The Orphans Legacy, Part 3 · Chapter 14
CHAP. XIV. Touching Deviſes of Lands with Limitations, and upon Condition.
1. The Condition of a Deviſe of Land not written in the Teſtators Life Time, makes the whole Deviſe as void, as if the Deviſe it ſelf had not been written.
2. A Fee-ſimple of Remainder upon Condition by way of Deviſe.
3. In what Caſe the Executors of a ſubſtituted Deviſee cannot claim the Lands Deviſed under Limitations.
4. A Condition or Limitation may not continue a Deviſed Eſtate for part, and defeat it for the reſidue.
5. In what Caſe the word [Paying] ſhall be conſtrued only as a Limitation, and not as a Condition.
6. Not he in Remainder, but the Heir, ſhall take the advantage of a Condition broken, annexed to a Deviſe of Lands.
7. A Condition or Proviſo contrary to Law is a void Condition.
8. The Heir may enter upon a breach of Condition, notwithſtanding a failure of ſomewhat that ought to have been done by a Third Perſon.
9. The Heir may not enter, where it is but a Limitation and not a Condition.
10. If the Condition be, That a Leſsee ſhall not Demiſe the Premiſes for above one Year, and he Deviſe the Premiſes, it is a breach of the Condition.
11. Lands Deviſed upon Condition of ſuperſtitious Ʋſes, are veſted in the Crown.
1. IF a Man give order for the writing a Deviſe of his Land to A. B. upon Condition; and the Deviſe to him be accordingly written, but the Teſtator dyeth before the writing of the Condition; in this Caſe the whole Deviſe to A. B. is void. aBrownl. Rep. 1. part 44.And as in the caſe of Goods and Chattels conditionally bequeathed, the Executor ſhall keep the Thing until the Condition be performed, and after the Condition broken ſhall take advantage thereof: So in Caſe of Lands Conditionally deviſed to one and his Heirs for ever, or for life, the Heir of the Deviſor ſhall keep the Land till the contingent Condition happen to take effect.
2. If one Deviſe Land of the value of 100 l. per annum to A. for life, the Remainder to B. paying 50 l. to C. by this Deviſe B. ſhall have the Fee-ſimple of the Remainder upon Condition.
3. If one Deviſe his Land to his Wife for her life, and if ſhe live till his Son come to the Age of 25. Years, that then he ſhall have the Land, and if ſhe die before he comes to that Age, that then A. B. ſhall have it till his Son come to that Age. A. B. dies before the Wife, and after ſhe dies before the Son comes to the Age of 25. Years. In this Caſe the Executors of A. B. ſhall not have the Land till the Son comes to the Age of 25. Years.bGoldsb. 64. Plow. 2.
4. A. Seiſed of Lands in Fee, had Iſſue Six Sons and one Daughter, and Deviſed the ſaid Lands to I. S. for 90. Years, if the ſaid I. S. and G. his Wife, or any of them ſhould ſo long live, the Remainder to P. his Eldeſt Son, and the Heirs Male of his Body, the Remainder to theſe other Sons, the Remainder to his Daughter. Provided that if the ſaid P. his Son, or any of the Sons of the ſaid Deviſor, or any of the Heirs Males of their Body, ſhould endeavour by any Act to Alien, Bargain, or Diſcontinue, then after ſuch Attempt or Endeavour, and before any ſuch Bargain, Sale, &c. were Executed, that the Eſtate of ſuch perſon attempting, &c. ſhould ceaſe, as if he were naturally dead; and that then the Premiſes ſhould deſcend, remain, and come to ſuch perſon to whom the ſame ought to come, remain, and be, by the intent and meaning of his Will, and dyed. P. Levyed a Fine of the Lands, he in the next Remainder entered, and claimed the Reverſion by force of the Deviſe. It was Adjudged in this Caſe, That the Conuzee had the Reverſion in him, and might maintain an Action of waſt, becauſe the Proviſo of Reſtraint in the Will of A. was void and repugnant to Law; and a Proviſo, Condition or Limitation ought to defeat the whole Eſtate; and it cannot continue it for part, and defeat it for the Reſidue.cHill. 37. Eli. in C. B. Rot. 1758. Jermyn & Arſcots caſe.
5. A Copy-holder of Lands in Borough-Engliſh having Three Sons and one Daughter, Deviſeth his Lands to his Eldeſt Son, paying to his Daughter and every one of his other Sons Five Pounds within Two Years, and ſurrendred to the uſe of his Will. The Eldeſt Son was admitted, and did not pay the Five Pounds within Two Years. In this Caſe it was Reſolved, (1) That although the yearly Profits of the Lands for Two Year did exceed the Money to be paid, yet the Eldeſt Son had a Fee-ſimple. (2) Although this word [Paying] in the Caſe of a Will makes a Condition; yet in this Caſe the Law ſhall Conſtrue this unapt word [Paying] a Limitation. For if it ſhould be a Condition, the ſame ſhould deſcend to the Eldeſt Son, and then it ſhould be at his pleaſure, whether the Daughter or Brothers ſhould be paid or not; and therefore in this Caſe the Law ſhould judg the ſame a Limitation, of which the youngeſt Son ſhould take advantage.d33. Eliz. in B. R. Wollock & Hammonds caſe. vid. Co. 6. part. Collyers caſe. acc.
6. A Man Deviſed Lands to his Wife, upon Condition that ſhe ſhould bring up his Son at School, &c. and that after the death of his Wife, the Land ſhould remain to his ſecond Son in Fee, and dyed. The Wife entered, the Condition was broken; the Eldeſt Son after his full Age entered for the Condition broken; in this Caſe it was held, (1) That a Condition might be annexed to a will by the Stat. of 32. H. 8. of Wills, which gives liberty to a Man to Deviſe for the advancement of his Wife, &c. eHill. 3. Mar. Dyer. 127. Warrens caſe.That a particular Eſtate may be upon Condition, though the Remainder be without Condition. (3) That he in the Remainder ſhould not take advantage of the Condition, but the Heir, becauſe he is prejudiced in the Inheritance by the Deviſe.
7. If a Man make Two Men his Executors, Proviſo, that one of them ſhall not Adminiſter his Goods; the Proviſo is void, becauſe it reſtrains the Authority which was given by the firſt part of the will, and agrees not with the Law; for by Law every Executor may Adminiſter the Goods: And ſuch was the Opinion of Baldwin and Egglesfield. fTrin. 19. H. 4. Dyer. 4.But Fitzh. conceived the Proviſo to be good, for that he might bring an Action, although he did not Adminiſter.
8. A Man Seiſed of Tenements in London, Deviſed the ſame to Two Perſons, upon Condition that they ſhould pay to his Wife 10 l. per annum iſſuing out of the ſaid Tenements, at Two Feaſts; and if the Rent be behind by the ſpace of Six Weeks being demanded, that it ſhould be lawful for the Wife to diſtrain. It was held a good Condition; and that if the Rent be behind, yet the Wife cannot diſtrain before a demand of the Rent; but the Heir of the Husband might enter for the condition broken, though the Wife did not demand the Rent.gHill. 18. El. Dyer. 348.
A Man Deviſed his Land to his Younger Son, when he ſhould accompliſh the Age of 24. Years; upon Condition that he ſhould pay 20 l. to the Daughter of the Deviſor, and if he ſhall die before the Age of 24. Years, then his Eldeſt Son ſhall have the Land upon Condition that he pay the ſaid 20 l. and if both his Sons failed, that the Land ſhould remain to his Daughter, and dyed. The Younger Son entered after 24. Years of Age, and did not pay the 20 l. to the Daughter; the Eldeſt Brother entered upon him. It was Reſolved by the Court in this Caſe, That the ſame was a Limitation and not a Condition, and therefore the entry of the Elder Brother was not lawful.hHill. 43. Eli. in B. R. Wiſeman & Baldwins caſe. Goldesb. 152, 153.
10. A Man made a Leaſe for Years, upon Condition, That if the Leſſee ſhall Demiſe the Premiſes, or any part of it, other than for one Year, to any perſon or perſons, then the Leſſor and his Heirs to re-enter; the Leſſee afterwards Deviſed it by his Will to his Son. It was held by the Court, That it was a breach of the Condition.i31. H. 8. Dyer. 45. Hill. 36. Eliz. in B. R. Cole & Tauntons caſe. Goldesb. 184.
11. If Lands be Deviſed upon Condition of ſuperſtitious Uſes, as to find a Chaplain to ſay Maſs, or the like ſuperſtitious Uſes mentioned in the Will, the Remainder over for the like Uſes, and if they in Remainder perform not the Condition, then to forfeit their Eſtate, and the Lands to remain to the right Heirs of the Deviſor. In this Caſe it was held, That although the Land was Deviſed but Conditionally to find a Prieſt to ſay Maſs, yet that it was within the Stat. of 1. Ed. 6. Cap. 13. whereby the Lands were veſted in the Crown, becauſe the ſaid Uſes were ſuperſtitious Uſes, to which the Condition of the Deviſed Lands did refer.kHill. 45. Eli. in C. B. Co. 1. part. Adams & Lamberts caſe. Paſch. 17. Eliz. Hubbard & Spencers caſe. C. B. Anderſ. caſe 126.
F. C. Seiſed of the Mannor of S. made his Teſtament in writing, and Deviſed the Mannor to his Wife for the Term of 30. Years in theſe words, viz. For and to theſe Intents and Purpoſes following, viz. I will, and my mind and intent is, That B. my Wife ſhall yearly Content and Pay out of the Iſſues and Profits of the ſaid Mannor to Sir A. I. and others 30 l. And further Wills, That the other Legacies given in his Will ſhould be paid by her, and therein Deviſed divers Legacies. And further Willed, That his Wife ſhould be bound to Sir A. and others for the performance of his Will. F. C. the Deviſor dies, the Wife enters on the Land, &c. takes the Profits, and thereof pays the Legacies, but not to Sir A. and others, &c. Whereupon the Heir Enters as for breach of Condition. It was held by the Juſtices, that it was no Condition, but a Declaration of the Teſtators intention; for to what end or purpoſe ſhould the Wife be bound, if it were a Condition. But Judgment was not given in the Caſe, for the Parties agreed.