The Orphans Legacy, Part 3 · Chapter 6
CHAP. VI. What things are Deviſeable by Will; And whether a Teſtator may Bequeath what is not his own.
1. What things in particular may be Deviſed or Bequeathed.
2. In what Caſe a Legacy given by a Teſtator, of a thing that is not his own, may be good or not.
3. How a Teſtator may Bequeath what is his Executors.
4. A Bequeſt to one of what was his own before, is void.
5. The Difference between the Common and Civil Law, in this Point of Deviſing what is another Mans, and not the Teſtators.
6. Goods in Joynt-tenancy not Deviſeable.
1. REgularly and Infallibly all things that come to Executors, or that at the Teſtators death, can be Aſſets in the Executors hands, were Deviſeable by him in his Life. More particularly, All the Teſtators Goods and Chattels, whether Real and Immoveable, or Perſonal and Moveable, whereof he dyed actually Poſſeſſed or Intereſſed in Expectancy, in his own and not in anothers Right, nor in Joynt-Tenancy with another (ſaving in ſome certain Caſes in the Law ſpecially excepted) are Deviſeable; As now alſo are Lands, Tenements, and Hereditaments, whereof ſome are Deviſeable by Cuſtom, as Gavelkind, and Burgage Tenure; others by virtue of certain Statutes. But more ſpecifically; firſt, as to Chattels Real, all Leaſes in Lands or Houſes, either for Years, or Years Determinable upon Life or Lives, or by Extents, Statutes, or Recognizances, or Rents (not Rents reſerved by the Inheritor, yet the Arraerages of them alſo.) Likewiſe Commons, Advowſons, Tithes, Faires, Markets, Profits of Leet, and the like in the Teſtator for Years, and all ſuch Creatures as a Termer hath in a Warren, Park, Pond, Dove-houſe, or the like in the Teſtator for Years. Secondly, as to Chattels Perſonal, all Debtors taken in Execution, Captives, Apprentices, all Cattle, of all kinds, Creatures naturally Tame, or being otherwiſe, are by Act reduced thereto, as Hawks reclaimed or the like, alſo Hounds, Greyhounds, Spannels, Maſtiffs, Ferrits, and the like; alſo all Merchandable Goods and Commodities whatever; Likewiſe Ships and other Veſſels Naval with their Guns, Rigging, Tackle, Apparel, Furniture and Proviſions; Likewiſe Weapons for War, Books, Muſical Inſtruments, and the like; Alſo Corn, whether in the Ground, Field, or Barn; And Trees Fell'd, or not Fell'd, being Sold from the Inheritance of the Ground, or excepted by the Seller of the Inheritance of the Land; Alſo all other Grain, as Corn; Alſo Hops, Saffron, Hemp, and the like, whether on the Ground or in the Houſe; Likewiſe Hay, and all Fruits gathered, (but not Graſs ready to be cut for Hay, nor Fruits on the Trees; but ſuch as are ſeperate from the Inheritance; therefore not Garden-Fruits in the Ground, or not ſeperate from it; Alſo Bills, Bonds, Mortgages, Statutes, and the like; Alſo Money, Plate, and Jewels; Likewiſe all Houſeholdſtuff, Implements, and Utinſils, not fixed to the Freehold; All Coaches, Carts, Waggons, Plows, and the like, with their Appurtenances; Likewiſe Desks, Cabinets, Trunks, Cheſts and Boxes, Excepting ſuch as contain only the Evidences of the Inheritance, and have uſed ſo to do; Alſo all Linnen, Bedding, Pewter, Braſs, and Iron, that is Moveable, and not faſtened to the Freehold as aforeſaid: Therefore not ſuch Coppers, Ceſterns, or Furnices, nor Locks and Keys, Waynſcot, or Window-glaſs. Finally, here Note, That Things in Action, as Debts or the like are Deviſeable: ſo are Obligations, and Counterparts of Leaſes; Likewiſe Uſes not Executed by the Statute of Uſes, but remaining at the Common Law. aPerk. Sect. 500, Dyer.And though Actions altogether uncertain, are not Deviſeable; yet poſſibilities and uncertainties in divers caſes are Deviſeable.bPerk. Sect. 527, Lit. Broo. Sect. 437, Dyer, 272. Plow. 520.
2. In and by the Queſtion, [Whether a Teſtator may Bequeath any thing which is anothers, and not his own] is meant and intended any thing wherein neither the Teſtator, nor the Executor, nor the Legatary hath any juſt Propriety, or which doth not of Right belong to either of them. Now in order to the Reſolution of this Queſtion according to the Civil Law, (diſcrepant from the Common Law in this point) the known Diſtinction is, That if the Teſtator did certainly know the thing Deviſed to belong unto another, and not unto himſelf, at the Time when he Deviſed the ſame? Then ſuch Deviſe is good, and the Executor (if there be Aſſets ſufficient) is to purchaſe the ſame, and Deliver it to the Deviſee. Otherwiſe it is, in caſe the Teſtator were Ignorant thereof, and ſuppoſed it to be his own; unleſs the True Owner conſent to the Legacy, or that it was Bequeathed to Pious uſed. cL. cum alienam. C. de Legat. & Graſſ. §. legatum. q. 14, nu. 2, & Cui ac. ad Leg. virum ex familia. §. ſi rem tuam. De Legat.And in caſe the Owner thereof will not Sell the ſame, at leaſt not at any reaſonable Rate, the Executor is to pay the Legatary the juſt value thereof.dL. non dubium. §. ult. De Legat. 3.
3. Suppoſe a, Teſtator doth Bequeath ſomething that is his Executors. In this caſe the Legatary ſhall have it, whether the Teſtator did or did not know it to be his. eL. unum ex familia. §. Si rem tuam. de Legat. 2, & Graſſ. §. legatum. q. 14, nu. 7.The Law is the ſame, though there be Co-Executors, and the thing ſo Bequeathed belong only to one of them. fGomez. var. Reſol. tom. 1, cap. 12, nu. 14.But in that caſe they ſhall all bear a proportion, to be allowed them in Aſſets; but if Aſſets fail, the Legacy fails alſo.
4. If a Teſtator Bequeath to A. B. the ſame thing which did appertain to A. B. in his own proper Right at the Time when the Teſtament was made, it is a void Deviſe; yea, though A. B. ſhould afterwards alienate the Thing, ſo as that the property thereof were out of him at the Time of the Teſtators death.g§. Sed ſi rem. Inſt. de Legat.
5. Notwithſtanding what hath hitherto been ſaid according to the Civil Law, yet by the Common Law the Goods and Chattels that are another Mans are not Deviſeable; and therefore if one Man gives or deviſes another Mans Houſe, it is a void Deviſe. So alſo, if one Deviſe the Things that by ſpecial Cuſtom of ſome Places, (as the Heir-looms do belong to the Heir) this Deviſe is void, for it is not Deviſable from him.hPlow. Grantham's Caſe. Coo. ſup. Lit. 185, & 308.
6. The Law with us is ſo far from countenancing a Deviſe of what is another Mans, that it doth not allow the Goods and Chattels which the Teſtator himſelf hath joyntly with another to be Deviſable; and therefore if there be Two Joynt-Tenants of Goods and Chattels, (as when ſuch Things are given to Two, or Two do Buy ſuch Things together) and one of them Deviſe his part of the Things to a Stranger, This Deviſe is void, Inſomuch that if in this caſe the Teſtator make the other Joynt-Tenant his Executor, the Will as to this is void, and he ſhall not be charged as Executor for theſe Goods, but he ſhall have them altogether by Survivorſhip. iPerk. Sect. 526, Littl. 287, Dr. & Stu. 167.Nay, the Goods and Chattels which the Teſtator hath, but not in his own Right, but in Right of another, are not Deviſable: And therefore an Adminiſtrator cannot Deviſe the Goods and Chattels he hath as Adminiſtrator, for ſuch Deviſe is void. kPlow. 525. Broo. Adm. 7, Fitz. Adm. 3.Howbeit; an Executor may appoint an Executor of the Goods of the firſt Teſtator, which an Adminiſtrator cannot do.