a brief report of a judgement and of the cause thereof give in the king bench  in Hillary term in the saint year of the reign of queen Elizabeth upon a  special verdict find in a bill of trespass bring by richard paramour against  raphael Yardley and george smart for break his house and close call the  manorhouse and park of draytonbassett at draytonbassett in the county of  Stafford and the record appear among the record of Michaelmas term pound  Elizabeth rot lessee for year devise his term to his son and further say that  his will be that his wife shall have the occupation and profit of the lease  during the minority of his son to the intent that with the profit she may  educate his child and see his last will perform and he make her his executrix  and die afterward she prove the will and sell the term to a creditor of her  husband before all the debt be pay have other good in her hand sufficient to  pay the debt and funeral expense she educate the issue after her husband death  until her own death the son come to his full age and enter into the premise  and his entry adjudge lawful S c Crompt I c a vin Abr title devise l pl and  sea S p mich pound Elizabeth die pl the trespass be assign to be do the that  day of December in the that year Plowden er p of the reign of queen Elizabeth  with continuance until the that day of may next follow and the defendant plead  not guilty and the jury find that one William Robinson be possess of the place  in which the trespass be suppose to be do by force of a lease for year which  commence at the Feast of saint Michael the Archangel in the year of our Lord  and by his testament in write make the that day of September in the that year  of the reign of queen Elizabeth he give all his lease to Thomas Robinson his  old son to have and to hold to the say Thomas during all the term which he  have to come therein if the say Thomas shall so long live and if he shall die  before he have issue of his body then he devise all the say lease to roll r  this devise to John be say by coke to be a possibility upon a possibility and  yet good John Robinson his young son and to his assign during all the ear then  to come if he shall so long live and have issue of his body and the limit  remainder over and further he say that it be his will and intent that grace  his wife shall have the occupation and profit of all his land and lease until  the say Thomas shall come to his full age of year and if the say Thomas shall  die before he come to such age then until the say John Robinson shall come to  the age of year to the intent that she with the profit of his land and lease  may educate his issue and see his last will perform in all point and he devise  further to Dorothy his daughter pound to be pay at the day of her marriage and  diverse other sum he devise to diverse other and he make the say grace his  wife his sole executrix and die possess of the say lease the reversion of the  tenement belong to the queen and to her heir Plowden and they find further  that the say grace have take upon her the burden of the testament enter into  the say house and park and be thereof possess and she be so possess the that  day of may in the that year of the reign of the present queen by her deed  grant to one Wilgfort Tanfield her sister all the say term and all her  interest right and title in the premise to have and to hold to her during all  the year in the lease then to come and they find that the say grace at the  time of the say grant have good and chattlesof the say William Robinson in her  hand sufficient oh pay all the debt and funeral expense of the say William  Robinson beside the say lease but they find that a debt of pound due by the  say William Robinson be Payable and not pay at the time of the grant make to  the say Wilgfort and further they find that the say grace have educate and  maintain the issue of her say husband all the time after the death of the say  testator and during her widowhood and that afterward the say grace take to  husband Simon Harcourt and die and afterward the say Thomas Robinson enter  into the say house and park and be thereof possess and be so possess he the d  day of march in the that year of the reign of the present queen then be of the  age of year grant the say house and park and all his interest and term of year  in they to Richard paramour the plaintiff by virtue whereof he enter and be  possess until the defendant as servant to the say Thomas Robinson and by his  command enter and do the trespass and upon this matter the juror pray the  advice of the court and if the court shall adjudge that the defendant be  guilty then they assess damage to the plaintiff for the trespass at pound and  for his cost S and if otherwise then the that say that the defendant be not  guilty and whether judgement shall be give for the plaintiff or not be debate  in the king bench last Trinity term by Brograve on the part of the plaintiff  and by Beaumond the elder on the part of the defendant and now this present  Hillary term in the saint year of the reign of queen Elizabeth it be argue by  a apprentice of the middle temple on the part of the plaintiff and by Tanfield  on then part of the defendant point for the defendant and in order to  overthrow the plaintiff title and to maintain that the term be never execute  in Thomas Robinson as a legacy it be object that the limitation or gift to  grace the wife during the minority of Thomas Robinson the infant be void  because in the premise of the will the testator have give to Thomas all his  lease to have and to hold to he during the whole term which he have to come by  which word the whole estate and term pass to Thomas Plowden er p so that the  subsequent word by which he give to grace the occupation and profit of all his  lease during the minority of Thomas be repugnant to the first word whereby the  lease be devise to Thomas for if Thomas shall have the lease therein he shall  have the occupation and profit present and then the devise thereof to the wife  be contrariant and repugnant for which contrariety the latter deviser shall be  void and then the wife shall have nothing by force of the devise but only as  executrix in which case her occupation as executrix can be any execution of  the legacy to Thomas from whence it follow that the grant of the term by the  executrix to Wilgfort shall bind Thomas and consequent the title of the  plaintiff who claim under Thomas be not good S p Crompt I c a Swinb Nels law  witness finch finch and see the like construction make ante Welcden v  elkington and many case there put upon this ground against which it be say on  behalf of the plaintiff that a fortesc Rep p wms Swinb vin Abr title devise f  a pl ante m d a and the book there cite a word in will ought to be so  favourable expound that the intent of the testator appear in the will may be  perform in every point and not a jot be confound to which end it be the office  of judge to marshal the word of will and the more so if it be consider that  will be for the most part make in the party last moment when he have not time  to apply to or advice with counsel in the law and that testator themselves in  general be unacquainted with the law and know not how to put their word in  their proper order for which reason their ignorance and simplicity demand a  favourable interpretation of their word then to apply this doctrine to our own  case it appear to be the intent of the testator that his wife shall have the  occupation and profit of the premise during the minority of Thomas his son and  that afterward Thomas shall have the lease and in order to make this intent  take effect it be the office of the court to take that part first which come  last and that last which come first in the will as if the testator have say  that his wife shall have the occupation and profit of the land in lease during  the minority of Thomas and that Thomas at his full age shall have the lease  and the word be so place will answer the intent of the testator and agree with  the law and this be nothing more than be frequent do by the commonlaw in deed  and such other act for when diverse thing be appoint at one same instant and  the one can take effect without the other the commonlaw will adjudge that to  precede and that to follow which proper ought to precede and follow in order  to make the intent of the party take effect b S p Leon at the bottom Bulst vin  Abr title release king pl b as if a seize make a lease for year and afterward  he and the disseizee release by one deed to the tenant for year there the law  will adjudge the release of the seize first to take effect and afterward the  release of the disseizee to take effect for there be no privity nor c S p    Litt a c estate in the lessee upon which the release of the disseizee may  enure unless it be take that the release of the seize first enure and  afterward the release of the disseizee so that when there be matter sufficient  the law adjudge what thing shall precede and what shall follow d vin Abr title  grant g a pl d and so if tenant for life make a lease for year and the tenant  for life and the reversioner in fee confirm the estate of the tenant for year  to have the land to he and to his heir there he shall Plowden have the fee  because the law will adjudge the estate of the tenant for life to pass first  and afterward the estate of he that have the fee so that the lessee may have  privity whereupon the release of the reversioner in fee may enure and enlarge  his estate a m h vin Abr title grant g a pl a and so if tenant for year make a  lease for year and both of they surrender to he in the reversion in fee the  surrender be good for both the estate as it seem by h and yet the lessee for  year can not surrender by himself for want of Plowden er p privity but when  the other join with he his surrender shall be take in law to precede and the  surrender of the lessee for year to follow so that the same shall be good and  so in the principal case the devise shall be say in the law to be first make  to the wife and afterward to the son and the generality of the devise to the  son which be first place in the will shall be restrain by the devise afterward  make to the wife b t r in formedon dal pl roll Abr pl roll r Litt r p wms ld  raym ante c and see the other book there cite b as if a man by deed make a  feoff to one to have and to hold to he and to his heir and if it happen that  the feoff die without heir of his body that then the land shall revert the  generality of the gift to he and to his heir shall be correct by the clause  afterward as it seem by r so that the donee shall only have a feetail and if  the law shall be so expound in deed and shall marshal the word of they so as  to make one thing precede another contrary to the order in which they be place  in the deed a strong it shall do so in the will of layman c S p lane roll r  roll r at the bottom Bulst Bulst Godolph Orph leg finch finch treat of will  vin Abr title devise m b pl ante a c and therefore it be say to be a common  case that if a by his will devise land to b and to his heir and afterward in  another clause he devise a rentcharge out of the land to c and to his heir  this shall be a good devise of the rend to and of the land to b and the rend  shall in construction of law be take to be first devise although it be place  last in the will so in the principal case the devise to the wife shall be  adjudge in law to precede the devise to the son although it be subsequent in  word and so both part of the will shall stand together and good sense shall be  make of they and the testator intent shall be observe throughout and it be say  that if there have be any repugnancy in the will the last part shall have  destroy the first d herewith agree   Litt b roll r arguendo Owen per Anderson  I Swinb Godolph Orph leg but by the great opinion it seem that b and c shall  be jointtenants as appear con will pl per dyer et brown I Bulst per dodder I  roll r per idem Yelv per William I lane per Tanfield Ch b cro e pl per  Anderson et mead I cro I jenk pl Mod vern treat of will pickering chosen mich  term Geo d as if in the premise of the will a devise his land to b in fee and  in the end of the will he devise it to c in fee the last part shall destroy  the first because it be his last intent to give it to c for as the last will  repeal the first will so by the same reason the last part of the will shall  repeal the first part of the will when they be contrary to each other but in  the principal case there be no contrariety but both the part may stand  together wherefore it be a good devise to the wife and also to the son after  he come of full age and to this the whole court agree point for the defendant  further it be debate in what manner the devise shall enure to the wife and  what it be that be devise to her for it be say in behalf of the defendant that  the devise to the wife of the occupation and profit of the land be not a  devise of the land itself but of a profit or interest to be take out of the  land whereas by the devise of all his lease to Thomas the land itself during  the term pass for a gift of a lease which a man have contain two thing  videlicet the land itself and the time which he have in it and when the  testator afterward say that it be his intent that his wife shall have the  occupation and profit of all his lease this be a devise to her of another  thing than of the lease itself videlicet of a profit or commodity out of it as  herbage and other like thing which may be take by occupation or perception S p  adjudge ante h Welcden v elkington and see Leon Bulst Owen Brownl Swinb  Godolph Orph leg   Litt b cart in which case if the wife take the same accord  to the devise it can not be a execution of the lease devise to the son which  be another Plowden er p distinct thing e S p ante d and see the book there  cite e as if a have a lease for year and he devise out of it a rend or common  for certain year to b and devise the lease itself to c there although the  executor assent that the devisee of the common shall put in his cattle or  although he pay the rend to the devisee of the rend yet this be no assent that  the devisee of the term shall have it nor be it a execution of the term in the  devisee thereof because the rend and common be profit out of the land and  distinct from the land for which reason the executor assent to the devise of  they be no assent to the devise of the term itself which be of another nature  so here the wife have not the estate of the lease by the devise to her but  only the occupation and profit thereof and the lease itself be in her as  executrix until she shall assent to the devise of it to the son and before any  such assent give by her she grant the lease to her sister whereby the estate  of the son be defeat and his entry afterward into the land not lawful and  consequent the title of the plaintiff who claim under he fall to the ground  against which it be say by the counsel for the plaintiff that the devise to  the wife of the occupation and profit of all his lease until the son shall  come to his full age be a devise of the house and park themselves until that  time for the word lease comprehend the land lease and then if she shall have  the occupation and profit of the house and park this amount to a devise of the  house and park themselves for to have land for year be nothing snore than to  occupy it and to take the profit of it for year so that by circumlocution it  be a devise of the land itself for he who have the occupation and profit of  land may plough and sow the land which be more than the f see h h a bro  forfeiture t h b roll Abr pl lev Hardr finch finch f king shall have of the  tenant in feesimple upon his outlawry in a personal action for there the king  shall only have the profit as they arise of themselves without manure the land  but he who have the occupation and profit of land may manure the land and  Plowden cut down the copse upon the land which be a point of profit so that a  grant of the occupation and profit amount to a perfect lease of the land for  the time a m h bro lease licence ante c and see the other book there cite a  and hereupon it be say that in h it be take that if a man will plead in a  action of trespass that the plaintiff licence he to enter and occupy the land  for the space of a month this plea be not good but he ought to say that the  plaintiff lease the land to he for that time and not that he licence he to  enter for the matter pursuant do not prove a licence but a lease to which the  court there agree and if the law be so where there be but one word videlicet a  licence to occupy a strong it shall be so where there be word to have the  occupation and profit and in the principal case in h above cite it be take  that if a pledge a chain of gold to b for money deliver at the same time and  afterward a bring a action of trespass against b for the chain b can plead  that a licence he to take the chain and to retain it until he have repay he  the money but he ought to say that a pledge the chain to he for the matter  amount to as much but the doubt which arise in that case be because the money  be not deliver at the same time for the plaintiff licence the defendant to  take and retain the chain b S p ante a and r and see the book there cite b so  it be say if a man make a lease for life and that after the death of the  lessee the land shall return or shall descend to a stranger and to his heir  this shall be plead as a remainder c see ante c and in a formedon in remainder  the party shall say that the land shall remain to he after the death of the  lessee for life for the word have the substance of a remainder d see ante p b  d and so a grant of the nomination of a advowson be in substance a grant of  the advowson for the profit and effect of the advowson consist only in the  nomination so that word which be equivalent to word common use shall be of the  same force with usual word and so in our principal case the devise of the  occupation and profit of the lease be a devise of the lease itself for the  time Plowden er p another cause be allege why the devise to the wife ought to  be take as a devise of the thing itself and not of the profit only and that be  because if it shall be a devise of the profit as of a profit a prendre then  the wife shall not have any action or remedy at the commonlaw to obtain the  occupation and profit if they be keep from her or if she be oust of they for  she can not have a assize for such profit because she have no estate of  freehold in they nor can she have a action of e for against a seize or other  wrongdoer no account lie   Litt a e account because her deforceor take the  profit to his own use and no action of debt or other remedy can she have at  the commonlaw f S p post f f and note she can not have any remedy in the  spiritual court as for a legacy because she be executrix herself against who  the suit ought to be bring to execute the legacy and it can be presume that it  be the intent of the devisor to make a devise of a thing for which the devisee  can have no remedy especial if the purpose for which the devise be here make  be consider for the word of the will be that it be the devisor intent that his  wife with the profit of his land and lease may educate his issue and see his  last will perform in all point which clause contain matter of great importance  and show how dear his issue be to he and how desirous he be that they shall be  nourish and educate and that his last will shall be perform which be strong  argument that he mean that his devise shall be of such effect that his wife  may have remedy for the thing devise which she can not have if she be eject  out of they unless the devise be take to enure as a gift to her of a estate  and interest in the land wherefore if it shall be expound a devise of the  profit only the effect will be that he give to his wife a thing which she can  never have nor take by his will which can reasonable be presume to be his  intention and further it be to be observe that it can not be the intent of the  devisor that the wife shall only have a profit a prendre out of the land until  the son come to his full age for in who must the possession and estate of the  term be until the full age of the son certain it ought to be in the wife as  executrix for the son ought not to have it deliver to he until his full age  and then if this be so the profit a prendre out of the land be merge by the  possession and estate of the land itself which the wife have in the mean time  g t h Fitzherbert devise bro lane p wms finch finch ante f vin Abr title  devise e a pl g but the case in h differ much from this case for there the  case be that a be possess of a book call the grail devise it to b one of his  executor to have the occupation of it during his life and that after his death  c shall have it in the same manner for his life and that after his death it  shall be dispose of by his executor to the use of a church and die and b take  the say book and keep it by force of the devise and deliver it to the warden  of the say church and die and c take the book and the churchwarden bring a  action of trespass against he and it be the clear opinion of the court that  the action be maintenable because the book be never deliver to c by the  executor and the occupation or possession of b be no execution of the legacy  to c because nothing be devise to b but the occupation and the like to c for  the devise prove in itself that the property of the book be always in the  executor to the use of the testator to the intent that they shall dispose of  it to the use of the church and the occupation be a distinct thing from the  property and the occupation of one be not the occupation of another for their  occupation differ from each other and be several thing derive out of the  principal for which reason the occupation of b be no execution of the  occupation of c for the apprentice say in some thing the occupation profit or  use be a distinct thing from the property as one may have the occupation or  use of a glass to look at himself in it and another may have the property of  it so one may have the use of a map or of a globe and another the property and  so one may have the use of a fire and another the property and so also of a  book one may have the occupation or use of it to read in it and the property  may be in another so that in thing of this kind the use occupation or function  be Plowden er p see finch finch distinct Plowden from the property but  otherwise in the case of land for there he who have the occupation and use of  it have the property of it for the time and so here the wife who have the  occupation and profit of the land have the property thereof for the time  wherefore they conclude that for these cause the devise to the wife of the  occupation and profit of the house and park during the nonage of the son be a  devise of the thing itself for that time and not of any distinct profit a  prendre out of it and of this opinion be the whole court point for the  defendant and as to the execution of the legacy in the wife it be object on  the part of the defendant that the legacy ought not to be take to be execute  in her any more than in the son for it be to be consider that she be executrix  and if the term have be devise to another it shall first have be in her as  executrix for she shall have have possession in deed before any entry by he or  any other and by the same reason when she be executrix and legatory it shall  be first in her as a see the book cite ante f a executrix and if she will have  it as legatory b ante h b then she ought to claim it or to do some other act  which may prove that see will accept it as legacy for the lease shall not be  in her c ante c c against her will but she may disagree to the devise and  claim it as executrix and if she do not claim it as legatory but do some act  afterward as executrix such act will manifest her intent and shall be a  disagreement to the legacy from the beginning and here she have do such act  which argue her disagreement to it from the beginning for she have grant the  whole term to her sister to have and to hold during all the year in the lease  which be to come by which grant of all the year to come she assume upon  herself to have all the year in the lease which be to come and that she can  not have it as legatory but as executrix she have they so that such grant be a  disagreement to the legacy and a claim to have the lease as executrix S p hold  cro e Trusloe v ewer Brownl arguendo but see to the contrary many authority  cite ante h in the margin vide Swinb Godolph Orph leg another reason they  allege why he shall not be say to have any part of the term as legatory  videlicet because it be find that pound owe by the testator be unpay for the  payment of which she may alien the term for she may apply what part of the  testator effect she please to the payment of it also it appear by the will  which be find by the jury verbatim that the testator give pound to his  daughter and devise diverse other sum to other person and it be not find that  any of these be pay and therefore it shall be intend that they be not pay in  which case the executrix may alien the whole term in order to raise money for  the payment of such legacy so that in the mean time the law can adjudge the  part of the lease give to the wife to be execute as a legacy in herself and  the remainder in Thomas the son for then perhaps none of the other legacy will  be pay and this be another cause to delay the execution of the legacy a three  reason allege by they against the execution of the legacy be because the  occupation and profit be devise to the wife to the intent that she therewith  may educate his issue and see his last will perform in all point and the  education of his issue can but be look upon as a legacy to the issue and then  the main intent of the testator in the devise to the wife be to see his last  will perform which purpose be not sufficient to make it a good legacy or  devise to the wife d Godolph Orph leg Wentw off of exec post e l p die pl d  for if give all my good to my executor to perform my will this be no devise at  all nor shall he have any thing more from it than he shall have have without  it for if have say nothing the law will have give he my rood to perform my  will so that I have do no more than the law itself will h v do without such  say and therefore the devise be void for which cause they say there be no  execution here of any devise to the wife Plowden er p and by the same reason  no execution of the lease to the son in remainder and then the grant which the  wife make to Wilgfort be good for all the year and the title of Thomas the son  be void and consequent that of the plaintiff who claim under he fall to the  ground on the other hand it be say by the counsel for the plaintiff that the  term here give to the wife during the minority of the son ought to be adjudge  execute in the wife and the remainder execute in the son e Swinb vin Abr title  devise W d pl e for if a lessee for year devise his term to a stranger the  stranger may sue the executor of the testator in the spiritual court to  execute the legacy f ante f by the reporter f but if the devise be make to the  executor himself he can sue himself for it and because he can do so the  operation of the law shall be of the same effect to he as suit and execution  shall be to a stranger so that the thing if it be certain shall be thereby  adjudge in the executor and the property of it shall be alter and transfer  from the testator to the executor as if a man have right to the land by force  of a entail or otherwise and the land descend to he or escheat to he or be  cast upon he by remainder or other such mean he shall be remit by the law  although his entry be take away before because there be none against who he  may bring his action for which reason the law give he the like advantage as if  he have bring his action against a stranger and have recover and have  execution so that the operation of the law be equivalent to a recovery and as  beneficial to he as a recovery shall have be g S p adjudge ante uvoodward v  darcy g and so if a be indebt in pound to b and he make b his executor and die  possess of good to the value of pound the property of these good be present  change and they be become the proper good of b because he can not sue himself  for which reason the law give he the like advantage as he shall have have b  suit so in the principal case inasmuch as it be better for the wife to have  the lease during the son minority to her own use than to the use of the  testator the law say that the lease be she and that it be execute in her as a  legacy Plowden and for the clear apprehension of this matter it S to be  consider what the wife have do and sir it be find that she have take upon her  the burden of the testament enter into the house and park by which acceptance  of the charge of the testament it be to be understand that all particular  thing requisite to the performance thereof be accept and do and then the wife  thereby assume upon herself and bind herself to perform all the legacy of the  testator accord to his intent and it be to be understand also that she prove  the will whereby it be include that she take a a S p finch finch Wentw off of  exec a oath to perform it because it be usual for executor so to do and if she  bind herself to perform the will and be swear thereunto and one part of the  will be that all legacy shall be perform and the part of the term give to her  be a legacy therein as the law say she accept the term devise to her as a  legacy execute so that by the acceptance of the executorship she perform this  one legacy wherefore the law before any thing do one way or other give its  judgement that she have the term devise to her execute as a legacy and not to  those of the testator nevertheless it shall be adjudge execute in her as a  legacy knit with a condition videlicet that she may disagree to it afterward  if she please for the law will not compel any man against his will to accept  of a thing which another give or limit to he but until her disagreement be  show by word or act the legacy shall be adjudge in law to be execute then it  remain to be consider whether or no the wife first disarm to the legacy as the  counsel on the other side will infer that she do by her grant to her sister or  if there be any matter find to prove her agreement to the legacy before the  say grant to her sister and as to this the lease be devise to the wife during  the minority of the son to the intent that she with the profit thereof may  educate the issue of the testator and the jury have find that all the time  after the death of the testator and before the grant to Wilgfort she have  educate the issue so that she have perform the charge annex to the legacy and  that in respect of the legacy Plowden er p and it be a assent to the legacy  see it be do in execution of the intent which the testator have in the legacy  S p more Brownl Swinb Godolph Orph leg Wentw off of exec vin Abr title devise  d a pl title executor l b pl b S p hold to be a sufficient assent upon  evidence at nisi prius strange young v Holmes b as if a lessee for year devise  his lease ball pay pound to a stranger which he pay to his executor upon  condition that he accord this payment be a election in he and a assent to take  the lease as a legacy and it be in law a execution of the legacy for ever for  he who perform the charge of a thing thereby claim the benefit annex to the  charge as if a man have a office of charge and a benefit for it as a  stewardship and a fee for the exercise of it there if another keep the court  it be a seize of the fee for the do of the thing of labour be a claim for the  benefit for the labour so here the education and nourishment of the issue be a  argument and proof that the wife assent to take the lease appoint for that  purpose as a legacy and it be the end of her election and her grant to her  sister afterward be a argument of her inconstancy but do not invalidate her  election first make wherefore we see that the execution of the legacy which  the law first adjudge by her intermeddle with the charge of the administration  of the will and by her oath to perform it be now confirm by her act in the  education of the issue and as to what have be say against the execution of the  legacy that pound due by the testator be not pay at the time of the grant make  to Wilgfort for the payment whereof it have be say the lease may be sell sir  the jury have find that at the time when the wife make the grant to Wilgfort  she have in her hand sufficient good and chattle of the testator beside the  say lease to pay all the debt and funeral expense of the testator in which  case the say other good and chattle shall be Chargeable to the payment of the  pound in judgement of law and not this lease nor can this lease have be sell  for the payment of it for if this lease may have be sell for the payment of  the pound then this legacy of the lease which be a legacy certain can not have  be perform and so the whole will will never have be perform whereas as well  the legacy as the debt ought to be pay and the executrix ought to pay the debt  and funeral expense with the other good which be sufficient and not with this  lease for the sale of the lease to other will be a breach of the will and the  wife by such sale will violate her duty as well as her oath in not perform  this legacy and so will commit perjury but for the clear apprehension of this  matter let we suppose that some other have be legatory and not the executrix  and put the case thus c see Godolph Orph leg c a man be indebt in pound and  have a lease for year and make his testament and give the lease to his son and  have good to the value of pound over and above pay his funeral expense and he  make his wife his executrix and die and the wife prove the will and take a  oath to perform it now the wife have asset to perform the whole testament for  she have pound wherewith to pay the debt over and above the legacy of the  lease and therefore if she will alien the lease to pay the pound thereby she  violate the will of the testator in take the legacy from he who ought to have  it and be not that a breach of her own duly as well as of her oath certain it  be and she deserve to be punish for it so that there the law will not account  the lease to be Chargeable with the payment of the debt and so here when the  executrix be legatory the law will not set up the debt as a impediment to the  execution of the lease devise to her because the debt can well be pay by the  sale of the lease and if the wife will in fact have disarm to the devise of  the lease to her during the minority of her son then the son shall have have  the lease present and her disagreement can not have defeat the devise of it to  the son d SeeWentw off of exec d but if the devise have not be of a thing  certain as if the testator have devise to his wife executrix pound and be  indebt to another pound and die Plowden have horse to the value of pound and  ox to the value of pound and plate to the value or pound I there the law can  not say of what thing the property be alter before the pound be pay for the  wife may alien Plowden er p which of they she please to pay the pound and  before the be do the law can not appoint the certain property of any of the  good to the wife but otherwise it be where the legacy be of a thing certain as  it be here and so be the diversity where before the nonpayment of the debt of  pound can not delay the execution of the devise of the lease here and as to  what have be say that the testator devise pound to his daughter and diverse  other sum to other person which be contain in the will find by the jury  verbatim and it be not find that they be pay at the time when the wife make  the grant to her sister nor that she have asset in her hand to pay they but it  be only find that she have asset in her hand to pay the debt and funeral  expense without any mention of asset to pay the pecuniary legacy also as to  this it may be that these legacy be pay inasmuch as it be not find that they  be not pay but admit it shall be take that they be not pay but remain Payable  yet this shall be no cause to delay the execution of the devise of the lease  nor will the law suffer the lease to be sell for the payment of they for such  sum be but legacy and the lease devise to the executrixs a legacy also and  then in legacy it be reasonable that the executor shall be prefer before other  and the law itself give they the preference to any other a Swinb Wentw off of  exec a for if a man devise to a pound and to b pound and to c pound and make  his executor and die leave good but to the value of pound now the executor  have election to which of these three he will pay the pound and to which ever  he pay it the other three can say nothing against it nor have they any b  quaere for by the common justice of the court of chancery the legatee who be  pay shall be make to refund vern p wms p wms vent Wentw off of exec b remedy  for their legacy and by the same reason if one of these three be make executor  to the testator c see the contrary Chan Rep causan how above c the law will  certain allow he to retain the pound in satisfaction of his own legacy for it  be but reasonable that he shall be near to himself and have regard to himself  before other accord to the old say charity begin at home d p h pl Fitzherbert  bar bro debt executor ante g d and this be the reason of the case in l h where  in debt upon a obligation against the heir he plead that the plaintiff be  executor to his ancestor who deed he show forth and that he administer certain  good and chattel to the value of the debt and more and retain that sum to  himself in the name of payment and he demand judgement si action and there  hull say if he do not retain to himself but may have retain and do not he  shall be bar for a man be bind to be near to himself et haec to be opinion  quorundam wherefore he there plead that he administer no good after the death  of the testator whereupon issue be take and for the same reason the law  adjudge in our case that the execution of the devise of the term shall not be  delay for the nonpayment of the legacy to other and as to what have be say  that the devise to the wife shall be void because it be make to the intent  that she with the profit of the lease may educate his issue and see his last  will perform which latter point be no more than the executor shall have do if  no devise have be make sir true it be that e ante d e if a man give his  executor all his good to the intent that he may perform his will with they  this be no devise at all for the executor shall have have they to such purpose  without such gift and when a thing be give to one by word which he shall have  have to the same purpose without such word the gift be void f S p hob roll Abr  I pl cro e pl style godb Vaugh Gouldsb pl side Crompt I a salk Bac Max ring  Godolph Orph leg Nels law witness law of testament c pale yellow law of devise  Bac Abr mich Geo b r burst v the earl of Winchelsea this agree to be a  positive rule of law and the reason hereof as Norton arguendo say be not in  favour of the heir that he may be in of his better title but in favour of  three person videlicet of the lord for the preservation of the tenure which be  a valuable thing before the statute of marlbridge and of creditor for the  preservation of their debt which be grant by Lord Mansfield CJ who also say  that the great principle upon which the law be ground in this point be that  which be lie down by Baldwin CJ in die pl where he say that a man can give  another what he have already for when he do so nothing service as if the  tenant in tail feoff S the donor it be no discontinuance f as if a man devise  his land to his Plowden er p son and heir in feesimple and die the devise be  void for if no such devise have be make the son shall have have the land at  the same instant that the devise will take effect and so a man can prescribe  to distrain for rentservice or to drive his cattle for which he have common  appendant out of the land wherein he have common to his own house for he may  do it without prescription but that be not the point here for there be another  cause of the devise videlicet the education of his issue which be not a thing  testamentary nor a g Godolph Orph leg g legacy to the issue but it be a intent  annex to the devise make to the wife and also the testator have not here  devise to the wife the whole estate which he have in the lease but only part  of it videlicet during the minority of the son and the residue to the soil so  that it be a different estate from that which the law will have give her  without the devise h S p Gouldsb pl per Anderson Crompt I g a hob Counden v  clerk Godolph Orph leg Bac Abr so if a man devise his land in fee to his two  daughter be his heir the devise be good because it give the land to they in  another degree than the commonlaw will have give it they for by the commonlaw  they shall take as coparceners but by the devise they shall take as  jointtenants cro e pl Gouldsb pl pl Bac Max ring Bac Abr side lev h for if a  man devise his land to his son and heir to have to he and to his heir of his  body this be a go d devise because it be another estate than he shall have  have by descent so be it in the principal case wherefore none of the exception  move on the other side be sufficient to delay the execution of the devise to  the wife but when she enter she bad theestate devise to her as legatory  pointAnd further it be say that the execution of the legacy to the wife be  also a execution of the remainder to the son inasmuch as it be one devise  although the estate be several I tempt Edward Fitzherbert attornment p Ed  Fitzherbert ibidem   Litt a b Wentw off of exec I as if a reversion be grant  for life the remainder in fee and the particular tenant attorns to Plowden the  grantee for life this shall enure to he in remainder so if tenant in feesimple  make a lease for life the remainder in fee and the tenant for life give notice  to the lord this shall serve for he in remainder so that the lord shall be  compel to avow upon he in remainder if the tenant for life die and so if a  infant make a lease for year the remainder for year to a stranger render rend  and at his full age he accept the rend of the first tenant for year this be a  assent to the remainder and he shall never oust he afterward S p Wentw off of  exec finch finch Swinb Godolph Orph leg so here the estate devise to the wife  and to the son in remainder be but one legacy although it be distinct in part  and the execution of it in the wife be of the same effect as if her estate  have be devise to another with the remainder over to the soil and as if she  have give her assent to the first devisee to enter wherefore the entry of the  son after the death of the wife and his grant to the plaintiff at his age of  year be good and of this opinion be the whole court notam bene by the  reporterAnd note the find that the reversion be in ale queen be as it seem at  the request of the defendant to the intent that if the plaintiff title have  not be good the possession which he have may not be sufficient to maintain the  action of trespass and as to this it seem to I that if the king be seize in  fee of law d and a stranger enter claim it as his own and continue in  possession a year and a day and another do a ice as Plowden er p upon the land  a Hardr Plowd queer a the stranger shall not punish such trespassor in a  action of trespass for if he shall punish he then the trespasser will be  double punish for the king will also punish he and a intruder can gain such  possession against the king u on which he may have a action of trespass b m  Edward pl ante a b and in Edward in trespass for enter into his close and take  the grass the defendant plead that it be find by office that the land be  escheat to the king and there choke say that as to such thing as arise out of  the land the action be go because the king shall be answer for they c see ante  b c but in our case inasmuch as there be a lease in be although the plaintiff  have not the trite interest thereof yet such possession as the plaintiff have  seem sufficient to maintain a action of trespass against a stranger for the  lessee shall punish the plaintiff by action of trespass with continuando  whereby he be answerable to he who be the true proprietor of the lease for all  the profit and therefore it seem that he shall punish a stranger although he  can by this entry gain any d Plowd queer d estate in respect f the freehold  which irremovably rest in the crown e finch Plowd queer e and in no case can  the king in intrusion allege continuance absolute for that shall be suppose  against none but he who can gain a estate by wrong yet the king may allege  continuance to visit a day et turn but not other wise but here inasmuch as the  plaintiff title be good this other matter be out of question and after these  argument in the end of this present Hillary term in the saint year of the  reign of queen Elizabeth the apprentice demand judgement for the plaintiff and  Wray chief justice say I and my companion have confer together upon this  matter and we take it that notwithstanding the whole term be first devise to  the son the devise afterward to the wife be good and in sense and intent shall  precede the devise to the son and that the devise to the wife of the  occupation and profit be in substance a devise of the house and park itself  and that the occupation of the wife and her education of the issue the time  after the death of the testator until the grant make by her to her sister be a  execution as well of the estate give to her as of the remainder give to the  son and that the entry and grant of the son to the plaintiff after his full  age be good for which reason you shall have judgement and he command judgement  to be enter for the plaintiff which be accord do and it be as follow the  judgmentAt which day before the lady the queen at Westminster come as well the  aforesaid Richard paramour in his own proper person as the aforesaid Raphael  and George by their attorney aforesaid whereupon all and singular the premise  be see and by the court of the say lady the queen now here more full  understand and mature deliberation be thereupon have it be consider that the  aforesaid Richard paramour recover against the aforesaid Raphael Yardley and  George smart his damage aforesaid by the juror aforesaid in form aforesaid  assess and also pound for his cost and charge by he about his suit in this  behalf expend to the same Richard paramour by the court of the say lady the  queen now here with his assent of increase adjudge which say damage in the  whole amount to pound and the aforesaid Raphael Yardley and George smart be  take c