burrow swift ex dismiss neal et ux versus roberts Tuesday that June SC black  ambler will of a joint tenant bad see Cowp durn Bosanq Eq Abr Cas a ejectment  for a house c in wellclose square in Middlesex come on to be try before Lord  Mansfield at the sit after last term the follow case be special state and  reserve for the opinion of the court Richard Gilbert and Frances Sophia  Gilbert now neal be upon the that of January seize as jointtenants in fee of  the premise in question Richard Gilbert on the that of January make his will  duly execute and thereby devise in these word imprimis I give and bequeathe  all my part right title and interest which I have in a estate joint with my  sister Frances Sophia Gilbert situate and lie in wellclose square c to my  belove wife jane Gilbert by indenture of lease and release date on the that  and that of October they make partition and the message in question be convey  to the say Richard in fee Richard die in August without issue leave the lessor  of the plaintiff his sister and heir who claim as heir at law to he the  defendant claim under his will the question be whether the plaintiff under the  circumstance of this case be entitle to recover the premise in question in  this ejectment V post p king v Holmes mayor of Wigan that Feb b r burrow er p  it be argue for the first time on Tuesday the d of may last by Mr Ashhurst for  the plaintiff and Mr burrow sergeant Hewitt for the defendant and the two  question propose by Mr Ashhurst and dispute between they be saint whether the  devise make to the defendant by Richard Gilbert who at the time of make the  devise be a jointtenant though he afterward make partition and have the  promise for his purparty be a good devise abstract from the consideration of  the subsequent partition d whether the subsequent partition can make the  precede devise good Mr Ashhurst argue Firstthat a jointtenant can not devise  though a coparcener may for the right of survivorship take place of a  jointtenants devise this be settle establish law for this he rely on Littleton  sect and   Litt a b both express in point Secondlythe deed of partition make  subsequent to the time of make the devise can effectuate and make good a prior  devise which be a bad one when make for upon the statute of will a will must  be good at the time when it be make it can not be make good by any subsequent  event by the statute of h c which be explanatory of the former Act of h c  person have a sole estate in feesimple or seize in feesimple in coparcenary or  in common have power to devise as much as in they of right be at their  pleasure but as the power be only give to person sole seize or seize in  coparcenary or in common it be clear that jointtenants be exclude and  jointtenancy be a personal disqualification upon these statute it be also  clear that no future event can supply a defect of qualification which be want  at the time of make the will as a infant testator come to full age or a  femecovert testatrix become sole or a insane person recover sanity of mind in  all such case the will be void unless it be republish after the person become  capable of devise burrow Siderf Herbert v Torball be so determine upon a will  make by a infant to make a will good the seize which the testator have at the  time of make must continue otherwise there must be a republication   b a  butter and baker case dister v dister lev where the testator make a bargain  and sale in order to make a tenant to the praecipe and suffer a recovery to  his own use Ashby v Laver goldsborough where a renew lease do not pass the  former be surrender Yelverton v Yelverton cro Elizabeth a man can not grant or  charge what he have not bunter v coke salk Afterpurchased land shall not pass  by a prior devise so in the present case there ought to have be a  republication for at the time of make this will the jointtenant have not the  estate in the mode that be necessary to qualify he to devise it in plead it be  incumbent to allege that at the time of make the devise the devisor be seize  in his demesne as of fee but if it have be so allege here the adverse party  may have allege a jointseisure and traverse the sole seizure he add further  that suppose this devise to have be good in its original creation yet the  subsequent partition which be make by deed of lease and release will amount to  a revocation of it and he endeavour to show this by cite Ro Abr title devise  letter which do not prove it and the case of Le strange v sir Richard temple  keb and Siderf and a case in shower p c but as to this point he be overrule  immediate by Lord Mansfield and Mr justice Wilmot who both agree that it have  be determine that a burrow partition by deed between tenant in common do not  amount to a revocation and they particularize two case in point videlicet  Luther v kidby peer wms that April mention there in a note and Risley v lady  Baltinglass sir t Raymond each of these two case be the unanimous opinion of  four judge and Lord Mansfield add a observation that constructive revocation  contrary burrow er p to the intention of the testator ought not to be indulge  and that some overstrained resolution of that sort have bring a scandal upon  the law a Mr sergeant Hewitt for the defendant as to the last point he think  it needless to say any thing at all about it as the two case last above  mention be a full proof that a partition between tenant in common be no  revocation of a prior will and there be no difference in this respect between  tenant in common and jointtenants as to the saint point a jointtenant have  such a estate as he may devise under these two statute concern will he can  indeed devise so as to defeat the survivor so long as survivorship continue  but if the survivorship be put out of the case then there be nothing to hinder  he from devise now a partition discharge destroy and extinguish this incident  or encumbrance of survivorship if one jointtenant release to the other as he  may do this extinguish his estate all this be consistent with Littleton and    Litt and Perkins section be express that if a jointtenant make his will and  survive the will shall stand good d point after partition the jointtenant be  in of the old estate the partition operate only as a extinguishment of the  other moiety and as to the expression in and h of have a sole estate he be  sole seize of his own part and have power to dispose of it he may alienate it  demise it forfeit it why then may he not devise it Mr Ashhurst in his reply do  not insist upon the partition amount to a revocation of the will though Lord  Mansfield tell he he be at liberty to do it if he be not satisfy about it as  to the rest he say that jointtenancy be a personal disability to devise the  land as infancy insanity or coverture be to do so and it be tacit exclude by  the burrow statute by not be therein express as coparcenary and tenancy in  common be it be no argument to prove his power of devise it to say that he may  have give it or alien it in his lifetime for that will have defeat the  survivorship but this do not as to the passage in Perkins it may be lie out of  the case for his assertion be not support by the authority he cite Mr Ashhurst  say he have look into the book refer to by Perkins and can find no such thing  in they d point after partition the mode of the devisor have the estate be  alter and the will must be publish anew beyond concilium this cause now stand  in the paper for a second argument Mr Morton be for the lessors of the  plaintiff and Mr eliab Harvey for the defendant the court put it upon Mr  Harvey to show how he can get clear of the statute of the and h Mr Harvey  endeavour to do it by urge that the testator be sole seize at the time when  the devise operate that be to say at the time of his death it be a good devise  under the statute of h and this he say depend upon the quality of the estate  and not upon the personal ability of the testator where it depend upon the  personal ability of the testator it be not indeed sufficient that the  disability be remove before the time of the operation of the will it be  necessary that the testator shall have be free from all disability at the time  of make it but where it depend upon the quality of the estate it then turn  upon the time of the will be operate and in the present case which be of this  latter kind the testator be sole seize at the time of the operation of his  will before the make of these statute of will in and h none can a see durn vin  Str and burr also Lord Hardwicke in atk seem to have be of the same opinion  though he will not speak plain that he be so perhaps he look into FitzHerberts  naturan narrow places instead of the old naturan narrow places burrow er p  devise their inheritance by the general law of the land but in most city and  borough the right of do it subsist and many question be agitate concern such  devise and many rule be lie down and many principle establish about burrow  they one of those establish principle be that a jointtenant can not devise or  in other word that a person must be soleseised in order to qualify and enable  he to devise land and the intent of these statute be to make the general law  of the land conform to these local custom upon the former of these two statute  videlicet the d of h it be leave doubtful whether a jointtenant can devise by  virtue of that Act or not the power be give to every person have any manor  land or tenement hold in socage and the Act of and h be make to explain this  doubt and give the power of devise to person have a sole estate in feesimple  or seize in feesimple in coparcenary or in common so that it be now establish  by this latter Act which adopt the know principle of the commonlaw I that a  jointtenant can not devise and this be a remedial law and therefore to be  favour in order to promote the remedy and effectuate the intention of testator  the reason why a jointtenant can devise be that the right of survivorship take  place in his companion immediate upon the devisor death and the survive  companion be paramount the title of the devisee who can only claim under the  devisor whereas the survivor claim in his own right under the first feoff so  be Littleton and   light b in his comment thereupon and this paramount right  have instant prevail upon the testator death there remain no estate of  inheritance for the devise to operate upon but if between the time of make the  devise and the time of its operate the jointure be sever and the estate  consolidate then the devise will be good for there now remain no paramount  right to prevail over it this doctrine be quite agreeable to Littleton opinion  just cite and it be also the opinion of Perkins who in his that section title  devise say that a devise by a jointtenant of land devisable which he hold in  fee on the day of his death joint with a stranger be not good and the law be  the same with regard to a use in jointure c but if such devisor survive all  his jointcompanions then such devise be good as it be well show by my Lord  Littleton in his d book in the chapter of Jointtenants folio and also in  naturan narrow places with the addition upon the writ of ex heavy complaint c  where there be several good case concern devise put and show c Perkins be  clear of opinion burrow himself and he deduce it also from Littleton that if a  c jointtenant make his will and afterward survive his companion then such  devise be good thus it stand at commonlaw antecedent to the statute and the  statute adopt and proceed upon the reason of the commonlaw and mean to make  the law throughout the kingdom conformable to it in every respect it do not  destroy the former power of devise which subsist only partial and not general  but on the contrary establish the like power general and over the kingdom upon  this principle the estate must be consider as they stand at the time of the  operation of the will and for that reason no livery be necessary nor  attornment V Leon egerton argument of butler and baker case a tenant in tail  with remainder in fee in contingency may devise and if he leaves no issue at  his death his devise shall be good the case of lapse devise where a devisee in  fee die in the life of the devisor tend to prove this point but a much strong  instance be the case of a man devise to his own wife which can only be support  upon this foot of consider the estate as it stand at the time of the will be  operate so if a devise be to the heir of a and a die in the lifetime of the  testator a s heir shall take the present case turn upon the quality of the  estate and therefore the devise be good without republication or any other act  do as the testator be soleseised at the time of the operation of the will  indeed where it depend upon the personal ability or disability of the testator  some other act must be do after the disability be remove as if a will be make  by a femecoverte a infant or a mad person it must be republish after the  disability be remove but where it depend upon the quality of the estate the  estate be disencumber by the removal of the disable circumstance and it be  enough if it be clear of any burrow er p encumbrance at the time when the will  operate here the devisor be in to the same use after the partition as he be  before his intention remain the same as it be before and the establish the  devise he have thus make will not clash with any rule of law burrow Mr Morton  for the lessor of the plaintiff as to Perkinshis word do not import even his  own opinion to be that the very identical will make by the survive jointtenant  before the death of his companion will be good after it he only mean that if a  jointtenant survive all his companion he may then make a devise of the land  before hold in jointure which he can not do before nor can any such opinion as  be ascribe to he by Mr Harvey be infer from the book cite by Mr Perkins as to  devise by tenant in tailif a man have a estate tail and destroy that quality  and acquire a fee such acquire fee will not pass by a prior will without  republication in the particular case put by Mr Harvey of a tenant in tail with  remainder in fee to himself and his heir the estate will pass by the very word  of the statute of will because the devisor then have a fee in the remainder  and the word of the statute be have a sole estate in feesimple c in possession  reversion or remainder but such devisable estate must be either a sole estate  in feesimple or a feesimple in coparcenary or in common whereas at the time of  Mr gilbert make this devise he have not such a estate as the statute intend  for he then hold in jointtenancy with his sister and the express bequest in  his will be what he have joint with his sister b suppose Mr Gilbert to have  survive his sister will the whole have pass by the present will certain not  and if so how can his own share pass by it the general doctrine advance by Mr  Harvey come in question in the case of butler v baker report in   and Popham  and Popham and Anderson the two chief justice and all the other justice and  baron hold contrary to periam Clench clark walmesley and fennor that they be  to consider what estate the devisor have in the land at the time of his devise  make without regard to that which may happen by matter ex post facto upon the  deed of another and at the time when that will be make the devisor have no  other estate in the manor of Hinton than joint with his wife and if so it  follow that the manor of Hinton be then out of the letter and intent of the  law for he be not then sole seize thereof nor seize in coparcenary nor in  common and by the word he shall be sole seize in feesimple or seize in  feesimple in coparcenary or in common see particular Popham and   Rep b I  burrow the court consist of Lord Mansfield Mr justice Wilmot and Mr justice  Yates for Mr justice denison be absent be clear and unanimous of opinion that  a will make by a jointtenant during the continuance of the jointure be not a  good will even as to his share of the estate under the statute of will in and  h notwithstanding a subsequent severance of this jointure by a partition make  after the time of make the will and before his death unless there be a  republication of it after the partition and they observe that the devisor have  express describe this bequest as a right which he have in the estate joint  with his sister they all think that this will have be a pretty plain case if  it have stand mere on the statute of h which enact that every person have any  manor land or tenement hold in socage c shall have power to give and devise c  and consequent there be no necessity of the latter Act of and h to explain the  former but this latter explanatory Act clear the matter of all doubt it  profess to be make on purpose to remove all doubt about the exposition of it  and to declare and explain its meaning part of which declaration and  explanation be this that all b see brown content in the case of a remainder  limit to the survivor of the husband and wife and the heir of the survivor the  limitation be in a settlement make before marriage but to take effect on the  marriage therefore it seem they take by entireties as if the limitation have  be after the marriage otherwise have the limitation take effect before the  marriage they will have take as jointtenants   Litt and then the devise will  have be void unless there be a difference between a devise of a rend out of a  estate which be the case there and a devise of the estate and there seem no  ground for make such distinction burrow er p and singular person and person  have a sole estate or interest in feesimple or seize in feesimple in  coparcenary or in common in feesimple c c shall have power to devise c it be  very clear upon this statute that the devisor must have the estate at the time  of make his will he can devise what he have not in he at the time of devise  Lord Mansfield say that by the feudal law there can be no devise of land as  constitute a heir but a devise of land be consider as a limitation of the  devisor estate by a revocable act and upon the custom and independent of the  statute a man can not limit a estate which he have not and Mr justice Yates  observe that the manner of plead a devise of land show that the devisor must  be seize of they at the time of make the devise for the form of such plead be  that the testator be seize c and be so seize make his will and thereby devise  so and so the question therefore be whether Richard Gilbert have a devisable  estate in these premise at the time when he make his will and they be  unanimous that he have not for it be only a joint estate which be not  devisable they all be clear that a jointtenant can make a will of burrow what  he hold in jointure and Lord man field hold that such a will will be void both  at commonlaw and upon the statute if it can operate at all he say it must  operate as a severance of the jointure for it can not operate otherwise but it  can operate in that manner because a severance of jointure can be effect by  that method a feoff to use which the statute mean when it speak of a act  execute in the person lifetime will have sever the jointure but a will can  have that effect where it take place by particular custom it be in the nature  of a revocable appointment or limitation of the land causan death and not like  the Roman testament as a constitution of the heir therefore before the statute  a man by custom can only devise land which he be then seize of Mr justice  Wilmot say that the time of make the will be the material time in this case as  well with regard to the quality of the estate as to the personal ability of  the testator for by the express word of the statute of and h he must have the  estate in order to be capable of devise it and the word have be a reason why a  afterpurchased estate shall not pass now this man who only hold in jointure at  the time when he make his will have not a devisable estate when he make the  devise which it be necessary that he shall have have at the time of devise in  order to make the devise good as to the passage cite from Perkins b title  devise section which see at large ante p they be extreme well satisfy that it  can not be true in the sense in which Mr Harvey will have it understand namely  that if a jointtenant who hold devisable land joint with other person make a  devise of such land and afterward happen to survive all his joint companion  then such beforemade devise shall thereby become a good one though it be  confess a bad one before this event without be renew or republish or any other  confirmatory act the book he cite do not warrant any such conclusion nor be  there any foundation for support such a proposition and as Lord Mansfield  observe it will be absurd upon the face of it to suppose that such a devise  can be good for the whole of the estate and both his lordship and Mr justice  Wilmot remark that what Perkins say relate to customary devise only and not to  devise under the statute so that it have still the less weight upon the  present occasion N B it seem to I that Perkins mean no more than this that a  jointtenant who continue till the day of his death to hold joint with one or  more other person or person can not devise but if he survive all his companion  he then and thereby become burrow capable of devise and I apprehend that he  only cite Littleton and old naturan narrow places in order to prove that a  devise by a jointtenant be void and that he consider the latter part of his  assertion as a plain consequence of the former and obvious clear without any  proof per cur let the postea be deliver to the plaintiff burrow er p