Buckenham versus cook mich Ann ejectment of land in ken upon not guilty plead  the jury find a special verdict that the testator upon the d of may make his  will in which he take notice of his go to sea and for fear of a sudden death  devise as follow I do hereby give and bequeathe unto my dear wife Frances  Buckenham all such sum and sum of money that now be or shall hereafter become  due to I for service do or otherwise and also all my good and chattel land  tenement and hereditament whatsoever which I now have or shall hereafter have  at the time of my death and I do appoint my say wife to be my executrix of  this my last will and testament and then the jury find that the testator at  the time of make his will be not seize of any land or tenement but that eight  year after be return from sea sir George Wheeler and other be seize in fee of  the land in question hold in socage and of the nature of gavelkind do convey  they to the testator and his heir by which he become seize in fee and that be  die without republish his will and they find further that the testator have  two son a and b and that a die without issue and b enter and lease to the  plaintiff holt KB the question be whether those land do pass to the devisee  the devisor not be seize of they nor in any wise entitle to they at the time  of make his will Mr Raymond among other thing argue to the follow effect the  will of a man be what he will have do after his death Inst ill a it be but  ambulatory till his death this be not a term for year which may be dispose of  by custom but a freehold estate which may be dispose of by will ass l why may  not a devise of land which a man have not at the time of the devise be as good  as a devise to man not in be by custom a man may devise land which he have not  at the time of the devise as he may chattel where a man under age make his  will and become of full age that will without republication will be of no  effect because he be not capable of devise at the time when be make his will  but in this case it can be say that the testator be not capable Litt sect Com  Brett and Rigden Fitzherbert Chan Rep Chan Rep I agree that a will must  cooperate at the time of the make or else it will be of no effect cro dyer  where a man make his will and become non compos h bro title devise   roll lev  more and Leon man v Andrews roll Abr roll Abr Leon where a man devise all the  good that he have in such a room and some time after he have make his will be  put several other good into the room those that be afterward put in shall pass  by this devise as well as those that be in at the time when the devise be make  if a man make his will and devise all his good and chattel and after purchase  a lease this will be good and the lease do pass sir Thomas Parker contra a  will ought to be construe in favour of the heir h Inst and as much as possible  it may in favour of the commonlaw h dyer here in this case be want of power in  the devisor he not be seize which bear some resemblance to the case of a  rentcharge h Bulst doctor and student a I Inst hob Com a use may take effect  in going to be cro but no use arise where a man have no possession Gouls roll  holt KB and side where a infant of twenty year of age make a will and devise  land before he have any it be of the same effect in law with this case buller  and baker S case   be not parallel with this for there be a intent but here be  not it be eight year after he make his will that be purchase this estate the  custom of gavelkind land be say to go along with they Godol Orph legacy land  may be devise by custom and by the stat swim Inst b office of executor a  devise of all land in general shall be intend of no other land but what a man  have at the present there be a fundamental difference between a devise of land  and of good dyer Leon Mann ing v Andrews more h bro devise Stath devise mich h  Allen by these book there be no opinion holt KB er p that a general devise of  land be good how the word of a will may be construe if they do not disinherit  the heir vide I roll more sir Edward Northey ad idem the word have be a  material word in the statute which give power for the make of a will for a man  must be a person have at the time that he make his will because that be the  foundation of his power a man that can give by deed can give by will Com   a  roll ab cro Jones when a man be seize he can by his will devise those land of  which he be seize a man can devise a reversion that be discontinue and this  case go far for here be only a possibility of have as before the statute a man  may give by deed so now by the statute he may give by will the one fall under  the same ruies of law as the other infant can t devise though they have  because they have not a capacity for a man must be capable and have or else be  can grant and consequent can t devise   a cro to devise what a man have not be  contrary to all rule of law for in plead it must be say that he be seize and  be so seize devoted to devisavit a will must be complete when this make or no  other act will make it so a man may covenant to stand seize of a reversion in  going to be but not of a reversion which he shall have in going to be roll the  case in cro l be take to be void and it do seem like the case of a devise    butler and baker the same in more pl cro full and holt KB full a will must be  construe accord to the intent of the testator but then that must be rule by  law all word whatsoever in a will be among chattel will be of the like nature  Powell I a grant must take its effect present but the intent of a testator in  his will have a great influence and this be revocable where a man by his will  give land say Blackacre which I intend to purchase this be a good devise holt  CJ if a man devise a house by name and after purchase that house it have be  hold to be a good devise this case be several time argue holt CJ this term  deliver the opinion of the whole court we be all of opinion that the land do  not pass by this will though we do agree that the word be sufficient to pass  they yet the testator not be seize of they by law can not devise they  notwithstanding it be his intention so to do if a man make his will and devise  that which he have not at the time of the devise that will be void for he can  give that which he have not at the time although it be a estate devisable by  custom or he have a power to devise by the statute though a will do not take  effect so as to pass the land till the death of the testator yet there be a  disposition as soon as the will be make and there be no act requisite between  the make and the death of the testator to make it a complete will if there be  a disability at the time of make the will if it be remove before the death of  the testator yet the will be void if it be not republish after the removal of  that disability as if a infant or feme covert make a will there be a  disability and if the party die before the will be republish that will be void  although he or she life to have a dispose power because it be void at the time  of make and the removal afterward will not make it good now in this case here  be a real disability and in the other but a personal and it can be say that a  personal disability be great than a real force and Hembling S case   the law  of England be plain as to this point not only where land be devisable by the  statute but also by the custom the plead be that the testator be seize in fee  and be so seize do dispose coke Ent rastal S Ent h a though plead do not make  a law yet it be a great evidence of law and that holt KB show that he shall be  seize it have be object that land devisable by custom differ from those  devisable by the statute because they be devisable as good and chattel and for  this purpose be cite f n b secundum experience in eaden c which say they show  that a man may devise they though he have they not to this I answer the custom  be not that he shall dispose of land tenement general but they must be svan  and there be a difference between chattel and a real estate for that of  chattel be not fix for a man may one day have a great estate in good and the  next it may be change into money and then a man will be oblige to make a new  will almost every day can he not dispose of those chattel he have not at the  time of the devise but a real holt KB er p estate be always the same and there  be another difference between a real and a personal estate for the law have  direct how a real estate shall go but in a personal estate the law have not  appoint any one to succeed but by the statute the administrator be to dispose  of it in right of the decease which be but a direction how he shall administer  that the law have appoint a owner to succeed in the one case and not in the  other if a man have a college lease in the manor of d and another devise this  by will and after purchase the lease that will not be good which be strong  than the present case march southward and Millward Goldsb a strong case it be  to be observe that here be no republication of the will for then it will have  be sufficient to have pass those land if it have be accord to the statute of  fraud and perjury and to make this a new will it must be new sign and test the  case of Brett and Rigden in Com I hold not to be law for the judgement there  be give because it be the testator S intent and the h Fitzherbert title devise  bro title devise which be there cite be not as in that case say to be if a man  be seize and in the time of his seize make his will and after reenter that  will be good for by his reentry he have purge the seize and be seize to all  intent and purpose whatsoever and be may have his action against the seize for  the mean profit h   Lyford S case but that be not like this case for here be  not law in re nor any probability to have the estate and if such a will as  this shall be adjudge good it will be of bad consequence and a cause of great  confusion for then the son in the holt KB life of the father may dispose of  his father S estate and if he die after his father that will be good if a man  have a reversion by his will be may pass that in possession as Davis and ken  car in c b if a man have a manor and devise it and before his death a tenancy  escheat this tenancy will pass by the will because the manor be devise and  that be part thereof and not a different thing the word of the h be any person  have but a man may dispose of a personal estate by his will though he be not a  person have we be all of opinion that this will be not good for the land in  question Powell I when this case be argue I think the will may be good but I  have since search the book and can find one case to confirm that opinion for  they all agree that a man must be owner of the land at the time of make of his  will dissent