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
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
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
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-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
Rent where none is in arrear and after Deviseth his Reversion this Devise is not good 3. A Man possessed of a Term for 40. Years Devised that his Eldest Daughter should have the same to her and the Heirs of her Body the Remainder if she dyed without Issue Within the Term to C. his second Daughter in Tail The Eldest Daughter took Husband and dyed within the Term without Issue Her Husband Sold the Term. It was the Opinion of the Court That his Sale thereof was good and that the younger Daughter had no Remedy for it because it was a void Remainder being of a Term which was a Chattel-real and so is to go to the Husband 4. A Lease was made to A. for 41. Years if he should so long live and if he dyed within the said Term that then his Wife should have it for the Residue of the said Years It was held That the limitation to the Wife in Remainder was void for that the Term ended by the death of A. and then there was no Residue to remain to his Wife 5. A Man possessed of certain Goods Devised them by his Will to his Wife for life and after her decease to I. S. and dyed I. S. in the life time of the Wife did Commence Suit in a Court of Equity there to secure his Interest in Remainder A Prohibition was granted in this Case and the Reason was because a Devise in Remainder of Goods was void and therefore no Remedy in Equity for Equitas sequitur Legem It was agreed That a Devise of the Use and Occupation of Lands is a Devise of the Land it self but not so of Goods for one may have the Occupation of them and another the Interest in them 6. Suppose a Man Deviseth a Reversion depending upon an Estate for life to the Parson of D. and to his Successors if the Parson die and after a new Parson be made and the particular Tenant die also the new Parson shall have it Also if a Man Devise Land to one for Term of life the Remainder over in Fee and the Devisee for life refuse yet he in the Remainder may enter but if the Will were That the Executors shall make a Lease for life the Remainder over in Fee and they offer to make a Lease accordingly and the Lessee refuseth he in the Remainder shall not have the Remainder 7. I. S. hath issue Two Sons and dyeth the Elder hath Issue a Daughter who hath Issue a Son and dyeth Land is given by Testament to one for life the Remainder to the next Male of the Body of I. S. begotten the second Son of I. S. shall have the Land and not the Son of the Daughter It would be otherwise if the Remainder were so Entail'd by Deed. 8. If Land be Devised to one for life the Remainder to the Church of D. the Parson of the said Church shall have it And if a Man willeth that after 20. years after the death of the Devisor I. S. shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor 9. A Man Deviseth his Land to his Daughter and Heir being a Feme Covert and to the Heirs of the Woman the Reversion over in Fee and dyeth the Husband refuseth to take by the Devise he in the Remainder entereth he shall retain the Land during the lives of the Husband and Wife but after their decease he Issue of the Wife may enter upon him 10. A Man Seised of Land in Fee hath Issue Two Sons and a Daughter the Father Deviseth the Land to his Wife for Term of life the Remainder propinquioribus de sanguine puerorum of the Devisor the Daughter hath Issue and dyeth the Issue of the Daughter shall have this Remainder and although that the Sons have Issue after yet their Issue shall not have it 11. A Man hath a Term of a Hundred Years to come and he Deviseth this to one for Term of life the Remainder over to I. S. this is a void Remainder it were otherwise if the Devise were that the Devisee shall have the Occupation of the Land during his life the Remainder over 12. A Lease is made for life the Remainder over in Fee reserving Rent by Indenture and for default of Payment that it shall be Lawful for the Lessor to enter and detain during the life of the Lessee he Re-enters for the Rent Arrear he in the Remainder Deviseth the Remainder such Devise of the Remainder is void 13. If Land be given to Two Persons Habendum to the one for life and after his decease to the other in Fee he that hath the Fee may Devise his Reversion thereof Likewise if Land be given to one for life and that after his death it shall descend to I. S. in Fee he may Devise this Remainder Or if a Lease be made dummodo solverit 10 l. to the Lessor for his life he may Devise the Reversion with the Rent Or if a Lease be made to an Infant or Feme-sole for life the Remainder in Fee and the Infant at his full Age or the Feme after Coverture disagree he in Remainder may Devise his Remainder 14. If the Fee-simple of Land be Devised to one the Remainder cannot be Devised to another albeit the first Devise be but Conditional And therefore if a Man Devise his Land to A. B. in Fee so that he pay 100 l. to C. D. And if he fail that then it shall remain to G. D. and his Heirs this Remainder to C. D. is void for upon the Failure of Payment by A. B. the said C. D. may not enter and have the Land but the Devisors next Heir Likewise if Land be Devised to F. G. and his Heirs and if he die without Heirs that then it shall remain to I. M. and his Heirs this is a void remainder 15. A Man may Devise a Term of Years by way of Remainder and the first Devisee cannot hinder the second of the Remnant of the Term. But yet a Man possessed of a Term of Years cannot Entail it by his Will And therefore if a Man Devise his Term to A. B. and his Heirs or to him and the Heirs of his Body or to him and his Issue the Remainder to B. C. this Remainder is void and the Devise is good for the whole Term of Years to A. B. and his Executors 16. A Man Seised of Two Acres in several Towns in one County that is of the one for life and of the other in Fee and maketh a Feofment by Deed of all his Lands in the same County and makes Livery in the Acre in Fee in the name of both the Lessor notwithstanding this may Devise the Reversion of the Acre for life 17. If a Man grants a Rent-charge out of Lands devisable to one for life the Remainder over to the Grantor and his
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.
in the Womb at the Testators death seems to be void Yet if a Man Devise to such an Infant and he happen to be Born before the Testators death it seems that in this case the Devise is good Again A Devise made to a person altogether uncertain and not certainly Named or Described is altogether void yet a plain Description of a Person without naming him is sufficient so that a Devise made to the Dean of Pauls without naming him is good A Man Deviseth his Land to Elianor the Daughter of I. S. who hath divers Daughters whereof one is named Hellen and none Eleanor This is a good Devise to Hellen. Likewise if a Man hath Two Wives and he Deviseth his Land to his latter Wife in Fee the first Wife shall have it or if he hath Two Sons called John and one of them is a Bastard born before Marriage and he makes a Devise to his Son John the Legitimate John shall have it and not the Bastard The Husband can be no Devisee as to a Devise of Lands from his Wife There are Three Brothers by the same Father and Mother and the middle Brother Seized of Land Deviseable giveth it by his Testament Propinquiori fratri suo it seems that neither of them shall have it Suppose a Man who hath a Term Deviseth the Land to one and his Heirs the Devisee dyeth leaving Executors his Heirs shall have the Land and not his Executors the Law is otherwise in case the Entire Term were so Devised A Devise of Land made to the Canons of a certain Cathedral for ever or Canonicis Ecclesiae D. Pauli Lond. in perpetuum is a good Devise to all the Canons joyntly in Fee and the Survivor shall have the Entierty If a Man willeth that his Executors shall Sell his Land for the Payment of his Debts and they all die save one who maketh the Sale in this case the Vendee shall not have the Land the Law were otherwise if the Land had been Devised to the Executors to be Sold. If a Man hath Issue a Son and Land is Devised to the Father Habend sibi Hered de Corpore suo Legitime procreand and after the Devisee hath Issue another Son the second shall have the Land If a Man Deviseth by the Will That after the death of his Wife the Land Devisable shall go to I. S. his Wife shall have it for her Life by this Devise Or if a Man willeth that after 20. Years after the death of the Devisor I. S shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor 5 A Testament Nuncupative is not good for a Devise of Land nor a Testament made in Print if it were never written yet a Testament written though no Executor be named therein is good for Lands but not for Goods Likewise a Testament without Sealing or Subscribing is good enough for a Devise of Land so as it be put into Writing in the Testators Life Time although it be never proved before the Ordinary But if in a Testament there are these words viz. Haec est voluntas intentio mea A. B. c. This is not good for the disposition or devise of Land without saying ultima voluntas according to the Lord Dyers Opinion who in his Learned Readings on the Stat. of Wills 32. and 38. H. 8. if he were indeed the Author of that Impression 1648. doth further Affirm That if a Man makes a Testament of his Land in one County and long after makes a Testament of his Land in another County These are good Also that if Two Men severally Seized of Lands make a Joynt-Testament of their Land This shall be good and several Testaments Also that where a man is in making his Testament and having Devised a parcel of his Land dies before the perfection and finishing thereof This shall be good for so much as is Devised That a Man willing by his Testament that his Lands shall be Sold to pay his Debts not declaring by whom This is a good Will and shall be performed by his Executors or Administrators That a Man making a Will of Land in which he hath nothing and after Purchaseth the same Land and dyeth This is not good That a Woman Covert making a Will of her Land and after taking a Husband who hath Issue the Husband dyeth the Wife dyeth this is not a good Will That if a Man make a Will of his Land and after alien this Land in Fee and after repurchaseth the same Land This is not a good Will That a Man making a Will and after making a new Will and after on his Death-bed saith That the first Will shall be his last Will This is good Also that where a Man giveth Land by his Will in Fee and after by another Will giveth the same Land to another but for Term of Life This is a Revocation of the Entire first Will. Also if a Man Devise another Mans Land This Devise is void but if he after the Devise made Purchase this Land then the Devise is good CHAP VIII Certain Cases touching Devises of Land Void or not 1. Lands What and how Devisable 2. Certain void Devises of Land 3. To what Persons and in what Cases Devises of Land may be good or not 4. The same Lands twice Devised to several Persons in the same Will how both Devises may stand good 5. The Profits of Land Devised do pass the Land it self in which Case Testaments more favourably construed then Deeds 6. How Lands Purchased after a Devise of Lands made may pass by that Devise or not 7. Several Cases in Law referring to this Subject 1. ALthough Lands made Devisable by Statute cannot be Devised otherwise then by Will in Writing yet Lands and Tenements Devisable by Custom may be Devised by a Nuncupative Will without any Writing But Copy-hold Land is not Devisable nor can Tenants in Tail or pur auter vie or Joynt-Tenants Devise their Eestate in the Land they so hold no more then they could before the making of the said Statute which doth not impower them thereunto But such as are Seized of Land in Common or Coparcenary may devise the same And if there be Two Joynt-Tenants for Life and the Fee-simple to one of them he that hath the Fee-simple may Devise his Fee-simple after the death of the other joynt-Joynt-Tenant for Life And in such places where Lands were Devisable by Custom before the making of the Stat. of 32. H. 8. a Devise of Lands may be good against the Heir for the whole but by the Stat. impowering to dispose of Lands by Will a Devise of Land is not good against the Heir save only for Two parts in Three 2. He that Deviseth Land ought to have a Right to and possession of the Land he Deviseth otherwise the Devise is not good and therefore if
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.
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
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
right Heirs and after the Grantor Devise the Land to a Stranger in Fee and die the Heir of the Devisor may Devise the Remainder of the Rent in Fee 18. A Lease for Term of 100. Years is made to a Bishop and his Successors he maketh a Lease for life Rendring Rent to him and his Successors and after he Deviseth the Reversion with the Rent in Fee this is a good Devise for the Reversion but not for the Rent 19. If a Man having Two Sons and a Daughter Devise his Land to his Wife for Seven Years the Remainder to his Younger Son and his Heirs and if either of the said Two Sons die without Issue of their Bodies the Remainder to the Daughter and her Heirs and the Younger Son die in the life Time of the Father and after the Father die in this case and by this Devise the Daughter hath a good Remainder but it seems the Elder Son hath first an Estate Tail by the Intent of the Devisor 20. If Land be Devised to A. for life the Remainder to B. for life the Remainder to I. S. in Fee in this Case if B. be a Person incapable of a Devise then he in the Remainder in Fee shall take presently after the first Estate for life ended And if the Devise be to a Person incapable for life the Remainder to I. S. in Fee then shall I. S. take presently 21. If a Man Devise his Land to two persons by name and the Heirs of either of their Two Bodies and for default of such Issue the Remainder to the right Heirs of the Devisor after the Devisors death one of the said Devisees dies without Issue the other Devisee hath Issue and dyeth In this Case and by this Devise the issue of such surviving Devisee shall have a Moity and no more of the Land 22. A Lease is made to I. S. for the Term of the life of I. N. the Remainder to the same I. N. for Term of life of the said I. S. I. N. in Remainder releaseth all his right to the said I. S. and dyeth In this Case the Lessor may Devise the Reversion And if a Man who hath a Reversion Deviseth this Reversion by the name of all his Inheritance or Hereditaments in D. it is a good Devise 23. If a Man having Issue Three Sons A. B. and C. doth Devise his Land to C. the Remainder to the next of Blood to the Testator In this Case and by this Devise A. shall have the Land after the death of C. as the next of Blood Likewise if a Man having Four Daughters Devise his Land to the Youngest in Tail the Remainder to the next of Blood by this Devise the Eldest Daughter and not all the rest shall have the Land after the Estate Tail Also if a Man hath Two Sons and a Daughter who hath Two Daughters Devise his Land to a Stranger for life the Remainder to his second Son for life the Remainder in Fee to the next of Blood to his Son in this Case if the Eldest Son die without Issue the Daughter and her Daughters shall have the Land 24. If Land be Devised to A. for life the Remainder to B. and the Heirs of his Body the Remainder to C. D. and his Wife and after to their Children by this Devise C. D. and his Wife have Estates for their Lives only and their Children after them Estates for their Lives Joyntly And albeit they have no Children at the Time yet every Child they shall have after may take by way of Remainder If one Devise his Land in this manner viz. I give my Land to A. in Fee-simple after his decease to B. his Son who is his Heir apparent By this Devise A. hath an Estate for life first the Remainder to his Son for his life the Remainder to the Heir of A. in Fee-simple One Devised his Land to I. S. from Michaelmas following for five Years Remainder after the Plaintiff and his Heirs He dyed before Michaelmas The Question was Whether this were a good Remainder Because it could not enure instantly by his death for it may not begin until the particular Estate which was not to begin till after Michaelmas and a Freehold cannot be in Expectancy But all the Court held That it very well might Expect For in Case of a Devise the Free-hold in the mean Time shall descend to the Heir and vest in him Wherefore without Argument it was Adjudged accordingly and that the Remainder was good If one Devise a Personal Chattel to one for life the Remainder over to another it is a void Remainder If a Man Devise a Term to one for life the Remainder to another for life with divers Remainders over The Executors Consent to the first Devisee will be a Consent as to all the other Remainders Or in Case a Man Devise a Term to one and a Rent thence issuing to another and dies the Executors Consent to the Devise of the Term is an Assent also as to the Rent If an Estate be given to the Husband and Wife and the Heirs of their Two Bodies the Remainder to the right Heirs of the Husband he may Devise that Remainder to his Wife CHAP. XIV Touching Devises of Lands with Limitations and upon Condition 1. The Condition of a Devise of Land not written in the Testators Life Time makes the whole Devise as void as if the Devise it self had not been written 2. A Fee-simple of Remainder upon Condition by way of Devise 3. In what Case the Executors of a substituted Devisee cannot claim the Lands Devised under Limitations 4. A Condition or Limitation may not continue a Devised Estate for part and defeat it for the residue 5. In what Case the word Paying shall be construed only as a Limitation and not as a Condition 6. Not he in Remainder but the Heir shall take the advantage of a Condition broken annexed to a Devise of Lands 7. A Condition or Proviso contrary to Law is a void Condition 8. The Heir may enter upon a breach of Condition notwithstanding a failure of somewhat that ought to have been done by a Third Person 9. The Heir may not enter where it is but a Limitation and not a Condition 10. If the Condition be That a Lessee shall not Demise the Premises for above one Year and he Devise the Premises it is a breach of the Condition 11. Lands Devised upon Condition of superstitious Vses are vested in the Crown 1. IF a Man give order for the writing a Devise of his Land to A. B. upon Condition and the Devise to him be accordingly written but the Testator dyeth before the writing of the Condition in this Case the whole Devise to A. B. is void And as in the case of Goods and Chattels conditionally bequeathed the Executor shall keep the Thing until the Condition be performed and after the Condition broken shall take advantage thereof So
Executors who Refuse to Administer the Goods may yet sell the Testators Lands Devised to be sold 15. Lands Devised to be sold by Executors the one Refusing the other may sell but not to the Refuser 16. A Sale by some only of the Executors is void where there is a special and Joynt-Trust 17. The Difference between an Authority and an Interest in Executors in point of Sale 1. IN all Cases of Devises of Land to Executors to sell the same it is most Prudential to make it as clear and certain as may be that is That the Executors or the Survivor of them or such or so many of them as take upon them the Probat of the Will if his intent be so shall sell it And it is safer to give only an Authority than an Estate unless his meaning be that they shall take the Profits of the Land until the sale And if he do so then it is Requisite that he Appoint that the mean Profits until the Sale shall be Assets in their hands for otherwise it shall not be so 2. If one Devise Land to others to the intent that with the Profits thereof they shall Educate Children or pay such Sums of Money or the like In this case the Devisees must do accordingly or they may be compelled thereunto And Regularly the Heir and not a Stranger shall take the Advantage of a Breach of a Condition annexed to Devises touching sale of Lands And therefore if one Devise Land to another and his Heirs Provided that he pay 100 l. to A. B. Otherwise that the Land shall remain to C. D. and his Heirs in this case if the Devisee do not pay the Money C. D. shall not take Advantage of it nor have the Land according to the Devise but the Heir of the Devisor shall enter and have it and Eject the Devisee 3. If the Testator intending to have his Land or part thereof sold for the payment of Debts or Legacies doth Devise the same in this manner viz. I will that my Executors or that A. B. and C. my Executors shall sell my Land In this case the Executors have only an Authority and no Interest For which reason the Land in the mean time Descends to the. Heir of the Devisor who shall enjoy the Profits thereof until it be sold In which case also the Executors may sell it when they please unless they be hastned thereto by order of Court And are all to joyn in the Sale Insomuch that if one or more of them dye before the Sale the surviving Executors or the Executors of the deceased Executors may not sell it by this Authority The Case is the same if any of the Executors Refuse the charge of the Will in which Case the rest of the Executors which accept the said charge may not alone sell the Land unless the words in the Will be That his Executors or some of them shall sell it But now by the Stat. of 21. H. 8. cap. 4. Some of them may sell it without the rest in case any of the Executors dye before the Sale 4. But if the Testator Devise the Land in this manner viz. I give my Land to my Executors to be sold c. In this case the Exeeutors have as well an Interest in the Land as an Authority to sell it And therefore it doth not here descend unto the Heir as in the former case but the Executors shall keep it till the Sale and may sell it when they will so as it be within any competent or convenient time for otherwise the Heir may Enter and Eject them by a Condition in Law annexed to the Interest And in this case the mean Profits until the Sale is no Assets but the Money or Proceed upon the Sale shall be Assets in their hands And in this case if before the Sale one or more of the Executors dye or refuse the rest may sell it for the Estate surviveth But it is supposed they may not sell to him that doth refuse the charge of the Will Neither may they in either of these Cases transfer their power of selling to any other nor keep the Land themselves though they pay the value thereof with their own Money 5. If the Devise be that the Executors shall sell with the Assent of A. B. in this case if A. B. dye before he Assent the Executors can not sell and in his life-time they can not sell without his Assent And if one Deviseth that his Lands shall be sold to pay his Debts and say not by whom in this case it shall be sold by his Executors Or if one Devise all his Land except Ten Acres which he doth appoint to pay his Debts by this Devise his Executors or the survivor of them may sell the said Ten Acres But if one say by his Will that A. B. shall have as well the Guardianship and Education of his Children as the disposing letting and setting of his Lands in this case A. B. hath not power to sell the Land Or if one Devise that his Land shall be sold after his Wife's death by his Executors with the Assent of A. B. And make his Wife and another his Executors and dye and after A. B. dye In this case the Land can not be sold for the Authority is determined 6. Suppose a man seised in Fee of a Messuage with which certain Lands have been occupied time out of mind give his Instructions for the making of his Will inter alia declares That his meaning is that his said Messuage and all his Lands in W. shall be sold by his Executors And the party that writes his Will Pens it in this manner viz. I will that my house with all the Appurtenances shall be sold by my Executors the Devisor dyes The Executors sell part of the Lands By this Devise such Sale is good and the Lands do pass for the words with all the Appurtenances are effectual to enforce the Devise and extend to all the Lands specially because the Devisor gave Instructions accordingly 7. A Copy-holder Deviseth his Land to his Wife for her life and that after his death the Wife or her Executors should sell the Land and Surrendred to the use of his Will which was Entered thus viz. To the use of his Wife for life Secundum formam ultimae voluntatis In this Case she hath an Estate in the Land to her own use for her life and also an Estate in Fee to sell it otherwise the clause secundum formam ultimae voluntatis should be void 8. A man Deviseth by his Will his Lands to his Wife and if she have Issue by the Devisor that his Issue shall have it at his age of 21 years and if the Issue dye before that age or before his Wife or if she have no Issue that then she shall choose two Atturneys and she to make a Bill of Sale of any Lands to her best Advantage In
this case she hath those Lands for life and she having no Issue hath not any Interest to dispose but hath an Authority to nominate two who shall dispose of the Lands and they may make Sale thereof 9. A man did Devise his Lands which were held in Socage to be sold by his Executors and that the Money thereof coming should be disposed of in payment of special Legacies which he Appointed by his said Will the Executors sold the Lands One of the Legatees after the Will was Proved sued the Executors in the Ecclesiastical Court for his Legacy whereupon a Prohibition was prayed It was resolved in that Case 1 That the Money was Assets in the Executors hands 2 That there was no Remedy for it but by Suit in the Ecclesiastical Court and therefore a Prohibition did not lye in the Case But Querie of the second payment for it was held by all the Justices of both Benches Where a man Deviseth that his Executors shall sell Lands and of the Money coming shall give such a Portion to his Daughter That this was not a Legacy because going out of Lands and that Suit did not lye for it in the Ecclesiastical Court But an Accompt lyes at Law for the Money And therefore in that case a Prohibition was granted to stay the Suit in the Ecclesiastical Court 10. A Devise was made to A. B. for life the Remainder to C. D. in tayle and if C. D. dye without Issue of his body that then the Land shall be sold by his Executors he maketh two Executors and dyeth A. B. dyeth C. D. dyeth without Issue of his body In this case it seemeth that one of these Executors alone can not sell the Lands 11. A man Devised his Lands to his Wife for term of her life the Remainder to D. his Daughter in tayle and if she dyed without Issue that then after the death of his Wife the Lands should be sold for the best value by his Executors with the Assent of A. and B. And made his Wife and a Stranger his Executors and dyed the Wife Entered and dyed A. and B. dyed and the Executor who survived sold the Land alone The Opinion of the Court was That the Sale was not good because he wanted sufficient Authority 12. A man seised of divers Mannors and Lands Devised all the said Mannors and Lands to his Sister and her Heirs for ever Except out of this General Grant my Mannor of R. which I do Appoint to pay my Debts and made two Executors by Name and dyed One of the Executors dyed the other took upon him the charge and Execution of the Will and afterward sold the Mannor of R. for 300 l. for the purpose aforesaid in Fee It was the Opinion of the Court that he might well sell it for by the Circumstances it appeareth That such was the Testators intent and not to leave the Reversion to Discend to his Heir but to trust his Executors with the Sale of it for the payment of his Debts 13. A. made B. and C. his Executors and by his Will appointed that they should have and hold the Issues and Profits of his Lands until his Heir should come to the age of 21 years to the intent that the Executors with the Profits thereof should pay his Debts and Legacies and bring up his Children One of the Executors dyed the surviving Executor made his Executor and dyed also the Heir being within age It was the Opinion of the Court in this case that the Executor of the survivor might receive the profits of the Lands and dispose of them during the Non-age of the Heir because it was an Interest in the Executors and not an Authority or a Trust only 14. If a man hath Feoffees and makes his Will That his Executors shall alien his Land if the Executors Refuse the Administration of his Goods yet they may sell the Lands because the Will is not of a thing Testamentary But the Executors have not a power to meddle with the Land unless such a special power be given to them If a man makes his Will of his Lands and that his Executors without naming them by their proper Names shall sell them if they refuse to be Executors yet they may sell the Land But if a man makes his Will that his Lands which his Feoffees have shall be sold and doth not say by whom the Executors shall sell the same and not his Feoffees because the Moneys which come by the Sale shall be Assets in the hands of the Executors which is a proof that they may sell them And if his Will be That the Executors shall sell the Lands before the Alienation the Heir may take and Receive the profits thereof and if no Sale be made the Heir shall hold the Land for ever 15. A man Deviseth That his Executors shall sell his Lands Now by the Stat. of 21. H. 8. cap. 4. If the one refuseth the other may sell the Lands but the Sale can not be made to him who refuseth 16. A man made his Will and made A. B. C. D. his Executors and Devised his Lands to the said A. B. C. D. by their special Names and to their Heirs And further Devised that the Devisees should sell the Lands to F. G. if he would give for it before such a day 100 l. and if he would not that then they should sell it to any other to the performance of his Will viz. the payment of his Debts F. G. would not give the 100 l. one of the Executors refused to intermeddle the other three sold the Land It was the Opinion of the Court that the same being a special and a Joynt-Trust that it could not survive and that the Sale by the Three was void 17. By the Premises it is Evident That if a man Willeth that his Executors shall sell his Lands for the payment of his Debts and they all dye but one and the survivor make the Sale the Vendee shall not have the Land and that the Law is otherwise if the Lands were Devised to the Executors to be sold The Reason is as aforesaid because in the former case the Executors have only an Authority in the other case they have an Interest But if a man maketh two Executors and willeth that they shall sell the Lands for the payment of his Debts And they sell it only for term of life the Remainder to one of themselves and the Vendee dyeth he in the Remainder may Enter Sed Q. CHAP. XVII Of Legacies and Devises in respect of Marriage As also Between Husband and Wife 1. A Condition of Marriage may be annexed to a Legacy but an unlawful Condition thereof is void and doth not prejudice the same 2. A Condition of Marriage with the Consent of a Third person doth oblige the Legatary to Marry if he will have the Legacy but doth not oblige him to have such Consent 3. A
ought in this Case the Feoffor ought to pay the money at the day appointed to the Executors and not to the Heir of the Feoffee unless the condition were that the Feoffor pay to the Feoffee or to his Heirs such a summ of money at such a day Here note That the Executors do more represent the person of the Testator than the Heir doth the person of the Ancestor for though the Executor be not named yet the Law appoints him to receive the money but not so the Heir unless he be named Here also note That if the Condition upon the Mortgage be to pay the Mortgagee or his Heirs the money and before the day of payment the Mortgagee dieth the Feoffor cannot in this Case pay the money to the Executors of the Mortgagee But if the Condition be to pay the money to the Feoffee his Heirs or Executors then the Feoffor hath election to pay it either to the Heir or Executors 2. If a man make a Feoffment in Fee upon Condition that the Feoffee shall pay to the Feoffor his Heirs or Assigns Twenty pound at such a day and before the day the Feoffor makes his Executors and dieth the Feoffee may as aforesaid pay the same either to the Heir or to the Executors for they are the Feoffors Assigns to this intent But if a man make a Feoffment in Fee upon Condition that if the Feoffor pay to the Feoffee his Heirs or Assigns Twenty pounds before such a Feast and before the Feast the Feoffee maketh his Executors and dieth the Feoffor ought to pay the money to the Heir and not to the Executors for the Executors in this Case are no Assigns in Law And the reason of this difference is for that in the first Case the Law must of necessity find out Assigns because there cannot be any Assignes in Deed for the Feoffor hath but a bare Condition and no Estate in the Land which he can assign over but in the other Case the Feoffee hath an Estate in the Land which he may Assign over And where there may be Assignes in Deed the Law shall never seek out or appoint Assignes in Law CHAP. XIX Touching the Executors Election to accept or refuse the Executorship 1. Of the Judges Power to affix the time for that Election or in Case of the Executors refusal what his Power is 2. In what Case a person may be compell'd to accept the Executorship notwithstanding his Judicial refusal 3. How one appointed Executor by the Will may Administer notwithstanding his refusal to Prove the same 1. HE that is appointed Executor in a Will may be summoned to appear before the Judge of the Jurisdiction to accept or refuse the Executorship The time wherein he that is named Executor in the Testament is to deliberate and determine whether he will accept or refuse the Executorship is uncertain and left to the discretion of the Judge who hath used at his pleasure and when he will not only within the year but within a moneth or two to Cite him that is named Executor to accept or refuse the Executorship and upon the non-appearance or refusal of such Executor to Prove the Will the Judge may commit Administration as of an Intestate And such Administrators Power is effectual in Law untill the Executor undertake the Executorship For then the Judge may revoke such Administration But if the Judge knowing that there is a Will grant Administration not having first called the Executor to accept or refuse the Executorship the Executor when he shall have Proved the Will may Sue such Administrator in an Action of Thespass Because the Judge hath no power to grant Administration but in Case of Intestation or that the persons named Executors either will not or cannot be Executors 2. No man can be compell'd to accept the Executorship unless he hath already intermedled with the Testators Goods as Executor for then it is too late for him to refuse Yet if any Legacy be given him in the Will wherein he is named Executor he may then be compelled to accept the Executorship or he shall lose his Legacy Yea though he were of Kin or Allied to the Testator Yet the Wife shall not lose her Thirds nor the Children their Filial Portions by refusing the Executorship 3. Although where an Executor hath Administred he cannot afterward refuse because he hath thereby determined his Election and although where there is an Executor and he refuse or many and all refuse the party is dead as Intestate and Administration is to be committed with the Will annexed yet in case there be divers Executors viz. A. B. C. and A. only refuse and the Will be Proved by the other Two there A. continueth an Executor notwithstanding his refusal so as he may still release debts of the Testator and debts owing by the Testator may be released to him Yea if Sute be to be had by or against the Executors it shall not be in the Names of B. and C. only but A. also must be Named as a Plaintiff or Defendant or else the Action may be overthrown Yea this Executor which refused may afterwards Administer at his pleasure and intermeddle with the Goods as well as the others but after their death he cannot so do for then the Executor of him that Proved the Will is only to Administer and the others refusal continuing to the death of his Co-Executor his Power then died also with him but so long as the one Co-Executor liveth that Proved the Will the other though he refused the Executorship before the Judge may yet afterwards so long as the other lives Administer the Goods or Remit the Debts due to the Testator And that Co-Executor that so Proved the Will cannot hinder him nor can he Recover against the persons by him so released Trespass It was found by Verdict That Sir Ralph Rowlet being possess'd of a Term made his Last Will and thereof made the Lord Keeper Bacon Catlin Chief Justice and others his Executors and Devised the Term to the Lord Catlin and died All the Executors wrote a Letter to Dr. Dale Judge of the Prerogative Court That they could not intend the Execution of the Will and desired him to commit the Administration to Henry Goodyer the next Kin of the Testator The Administration was accordingly granted but the Register Entered the Cause viz. For that the Executors did defer suscipere onus Testamenti After this Catlin Entered upon the Land Devised to him and granted it over the doubt was whether this Grant were good 1. Whether the Letter were a sufficient Renunciation 2. Whether if they once refuse they may after Administration granted Administer at their pleasure Dr. Ford declared to the Justices That by the Civil Law a Renouncing may be as well by matter in Fact as by a Judicial Act and they may refuse
Lease for years worth Fifty pound per annum or more out of which he payes Ten pound yearly Rent and dies in this Case not the full value of the Land yearly but only so much as is above the said Rent shall be deemed Assets in the hands of the Executor or Administrator Or suppose the deceased dies possessed of Goods and Chattels to the value of Two hundred pound and in debt to M. Two hundred pound and to N. One hundred pound and to O. Fifty pound and to P. Twenty pound and Composition is made with M. for Sixty pound or other Summ more or less under Two hundred pound In this Case the Executor is deemed to have Assets chargeable to the other Creditors for so much as is above the Summ so compounded unto Two hundred pound Or where a man is indebted Forty pound to one and Thirty pound to another and dies leaving but Forty pound in all and his Executors agree with the Creditor of Forty pound for Ten pound and have his Acquittance for the Forty pound yet the Thirty pound remaining in their hands shall be Assets 2. If Executors do Recover any Dammages for Trespass or other wrong done to the Testator the money recovered will be Assets in their hands as well as Debts recovered upon Bonds or Bills or Lands by them taken in extent upon Statutes Recognizances or Judgements Yea without ever having these monies Executors may make them Assets in their hands viz. by making Releases or Acquittances or Acknowledgement of Satisfaction for this amounteth to a Receit and chargeth the Executors towards the Creditors with the whole penal Summ though possibly they receive but part as the Principal or some such proportion But Debts or Dammages recovered by a Judgement had by the deceased in his life-time whereof no Execution was are not Assets in his Executors or Administrators hands until Execution be made yea though Execution be made and the Dammages so recovered that they be gotten into the Executors hands or possession yet if the Judgement be Erroneous and the Execution avoidable it shall not be deemed Assets in his hands for which Cause a Debt Sued and Recovered by one as Administrator to A. B. and afterwards a Testament made by A. B. produced and proved is not Assets in the Administrators hands because the Executor in the said Testament may recover it from him 3. A Mortgage Redeemed is Assets unless the Executors redeemed it with their own money Likewise Goods of the Testators redeemed by the Executor with the Testators money are Assets in the Executor it is otherwise if the Executor having no monies of the Testators doth redeem them with his own money If the Testator grant a Lease for years or Horses Sheep Plate or other Cattle unto A. upon some Condition that A. did not perform after the Testators death in this Case the Chattel reverts and comes back to the Testators Executors and is Assets in their hands Also if A. Covenant with B. to make him a Lease of such or such Land by such a day and B. dieth before the day and before any Lease made now must A. make the Lease to the Executor of B. and the Lease so made to him shall be Assets in his hands because the Executor shall have the Term only as Executor So if A. undertake to deliver in to B. Twenty loads of Coles Wood or other Merchandize whatsoever and this is not performed in the life of B. but afterwards to his Executor this shall be Assets in his hands as well as the money recovered in Dammages for non-performing should have been Likewise any Goods or Chattels whatsoever given or bequeathed to any person by the Testator upon a Condition certain and the Condition not afterwards performed by such Conditional Legatary the said Goods and Chattels conditionally bequeathed do revert to the Executor and become Assets in his hands 4. Encrease gotten to the Executors by Merchandizing with the Testators Goods shall be Assets in their hands and shall charge them Likewise Dammages recovered by an Executor in an Action of Trespass shall as aforesaid be Assets and yet they were never in the Testator Also if a Lease be made to one for life the Remainder to his Executors for years and he dieth this will be Assets in the hands of his Executors though it never were in the Testator So where a Lease for years is bequeathed to A. for life and after to B. who dieth before A. although B. never had this Term in him so as that he could grant or dispose it yet shall it rest in his Executor as his Goods and be Assets in his Executors hands Likewise a Remainder for years so in the Testator that he might grant or dispose it at his pleasure though the same fell not in possession to the Testator in his life-time yet this is Assets to the Executor even whilst it continues a Remainder and before it falleth into possession because it is presently valuable and vendible In like manner Gain gotten by Trading as aforesaid with the Testators money Wool growing upon Sheep after the Testators death also the encrease of Sheep or other Cattel after the Testators death though never in the Testators actual possession shall yet be Assets in the Executor Likewise a Feoffment made to the Feoffors use for life and after him to the use of his Executors or Assigns for a certain number of years that number of years shall be Assets in the hands of the Feoffors Executor Also Goods hypothecated or pledged to the deceased in his life-time and not redeemed or the money thereof when redeemed is Assets in the Executors or Administrators hands Likewise the money raised by the Sale of the deceaseds Lands sold by his appointment by the Executors for the payment of his debts as when the deceased did in his life-time appoint that his Executors shall sell his Lands to pay his debts shall as aforesaid be Assets in the Executors hands Also if Executors had a Villein for years and the Villein purchased Lands in Fee and the Executors entered they had a Fee-Simple but it was Assets The reason was because they had the Villein in auter droit viz. as Executors to the use of the dead And if Executors having Assets do wast it or pay Debts or Legacies in any other order or method than the Law hath prescribed they must answer it out of their own Estates 5. Debts due to the Testator be not Assets in the Testators hands so as to charge him for the payment of Debts and Legacies until Judgement and Execution had or they be otherwise recovered received or released by him And an Executor paying the just value of the Testators Goods to the Creditors may retain the same Goods in his hands which nevertheless shall not afterwards charge the Executor as Assets But if question be concerning the value it is received by all that the
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
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
C. and his Heirs or to him and the Heirs of his Body This is a good Devise of the Land in Fee-simple or Fee-tail There are also several other ways of Fee-simple by Will For suppose Land be given to a Man Habend sibi Haeredi suo This indeed is not Fee-simple otherwise it is if it be given sibi duobus Haeredibus suis tantum So if Land be given to a Man Habend sibi Haered with warranty of the Land sibi Haeredibus suis This is a good Fee-simple Or if a Man Devise Land to A. B. for his Life and after to the Heirs or to the right Heirs of A. B. By these Devises A. B. hath a Fee-simple in the Land Also if one Devise his Land to his Wife to dispose thereof at her will and pleasure and to give it to one of her Sons by this Devise she hath a Fee-simple but it is qualified for she must Convey it to one of her Children and cannot Convey it to another 2. When in a Will power is given to a Devisee of Land by the Testator to Sell that Land such Devisee hath a Fee-simple in that Land for power to Sell giveth by Implication an Estate in Fee-simple Also if one Devise his Land to A. B. paying 10 l. without other words By this the Devisee hath the Fee-simple of the Land albeit the 10 l. be not the Dundredth partvalue of the Land In like manner If one Devise Land whereof he is Seized in Fee to A. B. paying 10 l. to G. D. By this Devise albeit there be no Estate expressed yet A. B. hath the Fee-simple of the Land in respect of the Payment of the Money This holds True only in case the Intent of the Testator doth not appear to be otherwise 3. If one in his will devise his Land to his Wife in the first place and then saith my Will is That my Son A. shall have it after my Wives death and if my Wife dye before my Son B. that then my Son A. shall pay to B. 10 l. by the Year during the Life of B. and also 100 l. to I. S. In this Case A. shall have the Fee-simple of the Land Also if one Devise his Land in this manner viz. I give White-acre to my Eldest Son and his Heirs for his part Item Black-acre to my youngest Son for his part by this Devise the the Youngest Son shall have the Fee-simple of Black-acre Or thus I give White-acre to A. B. Item Black-acre to A. B. and his Heirs by this Devise A. B. shall have the Fee-simple as well of White-acre as of Black-acre 4. If a Man Devise his Land in this manner Item I give to A. B. and C. D. and their Hoirs my Land in Kent equally or my Land in Kent equally to be divided by these words A. B. and C. D. shall have and hold the Land not as Joynt-Tenants but as Tenants in Common so that the Heir and not the Survivor shall have his part that first dyeth And yet in case of such a Limitation by Deed it is otherwise But if one Devise his Land to A. B. and C. D. and their Heirs without more words it seems that by this Devise they shall take and hold as Joynt-Tenants Yet if one Devise Land to A. B. and C. D. and the Heirs of either of their Bodies lawfully begotten it seems that by this Devise A. B. and C. D. shall take and hold as Tenants in Common and not as Joynt-Tenants Likewise the Case is the same if one Devise his Land to A. B. and C. D. in this manner viz. I Will that A. B. and C. D. shall have my Lands in Kent and occupy them indifferently to them and their Heirs But if one who hath Two Daughters only give or Devise his Land to them in Fee by this Devise they shall take as Joynt-Tenants and not be in by Descent as Partners for the Testators Will shall take place 5. If Land be given to the Mayor and Commonalty of London or any other Corporation to have and to hold for Term of their Lives it is a Fee-simple Or if a Man say I give to A. B. my House with all the Lands for 21. Years and that A. B. shall have all my Inheritance provided it be not contrary to Law In this Case A. B. shall have the Fee Or if he give it to his right Heirs Males and Issue of his Issue of his Name this also is a Fee-simple And although it be affirmed by some That if the Testator Devise his Land to A. B. and his Assigns without saying For ever A. B. shall have an Estate only for Life Yet the contrary is Asserted by others and that it is a Fee-simple 6. If a Testator saith I will my Land to my Son A. during his Life and after his decease to my Son B. And in case my Son A. shall hereafter Purchase Lands of as good Value as that Land for my Son B. that then my Son A. shall Sell the Land Devised to my Son B. as his own and shall pay 20 l. to C. D. In this Case A. hath a Fee-simple implyed by the Power which A. hath to Sell beside the Payment of Money Also if one Devise Land to me and my Heirs and in Case the Heir at Law put me out that then I shall have other Land instead thereof in this Case and by this Devise I have the Fee-simple of the first Land notwithstanding the latter words Likewise if a Testator Devise Land to me for my life the Remainder to his own Son and the Heirs Males of his Body and in default of such Issue the Remainder to the next Heir-male of the Testator and the Heirs-males of his Body In this Case the next Heir-male of the Son hath an Estate in Fee-simple 7. Suppose a Man Seised of Lands make his Will in this manner viz. Imp. I Devise to my Wife Black-acre for her life the Remainder to my Son T. in Tail Item I Will to my Son T. all my Lands in D. also all my Lands in S. also my Lands in V. Also I give to the said T. my Son all my Island or Land enclosed with Water which I Purchased of I. S. To have and to hold all the said last before Devised Premises to the said T. my Son and the Heir of his Body In this Case the Habendum shall extend to all the Lands in D. S. and V. and shall not limit the Devise only to the Island because the thing last Devised by the Will was an Island in the Singular Number which cannot Answer to the Habendum in the Plural which if extensive to the Island only T. then should have but for Life in the Lands of D. S. and V. But it was otherwise Resolved viz. That the Habendum should extend to all the Lands in D. S. and V.
8. A Man Seised of a Messuage holden in Socage in Fee Devised the same by these words I Devise my Messuage where I dwell to A. B. and her Assigns for 10. Years and A. B. shall have all my Inheritances if the Law will In this Case the Devise in Fee of the Messuage is good and by the general words of the Will all his Inheritances do also pass 9. If a Man Devise Lands to one for ever there he hath a Fee for such an Estate might be conveyed by Act Executed But if he further Devise That if the Devisee do such an Act that then another shall have the Land to him and his Heirs the same is void for when as he hath disposed of the Estate in Fee to one he hath not power after in the same Will to dispose the same to another it being a Rule in Law That such an Estate which cannot by the Rules of the Common Law be conveyed by Grant Executed in his life time by Advice of Council learned in the Law such an Estate cannot be Devised by the Will of a Man who is presumed to be void of Council 10. A Man having Lands in Fee-simple and goods to the Value of 5 l. only Devised to his Wife all his Estate paying his Debts and Legacies his Debts and Legacies amounting to 40 l. It was Adjuged in this Case That all his Lands did pass by the Devise and that the Devisee had a Fee-simple in the Lands the word Paying enforcing it for they are to be paid presently which cannot be if the Lands pass not in Fee And if a Man Deviseth all his Rents It was held That all his Lands do pass 11. Note That by intendment of Law a Devise shall be for the benefit of the Devisee and not to his prejudice As if Land to the Value of 3 l. per annum be Devised to A. and that A. shall pay out of it 50 s. per annum In this Case A. hath but an Estate for life for he may pay it out of the Profits of the Lands and is sure to be at no loss But if it be Devised to B. for life the Remainder to A. paying 50 s. per annum out of it In this Case A. hath a Fee-simple by Implication because after the Payment thereof A. may dye before he can receive satisfaction for the same out of the Profits of the Land and therefore such Devise shall be a Fee-simple because the Law intends that the Devise was for the benefit of the Devisee 12. Note also That if a Man hath Lands in Fee and Lands for Years and he Deviseth all his Lands and Tenements the Fee-simple Lands pass only and not the Lease for Years 2 If a Man hath a Lease for Years and no Freehold and Deviseth all his Lands and Tenements the Lease for Years passeth 3 That if one Deviseth his Lands which he hath by Lease to his Executor for life the Remainder over that there ought to be a special Assent thereunto by the Executors as to a Legacy otherwise it is not Executed 13. A. Devised his Lands in London to his Son and his Heirs after the decease of his Wife and in Case his Daughter should Survive his Wife and his Son and his Heirs that then the Daughters should have it for Life and after their death I. and R. should have the same and that they should pay 6 l. 16 s. yearly to the Company of Merchant-Taylors to be disposed of to Charitable Uses In this Case three Points were Argued 1 Whether the Wife had an Estate for life by Implication of the Will And it was Resolved That she had 2 Whether the Son had a Fee-simple or Fee-tail And it was Resolved That he had a Fee-tail by Implication of these words viz. if his Daughters Survive his Wife and his Son and his Heirs whereby it is plainly implyed That the Heirs there intended are the Heirs of his Body and not his Heirs in Fee for so long as the Daughters live the Son could not dye without a Collateral Heir 3 What Estate I. and R. have after the death of the Daughters And as to That it was Resolved That they have a Fee-simple by Reason of the Annual Payment of Money and it is not to be regarded what Annual Value the Land is of over and above the Sums they pay for every Sum of Money paid or payable doth cause the Devisee to have a Fee-simple And Coke Chief Justice said That a Devise to A. and his Successors is a Devise of a Fee-simple without the word Heirs because it implyes a Fee-simple although it wants the express words Between L. Plaintiff and B. Defendant L. Seised of Land in Fee Devised it unto Two Persons Equaliter and to their Heirs Whether this made them Joynt-Tenants or Tenants in Common was the Question It was holden by the whole Court That they were Joynt-Tenants and not Tenants in Common A Man Seised of Lands Devised them by his Testament to his Wife to dispose and imploy them for her and his Sons at her own Will and Pleasure And it was held by Dyer Weston and Welch That she had a Fee by such words as if he had Devised the Lands for ever For the Construction of Law supplies the defect in these words of the Devisor according to his meaning And it was held by Dyer and Welch That the Estate in her is Conditional because these words ea intentione make a Condition in every Devise but not in a Feofment Gift or Grant unless it be in Case of the King And these words do amount as much as to say she should not convey it away to a Stranger but keep it and give it to his Sons S. Seised of Land in Fee holden in Socage and Devisable in Gavelkind Devised it to his Feme for her life paying 3 l. per annum to T. his Son during his life and that he should take but Two Load of Wood for Fire-boot And if she dyed before the said T. then he Devised all his Lands to R. his Son paying to the said T. 3 l. per annum and paying to such one of his Sisters 20 s. and to another Sister 20 s. The Feme dyes R. enters The Question was what Estate R. had by this Devise And it was Adjudged he had a Fee For when he Devised it to his Feme for life expresly c. and to R. generally without limiting the Estate and apppointed him to pay to T. 3 l. per annum during his life That carries in it an Intendment that he should have Fee especially when his Father therein further willed That his Son R. should pay two other Sums in Gross and none of them to be out of the Profits it is by Intendment and by Implication a Fee wherefore upon the first Argument it was Adjudged for the Defendant for they said That these Things which have been so often Adjudged ought
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.
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
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
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
Fenner held that they should not be Assets for although being but fraudulent it shall be said to be a void Gift against the Donor and Creditor and so lyable to his debt yet it is good betwixt the Donor and Donee and shall not be Assets in the hands of any but the Donor or Donee but here the Husband is a meer Stranger thereto wherefore c. But all the other Justices è contra for that by the Common Law the Gift being fraudulent they are lyable to the Plaintiffs Execution And Popham said If the Gift were good against all but Creditors as it is then they belong to the Donee and in his hands are lyable to this debt and if the Gift be void they remain to the Executors of the Feme and then the Baron having taken them and paid Legacies is chargeable by reason thereof as Executor de son tort demesne and so those Goods quacunque via data are lyable to this debt in whosesoever hands they come unless by Title Paramount or by Sale bonâ fide wherefore it was adjudged for the Plaintiff Scire facias against S. as Executor of F. V. upon a Judgement given against the Testator of Two hundred pound he pleaded payment of Forty pound debt due to the Queen and besides that he had riens in ses mains And thereupon they were at Issue whether he had Assets And it was found by special Verdict That the Testator was possess'd of divers Goods to the value of Two hundred fifty pound and by covin to defraud his Creditors made a Gift of his Goods to his Daughter with a condition of payment of twenty shillings that it should be void and died The Defendant intermedled with the Goods and afterwards the Daughter by this Gift took the Goods and after that Administration of the Goods of F. V. was committed to the Defendant and whether upon this matter he shall be charged as Executor and that those Goods should be Assets in his hands was the question And after Argument it was adjudged for the Plaintiff For first when he medled with the Intestates Goods although he were neither Executor nor Administrator and afterwards Administration was committed unto him a Creditor hath election to charge him as Executor or Administrator especially here when he pleads as Executor the finding by the Jury that he is Administrator is not to purpose 9 Ed. 4. 53. 2 R. 3. 20. 21 H. 6. 8. Secondly all the Court held That this Gift of the Goods is in it self fraudulent as appears by the Condition and the Covin is expresly found by the Jury and then it is utterly void against the Creditors by the Stat. of 13 Eliz. and the Intestate died possessed of them and when afterwards the Donee took them it was a Trespass against the Administrator for which he hath his remedy and they are alwayes Assets in his hands But if a Trespasser takes Goods from a Testator in his life-time so as they never were but a chose in Action to the Executor or Administrator they be not Assets until they be recovered Wherefore notwithstanding the taking of them by the Donee yet they alway remained as Assets in the hands of the Administrator and therefore he is chargeable for them as Executor de son tort by his intermedling with them before Administration committed and the Goods by Law remained alwayes in his possession Wherefore it was adjudged for the Plaintiff CHAP. XXV Additionals to the three last precedent Chapters touching how far and wherein Executors may be charged 1. Executors not chargeable upon a simple Contract of the Testators 2. Actions of Account lye not against the Executors of the Accountant 3. Personal Actions lye not against Executors as Executors 4. Executors lyable for no more than comes to their hands 5. The Husband not lyable for his Wifes debts after her decease 6. In what Case the Ordinary may be sued for the deceaseds debts 7. How an Executor may make himself chargeable de bonis propriis 8. The method of proceedings where Execution is de bonis propriis 9. Executors obliged though not mentioned in the Obligations 10. Contracts dissolved by Obligations after made 1. VVHerever the Testator might wage his Law there the Action lyeth not against the Executor therefore he is not chargeable upon an Action of Debt upon a simple Contract yea though such a debt grew for the most necessary things as Meat and Drink which bindeth even an Infant to payment yet will it not charge the Executor of a man of full Age so that though a common Host or Victualler trust his Guest he loseth his debt by his death Understand these things of Contracts only by word for where the Testator in his life-time did put his Seal to any Deed or Writing made upon any such thing this being then more than a simple Contract taketh from the Vendee his wager of Law and thereby chargeth his Executor But if the Testator Seal only unto a Tally or the like with Scotches expressing a debt this is no such specialty as shall charge his Executors And although no Action of debt lyeth against the Executor as aforesaid upon a simple Contract yet may the Creditor in that Case maintain an Action upon the Case grounded upon the Assumption implyed though not express'd And thus indeed the Executor is charged in substance or matter for a simple Contract though not in manner for a debt but as for breach of promise making recompence in dammages instead of the debt 2. No Action of Account lyeth against Executors except for the King that is against the Executors of the Accountant Nor indeed at the Common Law for the Executors of him to whom the Account is to be made but that is help'd by Statute For Executors could not have an Action of Account at the Common Law in respect of the privity of the Account but the Stat. W. 2. cap. 23. hath given an Action of Account to Executors the Stat. of 25 Ed. 3. cap. 5. to Executors of Executors and the Stat. of 31 Ed. 3. cap. 11. to Administrators And as an Executor is not chargeable in an Action of Account as aforesaid so neither is he chargeable in an Action of Detinue nor of Account except to the King for the Testators detaining and not paying or answering things received or under his charge or custody 3. Although Executors are in Law understood as the Representees of their Testators persons yet if the Testator in his life-time commit any Trespass either upon the Person Lands or Goods of another no Action lyeth against his Executor for the same the reason is Actio personalis moritur cum persona as hath been formerly declared Hence it is that there is no remedy in Law to compel Executors though they have Assets to make satisfaction of a Trespass done by the Testator in his life-time for every Trespass dyeth with the person And therefore also it