James of a house in the Parish of St. Mary Abchurch in the Ward of Candlewick-street Habendum from Michaelm last past for three years and layd the Ejectment to be the 28 Octob. in the same year The Defendant pleaded Not guilty And the Iury found that William Say was seised in Fee of the said Messuage and of two other Messuages in the Parish of St. Johns in Walbrook London and held them in Socage And that the 8 Octob. 1562. the said William having issue Francis his Son and Margaret Agnes and Alice by his Will in writing did devise the said Messuage in these words I bequeath to Francis my Son all my three Houses after the death of my Wife Barbara and his Mother and if Margaret Agnes and Alice and either of them do out-live their Mother and their Brother Francis and his Heirs then they to enjoy the three Houses for their lives and the three Houses then I give freely to my Sisters Sons Iohn Wittinbury and Roger Wittinbury and they to pay unto the Wardens of the Batchelors Company of the Merchant-Taylors 6 l. 10 s. yearly to be given to the poor and needy Brethren of the same Company for ever and if the said Iohn and Roger and their Successors do deny the said payment of 6 l. 10 s. it shall be lawful that the said Wardens to enter into the three Houses and to discharge them for ever William Say the Devisor dyes Barbara enters Francis Agnes and Alice dye without issue Barbara dyes Margaret enters John Wittinbury dyes without issue Roger Wittinbury dyes without issue and the Lessor is Cosin and Heir to him viz. Son of Margaret Pierson Sister of the said Roger. The 18 of August 13 Jacob. Margaret dyed seised having issue John Savage her Son and Heir who entered which Son the 17 February 13 Jacob. did infeoff Edward Jackson in Fee who the second of September 13 Jacob did infeoff Richard Slydhurst in Fee who the third of September 13 Jacob. did make the Lease to the Defendant for four years who entered upon whom the Lessor did enter and made the Lease to the Plaintiff upon whom the Defendant did enter And prayed the Opinion of the Court c. And I conceive Iudgment ought to be given for the Defendant But first as to the Question that hath been made scil What Estate John and Roger Wittingbury shall take if they shall take any Estate at all by this Will I shall not argue for I agree that if they have any Estate it is a Fee-simple in respect of the continual and perpetual charge imposed upon them for the payment of 6 l. 10 s. to the Wardens c. for that is to have a perpetual continuance in respect of the persons to whom it is to be payd scil the Poor And also the persons to pay are the two Wittingburies and their successors who in the Exposition of the Will shall be taken for their Heirs and Assigns and also in respect of the limitation of the payment scil for ever which in a Will makes a Fee-simple and â—â—â—â—s much as the charge is to continue for ever it follows also that the Estate ought to continue for without the Estate the charge cannot be But I conceive that John and Roger shall take nothing by this will or at least that they shall take but a future Estate to begin after the death of Francis without Heir and then their time will never come for John Savage under whom the Defendant doth derive his Estate is Heire to Francis and therefore the Plaintiff nor his Lessor being Heire to Robert Wittingb the Survivor cannot have this house And to prove this here is an Estate limited by expresse words to Francis and his Heirs and no apparent intent by the Devisor that the word Heirs shall be restrained to the Heirs of his body unlesse by reason of the limitation of the Remainders afterwards which cannot be as hath been said if Francis had a Fee-simple But as to this I say that the same reason may be given when a man deviseth Land to A. and his Heires and if he die without Heire that it shall remain to B. and his Heires in which case if the Devise to A. shall be restrained to an Estate in Taile the Remainder to be is good but no such intent can be collected against expresse words and therefore the Remainder is utterly void as in 19 H. 8. 8. B. where the Rule is given that when the intent of the Testator does not agree with the Law his intent shall be void and this is a certain Rule And West 2. cap. 1. where it is provided Quod voluntas donatoris observetur yet it ought alwaies to agree with the Rules of Law as is proved by the 8. Assise 33. where was a Gift in Taile to two and if one dies that the Survivor shall have all to him and the heirs of his body now doth the Law say that they have severall Inheritances but the will of the Donor was that the Survivor should have all which being repugnant to the Rule of Law was adjudged to be a void Clause 35 H. 8. 6. Estates 75. Estates given to the husband and wife for their lives the Remainder to the heires of their bodies is an Estate-taile executed notwithstanding the expresse will of the Donor because an Estate for life and of Inheritance cannot be distinct in one and the same person without a mean Estate in another So that in Wills if the intent be against Law they are void And so is it if the intent be ambiguous and not manifestly to be collected out of the words of the Will And in our Case no manifest intent does appear to make the Estate of Francis an Estate in Tail Câ—ke 6. Rep. Wildes Case One devised land to A. for life the Remainder to B. in Taile the Remainder to R. and his wife and after their deaths to their Children who then had two Children the Devisor dies and A. dies and B. dies without Issue and and it was adjudged that the Children of R. and his wife should have only an Estate for life because that by Iudgment of Law they have but an Estate for life and if R. and his wife should have an Estate in Taile it ought to be by the intent of the Devisor which intent ought to be manifest and certain and so expressed in the Will and in this case no such intent does appear for perhaps his intent was to accord with the Rule of Law 15 16 Eliz. 9. a. A. having three Houses having three Sons and a Daughter did devise to B. his first Son a House paying ten pounds to his Sister and he to enter after the death of the wife of the Devisor and did devise to his second Son another Houses paying to the Daughter ten pounds and he to enter at the age of one and twenty years and did devise the third House to the third Son paying ten pounds to his
Sister and he to enter at the age of one and twenty years and if any of his Sons died before the age of one and twenty years his part should be divided amongst the Sâ—â—vivors and so every one should be heire to the other and all of them came of age and paid the money and it was holden that each of them had an Estate in Fee and not in Taile and Dyer 357. Chick did devise the Fee-simple of a Messuage to A. his wife and after her death to W. his Son which W. was his Heir apparent A. did enter and married again and dyed having Issue by him and adjudged that A. had an Estate for life the Reversion to W. for life the Remainder to A. in Fee and 14 Eliz. a. One seised of Lands in Fee devised them to B. and the heirs of his body and if he died that it should remain to A. in fee yet B. shall have an Estate in Taile by the first words and shall not be restrained by the last words And Trinit 37 Eliz Rot. 382. Bacon against Hill and having three Tenements did devise them to his wife for life and then one of them to each of his three Sons and if any did die his part should remain to the Survivors and if any had Issue and died before he entred his Issue should have it and R. one of the Sons had Issue the wife died and R. died and adjudged that his Issue should have nothing Object But it may be objected that Francis cannot die without heire so long and his Sisters are living and therefore it shall be construed that the Devisor did intend only the heires of his body Answer But it does not appear that the Daughters were of the whole blood to Francis so that they may be heires to him for although where a Brother or Sister is spoken of in pleading it shall be intended of the whole blood because a Brother of the half blood is but half a Brother yet here when the Father onely does call them his Sons and Daughters and is so found by the Iury that they were his Sons and Daughters yet this is no proof that they were of the whole blood for they are daughters to the Father by what ever wife they were had And so I conceive upon the whole matter that the wife does take an Estate for life by the devise and that the Son shall have a Fee-simple but yet subject to this future devise sc if he die without heire that the Wittingb shall have it and so all the Will shall be good except the limitation to the Daughters for their lives and it cannot be intended that the Devisor did intend to prefer the Wittingb being his collaterall Cosins before the Issue of his Daughters which Issues are of his owne body Judgment And before that I argued againe Hillar 14 Jacob. Iudgment was given for the Plaintiff for they all agreed that Francis had but an Estate-tail by these words of the Will viz. If M. A. and A. do out live their Mother and their brother Francis and his heires and Francis cannot die without heire so long as his Sisters are living and therefore the word Heirs shall not be intended Heires generall but heires of his body wherefore Iudgment was entred ut supra c. Mich. 14 Jac. Mason against Manning IN an Ejectment upon a Lease made by John Crooker and Christopher Crooker the two and twentieth of May 14 Jac. of two houses forty acres of Land forty of Meadow and forty of Pasture in S. Needs Habendum from the Annunciation last past for three years The Ejectment was the twenty third of May in the same yeare The Defendant as to the force and armes c. pleaded not guilty and as to the residue he said that Queen Elizabeth was seised in Fee of the Mannor of S. Needs whereof the said Tenements are and time out of mind were parcell and that the Queen the ninth of March in the one and thirtieth year of her Raign by her Letters Patents shewed here under the Exchequer Seal did devise the said Tenements to Robert Croker for life the Remainder to Edward Bett for life the Remainder to Edward Adams for life the Queen dies whereby the Reversion does descend to the King Robert Croker dies and the thirtieth of March 14 Jacob. Edward Bet doth devise the said Tenements to the Defendant from the Annunciation last past for three years whereby he entred and was possessed untill the said John and Christopher Croker did oust him and did disseise the said Edward Bet whereby they were seised in fee by disseisin and made the Lease to the Plaintiff upon which the Defendant claiming his term did enter and did out him and the Defendant was and yet is possessed of the said Tenements the Reversion to Edward Bet for life the remainder to Edward Adams for life the Reversion to the King unde non intendit quod curia domino Rege inconsulto ulterius procedere vellet aut debeat and prayed ayd of the King and did aver the life of Edward Bet. And I conceive that ayd is not grantable in this case 1. Because that it is but an Action of Trespass 4 H. 6. 10. Tenant for life of a Lease from the King shall not have ayd of the King for that no Freehold is to be recovered and he is able to plead to all matters in a Trespass 2. The Defendant shall not have ayd of the King because he is not his immediate Tenant but he may pray in ayd of Edward Bet his Lessor and he of the King 1 H. 4. 18. In a Scire facias to execute a Fine the Tenant said that the Land was given to him for life the remainder to N. in Tail the remainder to W. in fee who was attaint of Treason whereby his remainder came to the King and he prayed ayd c. And the Court said that he ought to pray ayd of N. and he of the King and after he said that W. was also attaint of Treason whereby he had ayd of the King 33 H. 6. 29. In a Trespass where the Defendant justified as Baily of a Hundred to distrain for amercements and prayed ayd of the King and by Prisot he could not have it for the Sheriff is the immediate Officer to the King and to this agrees 11 H. 6. 39. where such justification was for taking of Toll and 9 H. 6. 26. In a Replevin the Defendant made Conusance as Baily of I. who held of the King for life and prayed ayd of the King and adjudged he should not have it for there is no privity betwixt the King and him because he is not immediate and 28 H. 6. 13. A man shall not have ayd of the King and Queen or of the King and his Tenant for life but first of the Queen or Tenant for life and they of the King and a man shall not have ayd of the King but where he is Baily or Servant
REPORTS OF THAT GRAVE and LEARNED JUDGE Sir JOHN BRIDGMAN KNIGHT Serjeant at LAVV SOMETIME CHIEF JUSTICE OF CHESTER To which are added Two Exact Tables the one of the Cases and the other of the Principal Matters therein contained LONDON Printed by Tho. Roycroft for H. Twyford Tho. Dring and Jo. Place and are to be sold at their Shops in Vine Court Middle Temple the George in Fleetstreet and at Furnivals Inn Gate in Holborn 1659. TO THE STUDENTS OF THE COMMON LAWS OF ENGLAND Gentlemen THese Ensuing Reports being brought to me in Manuscript in the peculiar Dialect of our Common Law I discovered the same to be the Hand-writing of that late Judicious and Honorable Person Sir John Bridgman Knight deceased Serjeant at Law heretofore Chief Justice of Chester the memory of whose great Learning and profoundnesse in the Knowledge of the Laws of England still liveth although himself be dead and thereupon bestowed some pains in the perusall thereof wherein I found many things in my weak apprehension worthy of observation which induced me to encourage the Translation thereof into our Native Idiome the Language enjoyned by the present Authority onely to be Used in things of this Nature whereby the same might become of publike Use if any well acquainted with the Authors Character shall doubt the Credit of this Copy they may have the sight of the Originall the better to satisfie themselves by the help of the Stationer The Cases are not placed in time as the same were adjudged but Printed in that order as they were found under the Authors own Hand For this Defect it is hoped that the Table may make amends which you will finde to be a perfect Repertory as to each materiall thing contained in this Book What faults have escaped the Presse will lye in the power of the judicious Reader to correct Mr. Bracton in his first Book Cap. 2. saith Si aliqua nova inconsueta emerserint quae prius usitata non fuerint in Regno Si tamen similia evenerint per simile judicentur cum bona sit occasio a similibus procedere ad similia Let this serve to Apologize for such encouragement as hath been given by me for the publishing of these Reports I having no other aim herein then the Publike good Farewell J. H. Middle Temple 5 Nov. 1658. THE NAMES of the CASES A ALlens case 13 Iac. 39 Ashfields case 14 Iac. 99 Adams case 15 Jac. 107 Agards case 15 Jac. 130 B Bassets case 8 Bishop of Chichesters case 1 Car. 29 C Crockers case 27 Coopers case 60 Crawleys case 13 Jac. 64 D Dawtrees case 18 Jac. 4 Davisons case 5 E Evans case 16 Jac. 118 F Frossets case 14 Jac. 49 G Garths case 22 Gouges case 12 Jac. 52 H Harris and Lewess case 56 Hollands case 69 K The King against Sir John Byron 23 The King Allen against Newton 15 Jac. 113 The King Parker against Webb 14 Jac. 120 L Loyds case 56 Lightfoots case 14 Iac. 88 Lees case 15 Jac. 116 Lingens case 15 Jac. 128 M Moores case 6 Meskins case 16 Mills case 63 Masons case 14 Jac. 87 Mandes case 13 Jac. 92 Mittons case 123 Muschamp and Lock against Blewit Sampson and Jenny c. 132 N Norris case 13 Iac. 47 Newshams case 14 Iac. 100 P Pets case 17 Iac. fo 1 Ponesleys case 18 Iac. 12 Perimans case 14 Sir Thomas Palmers case 11 Iac. 46 Pensons case 66 Parkers case 14 Iac. 89 Perryns case 12 Iac. 90 R Robinsons case 13 Iac. 79 Robinson against Greves 12 Iac. 81 S Samborns case 19 Iac. 9 Smalmans case 13 Iac. 42 Smith for the King against Boynton 13 Iac. 48 Smiths case 13 Iac. 59 Standishes case 14 Iac. 103 Southerns case 13 Iac. 125 T Townleys case 35 U Vanlores case 14 Iac. 58 W Whittons case 32 Weals case 14 Iac. 60 Webbs case 13 Iac. 84 Webb and lucks case 14 Iac. 110 Woods case 16 Iac. 139 THE REPORTS OF Serjeant BRIDGMAN Hill 17 Jac. Rotulo 170. Petts against Browne A Man is seised of Land in Fee and having two Sons doth devise his Land to his younger Son and his Heirs and if he dye without Issue living the eldest Son then the elder shall have the Land to him and his Heirs the Devisor dies the younger Son had issue a Daughter that dyed without issue then the younger Son suffers a common recovery with Voucher to the use of him and his Heirs and after deviseth to another and his heirs and then dies without issue living the elder Son Whether the Devisee or the elder Son should have the Land was the question And the Counsell for the Devisee raised three points 1. Admitting that these words in the Devise were omitted viz. living the eldest Son whether the younger Son had an Estate-taile or not 2. Whether these words do make such alteration of the Estate as to make the Estate a Fee-simple determinable upon this contingency viz. if he die without issue living the elder Son 3. Admitting that there were such a Fee in the younger Son yet whether this Estate devised to the eldest Son be not destroied by the recovery And as to the first point it was argued that if these words of limitation living the elder Son had been omitted the younger son had had an Estate-tail by this Devise the remainder in fee to the eldest Son For although the Devise to the younger Son was to him and his heirs which in case the Devise had stayed there had made a very good Fee-simple to the younger Son yet when the Devisor goes and declares further and deviseth that if he dye without issue that the elder son shall have the Land this last limitation if he dye without issue doth restrain the generality of these words his heirs to the heirs of the body of the younger Son only so that the last Devise to the eldest Son doth declare and exemplifie whâ—t kind of heirs the Devisor intended in the first Devise to the youngest Son and in the 5 H. 6. and the 5. where Land was given to R. and K. his Wife and their heirs and to the heirs of the said R. if the heirs of the said R. and K. his wife issuing should dye and this was adjudged a good Estate in tail And there it was said by Hall that if Land be given to a man and his Heirs for ever Et si contingit ipsum Obire sine haeredibus de corpore suo this is a good estate in tail and in the 19 H. 6. 74. by Vampage If I give land to another and his heirs for ever in the beginning of the Deed and then after I say Quod si contingat that if he die without heirs of his body that it shall remain to another in this case the Law intends by the Si contingat that it is but an Estate-tail And in the Book of Assises 14. Land was given to B. and his heirs to have and to hold to
him and his heirs for ever if B. shall have issue of his body and if he die without heirs of his body that the Land shall revert to the Donor and his heirs B. had issue which died without issue and it was adjudged that B. had but an Estate in tail and because he died without heirs of his body it was adjudged that the Donor should recover against the collaterall heire of B. And if the Law be so in Deeds or Grants executed in the life of the Donor a fortiori in a Devise which is to be taken more favourably then an estate made by Deed and therefore it is sufficient in a Devise to have the intention of the Devisor understood either to make an estate in fee or in tail although proper words to make such an estate be not used and the intent of the Devisor cannot be more manifest to have an estate in tail then in this case As to the second Point the question will be whether the younger Son hath an estate in Tail or in Fee determinable by this limitation and it seemed to them that he shall have but an Estate in tail In which the question is to which estate these words of limitation to wit living the elder Son shall be referred viz. Whether to the Estate made to the younger Son or to the Estate given to the elder for if they be referred to the Estate made to the younger there is no question but these words do abridge restrain the estate but if to the elder then they make no restraint or restriction as to the estate of the younger Son but onely limit the remainder to the elder Son on this contingency only viz. If he be alive at the time of the death of the youngest Son without issue And to prove that these words shall be referred to the estate devised to the elder brother They said That if the land had been devised to the younger Son and the heirs of his body and if he dyed without issue living the elder that the elder should have the estate to him and his heirs it is clear that the younger hath an absolute estate tail and that then the remainder to the elder shall be on this contingency viz. If he be living when the younger dies without issue And so is Frenchmans Case 1 2. Eliz. who demised land to his wife for life the remainder to Charles Frenchman and the heirs males of his body and if he died without heirs males of his body the remainder to Arthur Frenchman and the heires males of his body Charles had issue a Daughter and died without issue male and it was adjudged that the Daughter should not have the land for this contingency does not alter the Estatetail that was first limited to Charles and although the Devise in the case at Bar be to the youngest Son and his Heirs without any limitation of his body yet the limitation afterwards to wit if he die without issue does explain well enough that the heires of his body are intended and then the subsequent words living the Eldest Son cannot alter the estate first given to the younger Son And Hil. 40. Eliz. in the Kings Bench by Walmesly If one deviseth land to his Son and his heirs and further deviseth that if he die without issue that the land shall be sold yet the Son shall have an estate in fee and not in tail but otherwise if he devised that if he died without issue that the lands should remain over for in the first case he disposeth of no more of the estate by the last words then he did at the first but in the last case he disposeth of the estate it self in remainder And this was agreed by Owen 18 19. Eliz. Rot. 354. and 15. 16. Eliz. Rot. 330. where the case was That one Edward Clark being seised in fee of two houses had issue Henry and two Daughters Alice and Thomasin Henry dyed before the two daughters living the Father the Father devised one house to his daughter Alice and her heirs for ever and the other to Thomasin who was at that time but eight years of age and her heirs for ever and if she died before the age of sixteen years Alice then living Alice should have it to her and heirs and if Alice should die having no issue living Thomasin Thomasin should have the house of Alice to her and her heirs and if both of them died without issue he devised the two houses to the two Daughters of his Son Henry and their heirs and if they died without issue he devised the remainder to a stranger Proviso That if Alice should marry I. S. that Thomasin should have her part to her and her heirs and if Thomasin should dye having no Child that the daughters of Henry should have all and if they died having no Child the remainder to a stranger as aforesaid The Devisor dies then Alice marries N. but not I. S. and enters into her house Thomasin after sixteen years of age dies without issue And if Alice or the daughters of Henry should have the estate of Thomasin was the question And it was holden by three Iustices that the daughters of Henry should have it because that Thomasin did not die within the age of sixteen years and that it being objected that there was no estate tail to any of the daughters but a fee simple conditionall upon a contingent it was at last adjudged 14. Eliz. Rot. 340. that they were Tenants in tail by this Devise in Mich. 37 38. Eliz. 42. Mich. 14 15. Eliz. And Michaelmas 18. Jacobi Judgment This Case was argued by Montague cheif Iustice Doderidge Haughton and Chamberlain who all agreed that by this Devise the youngest Son had not an Estate-tail but a limited see so that by his dying without issue living the elder Son his estate was quite determined and all except Doderidge agreed that the Recovery could not hurt the future Devise But Doderidge was much against this opinion by reason of great mischeif that might ensue by making of Perpetuities in Devises and cited Archers Case and Capels Case but notwithstanding Iudgment was affirmed as aforesaid De Termin Trinitat 18 Jacob. Rot. 1198. Dawtree against Dee and others IN an Action on the Case wherein the Plaintiff Declared That he the fifth of July 16 Jacobi was and is seised in Fee of a Capital Messuage called Moor-place with the appurtenances and of 600 Acres of Land meadow and pasture in Petworth with the said Messuage used of the annual value of 100 l. which Messuage he and those whose Estate he hath in the said Messuage and Tenements therein Farmors and Tenants have time out of minde used to keep good hospitality for the relieving of the Poor in Petworth aforesaid and that in the Church of Petworth aforesaid on the said fifth of July and also time out of minde there hath been and is a little Chancel on the North part of
against Humphrey Bigges And Manwood fol. 1. A Forest is a certain Territory of Ground priviledged for wild Beasts and Fowles of the Forest to rest and abide in the safe protection of the King for his Princely delight and pleasure and doth consist of four things 1. Vert. 2. Venison 3. Particular Laws and Priviledges 4. Certain Officers But by this pretence of the Defendant the Forest of the King is priviledged for wild Beasts to rest in protection of the King but they are subject to being destroyed by the Defendant for by such pretence none can enter there but he or his Keepers And I conceive that no body can pretend to have any profit or pleasure in the Forest which tends to the destruction of the Forest and that is the reason that one cannot prescribe to have Common in a Forest for Sheep Geese Goats or Hoggs for to suffer them to Common there is Ad magnum nocumentum ferarum forestae and such a prescription the Defendant maketh which is not only Ad magnum nocumentum but to the utter destruction of the Forest And if it be objected that this Park claimed by the Defendant is but a little part of the Forest this is no answer for as in the Case of a Common no man may prescribe to have Sheep c. in the Forest so cannot he in any part of the Forest and if the Defendant may prescribe to have such an irregular Park in part of the Forest so may others claim such like prescriptions in other parts of the Forest and so the King shall lose all the Franchise of his Forest and the Defendant may make his Fence or Ditch so low without-side and so high within that the Kings Deer cannot get out again when they are come in and so this Park shall be in the nature of a Trap to catch the Kings Deer And further he that will prescribe to have any common profit or pleasure in the Freehold or Inheritance of another ought to make his prescription in such manner so that he must leave the residue of the profits to the Owner and cannot utterly exclude the Owner and therefore if one doth prescribe to have all the Herbage Pannage and Profits of the Land of I. S. no man can conceive that this prescription is good Neither can a Commoner prescribe that the Lord of the Soile cannot put in any Cattell into the Land But in our case the very Franchise of the Kings Forest doth consist of Vert Venison Lands and Officers of the Forest for the King may have a Forest although he hath no Land there And in the Commentaries 332. If a Mannor within the Forest of Waltham do escheat to the King and the King grants the Mannor to one in fee yet shall not he have the liberty of the Forest And the same Law is where the King grants all the Land which he hath in the Forest But notwithstanding I agree that one may have a Park within a Forest by prescription or by grant but then the same ought to be kept so inclosed that the Beasts of the Forest cannot enter into the Park which if not done it is a forfeiture of the liberty of the Park and so it is if he have a Salterie or Deer-leap for the nature of a Park is to be inclosed and in the 10. H. 7. 6. it is said that a Park consists of Soile Inclosure and Game and in the 15. Ed. 3. closure and game And in the 15 Edw. the 3. Thomas Earl of Lancaster Lord of a Forest did grant leave to one John Harrington to make a Park within the said Forest and there it is adjudged that if the Grantee does so sleightly inclose the Park so that the Forest-beasts may get in there that it is a forfeiture and the Lord of the Forest may enter and take the Deer But by the pretence of the Defendant the King shall not have so much power in this Land being in the midst of the Forest as he hath in the Lands of any of his Subjects which do lie without the Forest for if Forest Beasts stray or wander into the Land of a Subject out of the Forest the Foresters may enter into this Land and rechase them into the Forest again Crocker against Kelsey HVsband and Wife Tenants in Tail of the Gift of the Husband the remainder to the Husband in fee The Husband dyes the Son and Heir of the Husband and Wife does levy a Fine with proclamations to the use of him and his Heirs the Wife does let a Lease of the Land for 21 years and dyes the Son deviseth his Land to E and his Heirs and dyes And Whether this Lease made by the Wife were good to binde the Devisee was the Question And I conceive that the Lease is good For although that by the Fine the Estate-tail is barred as to the Conusor and all his issues yet does the Wife remain Tenant in Tail as before and therefore this Lease made by her is a good Estate derived out of her Estate-tail and shall binde all except the issues in Tail who may claim per formam Doni And so is it in the 33 H. 8. Dyer 51. B. Tenant in Tail before the Statute of the 27 H. 8. does make a Feoffment to the use of himself in fee and then he and his Feoffees make a Lease for years rendering Rent and then is the Statute made the Tenant in Tail dyes and then the issue aliens by Fine before any entry or receit of the Rent and holden by all the Iustices except Sanders that the Alienee shall not avoyd this but otherwise of a Rent granted And suppose the Fine had not been levyed by the issue he shall not avoyd the Lease without entry and if he had aliened after the death of his Mother and before entry the Alienee should never avoyd the Lease And in the 29 Assis 51. and the Comment 557. Tenant in Tail acknowledgeth a Statute-Merchant the issue is attaint of Felony and pardoned the Tenant in Tail dyes the issue enters and the Conusee sues out Execution And because the issue was disabled to inherit the Estate-tail therefore he had it as an Occupant and so it was subject to the Execution And although the remainder in Fee does pass by way of interest by the Fine yet that cannot come in possession so long as any issue in Tail is living and therefore if a stranger had entered after the death of the Wife the Son could not have had a Formedon in the remainder for that must suppose the death of the Donees in Tail without issue the which cannot be in our Case Comment 560. Austens Case Sir Thomas Wyat Tenant in Tail of the Gift of the King made a Lease for years rendering Rent and dyed Sir Thomas his son accepts the Rent and after was attaint of Treason and executed having issue and adjudged that the King should have the Land in point of Reverter discharged of the Lease
years not expired at the time of her marriage she should have the Messuage then in his tenure being his Mansion-house which house now is in the tenure of the Plaintiff and an Annuity of 20 l. out of all his other Lands Tenements and Houses of the Devisor in the said Parish with a clause of distress and to detain the same until the said Annuity were payd to the said Ellinor and if Ellinor did marry he did devise all his said Lands except the said Mansion-house to the said Thomas Butler and his Children and made the said Ellinor his Executrix and dyed possessed And the said Ellinor entered claiming the Devise and the 16 of January 1606. marryed the Plaintiff and the 30 of April 1606. the Plaintiff and his Wife did agree to have the said Mansion-house and the said Annuity and Thomas Butler by their assent did enter into the residue And the 12 Jan. 1606. Elianor dyed And at our Lady-day 12 Jacob. 10 l. of the said Annuity was behinde wherefore the Plaintiff the 26 of May 12 Jacob. did enter and take certain goods for the said 10 l. and would have deteined them in the name of a Distress and the Defendants rescued them ad damnum 40 l. The Defendants pleaded Not guilty The Iury found the Lease made by the Bishop and the confirmation with the several Assignments and the Devise as in the Declaration is set forth saving the Devise to the said Thomas Butler from the day of the death of the said Ellinor which clause was not found and they found also that John Butler the 3 Novemb. 3 Jacob. dyed and that Ellinor did enter claiming by the Devise and that she married the Plaintiff and also their agreement to have the Mansion-house and Rent as a Legacy and the entry of Thomas Butler in the residue by the assent of the Executor and the death of Ellinor and that the 10 l. was behinde and that the Plaintiff took the goods and would have detained them as a Distress and that the Defendants rescued them And if the Defendants were guilty they found for the Plaintiff if not they found for the Defendant c. And I conceive Iudgment ought to be given for the Defendants For first I conceive that the Wife of John Butler had not any Rent at all out of the house in which the Distress was taken If she had any Rent yet it is determined by her death And I conceive the Case to be thus Lessee for years of two houses does devise them to his Wife for 28 years which is all the term if she live so long unmarryed and after her death to Thomas Butler and if the woman marries that she shall have one Messuage for the residue of the term and 20 l. Rent ex omnibus aliis terris suis with a clause of Distress and then Thomas Butler shall have the other Messuage The Devisor makes his Wife Executrix and dyes and the Wife enters claiming by the Devise and then marries the Plaintiff and then they agree to have the house that was devised to her after her marriage with the Rent and Thomas Butler by their assent does enter into the residue the Wife dyes and the Plaintiff distrains for Rent behinde after her death and the Defendants rescue the Distress whereupon the Plaintiff brings his Action And as to the first I conceive that the Wife can have no Rent by this Devise and that for three Reasons Because the Wife did take the entire term as Executrix and therefore she cannot have a Rent out of the same term and therefore I conceive it will not be denyed that if Lessee for years deviseth a Rent to I. S. and makes him his Executor and dyes I. S. shall have no Rent for in as much as he hath the term as Executor he shall have no Rent as Legated for it is extinct in the term and although he hath one in his own right and the other as Executor yet cannot he have both together 4 Ed. 6. B. Surrend 52. If one hath a term as Executor and purchase the Reversion the Lease is extinct And although the term in our case is devised to a stranger yet by the Law it does first vest in the Executor and the Devisee cannot have it without the delivery or consent of the Executor And if a Devisee does enter into a term or takes goods without the delivery of the Executor the Executor may have an Action of Trespass against him 20 Ed. 49. 2 H. 6. 16. 11 H. 4. 84. 37 H. 6. 30. although in the 27 of Henry the 6. 8. a. diversity is taken between a thing certain and uncertain for it is there said that if the thing devised be certain and a stranger takes it the Executor shall have an Action of Trespass but in old Nat. Bre. 87. there is no diversity So that it is clear that the term first vesteth in the Executor and so the Rent which the Executor had is extinguished by unity of possession Object And whereas it hath been objected That although the term does first vest in the Executor yet when he assents to the Devise he is then immediately in by the Devisor and therefore the Rent is not extinct Answer I answer That there the agreement does divest all the Estate that the Devisor had gained by his entry but in our case the woman hath as high and right an Estate in the Land as she hath in the Rent and although there be a possibility of severing the Land from the Rent yet that cannot revive the Rent being extinct as if one hath Land of the part of his Father and hath a Rent out of the said Land of the part of his Mother the Rent is extinct and cannot be divided although he dye without issue And that the Wife hath as high Estate in the Land as she hath in the Rent appears in Cook 6 Rep. Sanders Case where if an Executor commits waste before he assent to the Legacy an Action of waste lies against him which proves that the Executor hath the term And although the Devisee after his assent is in by relation by the Devisor yet this will not ayd the Rent no more then if a Son having Rent out of his Fathers Land and the Father dyes and the Son endows his Wife this shall not revive the Rent which was extinct before yet is the Wife in as of the Estate of her Husband and the Estate and possession of the Son is utterly defeated But admit that the Rent be not extinct yet here is no agreement to have the Rent for here are two Devises 1. Of the Land to the Wife if she continue unmarryed the remainder to Thomas Butler and the other of twenty pounds Rent to commence after her marriage wherefore the assent of the Executrix to the Devise of the Land is no execution of the Devise of the Rent Comment 5. 21. B. Welden and Elkingtons Case If a Termor deviseth a Rent or a
themselves Breach 2 And that after Viz. the ninteenth day of June 13 Jacob. at a Port called Cape Corants beyond the Seas one Matthew Navale did joyne with the Defendant and the sayd Commissioners and they together did saile to the Coast of Champeach in the West-Indies and did there put a shoare the said Hope-well and three other Ships and there then upon the high Sea by force and arms did take and spoyl another Spanish Frigot laden with 100 Hides which Ship and the goods in her was the Ship and goods of divers persons subject to the King of Spain then and yet in league with the King And that after to wit the 20 Junii 13 Jacob. at the Town of River Breach 3 de Garta in the West-Indies the said Defendant and the others c. by force and arms did take and spoyl another Spanish Frigot laden with 150 Hides which Ship and goods were the Ship and goods of divers persons subject to the King of Spain then and yet in league with the King And that also then the said persons by force and arms did take and Breach 4 spoyl a certain Town beyond the Seas and from thence did take and carry away twenty Iars of Hony of the Goods and Merchandize of the Inhabitants of the said Town being subjects of the King of Spain and then and yet in league with our King And also there by force and arms did take and spoyl another Spanish Breach 5 Frigot laden with 63 Chests of Coucheneal and 700 Hens c. of the goods of divers persons being subjects of the said King of Spain then and yet in league with our King And that the Defendants did not come to the Port of London after their return c. And concluded that the Defendant did not keep his Covenant to make no spoyl or to do any act whereby any detriment should come c. ad damnum 3000 l. c. The Defendant as to the said five first Breaches did demur in Law because they were not alledged in such manner as any issue or tryal may be had And as to the other he pleaded that the Plaintiff did prohibit him from coming to London And it seems that Iudgment ought to be given upon the demur against the Plaintiff For first there is no covenant to binde the Defendant for the words are praedictus State-General doth covenant and there is no other name in the Covenant given to the Defendant and that is not sufficient to binde him 1. Because he is not named State-General before but Naute Stratageneral 2. This is no parcel of his name before or addition but is as his title or is a pronomen and that is not sufficient for the pronomen is but as an alius dictus 5 Ed. 4. 141. Alexander Cock Clericus alius dictus A. C. nuper de D. in Comitatu c. Clerico is no good addition because there is no addition but in the alius dictus And Dyer 119. Robert Thrower brought an Action of Debt upon a Bond by the name of Robert Thrower otherwise called Robert Throner Keeper of the Kings Gaol at Ludgate and the Defendant pleaded the Statute of 23 H. 6. 1. And it was adjudged that it shall not be presumed that he was Gaoler for it may be false As a Bond of I. S. Son and Heir of I. S. yet he may be a Bastard and a Bond by A. the Wife of I. S. who is sole is good notwithstanding And Dyer 304. B. in an Ejectment the Plaintiff declared of a Lease of 100 acres of Land by the name of the Mannor of D. habendum the Mannor and the premisses c. whereupon he entered into the Mannor and premisses Quaere If it be good and agreed to be sufficient by the word premisses There is no breach assigned for as to the first breach that is onely that D. E. and his company did take c. a Spanish Frigot and that is no breach of covenant in the Defendant for that the covenant is not several as in the 5 Rep. Slingsbies Case If a Lease be made of W. acre to I. S. and a Lease of B. acre to I. D. and the Lessor covenants with them and either of them that he is owner c. each of them shall have an Action of Covenant according to their several interests so in case of a warranty but otherwise where the interest is joynt Vide 5 Rep. Mathewsons Case And so here the Covenant of the Defendant doth extend onely to himself and his Ship and not to D. E. and his company and the allegation that the Defendant and his company did come to the said Island and divided the goods is nothing to the purpose for it may be they bought a moyety thereof or any part of them and so they might lâ—wfully divide them 27 Assis 69. In an Appeal for that one did receive stoln goods knowing of the Felony adjudged not good And as to the second breach it is not alledged that the spoyl was made during the Voyage and if it were not during the Voyage it is no breach and in as much as the Plaintiff hath not set forth that it was done during the Voyage it shall be taken most strongly against himself 26 H. 8. Pleadings 6. 3 H. 7. 2. Dyer 89. And so in all the other three breaches it is not alledged that it was done during the Voyage It does not appear that these goods thus taken were the goods of the Subjects of the King of Spain at the time of the taking of them but onely quod fuerunt bona which doth denote a time past and doth not import any present property and it may be very probable that they were their goods and that they were bought of them by some persons under the obedience of a King not in amity with our King and then it is no breach for fuerunt is so uncertain that it may be 20 or 40 years past Also it is declared Quod fuerunt bona diversarum personarum existentium subditorum Regis Hispaniae the which word existens doth refer to the time of the Declaration and not to the time of the taking for although in the 27 of H. 8. 15. and 28. that the word existens in Deeds may in respect of the subject matter be applyed to the future time yet in all course of pleading it shall be taken for the present time as in an Indictment upon the Statute of 8 H. 6. for forcible entry into Land Existens liberum Tenementum I. S. is not good because it doth refer to the time of the Indictment and not of the entry And so in the 21 H. 7. 30. A condition to discharge one of all Escapes of all Prisoners in the Goal this shall extend onely to Prisoners at the time of the Oligation made And it may very well be that they were the Subjects of one who was not in league with the King at the time of the taking and yet may be
at the time of the Declaration the Subjects of the King of Spain I conceive that the Plaintiff ought to alledg that these spoyls were to the damage of the Plaintiff I conceive that he ought to have named one of the Subjects of the King of Spain and not to leave it so uncertain to the Iury as to have them charged to enquire of all his Subjâ—cts for the Plaintiff takes notice of the persons that they were the Subjects of the King of Spain and therefore he may as well know their names Dyer 99. 285. An Indictment of Murder of one unknown or stealing the goods of one unknown is good because he may be discovered And after the Plaintiff discontinued his Suit Holland and others against Jackson and others RIchard Holland and Margaret his wife one of the daughters and heirs of the body of Sir Robert Langley Knight and William Dausey and Ann his wife the other daughter of the said Sir Robert brought a Writ of Error to reverse a common Recovery had at Lancaster die Lunae 13 Elizab. In a Writ of Entry sur Disseisin in the Post between the said Francis Jackson and Henry Oyden Plaintiffs and Robert Leigh and James Haye Tenants of 22 Messuages 10 Cottages 20 Tofts 22 Gardens 20 Orchards 300 acres of Land 200 of Pasture 40 of Wood 500 of Furze 100 of Turbary c. with the appurtenance in Alkerington and Prestnitch wherein the Tenants did vouch Thomas Leigh and Katherin his wife who did appear by George Butler their Attorney who entred into warranty and did vouch William Forster present in Court who did warrant c. ad damnum c. for that before the purchase of the said Writ of Entry and since the 27 H 8. Sir Robert Langley was seised in see of the said Tenements and thereof did infeoff Thurston Tilsley Fitton and Hopwood in fee to the use of himself for life and after to the use of the said Katherin in T. the remainder to the use of the right heirs of the body of the said Sir Robert the remainder to the use of his heirs Sir Robert was seised for life with remainders over c. and then Sir Robert dyed seised after whose death the said Tenements did remain to Katherin in Tayl the remainder to Katherin and the Plaintiffs Margaret and Ann and one Dorothy as daughters and heirs of the body of Sir Robert the Reversion to the said daughters and their heirs whereupon Katherin did enter and was seised in Tayl with Remainders as aforesaid and did marry Thomas Leigh whereupon the said Recovery was had in manner and form as aforesaid after which Recovery Thomas Leigh and Katherin did dye without issue of the body of Katherin and Dorothy dyed also without issue whereby the right of the said Tenements did remain to the said Margaret and Ann as daughters and heirs of the body of the said Sir Robert The Writ of Recovery was certified and the Plaintiffs assigned Error for that Katherin was within age at the time of the appearance of her and her Husband by the said Attorney and was within the age of 21 years at the time of the Iudgment to wit of the age of eighteen years and no more Hereupon a Scire facias was awarded against the Recoverors who being returned dead a Scire facias was awarded against the heirs and Ter-tenants whereupon Ambrose Jackson was returned son and heir of the said Jackson and Thomas Hulm and Margaret his wife and Isabel Ogden daughters and heirs of the said Ogden and William Ogden and others were returned Ter-tenants and the heirs and Ter-tenants did appear and pleaded several Pleas some to the Writ and some in Bar and after the Writ of Error was discontinued Hillar 11 Jacob. The Plaintiffs purchased a new Writ of Error of the said Tenements omitting the Rent and assigned the said Error whereupon a Scire facias was awarded against the Heirs and Ter-tenants which was returned to wit that Margaret Hulm was dead without issue and thereupon a Scire facias was directed to the said Jackson and Ogden the Heirs c. and Katherin Leigh and Robert Leigh and fourty other Ter-tenants who did appear and thereupon Whereupon the said Error was assigned The Ter-tenants did plead that John Chatterton was Tenant of a Cottage c. in A. aforesaid parcel of the said Tenements The Heirs pleaded in null est errat The Plaintiff did acknowledg the Plea of the Ter-tenants and thereupon a Scire facias was awarded against John Chatterton who did appear and the Plaintiff did assign the said Error whereupon Jane Jackson one of the Ter-tenants did plead that Katherin was of full age c. whereupon issue was joyned And George Chatterton and ten others of the Ter-tenants did plead non-tenure And the Heirs of the Recoverors did plead in null est errat And Mary Taylor did plead that before the Recovery a Fine was levyed the 4 Septemb. 13 Elizab. between the said Robert Leigh and James Haye Plaintiffs and Thomas Leigh and Katherin his Wife Deforceators of the said Tenements whereupon the said Thomas and Katherin did acknowledg the said Tenements to be the right of the said Robert c. with warranty against them and the Heirs of Katherin which Fine was proclaimed c. and was to the use of the Conusees and their Heirs until the Recovery should be perfected and then the seventh of March the 13 Eliz. the Writ of Entry was pursued which was to the use of Thomas and Katherin his Wife in Tayl the Remainder to Thomas and his Heirâ— Thomas and Katherin did demise to the said Mary a Cottage and three acres of Land parcel of the said Tenements for life c. wherefore she did demand Iudgment of the Writ against the Fine with proclamations Robert Leigh and 28 others of the Ter-tenants did plead the said Fine with warranty and that Katherin dyed without issue and that Thomas was seised in fee whose estate they have and that Thomas dyed and that after the death of Katherin the said warranty did descend to Margaret and Ann as sisters and heirs of Katherin and did demand Iudgment if they should maintain this Writ against the said Fine and against the warranty The Plaintiffs as to the said several pleas of non-tenure in null errat the fine with proclamations and the warranty did severally demur in Law to which the Defendants did severally joyn And I conceive that the Writ of Error does well lie and that the Recovery is erroneous and therefore ought to be reverst And for the Argument of the Case I shall divide it into three parts If the Writ of Error will lie 1. In respect of the Plaintiffs 2. Notwithstanding the plea of non-tenure pleaded in abatement thereof by Chatterton and ten others of the Ter-tenants Whether there be any Error in the Recovery and if it be such an Error as the Plaintiffs may assign If the Plaintiffs be barred thereof by the pleas
an Action of Debt for forty pounds upon the Statute of 2 Edw. 6. For that the Plaintiff is and was for two years past Rector of Bifeild and the Defendant the first of October 12 Jacob. was Occupier of eighteen acres of Land and thirty of Pasture in Bifeild aforesaid and did continue the occupation thereof for a yeare after and the first of Septemb. the 13 Jacob. did mow and reap the Hay growing upon the Meadow and the Grain viz. Barley Wheat Pease Beans and Oates growing upon the Land and the same day did take and carry them away without setting out the Tithes or agreeing with the Plaintiff for them and did aver the value of the Tithes to be thirteen pounds six shillings eight pence The Defendant pleaded Non debet The Iury found that King Henry the eighth was seised in Fee of the Advowson of Bifeild and the five and twentieth of April 34 H. 8. the King granted the same to Sir Edward Knightly and Ursula his wife and to the Heirs Males of the body of Sir Edmund the remainder to Valentine Knightley his brother and the heires males of his body the Remainder to the right heires of Sir Richard Knightley then dead Father of the said Sir Edmund Sir Edmund died seised without Issue Ursula did surrender to Valentine and the fifth of September 4 5 Phil. Mar. Valentine did give and grant the Advowson to Sir John Spencer and others and their heires to the use of himself for the life of Ursula and after the decease of which of them should first die to the use of Richard Knightley his Son and Mary his wife and the heires males of the body of Richard the Remainder to the right heires of Sir Richard Father of Valentine That the twentieth of Febr. 6 Eliz. William Briggs Rector of Bifeild by Indenture did let the Rectory to the said Richard Knightley habendum from the next Annunciation for sixty one yeares rendring 28. pounds Rent And that the twenty fourth of Febr. 6 Eliz. Valentine Knightley did confirm the Lease and the last day of February in the same year the Bishop of Peterborow being ordinary did confirm it That the thirtieth of July in the same year Richard Knightley did grant the Lease to Edward Knightley his second Son and afterwards recovered the profits to the use of Edward being within age That the eighth of May 8 Eliz. Valentine died seised of the Advowson having Issue the said Richard his eldest Son William Briggs did recover the Rent during his life and dies whereby Richard Knightley does present William Reynolds who was admitted instituted and inducted Reynolds did resigne whereupon Richard Knightley did present Richard Burdsale who was admitted c. and Burdsale did resigne wherefore Richard Knightley did present Simon Rogers who was admitted c. And they found that all these persons did accept the Rent And that the first of Septemb. 21 Eliz. Richard Knightley did take the profits to the use of Edward and did devise the Rectory to Rogers the Parson for forty years if he should be so long Parson there That the thirteenth of Novemb. 27 Eliz. Sir Richard Knightley did grant the Advowson to Valentine his Son in Fee That the 34 of Eliz. A Fine was levied between Bartholomew Tate and Henry Yelverton Esquires Plaintiffs and Valentine Knightley Esquire Deforceator of the said Advowson Sur conusans de droit come ceo with Warranty to the use of the Conusees and their heirs Rogers did resigne whereupon the said Valentine did present Jonas Challoner who afterwards died and the Ordinary did present the Plaintiff by Laps who did accept the Rent for divers years And they found the carrying away of the Tithes and to the value of ten pounds And prayed the opinion of the Court upon the whole matter whether the Defendant owed the thirty pound to the Plaintiff or not Vpon which Verdict the case is this Valentine Knightley seised of an Advowson in Taile to him and the Heirs males of his body the Remainder to the right Heirs of Sir Richard Knightley his Father then dead the 4 5 of Philip and Mary did give and grant the Advowson in Fee to the use of himself for the life of Ursula Knightley the Remainder to Richard his Son and Mary his wife and the heirs males of the body of Richard the Remainder to the right heirs of the said Sir Richard the Father The twentieth of February 6 Eliz. William Briggs the Incumbent does make a Lease of the Rectory by Indenture to Richard the Son for sixty one years from the Annunciation next c. rendring twenty eight pounds Rent And the twenty fourth of Febr. 6 Eliz. Valentine Knightley does confirm the Lease and the last of February in the same year the Ordinary confirms it The thirtieth of July in the same year Richard the Lessee grants the Term to Edward Knightley his second Son within age and takes the profits to his use And the 8. of Eliz. Valentine dies Richard being his eldest Son William Briggs dies whereby Sir Richard does present William Reynolds who was admitted c. And he did resigne whereby Sir Richard did present Burdsale c. who did resigne c. whereby he presented Rogers and all these persons did receive the Rent And the 21 Eliz. Sir Richard did make a Lease of the Rectory to Rogers the Parson for forty yeares if he shall be there Parson so long 27 Eliz. Sir Richard grants the Advowson to Valentine his Son in fee and 34 Eliz. A Fine was levied of the Advowson between Bartholomew Tate and Henry Yelverton Plaintiffs and Valentine Knightley Deforceator to the use of the Conusees and their heirs Rogers did resigne whereby the said Valentine did present John Challoner c. who died and the Ordinary collated the Plaintiff by Laps who for many years accepted the Rent and the Defendant did take and carry the Tithes to the value of ten pounds And whether this Lease be good to bind the Plaintiff or not is the question and I conceive it is not And for the arguing of this Case I will consider these three things The Validity of the Lease without any confirmation If here be any confirmation of this Lease and if it continues in force against the now Plaintiff Admitting here be not any sufficient confirmation of it self if the Fine levied by Valentine Knightley hath given any force and strength to it And as to the first I conceive without any doubt that this Lease without any confirmation is determined by the death of the person who made it and is so determined as no acceptance of Rent by the Successor can make it good and therefore the difference is between a Lease for life and a Lease for years made by a person rendring Rent for the Lease for life is only voidable and not void by the death of the Lessor so that if the Successor does accept the Rent and Fealty he shall be bound for his
favourably then a Plea yet is it all one for I agree that a Verdict need not be so formall as a Plea but if it wants substance either on the one party or the other this shall prejudice the party as much as if there had been a pleading for the Court cannot give Iudgment without some matter found and therefore for as much as in our Case the life of Sir Richard makes for the Defendant and all the validity of his Lease depends thereon he ought to prove by evidence that Sir Richard was alive so that the Iury might have found it and because it was not so found the Court will not intend that he is alive and therefore he shall be taken to be dead and so his confirmation is finished But admitting it shall be intended that he is alive yet I conceive that immediatly upon the death of Valentine his Estate which he had by the limitation of the use is determined and vanisht and he is remitted to his Estate-taile and then his confirmation as I have already proved which doth charge the Estate which he hath by limitation of the use cannot endure Yet I will agree that if Tenant in Taile makes a Feoffment to the use of himself for life and after to the use of his Issue being within age and dies that his Issue shall not be remitted as it is resolved in the Comment 111. Townsends Case and 207. Standbridge and Morgans Case But the diversity is when the Estate-taile is discontinued wherby the Entry of the Issue is taken away and he is put to his Formedon there he shall not be admitted for the limitation of a use to him for if he will take the Estate according to the use he ought to take it in the same manner as he had the use but when no discontinuance is made of the Estate-taile it is otherwise as in Townsends Case Comment 111. Where Amy the wife of Roger Townsend was Tenant in Taile and the Husband the 29. of H. 8. made a Feoffment to the use of himself and his wife for life the Remainder to the use of their eldest Son for life with divers Remainders over the husband and wife died and resolved that neither the wife nor the Son are remitted and the reason there was because that the Feoffment being made before the Statute of 32. of H. 8. was a Discontinuance to the purging of which the wife was driven to her Cui in vita and cannot avoid this by Entry as she might after the Statute of 32 H. 8. and therefore it is there agreed that if a Disseisor make a Feoffment to the use of the Disseisee and he enters he is remitted because his Entry was congeable And so Dyer 191. 2 3 Eliz. Land is given to the husband and wife and to the Heirs of the body of the husband the husband after the Statute of 32 H. 8. makes a Feoffment to the use of himself and his wife for life the Remainder to the first Son for life the Remainder to the right heirs of the husband the husband dies and it was resolved in the Court of Wards that the wife should be remitted notwithstanding the Statute of Vses because that her Entry was congeable and so 11 H. 7. 12. a. If the son disseiseth the Disseisor of his Father and the Father dies now forasmuch as that a right of Entry was in the Father which by his death doth descend to the Son he shall be remitted notwithstanding that he came to the possession by his own proper and wrongfull Act which is as strong against a Remitter as an Agreement is to a Vse And so if the Son and another doth disseise the Father and the Father dies the Son is remitted and shall put out his companion And then Sir Richard being remitted the Confirmation as I have shewed before being but a charge upon the Advowson is meerly determined and so Littleton 148. B. If Tenant in Taile enfeoffs his Issue within age who at full age doth grant a Rent-charge or a Common and the Father dies the Issue shall hold discharged and 40 Ed. 3. 448. If Tenant enfeoff a stranger who grants a Rent and enfeoffs his Son within age and the Tenant in Taile dies the Issue shall hold the Land discharged and the same Law by Catesby in 12 Ed. 4. 13. b. If Tenant in Taile after Discontinuance does repurchase the Land and dies and the reason is because the Statute that was charged is vanisht And although that the opinion of Bromley 33 H. 8. Dyer 51. b. be that the Issue in such case shall not avoid a Lease for years made by him before his Remitter yet the case of a Rent is there also agreed that it is determined by the Remitter and the same Law is in Ioynt-tenancy if one doth make a Lease for years so that he doth dispose of the possession this shall bind the Survivor but otherwise if he charges the Land with a Rent or other thing and so is it where a husband hath a term in right of his wife as in 7 H. 9. 2. 3. And as to the last part of the Case so If the Fine levied by Valentine the Son and Heir of Sir Richard Knightley doth give any force or strength to the confirmation or not and I conceive that it doth not for three causes First the Fine is not with any Proclamations so that it is no bar to the Intail and therefore it is no more then a bare Grant of a Tenant in Tail Secondly As this Fine is found it cannot be intended to be levied by Valentine Knightley the Son of Sir Richard but by a stranger of that name for it is first found that the 27 Eliz. Sir Richard did grant the Advowson to Valentine Knightley then his Son and Heir apparent and that the 36 Eliz. a Fine was levied between B. T. and H. Y. Plaintiffs and Valentine Knightley Esquire Deforceator wihout saying the aforesaid and therefore I conceive that Valentine Knightley Esquire who levied the Fine cannot be intended to be Valentine Knightley Son and Heir of Sir Richard and yet I agree the Case of 21 H. 7. 30. That when Westminster is put into a Plea and then a matter is alledged apud Westmonasterium without praedict it shall be intended the same place but when another addition is given to the person or place it is otherwise and therefore in the second place if it be sayd apud Westmonasterium super Thamesin it shall not be taken for one place 5 Ed. 6. Dyer New Book of Entries 650. 35 36 Eliz In the Kings Bench Vpon a Trespasse for breaking his Close and breaking and spoyling two Gates and three perches of Hedge the Defendants prescribed to go there in perambulation upon which there was a demur c. and adjudged for the Plaintiff 1. Because that he ought to alledge this by custome and not by prescription 2. Because the Bar was that the Plaintiff had obstructed the
Estates yet in Wills the intent of the Devisor is sufficient either to limit the Estate or to describe the person that shall have it And therefore if Land be given to one in perpetuum if it be by Grant or Feoffment yet there passeth but an Estate for life but if it be given by Will it is an Estate in Fee and 4 Ed. 6. Estates 78. If one deviseth his Land to another paying 10 l. to his Executors or any other person the Devisee hath an Estate in Fee so if one deviseth his Land to give or dispose of or sell at his will this is a Fee-simple 19 H. 8. 96. 7 Ed. 6. Devise 38. And the reason in all these cases is because that by these words the intent of the Devisor doth appear that a Fee shall pass and therefore the defect of words shall not defeat his intent And as the intent is sufficient without apt words to make an Estate so is it also to describe the person who shall take the Devise although he be not formally named according to the precise rule in Grants as in 21 R. 2. Devise 17. where one devised Land to one for life the remainder to another for life the remainder to the Church of St. Andrews in Holborn and it was adjudged that after the death of the Devisees for life the Parson of the Church shall have the Land for in as much as the Church was not capable it shall be taken that the intent of the Devisor was that the Parson who is as it were the Father of the Church and so the Head of it should have the Estate And in the 13 H. 7. 17. In every Devise the intent of the Devisor shall be taken for if a man deviseth all his goods to his Wife and that after his decease his Son and Heir shall have his House although that no Devise of the House be made to the Wife by express words but by implication because the Heir is not to have the House during the Wifes life yet because the intent of the Devisor was that the Son should not have it during the life of his Wife she shall have the House for her life To which all agreed Then in our case 1. The Devisor willeth that a Chaplain shall celebrate for his Soul and that he shall have eight Marks out of his Tenements yearly for his stipend but if he had stayed there the Devise should have been voyd for the Chaplain is not such a person as may take these eight Marks as a Rent and therefore he goes further and first he limits what service the Preist shall do and this he appoints to be done by the disposition of the Parson 2. He doth dispose of the residue of the profits of the Tenement for such a time viz. until R. shall be 24 years of age and be a Priest and doth devise that he shall be preferred to the Chantery before any other if he will accept it and if not that he shall have nothing 3. He makes provision for the perpetual continuance of the Chaplain in these words scil That the Parson and four of the best of the Parishioners shall present and finde a Chaplain to perform the said Chantery for ever de tenementis meis superius non legat which is the said Tenement out of which the said eight Marks are limited to be payd 4. He doth inflict a penalty upon the Parson if the Chantery should be voyd scil That the other Land devised by him to the Parson shall go to the Wardens of L. Bridg for the reparation thereof 5. He makes a perpetual disposition for the residue of the profits of the Tenement viz. That they shall be put into a Chest under the custody of the Parson and four of the Parishioners to buy ornaments and Books for the Church And these parts of the Will being well considered as I conceive it will be clear that the intent of the Devisor was that the Parson should have this Tenement for here the main scope of his Will is that a Chaplain shall be maintained perpetually and that he shall have eight Marks stipend out of that Tenement and that it shall be provided and found by the Parson and four of the Parishioners and that the residue of the profits shall be bestowed by them to buy ornaments and Books for the Church so that a perpetual charge is imposed upon the Parson scil to finde the Priest and to buy ornaments c. and this charge is to be defrayed with the profits of the Tenement and that can be done by none but by him that shall be owner of the Tenement and therefore it follows that the Parson shall have the Tenement And that such implication in a Will is sufficient to make an Estate is proved by the 15 H. 7. 126. If one devises his Land to be sold for payment of his Debts the Executor shall sell the Land for because the charge to pay Debts lies upon the Executors his intent shall be taken to have them sell the Land and 22 and 23 Elizab. Dyer 171. A man seised in Fee of divers Mannors doth devise them to his Sister in Fee except my Mannor of D. which I do appoint to pay my Debts and makes two Executors and dyes and one Executor dyes and the other sells thâ— Mannor and adjudged good for so his intent shall be taken and not to relinquish it to his Sister and 19 H. 6. 24 and 25. and 1 Edw. 6. Devise 36. If one devise that his Executor shall sell his Land this is no devise of the Land to them but an authority for they may perform the Devisor to sell the Land although they have no Estate therein and the Vendee shall be in by the Devisor but if one devise that his Executors shall grant a Rent-charge out of his Land or that they shall give the Land in Fee or in Tayl to I. S. this is an implyed Devise to them for otherwise they cannot perform the intent of the Devisor Trin. 9 Eliz. 516. and so in the 40 Assis 26. One did devise his Land in L. to A. and his Heirs to finde twelve Marks for two Chaplains and grants that the Parson and the Parish may distrein for this if it be behinde and there it is debated whether the King shall have the twelve Marks or not and it is agreed there that the Chaplains have no Estate in it because they are removable at the will of A. but because the Distress is given to the Parson who is perpetual it was adjudged that the King shall have the twelve Marks whereupon I do observe that by this Distress limited to the Parson and the Parishioners the twelve Marks were vested as a Rent in the Parson and so made it a Mortmain Object But it may be objected That the last clause in the Will for the disposing of the residue of the profits does go onely to the Land devised to Wardens of the Bridg. Answer But this
a Lease for four years the Lessee entred and the Lessor did grant the Land habendum from Midsomer next for life the Lesses after Midsomer did attorn and adjudged that the Grant was void and in Barkwicks Case 5 Rep. the reason thereof is given because that if the Grant should be good the Grantor should have a particular Estate scil during the first day of the date or in the mean time untill the Grant did begin to take effect without any Donor or Lessor which is against the Rules of Law And although this Grant of the Reversion be but for years yet is it all one for the diversity is between a Lease for years made Tenant in Fee or for life to commence in future and a grant of a Reversion for in the first Case it is but a future Charge upon the Land so that the Lessor hath his former Estate untill the Lease doth begin and the Lessee hath no Term but only interesse termin and therefore Hil. 38. Eliz in the Common Pleas between Row and White it was agreed that if the Lessor be disseised before the Lease begins the Lessee after the day of the Commencement may grant the term otherwise where a Lessee for yeares in possession is outed by an estranger for there his Term is turned into a Right but in the first Case he hath not any Term in esse and therefore it cannot be turned into a Right nor any wrong done thereunto And for direct Authorities in this Case 29 Eliz. in the Common Pleas the Countesse of Kents Case Where one having a Reversion in Fee does grant this Habendum after the death of I. S. for years and it was adjudged a void Grant And Trin. 39 Eliz. Johnson and Somerset in the Common Pleas Lessee for life grants the Reversion Habendum a die dat for ten years and adjudged a void Grant And in the Comment 155. by Brown If one having a Reversion does grant it habendum after a day to come for years this is a void Grant for if it may be granted from a day to come the Grantor shall have a particular Estate in the mean time by his own making which cannot be that one may be Lessor to himself or diminish his own Estate and there it is taken for a Rule that when there is a Rent in Esse or a Reversion c. a man cannot make this to be in esse for a time and to cease for another time or to grant it to another after the death of any or from a day to come relinquishing to himself an Estate in the mean time And in the Comment 197. b. Adams against Wortesbey agreed there that a Reversion cannot passe as a Reversion according to the common understanding thereof from a day to come But Haughton conceived that this Case being a bargain and sale whereby the use doth passe first this may well passe from a day to come Quod nullus dedixit Thirdly It is not averred that the twenty acres in which the Distresse was taken was not part of the Closes excepted so that it may be part of them and then no Distresse for the Rent can be taken there And although it may be gathered by some words in the Bar to the Avowry that the place where c. was parcell of the Land devised to Wiseman yet this shall not help the Conusans as in Cokes 7. Rep. fol. 24 25. where one having Land in Fee and another Land for years did grant a Rent for life out of both the Grantee distrained for the Rent and avowed that the Rent was granted out of the Lease land amongst other lands whereas he ought to have alledged the Rent to be granted out of the Land in Fee only and although the Plaintiff in his Bar to the Avowry hath shewed the truth of the Case yet this will not make the Avowry which wants substance to be good Judgment And all the Court did agree the Avowry to be naught for this exception Wherefore Iudgment was given for the Plaintiff in the Replevin Mich. 14 Jac. Webb and Jucks Case against Worfeild Rot. 266. IN a Writ of Error to reverse a Iudgment given in the Common Pleas for the now Defendant against the now Plaintiffs In which the Plaintiff did declare that the Defendants the fourteenth of Febr. 9 Jac. at Ponick in a place called Brancefords Court did take an Oxe from the Plaintiff ad damnum forty pounds The Defendants did acknowledge the taking of the said Oxe as Bayliffs to Elizabeth Ligon Widow for that the place where c. contained two acres of Land and that one Anne Ligon was seised in Fee of the Scite of the Mannor of Bransford and of seven Messuages three Gardens and a hundred and fifty acres of Land forty two of Meadow sixty six of Pasture five of Wood and seventy of Furzes and Heath in Ponick aforesaid Bransford Leigh Newland and Wick whereof the place where c. is parcell That the sixth of September the twenty fourth of H 8. Anne Ligon did devise this to John Parsons and Anne his Daughter for seventy years after the death of Elizabeth his wife if they or either of them shall so long live rendring five pounds four shillings eight pence Rent at the Annunciation Christmas Midsummer and Michaelmas That the eleventh of August 1554. Elizabeth Parsons died whereupon John and Anne Parsons entred And Ligon dies whereby the Reversion descended to Sir Rich. Ligon her Son and Heir and Sir Richard died wherby the same descended to William Ligon his Son and Heir who died also whereby the same descended to Richard Ligon his Son and Heir who died also and the same descended to Sir Richard Ligon his Son and heire who Hil. 33 Eliz. did levy a Fine Sur Conusans de droit come ceo c. to the use of himself for life the Remainder to the said Elizabeth Ligon then his Wife for life the Remainder to the Heirs of the body of Sir William the Remainder to the right Heires of Sir William 10 May 4. Jac. John Parsons died Pasch 6 Jac. Sir William Ligon and Elizabeth his wife did levy a Fine to the Plaintiff to the use of the Plaintiff for the life of Sir William the Remainder to the said Elizabeth for her life the Remainder to the Plaintiff in Fee Sir William dies whereby the Reversion does remain to Elizabeth his Wife And for seventy eight pounds six pence of the said Rent for three quarters of a year ending at Christmas 9 Jacob. they did acknowledge c. and they averred the lives of the said Elizabeth Ligon and the said Anne Parsons Bar. The Plaintiff said that the Fine levied by Sir William and Elizabeth his wife was to the use of the Plaintiff and his Heirs and justified the putting in of the said Oxe by the license of the said Anne Parsons Absque hoc that the said Fine was to the use of the Plaintiff for the life of
inter vicinos suos apud Edmunton praedict which is not sufficient for that it ought to be alledged in fact that he made or caused lites discordia and not that he was like to make them And if an Indictment be insufficient although that the party does plead Not guilty and be acquitted yet he shall not have a Conspiracy or an Action on the Case for by such Indictment he cannot be in any danger and 9 Ed. 4. 12. If one be indicted on an insufficient Indictment and he does not take advantage thereof but pleads not guilty and is acquitted and brings a Writ of Conspiracy the Defendants may show how that the Indictment was insufficient so that the Plaintiff was not duly arraigned and they shall have advantage thereof Vide Cook 4 Rep. Vaux Case And 34 H. 6. 9. If the party indicted be misnamed and be acquitted he shall not have a Conspiracy because the Indictment was voyd as to him And Dyer 286. If the offence in the Indictment be pardoned by a general pardon and yet the party pleads Not guilty and is acquitted he shall not have a Conspiracy because he was in no jeopardy And this Case being moved by Chilborn Serjeant and George Crook for the Plaintiff the fourth of February 15 Jacob. I shewed to the Court that the Plea was good for the reasons and authorities afore cited and also that the Indictment was insufficient for the Reasons afore shewed Judgment And therefore Iudgment was given Quod querens nihil caperet per Billam Michaelmas 15 Jacob. Thomas Muschamp Knight and Margaret his wife and Thomas Lock Esq and Jane his wife against Colan Bluet Michael Sampson Edward Jenny and Elizabeth his wife In the Exchequer IN an Action of Trespass for that the Defendants the first of January 14 Jacob. by force and arms the Close of the Plaintiff at Tottenham did break and enter possessionem tenementorum praedict a praedicto primo Januarii usque diem billae scil 20 Maii 15 Jacob. habuerunt tenuerunt custodierunt ad damnum 40 l. Quo minus c. The Defendants pleaded Not guilty The Iury found that before the Trespass Sir William Lock Knight was seised in Fee of the said Tenements and held them in Socage and that he and Matthew Lock his son were Ioynt-tenants in Fee of other Copyhold Lands in Tottenham and that he had issue Thomas Matthew John Henry and Michael That the 15 Martii 1549. Sir William made his Will in writing and thereby did devise these Tenements to Henry and Michael in these words I give to Thomas Matthew Iohn Henry and Michael my five Sons my dwelling House in Bow-lane and my House at the Lock in Cheap and my House at the Bell in Cheap to the intent that they or some of them may dwell in them and keep the Retaining Shop still in my name to continue there Item I give to Iohn Lock my House that Paris dwelleth in I give to Henry Lock my House that Iohn Edwards dwelleth in I give to Michael Lock the three Houses wherein W. B. and P. dwell I give to Henry Lock the House that Kew dwelleth in I give to Matthew Lock the two Houses wherein S. and T. dwell I give to Henry and Michael Lock all my Houses in the Poultry Bucklersbury and St. Iohns and a House that Goodman dwelleth in I give to Matthew Lock all my Houses at Dowgate and in the Vintry I give to Thomas Lock all my Houses in Cheap lying in St. Peters Parish I give to Thomas Lock my Land at Martin and Wimbleton that I may give him except one Farm called Martin Holts which I give to Henry and Michael Lock I give to all my five Sons the half of the Leg Entry which I purchased of late And as touching my Lands at Tottenham my Son Matthew is joyned Purchaser with me of the most and the rest of all my Houses and Land there which is Freehold I give to Henry and Michael Lock upon this condition that if they shall sell it to any man but to Matthew Lock my Son then he to enter upon it as of my Gift by this my Will Item All the Houses and Lands that I have given joyntly betwixt my Sons is That they shall bear part and part-like going out of all my Houses and Lands upon my Blessing as well Freehold as Copyhold to pay to my Wife Elizabeth for Dowry 40 l. every year during her life out of all my Lands and Houses as well Copyhold as Freehold for which Sum I am bound as appeareth by certain Indentures c. and which of my Sons refuseth to bear his part of the aforesaid Sum of 40 l. I will that he or they shall enjoy no part of my Bequest by me to them given in this my Will but my Gift given to him oâ— them to go to the rest of my well-willing Sons which be content to fulfil this my Will and Bond that I am bound in to be performed Sir William Lock dyed seised and Elizabeth his Wife did survive him Henry and Michael did enter into the said Tenements and payd their parts of the said 40 l. to the said Elizabeth Henry dyes and Michael payd his part of the said 40 l. Thomas Lock was Son and Heir of the said Sir William and had issue Matthew Lock his Son and Heir and dyes Matthew the Son of Thomas deviseth the said Tenements to the Plaintiffs habendum from the death of the said Michael for seven years The 28 of July 15 Jacob. Michael Lock dyed seised of the said Tenements And the said Colan Bluet Michael Sampson and Elizabeth Jenny the Defendants are the next Heirs of the said Michael and that the said Bluet Sampson and Jenny in the right of the said Elizabeth his Wife after the death of the said Michael Lock did enter upon whom the Plaintiffs did enter upon whom the Defendants re-entred and made the Trespass But whether the Entry of the Plaintiffs was legal or not the Iury did doubt and if legal they found for the Plaintiff if not for the Defendants And I conceive that Iudgment ought to be given for the Plaintiffs for I conceive that Henry and Michael Loâ—k had but an Estate for their lives by this Devise which by their deaths is ended so that nothing can descend to the Heirs of Michael being the survivor and by consequence the Lease made to the Plaintiffs by Matthew Lock the Heir of the Devisor is good and the Entry of the Plaintiffs is lawful The Case And the Case upon the whole matter I conceive to be this Sir William Lock being seised of certain Land in Fee and being Ioynt-tenant with Matthew Lock one of his Sons of Copyhold Land within the same Town had issue Henry Michael Thomas and two other Sons and by his Will did devise to his Sons divers Lands severally And after says Touching my Lands at T. my Son Matthew is joyned Purchaser with me already
of the most and the rest of all my Land there which is Freehold I give to Henry and Michael upon condition that if they sell it to any but to Matthew my Son then he to enter as of my Gift and then he declares That of all these Bequests his Sons shall bear part and part-like out of all his Copyhold Lands and Free to pay to Elizabeth his wife for her Dowry 40 l. a year during her life and that Son which shall refuse to bear his part shall not enjoy any part of his Bequest but it shall be to the residue c. Sir William Lock dyes Henry and Michael enter and pay their parts of the 40 l. Henry dyes and then Michael dyes And now the Question is Whether the Defendants being Heirs of Michael shall have the Land or the Plaintiffs who claim under the Devisor And for the better arguing of this Case I will first observe that here is not any express words of limitation of an Estate to make any greater Estate to pass then an Estate for life and then I will shew that here are no words in any part of this Will to signifie any certain intention in the Devisor to make an Estate of Inheritance to pass by this Devise And as to the first the Devise is onely to his two sons viz. The rest of all my Houses and Lands there which is Freehold I give to Henry and Michael Lock and these are all the words of limitation of the Estate and these without question in a Deed or Feoffment will not make a greater Estate then for life And so is Littleton 1. If one purchase Land in perpetuum or to him and his Assigns in perpetuum this is but an Estate for life because it wants these words his Heirs which words make the Inheritance in all Feoffments and Grants and this is an infallible Rule in Grants unless it be in some special Cases as in Frankmarriage or Frankalmoine which being words of art do pass an Inheritance with these words Heirs And in Cases of Grants no intention of the Grantor although it be apparent in the Grant will make an estate of Inheritance to pass as in 19 H. 6. 73. 20 H. 6. 36. A Gift to B. and C. haeredibus with Warranty to them and their Heirs is no Fee-simple because the words of limitation are incertain to whom haeredibus shall be referred and so all one as if it were omitted and then the clause of Warranty although it does declare a certain intent to give an Estate in Fee will not amend the matter in a Grant And so in the 1 Rep. Shelleys Case if one gives Land to one liberis or eitibus suis or semini suo it is but an Estate for life and not an Estate in Tayl yet there is an apparent intent but that will not suffice in a Grant But I agree that in Case of a Devise although the apt words to make an Estate of Inheritance to pass are omitted yet if the intent of the Devisor does appear by any express matter contained in the Will an Estate of Inheritance shall pass for it is sufficient to pass the Inheritance And so Litt. 133. 6. 19 H. 8. 9. 6. If one deviseth Land to another in perpetuum the Devise by these words shall bar an Estate in Fee so if one devise Land to another to give dispose or sell at his pleasure this is an Estate in Fee-simple 19 H. 8. 9. 6. 7 Edw. 6. B. But yet the Law hath restrained such intent For first it ought to be agreeable to Law and not repugnant to it for although in Scholasticas Case in the Comment it is said that a Will is like to an Act of Parliament yet a Will cannot alter the Law or make a new form of an Estate which is not allowed by the Rules of Law as an Act of Parliament is and so adjudged in the Common Bench Hillar 37 Eliz. between Jermin and Ascot Cooks 1 Rep. 85. in Corbets Case That by a Devise a man cannot give an Estate and determine part thereof by a condition and make the residue to continue And if Land be devised to one in Tayl he cannot determine the Estate as to the Devisee himself and yet preserve the Estate to the issue as was endeavoured in this Case And 28 and 29 H. 8. Dyer 33. If Land be devised to one in Fee and if he does not perform such an Act the Land shall remain to another the remainder is voyd for no such remainder can be limited by the Rules of Law This intent ought to be exprest in the Will and collected out of the words of the Will and cannot be averred or supplyed by any forreign matter as in Matthew Mannings Case 8 Rep. 95. 6. Always the intention of the Devisor expressed in his Will is the best Expositor Director and Disposer of his words And Lord Cheyreys Case 5 Rep. 68. Sir Thomas Cheyrey devised certain Land to Henry his Son and the Heirs males of his body the remainder to Thomas Cheyrey of Woodley and the Heirs males of his body upon condition That he or they or any of them shall not alien and the Question was whether there could be an averment that the intent of the Devisor was to restrain H. and his Heirs from aliening and resolved that no such averment could be received for construction of Wills ought to be collected out of the words of the Will The intent of the Devisor ought to be manifest and certain and not dubious as in a Devise of Land to one for ever here the intent is to give an Estate in Fee-simple for no other Estate can continue for ever so if the devise be to one and his Heirs and if he dyes without Heir that it shall remain to another his intent â—y tâ—ars that the word His in the first Devise shall be taken for the Heirs of his body for the Law will sooner presume him to be dead without issue then to be dead without Heir And now to examine our Case with the Rules of Law There are three clauses in this Will as I conceive upon which the pretences of the Defendants are founded to have an Estate in Fee pass by this Devise to which I shall make answer severally The precedent clause to the Devise And as touching my Lands at T. my Son Matthew is joyned Purchaser with me of the most and the rest of all my Houses and Lands there which is Freehold I give to Henry and Michael Lock c. And as to this I conceive that here is no colour to enlarge the Estate to the Devisees but this clause is onely a description of Land which he does not intend to devise and which in truth he cannot devise because that Matthew ought to have it by survivor and is principally named therein because of preventing any question between Matthew and the two Devisees after his death for otherwise they might perhaps have pretended that all
the Land in T. should pass to them especially because they were purchased as it might very well be presumed with the mony of the Devisor and he was reputed owner thereof but these words make no Declaration as to the Estate which he intends to demise to Henry and Michael The Condition or limitation annexed to the Devise in these words Upon condition that if they sell it to any man but to Matthew Lock my Son then he to enter upon it as of my gift by this my Will and I conceive that this clause does not shew any intent of the Devisor to enlarge the Estate first limited to Henry and Michael or to give an Estate in Fee to them for it is not if they alien in Fee or in Tail or if they or their Heirs do alien which words or any words to such intent would have declared a manifest intention that the Devisees should have a Fee-simple but here an alienation in general onely is restrained which ought to be taken for a legal alienation and such a one as they may make by reason of the Estate devised to them And that it shall be so intended first it is to be considered that this condition is a restraint annexed to the Estate and is as a Convinct to the Estate and therefore cannot be properly more large then the Estate it self for it is a Rule that every restraint or exception in an Assurance ought to operate upon the Estate or the thing before granted as in the Comment 370. Zouches Case An exception is an exemption of that contained in the general words and if it be not contained in the generality it can be no exception in the specialty and therefore if one doth lease W. acre excepting B. acre the exception is vain This exception of alienation is more proper to be annexed to an Estate for life then in fee for he who makes a Lease for life or years may restrain the Lessee by condition that he shall not alien but the Feoffor cannot restrain the Feoffe from aliening as in Littleton 84. If a Feoffment be made on condition that the Feoffee shall not alien the Condition is voyd for the Feoffee hath power to alien to whom he will for if that condition were good that would take from him the power which the Law gives him which would be against Reason but if the Condition be that he shall not alien to such a person naming the person or any of his Heirs or his issues this is a good Condition because it take not away the power to alien in Fee And Vernons Case 4 Rep. foâ— 3. An Estate in Fee conveyed by the Husband or his Ancestor to a woman for her Ioynture is not a Ioynture within the Statute of 11 H. 7. which restrains alienations made by women for to restrain such an Estate as cannot be aliened is repugnant and against the Rule of Law and therefore not within the intention of the Act. But it hath been objected on the other side 1. Object That this Condition is not voyd because it doth not restrain all their power but leaves them to the liberty to alien to Matthew 2. If the condition be voyd yet it is sufficient to declare the intent of the Devisor that a Fee should pass And as to the first I conceive that the condition is voyd Answer for to restrain generally and that he shall not alien to any but to J. S. is all one for then the Feoffor may restrain him from aliening to any except to himself or such other person by name whom he may well know cannot nor never will purchase the Land So that this condition shall take away all his power and shall make a perpetuity in the Feoffee which is quite contrary to Law neither is there any authority to warrant this restraint for Littleton leaves the Feoffee at liberty to alien to any except to such a one in particular And as to the second I do agree That if the condition to restrain the alienation had been expresly to restrain the Devisees and their Heirs or to have restrained from aliening in Fee or in Tayl or for anothers life although the condition had been voyd yet had it been sufficient to have shewn the intent of the Devisor and to have caused an Estate in Fee to have passed And therefore I do agree to the case in the 9 Rep. fol. 127. where one devised to his Wife for life and after her decease his Son William to have it and if William shall have issue male that he shall have it and if he have not issue male his Son S. shall have it and if he hath issue male his Son shall have it with like Remainders to his other Sons and my Will is If any of my Sons or their Heirs males issues of their bodies alien then the next Heir to enter c. And it was resolved That the Son should have an Estate in Tayl by this Devise First by reason of these words If he have no issue male which is as much as to say iâ— he dye without issue male Secondly because he and his Heirs males are restrained to alien for every restraint especially in Wills does imply that the party in case he were not restrained had power of the thing restrained And so Bakers Case Hillary 42 Eliz. Rot. 143. A Devise to the Husband and Wife the Remainder to their two Sons upon condition that if they or their Heirs go about to alien c. is a Fee-simple also for the Heirs being restrained to alien does shew fully that the Heir shall have the Lâ—nd for otherwise he cannot alien it But here in our condition there are not any words to shew the intent of the Devisor that an Estate in Fee shall pass but the Devisees are restrained to alien generally which as already I have shewed is more agreeable to an Estate for life then an Estate in Fee-simple at the least he does not shew any certain intent that the Devisees shall have an Estate in Fee but that remains dubious and therefore the safe way is to take the same according to the Rules of Law The third clause to explain the intent of the Devisor in this case is the clause of the Charge imposed upon the Land by the Devisor viz. Item All the Lands I have given joyntly betwixt my Sons is that they shall bear part and part-like going out of all my Lands as well Free as Copyhold to pay to my Wife Elizabeth for Dowry 40 l. every year during her life out of all my Lands c. And I conceive that this clause makes nothing as to the enlargement of the Estate and yet I do agree 29 H. 8. Testament 18. 4 Ed. 6. Estates 78. That if one devise Land to another paying 20 l. or another sum in gross this is a good Devise in Fee but it is otherwise when the Land is devised to one paying an annual Rent or bearing an annual charge with the