publication; we hold that it is a void devife, for a man cannot devife any lands but what he has AT THE TIME OF MAKING HIS WILL.

There is no act between the making of the will, and the death of the teftator, neceffary to be done to make this a perfect and complete will, no writing, no publication, no other act whatfoever; it is fubject to a revocation indeed, during the teftator's life, and is to take effect only from the time of his death; but it is a will, a difpofition of the eftate bequeathed FROM THE TIME OF MAK

ING THEREOF.

Wherever there is a disability in the teftator at the time of making the will, tho' that disability be actually removed before his death; yet the will will be void, because he had no ability AT THAT TIME.

Suppofe an infant makes a will, and devifes land, during his infancy; or a feme covert in the life of her husband makes a will, and difpofes of land thereby; tho' the coverture or infancy be afterwards removed, and the husband die, or the infant come of age, yet if either of the devifors die without new making or publication of their will, this is a void will, because of their original difability, tho' they should live many years after fuch difability removed;-removing these difabilities will not do, without a new publication, or making a new will.

Now these are perfonal difabilities, but this is a real one; he had NOTHING to difpofe of, fo here is a removal of a real difability;

and

and fhall the removal of that be more effectual for making it a good will, than removal of a perfonal difability;-No furely.

It is faid in Forfe and Hembling's cafe in 4 Co. that the making of the will is not the will, but only the commencement of it; the meaning of that is only, that it doth not transfer the intereft and property of the thing devised; but ftill it is his difpofition until he revokes it ;-now what commencement has this will as to these lands? It cannot have a commencement from the time of making the will, because the testator had not the eftate at THAT TIME ;-when then would you have this to be a will?-Muft you ftay until he has purchased to make this a will?

Now this act of purchasing these lands, and this act of difpofing of them, are two different things, and are of different natures ;you must suppose that eo inftanti that he purchases he makes his will, which is abfurd and repugnant.

The law of England is plain as to this point by all precedents, and the law is the fame of lands devifed by cuftom, as well as by ftatute- There is no will that I can find in any entry, but it is faid that the teftator is SEISED in fee, and that being fo feifed he ́made his will, and did difpofe, devife and bequeath, &c. which plainly fhews that it was abfolutely neceffary that he should be feifed in fee AT THE TIME HE MAKES HIS WILL; and of thefe there are many authorities; I shall name a few only, Co. Entr. 602, 664. and in Rafal 274, there is a precedent of a will

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New Nat.
Brev. 459

will of lands devifeably by cuftom, that the teftator was feifed in his demefne as of fee. 24 Hen. 6. 6. a.

Tho' the terms of pleading do not make the law, yet conftant pleading of a thing in such a manner, is great evidence of the law; and this argues the neceffity of the teftator's being feifed in fee at the time of making the will but it is objected, that lands devifeable by custom differ from lands at common law, because they are devifeable as goods and chattels, and appeal to the custom fet forth in the writ Ex gravi querela, in Fitzherbert's Natura Brevium 199. b. Now it is faid that by this cuftom, it is lawful to devife lands and tenements as chattels, tho' the teftator has not the poffeffion of them at the time of making the will; and that a man may dif pofe of his chattels and perfonal eftate, which he fhall for the future acquire, any time after making his will, to the time of his death, and therefore fhall difpofe of cuftomary lands in the fame manner.

In anfwer to this, I defire the custom, in that writ fet out, may be well confidered; and it will plajnly appear, that the custom is not general, that a man fo qualified may devife terras & tenementa as he may goods and chattels, but it is tenementa SUA-they muft be fua before he can difpofe of them, they must be his property before he can devife them-Now if they are not fug at the time of the devife, then he is out of the cuftom, and the will cannot be affected by it.

It

It is true, perfonal eftates and chattels may by the common law be difpofed of, BEFORE he has PURCHASED or had the POSSESSION of them; and there are many cafes that make out this; but, there is a great difference between a real and perfonal eftate, for perfonal estate and chattels are tranfient and fleeting, and not fixed and permanent as lands are.

Perhaps the greatest part of a man's ef tate is in goods to-day; he may have a mind to turn them into money to-morrow;this the neceffity of traffic in the world abfolutely requires. Would it not be hard that a man fhould be obliged to make a will every day, which he muft, if he could not difpofe of his chattels, because they have undergone fome alteration? This would be a great perplexity: but on the other hand, land continues the fame to the end of the world; —and as to real estates, there is time and opportunity to make fettlements as he thinks fit; but, as to perfonal estate, that is under conftant variation, it is quite otherwife in reason.

Suppose the cafe was of a devife of a real chattel, and a man fhould devife a term for years that he had not at the time of the devife, but had purchased fome time before his death: I doubt whether it would be good. Suppofe for the purpose, one takes a college leafe, fubfequent to making his will; the queftion is, whether this would be a good devife; I am inclined to think not. The cafe of Abby and Lever (Goldefborough 93.) comes up to this matter;-a man makes his

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will,

will, having a college leafe, or other lease, and devifes this leafe to 7. S. after making which will, HE SURRENDERS this leafe, and RENEWS the leafe with the dean and chapter; then dies, this queftion was, whether the devifee fhould have this leafe; and it was held that renewing the leafe was a revocation of the will, and that the leafe did not pass. This feems to be a very ftrong cafe as to this point, and the reafon is plain, because the eftate was NOT IN HIM AT THE TIME

OF MAKING THE WILL.

March 137. The queftion was there,"whether a term not affented to by an executor, and which passed ONLY AS AN EX"ECUTORY DEVISE, could pafs by the will "of the devifee;"-there it was held, that it was only a poffibility, and that nothing paffes by the will;-and indeed how could he difpofe of a term that was not his but another man's? It is hard to imagine fuch a prepofterous thing; but I fhall not give any pofitive opinion herein, this not being our cafe; the executor MUST ASSENT to a legacy, elfe nothing passes; for nothing can pass immediately WHERE A TERM IS DEVISED;but this enough to fhew the difference between a real and perfonal eftate;-one is permanent and lafting, the other mutable and fleeting.

To make a will to take effect from the purchase of an estate, is repugnant to the nature of a purchase, for a will gives it to another and his heirs; the purchafe gives it to himfelf and his heirs ;the will gives it to his wife, and the purchase gives it to himfelf