The Orphans Legacy, Part 3 · Chapter 12
CHAP. XII. Certain Caſes in the Law touching Deviſes of Leaſes, or for a Term of Years.
1. In what Caſe the Word [Shall] is taken for [Should] in Deviſe of a Term.
2. A Deviſe of Lands for 99. Years, may be only for no more of that Term, then the Iſsue Male of the Deviſee ſhall continue.
3. The Deviſe of a Term to one and his Heirs, ſhall go to the Deviſees Executors or Adminiſtrators, and not to his Heirs.
4. Chattel-Leaſes and Leaſes for Years paſs not by a Deviſe of all his Lands and Tenements.
5. By a Leaſe for Years Deviſed for Life, doth paſs the whole Term; yet is it not an Eſtate for Life.
6. The whole Intereſt of a Leſſee in his Leaſe-Lands, doth paſs by a Deviſe of his Leaſe, Term, Farm, Profits, Tenure, or Occupation thereof, as well as by any other words.
7. The Reſidue of a Term, is as the Term it ſelf.
8. A Man may Deviſe ſuch an Eſtate by Will, which he cannot make by Act Executed: Or he may Create an Intereſt by his Will, which by Grant or Conveyance in his life time he could not do.
9. That may be the Deviſe of a Leaſe for Years in Law, which doth not ſeem to appear ſuch in Fact.
10. The whole Term, though not named, ſhall paſs by a Deviſe, where no other can paſs by Implication.
1. IF one Deviſe his Land unto his Executors until his Son ſhall come unto the Age of 21. Years, the Profits to be imployed towards the performance of his Will; and when he ſhall come to that Age, that then his Son and his Heirs ſhall have it. By this Deviſe the Executors ſhall have it until he be of 21. years of Age; and if he die before that time the Executors ſhall alſo have it until the time he ſhould have been 21. Years of Age, if he had lived ſo long; and the word [Shall] in this caſe is taken for [Should.] aCo. 3. 20.Likewiſe if one Deviſe his Land to his Executors for the payment of his Debts, and until his Debts be paid; by this Deviſe the Executors have but a Chattel, and an uncertain Intereſt, and they and their Executors ſhall hold it until the Debts be paid and no longer.bCo. ſup. Lit. 42.
2. If one Deviſe his Land to A. B. and the Heirs males of his Body for the Term of 99. Years; it ſeems that by this Deviſe A. B. hath but a Leaſe for ſo many Years, if the Heirs Males of his Body ſhall ſo long continue, and that for want of Iſſue Male the Term of Years ſhall expire. And in this caſe the Executor or Adminiſtrator, not the Heirs Males of A. B. ſhall have it after his death.cCo. 10. in Leonard Lovets caſe. 87. 46.
3. If one poſſeſſed of a Term of Years, Deviſe the ſame to another and his Heirs, or his Heirs Male; by this Deviſe the Executors or Adminiſtrators, not the Heirs of the Legatee ſhall have it. dCo. 10. 46. Lampets caſe. Perk. 558. 556.So that if a Leſſee for Years of Land Deviſe all his Intereſt therein to his Wife, if ſhe live ſo long, and after her death if any part of the Term be to come, Deviſe the ſame to A. B. his Son, and to the Heirs of his Body; in this Caſe, and by this Deviſe the Executors or Adminiſtrators of A. B. and not his Heirs ſhall have it.
4. If a Man Deviſe all his Lands and Tenements in D. yet Leaſes for Years do not paſs by theſe words; for by Lands and Tenements is intended Frank-tenements or Free-hold, and not Chattels.eBroo. Abr. tit. Done. nu. 41.
5. If one hath a Leaſe for Years of Land, and Deviſe it to A. B. for life; by this Deviſe the whole Term is Deviſed, and A. B. ſhall have the whole Term if he live ſo long, and yet A. B. ſhall not have an Eſtate for life by this Deviſe. So likewiſe the Law ſeems to be the ſame upon a Grant by Deed made in that manner. fCo. 4. 66. & 7. 23. Plow. 420.And if a Man poſſeſſed of a Term of Years of Land Deviſe his Term or his Leaſe, or the Land it ſelf by a Deviſe, in either of theſe words the whole Term doth paſs. gBrownl. Rep. 1. part 41. 45 & 2. part. 308, 309.A Term of Years is Deviſed to the Church-wardens of the Church of D. and to their Succeſſors: This is not good; but for Goods ſo Deviſed the Law is otherwiſe. hDyer's Readings on Stat. of Will. Sect. 3 §. 6.A Man who hath a Term, Deviſeth the Land to one and his Heirs; the Deviſee dyeth, and hath Executors; his Heirs ſhall have the Land, and not his Executors: The Law is otherwiſe, if the entire Term were ſo Deviſed.iDyer. ib. §. 7.
6. If a Leſſee Deviſe his Leaſe, or his Term, or his Farm, or his Profits, Tenure or Occupation thereof; by either of theſe Deviſes, his whole Leaſe and all his Intereſt in the Land is bequeathed as well as by any other form of words. kDyer 122. 33. 128. Co. 1. 83. 6. 42. & Dyer. 4. 33.But if a Man Deviſe his Land only for ſo many Years as his Executor ſhall name, it ſeems this Deviſe is not good; lPlow. 524.Yet if it be for ſo many Years as A. B. ſhall name, and he name a certain Number of Years in the Teſtators Life Time, this is a good Deviſe.
7, A Man poſſeſſed of a Term of Years, may Deviſe all the Reſidue of that Term of Years that ſhall be to come at the Time of his death. And if a Teſtator having only a Term of Years in certain Lands, doth Deviſe the ſaid Land to A. B. and doth not ſay for what Time; it ſeems that by this Deviſe the whole Term is deviſed, unleſs the Teſtators Intent doth appear to be otherwiſe.
8. A Man poſſeſſed of a Term for 40. Years, by his Will Deviſeth the ſame to I. S. after the death of his Wife; and that the Wife ſhould enjoy it during her life; and that I. S. ſhould neither Deviſe it nor Sell it, but leave it to deſcend to his Son; and in the mean Time my Will is, That my Wife ſhall have the uſe thereof during her life, yielding 10 l. Yearly to I. S. during her life at Two Feaſts, and made his Wife Executrix and dyed. The Wife entered, and paid the 10 l. Yearly according to the Will. In this Caſe Three Points are Reſolved. (1) That I. S. doth not take by way of Remainder, but by way of Executory Deviſe: And a Man may Deviſe ſuch an Eſtate by his Will, which he cannot make by Act executed. And that the Caſe is no more but this, That after the death of I. S. the Wife ſhould have the Reſidue of the Term. (2) The Deviſe is good, being but a Chattel, which may veſt and deveſt at the pleaſure of the Deviſor. (3) That there is no difference when one Deviſeth his Term, the Remainder over; and when a Man Deviſeth his Land, or his Leaſe, or the Uſe, or Occupation, or the Profits of his Land; That a Man by his Will may Create an Intereſt, which by Grant or Conveyance he cannot Create in his life Time.mCo. 8. part 96. Math. Mannigs caſe.
9. A. Deviſed his Lands to his Daughter and her Heirs, when ſhe came to the Age of 18. Years, and that the Wife ſhould take the Profits of the Land to her Uſe, without any accompt to be made, until the Daughter come to 18. Years, and made his Wife his Executrix, and dyed; provided the Wife ſhould pay the old Rents, and find the Daughter at School; the Wife enters, proves the Will, takes Husband, and dyes: It was found that all the Conditions were performed, and that the Daughter was within the Age of 18. Years. It was Reſolved in this Caſe, That it was a Term for Years in the Wife, and a good Leaſe,nTrin. 17. Jac C. B. Blackburns caſe Hutton. 36.
10. A Man was Leſſee for 40. Years of a Houſe, and by his Will gave the Houſe to I. S. without limiting any Eſtate, That he ſhould have in it. It was the Opinion of the Court, That he ſhould have the whole; for no other Eſtate in the Houſe either for Life, or at Will, ſhall paſs by Implication, or for one Year or Years; and therefore the whole ſhall paſs to the Deviſee.oMich. 14. El. Dyer. 307. Anderſ. Rep. caſe. 105.
A Man poſſeſſed of a Term of Years, Deviſed the ſame in theſe words, viz. [The reſidue of my Goods, Moveable and Immoveable I give to my Son John, whom I make my Executor, and to him I give my whole Years that I have in my Farm of M. and if he die, I give it to my Daughters.] John the Executor and Deviſee proveth the Will, claiming the Leaſe according to the Will, and dyeth Inteſtate: His Adminiſtrator for good Conſideration Selleth the Leaſe that remains. Whence the doubt or Queſtion was, whether the Daughters or the Aſſignee ſhould have the Leaſe? The Caſe was referr'd to the Two Chief Juſtices, and Juſtice Walmeſley, who all agreed, That the Aſſignee ſhould enjoy the Leaſe, and not the Daughters. Q. Whether a Deviſe to them in ſuch manner be void?
One made a Leaſe for life, after Leaſed the ſame to A. for 99. Mich. 44, & 45. Eliz. B. R. Spark & Sparks caſe. Yelv. Rep.Years if he ſo long lived, to Commence after the deceaſe of the Leſſee for life. And if A. dyed during the ſaid Term of 99. Years, or the Leaſe otherwiſe determined, and after the death of the Leſſee for life, then the Leſſor granted for him and his Heirs, that the Land ſhould remain to the Executors of A. for 20. Years. Leſſee for life dyes. A. Leaſed for 20. Years Rendring Rent, and dyes Inteſtate. B. takes his Adminiſtration, and brings Action of Debt for the Rent. It was Adjudged, That it doth not lye. for it ſeem'd to Gaudy and Yelverton, That the Contingent of 20. Years was never Veſted in A. But if A. had made Executors, he might take by way of Purchaſe, (Executors being in name of Purchaſe: As in Cranmers Caſe. 14. Eliz. Dyer.) But if it had been limited to the Executors for Payment of the Debts of A. or the like, then by the intent apparent there would be an Intereſt in A. and in the Executor for the uſe of A. as Popham and Fenner agreed in point of Law as to an Action of Debt.
A Man made his Will in this manner, viz. [I have made a Leaſe Trin. 3. Eliz. Moo. Rep. nu. 101.for 21. Years to I. S. paying but 20 s. Rent.] And it was held, That it was a good Leaſe by the Will. For that Word [I have] ſhall be taken in the Preſent Tenſe, as is the word [Dedi] in a Deed of Feofment.
A Man Seiſed of a Mannor, part in Demeſnes, and part in Leaſe Trin. 3. Ed. 6. Moo. Rep. nu. 24.upon Rent Suit and Service. Deviſed by his Teſtament to his Wife during her life all his Lands in Demeſnes, and alſo by the ſame Teſtament did Deviſe to her all his Services and high Rents for 15. Years; and further by the ſame Teſtament did Deviſe all his Mannor to another after the death of his Wife. And it was Agreed by all the Juſtices, That the laſt Deviſe took not effect for any part of the Mannor till after the death of the Wife; and that the Heir after the Expiration of the 15. Years, and during the Wives life ſhall have the Services and Chief Rents.
If a Man poſſeſſed of a Leaſe for Years of Land, Deviſe the Mich. 5. Jac. B. inter Mallet & Sir H. Sackford. Roll. Abr. tit. Deviſe.ſame to one for Life, the Remainder to another; although the firſt Deviſee hath the whole Eſtate or Term in him, and no Remainder can depend thereon at Common Law, yet it is a good Deviſe to the ſecond Deviſee by way of an Executory Deviſe.
If certain Lands be Deviſed to one, he cannot take them without 11. H. 4. 84. Tr. 39. El. in Cam. Scac. inter Edmonds & Buſkin lit. Trin. 39. Eliz. B. R. Rol. ibid. lit. A.the delivery of the Executor. Or if a Man be poſſeſs'd of a Leaſe for Years of Land, and Deviſe the ſame to another, the Deviſee cannot have it, or enter upon it without the Executors or Adminiſtrators Conſent.