The Orphans Legacy, Part 3 · Chapter 11
CHAP. XI. Certain Caſes in Law touching Deviſes of Land for Life only.
1. A Deviſe of Land to one (not ſaying, How long) is an Eſtate only for life.
2. Power of Diſtraining Deviſed to one (without other words) on Non-payment of a certain Annual Sum, is only an Eſtate for Life.
3. A Deviſe of Land to one and his Heir, (in the Singular Number) or to one and his Children is but an Eſtate for life.
4. Several Inſtances of Law touching Eſtates only for Life by way of Deviſe.
5. Several Inſtances of Eſtates for Life by Implication, Deviſed.
6. A Deviſe of Land to one thereby obliged to a preſent Payment Creates a Fee-ſimple; But if Payment be to Iſſue out of the Profits of the Land Deviſed, it makes only an Eſtate Tail.
7. A Deviſe of an Eſtate for Life in Reverſion.
8. A Deviſe of Two Eſtates for Lives; the one to ſome in Being, the other to others in Reverſion.
9. A. Deviſe of Lands in Eſſe or Poſſe, Conditioned upon an Annual Payment to be made by the Deviſee, during his or her life, which Deviſe is made by one in the Remainder in Fee, and not in Poſſeſſion, doth paſs an Eſtate only for life.
10. A Deviſe (by general words) of all a Mans Eſtate, Mortgages, &c. may paſs (as to the Real) no more than an Eſtate for Life, and not a Fee by Implication,
11. The Law ever accommodates the Teſtators words, whatever they be, (as nigh as poſſible) to his intent and meaning.
1. IF a Man Deviſeth his Land to A. B. and ſay not how long, nor for what Time, by this Deviſe A. B. hath an Eſtate only for Life in the Land. aFitz. Deviſe III. Goldesb. 183.But if a Man Deviſe his Land to A. B. and his Aſſigns, without ſaying [For ever;] it hath been a Queſtion whether he hath only an Eſtate for Life, as was held by ſome; bCo. ſup. Lit. 9. Perk. Sect. 57. 239. New Terms of Law. tit. Deviſe.or a Fee-ſimple, as hath been Affirmed by others.cTrin. 2. Car. B. R, Daniels caſe.
2. In the latter part of the laſt Chapt. it was ſaid, That it was an Eſtate Tail of the Rent, if one Deviſed to A. B. that if he and the Heirs of his Body be not paid 20 l. Rent yearly, he and they ſhall diſtrain. But now if the Deviſe only be, That if A. B. be not paid 20. l. yearly, he ſhall diſtrain, &c. by this Deviſe A. B. hath only an Eſtate for Life. Likewiſe if one deviſe a Rent of 10 l. out of his Land to be paid quarterly, and ſay not how long the Rent ſhall continue; this is but an Eſtate in the Rent only for LifedCo. ſup. Lit. 147. 8. 85. Brownl. 2. part. 74, 75.
3. If one Deviſe his Land to A. B. for his Life, or to him (without any more words) or to him and his Heir (in the Singular Number,) or to him and his Children, (he then having Children.) By all theſe and ſuch like Deviſes A. B. hath only an Eſtate for life in the thing Deviſed. eFitzh. Deviſe. 16. Co. 6. 16. Perk. Sect. 577.And if one Deviſe, That A. B. ſhall have and occupy his Land in D. (and ſay not how long) by this Deviſe A. B. ſhall have the Land (as aforeſaid) only for life. fPaſch. 9. Jac. Newmans caſe.But If I Deviſe that A. B. ſhall enter into my Land, (and ſay no more) by this Deviſe A. B. hath no Eſtate at all, but power to enter into the Land only.gDyer. 342.
4. A Man having a Son and a Daughter dies; Lands are Deviſed to the Daughter, and the Heirs Females of the Body of the Father; by this Deviſe the Daughter hath only an Eſtate for her life; for there is no ſuch perſon, for ſhe is not Heir. hCoo. ſup. Lit. 24.Likewiſe if one Deviſe his Land in D. unto A. B. for life, and after to the next right Heir, (in the Singular Number) and to his right Heirs for ever; by this Deviſe A. B. hath only an Eſtate for life. iCo. 1. 66.Or if one Deviſe Land to A. B. for life, and after to the next Heir Male of A. B. and to the Heirs Males of the Body of ſuch next Heir Male; by this Deviſe alſo A. B. hath but an Eſtate only for life. But if he Deviſe his Land to A. B. for his life, and after to the Heirs or to the right Heirs of A. B. by theſe Deviſes A. B. hath the Fee-ſimple of the Land. And if it be to him for life, and after to his Heirs Males, then he hath an Eſtate Tail. But if one Deviſe Land to F. G. and M. his Wife, and after their deceaſe (or the Remainder) to their Children, by this Deviſe, whether they have or have not Children at the time, F. G. and M. his Wife have Eſtates only for their liveskCo. 6. 16. Goldsb. 138. Plow. 47. 134. Plow. 33.
5. If one Deviſe his Land to A. B. in Fee after the death of C. D. (being his Son and Heir apparent) by this Deviſe C. D. hath an Eſtate for life by Implication; and till the Deviſe take effect, the Law gives it to him by deſcent. The Law is the ſame where one doth deviſe his Land to A. B. after the death of his Wife; by this Deviſe the Wife hath an Eſtate for life by Implication. Likewiſe if a Man Deviſe in this manner; I give my Goods to my Wife, and that after her deceaſe my Son and Heir ſhall have the Houſe where the goods are; it is held, That by this Deviſe the Wife hath an Eſtate for life in the Houſe by Implication. But if a Man Deviſe his Land to A. B. after the death of I. G. (a Stranger to the Deviſor) it ſeems that by this Deviſe I. G. hath no Eſtate at all by Implication, and that this doth but ſet forth the Time when the Eſtate of A. B. ſhall begin, and that the Intent of the Teſtator is, That his Heir ſhall have it until that Time. lBroo Deviſe 48. 52 Lit Br. 107. 15. H 7. 13. New Terms of Law. tit. Deviſe. Plow. 158. 414. 521.The Reaſon of the difference is, becauſe a Man is bound to provide for his own, not ſo for a Stranger; and ſo the Law preſumes what Nature doth teach.
6. If one Deviſe his Land in this manner, viz. I give my Land in D. to A. B. to the intent that with the Profits thereof he ſhall bring up my Child or my Children; or to the intent that with the Profits thereof he ſhall pay to I. M. 10 l. or to the intent that out of the Profits thereof he ſhall pay yearly 10 l. By theſe Deviſes A. B. hath only an Eſtate for life, albeit the Payments to be made be greater than the Rents of the Land. Otherwiſe it is in caſe the Sum of Money is to be paid preſently, and not appointed to be paid out of the Profits of the Land; in which caſe A. B. ſhould have a Fee-ſimple in the Land.mCoo. 6. 16. 3. 20. Broo. Eſtates. 38.
7. If the Father of A. be Tenant for life of Land, the Remainder to A. in Fee. And A. deviſe the Land to his Wife, Rendring for her natural life 5 l. to the right Heir of the Father of A. by this Deviſe the Wife of A. hath an Eſtate for life after the death of his Father.nDyer. 371.
8. Land was Deviſed to Husband and Wife, and after their deceaſe to their Children, they then having Iſſue a Son and a Daughter. In this caſe the Husband and Wife have but an Eſtate for Term of their lives, the Remainder to their Children for life, and no Eſtate Tail; for the intent of the Teſtator here ſhall be conſtrued according to the Rules of the Common Law; and by the Common Law the Husband and Wife have but an Eſtate for their lives, with a Remainder to their Children for their lives.oHill. 42. Eli. in B. R. Co. 6. part. 16, 17. Wilds caſe.
9. The Son Seiſed of a Remainder in Fee, after the death of his Father who was Tenant for life, deviſed the ſame by theſe Words, viz. I Deviſe to D. my Wife the Lands which I have, or may have in Reverſion, after the death of my Father, paying therefore yearly during her life, to the right Heirs of my Father 40 s. and dyed, his Father living: It was the Opinion of the Court, That no Eſtate paſſed by this Deviſe, but for Term of the life of the Wife, and that ſhe ſhould not pay the 40 s. until the Reverſion did fall after the death of the Father.pMic. 23. Eli. Dyer. 371.
10. A. Seiſed of divers Lands in A. B. and C. the Lands in C. being in him by Mortgage forfeited; Deviſed the Lands in A. and B. to ſeveral Perſons, and then adds this Clauſe in his Will: All the reſt of the Goods, Chattels, Leaſes, Eſtates, Mortgages, whereof he was poſſeſſed he deviſed to his Wife, after his Debts and Legacies paid; made his Wife his Executrix and dyed. The Wife entered into the Mortgaged Lands, and deviſed it to the Defendant and his Heirs, and dyed. The Queſtion was whether the Fee paſſed to the Wife by this Deviſe, by the Name of all his Eſtate, Mortgages, &c. It was the Opinion of the whole Court; That an Eſtate for life only paſſed unto her; and not a Fee by Implication of the general words in the Will.qTrin. 10. Car. in B. R. Wilkinſons & Merrylands caſe. Cro. 1. 323.
11. Note, That there is a difference, when one Deviſeth his Term for life, the Remainder over, and when a Man Deviſeth the Land, or his Leaſe or Farm, or the Occupation, or Uſe, or Profits of his Land: For in a Will the intent and meaning of the Deviſor is to be obſerved; and the Law makes conſtruction of the Words to anſwer and ſatisfie his intent, and puts them into ſuch order that his Will ſhall take effect. And when a Man deviſeth his Leaſe to one for life, it is as much as to ſay, He ſhall have ſo many Years in it as he ſhall live; and that if he dyeth within the Term, that another ſhall have it for the Reſidue of the Years: And although at the beginning it is uncertain how may Years he ſhall live; yet when he dyeth, it is certain how many Years he hath lived, and how many Years the other ſhall have; and ſo by a ſubſequent Act all is made certain.rCo. 8. part. 65. in Mannings caſe. Paſch. 5. Eliz. Moo. Rep. nu. 153.
A Man made his Will in this manner. [Item, I give my Mannor of Dale to my ſecond Son. Item, I give my Mannor of Sale to my ſaid Son and his Heirs] what Eſtate he had in the Mannor of Dale was the Queſtion. It was held by Dyer, Weſton and Welch, That in the firſt he had but an Eſtate for life; for that it is as much as to ſay; as if he would give his Mannor of Dale to him for his life; for that as much is included therein without ſaying [His Heirs.] And that [Item] ſeems a new Gift to a greater degree in the ſecond place to make amends for the other. Brown, e Contra, and that the [Item] is a Conjuntion Copulative, and that the word [Heirs] expreſſed in the latter Clauſe extends to both the Mannors. But if the Word [Heirs] were put in the Gift of the former Lands, it would be otherwiſe. Dyer; if in the firſt place or Clauſe there were not any perſon named, but that the words were [Item, I give the Mannor of D. Item, I give the Mannor of S. to I. K. and his Heirs,] there and in that Caſe it would refer to both the Mannors.Paſch. 17. Eli. Baker & Raymonds caſe. Anderſ. caſe. 251.
W. C. by his Will Deviſed a Meſſuage in theſe words, viz. I give to A. L. my Couſin the Fee-ſimple of my Houſe; and after her deceaſe to W. her Son. The Judges held, That A. L. had an Eſtate for life, and her Son a Fee-ſimple in Remainder. And ſo it was adjudged.
R. D. Seiſed in Fee of a Houſe, and Poſſeſs'd of Goods, made his Trin. 39. Eliz. Deacon verſ. Marſh. Moo. Rep. nu. 804.Will in theſe words, viz. The reſt of my Goods, Lands, and Moveables whatſoever, after my Debts, Legacies, and Funeralls paid, to my Three Children, I. T. and M. equally to be divided amongſt them. And it was Adjudged, That they have an Eſtate only for life in the Houſe, and are Tenants in Common, not Joynt-tenants.