BONEFANT against sir Richard GREINFIELD Bonefant bring a action of trespass  against sir Richard Greinfield the case be this a man make his will and make a  t I his executor and devise his land to a e I and by their special name and to  their heir and further will that his devisees shall sell the land to I d if he  will give for the same before such a day a hundred pound and if not that then  they shall sell to any other to the performance of his will sure the payment  of his debt I d will not give the hundred pound one of the devisees refuse to  intermeddle and the other three sell the land and if the sale be good or not  be the question cook the sale be not good let we see what the commonlaw be at  the commonlaw it be a plain case that the sale be not good because it be a  special trust and a joint trust and shall never survive for perhaps the  devisor who be dead repose more confidence in he who refuse then in the other  vide Elizabeth the case of the Lord bray who covenant that if his son marry  with the consent of four who he especial name videlicet a b c and d that then  he will stand seize to the use of his son and his wife and to the heir of  their two body beget one of the four be attaint and execute the other do  consent that he shall marry such a one he marry her yet no estate pass because  the four do not consent and it be a Godbolt er p joint trust h Br devise a man  will that his land devisable shall he sell by his executor and make four  executor all of they ought to sell for the trust which be put upon they be a  joint trust but brook conceive that if one of they die that the other may sell  the land the case betwixt Vincent and lee be this a man devise that if such a  one die without issue of his body that then his son in law shall sell such  land and there be five son in law when the testator die and when the other man  die without issue there be but three son in law and they sell the land and it  be hold that the sale be good because the land be not present to he sell also  he say that in the principal case here they have a interest in the land and  each of they have a part therefore the one can sell without the other but if  the devise be that four shall sell they have not a interest but only a  authority as to the statute Godbolt of h cap he say that that loft our case to  the commonlaw for that statute as it appear by the preamble speak only of such  devise by which the land be devise to he sell by the executor and not devise  to the executor to sell and go further and say any such testament c of any  such person c therefore it be mean of such a devise make unto the executor and  then no interest passes but only a authority or a bare trust but in our case  they have a interest for he who refuse have a four part then when the other  sell the whole the same be a seize to he of his part if a feoff he make to  four upon condition that they make a feoff over and two of they make the feoff  it be not good also the word of the will prove that they have a interest for  it be that his devisees shall sell c Laiton contrary and he say that although  the devise be to they by their proper name and not by the name executor yet  the intent appear that they be to sell as executor because it be to the  performance of his last will and that may he perform as well by the three  although that the other do refuse and the sale of the land do refer to the  performance of his will in which there be diverse debt and legacy appoint to  he pay h and h a man devise his land to he sell for the payment of his debt  and do not name who shall sell the same the land shall he sell b his executor  ass a devise be of land unto executor to sell for the performance of his will  the profit of the land before the sale shall he asset in the executor hand h  be that if a man devise that his land shall he sell they shall he sell by his  executor also if I devise that my executor shall sell my land and they sell it  be a administration and afterward they can plead that they never be executor  nor never administer as executor and although there be diverse authority to he  execute yet it be but one trust ass be our very case a man seize of land  devisable devise they to his executor to sell and die have two executor and  one of they die and the other enter and sell the land and the sale be good e  Isahell Goodcheapes case where a man devise that after a estate in tail  determine that his executor shall sell the land and make three executor and  one die and another refuse the three after the tail determine sell the land  and the sale be hold good and that it shall not escheat to the lord for the  land be bind with a devise as with a condition as to the statute of h cap the  preamble of the statute be as it have be recite and although for example the  land in use be only put yet the statute be not tie only to that as in the  statute of collusion of Malbridge example be put only of feoff and lease for  year yet there be no doubt but that a lease for life or a gift in tail to  defraud the lord be within the statute Godbolt so the statute of gift  conditional put only three manner of estate tail but Littleton say that there  be many other estate tail which be not recite in the statute so here our case  be within the mischief of the statute of h cap although it he not within the  example so the statute of west be that if the garden or lessee for year make a  feoff in fee tam feofator how feofatus haheantur pro disseizoribus yet ass be  that if tenant by elegit make a feoff it be within the statute also it may be  a doubt whether land devisable only by custom he intend in the statute of h  cap and whether land devisable by the statute of h he within it or not  videlicet if a statute of a puisne time shall he take by equity within a more  ancient statute and I conceive it may as h the statute of h which say that the  heir of beneficiary and use shall he in ware shall extend to the statute  Godbolt er p of Proerogativa king for if he he in ware to the king he shall  have prerogative in the land to have other land by reason thereof gaudy  justice do rely very much upon the word devisees videlicet that they have a  interest and that the sale be not good suit justice they be both executor and  devisees of the land devisees of the land and executor to perform the will  cook he who refuse to sell can waive the freehold which be in he by a refusal  in pars as h and e but ought to waive it in a court of record therefore he  have a interest remain in he clench justice what if he have devise the land to  four and make one of they his executor and will that he shall sell can he not  sell all the court agree that he may cook when a man devise that his executor  shall sell the fee descend to the heir yet they may sell that which be in  another but the same be not like to our case it be adjourn