seised either in his life time or at his death namely upon the day on which he died and if the right discend to more Heires successively and without Seisin yet the Heir hath the same Seisin appertaining to him as the Ancestor had in the time of his life or at his death And where there is a participation or meeting of Propriety with the Seisin the Heir hath immediately Ipso facto a Free-hold b Glan and. Bract. ib. 25. E. 3. Stat. 2. and 42. E. 3. c. 10. Flet. l. 6. c. 1. 3. Our Authors do not make in the case of Heirs a like division some distinguish them into nere and more Remote c Glan l. 7. c. 3 and some into neer and more neer remote and more remote d Bract. l. 20. c. 30. n. 1 Brit. c. 118. Flet. l. 6. c. 1. and 2. 4. If one have many Sonns they are all neer Heirs those that were last born and those that were born before them e Bract. ib. and so are Daughters when Sons faile f Glan ib. The next Heir is he who was born first g Bract. ib. unlesse the custome of the place hinder h Glan ib. or that he be a stranger and the younger Brother a Denizen i Dr. and Stu. l. 1. c. 7. and c. 20. 6. An Heir remote is where one hath many Sons and Daughters the Sons are neer heirs and the Daughters remote this holding alwaies for a Rule that the males shall be preferred before the females of the same degree k Bract. l. 2. c. 30. n. 3. 7. If there be many Sons and no Daughters but Grandsons the Sons shall be neere Heires and the Grandsons remote l Id. ib. if there be many Daughters and no Sons they shall be all next Heirs m Glan ib. 8. So may they be tearmed more remote in respect of the Inheritance being more remote as the lineall Nephew or Neices Son his Grand-son his great Grand-son his great great Grand-son c. In the direct line or if there want of that line then in the transverse Ad infinitum n Bract. l. 2. c. 20. 9. It is the ancient custome of England that the eldest Son should succeed as Heir to his Father but where there is no Son but Daughters then all the Daughters shall be Co-heirs o Dr. and. Stu. ib. Glan ib. Flc. l. 6. c. 1. which is also true in Nephews their Children where males are wanting 10. And this was alwaies a Maxime that a Fee-simple could never ascend from a Son â—o a Father or Mother or any other Ancestor â—n a direct line p Coo. l. 3. fo 40. Ratlifes case Dr. and. Stu. ib. Bract. l. 2. c. 29. Lit. l. 1. c. 1. Brit. c. 119. nor can any one in a â—ransverse line succeed so long as there is an Heir to whom it may discend in the direct q Bract. l. 2. c. 31. n. 1. Flet. l. 6. c. 2. 11. That Issue which is born before marriage is by our Law a Bastard nor can it succeed in an Inheritance nor can a Bastard have any Heir save of his own Body r Dr. and Stu. ib. 20. H. 3. c. 4. Perk. 49. 50. 12. Chattells neither personall nor reall come unto the Heir but by the custome of the Kingdome to the Executors or from an Intestate to the Ordinary and from him to the Administrators whom hee shall appoint s Glan l. 7. c. 16. Perk. 48. or if no body will administer then ought the Ordinary to sequester them upon his own perill t 13. E. 1. c. 19. 31. E. 3. c. 1â— 21. H. 8. c. 5. Flet. l. 2. c. 57. Dier fo 277. n. 57. 13. The Lord of the Mannor is in stead of Heir when either through defect or in case of Felony the blood is extinguished u Flet. l. 6. c. 1. yet at this day this is not without distinction Of the legall Succession on the Fathers side TIT. II. IN the transverse or collaterall line the Rule is that those are Heirs who partake of the whole Blood with the party deceased For example A. hath Issue B. a Son and C. a Daughter by one Venter and D. a Son by a second Venter and dies B. succeeds him and dies without Issue in this case C. the Sister shall succeed and not D. a Lit. l. 1. c. 1. Brit. c. 119. n. 7. Flet. l. 6. c. 1. 1. So also A. having a Brother B. and two Sons viz. C. by one Venter and D. by another dieth to whom C. succeeds and dies without Issue in this case B. the uncle who is of whole-blood shall succeed and not D. the Brother b Lit. ib. Coo. l. 3. Rat. case fo 40. but if B. dy without Issue then D. shall succeed being of intire blood with him both by the Grandfathers side and Grandmothers And therefore if B. had not been Brother to A. both by Fathers side and Mothers side it should have been otherwise 2. The collaterall line is double one descending by the Brother to his Children the other ascending by the uncle but none succeed on the ascending line but for default of Heirs on the descending c Bract. l. 2. c. 30. n. 1. Brit. c. 119. 3. He is Heir in the collaterall discending line who is neerest in degree and if this line fail then he who is next to the party deceased in the ascending collaterall line d Bract. ib. Flc. l. 6. c. 2. 4. If there be two in the same degree and both males the elder is to be preferred but if they be male and female the male is Heir as in the direct and right line e Brit ib. n. 1. 2. and 7. 5. Where an Estate comes by the Mothers side there the Son dying without Issue the next of kinn on the Mothers side is Heir and not the Brother of the Father f Id. ib. but where the Son purchaseth an Estate with his own Mony and dyeth without Issue there the next of kinn on the Fathers side shall succeed and not on the Mothers side unlesse for defect of Heirs on the Fathers side g Lit. l. 1. c. 1. Coo. l. 3. Rat. case fo 39. but the Heir on the mothers side shall succeed rather then the Land shall escheat to the Lord. h Plow 444. 6. A. hath two Sons B. and C. B. in his Fathers life time commits Felony and is punished with Death after which A. dies the question is whether the Fee whereof A. died seised shall escheat to the Lord or discend to C. the second Son And here it is to be considered whether B. dyed without Issue for then it discends to C. otherwise it shall escheat i Dier fo 48. n. 15. but if B. had been condemned living his Father and survived him In this case notwithstanding his dying without Issue the estate should have escheated and not discended to C. k
by right of Inheritance But if Tenant in Socage dies the next Heir whether Son or Daughter if an Infant shall be in the custody of the next of Kinn on that side to whom the Inheritance cannot discend for examples sake if the Estate come by the Fathers side then the Mother or if she be dead the next of Kinn on her side shall have the custody of the Infant If by the Mothers side then the next of kinn on the Fathers side a Glan l. 7. c. 11. Lit. l. 2. c. 5. Bract. l. 2. c. 77. n. 6. 52 H. 3. c. 17. Broo. tit Guar. prochein am 11 12 13. Plowd 295. and this is the reason of the Law Because the Infants may be in less danger in their hands to whom their death is least advantagious b Fort. c. 44. 45. so that none that is a Coparâ—â—ner in Socage ought to be in the Gard or Custody of her Coparâ—â—ner or her Husband but of some of her Parents and if any one shall buy the Gard of the Lands or the marriage of the Daughters and shall take any of them to Wife he is presently suspected and shall by the Law loose the Gard of the Body and the marriage of the rest by reason of the suspition c Fle. l. 1. c. 9 1. But if two Brothers purchase Land 〈◊〉 them their Heires the elder if at age â—ay have the Gard of the younger being 〈◊〉 Infant provided they be both legitimate d Brit. c. 35. fol. 92. 2. And these Heires according to the â—â—cients go out of Wardship at fifteen years 〈◊〉 age e Glan l. 7. c. 9. Bract. l. 2. c. 36. n 2. Flet. l. 1. c. 11. But according to the moderne â—â—actise at fourteen f Lit. l. 2. c. 5 Doct. Stu. c. 7 fol. 141. F. B. 118. in regard the Law â—â—pposeth that at this age they are able to â—â—rform those things which belong to Husâ—â—ndry But Tenants by the custome called â—avelkinde being sixteen years old comâ—â—eat may alien their Lands by Feostment â—â—thout license from their Guardians g Dyer fo 301. n. 41. Fitzh Custome 11. Brook ibid. 50. 3. So also Tenants in Burgage who are â—â—fants their Father or Ancestor being dead 〈◊〉 committed for the same reason which â—enant in Socage are to the Custody of â—â—eir Kindred From whence they are freed 〈◊〉 soon as they shall be able discreetly to â—unt Money and measure Cloth and perâ—â—rm other such like businesses But in this â—â—se the certain time is not defined but is adâ—â—dged by the discretion and maturity of the â—eires h Bract ubi sup Flet. l. 1. c. 11. 4. A Woman is supposed to be of perfect â—ge in Socage in all cases so soon as she is aâ—e to know how to dispose of her house and 〈◊〉 do those things which belong to the disâ—â—sing and ordering her Family and is able 〈◊〉 understand what appertains to Cone and â—â—ey which cannot be before she be fourteen 〈◊〉 fifteen years old because this age requires â—â—der and judgment i Bract. l. 2. c. 39. n. 2. 5. A female Heir was according to somâ— ancient writers judged equall with a malâ— as for years according to the diversities â—… Tenures viz. That she should have the samâ— age in Burgage and Socage as a male â—… wit fifteen years And in Chivalry likewiâ—… as the male viz. 21. And that then â—… Wardship should end But according tâ—… others a Woman is said to be at full age iâ—… Chivalrie at fifteen for then they say she able to order her house and to marry a Huâ—…band who shall be able to perform Servicâ—… for her k Bract. l. 2. c. 37. n. 3. But our moderns define otherwise and here they put a difference whether she be fourteen years old at the death oâ—… her Ancestor or not for if she be she dâ—… immediately receive the profits of her Lanâ—… otherwise not till she comes to sixteen l Instit Jur. com c. 24. Lit. 2. c. 4. 6. Guardian in Socage shall give an aâ—count of his Office to his ward when tâ—… Wardship is out m Lit. l. 2. c. F. B. 118 119 262. Flet. l. 1. c. 12. But he may commit tâ—… Custody of his Ward to a stranger and hâ—… Grant shall be good n F. B. 143. P. Of Disfranchisement or Deminutio capitis TIT. XVI THat which the Romans called Deminâ—… coepitis and devided into three kindes 〈◊〉 so distinguished by the English Notwithâ—â—â—nding that we do tacitely acknowledge it â—â—uble by our Lawes That which they tearâ—â—ed the least we wholy omit for those which 〈◊〉 emancipated by their Fathers do not â—â—ose the Right of their former family But 〈◊〉 they may at least making a partition 〈◊〉 Goods and Chattells be received as to 〈◊〉 successiion or Inheritance of an Intestate 〈◊〉 those who are adopted by others have 〈◊〉 rights of their new faculty either â—â—on the sole agreement or the expressed â—urtesy of those by whom they are adopted â—â—thout assistance of the Law required or â—â—pected a Sup. tit Adopt 17. 1. Those who are Servi paenae namely â—â—ose which have sentence for Treason or â—â—lony loose all that can be lost Not only â—â—eir Freedome and Liberty but even all â—â—at they have and their lives also b Stan. placit Coro l. 2. Prerog c. 44. Nor â—â—ve they other Successor then the Excheâ—â—er or the Lord of the Mannor as we shal â—â—ew else where c See the 4. Book tit of Pub. Ju. and therefore we may â—â—th reason call this the greatest Disfranâ—isement or Capitis diminutio 2. And although the ancient Law which â—â—nished d Brac. l. 3. tract 2. c. 16. Brit. c. 16. those who took Sanctuary for reason be abrogated e 22 H. 8. c. 14. 36 H. 8. c. 13. 28 H. 8. c. 7. 32 H. 8. c. 12. 33 H. 8. c. 15. 1 E. 6. c. 12. 2 E. 6. c. 2. c. 33. 5 E. 6. c. 10. yet at this day â—ere are certain crimes which are punished â—â—th abjuration f Ch. de Forrest c. 10. 13 Ed. 1. c. 35. 25 H. 8. c. 14. 35 Eliz. c. 2. but those who undergo â—â—is penalty seem to undergo the lesser disâ—anchisement or that which the Romans â—â—lled Medium capitis diminutionem 3. That which was tearmed Cognationis jus 〈◊〉 the lesser and more inferiour Capitis diminutio and seems to be wholy taken away with us for those who abjure the Realâ— are wholy thrust out of protection g Bract. Brit. ut supra anâ— those who are out of the Allegiance of the supream power of England have nothing iâ— England h Bract. l. 5. c. 23. n. 3. Of the lawfull Guardianship of Lords or Patrons TIT. XVII OUR Lawes do not decree any thiâ—â— that I know concerning that Patronâ—â—â— Tutela which the Roman Law mentions 〈◊〉 we have another kinde
certainty by the Legatee c Fulb. par 38. b. 16. There hath been a great difference in opinions amongst our learned Lawyers and that according to the diversity of Species in the cases of Corn c. sowen by those who had Land in possession and not severed from the Soil For example Tenant in Dower sowes Corn and dies before Harvest She may devise the Corn though not yet ripe d Perk. 521. Stat. Merton c. 2. Flet. l. 2. c. 37. which is true also as to those Lands which she holds Joyntly or severally under the notion of Dower e Perk. 513. Fulb. 17. â—ural Devises 38. 17. But if contrary to custome she be endowed by the Guardian of the Heir and dying leaves Corn growing her Executors may be ejected by the Heir when he comes to age and hindered from gathering the profits f Perk. 524. So if the Heire coming of age recover Lands against his Mother or Widow of his Ancestor in a writ of Admeasurement of Dower he shall recover not only the Lands but the Corne also which is by him deviseable g Id. ib. 18. Tenant by the Courtesey leaseth forth his Lands and dyeth The Lessee shall reap his Corn and may if he dye before it be ripe devise it h Id. 514. which may also be done by a Parson of a Church as to his glebe Lands i 28. H. 8. c. 11. 19. So also he who hath Lands in right of his Wife his VVife dying after the Corne sowen may reap the benefit ar devise it k Perk. 518. Lit. l. 1. c. 8. which his Lessee also in case hee have leased out the said Lands may doe l Perk. 513. Fulb. par fol. 37. b. 20. Execution is taken upon a Mannor of the Debtors by vertue of a Statute Merchant The Creditor sowes the Land and before Harvest a Tenant of the said Mannor dyeth the Custody of whose Heir being under age satisfieth the Debt This will not hinder but that the Creditor may also devise the Corn not yet ripe or gathered m Ib. 516. 21. Mony is paid at the day upon a mortgage yet it seems the Creditor although some are of a contrary opinion may devise the Corn which he sowed and which as yet remains ungathered n Id. ib. 22. Tenant in Taile leaseth out his lands for life The Lessee sowes Corn the Heire recovers upon a Formedon in the Descender and dyeth before the Corn is gathered This Corn according to the opinion of some though others contradict it hee may devise by Will o Perk. 520. Fulb. fol. 37. b. 23. Tenant in Fee-simple dyeth and leaveth an only Daughter and a VVife with Child The Daughter enters and sowes the Land but before Harvest the VVife is delivered of a Son to whose use the next Kinsman possesseth himselfe of the Estate in this case the Daughter may devise the Corn. p Perk. 521. Fulb. fol. 38. a But we will put the case thus The Mother before the Sonne is born recovers Dower against the Daughter and hath that part assigned by the Sherifte which the Daughter sowed In this case she may devise the Corn yet it is a Quaere q Perk. ib. 24. Tenant for tearm of yeares commit waste upon which the Lessor recovers the Land In this case the Lessee cannot devise the Corn r Id. 515. Neither can he if another upon a more ancient Title recovers the said Land against the Lessor s Id. ib. 25. Lessee of a House for forty years deviseth the said House to A. without mentioning the Title which he hath or giveth The Question is what he deviseth And it is adjudged that the Testator deviseth that title which himselfe hath Viz. The term of forty yeares t Dyer fol. 307. n. 69. 26. Lessee for years be que at heth his Interest to A. the remainder of the years to B. in case A. dye before the term expired A. is in possession by vertue of the Devise and not long after Aliens his Right and dies before the terme expired The Question is what remedy B hath to recover his Right as to the remainder of the years unexpired And it was adjudged that he is without Remedy u Id. fol. 75. n. 18. f. 140. n. 41. But if the Testator had devised so many years of the Lease to A as A should live and had ordered B. to succeed in the residue In this case A. could not have so alienated the Term but that B. should have succeeded in the Remainder unexpired w Dyer fol. 358. n. 50 51. fo 359. n. 52. 27. Disseisee recovers against the Disseisor The Disseisee may devise the Corne sown but if it shall be severed from the ground the Disseisor may take it away or devise it x Perk. 519. yet he shall pay the Disseisee Damages y 6. Ed. 1. c. 1. 28. A Testator can neither devise Actions if they be not Judgments nor instruments of Actions z Brac. l. 2. c. 26. a. 28. n. 2. l. 5. tr 5. c. 10. n. 3. Fulb. fol. 30 31. but hee may that which is due upon Action Yet is this devise conditionall namely if the Debt be paid or recovered by the Executors a Perk. 527. 29. Our Law respects principally as doth the Civill Law and Reason likewise the will of the Testator b Cook l. 3. Bullers case fo 27. Fulb. fol. 46. Plow 343. if not contrary to Law If therefore a man having both a Sonne and Daughter living deviseth his Lands to his Daughter Although the Sonne be more worthy yet the Daughter shall have the Lands c New terms v. devise If he adds and annexeth a Condition to the devise which is neither impossible in Nature or Law this shall suspend the devise untill it be performed d Brit. c. 36. Perk. 570. Brac l. 2. c. 6. n. 1 2 3. Swinb part 4. Sect. 13. And this is so farre true that sometimes words are extended beyond their naturall intent e See the rest of his tit and sometimes for causes restrained f Fulb. 41. Plâ—w 540. by reason of the conjectured will and meaning of the Testator 30. A. deviseth Lands to B. conditionally that he pay so much money Although by force of words B. hath an Estate for life only yet the Law adjudgeth him to have a Fee-simple g Brac. Test 18. Perk. 555. for otherwise if B. should dye in a short time He might receive more prejudice then profit by the Devise 31. A. deviseth all his Lands and Tenements to B. B. shall not only have all the Lands and Tenements which A. had in possession but the Reversion likewise h Termes v. Devises 32. If Lands be bequeathed to One to have any to hold to him for ever Or to have and to hold for him and his Assigns for ever In both Cases the Devisee hath an Estate in Fee-simple
although there be no mention of Heires i Id. ib. which notwithstanding some affirm joyntly k Perk. 557. 33. If a man bequeath Lands to another in these words I give my Lands to A. to give them or sell or dispose of them at his discretion This is a Fee-simple l Terms ib. 34. A Testator bequeatheth Lands to A. and the Heires Males of his Body A. hath Issue only a Daughter and of her a Grand-son In this case the Grand-son shall succeed in the Lands by force of the Devise rather then the Devise shall remain ineffectuall notwithstanding that in other Donations it is otherwise m Id. ib. 35. If I devile Lands to my Son after the death of my Wife although I doe not expresly give it to my Wife yet our Law â—elpes her by a favourable Construction n Id. ib. Pl. 414. Bro. Exec. 175. 13. H. 7. fol. 17. 36. I devise a Fee-simple to A. for a 100. yeares upon this condition if that he shall pay ten pound yearly to B. the remainder of the said Lands to C. and his Heirs In this case although A. shall break his Condition yet the Remainder as to C. is not hurt although the Law be contrary in Contracts made amongst those who are living o Perk. 504. 565 566 567 568 569. 37. A man deviseth all his Lands to A. upon condition that he give a 100. pound And in case the Condition be infringed then to his owne Family In this case our Law determineth this Devise to belong to him who is next of Kinne to the Testator by blood p Fulb. 46. 38. A man deviseth to another all the Grain which he hath in such a Barn And after the Will is made hee puts more Grain into the said Barne In this case the generality of the words is restrained to that which was there at the time when he made his VVil for that the Law presumes the Testator to have meant only of that q Id. fol. 41. Plow 341. 39. A. after many Legacies in his VVill deviseth the Remainder and residue of all his Goods to his VVife E. in these words The residue of all my goods I bequeath unto my deare wife E. whom also I doe ordaine full and sole Executrix of this my last will and Testament to be disposed of by her for the good of my soule and the payment of my debts E. takes upon her the Office of Execution and payes all Debts and Legacies Afterwards she entermarryeth with B. who getting possession of the said Goods having made his VVill and ordained his Executors dyes before E. Here the question is whether the Goods which E. brought to her second Husband shall revert to her Or whether they belong to the Executors of B. And it was determined that they should revert to E. because the residue of the Goods were destined to certain uses and not left to her disposing r Dyer fol. 331. n. 21. 40. A. being possessed to the value of 100. pound and indebted 20. pound divides his Estate by his Will One moity to B. his Wife the other moity to his Executors The question was whether B. shall have 50 pound or 40 pound and it was resolved that the might claim 50. pound But if the Executors had aliened any of the Goods in Specie that then she could not challenge any of those which were alienated because they were alienated s Dyer fol. 164. n. 57. 41. Devises and Legacies are to be sued for in the Ecclesiasticall Court t Glan l. 7. c. 7. Yet some restrain this assertion only to Chattels reall and personall u Perk. 570. for that the Ordinary cannot take Cognisance of Fees or Freehold w Id. 576 577 578 579. devised But a Prohibition will lye if any Judg of any Spiritual Court shall cyte one before him in case of such a Devise as intrencheth upon the Common Law x Dr. Stu. l. 2. c. 55. Of the taking away or translating Devises TIT. XXI WHereas the Civil Law doth ipso facto null the Will for default of an Heir a L. 10. â— de jure codillorum Ours doth not presently suffer Devises to become void for want of an Executor or for default of an Executors undertaking the Office but appoints Administration of the Goods to be committed to another according to the Judgment of the Ordinary who obligeth the Administrator to the payment of Legacies at least as farre as the Estate will reach b Bro. Executors 1. Lands Tenements and other Hereditaments whatsoever devised by a Testator If they shall happen afterwards to be alienated by him and are again redeemed They are equally due to the Legaree as if they had never been alienated c Id. Devise 8. Of that Law which the Romans called Lex Falcidia TIT. XXII THe first duty of an Executor taking upon him the Office is to satisfie the Debts of the Testator and therefore it wil not be amisse to consider what Antiquity hath adjudged in these cases If there be Debts owing to many saith Bracton a L. 2. c. 26. Glan l. 7. c. 5. Flet. l. 2. c. 57. one may be preferred before another The King is first and it shall be lawfull for the Sheriffe or any of the Kings Bailiffs shewing the Kings Letters Patents De summonitionibus scaccarij to take an Inventory of such Goods and Chattels as they shall finde in the Lay-fee of the party deceased and to attach them to the value of the Debt which is coming unto the K. per visum legalium hominum as we call it so that nothing be removed or taken thence untill such a Debt as shall appear due be payed and the residue of the Chattells to be left to the Executors To the acquitting of which Debts or any other the Wife of the party deceased is not to contribute any thing out of her Joynture for that the Wives Joynture ought to be free b F. N. B. fo 151 a. which holds true except where the Husband is indebted to the King before the Title of Joynture In the second place are to be deducted debts due to others such as are clear and acknowledged amongst which are to be reckoned services and Servants wages provided they be certain But if they be incertain although they depend upon courtesy Yet if their stipends shall be set by the Will of the Testator or his Friends they shall be deducted out of the Goods of the deceased so shall Funerall Charges The Wife also shall have her necessaries even her lodging in her Husbands cheife Mansion house for 40. dayes unlesse her Dower be sooner assigned 1. But that the Estate of the Party deceased may the better appear the Executors or Administrators with the privity and by the assistance of two at the least of the Creditors or Legatees Or if they refuse then two of the next of Kinne provided they be unconcerned of the Deceased Or
although for the most part it leaves the Cases of wills to be tried by the Ecclefiasticall Courts according to the Rules of the Civil and Common Law yet are there certan particular Cases of Lands and Chattells really and which she hath reserved to her self and those with as much brevity as we can we shall sum up 2. And in the first place all may give Legacies who are capable of making wills and who they are we have formerly mentioned but no man can rightly bequeath Lands or Tenements who hath not the possession of them at the time of the making of the will b Fulb. Par. e. Devises fo 37. a. 32. 34. H. 8. which is to be understood if no other person be not also in possession in his right or name for one may bequeath a Reversion 3. All men also are capable of Legacies who are not especially excepted by the Law which are religious persons and persons not yet in being although they afterwards shall be As if one makes a bequest to such a Colledge or Chantry of which name though there be not any at the time of the Testators death yet there happens to be one afterwards c Perk. 505 Fulb. ib. fo 35. b. but a Post humus in favour of Testaments Although he be in the Wombe is notwitstanding supposed to have being d Tearmes v. devise 4 A Husband although he cannot make a Gift to his wife in his life time because they are both adjudged one and the same person during Matrimony yet he may give and bequeath Lands unto her by will in regard that Legacies take no Effect before the death of the Testator by which this conjunction is dissolved e Fulb. ib. 36. a. 5. One may also give a Legacy to an uncertain person which may afterwards be rendred certain as an annuity is given to A. for life and after his death to him who shall first in the Morning enter Saint Pauls Church and to his Heires B. enters in the morning before any one else this Legacy shall inure not only to A. but to B. and his Heires also f Id. ib. 6. A Body politick unlesse by the Kings particuler Charter is not in capacity of receiving an Estate bequeathed g Perk. 505 7. By our ancient Law Fees could not be bequeathed by will h Id. 537. Brit. c. 34. 27. H. 8. c. 10. Dr. Stu. l. 1. c. 7. and c. 20. Dier fo 74. n. 14. but necessarily discended to the next Heires i Glan l. 7. c. 1. Bract. l. 2. c. 26. Dier fo 127. n. 54. except contrary to the Common Law the particular custome of any City or Corporation permitted k Lit. l. 2. c. 18. F. N. B. 198. I. unlesse the Heir consented to such bequests Whosoever therefore would by his will give Lands to another did first infeoff one in them to the use of himself and his Heirs l Perk. 528. and by this means he might bequeath the use of the said Lands although he could not the Lands themselves unto a third person m Id. ib. 97. but later times have remedied this inconveniency or rather poor and weak comment and hath deereed that not only uses but even the Lands themselves with some moderation may be bequeathed n 32. H. 8. c. 1. Bro. testam 19. Swinb part 3. S. 4. Coo. l. 7. Case Butler fo 30. for of a Knights Fee we are yet obliged to leave the Heir a third part and we are prohibited the bequeathing of Lands by a will nuncupative in regard of the deceit and fraud they are subject unto o Dier 155. n. 21. 8. If a man and his Wife ioyntly purchase Lands to them and the Heirs of the man and the Husband bequeath them after the death of him and his wife to a stranger this is good For in this case the Husband hath the Fee-simple p Perk. 539. 9. If there be two Joynt-Tenants in Fee-simple where by the custome of the place Lands and Tenements may be given by will and one of them bequeaths his right to a third person this is void For since a Will is not in force untill the death of the Testator the right of a Joynt-Tenant at the very instant of his death is transferred by law unto his fellow q Inst Jur. Com. c. 15 which notwithstanding is otherwise in Partners because Partners have their Lands by blood and Inheritance and not by the Courtesy or pleasure of a Donor Joynt-Tenant have theirs r Ib. 10. A man may also appoint by his will that his Executors may sell those Lands which he hath in Fee and which he may bequeath and that the profits arising from such Saile may be imployed for pious uses or for the good of his Soul s Perk. 422. 541. 543. 21. H. 8. c. 4. but iâ— they shall cease to fulfill the command of the Testator within two years the Heir may enter upon them and eject them t Fulb. par c. Devises fo 40. Plow fo 523. 11. A. being Tenant in Socage gives the Lands which he hath in Fee-simple to his wife for tearm of life the Remainder to B. his Brothers Son and the Heires males of his Body and if it shall happen the said B. to dy without Heires of his Body begotten not expresly nor implicitely naming males there the said Remainder to C. another Kinsman and his Heires males in Fee-simple and for defect of Heires males of the said C. then to the next Heirs males of the said lineage lawfully begotten B. dies leaving only Issue D. a Daughter the question is whether D. shall have the Lands by force of those words and if it shall happen c. or some other Heir male more remote But it was adiudged that those words did not create a general Tail to the Heirs of B. or hinder the Lands from remaining to the Heirs males according as devised u Dier 171. n. 7. 12. Chattells of any sort may be bequeathed by will w Perk. 511. wherefore the profits arising either from the custody of a Body or Lands of a Ward a Lease for years Horses Oxen Sheep Gold Silver either in Plate or Money Rings all manner of Vessells without exception are diviseable x Id. 525. unlesse the Testator had but a Joynt possession of them at the time of his death y Dr. and. Stu. l 1. c. 6. Lit. l. 3. c. 3. and unlesse they be affixed to the Fee or Free-hold and cannot being reputed parcell of it be removed without wast z Bro. Execut. 65. 13. Monies also due upon Bond or Condition may be devised for that after they are paid to the Executors they are due to the Legatee a Perk. 527. 14. Chattells which a man hath in right of his Wife as Leases for years c. are deviseable b Id. 560. 15. A thing uncertain may be also devised so long as it may be reduced to