brown case joseph bunker plaintiff William cook and another defendant in error  that February Mews dig xv b devise to his wife in these word I do hereby give  devise and bequeathe unto my wellbeloved wife Frances all such sum and sum of  money as now be or hereafter shall grow due to I from their majesty for my own  and servant service either by sea or land as also all such sum and sum of  money land tenement good chattel and estate whatsoever wherewith at the time  of my decease I shall be possess or invest or which shall then or of right do  appertain unto I and I do hereby nominate and appoint her the say Frances to  be the whole and sole executrix of this my last will and testament the  testator have no real estate at the time of make this will but have about nine  year afterward receive part of his wife fortune he therewith purchase land of  about pound per and there have be no republication of the will after this  purchase hold that the land do not pass but descend to the testator brother as  his heir at law salk holt Rep viner vol p can p can Fitzgibb Eq can ab can by  indenture date the that of October make between William bokenham of the first  part Frances Manley afterward his wife of the second part and Thomas Manley  and jane Manley of the three part the say William bokenham covenant that  within two month after his marriage with the say Frances he will pay pound and  the say Frances also covenant to pay pound and it be agree that those two sum  make together pound shall be put forth at interest or lie out in land to be  settle to the use of the say William bokenham and Frances and the heir of  their body and for want of such issue to the use of the survivor of they and  his or her heir the marriage take effect and the pound be pay pursuant to the  wife covenant but the husband pound be not pay some month afterward he be  appoint to the command of the Grafton ship of war and be bind on a foreign  expedition in that ship he on the d of may make his will accord to a form  which be then general make use of by seaman and therein be contain a devise to  his wife in these word I do hereby give devise and bequeathe unto my  wellbeloved wife Frances bokenham all such sum and sum of money as now be or  hereafter shall grow due to I from their majesty for my own and servant  service either by sea or land as also all such sum and sum of money land  tenement good chattel and estate whatsoever wherewith at the time of my  decease I shall be possess or invest or which shall then or of right do  appertain unto I and I do hereby nominate and appoint her the say Frances  bokenham my wellbeloved wife to be the whole and sole executrix of this my  last will and testament the testator about nine year after the make of this  will receive a sum of pound in right of his wife the whole of which he lie out  in the purchase of a estate in ken of the nature of gavelkind of about pound  per and and on the that of November he die without have republish his will  brown and without any issue of his body leave the defendant bokenham his  brother and heir brown er p on the death of the testator the defendant enter  upon these land but Frances the widow apprehend herself entitle thereto under  her husband will bring a ejectment to recover the possession and the jury have  find a special verdict state the above fact and that by the custom of  gavelkind any tenant be seize of land in fee may devise the same by will in  write the single question upon this verdict be whether the land in question be  purchase after the make of the will can by law pass by the will there have be  no republication after the purchase and upon argue this question in the queen  bench the court be unanimous of opinion for the defendant and give judgement  accord to reverse this judgement the present writ of error be bring but in the  print case on the part of the plaintiff not a single reason be advance why it  shall be reverse it be only say I Montague that all the judge when they give  judgement declare their belief that the say William Bokenbam intend that the  land in question shall go to his wife and that if he have duly republish his  will after he have purchase the land the word in the will without any other  word add thereto will have be sufficient to pass the land to his say wife but  on the other side it be contend I Jekyll t Parker to be contrary to reason and  against the know rule of the commonlaw of England that a man shall make any  conveyance or disposition of land which he have not at the time of make such  conveyance or disposition that the statute Henry VIII which give the power of  dispose of land by will enable only person have land to make such disposition  thereof but give no power to person not have land to make any disposition of  such as they shall have and the custom of gavelkind be in effect the same be  express find by this special verdict to be that tenant seize of land may  devise they by will that therefore to support a will either upon the statute  or the custom it be necessary to show that the devisor be seize of the land  devise and be so seize make his will and so be the constant course of plead  and not a precedent otherwise so that this will can not pass the land because  the party be not seize thereof when he make it that the unanimous opinion of  the court of queen bench upon this point in the present case be support by a  judgement give for the defendant in the common plea by the unanimous opinion  of that court on a like special verdict find upon the same will and both of  they by a former resolution of all the judge of England upon solemn argument  in the exchequer Chamber Elizabeth upon the same point in the case of butler  and baker viner vol p can with other concurrent judgement and not one  judgement or resolution to the contrary and that it have be so solemnly settle  and so long receive as a rule of property that a man can make a will of any  land before he have a title in they to overthrow it now may be to overthrow  the title of brown many great and noble family and will introduce infinite  confusion and a distrust of every other point of law how plain soever accord  after hear counsel on this writ of error it be order and adjudge that the  judgement give in her majesty court of queen bench shall be affirm and that  the record shall be remit to the end execution may he have thereupon as if no  such writ of error have be bring into the house jour vol p