Goods in his hands of the first Testators the surviving Executor may have an Action against him for the same and if the surviving Executor do afterwards dye intestate yet cannot the Executor of the Executor meddle with the Goods of the first Testator but Administration thereof is to be committed to the next of Kin to the Testator and if the Executor of the Executor or who dyed first meddle with the Goods then he may be sued by the Creditors as Executor in his own wrong Bro. Exec. 92 99 149 160. Swin part 4. sect 20. 259. If one make another his Executor and dyeth and the Executor before he hath proved the Will maketh another his Executor and dyeth in this Case Administration of the first Testators Goods with the Will annexed shall be committed to the next of Kin of the first Testator and not to the Executor of the Executor unless the first Testator did bequeath his Goods as his Debts Funeral-expences and Legacies paid to the Executor named in the Testament and then in such case the Administration of the first Testators Goods is to be committed with the Will annexed to the Executor of the Executor Dyer fol. 372. num 42. M. 23 El. Isteds Ca. Swin part 6. sect 3 260. Note that if divers be appointed Executors and one of them doth sell some of the Testators Goods for a sum of money then that Executor which sold the Goods may sue alone for the money due for the same Swin part 4. sect 20. Bro. Exec. num 65. 261. Where divers persons are made Executors and the Testator gives them power to sell his Lands in this case though some of them dye or do refuse the Executorship yet the others who take upon them the charge and burden of the same Testament and Will may sell the Lands except in some Cases Perkins sect 545. Pasch 46 E. 3. Devise 8. 21 H. 8. cap. 4. 39 〈◊〉 pl. 17. Co. on Litt. fol. 113. Swin part 6. sect 3. Dyer fol. 371. See Howel and Barnes case Mich. 10 Car. 1. Cro. 1 part 262. As where the Testator Deviseth that after his death his Lands shall be sold by his Executors with the assent of A B maketh his Wife and a Stranger his Executors and dyeth and then the Wife dyeth and A B also in this Case the Authority of selling the Lands is extinct and gone by the death of A B without whose consent it cannot be sold and therefore if the surviving Executor should sell such sale is void Brownlowes part Rep. fol. 100. Mich. 5 Eliz. Dyer fol. 219. Fulb. fol. 41. Swin part 6. sect 3. 263. But if a man Devise by his Will that A B and C D whom he makes his Executors shall sell his Land for payment of his Debts and they refuse to be Executors yet notwithstanding they may sell the Lands because they are named by their proper names or if one of the Executors dyeth and the other taketh upon him the Executorship and afterwards selleth the Lands such sale is good 15 H. 7 12. Perkins sect 548. 19 H. 8 9. Swin part 6. sect 3. 264. But where a man by his Will maketh A B C and D his Executors Devises his Lands to the said A B C and D by their special names and to their Heirs and further deviseth that the Devisee shall sell his Lands for payment of his Debts and one of the Executor refuses to intermeddle in this case it hath been held that this being a special and joynt interest the other three Executors thereupon cannot sell without their Compaâ—ion Mich. 29 Eliz. B. R. Bonnisant and Sir Rich. Greenfields case Godbolts Rep. fol. 77. And sec 26 El. B. R. Vincent and Lees case Co. on Litt. fol. 113. 265. My Lord Cooks advice is to such who devise by their Wills their Lands to be sold that they make it as certain as they can as that the sale be made by his Executors or the Survivor or Survivors of them if his meaning be so or by such or so many of them as take upon them the Probat of the VVill c. and it is better to give them an Authority then an Estate unless his meaning be they should take the profits of the Lands in the mean time and then it is necessary that he deviseth that the mean profits be assets in their hands for otherwise they shall not be Assets Co. on Liâ—t fol. 113. 266. If a man devise his lands to be sold by his Executors and to distribute the profits to Pious uses yet after the death of the Testator the Inheritance shall descend to the Heir and shall remain in him until the Executors sell the same and the Heir ought to receive the profits thereof till the time of the sale but if the Testator devise his lands to his Executors which he willeth to be sold and the money to be distributed to Pious uses here the Executors after the Testators death shall receive the Profits and not the Heir for in the first case the Executors have only an Authority to sell and in the last case they have the frank-Tenement Brownl 2 part Rep. fol. 136. Noyeâ— Max. pag. 100 101. 38. Ass Pl. 3. Perkins sect 541 and 543. Swin part 6. sect 3. num 7. Cowels Inst pag. 139. 267. Note that the Executor of an Executor cannot sell the land of the first Testator who by his Testament gave power to his Executor to sell the same but it shall go to the Heir unless the Will be otherwise Bro. Tit. Executor 3. Perkins sect 507 554. Swin part 6. sect 3. num 11. in fin 268. If a man willeth that his Executors shall joyntly sell his land or that his Executors and his Feoffees shall joyntly sell his land in such case if one Executor sell to one and the other to another or if the Executors sell to one and the Feoffees to another and afterwards they joyn in the sale to a third person in such case the last sale onely is good and the other voyd Perkins sect 546 and 553. 269. If a man willeth his lands shall be sold for the payment of his Debts and express not by whom it shall be sold then the Executors shall sell it but if he willeth his land to be sold and express not by whom nor for what in such case it hath been held that such Devise is void and the land shall not be sold but descend to the Heir Perkins sect 547. 15 H. 7. 12. 270. The Executors or Administrators of Tenants in Fee-simple Fee-Tayl and Tenants for term of life of Rent-services Rent-charges Rent-sects and Fee-farms by the Stat. of 32 H. 8. may either distrain or have an Action of Debt against such Tenant as is behind and in Arrear to the Testator at the same time of his Death for such Arrearages of Rent as ought to have been paid to the Testator in his life-time and if the Tenant who was in arrear be dead then they may
of her Husbands Lands holden in Gavelkinde Co. on Litt. fol. 111. Old Terms of the Law verb. Gavelkinde 166. And of Lands held in Burrough English by the custom of some places the Widow shall have the whole and sometimes the half of her Husbands Estate Dum sola casta vixerit Co. on Litt. fol. 111. F. N. B. 150. Litt. li. 2. cap. 10. 167. By the Stat. 32 H. 8. cap. 1. every one except a woman Covert an Insant under the age of one and twenty years or a person De non sane Memorie may be their last Will and Testament in writing or other Act lawfully executed in their life-time give dispose Will or devise all such Lands Tenements and Hereditaments as they are solely seized of in Fee-simple or as much as of right in them is of all such Lands Tenements and Hereditaments as they are seized of in Fee-simple in Copercenary or in Common in Fee-simple to any person or persons except to Bodies politick and corporate And two parts of three of all such Lands Tenements or other Hereditaments as they hold in Knights service See now the 12 Car. 2. cap. 24. 32 H. 8. cap. 1 34. and 35 H. 8. cap. 5. Fynch Law pag. 169 170. Co. on Litt. fol. 111. b. Swin part 3. sect 3 and 4. And Wingates Abr. of Stat. tit Wills 168. All manner of Goods and Chattels real and personal moveable and immoveable may be devised by Will or Testament except in some certain cases following Perkins sect 511. Lind. in C. Stat. de Testament li. 3. Provinc Const Cantibr Swin part 3. sect 5. Cowels Inst pag. 140. 169. As where two men are joyntly possessed of Goods and Chattels real or personal one of them cannot make his Will and bequeath his part to another for when he dyes his part goes to the survivor and so it is in Lands Tenements and Hereditaments also Perkins sect 500 526. Dr. Stud. li. 1. cap. 6. Litt. li. 3. cap. 3. Cowels Inst pag. 140. Clerk of Assize pag. 63. 170. Nor can a Spiritual person or Master of a Colledge or Hospital or Mayor of a City devise those things which belong to their Church Colledge Hospital or City nor can the Crown or Jewels of the Realm be devised by Will but they may be given by Letters-patents and a Parson by Will may devise the Corn growing on the Glebe-Land at the time of his death Perkins sect 496 and 497 498. Brac. 1. li. 1 2. cap. 14. Dr. Stud. li. 2. cap. 39. Cowels Inst pag. 125. F. N. B. devise 5. Exer. 108. Swin part 3. sect 6. 171. The Husband cannot devise such Goods as his Wife hath as being Executrix to another nor such things as are in Action as debts due to her before Marriage by Obligation or Contract unless he and his Wife sue and recover the same during Marriage or that he renew the Bonds and take them in his own Name otherwise after his death they remain to her Co. on Litt. fol. 351. b. 9 H. 6 52. 21 H. 7. fol. 29. Kitchin fol. 251. a. Finches Law pag. 44 168. Bro. Testam 11. Swin part 2. sect 9. num 13. 172. Also if the Husband be possessed of a Terme or Lease for years in right of his Wife he cannot devise it by his VVill but he may grant it away or dispose of it in his life-time or if he make no disposition thereof yet if he survive her then it falls to him and in such Case he may devise it by VVill. Dame Hales ca. Plo. com fol. 260. Co. on Litt. fol. 251. a. Kitchin pag. 267. b. 7 H. 6 1. Perkins sect 560. Dr. Stud. li. 1. cap. 7. 173. An Administrator cannot devise those Goods by VVill which he hath as Administrator to another person dying intestate but Administration thereof shall be committed to the next of Kin to the first Intestate neither can an Executor devise those Goods by way of Legacy which he hath as Executor but he may make his Testament and appoint another Executor who shall have the Administration of the same Goods to the use of the first Testator Fynches Law pag. 168. Bro. Adm. 7. F. N. Br. Adm. 3. 31 E. 3. cap. 11. Plo. com fol. 525 526. Swin part 3. sect 6. 174. Those things also which belong to the Heir after the Testators edath cannot be devised by VVill as Glass-windows VVainscote Tables dormant and Benches affixed thereunto or mortifed in the Earth Furnaces Coppers Leads Ovens c. set in Morter or Stone nor Trees nor Grass growing c. Bro. Exer. 65. Cowel Inst pag. 140. Co. 4. Rep. fol. 62. Swin part 3. sect 6. Noyes Max. pag. 106. 175. But Corn growing on the Land at the time of the Testators death may be devised by VVill by those who are seized in Fee-simple Fee-tail or for life and also by Tenant in Dower Tenant by the Curtesie and Tenant in Mortgage and their Tenants and he who is seized in right of his VVife although theiâ— Estates do determine before the said Corn be ripe and severed except in some special Cases Perkins sect 512 514 522. Dr. Stud. li. 1. cap. 20. 176. If a woman Tenant in Doweâ— sow her Land and afterwards marry and the Husband dyes before severance of the Corn in this Case it remains to her and he cannot devise it but if it had been sown after the Marriage he might have devised it Clerk of Assize pag. 57. Abr. Dr. Stud. li. 1. cap. 20. 177. If Tenant for life have Hops growing and dye a little before the severance of them in this Case the Executors or Administrators shall have them and not he in Reversion or Remainder for the Hops are accounted as Emblements they growing by Manurance and Industry of the Owner by the making of Hills and setting of Poles Vide Miâ—h 11 Car. 1. B. R. Latham and Attwoods Case Cro. 1 part fol. 396. 178. As Goods and Chattels may be devised as aforesaid it is now further observable what a quantity or proportion of Goods and Chattels the Testator may devise by his VVill observe therefore that if the Testator have neither VVife nor Childe at the time of his death hâ— he may then dispose and devise alâ— the cleer residue of his Goods and Chattels over and above the discharging Funeral-expences and hiâ— debts Lindwood in C. Statut. dâ— Testament li. 3. Pro. Const. Cant. verbum defunct Brac. li. 2. cap. 26. Swin part 3. sect 16. 179. But it is the custom of many places especially within the Province of York that if the Testator have a Wife or Childe at the time of hiâ— death that then he can but dispose of half of such his cleer Goods and the other half is to go to the Wife or Childe and if he have both a Wife and Childe or Children at the time of his death then the Goods are divided into three parts whereoâ— one part is to the VVife another
to give an hundred pounds doth give but fifty pound in these cases the Legatary may recover as much as the Testator did mean and intend to give be it more or less then the sum mentioned Swin part 7. sect 5. num 13. 217. If the Testator bequeath an hundred pounds to the Church not mentioning what Church it shall then be understood of his Parish-Church or if he name a Church and there be divers there of the same name and none of them his Parish-Church then the Executor if he prove the Will or the Ordinary if he refuseth may bestow the same on which Church he will but if the Testators Parish-Church be of the same name it ought then to be bestowed there Mich. Grass thesaur com opin sect Legat. q. 64. Swin part 7. sect 8. Franc. Mantiâ— de conject ult vol. li. 8. tit 6. 218. Where the Testator doth bequeath one half of his Goods to one person and makes another his Executor willing and appointing that all his Goods shall be divided betwixt them in this case the Legatary shall have half before debts paid and the Executor the remainder after debts paid as where the Testator hath Goods to the value of an hundred pounds and oweth twenty pounds out of the same here the Legatary shall have fifty pounds and the Executor shall pay the twenty pounds debt out of his half 5 Mariae Dyer fol. 164. Goldesborough Rep. pag. 149. Pl. 74. Hil. 43 El. C. B. Swin part 7. sect 10. Cowels Inst. pag. 146. 219. If a man bequeath twenty pounds to A and twenty pounds to B and twenty pounds to C and makes his Executor and dyes having Goods in all but to the value of twenty pounds of which Goods the Executor makes an Inventary in this case he may pay which of the three he pleases his whole Legacie and the other two are without remedy or he may if he please pay every one of them a rateable part and if in case the Executor make no Inventaâ—â— yet he is chargeable no further â—â—en the value of the Goods and so 〈◊〉 every Legatary in such case should 〈◊〉 him they must prove sufficiency of goods or otherwise they should â—et nothing Plo. com fol. 545. in Case â—ter Parham and Yardly Dr. and â—ud li. 2. cap. 10. 220. If the Testator say I will â—at A B shall have an Horse here 〈◊〉 Election belongs to the Legatary but if he had said I will that my â—xecutor give to A B an Horse then the Election belongs to the Executor and if the words of Election be directed to neither of them then the Legatary shall make the Election if there be any such thing extant amongst the Testators good as is bequeathed and if not then the Executor is to make the Election and in case where the Legatary chuseth he must not take the very best unless there be no more but two of the things extant for then he may chuse the best and so he may do when the Testator grants him the Election and as the Legatary may not chuse the best neither may the Executor obtrude the worst of those things extant and where there is no such thing extant then the Executor iâ— to provide a competent thing for thâ— Legatary Mich. Grass thesaur com opin sect Legat. q. 62. num 2 and Mins in D. sect si generaliter num 〈◊〉 Swin part 7. sect 10. Co. on Litt. fo 144. b. 221. If the Testator bequeat two Horses to two Men having 〈◊〉 more and one of them is a greaâ— deal better then the other in this case he that is first named in the Testament shall have the Election Co. on Litt. fol. 144. b. 2 H. 7 23. Swin part 7. sect 10. 222. If the Testator give to A B twenty pounds if he will in such case A B must express his willingness by some means or else the Legacy is not due and if he die before such expression then the Legacy is lost and shall not go to his Executors or Administrators which otherwise it would if no such condition had been expressed Swin part 4. Sect. 6. num 7. 223. If an Executor have a Legacy left him by his Testator and refuseth to stand to the Executorship in such a Case he looseth his Legacy Gribald Thesaur com opin verb. Tutor Swin part 6. sect 2. in sine Refor Leg. Eccles Tit. Testament C. 23 and 24. 224. But if the Executor be not duly admonished to take the Executorship upon him then if he be the Testators Kinsman or such a person to whom the Testator would have given the Legacy though he did not perform the Will and take the Office upon him in such case he shall not loose the Legacy then by his refusal of the Executorship neither shall the Wife loose her thirds nor the Children their filial Portions nor the Creditor his debt if any of them be made Executors and refuse to take the Office upon them Swin part 6. sect 3. num 15. Sichard in lib. Si legatarius cap. de legat 225. If a man by his Will devise all his Lands and Tenements to A B in this case not only all his Land and Tenements which the Testatoâ— hath in possession do pass but also those which he hath in reversion also by vertue of the word Tenements Terms of the Law verb. Devise Cowels Inst pa. 144. Swin part 4. sect 4 num 19. 226. But if the Testator have both Lands in Fee and Lands in Lease for years and deviseth all his Lands and Tenements in such case the Lands in Fee only pass and not the Lands in Lease for years but if he have none but lands for years in Lease only then those lands shall pass by vertue of such devise Tr. 7 Jac. B. R. Rose and Bartlets Case Cro. 1 part Rep. fol. 213. Noys Maxims pag. 99. 227. If lands be devised to a man to have to him for evermore or to have to him and his Assigns in both these cases a Fee-simple doth pass to the Devisee but if such a Gift or Grant were made by Deed it would carry an estate but for life without the word Heirs were in it Perkins sect 557. M. 22 E. 3. Devise 20. Terms of Law verbum Devise Swin part 4. sect 4. num 19. 228. Also if a man devise his lands to another to give or sell or do therewith at his pleasure here he hath a Fee-simple also and if lands be devised to one and his Heirs males this shall amount to an Estate in tayl but if such words be in a Feoffment it shall be taken for a Fee-simple because it doth not appear of what body the heirs Males shall be begotten Terms of the Law verb. Devise Co. on Lit. fol. 9. b. Swin part 4. sect 4. Cowels Inst pag. 144. 229. Also if one devise to an Infant in the Mothers womb it is good but such a Feoffment Gift or Grant is void and if one will that his Soâ— shall have his
Son or Daughter married in his life-time who hath a Child or Children and then dyes and afterwards the Grand-father dyes in this case the Grand-children shall recover such part of the Grand-fathers Goods as should have been due to their Father or Mother for their Childes Portion if they had lived Reformatio Legum Eccles tit Test cap. 10. 154. If the Father leave a Legacie to his Child being neither Heir nor advanced by him in his life-time and do not mention whether it shall be in lieu and recompence of his filial portion or no in such case if it be as much or more in quantity then the filial portion extends unto by the rate of the Inventary or if it want but a very little thereof then it shall be presumed to be given in lieu of his Portion but if the Legacie be very small then the Child shall both recover the said Legacie and his filial Portion too Menoch de Praesumpt li. 4. Praesumptio 109. num 6 26 and 110. Swin part 3. sect 18. num 9. 155. Where the Child is Heir to his Father in Fee-simple or Fee-tail though the Lands be but of very small value in regard of the personal Estate of his Father yet he is thereby barred from having any filial Portion by the custom of the Province of York and some other places yea although he be but Heir in reversion or hold Lands as Heir which are but Mortgaged with power of Redemption upon payment of such a sum of money at a certain day yet during such holding till the condition be performed he is barred of his filial portion but if he have onely copy hold-hold-lands after his Fathers death in such case he is not barred from the recovery of his filial Portion Dyer fol. 124. pl. 38. Swinbor part 3. sect 18. and the opinions of Sir Tho. Hâ—â—sâ—oth Doctor of the Civil Law and Sir Jo. Savile one of the Barons of the Exchequer Judge of Assize at York 1604 cited by Mr. Swinborne in his Marginal Notes 156. If the Father bestow or give any thing to a man of Trade to take his Son an Apprentise and to teach him his Trade or bestow any thing upon a School-master or Tutor in the Universities of Oxford or Cambridge for the increase of his Childs knowledge in Learning or buy an Advowson or Ecclesiastical Benefice or Dignity and afterwards presents his Son to it or the Son being much indebted the Father pays off his debts or buys an Office and bestows it upon his Son or if any other but the Father bestow a preferment on his Son though it be never so much yet none of all these shall be accounted such preferment or advancement as to bar the Child from the recovery of his filial Portion Claudius Battandier Tract de Legitima cap. 12. num 19 20 21 28 22 31. Swin part 3. sect 18. 157. But it is said by some that if the Father bestow a Lease upon his Child or grant to him an Annuity for life out of his Lands and though the Child be to reap no benefit by these during his Fathers life but after his death yet it 's held for a preferment because it was assured to him in his Fathers life-time Swin part 3. sect 18. num 25. 158. And it is granted for certainty that if the Father bestow a competent portion with his Daughter in Marriage upon him that should marry her this is such an advancement as shall bar her from the demand of a filial Portion but it is to be understood that this competent Portion must be equal or not far inferiour to that quantity which should fall to be due to such a Child after the rate and proportion of the Fathers Estate at that very time when he bestowes it on his Child and not according to such quantity as should fall due at the time of the Fathers death afterwards Swin part 3. sect 18. num 22 26 27. 159. But if such gift be not competent but far under the rateable part of that which would fall due to the Child as 5 l. to put in his Purse or spend at his pleasure when perhaps the filial Portion would amount to several hundreds of pounds this is not such an advancement as shall hinder such Childe from the recovery of a filial portion Swin part 3. sect 18. num 28. 160. Or if a man seized in Fee-simple of thirty Acres of Land hath Issue two Daughters and giveth ten Acres with one of them in frank-Marriage and dyeth seized of the other twenty Acres in this case she that is married may if she will have part of those twenty Acres also and put them in hotch-potch with the other Land and suffer the same to lye commixed and mingled together and so an equal division shall be made betwixt the two Sisters and each of them shall have fifteen Acres whereas otherwise the Sister marrieâ— would get but ten Acres Litt. 59. Fynches Law pag. 124. Terms of the Law verbum hotch-potch Swin part 3. sect 18. numb 33. 161. Note that by Portion is to be understood not onely a sum of money or part of the Fathers Goods and Chattels but also Lands and Annuities bestowed by the Father upon the Childe Swin part 3. sect â—8 num 29. CHAP. VII What things are deviseable by Will and what not 162. OF Lands Tenements and Hereditaments some are deviseable by Custom and some by force of certain Statutes as hereafter appears Cowels Inst pag. 138. Swin part 3. sect 2. 163. Lands Tenements and Hereditaments holden in Gavel-kinde by the custom of Kent though they be holden in Knights service may be given or devised by Will and that without license of the Lords saving to the Lords the Rents and services due out of the same Lands and Tenements Terms of the Law verb. Gavel-kinde Mich. 1655. in B. R. Hammond and Thornhills Ca. Syles Rep. fol. 476. Swin part 3. sect 3. 164. And so Lands Tenements and Hereditaments lying in London York Oxford c. and other place where the same are held in Burgage-Tenure may be devised by Will foâ— to hold in Fee-simple Fee-tail foâ— life for years c. and if he who hold such Lands c. in Burgage-Tenure be a Citizen or Burgess of the City or Burrough where such Lands Tenements or Hereditaments be holdeâ— in Burgage-Tenure then he maâ— devise the same in Mortmain whicâ— otherwise he could not do if he werâ— not Citizen Burgess or Freeman oâ— the same place and it is not necessary that the Will wherein BurgageLand is devised should be in writing But note that the custom of the place must he observed concerning the Probate or Inrolment of such Wills c. F. N. B. Bre. ex Gravi quaerela in pr. Bro. tit devise 22 43 and 51. Dr. Stud. li. 1. cap. 7 and 10. Swin part 3. sect 3. Perkins Sec. 577 578. pag. 49. E. 3. devise 8. 165. The Wife so long as she lives unmarried shall have half
land after the death of his Wife in this case the Wife by the favourable interpretation of such Will shall have the land for term of her life Finches Law pag. 172. 13 H. 7. 13. Terms of the Law verb. Devise Cowels Inst pag. 144. Swin part 4. sect 4. Noyes Maxims pag. 100. 230. If a man devise all his lands in A. to his two Daughters and makes them Executrixes and afterwards purchaseth more lands in A. and then dies without a new publication of his Will and expressing of this land newly bought therein in this case this land newly bought doth not pass by the same Will H. 43 El. C. B. Beckford and Parncotes Ca. Goldsboroughs Rep. pag. 150. pl. 77. 231. A man having four Daughters A B C and D devises his lands to his Wife for her life and after her decease the same to be equally divided amongst his Daughters or their Heirs A one of the Daughters died before the Mother and after the Mothers death the heir of A sued for a fourth part and adjudged for the Heir by vertue of the disjunctive or but if it had been to have been divided amongst his Daughters and their Heirs this word had altered the case and would have given the Fee to the three surviving Sisters Mich. 1 Car. 1. B. R. Rot. 189. Taylor and Hodgskies Case Godbolts Rep. fol. 363. 232. If one devise his lands to another Man and his Heirs and the Devisee dieth in the life-time of the Devisor and afterwards the Devisor dieth in this case the Heirs of the Devisee shall not have the land Plo. Com. fol. 342. in Brett and Rigdens Case 233. If a man seized of lands in Fee sowe the same with Corn and afterwards deviseth the land to A B and dieth before the Corn be severed in this case the Devisee shall have the Corn a swell as the land but it is otherwise where the lands descend to the Heir for the Executors or Administrators shall have the Corn sown at the Testators death Mich. 20 Jac. C. B. Spencers Case Winches Rep. fol. 51. 234. A man devised his Messuage whereof he was seized in Soccage in Fee by these words I devise my Messuage where I dwelt to my Cozen H and her Assigns for eight years and my Cozen H shall have all my Inheritances if the Law will and this was adjudged a good devise in Fee of the Messuage and by the general words of the Will all the Inheritances pass also Mich. 11 Jac. C. B. Wedlock and Hardings Case Godbolts Rep. fol. 208. 235. If a man devise his Lands to the Heirs-Males of any of his Sons or next of Kin such a devise is void for the uncertainty thereof Hil. 2 Car. 1. C. B. Rott 1288. in Hunt and Fishers Case and Trin. 1649. B. R. Rott 849. Beal and Wymans Case Styles Rep. fol. 240. 236. A man having Lands in Fee-simple and Goods to the value of five pounds onely deviseth to his Wife all his whole Estate paying his Debts and Legacies which amounted to forty pounds in this case it was adjudged that all the lands did pass by the devise and that the Wife had a Fee-simple in the lands the word paying enforcing it for they are to be paid presently which cannot be if the land pass not in Fee Tr. 1651. B. R. Kirman and Johnsons Case Styles Rep. fol. 293. and see 29 H. 8. Bro. Testament 18. 237. A seized of three Houses and other Lands Pastures and Meadows in W in the County of H and of Land in the County of O devised in this manner viz. I give my Capital Messuage in the Counâ—y of O and all other my Lands and Meadows and Pastures in the Parish of W to such an one and adjudged here that all the houses passed by the devise for that lands comprehends houses also Ewer and Heydons Case Abr. Mores Rep. pag. 103. pl. 468. 238. If a man devise the profits of his lands it is a devise of the lands themselves Tr. 16 Jac. C. B. Rott 465. Balder and Blackbornes Case Brownlo 1 part 79. Owens Rep. 66 Tr. 23 Car. Styles 81. 239. A man by his Will deviseth his lands to his Wife and if she have Issue by the Devisor that his Issue shall have it at his age of twenty one years and if the Issue die before that age or before his wife or if she hath no Issue that then she shall chuse two Attorneys and sheto make a Bill of sale of any lands to her best advantage In this case it was resolved that the wife 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 shall make sale of them Mich. 5 Jac. B. R. Beal and Shepherds case Bro. 2 part Rep. fol. 199. 240. I might go on to shew what words in a Devise make a Condition and what a Limitation and where an estate shall pass by Implication and what words make an estate Tayl Fee-simple or for Life and where the Devisees shall be Joyntenants and were Tenants in Common with several other things but it not being the intent of this Treatise I refer the Reader to the learned Reports now extant where he may be satisfied and so I return again to my purpose 141. Devises and Legacies are to be sued for in the Ecclesiastical Court but the Ordinary cannot take Cognizance of Fees or Free-hold devised but a Prohibition will lye if any Judge of any Spiritual Court shall cite one before him in case of such a devise as intrencheth upon the Common Law Perkins sect 576 579. and Dr. and Stud. li. 2. cap. 55 Cowels Inst pag. 146. 242. Note there may be much deceit used by a knavish Executor and though the Goods be of a great value after the Debts are paid which were truely owing and due by the Testator yet he may keep the Legacies and never pay them perhaps but pretend that all the Debts are not paid and thereupon may cause Strangers to sue and then alledge that there are more Suits against them then the Goods of the Testator are sufficient to satisfie or they may confess the Actions brought against them and several other ways there are whereby they may defraud the Legatees of their Legacies Therefore it were good for Testators in their life-times either to secure the Legacies to the Legatees by some sure means or otherwise in their life-time to deliver the same that they see them possessed thereof and not leave it to the Will of the Executor Perkins sect 571. CHAP. IX Several Cases concerning the Duty of an Executor 243. THere are three kinds of Executors or persons which have to deal with the Execution of dead mens Wills and disposition of their Goods The first hath his Authority from the Law and that is the Bishop or Ordinary of every Diocess who hath the execution thereof when no Executor is appointed by the Testator