case arthur against bokenham a devise of all such land tenement and estate  whatsoever wherewith at the time of my decease I shall be possess or invest or  which shall then or of right do appertain to I will not pass a estate purchase  subsequent to the make of the will S c fitzg S c holt S p ante ejectment be  bring for a house in ken by John Arthur on the demise of Robert bokenham  against Frances bokenham widow on not guilty plead there be a special verdict  wherein the jury find that as to a moiety of the say house the defendant be  not guilty and as to the other moiety they find that William bokenham Esq late  the husband of the defendant be commander of their late majesty ship the  Grafton on the three of may in the year one thousand six hundred and ninetytwo  duly make his last will and testament in write which they find in hc word it  recite that he be then bind out to sea and then say I do hereby give devise  and bequeathe unto my wellbeloved wife Frances bokenham all such sum and sum  of money as now be or hereafter shall grow due to I from their majesty for my  own and servant service either by sea or land as also all such sum and sum of  money land tenement good chattel and estate whatsoever wherewith at the time  of my decease I shall be possess or invest or which shall then or of right do  appertain unto I and I do hereby nominate and appoint her the say Frances  bokenham my well belove wife to be the whole and sole executrix of this my  last will and testament they further find that the testator at the time of the  make of the will be not seize of any land whatsoever but that afterward by  deed of lease and release bear date the twentysixth and twentyseventh day of  February sir John franklin and Thomas Halsey be seize in fee of the other  moiety of the say house convey the same to the say William bokenham and his  heir whereby he become seize and so die without issue of his body they find  that the house aforesaid be hold in socage and be of the nature of gavelkind  and devisable by the custom of ken and to be divide among the heir male by  hereditary right modern report they further find that the testator have two  brother Robert lessor of the plaintiff and harry bokenham who be then dead and  have leave issue of his body whether a infant and that Robert and whether be  heir at law to the testator that Robert bokenham enter into the say moiety and  demise to the plaintiff upon who the defendant the devisee enter but whether  the defendant be culpable they desire the opinion of the court Trevor chief  justice deliver the opinion of the whole court the question be whether these  land that be the moiety name in the special verdict do well pass by the will  to the defendant Frances bokenham or not for if they do not pass then this  moiety belong to the lessor of the plaintiff and we be unanimous of opinion  that those land do not pass to the defendant by this will this question touch  the validity of this will depend on the consideration of two matter first on  the consideration of the statute of will Henry c which be make to enable  person to devise land by their last will second on the consideration of the  custom of gavelkind which be particular find in this special verdict in the  first I will consider whether the statute enable any one to devise land be be  not owner of nor have any interest in at the time when the will be make but  purchase land in his lifetime after the make such will this depend on the  construction of the statute Henry c which say that all and every person and  person have manor message land or tenement shall have full modern report er p  and free liberty to dispose and devise the same by his last will and testament  whether the word have make it necessary that the testator shall have the  possession of and interest in the land at the time of make his will a see  butler v baker   and Loveiss case   a or whether it be sufficient if he have  or purchase the modern report land at any time after the make his will and  before his death now in order to come at the meaning of this statute I will  suppose this Act late make and that there have be no construction make thereof  before but that the question be entire new and undetermined and that it be now  res integran what will then be a reasonable construction of those word of the  Act and in the next place I will consider what construction this Act ought to  receive as it have be already expound and determine and from the consequence  of such determination now as to what will be a reasonable construction suppose  it be to be make de to make new and to be now original expound I be of opinion  it will be a very reasonable construction that this Act shall not extend to  enable any person to devise any land he have not nor be owner of at the time  of make his will unless he republish it which be the same in substance as new  make it the general rule in exposition of all act of parliament be this that  in all doubtful matter and where the expression be in general term they be to  receive such a construction as may be agreeable to the rule of commonlaw in  case of that nature for statute re not presume to make any alteration in the  commonlaw further or otherwise than the Act do express declare therefore in  all general matter the law presume the Act do not intend to make any  alteration for if the parliament have have that design they will have express  it in the Act now how will the commonlaw influence this matter before we first  it be plain by the rule of the commonlaw that be such rule as be to govern  conveyance and disposition of estate that the law do never allow any person by  any conveyance at commonlaw to dispose of the land he have not or have no  right or interest in at the time of make and execute such conveyance modern  report and so be Inst it be there say and be never yet deny if one release all  the right he have and all the right which he shall or can have for the future  though in express word which sufficient show the intent of the party yet such  release be void c and this be never contradict by any one however there be  some exception to this rule as to release of future right that be that in some  case a man may release a future right though by the bare release it can never  pass as Inst which I mention before if there be father and son and the son  seize the father and be in possession make a feoff in fee in the lifetime of  his father though no right or estate be yet descend upon he from his father  yet this feoff will bar he of this future possible right when it do descend  and come to he but this be ground on a particular reason that be because he  have more than a mere right for he have the possession of the land and  therefore may make a legal conveyance thereof and the law favour  extinguishment of right so that the right and possession may go together  beside a feoff be of a high consideration in the law because it be execute by  livery and cause a transmutation of the possession and therefore be carry even  to the extinguishment of former right in favour of he who have the conveyance  for by this feoff be do not convey a bare right only but the estate also so  that the feoff may by law make a feoff thereof and by implication upon such  feoff and livery all future right of he that make it be extinguish for be in  possession and convey the land itself he convey all right attend thereon  whether present or future but yet this do not bar his heir at law for he may  enter notwithstanding and as to he the right be not absolute extinguish though  at the same time this feoff be good against he that make it this general rule  again admit of another exception and that be in the case of a release with  warranty where a man make a feoff with warranty that warranty will bar a  future right and that will go to the heir modern report and bar he too but  then that be ground on a particular reason wherefore the warranty bar because  to avoid circuity of action for if the heir of he who make the warranty shall  recover the land against his father grantee this land when it descend to he  will be asset in his hand and will be liable to the warranty so that it modern  report er p work a extinguishment of this future right by way of rebutter but  there be no case in all the law that by any legal conveyance at commonlaw a  man can convey land that he have no right to nor be in possession of at the  time of such conveyance in the first case he have not the possession nor any  present right but if he have by the release it will have be extinguish to he  who have the possession because that the possession which the law favour shall  not be disturb but future right it be never extend to yet the law have allow  release of right which be in the nature only of possibility that a man may  release to he who have the possession a possible right only though it do not  allow he to transfer or convey away to a stranger such a right and that be the  reason why the law allow a man to release a executory interest in a term which  he have devise to he and be in the nature only of a possibility but yet he can  assign it away to a three person though be may as I say before release this  right to the possessor of the land by way of extinguishment so that the rule  of construction of conveyance at commonlaw will be the true rule to expound  this statute but to narrow this question a little more I do agree that devise  of land have not be subject to the strict rule of conveyance at commonlaw  because the law favour disposition by will to make they agreeable to the  intent of the testator whereas conveyance at commonlaw stand on a different  foot in the case of will the testator be weak council and have no opportunity  of observe the formality of law and therefore will S be not in all case  subject to the rule of conveyance at commonlaw but then all this modern report  be ground on this supposition that the testator have wherewithal to make  disposition of let we then consider how the law make a construction in what  come near to will S and that be conveyance of land to use which the statute of  Henry c have execute into possession the rule of construction in these case be  the most proper rule to be adapt to will will have be all along construe  accord to the intent and so have the law all along support those conveyance to  use on the suppose intention of the party though there shall be some defect in  they the law have do the same as to will they be likewise support accord to  the intention of the party to supply such little defect as may be in they now  by conveyance to use at commonlaw can any man convey a use in land which he  have not at the time of make the conveyance No sure he can not and that be  plain prove by the case of Yelverton v Yelverton a roll Abr Noy more cro  Elizabeth a cite at the bar where the father covenant to stand seize of land  which he afterward shall purchase to the use of himself for life and after to  his young son and his heir and afterward be purchase land and die and the  question be whether the old or the young son shall take and it be there  resolve that no use can arise to the young son be of land which he have not at  the time of the conveyance and that be ground on very great reason because be  can raise a use of land which be not his own for if a man who have no right to  the land can raise a use of that land then two at the same time may raise use  for it can be deny but he who be owner of the land may dispose of it or raise  what use be please and that he be the proper person on a sale to declare the  use it be impossible that the same land shall be to the purchaser for life  with remainder to the young son and big heir and at the same time shall be to  he and his heir these will be to make contradictory modern report use in be at  one and the same time as be declare by different person it be Allowable indeed  in the law for a man to covenant that he will purchase land by such a time and  levy a fine thereof and that the same shall be and enure to such and such use  but then the reason of that be that when the land be purchase and fine levy  the use arise on the fine and not on the deed make by he before he be owner of  the land and though he can not declare the use before he have the land yet the  fine by relation raise the use and the deed make before be only a evidence of  his intention that it shall be to such use if no use be declare at the time of  levy the fine for at that time he may declare other use but no other use be  declare that deed serve for a evidence of the intention of the party no other  intention appear to apply that to this case here be a conveyance by will make  whereby land be dispose of which he have not at the time of make the will and  be a disposition to take effect in going to be and so be that case a grant and  modern report er p disposition of land when he shall purchase it so this will  can be a present disposition of what he have not but a declaration how the  land shall go at his death but it be very plain that the make of the will be  the foundation and be a inchoate disposition so that if the devisor have not  the land at that time it will not pass there be yet a further reason why will  shall receive such a construction as conveyance by way of use and why they  shall imitate such conveyance because it appear that that Act of parliament of  will be make to supply the power of declare use by man last will and testament  which they have before the statute Henry c of use for though the subject  before the Act Henry c have not any power to dispose of their land by their  last will yet they have what be tantamount which be a power to declare use by  their last will for before the Henry c of use which execute the possession to  the use all the land be subject to beneficiary and use and he have a power to  declare the use of the land the trustee modern report have the possession as  be think fit either by deed or will so that in effect he have a power of  devise by will by declare the use that the trustee shall stand to after his  death but when the statute of Henry c come and execute the possession to the  use then the beneficiary and use have no long any such power of declare the  use as before because then the use and the land be the same thing be unite  together and that be the reason why the statute of will give man a power to  dispose of their land by will which be give in lieu of that power which  beneficiary and use have before of declare the use of the land as he think fit  and therefore there be a great deal of reason a will shall receive the same  construction but it be object that a will be not to be construe accord to  conveyance by deed at commonlaw because a will be no present and immediate  disposition of land and be not like a deed that take effect immediate by  delivery for in such case a man must have the land at that time else it be  against the nature of a grant or immediate gift to dispose of what he have not  but that a will be another thing it be only a future disposition in case the  man die without any other alteration and be ambulatory and not complete or  consummate till his death and therefore reason good he shall be able to  dispose of the land he shall have or purchase at any time before his death  because it do not take effect till his death now in answer to this objection I  shall distinguish to what purpose a will do not take effect till death and to  what purpose it do take effect from the time of make and before the party  death it be true to many purpose a will take no effect till the testator death  but on the other hand to many other purpose it take effect from the time of  make only the law do require many qualification necessary to be in the  testator at the time of make the will which shall they come at any titne after  though before his death will make the will void and the land will not pass  thereby indeed modern report as to the vest a interest in the devisee the law  have regard to the death of the party only for no interest can vest in the  devisee as long as the testator life and a will in its own nature be not to  pass any thing but on supposition of the testator death for it be a provision  and direction how his land and estate shall go when he can keep they no long  where a man devise land to another and the devisee happen to die before the  devisor this be a void devise and the land do not pass for if they shall the  heir of the devisee must take contrary to the intent of the devisor for by the  will he be intend to take by descent and if land pass he must now take by  purchase in this regard also a man wife may take by his will though she can  take by any conveyance at commonlaw for the will not take effect in point of  transference of a interest after the husband death she be in nature of a  stranger and so the land will well pass to her and in many other case of this  nature which I can mention if necessary a will take no effect till the death  of the testator but when you consider another thing necessary to make a will  good as a necessary qualification in the testator which be the power and  capacity of dispose by his will there I take it the law regard the time of  make the will and as to the power of dispose land by will that consist of  several particular as first to enable the testator to dispose by will or any  other way the law require he shall have a interest in the thing he be to  dispose of and if he have nothing in the thing to be dispose of how can he be  say in any sense to have a power of dispose it second the testator must not  only have a interest in the thing devise at the modern report er p time of  make the will but must have a dispose mind too he must have ability and  capacity in point of discretion and understanding as a rational man and these  two qualification be necessary to make up the power of dispose and this power  must be perfect and complete at the time of make the will and none of those  qualification come after though before modern report the death of the testator  will make this power good and the will effectual in the law these be personal  qualification and must he have at the time of dispose and will be too late to  come after now as to the qualification in point of discretion if a man be non  compos and not in his right sense at the time of make his will though he  afterward never so long before his death become a man of understanding and  sound judgement and memory yet the will be a void will and will by no mean be  make good because he want the dispose power at the time of disposition which  be the time of make his will so the law be the same of a femecovert if a marry  woman make a will though she become a widow and unmarried before her death yet  such be a void devise without republication for the law here regard the time  of make only so it be in the case of a infant if he make a will though he be  of age nay though never so old when he die yet it be a void devise because he  have not discretion nor a dispose mind at the time of make for it be that  which the law regard in these case and not the time of the death of the  testator then as to the other part or necessary qualification which go to the  power of dispose which be ownership of the land the law require that to be  complete at the time of make the will consider as to this point the law be  very strict that the testator shall have a dispose power at the time of make  the will for it be so far from allow a subsequent power by acquisition after  to make the will good that the law require a continuance of the same interest  that the devisor have at the time of make the will to remain unaltered even to  the time of his death for that any even the least alteration of this interest  be a actual revocation of such will as where there be a tenant in tail and he  make a will and devise these land away now though he have a inheritance in  these land and they be his own and be can dispose of the absolute inheritance  and feesimple by fine and recovery yet if after the make such modern report  will at any time before his death he suffer a recovery to he and his heir and  alter the estate from a tail to a fee this be so far from make his will good  that it be a actual revocation of the will yet he be owner of the land when he  make the will and be no more now but only the estate be alter and he have now  another sort of fee nay the law be still strict as where there be tenant in  feesimple and he devise his land away to another and after that and some time  before his death make a feoff of these land to another to the use of himself  and his heir though this to some purpose be no alteration for he be absolute  owner of the estate as before yet this do not make the will good but be a  revocation thereof and so it be adjudge in the case of Lord Lincoln though so  small a alteration be in the estate now this show the law require the testator  shall have a complete power of dispose at the time of make the will and that  that power and interest he have at that time shall continue and be the very  same at the time of his death now if the law will not allow any the least  alteration of estate from that which he have at the time of make the will but  will rather work a revocation and destruction of that will I do not see how  the testator purchase after can work here to make the will good when he have  nothing at all no interest in or to the land at the time of make the will this  be a far great alteration than from a tail to a fee or from one sort of fee to  another for this be a acquisition of a new right and a new power it be total a  new interest purchase after make the will when he have neither right nor  interest at the time of the will which can never have effect to make this will  good so that as to the power of dispose land by will the law require the  devisor to have this power complete and entire both in regard of the estate  and interest to be dispose of and in regard of the testator understanding and  discretion which be necessary to he have at the time of modern report make the  will and these thing though they happen afterward though never so long before  his death yet they come too late to make the will good so that if this Act of  will be now de to make new to be construe it will receive this construction  that a man have land so as to give he a power to devise they by will by virtue  of the say Act must be mean have those land at modern report er p the time of  make his will and not at the time of his death only but then in the second  place this be a law make a long time ago and it have receive many uniform  determination agreeable to this construction this ought to be of great  consideration always that the law may be certain when there have be solemn  determination after long debate and a acquiescence under they and when accept  and receive as a rule of property though some shall not be satisfy in their  private judgement be the matter to be new resolve it be but reasonable we  shall acquiesce and determine the same way to prevent great mischief which may  arise from the incertainty of the law now there have be several solemn  resolution and acquiescence under they that a man can dispose of land before  he have they as to the case of Brett v Rigden I do not think that to be a  determination of this point that case be no more than this a man have land in  a certain parish or place and make his will and give away all his land in that  parish and afterward some time before his death purchase other land in the  same parish and the question be whether these new purchase land shall pass or  not and hold they will not but that judgement be not ground on this question  whether the testator can devise land he have not but whether the word of the  will in point of intention can extend further than to those land he have at  the time of make the will there be in that will no future word nor declare  intention of pass any land he shall purchase in going to be that judgement go  rather on a supposition that the intention of the testator be satisfy in pass  those land the testator have at the time of make the will modern report for  there be no future word in the will it may be the intention of the testator  that the devisee shall have the land he have at the time of make his will and  his heir have the new purchase land by dissent but there be some case in point  with this as the case of butler v baker a   a and Leonard Loveiss case b   b  they go express on the word have at the time of make the will and this have be  all along take as the rule and all people ought to acquiesce therein be so  often and so solemnly in this manner determine c see lawrance v dodwell ld ray  holt Lut stride v Falkland Chan Rep but if a man have a equitable estate a  devise of it will be good Prideaux v Gibbon Ch case Davie v Beardsham Chan  case Atcherley v Vernon Mod Greenhill v Greenhill Prec Ch Peer wms potter v  potter vezey Langford v Pitt Peer wms very v Phillips vezey jun bridge v duke  of chandos vezey jun c and now I come to the second matter on which this case  depend and that be the custom d see this custom also find in the follow case  launder v brook cro car brown v brook side Hammond v Thornhill style wiseman v  cotton hard Brunker v cook ante d whether though it shall be allow that by a  will a man can dispose of land which he have not at the time of make the will  and which he purchase afterward yet whether such devise may not be by such  custom as be here find and whether such custom will not make this devise good  and I be of opinion it will not the custom find be no more than that gavelkind  land may be devise by will in write but there be no such custom find as that a  man may devise gavelkind land that he have not but only that gavelkind be  devisable if it be a reasonable construction of the Act of will that to enable  a man to devise he shall have the land at the time of make his will why shall  not this custom be so expound since the custom be only to enable a man to  devise land if it be a reasonable construction as to common socage land why  not as to gavelkind land since there be no more particular in one case than  the other and the rather because all custom which be against the commonlaw of  England ought to be take strict nay very strict even strict than any Act of  parliament that alter the commonlaw it be a general rule that custom be not to  be enlarge beyond the usage because it be the usage and practice that make the  law in such case and not the reason modern report of the thing for it can be  say that a custom be find on reason though a unreasonable custom be void for  no reason even the high whatsoever will make modern report er p a custom or  law so it be no particular reason that make any custom law but the usage and  practice itself without regard have to any reason of such usage and therefore  you can enlarge such custom by any parity of reason since reason have no part  in the make of such custom now in construction of act of parliament it be  otherwise and there be a great latitude allow in they and the reason that  induce the lawmaker to make such act to take away the commonlaw may be and be  usual urge in make construction of they therefore in doubtful case we may  enlarge the construction of act of parliament accord to the reason and sense  of the lawmaker express in other part of the Act or guess by consider the  frame and design of the whole but it be not so in the case of a custom because  not find on any particular reason for the reason of the commonlaw be against  it but the law allow usage in particular place to supersede the commonlaw and  be the local law which be never to be extend further than the usage and  practice which be the only thing that make it law now there be nothing here  find of a usage to devise land which a man have not or which he shall  afterward purchase and then we must enlarge this custom to devise land which  the devisor have not at the time of make the will which be beyond a reasonable  construction for though it be lawful and customary to devise land a man have  yet it do not follow that by the same reason a man may devise the land he have  not for it be on different consideration because the commonlaw enable a man to  dispose of what be have but there be not the same parity of reason that custom  shall enable a man to dispose of what he have not nor do it ever give a man  leave to dispose of what he have not it be a thing against reason that any man  shall have a right to modern report dispose when he have not the thing to be  dispose of therefore it ought not to be carry in parity of reason further in a  custom which ought to be construe more strict than it will be at commonlaw but  then it be further object that this custom be a general power of dispose as  far as a man may his good and chattel at commonlaw which he may devise in  manner as be contend the land ought to go in this case for it be say say they  in Fitzherb nat short catalog that this custom of gavelkind land be to devise  land tanquam good et catalla but sure these word do not prove that gavelkind  land by such custom may be dispose of to all purpose as good and chattel there  be most certain a great deal of difference between a devise of land and a  devise of good and chattel good and chattel be always take to be testamentary  thing if a man make a will the law give all his good and chattel and personal  estate to his executor by his be name executor he have a right to all the  personal estate and if a man make no will the ordinary do dispose of the  intestate estate until the statute for grant administration be make so that as  to the personal estate the law do appoint no person who shall take in  succession as to that unless the testator do dispose thereof but as to land  the law have appoint the heir to represent the ancestor and to succeed he in  his inheritance therefore land ought not to go from the heir to who the law  have give they otherwise than as express devise from he to some other and  though the testator do dispose of his good and chattel by his will to legatee  yet they all pass to the executor and he have they in the nature of a trustee  and he alone have a title in law to they and nothing passes to the legatee nor  can any legatee take any thing devise to he until the executor do assent so  that this in effect amount to no more than a direction to the executor how be  shall dispose of his testamentary estate when debt and funeral expense be pay  modern report testament of good and chattel be by the civil law and of  ecclesiastical conusance and subject to the rule of the spiritual court and to  be govern by their law but as to land nothing enable a man to take but the  commonlaw and the heir be in by dissent as be the person appoint by the  commonlaw to succeed and represent his ancestor and if land be devise away by  a will from the heir they pass immediate by the will to the devisee so that  there be a mighty difference between a disposition of land and of good and  chattel the case cite at the bar to maintain this devise be brook a bro Abr  devise pl a Fitzherbert b Fitzherbert Abr b and Stathams abridgment c Stath  Abr c the same title and modern report er p these be press as authority in  point all these case be find on the yearbook of Henry the six d Henry pl d I  have look into that book but that do not by any mean warrant any such opinion  for the principal case be no more than this a man devise land and be after  that seize and then die the question there be whether it be a good will  because he do not die seize and their opinion seem to be it be not a good will  because he do not die seize and then the book say but suppose a man shall  after make his will purchase land and there be no resolution as to that but  only a qure so that these book be only collection and inference upon the Henry  which warrant no such thing but rather the contrary especial if it be consider  this case must be on a custom to devise because long before the statute of  will and therefore for these reason I think the plaintiff ought to have his  judgement modern report hilary term the six of queen whether in the queen  bench sir John holt Knt chief justice sir John Powell Knt sir Littleton powys  Knt sir Henry gold Knt justice sir Edward Northey Knt attorneygeneral sir  Simon Harcourt Knt solicitor general