coke b LAMPETS case mich James see in re Bellamy Ch d John v pink Ch where one  possess of land for year devise the use or profit of the land or the land  itself or the term to one for life the residue to another such executory  devise be good the first devisee can bar the executory devise the assent of  the executor to the first devise be a assent also to the second if the devise  be to the executor for life and afterward to another and the executor enter  general he shall have it as executor although the testator may have leave no  debt such executory interest can be grant to a stranger during the life of the  first devisee but may be extinguish by grant or release to he in possession  and by the release the first devisee have the whole term in he absolute during  the residue of it where the first devisee be also executor a release of the  executory interest make to he at his request amount to a assent to take as  devisee a interest termini can be surrender by express word but the acceptance  of a new lease will merge it bring a writ of ejection firm against Margery  Starkey and declare on a lease make by William Lampet and Elizabeth his wife  by their indenture June James of a house twentyfour acre of land eight acre of  meadow and twenty acre of wood with the appurtenance in cawe Hamborne in the  county of Gloucester for four year c and declare of a ejectment c and aver the  life of Elizabeth the defendant plead not guilty and the jury give a special  verdict as to the say message and half a acre of land parcel of the tenement  aforesaid and as to the residue they find the defendant not guilty and as to  the say message and half acre they find that John Lord Lumley Richard a dyer  pl   light a   a roll gold   b b gold Leon   a b more Anderson pl Cr car Jones  c Anderson b it be hold in leech v coal cro Elizabeth that when there be  tenant for life remainder in tail and a prcipe be bring against both joint who  vouch over the common vouchee the estate tail be not bar but page v Hayward  salk have overrule this case in Hardr it be say that this case deserve to be  question if it be not settle note to former edition coke report a er p  Lewkener and John Lambton be seize of the say house and half acre of land in  fee and by their indenture maii year Elizabeth demise to John morris the young  the say house and half acre for the term of year by force whereof he enter and  be thereof possess and october Elizabeth make his last will and testament in  write and thereby devise to John morris his father the say house and half acre  for the term of the natural life of the say John morris the father and after  his decease the remainder of the say house and half acre to Elizabeth the  sister of the testator and to the heir of the body of the say Elizabeth and  make John morris his father his sole executor and Oct year Elizabeth die of  the say house and half acre possess after who death John morris the father  take upon he the charge of the execution of the say will and into the say  message and half acre of land enter coke a and be thereof possess prout law  demand and the say Elizabeth take husband William tailor whoever it be postea  S Julii year James id W tailor Elizabeth ad special instant prdJ Horrice sen  per quodd scribe suum to hand over to go away to let go back relaxaveru up To  give back assignaveru trans to put down England yield up dict johan morris sen  totum prd messuag prd dimid sharp patstur cum reach One cum toto recto title  interest tempore boundary nest de in eisd thong et tenant totum dictum messuag  dimid sharp pasture cum reach prfat Johan morris sen pro duran toto position  fine boundary prd will tailor Elizabeth pro durant remaining dict termini a  year tunc venturor and afterward John morris the father I october year James  by indenture demise the say house and half acre to the say Margery Starkey now  defendant for ten year and afterward the say William tailor die and the say  Elizabeth take to husband the say William Lampet and afterward Noy year James  John morris the elder die after who death the say William and Elizabeth enter  into the say house and half acre and make the lease to the plaintiff mention  in the declaration by force whereof the plaintiff enter and be thereof possess  till the defendant eject he et si super totan means the say Margery be guilty  or not be the question and this case be oftentimes in several term argue at  the bar and now this term by the judge and the effect of all their argument be  first in every matter in law status qustionis causan doubt the cause of doubt  or question be first to be consider and in this case the cause of the doubt be  forasmuch as the whole term sub modus be in John morris the father and he  shall be punish for waste and a action of debt lie against he for the rend as  it be resolve by the whole court in this case vide weldons case in blow Com a  b send for if the say grant or release make to the say John morris the father  then be possess of the whole term as aforesaid can bar the say Elizabeth  because she have but a possibility and neither interest or right in possession  reversion or remainder and that be the great question of the case but two  other question as appear afterward be move in the case which without  difficulty be resolve this case of a devise of a lease for year to one for  life and after his death to another during the residue of the term have  produce seven qustiones shake thorny when a man be possess of land for year  devise the use or profit of the land or the land itself to one for life and  afterward to another during the residue of the term if the devise of a chattel  after the death of the first devisee be good and adjudge as appear in man case  in the eight part of my report that such a executory devise be good and so it  be hold per totan curian coke b in the argument of this case the second  question have be if the executory devise after the death c be good when the  term itself and not the use or occupation be devise to the first for life c  and afterward to other and adjudge that in such case also the executory devise  be good as in the say case of man appear and so it be resolve in the argument  of this case by all the justice the three question have be if the first  devisee after assent make by the executor may b bar the executory devise be  but a possibility or not and adjudge he can not and so be it unanimous agree  in the argument of this a more Cr James Swinb   a roll Rep Brownl Cr Elizabeth  b n c b   a coke report a er p case a the four question have be if the assent  of the executor to the first devise c shall enure to the other forasmuch as he  have it by executory devise and not by remainder and adjudge it shall and so  it be grant per all men in the argument of this case b the five question have  be when the devise be ut above to the executor for life and afterward to  another c and the executor enter d general it have be adjudge that he shall  have it as executor which be his first and general authority and not as  legatory without claim or demonstration of his election although the testator  be not indebt to any and so it be rule in the court in the argument in this  case c the six question have be if such executory interest may be grant to a  stranger during the life of the first devisee and adjudge it can not as appear  in carter case cite in Fulwoods case in the four part of my report f and  therewith agree the opinion of all the justice in the argument of this case d  and now the seven question be if such a possibility may be extinguish by grant  or release to he in possession and it be object that the say possibility can  not be release for inasmuch as a estate during the life of a man be more than  any term for year and that the land I n the case at bar be devise to John  morris the elder for his life the a Vid note a c d man case   b a c roll Bulst  Bridgman Cr Elizabeth blow a Plowd b Acc Adam v pierce p Willms Foley v  Burnell brown parliament Cas d roll Cr Elizabeth more Goldsb blow a die pl  Jones c Vid do v hay taunt SC marsh it be clear settle that when a executor  take a leasehold for life only his entry be not a sufficient assent but if the  devise be absolute to he entry be sufficient per Gibbs CJ deliver the  judgement of the court d Acc pool v Haskey Bridgm such executory interest may  be assign in equity for a valuable consideration duke of chandos v Talbot p  wms wright v wright Ves jun Kimpland v Courtney Freem theobalds v Duffey Mod  but the expectance of a heir presumptive or apparent the feesimple be in the  ancestor be not a interest nor a possibility capable of be make the subject of  contract Carleton v sir wm Leighton Meri and contingent and executory estate  and possibility couple with a interest be devisable more v Rawkins Eden  Goodtitle v wood will Selwyn v Selwyn burr SC I black Rep roe v tone h black  affirm on error TR roe v Griffiths I black Rep scawen v blunt vesey very v  Phelips vesey also a executory interest whether in real or personal estate be  transmissible to the representative of the devisee when such devisee die  before the contingency happen and if not before dispose of will vest in such  representative when the contingency happen Pinbury v Elkin p wms king v wither  Cas tempt Talb p wms Goodright v Searle will peck v parrot Ves Fearne count  Rem but such executory interest c be not devisable where the person who be to  take be uncertain do v tomkinson m S it be say arguendo by Laurence sergeant  do v Polgrean h black that it be now hold that executory interest be  assignable transmissible and descendible it be also say by sergeant William n  Purefoy v Roger sand it seem now to be establish notwithstanding some old  opinion to the contrary that contingent and executory estate and possibility  accompany with a interest be descendible to the heir or transmissible to the  representative of a person die or may be grant assign or devise by he before  the contingency upon which they depend take effect if it be mean that such  interest be assignable at law the position be direct contrary to Lampets case  and pool v Haskey where sup and be not support by any decide case although  several dictam be to be meet with to that effect Vid the authority cite by  sergeant William in his note where sup and Vid Davies and other v bush and  other Mc Clel young a Brownl coke report a er p whole term be in he  determinable by his death so that the say Elizabeth have nothing but a  possibility which can be release as in e execution and b ass pl if conusee of  a statute or recognizance release to the terretenant all his right in the land  yet he shall sue execution so if the c son in the life of his father release  the seize of his father and afterward the father die this release shall not  bar the son because the son in the life of the father have but a possibility e  and therewith agree d Littl c release e h a e e confirm and it be put in e  title confirm as a maxim if a man quit claim his right before the right fall  to he the quit claim be void vide h a and therewith agree Bracton lib fol b  item vidend when quis to be able to make firm to know non vriusquam law ei to  fall upon but in the case at bar the release be make by the husband of  Elizabeth coke a before the right or interest vest in the wife and as Bracton  say before law ei to fall upon and it appear that it be but a possibility  because it can be grant or assign to another as it be adjudge in a carter case  no more than a rectory which be appropriate in going to be after the death of  a incumbent can be demise in the life of the incumbent because it be but a  possibility as it be hold in Elizabeth die b and hoe case in the five part of  my report foe be strong urge where the case be that in a action of debt bring  by hoe in the king bench Phelix marshal be bail for the defendant and  afterward before any judgement give hoe release to marshal all action duty and  c demand and afterward judgement be give against the defendant and on his  default a to know facias issue against the say Phelix who plead the say  general release upon which the plaintiff demurrer and it be adjudge that the  release shall not bar the plaintiff because before judgement it be but a mere  possibility and therefore as the book say it can not be release so in the case  at bar before the death of John morris the elder Elizabeth have but a mere  possibility and therefore it can not be release but it be resolve per totan  curian that the say d release have bar the say Elizabeth to claim any thing in  the say lease after the death of the say John morris the elder and first be  observe the great wisdom and policy of the sage and founder of our law who  have provide that no possibility e right title nor thing in action shall be  grant or assign to stranger for that will be the occasion of multiply of  contention and suit of great oppression of the people and chief of  terretenants and the subversion of the due and equal execution of justice and  as they can be grant by the act of the party so a right in action shall not be  transfer by act in law as to the lord by f escheat neither shall the lord g of  a villain have thing in action as b vin touch roll Br stat merchant e a b Br  exec Br release Brownl   light a hob c Brownl   b e Vid Neal v Sheffield  Brownl SC Yelv touch moory v Falkner I Anstr I SC TR Carlton v sir wm Leighton  Merivale but if a heir apparent levy a fine and survive the ancestor he will  be bind by estoppel and the right extinguish Edward v Roger W Jones help v  Hereford b a and Vid Bac ab release h note a Albany case   b d   light a light  sect lib f b e Br release Br feoff de earth a Brownl Bulst Cr James Raymond b  die a pl h b   a   light b Br appropriation blow b c   b Brownl roll Rep Cr  James light sect roll bridge ass e h e h release hob Noy hut Bulst Yelv Cr  Elizabeth light Rep winch d Jones Cr car e   light a b roll Rep f godb g Br  choose in action Br guaranty doctor and student b Br vouch   a Counterfeit  light a roll Br vilenage coke report b er p appear in ass pl c also it be  resolve in the marquis of Winchesters case in the three part of my report f b  that by the general word of a Act of attainder of treason by which all land  tenement right and hereditament of the person attaint be give to the king yet  no right h to land in action be give to the king and all that be for the quiet  and repose of the terretenants but all right title and action may by the  wisdom and policy of the law be release to the terretenant for the same reason  of his repose and quiet and for avoid of contention and suit and that every  one may live in his vocation in peace and plenty and therefore a right or  title to freehold or inheritance for here it be not speak of collateral coke b  power be it in prsenti or going to be may be I release in five manner to the  tenant of the freehold in fact or in law without any privity to he in  remainder to he seize of the reversion without any privity but a estate can be  enlarge without privity to he who have right only in respect of privity as if  the tenant be seize the lord may release his service in respect of the privity  and right without any estate in respect of privity only without right as if a  tenant in tail make a feoff in fee the donee after the feoff have no right and  yet in respect of the privity only the donor may release to he the rend and  all service save fealty so the demandant may release to the vouchee in respect  of privity only but no estate can pass by release but to he who have a estate  in privity and not in respect of the right or privity only vide Litt b c  release a b h h e h h grant e e e e e guard h confirm h h e h e e e h c Litt b  so if the tenant make a feoff pen the writ the d release of the demandant to  he be good in the respect of the privity and if lessee for year be oust and he  in the reversion seize and the seize make a lease for year the lessee who be  oust may release to the lessee of the seize and yet there want privity but the  disseizee can release to he because he have no freehold e v h and the say  release have extinguish the future interest of the say Elizabeth for diverse  reason e because it be of a future interest in a chattel which as it may be  more f easy create than a freehold so it may be more easy determine and  therefore if a man make a lease for year and that upon nonperformance of a  collateral condition that it shall be void the grantee of the reversion shall  take g advantage thereof by the commonlaw but otherwise it be of a lease for  life upon the like condition for the one may more easy be determine than the  other and if lessee for year be oust by the lessor and he make a lease for two  year the lessee for year may release to he f but if the lessor seize his  lessee for life and make a lease for year the lessee for life can release to  he for a freehold be high than to merge in a chattel Littl h say c discontent  f that it be a maxim in law that land in feesimple c may be charge by one way  or other so it be say that it be a maxim a hob more roll Rep I raym   light a  a roll Rep   light a a godb   b Jones b sect c sect d   b e winch f   b g    light a f this passage seem to be a authority for the doctrine that a term of  year will merge in a term of year upon this subject Vid vin Abr merger press  cony h sect   light a   b coke report a er p in law that every right or title  or interest in prsenti or going to be by the I join of all who may claim any  such right title or interest may be bar or extinguish and therefore upon the  maxim coke a which Littleton put it be conclude that if at the commonlaw the  donor and donee in tail have king join in a grant of a rentcharge and  afterward the donee have die without issue and the land have revert to the  donor he shall hold it charge and yet he have but a l possibility at the time  of the charge make but all those who have a estate or interest in prsenti or  going to be join in the charge a strong if they have join in a lease for year  and the donee have die without issue the lease be good against the donor so  upon the second maxim if in the case at bar John morris the elder and  Elizabeth have join in a deed of assignment to another without question it  have utter bar the say Elizabeth for no other have interest either in prsenti  or in going to be but those who join in the grant so when the husband of  Elizabeth release to he in possession both consent to it one in release the  other in accept of it and in the case when both join in the grant it be the  grant of he who have the term and the release or confirmation of the other  vide a Mayows case in the first part of my report f b a notable case to this  purpose and Pas e in Com banc as the chief justice say he have see a report it  be hold by Montague hale Molineux and brown justice of the common plea that if  a man make a lease to another for twentyone year if the lessee shall so long  live and the lessor and lessee join in a grant by deed of the term to another  and afterward the lessee die within the term the grantee shall enjoy the land  during the residue of the term absolute so in the case at bar where the  interest of John morris the elder be determinable by his death now this  release have make his interest absolute during all the residue of the term and  if beneficiary and use after the stat b I r and before the stat h have seize  the seize of his feoff now the use be suspend and depend in possibility to be  revive by the entry of the feoff and yet if he make a feoff in fee it be good  and shall bind in respect that the law have consideration of this possibility  of the use when separate to long for right of way for cattle ad once position  to achieve plus look back at law sharply original when to the perfection of a  estate or interest diverse act or thing be requisite the law have more regard  to the original Act because c pron  interrog  rei able pars be principium for  that be the fundamental part on which all the other be find in this case at  bar three thing be requisite to the perfection of the interest of Elizabeth  the devise in which be include the death of the devisor and that be the  fundamental part the assent of the executor which also appear afterward be  give in the case and the death of the first devisee and therefore this case  may fit be resemble to the case of dower when a man seize of land in fee or in  feetail general take a wife to the perfection of the dower d two thing be  requisite lawful matrimony and the death of her husband for notwithstanding  her husband be seize in fee and coke b the marriage be lawful yet she have but  a possibility of dower till the death of her husband in the same manner as  Elizabeth have but a possibility till the death of the first devisee and  therefore in e e dow and e dower where it be hold that in a writ of dower  bring by the wife a fine levy b that the husband and wife be no bar and the  reason there give be because before the death of the husband the wife lid no  right of action and therefore by the rule of the court issue be take that the  wife at the time of the fine levy have I palm king   light a roll l palm a  Poph Cr car winch lane   a a   light b   a b post a b b r c and   a a a b b a  b a a b b and c   light b d   a blow a   light a a m e dower coke report a er  p nothing but as wife and the opinion of blow in Stowels case f a be as follow  note reader that in my opinion if the husband levy a fine with proclamation  and five year pass after the proclamation the wife shall not be bind to five  year after the death of the husband but be at large and not touch by the  purview of the Act of a h for the purview be against those who have right at  the time of the fine levy or have future right after upon a cause arise before  to which future right wrong be do before the fine or by the fine c but here in  case of dower the title be accrue all after the fine S by the death of the  husband for till the death no title be consummate and the other two point S  intermarriage and seize of the husband be not of any moment without the three  so that all the three point be but one cause after the fine but at this day  the say book of e be not hold for law for now no question be make but that if  the husband and wife levy a fine the wife be bar of her dower for two reason  because the intermarriage and seize be the fundamental cause of dower and the  death of the husband but as a execution thereof all those who have estate or  title or claim join in the assurance and therefore in such case if the husband  and wife have grant a rend by fine out of the land or have make a lease for  year render rend to the husband and his heir and afterward the wife recover  dower she shall hold it charge with the rend and with the term accord to the  maxim which Littleton put before and the opinion of blow aforesaid be not hold  for law as appear in e b die and in Damports case in Elizabeth c die it appear  it be adjudge to the contrary in h and now common experience without  contradiction be against it and d Litt c condition f hold that if feoff upon  condition take a wife the feoff may enter for the condition e break and the  reason be because the law have principal regard to the original and  fundamental cause and yet it maybe say that the title of dower be not  consummate till the death of the husband and that peradventure the wife may  die before the husband so in the case at bar the devise and assent of the  executor be the original and fundamental cause of the interest of Elizabeth  and the death of John morris the elder be but a mean to produce it in coke a  possession but that give nothing but all the interest accrue by the devise and  be execute by the assent of the executor and therefore as well as in the case  of dower it may be release and sir Anthony Fitzherbert in his f n b hold that  if a man levy a fine of land in ancient demesne at commonlaw to another now  the lord in ancient demesne shall have a writ of disceit against he who levy  the fine and he who be tenant and thereby he shall annihilate he fine and the  conusor shall be restore to his possession and title which he have give by the  fine g and therewith agree a e b b h f   a post a Cr James more pl   a a h c    light a a a   b a b a b a a b b a   b   b b a b   b a   a   a pal gold say  Leon and roll Rep roll Rep bull Leon Leon and Poph Inst dyer pl pl pl pl h b  Plo b   b   a rastal fine hob b die pl   light a more pl   b roll Rep   a c  Counterfeit light b dv pl palm   a Goldsb d light sect   light a b e Perk sect    light a b a   b a h b Br condition ass h b   a Cr Elizabeth and more Poph  hut roll   a b roll Rep f f n b a Cr car g Vid corn dig ancient demesne e vin  ab et seq king v mead will king v Hadlow black Rep zouch v Thompson l raym  cruise dig and Edit a Fitzherbert Disceit b Br Disceit coke report b er p a  against a opinion obiter in c e b but if the conusor after the fine release to  the conusee by his deed be in possession or by his deed d confirm his estate  in the land then the opinion of Fitzherbert be that the conusee shall retain  and have the land notwithstanding the fine be avoid because this release or  confirmation make to he be in possession make his estate firm and rightful  against he and his heir who release or confirm which opinion be affirm for  good law by the whole court in this case and yet after the fine levy the  conusor have no right in the land but only a possibility to have the land  again after the fine make void by writ of disceit bring by the lord of who the  land be hold and Warburton justice cite e grant case adjudge in this court  hill Elizabeth rot where the case be that William grant seize of land in fee  hold in socage by his will in write devise the land to John grant son of his  brother when he come to the age of twentyfive year to have and to hold to he  and the heir of his body and die have issue Christian his daughter and heir  who marry William marsh who have issue John and the say John grant after the  age of twentyone year and before the age of twentyfive year h levy a fine with  proclamation and afterward he attorned to his age of twentyfive year and have  issue Margaret and die if the estatetail in going to be and contingency at the  time of the fine levy be bar or not be the question and it be resolve that the  estatetail be f bar and yet the conusor have but a mere possibility to have a  estatetail at the time of the fine levy and that by force of the word of the  statute of g h c all fine levy with proclamation e of any manor land c before  the time of the same fine levy in any wise entail to the person or person so  levy the same fine or to any of his or their ancestor c and although the say  John grant be not seize by force of the tail at the time of the fine levy yet  by reason of these word before the fine levy in any wise entail a estatetail  in going to be be comprehend and all that by force of the say statute for part  Finis nothing to have but no coke b judgement be enter and it be resolve that  a future right or possibility which may be release ought to have a foundation  and a original inception as be aforesaid so it ought to be a necessary and  common possibility which in Cholmley case in the second part of my report f a  b be call potenia relative and a possibility which depend on the death of a  man have a necessary and common intendment S necessary in respect that all the  son of Adam must die to cause to stand be man semel become void and common  that the death may happen at such a time that the contingency may take effect  as in a h b if land be give to a marry man and a marry woman and to the heir  of their two body beget it be a good estatetail for it be of necessity that  death will follow and it be a common possibility that one will die before the  other so that marriage may follow but in the same case there shall not be a b  possibility upon a possibility and therefore if land be give c to a man and  two woman there the law will not intend that he shall first marry the one and  afterward she who he shall marry shall die and that then he shall marry the  other and therefore in such case they be several inheritance at the beginning  as if land be give to two man and their wife and to the heir of their body  beget in that case the law will not expect second marriage but they in that  case shall have joint estate for life and one husband and wife shall have one  moiety in tail in c Fitzherbert Disceit d Cr car e Leon Cr Elizabeth hob f   a  Cr car Cr James   a Cr Elizabeth hob g Leon Leon Leon more Anders Savil Bulstr    light a gold   a hob   a b   b   a a roll Rep Fitzherbert tail Br tail Br  estate blow a f n b h   a Br condition   light b b b roll Rep   light b c    light b a king b way coke report a er p common with the other husband and wife  of the other moiety and so several inheritance and therewith agree e a for  otherwise there will be a possibility upon a possibility ad if d a man give  land to husband and wife now it be a apparent possibility that they may have  issue and afterward they be divorce causan prcontractus so that the  possibility be dissolve the law will never expect a second marriage for by the  divorce they have but a estate of freehold and therewith agree e h a woman may  feoff a marry man causan marriage prlocuti for it be of necessity that death  will follow and it be a common possibility that the wife of the feoff will die  before the feoff so in the common case of a lease for life f the remainder to  the right heir of I S then alive the remainder be good for the necessary and  common intendment but the case at bar be strong than any of the other case for  it be of necessity that John morris the father will die and it be more than a  common intendment that he will die within five thousand year for by the civil  law longissimum vit man tempt be cent and and so it appear that in our law  there be law quality possession et possibilitatis and as to the case which  have be urge by the sergeant of the other part as to the release of the  conusee in g e ass it be resolve that the book be good law for there the body  be the debtor and not the land but in respect of the body and the land be not  charge with the coke a debt till execution sue and therewith agree Plo Com in  sir Thomas pope case and therefore the release make by the conusee of all the  right in the land shall not bar he of his execution and it be agree that the  release of the son to the seize of his father in the life of the father be  utter void because the son have no right or foundation or original inception  of any right in the life of his father and the rule put in e and in Bracton be  to be agree for good law if it be well understand S that he who release have  right or a foundation or original inception of a right and as to h hoe case it  be also resolve to be good law for there the thing which shall be release be  utter uncertain at the time of the release make for he who become bail in the  king bench be not bind in any certain sum nor do any certainty thereof appear  till judgement give against the defendant and therefore for the uncertainty of  the thing that shall be release the release of all action duty and demand can  discharge it it be further resolve that when there be incertainty in the  person no release can be make and therefore if a release for life be make the  a remainder to the right heir of I S and the lessee be seize and the old son  of I S release to the seize and afterward I S die the release be void for it  be incertain whether he will be right heir at the time of the death of his  father and in Elizabeth this case be move at bar in the king bench a man make  a lease to husband and wife for twentyone year the remainder to the b survivor  of they for twentyone year and the husband grant over this term and it be hold  by Wray chief justice and totan curian that the grant be void for the  incertainty of the person for although all chattel real which belong to the  wife the husband may dispose of yet in this case neither the husband nor the  wife have any thing till the survivor h and in the king original c b there be  a formedon bring on a gift in such form b devoted to W I of or belonging to a  wife he hredibus de corpore of one another Self W I who still further live to  go out et quod post death W I Prfato t son et hredi ejusd W who prd I  supervixi to climb down debet c so that the gift d roll Rep   light a a ante b  e h b a Br tail Br estate Br deraignment   a   a f   b   light a postea a g e  execution ass pl before b roll   light b Cr Elizabeth h before a a   light a    b before b b   light b roll roll Poph Leon godb Cr Elizabeth hut h Acc pool v  Haskey Bridgm Vid do v Polgrean h black c   light a Yelv coke report b er p be  to the husband and wife and to the heir of the body of the survivor of they in  which case as to the estatetail there be a uncertainty in the person and  therefore if they make a lease for twentyone year observe all the circumstance  require by the statute of h yet that lease shall not bind the issue for for  the incertainty of the person of the survivor the estatetail be not vest and  these case in my report d Albany case e Diggs case f Rawlins case g Mayowes  case the rector of h Chedingtons case and althams case I be affirm for good  law in the argument of this case and cite to prove the reason of this rule in  the case at bar coke b if the say Elizabeth have die before the first devisee  the executor or administrator of the say Elizabeth will have have the residue  of the king say term after the death of the first devisee as appear in the say  case of l welldone in Plo Com which be a great proof that Elizabeth herself  may have release such interest which by her death may come to her executor or  administrator but word make a plea for if I be seize and I release all action  to the seize and afterward the seize die I notwithstanding the release shall  have a writ of entry in the per and who against the heir and seize for this  action be not in be at the time of the release make and m action nothing other  be how law to follow in judaic quod Himself to withhold and the say writ of  entry be not maintainable at the time of the release no more than if I have  die my heir shall not be bar by the say release to have a writ of entry sur  desseisin against the seize upon a seize do to I vide h if one bail good to  another and afterward the bailor release to the bailee all action the bailee  die in a writ of detinue bring against his executor they shall not take  advantage of the say release for that determine by the death of the bailee and  the action give against the executor be a new action although of the same  nature ground on their own detainer the legacy or devise to Elizabeth be in be  and present although the interest be in going to be and therefore the legacy  or devise may be discharge and by consequence the interest itself for a who to  tear down medium to tear down that which divides and therefore if one devise  to one when be come to the age of twentyfour year and die the legatee after  the age of twentyone year may release this legacy and devise and though  afterward he attain to the age of twentyfour he shall be bar thereof I and yet  by a release of all suit and demand it be not release as if a man by indenture  covenant to do a future act and before the covenant break the covenantee  release all action quarrel and demand and afterward the covenant be break the  say b release be no bar in a action of covenant because the covenant be to be  perform in going to be but a release of all covenant have be a good bar for  the covenant be in be et prsenti and therewith agree h c dyer and d Elizabeth  in d c b Leon e   a more f   a g   b Poph h   a more I   b the four reason  king Mod more Cr James roll l Plo a m   a   light a Inst a   light a I in what  case legacy Payable at a future time be vest in interest in the legatee and in  what not Vid Mr Cox note p W roper on legacy chap note g Fearne count Rem  Bromhead v hunt James and walk skey v barn Meriv Preston on legacy p et seq  Lowndes on legacy b   b   light b Cr James   light sect die pl Anderson   b n  bendl roll pl more   Ent Nu Yelv hob c   a   b hut I d   b hut   b Bulst coke  report a er p Bendloes report which case be cite at large in hoe case  aforesaid so in the case at bar the devise be in prsenti although the  performance thereof be in going to be who to overturn causan to overturn  causatum going to be so de good et catallis felonumet fugitivor c the  inheritance be in be although the accident be incertain the same law of nomin  pn relief et like coke a so the chief justice say that although no assent have  be give to the legacy yet forasmuch as Elizabeth claim by executory devise she  may in the life of the first devisee have release the devise and legacy vide  middleton case in the five part of my report that executor before probate may  release a debt because although they can have a action yet the interest of the  action be in they which they may release king it will be inconvenient that  such manner of perpetuity shall be make of a chattel when of a inheritance  neither by act execute by the commonlaw nor by limitation of a use nor by  devise in last will any e perpetuity can be establish and if it shall be allow  it will be the cause of contention suit and other inconvenience and it be  observe that these lease for so many hundred and thousand of year which be  make in truth to f deceive and defeat the king or other lord of their ware or  other lawful duty be many time unfortunate and subject to be lose by outlawry  or other forfeiture and if the owner thereof die intestate the ordinary shall  grant administration whereby woman will lose their dower man their tenancies  by the courtesy and many other inconvenience in subversion of the commonlaw  will from thence ensue and therefore it will be of all other most dangerous to  make a perpetuity of they and the chief justice conclude his argument as to  the principal point with a judgement in this court Trin Elizabeth rot between  a Hannington administrator of Isabel mouth plaintiff and Rudyard and mary his  wife administrator of Laurence Kidwell in debt on bind make by Laurence  Kidwell to the say Isabel which bind be make for performance of covenant in a  indenture betwixt Laurence Kidwell and the say Isabel and the case be such  William Hannington possess of a house in London call hide house for year by  his will devise the profit thereof to the say Isabel during the time that she  shall continue sole and a widow and afterward he devise the term to Reynold  his son and die mark Isabel by the assent of the executor enter and purchase  the say house in fee and the say Laurence Kidwell bargain and sell by the say  indenture the say house to the say Isabel in fee and covenant that the house  at the time of the assurance shall be clear discharge of all former bargain  sale title right and other charge the defendant plead covenant perform the  plaintiff assign for breach the say devise to Isabel and afterward to Reynold  as aforesaid and that after the say coke b indenture Isabel have marry mouth  whereupon Reynold enter upon which the defendant demurrer and in this case  four point be resolve that the say executory devise to Reynold be good  although the whole term be in Isabel whoever it be c so that by the purchase  of the feesimple the interest of Isabel be extinct yet that do not defeat the  executory interest of Reynold l but that after the marriage of Isabel and not  before he may enter it be resolve that Reynold can not grant his interest over  as long as Isabel be sole the great difficulty of the case be forasmuch as the  say Reynold at the time of the say covenant have but a possibility that the  say covenant do not extend to it but it king Vid middleton case note b   b  Hensloes case note g   a e Cr car f   light a a side l Vid lee v lee more it  have be say to be otherwise if one have a term devise his term with such  remainder over for in such case by the descent of the inheritance on the first  devisee or by unity of possession or grant or forfeiture the remainder will be  defeat Fearne but this proceed on a distinction which no long exist namely the  strict import of the word term legal comprehend the whole interest therein for  now even in a deed the word term may mean the time or number of year wright v  Cartwright burr Evans v Vaughan barn and Cress coke report a er p be resolve  that the say covenant do extend to it and to this purpose have essence and  also may be forfeit and judgement be give for the plaintiff which judgement  strong prove that it may be release the second question be move admit the  release to the first devisee to be sufficient to extinguish the claim and  future interest of the say Elizabeth if it will amend the estate of I morris  the elder who have the entire term in he if he live so long or if by his death  the lessors may enter and it be resolve that the say release have consolidate  and perfect the estate of the say I morris but whereas it be determinable  before by his death now he have the whole term during the residue of it in he  absolute but this point be overrule before in the second reason in the report  of the case in a e it be say that laxar be proper to set prisoner in fetter at  liberty and to stretch out be to do it quick and fear hori to stretch out be  to set at liberty fetter estate and interest and to make they free and  absolute the three question that be move in this case whether there appear any  assent or agreement of the executor in this case to take the say house c by  force of the devise for it be agree per all men as it have be say before that  first he shall take it as executor and it be resolve that when wm tailor and  Elizabeth his wife per scribe thirst ad not general earnestness et  requisitionem predict johan Horrice older man who be executor relaxaveru c  that amount to a assent for two reason one because be request it which imply a  assent he accept it and that likewise imply a assent b non for refert a quis  assent suum prbet word a rebus Self et factis as e fine and light cap  attornment m if the husband accept a grant of the reversion c it amount to a  attornment and in c h b he who have interest termini know a future interest  coke a can by express word surrender it but a acceptance of a new lease will  merge it and in e b the lord demand a heriot and the heir deliver a beast in  which he himself have property in his own right to the lord it amount to a  gift and afterward in this term judgement be give and enter quod to express  grief nothing to take in hand per breve c a Ant a b   a roll roll Keble m the  assent of a executor to his own legacy may be imply as well as express as if  he say he will have it accord to the will Garrett v Lister lev if a term be  devise to a the executor for life and afterward to b if he say that b be to  have the estate after he that be a sufficient assent to his own legacy so if  be take the profit to his own use or by deed recite that he have a term for  year by devise grant it over roll ab so if he perform a condition annex to the  devise paramour v Yardley Plowd young v Holmes strange or if have a coexecutor  he will not suffer he to join in the occupancy with he dyer b and a assent to  take part as a residuary legatee be a assent to take the whole residue in the  same character hinson v Bullen roll Rep Vid Cheyney and smith case Leon that  if feme executrix and legatee take husband before election the husband may  elect for her and qure whether repair the premise demise be a assent to the  legacy in do v hay taunt SC marsh the court observe that none of the case say  that a act which be inconsistent with the duty of a executor be evidence of a  assent to a legacy unless it be consistent with the character of a legatee and  afterward state it as a general principle establish by the case that if a  executor in his administer the property do any act which show that he have  assent to the legacy that shall be take as evidence of his assent to the  legacy but if his act be referable to his character of executor they be not  evidence of a assent to the legacy c post b Fitzherbert surrender Br surrender  coke report b er p