The Orphans Legacy, Part 3 · Chapter 9
CHAP. IX. Certain Caſes touching Deviſes of Land in Fee-ſimple.
1. A Fee-ſimple may paſs by ſeveral Words and Expreſſions in a Will, which will not paſs it by Deed.
2. A Power to Sell Land Deviſed, paſſeth the Fee-ſimple; ſo doth the Deviſe of the Land (without other words) on the leaſt Conſideration of a Payment to be made by the Deviſee.
3. A Fee-ſimple will paſs in a Will as well by the Implication as Expreſſion of the Word [Heirs.]
4. A nice Diſtinction between Joynt-Tenancy, and Tenancy in Common.
5. A Deviſe of Lands to a Corporation for Life is a Fee-ſimple; and whether it may paſs by the Word [Aſſigns] without the Word [Heirs] or the Words [For ever.]
6. A Fee-ſimple paſſeth in a Will by Implication of a power to Sell the Lands, as well as by Payment of Money, enjoyn'd the Deviſee.
7. In what Senſe the Habendum ſhall be Conſtrued, where the Deviſe of Lands ſeems ſomewhat doubtful.
8. In what Caſe a Fee-ſimple, and all the Teſtators Inheritances may paſs by General Words to the Deviſee.
9. A Deviſe in Fee made to one, cannot in the ſame Will be made to another.
10. How the Word [Paying] doth Create a Fee in a Deviſe, and bow by a Deviſe of Rents the Land it ſelf doth paſs.
11. A Deviſe ſhall be for the Dviſees Benefit, not Prejudice; alſo in what other Caſe a Fee ſhall paſs by Implication.
12. In what Caſe, and by what Words the Fee, and not Leaſes, or the Leaſes and not Fee, do paſs by a Deviſe.
13. Other Caſes in Law touching this Subject.
1. THere are many Words and Expreſſions whereby Lands will paſs in Fee-ſimple by a Will, which by a Deed will not ſo Convey the ſame. As ſuppoſe a Man deviſe his Land in this manner, viz. I give my Land in Dale to A. B. and his Heirs, or to A. B. in Fee, or to A. B. for ever, or to A. B. Habendum ſibi & ſuis, or to A. B. and his Aſſigns forever, or to A. B. to give away, or Sell, or do therewith at his Pleaſure; All theſe and ſuch like in a Will Create a Fee-ſimple Eſtate, and A. B. ſhall have the Land to him and his Heirs for ever; aLit. Broo. Sect. 133. Perk. Sect. 1. 6. Lit. Sect. 586. Kelway 43. Co. ſup. Lit. 19, 20. H. 6. 35. Lit. B…. Sect. 432. 19. H. 8. 10.yet by ſuch words in a Deed no more will paſs then an Eſtate for Life, ſave only in the firſt Caſe. Alſo if any now ſince the making of the Statute of Uſes, Deviſe that the Feoffees of his Land ſhall be Seized of the Land to the Uſe of B. C. and his Heirs, or to the Uſe of B. C, and the Heirs of his Body; or that his Feoffees ſhall make an Eſtate of the Land to B. C. and his Heirs, or to him and the Heirs of his Body; This is a good Deviſe of the Land in Fee-ſimple or Fee-tail. There are alſo ſeveral other ways of Fee-ſimple by Will. For ſuppoſe Land be given to a Man Habend. ſibi & Haeredi ſuo: This indeed is not Fee-ſimple; otherwiſe it is, if it be given ſibi & duobus Haeredibus ſuis tantum. bDyer. Lect. in Stat. Wills. cap. 5. §. 1.So if Land be given to a Man Habend. ſibi & Haered. with warranty of the Land ſibi & Haeredibus ſuis, This is a good Fee-ſimple. cIbid.Or if a Man Deviſe Land to A. B. for his Life, and after to the Heirs, or to the right Heirs of A. B. By theſe Deviſes A. B. hath a Fee-ſimple in the Land, dDyer. ubi ſupra cap. 3. §. 3.Alſo if one Deviſe his Land to his Wife to diſpoſe thereof at her will and pleaſure, and to give it to one of her Sons; by this Deviſe ſhe hath a Fee-ſimple; but it is qualified, for ſhe muſt Convey it to one of her Children, and cannot Convey it to another.eCo. 6. 16. & Dyer. 126.
2. When in a Will power is given to a Deviſee of Land by the Teſtator to Sell that Land, ſuch Deviſee hath a Fee-ſimple in that Land; for power to Sell giveth by Implication an Eſtate in Fee-ſimple, f18. Jac. B. R. Green verſ. Dewel.Alſo, if one Deviſe his Land to A. B. paying 10 l. (without other words.) By this the Deviſee hath the Fee-ſimple of the Land, albeit the 10 l. be not the Dundredth partvalue of the Land? In like manner, If one Deviſe Land (whereof he is Seized in Fee) to A. B. paying 10 l. to G. D. By this Deviſe, albeit there be no Eſtate expreſſed, yet A. B. hath the Fee-ſimple of the Land in reſpect of the Payment of the Money. gMic. 13. Jac. B. R. Dyer. Sect 307.This holds True only in caſe the Intent of the Teſtator doth not appear to be otherwiſe.
3. If one in his will deviſe his Land to his Wife in the firſt place, and then ſaith my Will is, That my Son A. ſhall have it after my Wives death, and if my Wife dye before my Son B. that then my Son A. ſhall pay to B. 10 l. by the Year during the Life of B. and alſo 100 l. to I. S. In this Caſe A. ſhall have the Fee-ſimple of the Land. hHill. 17. Jac. B. R. Adjudge ed. Spicers CaſeAlſo, if one Deviſe his Land in this manner, viz. iTrin. 30. El. If I Deviſe Lands to two equally divided between them, they are Tenants in Common. But if I Deviſe Lands to Two, equally to be divided between them by I. S. Till ſuch Diviſion be made they are Joynt-Tenants. Mich. 31. Eliz. in B. R. Dickons & Marſhes Caſe Goldesbr. 182, 183.I give White-acre to my Eldeſt Son and his Heirs for his part; Item, Black-acre to my youngeſt Son for his part; by this Deviſe the the Youngeſt Son ſhall have the Fee-ſimple of Black-acre. Or thus; I give White-acre to A. B. Item, Black-acre to A. B. and his Heirs; by this Deviſe A. B. ſhall have the Fee-ſimple as well of White-acre as of Black-acre.
4. If a Man Deviſe his Land in this manner; Item, I give to A. B. and C. D. and their Hoirs my Land in Kent equally, or my Land in Kent equally to be divided; by theſe words A. B. and C. D. ſhall have and hold the Land not as Joynt-Tenants, but as Tenants in Common, ſo that the Heir and not the Survivor ſhall have his part that firſt dyeth: And yet in caſe of ſuch a Limitation by Deed it is otherwiſe. But if one Deviſe his Land to A. B. and C. D. and their Heirs (without more words) it ſeems that by this Deviſe they ſhall take and hold as Joynt-Tenants; kAdjudged Lowen verſ. Cox. Mich. 37, 38. El. Com. B. Dyer. 25. Lit. Broo. Sect. 133. Lit. 283. Perk. Sect. 170. Dyer. 350.Yet if one Deviſe Land to A. B. and C. D. and the Heirs of either of their Bodies lawfully begotten; it ſeems that by this Deviſe A. B. and C. D. ſhall take and hold as Tenants in Common, and not as Joynt-Tenants. lDyer. 326.Likewiſe the Caſe is the ſame, if one Deviſe his Land to A. B. and C. D. in this manner, viz. I Will that A. B. and C. D. ſhall have my Lands in Kent, and occupy them indifferently to them and their Heirs. mPaſch. 9. Jac Newmans Cafe. Brown. Rep. 1. part. 131. 169.But if one, who hath Two Daughters only, give or Deviſe his Land to them in Fee; by this Deviſe they ſhall take as Joynt-Tenants, and not be in by Deſcent as Partners; nGoldsb. 141. Plow. 53.for the Teſtators Will ſhall take place.
5. If Land be given to the Mayor and Commonalty of London, or any other Corporation to have and to hold for Term of their Lives, it is a Fee-ſimple. oDyer. Lecture in Stat. of Wills. Sect. 5. §. 13.Or if a Man ſay, I give to A. B. my Houſe with all the Lands for 21. Years; and that A. B. ſhall have all my Inheritance, provided it be not contrary to Law; In this Caſe A. B. ſhall have the Fee. pHob. Rep. 7.Or if he give it to his right Heirs Males, and Iſſue of his Iſſue of his Name, this alſo is a Fee-ſimple. qBrown. 129. 147. 149. 1. part. & part. 2. 272. 177.And although it be affirmed by ſome, That if the Teſtator Deviſe his Land to A. B. and his Aſſigns, without ſaying [For ever,] A. B. ſhall have an Eſtate only for Life; rCo. ſup. Lit. 9. Perk. Sect. 57 239, New Terms of Law. tit. Deviſe.Yet the contrary is Aſſerted by others, and that it is a Fee-ſimple.sTrin. 2. Car. in B. R.
6. If a Teſtator ſaith, I will my Land to my Son A. during his Life, and after his deceaſe to my Son B. And in caſe my Son A. ſhall hereafter Purchaſe Lands of as good Value as that Land for my Son B. that then my Son A. ſhall Sell the Land Deviſed to my Son B. as his own, and ſhall pay 20 l. to C. D. In this Caſe A. hath a Fee-ſimple, implyed by the Power which A. hath to Sell, beſide the Payment of Money. tMich. 18. Jac. B. R. Green verſ. Dewel.Alſo, if one Deviſe Land to me and my Heirs, and in Caſe the Heir at Law put me out, that then I ſhall have other Land inſtead thereof; in this Caſe, and by this Deviſe I have the Fee-ſimple of the firſt Land, notwithſtanding the latter words. uPaſch. 14. Jac. in B. R.Likewiſe, if a Teſtator Deviſe Land to me for my life, the Remainder to his own Son, and the Heirs Males of his Body, and in default of ſuch Iſſue, the Remainder to the next Heir-male of the Teſtator, and the Heirs-males of his Body; In this Caſe the next Heir-male of the Son hath an Eſtate in Fee-ſimple.wPerk. Sect. 567.
7. Suppoſe a Man Seiſed of Lands, make his Will in this manner, viz. Imp. I Deviſe to my Wife Black-acre for her life, the Remainder to my Son T. in Tail. Item, I Will to my Son T. all my Lands in D. alſo all my Lands in S. alſo my Lands in V. Alſo I give to the ſaid T. my Son all my Iſland or Land encloſed with Water which I Purchaſed of I. S. To have and to hold all the ſaid laſt before Deviſed Premiſes to the ſaid T. my Son, and the Heir of his Body. In this Caſe the Habendum ſhall extend to all the Lands in D. S. and V. and ſhall not limit the Deviſe only to the Iſland; becauſe the thing laſt Deviſed by the Will was an Iſland in the Singular Number, which cannot Anſwer to the Habendum in the Plural, which if extenſive to the Iſland only, T. then ſhould have but for Life in the Lands of D. S. and V. But it was otherwiſe Reſolved, viz. That the Habendum ſhould extend to all the Lands in D. S. and V.xTrin. 28. El. in C. B. rot. 1458. Wiſeman & Wiſemans Caſe. Leon. Rep. 57. 58.
8. A Man Seiſed of a Meſſuage holden in Socage in Fee, Deviſed the ſame by theſe words: I Deviſe my Meſſuage where I dwell to A. B. and her Aſſigns for 10. Years; and A. B. ſhall have all my Inheritances if the Law will. In this Caſe the Deviſe in Fee of the Meſſuage is good; and by the general words of the Will, all his Inheritances do alſo paſs.yMich, 11. Jac. in C. B. Wedlock & Hardings Caſe. Godbolt. 208.
9. If a Man Deviſe Lands to one for ever, there he hath a Fee; for ſuch an Eſtate might be conveyed by Act Executed. But if he further Deviſe, That if the Deviſee do ſuch an Act, that then another ſhall have the Land to him and his Heirs, the ſame is void; for when as he hath diſpoſed of the Eſtate in Fee to one, he hath not power after in the ſame Will to diſpoſe the ſame to another; it being a Rule in Law, That ſuch an Eſtate which cannot by the Rules of the Common Law be conveyed by Grant Executed in his life time by Advice of Council learned in the Law, ſuch an Eſtate cannot be Deviſed by the Will of a Man, who is preſumed to be void of Council.zCo. 1. part. 85. in Corbets Caſe.
10. A Man having Lands in Fee-ſimple, and goods to the Value of 5 l. only, Deviſed to his Wife all his Eſtate, paying his Debts and Legacies; his Debts and Legacies amounting to 40 l. It was Adjuged in this Caſe, That all his Lands did paſs by the Deviſe, and that the Deviſee had a Fee-ſimple in the Lands, the word [Paying] enforcing it; for they are to be paid preſently, which cannot be, if the Lands paſs not in Fee. aTrin. 1651. in B. R. Kirman & Johnſons caſe. Styles 293 Mich. 45. Eliz. in C. B. Riches caſe.And if a Man Deviſeth all his Rents: It was held, That all his Lands do paſs.bIbid.
11. Note, That by intendment of Law, a Deviſe ſhall be for the benefit of the Deviſee, and not to his prejudice: As if Land to the Value of 3 l. per annum be Deviſed to A. and that A. ſhall pay out of it 50 s. per annum. In this Caſe A. hath but an Eſtate for life, for he may pay it out of the Profits of the Lands, and is ſure to be at no loſs. But if it be Deviſed to B. for life, the Remainder to A. paying 50 s. per annum out of it: In this Caſe A. hath a Fee-ſimple by Implication; becauſe after the Payment thereof A. may dye, before he can receive ſatisfaction for the ſame out of the Profits of the Land; and therefore ſuch Deviſe ſhall be a Fee-ſimple, becauſe the Law intends that the Deviſe was for the benefit of the Deviſee.cCoo. 6. part. 16. Colliers caſe
12. Note alſo, That if a Man hath Lands in Fee, and Lands for Years, and he Deviſeth all his Lands and Tenements; the Fee-ſimple Lands paſs only, and not the Leaſe for Years. (2) If a Man hath a Leaſe for Years, and no Freehold, and Deviſeth all his Lands and Tenements, the Leaſe for Years paſſeth. (3) That if one Deviſeth his Lands which he hath by Leaſe, to his Executor for life, the Remainder over, that there ought to be a ſpecial Aſſent thereunto by the Executors as to a Legacy; otherwiſe it is not Executed.dTrin. 7. Car. in B. R. Roſe & Bartlets caſe. Cro. 1. part. 213. Trin. 14. Jac. B. R. Moo. Rep. Gu. 1164.
13. A. Deviſed his Lands in London to his Son and his Heirs, after the deceaſe of his Wife; and in Caſe his Daughter ſhould Survive his Wife, and his Son, and his Heirs, that then the Daughters ſhould have it for Life, and after their death I. and R. ſhould have the ſame, and that they ſhould pay 6 l. 16 s. yearly to the Company of Merchant-Taylors to be diſpoſed of to Charitable Uſes. In this Caſe three Points were Argued: (1) Whether the Wife had an Eſtate for life by Implication of the Will? And it was Reſolved, That ſhe had. (2) Whether the Son had a Fee-ſimple, or Fee-tail? And it was Reſolved, That he had a Fee-tail by Implication of theſe words, viz. [if his Daughters, Survive his Wife, and his Son and his Heirs] whereby it is plainly implyed, That the Heirs there intended are the Heirs of his Body, and not his Heirs in Fee; for ſo long as the Daughters live, the Son could not dye without a Collateral Heir. (3) What Eſtate I. and R. have after the death of the Daughters? And as to, That it was Reſolved, That they have a Fee-ſimple by Reaſon of the Annual Payment of Money; and it is not to be regarded what Annual Value the Land is of over and above the Sums they pay; for every Sum of Money paid or payable doth cauſe the Deviſee to have a Fee-ſimple. And Coke Chief Juſtice ſaid, That a Deviſe to A. and his Succeſſors is a Deviſe of a Fee-ſimple, without the word [Heirs,] becauſe it implyes a Fee-ſimple, although it wants the expreſs words.
Between L. Plaintiff, and B. Defendant. L. Seiſed of Land Lowen & Bedds caſe. Anderſ. par. 2. caſe. 10.in Fee Deviſed it unto Two Perſons Equaliter, and to their Heirs. Whether this made them Joynt-Tenants or Tenants in Common, was the Queſtion? It was holden by the whole Court, That they were Joynt-Tenants and not Tenants in Common.
A Man Seiſed of Lands Deviſed them by his Teſtament to his Wife to diſpoſe and imploy them for her and his Sons at her own Will and Pleaſure. And it was held by Dyer, Weſton, and Welch, That ſhe had a Fee by ſuch words, as if he had Deviſed Paſch. 6. El. Moo. Rep, nu. 162.the Lands for ever: For the Conſtruction of Law ſupplies the defect in theſe words of the Deviſor, according to his meaning. And it was held by Dyer and Welch, That the Eſtate in her is Conditional; becauſe theſe words ea intentione make a Condition in every Deviſe, but not in a Feofment, Gift or Grant, unleſs it be in Caſe of the King: And theſe words do amount as much as to ſay, ſhe ſhould not convey it away to a Stranger, but keep it and give it to his Sons.
S. Seiſed of Land in Fee, holden in Socage, and Deviſable Paſc. 17. Jac. B. R. Spicer verſ. Spicer Coke the Queens Attourney demanded of the Court. A Man hath Two Daughters, being his Heirs, Deviſeth his Land to them & their Heirs, and dyes. Whether ſhall they take as Joynt-Tenants by Deviſe, or as Coparceners by Deſcent? And all the Juſtices held clearly, That they ſhall have it as Joynt-Tenants; for the Deviſe giveth it them in another Degree then the Common Law would have given it them, and after the benefit of Survivorſhip between them. Anonimus Cro. par. 3. B. R.in Gavelkind. Deviſed it to his Feme for her life, paying 3 l. per annum to T. his Son during his life; and that he ſhould take but Two Load of Wood for Fire-boot: And if ſhe dyed before the ſaid T. then he Deviſed all his Lands to R. his Son, paying to the ſaid T. 3 l. per annum, and paying to ſuch one of his Siſters 20 s. and to another Siſter 20 s. The Feme dyes. R. enters. The Queſtion was, what Eſtate R. had by this Deviſe. And it was Adjudged, he had a Fee; For when he Deviſed it to his Feme for life expreſly, &c. and to R. generally without limiting the Eſtate, and apppointed him to pay to T. 3 l. per annum during his life, That carries in it an Intendment that he ſhould have Fee, eſpecially when his Father therein further willed, That his Son R. ſhould pay two other Sums in Groſs, and none of them to be out of the Profits, it is by Intendment and by Implication a Fee; wherefore upon the firſt Argument it was Adjudged for the Defendant; for they ſaid, That theſe Things which have been ſo often Adjudged ought to reſt in Peace. Vide 4. Ed. 6. tit. Eſtates 78. 29. H. 8. Br. Teſtam. 18. Dyer. 371. Wellock & Hamonds Caſe. 32. & 33. Eliz. Cited in Boraſtons Caſe. Co. 3. 20, 21. And Colliers Caſe. Co. 6. 16.
A Man by the Premiſes of his Will Deviſeth his Land to I. S. in Fee, and by the Sequele he Deviſeth the ſame Land to I. N. in Fee; they both ſhall take by this Teſtament, and ſhall be Joynt-Tenants.eDyer's Read. on Stat. of Wills. Sect. 3. §. 3.
A Deviſe made Canonicis Eccleſiae Catholicae Pauli Lond. in perpetuum, is a good Deviſe to all the Canons joyntly in Fee, and the Survivor ſhall have the Entierty; the Law is otherwiſe in Caſe of a Deviſe made Civitati Lond. in perpetuum; the Corporation of the Mayor and Commonalty ſhall take by this Deviſe.fIbid. §. 8.
A Man hath Two Wives, and he Deviſeth his Land to his latter Wife in Fee; the firſt Wife ſhall have it. gIbid. §. 16.Likewiſe if one hath Two Sons called I. and one of them is a Baſtard, and Born before Marriage, and he makes a Deviſe to his Son I. the Legitimate I. ſhall have it, and not the Baſtard.hIbid. §. 17.
A Man hath Iſſue a Son, and Land is Deviſed to the Father Habend. ſibi & Haered. de corpore ſuo Legitime procreand. and after the Deviſee hath Iſſue another Son, the ſecond ſhall have the Land.iIbid. §. 18.
A Man Seiſed of Three Meſſuages, Deviſed by his Teſtament to his Son A. one of them, Naming it, and A. to enter after his Wives death; and Deviſed another of the Meſſuages to his ſecond Son, paying 10 l. to his Siſter, and he to enter at his Age of 21. Years, and Deviſed the Third Meſſuage to his Third Son in like manner as to his Second Son. And after in his Teſtament willed, That if either of his Sons dyed before 21. Years of Age, that Mich. 15, 16. Eliz. Anderſ. caſe. 100.then his part ſhould be divided among the Survivors, and each of them to be the others Heir; they all attain to the full Age, and the Two Younger Sons paid their Siſter the ſeveral Sums as was appointed in the Will. The Queſtion being what Eſtate the Two Younger Sons had in thoſe Meſſuages Deviſed them by the Will? it was held a Fee-ſimple.