Franctenement.

WHat is a Freehold, and what is a Chattell, is very lively set forth in the beginning of Littletons Tenures, by the said figure of division of Posses­sions: whereby it appeareth, that [Page 66] al manner of estates of inheritance, or for life (bee they estates according to the Common Law, or according to the cu­stome, are comprised in the name of Franctenement) That is to say, every of them is aptly termed a Freehold within Judgement of Law, is greater than any estate for yeares, though it be made for many thousand yeares, in re­gard of any probable presumption that estate for life may be more perdu­rable, than such estate for yeares: but in regard a Freehold, which is proper as well to any estate of inheritance, as to an estate for life, in accompt of Law hath alwaies been had in greater estimation than any estate for yeares; and for this onely cause a Terme for yeares is subject to a forfeiture by an Ʋtlary in a perso­sonall action for an offence, wherein the offender is felo de se, Felo de se forfeiteth all Chat­tels. and such like, but no estate of Freehold (unlesse it be by some speciall custome) is subject to any forfeiture of that kinde. The difference between a Franctenement and Chattels being so discovered as is aforesaid; It seemeth fit to proceed to the considera­tion of Estates. An Estate is that which in Latine wee call Status; Diversities. and it may [Page 67] aptly be thus defined, viz.The defi­nition of an estate. An estate is a permanent abode or Continuance for for a time or for ever, in a thing of such nature as either is, may, or might be here­ditary, as Mannors, Mills, Lands, Te­nements, Rents, Services, Commons, Dignities, Liberties, Franchises, Privi­ledges, Offices, and such like; but no estate can be proper to Chattells perso­nall. And for that cause a gift thereof for a momentary time is of like force as if if it were given for ever. But it may be objected that so it may be said of a of a terme for yeares in lands or other hereditaments (that is to say) if such a terme be given or granted for an houre; it is of like force, as if it were given or granted for ever, yet such terme therein is properly called an e­state. To which objection I answer, that although the lawe be so in a grant of a terme, which is as much to say, his whole interest in the thing, wherein he is so in­teressed (viz.) his land, and not his terme therein for one houre; the Gran­tee shall enjoy it no longer then for the time so lymitted, but otherwise it is of such gift or grant of Chattells perso­nall; but herein a differenceDiffe­rence. is to be ob­served, [Page 68] betweene such a gift or grant of goods moveable, and a demise there­of; for although a grante for yeares of things properly devisable doth enure as a demise or lease thereof, yet such grant hath not the like operation in a thing devisable; only in an unproper or bor­rowed sence.

And therefore albeit a grant of goods moveable for a time, doth alter the property for ever; yet a demise ther­of for a time shall only enure as a dispo­sition of the proffits thereby arising du­ring that time. As for example. If a stock of sheepe or kine be leten for certaine yeares, the Leassee hath not thereby the generall property thereof, but onely a speciall interest or property therein, by force whereof he may take the proffit thereof during the terme; but such inte­rest therein is not properly an estate. And albeit it be vulgarly called a lease of such Kine or sheepe, yet it is not so to be ter­med, otherwise then in a borrowed sence; For if a man so interessed therein is like­wise possessed of other leases of lands, and granteth all his leases to another, his interest in these Chattells perso­nall, or the profits thereof, will not passe [Page 69] thereby.1 Generall Of Estates some are Gene­rall, and some Particular,2 Particu­lar as hereafter appeareth.

Generall Estates.

A Generall Estate is that which wee terme an Estate in Fee Simple, which is the greatest and largest Estate that may be; and it is divided by Lit­tleton in his first Chapter of his first booke according to the Etymology of the words Fee Simple, which in Latine are called Feodum simplex, quia feodum i­dem est quod Hereditas, & simplex idem est quod legitimum vel purum, & sic Feodum simplex idem est quod hereditas legitima vel hereditas pura; and it received the name of a generall estate, not onely because it was the most common and usuall of all other estates; but also for that in regard of the amplenesse thereof it is exempted from the number of all particular e­states.

But yet it is further to be observed, that there be three kindes of Fee Sim­ple; The first a Fee Simple without any other addition. The second a Fee Sim­ple [Page 70] determinable. The third a base Fee Simple.

The first of these is more generall and common than any of the residue, and it can never perish so long as the substance, whereof the estate ariseth, hath any be­ing. And therefore albeit that hee, which is seised of such estate, happen to to dye without heire, yet the same e­state is not extinguished but by act in Law, in some other degree transferred to the Lord, of whom the said Lands were holden by way of Escheate, be­cause the land wherein the Tenant hath such estate, doth still continue; but if a man seised in Fee of a rent charg, or rent seck, dyeth without heire, this Fee sim­ple,Absolute Conditionall. although it be of the first sort, doth perish, because the rent, wherein hee hath estate, being transitory, is by such dying without heire, quite swallowed up and drowned in the land, out of which it did issue. And albeit a Fee sim­ple of this kinde is sometimes absolute, sometimes conditionall, yet the condi­tion thereunto annexed, doth not alter the same in nature or kinde, but onely in the accidentall quality.

Secondly, a Fee simple determinable is such as may be determined by a speci­all limitation before the efluction of the time comprised in the generall and proper limitation.

Thirdly a base Fee-simple is when two Fee-simples in one thing are in being at one time, the one being in nature more worthy then the other. In which case that that is the least worthy, is called a base Fee-simple, because it is base in re­spect of the other.

There is a generall rule in the law, that none can have an estate lively, but the Donee; which is the party to whom it is given, or the heires of his body.Every estate of inheri­tance is either fee-simple or fee-tayle. And it is further to be observed, that every estate of inheritance is either Fee-simple, or Fee-taile; of the one hath been sufficiently spoken for this time: For the other, some further touch shall be given in the Chapter next follow­ing.

Particular Estates.

A particular estate is such as is de­rived from a generall estate by sepa­ration [Page 72] of one from the other; As if a man seised in Fee simple of lands or Te­nements, doth thereof Create by gift, or grant an estate Tayle, or by demise, a lease for life, or any estate for yeares, these are in the Donee or Leassee parti­cular estates in possession, derived and se­parated from the Fee simple in the Do­nor or Leasor, in reversion. Also if lands be demised to A. and the estate tayle ly­mitted to B. these are particular estates derived ut supra, and separated in interest from the Fee simple in remainder given to C. albeit the same remainder doth depend upon those particular estates. And of particular estates, some are Created by agreement betweene the parties, as the particular estates before specified; and some by the act of law, as the state of tenant entayle, apres possibility, d 'issue extinct, Estates by the Curtesy of Eng­land, Dower and wardshipp. For albeit an estate in Dower be not compleate, untill it be assigned, which oftentimes is is done by assent and agreement be­tweene parties; yet because the party, that so assigneth the same, is compellable so to doe by course of law; that estate is also said to be only created by law. [Page 73] Also an estate at will is a kinde of par­ticular estate, but yet not such as maketh any division of th' estate of the Leasor, for notwithstanding such estate, the Leasor is seised of the lands in his demeasne, as of Fee in possession, and not in reversion: Also an estate at will is not such a par­ticular estate, whereupon remainder may depend. But of all the states before men­tioned many fruitfull rules and observa­tions are both generally and particular­ly so lively set forth by the said Mr. Lit­tleton in the 1. 2. 4. 5. 6. 7. and 8th. chap­ters of his first booke, which is extant as­well in English as in French; whereunto I refer you.

Possession.

IT is further to be observed, that all estates that have their being are in pos­session, reversion, remainder, or in right, but of all these possession is the princi­pall, for that it is the full fruition of all the fruite of the estate. There are two de­grees of possession, The first and Chief­est possession in fait, Two de­grees of possession 1 possessi­on in fait.2 possessi­on enley. the other possession in law. Possession in fait or deede is such as is before spoken of, and that is [Page 74] most proper to an estate which is present and immediate, but such possession of immediate estate, if it be no greater then a terme; doth operate and endure to make the like possession of the Free-hold, or Reversson. When a man is said to have a terme, it is to be intended a terme of yeares; when it is said, a man to have the Fee of Lands, it is also to be intended a Fee simple; possession in Law, is that possession which the Law it selfe casteth upon a man before any entry or perancy of profits. As if there be a Fa­ther and Sonne, and the Father dyeth seised of lands in Fee, and the same doe descend to his sonne as his next heire, in this case before any entry, the sonne hath a possession in Law. So it is also for a Reversion expectant, or a Remain­der dependant upon a particular estate for life; In which case, if Tenant for life die, he in reversion or remainder be­fore his entry, hath onely possession in Law. All manner of possessions, that are not possessions en fait, are onely possessions in Law; and it is to bee observed, That if a man have a greater estate in Lands than for years, the proper phrase of speech is, that [Page 75] he is thereof seised; but if for yeares onely, then he is thereof possessed; but yet neverthelesse the substantive posses­sion is proper, as well to the one as the other.

Reversion.

A Reversion is properly an Estate which the Law reserveth to the Donor, Grantor, Leassor, or such like, when he doth dispose a Lease, or other estate in Law, then that whereof he was seised at the time of such disposition. As if a man seised of lands in Fee, doth give the same to another, and the heires of his body, or if hee doe de­mise the same for life or yeares, in this case the Law reverteth the reversion thereof in Fee to the Donor, or Leassor, or his heires, because hee departed not with his whole estate, but onely with a particular estate, which is lesse than his estate in Fee: And such reversion is said to be expectant upon the particular e­state also, if he that is but a Tenant for life of land by deed or parol, giveth the same to I.S. in tayle, or for terme of his life, which is a greater estate than he may [Page 76] lawfully dispose; in this case the Law reserveth a reversion in Fee in such Do­nor, though he were formerly but Te­nant for life. And the reason thereof is, for that by such unlawfull disposition, which by deed or word cannot be with­out livery and seisin, he doth by wrong pluck out the rightfull estate in Fee, that was thereof formerly seised in reversion or remainder, and by force thereof, by a priority of time gained in an instant, he was seised of a Fee simple at the time of the execution thereof. But if a man seised of lands in Fee simple, giveth the same unto A. and his heires untill B. do dye, without heire of his body; in this case the Law reserveth no reversion in the Donor, because the state so dispo­sed to A. is a Fee simple, which though it be a Fee simple determinable, is in na­ture so great, as the state which the Do­nor had at the time of such gift, and consequently he departed thereby with all his estate. And thereby an apparent difference is between a gift made to A. and the heires of his own body, and a gift made to him and his heires un­till B. dye without heire of his body; for in the one case the Donee hath but [Page 77] an estate taile, in the other a Fee simple determinable; A. hath a possession of reversion; for if B. dye without heire of his body, then whether A. be living or dead, the land shall revert to the Do­nor. But such possibilitie of Reversion is much differing from the nature and property of a Reversion; for he that hath but such a possibility, hath no estate, nor hath hee power to give his possibility; but in the other case, the Donor hath estate in Fee, and therefore hee hath power to dispose thereof at his plea­sure.

Remainder.

A Remainder is a remnant of an e­state disposed to another at the time of creation of such particular e­state whereupon it doth depend. As if I. S. seised of lands in fee, demiseth the same to B. for life, the Remainder to C. and the heires of his body, the re­mainder to D. and his heires; In this case B. hath a particular estate for life, and the remnant of the estate of the Leassor is then also disposed to C. and [Page 79] D. ut supra whereby B. hath an estate for life: C. A remainder in tayle: and D. a remainder in Fee depending in order upon the particular estate in possession; and in every remainder five things are requisite.5 things Required in a re­mainder.

1. That it depend on some particular estate.

2. That it passe out of the Donor grantor or leassor at the time of Creati­on of the particular estate, whereupon it must depend.

3. That it vest during the particular estate, or at the instant time of the deter­mination thereof.

4. That when the particular estate is created, there be a remnant of an estate left in the Donor to be given by way of remainder.

5. That the person or body, to whom the remainder is limitted, be either ca­pable at the time of the limitation thereof, or else Potentia propinqua to be thereof capable during the particular estate; If lands be given to I. S. and his heires the remainder for default of such heire, to I D. and his heirs, that remainder is voyd because it doth not depend upon any particular estate. But [Page 78] if land be given to I D. and his heires during the life of I, Reason. N. the remainder to I B. this remainder is good,No re­mainder can de­pend upon a Fee sim­ple. But up­on a par­ticular e­state de­scendable. Nota. for it is not limitted to depend upon a Fee-sim­ple, but upon a particular estate, which is only called an estate for life of I B. dis­cendable. If lands be given to B. For twelve yeares, if C. Doe so long live, the remainder after the death of C. to D in Fee, the remainder is voyd, for in that case it cannot passe out of the Leor. al temps dl Creation dl perticuler estate p^r. ans. But if a lease be made to B. for life, the remainder to the heires of C. who is then living, this remainder is good up-a contingency, That if C. Dye in the life of B. For this remainder may well passe ount of the Leasor, Reason. presently in a­bayance, without any inconvenience, be­cuse only the inheritance is separated from the Freehold as in abayance.

If lands be given for life with a re­remainder to the right heires of I S. and the tenant for life dieth in the life of I S. This remainder is void, be­cause it did not vest or settle either du­ring the particular estate, or at the time of the determination thereof; for un­till I S. dye, no person is thereof, capable [Page 80] by the name of his heires; but if lands be given to I. S. for terme of his life, the remainder to his right heire in the singular number, and the heires of his body; and after I. S. hath issue a son and dyeth, this is a good Remainder, and the sonne hath thereby an estate tayle; for although it were unpossible, that such remainder should vest during the parti­cular estate; because during his life none could be his heire; yet it might vest at the instant of his death, which was at the time of his determination of the particular estate. Concerning a fourth thing, if a man seised of lands in Fee, granteth out of the same rent or common of pasture, or such like thing (which before the grant had no being) to I. S. for terme of his life, the remainder to I. D. in Fee, this re­mainder is voyd; because of this thing granted, there was no remainder in the grantor to dispose. And whereas some heretofore have been of opinion, that albeit the same can take no effect as a remainder, yet it shall take effect as another grant of a new rent or com­mon, ut res magis valeat quam pereat.

There is a rule of Law, that all things [Page 81] enjoyed in a superior degree,A Maxim. should not passe under the name of a thing in an in­ferior degree: and therefore if lands be given to two persons, and unto the heirs of one of them, or unto the husband and wife, and the heires of the husband, and he that hath the estate of inheritance granteth the reversion of the same land to another in Fee, such grant is voyd, because the grantor thereof was seised in a superiour degree, viz. in possession, Reason. and not in reversion, as appeareth 12^o. Edw. 4. 12 & 13 Edw. 3. Brooke, Title of Grants. And concerning the fift and last thing; If a Lease be made of Land for terme of life, the Remainder to the Major and Commonaltie of D. whereas there is no such Corporation then in being, this Remainder is meer­ly voyd; albeit the Kings Majesty by his Letters Patents doe create such Cor­poration during the particular estate, at the time of such grant the Remainder was voyd, because then there was no such body Corporate thereof capable, or in potentia propinqua to bee crea­ted or made capable thereof during the particular estate; but the possi­bility thereof was then forraigne, [Page 82] and not prabably intended. The like law is if a Remainder bee limited to Io: the Sonne of T. H. who had then no Sonne, and afterwards during the parti­cular estate, a sonne is born, who is na­med Iohn, yet this Remainder is voyd; for at the time of such grant, it was not probably to bee intended that T. H. should have any sonne of that name. Also before the dissolution of Abbies, if a lease of lands were made to I. S. for life, the Remainder to one that then was a Monk, such Remainder was voyd, for the cause before alleadged, albeit he were deraigned during the particular e­state: but if such Remainder had been limited to the first begotten Sonne of I. S. it had been good, and should accordingly have vested in such sonne afterwards born during the particular estate.

Rights.

A twofold Right.A Right in Law is either cloathed, or naked. A Right cloathed is when it is wrapped in a Possession, Re­version, or Remainder. A naked Right, which is also most commonly called a [Page 83] Right, is when the same is separated from the possession or remainder by dis­seisin, discontinuance, or other devesting and separating of the possession from it. As for example, if a lease of land be made for life to I. S. the remainder to I. D. in Fee; in this case I. S. hath a Right cloathed with a possession, and I. D. clothed with a remainder; but if a stranger that hath no right or title, doth in the same case enter into the land by wrong, & put I. S. forth of possession, such entry by wrong, is called a disseisin: & therefore the possession is moved from the right; for by reason thereof, the dis­seisor is seised of the land, and I. D. hath also the like naked right to the Remain­der by such disseisin, is likewise de­vested and plucked out of him, and can­not be revested in him during the right of such particular estate, unlesse the possession of the particular Tenant be therewith revested, which must bee by his entry, or recovery by action, and by such entry of the particular Tenant, or by his recovery with execution, the Remainder shall be revested as well as the particular estate. Also there is a Right in Goods and Chattels, as well as [Page 84] in Lands, Tenements and Heredita­ments, which is also clothed with a possession, so long as the rightfull pro­prietor hath the same, but if another doth take them from him by wrong, he now hath onely a naked Right to the same, which cannot be by him granted for the cause before alleadged; but yet he may release his right therein to him that is thereof possessed; for the same reason it is before alleadged of a release of Right in Land, and if such right hap­pen to be forfeited to the King, his High­nesse may grant the same by his Prero­gative.

Common Recoveries.

A Common Recovery is such as is suffered and recovered by the as­sent of both parties to the same of any Mannors, Lands, Tenements, Advow­sons, Rents, Services, or other Here­ditaments for such estate thereof, and to such use or uses as are between them agreed upon; and it is most commonly suffered by the Writ of Entry sur dissei­sin in le post. the nature of which Writ is sufficiently set forth by Justice Fitz-Herb. [Page 85] in his book of Natura Breviū, albeit sometimes it hath been, & may be also u-in other actions. And such common re­covery is usuall by single, double, or treble voucher, as the cause doth require. And for the better understanding hereof, it is requisite to observe the terms of Law used therein. The immediate party that recovereth, is called the Recove­ror; and the party against whom the Recovery is had, is called the Recoveree; but in the proceeding therein, hee that is to recover is called the Demandant, and the party against whom the imme­diate recovery is to be had, is called Te­nant; for it is to be noted, that he must be Tenant of the Freehold, or else the Recovery cannot be a good and suffi­cient assurance in the Law. A voucher is the calling into the Court of some o­ther person to warrant the land; and he that first voucheth (viz.) he that cal­leth another to warranty, is the Tenant, and the party vouched termed the Vou­chee or Tenant by the warrantie. And in a Recovery with a single voucher, are included two Recoveries, viz. one at the suite of the Demandant against the Tenant, and another at the suite of the [Page 86] Tenant against the Vouchee. And if it be with a double Voucher there are in­cluded in it, three Recoveries, one by the demand against the Tenant, one o­ther by the Tenant against the Vouchee, and the third by the first Vouchee a­gainst the second Vouchee. And in a Recovery with a treble Voucher, are included foure Recoveries, whereof three are such as are last mention [...]d & a fourth is a Recovery by the second Vou­chee against the third; and in these Re­veries the Demandant hath Judgement to recover the land against the Tenant, and the Tenant hath likewise Judgment to recover in value against the Vouchee; and if it be with a double Voucher, the first Voucher hath also the like Judge­ment to recover in value against the se­cond; and if it be with a treble Vou­cher, the second Vouchee hath the like Judgement against the third. And the Record also maketh mention of the execution of the Judgement against the Tenant by Entry, or Writ of Habere fac seisinam accordingly. And when such Recovery is so executed, the uses agreed upon, do forthwith arise out of the Lands, Tenements, &c. so recove­red [Page 87] accotding to the mutuall agreement of the parties.Recoveries with single voucher. The scope of a common Recovery, with a single Voucher, is to barre the Tenant and his heires of such onely estate taile which then is in him, to barre others of such estates as they have in any Reversion expectant, or re­mainder dependant upon the same. And of all Leases and Incumbrances derived out of such Reversions or Re­mainders. The scope of a common Recovery with a double Voucher,Recovery with dou­ble vou­chcr. is to barre the first Voucher and his heires of every such estate as at any time was in the same Voucher, or any of his An­cestors, whose heire hee is of such estate; and all other persons of such right to a Reversion or Remainder, as were thereupon at any time expectant or de­pendant; and of all Leases, Charges, and Incumbrances derived out of any such reversion or Remainder, and that will be also a perpetual bar of such estate whereof the Tenant was then seised of in reversion or remainder expectant, or dependant upon the same, &c. Recovcry with tre­ble vou­cher. The scope of a common recovery with a treble Voucher, is to make a perpetuall barre of the Estata of the Tenant, and of [Page 88] every such estate of inheritance as at any time had been in the first or second vou­chee, or any of them, or either of their Ancestors, whose heires he, or they are of such estate, and as well of every Re­version thereon dependant, as also of all Leases, Estates, Charges, and Incum­brances derived out of any such Rever­sion or Remainder.

The Law doth so protect the Kings Possessions, that they cannot be devested or taken from him by any faigned Re­covery, Disseisin; and such protection thereof doth also support and preserve the remote reversion and remainder pur­suing the same, that they cannot bee devested by a faigned recovery suffered by Tenant in taile in possession, or by his Feoffement, or by any disseisin of the Freehold; but yet such Recovery will be sufficient of the particular estate taile, of the Recoveree or Vouchee, and of such Reversion there upon dependant as are in esse between his estate and Remain­der in the King, unlesse the estate taile of the Recoveree or Vouchee were created by Letters Patents of his Highnesse, or of some of his Progenitors, or by his, or some of their provision.

Fines.

AS a common Recovery is an assu­rance of the greatest force to barre such reversions and remainders as are a­foresaid in the precedent Chapter, so to another purpose, that is to say, to Con­clude strangers of their right, if they doe not make their claime according to the forme of the Satutes in that behalfe made' a Fine, is before all other assurances to be preferred, and it recei­veth the name of a Fine, Quia finis fi­nem legibus imponit. In every fine there are two severall parties, the Commissor, and the Commissee; the party levying the Fine is called the Commissor, and he to whom it is levyed, is called the Commissee. A fine is partly said to be le­vyed, when it is knowledged, in the Court, or when it being knowledged else where, is certified into the Court, and received to be there ingossed and recorded. There are two sorts of Fines, the one at common law, the other levyed and proclaymed according to the sta­tute. Two severall statutes are chiefly to be considered in fine levyed, and pro­claymed according to the forme of a statute, the one of them is the statute of [Page 90] 1. R. 3. chap. 7.1. R. 3. cap. 7. 4. H. 7 cap. 24. 32. H. 8. cap. 36. The other is the statute of 4. H. 7. chap. 24. being in some thing afterwards explained by a statute made in Anno 32. H. 8. chap. 36. the number of these proclamations are foure: and to be made at foure severall termes, and a fine levyed, and proclai­med, in the Kings Majesties Court, be­fore his Justices of the common Pleas: of any lands, or hereditaments is or­deyned to be a finall end, and to con­clude as well privies as strangers to the same, except such strangers as are wo­men, Covert persons then being with­in age viz. the age of 21. yeares, in person, or out of this Realme, or not of whole minde, at the time of such fine levyed. But this exception is conditio­nall, viv. that they or their heires, inheri­table to the same lands &c. doe take their action or lawfull entry according to their right and title, within five yeares next after they be of full age of 21. yeares, out of prison, uncovert, within this Realme, and of whole mind, and the same actions sue, or their lawfull entries take and pursue according to the law. Concerning fines with procla­mations, five things are to be observed. [Page 91] First the time of levying and proclai­ming the same.5 things are to be ob­served concer­ning fines with procla­mations. Secondly the place where, and before whom it is to be le­vyed. Thirdly of what things it be le­vyed. Fourthly what ceremonies are therein to be observed. Fiftly the seve­rall times are to be observed and con­sidered; First that the fine be levyed af­ter the feast of Easter, which was in the yeare of Lord God, 1496. For all fines levyed before that time are out of the compasse of this statute 4. H. 7.4, H. 7. As by the letter of the same statute it ap­peareth; 2. that the proclamation must be made in time of the terme; and ther­fore if any of those proclamations doe happen to be made either before the be­ginning or after the end of any terme, or on a Sunday, or other Festivall day ex­empted from the terme, as on the feast day on of the Purificatioa of St. Mary the virgin, Ascention day, all Saints, All Souls or on the feast day, of St. Iohn Baptist, if it happen on any other day then on the friday next after Trinity Sunday and to be recorded accordingly,23. Eliz. cap. 3. then if it be not holpen by the statute 23. Eliz. cap. 3. All the proclamations are rever­sable, by a writ of error, or by Plea, as [Page 92] it appeareth in Finches case Plow: com. 266. 267. and then the fine will be of no other natur or force,Plow. Com. 266. 267. then a fine without proclamations And although in truth, the procalmations were all made within the termes, according to the forme of the statute, yet if the re­cord or records, doe purport the con­trary, they are reversable by error, or avoydable by Plea, if it be not holpen by the said statute; for a record is of that credit in law, that no averment may be admitted to the contrary.

It is to be considered who are pri­vies, and who are strangers to a fine; ac­cording to the statute, there are three privities only. 1. privity in bloud only. 2. privity in estate (tantum) 3. privity in bloud and estate. There are three kindes of privities. 1. in bloud tantum. 1. One is when a man is heire to to his late Ancestor, and yet hath no­thing by discent from him. As for ex­ample, if a father seised of lands in fee, doth thereof infeoffe a stranger and his heires, or if he by his last will and Testa­ment in writing did dispose the same, being holden in Soccage to ano­ther in Fee, and hath issue and dyeth, in [Page 93] such case, sch issue is privy in bloud, having nothing by discent. 2. One other kinde of privity in bloud is, when something is descended unto him, as heire unto his Ancestor and yet he claymeth the same by some other right, and not as heire, to such Ancestor. As for example, if there be a father and sonne, and the sonne purchaseth lands of a stran­ger in fee, and is thereof disseissed by his father, who dieth thereof seised, and the same descend to his sonne as heire, in this case the sonne is privy also in blood, but not in estate; for although the possession of the same land came to him by discent as heir to his father, yet he was therein remitted forthwith to his former estate. 3. And a third kinde of privity in blood tantum, is where a man in some respect is privy in blood and estate, and in ano­ther respect privy in blood tantum. As for example, if there bee two brothers, and the eldest purchaseth lands in Fee, and is thereof disseised by his younger brother, afterwards disseised by a stran­ger, and that stranger dyeth thereof sei­sed, the younger brother being within age, and afterwards the elder brother [Page 94] dyeth without issue, the younger sonne hath two manner of rights to the land; the one is a right of Entry against such heire as is in by descent during his mi­nority; but that right is onely in respect of his former possession which he obtai­ned by disseisin, and not as heire to his brother, and in this respect he is privy in blood to his eldest brother, but not privy in estate. The other right that is now in the younger brother, is onely a right in Action, and not a right of En­try, and this is in him as heire to his brother, whose entry was taken away by the said discent, in respect of his right, he is privy in blood and estate to his bro­ther. Privity in estate tantum, is where a man claimeth an estate in land, as as­signee to another; as if A. infeoffe B. in this case B. and his heires are privy in estate to A. Privity in blood and in estates are of two sorts, whereof the one may properly be called a privity of blood and estate, the other is so called unproperly, and in a borrowed sence. That which is properly called a privity in blood and e­state, is when both privities do accrew by discent, by or from one Ancestor. The other is, when the one of them accreweth [Page 95] by one manner of title, and the other by title of another kinde; As for example: If there be a father and a sonne, and the father purchaseth lands, and dieth there­of seised, and the same doth descend to his sonne, hee is to his father in a pro­per sence privy in blood and estate; because both those privities do to him accrew, by one discent from one An­cestor.

It is to be noted, that such privyes as the statute meaneth, are after the in­grossing de le fine et proclamation made according to the forme of the statute, absolutely barred without hope of re­covery or restraint, by any claime; but such as are strangers are barred only conditionally, if they or their heirs doe not claime according to the forme of the statute within the times therein prescribed. It is a rule in law, that no error in the fault of the Judge can be assigned to reverse a Judgement, unlesse it be so apparant, that it may be tried by viewe of the record, or by inspection of the person: for if it should, many grave Iudgments would be overthrowne by corrupt tryalls, of false surmises to the subversion of Iustice and maintenance [Page 96] of vice. But if the Judge give judgment for the one party upon the matter ap­pearing of record, whereas he ought to give Iudgment for the other party, this is reversable by error, because such a faulte of the Iudge through ignorance of the law is apparant by the view of the record. Also a fine levyed by a feme covert is not erroneous, & therefore it is not reversable by error, but avoydable by her. Also a fine levyed by a feme co­vert at the common law is avoydable by the entry of the husband; yet since a fine levyed at this day and proclamation according to the forme of the said sta­tute of 4. H. 7. or 31. Eliz. Cannot be avoyded by the entry of the husband, of the commissor, as to the estate of inhe­ritance, but only to the Franktenement during the coverture, and so long af­terwards as he shal be tenant by the cur­tefy, if he had issue by his said wife, be­fore the fine levyed. And in that case al­beit the husband doe enter within five yeares or before proclamations had and made, the Feme and her heires are bar­red as privyes to the fine, the words of the said statute of 4 H. 7. be the fine to be a finall end, and conclude as well [Page 97] privies as strangers, and yet all stran­gers shall not be barred by such fine, the Kinge is no such stranger as is compri­zed in the said act; for if the law-makers had meant to conclude the King there­by of his right, then it is not to be doubted (his greatnes being such as it could not be forgotten) but they would have made some provision for his claime, which thing they have not done, because they never intended to conclude him; but others, being bodyes corporate of things that goe by way of succession, are comprized in this word (strangers) in the body of the act. And yet they are not conteyned in the letter of exception, or of any of the savings which doe save rights, to men and their heires, speaking nothing of corporati­ons or successions, or of any thing in succession.

There be two kindes of liveries;Livery twofold 1 en fait 2. in law the one called a livery en fait which is a ce­remony used in the execution of a Fee­offment in Fee, or a lease for life, by de­livery of the ring of the doore of the house, or a clod of the land conteined in the Feoffment, in the name of the house and other hereditaments therein [Page 98] comprised. The other is called a Li­very in Law, or a livery within the view, with the like ceremony in other forme used in the execution of such Feoffement, or Lease pur vie; but that is not alway made upon the land, but onely in the view thereof, that is to say, in a place where the parties doe see and behold the land; and the Feof­fer so beholding the same saith to the Feoffee, I make livery to you of this land according to the purport of the Deed (if it be a Feoffement by Deed) if it be without Deed, then the words are to this effect (viz.) I doe deliver to you seisin of this land; or, if I doe make livery and seisin of this land to you and your heires, or if it be for terme of life, to you for terme of your life. This be­ing done, the Feoffee or Leassee, must en­ter, and before such entry the livery within the view is not compleate; for if the Feoffer happen to dye before an entry made by the Feoffee, such livery within the view is voyd, and cannot be good by any entry afterwards made.

Conveyances and Assurances by Deede poll, or by Paroll.

A Conveyance or Assurance by Deede poll, is when it is made by a single Deed which is not indented, and albeit many Conveyances may be by Indenture, which could not be good by Law, if they were made by Deede poll, or by Paroll; yet è converso all Conveyances and Assurances that may be sufficient by Deede poll, or by Pa­roll, may also without all question bee good by Indenture. Also what thing soever may be conveyed by paroll, may be also conveyed by Deede poll, but è converso, many things may be conveyed by Deed poll, which may not be con­veyed by paroll. Therefore it seemeth fit now to consider what things in re­spect of their nature and kinde may be conveyed by Deed poll, and not by pa­roll; and as touching Hereditaments transitory, or things transitory, which doe passe properly, or arise by grant, not by Livery, Reversions, and Remain­ders [Page 100] expectant, or dependant upon a particular estate in any Hereditaments whatsoever, may by apt conveyance, passe, or be created by Deed poll, but not by paroll: and hereupon ariseth the generall rule, that those things which do lie in grant, and not in livery, cannot passe by paroll, but by deede. But such things as doe lie in livery may passe without Deedes; Feoffements of Mes­suages, Lands, Houses, Mannors, or Rectories, and such like, are Good without Deed; and so are Leases for yeares thereof made; because the Free­hold thereof will passe by Livery; o­therwise it is of grants of Seignori [...]s in grosse Rents, Services, Commons, Ad­vowsons, Wasts, Liberties, Franchises, and such like, being transitory, or of such Remainders or Reversions as are afore­said. It is to be noted, that Lands, Te­nements, or Hereditaments, or any e­state therein, or any estate in a thing issuing thereof, cannot be conveyed to the King without matter of Record, as by Fine or Recovery, Record, as by Deed inrolled, and therefore a Grant, or any other Conveyance of such thing by Deed, is not sufficient, unlesse the [Page 101] same deed be inrolled. And if a Lease of Land be made for life to I. S. the remain­der to I. S. in Fee taile, the remainder to the King in fee, this remainder to his Ma­jesty cannot be good, unlesse the same be by deed inrolled: But a Deed poll thereof inrolled will be no lesse sufficient to this purpose than an Indenture inrolled. And to the enrolment therof, the King is tyed so no time certain, so that an enrolment thereof at any time during his Majesties life will be good in Law; but if it be not inrolled in his life time, then nothing can thereby be in the King. And if the King grant the same to another before Inrolement, the grant is voyd, and can­not bee made good by the enrolement thereof afterwards.

There are two sorts of conveyances by deed. The one doth enure by trans­mutation of possession, transferring of a naked right. Conveyances by deed that doe enure by way of transmutation of possession, are of divers sorts; whereof some do enure by way of removing of a possession, and creating of an estate, some by creating both of an estate and possession; some by extinguishment, some by suspension hereof; and some by remo­ion of the possession, and drowning [Page 102] of the estate. Conveyances by trans­mutation of a possession, that do enure by removing both of the estate and pos­session, are such whereby an estate and possession formerly setled in the one party, are removed to the other party. Conveyances that do enure by removing of a possession and creating of an estate, are such, whereby a possession formerly setled in one party, is removed to another by creation of a new estate other then such as was in the party from whom it was derived. A conveyance that doth enure by creation of an estate and pos­session, is when the thing conveyed had no being before the making of such con­veyance. A conveyance by transferring of a possession, is said to enure by way of extinguishment, when the thing and the estate conveyed are thereby extin­guished. A conveyance doth enure by remotion of the possession, and a drowning of the estate. When a surren­der is made of a particular estate for life, or for yeares to him that hath the Reversion or Remainder thereof, in which case the possession of the land is removed, but the estate is drowned; for he to whom the surrender is made [Page 30] is not seised of the particular estate, but of such estate wherein the same is drow­ned; and such surrender, of an estate which might have beene created with­out deede, or matter of record, may be surrendred by paroll.

Note that a surrender to any person of a particular estate which could not be created without deede, matter of re­cord cannot be good by Paroll.

Conveyances by will.

A Conveyance by will is common-called a devise, the party that gi­veth or bequeathes a thing by will is commonly called the devisor, and he to whom it is bequeathed the devisee; of devises generall there be three sorts, 1. a devise by the common law, 2. a devise by custome 3. by force of the statutes of 32. and 34. H. 8. By the common law no manner of hereditaments, wherein the Testator had any greater estate then for yeares (except an estate in a use of lands or Tenements) was devisable by will, but he that had such use in Fee, or for another mans life, might before the statute. 27. H. 8. de usibus in possessio­nem [Page 104] transferendis, have devised the same by will as he might doe of a terme in use. For the better discerning what de­vise is good by the common law, and what not: fix things are meet to be ob­served. 1. That the devisor be a person able to devise. 2. that the devisee be ca­pable of the thing devised, 3. That the things are devisable by law, 4. That the purport thereof being no other in ef­fect, then such as might stand good in law, in a conveyance by act executed in the life of the devisor, 5. That the de­vise be not impossible, 6. that it be cer­taine.

Concerning the first of these foras­much as every will doth take effect by the death of the Testator, therefore without the death of such Testator, there can be no will, and without a will there can be no devise, and consequent­ly all kinde of corporations are unable to devise any thing by will, because they never dye. A Maior and commonalty, Provost & fellowes of a colledge, War­dens and commonalty of a company, cannot devise any thing by wil; no more can a Bishop, Deane, Parson, or Vicar, devise any thing devisable, which they [Page 105] have not in their politique capacity, (viz) which he hath in right of his Bishoprick, Deanry, Parsonage, or Vicarage, but every of them may de­vise such thinges devisable at they have in their naturall capacity; for in re­respect thereof every of them must dye, but there are some naturall persons which have no power nor ability in law to devise any thing by wil; as persons not of whole minde and Ideots; But an in­fant of 14. yeares of age may make a will, and thereby make an executor of his goods. The husband may devise goods or chattells to the wife, albeit they are one person in law; A woman covert hath no power to give any goods by will, for without the consent of her husband, she cannot by law make a will, either of any of her husbands goods, or of such chattles in possession, or in right of action, as are in her husband in his right, or her selfe in her right. 12. H. 7 Fol. 24. A man out­lawed in a personall action, or a person attainted of felony or treason, cannot devise any chattells personall or reall; for if it were devisable or grantable, the property thereof is in the King, as afore­said [Page 106] by such outlary or Attainder.

Concerning the second thing to be observed, not only persons of full age, women sole, and persons of discretion and whole minde, but also infants feme, coverts, Ideots, and mad men are capa­ble of a devise, because it tendeth to their benefit, and not to their prejudice; but yet such capacity of a woman covert is subject to a condition in law (viz.) if her husband doe not disagree to the same; for if at any time during the co­verture he doth disagree thereunto, the devise is void in law, unles before such disagreement he did formerly agree to the same; but if he doe once agree to it, his disagreement afterwards is of no effect. Also persons outlawed in a per­sonall action, or convict or attainted of fellony or treason, are capable of a de­vise; but in such case, if the devise be of a chattell, the King shall have the thing devised, as a chattell forfeited by the outlawry, conviction, or attainder; and if the devise be of an estate in Free-hold, or Inheritance in lands or Tenements, then in some case the King, and in some case the Lord, of whom the same is holden, as the case may require, shall be [Page 107] intitled thereunto; Also a devise made to a childe in his mothers womb is good in law.

Of the third observation, for the bet­ter discovering what thing is devisable by the common law, and what not, a difference is to be observed, betwixt an estate to the use of another created by law; and an estate made or conveyed to the use of another by agreement of parties; for where it is created by law to the use of another; there it is not devisable by will, but if it be made or conveyed by agreement, it is other wise; as for ex­ample; If a man seised in Fee of lands holden in soccage, hath issue a sonne and dyeth, the sonne being under 14. yeares of age, in this case the law ap­pointeth the care and custody of such issue, and of the same lands, which came to him by discent from his father, unto his mother (if she be living) as Guar­dian in soccage, untill he be of the age of discretion viz. 14. yeares; but this ward­ship in soccage, so to her accrewing by by law, is to the only use and proffit of the Infant, and therefore it cannot be devisable by will, neither shall it goe to the Executor or administrator of the [Page 108] mother after her death, but to the next Ancestor of the Infant of the mothers side, as it appeareth, Plowden fol. 239. and 294. in the case between Osborne and Joye.

Concerning the fourth if cesti{que} use in Fee of Land before the said Statute of 27 H. 8. had devised the same to I. S. and his heires, and for default of such heires to remaine to I. D. or if hee had devised the same to I S. and his heires, untill I. N. doe happen to die without issue of his body, the remainder to I. D and his heires, this devise of such Re­mainder had been voyd; because by the rules of Law, a Remainder could not be limitted to depend upon an estate in Fee simple, so that such a Remainder could not have been created by convey­ance executed in a mans life.

Concerning the fifth observation; if a man be possessed of a terme determina­ble by his death, doth devise the same by will to another, the devise is voyd, be­cause it is unpossible that it should take any effect. Also a devise to I. the sonne of T. S. of D. whereas the same of T. S. hath onely issue W. is voyd, because there is no such person in rerum natura. [Page 109] So it is also, if a terme be devised to the Executors of I. D. whereas I. D. died Intestate.

Concerning the sixt observation, if any having issue many children, doth by Will give or bequeath a cup of silver, a horse, or any other thing devisable, to one of his sonnes, this devise is voyd, because it is uncertaine which of his sonnes should have it; so it is also, if the like devise be made dis-junctively to I. S. or I. D. but a devise to one of his sonnes, at the choice of his Executors, is good, because the uncertainety may be reduced to a certainety by the election of the Executors. So also if a man be pos­sessed of a terme in lands for 60. years, and by his Will devise to I. D. such and so many years of his said terme, as shall be nominated or appointed by his Exe­cutors, this devise is good, causa qua su­pra: and yet a gift or grant thereof in that form made by conveyance, executed in his life, could not be good, the rea­son thereof is, because he can have no Executors in his life time, by reason whereof it is impossible to reduce such Gift or Grant unto a certainety before his death; and a conveyance executed [Page 110] in a mans life must be reduced to a cer­tainty before his death, or else it can be of no effect in Law But that reason ceased in a devise (which taketh no effect untill his death) and therefore the Law is therein differing according­ly. Also it is to be observed, that a de­vise of Chattels may be good, either by will nuncupative, or by writing.

Concerning a use, it is to bee obser­ved, that a man seised of Lands or Te­nements in Fee, to the use of him and his heires, could not by the common Law devise the use thereof by Will, un­lesse the same Lands or Tenements were devisable by custome. But if I. S. seised of certaine Lands in Fee, had infeoffed certaine persons thereof to the use of himselfe and his heires, this use so seve­red from the possession, was devise­able by the Common Law, albeit the Lands out of which it riseth were not devisable.

Conveyances by Will of Lands devisable by Custome.

IT is to be noted, that albeit by the rule of the Common Law no Here­ditaments [Page 111] (other then a Use) was devi­sable by Will; yet by particular Cu­stomes in divers Cities, Burroughs, Lands and Tenements therein scituate have alwaies been devisable by Testa­ment, so that the custome doth therein alter course of the Common Law. But in every such devise, six things are espe­cially to be observed.

• 1. That the thing devised [...]ee com­prized within the Custome.
• 2. That the devise be pursuant to the custome.
• 3. That the power of the Devisor be not restrained by Statute.
• 4 That the Custome be lawfull and reasonable.
• 5. That the intent of the Devisor be certaine, lawfull, and not unpossi­ble.
• 6. That the Will bee not counter­manded.

Concerning the first of these, the ob­servation is double.

1. That the thing devised be as well in nature and kinde, as also in continu­ance, such as is warranted by the cu­stome.

2. That it be contained within the [Page 110] [...] [Page 111] [...] [Page 112] bounds and limits thereof. As to the first part, if by custome all the tenements within a certaine City or Burrough bee devisable by Will; A rent charge, and rent seck which had continuance time out of minde, are in nature, kinde, and continuance, such as bee comprised within the custome, and therefore are by force of such custome devisable. As to the sec [...]d part of the observation; If a man seised of rent in fee, which time out of memory hath had a continuance, the same rent is issuing as well out of lands within the limits of such custome, as aforesaid, as also out of Lands not contained within the precincts, this Rent is not devisable by the said Cu­stome, because the same or any part thereof is not contained within the pre­cincts thereof, which must bee taken strictly.

The second observation hath three branches, one concerning the person de­vising, another touching the persons to whom the devise is made; And the third granteth the devise it self.

1. As to the first branch, a devise made by a Forraigner, to any person of lands or tenements scituate within the City of [Page 113] London. — to the Custome of London, as appeareth M. 8. & 9. Elix. fol. 255. But yet some persons compri­sed within the generall custome are by the rule of the common Law exempt from the same, as a devise made by a person lunatique, an Ideot, an Infant, and a man seised onely in the right of his wife, is voyd, this custome notwith­standing.

As to the second branch; Citizens and Freemen of London may by the cu­stome of the said City, without the Kings license, lawfully devise lands in London, whereof they are seised in Fee, to Guilds or Corporations, as appea­reth by 5. H. 7. 10. 19. But if hee bee only a Freeman, and no Citizen, or on­ly Citizen and no Freeman, hee cannot without the Kings speciall license law­fully devise in Mortmaine.

As to the third branch; if the cu­stome be, that lands and tenements within a certaine Citie be devisable in Fee taile for such estate, West. 2. was a Fee simple; also it seemeth probable, that by force of a custome, that maketh lands and tenements devisable, a man may de­vise those things that are therein grow­ing [Page 114] as trees, grasse, and such like. But if a devise of a rent, or common out of lands devisable, is not pursuant to the custom, because they had no being at the time of the devise, and though they had any beginning, yet they were created within the time of memory, they are not devisable for the cause aforesaid. If a house be onely erected upon devisable lands by custome, a devise thereof is pur­suant to the custome; albeit in that place there was never any house before, because the house doth reteine the na­ture of the land, whereupon it was built as a principall part, whereof it doth consist, the change of the name not­withstanding.

Concerning the third observation; it is to be noted, that albeit the custome hath beene to devise lands to any per­son or body pollitique, yet the same may not by force of such custome be de­vised at this day in mortmaine, upon paine of forfeiture, according to divers statutes, unlesse the licence of the King, with the consent of the Lords mediate and immediate, be first therin had and obtained; for such custome is in that be­halfe qualified and retrained upon the [Page 115] paine aforesaid by the statutes of mort­maine (viz.) Magna Charta. A custome that beganne onely since the statute, cannot be good; for every custome that may evidently appeare to have his be­ginning since the time of R. 1. is voyd in law, as appeareth by 33. H. 6. 27. 9. H. 6. et. Littleton 38. yet never­thelesse the customes to devise mort­maine are not abrogated by any of the said statutes; for the devise, or other forme of alienation in mortmaine is not by any of the said statutes made voyd, but it is only in advantage of the the Lords, who might susteine losse thereby, prohibited upon paine of such forfeiture to them accrewing, as there­by appeareth; so that by licence & con­sent as aforesaid, a devise in mortmaine by force of a custome may stand good in law, without danger of the penalty of forfeiture.

Concerning the fourth observation; if the custome be not lawfull and reason­able it is voyde; so that a devise by ver­tue thereof cannot be of any force in law. And therefore if an alien doe pur­chase and devise lands lying within a certain Borough by force of a custome [Page 117] that lands and tenements within the same Borrough are devisable to aliens in Fee to their owne use, and by them devisable by testament, this de­vise is void, for such custome a­gainst the Kings prerogative is un­lawfull; albeit his highnesse cannot be thereunto entitled without office or other matter of Record, yet meane betweene such purchase and office found &c. I take the Alien to be pernour of the profits, and that the estate purchased is forthwith in consideration of the same lands, untill the kings title doe a­peare by office or other matter of record Also it is to be observed, that a custome to devise a Right, separated, from the possession, cannot be lawfull, because it savoureth of maintenance. As touching unreasonable customes, if the custome within any Citty or Burrough be, that Tenements therein situate are devisa­ble by Infants, Ideots, or mad men, it is unreasonable, and therefore void. But a custome that the same be devisa­ble by children of 14, years is good.

Concerning the fifth observation; if the intent of the devisor be uncertain, [Page 116] unlawfull, or impossible, the devise will be of no force in law. The intent of devisor may be uncertaine, either in the person to whom he doth devise, or in the thing devised, or in the estate that should passe thereby. And first concer­ning the person it appeareth 49. E. 3. 3. one Iorden did devise certain Tene­ments in London to one for life, so that after his decease the same should remaine unto 2. of the better sort of the fraternity of London, this remain­der was agreed to be void for want of certaintie, which persons of the frater­nity should have the same. Secondly, as as concerning the certainty in the thing devised; as for example; if a man seised of lands or tenements devisable; doth by wilbequeath a portion therof to I.S. this devise is void because it doth not appeare, what or how great a portion thereof the devisee should have by foree of the said will. 3. Albeit the intent of the devisor doth certainly ap­peare, and the persons to whom the de­vise is made, and in the lands and tene­ments devised, yet if the estate therein lymitted be so uncairten, that neither by matter expressed or implyed in the [Page 118] will, nor by a common Intendement it cannot be reduced into a certainty, the devise will be void in law. And there­fore if a man seised of lands devisable as well by will nuncupative as by wri­ting, doth by will in writing amongst other things bequeath the same to I. S. for such estate as is specified in a sche­dule thereunto annexed, and then the devisor dyeth without annexing any schedule to the said will, or other decla­ration of the certainty of the state, this devise is void in law. Now it is be con­sidered, that albeit the intent of the de­visor be certaine in all things, that ne­verthelesse though it be unlawfull, the same will be no force. And therefore it is also needfull to discerne, where and in what case the intent of the devisor is unlawfull, and where not; and the intent of the devisor is unlawfull, when it is so repugnant to the rules of the law, as that by any counsell learned in the law, it could take no effect by conveyance executed in his life time; as for example; a devise of a naked right, or possibility of a remainder to depend upon an estate in the simple thereby bequeathed, is said to be unlawfull; for as no such re­mainder [Page 119] could be bequeathed, id est con­veyed by any act executed in a mans life, so also no bare right could be conveyed by the like act executed in his life to a­ny person, other then such as were sei­sed, or to be seised of the free hold of the same lands at the instant of the ex­ecution of the conveyance, and that on­ly by way of the extinguishment. And hereupon it followeth, that a man hav­ing right to lands devisable being by defeisable title in the possession of I.S. cannot devise the same by will to I. D. So also the Lord, of whom the lands devisable are imediately holden by Knights service, cannot devise his possi­bility of Escheates or wardship, that may thereof accrew to him, when his Tenant shall happen to die without heires, or the possibility of wards, when the heires shall be within age.

Concerning an intent impossible, wee terme that an impossible intent, which by no probable and common possibility can be accomplished, and of such impossible intents, there are 3. sorts. 1, Impossible both at the time of the making of the will, and also at the death of the devisor. 2. Impossible only [Page 120] at the time of the devise, and not at the time of the decease of the testator. 3. Impossible at the time of the making of the devise. And as to first sort of lands devisable by will, bequeathed to the heires of S. who was attainted of fellony or treason, unreversed at the time of the devise, or death of the devi­sor: or if in time of Romish religion, such devise was made to one that was a Monk, being not deraigned at the time of the devise, or death of the testa­tor; or if the same be devised to the heires of I. D. who was then dead with­out heire; or to a corporation that had noe being at the time of the will, or death of the testator; Or if a man by his will doe devise a certain house in a Borrough, wherein at the time of his de­vise and death, he had nothing: Or if lands be devised to the executors of I.S. who died intestate, in every of these ca­ses, the intent of the devisor was im­possible, both at the time of the devise and death of the devisor; and for such impossibillity, the devises are absolute­ly voide.

Concerning the 2. sort; if lands were devised to a Monk, who at the [Page 121] time of the death of the testator was de­raigned, or to the heirs of one is that at­tainted of &c. which is afterwards rever­sed before his death, or to a Corporation that hath a being at the time of his death, but not created at the time of the devise, in these cases, the intent of the devisor, was onely impossible at the time of the devise, but not at the time of the decease of the testator. And yet I take the Law, that those devises be also voyd, nam quod ab initio non valet id tractu temporis non convalescit.

The sixt observation is, that the de­vise be not countermanded; for it is a cleere case, that it is countermandable at the pleasure of the Devisor, or thereby the devise will bee of no force in Law. And it is to be noted, that there are two kindes of Countermands, the one is a countermand in deed, the other a coun­termand in Law. A countermand in deed, is when a Testator doth expresly revoke his Will formerly made, or any part thereof; and this countermand by word is of no lesse force then if it were by writing; for albeit the Will containe, amongst other things devises of Lands, bee it in writing as an effectuall part [Page 122] thereof, in case where the custome or law doth so require it; yet neverthelesse an expresse countermand by word of the will, or of any devise of lands therein comprised, will be sufficient in Law to controle the same, as it appeareth by Reits case, 14 El. Also, if after the making of the Wil, the Testator doth cause a de­vise therein made to one man to be quite stricken out; this is also a countermand in deed of that devise, and the will stan­deth good for all the residue. A coun­termand which in Law is that which neither by word nor deede is expressed, but onely in those other acts implyed. As for example, the making of another will doth imply a revocation of the former, and therefore it is a countermand in Law thereof. So likewise if lands be de­vised by will, and afterwards the devi­sor infeoffeth a stranger in Fee thereof, this Feoffement doth imply a revocation of the devise of the land, and therefore it is in that part a countermand in Law, al­beit he afterwards repurchase the same. 44. Ed. 3. 33. And although lands devi­sable by a custome may be executed by a Writ of ex grm. querela, yet if there be no speciall custome to the contrary, the [Page 123] devisee may (if he please) execute the same by Entry as it appeareth by 35 Asss. plit. 12. 40. Asss. p. 2. 27. Asss. p. 60 And in every such case the possession in Law of the thing devised is immediately after the decease of the Testator no lesse cast upon the Devisee, then it should have been cast upon the heire, if no devise had been thereof made, as appeareth Brookes title devise, 490.

Conveyances by Will, by force of the Statute of 32 & 34. H. 8.

ALthough Lands and Tenements, wherein a man had any greater e­state than for years, were not devisable by the Common Law [...] until [...] the making of the Statute 27 H. 8. cap. 10. de vsubus in possessionem transferendis, men did commonly put their lands in use; (viz.) they did enfeoffe others in Fee, to the use of themselves & their heirs, to the end that they might devise the same use, and by force thereof after the decease of the Testator, the Feoffees did at the request of such devisee, make and execute to them an estate in the land according [Page 124] to the use devised, and if the Feoffees did refuse so to doe, the devisee might thereunto compell him by suite in the Chancery. And so by such subtill inven­tion the devisee obteined the effect of a devise of the same Lands or Tenements which were not then devisable by Law.