised to another 18. A Devise may be good for the Reversion of a Term where not for the Rent 19. The Devise of a Remainder may be good where yet an Estate Tail shall precede 20. He in Remainder shall take presently where the Devisee for Life is incapable of taking by Devise 21. Though a Man cannot Devise to himself yet he may Devise a Remainder to his own right Heirs 22. A Man may Devise a Reversion by the Name of all his Inheritance or Hereditaments 23. Devises of Remainders to the next of Blood 24. Where the Devise of a Remainder after the Remainder makes the former Remainder but an Estate for Life 1. IF a Man Devise his Land to B. C. for life the Remainder to the next of Kin or next of Blood of B. C. this is a good Devise of a Remainder Or if a Lessor Disseiseth his Lessee for life and makes a Lease for life to another for Term of life of the first Lessee the Remainder over in Fee though the first Lessee enters yet he in the Remainder may Devise his Remainder 2. If one Devise his Lands to A. so as he render 20 s. per annum to B. and if he fail thereof then his Estate to cease and to remain to B. this Devise is good but the Limitation of the Remainder is void because a Remainder cannot be limited after a Fee Therefore if a Man makes a Lease for Years upon Condition that if the Lessor disturb the Lessee within the Term that the Lessee shall have the Fee and maketh Livery accordingly and after the Lessor doth disturb the Lessee for
in Case of Lands Conditionally devised to one and his Heirs for ever or for life the Heir of the Devisor shall keep the Land till the contingent Condition happen to take effect 2. If one Devise Land of the value of 100 l. per annum to A. for life the Remainder to B. paying 50 l. to C. by this Devise B. shall have the Fee-simple of the Remainder upon Condition 3. If one Devise his Land to his Wife for her life and if she live till his Son come to the Age of 25. Years that then he shall have the Land and if she die before he comes to that Age that then A. B. shall have it till his Son come to that Age. A. B. dies before the Wife and after she dies before the Son comes to the Age of 25. Years In this Case the Executors of A. B. shall not have the Land till the Son comes to the Age of 25. Years 4. A. Seised of Lands in Fee had Issue Six Sons and one Daughter and Devised the said Lands to I. S. for 90. Years if the said I. S. and G. his Wife or any of them should so long live the Remainder to P. his Eldest Son and the Heirs Male of his Body the Remainder to these other Sons the Remainder to his Daughter Provided that if the said P. his Son or any of the Sons of the said Devisor or any of the Heirs Males of their Body should endeavour by any Act to Alien Bargain or Discontinue then after such Attempt or Endeavour and before any such Bargain Sale c. were Executed that the Estate of such person attempting c. should cease as if he were naturally dead and that then the Premises should descend remain and come to such person to whom the same ought to come remain and be by the intent and meaning of his Will and dyed P. Levyed a Fine of the Lands he in the next Remainder entered and claimed the Reversion by force of the Devise It was Adjudged in this Case That the Conuzee had the Reversion in him and might maintain an Action of wast because the Proviso of Restraint in the Will of A. was void and repugnant to Law and a Proviso Condition or Limitation ought to defeat the whole Estate and it cannot continue it for part and defeat it for the Residue 5. A Copy-holder of Lands in Borough-English having Three Sons and one Daughter Deviseth his Lands to his Eldest Son paying to his Daughter and every one of his other Sons Five Pounds within Two Years and surrendred to the use of his Will The Eldest Son was admitted and did not pay the Five Pounds within Two Years In this Case it was Resolved 1 That although the yearly Profits of the Lands for Two Year did exceed the Money to be paid yet the Eldest Son had a Fee-simple 2 Although this word Paying in the Case of a Will makes a Condition yet in this Case the Law shall Construe this unapt word Paying a Limitation For if it should be a Condition the same should descend to the Eldest Son and then it should be at his pleasure whether the Daughter or Brothers should be paid or not and therefore in this Case the Law should judg the same a Limitation of which the youngest Son should take advantage 6. A Man Devised Lands to his Wife upon Condition that she should bring up his Son at School c. and that after the death of his Wife the Land should remain to his second Son in Fee and dyed The Wife entered the Condition was broken the Eldest Son after his full Age entered for the Condition broken in this Case it was held 1 That a Condition might be annexed to a will by the Stat. of 32. H. 8. of Wills which gives liberty to a Man to Devise for the advancement of his Wife c. That a particular Estate may be upon Condition though the Remainder be without Condition 3 That he in the Remainder should not take advantage of the Condition but the Heir because he is prejudiced in the Inheritance by the Devise 7. If a Man make Two Men his Executors Proviso that one of them shall not Administer his Goods the Proviso is void because it restrains the Authority which was given by the first part of the will and agrees not with the Law for by Law every Executor may Administer the Goods And such was the Opinion of Baldwin and Egglesfield But Fitzh conceived the Proviso to be good for that he might bring an Action although he did not Administer 8. A Man Seised of Tenements in London Devised the same to Two Persons upon Condition that they should pay to his Wife 10 l. per annum issuing out of the said Tenements at Two Feasts and if the Rent be behind by the space of Six Weeks being demanded that it should be lawful for the Wife to distrain It was held a good Condition and that if the Rent be behind yet the Wife cannot distrain before a demand of the Rent but the Heir of the Husband might enter for the condition broken though the Wife did not demand the Rent A Man Devised his Land to his Younger Son when he should accomplish the Age of 24. Years upon Condition that he should pay 20 l. to the Daughter of the Devisor and if he shall die before the Age of 24. Years then his Eldest Son shall have the Land upon Condition that he pay the said 20 l. and if both his Sons failed that the Land should remain to his Daughter and dyed The Younger Son entered after 24. Years of Age and did not pay the 20 l. to the Daughter the Eldest Brother entered upon him It was Resolved by the Court in this Case That the same was a Limitation and not a Condition and therefore the entry of the Elder Brother was not lawful 10. A Man made a Lease for Years upon Condition That if the Lessee shall Demise the Premises or any part of it other than for one Year to any person or persons then the Lessor and his Heirs to re-enter the Lessee afterwards Devised it by his Will to his Son It was held by the Court That it was a breach of the Condition 11. If Lands be Devised upon Condition of superstitious Uses as to find a Chaplain to say Mass or the like superstitious Uses mentioned in the Will the Remainder over for the like Uses and if they in Remainder perform not the Condition then to forfeit their Estate and the Lands to remain to the right Heirs of the Devisor In this Case it was held That although the Land was Devised but Conditionally to find a Priest to say Mass yet that it was within the Stat. of 1. Ed. 6. Cap. 13. whereby the Lands were vested in the Crown because the said Uses were superstitious Uses to which the Condition of the Devised Lands did refer F. C. Seised of the Mannor of S.
made his Testament in writing and Devised the Mannor to his Wife for the Term of 30. Years in these words viz. For and to these Intents and Purposes following viz. I will and my mind and intent is That B. my Wife shall yearly Content and Pay out of the Issues and Profits of the said Mannor to Sir A. I. and others 30 l. And further Wills That the other Legacies given in his Will should be paid by her and therein Devised divers Legacies And further Willed That his Wife should be bound to Sir A. and others for the performance of his Will F. C. the Devisor dies the Wife enters on the Land c. takes the Profits and thereof pays the Legacies but not to Sir A. and others c. Whereupon the Heir Enters as for breach of Condition It was held by the Justices that it was no Condition but a Declaration of the Testators intention for to what end or purpose should the Wife be bound if it were a Condition But Judgment was not given in the Case for the Parties agreed CHAP. XV. Touching Devises of Rents 1. Rents Issuing out of Lands are as Devisable as the Land it self so as it be the Testators own Land 2. A Grantee may not Devise the Rent which he hath only for another Mans Life 3. Rent to be Issuing out of a Common is not Devisable 4. Several ways how Rents may be Devised 5. The Devise of the Reversion of a Rent upon a false suggestion is a void Devise 1. A Seigniory Rent or the like is Devisable as Land is and will pass without the Atturnment of the Tenant So that a Man may Devise a Rent de novo issuing out of Land or a Rent issuing out of Land that is in esse before And therefore if one make a Lease for Life or Years Rendring Rent the Lessor may Devise this Rent Likewise if a Rent be granted to one and his Heirs the Grantee may Devise this Rent Also a Man that is Seised of Land in Fee may Devise any Rent out of it at his pleasure But a Man cannot Devise a Rent out of another Mans Land that is none of his own nor out of that which he hath not and therefore if one Devise Twenty Pounds to be issuing out of his Mannor of Dale when in Truth he hath no such Mannor that Devise is void 2. If Rent be granted to one Man for the life of another it seems the Grantee may not Devise this Rent but that on failure of other disposal thereof in the Grantees life Time the Terre-tenant shall hold it as an Occupant And if one Devise a Rent of any certain Sum out of his Land to be paid quarterly and say not how long the Rent shall continue this is but an Fstate for life of that Rent 3. If a Man Seised of a Common granteth a Rent out of the Land although that the Land be Devisable yet the Grant is void and by Consequence the Devise 4. If a Tenant for life make a Lease for Years Rendring Rent and after the Tenant for life Surrender to the Lessor all his Right and then the Lessor Devise this Rent this is a good Devise during the life of the Lessee for life Or if a Man make a Lease for life Reserving Rent to him and his Heirs and the Lessor Devise this Rent this also is a good Devise of the Rent otherwise it is if he Reserve the Rent to him and his Assigns Or if a Lessee for Term of Ten Years make a Lease over for Term of 40. Years and the Lessor confirm the Estate Reserving a Rent to him and his Heirs and after by his Will Devise the Rent in Fee this also is a good Devise of the Rent after the Ten Years but not before 5. A Man Seised of a Rent makes a Deed reciting that whereas I. S. holdeth the said Rent of his Grant for Term of life he grants the Reversion of the said Rent after the decease of I. S. to the Grantee and his Heirs in Fee and in Truth I. S. had nothing in the Rent the Grantee Deviseth this Rent this is no good Devise of the Rent If the Husband make a Leafe for life to the Daughter and Heir apparent of his Wife being Covert Rendring Rent and the Wife-Mother die and the Husband Devise the Rent this is a void Devise of that Rent In an Action of the Case upon Trover the Defendant justified and pleaded Rent granted to A. his Executors and Assigns for the life of B. out of Black-acre and shewed that A. was dead and that he as Administrator to A. distrayned for the Rent on Black-acre in Arrears after the death of A. and that he is to have it during the life of B. It was Adjudged That the justification was not good either for matter or manner for that after the death of A. the Rent determined and cannot come to his Executors or Administrators for it was not a Thing Testamentary but a Frank-tenement and nothing in the Grant to A. and his Heirs for the others life If Rent be granted out of Land Devisable by Custom the Rent may be Devised within the Custom for it is of the same nature with the Land CHAP. XVI Of Devises touching the Sale of Land by Executors or others 1. The mean Profits of Lands Devised to be sold are not Assets in the Executors hands unless the Testator shall specially so Appoint it 2. The Heir and not a stranger though appointed in the Devise shall take the advantage of a Breach of Condition annexed to a Devise touching sale of Lands 3. Where the Executors have only an Authority and not an Interest in the Lands Devised to be sold the Heir of the Devisor shall have the mean Profits thereof till it be sold 4. Otherwise where the Executors have an Interest in which case the Money or Proceed upon the sale but not the mean Profits shall be Assets in their hands 5. Several Devises touching sales of Land with or without the Assent of another 6. By the word Appurtenances shall pass in a Devise Lands commonly used with a Messuage 7. A Copy-holders Case of Devise of Land to his Wife 8. Where one who hath but an Estate for life and no Interest to sell may yet have an Authority to Appoint who shall sell the Lands Devised 9. In what Case relating to this matter a Prohibition may Lye or not 10. A Case of Law wherein one Executor alone where there are two can not sell the Land Devised 11. How a sale of Lands Devised to be sold may be void for want of sufficient Authority 12. In what case a Sale of Lands Devised to be sold may be made by one Executor where there are two Appointed by Name 13. Where there is an Interest as well as an Authority and Trust the Executor of the surviving Executor may sell the Lands of the first Testator Devised to be sold 14.
the Devise of a House with all things therein 32. The Difference between a Devise of a Chamber and the Devise of a Shop 33. The Devise of a Field carries also the Edifice erected thereon 34. The Civil Law where the Fee of Land is Devised to one and the Rents of the same Land to another 35. in what Case an error or mistake in the Testator may be a prejudice to the Legatee 36. A Legacy or Devise may be inferr'd as well from the Testators Intention as Expression 37. A Devise by Reason of an Omission of that whereof the Testator said he would make a description is not void 38. A Legacy to Two whereof one is not accrews in the whole to the other that is 39. Further Exemplifications of Law touching Devise of Houses altered burnt and re-edified 40. An Exception of a Thing which is not is no prejudice to the Devisee 41. The same thing Conditionally twice Devised by two Testators to several Persons how or in what Case good to either or not 42. By a Devise of ground doth pass the Edifice thereon albeit it were erected after the Devise made 43. How a Devise is to be apportioned where the Devisees are joyned in the thing Devised but disjoyned in the manner of Devising 44. A Devise of Lands by a certain Name carries all of that Name though otherwise distinct unless the Testator intended otherwise 45. Any words that do but plainly declare the Testators meaning may serve for a Devise 46. The Executor shall pay the Land-lords Rent for Ground in Lease the Fruit or Proceed whereof is Devised to another for the Term. 47. A mistake in the Testator only of the Scituation of the Lands Devised shall not prejudice the Devise 48. The difference between necessary and voluntary Alienations prohibited to Devisees by a Testator 49 A Tripartite Case in point of Alienation prohibited by a Testator 50. How the disjunctive Or in Legacies and Devises is frequently understood for the conjunctive And. WHere a Man is Seised of a House in Fee or of Land in Fee and may devise such House or Land in such case may Devise the Doors Windows Wainscot or the like Incidents of the House also the Trees and Grass growing upon such Land Otherwise it is with a Tenant in Tail for Life or Years in Houses or Land 2 If a man hath an Use that is not Executed by the Stat. of Uses but remains at the Common Law he may make a good Devise thereof And therefore if one possessed of a Term of years grant it over to another to the use of the Grantor he may Dispose this use by his Will for it is in the Nature of a Chattel 3. One that hath Money to be paid him on a Mortgage may Devise this Money when it comes If A. Enfeoffe B. of Land upon Condition that if B. do not pay A. 100 l. such a day that then A. may Re-enter In this case A. may Devise this 100 l. if it be paid and the Legacy is good albeit it be made before the day of Payment come 4. A Man cannot Devisc by his Will any Real Chattels that he hath only in right of his Wife nor the Obligations that are made to her alone before or during the Coverture nor the Chattels Real or Personal which she hath in right only of another as Executrix But all her own proper Goods and Chattels Personal and all Obligations made to them both during Coverture he may Devise by Testament 5. A Bishop cannot by his Testament Devise the Presentation of a Church that became void in his time yet if he or the Parson of a Church have the Advowson thereof in Fee and Devise that Two or Three of his Executors shall present at the next Avoidance this is a good Devise 6. By a Devise of Immoveables which are Chattels real do pass Leases Rents and the like and by a Bequest of Moveables which are Chattels Personal will pass Bonds and Specialties but Debts pass not by either of these Devises By Immoveables are understood not only the foresaid Chattels-real but also in some sense Trees growing on the Ground Fruit on the Trees Terms of Years and the like and by Moveables are Regularly understood all Goods both Actually Moving and Passively Moveable 7. If a Man Bequeath to A. B. all his Goods he shall thereby have the Testators whole Estate his Lands Tenements and Freehold excepted and thereby the Debts and Money If he Bequeath to him all his Chattels he shall have thereby all as in the former Case If he Bequeath to him all his Moveables he shall have all his Personal Goods both quick and dead and if he Beqneath to him all his Immoveables he shall have all the Testators Leases and all the Natural Fruits thereof as Grass on the Ground Fruit on the Trees and the like consequently Fishes in a Pond Pidgeons in the Dovehouse c. as Appurtenances to the Ground Devised as well as the Natural Fruits or Grass growing on the same 8. If a Man Devise all his Goods and Chattels to A. B. and die and A. B. die also before he hath proved the Testators Will in this Case the Administration of the Goods and Chattels of the said Testator shall be committed to the next of Kin of the said A. B. and not to the next of Kin of the said Testator because in this Case A. B. was the universal Successor 9. If a Woman under Coverture Devise her Land then publish and approve it after her her Husbands death when she is sole by this means that Devise which was Originally void is now become good But if she make and publish it during the Coverture albeit her Husband doth afterward die and she become sole yet this accident alone without a new publication after her Husbands death will not make that Devise good The Law is the same as to Goods and Chattels 10. In like Manner if an Infant within Age as to Lands or within Age as to Goods Devise the one or Bequeath the other and publish the Will and after he come to full and competent Age publish and Approve it again By this means the Devise or Legacy becomes good otherwise it is in Case he do not Publish and Approve it when he attains to Full and Competent Age. 11. Suppose the Testator doth Devise in this manner viz. I Will that my Executor shall pay 100 l. to A. B. by the Tenth day of March next after my decease and if otherwise then my Will is That my Executor shall Surrender to him all the Right I have in a Lease of my Ground called Black-acre and dies The Executor doth not pay to A. B. above 90 l. by the day Appointed In this Case A. B. restoring the said 90 l. to the Executor shall have the said Ground and he may detain the Money till he recover the Land 12. Suppose the Testator doth Devise the
Fruits of an Orchard or other Lands which at a Rent certain he hath taken to Farm for Seven Years who shall pay the said Rent the Executor or the Legatary It is Answered That the Executor shall pay it because it is a Personal Charge Or if he Devise certain Lands which he had lately bought but the whole purchase-money not paid at the Testators death the Executor and not the Devisee is lyable for the same But the Devise shall not take effect till the same be paid if there be no other Assets wherewith to pay it 13. A Man possessed of Three Fields whereof Two called Rushcrofts the one being of much better value then the other the third called Longlands doth Devise one of his Rushcrofts or Longlands which he will to A. B. and dies In this case A. B. hath his Election whether he will have one of the Rushcrofts or Longlands but if he chuses one of the Rushcrofts it shall be that which is nearest in value to Longlands 14. A Man made his Will and therein Devised to A. B. all the Lands which he had in the Tenure or Occupation of his Tenant C. D. Consisting of Meadow Pasture and Arrable Grounds Scituate about the Farm-house of the said C. D. and dies The Question was Whether other Pasture and Arable Grounds belonging to the Testator in the Tenure or Occupation of the said C. D. and by him Rented of the said A. B. but not Scituate as aforesaid were to be Comprized within this Devise In this Case it was Resolved in the Affirmitive The Reason is because the quality or Circumstance of the Place or Scituation is not here joyned with the Devise for any Restrictions sake but only by way of Demonstration 15. A Man bought certain Lands of A. B. with a Clause or Covenant of Redemption within a certain Time in the Nature of a Mortgage The Time of Redemption being Elapsed the Purchaser made his Will and therein ordered That his Executor should Restore the said Lands to A. B. paying what Costs and Charges the Testator had been at and Expended about the said Lands The Question was Whether the Mortgagor or Vendor now the Legatary or Devisee were in this Case obliged to pay the Redemption-money over and above the said Costs and Charges which the Testator had Expended about the Lands as aforesaid In this Case it is Resolved in the Negative viz. That the Devisee shall have the Land paying only the said Charges and without paying the Redemption-money 16. A. B. by his last Will and Testament makes his Two Sons C D. and D. B. the Joynt-Executors of all his Estate and dies C. B. for a certain Sum of Money Sells his Part or Interest in the said Estate unto D. B. his Brother After D. B. makes his will and therein Devises to the said C. B. all his Interest in the said Estate by his Father and dies The Queston was Whether C. B. by that Devise should have all the said Estate whereof the Two Brothers were made Joynt-Executors by their Father or only so much thereof as accrewed to D. B. by vertue of his Co-executorship In this Case the D. D. are somewhat divided but the prevailing Opinion is That C. B. by this Devise shall have no more then accrewed to D. B. by virtue of his Co-executorship because the other part of the Estate was his by Purchase and not by being Executor to his Father and the Property being altered by the Sale it ceased to be the Fathers Estate or any Estate to D. B. by the Father and became his own proper Estate by Purchase But the Question is put a little further as whether the said Devise shall be made good as the said part was when the Father dyed or as it was at the time of D. B. the Testators death In this it is Agreed That the said Devise shall be considered only as the Estate was at the Time of the death of the Devisor D. B. and not as it was at the Time of the death of his Father 17. A. B. being possessed of several Houses by Lease doth Devise Two of them in his last will and Testament unto C. D. such as he shall chuse or Two of them to C. D. which he will the rest to I. G. In this Case if C. D. refuse to take by this Devise and will chuse neither of the said Houses I. G. shall have them all 18. A. B. makes his Will and thereof C. D. his Son the sole Executor in which Will he appoints that a Fourth part of his Estate shall be given to the Poor in Case C. B. die without Issue C. B. Survives the Testator hath a Son makes his Will and therein Ordains That if his Son should happen to die Intestate and without Issue that then the Contents of A. B. his Fathers Will should be performed and dies leaving Issue a Son After the said Son of C. B. dies Intestate and without Issue In this Case In this Case some are of Opinion That the said Fourth part of A. B. the first Testators Estate is not due to the Poor because that general disposal which C. B. made in his Will ought to be understood only of such Things as might be claimed by the first Will and which could be due only by the same Others conceive That it is due to them in Case there were no other Legacies contained in the Will of A. B. which his Son C. B. was to see performed and discharged 19. If a Man doth Devise Land whereon is no House at the Time when the Testament was made but One is built thereon before the Testator dies in this Case the House as well as the Land shall pass by this Devise Likewise if a Testator Devise a Bond or Debt owving to him by some Goldsmith or Banker the principal whereof hath produced an encrease by the Interest thereof since the time of making the Devise In this Case by the Civil Law the Legatary shall have such Interest in the Bankers Hands as well as the Principal which accrewed by vertue of the Principal during the Testators life after the making of the Testament which by that Law holds true in all Credits producing an Interest or Accessory profit yet it is otherwise even by that Law as to annual Rents payable out of Land for therein the Civil doth agree with the Common Law That the Arrears of such Rents behind at the Testators shall go to the Executor and not to the Legatary to whom the Land is Devised 20. If the Legacy be not in being in rerum natura at the Time of the Testators death then neither the Thing bequeathed nor the value thereof is due to the Legatary but if the Thing Devised is only by any Impediment obstructed from being delivered in kind then the Devisee shall recover the true value thereof 21. If a Testator Devise in these words viz. I give
unto A. B. my Land called Blackdown which I value at 100 l. this estimation thereof by the Testator shall not alter the Condition of the Legacy as if thereby the Executor paying 100 l. to A. B. he shall be barr'd from having the Land in Case it be more worth On the other side if the Land be less worth then 100 l. the Executor is not obliged to supply that undervalue nor if it be more worth may he retain the overplus Or if the Testator say I give to A. B. my said Land and my Will is That if it be worth less than 200 l. that then my Executor shall make it up so much worth to him In this Case if happily the said Land be found to be more worth the Devisee is not obliged to restore the overplus-value 22. If a Testator doth appoint that his Executor shall Sell such Lands to A. B. at a Price certain limited by the Testator the Executor must abide by that Price which is so limited by the Testator though the Land be much more worth Likewise if a Testator doth by way of Condition to a Legacy enjoyn the Legatary to do some special Thing as the Repairing of a Church or the like which being finished the Reparations exceed the value of the Legacy In this Case none but the Legatary shall bear that overplus of Expence in the said Reparations And if an Executor be Appointed to give me such Lands or 100 l. In this Case if he doth not deliver me the Land I must have the 100 l. be the Land more or less worth 23. If a Testator Devise part of his Lands called Watermead to A. B. not expressing what part the Devise shall not be void by reason of uncertainty but A. B. shall have the one Moiety thereof And if the Testator himself had but a Moiety therein or other lesser part the Devisee shall have the one half of what the Testator had therein But if the Testator saith I give to A. B. that part of the House which I inhabited or was wont to make use of for my habitation if it be uncertain and cannot well appear which part of the House that was A. B. shall have the whole house so as no other than the Testator did inhabit or used to dwell therein 24. A man having several Houses in the City where he lives and others in other places saith in his Will I give one of my Houses to A. B. In this case A. B. shall not be excluded his Legacy by reason of uncertainty but shall have one of the Houses scituate where the Testator lived or if he saith I will that A. B. shall have one of my Houses he shall chuse which he will have But if the Testator say I will that my Executor give one of my Houses to A. B. In that case the Executor hath the election to give him which he please And in case the Legatary having the election makes more than necessary delays in determining his election the Ordinary at the instance of the Executor may fix him a time within which he shall finish the same in default whereof he may Decree the election to the Executor But if by the Testators Will the election be neither in the Executor nor in the Legatary but in a third person In such case that third person is to make the choice within one year next after he shall be thereunto required otherwise the election devolves to the Legatary whose choice in such case is not to exceed the Rule of Mediocrity And if the Legatary happen to dye before such election made by him his Executor shall have it 25. If a Testator doth by his Will appoint That his Executor shall within a certain time deliver into the right and possession of A. B. such or such Lands by name under the penalty of 100 l. In this case if A. B. the time being elapsed and the Land not delivered shall accept the penalty he may recover the 100 l. but not the Land But if he accept not the penalty he may recover the Land not the 100 l. 26. If a Testator in his last Will and Testament doth Devise in this manner viz. I give unto A. B. one of my Meadows or one of my Houses In this case the first choice is in the Legatary whether he will have one of the Houses or one of the Meadows But then the second election is in the Executor that if the Legatary chuse a House the Executor shall appoint him which he shall have 27. If the Testator Devise a House not expressing what House it is a uoid Devise if he had no House but if he had several Houses it shall be presumed to be that House wherein he usually dwelt if his intention appears not to the contrary And if the House Devised afterwards happen to be burned the ground whereon it stood is due and belongs to the Devisee But if it were pull'd down by the Testator himself and not re-edified it is otherwise for that implies a revocation of his mind and will But if a House Devised happen to fall in the life-time of the Testator the Legatary shall have the ground whereon it stood 28. Suppose there be a Mill joyning to the House which is Devised or it be erected at the end of the Wall of the House or Scituate at the end of the Orchard belonging to the House the Question is whether it shall pass to the Legatary with the Devise of the said House In this case if the Mill was built by reason of the House and to Grind for the use of the Family thereof it shall then pass with the House in the Devise thereof Otherwise if it were built to produce an Annual Rent or to Grind for any Strangers whatever unless it stand upon part of the ground of the very principal Mansion house and within the Precincts of the same 29. Suppose a man doth purchase certain Tenements of A. B. and other certain Tenements of C. D. with one and the same price and with the same Sum of Money and after doth Devise A. B's Tenements in these words viz. I do give and Devise A. B's Tenements as I bought them unto J. G. The Question is whether C. D's Tenements do also pass by that Devise It is Resolved in the Negative unless it doth appear by sufficient proofs that the Testators intention was to comprise the one under the Appellation of the other or unless the Testator used promiscuously to receive and place to Accompt the Rents of both in the name only of A. B's Tenements 30. If a man having two Dwelling-houses joyning together which have but one Kitchin or but one Stable in common to them both Devise one of these Houses the Kitchin and the Stable shall pass with that House they joyn nighest unto and through which the passage commonly is unto them
cedit Legato As we use to say Cujus est solum ejus est usque ad coelum 43. Suppose the Testator doth Devise one half of his Lands in Dale to A. B. and doth Devise the same half part of the same Lands to C. D. and doth Devise all his Lands in Dale to J. G. and so joyns them all in the thing and disjoyns them in and by the words In this case J. G. ought to have one Moiety of the Lands A. B. and C. D the other Moiety After C. D. dyes before the day of performance of the Devise by which means his part accrews to his Collegataries by way of Accression or as we say by way of Survivorship and not to his Heir nor Executor Therefore as J. G. had more in the Devise than A. B. so now he hath more than A. B. in that part of C. D. 44. A. B. Possessed of divers Lands and Tenements among which were certain Lands called Lillystones and so called time out of mind but in regard of its great Extent he did for the better and more Commodious Letting it to Farm divide it into two parts and called the one the Vpper Lillystones the other the Lower Lillystones A. B. makes his Will and therein gives divers Lands and Tenements to his Niece among which he gives Lillystones not saying whether the Upper or the Lower Lillystones The Question is whether his Niece shall have all the said Lillystones or onely one of the said divided parts thereof It is Resolved she shall have the whole unless the Executor of A. B. can prove the Testator intended her only one part thereof 45. A Testator makes his Son Executor and in his Will saith Let my Hop-yard at the lower end of my Orchard and my Ground in the Parish of D. suffice my Cosin A. B. It is a good Devise of the Ground and Hop-yard to A. B. So likewise if he had only said let my Cosin A. B. be contented with the said Ground and Hop-yard or with my House scituate in c. Note that in this case the person of the Devisee must not only as in all other Legacies be certain but also the Land Devised must by the Description of its scituation be reduced to an infallible certainty otherwise the Devise will be void 46. A. B. Rents certain Orchards at 20 l. per ann for the term of Seven years makes his Will therein gives the Fruit thereof for the residue of the term yet to come and unexpired unto C. D. orders his Executor to deliver him the Lease to suffer him to enjoy the Fruits of the said Orchards for during the term aforesaid In this case the Testators Executor shall pay the said Rent and suffer C. D. to enjoy the Fruits thereof otherwise the Legacy might be nothing worth or if Fruit fail worse than nothing 47. An Erroneous demonstration by a Testator of the scituation of Lands Devised by him shall not prejudice the Devise As thus The Testator in his Will saith I Devise my Lands of Cammerweli which are in Ireland unto my two Nephews A. B. and C. D. Also my Lands of Kirkaven which are in Scotland and dyes After the Testators death there are found certain Lands which belonged to him called Kirkaven but they are not in Scotland The Question is whether those Lands in the description of whose scituation the Testator was mistaken do belong to the Devisees It is answered in the Affirmative if it appear the Testator had any thoughts of Devising them at all 48. A Testator makes his Son Executor and in his Will Prohibits him from alienating or Mortgaging the Estate or any part thereof whereto he is entitled by such Executorship commanding him to preserve the same for his Children lawfully begotten and dyes The Son for 100 l. doth Mortgage or sell outright to A. B. such certain Tentments of the said Estate as his Father the Testator left at his death in Mortgage to C. D. for 100 l. and with the Proceed thereof pays off the said 100 l. to C. D. to whom his Father in his life time had Mortgaged the same The Question is whether the Sons Obligation or Alienation thereof to A. B. contrary to the Testators express command be good in Law It seems not because of the Testators Prohibition fortified with a Reason That he would have it left to his Children lawfully begotten but the Law is otherwise and ratifies the Sons Obligation or Alienation thereof to A. B. Because it was a necessary expedient and not of his voluntary choice the Law touching such Prohibitions extending only to voluntary not to necessary Alienations 49. A. B. makes his Will and therein Devises certain Lands and Tenements to his five Sons by Name under this Proviso or Condition That if either of them Alienated his part thereof to a Stranger that then that part so Alienated contrary to his Will should be and enure to the Crown for ever and dyes After Two of the Sons sell their parts to One of the other Three their Collegatories and dye He after makes A. B. a stranger his Executor gives him the said Two purchased parts and dyes The Question is whether the said Two parts belong to A. B. or to the surviving Collegataries that did not Alienate or to the Crown It is Resolved that they belong to A. B. and not to the Collegataries nor to the Crown Not to the Collegataries because the person of A. B. the stranger is not here to be considered but the person of the Purchaser who Devised it to him who according to the Testators mind was one of those to whom the Testator permitted or tacitely implyed a Sale might be made And it is only they not others that are prohibited to sell their own parts and therefore the parts which they purchase are not as those which they hold immediately from the Testator prohibited by the express command or tacite intent of the Deceased to be alienated to strangers Nor to the Crown because the Condition of the Devise viz. Alienation contrary to the Testators meaning without which the Crown is not entitled thereto is not existent for that the parts meant by the Testator were sold to their Collegatary and not to a Stranger to whom indeed they were afterwards Devised but not in derogation to the Testators sense and meaning because not the person of the Stranger Executor to the Purchaser as aforesaid but the person of the Purchaser himself is chiefly to be considered 50. Note That in a Bequest of Legacies the word or is not much a Note of Disjunction as of Augmentation comprehending both because in Disposition of Legacies the Law expatiates the Interpretation as far as it may have any consistency with the Testators mind and meaning and will take its measures from the utmost Latitude of his intentions For which reason if the Testator saith I give my City-house or my Countrey Farm to my Daughter
be certain though the Legatary dies before it comes the Legacy shall accrew to his Executors for in that Case the Legacy was due at the Testators death though not payable till that day certain be come But if the day or time be altogether uncertain the Legacy is then as if it were Conditional And the breach or non-accomplishment of a Condition in it self Lawfull and Possible doth either suspend or extinguish the Legacy And as to that frequent Condition relating to Marriage so commonly annexed to the Execution of a Legacy it is not Impertinent here to insert That albeit a Condition absolutely against Marriage is unlawfull yet not so if it be only against Marriage with such or such a Person or with such kind of Persons and therefore the Condition is good if the Testator gives his Daughter 100 l. under this Proviso That she Marry with a Merchant or a Merchants Son otherwise the Legacy to be void In which Case if she Marry first with a Merchant and after his decease with another who is not a Merchant nor a Merchants Son she shall loose her Legacy 26. Lastly The Legacy is but equivalent to a Cypher by the voluntary waiver and refusal of the Legatary declaring his dissent thereunto As also by the Actual and total destruction of the Thing it self Bequeathed for if neither the Quantity nor the Quality thereof can appear the Legacy is void Hence it is That the Bequest of a Debt is void if Payment thereof be made to the Testator in his life time otherwise if after his death it be paid by the procurement of his Executor But if the Testator himself doth exact the Debt the Legacy thereof is extinguish'd Otherwise if paid to the Executor by whose default if any other thing Bequeathed doth perish it shall be no loss to the Legatary nor any loss to him in Case the Legacy be something in general as a Horse or an Oxe not saying which or in Case the Legacy consist in Quantity as so many Bushels of Corn not saying of what Grain or in what Garner or Granary In which and other like Cases the Legacy is not void albeit the Thing so Bequeathed shall uttterly perish Upon Evidence in Trespass the Case was A. made his Will in writing and thereby Devised his Lands to E. H. and her Heirs and afterwards lying sick because the said E. H. did not come to visit him he Affirmed That E. H. should not have any part of his Lands or Goods It was the Opinion of the Court That it was no Revocation of the Will being but by way of Discourse and not mentioning his Will But the Revocation ought to be by express words that he did Revoke his Will and that she should not have any of his Lands given her by his Will Lands Devised by Will to one and after a Feofment thereof made by the Devisor to another the said Devise is Revoked by such subsequent Feofment As in the Lord Bourchers Case touching his Will made 23. H. 8. Note By all the Justices upon an Evidence to the Jury in an Ejectione Firme That if a Man hath a Lease and disposeth of it by his Will and afterwards surrenders it up and takes a new Lease and after dyeth That the Devisee shall not have this last Lease because this was a plain Countermand of his Will A Feme Sole was Seized of Lands in Socage and by her last Will Devised them to I. S in Fee and afterwards she took the Devisee to Husband and during the Coverture she Countermanded her Will saying That her Husband should not have the Land nor any other Advantage by her Will. It was Adjudged upon great deliberation that it was a Countermand of the Will the words being spoken after Marriage for the making of a Will is but the Inception thereof and takes not Effect till the Devisors death One Devised Lands to his Sister in Fee and after made a Lease to her for Six Years of the Lands to begin after his Decease and delivered it to a Stranger to the use of his Sister which Stranger did not deliver it to her in the Testators life time and she Refused and Claimed the Inheritance In this Case it was Resolved because the Devise and the Lease made to one and the same Person beginning at the same time cannot stand together in one and the same Person That it was a Countermand of the Devise But it was there Agreed by all the Justices That if the Lease had been made to any other than the Devisee they might stand together and the Lease should not have been a Revocation of the Will as to the Inheritance but only during the Term. In an Ejectione Firme upon Evidence to a Jury It was Resolved by the whole Court That if one maketh his Will in Writing of Lands and afterwards upon Communication saith That he hath made his Will but that shall not stand Or I will Alter my Will c. That these words are not any Revocation of the Will for they are words but in futuro But if he saith I do Revoke it and bear witness thereof hereby he absolutely declares to Revoke it in praesenti and it is then a Revocation And in this Case it was Agreed by the Justices That as one ought to be of good and sane Memorie at the disposing so he ought to be of as good and sane Memorie at the Revoking of it And as he ought to make a Will by his own directions and not by Questions So he ought to Revoke it of himself and not by Questions If a Man Devise 20 l. to the Poorest of his Kindred it is void by Reason of the uncertainty whom the Court shall judge the Poorest A Legacy of 20 l. given by a Testator to his Daughter to whom his Executor gave Bond in 40 l. for payment thereof according to the Will The Daughter takes Husband who sued the Executor in the Ecclesiastical Court for the Legacy The Ex-Executor pleaded payment according to the Bond and because the Ecclesiastical Judge would not allow the Plea the Executor brought a prohibition shewing by way of surmize the matter aforesaid Tanfield Serjeant moved for a Consultation because the Suit was for a Legacy which is of Ecclesiastical Cognizance And albeit the Executor pleaded Payment which is not there allowed yet he ought not to have a prohibition because Payment is a good Plea in that Court and if the Judge there will not allow it the other may appeal to the Superiour Judge and if this should be suffered in the Case of a Legacy then the Ecclesiastical Court should trie nothing But according to Gandy Fenner and Yelverton Justices the Surmize is good for the Executor by entring into Bond to the Daughter for Payment of the Legacy had Extinguish'd the Legacy and had made the 20 l. Devised a Debt Suable meerly at the Common Law and not
Joynt-Tenants in what cases p. 233 § ult p. 242 § 4 p 245. A nice distinction between-such and Tenants in Common p 242 § 4. To whom Goods in Joynt-Tenancy belong at the death of either Joynt-Tenant p 86. § 2. Such Goods are not Devisable p 223 § 6. Issue A Devise made in general to the Issue void by reason of uncertainty p 233 in prin The difference between Issue Born and not Born at the time of making the Devise in point of Entail or Joynt-Tenancy p 249 § 5. Jus Representationis what it signifies p 172 § 1. In the Line Transversall or Collaterall it holds only in the Brothers Children not in their Grand-children p 177 § 1. K. Kindred and Consanguinity how they differ p 170 § 3. Collaterall Kindred how far and to what degree they may succeed each other p 179 § 4. Kindred or of Kin to the Testator at the time of his death sufficient to take by a Legacy to his Kindred though they were not such when the Will was made p. 444 § 80. L. Lands Devisable by Will p 224 c. What and how much thereof Ibid § 1. What may pass by a Devise under that Notion Ibid § 2. By and to what persons Land is Devisable or not p 225 to 228 § 3 4. By what kind of Testament p 228 § 5. Lands may pass by Will where no Executor is named p 5 § 4. Lands may by the Common Law be Devised to whom Goods cannot by the Civil Law be Bequeathed p 226 § 4. A Devise of another mans Land void p. 228 § 5. Land twice Devised in the same Will to several persons how both may be good p 230 231 § 4. Whether Lands new purchased pass by a Will formerly made p 231 § 6 ult Leases for years pass not by a Devise of Lands if the Devisor had any Lands in Fee Ibid § 6. Customary Lands may pass by a Will without Writing other Lands not p 4 5 § 3. Lands Devised on a present Payment or on Payment out of the Profits thereof what different Estates they create p 254 § 6. Lands Devised with Limitations and upon Condition p. 266 c. Land Devised by a Coppyholder to his Wife p 274 275 § 7. Land Devised for life by the Husband to the Wife not for her Jointure no Barre to her Jointure p. 282 § 14. How the Devise of another mans Land may become a good Devise p. 228. § 5. Devises of Land void or not p 229 c. p. 441 § 47. Several Cases in Law touching Lands Devised p 288 c. Lambs Bequeathed understand such as are under a Year old p 441 § 54. Lease simply for Lives belongs neither to the Heir nor to the Executor p. 86 § 4. Lease made in trust by a Woman for her use who after Marries enures not to her Husband but to her Executor when she dies p 99 § ult Leases of Terms of Years Devised p. 256 c. Though Devised for 99 Years yet determinable upon one Life Ibid. § 2. Chattell-Leases pass not by a Devise of all the Lands p 257 § 4 By a Lease for Years Devised for Life doth pass the whole Term yet is it not an Estate for life Ibid. § 5. By what words a Lease and the Interest of the Lessee may be Devised p 257 258 § 6 The Residue of a Term is as Devisable as the Term it self p 258 § 7. A Devise of a Lease for Years may be in Law which doth not so appear in Fact p Ibid § 9. The whole Term though not named shall pass by a Devise where no other can pass by Implication p 259. § 10. Legacy what p 200. § 1. What Words or Expressions sufficient for a Legacy p 209 c. Whether the time of making the Testament or of the Testators death be the more considerable in Legacies p 202 203. § 3 p 227 § 4. In what Court Legacies are properly Recoverable p 204 205 § 4. The difference between Bequeathing a Legacy to one whenhe shall be of full Age and to one to be Payed when he shall be of full Age. p 281. § 12. Legacies and Devises in respect of Marriage p 279 c. What of her Legacy shall the Wife have if she Marry after her Election to the contrary p 280. § 8. Legacies between Baron and Feme p 279 c. Legacies grounded upon wrong Suppositions in the Testator inherent in the very Body and Substance of the Legacy it self do not oblige his Executors p 305. § 17. Several Sums Bequeathed to the same Party in two Instruments both otherwise containing the same Will the lesser only is due p 316. § 19. Legacy forfeited upon non-performance of some duty enjoyned p 446. § 92. Legacies referring to Debts and Cases in the Law touching the same p 321 c. They fall under four Heads p. Ibid. § 2. Legacies by Creditors to Debtors e Contra. p. 322. § 4 5. to § 10 A Legacy Bequeathed in fraudem Legis is void p 320. § ult A Legacy of a Debt is extinguish'd by payment of that Debt to the Testator p 324. § 11. Whether the Testators not having what he Bequeaths voids the Legacy p 330. § 8. The same Thing twice Bequeathed or Bequeathed unto two distinctly which of them shall have it p. 331. § 9. A Legacy given indistinctly to A. B. and there be two of the name who shall be preferred to the Legacy Ibid. § 10. If a Single Legacy be given only to one though it be Devisable yet it is not Dividable p. 332. § 15. ult Legataries who are incapable of being p. 206 207. § 2 A Legatary refusing his Office or Duty imposed on him by the Will though but in part looses his Legacy in the whole p. 316. § 16. In what case the Legatary shall have his Legacy presently though it be given him when he shall die p. 280. § 6. What the Legatary that Marries shall have when more is Bequeathed him in case he Marries not than if be doth Marry p. Ibid. § 7. The Legatary must expect the Executors delivery of his Legacy p. 440. § 39. How one may be a Legatary in Construction of Law only p. Ibid. § 42. Whether a Legatary-Executor may after Debts paid first satisfie himself p. 317. § 20. A Legatary if capable at the Testators death sufficient for the Legacy though he were not so when the Will was made p. 446. § 88. Letter from one friend to another sufficient to contain a Will or Devise p. 212. § ult p. 443. § 73. Letters of Administration in what case they may be granted p. 154 § 7. To whom p. 151. § 2. They may be granted in England by a Bishop of Ireland p. 155. § ult Whether they ought to be shewn in Court by Administrators in Actions brought by them p. 103 104. § ult Whether it be necessary to set forth in a Declaration by whom they were
Grantham fo 525. t Tract de Rep. Angl. l. 3. c. 6. u Swinb part 2. §. 9. nu 21. part 3. §. 6. n. 17. w Plowd in Cas inter Paramor Yardly Dyer fol. 277. An. Eliz. 10. x Broo. Abr. tit Test n. 11. Fitzh Abr. tit Execut. n. 109. y Le Abr. dez Cases edit 1599. incerto Authore q. 1. 7 H. 6. fol. 2. z Offic. Execut cap. 17. Sect. 1. a Ibid. 12 H. 7. fol. 22. b Ibid. Offic. Exec. c Ibid. d Ibid. cap. 16. Sect. 1. e 33 H. 6. c. 31. f 3 H. Rot. 112. g 1 Eliz. Dyer 166. Cook 4. Part. 61. in Forse and Hemblings Case Hughs Abridg. Verb. Wills and Testaments Mich. 5 Car. in B. R. Mariot and Kingman's Case Croo. 1. Part. 159. and Hughs Abridg. Verb. W 〈…〉 s and Testaments 26 Ed. 3. 71. Rolles Abridg. tit Devise G. Pasch 26 Eliz. C. B. Eston vers Wood. Cro. par 3. 〈◊〉 9. Mich. 8 Jac. B. Graunt's Case per Curiam Roll. Abridg. tit Devise Ibid. Roll. Abr. tit Devise Roll. Abridg. tit Executor E. a L. discretis C. qui testa fac poss §. item Surdus Inst quib non est permis fac test b Decius in dict l. discretis Tyraq. de Privil piae Caus c. 9. c Dict. §. item Surdus Inst quib non est permiss fac testa d Dec. Tyr. ubi supra e Mynsing in dict §. item Sordus f DD. in dict l. discretis g DD. in l. consultissi na Cod. qui testa fac poss Before the world was gone too far from its Primitive State of prudent frugality and when debauehery was no vertue nor prodigals nor infamous libellers were Testable as to the making or proving of a Will l. is cui Gloss ibid. ff qui test fac poss If a man criminally indicted die before he be condemned his Testament is good Pendente processu capitali non impeditur quis facere Testamentum Rub. in l. si quis ff qui test fac poss Where no property in goods or lands there no ability to Devise a Stat. 5 Ed. 6. cap. 11. b Stat. ibid. DD. in l. nemo de legib l. quisquis l. 1. c. ad leg Jul. Majest l. si quis de injust Test Stat. 1 R. 3. cap. 3. c L. si quis §. quatenus ff de injust rupt irrit testamentis d Stat. 32 H. 6. cap. 34. e Eliz. An. 5. cap. 14. and terms of Law verb. robbery f Stat. 1 Rich. 3. c. 3. g Dr. Stud. lib. 2. a 41. h Quia non prohibetur quod non condemnatur i Perk. tit Grants fol. 6. k Brook Forfeitures 5. 28. 65. 89. 103 113 117. Cowels Instit jur Ang. lib. 2. tit 12. §. 3. l Panorm in Rub. de Test Extr. Jul. cla §. testa m Ib. Gras §. testa q. 26. Vasq de Success lib. 1. §. 6. n. 18. n dict l. si quis §. quantus o Auth. Credentes C. de Haeret Lynwood c. 1. de Haeret. Vasq Bart. alii in dict Auth. Credentes p l. 1 2 3. C. de Apost Sum. Host tit de Apost §. qualiter q l. si quis C. de incest nuptiis r Accurs Bald. alii in dict L. si quis s Gen. cap. 19. t Spec. de Inst edit §. Compendioso nu 5. u l. si quis filio §. ejus ff de test L. 2. C. qui test fac poss w Vasq de Succes Resol l. 1. §. 3. nu 31. Bract. L. 3. tract 1. c. 31. x Fleta c. 36. in princip y Dr. Stud. l. 2. c. 3. and terms of Law verb. utlegare z Jul. Clar. §. testa q 19. Dr. Stu. l. 1. c. 16. a Terms of law verb. utlegat 〈…〉 b Swinb part 2. §. 22. c Vid. 37 H. 6. 27. by Prisoit acc d Mich. 20 Jac. in C. B. Bullen Gervis Case Hutton 53. e Vid. 49 E. 3. 5. 29. Ass 63. 33 H. 6. 27. acc In Hughs Abridg. Verb. Wills and Testaments Mich. 43 44. Eliz. B. R. inter Shaw Cutteresse per curiam Roll. Abridg tit Execut. N. Co. 5. Marshes Case 111. Roll. ib. a Sichard in Rub. de Inst Subst C. nu 1. Grass Thes Com. Op. §. Legatum q. 46. b Bart. in L. 1. ff de condition ib. Demonstrat Mant. de Conject ult vol. lib. 10. tit 5. Sichard ubi supra C. nu 4. Vasq de Success progress lib. 3. §. 29. nu 3. in fine Bart. in L. si Titio ff quando dies Legat cedit L. si ita Scriptum ff de legat 20 Ripa in l. Centurio ff de vulg pupil Subst nu 160 161. Dyer fol. 74. nu 16. Alex. Consil 185. lib. 2. c Bald. Sichard in Rub. C. de Instit Subst d Bart. in l. quib dieb §. Termilius ff de Cond Demon. a Sichard in dict Rub. b l. qui heredes ff de Condit demonst c Gloss DD. in l. si quis haered C. de Inst Subs d Mantic. de conject ult vol. lib. 10. tit 16. n 3. e Simo. de Praetis de interpret ult vol. l. 1. sol ult nu 34. f l. cum non Stat. c. imputari de Reg. jur g l. que sub Condit §. 1. ff de Condit Instit h DD. in l. quod te ff si cert pet i Gloss DD. ibid. Zas in l. continuus §. illud ff de verb. Obligat k DD. in l. milites §. ult ad â—eg Jul. de â—dal l Bart. in l. in test ff de Cond De â—on m Maatic l. 11. tit 16. nu 22. n Ibid. nu 23. o l. libertatem ff de Manum p Tyraq. de Privil piae Cae. c. 57. q Grass Thes Com. Op. §. Legat q. 58. r l. 2. ff de Cond demon l. si quis heredem C. de Instit Substit s l. si jam facta l. haec conditio ff ibid. t l. talis ff ibid. u l. si quis instituatur §. 1. ff de haered instit w Bart. Bald. Paul de Castro in dict l. si quis dict §. 1. x l. haec conditio ff de Cond demon y Bald. in l. 1. C. de Inst Subst nu 20. z Bart. in l. Substit ff de vulg Substit a l. si jam facta ff de Condit l. si quis haered C. de Instit Substit b l. si ita Scriptum ff de Legib. c l. unica §. sin autem C. de Cad tol d Ibidem e l. liber §. si ita ff de haered instituend f Dict. l. si quis haeredem C. de Instit Substit g l. Mutian ff de Cond dem h l. pater §. Socrus ff ibid. i l. r. c. de his quae sub modo c. k l. Mutian ff de Condit demon
3. If one be possessed of a Term of Years of Land and Devise the same to his Wife during all the Term and if she die within the Years of the Term then to A. and B. his Two Sons if they have no Issue Male but if they or either of them have Issue Male then that it shall go the use of those Issues Male the Wife dies and the Two Sons dye without Issue Born one of their Wives being privily with Child of a Son who after his Fathers death is Born In this Case and by this Devise the Issue Male shall have it as soon as he is Born 4. Suppose a Man possessed of an Estate to the value of 721 l. hi Wife being with Child did Devise in this manner viz. Whereas my Wife is with Child I Will that if she be delivered of a Son that then that Son shall have 480 l. 13 s. 4 d. And my Wife shall have 240 l. 6 s. 8 d. But in Case she be delivered of a Daughter then my Will is That that Daughter shall have the 240 l. 6 s. 8 d. and my Wife shall have the 480 l. 13 s. 4 d. and dies It happens That the Wife is after delivered both of a Son and a Daughter The Question is How each Legatary shall be satisfied his and her Legacy according to the Intention of the Testator for by the Will a Legacy is given to each of them It is Resolved That according to the Testators Intention which is the Index of the Testament the Son shall have double to the Wife and the Wife double to the Daughter and consequently the Son shall have 412 l. the Wife 206 l. and the Daughter 103 l. Which in all amounts to 721 l. the full value of the Testators said Estate So that each person is to have a Portion answerable to the Rate of Proportion mentioned in the Will But if the Child which the Mother brings forth be an Hermophrodite then it shall have the Portion due to that Sex whereof the Hermophrodite doth most participate But if that also be doubtful it is to be presumed according to the more worthy Sex viz. the Masculine 5. In Case a Testator saith If my Wife bring forth any Child I give to the same 100 l. and she bring forth Two or Three Children In this Case every Child may obtain a Hundred Pounds if there be Assets sufficient and the Testators Goods will suffice to satisfie the same otherwise there must be a proportionable deduction 6. There is a Case wherein by the Birth of a Child after his Father the Testators death a Devise becomes good to another which otherwise would be void when none is given to himself As thus If one Devise his Land to his Daughter and Heir apparent in Fee-simple this Devise is void yet if in this Case the Wife of the Devisor be privily with Child of a Son which is born after his death now is the Devise become good for now she is not Heir to her Father Q. Mead and Pyriam Justices in the C. B. Affirmed That it had been there Adjudged in the Lord Dyers Time That if Lands are Devised to Two Men and the Child where with the Devisors Wife then goeth that such Devise is good and the Child shall take by such Devise But whether they shall take in Common or Joynt-tenancy the Lord Dyer doubted A. possessed of a Lease for Years Devised the same to his Eldest Son and the Heirs of his Body and if he dyed without Issue then to P. his Younger Son and the Heirs of his Body and for default of such Issue that the Term should remain to his Daughters The Testator dies leaving Two Daughters and afterwards another Daughter is Born The Eldest Son Sells the Term and dies without Issue the Younger Son dies also without Issue the Three Daughters enter and the Term was Adjudged to them Three although the Youngest Daughter was not Born at the Time of the death of the Devisor otherwise if he had named the Two Daughters in the said Devise by their proper Names CHAP. XIX Certain Cases of Devises touching Lands and Chattels-real 1. The difference in Power of Devising between him in Fee and Tenant in Tail for Life 2. What Vses are Devisable 3. Money payable on a Mortgage is Devisable though Devised before the day of Payment 4. Obligations or Chattels-real in right of a Wife as Executrix or not are not Devisable by the Husband 5. A void Presentation is not Devisable in what kind an Advowson in Fee may be 6. Whether Leases and Rents may pass under the Notion of Immoveables as also Bonds and Specialties under the Notion of Moveables 7. What shall pass by a Devise of all Goods Chattels Moveables or Immoveables 8. The difference between an universal Successor and a naked Executor or particular Legatary 9. Devise made under Coverture may be good by new Publication of the Husbands death otherwise not 10. The same Law as to a Devise made by an Infant during Minority disqualified 11. Not full Payment Equivalent to no Payment 12. A Personal Charge incumbent on a Legacy is to be defrayed by the Executor not the Legatary 13. Equity in Election to be Regulated by the Testators Intention 14. Circumstances of a Devise not Restrictive nor joyned to the Devise it self ought not to minorate the same 15. A Devise shall be interpreted to the utmost Consistency with the Devisors words to the best advantage of the Devisee 16. Comprehensive words ought not to be extended beyond what is Rational in Construction of Law 17. The Advantage of a Residuary-Legatary when others refuse 18. Discrepancy among the DD. touching a Legacy to the Poor 19. Accessory Advantages to a Legatary between the making the Testament and the Testators death 20. The Devise of a Thing not in rerum natura at the Testators death is void 21. The Testators Estimation of a Legacy doth not alter the Condition thereof 22. The Executor may not exceed his Testators Estimate to a Legataries prejudice 23. The Devise of a part not expressing what part implyes a Moity 24. Constructions of Law to avoid uncertainty and the Law touching Elections 25. Where a Legacy is given Nomine poenae and failure in the Executor the Legatary may take either but not both Legacy and Penalty 26. Where there happen Two Elections in one Devise the Legatary shall have the first the Executor the second 27. The Law touching a Devise of a House where the Testator had none or many or burnt or ruin'd or pull'd down or demolish'd or re-edified 28. In what Case a Mill joyning to a House shall pass by a Devise of the House or not 29. One Thing ought not to be Compriz'd under the Appellation of another beside the Testators Intention 30. One Stable or one Kitchin to Two Houses shall pass with that Devised House whereto they are most nigh or most Contiguous 31. The Law touching