butler versus baker and delve see this case in coke report in trespass bring  by John butler against Thomas baker and Thomas Delves for break his close  parcel of the manor of thobi in the county of Essex upon a special verdict the  case be thus William Barners the father be seize in his demesne as of fee of  the manor of Hinton in the county of Gloucester hold of the king by knight  service in capite and be so seize after the marriage have between William his  son and heir apparent and Elizabeth the daughter of Thomas Eden Esq in  consideration of the same marriage and for the jointure of the say Elizabeth  assure the say manor of Hinton to the use of the say William the Popham son  and Elizabeth his wife and the heir of their two body lawful beget and die by  who death the reversion also of the say manor descend to the say William the  son whereby he be seize thereof accord and be so seize and also seize of the  manor of thobi in his demesne as of fee hold also of the queen by knight  service in chief and of certain land in Fobbing in the say county of Essex  which land in Fobbing with the manor of Hinton be the full three part of the  value of all the land of the say William the son and be make his will in write  whereby he devise to his say wife Elizabeth his say manor of thobi for her  life in satisfaction of all her jointure and dower uponcondition that if she  take to any other jointure that then the devise to her shall be void and after  her decease he devise that the say manor shall remain to Thomas his son and  the heir male of his body and for default of such issue the remainder to  Thomas brother of the say William for his life the remainder to his first  second and three son and to the heir male of their body and so to every other  issue male of his body and for default of such issue the remainder to Leonard  Barners his brother and to the heir male of his body the remainder to Richard  Barners and the heir male of his body the remainder to the right heir of the  son die have issue Thomas his son and Griselda his daughter wife to the say  Thomas baker the say Elizabeth by parole in pais move Popham er p her estate  in the say manor of Hinton and after this enter into the say manor of thobi  after which the say Elizabeth die and Thomas the son and Thomas the uncle die  also without issue male after which the say Leonard take one mary to wife and  die have issue Anthony Barners after which the say mary take the say John  butler to husband and after this the say Anthony assign to the say mary the  say manor of thobi in allowance for all her dower whereby the say John butler  as in the right of his wife enter into the say manor of thobi whereby the say  Thomas Delves by the commandment of the say baker enter into the say close of  which the action be bring as in right of the say grisell and whether this  entry be lawful or not be the question which be argue in the court in the time  of the late Lord Wray and he and gawdy hold strong that the entry of the say  Delves be lawful but Clench and fennor hold always the contrary whereupon it  be adjourn into the exchequer Chamber but they all agree that the waiver make  by the say Elizabeth by parole in pais be a sufficient waiver of her estate in  Hinton and the rather because of the statute of h cap the word of which be  that if the jointure be make after the marriage that then the wife survive her  husband may after his death refuse to take such jointure and now it be move by  Tanfield that judgement ought to be give for the plaintiff for by the waiver  of the wife the inheritance of Hinton be now to be say whole in the husband ab  beginning and therefore that with Fobbing be a whole three part of the whole  land which now be to be say to be leave to descend to the heir of the devisor  as to thobi be good for the whole and if so then no part thereof descend to  grisell and therefore the entry of the say Delves in her right be wrongful  coke attorneygeneral to the contrary for he say that it be to no purpose to  consider what estate the devisor have in the manor of Hinton by reason of this  waiver make by his wife ex post facto after his death but we be to see what  estate the devisor have in it in the view of the law at the time of his death  before the waiver and accord to it the law shall adjudge that he have power to  make his devise by mean of the statute and at this time none can adjudge  another estate in he but joint with his wife of which estate he have no power  to make any disposition or to devise it or to leave it for the three part to  his heir for the statute which be a explanatory Popham law in this point say  that be ought to be sole seize in such a case and further the statute of h at  the end be that the land which descend immediate from the devisor shall be  take for the three part and this land do not descend immediate for it survive  to the wife until she waive it and therefore this land be not to be take for  any three part which the statute purpose to have be leave to the heir and  therefore so much shall be take from thobi as with Fobbin shall be a three  part to descend whereby grisell the heir have good right yet to part of thobi  and therefore the entry of the say Delves in her right by commandment of her  husband not wrongful periam chief baron Clench clark Walrnsley and fennor that  now by reason of the waiver in the devisor shall be sole seize ab beginning  for the say Elizabeth may have have dower thereof if she will as in the like  case it be adjudge in e and therefore a sole seize in the husband and the  descent to the heir in such a case upon the waiver shall take away the entry  of he who have right to it and therefore the case now for the manor of Hinton  be within the very letter of the statute as well for the sole seize which be  in the devisor as for the immediate descent which be from the devisor to his  heir and therefore remain to the heir for a good three part of the inheritance  of the devisor by the very letter of the statute and if the letter have not  help it yet it shall be help by the purpose and intent of the statute which  ought to be liberal and favourable construe for the benefit of the subject who  before the statute of use may have dispose of his whole land by reason of use  by his will and the statute of h exclude he thereof and therefore the statute  of h be to be liberal expound as to the subject for the two part and the  rather because it appear by the preamble of the statute of h that it be make  of the liberality of the king and because that by h it appear that it be make  to the intent that the subject shall take the advantage and benefit purpose by  the king in the former statute by all which it appear as Popham er p they say  that the say statute shall be liberal expound for the advantage of the subject  and for his benefit and not so strict upon the letter of the law as have be  move and so they conclude that judgement ought to be give for the plaintiff  Popham and Anderson the two chief justice and all the other justice and baron  hold the contrary and that judgement ought to be give against the plaintiff  and that by the very letter and purport of the statute of h for they say they  be to consider what the estate devisor have in the land at the time of this  devise make without regard to that which may happen by matter ex post facto  upon the deed of another and if it have be demand of any apprise in the law at  the time when the will be make what estate the devisor their have in the manor  of Hinton none be so unlearned to say that he have other estate in it then  joint with his wife and if so it follow that this manor be then out of the  letter and intent of the law for he be not then sole seize thereof nor seize  in coparcenary nor in common and by the word he shall be sole seize in  feesimple or seize in feesimple in coparcenary or in common it appear that the  intent of the statute be that be shall have full power of himself without the  mean or aid of another to dispose of the land of which he be by the statute to  make disposition or to leave it to his heir and this he have not for the manor  of Hinton here and further the word of h be that the devisor have full power  at his will and pleasure to devise two part of his land so hold as here and  this be to be intend of such land of which he then have full power to make  disposition and this he can not then do for the manor of Hinton Popham and  further the word of h be that the division for the part shall be make by the  devisor or owner of the land by his last will in write or otherwise in write  and in default thereof by commission c and can any say with reason that it be  the intent of the statute that be shall make the division of other land than  of those of which he then have full power to devise or to leave to his heir  without any future accident to help he or the mean of Anthony by matter ex  post facto it be clear that reason can maintain it and the word follow in the  Act which be that the king shall take for his three part the land which  descend to the heir of the estate tail or of feesimple immediate after the  death of the devisor much enforce the opinion on this side for it can be say  upon the death before the waiver that this manor of Hinton be immediate  descend ergo it ought not to he take for the three part and further the word  be if the land immediate descend upon the death of the devisor c do not amount  to a full three part that then the king may take into his hand so much of the  other land of the devisor as may make a full three part c whereby it be clear  that in this case if the wife have not waive her estate for ten year after the  death of the devisor that for all this time the queen can not meddle with the  manor of Hinton and therefore in the mean while she may well have so much of  the manor of thobi which may we have make a full three part to her and for so  much which she take the will be always void which shall never be alter nor  make good by any waiver ex post facto and although the waiver of the feme put  the inheritance entire in the devisor and in his heir in relation to diverse  respect yet as to other respect be shall not be say in they with such relation  and especial upon the statute in which we now be to respect the power as it be  in he at the time of his death before this future contingent and by Popham if  the exposition on the other side shall bold place upon the statute perhaps a  man shall not see by the space of six year or more after the death of a  devisor how his devise shall work as a feoff in fee be make to I S and a feme  covert and their heir of l land hold by knight service in capite which I S  have l land in fee so hold also I S make a devise of his l land the husband  life year after none will or can deny but that for this time the devise be not  good for two part now the husband die and the wife waive the estate make to  her this put the inheritance thereof in the heir of I S with relation to  diverse respect but not to this respect to make the will now good for the  whole l land which therefore be void for the three part thereof for the will  which once be void by matter ex post facto after the death of the devisor can  be make good and by he the descent in such a case be not such that it shall  take away the entry of he Popham er p who have right because it be not a  immediate descent in deed but upon the operation of law which give wardship  and the like but not to prejudice any three person and he say that although  the queen or other lord upon eviction of the land descend or the determination  of the estate thereof may resort to land devise or assure and take a three  part thereof yet thereby the devise or assurance remain effectual against the  heir but this be by a special clause in the statute of h which give it to they  but no such remedy be give to the devisee to help he m if his part be abridge  or evict and the word be precise to wit if the part leave or assign to the  king or to any lord at any time during their interest therein be evict c that  they shall have so much of the two part residue as shall make a full three  part of the remainder not evict c whereby it appear that this be give only for  the benefit of the lord and not of the heir nor of the devisee for if after  the interest of the queen or other lord be determine this which be leave  Popham be evict from the heir it shall not be help against the devise but the  devise remain good to the devisee against the heir for the whole land devise  whereby it appear that it be the very purport and intent of the statute that  the devise remain as it be at the time of the death of the devisor without  have regard to that which happen ex post facto unless for this point help by  this special clause of the statute and this be for the lord and his interest  only and for no other and by he also clear the statute which be a explanatory  law shall never be take by equity in the precise point explain to impugn the  point of explanation as here the statute will that the estate of inheritance  comprise in the former statute shall be explain to be feesimple it can now by  any equity be as to the power to make a devise which be mere give by the  authority of the statute say to be of any other estate than feesimple of which  a devise may be make and therefore if land be give to another and his heir for  the term of another man life a devise can be make of this because it be not a  inheritance in feesimple but only the limitation of a freehold and where the  statute say have a sole estate we can by any equity that it shall be take of  any joint estate as to make any disposition of that which she have in jointure  and thereupon the great part resolve that judgement shall be give against the  plaintiff for the defendant