The Orphans Legacy, Part 3 · Chapter 8
CHAP VIII. Certain Caſes touching Deviſes of Land, Void or not.
1. Lands What, and how Deviſable.
2. Certain void Deviſes of Land.
3. To what Perſons and in what Caſes Deviſes of Land may be good or not.
4. The ſame Lands twice Deviſed to ſeveral Perſons in the ſame Will, how both Deviſes may ſtand good.
5. The Profits of Land Deviſed do paſs the Land it ſelf; in which Caſe Teſtaments more favourably conſtrued then Deeds.
6. How Lands Purchaſed after a Deviſe of Lands made, may paſs by that Deviſe or not.
7. Several Caſes in Law referring to this Subject.
1. ALthough Lands made Deviſable by Statute cannot be Deviſed otherwiſe then by Will in Writing, yet Lands and Tenements Deviſable by Cuſtom may be Deviſed by a Nuncupative Will without any Writing. But Copy-hold Land is not Deviſable; nor can Tenants in Tail or pur auter vie, or Joynt-Tenants Deviſe their Eeſtate in the Land they ſo hold, no more then they could before the making of the ſaid Statute, which doth not impower them thereunto. But ſuch as are Seized of Land in Common or Coparcenary, may deviſe the ſame. aSt. 32. H. 8. c. 1. & St. 34. H. 8. c. 5▪ & Coke ſup. Lic. III. Perk. Sect. 544. Lit. Sect. 287. Dyer. 210. Old N. B. 89 Perk. Sect: 500. 539, 540. 446. 497, 498. A man ſeized of Land Deviſeable, Deviſeth totum ſta…um ſuum to one and his Heirs; This is good for the Land. Dyers Read. on Stat. of Wills. Sect. 4. §. 6.And if there be Two Joynt-Tenants for Life, and the Fee-ſimple to one of them, he that hath the Fee-ſimple may Deviſe his Fee-ſimple after the death of the other Joynt-Tenant for Life. And in ſuch places where Lands were Deviſable by Cuſtom before the making of the Stat. of 32. H. 8. a Deviſe of Lands may be good againſt the Heir for the whole, but by the Stat. impowering to diſpoſe of Lands by Will, a Deviſe of Land is not good againſt the Heir ſave only for Two parts in Three.
2. He that Deviſeth Land ought to have a Right to, and poſſeſſion of the Land he Deviſeth, otherwiſe the Deviſe is not good; and therefore if a Diſſeiſor Deviſe the Land he hath gotten by Diſſeizin, this Deviſe as to the Diſſeizee is void. bPlow. 485.Likewiſe if a Man be Diſſeized of his Land, ſo that he hath nothing but a Right thereof left, and then he Deviſe this Right or the Land, this Deviſe is alſo void. So if one Contract for Land, and pay his Money for the ſame, but hath no Aſſurance made him of the Land, and he Deviſe the ſame to another, ſuch Deviſe cannot be good; yet poſſibly he that received the Money may be compellable in a Court of Equity to Aſſure and Settle the Land according to the Deviſe. cNevillsCaſe.Likewiſe if one Deviſe another Mans Land, ſuch Deviſe is void; but if after ſuch Deviſe made he Purchaſe this Land, and die without Revocation, now is that Deviſe good. dPlow. 144. & Fitz. Deviſe. 7.Alſo if A. Bargain and Sell Land to B. on Condition of Re-entry if he pay to B. Twenty Pounds; and B. Covenants that he will not take the Profits until default of Payment; and A. make a Leaſe of Seven Years thereof to another, and after break the Condition; in this caſe B. may Deviſe the Land, and the Deviſe will be good.eAdjudged. Powſcley and Blakemans Caſe, A man Deviſeth his Land to Elianor, the Daughter of I. S. and he hath divers Daughters, whereof one is named Hellen, and none Elianor, This is a good Deviſe to Hellen. Vid. Dyer's Read. Stat. on Wills. Sect. 3. §. 15.
3. If one Deviſe his Land to the Children of A. B. by this Deviſe the Children that A. B. hath at the Time of the Deviſe made, or at moſt at the Time of the Teſtators death, and not ſuch as ſhall be Born after his death, ſhall take by that Deviſe and have the Land. Alſo, if a Deviſe of Lands or Goods be made to the Heirs of A. B. (he then, and at the Time of the Teſtators death being alive) this Deviſe is void; becauſe the perſon to whom a Deviſe is made muſt be capable of the Deviſe by that Name by which the Deviſe is made to him, when there is no other deſcription whereby to infer the Teſtators meaning; yet if Lands or Goods be Deviſed to the Executors of A. B. and he die before the Teſtator, and make Executors, This is a good Deviſe to ſuch Executors; or if a Man make a Feofment of his Land to the uſe of his laſt Will, and then Deviſe that his Feoffees ſhall be Seized to the uſe of B. C. This is a good Deviſe of the Land per intentionem. fPaſch. 9. Jac. New mans Caſe.Alſo a Deviſe of Land to one, paying ſo much a Year to another, with a Clauſe of Diſtreſs upon failure of Payment, is a good Deviſe; but a Warranty cannot be made by a a Will. gCo. ſup. Lit. 386.Yet if Land be Deviſed for Life, or in Tail, Reſerving a Rent, in this caſe the Deviſors Heirs ſhall be bound to the Warranty in Law, and the Deviſee ſhall take advantage thereof. Alſo a Deviſe of Land may be made to one, and a Deviſe of a Rent out of the ſame Land to another in the ſame Will, and both ſtand good. Likewiſe Land may be Deviſed to one in Fee, and after the ſame Land in the ſame Will may be Deviſed to another for Life or for Years, and both theſe Deviſes may be good. and may well conſiſt together.hPlow. 523. 540. & Dyer 357. & Co. 8. 24. 83.
4. In like manner if a Man in the former part of his Will Deviſe all his Lands by general words to one in Fee, and in the latter part of his Will Deviſe ſome ſpecial part thereof unto another in Fee; Both theſe Deviſes are good, and may ſtand together; that is, The former Deviſe is good for as much as is not afterwards more ſpecially Deviſed, notwithſtanding the Subſequent Specification; and the latter is good for ſo much as is ſo ſpecially Deviſed, notwithſtanding the precedent general Diſpoſition. It is otherwiſe when the general Clauſe comes laſt, for then the firſt Deviſe is void. i38. Eliz. Co. Banc.So alſo it is ſuppoſed to be where both the Deviſes are particular, that then the firſt Deviſe is void: As ſuppoſe a Man doth firſt in his Will Deviſe Long-acre to A. and his Heirs, afterwards in the ſame Will he doth Deviſe the ſame Land to B. and his Heirs, in this caſe ſome have held the firſt Deviſe to A. is void, which others have denyed, holding that both the Deviſes are good, and that A. and B. in this caſe ſhall be Joynt-Tenants.kQuaere. Dyer in his Lect. 1. & per Inſt. Dodr.
5. If a Man Deviſe the Uſe, Profits, or Occupation of his Land, by this Deviſe the Land it ſelf is Deviſed. lCo. 8. 94. Plow. 525.Or if a Man Deviſe only the Profits of his Land, this is a Deviſe of the Land it ſelf. mBrownl. 80. 1. Part.For Lands will paſs by words in a Will, which will not paſs by the ſame words in a Deed; but whatſoever will paſs by any Words in a Deed, will paſs by the ſame Words in a Will; The Reaſon is, becauſe Wills are always more favourably interpreted than Deeds; and there is good Reaſon for that alſo. If a Man ſays in his Will, I give all my Land or all my Tenements to A. B. he ſhall have not only all the Lands; whereof the Deviſor is Sole Seized, but alſo all the Lands whereof he is Seized in Common, or Co-parcenary with another, and not only all the Lands he hath in poſſeſſion, but alſo the Lands he hath in Reverſion of any Eſtate he hath in Fee-ſimple. But if he ſay, I give all my Lands in Poſſeſſion only, then the Lands he hath in Reverſion are excluded out of that Deviſe.nPlowd. 66.
6. If a Man Seized of Land of Fee-ſimple in the Pariſh of Grade, ſaith in his Will, I give all my Lands in the ſaid Pariſh to A. B. and after the Will made and publiſhed he doth Purchaſe other Lands in the ſaid Pariſh and dyeth; in this caſe, and by this Deviſe A. B. ſhall not have the new Purchaſed Lands. oPlow. 343, 344. Old N. B. 89. Fitz. Deviſe 17.Yet by a new Publication of the Will after the Purchaſing of ſuch Lands they will paſs to A. B. the Deviſee. pTrin. 37. Eliz. B. R. Breckford. verſ. ParincoteYea though he hath no Land in the ſaid Pariſh at the Time of making the ſaid Deviſe, yet if afterwards he doth Purchaſe Lands in that Pariſh, in this caſe ſuch ne… Purchaſed Lands will paſs by the ſaid Deviſe; becauſe it ſhall in that caſe be intended that he meant to Purchaſe them. Alſo if a Man hath ſome Lands in Fee-ſimple, and other Lands only for Years in Dale, and he Deviſe all all his Lands and Tenements in Dale; by this Deviſe the Lands and Tenements he hath for Years doth not paſs; but if he hath no other Lands in Dale but thoſe for Years, in this caſe probably they will paſs.qHill. 20. Jac B. R. Loftis verſ. Baker.
7. A. Deviſeth his Lands to M. his Wife, until. E his Daughter ſhall accompliſh the Age of 21. Years, the Reverſion to the ſaid E. and the Heirs of her Body, upon Condition that ſhe ſhall pay unto his ſaid Wife during her Life, in Recompence of her Dower of all his Lands 20 l. and upon default of Payment he wills his Wife ſhall enter, and enjoy all the Lands during her life; the Remainder ut ſupra, the Remainder to I. S. in Tail, and dies. M. the Wife enters, E. the Daughter being within the Age of 14. Years. M. takes to Husband I. D. The Husband and Wife came and demanded the 20 l. and none ready to pay it. Whereupon the Husband and Wife brought a Writ of Deviſe and Recovered. In this Caſe it was Reſolved, were the 20 l. Rent or a Sum in groſs, That by the bringing of the Writ of Dower. the Wife of the Deviſor had loſt all the benefit which was to come to her by the Deviſe; becauſe the ſaid Rent was Deviſed to her in Recompence of her Dower; ſo that it was not the meaning of the Deviſor that the Wife ſhould have both.rMich. 30. El. in C. B. Geſlin & Werburrons Caſe Leon. Rep. p. 137, 138.
s5. P. & M. vid. Owen 30. & Hugh. Abridg.In the Time of Queen Mary, Benloes Serjeant moved this Caſe: A Man Seized of Lands and Tenements in London deviſed them by theſe Words, viz. [I Will and bequeath unto my Wife A. my livelihood in London for Term of her Life] and that by this Will the Lands in London paſs to the Wife by this Word [Livelihood] Note, for Brook Juſtice ſaid, That it was in ancient Time uſed ſo in divers places of this Realm, and had been taken for an Inheritance. Unto which Dyer alſo agreed.
A. having Two Sons by Two Wives, deviſed his Land to I. his Eldeſt Son, and his Heirs, after the death of his Wife, to whom he deviſed them for her Life. The Queſtion was, Whether the Son ſhould take them by Deviſe as a Purchaſor, or as Heir at Common Law by deſcent. The Court held, that the Deviſe was void, and that it was not in the power of the Son to make Election to take by deſcent, or by Purchaſe; but he muſt of neceſſity take the Land as the Law directs, which is by deſcent; And it is againſt a Maxime of Law to give a Thing to ſuch a perſon to whom the Law gives it, if it had not been given.tMich. 24. Car. in B. R. rot 2052. Preſton and Holmes's Caſe. Styles 148, 149.
A Man made his Will in theſe Words, viz. I give and Bequeath one half of my Lands to my Wife, and after her death I give all my Lands to the Heirs Males of any of my Sons, or next of Kin. In this Caſe it was held, That the Deviſe was void, becauſe of uncertainty, and the words being in the disjunctive; and we ought not to frame a Senſe upon the Words of a Will, where we cannot find out the Teſtators meaning. uTrin. 1649. rot. 849. in B. R. Beal and Wyman's Caſe. Styles 240.Likewiſe it hath been adjudged, That Lands deviſed to a Mans Iſſue was uncertain, and therefore ſuch Deviſe void.x42. Eliz. in C. B. Tayler and Sawyers Caſe.
If a Man hath in his Occupation ſeveral Farms together, and then doth Deviſe one of the Farms called D. and all the Lands to the ſame belonging, the other Farms ſhall not paſs with it, although they be occupied altogether.yTrin. 20. Jac. in B. R. rot. 811. Knights Caſe. Godbolt. 358.
If a Man doth Will and Deviſe, That A. and B. his Feoffees ſhall ſtand Seiſed, and be Seiſed to the uſe of I. S. for his Life, the Remainder over, &c. when in Truth he hath no Feoffees. It is a good Deviſe to I. S. by reaſon of the Intention. Or if a Man make a Feofment to his own uſe, and afterwards Deviſe, That his Feoffees ſhall be Seiſed to the uſe of his Daughter A. who in Truth is a Baſtard, it is a good Deviſe of the Lands by Intention.zMich. 2. Car. in B. R. Baffield and Byboro's Caſe. Popham 188.
Three Brothers are of one Father and Mother the middle Brother Seiſed of Land Deviſable, giveth this by his Teſtament Propinquiori fratriſuo. It ſeemeth that none of them ſhall have it.aDyer's Read. on the Stat. of Wills. Sect. 3. §; 5.
Note, it was held by the Juſtices, That if a Man Seiſed in Fee of a Mannor and Lands, Deviſeth the ſame by his Will to his Son, and afterwards in another part of the ſame Will deviſeth a Third part of the ſame Lands to another of his Sons, That they are Joynt-Tenants of the Lands: And ſo if a Man in one part of his Will deviſeth his Lands to A. in Fee, and afterwards by another Clauſe in the ſame Will he deviſeth the ſame Lands to another in Fee, they are Joynt-Tenants.bMich 8. Eli. in C. B. Leon. 3. Part. 11. & Hughe's Abr. 3. Vol. in Appen. tit. Wills, Teſtaments and Deviſes.
cTrin. 36. Eliz. Browne and Peaſe Caſe. Anderſ. Rep. Caſe 315.Between B. and P. the Caſe was this. I. W. being Seiſed of the Mannors of W. and C. in Socage, made his Teſtament, deviſed the Two Mannors in Form following, viz. The Mannor of W. to the Eldeſt Son of R. F. his Couſin, and his Heirs; and further he deviſed the other Mannor to M. W. during her life, and if ſhe dies, and then any of my Couſin F's Sons Living, then I will my ſaid Mannor of C. to him that ſhall have my Manner of W.—R. F. had Two Sons G. and I.—G. enters on the Mannor of W. and the ſaid M. enters on the other Mannor. After G. dies without Iſſue. I. enters on the Mannor of W. and alienates the Fee thereof Afterwards M. dies. I living. The Queſtion was, Whether I. ought to have the M. of C. or not. The Court agreed, That he could not have it, for that he was not ſuch Perſon as was named or limited to take by the Will, for that he had not the Mannor of W. at the Time of the deceaſe of M. and therefore not the Perſon intended by the Will.
dTrin. 37. El. Beckford verſ. Parnecott. Cro. par. 3.The Caſe was, That R. P. Seiſed of divers Lands in A. and having Iſſue Four Daughters, B. I. F. M. made his Will 27. Eliz. in Writing, and thereby all his Land in A. he deviſed to B. and I. his Daughters, and made them his Executrices, and after in 33. Eliz. Purchaſed other Lands in A. (which are the Lands in Queſtion) and after one I. S. came to the Deviſor, and deſired that he would Sell unto him thoſe Lands which he lately Purchaſed. And he ſaid; No, they ſhall go with my other Lands in A. to my Executrices. Afterwards in 34. Eliz. he fell Sick, the Will was read unto him, and he ſaid nothing thereto; but then gave divers Legacies of Goods to others, and cauſed them to be written and annexed in a Codicil thereto, and dyed, Whether theſe Lands newly Purchaſed ſhall paſs to the Executrices by that Will, was the Queſtion? viz. Whether by thoſe words uſed to a Stranger, or the annexing of a Codicil to the Will, being only concerning Goods, be as a new Publication of his Will, to make theſe Lands to paſs, &c. Firſt, It was agreed by the Council on both ſides, and by the Juſtices, That if the Deviſor after the Purchaſe of that Land had made new Publication of his Will, and ſhewed his Intent, that thoſe Lands ſhould paſs, it had been a good Deviſe of them: For the Words in the Will are [all his Lands in A.] which are apt enough and ſufficient to carry them, and he could not have added more apt words thereto. But afterwards all the Juſtices (Gawdy abſente) held that it is a new Publication of his Will, and ſufficient by the words to I. S. For that ſhews his intent ſufficiently, and the Will writ hath words ſufficient. And Fenner held, That the annexing of the Codicil thereto, is a new Publication as to it: For therein he Affirmed, That it ſhould be his Will at that Time. But the other Juſtices doubted thereof, becauſe he doth not ſhew thereby any intent, That this Will ſhould be for his Purchaſed Lands, nor that he then remembred them. But for the foreſaid Reaſons it was adjudged for the Plaintiff, That thoſe Lands well paſſed by the Will.
eMich, 34. El. In the Court of Wards. The Lord Cheneys Caſe. Co. 5. part 67.Suppoſe a Man hath Two Sons, both named John, and conceiving his Eldeſt Son to be dead, he Deviſeth his Land by his Will to his Son John generally, when in Truth the Eldeſt Son is living. In this Caſe the Younger Son may alleadge and give in Evidence the Deviſe to him, and may produce Witneſſes to prove the Intent of his Father; And if no Proof can be made, the Deviſe ſhall be void for the uncertainty of it.
Glanvile Serjeant prayed the Opinion of the Court in this Caſe. fMich. 48, & 39. Eliz. C. B. Bon. verſ. Smith. Cro. par, 3. pl. 64.A Man had Iſſue a Son and a Daughter, and Deviſed his Lands to his Son in Tail, and if he dyed without Iſſue, That it ſhould remain to the next of his Name, and dyed. The Son dyed without Iſſue, the Daughter being then Married, whether ſhe ſhould have the Land was the Queſtion? And held per Curiam, That ſhe ſhould not: For ſhe had loſt her Name by her Marriage; but it ſhould go to the next Heir-male of the Name. But if ſhe had not been Married at the Time of her Brothers death, the Daughter ſhould have had it, for ſhe was the next of the Name.
gTrin. 39. Eliz. C. B. Jobſons Caſe. Cro. par. 3.One Deviſed certain Lands in N. in Tail, the Remainder to the next of the Kin of his Name, and at the Time of the Deviſe, the next of his Kin was his Brothers Daughter, who was then Married to I. S. the Deviſor dyed. The Tenant in Tail dyed afterwards without Iſſue. Whether the Daughter ſhould have the Land was the Queſtion upon a ſpecial Verdict, and adjudged without Argument that ſhe ſhould not: For ſhe is not now of the Name of the Deviſor; but of her Husbands Name. But if ſhe had been unmarried at the Time of the Deviſe and death of the Donor, although ſhe had been Married at the Time of the death of the Tenant in Tail without Iſſue, yet ſhe ſhould have had the Land. Wherefore it was adjudged accordingly.
hMich. 41. Eliz. B. R. Yates verſ. Clinkard Cro. par. 3.Ejectione Firmae; For certain Lands in A. upon Evidence to a Jury, a Deviſe was ſhewn of an Houſe with the Appurtenances, and thereby Land in the Field was claimed. And Popham doubted whether it ſhould paſs. But Fenner ſaid, That it well might paſs. And that upon Demurrer in 28. Eliz. it was adjudged accordingly. The Defendant then to make it clear ſhewed, That the Houſe was Copyhold, and the Land Freehold: And the whole Court thereupon conceived, That it could not be ſaid Appurtenant, although it had been uſed with it. Wherefore the Plaintiff was Nonſuited.
iTrin. 2. Jac. Horton verſ. Horton. B. R. Cro. par. 2. pl. 4In the Caſe between H. and H. all agreed the Caſe of 13. H. 7. That a Teſtators Deviſe to his Heir of his Land after the death of his Feme, is a good Deviſe (by Implication to the Feme) of that Land during her life; for it appears he intended his Heir ſhould not have it until the death of his Feme: And none other can have it beſides the Feme. And therefore it is a good Deviſe to the Feme by Implication. But if ſuch a Deviſe had been to a Stranger, after the death of his Feme; it might peradventure have been otherwiſe; for the Heir in the Interim might have had it.
kMich. 37. H. 8. Anderſ. Caſe. 83.Note, That the Opinion of all the Juſtices was, That if one make his Teſtament, wherein are theſe words, viz. [I Releaſe all my Lands, &c. to A. and to his Heirs.] It is a good Deviſe of the ſaid Lands to A. and his Heirs.
lMich. 30, 31, C. B. Ander. Caſe. 117. vid. dict. Caſe.Upon a ſpecial Verdict the Caſe was this. A Woman Seiſed of Lands made her Will, and deviſed the ſame to one and his Heirs; after they Intermarry. After Marriage the Woman intending to revoke her Will, doth revoke it by words after Marriage, and ſaith, That her Husband ſhall not have the Land by her Will, and after dyes. Whether the Husband by that Will, or the next Heir to his Wife, ſhall have the Land, was the Queſtion? The Caſe was Argued Pro & Con, ſeveral Arguments on both ſides. In fine it was Adjudged, That the Will was void, and that the Husband could take nothing thereby.
mPaſc. 5. El. Moo. Rep. nu. 143.A Man Deviſed his Lands to his Wife from Year to Year until his Son I. come to the Age of 20. Years, and dies; the Wife enters. I. dies before he attain the Age of 20. Years. And it was moved by Harper, whether her Intereſt were thereby determined. And it was held by all the Juſtices, That by the death of the Son the Eſtate of the Wife was determined, and that ſhe had no longer any Eſtate therein. For it is to be intended that the Will of the Deviſor was, That his Wife ſhould have the Land during the Minority of his Son, for that he himſelf could not Legally diſpoſe of the Land, being within Age. And Dyer ſaid, That by theſe words de anno in annum. It is intended, that the Will of the Deviſor was, That the Intereſt of the Wife ſhould determine by the death of his Son. But if the Words had been [until his Son ſhould Come, or might Come to that Age of 20. Years] then notwithſtanding his death, the Eſtate of the Wife had continued.
nMich. 30. El. in c. B. Sir Ant. Denny's Caſe. Leon. 2, Part. 190. & Hugh's Abridg. Appen. tit. Deviſ.A. Seiſed of the Mannor of Cheſsam, extending into Cheſſam, and the Town of Hertford, and alſo of Lands in Hertford, Deviſed by Will the Mannor of Cheſſam to B. his Eldeſt Son in Tail, and the Lands in Hertford to C. his Younger Son. It was held by all the Juſtices, That the Younger Son ſhould have all that part of the Mannor of Cheſsam, which lay in the Town of Hertford.
oPaſc 16. El. in B. R. Leon. 2. Part. 221. & Hughs Abridg. ibid.A. Deviſed that his Lands ſhould deſcend to his Son, but Willed, That his Wife ſhould take the Profits thereof, until the full Age of the Son, for his Education and bringing up, and dyed; The Wife Married another Husband, and dyed before the full Age of the Son. It was the Opinion of the Juſtices, in this Caſe, That the ſecond Husband ſhould not have the Profits of thoſe Lands till the full Age of the Son; For nothing is Deviſed to the Wife but a Confidence, and ſhe is a Guardian or Bailiff for to help the Infant, which by her death is determined, and the ſame Confidence cannot be transferred to the Husband.
A Man Seiſed of a Meſſuage to which a Garden and a Curtilage did belong, Encloſed with a Wall, and there was no way to the Garden but through the Meſſuage: He Deviſed the Meſſuage to his ſecond Son in Fee, not mentioning the Garden nor Curtelage, nor ſaith cum pertinentijs: pHill. 30. Eli. B. R. Carden & Tucks Caſe, Cro. 3. Part. 89. & Hughe's ibid,It was Adjudged in this Caſe, That the Garden and Curtelage did paſs by this Deviſe; They ſaid a Curtelage is parcel of the Houſe, as a Stable and a Dovehouſe; and the Garden ſhall paſs, becauſe it is as well for Neceſſity to it as for Pleaſure.
A. Seiſed of Lands had Two Daughters, and Deviſed the Lands to the Eldeſt and her Heirs, that ſhe pay to her Younger Siſter yearly 30 l. It was the Opinion of all the Juſtices, That this was a Condition, for ſo was the Intent of the Deviſor; For otherwiſe the Younger Siſter had no Remedy for the Rent. qTrin. 30. El. B. R. Crickmere & Paterſons Caſe. Cro. 3. Part. 146. & Hughe's ibid.And in this Caſe it was Adjudged, That the Younger Siſter might enter upon a Moity of the Land, for breach of the Condition in Non-payment of the Rent, for which the Action was brought.
rMich. 30. El. B. R. Bon & Smith's Caſe. Cro. 3 Part.. 532. vid. Trin. 39. Eliz. c. B. Johſons Caſe. Cro. 3 Part. 576. Adjudged acc.A Man had Iſſue a Son and a Daughter, and he Deviſed his Lands to his Son in Tail; and if he dyed without Iſſue, it ſhould remain to the next of his Name. (r) The Son dyed without Iſſue, the Daughter being then Married. The Queſtion was, whether ſhe ſhould have the Lands? It was Reſolved by the whole Court, That ſhe ſhould not, for that ſhe had loſt her Name by her Marriage: But if ſhe had not been Married at the Time of her Brothers death, ſhe ſhould have had it, for ſhe was the next of Name.
A. B. Seiſed of Lands in Socage, Deviſed the ſame by Words to his Three Siſters; a Stranger preſent Recited the Teſtators words to him; whereat he Affirmed the ſame. Afterwards the Stranger for his own Remembrance puts the words into Writing, but read them not to the Deviſor before his death. This Deviſe ſo Reduced into Writing mode & forme is void, becauſe it was written without the order or direction of the Deviſor, and conſequently not within the Statute. But if after the writing thereof he had read the ſame to the Deviſor, and thereupon the Deviſor had Affirmed the ſame, it had then been a good Deviſe. sPaſc. 30. El. B. R. Naſh & Edwards Caſe. Leon. 113. It was the Opinion of the whole Court that the Deviſe was vaid, and Wray Chief Juſtice ſaid, That if he Appoint A. to write his Will, and it is Written by B. the Deviſe is void. But if after he ha Written the Will, he had Read it to the Deviſor, and he confirmed it, it had been a good Will. It was the Opinion of the Court, That the Plaintiff being Heir at Law, ſhould have Judgement to Recover the Lands againſt the Three Siſters.It was the Opinion of, &c.
A. deviſeth his Lands to W. after the deceaſe of his Wife, and if he fail, then he willeth all his part to the diſcretion of his Father, and dyed. W. Survived, the Father being dead before, without any diſpoſition of the Land. In this Caſe the Father hath a Fee-ſimple, there being no difference where the Deviſe is, That I. S. ſhall do with the Land at his Pleaſure, and the Deviſe thereof to I. S. to do with it at his diſcretion.tTrin. 30. El. Rot. 1160. Whisker & Cleytons Caſe. Leon. Rep. p. 156.
A Man Seiſed of Lands in A. hath Iſſue four Daughters, A. B. C. D. and deviſed all his Lands in A. to A. and B. Two of his Daughters, and made them his Executrices: Afterwards he Purchaſed other Lands in A. A Stranger being deſirous to Buy this Land of him newly Purchaſed, he refuſed, ſaying, That this Land ſhould go with the Reſidue of his Land to his Executors, as his other Lands ſhould go. Afterwards the Teſtator made a Codicil, and cauſed it to be annexed to his Will; but in the Codicil no mention was made of this new Purchaſed Land. In this Caſe this new Purchaſed Land ſhall not paſs: For Notwithſtanding that the Reading of the Will, and the making of a Codicil, may amount to a new Publication; yet it doth not manifeſt the Intent of the Deviſor to be, that more ſhall paſs by that, then he intended at the firſt; Alſo the new Reading of the Will, and the annexing of a Codicil, may not properly be termed a new Publication; And without an expreſs Publication for this Land newly Purchaſed, this Land ſhall not paſs.uHill. 43. Eli. B. R. Beckford & Parnecoles Caſe. Goldesb. 150. vid. Bret. & Rigdens Caſe. Plow. Com. 340
A Man Let ſeveral Houſes and Lands by ſeveral Leaſes for Years, rendring ſeveral Rents, amounting to 10 l. per annum, and made his Will in this manner; viz. I Bequeath the Rents of D. to my Wife for Life; the Remainder over in Tail. By this Deviſe the Land it ſelf ſhall paſs; for it appears, his Intent was to make a Deviſe of all his Lands and Tenements, and that he intended to paſs ſuch an Eſtate, as ſhould have continuance for a longer time then the Leaſes ſhould endure; and the words are apt enough to convey the Lands, it being an uſual manner of ſpeaking of ſome Men, who name their Lands by their Rents.wMich. 45. Eliz. in c. B. Rot. 125. Kerry & Dirricks Caſe. Cro. 2. Part. 104. Hughs Abridg. tit. Deviſe.
A Man Deviſed Lands to another Man and his Heirs: The Deviſee dyed in the Life of the Deviſor, and then the Deviſor dyed. In this Caſe the Heirs ſhall not take by the Deviſe, for that the Heirs are not named as words of Purchaſe, but only to expreſs and limit the Eſtate which the Deviſee ſhould have; for without theſe words (Heirs) the Deviſee could not have the Fee-ſimple: and the Heirs are named only to Convey the Lands in Fee-ſimple, and not to make any other to be Purchaſer but the Deviſee.xVid. Plow d Com. 342. in a Bret & Rigdens Caſe.