have it or if this be neglected then he must take care to grant over his estate by act executed for by his last will he may not devise it to some friend and his heires in trust for him or he may grant it over to another and take a regrant of it to himselfe and his heires or he may make a lease for years of the lands to some friends in trust and by this meanes he may have the fruit of it during the terme When no time is set downe for the beginning of an estate then Co. super Lit. 46. Co. 5. 1. 2. 5. Die◠286. 307. it shall begin presently otherwise it shall begin at the time expressed For years When such a lease shall begin and how long it shall continue if it may stand with law If a lease for years be made bearing date the 26th day of May To have and to hold for 21. years from the date or from the day of the date in these cases the lease shall begin on the 27th day of May. But if the words be To have and to hold from henceforth or from the making hereof in these cases the lease shall begin on the day in which it is delivered And if it be to begin à die confectionis then it shall begin the next day after the delivery And if it be To have and to hold for 21. years without mentioning when it shall begin it shall begin from the delivery if there be no former lease in being and if there be then it shall begin from the time of the ending of that lease If the deed have a date which is void or impossible as the 30 of February or 40. of March and the terme be limited to begin from the date then it shall begin from the delivery So if a man by his deed recite a lease which is not or which is void or misrecite a lease that is in esse in point materiall and then say To have and to hold from the end of the former lease this lease shall begin in course of time at the time of the delivery of the deed If one make a lease of land to A for 20. years and then grant Co. 1. 154. Plow 198. it to B To have and to hold to him from the end of the first terme c. in this case this second lease shall begin assoone as the first lease by what meanes soever shall end But if the words of the second lease be To have and to hold to him from the end of the 20. years in this case the second lease shall not begin untill the 20. years be expired And if one make a lease of white acre to A for 10. years and of blacke acre to B for 20. years and then reciting both the leases doth make a lease to C to begin after the former leases this shall be taken respective and shall begin for white acre after the end of the 10. years and for black acre after the end of 20. years And if one make a lease to two for 60. years provided that Co. 6. 36. if the lessees shall die within the term that then presently after the decease of the last of them longest living the lessor shall reenter and one of them die and after the lessor doth make a lease to another Habendum c. cum post sive per mortem sursum redd vel forisfacturam of the first surviving lessees acciderit vacare for 40. years in this case this second lease shall begin after the death of the lessee surviving reentry of the lessor or the effluxion of time of the first lease which of them shall first happen and the lessee cannot at his election make it to begin at any other time If a man make a lease for 30. years and 4. years after make another lease to another man in these words Noveritis c. me A de Dier 261. B predictis 30. Annis finitis dedisse concessisse B de C c. Habendum à die confectionis presentium termino predicto finito usque finem 31. Annorum by this the second terme shall begin at the end of the 30. years And if one make a lease to A for 20. years and after make a lease to B to have and to hold to him from the Craddocks case pasc 7. Jac. Co. B. end of the first terme for 20. years to be accompted from the date of the last deed in this case the second lease shall begin at the end of the first lease these words to be accompted c. shal be rejected If one make a lease of land to A for 10. years and after by Dier 112. indenture grant it to B to have and to hold to him from Michaelmas next for 10. years and after the first lessee doth purchase the reversion by which his terme is drowned in this case the second lease shall begin presently when Michaelmas is come If two Jointenants be and one of them grant the land to I S to Mich. 13 Jac. B. R. have and to hold to him for 20. years if the lessor and his companion so long live by this the lease shall continue no longer then they both live together and when either of them is dead the lease is determined * Co. 5. 9. And if one grant his land to I S to have and to hold to him his executors c. for the terme of 100. years if A B and C live so long and leave out these words or either of them in this case if either of them die the lease is determined But if the words be To have and to hold for 100. years if A B or C omitting or either of them shall live so long contra †Pasch 30. Eliz. Co. B. If a lease be made of land to the husband and wife to have and to hold to them for 21. years if the husband and wife or any child between them shall so long live this is a good lease and shall continue for all their lives and for the life of the longest liver of them albeit the first words be in the copulative If one possessed of land for a terme of years grant the same to another Dier 307. 69. Plow 520. 524 525. 423 424. Co. 7. 23. To have and to hold to him his executors and administrators or to him and his assignes or to him without any more words or if a man that is possessed of a terme grant his lease to another and doth not say for what time it seemes in these cases the whole terme is granted albeit no livery of seisin be made And in the first case if livery of seisin be made then it seemes there doth passe an estate for the life of the grantee and therefore that this is a forfeiture of the estate of the lessee for years whereof he in the reversion may take advantage presently And if a lessee for years of land grant a
20â— in such a place in this case tender of this 20s in that place at any time is not good unlesse he happen to meet with A B at the place for then tender at any time is good but otherwise the Covenantor must give notice to A B what time he will tender the 20s in that place otherwise the revocation is not good If one be to marry his daughter to the sonne of another man and they do mutually covenant to stand Trin. 18. Ia. B. R. Savill sterlings case seised of their lands to the use of their sonne and daughter with Proviso to revoke the uses with the conâ—ent of the mothers if they or either of them be then living and one of them dye in this case a revocation by the consent of the surviving mother is sufficient 3. When the covenantor doth make void such uses by vertue of such a revocation he is seised again of the land in Fee-simple Coo. i. 111. 112. 113. super Litt. 237. as he was at first without any entry or claim 4. This power of revocation whether it be present as those before and most are or future as when they are upon contingent as if the Covenantor over-live I S or the like when it is reserved to the party himself that made the uses may by his â—ine or Feoffment be utterly extinguished As if he make a Feoffment or levy a Fine of the land whereunto the uses and proviso are annexed by this the Proviso is extinct And yet so as if he make a Feoffment or levy a Fine of part of the land only this shall extinguish his power but to that part only But if the power be reserved to a stranger it seems the Fine or Feoffment of him that made it will not extinguish it This power also when it is present may be extinguished by a Release made by him that hath the Release power to any one that hath any estate of Franktenement in the Deâ—eaâ—ance land in possession reversion or remainder or it may be avoided by Defeasance whether it be present oâ— future If one convey his lands to certain friends in trust to the intent 10. Other Trusts and Confidences or lands and of chattels â—â—all and personall The naâ—ture of such Trusts the duty of them that are trusted and the remedy to beâ— had against them for breach of their truâ—â— that they shall convey it to such persons as he shall set down in Cromp. Iur. 48. 59. 58. 54. Dyer 160. Fitz. Accompt 122 his last Will and Testament or if a man deliver money to a friend in trust to purchase land for him and his heirs to the end that he may have the profits thereof for his life and to the end it may be conveyed to them afterwards or if a man deliver money to his friend to buy land for him that doth deliver the money in his own name or if a man enfeoffe his friend and his heirs of land to the intent that he shall alien the land to whom I S shall appoint or if land be conveyed to me in Mortgage and I pay all the money but I to prevent the joynture of my wife or for some such like cause name a friend joynt purchasor with me and so the conveyance is made to us both if in any of these cases or in any other such like case the friend trusted prove false and do not perform the trust but turn the profits of the land to their own use or refuse to settle it according to the trust or the like the party grieved must have his remedy in Chancery for these are not Trusts or Uses within the Statute nor such for which there is any remedy at the Common-Law And in that case where the land is setled to the intent that the friends trusted shall settle it where I S shall appoint if I S do not appoint how it shall be setled it seems the Feoffees shall have it to their own use And if a man give or grant his goods or chattels as Leases for yeares or the like to friends in trust to the use of himself for life Cromp. Iur. 65. Dyer 369. Broo. Feofment al use 60. Câ—omp â—â—ur 62. 45 11 Ed 4. 2. 7 Edâ—â— 29. and after to perform his Will or the like these are such uses and trusts as are not within the Statute of uses and for the breach of which there is no remedy at the Common-Law but in Chancery only So if an Obligation or Statute be made to A B to the use of C D this is a trust of the same nature and if A B release the Obligation without the consent of C D or get the money into his own hands C D shall have reliefe in Chancery And in all these cases and such like cases the generall rules by which uses were governed at the Common-Law are still in force and to take place as those by which uses and trusts are now for the most part governed As 1. If there be any cause to sue for or about the lands or goods wherewith the parties are trusted as if they deny 7 Ed. 4. 29. or delay to perform the trust they must be compelled thereunto by suite in Chancery 2. The Cestui que use or party for Cromp. Iur. 62. 63. 65. 11 Ed. 4. 24. Ed. 4. 37. whom the trust is cannot of himselfe dispose of the lands or goods for the property and interest in Law is in the Trustees and if it be an Obligation or Statute that is made to the use of another Cestuy que use cannot release it but the Trustee must release it 3. If the parry trusted so with lands goods or chattels give grant or sell the same lands goods or chattels to one that hath knowledge of the same uses or trusts as it is alwayes preâ—umed he hath where the trusts are expressed upon the same Deed by which the lands goods or chattels are given or granted or if the things so given or granted be granted upon the same trusts or to the same uses or without any consideration at all in these cases he to whom the thing whereabout the trust is shall have the same thing upon the same trust and to the same use as he that did give or grant the same had it But in case where no trust or use is expressed upon the Deed the purchasor or buyer hath no notice or knowledge of the use or trust and hee gives a valuable consideration for the thing there for the most part the sale is good and the party grieved thereby hath no remedy but against the party first trusted in Chancery and the purchasor shall have and enjoy the thing so bought to his owne use for ever but he that is the party trusted will bee forced in Chancery to make the party grieved an amends in damages for this breach of trust And if there be any practise packing or combination betweene the buyer and the seller
for portions in this case the daughters may not have an Accompt at the Common-law but they they may sue the executors in the Spirituall Court or in a Court of equity and if the executor be dead they may sue his executor If one devise a rent out of his land and do charge the land with Dyer 34â— a distresse the Devisee may make use of that remedy and distrain or the rent but unlesse power be given him by the Will to distrain he may not distrain for it If one be possessed of a term of years of land and devise it to his wife Plow 545. to the end that she with the profits thereof shal breed up his children in this case this is no Legacy to them and therefore it seemes they have no remedy but in Chancery or some other Court of equity against her if she refuse to do it Fitz. Devise 6. Plow 540. Perk. Sect. 57â— 483. 20. Ed. 4. 〈◊〉 Swinb 13â— And in cases of Devises of goods and chattels as Leases for years rents out of such Leases and the like the Legatee cannot take the thing devised before he have the Assent of the Executor or Administrator thereunto And therefore if in these cases the Executor or Administrator refuse to agree to performe and deliver the Legacy the Legatee may sue him in the Spirituall Court or in some Court of Equity to compell him thereunto But a Legatee may not sue for a Legacy in any of the Courts of Common-Law neither may hee sue the Executor or Administrator in the Spirituall Court for the Legacy untill the Will be proved but he may by Suit there compell him to prove the Will or to refuse the Administration And in these Courts and by thâ—se meanes the Devisee may recover his Legacy against an Executor or Administrator if he have Assets to pay the debts of the Testator for otherwise a Legacy is not recoverable at all but in case where the Executor or Administrator hath once agreed to the Legacy so as it is executed it is then so vested in the Legatee and he hath such a property therein that he may enter into or seise and take the thing devised as his own and if any man keep or take it from him he may have reliefe as in other cases If another doth claime by Deed of gift the goods a Legatee â—7 H. 6. 9. doth sue for this may bee tryed in the Ecclesiasticall Court If a debt obligation or any such like thing in action be devised Perk. Sect. 527. Swinb to another the Devisee hath no meanes to recover it but by a Suit in the Spirituall Court or in some Court of Equity to compell the Executor to sue for it himselfe or to make the Legatee a Letter of Atturney to sue for it in the Executors name for the Legatee cannot sue for it in his own name unlesse he be made Executor as to that debt c. which is the best course in these cases and yet if the Legatee have the Bond or Especialty in his hands he may deliver it up or cancell it If a man devise a term of years of land to I S and make another Plow 543. 5â—5 And of this opinion were Sâ—◠〈◊〉 â—â—tor and Sâ—r 〈◊〉 Bridge 〈◊〉 upon deliberate advise his Executor and the Executor having enough besides to pay the debts doth sell this term in this case albeit the sale be good and I S have no remedy nor meanes to recover the term yet he may sue the Executor for it and recover the worth of it in damages in a Court of Equity And now having done with the first part of a Testament viz. a Devise we come to that which doth concern the second parâ— viz. an Executor See before at Nuâ— 4. paâ—t 1. Any person that may make a Testament and devise his goods 18. what person may make oâ— appoint an Executor and what not and how and chattels may make an Executor a Fitz. Executor 28 husband as to the goods and chattels shee hath as Execuâ—rix to another and as to her own goods and things in action viz. debts due unto her upon Obligations and Especialties made to her alone befoâ—â— or afâ—er her marriage may make an Executor b Swâ—â—b â—87 Dveâ— 4. Broo. Executoâ— 155. 1 H. 〈◊〉 〈◊〉 Litt. Broo. Sect. 180. 3 H. 6. 7. Swinb 200. 19â— And he that 〈◊〉 make an Executor may make either one two three or more his Executors at his pleasure And he may if he will make one man his Executor for one yeare another man his Executor for another yeare or one man his Executor untill such a time and then another his Executor As one may make A and B his Executors and that B shall not meddle during the life of A. And a man may make one man Executor for one part of his estate and another man his Executor for the other part of his estate or one may make one man Executor as to part of his estate and die intestate as to the residue of his estate Also a man may appoint one to be his Executor if he will accept it and if he refuse that another shall be his Executor And lastly a man may make another his Executor upon condition viz. so as he give Bond to such and such men to performe his Will or the like And all these nominations and appointments of Executor are good Any person that may be a Legatee and take by the Devise of â—9 What person may bee made or appointed an Executor and what not and by what name goods and chattels may be an Executor And therefore it is said See at Num. 4. paâ—t 2. Numb 7. Swinb 222. Fitz. Executors 47. â—7 Devise 3. That any person or persons male or female of the Clergy or Laity children or strangers friends or enemies marryed or unmarryed creditor or debtor bond or free may be an Executor c Pitz. Executor 〈◊〉 88. Non-ability 18. Broo. Non-ability 38. And that a Bastard an Excommunicate or an Out-lawed person may be as able and as absosule an Executor as any other d Coo. 6. 67. And an Infant or child in utero matris may be an Executor but he cannot meddle with the Administration of the goods untill he bee of the age of 17 years and therefore the Ordinary must grant the Administration unto some other untill that time in trust and for the benefit of the Infant e Fitz. Executor 24. And a woman that hath a husband may be an Executrix Husband and wife to any other person f Fitz. Executor 24. Broo. Consultation 5. Also a woman may bee Executrix to her own husband and the husband may be Executor to his own wife and by this meanes hee may recover all the debts due to her upon Obligations Recognisances and the like made to her before or after the marriage all which the husband shall not have but by Executorship or an
any estate in this case I S hath an estate for life only If lands be granted to A and B to have and to hold to them Dier 186. for their lives to the use of C for his life by this C hath an estate for his life if A and B live so long If a tenant in taile grant totum statum suum by this the grantee Lit. Sect. 613. Co. 1. 53. super Lit. 345. Plow 562. 162. Co. super Lit. 24. hath an estate for the life of the grantor and no longer And if a lessee for life grant all his estate hereby his estate for life doth passe for this is as much as he can lawfully grant If a man have a sonne and a daughter and die and lands be granted to the daughter and the heires females of the body of the father it seemes by this she hath only an estate for life If one grant land to another to have and to hold to her whiles Co. super Lit. 42. 234 235. she shall live sole or during her widowhood or so long as she shall behave her selfe well or so long as he shall dwell in such a house or so long as she pay 10 l. yearly or so long as the coverture between her and her husband shall continue or one grant lands to a man to have and to hold unto him untill he shall be promoted to a Benefice or the like in all these cases if livery of seisin be made according to the deed or if the grant be of such a thing whereof no livery is requisite the grantee hath an estate for his life and no more and that determinable also If one grant lands to I S. to have and to hold to him for life Co. super Lit. 183. 42. Plow 161. F. N. B. 168. and doth not say for whose life this regularly shall be taken for the life of I S the lessee and not for the life of the lessor But if the lessor himselfe have but an estate for life in the lands granted then the lease shall be construed to be and endure during that life only by which the lessor did hold to prevent a forfeiture And if he that doth make the lease be tenant in taile of the land this shall be taken to be a lease for the life of the lessor And if a tenant for life of land make a lease for years of it and then grant his reversion by the name of a reversion to another To have and to hold to him and his heires by this he hath only an estate for the life of the grantor and no more So if tenant in taile of land grant it to one for years and after grant his reversion to another To have and to hold to him and his heires this shall be construed to be an estate for the life of the tenant in taile and no longer and the atturnement of the tenants in these cases will not alter the cases And so it is in case of a Release also as if tenant in taile doth release to B being lessee for years of the land all his right to the land this shall be taken to enure but for the life of the tenant in taile and no longer as if a man retaine a servant and say not how long this shall be taken for a year Constructio legis non facit injuriam If one grant to I S that if he be not paid yearly for his life Co. super Lit. 147. Co. 8. 85. 40 s. that he shall distraine in the land of the grantor for it by this I S hath an estate for life in the rent And if a man by his deed grant a rent of 10 l. issuing out of all his land quarterly at the usuall feasts this is an estate for life of the grantee If one grant lands to I S and I D. To have and to hold to them Co. 5. 9. 11. 3. during their lives omitting these words and the longest liver of them by this notwithstanding they shall hold it during the life of the longest liver of them And if lands be granted to A To have and to hold to him during the lives of B C and D without any more words by this A hath an estate during all their lives and during the life of the longest liver of them * 38 Eliz. B. R. in the case of Ros Adwick And if lands be granted to A To have and to hold to him during his life and during the lives of B and C by this he hath a lease for his owne life and the lives of B and C and the longest liver of them But if a lease be made to I S of land to have and to hold to him during the time that A and B shall be Justices of Peace or during the time that A and B shall be of the Inner Temple or the like in these cases the â—ailer of one doth determine the estate †Adjudged B. R. 8 Eliz. Hobaâ—t Wisemores case And if a lease be made to B only To have and to hold to him and C for their lives by this B hath an estate for his owne life only and no more and C hath nothing at all And here by the way let it be observed in these and such like cases where lands are granted to one man to Co. super Lit. 41. 239. 388. Plow 556. 28. Dier 328. 321. 264. Co. 10. 98. Occupant have and to hold to him or to him and his assignes or to him his executors administrators and assignes during the life or during the lives of others and in most cases where a man is tenant pur auter vie i. for the life or lives of another or others if the tenant pur auter vie in possession die his estate shall not goe to his heires executors or administrators unlesse they can first get into possession after his death but he that can first get into the possession of the land after the death of the tenant pur auter vie shall have it for his life and after his death then he that can first get into the possession againe c. And therefore if the land were let by the tenant pur auter vie at the time of his death to any under tenant for years or for one year or at will and this undertenant be in possession at the time of the death of the tenant pur auter vie this undertenant shall have it for his life if the life or lives by which it is held so long live for the rule in this case is occupanti conceditur Et capiat qui capere potest And this estate is called an occupancy and he that hath it an occupant To prevent which mischiefe the lessee must take care when he takes his lease to have it made to him and his heires during the life or lives of him or them by whom it is held for in this case after his death his heire and none other shall