case BRUNKER against cook S c affirm bro p c and ed a devise of all my land  tenement and estate whatsoever of which I shall be possess or invest at the  time of my decease will not pass a estate purchase after the make of the will  S c ante S c fitzg S c salk S c holt S c Eq ab S c bro p c ejectment be bring  for land in ken on the demise of Francis bokenham and on not guilty plead  there be a special verdict wherein the jury find that William bokenham Esq be  commander of her majesty ship the Grafton on the three day of may make his  last will and testament in write which they find in hc word be write that he  be then bind out to sea c and say I do hereby give devise and bequeathe to my  wellbeloved wife Frances bokenham all such sum and sum of money as now be or  hereafter shall become due to I from modern report their majesty for my own  and servant service either by sea or land as also 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 wellbeloved wife to be the whole and sole executrix of this my  last will and testament they find that William the testator at the time of  make this will be not seize of any land in the county but afterward by deed of  lease and release date the twenty and twentyfirst day of march in the year of  our Lord sir George Wheeler and other be seize in fee of the land in the  declaration particular mention convey the same to the say William bokenham the  testator and his heir by virtue whereof he become seize they find that the  land be hold in socage and be of the nature of gavelkind and devisable by the  custom of ken a that gavelkind land be devisable by the custom of ken see  noise maxim brown v brook side launder v brook cro car Hammond v Thornhill  style wiseman v cotton side ray lev Alkin v bokenham post fitzg lambard  perambulation of ken Fitzherbert n b and it seem that this custom be not  confine to the county of ken tailor on gavelkind Robinson on gavelkind a and  that some time afterward William bokenham die the devisee enter and the heir  at law enter upon her the question between they be whether these land do pass  by the will of captain William bokenham or not holt chief justice deliver the  opinion of the whole court we have consider of this case all together and we  be all of opinion that the will as to these land be a void will and that the  land do not pass thereby but that judgement ought to be for the defendant the  heir at law we agree that the word of the will be full and comprehensive  enough to pass all these land have be be seize of they at the time of make  this will and we hold they can by law pass on this account only because the  testator be not seize of these land in the year at the time of make the will  though perhaps it may be his intention and design to have they pass the case  be no more than this a man make his will and devise all his land that he shall  have at the time of his death and after that he purchase land and modern  report die without republication we hold that be a void devise for a man can  devise any land but what he have at the time of make the will a Brett v Rigden  Plowd a and if it be of land devisable by the custom it be the same thing as  of land devisable by the statute a will be it by custom or statute be still a  disposition of the estate and land he then have but no man can bequeathe land  or estate which he have not at that time and though a will do not take effect  to transfer the estate until the death of the testator yet it be a will and  disposition of his estate even at the time of make such will for from that  time it be a will and a disposition of what be devise away there be no act  between the make of a will and the death of the testator necessary to be  modern report er p do to make this a perfect and complete will no write no  publish nor any other act whatsoever it be subject indeed to a revocation  during the testator life and be to take effect only from the time of his death  but it be a will and a disposition of the estate bequeathe from the time of  the make thereof wheresoever there be a disability in the testator at the time  of make the will though that disability be actual remove before his death yet  the will will still be a void will because he have no ability at that time  suppose a infant make a will and devise land during his infancy or a feme  covert in the life of her husband make a will and dispose of land thereby  though the coverture and infancy be afterward remove and the husband die or  the infant come of age yet if either of the devisor die without a new make or  publication of the will this be a void will b side b because of the original  disability and though they shall live many year after such disability be  remove yet the remove those disability will not do without a new publication  or make a new will now those be personal disability but this a real one he  have nothing in this case to give or dispose of so here be a removal of a real  disability and shall the removal of that be more effectual to make it a good  will than remove a personal disability No sure modern report it be say in the  case of force v Hembling a   a that the make of the will be not the will but  only the commencement of it the meaning of that be only that it do not  transfer the interest and property of the thing devise but still it be his  disposition until he revoke it now what commencement have this will as to  these land it can have a commencement from the time of make the will because  the testator have not the estate at that time when then will you have this to  be a will must you stay until he have purchase land to make this a will  suppose he do can a precedent devise extend to they now his act of purchase  those land and his act of dispose of they be two different thing and be of  different nature you must suppose that eastern instant he purchase he make his  will though make long before which be absurd and repugnant the law of England  be plain as to this point by all the precedent of will and the law be the same  both of land devise by custom as well as by the statute there be no will that  I can find in any plea or entry but it be say that the testator be seize in  fee of such and such land and that be so seize he make his will such a day and  do devise dispose and bequeathe so and so which word plain show that it be  absolute necessary he shall be seize in fee at the time that he make his will  and of this there be multitude of authority I shall name a few only in coke  entry b   Ent b and in rastal c rastal Ent c there be a precedent of a will of  land devisable by custom that the testator be seize in his demesne as of fee d  see yearbook Henry pl a d though the form of plead do not make the law yet  constant plead of a thing in such a manner be a great evidence of the law and  this argue the necessity of the testator be seize in fee at the time of make  the will but it be object that land devisable by custom differ from land at  commonlaw because that they be devisable as good and chattel and appeal to the  custom itself set forth in the writ of ex heavy complaint e Fitzherbert n b  old edition page e now it be say that by this custom it be lawful to devise  land and modern report tenement as chattel though the testator have not the  possession of they at the time of make the will and that a man may dispose of  his chattel and personal estate that he shall for the future acquire at any  time after the make of his will to the time of his death and shall therefore  dispose of these customary land in the same manner in answer to this I desire  the custom in that writ set forth may be well consider and then it will appear  plain that the custom be not general that a man so qualify may devise land and  tenement as be may good and chattel but it be property svan they must be svan  before he can dispose of they they must be his property before he can devise  they away now if they be not svan at the time of the devise then he be out of  the custom and his will can be affect by it it be true personal estate and  chattel may by the commonlaw be dispose of before he have purchase or have the  possession of they and there be many case that make this modern report er p  out a see Gayre v Gayre vern sayer v sayer Prec Chan master v master Peer wms  wind v Jekyl and Alibone Peer wms all soul college v coddrington Peer wms dean  and chapter of Christchurch v barrow ambler a but there be a great deal of  difference between real estate and personal estate for personal estate and  chattel be transient and fleet and not at all fix and permanent as land be  perhaps the great part of a man estate be in good today and he may have a mind  to turn those into money tomorrow now will it not be hard that he shall make a  new will on every alteration for this the necessity of deal and traffic in the  world will require a man to make a will every day if he can not dispose of his  personal chattel because they have undergo some alteration this will be the  great perplexity in the world but on the other hand land continue the same  every day and will so to the end of the world and as to real estate there be  time and opportunity to make settlement as he think fit but of personal estate  which be under a continual variation it be quite otherwise in reason again as  to personal estate the law have not appoint any person to succeed therein  where there be no will as it have the heir in case of land but only now by Act  of parliament there be a administrator to be appoint b by Edward c where a man  die intestate the ordinary shall depute the next and most lawful friend of the  decease to administer his good but by Henry c he may commit administration to  the wife or next of kin of the intestate or both see also car c Lord Suffolk  case case tempt Hardw b modern report but at commonlaw it be not so c see  seldom jurisdiction of testament book ch roll Rep c and where the party  testator appoint a executor he take under his right of disposition when be be  appoint executor he take all as be name executor and when the testator give  legacy out of it it be in a manner a direction only to the executor how he  shall administer for legacy by the will do not pass to legatee in the same  manner as a real estate because notwithstanding such devise the property be in  the executor and not in the legatee until the executor do consent to the  legacy d roll Abr wentworth office of ex young v Holmes stram d but in a real  estate the land pass immediate to the devisee e   light a e this make a great  difference the law have appoint a person in one case to succeed where no will  be which be the heir but in the other case at commonlaw no person be appoint  to succeed to the possession of a personal estate but it be leave to the  testator discretion suppose the case be of a devise of a real chattel and a  man shall devise a term of year that he have not at the time of the devise but  purchase some time before his death I doubt whether that will be good though  this be not the case nor be it necessary that I shall give any opinion in it  yet I make a great doubt of it f wind v Jekyll Peer wms f suppose for the  purpose one take a college lease and another make his will and shall devise  that lease away to another and afterward the testator shall purchase that  college land subsequent to the make of his will the question be whether this  will be a good devise and I be incline to think this will not be a good devise  there be the case of Ashby v lever a Goldsb a come up to this matter a man  make his will have a college lease or other lease and devise this lease to I  style after the make of which will he surrender this lease and renew the lease  from the say college suppose and then die the question be whether the devisee  shall have this lease and it be hold in that case that the renew the lease be  a revocation of the will and that the lease do not pass this seem to be a very  strong case as to this point and the reason modern report be plain because the  estate be not in be at the time of make the will in the case of southward v  Milward b march b the question be whether a term not assent to by executor and  which pass only as a executory devise can pass by the will of the devisee and  it be hold that it be only a possibility and modern report er p that nothing  pass by will c see Selwyn v Selwyn burr and Jones v very term Rep that a  possibility cloth with a interest be devisable c and indeed how can he dispose  of a term that be not his but another man it be hard to imagine such a  preposterous thing but I shall not give any positive opinion therein this not  be our case the executor must assent to a legacy else nothing passes for  nothing can pass immediate where a term be devise but this be enough to show a  difference between a real and personal estate one be permanent and last the  other mutable and fleet to make a will to take effect from the purchase of the  estate be repugnant to the nature of a purchase for the will give it to  another and his heir and the purchase give it to himself and his heir the will  give it to his wife and the purchase give it to himself in fee so that here be  a perfect contradiction now it be to be note that here be no republication for  if there have be a republication that will have do and make those land pass  provide that all the requisite and circumstance necessary to the make of a  original will within the statute of fraud and perjury have be observe suppose  a man devise all his land in tail and afterward purchase other land and die  before republication those purchase land will not pass but if he republish the  will in such manner and with such circumstance as be necessary to the complete  execution of a original will then the purchase land will pass as by a original  will it be say indeed in the case of Brett v Rigden d Plowd d that where a man  devise land in certain as the manor of dale or white acre and the devisor have  nothing in the land at the time of make the devise but do afterward purchase  the same that such newpurchased land shall pass modern report to the devisee  because his intent be manifest to pass it away if that be law it be full  against I but I think that case be not law it be only a say of sergeant  Lovelace and the case quote in the margin do not warrant any such thing I  think indeed before I look narrow into that case which be Henry pl that it  have be so but there be nothing in that book to warrant it nor be there  anything like it in either of the abridgement either in Fitzherbert a  Fitzherbert Abr devise a a or brook b bro Abr devise b it be only a note of  two judge opinion notam say the book in the king bench per Yelverton and  Markham if a man devise land and be seize after that and then die the devise  be void and can be make good and the reason be because the seize turn it to a  right and be then only a choose en action and can be devise away and therefore  say the book it be hold a good plea against this devise that the devisor do  not die seize of the say land but the book go on further and say suppose a man  be seize and then make his will and devise land and afterward reenter into  those land it be make a question there if it be a good plea to say that the  devisor have nothing in the land at the time of the devise this be the case  put and the case mean which be the ground of the precede opinion and it seem  by that book that if he do reenter the land shall pass and I be of opinion the  land will pass if he reenter and the reason be when a man be seize and he make  a reentry that such entry purpose the seize and the disseizee by relation to  all intent and purpose be in possession from the beginning and for that reason  he shall have a action for the mean profit between the time of the seize and  bring the action and so be Henry pl Henry pl he may in such case be just say  to be seize in fee of such land and therefore may dispose of and devise the  same away because the entry revests the estate and be be now in consideration  of law in possession from the time of the seize and therefore be entitle to  the mean profit as though he have be actual in possession all the while but  that be not this case modern report for there the devisor have neither law in  re nor law ad remember for the land be here purchase eight year after the make  of the will suppose a heir who have nothing but a bare right shall during his  father lifetime make a will and devise all his land that he shall have at the  time of his death will the land that come to he by dissent from his father  pass by the devise No sure but then suppose a man make a will of land in  reversion expectant on a estatetail or estate for life and before his death  the tenant for life modern report er p or in tail die without issue these land  will pass though a reversion only at the time of make the will because he be  seize at that time as much as he can be and it be a certain present interest  though to commence in going to be and all the estate that be can give he  intend he there be a case in my Lord Bridgmans time of Davis v Kemp c carter  Eq Abr c it be a devise of land to two person and their heir and one of they  die during the life of the testator and the question be whether the survivor  shall take the whole or not and it be hold he shall which plain show it be a  will and disposition from the time of make it suppose a have a manor and make  his will and devise this manor and before the death of the testator a tenancy  escheat to the lord and after that the testator die the question be whether  the escheat tenancy shall pass and I hold that the tenancy that escheat  between the make of the will and the death of the testator shall pass because  the manor be devise and that be part of it for the tenancy be not devise as a  distinct thing but as a part of that whole which he can devise I look on it to  be very plain and to be my Lord coke opinion in the case of butler v baker a    a that a devise be a disposition and that case be so adjudge in the exchequer  Chamber by all the judge in England and that a custom to devise ought to be  construe the same as on the statute modern report therefore for these reason I  hold that judgement ought to be give for the defendant videlicet first in  regard it be a will at the time of the make second inasmuch as the testator  have not power to give what he have not three the constant manner of plead  show the necessity of the testator be seize at the time of the devise fourthly  a devise of land be not comparable to a devise of personal estate because a  personal estate be alter every day five because a devise be repugnant to the  nature of a purchase a purchase be to the devisor and his heir and the devise  be to another and her heir six because there be no case b Qure if there be not  a case in Ventris to this purpose and note that at this time there be another  like case depend in the court of common plea and the same point debate and  afterward adjudge which see hereafter page report under the name of Arthur v  bokenham note to the former edition b nor authority in law to warrant any  contrary judgement and judgement be accord give for the defendant the heir at  law and on a appeal to the house of lord this judgement be affirm c land  purchase subsequent to the make of the will do not pass by the statute of will  butler v baker   Leonard Lovies case   Laurence v dodwell ld ray holt stride v  Falkland Ch report bridge v duke of chandos vezey jun Rep unless the will be  republish bret v Rigden blow or the land have be article and contract for  previous to the make of the will Prideaux v Gibbon Ch case Davie v Beardsham  Ch case Atcherley v Vernon Mod Lingen v Souray Peer wms beauclerk v mead Peer  wms pullen v ready Peer wms Whitaker v Whitaker brown c c though by express  stipulation the agreement be not to be carry into execution until a future day  which be after the make of the will Greenhill v Greenhill Prec Chan vern  potter v potter vezey land not agree for until after the make of the will do  not pass either at law or in equity Langford v Pitt Peer wms green v smith atk  Allen v Allen Moseley see also ibbott v Cowling that if a copyholder have a  estate pur autre vie surrender all his estate in possession remainder or  expectance to the use of his will and afterward take the fee by dissent and  then dispose of the fee by will the fee will not pass for he have not the fee  at the time of the surrender term Rep c modern report er p