The Orphans Legacy, Part 3 · Chapter 7
CHAP. VII. Of Lands Deviſeable by Will.
1. Whether Lands are Deviſeable, what Lands, and how much thereof.
2. What things may be Bequeathed under a Deviſe of Lands, and what not.
3. What Perſons incapable of Deviſing Lands.
4. Who may be Deviſees, or what Perſons may take by a Deviſe of Lands, and what not.
5. What kind of Teſtament ſufficient for a Deviſe of Land, and what not.
1, LAnds, Tenements, and Hereditaments held in Gavelkind are Cuſtomarily Deviſable by Will. aTerms of Law. Verb. Gavelkind. & Dyer. fo. 153. verb. Deviſe.So likewiſe are Lands held in Burgage-tenure, bFitz. N. B. ex gravi querela. & Dr. & Stud. l. 1, cap. 7, & 10.whereof the Will may be only Nuncupative and without Writing; and into which the Deviſee after the Teſtators death may enter without any Livery of Seyſin thereof made unto him: cLittle. tit. Burgage.yet this ſhall not prevent Survivorſhip in caſe of Joynt-Tenancy in ſuch Tenure dPrincip. Grounds. fo. 20.And though by the Common Law of this Realm, Lands, Tenements, and Hereditaments are not Deviſable, yet now by Statute they are (if held in Socage) all Deviſable, and Two parts of Three though held in Knight-ſervice. e27, H. 8, cap. 10. It is not Neceſſary that the Will wherein Burgage Land is Deviſed ſhould be in Writing. But the Cuſtom of the Place as to the Probat and Enrollment of ſuch Wills ought to be obſerved. F. N. B. Ex gravi querela. & Broo. tit. Deviſe 22, 43, 51.But then the Will muſt be in Scriptis, not Nuncupative. Now though Land be thus Deviſeable partly by Cuſtom, partly by Statute, yet there are certain perſons incapable of Deviſing Lands, and there are certain Lands incapable of being Deviſed, as appears by what follows in this Chapter.
2. As Lands are now Deviſable, ſo there are certain Things in ſome certain caſes that paſs by way of Bequeſt by and under a Deviſe of Lands: As thus; A Man Seized of Land Deviſable Buildeth a Houſe thereupon, the Houſe is Deviſable; the Law is the ſame as to a Rent-charge de novo created. fDyer in Stat. of Wills, 32, & 34, H. 8. An Eſtate for years might be Deviſed at the Common Law by him who was Poſſeſs'd thereof; but an Eſtate in Fee might not. Alſo a Guardian in Knight-Service might Deviſe the Wardſhip both of Body and Land. 50; Aſſ 1, Admit. Roll. Abridg. tit. Deviſe. lit. B.Alſo a Man Diſſeiſee of Land Deviſeable, Deviſeth to the Diſſeiſor in Fee, in Recompence of a Releaſe which the Diſſeiſor made unto him, This is a good Deviſe. Alſo where a Man hath Land in Right of his Wife, and he granteth parcel of it to another, and after Deviſeth the Reſidue to another, This alſo is good. Likewiſe where a Man hath a Seigniory to him deſcended of the part of his Mother, and after the Tenancy deſcendeth unto him of the part of his Father, both being Deviſable, and he not having any Iſſue: In this caſe he may make Deviſes to ſeveral perſons, that is, the Seigniory to one, and the Tenancy to another. gDyer. ibid. cap. 4.The Lord Dyer alſo ſaith, That a Termor of Land which is not Deviſeable, erecting a Furnace, and fixing it in the midſt of a Houſe in the ſaid Land, may Deviſe this Furnace. Alſo that where a Man is Seized of Land Deviſeable, and Deviſeth totum ſtatum ſuum to one and his Heirs, This ſhall be a good Deviſe for the Land. Likewiſe where a Man deviſeth primam veſturam ſeu tonſuram prati, which is Deviſeable, it is good, and the Law is the ſame as to Trees growing, and to grow for ever. Alſo Tenant in Fee-ſimple or in Fee-taile may Deviſe the Corn, though the Land be not Deviſeable, but as to Trees in that caſe the Law is otherwiſe. Alſo a Man Seized of a Mill, may Deviſe the Runner Stone, but not the under Stone, unleſs the Mill it ſelf be Deviſed. Likewiſe a Man Seized of a Common, granteth a Rent out of the Land, although that the Land be Deviſeable, yet that Grant is void, and by conſequence a Deviſe thereof. Nor is an Advowſon in groſs Deviſeable, nor any other Thing which lyeth not in Tenure; but a Meſnalty or Seigniory is Deviſeable, becauſe they lye in Tenure. And if the Husband Deviſe the Corn upon his Wives Land, and dyes, This is good, whether the Corn were Sowen before the Marriage or after.hIbid.
3. The perſons not qualified to Deviſe Lands by Will are ſuch as Theſe, viz. A Biſhop may not Deviſe the Land of his Biſhoprick; but of the Arrearages of the Rent of the Biſhoprick he may make a Deviſe by Teſtament. The Law is the ſame as to a Deane, or Parſon of a Church. Alſo the Maſter of an Hoſpital cannot Deviſe the Lands of the Hoſpital, nor the Arrearages of Rent iſſuing out of the ſame. In a word, Spiritual Perſons, Arch-Biſhops, Biſhops, Deanes, Arch-Deacons, Prebends, Parſons, Vicars, or any Member of a Corporation, may not Deviſe the Land or Goods which they have in right of their Churches or Corporations. iPerk. Sect. 496.For the Head or any of the Members of a Corporation cannot make a Teſtament or a Deviſe of ſuch Lands or goods they have in Common, becauſe they are to go in Succeſſion. Alſo an Infant of the Age of 16. Years Seized of Lands Deviſeable, who may Alien it by the Cuſtom, yet he cannot make a Teſtament or a Deviſe thereof; or if an Infant maketh a Will of his Land within Age, and dyeth after that he cometh to full Age, making no Revocation, This is not a good Will. kDyer. ubi ſupra. cap. 1. §. 7.And yet although an Infant until he be of the Age of 21. Years can make no Deviſe of his Lands; lSt. 32. & 34. H. 8.Yet it is held that by ſpecial Cuſtom in ſome places where Land is Deviſeable by Cuſtom they may Deviſe it ſooner. Alſo a Woman under Covert cannot make a Deviſe of her Land with or without her Husbands conſent, neither to her Husband nor to any other. mStat. ibid. & Co. 4. 51. & Broo. tit. Teſt. 13. &. Co. ſup. Lit. 112. 4. 61. & Broo. Deviſe 32.Yet of the Goods ſhe hath as Executrix to another ſhe may make an Executor without his conſent; but of them ſhe can make no Deviſe either with or without his conſent, becauſe they are not Deviſeable; and if ſhe do Deviſe them the Deviſe is void. nSk. Epit. verb. Teſtam. fo. 933.Touching ſuch as are Born both Deaf and Dumb: The Lord Dyer ſays; They may make a Will of their Land by Signs. oDyer. in Stat. 32. & 34. H. 8.Though others Affirm, That a Man that is both Deaf and Dumb, and that is ſo by Nature, cannot make a Teſtament; but that a Man that is ſo only by Accident, may by Writing or Signs; ſo alſo may a Man that is only Deaf or Dumb, whether by Nature or Accident. Alſo an Alien Born and not Denizon'd cannot make a Teſtament of his Lands; yet if an Alien Purchaſeth Land in Fee, and maketh a Will, and after the King maketh him a Denizon, after he dyeth, his Will is then good as to his Lands or Goods. pDyer. ibid.Alſo a Traytor Attainted, from the Time of the Treaſon committed can make no Deviſe either of his his Land or Goods; for they are all forfeited to the King; yet a Pardon from the King reſtores him to a capacity of dying Teſtate as to both. Likewiſe a Man Attainted or Convicted of Felony cannot by Teſtament Deviſe either Lands or Goods, for they are alſo forfeited, but if he be only Indicted and die before Attainder, he is then Teſtable as to both; or being Indicted will not Anſwer upon his Arraignment, his ſtanding Mute may poſſibly preſerve him a power of Deviſing his Lands. And although the Teſtament of a Felo de ſe be void as to his Goods and Chattels, yet as to his Lands it is good. q5 & 6. Ed. 6. c. 11, prerog. Reg. Plowd. 258, 259, & 261.So likewiſe although a Perſon Outlawed in a Perſonal Action cannot, ſo long as the Outlawry doth continue in force, make a Teſtament of his Goods and Chattels, yet of his Lands he may; not ſo of Perſons Outlawed for Felony; the Law is the ſame as to a Man Attainted of a Praemunire; It is otherwiſe if a Man be only Excommunicated.rDyer. in St. of Wills.
4. Regularly all Perſons who may be Grantees may be alſo Deviſees. sPerk. 505. 510.Inſomuch that a Deviſe of Lands is good within the Statute of Wills, tDyer. 303, 304. B. R Cur. Mich. 3. Jac.even to ſuch perſons as to whom a Legacy by the Civil Law is void, except in certain caſes; ſuch as Hereticks, Apoſtates, Traytors, Felons, Excommunicates, Out-laws, Baſtards, unlawful Colledges, Libellers, Sodomites, manifect Uſurers, and Recuſants Convict. It is a Rule, That the Deviſee muſt be capable of the thing Deviſed at the Time of the Deviſors death if it be then to take effect in Poſſeſſion; or if it be a Remainder, he muſt be capable of it at the Time when the Remainder ſhall happen, otherwiſe the Deviſe is void; uF. 9. Jac. B. RIf ſo, then a Deviſe to an Infant in the Womb at the Teſtators death ſeems to be void, wNew Terms of Law. tit. Deviſe. But by the Civil Law it is otherwiſe. Paul. de Caſtr. in l. qui filiabus. §. 1. ff. de Legibus.Yet if a Man Deviſe to ſuch an Infant, and he happen to be Born before the Teſtators death, it ſeems that in this caſe the Deviſe is good. Again, A Deviſe made to a perſon altogether uncertain, and not certainly Named or Deſcribed, is altogether void; yet a plain Deſcription of a Perſon (without naming him) is ſufficient, ſo that a Deviſe made to the Dean of Pauls (without naming him) is good. A Man Deviſeth his Land to Elianor the Daughter of I. S. who hath divers Daughters, whereof one is named Hellen, and none Eleanor; This is a good Deviſe to Hellen. xDyer. in. St. 32. H. 8.Likewiſe if a Man hath Two Wives, and he Deviſeth his Land to his latter Wife in Fee, the firſt Wife ſhall have it; or if he hath Two Sons called John, and one of them is a Baſtard born before Marriage, and he makes a Deviſe to his Son John, the Legitimate John ſhall have it and not the Baſtard. yDyer. ibid.The Husband can be no Deviſee as to a Deviſe of Lands from his Wife. There are Three Brothers by the ſame Father and Mother, and the middle Brother Seized of Land Deviſeable, giveth it by his Teſtament Propinquiori fratri ſuo, it ſeems that neither of them ſhall have it. zIbid.Suppoſe a Man who hath a Term, Deviſeth the Land to one and his Heirs the Deviſee dyeth leaving Executors; his Heirs ſhall have the Land, and not his Executors; the Law is otherwiſe in caſe the Entire Term were ſo Deviſed. aIbid.A Deviſe of Land made to the Canons of a certain Cathedral for ever, or Canonicis Eccleſiae D. Pauli Lond. in perpetuum, is a good Deviſe to all the Canons joyntly in Fee, and the Survivor ſhall have the Entierty. If a Man willeth that his Executors ſhall Sell his Land for the Payment of his Debts, and they all die ſave one, who maketh the Sale; in this caſe the Vendee ſhall not have the Land; the Law were otherwiſe if the Land had been Deviſed to the Executors to be Sold. If a Man hath Iſſue a Son, and Land is Deviſed to the Father Habend. ſibi & Hered. de Corpore ſuo Legitime procreand. and after the Deviſee hath Iſſue another Son, the ſecond ſhall have the Land. bIbid.If a Man Deviſeth by the Will, That after the death of his Wife the Land Deviſable ſhall go to I. S. his Wife ſhall have it for her Life by this Deviſe. Or if a Man willeth that after 20. Years after the death of the Deviſor I. S, ſhall have the Land in Fee, the Heir of the Deviſor ſhall have the Land during the Term, and not the Executor.cIbid on the St. of Wills. c. 4. §. 1.
5, A Teſtament Nuncupative is not good for a Deviſe of Land, nor a Teſtament made in Print, if it were never written; yet a Teſtament written, though no Executor be named therein, is good for Lands, but not for Goods. Likewiſe a Teſtament without Sealing or Subſcribing is good enough for a Deviſe of Land; dPerk. 476, 477. March. Rep. f. 206: pl, 245.ſo as it be put into Writing in the Teſtators Life Time, although it be never proved before the Ordinary. eDyer. ubi, ſupra.But if in a Teſtament there are theſe words, viz. Haec eſt voluntas & intentio mea A. B. &c. This is not good for the diſpoſition or deviſe of Land without ſaying ultima voluntas, fIbid.according to the Lord Dyers Opinion, who in his Learned Readings on the Stat. of Wills, 32. and 38. H. 8. if he were indeed the Author of that Impreſſion, 1648. doth further Affirm, That if a Man makes a Teſtament of his Land in one County, and long after makes a Teſtament of his Land in another County, Theſe are good. Alſo that if Two Men ſeverally Seized of Lands make a Joynt-Teſtament of their Land, This ſhall be good, and ſeveral Teſtaments. Alſo that where a man is in making his Teſtament, and having Deviſed a parcel of his Land, dies before the perfection and finiſhing thereof, This ſhall be good for ſo much as is Deviſed. That a Man willing by his Teſtament, that his Lands ſhall be Sold to pay his Debts, not declaring by whom; This is a good Will, and ſhall be performed by his Executors or Adminiſtrators. That a Man making a Will of Land, in which he hath nothing, and after Purchaſeth the ſame Land, and dyeth, This is not good. That a Woman Covert making a Will of her Land, and after taking a Husband, who hath Iſſue, the Husband dyeth, the Wife dyeth, this is not a good Will. That if a Man make a Will of his Land, and after alien this Land in Fee, and after repurchaſeth the ſame Land, This is not a good Will. That a Man making a Will, and after making a new Will, and after on his Death-bed ſaith, That the firſt Will ſhall be his laſt Will, This is good. Alſo that where a Man giveth Land by his Will in Fee, and after by another Will giveth the ſame Land to another but for Term of Life; This is a Revocation of the Entire firſt Will. gDyer. on the Stat. of Wills. cap. 2.Alſo if a Man Deviſe another Mans Land, This Deviſe is void; but if he after the Deviſe made, Purchaſe this Land, then the Deviſe is good.hPlow. 144. Fitz. Deviſe. 7.