The Orphans Legacy, Part 3 · Chapter 19
CHAP. XIX: Certain Caſes of Deviſes touching Lands and Chattels-real.
1. The difference in Power of Deviſing between him in Fee, and Tenant in Tail for Life.
2. What Ʋſes are Deviſable.
3. Money payable on a Mortgage is Deviſable, though Deviſed before the day of Payment.
4. Obligations or Chattels-real in right of a Wife, as Executrix or not, are not Deviſable by the Husband.
5. A void Preſentation is not Deviſable, in what kind an Advowſon in Fee may be.
6. Whether Leaſes and Rents may paſs under the Notion of Immoveables, as alſo Bonds and Specialties under the Notion of Moveables.
7. What ſhall paſs by a Deviſe of all Goods, Chattels, Moveables or Immoveables.
8. The difference between an univerſal Succeſſor, and a naked Executor or particular Legatary.
9. Deviſe made under Coverture may be good by new Publication of the Husbands death, otherwiſe not.
10. The ſame Law as to a Deviſe made by an Infant during Minority diſqualified.
11. Not full Payment Equivalent to no Payment.
12. A Perſonal Charge incumbent on a Legacy, is to be defrayed by the Executor, not the Legatary.
13. Equity in Election to be Regulated by the Teſtators Intention.
14. Circumſtances of a Deviſe not Reſtrictive, nor joyned to the Deviſe it ſelf, ought not to minorate the ſame.
15. A Deviſe ſhall be interpreted to the utmoſt Conſiſtency with the Deviſors words to the beſt advantage of the Deviſee.
16. Comprehenſive words ought not to be extended beyond what is Rational in Conſtruction of Law.
17. The Advantage of a Reſiduary-Legatary when others refuſe.
18. Diſcrepancy among the DD. touching a Legacy to the Poor.
19. Acceſſory Advantages to a Legatary between the making the Teſtament and the Teſtators death.
20. The Deviſe of a Thing not in rerum natura at the Teſtators death, is void.
21. The Teſtators Eſtimation of a Legacy doth not alter the Condition thereof.
22. The Executor may not exceed his Teſtators Eſtimate to a Legataries prejudice.
23. The Deviſe of a part, not expreſſing what part, implyes a Moity.
24. Conſtructions of Law to avoid uncertainty; and the Law touching Elections.
25. Where a Legacy is given Nomine poenae, and failure in the Executor, the Legatary may take either, but not both Legacy and Penalty.
26. Where there happen Two Elections in one Deviſe, the Legatary ſhall have the firſt, the Executor the ſecond.
27. The Law touching a Deviſe of a Houſe, where the Teſtator had none, or many, or burnt, or ruin'd, or pull'd down, or demoliſh'd, or re-edified.
28. In what Caſe a Mill joyning to a Houſe, ſhall paſs by a Deviſe of the Houſe, or not.
29. One Thing ought not to be Compriz'd under the Appellation of another, beſide the Teſtators Intention.
30. One Stable or one Kitchin to Two Houſes, ſhall paſs with that Deviſed Houſe, whereto they are moſt nigh, or moſt Contiguous.
31. The Law touching the Deviſe of a Houſe with all things therein.
32. The Difference between a Deviſe of a Chamber, and the Deviſe of a Shop.
33. The Deviſe of a Field carries alſo the Edifice erected thereon.
34. The Civil Law where the Fee of Land is Deviſed to one, and the Rents of the ſame Land to another.
35. in what Caſe an error or miſtake in the Teſtator may be a prejudice to the Legatee.
36. A Legacy or Deviſe may be inferr'd as well from the Teſtators Intention as Expreſſion.
37. A Deviſe by Reaſon of an Omiſſion of that whereof the Teſtator ſaid he would make a deſcription, is not void.
38. A Legacy to Two, whereof one is not, accrews in the whole to the other that is.
39. Further Exemplifications of Law touching Deviſe of Houſes, altered, burnt, and re-edified.
40. An Exception of a Thing which is not, is no prejudice to the Deviſee.
41. The ſame thing Conditionally twice Deviſed by two Teſtators to ſeveral Perſons, how or in what Caſe good to either or not.
42. By a Deviſe of ground doth paſs the Edifice thereon, albeit it were erected after the Deviſe made.
43. How a Deviſe is to be apportioned, where the Deviſees are joyned in the thing Deviſed, but disjoyned in the manner of Deviſing.
44. A Deviſe of Lands by a certain Name carries all of that Name, though otherwiſe diſtinct, unleſs the Teſtator intended otherwiſe.
45. Any words that do but plainly declare the Teſtators meaning, may ſerve for a Deviſe.
46. The Executor ſhall pay the Land-lords Rent for Ground in Leaſe, the Fruit or Proceed whereof is Deviſed to another for the Term.
47. A miſtake in the Teſtator only of the Scituation of the Lands Deviſed, ſhall not prejudice the Deviſe.
48. The difference between neceſſary and voluntary Alienations, prohibited to Deviſees by a Teſtator.
49, A Tripartite Caſe in point of Alienation prohibited by a Teſtator.
50. How the disjunctive [Or] in Legacies and Deviſes, is frequently underſtood for the conjunctive [And.]
WHere a Man is Seiſed of a Houſe in Fee, or of Land in Fee, and may deviſe ſuch Houſe or Land, in ſuch caſe may Deviſe the Doors, Windows, Wainſcot, or the like Incidents of the Houſe, alſo the Trees and Graſs growing upon ſuch Land. Otherwiſe it is with a Tenant in Tail for Life or Years in Houſes or Land.aCoo. 4. 63. Perk. Sect. 512 518. Coo. 11. Rich. Lifords caſe. Kelway 88. vid. l. caetera. l. ſi quis inquilinus. in prin. de Leg. 1. & Pereg. de fidei Commiſſ. art. u. nu. 105.
2 If a man hath an Uſe that is not Executed by the Stat. of Uſes, but remains at the Common Law, he may make a good Deviſe thereof. bPerk. Sect. 500.And therefore if one poſſeſſed of a Term of years, grant it over to another to the uſe of the Grantor, he may Diſpoſe this uſe by his Will, for it is in the Nature of a Chattel.
3. One that hath Money to be paid him on a Mortgage, may Deviſe this Money when it comes. If A. Enfeoffe B. of Land, upon Condition that if B. do not pay A. 100 l. ſuch a day, that then A. may Re-enter. In this caſe A. may Deviſe this 100 l. if it be paid; and the Legacy is good, albeit it be made before the day of Payment come.
4. A Man cannot Deviſc by his Will any Real Chattels that he hath only in right of his Wife; nor the Obligations that are made to her alone before or during the Coverture, nor the Chattels Real or Perſonal which ſhe hath in right only of another as Executrix. But all her own proper Goods and Chattels Perſonal, and all Obligations made to them both during Coverture he may Deviſe by Teſtament.cPerk. Sect. 560. & Dr. & Stud. cap. 7.
5. A Biſhop cannot by his Teſtament Deviſe the Preſentation of a Church that became void in his time, yet if he or the Parſon of a Church have the Advowſon thereof in Fee, and Deviſe that Two or Three of his Executors ſhall preſent at the next Avoidance, this is a good Deviſe.dTrin. 13. Jac. in B. R.
6. By a Deviſe of Immoveables (which are Chattels real) do paſs Leaſes, Rents and the like; and by a Bequeſt of Moveables (which are Chattels Perſonal) will paſs Bonds, and Specialties; but Debts paſs not by either of theſe Deviſes. eAgreed. Hil. 9. Car. in C. B.By Immoveables are underſtood not only the foreſaid Chattels-real, but alſo in ſome ſenſe Trees growing on the Ground, Fruit on the Trees, Terms of Years and the like; and by Moveables are Regularly underſtood all Goods both Actually Moving, and Paſſively Moveable.
7. If a Man Bequeath to A. B. all his Goods, he ſhall thereby have the Teſtators whole Eſtate (his Lands, Tenements) and Freehold excepted) and thereby the Debts and Money. fGloſſ. in l. his verb. ff. de haered. inſt. Bart. & Bald. ibid. & Stanf. Prerog. c. 16. & Tyraq. de retr. art. Lign. §. 1. gloſ. 7. nu. 18. & old. Conſ. 209.If he Bequeath to him all his Chattels, he ſhall have thereby all as in the former Caſe. If he Bequeath to him all his Moveables, he ſhall have all his Perſonal Goods, both quick and dead, and if he Beqneath to him all his Immoveables, he ſhall have all the Teſtators Leaſes, and all the Natural Fruits thereof, as Graſs on the Ground, Fruit on the Trees, and the like; conſequently Fiſhes in a Pond, Pidgeons in the Dovehouſe, &c. as Appurtenances to the Ground Deviſed, as well as the Natural Fruits, or Graſs growing on the ſamegKelway. Rep. ſo. 118.
8. If a Man Deviſe all his Goods and Chattels to A. B. and die, and A. B. die alſo before he hath proved the Teſtators Will; in this Caſe the Adminiſtration of the Goods and Chattels of the ſaid Teſtator ſhall be committed to the next of Kin of the ſaid A. B. and not to the next of Kin of the ſaid Teſtator, becauſe in this Caſe A. B. was the univerſal Succeſſor.hDyer. 371. nu. 8.
9. If a Woman under Coverture Deviſe her Land, then publiſh and approve it after her her Husbands death, when ſhe is ſole; by this means that Deviſe which was Originally void, is now become good: But if ſhe make and publiſh it during the Coverture, albeit her Husband doth afterward die, and ſhe become ſole; yet this accident alone, without a new publication after her Husbands death, will not make that Deviſe good. The Law is the ſame as to Goods and Chattels.iPlow. 344.
10. In like Manner if an Infant within Age as to Lands, or within Age as to Goods, Deviſe the one or Bequeath the other, and publiſh the Will; and after he come to full and competent Age publiſh and Approve it again: By this means the Deviſe or Legacy becomes good; otherwiſe it is, in Caſe he do not Publiſh and Approve it when he attains to Full and Competent Age.kPlow. ibid.
11. Suppoſe the Teſtator doth Deviſe in this manner, viz. I Will that my Executor ſhall pay 100 l. to A. B. by the Tenth day of March next after my deceaſe; and if otherwiſe, then my Will is, That my Executor ſhall Surrender to him all the Right I have in a Leaſe of my Ground called Black-acre; and dies. The Executor doth not pay to A. B. above 90 l. by the day Appointed. In this Caſe A. B. reſtoring the ſaid 90 l. to the Executor ſhall have the ſaid Ground; and he may detain the Money till he recover the Land.lGalgan & de. Condit. in pt. 2. cap. 5. q. 15.
12. Suppoſe the Teſtator doth Deviſe the Fruits of an Orchard or other Lands, which at a Rent certain he hath taken to Farm for Seven Years; who ſhall pay the ſaid Rent, the Executor or the Legatary? It is Anſwered, That the Executor ſhall pay it, becauſe it is a Perſonal Charge. ml. qui concubinam §. qui hortos. de Legat. 3. & Pinell. ad leg. 1. De. Bon. mat, par. 2. nu. 72 & de Praetis. lib. 4. int. 1. dub. 3. nu. 14.Or if he Deviſe certain Lands which he had lately bought, but the whole purchaſe-money not paid at the Teſtators death; the Executor, and not the Deviſee is lyable for the ſame: nCharond. Resp. lib. 4. cap. 50.But the Deviſe ſhall not take effect till the ſame be paid, if there be no other Aſſets wherewith to pay it.
13. A Man poſſeſſed of Three Fields, whereof Two called Ruſhcrofts, the one being of much better value then the other, the third called Longlands, doth Deviſe one of his Ruſhcrofts or Longlands, which he will, to A. B. and dies. In this caſe A. B. hath his Election, whether he will have one of the Ruſhcrofts or Longlands; but if he chuſes one of the Ruſhcrofts, it ſhall be that which is neareſt in value to Longlands.ol. 1. de. Reb. Dub. & l. ult. De tritico, vino, & oleo leg.
14. A Man made his Will, and therein Deviſed to A. B. all the Lands which he had in the Tenure or Occupation of his Tenant C. D. Conſiſting of Meadow, Paſture, and Arrable Grounds, Scituate about the Farm-houſe of the ſaid C. D. and dies. The Queſtion was, Whether other Paſture and Arable Grounds belonging to the Teſtator, in the Tenure or Occupation of the ſaid C. D. and by him Rented of the ſaid A. B. (but not Scituate as aforeſaid) were to be Comprized within this Deviſe. In this Caſe it was Reſolved in the Affirmitive, The Reaſon is, becauſe the quality or Circumſtance of the Place or Scituation is not here joyned with the Deviſe for any Reſtrictions ſake, but only by way of Demonſtration.pSurdi. Deciſ. 241.
15. A Man bought certain Lands of A. B. with a Clauſe or Covenant of Redemption within a certain Time, in the Nature of a Mortgage. The Time of Redemption being Elapſed, the Purchaſer made his Will, and therein ordered, That his Executor ſhould Reſtore the ſaid Lands to A. B. paying what Coſts and Charges the Teſtator had been at, and Expended about the ſaid Lands. The Queſtion was, Whether the Mortgagor or Vendor, now the Legatary or Deviſee were in this Caſe obliged to pay the Redemption-money over and above the ſaid Coſts and Charges which the Teſtator had Expended about the Lands as aforeſaid. In this Caſe it is Reſolved in the Negative, viz. That the Deviſee ſhall have the Land paying only the ſaid Charges, and without paying the Redemption-money.ql. quibus §. 1. de Cond. & Dem. & Pap. Notar. 1. tit. de legat. verſ. eſt pertinente.
16. A. B. by his laſt Will and Teſtament makes his Two Sons C, D. and D. B. the Joynt-Executors of all his Eſtate, and dies. C. B. for a certain Sum of Money Sells his Part or Intereſt in the ſaid Eſtate unto D. B. his Brother. After D. B. makes his will, and therein Deviſes to the ſaid C. B. all his Intereſt in the ſaid Eſtate by his Father, and dies. The Queſton was, Whether C. B. by that Deviſe ſhould have all the ſaid Eſtate whereof the Two Brothers were made Joynt-Executors by their Father, or only ſo much thereof as accrewed to D. B. by vertue of his Co-executorſhip. In this Caſe the D. D. are ſomewhat divided, but the prevailing Opinion is, That C. B. by this Deviſe ſhall have no more then accrewed to D. B. by virtue of his Co-executorſhip; becauſe the other part of the Eſtate was his by Purchaſe, and not by being Executor to his Father; and the Property being altered by the Sale, it ceaſed to be the Fathers Eſtate, or any Eſtate to D. B. by the Father, and became his own proper Eſtate by Purchaſe. rDecij Conſil. 69. & Molin. ibid.But the Queſtion is put a little further, as whether the ſaid Deviſe ſhall be made good as the ſaid part was when the Father dyed, or as it was at the time of D. B. the Teſtators death. In this it is Agreed, That the ſaid Deviſe ſhall be conſidered only as the Eſtate was at the Time of the death of the Deviſor D. B. and not as it was at the Time of the death of his Father.sMolin. add. Couſil. 69.
17. A. B. being poſſeſſed of ſeveral Houſes by Leaſe doth Deviſe Two of them in his laſt will and Teſtament unto C. D. ſuch as he ſhall chuſe; or Two of them to C. D. which he will, the reſt to I. G. In this Caſe if C. D. refuſe to take by this Deviſe, and will chuſe neither of the ſaid Houſes, I. G. ſhall have them all.tl. cum. optio. de option. Leg.
18. A. B. makes his Will, and thereof C. D. his Son the ſole Executor; in which Will he appoints, that a Fourth part of his Eſtate ſhall be given to the Poor in Caſe C. B. die without Iſſue. C. B. Survives the Teſtator, hath a Son, makes his Will, and therein Ordains, That if his Son ſhould happen to die Inteſtate and without Iſſue, that then the Contents of A. B. his Fathers Will ſhould be performed, and dies, leaving Iſſue a Son: After the ſaid Son of C. B. dies Inteſtate and without Iſſue. In this Caſe. In this Caſe ſome are of Opinion, That the ſaid Fourth part of A. B. the firſt Teſtators Eſtate is not due to the Poor, becauſe that general diſpoſal which C. B. made in his Will, ought to be underſtood only of ſuch Things as might be claimed by the firſt Will, and which could be due only by the ſame.uAlex. Conſ. lib. 6. Conſ. 81. & ibid. Molin.
Others conceive, That it is due to them, in Caſe there were no other Legacies contained in the Will of A. B. which his Son C. B. was to ſee performed and diſcharged.
19. If a Man doth Deviſe Land whereon is no Houſe at the Time when the Teſtament was made, but One is built thereon before the Teſtator dies; in this Caſe the Houſe as well as the Land ſhall paſs by this Deviſe. wl. ſi ex toto. §. ſi ariae. De Legat. 1. & l. ſi ariae. De Leg. 2. & Gomez. Reſol. Tom. 1. cap. 12. nu. 16.Likewiſe if a Teſtator Deviſe a Bond or Debt, owving to him by ſome Goldſmith or Banker, the principal whereof hath produced an encreaſe by the Intereſt thereof ſince the time of making the Deviſe. In this Caſe by the Civil Law the Legatary ſhall have ſuch Intereſt in the Bankers Hands, as well as the Principal, which accrewed by vertue of the Principal during the Teſtators life, after the making of the Teſtament; xl. ult. §. Cai. De Liberat. l. nom. de Leg 3. De Praetis. lib. 4. int. 1. dub. 4. nu. 12 &. dub. 7. nu. 65. & Alex. lib. 7. conſ. 25. cum multis alijs.which by that Law holds true in all Credits producing an Intereſt or Acceſſory profit; yet it is otherwiſe even by that Law as to annual Rents payable out of Land, for therein the Civil doth agree with the Common Law, That the Arrears of ſuch Rents behind at the Teſtators ſhall go to the Executor, and not to the Legatary, to whom the Land is Deviſed.yl. quaeſitum. §. ſi mihi. De legat. 1. & Pere. art. 48. nu. 10.
20. If the Legacy be not in being, in rerum natura, at the Time of the Teſtators death, then neither the Thing bequeathed, nor the value thereof, is due to the Legatary; but if the Thing Deviſed is only by any Impediment obſtructed from being delivered in kind, then the Deviſee ſhall recover the true value thereof.zAngel. Mat. lib. 1. cap. 19. de Legat.
21. If a Teſtator Deviſe in theſe words, viz. I give unto A. B. my Land called Blackdown, which I value at 100 l. this eſtimation thereof by the Teſtator ſhall not alter the Condition of the Legacy, as if thereby the Executor paying 100 l. to A. B. he ſhall be barr'd from having the Land in Caſe it be more worth. aMantic. lib. 9. tit. 8. num. 2.On the other ſide, if the Land be leſs worth then 100 l. the Executor is not obliged to ſupply that undervalue; nor if it be more worth, may he retain the overplus. bRanch. Deciſ. pt. 1. Concl. 335 & mantic. lib, 9. tit. 1. nu. 25.Or if the Teſtator ſay, I give to A. B. my ſaid Land, and my Will is, That if it be worth leſs than 200 l. that then my Executor ſhall make it up ſo much worth to him. In this Caſe if happily the ſaid Land be found to be more worth, the Deviſee is not obliged to reſtore the overplus-value.cRanch. pt. 1. Concl. 314. & de Praelis. lib. 4. int. 1. Dub. 5. nu. 17.
22. If a Teſtator doth appoint, that his Executor ſhall Sell ſuch Lands to A. B. at a Price certain, limited by the Teſtator; the Executor muſt abide by that Price which is ſo limited by the Teſtator, though the Land be much more worth. dRanchin. d. concl. 335.Likewiſe if a Teſtator doth by way of Condition to a Legacy enjoyn the Legatary to do ſome ſpecial Thing; as the Repairing of a Church, or the like; which being finiſhed, the Reparations exceed the value of the Legacy; In this Caſe none but the Legatary ſhall bear that overplus of Expence in the ſaid Reparations. eDe Praetis. li. 4. int. 3. dub. 3. nu. 29.And if an Executor be Appointed to give me ſuch Lands or 100 l. In this Caſe if he doth not deliver me the Land, I muſt have the 100 l. be the Land more or leſs worth.fMant. d. tit. 8. nu. 2.
23. If a Teſtator Deviſe part of his Lands called Watermead to A. B. not expreſſing what part, the Deviſe ſhall not be void by reaſon of uncertainty, but A. B. ſhall have the one Moiety thereof; And if the Teſtator himſelf had but a Moiety therein, or other leſſer part, the Deviſee ſhall have the one half of what the Teſtator had therein. gRebuff. ad l. nomen. §. Portionis. de verb. Sig.But if the Teſtator ſaith, I give to A. B. that part of the Houſe which I inhabited, or was wont to make uſe of for my habitation; if it be uncertain and cannot well appear which part of the Houſe that was, A. B. ſhall have the whole houſe, ſo as no other than the Teſtator did inhabit or uſed to dwell therein.hRebuff. ibid.
24. A man having ſeveral Houſes in the City where he lives, and others in other places, ſaith in his Will, I give one of my Houſes to A. B. In this caſe A. B. ſhall not be excluded his Legacy by reaſon of uncertainty, but ſhall have one of the Houſes ſcituate where the Teſtator lived, iGraſs. § legatum. q. 62.or if he ſaith, I will that A. B. ſhall have one of my Houſes, he ſhall chuſe which he will have: But if the Teſtator ſay, I will that my Executor give one of my Houſes to A. B. In that caſe the Executor hath the election to give him which he pleaſe. kl. plane. §. pen. de Legat. 1. & l. 19. 23. l. ſi ita. §. ult. de Legat. 2.And in caſe the Legatary having the election, makes more than neceſſary delays in determining his election, the Ordinary at the inſtance of the Executor, may fix him a time within which he ſhall finiſh the ſame, in default whereof he may Decree the election to the Executor. lFran. Grimander. lib. 1. cap. 16. De uſus l. mancipiorum. l. ſi Optio. de Option. Legat.But if by the Teſtators Will the election be neither in the Executor, nor in the Legatary, but in a third perſon, In ſuch caſe that third perſon is to make the choice within one year next after he ſhall be thereunto required, otherwiſe the election devolves to the Legatary, whoſe choice in ſuch caſe is not to exceed the Rule of Mediocrity. ml. ult. C. Commun. de Legat. & De Praetis. int. 1. dub. 3. ſol. 4. infin.And if the Legatary happen to dye before ſuch election made by him, his Executor ſhall have it.nRanch. Deciſ. par. 1. concl. 387. & Guid. Pap. q. 214. charond. Reſp. l. 7. c. 95.
25. If a Teſtator doth by his Will appoint, That his Executor ſhall within a certain time deliver into the right and poſſeſſion of A. B. ſuch or ſuch Lands by name, under the penalty of 100 l. In this caſe, if A. B. (the time being elapſed, and the Land not delivered) ſhall accept the penalty, he may recover the 100 l. but not the Land; But if he accept not the penalty, he may recover the Land, not the 100 l.oGalgan. part. 2. cap. 5. q …. De Conditionis.
26. If a Teſtator in his laſt Will and Teſtament doth Deviſe in this manner; viz. I give unto A. B. one of my Meadows; or one of my Houſes. In this caſe the firſt choice is in the Legatary, whether he will have one of the Houſes, or one of the Meadows; But then the ſecond election is in the Executor; that if the Legatary chuſe a Houſe, the Executor ſhall appoint him which he ſhall have.pPapon. Notar. 1. lib. 10. tit. de Leg. verſ. cela. pag. 710.
27. If the Teſtator Deviſe a Houſe; not expreſſing what Houſe; it is a uoid Deviſe, if he had no Houſe; but if he had ſeveral Houſes, it ſhall be preſumed to be that Houſe wherein he uſually dwelt, if his intention appears not to the contrary. qMenoch. de Preſum. lib. 4. Praeſ. 129.And if the Houſe Deviſed, afterwards happen to be burned, the ground whereon it ſtood is due and belongs to the Deviſee. rMantic. li. 9. tit. 2. nu. 35.But if it were pull'd down by the Teſtator himſelf, and not re-edified, it is otherwiſe; sl. ſi ita legatum. §. ult. de Leg. 1.for that implies a revocation of his mind and will. But if a Houſe Deviſed happen to fall in the life-time of the Teſtator, the Legatary ſhall have the ground whereon it ſtood.tl. qui uſusf. De uſusfr.
28. Suppoſe there be a Mill joyning to the Houſe which is Deviſed, or it be erected at the end of the Wall of the Houſe, or Scituate at the end of the Orchard belonging to the Houſe; the Queſtion is, whether it ſhall paſs to the Legatary with the Deviſe of the ſaid Houſe? In this caſe if the Mill was built by reaſon of the Houſe, and to Grind for the uſe of the Family thereof, it ſhall then paſs with the Houſe in the Deviſe thereof; Otherwiſe, if it were built to produce an Annual Rent, or to Grind for any Strangers whatever, unleſs it ſtand upon part of the ground of the very principal Manſion houſe, and within the Precincts of the ſame.uMolinae. gloſ. 5. nu. 5.
29. Suppoſe a man doth purchaſe certain Tenements of A. B. and other certain Tenements of C. D. with one and the ſame price, and with the ſame Sum of Money, and after doth Deviſe A. B's Tenements in theſe words, viz. I do give and Deviſe A. B's Tenements as I bought them, unto J. G. The Queſtion is, whether C. D's Tenements do alſo paſs by that Deviſe? It is Reſolved in the Negative, unleſs it doth appear by ſufficient proofs that the Teſtators intention was to compriſe the one under the Appellation of the other, or unleſs the Teſtator uſed promiſcuouſly to receive and place to Accompt the Rents of both in the name only of A. B's Tenements.wl. Praediis. De Legat. 3. in §. Titio.
30. If a man having two Dwelling-houſes joyning together, which have but one Kitchin, or but one Stable in common to them both, Deviſe one of theſe Houſes; the Kitchin and the Stable ſhall paſs with that Houſe they joyn nigheſt unto, and through which the paſſage commonly is unto them, or which if demoliſh'd the Kitchin or the Stable could not remain uſeful.xAlex. lib. 3. Conſil. 54.
31. If a Houſe Deviſed with all the things in it, It is to be underſtood only of thoſe things that werein it when the Teſtament was made, and not of thoſe things which the Teſtator brought into it afterwards; likewiſe if a Houſe be Deviſed with all the things which ſhall be found in it when the Teſtator dyes, it is not to be underſtood of ſuch things as were brought into the Houſe without the privity or knowledge of the Teſtator, or which were caſually and by chance brought into it; Contrariwiſe, ſuch things as were caſually carried out of the Houſe, ſhall not be excluded out of the ſaid Legacy or Deviſe; yl. ſi ita legagatum. De Legat. 3 & Mant. lib. 12. tit. 2. nu. 46.nor any moveable Goods in the Houſe which are not momentaneous, but ever remaining there as of Domeſtick uſe; For which reaſon Debts upon Bills or Bonds, Money, and Wares deſigned for Merchandize, and the like, are not within the ſaid Deviſe of a Houſe with all things in it.zl. quaeſitum. §. Papinianus. de inſtrum. Leg. & l. de Leg. 3. & mantic. ubi ſupra. Ranchin. Deciſ. part. 3. Concl. 280. Ang. Mathaeac. lib. 2. c. 17. nu. 24. de Leg.
32. If a man Deviſe his Chamber, he is to be underſtood rather to have Deviſed the things belonging to the Chamber, than the Place. aMantic. li. 9. tit. 2. nu. 49. & De Praetis. lib. 4. int. 1. dub. 7. nu. 19. pag. 301.But if a man Deviſe his Drapers-Shop, he is to be underſtood to have Deviſed rather the Place than the Wares therein, For that the word [Drapers] ſerves only by way of Demonſtration to to ſhew what ſhop he meant; Otherwiſe, if he ſay, I Deviſe, my Shop and Cloth; in that caſe it ſhall be underſtood the Cloth in the Shop.bMant. d. tit. 2. nu. 52.
33. If a man Deviſe a certain Field wherein any Edifice or Building doth ſtand, that Building doth paſs by ſuch Deviſe of the Field, if not expreſly excepted in the Deviſe; cl. Si ita. infin. De fundo inſtruct. Leg. chopinus lib. 2. cap. 3. de Privil. Ruſt.yea, albeit the Edifice were Erected after the Teſtament was made; but if the Field be Deviſed (excepting the Edifice thereon) the ground, in caſe the Building ſhould be demoliſhed, is likewiſe excepted out of ſuch Deviſe.dMantic. d. tit. 2. nu. 23.
34. If a man ſhould Deviſe the Fee of certain Lands to one, and the Rents, Profits, and Iſſuers of the ſame Land to another, and both in the ſame Will; In this caſe by the Civil Law the Rents thereof are equally to be divided between the two Legataries.e§. 1. Inſt. de uſuſr. & l. ſi proprietas. De uſuſr. adcreſcend.
35. Suppoſe a man in his laſt Will and Teſtament ſaith, I give unto my Wife the Tenement and 700 l. which I had with her in Marriage, when as in truth he had but 600 l. with her beſide the Tenement; In this caſe ſhe ſhall have 700 l. with the Tenement, fMenoch. de Praeſ. lib. 4. Praeſump. 145.unleſs it can be ſufficiently proved that the Teſtator did think or conceive that he had had 700 l. with her; in which caſe there is only 600 l. and the Tenement due to her by the ſaid Legacy or Deviſe.gSurd. Deciſ, 142.
36. A Legacy or Deviſe may be inferr'd from the mind and intention as well as from the Expreſs words of the Teſtator. As thus, A. B. conſtitutes his two Sons his Executors, and in his Will ſayes, That they ſhall not in any caſe Alien the Leaſes and Rents, which out of his Eſtate are about to come to them, but ſhall preſerve them for Succeſſion, viz. of their Children, and ordered it ſo, that he made his two Sons enter into Recognizance to obſerve his ſaid Injunction accordingly, and dyes. The Succeſſors of the ſaid Sons claim and demand the ſaid Rents and Leaſes by vertue of the ſaid Deviſe. They cannot De jure, but after the deceaſe of both the ſaid Sons, it ſhall come to their ſaid Succeſſors, not before.hgloſs. in §. pater filios. l. pater filium. De Legat. 3.
37. The omiſſion of the quality or deſcription of a Deviſe in a Will, albeit the Teſtator therein ſaid he would inſert the ſame, doth not viciate or null the Deviſe. Therefore if a man Deviſe certain Lands and Tenements with their Appurtenancee, ſcituate nigh a Town, to the Corporation thereof; and in his Will ſaith [Which Lands and Tenements with their Appurtenances, I ſhall after in this my Will deſcribe, and ſet forth the juſt bounds and Limits thereof; as alſo what I would have the ſaid Corporation Annually to do in remembrance of me, for and in conſideration of this my Deviſe] But being by death prevented, doth neither of theſe; the ſaid Deviſe is notwithſtanding good.il. cum pater. §. vicos. in gloſs. ibid. De Legat. 2.
38. If Land be Deviſed to A. B. and C. D. when A. B. is not in rerum natura, C. D. ſhall have the whole.kgloſs. in l. Si quis legaverit de Legat. 1.
39. A Teſtor doth Deviſe certain Houſes to A. B. after the death of his Executor, and dyes; the Houſes happen to be burnt, living the Executor, and by him Re-edifyed, the Executor dyes. In this Caſe the Executors Executor is obliged to ſurrender the Houſes to A. B. but he may deduct the charges of Rebuilding them, if they were not burnt by any default of the firſt Executor; otherwiſe not. lgloſs. in l. Domus. de Legat. 1.But if they were burnt in the Teſtators life time, and by him Rebuilt, or others erected in the ſame place; In this caſe the Deviſe is void, unleſs it appears that the Teſtators mind was otherwiſe. ml. ſi ita Legatum. §. ſi Domus. de Leg. 1.But if they were only mended, altered, and repaired ſo often that there remains now nothing of them at the Teſtators death as when the Teſtament was made, In ſuch caſe the Deviſe is good. nIbîd. & Bart. in d. Leg.The Law is the ſame in caſe of a Ship or other Veſſel ſo often Repaired, that little or nothing thereof now remains at the Teſtators death, which was at the time of making the Teſtament.
40. A. B. Poſſeſſed of certain Lands called the Millfields, in one corner whereof ſtood a Little Vineyard, made his Will, and therein Deviſed in this manner, viz. I give unto I. G. my Lands called the Millfields, excepting the Vines which ſhall be therein at the time of my Deceaſe. A. B. after the making of the ſaid Teſtament, and before his death did cut down the Vines which were in the corner of the ſaid ground, and dyes. The Queſtion is, whether the corner of the ſaid ground where the Vineyard ſtood ſhall paſs by this Deviſe? It is held in the Affirmative, ol. ſi quis legaverit. de Leg. 1. & gloſs. ibid.grounded upon that Rule in Law, Exceptio rei quae non reperitur, nihil importat.pBar. indict. l.
41. A. B. By his laſt Will and Teſtament doth Deviſe a certain Houſe to C. D. in caſe his Ship returns within a year ſafe home from the Straights, makes his Executor, and dyes. The Executor doth Deviſe the ſame Houſe to J. G. under another Condition. Depending that other Condition the ſaid year expires, and the Ship not return'd from the Straights; whereby the firſt Condition of the Deviſe to C. D. fails, In this caſe the Deviſe made by the Executor under that other Condition, if performed, is good; otherwiſe it would be, in caſe the former Condition had been accompliſhed; in which caſe the Deviſe made by the Executor would have been void.qgloſs. in l. ſi ſundam. §. cum ſtatu lib. De Legat. 1.
42. If a man Deviſe a certain parcel of ground, and after Erect an Edifice thereon, the Building or Superſtructure as well as the ground doth paſs by that Deviſe, and the Deviſee ſhall have them both; rl. ſi areae. de Legat. 2. & Bart. in dict. L. ſuperficies ſequitur ſolum. gloſs. min. lit. a. in l. ſi tibi homo. de Legat. 1.becauſe the Rule in Law is, Quod aedificatur in area Legata, cedit Legato. As we uſe to ſay, Cujus eſt ſolum ejus eſt uſque ad coelum.
43. Suppoſe the Teſtator doth Deviſe one half of his Lands in Dale to A. B. and doth Deviſe the ſame half part of the ſame Lands to C. D. and doth Deviſe all his Lands in Dale to J. G. and ſo joyns them all in the thing, and disjoyns them in and by the words. In this caſe J. G. ought to have one Moiety of the Lands; A. B. and C. D, the other Moiety. After C. D. dyes before the day of performance of the Deviſe, by which means his part accrews to his Collegataries by way of Accreſſion, (or as we ſay by way of Survivorſhip) and not to his Heir nor Executor: Therefore as J. G. had more in the Deviſe than A. B. ſo now he hath more than A. B. in that part of C. D.sgloſs. in l. Maevio. de Legat. 2.
44. A. B. Poſſeſſed of divers Lands and Tenements, among which were certain Lands called Lillyſtones, and ſo called time out of mind; but in regard of its great Extent, he did for the better and more Commodious Letting it to Farm, divide it into two parts, and called the one the Ʋpper Lillyſtones, the other the Lower Lillyſtones. A. B. makes his Will, and therein gives divers Lands and Tenements to his Niece, among which he gives Lillyſtones, not ſaying whether the Upper or the Lower Lillyſtones. The Queſtion is, whether his Niece ſhall have all the ſaid Lillyſtones, or onelyonly one of the ſaid divided parts thereof? It is Reſolved, ſhe ſhall have the whole, unleſs the Executor of A. B. can prove the Teſtator intended her only one part thereof.tl. Gaius Sejus. & gloſs. ibid. de Leg. 2.
45. A Teſtator makes his Son Executor, and in his Will ſaith, Let my Hop-yard at the lower end of my Orchard, and my Ground in the Pariſh of D. ſuffice my Coſin A. B. It is a good Deviſe of the Ground and Hop-yard, to A. B. So likewiſe, if he had only ſaid, let my Coſin A. B. be contented with the ſaid Ground and Hop-yard, or with my Houſe ſcituate in, &c. ugloſs. in l. fidei commiſſa. de Legat. 3.Note that in this caſe the perſon of the Deviſee muſt not only (as in all other Legacies) be certain, but alſo the Land Deviſed muſt by the Deſcription of its ſcituation be reduced to an infallible certainty; otherwiſe the Deviſe will be void.wgloſs. min. ibid. lit. t. verb. fundus.
46. A. B. Rents certain Orchards at 20 l. per ann. for the term of Seven years, makes his Will, therein gives the Fruit thereof for the reſidue of the term yet to come and unexpired unto C. D. & orders his Executor to deliver him the Leaſe, & to ſuffer him to enjoy the Fruits of the ſaid Orchards for & during the term aforeſaid. In this caſe the Teſtators Executor ſhall pay the ſaid Rent, and ſuffer C. D. to enjoy the Fruits thereof; otherwiſe the Legacy might be nothing worth; or if Fruit fail worſe than nothing.xl. qui quatuor. & gloſs. ibid. de Leggat. 3.
47. An Erroneous demonſtration by a Teſtator of the ſcituation of Lands Deviſed by him, ſhall not prejudice the Deviſe. As thus, The Teſtator in his Will ſaith, I Deviſe my Lands of Cammerweli which are in Ireland unto my two Nephews A. B. and C. D. Alſo my Lands of Kirkaven which are in Scotland, and dyes. After the Teſtators death there are found certain Lands which belonged to him called Kirkaven, but they are not in Scotland; The Queſtion is, whether thoſe Lands in the deſcription of whoſe ſcituation the Teſtator was miſtaken, do belong to the Deviſees? It is anſwered in the Affirmative, if it appear the Teſtator had any thoughts of Deviſing them at all.yl. patronus. §. libertis. & gloſs. ibid. de Legat. 3.
48. A Teſtator makes his Son Executor, and in his Will Prohibits him from alienating or Mortgaging the Eſtate or any part thereof, whereto he is entitled by ſuch Executorſhip, commanding him to preſerve the ſame for his Children lawfully begotten, and dyes. The Son for 100 l. doth Mortgage or ſell outright to A. B. ſuch certain Tentments of the ſaid Eſtate as his Father the Teſtator left at his death in Mortgage to C. D. for 100 l. and with the Proceed thereof pays off the ſaid 100 l. to C. D. to whom his Father in his life time had Mortgaged the ſame. The Queſtion is, whether the Sons Obligation or Alienation thereof to A. B. contrary to the Teſtators expreſs command, be good in Law? It ſeems not, becauſe of the Teſtators Prohibition fortified with a Reaſon, That he would have it left to his Children lawfully begotten; but the Law is otherwiſe, and ratifies the Sons Obligation or Alienation thereof to A. B. Becauſe it was a neceſſary expedient, and not of his voluntary choice; the Law touching ſuch Prohibitions extending only to voluntary, not to neceſſary Alienations.zl. Pater filium. & gloſs. ibid. de Leg. 3.
49. A. B. makes his Will, and therein Deviſes certain Lands and Tenements to his five Sons by Name, under this Proviſo or Condition, That if either of them Alienated his part thereof to a Stranger, that then that part ſo Alienated contrary to his Will, ſhould be and enure to the Crown for ever, and dyes. After Two of the Sons ſell their parts to One of the other Three their Collegatories and dye. He after makes A. B. a ſtranger his Executor, gives him the ſaid Two purchaſed parts, and dyes. The Queſtion is, whether the ſaid Two parts belong to A. B. or to the ſurviving Collegataries that did not Alienate, or to the Crown? It is Reſolved, that they belong to A. B. and not to the Collegataries, nor to the Crown; Not to the Collegataries, becauſe the perſon of A. B. the ſtranger is not here to be conſidered, but the perſon of the Purchaſer who Deviſed it to him, who according to the Teſtators mind was one of thoſe to whom the Teſtator permitted or tacitely implyed a Sale might be made; And it is only they, not others, that are prohibited to ſell their own parts; and therefore the parts which they purchaſe, are not, as thoſe which they hold immediately from the Teſtator, prohibited by the expreſs command or tacite intent of the Deceaſed, to be alienated to ſtrangers. Nor to the Crown, becauſe the Condition of the Deviſe, viz. Alienation contrary to the Teſtators meaning (without which the Crown is not entitled thereto) is not exiſtent? for that the parts meant by the Teſtator, were ſold to their Collegatary, and not to a Stranger, to whom indeed they were afterwards Deviſed, but not in derogation to the Teſtators ſenſe and meaning, becauſe not the perſon of the Stranger, Executor to the Purchaſer, (as aforeſaid) but the perſon of the Purchaſer himſelf is chiefly to be conſidered.aDict. L. §. quindecem. & gloſs. ibid. de Legat. 3.
50. Note, That in a Bequeſt of Legacies, the word [or] is not much a Note of Disjunction, as of Augmentation (comprehending both;) becauſe in Diſpoſition of Legacies, the Law expatiates the Interpretation as far as it may have any conſiſtency with the Teſtators mind and meaning, and will take its meaſures from the utmoſt Latitude of his intentions. For which reaſon if the Teſtator ſaith, I give my City-houſe or my Countrey Farm to my Daughter Anne, ſhe ſhall have both. bGraſs. §. legatum. quaeſt. 66. & Alex. lib. 2. Conſil. 163. nu. 4.And this is the Common opinion, from which notwithſtanding there are not wanting, and they not of the minor DD. who recede in their Judgments, and held That a Diſjunctive in a Legacy ought to retain its force, ſo as the Executor may be leaſt burdened. cMolinae. & Covarr Reſol. lib. 2. cap. 5. nu. 10.which ſeems nothing inferiour to Reaſon in an impartial ballance; yet this may be relyed on as indubitable, that where the Disjunctive is placed between two ſuch things as are commonly conceived under the notions of Genus and Species, or between the whole and his part, then and in ſuch caſe it ſhall be taken for a Conjunctive; as if the Teſtator ſhould ſay, I bequeath to my Wife my Plate, Jewels, or ſuch things as I provided for her; the latter words whereof are Generical, the former Specifical, ſhe ſhall have both. Or if he ſaith, I bequeath to my Wife my Wine which is in the City or in the Port; the Port is held as part of the City, and ſhe ſhall have the Wine in both. Likewiſe if any thing be bequeathed to D. E. or F. G. here in this caſe alſo the word [or] ſhall be taken for the Copulative [and] ſo that both of them ſhall equally take by this Deviſe, unleſs the one be of nearer kin to the Teſtator than the other; in which caſe the neareſt of kin ſhall have it for his life, the other afterwards; dl. cum pater. §. a te. de Legat. 2.or unleſs it can be proved that the Teſtator did bear more affection to the one than to the other; in which caſe he to whom the Teſtator did bear moſt affection, ſhall be preferred; eRipa. in c. inter caeteras. de Reſcript. Extra. nu. 14.or unleſs the one of them is not legally capable of the Legacy; in which caſe the word [or] ſhall ſtand, as properly it is, for a Disjunctive.
One Deviſed his Lands to his three Daughters, and ſaid further in theſe words, viz. I will that every of them be others Heir by Mich. 31. Eliz. Fowler and Owgley's Caſe. Anderſ. Caſe. 129.equal portions. Whereupon it was doubted, when one of them dyed, whether the others ſhould hold by ſurvivorſhip as Joynt-Tenants, Or in this caſe as Tenants in Common. The whole Court was of opinion for the latter, and not as Joynt-Tenants, for that it appear'd, the intention of the Donor, was ſuch in ſaying That each ſhould be others Heir by equal portions, which could not be if there were a ſurvivor, for thereby it is not poſſible the words of the Will can be of any force.
Although properly Houſes paſs not by the name of the Lands Trin. 38. Eliz. B. R. & Paſch. 41. Eliz. Ewer verſ. Hayden. Cro. par. 3. Pl. 3. Pl. 4. Vid. Rep. at Large. in Cro. ubi ſupra.yet in a Deviſe they ſhall paſs by the Name of all the Lands, if the intendment be not otherwiſe by ſome Expreſſions of the Deviſor; for though in a Writ nothing ſhall be demanded or recovered but according to its proper ſignification; yet in Wills Expreſſions ſhall be taken according to the Common intendment. Wherefore in a Will, by the Deviſe of his Land all his Houſes may paſs, or not, according as it is phraſed by the Deviſor; For if a man Deviſe all his Lands, his Houſes ſhall paſs; but if he reſtrain the word [Land] according to its genuine propriety, as Arable Land, or doth couple it with Meadow and Paſture, in ſuch caſe the expoſition of the word ſhall be taken according to the common intendment of the Deviſor; or having both Houſes and Lands in A. and B. doth ſay, I bequeath to C. all my Houſes and Lands in A. And to D. all my Lands in B. In ſuch caſe and by ſuch expreſſion the Deviſor ſeems to exclude the Houſes in B. out of the Deviſe to D. which expreſly he includes in the Deviſe to C.
Moore ſuccinctly Reports the caſe thus, viz. Debt for Rent, the Trin. 36. Eliz. Ewer verſ. Haydon. Moo. Rep. nu. 491.Defendant pleaded nihil debet. Whereupon it was found, That J. S. being ſeiſed of three Houſes, and other Lands, Paſtures, and Meadows in Watford in the County of Hertford; as alſo of a Houſe and Land in the County of Oxford, Deviſed the ſame in this manner, viz, I give all my Capital Meſſuage in the County of Oxon, and all other my Lands, and Meadows, and Paſture in the Pariſh of Watford. The Deviſee brought Debt againſt the Leſſee for years of the Houſes in Watford: And it was adjudged Maintainable, becauſe the word [Land] comprehends Houſes, and the Houſes ſhall paſs by the Deviſe.