bunker versus cook mich Ann Fitzgibb c in ejectment there be a special vbrdict  wherein the jury find that William Bockenham Esq be commander of one of his  majesty ship on the d of may ndde his last will and testament in write in  these word I do hereby give and bequeathe to my wife Frances Bockenbam the  lessor of the plaintiff all such surn or sum of money which now be or shall  become due from his majesty for my own and servant wage and all such sum of  money land tenement good chattel holt KB er p and estate whatsoever wherewith  at the time of my decease I shall be possess of or which shall belong to I c  then they find that the testator at the time of make his will be not seize of  any land but afterward by deed of lease and release date in march g W and  other be seize of the land mention in the declaration convey the same to the  say testator and his heir by virtue whereof he become seize and sometime after  the say William Bockenham die and the devisee enter upon the land which be  hold in socage and of the nature of gavelkind and the heir at law enter upon  her and si here the question be if those land afterward purchase do pass and  be dispose of by the testator or not holt c j give the opinion of the court we  have consider of this case all together and we be all of opinion that the will  as to these land be void and the land do not pass thereby but that judgement  ought to be for the heir at law we agree that the word of the will be full and  comprehensive to pass all these land have the testator be seize of they at the  time of make his will and perhaps it may be his intention to have they pass  but the case be no more than this a man make his will and devise all the land  that he shall have at the time of his death and after that he purchase land  and die without republication we hold that it be a void devise for a man can  give any land but what he have at the time of make his will he can devise that  which he have not and the statute holt KB only empower man have land to devise  they so that if the devisor have nothing in the land he be out of the statute  here be no act between the make of the will and the death of the testator  necessary to be do to make this a perfect and complete will no write no  publication nor any other thing whatsoever it be subject indeed to a  revocation during the testator life and be to take effect only from the time  of his death but it be a will and disposition of the estate bequeathe from the  time of make thereof and where there be a disability in the testator at the  time of make the will ho that disability be actual remove before his death yet  the will wirl be absolute void because he have no ability at that time suppose  a infant make a will and devise land during his minority or a feme covert in  the life of her husband although the infancy or coverture be afterward remove  if either of the devisor die without new maiing or publication of their will  it be a void will because of their original disability though they shall live  many year after for remove these disability will not do without a new  publication or make a new will now these be only personal disability but this  be a real one he have nothing in this case to give or dispose of then here be  a removal of a real disabilit and shall that be of more effect to make it a  good will than removal of a personal disability No sure it shall not I will  fain know what commencement this will have as to these land it can commence  from the time of make the will because the testator have not the estate at  that time when then will you have this to be a will must you stay till he have  purchase to make it so but consider the act of purchase the land and his  dispose of they be two different thing and of different nature and you must  suppose that the instant he purchase he make his will and not before which be  absurd and repugnant the law of England be plain as to this point by all  precedent and the law be the same of land devise by custom as well as by  statute t there be no will that I can find by any entry of the plead but it be  say the testator be seize in fee and be so seize he make his will and of this  there be multitude of authority and though the form of plead do not make the  law yet the constant plead of a thing in such a manner be great pound dence of  the law and this argue the necessity of the testator be seize at the time of  holt KB make the will it be true a personal estate and chattel may be give and  dispose of at commonlaw before the testator have purchase or have possession  of they and there be many case that make out this but there be a great deal of  difference here between a real and personal estate for a personal estate and  chattel be transient and fleet and not at all fix and permanent as land be  perhaps the great part of a man estate be in good today and be may have a mind  to turn these into money to morrow or the necesssity of deal and traffic in  the world may absolute require it and then will it not be hard that a man  shall be oblige to make a new will every day which he must do if be can not  dispose of his chattel because hey have undergo holt KB er p some alteration  this will be the great perplexity imaginable but on the other hand land  continue the same every day and will so always to the end of the world and as  to real estate there be time and opportunity to make settlement of they when a  man think fit but as to a personal estate that be under constant variation  beside personal thing go to the executor and the legacy passes not by the will  but by the assent of the executor to who the will isonly directory so that the  legatee be in by they and this be enougb to show the difference between a real  and a personal estate to make a will take effect from the purchase of the  estate be contrary to the nature of a purchase for the will give it to another  and his heir and the purchase give it to himself and his heir and it be to be  note that here be no republication of the will for if there have be a  republication that will have make these land pass provide that all the  requisite and circumstance necessary to the make a original will within the  Act of fraud and perjury have be observe if a man devise land by will and be  seize after that and then die this devise be void and can be make good and the  reason be because the seize turn it to a right and it be then only a choose in  action but in case a man be seize and then make his will and devise the land  if be do afterward reenter the land shall pass for such reentry purge the  seize and by relation he be in possession to all intent from the beginning  wherefore he shall have a action for the mean profit between the time of the  seize and bring the action he may in that case be just say to be seize in fee  of such land holt KB and therefore may dispose and devise the same away  because the reentry revests the estate we will suppose a heir that have  nothing but a bare expectation during his father lifetime shall make a will  and devise all his land that he shall have at the time of his death will the  land which come to he by dissent from his father pass by the devise No sure  though if a man make his will of land in reversion expectant on a estatetail  or estate for life and before his death tenant for life or tenant in tail die  without issue there those land will pass although he have but a reversion only  at the time of make the will because he be seize at that time as much as he  can be and it be a certain present interest though to commence in going to be  I look upon it to be my Lord coke opinion in butler and baker case Rep that a  devise be a disposition and that case be adjudge in the ExcbequerChamber by  all the judge in England theref over for these reasos I hold that judgement  ought to be give for the defendant first in regard it be a will at the time of  the make second in as much as the testator have not power to give and dispose  what he have not three the constant manner of plead show the necessity of the  testator be seize fourthly a devise of land be not to be resemble to a devise  of personal estate because a personal estate be alter every day five because  the devise be repugnant to the nature of the purchase and for that there be no  case nor authority in law to warrant a contrary opinion for though it be say  in the yearbook h where another point be determine that suppose a man after  make his will shall purchase land there be no resolution to that but only a  quoere indeed I be very inclinable to make this a good devise because the  intent be strong and that will weigh a great deal in a will but when I  consider more of it I can find nothing to favour it I do not give my opinion  so much on the word have in the statute of will but that at the time of make  the will he have not the land and it be so agree by dyer that a man must be  owner of the land at that time Powel I I will have make it good if I can but  it be very inconvenient it shall be so for when a person be beyond sea or in  foreign part or in prison and shall make his will in this manner he may have  many thousand a year descend to he from other relation holt KB that he may  know nothing of at the time of make the will Pedro cur judgement be give for  the defendant and that judgement be affirm in the house of lord