The Orphans Legacy, Part 3 · Chapter 13
CHAP XIII. Law-Caſes touching Deviſes of Reverſions or Remainders.
1. What Deviſe of a Reverſion is good, and what Remainder may be Deviſed.
2. As the Limitation, ſo the Deviſe of a Remainder after a Fee; is void.
3. In what Caſe the Deviſe of a Remainder of a Chattel-real, may be void.
4. The Deviſe of a void Limitation, is a void Deviſe.
5. A Deviſe in Remainder of Goods, is void.
6. In what Caſe the Deviſe of a Remainder over in Fee, after Leaſe for Life made by Executors, is void.
7. The Difference between a Remainder Entail'd by Deviſe, and Entail'd by Deed.
8. A Remainder Deviſed to a Church, accrews to the Parſon of that Church.
9. A Refuſal in one to take by a Deviſe, ſhall not prejudice another in Reverſion or Remainder.
10. How the Deviſors Daughters Iſſue (without naming her) ſhall have the Deviſed Remainder before the Iſsue of his Sons.
11. A Termer of a 100. Years to come, Deviſeth it to one for Life, the Remainder over, it is a void Remainder.
12. A Deviſe of a Remainder in Fee after a Leaſe, which Deviſe is made by him in Remainder, is a void Deviſe, if the Leſſor Re-enter.
13. Several Caſes, wherein he in Remainder may Deviſe his Remainder.
14. Fee-ſimple Deviſed to one, the Remainder cannot be Deviſed to another, albeit the firſt Deviſe were but Conditional.
15. A Term of Years by way of Remainder is Deviſable; but a Deviſe by way of Entail with Remainder over, is void.
16. Leſſor may Deviſe the Reverſion of Land for Life, notwithſtanding a Feofment in Fee.
17. Remainder of a Rent-charge in Fee, may be Deviſed to one, where the Land, out of which the Rent doth ariſe, is Deviſed to another.
18. A Deviſe may be good for the Reverſion of a Term, where not for the Rent.
19. The Deviſe of a Remainder may be good, where yet an Eſtate Tail ſhall precede.
20. He in Remainder ſhall take preſently, where the Deviſee for Life is incapable of taking by Deviſe.
21. Though a Man cannot Deviſe to himſelf, yet he may Deviſe a Remainder to his own right Heirs.
22. A Man may Deviſe a Reverſion by the Name of all his Inheritance or Hereditaments.
23. Deviſes of Remainders to the next of Blood.
24. Where the Deviſe of a Remainder after the Remainder, makes the former Remainder but an Eſtate for Life.
1. IF a Man Deviſe his Land to B. C. for life, the Remainder to the next of Kin, or next of Blood of B. C. this is a good Deviſe of a Remainder. aFitzh. Deviſe. 27. Plow. 523. Perk. Sect. 509 510. Broo. Corporat. 55.Or if a Leſſor Diſſeiſeth his Leſſee for life, and makes a Leaſe for life to another for Term of life of the firſt Leſſee, the Remainder over in Fee; though the firſt Leſſee enters, yet he in the Remainder may Deviſe his Remainder.bDyer. in St. of Wills. 32. & 34. H 8. Sect. 8. §. 1.
2. If one Deviſe his Lands to A. ſo as he render 20 s. per annum to B. and if he fail thereof, then his Eſtate to ceaſe, and to remain to B. this Deviſe is good, but the Limitation of the Remainder is void, becauſe a Remainder cannot be limited after a Fee. cPaſch. 29. H. 8. Dyer. 33.Therefore if a Man makes a Leaſe for Years upon Condition, that if the Leſſor diſturb the Leſſee within the Term, that the Leſſee ſhall have the Fee, and maketh Livery accordingly, and after the Leſſor doth diſturb the Leſſee for Rent, where none is in arrear and after Deviſeth his Reverſion, this Deviſe is not good.dDyer. Readings in Stat. of Wills. Sect. 8. §. 4.
3. A Man poſſeſſed of a Term for 40. Years, Deviſed that his Eldeſt Daughter ſhould have the ſame to her, and the Heirs of her Body, the Remainder, if ſhe dyed without Iſſue Within the Term, to C. his ſecond Daughter in Tail. The Eldeſt Daughter took Husband, and dyed within the Term without Iſſue: Her Husband Sold the Term. It was the Opinion of the Court, That his Sale thereof was good, and that the younger Daughter had no Remedy for it, becauſe it was a void Remainder, being of a Term, which was a Chattel-real, and ſo is to go to the Huſband.eTrin. 28. H. 8. Dyer. 7.
4. A Leaſe was made to A. for 41. Years if he ſhould ſo long live, and if he dyed within the ſaid Term, that then his Wife ſhould have it for the Reſidue of the ſaid Years. It was held, That the limitation to the Wife in Remainder was void; for that the Term ended by the death of A. and then there was no Reſidue to remain to his Wife.f9. Eliz. Dyer 254. Plow. Com. 190.
5. A Man poſſeſſed of certain Goods, Deviſed them by his Will to his Wife for life, and after her deceaſe to I. S. and dyed: I. S. in the life time of the Wife, did Commence Suit in a Court of Equity, there to ſecure his Intereſt in Remainder. A Prohibition was granted in this Caſe; and the Reaſon was, becauſe a Deviſe in Remainder of Goods was void, and therefore no Remedy in Equity, for Equitas ſequitur Legem. It was agreed, That a Deviſe of the Uſe and Occupation of Lands, is a Deviſe of the Land it ſelf, but not ſo of Goods; for one may have the Occupation of them, and another the Intereſt in them.gTrin. 17. Car. in C. B. Marſh. 106.
6. Suppoſe a Man Deviſeth a Reverſion, depending upon an Eſtate for life, to the Parſon of D. and to his Succeſſors; if the Parſon die, and after a new Parſon be made, and the particular Tenant die alſo, the new Parſon ſhall have it. Alſo if a Man Deviſe Land to one for Term of life, the Remainder over in Fee, and the Deviſee for life refuſe, yet he in the Remainder may enter; but if the Will were, That the Executors ſhall make a Leaſe for life, the Remainder over in Fee, and they offer to make a Leaſe accordingly, and the Leſſee refuſeth, he in the Remainder ſhall not have the Remainder.hDyers Read. ubi ſup. Sect. 3. §. 2. & 9.
7. I. S. hath iſſue Two Sons, and dyeth; the Elder hath Iſſue a Daughter who hath Iſſue a Son, and dyeth. Land is given by Teſtament to one for life, the Remainder to the next Male of the Body of I. S. begotten; the ſecond Son of I. S. ſhall have the Land, and not the Son of the Daughter; It would be otherwiſe if the Remainder were ſo Entail'd by Deed.iDyer. Ibid. Sect 3. §. 12.
8. If Land be Deviſed to one for life, the Remainder to the Church of D. the Parſon of the ſaid Church ſhall have it. kIbid. §. 19. & 21. R. 2. Plowd. Com. 523.And 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.lDyer. Ibid. §. 24.
9. A Man Deviſeth his Land to his Daughter and Heir, being a Feme Covert, and to the Heirs of the Woman, the Reverſion over in Fee, and dyeth; the Husband refuſeth to take by the Deviſe, he in the Remainder entereth; he ſhall retain the Land during the lives of the Husband and Wife; but after their deceaſe he Iſſue of the Wife may enter upon him.mibid. §. 22.
10. A Man Seiſed of Land in Fee, hath Iſſue Two Sons and a Daughter; the Father Deviſeth the Land to his Wife for Term of life, the Remainder propinquioribus de ſanguine puerorum of the Deviſor; the Daughter hath Iſſue and dyeth; the Iſſue of the Daughter ſhall have this Remainder; and although that the Sons have Iſſue after, yet their Iſſue ſhall not have it.nIbid, §. 23.
11. A Man hath a Term of a Hundred Years to come, and he Deviſeth this to one for Term of life, the Remainder over to I. S. this is a void Remainder; it were otherwiſe if the Deviſe were, that the Deviſee ſhall have the Occupation of the Land during his life, the Remainder over.oIbid. Sect. 4. §. 10.
12. A Leaſe is made for life, the Remainder over in Fee, reſerving Rent by Indenture, and for default of Payment, that it ſhall be Lawful for the Leſſor to enter and detain during the life of the Leſſee; he Re-enters for the Rent Arrear; he in the Remainder Deviſeth the Remainder; ſuch Deviſe of the Remainder is voidpIbid. Sect. 8. §. 6.
13. If Land be given to Two Perſons, Habendum to the one for life, and after his deceaſe to the other in Fee; he that hath the Fee may Deviſe his Reverſion thereof. qIbid. §. 10.Likewiſe if Land be given to one for life, and that after his death it ſhall deſcend to I. S. in Fee, he may Deviſe this Remainder. rIbid. §. 12.Or if a Leaſe be made dummodo ſolverit 10 l. to the Leſſor for his life, he may Deviſe the Reverſion, with the Rent. Or if a Leaſe be made to an Infant or Feme-ſole for life, the Remainder in Fee, and the Infant at his full Age, or the Feme after Coverture diſagree; he in Remainder may Deviſe his Remainder.sIbid. §. 16. 18.
14. If the Fee-ſimple of Land be Deviſed to one, the Remainder cannot be Deviſed to another, albeit the firſt Deviſe be but Conditional. And therefore if a Man Deviſe his Land to A. B. in Fee, ſo that he pay 100 l. to C. D. And if he fail, that then it ſhall remain to G. D. and his Heirs; this Remainder to C. D. is void; for upon the Failure of Payment by A. B. the ſaid C. D. may not enter, and have the Land, but the Deviſors next Heir. Likewiſe if Land be Deviſed to F. G. and his Heirs, and if he die without Heirs, that then it ſhall remain to I. M. and his Heirs, this is a void remainder.
15. A Man may Deviſe a Term of Years by way of Remainder, and the firſt Deviſee cannot hinder the ſecond of the Remnant of the Term. tCo. 8. 9. 5. Plo. 519. 546. 516. 539. & Dyer. 277.But yet a Man poſſeſſed of a Term of Years cannot Entail it by his Will: And therefore if a Man Deviſe his Term to A. B. and his Heirs, or to him and the Heirs of his Body, or to him and his Iſſue, the Remainder to B. C. this Remainder is void, and the Deviſe is good for the whole Term of Years to A. B. and his Executors.uCo. 10. 87. 47. Paſch. 17. Jac. B. R. Child verſ. Baily.
16. A Man Seiſed of Two Acres in ſeveral Towns in one County (that is) of the one for life, and of the other in Fee; and maketh a Feofment by Deed of all his Lands in the ſame County, and makes Livery in the Acre in Fee in the name of both; the Leſſor (notwithſtanding this) may Deviſe the Reverſion of the Acre for life.wDyer. Read. in Stat. Wills. Sect. 8. §. 19.
17. If a Man grants a Rent-charge out of Lands deviſable to one for life, the Remainder over to the Grantor and his right Heirs, and after the Grantor Deviſe the Land to a Stranger in Fee and die, the Heir of the Deviſor may Deviſe the Remainder of the Rent in Fee.xIbid. §. 21.
18. A Leaſe for Term of 100. Years is made to a Biſhop and his Succeſſors; he maketh a Leaſe for life, Rendring Rent to him and his Succeſſors, and after he Deviſeth the Reverſion with the Rent in Fee; this is a good Deviſe for the Reverſion, but not for the Rent.yIbid. §. 26.
19. If a Man having Two Sons and a Daughter Deviſe his Land to his Wife for Seven Years, the Remainder to his Younger Son and his Heirs, and if either of the ſaid Two Sons die without Iſſue of their Bodies, the Remainder to the Daughter and her Heirs, and the Younger Son die in the life Time of the Father, and after the Father die; in this caſe and by this Deviſe the Daughter hath a good Remainder; but it ſeems the Elder Son hath firſt an Eſtate Tail by the Intent of the Deviſor.zDyer. 122.
20. If Land be Deviſed to A. for life, the Remainder to B. for life, the Remainder to I. S. in Fee, in this Caſe (if B. be a Perſon incapable of a Deviſe) then he in the Remainder in Fee ſhall take preſently after the firſt Eſtate for life ended. And if the Deviſe be to a Perſon incapable for life, the Remainder to I. S. in Fee, then ſhall I. S. take preſently.aPerk. Sect. 576. 567.
21. If a Man Deviſe his Land to two perſons by name, and the Heirs of either of their Two Bodies, and for default of ſuch Iſſue the Remainder to the right Heirs of the Deviſor; after the Deviſors death one of the ſaid Deviſees dies without Iſſue, the other Deviſee hath Iſſue and dyeth. In this Caſe and by this Deviſe the iſſue of ſuch ſurviving Deviſee ſhall have a Moity and no more of the Land.bDyer. 326.
22. A Leaſe is made to I. S. for the Term of the life of I. N. the Remainder to the ſame I. N. for Term of life of the ſaid I. S.—I. N. in Remainder releaſeth all his right to the ſaid I. S. and dyeth. In this Caſe the Leſſor may Deviſe the Reverſion. And if a Man who hath a Reverſion Deviſeth this Reverſion by the name of all his Inheritance or Hereditaments in D. it is a good Deviſe.cDyer. in St. Wills. Sect. 8. § 35. 36.
23. If a Man having Iſſue Three Sons, A. B. and C. doth Deviſe his Land to C. the Remainder to the next of Blood to the Teſtator: In this Caſe and by this Deviſe A. ſhall have the Land after the death of C. as the next of Blood. Likewiſe if a Man having Four Daughters, Deviſe his Land to the Youngeſt in Tail, the Remainder to the next of Blood; by this Deviſe the Eldeſt Daughter, and not all the reſt ſhall have the Land after the Eſtate Tail. Alſo if a Man hath Two Sons and a Daughter, who hath Two Daughters, Deviſe his Land to a Stranger for life, the Remainder to his ſecond Son for life, the Remainder in Fee to the next of Blood to his Son; in this Caſe if the Eldeſt Son die without Iſſue, the Daughter and her Daughters ſhall have the Land.dFitzh. Deviſe 9. Perk. Sect. 508.
24. If Land be Deviſed to A. for life, the Remainder to B. and the Heirs of his Body, the Remainder to C. D. and his Wife, and after to their Children; by this Deviſe C. D. and his Wife have Eſtates for their Lives only, and their Children after them Eſtates for their Lives Joyntly. And albeit they have no Children at the Time, yet every Child they ſhall have after may take by way of Remainder.eCo. ſup. Lit. 9. Broo. tit. Tail. 21. & Co. ſup. Lit. 20. 6. 16.
If one Deviſe his Land in this manner, viz. I give my Land to A. in Fee-ſimple, after his deceaſe to B. his Son, who is his Heir apparent. By this Deviſe A. hath an Eſtate for life firſt, the Remainder to his Son for his life, the Remainder to the Heir of A. in Fee-ſimple.fDyer. 357. Paſch. 44. Eliz. B. R. Pays caſe. Cro. par. 3.
One Deviſed his Land to I. S. from Michaelmas following for five Years, Remainder after the Plaintiff and his Heirs: He dyed before Michaelmas. The Queſtion was, Whether this were a good Remainder? Becauſe it could not enure inſtantly by his death; for it may not begin until the particular Eſtate, which was not to begin till after Michaelmas, and a Freehold cannot be in Expectancy. But all the Court held, That it very well might Expect; For in Caſe of a Deviſe, the Free-hold in the mean Time ſhall deſcend to the Heir, and veſt in him. Wherefore without Argument it was Adjudged accordingly, and that the Remainder was good.
If one Deviſe a Perſonal Chattel to one for life, the Remainder Mich. 5. Jac. B. per. Cur. Roll. Abr. tit. Dev. Co. 10. Lampet 47. b. Mich. 13. Jac. B. R. per Dodridge Roll. ibid.over to another, it is a void Remainder.
If a Man Deviſe a Term to one for life, the Remainder to another for life, with divers Remainders over: The Executors Conſent to the firſt Deviſee, will be a Conſent as to all the other Remainders. Or in Caſe a Man Deviſe a Term to one, and a Rent thence iſſuing to another, and dies, the Executors Conſent to the Deviſe of the Term, is an Aſſent alſo as to the Rent.
If an Eſtate be given to the Husband and Wife, and the Heirs of their Two Bodies, the Remainder to the right Heirs of the 27. Aſſ. 50. Curia. Roll. Abr. tit. Deviſe. lit. F.Husband, he may Deviſe that Remainder to his Wife.