Blackstone swift on demise OF neal and his wife v roberts will of jointtenant  not good though uhe jointure be sever before his death SC burr Ambl a  jointtenant make his will of land duly attest and devise his part of the  estate hold in jointure with his sister to one jane Gilbert and then by lease  and release to a b to the use of himself in fee sever the jointtenancy b and  die without revoke or republisbing his will the question state on a case  reserve on the trial be whether any thing pass to jane Gilbert by this will  Harvey for defendant contend that his be sole seize at the time of his death  be sufficient to establish the will that where the personal ability of the  testator to devise be in question there the will must be consider at the time  of making where the quality of the estate or of the devisee be dispute there  at the time of its operation that in land devisable by custom at commonlaw a  jointtenants devise be not good for which the reason be give b that Littleton  sect because the survivorship which be the act of law take place of the devise  but Perkins sect say that if such devisor survive all his joint companion then  such devise be good whether therefore by long life or otherwise the incident  of survivorship be remove by any mean and the devisor become sole seize the  devise Blackstone er p will stand and after severance of the jointure the  testator be in of the same use as before only strip of the incident of  survivorship that the statute Henry c and its ex pulanatory statute Henry c c  which alone require the sole seize of the testatoO be frame upon the model of  these estate which be devisable at commonlaw and must receive the same  construction Morton contra Perkins cite Littleton and Fitzherbert in support  of the doctrine be advance but neither Littleton in his chapter JointTenants  nor Fitzherbert in the Writ ex heavy complaint the place refer to contain any  such doctrine Littleton only say a jointtenant can it devise and Fitzherbert  Blackstone be absolute silent in regard to jointtenants beside Perkins do not  say that a will make during the jointtenancy shall be good if the testator  become sole seize but sole that when be become sole seize then such devise be  good I e such devise as be make when sole seize butler against baker and  Delves Poph be in point hold by the majority of the twelve judge that a devise  by a jointtenant be void though by a deed ex post facto be may become as it be  sole seize for it be to be consider only what estate the devisor have in the  land at the time of the devise make a man can Oevise only what be have theref  over put the case which Perkins be suppose to have put that I devise all my  estate hold in jointure and after the date of my will my partner die what part  do that will convey the whole estate or only my original moiety this show the  absurdity of such a construction Lord Mansfield CJ there be no difficulty in  this case the will be of a estate hold in jointure with his sister the only  question be if the will be not void ab beginning the devisor have nothing  devisable will in England be not like Roman will the creation of a heir to a  man estate if so then afterpurchased estate will pass by they t but with we it  be under the statute of will a limitation of the estate which a man have if  the will of a jointtenant can operate at all it must be by severance of the  jointure but that it can do because the doctrine of survivorship take place  before the will can operate a feoff in fee to the use of his will will be a  severance Perkins dictum be very lose in the first part be right say a devise  by a jointtenant be pot good the devise itself be a have one what he mean by  the latter part I do it understand if be only mean that when he have the whole  by survivorship be may then devise it be very true but need not have be so  solemnly lie down and yet perhaps be may mean so as be Blackstone just before  lie it down with equal gravity that a dean and chapter who neve r die can  devise land hold in the right of their church c beside he cite Littleton who  only say that jointtenants can devise and give the reason ail Fitzherbert who  say nothing about it nothing therefore can be gather from so lose a dictum t  however whatever be mean he speak only of customary devise at commonlaw but  the stat Henry have expresslyexcluded all devise by jointtenants when a will  be well make both the time of make and the time of the testator death may be  consider in order to interpret it but here the will itself be void ab  beginning Wilmot I the statute Henry give a power and authority to devise  which do not subsist before a devise be the execution of this power and  therefore to be construe strict especial as the Henry be a explanatory Act I  agree that as to personal ability and property in the thing devise the time of  make be to be regard try it then by this rule the stat Henry give the power of  devise to person have land c now a jointtenant have not a devisable estate in  land No explanatory Act be necessary to establish this the first statute do it  sufficient Yates I the question be whether the severance of the jointure can  relate back so as to substantiate a have will Blackstone No man can devise  what he have not the form of plead a will show this that a man be seize of  such and such land and be so seize he make his last will c the will can not  operate upon these land upon another account he describe they as the land  which he hold in jointure with his sister but be do not hold these land in  jointure at the time of his death postea be deliver to the plaintiff d b light  S c sect t man in the old nat brey title ex heavy complaint it be lie down as  determine m Henry I si un devise terre de and ill n be pass seisi si apres ill  purchase la terre Le devise be bon  Note by the reporter Blackstone er p man  Perkins do not cite fitzherbert nat brey who be his cotemporary at least if  not his junior and publish his book in but the nat short catalog with its  addition which mean the old nat brey which have addition print at the end of  each writ and in the addition to the Writ ex heavy complaint have as Perkins  say plusor bone case concernants devise the last of which lie down the same  rule concern the devise of a jointtenant as be in Littleton and in very old  writer nothing be more common than to lie down with great solemnity what we  now look upon as first principle but which then perhaps be not through know or  established  Note b the reporter d do v tomkinson m S send for if one  jointtenant bargain and sell his moiety and die before the deed be enrol yet  the deed be afterward enrol shall work a severance ab beginning and support by  relation the interest of the bargainee   light a