BRONKER versus coke hill Ann a man devise all his land and after buy land and  resolve the land buy after do not pass and say if a man devise Blackacre in  particular it will not pass against the opinion in the case of Brett versus  Rigden in Plowd upon a special verdict the case be that a be a seafaring man  and captain of a vessel be to go a voyage and make his will whereby be devise  all his good and chattel and all his land and estate which he have or shall  have to his wife and make her his executrix and afterward be make his voyage  and return back into England and purchase some gavelkind land in ken it be  also find that he have no land of inheritance at the time of the make of the  will the devisor die and the question be whether these gavelkind land shall go  to his wife and do pass by the will Raymond for the plaintiff say the land do  pass by the will for that a testator be suppose to be weak council therefore  his intent and will to be favourable construe for which I shall trouble your  lordship with authority a will be also say to be one who walks about usque ad  death so that the death of the devisor give life to the will there will arise  two question first whether this holt KB be good by the statute of will second  whether it be good by the custom of gavelkind first as to the statute of will  the preamble show that there be a liberty grant to every person to dispose of  his land and tenement by his will in write holt KB er p and the statute be to  be take very favourable and beneficial I shall take it as a statute restore  the commonlaw of the land for before the Conquest I take it that all land be  devisable and that ken obtain from the conqueror their law allow to they which  be call the custom of devise but let that be how it will I take it that the  statute of will have be ever favourable expound but it will be object that  there be a necessity for a man to be seize at the time of the devise to have  the land devise otherwise the land will not pass and that on the construction  some great man have put upon those statute all person have any land tenement c  in socage c so be the opinion of dyer in Brett and Rigden S case Plowd and the  Lord coke follow that opinion in butler and baker case c b where he be very  elaborate in the construction of the statute h c yet I must take notice that  the opinion of dyer and coke be nothing at all to the point in judgement of  either of those case wherein they be cite and the case cite by coke to warrant  his opinion be not at all to the purpose and I take it with submission that  the law have be take otherwise as the case put by sergeant Lovelace in Plowd  if I devise the manor of dale to b and his heir and afterward I purchase the  manor of dale and die this manor shall pass by this will and yet I have it not  at the time of the devise which be not deny by the court and which I take to  be good law for a will be not consummate till the death of the devisor if a  man devise to his wife it be good for this reason for though during his life  he can not give her any land yet he may by will because death complete be and  she do not take till then yet at the time of make and write of the will she  can take nothing so if there be a intermediate capacity that shall not hinder  the effect of a will as if a devise to b and then become a lunatic yet b shall  have the land so in our case the will be ambulatory till his death and his  intent appear that the plaintiff shall have this estate I think the reason and  the authority of these case do destroy the opinion of holt KB coke and dyer as  to this point it will be object that the principal case of Brett and Rigdon  Plowd be against I but that be not so for it be but compare the case for there  the intent of the devisor do not appear that Thomas Brett shall have the land  purchase after because there be other land to satisfy the word of the will not  so here for we can get no land but these for there be no other it be also  heretofore hold that a devise to a person not in be be not warrant by the  statute of will but a devise not in be as to a infant in ventre sa mere be  hold good h by babington c b more lev Ro Rep I say it be good if there be  future word and that be by favourable construction of the statute which have  as I observe be always favourable take second point by the custom it be carry  as far as by the statute when the intent appear nay further because a man may  devise land devisable by custom tanquam catalla for so be the word of the writ  ex heavy complaint f n b b so that a man may dispose of they the same way as  he may dispose of his chattel and as to that if I devise all my personal  estate the personal estate which I acquire afterward shall pass as be say by  manwood Plowd and be the construction of will before the statute of will for  if I devise land which I have not and after purchase those land they shall  pass so be f devise so be m h b stat devise so Br devise and light sec say  that a man may devise land by the custom which he have at the time of his  death so that by these book it shall seem that it be not necessary he shall be  seize of the land at the time of the devise make for if his intention do  sufficient appear that be do intend to dispose of they by his will then if at  any time he come to have they before he die that be sufficient for I take it  that they may by custom dispose of their land by their will as they may  dispose of their chattel so that in our case it be plain that the intent of  the devisor appear that his wife shall have all his land and whether this  devise shall be take by the statute or by custom I hope we shall have  judgement for the plaintiff sergeant Parker for the defendant argue contrary  and say that the circumstance of this case be very particular for the devisor  can have no intent nor no prospect to give these land to the devisee for the  will be make holt KB in and be die in so that he be a seafaring man and go a  voyage he have no holt KB er p land and make only a description of what he  have then because it be very probable he may never return and if he do be can  have no prospect of any future acquisition so that this will be pro here vice  only but I do think there be two point to be consider for I think he have no  power to dispose of these land it do not appear that he manifest his intent  sufficient to make these land pass as to the first it be the policy of  commonlaw that land shall not pass by will for that will be the disherison of  the heir who be the darling of the law but this case if allow go not only  further than any case that have be yet adjudge since or before the statute of  will but further than any grant have be ever construe first as to the statute  of will I may say of that as of all other act of parliament that they be ever  construe accord to the rule of the commonlaw so be   light a b and therefore  as a man can convey by deed in his life before he be seize c so he can devise  land before he be seize and as to the first that no estate shall pass before  he have it to convey vide Bulst but it will be say that be a present estate to  be convey but suppose the covenant that I and my heir shall stand seize of all  the land which I have or shall have at my death to the use of b and his heir  after my death if I purchase other land no use shall rise to b out of they so  be the case of Yelverton and Yelverton cro Noy more Ro so if I covenant that I  and my heir shall stand seize to the use of you and your heir of the manor of  dale and after I purchase the manor of dale no use shall arise because I have  nothing in dale at the time of make the deed Ro though there he have say that  he do hereafter intend to purchase the manor of dale vide ibidem and those  case be as future as a devise and a use be as much and more easy dispose of at  the commonlaw than the land themselves so that a covenant to stand seize of  land which I have not and a will of land which I have not be bad though in  both case the land come to the party before the deed or will be to take effect  it be true that the statute of will give person the same power over their land  which they have before of dispose of use at commonlaw but no more so that as  no use holt KB will arise out of the land which they have not at the time of  raise the use so they can dispose of land by the statute of will before they  have the land I do agree that a devise may be to a person not in be but it do  not follow from thence that I can dispose of land which I have not it be say  that a devise of all my land will pass all the land I shall have at the time  of my death because a will be ambulatory till death I do take it that can be  for a man can possible have any measure or intention of a thing that may be  altogether contingent and I think no land shall pass by such will but what he  d at the time of make of the will for then he know what he have and therefore  may know how to square his kindness and show his love to his friend but this  can be suppose for possible he may have no think of it for have he any  knowledge of what be to happen to he he will show a kindness to some other  friend c and in our case as I say it be very likely he will have do have he  any think of any new acquisition and I take it if there be a disability at the  time of make a will and this disability be before his death remove yet the  will be not make good thereby as if a infant make a will and after come of age  and die this will be not good I side so a will by a feme covert her husband  die and she die this will be not good so I take it that a man not be able to  dispose of land which he have not at the time of make the will a subsequent  purchase do not help it may possible be object that the case cite there be  personal disability not so in we but my Lord dyer in Brett and Rigden S case  take the case to be govern by the same reason on the word of have in the  statute of will so be coke butler and baker S case and I hope their opinion  will prevail in this case so be more nor do I think the custom will help they  in this case for that the custom be who seisitus c may devise for the word  seisitus and the word have in the statute of will signify much the same thin  if it be not strong against they as to the custom because that custom against  the commonlaw be take strict so be sir John savage S case Leon so I think holt  KB er p if the word have be in the Act tie up to the time of the make a strong  the word seisitus in the custom must be tie to the make also Brett and Rigden  S case be much the same with our case it be also a Kentish cause and holt KB  the counsel be Kentish man and there be not one word allege of the custom  which will not be omit if it have such force as they will give it here it be  say and that very true that f n b have these word tanquam catalla in the writ  ex heavy complaint and the word of the writ be so but that have not to be take  omni modus for common land can not pass by will but chattel may but it do not  follow that the word which pass chattel will pass even customary estate as if  you devise all your estate there all the good which you have at any time so  you acquire they after the will make shall pass but if you devise all your  land those only shall pass which you have at the time of make the will so be  Brett and Rigden S case and even personal estate and chattel I take it will  admit of a difference as if I devise all my plate then I purchase new plate  and die the new plate do not pass but if I devise all my personal estate and  acquire more and die all passes because in the last case the person do intend  all his personal estate shall go to such a person and that plain by the word  but in the first case he can not reasonable have any such intention Godolphin  S orphan legacy but I take it that personal estate can never be any way a rule  to guide we in the devise of real estate because personal estate be in  perpetual fluctuation and no body have a right to they but in real estate it  be not so for that they be to descend to the heir who be the favourite of the  law a devise to a wife be good so be a covenant to stand seize because the  baron have the estate radical in he which be after his death only to come to  his wife but he have power to dispose thereof at the make which differ from  our case as to the case of Fitzherbert devise which be say to be in point I do  confess it be very full but I do deny it to be warrant by the yearbook but Br  devise be right and do not affect our case but I take it that Fitzherbert  devise be transcribe out of Stath devise for there Fitzherbert depend on Stath  who lead he out of the way in both case they never go so far in chancery as  they will in this case it be true that in chancery case a devise be allow of  land he have not but that be when he have a prospect of have those land for  there a treaty be on foot for the purchase of the land and also be devise the  sale of the land for the payment of debt which the chancery make always very  extensive as to the case put by the counsel in Brett and Rigden S holt KB case  if I devise the manor of a and after purchase it that manor passes I take it  not to be law for that none of the judge have agree that case but the contrary  have be hold by dyer and coke as I have say before yet admit that case to be  law yet that will not warrant our case because where certain land be  particular devise and then the devisor purchase they that show his intention  particular that be do intend to purchase those land and dispose of they so  that he may have some view and from a judgement of what he be do but in our  case and in all case where he do not particularize the land that he will pass  be can form no judgement of it in his mind second point there be not a  sufficient declaration of his intention for the reason next abovesaid and if  any thing can make these land pass from the heir it be implication only and a  heir at law be not to be disinherit by any will but by express word which be a  common rule there be no word to convey a inheritance only a estate for life so  be Cr for in truth the devisor never think to have any land of inheritance for  this will be as it be find by the verdict make when he be go to sea and when  he have no real estate nor I dare say do be ever think of have any and it be  to prevent accident and dispose of what then he have so also the word here be  couple with chattel and mortgage and shall be construe like cro Ro to extend  only to chattel but if it shall be take to be a fee in the devisee by these  uncertain word then it will be exclude the child he may afterward beget which  be not reasonable to be suppose to have be his intention vide more the  intention of the party be to be special consider and regard and sure no where  more than in a will the custom will not help in this case because it be more  chance than design that be purchase gavelkind land in ken more than other land  in any other place of the kingdom but I do take holt KB er p it that such a  devise before the statute of will can not be warrant by the custom Raymond the  case put by sergeant Parker of covenant to stand seize differ from our case  because a use can be raise out of a thing which I have not as to the case of  sir John savage which he cite to prove that custom be take strict I think that  case be deny in the case of clement and Scudamour in this court for by holt KB  that case and also by the case of reve and master I Cr custom be to be  reasonable construe and as to the intention of the party I think it appear as  plain in this will as in any I ever see holt CJ if I devise the manor of dale  and afterward purchase it sure the manor of dale shall pass after my death if  a man devise all his land and afterward purchase more land those land will  pass by a new publication but now as to that the law be change by the statute  of fraud and perjury which require another ceremony if I make a charter of  feoff of Blackacre and afterward purchase it and then make livery Blackacre  passes by if I have make livery by letter of attorney it be true the old law  be very fond of heir but now the reason be alter so be the law for we be now a  trade nation and trade be to be encourage therefore fine recovery use and will  be encourage that trader may lie out their money and have purchase c and I  take it if I devise all my chattel and afterward purchase a lease for year  that will pass thereby Powel I this be a case of consequence and to be  consider I agree if I devise all my chattel the lease I purchase afterward  shall pass but by a devise of all my estate if gavelkind land which I purchase  afterward shall not pass by the custom I shall think if the devisor S intent  appear to pass those land it will be pretty hard to control it holt CJ the  doubt to I be whether there be sufficient word in this will to make it appear  to we that his intention be that these land shall pass brother Powell you  remember the case of sander S will where he devise all the land he have or  hereafter shall have to the smith S wife and we both do press chief justice  Jeoffryes to have that find special but he will not allow it I think that a  man at this day have the same power over his real as over his personal estate