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
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.
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
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
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
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
part not expressed is a Moiety implyed p. 293. § 23. p. 310. § 11. p. 441. § 49 50. Paying In what Sense that word shall be construed only as a Limitation not as a Condition p. 267 268. § 5. Payment not full in what case Equivalent to none at all p. 289. § 11. PiousVses Testaments to that end their Priviledges p. 8. § 4. Poor disagreement among the DD. touching Legacies to the Poor in such generall words p. 291. § 18. Pope whether he may alter the Wills of Testators p. 149. § 107. Portion of Goods not expressing what proportion Bequeathed signifies 〈◊〉 Mâ—ity p. 447. § 100. Portions or Filiall Portions the Law in that case p. 167 c. Possibilities in Expectation are Devisable as well as Possessions in Actual Demes 〈…〉 es p 311 § ult Presentations void not Devisable p 288 § 5. To whom belongs the Presentation in case of Intestation p 82 § 6. Prisoners In what Sense said to be Intestable or not p 15 § 3. Priviledged Testaments what the severall kinds thereof p. 7 § 1. Probate of Testaments the Law thereof when where how by and before whom with the Fees thereof p. 35 c. In what case the Executor may be compelled to Prove the Will notwithstanding his former refusall and thereupon Letters of Administration granted to another p. 165 § 2. What Proof Requisite for the Probate of a Will p. 40. c. Prohibition in what Cases it doth not lie p 113 § 7. In what Cases touching Lands Devised to be Sold a Prohibition may lie or not p 275 § 9. It doth not lie in case of the Husbands Release for the Wives Legacy p. 282 § ult R. Recovery by Fraud against an Executor no Plea in Barre to a just Debt p 108 109 § 7. Refusalls to Prove the Will p 39 40 § 6. How to Proceed in case of Refusall of Executorship p. 91 92 § 1. It is no absolute Barre to a Subsequent Administration p Ibid. § 3. It may be done by a Letter Extrajudicially as well as by a Judiciall Act. p 93 § ult How Refusers to Administer may yet afterwards be admitted or excluded p. 163 § ult Refusall in one to take by a Devise shall not prejudice him in Reversion or Remainder p 263. § 9 13. Release or Discharge in what Sense it may be said to be Bequeathed p 322 § 3 p 439 § 32. To Release is a good word to Devise Lands by p 235 in fin A Release of Actions by an Administrator whose Letters of Administration are after Revoked is void p 216 § ult Action for Executors upon a a Release p. 103. § ult Remainders and Reversions Devised p 261 c. What of that kind may be Devised p Ibid § 1. Remainders and Cross-Remainders by Devise of Estate Tail p 252 § 11. With Implyed Remainders Ibid § 12. Remainders Entail'd by Devise and by Deed how they differ p 262 § 7. Remainders Devised to a Church accrews to the Parson thereof Ibid. § 8 He in Remainder or Reversion shall not be prejudiced by the Refusall of him that should take by a Devise p 263 § 9 13. How the Issue of the Daughters without naming them shall have the Devised Remainder in preference to the Issue of the Sons Ibid. § 10. Several Cases wherein he in Remainder may Devise his Remainder p Ibid. § 13. Reversion of Land for life may be Devised by the Lessor notwithstanding a Feoffment in Fee p 264 § 16. Remainder of a Rent-charge is Devisable to one where the Land out of which it arises is Devised to another Ibid. § 17. A Devise may be good for the Reversion of a Term where it is otherwise for the Rent p 264 § 18. Remainder Devised may be good where yet an Estate Tail precedes Ibid. § 19. He in Remainder may instantly take where the Devisee is incapable Ibid. § 20. Remainder may be Devised by one to his own right Heirs Ibid. § 21. Reversion may be Devised by the name of all a Mans Inheritances or Hereditaments p. 265 § 22. Remainder Devised to the next of Blood Ibid. § 23. In what case Remainder after Remainder makes the former Remainder but an Estate for Life p. Ibid. § 24. Remainders Devised what void p 261. § 2 p 262 § 3 to 6 p 264 § 15. A Hundred Years to come Devised for Life the Remainder over is a void Remainder p. 263 § 11. Remainder in Fee after a Lease Devised by him in Remainder is a void Remainder if the Lessor Re-enter Ibid § 12. Remainder after a Fee Devised is Indeviseable albeit such Devise were but Conditional p 263 § 14. A Term of Years by way of Remainder is Devisable but a Devise by way of Entail with remainders over is void p Ibid § 15. Rents Devised p 270 c. As Devisable as the Land itself Ibid § 1. They are Devisable for another mans life Ibid § 2. Rents issuing out of a Common not Devisable § 3. Several ways of Devising Rents § 4. Reversion of Rents Devised upon a false suggestion a void Devise p 271 § 5. Rent Devised in what case the Land it self doth thereby pass p 138 § ult What Rent not Devisable p 225 § 2. In what case the Rent is due to the Heir not to the Executor p 103 104 § ult Rent due to the Executors of the Husband of the Tenant in Dower Ibid. Rent of Land in Fee received by Executors no Assets because belonging to the Heir p 85 § 3. The Land-lords Rent is payable by the Executor for the Ground whose fruit for the Term may be Devised to another p 298 § 46. Residue of a Term is as Devisable as the Term it self p 258 § 7. Residuary-Regatary hath an Advantage when others Refuse p. 291 § 17. Retainer of a Testators Goods by an Executor to pay himself good p 133 § ult p 149 § ult Reviver of a Will Revoked p. 34 § 1. Revocations Testamentary the severall kinds thereof p 31 § 1. Revocations by Marriage Ibid § 2. Revocation of a Will by a Wife after Marriage whether good or not p. 236 § ult Whether Revocation of Administration may without any Sentence in Court be by the Bishop who granted it p 166 167 § ult Revocations of Legacies and Devises p 331 c. What amounts to a Revocation of a Devise of Land p 228 in fin Severall Cases in Law touching what shall amount to a Revocation or Countermand of a Legacy or Devise p. 443 § ult Four Cases wherein Legacies are irrevocable p 443 § 74. S. Sale of Lands Devised to be made by Executors p 273 c. with or without the Assent of others p 274. § 5. In what case it may or not be by one alone where there are Two or more Executors p 275 276 § 10 12. How it becomes void for want of sufficient Authority p 175 § 11. In what Case it may be made by
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
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.
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-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
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
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
feigned performance except it be in favour of Liberty from Bondage or Alimentation or ad pias causas or except the Qualification be not Conditional but only Modal 3. Arbitrary Conditions that is such as consist in his Power on whom they are imposed ought not to be performed till after the Testators death unless the Condition be such as cannot be iterated for in that case it is sufficient that the same was performed in the Testators life-time even before the making of the Testament or unless the Condition be referred to the time past Also an Arbitrary Condition imposed upon an Executor may be performed at any time during the Executors life and he meanwhiles enjoy the Executorship This holds true unless the Judge assign a certain competent time for the performance thereof upon default whereof Administration may be committed as of one dying Intestate till the Condition be performed But if such Condition doth appertain to a Legatary then it must be performed so soon as conveniently he may or else the Legacy is lost unless the Legatary were ignorant of such Condition or Legacy for in that case no prejudice shall accrew to him by reason of such ignorance And it is sufficient for the obtaining the effect of a Condition that the said Condition was once accomplished though it doth not continue so And although Arbitrary Conditions as aforesaid are not regularly performable till after the Testators death yet Conditions not Arbitrary but Casual or Mixt are accounted as accomplished though performed before the making of the Testament Provided the Testator were ignorant thereof But if the Testator were not ignorant thereof at the making of the Testament then it is otherwise and the Condition remains to be performed For when the Condition is meerly Casual the same is neither accounted for accomplished nor extant in presumption or fiction of Law neither for unaccomplished or deficient untill the actual event of the same Condition doth first come to pass Indeed an Arbitrary Condition is divers times accounted for accomplished in Law though not in Fact but a Casual Condition is not accounted for accomplished or extant in Law unless the same be accomplished in fact also And such must be accomplished before a Legacy can be due And in case the Legatary happen to die before the accomplishment of such Casual Conditions the Legacy is quite lost and cannot be transmitted to the Executors or Administrators of such Legatary And in Mixt Conditions it is in this case as in Conditions that are meerly Casual 4. Again of the Possible Conditions some be Affirmative some Negative when the Condition is Affirmative the Executor or Legatary cannot obtain the Executorship or Legacy so long as Affirmative Condition dependeth unfulfilled though they should put in sufficient bond to make restitution in case the Condition should be deficient unless such Affirmative Condition doth secretly imply or contain a Negative which consisteth in Doing or Giving or when the Disposition is not made sub Conditione but sub Modo only But when the Condition is Negative the Party on whom the Condition lies may be admitted to the effect of the Condition in the mean time or during the dependance of such Negative Condition he first entring into Bond or Caution to make restitution in case the Condition be not performed For if the Condition be Negative consisting in not Doing of some thing and cannot be performed so long as the person liveth on whom it was imposed then may he obtain the Legacy by giving in caution to accomplish the Condition or not to do that which by the Condition was prohibited otherwise in default thereof to make full restitution But if the Negative Condition be such as may be performed during his life on whom it is imposed then is not such caution to be given And if ever a Negative Condition be reduced to an impossibility it is then accounted as accomplished because it is then brought into such a state as that it is not capable of being infringed Also if the Negative Condition consist in not Chancing then likewise is the foresaid caution not to be admitted Lastly when the Condition is Affirmative then it is to be understood of the first Act of performance only but when the Condition is Negative then not only the First Act but also Second Third and every other Act is perpetually forbidden 5. Impossible Conditions be it in either of the four former respects viz. either in respect of Nature of Law of Persons or of Contrariety or Repugnancy are in themselves void and work nothing as to any hinderance either of Executorship or of Legacy But the Condition which was not impossible at first yet becoming impossible afterwards is not void in it self yet maketh void the disposition whereto it is annexed Also under this head fall all unlawful Conditions and such as are contrary to good manners for what is unlawful to be done the Law will have us to understand as impossible to be done and not only Conditions simply unlawful but also all Captious Conditions for when the Condition is repugnant to the nature of the disposition it self it is then a Captious Condition and is of no force for all Captious Conditions are void so are all Captious Wills and Testaments as when the Testators will dependeth on the Will of another it is a Captious Will and of no validity unless it be in favour of Liberty or ad pios usus 6. Necessary Conditions are all of no force whether they be necessary in respect of fact or such as cannot but come to pass or whether they be necessary in respect of Law for in vain doth the Testator annex that as a Condition to the disposition which the Law requires without for as in construction of Law that is deemed as impossible which the Law prohibits so likewise is that deemed as necessary which the Law absolutely requires therefore when the Condition is in either extream that is either necessary or impossible such hindereth not as to any suspension of the effect but it is as if any such Condition had not been at all expressed CHAP. XV. Of Testamentary Conditions in reference to Marriage 1. Conditions against the Liberty of Marriage Vnlawful 2. Condition of Marrying with the Consent of another how far Lawful or not 1. ALl Conditions against the Liberty of Marriage are unlawfull but if the Conditions are only such as whereby Marriage is not absolutely prohibited but only in part restrained as in respect of time place or person then such Conditions are not utterly to be rejected Thus an Executor or a Legatary made on some Condition against the Liberty of Marriage may notwithstanding the non-performance of such Condition obtain the Executorship or Legacy Yea if the Testator make one his Executor or give
for that the Wifes Administring without her Husbands Consent is and shall be accounted the Husbands Folly but an Infants Folly shall not be reckoned to his prejudice But if one be in debt to the Testator upon a simple Bond or Obligation and the Infant Executor receive the money and give Acquittance in that Case the Acquittance is good because there is a necessity for it for otherwise the Obliger is not bound to pay the same and in that Case there is no folly in him CHAP. X. Of a Woman under Coverture made Executrix or making Executors 1. Whether the Husband may fix an Executrixship on his Wife without or against her consent 2. Whether she may assume or accept the Executrixship without or against his consent 3. The difference between the Common and the Canon or Spiritual Law in this point 4. How the Wife may be said to be an Executrix without her Husbands consent 5. In what case a Wife may make an Executor without her Husbands consent 6. In what cases she may make her own Husband or any other her Executor 1. IF the Husband of a Woman appointed Executrix in a Will would have his Wife to take upon her the Execution of the Will to which she will not assent but refuse the Executrixship when her Husband would have her to take the Execution thereof In this Case the Executrixship is not to be fastned on her against her will but Administration is to be granted to the next of Kin as in case of Intestation But if the Husband though the Will be not Proved doth Administer as in the Wifes Right though against her mind and will she will hereby be so bound and concluded as that during his life she may not decline or avoid the Executrixship But not so after his death for then she may in this case refuse 2. As a Wife named or appointed Executrix in a Will may not be compelled unto the Execution thereof without her own and her Husbands consent so neither shall she assume or accept such Executrixship without her Husbands consent and approbation because it is in his power to oppose and hinder it 3. That the Wife appointed Executrix in a Will may neither assume nor be compelled to the Executrixship without her Husbands consent is true Doctrine only at the Common Law for by the Canon or Spiritual Law which doth not like our Common Law distinguish between Women married and unmarried in such matters it is otherwise For there the Wife may sue or be sued apart and alone without her Husband and therefore in that Court the Husbands disassent denial or refusal would be of small force to hinder the committing of the Executrixship to the Wife she not refusing But by the Law of England the Wife is so under the Husbands power that she is not capable of contradicting in pleading or doing other Acts insomuch that she could not take Lands nor Goods by Gift or Conveyance without her Husbands Assent And therefore the Husband may express his disassent as to his Wifes Proving the Will wherein she is made Executrix 4. If a Woman Sole be made an Executrix and she marry before she intermeddle with the Estate and then her Husband doth Administer this is such an acceptance as will bind her and she can never afterwards refuse it Likewise if once the Wife Administer though without the Husbands privity and assent and though no Will Proved This will go far to conclude them both for ever after from pleading That she neither was Executrix nor Administred as Executrix The Law is the same if once the Will be Proved and the Execution thereof committed to the Wife though against her Husbands mind and consent 5. A Wife or a Woman Covert being Executrix to another and in that Right having Goods moveable may thereof make her Testament and without her Husbands consent because she hath not such Goods meerly to her own use but as representing the person of another and therefore such Goods as she so hath as Executrix are not her Husbands but are to be disposed of for the use of the Testator And not only so but of these Goods she may make her Husband her Executor or any other person without his Licence unless instead of making an Executor thereof she bequeath the Goods whereof she is Executrix by Devise or Legacy for even with her Husbands consent she cannot bequeath such Goods or unless she is not only Executrix but Legatary also and hath accepted of the Things bequeathed not as Executrix but as Legatary for thereby they are invested in her Husband for which reason they cannot be given from him without his Licence and Consent Thus also for the continuation of this Executorship the Wife may make her Executors and her Will as touching such Goods Debts or Credits without her Husbands Consent to whom no benefit could redound by the Administration of these Goods which his Wife hath in right of another for those Goods would go and be to the next of Kin to the Testator taking Administration de bonis non Administratis in case the Wife should die intestate And therefore her Husband not being capable of advantage by such Goods cannot be thereby prejudiced And so it is but Reason that the Wife should appoint her Executors of such Goods and continue the Executorship thereof according to the mind of the first Testator without the Licence or necessary consent of her Husband which Consent indeed as touching all Goods and Chattels which the Wife had before Marriage or since in her own Right must be first had and obtained otherwise her appointing of Executors as to them will be invalid and of no force 6. A Woman by the Common Law may make her Husband Executor of such things whereof she was Executrix to another before or of a duty due unto her before Coverture or of a Rent being behind upon a Lease made unto her for term of life or of other Lease or of any thing whereof the possession must be obtained by Action but she cannot make him Executor of that which she hath in her possession as in her own Right CHAP. XI Of Debtors and Creditors made Executors or Administrators 1. How the making a Debtor Executor becomes a Release of the Debt in Law 2. In what Cases this holds true where there are joynt-Executors appointed 3. Vnder what limitations a Creditor-Executor hath precedency of other Creditors in paying himself first 4. Law-Cases relating to this Subject 1. IF an Executor Prove the Will and be indebted to the Testator the Debt is extinct in Law yea though the Executor died before he did ever Administer or Prove the Will for the Debt is released in Law by making the Debtor Executor though he never Administer There is the like extinguishment of the debt if the Creditor marry with one of the Executors of the Debtor But if
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
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
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
Absque hoc that he Administred as Executor or in any other manner and it was thereupon demurr'd and adjudged to be an ill Plea because he doth not say that he refused before the Ordinary nor confesseth any Administration for that which he confesseth is not any Administration and so no answer to the Plaintiff Wherefore it was adjudged for the Plaintiff Debt The Plaintiff as Administrator of J. S. sued upon an Obligation made by the Defendant and had Judgement afterwards the Administration is revoked but notwithstanding that the Plaintiff proceeded and got the Defendant in Execution And upon a motion to the Court it was agreed by the whole Court That the Execution was void and that the Defendant ought to be discharged Quia Erronicè emanavit for that the Letters of Administration being revoked the Plaintiffs power is determined therefore the ground of his sute being overthrown viz. his Commission he hath no Authority to proceed further and the Execution issued without Warrant The same Law per Curiam on a Judgement for an Administrator the second Administrator shall not have Execution thereon for he is not privy to the Record Quod nota Debt The Case was Rent was granted to Baron and Feme for their lives the Rent was Arrear the Baron dies another Rent is Arrear the Feme dies Intestate and her Administrator brings debt for the Arrerages due in the Life of the Baron and after All the Court resolved that it well lay because the Arrerages survived to the Feme as well as the Rent it self But an Exception was taken to the Declaration for that it is alledged that Administration was committed by the Dean of Lichfield and it shews not by what Authority he committed it nor that he was Loci illius Ordinarius and for this cause the Court held the Declaration to be ill for the Court intends not his Authority being special without shewing it But the pleading of Administration committed by a Bishop is good enough without saying that he was Loci ilius Ordinarius for so it shall be intended and so the Presidents warrant it but in a Bar of Replication it is vicious vid. 35 H. 6. 46. Debt brought against C. as Administrator and Judgement thereupon and now moved in Arrest thereof That this Action was brought by an Administrator who shews That Administration was committed to him by the Arch-Deacon but shews not what Authority the Arch-Deacon had to commit Administration and in proof thereof 21 H. 6. 23. and 35 H. 6. 46. were cited And the difference is where Administration is committed by the Bishop or Metropolitan and where by one who hath a peculiar Jurisdiction for in the last case he ought to shew how he hath his power Plowd 297. And although it be after Verdict yet it is not holpen by the Statute of 18 Eliz. cap. 14. being matter of substance and not of form as it was adjudged in Cutts and Bennetts Case but the Court held that it was well enough and they said That the Books are of Peculiars for it cannot be intended that they have any Authority unless it be shewn But the Arch-Deacon is Oculus Episcopi And de Jure Ordinario he is to commit Administration And it was adjudged for the Plaintiff An Executor recovers Debt and dies Intestate the Ordinary committs Administration de bonis non c. The Administrator shall not have a Scire Facias on the Judgement but a new Action of Debt as Administrator to the first Testator who is now dead Intestate A man sets a Lease for years the Lessee Covenants for him and his Assigns that he will not Lop nor Top the Trees during the Term And after the Lessee dies Intestate and the Ordinary committed Administration to J. B. who lopp'd the Trees whereupon the Opinion of the Court was That it was a breach of the Covenant for that an Administrator is an Assign as well as an Executor Administrator brought Debt and declared that Administration was committed to him by A. B. Sacrae Theologiae Professorem and saith not Loci ilius Ordinarium for which cause upon Errour the Judgement was reversed In this Case the Question was whether the Ordinary had power to take a Bond or Obligation of the Administrator to distribute according to the Ordinaries discretion the Goods that should remain after Debts and Legacies paid And it seemed to the Court That such Obligation is not good But in regard the Case was of great consequence Adjournatur Debt brought by J. S. against A. P. Executor of H. W. upon a Bond or Obligation of One hundred Marks the Defendant pleaded he was never Executor nor Administred as Executor whereupon they were at Issue and at a Nisi Prius it was found by a special Verdict That he had received Seven pound Debt due to the Testator and made an Acquittance for the same and took into his possession several particular parcels of Goods of the Testators and converted them to his own use whereupon all the Justices resolved That it was an Administration but at the Request of Sir Anthony Brown they respited the Judgement after the Defendant died and it repented the Justices that they had not given Judgement The Ordinary may grant several Administrations of several parts of the Intestates Goods 10 Ed. 4. 1. b. 18 H. 6. 22. b. 38 Ed. 3. 21. Also he may grant the Administration conditionally as whereas it was before granted to J. S. who is now Out-lawed or a Prisoner or beyond Sea c. he may grant it to another with an Ita tamen That if the said J. S. return into England he shall Administer when he returns If an Executor takes only the Goods which the Testator in his life-time took from him per tort it is not an Administration If certain Goods be devised to a Co-Executor and he take them without the Assent of the other Co-Executor it is an Administration because a Devisee cannot take the Goods devised without the Executors Assent Administration may be committed of the Goods of a Woman Covert who dies Intestate for possibly she might have things in Action which by the Law are not given to her Husband nor after her decease are at all invested in him D. 8 Eliz. 25. 90. Admitt A man possessed of Goods made an Infant his Executor and died the Ordinary committed Administration durante minoriaetate of the Infant to a Stranger The Question was when the Infant came of full Age what Remedy he should have against the Administrator for the Goods It was the Opinion of the Justices That he should not have an Account against him but he might have Detinue against him for the Goods or otherwise Sue him in the Ecclesiastical Court for them Debt against an Executor The Defendant pleaded That he had taken Letters of Administration The Plaintiff replyed That he Administred of his own wrong and after took Letters of Administration It
he should have all the Goods and the Kindred be defrauded which is not reasonable and therefore such Administration shall be void CHAP. XXXV Of Succession in the Right Line Ascendent 1. Whether Parents specially the Mother be next of Kin to her Child 2. The method of Succession by the Civil Law in the Right Line Ascendent 3. How the Succession goes by the Civil Law when some of the Collaterals concurr with those of the Ascendent Line 4. Whether by the same Law the deceaseds Brothers and Brothers Children may concurr with their Parents to the Succession 1. NOtwithstanding that Maxime at the Common Law That Inheritance cannot Lineally Ascend yet is the Parent more nigh of blood to the Child even by that Law than is the Uncle And by the Civil Law as the Son and Daughter be in the first degree of Kindred in the Line Descendent So the Father and Mother are in the first degree of Kindred in the Line Ascendent To constitute a Kindred it is sufficient that the Relations do centre and agree in aliquo Tertio or flow from one common Head or Fountain or spring from the same Stock or Root Thus the Father and the Daughter the Mother and the Son the Mother and the Daughter the Father and the Son they flow from one and the same Fountain they spring from the same Root viz. the Grand-Father and therefore are of Kin each to other And by the Laws of this Realm Parents are reputed to be of Kin to their Children and the Mother to be of Kin to her Child and therefore by the Statute Law if a man seized of Lands in Socage his Heir being within the Age of Fourteen years In this case the Mother shall have the Wardship of her Son as being next of Kin to whom the Lands cannot descend Indeed by the Law of the twelfth Table the Mother could not Succeed to her Children nor they to her But this is now altered the Law now being otherwise It cannot be denyed but that this Question viz. Whether the Mother be of Kin to her Child hath been much controverted amongst the ablest Lawyers and in the close of all after much dispute it hath been adjudged in the Negative viz. That the Mother is not of Kin to her Child As in that remarkable of the D. of Suffolk in Ed. the sixth's time wherein an Administration was granted away from the Mother to a Sister of the half blood According to which Judgement divers other Administrations for several years after were granted away from the Mothers to the Brethren and Sisters as next of Kin. Notwithstanding all which the Law indeed being all that while quite otherwise than was practised at last the Truth prevailed and the practice now frequent and Judgement every where given for the Mother that she is of Kin to her Child who dying Issueless and Intestate the Administration of his Goods may be committed to her as next of Kin according to the Statute Or if he be Issueless but not Intestate and maketh his Kin his Executor or bequeath the residue of his Goods to his Kin the Mother in this case is Admissable to the Executrixship as next of Kin to her Child or on the same account to enjoy the Legacy during her life and after her death then the other next of Kin. 2. If the deceased leave no Children they in the Right Line Ascendent do by the Civil Law succeed him but in this Order First the Father and Mother succeed equally and exclusively to all others that are of a more remote degree or the Mother only if the Father be not alive or the Father only if the Mother be dead And if there be several Parents of a distinct Line who are equal in degree but unequal in number they succeed according to their Stock or Root not according to their number thus the Grand-Father by the Fathers side shall have as much as both Grand-Father and Grand-Mother by the Mothers side But if the Parents be in an unequal or different degree then the right of Representation doth cease and the nigher shall ever exclude the more remote Thus the Father excludes both the Grand-Fathers by the Fathers and Mothers side and the Mother both the Grand-Mothers 3. There are also some of the Collateral Line who by the Civil Law do concur with those of the Ascendent Line for the Brothers and Sisters of the deceased do succeed him together with the Father and Mother And the Succession when the Brothers concur is proportioned according to their number But if there be divers Kindred of the same degree to the Intestate whose Father is dead whereof some are by the Fathers side others by the Mothers side as if the deceased leave a Grand-Father by his Fathers side and a Grand-Father and Grand-Mother by the Mothers In this Case the Succession is not proportioned according to their number but it is to be divided into two equal parts and the Grand-Father by the Fathers side draws the one Moity the Rest the other Moity And if it happens that together with those of the Line Ascendent and with Brothers of the whole blood to the deceased there be the Sons of other Brothers of the whole blood deceased In this Case the Sons of such Brothers deceased shall Succeed together with the others but not according to their Number but according to their Stock or Root that is those Sons of such deceased Brothers shall among them all have only that proportion which would have come to their Fathers if they had been alive Here Note that this is meant only of the Children of such Brothers deceased therefore the Grand-children and others more remote are not admitted together with the Parents and Brothers and Sisters of the deceased 4. Brothers and Sisters only of the half blood to the deceased do not concur with the Parents in the Succession Thus the Grand-Father in Succession to his Grand-child doth exclude the Brothers of half blood to such Grand-child unless the Brothers be of the same blood and of the same side with such Grand-Father And if a man dye Intestate leaving a Mother and the Children of his Brothers deceased behind him the Mother alone shall Succeed to the Intestate unless there be other Brothers of the deceased then living for then the said Children of the said Brothers deceased shall concur with the Mother Thus Brothers and Brothers Children may concur with their Parents to the Succession of the deceased but all other Collaterals are excluded by the Parents insomuch that the Uncles both by the Fathers and the Mothers side are excluded by the Grand-Father and Grand-Mother of the deceased CHAP. XXXVI Of Succession in the Line Transversal or Collateral 1. The Line Collateral is Two-fold In which Line the Jus Repraesentationis holds only in Brothers Children not in their Grand-Children 2. Regularly the whole
of Succession distinguish thus viz. Either he hath only Brothers of the whole Blood or only such Brothers Children or he hath Brothers by the half Blood or such Brothers Children In the first case the Brothers only succeed in the second case only the Brothers Children in the third case the half Brothers and such Brothers Children succeed equally according to their Stock or Root not according to the number of their persons Likewise if one dye leaving one Brother and three Children of another Brother deceased of the whole Blood the Brother alone shall have as formerly declared as much as the said three Children and these do succeed exclusively to all other collateral Kindred Also Brothers of the half Blood do exclude other collaterals Ascendent as Uncles Aunts whether by the Father or the Mothers side and that without distinction of Sex But put case a man dies without Children or Parents leaving one Brother by the Fathers side only another Brother by the Mothers side only for instance A man having had two Wives and a Son by each dies and the second Wife takes another Husband having a Son by him then if the Son by the second Wife of the first Husband dies he leaves a Brother of the half Blood by the Father and a Brother of the half Blood by the Mother In this case the Civil Law sayes that the Brother by the Fathers side shall succeed in the Goods that came by the Father and he by the Mothers side in the Goods which came by the Mother and both of them equally as to all Goods otherwise acquired but our Law knows no such distinction for they shall succeed equally being equal in degree and equal in Blood because by Marriage all was invested in the Father THE Orphans Legacy The Third Part. OF Legacies and Devises THE CONTENTS OF THE CHAPTERS of the Third Part. Â Chap. OF Legacies and Devises in General 1. Of Devisors and Devises or Legataries 2. Of Words and Expressions sufficient for Legacies 3. Of Conditions and their Resemblances incident unto Legacies 4. Of the several Marks and Kinds of Conditions and Questions in Law touching the same 5. What things are Devisables by Will and whether a Testator may Bequeath what is not his own 6. Of Lands Devisable by Will 7. Certain cases touching Devises of Lands void or not void 8. Certain Cases touching Devises of Land in Fee-simple 9. Certain Cases touching Devises of Land by way of Entail 10. Certain Cases in Law touching Devises of Land for Life only 11. Certain Cases in the Law touching Devises of Leases or for a Term of Years 12. Law Cases touching Devises of Reversions or Remainders 13. Touching Devises of Lands with Limitations and upon Conditions 14. Touching Devises of Rents 15. Of Devises touching the Sale of Lands by Executors or others 16. Of Legacies and Devises in respect of Marriages as also between Husband and Wife 17. Of Legacies and Devises to a Child in the Womb. 18. Certain Cases of Devises touching Lands and Real Chattels 19. Cases in the Law touching Legacies of Chattels Personall 20. Of Legacies touching Goods in Generall also what is to be understood under that Notion of Goods and what by Moveables and Immoveables 21. Law Cases touching Money Bequeathed by the Testator 22. Of Legacies relating to Debts with certain cases in the Law touching the same 23. Touching Election in point of Legacies to whom The Election of a Legacy expressed with too much Generality or Dubiety belongs whether to the Executor or to the Legatary with certain cases in the Law touching the same 24. When and how Legacies are null or become void or voidable with certain cases in the Law touching the same 25. Certain Positions or Assertions of Law for the better understanding of this Subject of Legacies and Devises with certain mixt cases touching the same 26. THE ORPHANS LEGACY The THIRD PART OF Legacies Devises CHAP. I. Of Legacies and Devises in General 1. What a Legacie or Devise is 2. What are the Requisites to the making of a good Devise 3. Whether is more Considerable as to Legacies the Time of making the Testament or of the Testators death 4. In what Court Legacies and Devises are properly Recoverable 1. A Legacy called a Devise at the Common Law is some particular thing or things given or left either by a Testator in his Testament wherein an Executor is appointed to be paid or performed by his Executor or by an Intestate in a Codicil or Last Will wherein no Executor is appointed to be paid or performed by an Administrator The Word Devise is specially appropriated to a Gift of Lands The Word Legacy to a Gift of Chattels though both are used promiscuously For a Devise is said to be where a Man in his Testament giveth or bequeatheth his Goods or his Lands to another after his decease Observe it is formerly said That a Legacy is a particular thing given by last Will and Testament For if a man dispose or transfer his whole Right or Estate upon another That according to the Civil Law is called Haereditas and he to whom it is so transferr'd is termed Haeres but at Common Law he is the Heir to whom all a mans Lands and Herediditaments do descend by right of Blood And by the same Law the Word Devise from the French Deviser is properly attributed to him that bequeaths his Goods by his last Will or Testament in writing the Reason being for that those Goods that now appertain only to the Devisour are by this act distributed and divided into many parts 2. To the giving of Legacies or to the making of a good and sufficient Devise there are several things Required The Person of the Devisor must be Legally qualified to Devise the thing Devised must be such as is Legally Devisable The Devisor at the time of making the Devise must have Animum Testandi That the Devisee or Legatary be in his Person such as is capable of taking by way of Devise That there be no Co-action on the Testator but that his Will be free and independent without fear force or flattery or other Sinister Contrivances That the Devise be made in that due manner and form as it ought to be That the thing Devised be Devised upon none other then if any Lawful Terms and Conditions That the words of the Devise be such as do clearly declare the Mind and Intention of the Devisor That Probate be made of the Testament after the Devisors death And in case it be of Land then that the Devisor be solely seized thereof in a Fee-simple Estate and not joyntly with another and that the Testament wherein such Devise of Land is be made in writing 3. To find out the Testators mind and meaning which is the very Index of the Testament the time of making thereof is regularly more considerable in point of Legacies then the Time of the Testators death
are to be sued for in that Court only yet the Ordinary cannot take Cognizance of Freehold devised And whereas it is said That the Devisee may not take the Legacy and serve himself but that it must be Delivered to him by the Executor yet the Law is otherwise in Case Lands or any Rents or other Profit to be taken out of Lands be Devised to a Man in Fee-simple Fee-tayle for Life or Years for in these Cases the Devisee may enter into and take the thing Devised without the Executors leave for so doing CHAP. II. Of Devisors and Devisees or Legataries 1. Who may be a Devisor or Devisee or Legatary 2. What persons are incapable of being Legataries 3. Whether an Infant in the Womb may be a Legatary or a Feme Covert to her own Husband 4. Whether Bastards may be Legataries 1. REgularly every one that is qualified to make a Testament may make a Devise of the same thing whereof he may make such Testament and whosoever is disabled to the one is disabled to the other also And therefore Infants under the age of 21. years may not be Devisors of Land nor of Goods under the age of 14. as to the Male or under the age of 12. Years as to the Female Nor may a Woman under Covert Baron Devise her Lands to her own Husband or to others with or without his Consent Nor may any Ecclesiastical person or Member of a Body Corporate Devise the Lands or Goods which they have in right of the Church or Corporation So that every Devisor ought to be a person qualified to devise and that both in respect of his Person and the thing Devised he must also have at the same time Animum Testandi and the thing Devised must be such as is Devisable And as to the Devisee or Legatary all such by the Civil Law as are uncapable of Inheritances and Goods are excluded from being Legataries or Devisees and indeed from being Executors But every one by that Law that may be made an Heir or Executor may also be a Legatary or Devisee and as to any others no Devise may be made Yet with this Difference that the Executor must be a Person capable both when the Testament is made and when the Testator dyes But it is sufficient for the Legatary that he be capable at the Testators death Indeed at the Common Law it is otherwise for there a Devise or Legacy may be given to all persons to whom a Grant may be made save in some few Cases And the Devise ought to be good and sufficient in Law at the time of the Testators death Therefore if a Man Devise Lands to an Hospital or the like when there is none such at the Testators death though afterwards made or erected such Devise is Null and Void The Reason is Because Devises at Common Law are Purchases and he that taketh Lands by Purchase must be capable to take the same when it falleth to him by the Purchase Thus by the Common Law the Devisee ought to be capable at the time of the death of the Devisor which holds also True by the Civil Law Hence it is that though a Man may not grant nor give Lands to his Wife during the Coverture because they both are but one Person in Law yet by Custom heretofore he might and by Statute now he may Devise his Lands to his Wife to have in Fee-simple or otherwise because such Devise taketh not effect till the death of the Devisor and then they are not one person So then Regularly whosoever may be a Grantee may also be a Devisee or Legatee 2. For which Reason a Cominalty not Incorporate by the Kings Charter to Purchase Lands is Incapable therefore if a Man Devise Lands Devisable in Fee to A. for Life upon a certain Condition the Remainder to certain Men of a Fraternity upon the same Condition not Incorporate by the Kings Charter and enabled to Purchase this Remainder is void Therefore a Legacy given to an unlawful Colledge is void for by that is meant all Companies Societies Fraternities and other Assemblies not so Constituted by the Prince and therefore incapable of being Legataries But generally a Devise may be good to any Person or Persons not specially rendred incapable by Law for by the Civil and Ecclesiastical Law the Legacy is void if it be given to an Heretick Apostate Traytor Felon Persons Excommunicate outlawed Persons Bastard unlawful Colledge as aforesaid Libeller ler Sodomite Manifest and Notorious Usurer except in some special Cases And yet it seems that a Devise of Lands to any such Persons is good within the Statute of Wills Likewise an uncertain Person can be no Competent Legatary no more then he is of being an Executor insomuch that if a Man Bequeath any thing to a person by a certain Name without other description of his person and there be more then one of the same Name known To the Testator in this Case neither of them shall be Legatary by Reason of the uncertainty Hence it is that Devises made in these words viz. To his best Friend or to his best Friends are void Devises Or to his Son A. B when he hath two Sons of the same Name unless you can help it by an Averment which Son the Testator meant but persons named Alternatively or Disjunctively are not so uncertain but may be admitted as Legataries And therefore if the Testator Bequeath 10 l. to A. or B. or to such or such a person both of them shall have the Legacy equally betwixt them Because this word Or is in favour of Testaments taken for and when it is so placed between two persons either as to the appointing of Executors or to the making of Legataries unless it can be well proved That the Testator did bear more affection to the one then to the other Or that he gave Authority to some other person of making the Election which of the two should be the Legatary Or when one of the persons is Incapable of being a Legatary for any of the Reasons aforesaid And if the Devisor doth Bequeath to his Brother or his Children such a thing saying I give to my Brother or his Children in this Case upon the presumption of Affection the Brother shall enjoy the Legacy during his life and after him the Children shall be the Legataries But if it be Devised to him and his Children then are both the Parent and his Children equal and Joynt-Legataries And whereas it is formerly hinted That an Heretick may not be a Legatary or Devisee understand it of an Heretick that is such at the time of the Devisors death for it doth not prejudice the Legatary that fie was an Heretick at the time of the making of the Testament so as he be not one at the Testators death Add nnto this Anabaptists for the Law Civil and Canon excludes them
Negative 4. There are also in the Law almost innumerable Questions relating to this Subject of Conditions To Enumerate some of them as whether Impossible or Dishonest Conditions do make the Disposition Conditional whether Necessary Conditions make the Disposition Conditional What are the various effects of Conditions whether Necessary Impossible or unlawfull Conditions do suspend the effect of the Disposition Whether Conditions partly certain partly uncertain do suspend the effect of the Disposition Whether Impossible Conditions which the Testator supposed to be Possible do suspend the effect of the Disposition Whether Conditions that are very hard and almost Impossible do suspend the effect of the Disposition Whether it be not sufficient for an Executor or Legatary to accomplish the Condition by some Equivalent means though not in the punctual and precise manner prescribed by the Testator Whether Conditions at first Possible but afterwards becoming impossible do hinder the effect of the Disposition Whether Conditions Impossible by reason of Repugnancy Contrariety Perplexity or Incompatability do not make void the Disposition Whether the Condition be not in Law held as accomplished when it is not the Executors or the Legataries fault wherefore it is not performed Whether when the Condition is Negative the Legatary may not have his Legacy entring first into Caution for Restitution thereof in case such Condition be not kept and performed Whether every Possible Condition ought to be observed precisely Whether and in what cases the Legatary may obtain his Legacy before the accomplishment of the Condition Whether it be sufficient that the Condition was once performed though it doth not continue so Within what time the Condition may or ought to be performed when no certain Time is limited by the Testator In what sense that common Condition if he dye without Issue is to be understood and when it may be said to be accomplished Whether the Natural as well as the Lawful Issue be to be understood by them words Whether that Condition be accomplished if he die leaving his Wife with Child which is afterwards born Or whether in case he hath a Child but dyes before his Father Whether there be any Difference and what that Difference is betwixt this Condition If he dye without Issue and This If he have no Issue What the Law is in case the Issue be born dead Or dyeth as it is born What course to be observed in Legacies where more then one are born at the same birth Whether the Condition of payment to be made to an Infant be performed by Payment made to his Guardian Whether he in whose favour a Condition is made may not consent to other means of performing the Condition then was prescribed by the Testator Whether a precise performance of a Condition be not understood only of Voluntary Conditions and not of Necessary Conditions Whether such precise performance of a Condition be Requisite when the Legacy is in favour of the Testators Children or ad pios usus Whether the Condition may be performed by another person then him that is Nominated in the Condition Whether casual Conditions may in any case be reputed as accomplished before the Event In what cases casual Conditions be reputed as accomplished albeit the same be not so indeed Whether a Condition doth prejudice the Executor or Legatary when the Testator himself doth hinder the performance thereof Whether a Condition doth prejudice a Legatary when the performance thereof is obstructed by a Third Person Whether the accomplishment of a Condition hindred by casual means shall prejudice the Legatary In what cases an Affirmitive Condition doth imply a Negative What the Law requires of the Legatary as to Bond or the like when the Condition is not performable during Life Whether a Negative Condition is said to be accomplished when it cannot be infringed What if the Party be already Married to whom any thing is Bequeathed Conditionally if he shall Marry Whether the Condition shall be reputed as accomplished if the Legatary were once willing and afterwards becomes unwilling What are captious Conditions and how they shall not prejudice the Legatary Whether a Legacy given with a Condition dependent on the will of another then the Testator himself be not a void Bequest What the difference in Law is between the Testators referring his will to the Absolute and to the Limited will of another Whether he to whom the Testator commits the Disposition of all his Goods be not Executor or Universal Legatary How far the Conditions of Legacies or Executorship against the Liberty of Marriage be Lawful How far as to Legacies or Executorships the Condition of Marrying with the Arbitrament Will or Consent of another is Lawfull Whether the Condition of forbidding the Alienation of the Legacy is Lawful In what cases the Legatary may Alienate the Legacy notwithstanding such prohibitory Condition of Alienation Within what Time the Condition may and ought to be performed by the Legatary when no certain Time is set or Limited by the Testator Whether the Condition may be performed during the Time betwixt the making of the Testament and the death of the Testator Whether a Legatary must not perform an Arbitrary Condition as soon as he can Whether any Time doth prejudice a Legatary whilst he is ignorant of the Condition Whether a casual Condition may not be accomplished at any time With innumerable other varieties of Conditions well known to such as are acquainted with the Law whereby you may now by this time readily perceive it was a Truth which was formerly hinted That to Treat of this Subject of Conditions as to Executorship and Legacies and to do it distinctly though not in the Amplitude of their due Dimensions but by way only of a compendious Contraction would of it self require a very Voluminous Tract Being therefore bound up to the Laws of an Abridgment we may not Sail into the Vast Ocean of the Laws to fetch you home any Transmarine Resolutions to the said Questions but shall only refer you to our own Countreyman in this Profession the Learned Mr. Swinborne and others who of this Subject have written very Copiously yet Succinctly CHAP. VI. What things are Deviseable by Will And whether a Testator may Bequeath what is not his own 1. What things in particular may be Devised or Bequeathed 2. In what Case a Legacy given by a Testator of a thing that is not his own may be good or not 3. How a Testator may Bequeath what is his Executors 4. A Bequest to one of what was his own before is void 5. The Difference between the Common and Civil Law in this Point of Devising what is another Mans and not the Testators 6. Goods in Joynt-tenancy not Deviseable 1. REgularly and Infallibly all things that come to Executors or that at the Testators death can be Assets in the Executors hands were Deviseable by him in his Life More particularly All the Testators Goods and Chattels whether Real and Immoveable or Personal and Moveable
Wife came and demanded the 20 l. and none ready to pay it Whereupon the Husband and Wife brought a Writ of Devise and Recovered In this Case it was Resolved were the 20 l. Rent or a Sum in gross That by the bringing of the Writ of Dower the Wife of the Devisor had lost all the benefit which was to come to her by the Devise because the said Rent was Devised to her in Recompence of her Dower so that it was not the meaning of the Devisor that the Wife should have both In the Time of Queen Mary Benloes Serjeant moved this Case A Man Seized of Lands and Tenements in London devised them by these Words viz. I Will and bequeath unto my Wife A. my livelihood in London for Term of her Life and that by this Will the Lands in London pass to the Wife by this Word Livelihood Note for Brook Justice said That it was in ancient Time used so in divers places of this Realm and had been taken for an Inheritance Unto which Dyer also agreed A. having Two Sons by Two Wives devised his Land to I. his Eldest Son and his Heirs after the death of his Wife to whom he devised them for her Life The Question was Whether the Son should take them by Devise as a Purchasor or as Heir at Common Law by descent The Court held that the Devise was void and that it was not in the power of the Son to make Election to take by descent or by Purchase but he must of necessity take the Land as the Law directs which is by descent And it is against a Maxime of Law to give a Thing to such a person to whom the Law gives it if it had not been given A Man made his Will in these Words viz. I give and Bequeath one half of my Lands to my Wife and after her death I give all my Lands to the Heirs Males of any of my Sons or next of Kin. In this Case it was held That the Devise was void because of uncertainty and the words being in the disjunctive and we ought not to frame a Sense upon the Words of a Will where we cannot find out the Testators meaning Likewise it hath been adjudged That Lands devised to a Mans Issue was uncertain and therefore such Devise void If a Man hath in his Occupation several Farms together and then doth Devise one of the Farms called D. and all the Lands to the same belonging the other Farms shall not pass with it although they be occupied altogether If a Man doth Will and Devise That A. and B. his Feoffees shall stand Seised and be Seised to the use of I. S. for his Life the Remainder over c. when in Truth he hath no Feoffees It is a good Devise to I. S. by reason of the Intention Or if a Man make a Feofment to his own use and afterwards Devise That his Feoffees shall be Seised to the use of his Daughter A. who in Truth is a Bastard it is a good Devise of the Lands by Intention Three Brothers are of one Father and Mother the middle Brother Seised of Land Devisable giveth this by his Testament Propinquiori fratrisuo It seemeth that none of them shall have it Note it was held by the Justices That if a Man Seised in Fee of a Mannor and Lands Deviseth the same by his Will to his Son and afterwards in another part of the same Will deviseth a Third part of the same Lands to another of his Sons That they are Joynt-Tenants of the Lands And so if a Man in one part of his Will deviseth his Lands to A. in Fee and afterwards by another Clause in the same Will he deviseth the same Lands to another in Fee they are Joynt-Tenants Between B. and P. the Case was this I. W. being Seised of the Mannors of W. and C. in Socage made his Testament devised the Two Mannors in Form following viz. The Mannor of W. to the Eldest Son of R. F. his Cousin and his Heirs and further he devised the other Mannor to M. W. during her life and if she dies and then any of my Cousin F's Sons Living then I will my said Mannor of C. to him that shall have my Manner of W. R. F. had Two Sons G. and I. G. enters on the Mannor of W. and the said M. enters on the other Mannor After G. dies without Issue I. enters on the Mannor of W. and alienates the Fee thereof Afterwards M. dies I living The Question was Whether I. ought to have the M. of C. or not The Court agreed That he could not have it for that he was not such Person as was named or limited to take by the Will for that he had not the Mannor of W. at the Time of the decease of M. and therefore not the Person intended by the Will The Case was That R. P. Seised of divers Lands in A. and having Issue Four Daughters B. I. F. M. made his Will 27. Eliz. in Writing and thereby all his Land in A. he devised to B. and I. his Daughters and made them his Executrices and after in 33. Eliz. Purchased other Lands in A. which are the Lands in Question and after one I. S. came to the Devisor and desired that he would Sell unto him those Lands which he lately Purchased And he said No they shall go with my other Lands in A. to my Executrices Afterwards in 34. Eliz. he fell Sick the Will was read unto him and he said nothing thereto but then gave divers Legacies of Goods to others and caused them to be written and annexed in a Codicil thereto and dyed Whether these Lands newly Purchased shall pass to the Executrices by that Will was the Question viz. Whether by those words used to a Stranger or the annexing of a Codicil to the Will being only concerning Goods be as a new Publication of his Will to make these Lands to pass c. First It was agreed by the Council on both sides and by the Justices That if the Devisor after the Purchase of that Land had made new Publication of his Will and shewed his Intent that those Lands should pass it had been a good Devise of them For the Words in the Will are all his Lands in A. which are apt enough and sufficient to carry them and he could not have added more apt words thereto But afterwards all the Justices Gawdy absente held that it is a new Publication of his Will and sufficient by the words to I. S. For that shews his intent sufficiently and the Will writ hath words sufficient And Fenner held That the annexing of the Codicil thereto is a new Publication as to it For therein he Affirmed That it should be his Will at that Time But the other Justices doubted thereof because he doth not shew thereby any intent That this Will should be for his Purchased Lands nor that he then
remembred them But for the foresaid Reasons it was adjudged for the Plaintiff That those Lands well passed by the Will Suppose a Man hath Two Sons both named John and conceiving his Eldest Son to be dead he Deviseth his Land by his Will to his Son John generally when in Truth the Eldest Son is living In this Case the Younger Son may alleadge and give in Evidence the Devise to him and may produce Witnesses to prove the Intent of his Father And if no Proof can be made the Devise shall be void for the uncertainty of it Glanvile Serjeant prayed the Opinion of the Court in this Case A Man had Issue a Son and a Daughter and Devised his Lands to his Son in Tail and if he dyed without Issue That it should remain to the next of his Name and dyed The Son dyed without Issue the Daughter being then Married whether she should have the Land was the Question And held per Curiam That she should not For she had lost her Name by her Marriage but it should go to the next Heir-male of the Name But if she had not been Married at the Time of her Brothers death the Daughter should have had it for she was the next of the Name One Devised certain Lands in N. in Tail the Remainder to the next of the Kin of his Name and at the Time of the Devise the next of his Kin was his Brothers Daughter who was then Married to I. S. the Devisor dyed The Tenant in Tail dyed afterwards without Issue Whether the Daughter should have the Land was the Question upon a special Verdict and adjudged without Argument that she should not For she is not now of the Name of the Devisor but of her Husbands Name But if she had been unmarried at the Time of the Devise and death of the Donor although she had been Married at the Time of the death of the Tenant in Tail without Issue yet she should have had the Land Wherefore it was adjudged accordingly Ejectione Firmae For certain Lands in A. upon Evidence to a Jury a Devise was shewn of an House with the Appurtenances and thereby Land in the Field was claimed And Popham doubted whether it should pass But Fenner said That it well might pass And that upon Demurrer in 28. Eliz. it was adjudged accordingly The Defendant then to make it clear shewed That the House was Copyhold and the Land Freehold And the whole Court thereupon conceived That it could not be said Appurtenant although it had been used with it Wherefore the Plaintiff was Nonsuited In the Case between H. and H. all agreed the Case of 13. H. 7. That a Testators Devise to his Heir of his Land after the death of his Feme is a good Devise by Implication to the Feme of that Land during her life for it appears he intended his Heir should not have it until the death of his Feme And none other can have it besides the Feme And therefore it is a good Devise to the Feme by Implication But if such a Devise had been to a Stranger after the death of his Feme it might peradventure have been otherwise for the Heir in the Interim might have had it Note That the Opinion of all the Justices was That if one make his Testament wherein are these words viz. I Release all my Lands c. to A. and to his Heirs It is a good Devise of the said Lands to A. and his Heirs Upon a special Verdict the Case was this A Woman Seised of Lands made her Will and devised the same to one and his Heirs after they Intermarry After Marriage the Woman intending to revoke her Will doth revoke it by words after Marriage and saith That her Husband shall not have the Land by her Will and after dyes Whether the Husband by that Will or the next Heir to his Wife shall have the Land was the Question The Case was Argued Pro Con several Arguments on both sides In fine it was Adjudged That the Will was void and that the Husband could take nothing thereby A Man Devised his Lands to his Wife from Year to Year until his Son I. come to the Age of 20. Years and dies the Wife enters I. dies before he attain the Age of 20. Years And it was moved by Harper whether her Interest were thereby determined And it was held by all the Justices That by the death of the Son the Estate of the Wife was determined and that she had no longer any Estate therein For it is to be intended that the Will of the Devisor was That his Wife should have the Land during the Minority of his Son for that he himself could not Legally dispose of the Land being within Age. And Dyer said That by these words de anno in annum It is intended that the Will of the Devisor was That the Interest of the Wife should determine by the death of his Son But if the Words had been until his Son should Come or might Come to that Age of 20. Years then notwithstanding his death the Estate of the Wife had continued A. Seised of the Mannor of Chessam extending into Chessam and the Town of Hertford and also of Lands in Hertford Devised by Will the Mannor of Chessam to B. his Eldest Son in Tail and the Lands in Hertford to C. his Younger Son It was held by all the Justices That the Younger Son should have all that part of the Mannor of Chessam which lay in the Town of Hertford A. Devised that his Lands should descend to his Son but Willed That his Wife should take the Profits thereof until the full Age of the Son for his Education and bringing up and dyed The Wife Married another Husband and dyed before the full Age of the Son It was the Opinion of the Justices in this Case That the second Husband should not have the Profits of those Lands till the full Age of the Son For nothing is Devised to the Wife but a Confidence and she is a Guardian or Bailiff for to help the Infant which by her death is determined and the same Confidence cannot be transferred to the Husband A Man Seised of a Messuage to which a Garden and a Curtilage did belong Enclosed with a Wall and there was no way to the Garden but through the Messuage He Devised the Messuage to his second Son in Fee not mentioning the Garden nor Curtelage nor saith cum pertinentijs It was Adjudged in this Case That the Garden and Curtelage did pass by this Devise They said a Curtelage is parcel of the House as a Stable and a Dovehouse and the Garden shall pass because it is as well for Necessity to it as for Pleasure A. Seised of Lands had Two Daughters and Devised the Lands to the Eldest and her Heirs that she pay to her Younger Sister yearly 30 l. It was the Opinion of all the
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
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.
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
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
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
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
or which if demolish'd the Kitchin or the Stable could not remain useful 31. If a House Devised with all the things in it It is to be understood only of those things that werein it when the Testament was made and not of those things which the Testator brought into it afterwards likewise if a House be Devised with all the things which shall be found in it when the Testator dyes it is not to be understood of such things as were brought into the House without the privity or knowledge of the Testator or which were casually and by chance brought into it Contrariwise such things as were casually carried out of the House shall not be excluded out of the said Legacy or Devise nor any moveable Goods in the House which are not momentaneous but ever remaining there as of Domestick use For which reason Debts upon Bills or Bonds Money and Wares designed for Merchandize and the like are not within the said Devise of a House with all things in it 32. If a man Devise his Chamber he is to be understood rather to have Devised the things belonging to the Chamber than the Place But if a man Devise his Drapers-Shop he is to be understood to have Devised rather the Place than the Wares therein For that the word Drapers serves only by way of Demonstration to to shew what shop he meant Otherwise if he say I Devise my Shop and Cloth in that case it shall be understood the Cloth in the Shop 33. If a man Devise a certain Field wherein any Edifice or Building doth stand that Building doth pass by such Devise of the Field if not expresly excepted in the Devise yea albeit the Edifice were Erected after the Testament was made but if the Field be Devised excepting the Edifice thereon the ground in case the Building should be demolished is likewise excepted out of such Devise 34. If a man should Devise the Fee of certain Lands to one and the Rents Profits and Issuers of the same Land to another and both in the same Will In this case by the Civil Law the Rents thereof are equally to be divided between the two Legataries 35. Suppose a man in his last Will and Testament saith I give unto my Wife the Tenement and 700 l. which I had with her in Marriage when as in truth he had but 600 l. with her beside the Tenement In this case she shall have 700 l. with the Tenement unless it can be sufficiently proved that the Testator did think or conceive that he had had 700 l. with her in which case there is only 600 l. and the Tenement due to her by the said Legacy or Devise 36. A Legacy or Devise may be inferr'd from the mind and intention as well as from the Express words of the Testator As thus A. B. constitutes his two Sons his Executors and in his Will sayes That they shall not in any case Alien the Leases and Rents which out of his Estate are about to come to them but shall preserve them for Succession viz. of their Children and ordered it so that he made his two Sons enter into Recognizance to observe his said Injunction accordingly and dyes The Successors of the said Sons claim and demand the said Rents and Leases by vertue of the said Devise They cannot De jure but after the decease of both the said Sons it shall come to their said Successors not before 37. The omission of the quality or description of a Devise in a Will albeit the Testator therein said he would insert the same doth not viciate or null the Devise Therefore if a man Devise certain Lands and Tenements with their Appurtenancee scituate nigh a Town to the Corporation thereof and in his Will saith Which Lands and Tenements with their Appurtenances I shall after in this my Will describe and set forth the just bounds and Limits thereof as also what I would have the said Corporation Annually to do in remembrance of me for and in consideration of this my Devise But being by death prevented doth neither of these the said Devise is notwithstanding good 38. If Land be Devised to A. B. and C. D. when A. B. is not in rerum natura C. D. shall have the whole 39. A Testor doth Devise certain Houses to A. B. after the death of his Executor and dyes the Houses happen to be burnt living the Executor and by him Re-edifyed the Executor dyes In this Case the Executors Executor is obliged to surrender the Houses to A. B. but he may deduct the charges of Rebuilding them if they were not burnt by any default of the first Executor otherwise not But if they were burnt in the Testators life time and by him Rebuilt or others erected in the same place In this case the Devise is void unless it appears that the Testators mind was otherwise But if they were only mended altered and repaired so often that there remains now nothing of them at the Testators death as when the Testament was made In such case the Devise is good The Law is the same in case of a Ship or other Vessel so often Repaired that little or nothing thereof now remains at the Testators death which was at the time of making the Testament 40. A. B. Possessed of certain Lands called the Millfields in one corner whereof stood a Little Vineyard made his Will and therein Devised in this manner viz. I give unto I. G. my Lands called the Millfields excepting the Vines which shall be therein at the time of my Decease A. B. after the making of the said Testament and before his death did cut down the Vines which were in the corner of the said ground and dyes The Question is whether the corner of the said ground where the Vineyard stood shall pass by this Devise It is held in the Affirmative grounded upon that Rule in Law Exceptio rei quae non reperitur nihil importat 41. A. B. By his last Will and Testament doth Devise a certain House to C. D. in case his Ship returns within a year safe home from the Straights makes his Executor and dyes The Executor doth Devise the same House to J. G. under another Condition Depending that other Condition the said year expires and the Ship not return'd from the Straights whereby the first Condition of the Devise to C. D. fails In this case the Devise made by the Executor under that other Condition if performed is good otherwise it would be in case the former Condition had been accomplished in which case the Devise made by the Executor would have been void 42. If a man Devise a certain parcel of ground and after Erect an Edifice thereon the Building or Superstructure as well as the ground doth pass by that Devise and the Devisee shall have them both because the Rule in Law is Quod aedificatur in area Legata
Anne she shall have both And this is the Common opinion from which notwithstanding there are not wanting and they not of the minor DD. who recede in their Judgments and held That a Disjunctive in a Legacy ought to retain its force so as the Executor may be least burdened which seems nothing inferiour to Reason in an impartial ballance yet this may be relyed on as indubitable that where the Disjunctive is placed between two such things as are commonly conceived under the notions of Genus and Species or between the whole and his part then and in such case it shall be taken for a Conjunctive as if the Testator should say I bequeath to my Wife my Plate Jewels or such things as I provided for her the latter words whereof are Generical the former Specifical she shall have both Or if he saith I bequeath to my Wife my Wine which is in the City or in the Port the Port is held as part of the City and she shall have the Wine in both Likewise if any thing be bequeathed to D. E. or F. G. here in this case also the word or shall be taken for the Copulative and so that both of them shall equally take by this Devise unless the one be of nearer kin to the Testator than the other in which case the nearest of kin shall have it for his life the other afterwards or unless it can be proved that the Testator did bear more affection to the one than to the other in which case he to whom the Testator did bear most affection shall be preferred or unless the one of them is not legally capable of the Legacy in which case the word or shall stand as properly it is for a Disjunctive One Devised his Lands to his three Daughters and said further in these words viz. I will that every of them be others Heir by equal portions Whereupon it was doubted when one of them dyed whether the others should hold by survivorship as Joynt-Tenants Or in this case as Tenants in Common The whole Court was of opinion for the latter and not as Joynt-Tenants for that it appear'd the intention of the Donor was such in saying That each should be others Heir by equal portions which could not be if there were a survivor for thereby it is not possible the words of the Will can be of any force Although properly Houses pass not by the name of the Lands yet in a Devise they shall pass by the Name of all the Lands if the intendment be not otherwise by some Expressions of the Devisor for though in a Writ nothing shall be demanded or recovered but according to its proper signification yet in Wills Expressions shall be taken according to the Common intendment Wherefore in a Will by the Devise of his Land all his Houses may pass or not according as it is phrased by the Devisor For if a man Devise all his Lands his Houses shall pass but if he restrain the word Land according to its genuine propriety as Arable Land or doth couple it with Meadow and Pasture in such case the exposition of the word shall be taken according to the common intendment of the Devisor or having both Houses and Lands in A. and B. doth say I bequeath to C. all my Houses and Lands in A. And to D. all my Lands in B. In such case and by such expression the Devisor seems to exclude the Houses in B. out of the Devise to D. which expresly he includes in the Devise to C. Moore succinctly Reports the case thus viz. Debt for Rent the Defendant pleaded nihil debet Whereupon it was found That J. S. being seised of three Houses and other Lands Pastures and Meadows in Watford in the County of Hertford as also of a House and Land in the County of Oxford Devised the same in this manner viz I give all my Capital Messuage in the County of Oxon and all other my Lands and Meadows and Pasture in the Parish of Watford The Devisee brought Debt against the Lessee for years of the Houses in Watford And it was adjudged Maintainable because the word Land comprehends Houses and the Houses shall pass by the Devise CHAP. XX. Cases in the Law touching Legacies of Chattels Personal 1. CHattels Personal may be bequeathed to one for life and afterwards to another in which case the first hath only the use or occupation the other hath only the Propriety thereof So that if one Will that A. B. shall enjoy the use of his Houshold-stuff during his life and after that it shall remain to J. M. This is a good Devise thereof to J. M. But if the thing it self be bequeathed to the first of them then it is otherwise for the gift of a Chattel Personal though but for one hour is the gift thereof for ever Provided the Testator make it Absolute not Conditional 2. Chattels Personal do pass under the legal Notion of Moveables as Chattels Real do under that of Immoveables of both which the Law makes a Distinction into Creatures Living and Things inanimate albeit of the living Chattels Real there can but very few instances be given Such was Wardship in respect of the Tenure of Land As also Villenage for years or that right which the Lord had in the Villain only for a Term who resembled him whom the Civil Law terms Ascriptitius Glebae or one in perpetual Obligation to the Plow on some certain Lands The Real Chattels Inanimate chiefly consist in Houses or Lands or the issues thereof as by Lease for years or by Extent upon Judgments Statutes or Recognizances Or if the Testator had a Term of years in certain Advowsons Tythes Profits of Fairs Markets or Court Leets the Interest is a Real Chattel among the things inanimate likewise a Presentation to a Church upon the next avoidance and before it come to be void is a Real Chattel But of this and Chattels Personal with their respective Individuals the Reader may have a more exact Description if he hath a retrospect to Cap. 6. Par. 3. whereunto he is referred for clearer satisfaction 3. A. B. having two Brothers and one Son makes his Son his Executor and in his Will saith That he would have his Son let the said two Brothers who are the Sons Uncles have all the goods he hath in D. and M. or elsewhere saying withall That all these things he doth leave them for this Reason because he would not that his Son should have any Difference or Controversie with them In this case and by this Devise A. B. seems to leave his two Brothers only what was in common between him and them and no more This interpretation being grounded on the Reason annexed at the close of the Testators words where he saith Because his Son should have no difference or Controversie with them by which Reason he seems to have a prospect of Differences like to arise between him and
do therewith what the Testator required The refusal of payment by the Executor is good thou shalt not have the 100 l. till thou give good security to do therewith as by the Testator is enjoyn'd 30. Suppose a Testator gives 500 l. to one 400 l. to another and 300 l. to a third And after saith in his Will That A. B. shall have as much as one of the Legataries The Question is what A. B. shall have Some have supposed that he ought to have 500 l. because in the greater the less is included but the Law which prevails in such case is otherwise he shall have only 300 l. and no more because the Executor being burdened with such Legacies ought to have it in his power to give which proportion he thinks fit And because it is a Rule in Law That in all doubtful cases relating to the quantity of a Legacy the least is to be understood 31. A. B. makes his last Will and Testament wherein he disinherits his Son and makes a Stranger his sole Executor gives divers Legacies and after in his Will sayes That in case his Will should hereafter happen by any means to be so invalidated as to be pronounced Judicially null and void that thereby he should happen to dye Intestate That then however his full purpose mind and resolution is That from such Administrator ab Intestato whoever it should happen to be shall be given 100 l. to C. and 200 l. to D. and dyes After his said Son doth commence his Action and gets Judgment against the Will which is Judicially pronounced null and void the Son obtains Letters of Administration of his Fathers Estate ab Intestato The Question is whether the Son be obliged to pay the Legacies left by his now Intestate Father It is Resolved in the Negative for that not any thing now is vallid in such case which related to his Fathers mind or meaning in the said pretended Will as aforesaid 32. To conclude A Testator writ his Testament with his own hand and therein said That in regard he had found A. B. a very faithful Servant to him and that he had done him many eminent Services he desired to leave him not by way of a Legacy but by way of Gratuity 100 l. which he would have his Executor to pay him as a reward of his good Services and dyed Now in truth A. B. was such a person as by Law was incapable of taking by a Devise The Question is whether A. B. may demand the 100 l. not as a Legacy but as a reward for his Services aforesaid It is held in the Negative because it will be presumed it was left him in that manner in fraudem legis on purpose to defraud the Law which rendered him by reason of some legal Impediments incapable of taking by a Testament And for that a Testators Testimentary Confession of his being obliged or in debt to a person in himself incapable hath no operation in the Law other than to raise the Presumption so much the stronger that it was made only in fraudem legis specially when such Confession is voluntarily made in favour of a person incapable CHAP. XXIII Of Legacies Relating to Debts with certain Cases in the Law touching the same 1. THings in Action as Debts are Deviseable by Will therefore if the Testator bequeath any Debt due to him on an Obligation or a Contract or the like the Bequest is good for Obligations as also Counterpanes of Leases and the like may be Devised only the Legatary cannot sue upon the Obligation in his own Name nor enter for the Condition broken upon the Lease if there be cause but he may cancel give sell or deliver up the Obligation to the Obligor or surrender the Counterpane to the Lessee And it is an infallible Rule That whatsoever may come to the Executor after the Testators death in respect of his Executorship may be Devised by the last Will and Testament of the Testator Therefore a Testator may bequeath a Debt due to him and if he doth not make the Legatary his Executor as to that Debt and he who is his Executor shall refuse to sue the Debtor that so the Legatary may receive it in this case the Legatary may compel the Executor either to recover it himself and so to pay it to the Legatary or to give him power to sue for and recover it himself in the Executor's Name And this the Legatary may compel the Executor unto by conventing him before the Ordinary and on pain of Ecclesiastical censures to make him a Letter of Atturney for recovery of the Debt to him bequeathed in the Executor's Name in case the Executor himself doth not sue for it for the Legataries use who cannot otherwise sue the Debtor because he doth not represent the Testators person But if it be such a Case of Action as is altogether uncertain as where a man hath an Action against another for taking away his Goods or for some Trespass done the Testator in his life time or to compel another to make an Accompt or the like such Cases of Action are not Deviseable 2. Now the Law takes notice but of four wayes within the Circumference whereof all Legacies relating to Debts do fall As 1 when the Creditor bequeaths to one what his Debtor owes him Or 2 when he bequeaths it to the Debtor himself Or 3 when the Debtor bequeaths to the Creditor Or 4 when a third person bequeaths to a Creditor what his Debtor owes Suppose therefore that a Creditor should bequeath to one what A. B. owes him without expressing either the thing or the quantity in this case he seems to bequeath his right of Action nothing else So that the Testators Executor is no way obliged to such Legatary further than to deliver him the Obligation or Bond and yield his Name if need be to the Action Yea though the quantity were expressed by the Testator yet the Executor is not bound to pay it to the Legatary if the Testator joyn'd the very person of the Debtor himself with the execution or payment of the Legacy as if he should say I would have A. B. receive the 10 l. of C. D. which he owes me yet even in that case if the 100 l. cannot be recovered without Law it shall be at the Executors not the Legataries cost and at the Legataries not the Executors peril 3. Every Bond or Obligation is both Active and Passive but in divers respects Active in respect of the Creditor Passive in respect of the Debtor Active when the Creditor bequeaths to a third person what his Debtor doth owe him Passive when the Debtor bequeaths to his Creditor what himself owes to the other Between which two the difference is great for when the Creditor bequeaths he bequeaths either to the Debtor himself or to some other person In both which cases a Right is bequeathed but with this difference in the former
10. By Devising the Bents § Ibid. By a Generall Implication p 244 § 11. Whether Fee-simple passeth in a Will by the Word Assigns without the Word Forever p. 242. § 5. Fee-simple Devised to one is not Devisable to another by the same Will p. 243. § 9. Fee and not Leases and Leases and not Fee in what Cases and by what words pass by a Devise p. 244. § 12. Fee of Land Devised to one the Rent thereof to another what the Civil Law in that Case p. 295. § 34. The Devise of a House though by the word Fee-simple thereof may pass only an Estate for life p. 255 256. § ult Felo dese Intestable as to Goods and Chattels not so as to his Lands p. 226. § 3. Felons under Attainder are Intestable p. Ibid § 3. They are not Intestable before Conviction p 20 21. § 2. They are Incepable of a Legacy p 206. § 2. The Qualifications thereof Ibid. Feme Covert she may without her Husbands consent make an Executor of those Goods whereof her self is Executrix or which she hath as Executrix p 226. § 3. Yet she cannot Devise them by Will Ibid. Being Executrix and under that Notion receiving Money she may release without her Husband p. 71. § ult Whether she may be a Legatary to her own Husband p 208. § 3. She may not Devise Lands to her own Husband nor unto others either with or without his consent p 205. § 1. 226. § 3. vid. Women Covert Feme Sole her Devise to him whom she after marries is void p 281 282. § 13. Field if Devised the Edifice thereon passeth therewith p. 295. § 33. Fraud or Covin in an Executors Payments shall not prejudice the Creditors p. 147. § 11. Fraudulent Recoveries no Barre to Creditors p 108. § 7. p. 113. § ult Freehold Devised not Cognizable before the Ordinary p 205. § 4. G. Garden passeth by the Devise of a House p 237. in prin Gavelkind Lands Devisable by Custom p 224. § 1. An Estate-Tail thereof Devised p 251. § ult Goods What shall pass by a Devise of all Goods Chattels Moveables and Immoveables p 289. § 7. Goods in generall Devised what shall pass under that Notion p 306 307. § 1. Goods in Common Devised by Implication p 302. § 3. Grantees may be Devisees p 226. § 4. Ground Devised the Edifice thereon passeth thereby although Erected after the Devise made p 297. § 42. The Ground whereon a House stood which is after burnt belongs to the Devisee or Legatary p 304. § 14. H. Habendum how to be construed in a doubtfull Case of Devises p 243. § 7. Have or the word I have in what case it shall be taken in the Present Tense p. 295 § ult Heire the different Acceptations of that word in the Civil and Common Law p 202 § 1. In what case he may enter upon Lands Devised to be Sold. p. 139. § 3. In what case he and not the Executor shall have the mean Profits of Land Devised to be Sold. p 273 § 3. He shall take the Advantage of a Condition broken that is annexed to a Devise of Land Ibid § 2. A Devise to one and his Heir in the Singular Number is but a Devise for Life p 253 § 3. The Heirs Rights exclusively to the Executons p 83. In what case Heirs shall not take by a Devise though they are therein mentioned p 238 239 § ult In what case a Devise by that Word Heirs shall yet go to the Executors p 257 258 § 1 3. Hereticks in what Sense Testable or not p. 21 § 3. They are Incapable of a Legacy p 206. § 2. The Qualifications thereof Ibid Horse one Devised to two Persons how the Divident to be apportioned p. 304. § 15. By a Bequest of Horses shall Mares pass if the Testator had no Horses p 303. § 10. Hospital-Lands or their Rents-Arreare not Deviseable p 225. § 3. House Devised when the Testator had none or many or burnt or ruin'd pull'd down demolished or re-edisied The Law in such cases p 294 § 27 p 296 § 39. House Devised with all things therein how that shall be understood p. Ibid. § 31 p 302 303 § 7. The Ground whereon stood a House Devised and after burnt is the Legataries p 304. § 14. Houses are Devisable under the Notion of Lands p 224. § 2. p. 301. § ult Two Houses and but one Stable betwixt them with which House Devised shall the Stable pass p 294. § 30. Husband being neither Executor nor Administrator to his Wife is not liable for her Debts after her decease p. 130. § 5. J. Ideots Intestable the Qualifications thereof p. 12 13 § 3 6 p 14 § ult Jewels Bequeathed what pass under that Notion or not in a Devise p. 306 § ult In what case they are not to be put into the Inventory p. 99. § ult If in what cases that word amounts not to a Condition p. 216 § ult Implication sufficient whereby to pass a Legacy or Devise p. 235 in fin Whether Legacies may pass by an Implication of a contrary Condition p. 211 § 5. Impertinences destroy not Legacies p. 209 210 § 2. Impossibilities only seemingly such no prejudice to a Legacy p. 304 305 § 16. What Impossibility destroys a Legacy p 439 § 35. Impossibility imposed on the Condition of a Legacy voids the Condition but not the Legacy p 325 § 13. Incapacity in the Legatary how many ways it may happen p. 341 § 22. Incestuous Persons how far Testable or not p. 21 § 5. Infant incapable of Devising p. 289 § 10. Whether a new Publication after Minority gives life to a Devise that had none before Ibid. Infant under the Age of 21 Years may not Devise Land p. 226 § 3. Infant in the Womb whether capable of being a Legatary or Devisee p. 208 § 3. Infant-Executor at what Age he may Administer p. 67 § 2. What his power is Ibid. § 3. He is bound by his own Release if he receive the Money p. 71 § 5. His Release not good p. 68 § 5. At what Age Administration granted during his Minority shall cease p. 67 § 2 p 69 § ult His Release without consideration void Ibid. In what case he may have an Action of Detinue but not of Accompt p 71. § fin Interpretation of a Devise ought to be with the fairest advantage for the Devisee p 290 § 15. Several Rules in Law touching the Interpretation of Testaments and Devises p. 437 c. Intestables their several kinds p. 10. Inventory whether it may be made by an Executor before Probate of the Will p. 95 § 5. Within what time it is to be Exhibited p. 97 98 § 1. How and wherefore it is to be made and what to be inserted therein p Ibid. § 2 3 Inventories may be over-ruled by a Jury p. 107 § 4. Joynt-Executors must be all joyn'd in Suit p. 108 § 6. vid. Co-executors
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
granted p. 155 158 159 c. Whether they are to be granted in the Province where the Intestate dyed or in that where his Goods and Chattels were when he dyed p. 158. § ult Being once granted they are not Revokeable at the Ordinaries meer Will and Pleasure p. 165. § 3. He that hath them cum Testamento annexo is obliged to pay the Legacies as far forth as an Executor p. 445. § 87. How there may be two Letters of Administration at once in being and both good p 69 70. § ult They refer to the time of the Intestates death and not only to the time of granting them p. 96. § 6. Letters ad Colligendum what the Law is in case thereof p. 153. § 4. In what cases they are to be granted p. 93. § ult They qualifie for the Sale of Perishable Goods p. 69. § ult Libellers incapable of a Legacy p. 206. § 2. Life or Lives in Reversion Devises of such Estates p. 254 § 7 8 9. Estates only for Life Devised p. 252 c. A Devise to one not saying How long is a Devise only for Life Ibid. § 1. Several Instances of Devises only for Life p. 253. § 4 5. A Devise for Life only by Implication p. Ibid. § 5. Limitation the Devise of a void Limitation is a void Devise p. 262. § 4. Livelyhood by a Devise thereof and by that word Lands of Inheritance do pass p. 232. § ult Loan of Money Bequeathed at under-interest what Security in that case requirable of the Legatary p. 326. § 16. M. Madness or Insanity of Mind disqualifies for Testamentification p. 11 12. § 2. How it may Legally be proved p. Ibid. Marriage-Conditions how far Matrimonial Conditions may be lawfull or not p. 27. vid. Conditions Marble Bequeathed how to be understood in case Statutes made therewith are Bequeathed p. 303. § 9. Mares pass by a Bequest of Horses not so e Contra. p. 303. § 10. p. 441. § 53 56. Materials Bequeathed do not pass the Ship that is after therewith built nor doth a Ship Bequeathed pass the Materials that are after ript therefrom p. 303. § 8. Meaning Mind or Words of the Testator how to be interpreted p 437 438. § 8 to 15. p. 439. § 27 to 31. Mind or Meaning of the Testator any way expressed sufficient for a Legacy p. 209. § 1. p. 211. § 6. Military Testaments their Priviledge p. 7. § 2. Mill joyning to a House in what case it shall pass by a Devise of the House p. 294. § 28. Minors Male or Female at what ages and of what things they may make their Testaments p 11. § 1. Mistake in the Legataries Election admits no Rectification or any further determination p 331. § 12. Modus Conditio the difference between them in point of Devising p. 215 216. § 4. Moity or the one half is implyed Legally when a part not expressing what part is Devised indefinitely p 293. § 23. By a Moity of Goods Bequeathed doth pass so much as was a Moity at the Testators death p. 282. § 15. Money whether Comprized under the Notion of Moveables or Immoveables p. 309 310. § 9 12. By what words it will pass or not in a Devise p. 447. § 98. Divers Law Cases touching Money-Legacies p. 312 to 320. p. 323 to 326. Mortgage-Money to whom payable whether to the Heir or to the Executor p. 90. § 2. It is Devisable though before the day of Payment p. 288. § 3. Mortgages redeemed by Executors are Assets in their hands p 120. § 3 Mortuary what when where how much and in what cases Payable p. 148. § 12. Mothers whether they are next of Kin to their Children p. 174. § 1. Moveables or Immoveables Devised what shall pass under that Notion p 306. § 1 to 13. Whether Leases Rents Bonds or Specialties pass by a Devise of Moveables p 288. § 6. Mute at Tryall whether Testable and how far p 226. § 3. N. Name of the Legatary not necessary where there is other sufficient description of the person p 227. § 4. Name mistaken in what case no prejudice Ibid. Name lost by Marriage in what case prejudiciall p 235 237. § ult The force and energy of Names in Devises of Land p. 297. § 44. Nomine poenae A Legacy so Devised and failure made by the Executor the Legatary may take either the Legacy or the Penalty but not both p 293. § 25. Notes taken from the Testator and written suffice for a Devise of Land p. 6. § 8. Nuncupative Testament what p 5. § 6 Not good for Land Ibid p 228. § 5 O. Obligation made after a Contract dissolves it p 133. § 10. what passeth by a Devise of a Bond or Obligation p 442. § 64. being Devised they must be Sued in the Executors not the Legataries Name Ibid. 321. § 1. Obligations or Chattels Reall in Right of the Wife as Executrix not Devisable by the Husband p 288. § 4. Office for Term of years and Saleable is Devisable p 309. § 7 computed among the Immoveables Ibid. But a Registers Office among the Moveables § Ibid. Onus Probandi on whom the Law casts it in case of Dubiety in a Legataries claim p. 440. § 37. Or how that word is frequently understood for And in Devises p 299. § 50. How it shall be taken for And to Create an Estate Taile by Devise p 250. § 10. Ordinary he may call Executors and Administrators to an Accompt p 150. § 1. p. 168. § 3. Whether he hath power to take Bond of an Administrator to distribute c. p 161. § ult Whether he may compel the Administrator to give Filiall Portions p. 168. § 2 3. In what case the Ordinary is Suable for the Debts of the deceased p 130. § 6. Ought Of what force that word is in some cases of Devises p 326. § 14. Out-lawed Persons in what Sense Testable or not p 21 22. § 8 9 10. They are incapable of a Legacy p. 207. § 2. The Qualifications thereof Ibid. If Out-lawed only in a Persosonall Action they are Testable as to Lands but Intestable as to their Goods and Chattels p. 226. § 3. Out-lawed Executors may have their Actions p. 101 § 4. Whether Out-lawry in the Testator be any Plea for his Executor in Barre of Debt p. 110 111. § ult Oxe Bequeathed in what case the Legatary cannot pretend so much as to his Hide p 305. § 18. P. Parents whether they be next of Kin to their Children p. 174. § 1. Parish Church to be repaired and Money for that end Bequeathed without expressing how much not void for uncertainties p. 315 316 § 15. Money Bequeathed indefinitely by the Testator to his Parish Church he having Two Parish Churches to which of them is it due p. 442. § 70. Devises to a Parish Church p 444. § 82 83. Pars pro toto in what Sense Legally so p. 447 448. § 100. Part Devised but what