ing a rent thereout to the eldest fon for his life, and after the death of the fecond fon and his heirs wife, remainder to the firft, &c. fon of the fecond fon-The wife of the fecond fon had an estate for life by implication, by the opinion of Ld. C. Parker, T. 1718. Willis and Lucas, 1 Will. Rep. 472.-But this point was referred to the judges of B. R. Ibid. 476.

A devife that if William the eldest son of the teftator fhould happen to die without iffue, that then and not otherwise, after William's death, he devised it over to his fon Richard and his heirs; -held that William took an eftate-tail by implication. Comyns's Rep. 372.

Devife of a perfonal estate to a daughter by a fecond wife, and if he died before twenty-one, or marriage, and his daughter by his first wife fhould have one or more fons, then the teftator bequeathed his perfonal eftate to fuch fon as should first attain

the age of twenty-one; but if no fuch fon, then to 7. S.-The daughter by his fecond wife died under twenty-one, and unmarried. The daughter by the firft wife had a fon, during whose infancy a bill is brought to have the produce of the perfonal eftate placed out and improved for his benefit. The court declared, That all the intereft, income and profits that had arisen, or fhould arife from the faid eftate, from the death of the teftator's daughter by his fecond wife, ought from time to time to

G 2

be

be accumulated, added to, and go along with the furplus; and that in cafe the plaintiff died before twenty-one, the intereft, income and furplus, must go and belong to such person and perfons, as fhould be intitled thereto, according to the contingencies mentioned in the teftator's will. 3 Will. Rep. 306. by way of note.

their conftruc

7th. What circumftances are neceffary by 32 Hen. 8. and 29 Car. 2. (a) &c.

(a) Although N the circumftances of a will, the first IN the judges are that occurs is WRITING, this the ftatute favourable in makes abfolutely neceffary to be done in the tions of wills, LIFE of the teftator, the better I prefume, that if poffible, to prevent all frauds and difputes which this the intention of manner of conveyance will be liable to; but the teftator here it will be neceffary to distinguish may prevail; between the frauds which concern lands in teftator makes military tenure, and thofe of burgage-tethe difpofition nure and gavel-kind; the former fort,

yet where the

of his eftate as

;

the law would have done, had he been filent, or where his difpofition is made in fuch general terms, that his intention is altogether doubtful and uncertain, and cannot be collected from the words of the will; or where the teftator is establishing a fettlement against the reafon and policy of the law; in these cafes the judges have thought fit to reject the will. 2 New. Abr. of the Law 79.

for

for the reafons before noted, were not devifeable until the ftatute 32 Hen. 8. therefore, the circumftances which it appoints in this new difpofition of land must be obferved; but thefe are not requifite in devifing the LATTER; -for the people of Kent, (where the cuftom of gravel-kind most prevails,) happily fecured their land from any innovation of the conqueror; fo that AF

TER THE CONQUEST THEY STILL CONTINUED

FREE, and not fubject to the feudal duties, the preservation of which hindered the difpofition of other lands; therefore that peo ple ftill continued their old power and cuftom to difpofe of their lands according to the natural notion of property by will, or alienation; fo that lands of this tenure are NOT SUBJECT to the circumftances required by that ftatute, because they were devifeable

BEFORE.

For the fame reafons, lands of burgage Co. Lit, 111. tenure might after that ftatute have been devifeable by will nuncupative; for whoever had the feigniory of thefe lands, the feefimple feems generally to have been in the corporation, which rather intended the improvement of trade, than the military services; and as an encouragement to that, the inha bitants or tenants of thofe boroughs were allowed to difpofe of thofe lands by will, for provifions of younger fons; the eldest being generally fettled in his father's trade in his life-time, confequently provided for.

A. declares to B. his will was, That C. Cro. Eliz.100 fhould have his lands;-B. recited the

words,

Moor pl. 314.

3 Co. 31. a. Pl. Com 344.

b.

words, and afked A, if that was his will, who anfwered it was.-B. wrote down the words without the appointment and confent of A. in his life; -this was adjudged a void devife within the ftatute, because it was not only done without the confent or command of the devifor, but of the party's own head;-if B. had wrote the will, and afterwards had read it to 4. who had agreed, this fubfequent affent had made it as valid, as if it had been first wrote by his appoint

ment.

If a man expreffes in a letter, that his land after his death fhall go after such a manner; this has been adjudged a good devife.

Befides the circumftance of writing, called the inception, there are others to be confidered, viz. the progreffion or publication, and confummation by death, of the teftator ; and we muft carefully confider his ability and intent at each of these times.

For if A. be feised of ten acres in fee, and devifes all his lands to B. and then purchafes Black-acre; -this fhall not pass by the will, according to the judgment in Brett and Rigdon's cafe, for the ftatute only impowers perfons having lands to devife: A. had not Black-acre at the making his will, therefore

*

The words of the Stat. (32 Hen. 8. c. 1.) being, that "all and every perfon and perfons having, or which hereafter hall have any manors, &c. fhall have full "and free liberty, &c. to give, difpofe, will, and de "vife, &c."

a.

therefore not within the ftatute; and fince the intent of the devifor is the best rule in wills, it is reasonable to conclude, that he never defigned to convey Black-acre, for he had it not in his power when he fettled the difpofition of his other poffeffions.--But if A. by will had devised the manor of Dale, Pl. Com. 344, or Black-acre, particularly specified, and af terwards purchased it; this devife, they fay, may carry the purchafed land, tho' the devifor had it not at the time he made his will, for there appears to be his intent to Ventr. 241, purchase it for that end; fo if in the former cafe he had publifhed the will after the purchafe, that would carry the land, for publication of a will amounts in law to a making, and fo is in the nature of a new will.

If a man orders another to write his will, 3 Co. 31, k.' and to give Black-acre to J. S. and his heirs; and White-acre to 7. N. and his heirs; the writer fets down the devise to 7. S. but before the devise to 7. N. is written the devifor dies.- -Thefe being feveral and diftinct devifes, 7. S. may claim his, because it was fully expreffed and written according to the intent of the devifor; but if the Moor pl. writer had fet down a devife in fee, where the devifor only intended an estate for life; or if he had made an eftate on condition, where the devifor mentioned an abfolute eftate; thefe are void devifes,-because they are no way correfpondent to the intent of the devifor;-but if, in this laft cafe, the devifor on reading the will had difallowed Cro. Eliz.toə the 2 Rol. Abr.

617.