coke Report25a butler and baker case mich and Elizabeth in the king bench see  Xenos v Wickham l r h l stand v Bowring Ch d London and county Banking company  v London and river plate bank Q b d in re arbib class contract Ch Mallott v  Wilson Ch SC Poph Anders more Goldsb Leon SC cite send for post lo   b a b    light b Rep Q a c fitzg sand Mod Mod ld raym salk burr burr t r t r east a  Bulstr roll Rep b but see n you sup and the case there cite however it be  settle agreeable with the decision in the above cite case that the lessor  after acceptance of the assignee as his tenant can bring debt against the  executor for rend incur afterward though as before observe he may still have a  action of covenant ante p a n you and the case there cite ED b I Jones cro car  vin Abr debt c pl Com dig debt e c ante a sand d Bulstr cro car sand r salk t  r Inst two W Fonb Tr Eq n Com dig debt f c but it be full settle that though  if the lessor accept the assignee as his tenant he can bring a action of debt  for rend incur after the assignment because the acceptance of rend extinguish  the privity of contract which be create between they by the lease yet be may  have a action of covenant upon the express covenant by the lessee to pay the  rend Barnard v Godscall cro James bachelor and gauge case cro car Thursby v  plant sand orgill v Kemshead taunt ante p a n you ED e   light b post b a   a  d see pale yellow ten Inst b two and n W ib post   and the note there ED coke  report a er p east east barn a Ventr sheep touch n wood n two three Sugd pale  yellow use Bl Com Fonbl Tr Eq u bull n p Cru dig v way Watk cony Edward press  press Conv vin Abr baron and feme e a pl collateral a pl contract d pl devise  pl I pl I pl t c pl l disagreement a pl dower h pl election e pl estate f pl I  pl f a pl b f pl evidence Q b pl faits n pl pl n a pl fiction a pl property I  pl relation c pl d pl h pl king pl statute e pl Waver a pl Com dig baron and  feme g r l S S devise d m fait b Bac Abr dower f two fine and recovery c three  Jointtenants a jointure b legacy and devise a go obligation d see the  reference and note infra I S seize of the manor of h and t have issue William  Thomas and Leonard make a feoff of h to the use of his son William and his  wife in tail for the jointure of the wife and die the reversion of h with the  other land descend to William the old son who devise the manor of t to his  wife for her life on condition that she waive her jointure with remainder over  to his brother and die have issue t the land be hold in capite t amount to  twothird part and h to one three the wife refuse her jointure in pais and  enter into t hold that the wife refusal in pais divest the jointure by the h c  and make a immediate descent by relation to the heir as to h but do not relate  so as to make the devise good for the whole of t because saint relation be a  fiction of law to make a nullity of a thing ab beginning which in reality have  essence but be not allow in destruction of a lawful estate vest and it help  act in law but not act of the party which be in themselves void rd it extend  only between the same party and be never strain to the prejudice of three  person who be no party or privy to the act and upon the statute of will after  the h and before the and h the manor of t be not devisable and William not  have pursue the power give by the statute the devise be void for a three part  of t for saint the statute only empower person have land c to devise so that a  man can devise land which he have not at the time of make his will and the  testator must be sole seize as well of the land leave to descend as of that  devise rd the statute give a power to dispose of two three part but what a man  can dispose of by act execute in his lifetime can be devise that the act  intend the lord shall have a equal if not a great benefit for his three part  as the devisee shall have for his two part and that the three part ought to  descend immediate without a mean time if a man seize of three acre by  knightservice in capite make a lease of one of the acre for life and then  devise the two acre and die this devise be void for a three part of the two  acre what shall amount to a agreement or disagreement to a estate a man may  distrain for one cause and avow for another act of parliament and will be to  be construe accord to the intent a lease by husband and wife by deed indent if  wave by the wife after the death of the husband will be the demise of the  husband alone for her waver avoid the lease ab beginning all fiction of law be  to certain respect and purpose and extend only to certain person they be only  of necessity and for avoidance of a inconvenience requisite of a will and what  may be devise when a second delivery render a deed effectual as to collateral  act there shall be no relation rule for the make and revoke will in a action  of trespass bring by John butler against Thomas baker and Thomas Delves  defendant for a trespass in of the manor of thobi in the county of coke report  b er p Essex and not guilty plead the jury give a special verdict to this  effect William Barners seize of the manor of Hinton in the county of  Gloucester have issue William his old son Thomas and Leonard Barners and that  William the son marry Elizabeth Eden and afterward and Phil and mary William  the father in consideration of the say marriage and for a jointure for the say  Elizabeth do feoff of the say manor of Hinton Robert Rochester Knt and other  to the use of the say William the son and Elizabeth his wife and the heir of  their two body beget and afterward William the father die whereby the  reversion of Hinton descend to William the son and that William the son be  also seize of the manor of thobi whereof the place in which be parcel and of  certain land in Fobbing in the county of Essex in fee and have issue Thomas  and grisild now the wife of baker one of the defendant and afterward William  the son by his last will in write devise that Elizabeth his wife shall have  and hold during her life the manor of thobi in consideration of her jointure  and dower in all his other manor and land provide always that if the say  Elizabeth shall take herself to any former jointure of any land of William the  son that then the say will of the manor of thobi as to the say Elizabeth shall  be void and after the death of the say Elizabeth the say manor of thobi shall  remain to Thomas his son and to the heir male of his body the remainder to the  heir male of the body of the say William the son the remainder to Thomas his  brother for life the remainder to his old son in tail c the remainder coke  Report25b to Leonard Barners and to the heir male of his body the remainder to  Richard Barners in tail the remainder to the right heir of William Barners the  son and that William the son so as aforesaid seize of all the premise die  thereof seize and that the manor of thobi and Hinton be hold of the queen in  capite by knight service and that after the death of William the son his wife  by word in pais do wave her estate in Hinton and agree to the manor of thobi  and enter into it and that the manor of Hinton and the land in Fobbing be a  entirethird part of all the land and tenement whereof William the son die  seize and that Thomas the son of William the son and Thomas the son of the  father be dead without issue by which Leonard enter into the manor of thobi  and take to wife mary Gedges and die Anthony his son assign the say manor of  thobi to the say mary for her dower now the wife of butler the plaintiff and  that Thomas Delves one of the defendant by the command of baker the other of  the defendant enter c and if the entry of the say Delves be lawful be the  doubt and the case in effect be such William seize of thobi and Fobbing and  William and Elizabeth his wife seize of Hinton to they and to the heir of  their two body beget by estate make to they during the coverture for the  jointure of the wife the reversion to William in fee thobi amount to the value  of two part and Fobbing and Hinton to a full three part thobi and Hinton be  hold in capite William by his will devise in write thobi to his wife for her  life on condition that she shall not take her former jointure with diverse  remainder over and die the wife in pais refuse her former jointure in Hinton  if the will be good for the whole of thobi or but for a part and two question  be move in this case saint if the refusal in pais shall divest the estatetail  which be vest in the wife and admit the refusal in pais shall divest it if the  refusal shall have such relation that the will shall be good for the whole  manor of thobi by the statute of a pound h a or shall be void for part and  this case be argue in a h cap h cap car cap   light a b a by the commonlaw  that be from soon after the introduction of feudal tenor till these statute  for in the Saxon time the testamentary power over land exist Inst three b two  no land or tenement be devisable except by particular custom Inst sect I  though before the statute of use beneficiary and use may have devise the use  ante I p b n p but by statute h c explain by h c all person except feme covert  infant idiot and person of nonsane memory have any land tenement rend or  hereditament hold in socage and be thereof seize in fee either sole or in  coparcenary or in common in possession reversion or remainder may by their  last will and testament in write devise the same to any person except body  coke report a er p the king bench by Egerton the queen solicitor and Thomas  Buckley for the plaintiff and by Popham the queen attorney and coke for the  defendant and afterward mich Elizabeth the case be argue by the court b and  Fenner and Clench argue for the plaintiff and Wray CJ and gawdy for the  defendant and afterward the same term the case be argue by the counsel on both  side in the exchequerchamber before all the justice of England and Wray chief  justice tell I that Anderson chief justice of the common plea and manwood  chief baron do agree with he and afterward Wray chief justice the last day of  easter coke Report26a term Elizabeth die who be a most reverend judge of  profound and judicial knowledge accompany with a ready and singular capacity  grave and sensible elocution and continual and admirable patience and sir John  Popham the queen late attorneygeneral do succeed he and afterward in  Michaelmas term pound Elizabeth sir Roger manwood chief baron die who be also  a reverend judge of great and excellent knowledge in the law and accompany  with a ready invention and good elocution and sir William periam Knt late one  of the justice of the common plea succeed he and afterward the case be  oftentimes argue as well in the exchequer Chamber as at sergeant inn before  all the justice of England and baron of the exchequer and after many  conference between themselves judgement be order to be enter for the defendant  which be do in the king bench accord and in this case diverse point be resolve  first that at the commonlaw if land be give to husband and wife in tail or in  fee and the husband die there the wife can divest the freehold out of her by  any verbal waver or disagreement in pais as if before any entry make by her  she say that she utter wave and disagree to the say estate and will never take  or accept thereof yet the freehold remain in her and she may enter when she  please so if before her entry she re cite her estate have say by word in pais  that she do assent and agree to the say estate or word tantamount yet she may  afterward wave it in a court of record for a verbal assent and agreement in  pais as it be hold by diverse in such case be not of any effect in law for the  law do more respect a act without word than word without a act and therefore  if she enter into the land and take the profit b although she say nothing it  be a good agreement in law for the law do respect deed but word without a act  be not in this case regard in law as it be adjudge in m e avowry that if a man  take a distress for one thing yet when he come into a court of record he may  avow for what thing he please c a much strong when a freehold be vest in he it  can be divest by bare word in pais and therewith agree e politic and corporate  at their free will and pleasure by the same statute twothirds only of land  hold by knightservice whether in chief that be immediate under the king or of  some intermediate lord can be so devise but inconsequence of the abolition of  military tenor and the conversion of knightservice into common socage by  statute Charles c S the operation of the statute of will now extend to all  estate in feesimple as to devise in general see post ED b Poph more vin Abr  disagreement a pl h estate I pl Com dig baron and feme S Bac Abr jointure b  Fonb Tr Eq d Com dig baron and feme S b so in the case of a lease for life or  for year by husband and wife of the land of the wife do warrant by the statute  h c if the wife accept rend reserve upon such lease after the death of her  husband this amount to a agreement to the lease Com dig baron and feme S as to  lease make by husband and wife at commonlaw or by virtue of stat h see Bac Abr  lease c Inst a two and the note ib ED c that a party may avow for a different  cause from that for which he have distrain ace godb Leon ld raym bull n p  Patchett v Bancroft t r thus he may distrain for rend and avow for heriot  service Fitzherbert avowry crowther v Ramsbotttom t r ED Poph ass pl   coke  report b er p ass where the husband alien his land and take back a estate to  he and his wife in tail the husband die the lord of who the land be hold by  knight service suppose the husband die sole seize by word assign dower to the  wife d which she accept yet it be adjudge that this refusal of the estate of  inheritance and acceptance coke Report26b of her dower in pais shall not  divest the freehold out of her a also in r Jointtenancy the case be a charter  of feoff be make to four and seize be deliver to three in the name of all and  after the seize be give the four come and see the deed and say by word that he  will have nothing in the land nor agree to the deed but disagree and it be  adjudge that this disagreement by word in pais shall not divest the freehold  out of he and Thorpe in e title disclaimer say that in such case the tenancy  do remain in toto till disagreement in a court of record e another reason be  allege that a freehold shall not so easy be divest by bare word in pais to the  end that the tenant to the precipe shall be the better know but as a act in  pais may amount to a agreement so a act in pais may amount to a disagreement  but that be always of one and the same thing as if lord and tenant be and the  tenant by deed do feoff the lord and a stranger and make livery to the  stranger in the name of both in this case if the lord by word disagree to the  estate it be nothing worth and on the other side if he enter into the land  general and take the profit this act will amount to all agreement to the feoff  but if he enter into the land and distrain for his seignory this act amount to  a disagreement to the feoff and will divest the freehold out of he and  therewith agree e b by all the justice and yet in some case a claim by word  will direct a entry to be a agreement to one estate and a disagreement to  another as if land be give to husband and wife in tail and after the stat of c  h the d husband alien vin Abr disagreement a pl d a guardian in chivalry  though be have but a chattel interest may after his entry into the land assign  dower because the law trust the guardian to plead for the infant heir who be  in his custody and also for his own particular interest Inst a b I and will ib  and will ib post   Plowd roll Abr brook Inst ED a r Jointtenancy Rep Q a barn  and a wood will Fonbl Tr Eq vin Abr disagreement a pl e in shepherd touchstone  it be lie down with respect to feoff gift grant and lease that they may be  avoid by the disagreement of the party to who they be make and if it be a  lease for year that be make he may waive and avoid that by word of mouth in  the country as well as a gift of good or a obligation deliver to his use but  if it be a estate of freehold that be make by feoff it seem be can wave and  avoid that but in a court of record this doctrine proceed on the principle  that the assent of the party who take it to be imply in all conveyance because  there be a strong intendment of law that it be for a person benefit to take  and no man can be suppose to be unwilling to do that which be for his own  advantage but accord to the modern decision though the law presume that the  party to who a devise or other conveyance be make will assent until the  contrary be prove yet there must be the assent of the party before any  interest in the property carl pass to he Bonifant v Greenfield Leon cro  Elizabeth Thomson v leech Ventr townson v tickle barn a and therefore it  appear to be the better opinion that the disclaimer need not be either by  matter of record or by deed barn a ED Fonbl Tr Eq vin Abr disagreement a pl u  Fonbl Tr Eq will vin Abr estate I pl l wood Fonbl Tr Eq will vin Abr  disagreement a pl estate pl b Leon n Br extinguishment wood will Fonbl Tr Eq n  vin Abr disagreement a pl estate I pl c h cap l wood will I Fonbl Tr Eq n d  dyer pl   b   b   light a hob cro James Brownl Leon more roll Rep vin Abr  disagreement a pl estate I pl coke report a er p the land to the use of he and  his heir and afterward devise it to his wife for life and die the wife enter  claim by word the estate for life this be a good disagreement to the estate of  inheritance f and a good agreement to the estate for life and therewith agree  Elizabeth dyer b for there be not any doubt of the tenant to the precipe and  the act and the word work together but if the wife before her entry agree by  word to one estate and disagree to the other it be nothing worth but if a make  a obligation to b and deliver it to c to the use of b this be the deed of a  present but if c offer it to b there b may refuse it in pais and thereby the  obligation will lose its force but perhaps in such case a in a action bring on  this obligation can plead non be factum e because it be once his deed g and  therewith agree hill Elizabeth rot in taws f case report by sergeant Bendloe  and by the Lord dyer hill Elizabeth the same law of a gift of good and chattel  if the deed be deliver to the use of the donee g the good and chattel be in  the donee coke Report27a present before notice or agreement h but the donee  may make refusal in pais and by that the property and interest will be divest  and such disagreement need not to be in a court of record note reader by this  resolution you will not be draw to error by certain opinion deliver by the way  without premeditation in e a b pound b e a h a h b and other book obiter  second it be resolve that though the estate be create by limitation of use by  limitation make after the stat of h which statute have transfer the use into  possession for so be the usual plead de use in possession to bear I and  although a b use may have be wave by word in pais before the say statute yet  now the statute do incorporate the use and possession of the land and have  couple they together with a indissoluble conjunction and therefore no more  than a estate create by feoff gift or grant can be wave in pais no more can  such estate create by limitation of use which matter on these word of the say  Act in such manner form and condition be well and at large explain and resolve  in c Dillon and Freins case and in d corbet case and therefore it be resolve  in this f the statute h c restrain discontinuances by husband seize either in  right of or joint with their wife so far only that it enable the wife or her  heir to enter after the death of her husband and to restore hr estate by a  entry instead of a action but it seem that the husband alienation be voidable  only and not void Inst three u more be case roll Rep Com dig discontinuance a  weal v low Pollexf William d Hugh v Thomas east ED sheep touch vin Abr  election e pl Bac Abr obligation d e   b   Cr Elizabeth Leon Doct pl l salk  sheep touch wood vin Abr election e pl faits n a pl Bac Abr obligation d g but  in Whelpdales case post   b Lord coke say that in such case the obligee may  plead non be factum in regard the obligation by the refusal of the obligee  lose its force and see send for per holt CJ salk who say the subsequent  refusal make the deed void ab beginning ED f n Benl   Ent nu I Fonbl Tr Eq Bac  Abr obligation d g dyer a r Ventr show wood n Fonbl Tr Eq Mod vin Abr contract  d pl property I pl h so if a bind be seal and deliver to a man use and he die  before notice his executor may bring a action upon it dyer wood n ED a  Fitzherbert release Br release Br agreement Br faits wood n Com dig baron and  feme S I see sand sand c Chit plead g ED b   a   b wood n vin Abr disagreement  a p Com dig baron and feme S vin Abr disagreement a pl Com dig baron and feme  S c   c Poph and jenk cent d   b more and coke report b er p case at bar the  refusal in e pais to have the manor of Hinton and the entry and agreement to  the manor of thobi be a good agreement to one and a refusal to the other and  thereby the inheritance be divest and that by force of the statute of r cap  versus that which divides concern jointure of wife by which it be provide that  if any wife shall have any manor c unto her give or assure after marriage for  term of her life c that then such wife overliving her husband shall and may at  her liberty after the death of her say husband refuse to have and take the  land c and to have demand and take her dower any thing in this Act to the  contrary notwithstanding by which word it be unanimous agree by all the  justice and baron of the exchequer that the wife may refuse f her jointure in  pais I and be endow by consent in pais or by writ of dower and therewith agree  g Whorewoods case h dyer b the three point and the great doubt of the case be  on a branch of the stat of h h of will by which it be enact that the Act of h  of will shall be extend expound and take as hereafter ensue that be to say  that the king shall have and take for his full three part of all such manor  land c hereunto be be or shall be entitle by the say former Act and by this  present Act such manor land and tenement as shall coke Report27b by any mean  descend or come by descent as well of estate of inheritance in feetail as  feesimple or in feetail only c immediate after the death of the same devisor  or owner thereof and that the will c shall stand good and effectual in the law  albeit the same will c be bad and make of all his feesimple land c or of the  more part thereof and if in this case the refusal of Hinton have such relation  or operation in law that now on the matter Hinton and Fobbing do descend  immediate after the death of the devisor and it be strong object that now on  the matter Hinton and Fobbing do descend immediate after the death of the  devisor within the intention and meaning of the say branch of the Act of pound  h and that for diverse reason and cause saint because this case do consist on  a construction of a Act of parliament and of a will or testament both which be  always construe and expound accord to the intent and meaning of the party  thereto and not by any strict or strain construction king and this refusal  shall have such relation and operation in law that now on the matter Hinton  immediate descend and now ab beginning the husband be sole seize of the manor  of Hinton and many case be put on the general ground of e Poph more Goldsb f  wood two vin Abr Waver a pl Com dig baron and feme S Bac Abr dower f two f    Plowd b   light b wood two Sugd pale yellow use vin Abr Waver a pl Com dig  baron and feme S Bac Abr dower f h I but by section of the same statute she  can waive her jointure make before marriage unless she be evict from it or any  part of it without fraud or covin and in such case by sect she may be endow of  as much of the residue of her husband tenement or hereditament whereof she be  before dowable as the same land and tenement so evict and expulse shall amount  to as to jointure in general see Vernon case post   and the note there ED g  dyer pl post a b h   light a b III b   b a b I Siderf vin Abr devise pl and  see the reference ante p a a Poph Anders Leon b   b king as to this rule of  construction in respect of statute see ante p b n b post   a   b   Plowd Inst  light Rep Mod show Jon curl v Chalklen maul and S Bac Abr statute vin Abr  statute e Com dig parliament r and in the case of will Burl burr p wms p wms  bro c c ves ves ves ves Ves b dow dow Bac Abr will c f Com dig devise n Cru  dig and edit ED coke report a er p relation but I will report those only which  I conceive to be most material it be say that of a joint estate a woman shall  not be endow l but if b land be give to husband and wife and the heir of the  husband or the heir of their two body or to their heir and afterward the  husband die now if she will wave and refuse the joint estate the wife may  bring her writ of dower and thereby in judgement of law the husband shall be  say sole seize ab beginning for otherwise the wife can be endow and yet in  truth the husband and wife be jointtenants m during all the coverture but now  the refusal shall have such relation that in judgement of law the husband be  ab beginning sole seize and therewith agree the book in c e title dower where  the case be lord and tenant of a house hold by homage and S rend the tenant  feoff W the lord grant the seignory to husband and wife in tail W attorned the  husband die the seignory survive to the wife and she bring a writ of dower in  bar of which the lord plead acceptance of homage by which it be admit that the  writ of dower do lie in a action of waste bring by Robert d Thetford against  Andrew Thetford pasch Elizabeth rot in the common plea the plaintiff count  that I a give to John Thetford and Thomasin his wife and to the heir of their  body who heir the plaintiff be and that John and Thomasin Phil and m make a  demise to the defendant coke Report28a for year and that the donee be dead and  that the plaintiff be heir in tail and that the defendant have do waste the  defendant plead quod predict Johannes et Thomasina non dimiser c on which they  be at issue the jury find that the say John and Thomasin by their deed indent  make the lease to the defendant for year ut above and that John die and after  his death Thomasin enter and disarm to the say lease and whether the issue be  find for the plaintiff forasmuch as it be find that both make the lease as the  plaintiff have count which be the point of the issue or whether it be find for  the defendant by matter ex post facto that be to say by the disagreement of  the wife be the question and after great consideration and many argument at  the bar and bench the justice of the common plea give judgement for the  defendant for now by the disagreement of the wife in judgement of law it be  the lease of the husband only and yet in truth during the life of the husband  it be the lease of both n as it appear by h in be h a in be h b but now by the  disagreement subsequent and by relation and operation of law it be ab  beginning the lease of the husband only for if it ab beginning have not be the  lease of the husband only the issue have be find for the plaintiff and the  case of Whorewood h dyer b be strong urge where the case be that W Whorewood  the king late attorneygeneral be seize of the inheritance of land of the value  of in which the wife be a joint purchaser with her husband of by his last Com  dig baron and feme S l that dower may be bad of a estate in common but not of  a jointestate for the estate survive Inst b I lev Com dig dower a ED b I  Anders vin Abr dower h pl t Bac Abr Jointtenants a m or rather tenant by  entireties the gift be make after marriage ante I a n I ED c Leon post b Perk  b sect Bac Abr jointure b d   Ent nu ander say Leon lane vin Abr baron and  feme e a pl evidence Q b pl Com dig baron and feme g r Com dig baron and feme  r n as to lease by husband and wife of the land of the wife see the book cite  ante p a n b ED a Br lease Br baron and feme Br agreem Fitzherbert waste Br  waste vin Abr baron and feme e a pl Q b pl b ante a dyer pl post b vin Abr  baron and feme e a pl dyer b pl vin Abr devise t c pl coke report b er p will  in write declare that his wife shall have during her life the three part of  all his land and tenement with the say land which she have in jointure the say  part to be assign by his executor and die the wife refuse her jointure and  demand a three part of the whole land that be to say as a legacy and per annum  as a three part of the residue for her dower and it be order and decree in the  court of ward that she shall have her legacy sure the three part of the whole  by which it appear that the refusal of the wife shall have relation ab  beginning to make the husband sole seize of the whole or otherwise the say  devise can not extend to that whereof she be before joint seize and so in the  case at bar the refusal of the wife have such relation and operation in law  that now on the matter the husband be ab beginning sole seize of the manor of  Hinton and by consequence the same do descend after the death of the husband  and so the devise of the whole manor of thobi good and effectual in law for  now it be tantamount as if the use have be limit only to William and to his  heir on the body of Elizabeth beget and where the statute of h speak of a coke  Report28b descent immediate after the decease c that be true for now upon the  matter the manor of Hinton descend immediate for now the impediment that be to  say the estate of the wife be remove ab beginning and yet it be say that this  word immediate shall not have such a strict construction that it ought to be  make in Self point of time time but will be satisfy if it be make in  convenient time as in e a man be bind to make a obligation immediate yet he  shall have convenient time to make it oh but it be answer and resolve that the  say refusal in the case at bar shall not have such relation or operation in  law that the devise shall be good for the whole manor of thobi and that for  two general cause saint upon the reason of the commonlaw and and upon the  statute of h as to the first it be resolve that relation be a fiction of law  to make a nullity of a thing ab beginning to a certain intent which in rei in  point of fact have essence and the rather for necessity ut res to greater  extent to be strong how to pass away and therefore in the say case of dower in  a e to this intent that the wife shall have dower which it be not possible for  her to have unless her refusal shall have relation ab beginning for this cause  and for necessity the law will make a nullity of it but as to any other  collateral intent the law will not make any nullity thereof as if a man make a  gift in tail to husband and wife and afterward grant the reversion of the land  and tenement which the husband and wife hold in tail and afterward the husband  die and the wife to have her dower wave and disagree to the estate tail now as  to her there be a nullity of the estate ab beginning and to such intent the  law feign that the estate be make only to the husband but as to the grant of  the reversion which be a collateral act the refusal shall not have any such  relation for she may be endow although that act stand and so no necessity and  therefore without necessity ut res to greater extent to be strong the law will  not feign any nullity but in destruction of a lawful estate vest the law will  never make any fiction p so in the case at bar for the manor of Hinton only  the law will make such a fiction but for the manor of thobi which be a  collateral thing no such fiction shall be man de for b reference to standard  be fashioning law et be eager ad One and that be the first reason and as to oh  that where a condition be to be perform immediate the party shall have a  reasonable time to perform it accord to the nature of the thing to be do roll  Abr Com dig condition g ED Finchs law east vin Abr relation c pl a ante b Leon  Perk sect vin Abr dower h pl p it be a general rule that fiction or relation  of law shall not prejudice stranger vent lev post b it be true that there be  sometime loss and damage to three person consequent upon they but then it be  what the law call damnum without in an unjust manner which be a know and state  difference in the law per Ventris I vent as to relation in general see ante I  p a b and the book cite in the note there east ED b godb coke report a er p c  Whorewoods case it be say that the decree be make by agreement as it appear by  the say case and the scope of the case be that she will have the three part as  a legacy and her dower also and by agreement she take composition for the  whole and it do not appear by the say case whether the wife be joint purchaser  for life in tail or in fee nor whether any part of the land be hold in capite  or by knightservice coke Report29a the second reason be that relation in many  case shall help act in law as in the case of a dower c but shall never help  act of the party that be to say to make void act of the party good by relation  or fiction of law and therefore f if a man feoff a infant or a feme covert and  afterward give or grant or devise the Iand or any other thing out of the land  to another and afterward the infant or the husband disagree that without  question shall have relation between the party ab beginning to this intent  that the infant or husband shall not be charge in damage or receive any  prejudice but as to the void grant or devise of the party it shall never make  the void grant gift or devise good Q also if one demise land to one by deed  for life the remainder to the king in fee and the king grant the remainder  over in fee afterward the deed be enrol in this case the b enrolment shall  have relation for necessity and ut res to greater extent to be strong that the  remainder how I ab beginning shall pass by fiction of law for otherwise it  will never pass and therefore to this intent only it shall have relation but  to make the patent which be void at the time of the grant good it shall have  no relation so if a seize make a feoff in fee by deed to a and b and make  livery to a in the name of both and afterward a die in this case b to  discharge himself of damage may refuse it as have be say and it shall have  relation ab beginning as to discharge he of damage but to make any lease gift  or grant or devise or any other act of the party good it shall not have  relation and it be say that as relation shall extend only to the same thing  and to one and the same intent so they shall extend only between the same  party and shall never be strain to the prejudice of a c three person who be  not party or piivy to the say act and therefore if a man make a feoff of a  manor by deed or d without deed r and long time after the livery the tenant  attorn to the feoff in this case the attornment S for necessity aid ut res to  greater extent to be strong shall have relation by fiction of law to pass ab  beginning for otherwise they can never pass and if they shall not pass e ab  beginning by a fiction of law they will not be parcel of the manor accord to  the intent and purpose of the feoff if they shall pass at several time but yet  this relation shall not f charge the tenant for the arrearage in the c ante a  a dyer pl east east sheep touch that edit n vin Abr devise pl a   light a   b  e avowry east sheep touch n vin Abr relation h pl vent lev Mod vin Abr  relation h pl Q so relation will not operate to defeat collateral act which be  lawful especial if they concern stranger post   ED b Fitzherbert feoff and  faits Plowd b I h a hob more godb and   Br prerogative roll Cr James skin   c    light a b cro car east wood vin Abr relation c pl king pl d roll h a vin Abr  relation c pl r but now a deed or write be make necessary to the pass of a  estate of freehold or inheritance by the Charles c ED S as to attornment in  general and that the necessity of it be now do away ante I p b n you ED e    light b b vin Abr relation c pl f   light b b a e a b Vet nat Br vin Abr  relation c pl coke report b er p mean time so if feoff upon condition grant a  rentcharge out of the land and afterward the grantee bring a writ of annuity t  now ab beginning it be a annuity between the grantor and grantee but as to the  feoff who by the grant be entitle to enter for the condition break it shall  not coke Report29b have any relation to his prejudice so it be adjudge in a e  in a dumb to be infra lifetime against Richard Spellow the tenant say that his  father be seize and die seize and pray his age the demandant counterpleaded  the a e because his father and be himself be joint feoff and to the heir of  the father and it be adjudge that he shall not have his age for although this  refusal shall have relation as to himself yet as to the demandant who be a  stranger it shall not have relation to delay his action when in truth he have  the freehold by purchase u further it be say that no relation shall make that  tortuous which be lawful for as it have be say relation be fiction in law  which will never do wrong upon all which matter it be conclude that this  refusal shall have relation only as to the manor of Hinton and not as to the  manor of thobi and to the intent only that the wife shall not be prejudice for  alley thing concern the manor of Hinton and this relation do not prejudice the  heir who be a three person upon who by the death of the devisor part of the  manor of thobi do descend and it will not divest that which the law by descent  have lawful vest by the death of the devisor in the manor of thobi but as the  will take effect at the time of his death it shall remain for b all things  will death complete be and the refusal of the wife as to the manor of Hinton  can make the devise as to the three part of the manor of thobi good which be  void when the devise look effect sure at the time of the death of the devisor  note reader not only in this case of relation which be a fiction of law but  also in all other fiction of law they be to certain respect and purpose and  extend only to certain person as the law suppose that the vouchee be tenant of  the land whereas in truth he be not but that be as to the demandant himself  and to enable he to do all thing as to the demandant and which the demandant  may do to he and therefore a fine levy by the vouchee to the demandant or a  fine or release from the demandant to the c vouchee be good but a fine levy by  the vouchee to a stranger or a release make to he by a stranger be void and  therewith agree e b wonder so if the tenant hang a precipe against he make a  feoff as to the demandant the levum do suppose he tenant of the land and be  shall plead all plead which the tenant of the land may plead but in rei in  point of fact the feoff be tenant of the land as to all stranger so if d donee  in tail make a feoff in fee in rei in point of fact the donee have nor law in  re nor law ad remember and yet the donor may extinguish or diminish his rend  by release or confirmation make to he ten as it be agree h a b I h grant coke  Report30a in all which vin Abr relation c pl t as to the writ of annuity see  ante I p a n m ED a Fitzherbert age roll   a the privilege of parole demurrer  be only allow where the heir be in by descent and not where he claim by  purchase post   a roll Abr and where the heir have a estate in possession  sufficient to answer the demandant action though he have the residue by  descent he shall not have his age roll Abr as to parole demurrer in general  see the book cite ante p a n oh ED b post a   b   a post a vin Abr fiction a  pl c hob     b light sect   b   title b h a e b roll Rep Cru dig vin Abr  fiction a pl Bac Abr fine c three W see ante I p b godb d   light a a hob roll  Rep   b I Jones sheep touch wood Cru dig press Conv vin Abr estate f a pl X so  a release by the lessor to his lessee for life after a seize enures to  extinguish the rend though it can enure by way of enlargement Inst sect a two  and n r ib press Conv ED coke report b er p case and other the like the law  will never make any fiction but for necessity and in avoidance of a mischief  for if the vouchee shall not be tenant as to the demandant or that the tenant  after the feoff shall not be as to the demandant tenant of the land the  demandant in the one case and the other can never have the effect of his suit  but will be for ever delay and in the latter case notwithstanding the feoff  the donee shall remain tenant as to he and of necessity he shall a avow for  his rend upon he for he can avow upon the discontinuee for then upon his own  show the reversion to which the rend be incident will be divest out of he by  the feoff and by consequence he can maintain his avowry for the rend and  therefore for necessity he shall avow upon the donee you and his feoff t which  be his own act and by which wrong be do shall not avail he to bar the donor of  his rend for a man shall never take benefit of his own wrong and that be as to  this point as it seem to I the better opinion of the book as to the statute of  and h it be resolve that after the statute of h and before the statute of h  the manor of thobi be not devisable and because the say William Barners the  devisor have not follow the power and authority which the statute of h and the  statute of h which explain it give he it be resolve that the will be void for  part of the manor of thobi and that be collect on four part of the say act the  effect of which I have abridge as follow the first branch of the Act of h that  all and every person have a sole estate in feesimple of any manor hold in  chief c shall have full and free liberty power and authority to give and  dispose by his last will in write as much as in he of right as much of c as  shall amount to the full and clear yearly value of two part in three part to  be divide the second branch the same division to be set out by the devisor  owner or in default thereof by commission to be grant out of the court of ware  the three branch and that the king shall take for his full three part such  manor c of estate of inheritance as well in fee tail as in feesimple as shall  descend or come by descent c immediate after the death of such devisor the  four branch and in case the manor c which shall immediate after his death  descend c shall not extend to the value of a full three part the king may take  c to make up c and on these four part it be conclude for diverse notable coke  Report30b reason that the devisor have not power to devise the whole manor of  thobi by force of the say statute and to this purpose four reason be collect  on the say first branch first on this word have and therefore if it be ask  quis to be able to send with a commission the maker of the Act answer every  person have manor c so that it be not say every person general but every  person have c and this word have import Bl Com vin Abr fiction a pl a hob    light a cro car do Plowd a e b vin Abr estate f a pl you but when tenant in  tail suffer a common recovery or levy a fine the avowry together with the  right of entail cease hob ED   light a b a vin Abr devise I pl Rep Q a c sand  a n salk burr a t r pale yellow debt pow Dev c sheep touch press Watk Conv vin  Abr devise I pl I pl Com dig devise m Bac Abr legacy and devise a go coke  report b er p two thing sure ownership and time of ownership for he ought to  have the land at the time of the make of his will and the statute give such  person have c authority to devise two part of his land which he have and more  he can devise for his authority do not extend to more z and in our case the  devisor have not the manor of Hinton for he and his wife be jointtenants of it  during the coverture between who be no moieties so that he and his wife have  it b be himself have it not and he be not owner thereof nor be it to be  account any of his land and every devisor ought to be a person have c at the  time of the make his will within the purview of this Act a this appear Phil m  dyer a man a seize in fee of land of I socage tenure assure it to his wife in  jointure year and eight year after n e be purchase land in fee hold in capite  in knight S service and of two part thereof make his will and die his heir  within age and it be resolve that the queen shall not have any part of the  jointure of the wife and that by force of these word in the act of explanation  of h and have no land hold by knight service because he be not a person have  any land hold of the king by knight service in capite at the time of the  jointure make it be resolve on the same reason in the court of ware and in  Trin Elizabeth b car case be resolve by the chief justice Wray and Anderson on  conference with diverse other justice and the case be such king e by his  letter patent grant the manor of Congresbury to g Owen in feefarm to bold of  the manor of east Greenwich in socage and render the annual rend of per annum  and afterward queen mary in the first year of her reign grant diverse manor  which come to the crown by the attainder of Margaret countess of Salisbury and  also per annum parcel of the say rend of to Francis earl of Huntington and  Katherine his wife and to the heir male of the body of the say Katherine the  remainder to Winifred Hastings in tail to hold in socage the reversion of the  fee be in the crown and afterward king Philip and queen mary recite the say  grant make by the same queen as to the say rend grant the reversion of the say  rend to the say earl of Huntington and Katherine his wife and to the coke  Report31a heir of the say Katherine to hold in chief by the twenty part of a  knight fee and z that the power of devise be now extend to the whole land ante  p b n a ED therefore land acquire after the execution of the will not contract  for at the time the will be make Longford v Pitt p wms will not pass unless  there be a republication of the will Brunker v cook Mod BrO p c salk sand this  however have be think to depend not so much on the force of the literal  expression have land in the statute as on a will be be consider as a  conveyance operate by way of appointment which it be necessary that the party  shall have a power to make at the time of make it Cowp the devisor must not  only be seize or entitle to the land at the time of make his will but must  continue seize or entitle until his death Mod holt Rep for if a man devise  land be afterward seize and die the land will not pass unless the seize shall  be restore in the lifetime of the testator bro Abr devise pl Brunker v cook  salk pale yellow Dev holt Rep burr Ves press stand at a distance a devise  however sometime operate upon property which the devisor have not at the time  of make his will as in the case of tenancies escheat or copyhold purchase by  the lord after a devise of the manor but before the death of the testator roe  v Wegg t r so a term for year purchase after execution of the will be hold to  pass by it because it be only a chattel real and in this case the will operate  as a testament and not as a devise either by custom or by the statute of will  I p wms atk but it be otherwise where a lease for year be surrender and renew  after the date of the will atk as to what property may be devise or not see  post p a n I ED a   b dyer pl   a Brownl   light a sheep touch b Leon roll Rep  godb Brownl sheep touch coke report b er p afterward g Owen be seize of the  manor of Congresbury purchase the say rend of per annum by which it be extinct  and afterward g Owen die seize of the say manor and it descend to Richard his  son in fee who by his will in write devise it to diverse person for payment of  his debt and die his heir of full age and although the say rend be extinct  between the party yet it be say that in consideration of law it be in be as to  the king for the benefit of his tenure as in ass there the king be seize of  the honour of a Pickering and grant the bailiwick thereof in fee render rend  and afterward grant the honour over to another and afterward the baily forfeit  his office of bailiwick whereof the patentee take advantage whereby it be  utter void but as to the king for the preservation of the rend it have  continuance two h b a mesnalty descend to the tenant paravail and although it  be extinct yet the lord paramount shall have the ware e c title asset a rend  extinct shall be asset b e mortmain ass d f n b a rend extinct by release to a  abbot be mortmain yet it be resolve and so decree that the devise be good for  all the land in respect of this word have for Richard Owen be not a person  have the rend at the time of the make of his will but he be a person have the  manor and therefore be may devise it and forasmuch as it be hold in socage the  devise be good in toto and that be the reason of the Lord dyer in bret case  blow e Com that the devise there in the principal case be not good because the  devisor have not the land at the time of the devise and ground his reason on  this word have and Wray chief justice in his argument which be the last  argument that ever he make hold that this word have import that the devisor  ought to have the land either at the time of the make of his will or at the  publication thereof c which amount in law to a make and that the statute of h  which be but a act of f explanation of the Act of h shall not be construe by  any strain sense against the letter of the Act for if any exposition shall be  make against the direct letter of the exposition make by parliament there will  be no end of expound d and therefore be say he have not see any case adjudge  that the Act of have be interpret against the g letter by other construction  than the maker of the Act have make and therefore he say that if a man h have  land hold in capite of the yearly value of and land in socage of the yearly  value of coke Report31b that he may devise all the land hold in capite for  that be within the express word of the Act and therefore be deny the opinion  of the justice of the common plea conceive ex improviso in Elizabeth a dyer  note reader the reason of such opinion as I conceive be because if the devise  shall be good for all the land hold in capite the king as it seem prima fancy  will in such case have neither wardship nor primer seize because the heir have  not any a ass   a more Br incident Br patent b h a   a Br descent Br guard c  Ed asset   light b b that a rend extinct can be devise and ED d f n b I   a e  blow b Rep Q a c Com dig devise m c as to publication of will see post p b n e  ED f Ch b cro car b see n d infra d Acc and Jon wing vin Abr statute e pl and  see n f infra but where a statute in explanation be doubtful such exposition  shall be make as will stand with the scope and intention of the Act and be  reasonable see Jon and it be say that explanatory statute be always interpret  beneficial post   see further as to the construction of explanatory statute  and cro car pl Jon win roll Rep Carth case of the parish of Burclear v  EastWoodhay poor Sett pl vin Abr statute e pl ED g post b   a h die pl keb  stat car c ante I p b n p a dyer pl keb stat car c ante I p b n p coke report  b er p land hold in capite whereof he can sue livery for only the land in  socage descend to he and therefore the judge there say that if the devise  shall be good for all the land hold in capite the statute of pound h will be  frustrate and defraud but as I conceive the opinion of b Wray chief justice be  good law for although the devise be good for all the land hold in capite yet  the queen shall have wardship or primer seize as the case require by force of  the save of the say act for if in such case the tenant by act execute have  convey all the land hold in capite to the use of his wife or for the  preferment of any of his child or for payment of his debt in this case the  heir shall sue livery for one acre of land hold in capite and yet none of the  land hold in capite descend to the heir and so it be resolve and decree in the  court of ware in c calthrops case Elizabeth and he say that two thing be  requisite to the perfection of a will by which land shall pass that be to say  d the write el and that be beginning and b   a c Swinb d   a   a Plowd b jenk  cent Allen e and by the statute of fraud car c all devise of real estate by  force of the statute of will must not only be in write but also sign by the  testator or by some person for he in his presence and by his direction and  attest and subscribe in his presence by three witness and by S the same form  be require as well in devise by custom as in those of estate pur autre vie in  consequence of this statute it be essential to the validity of a devise saint  that it be reduce into write before the death of the testator but it be not  material on what matter or in what language or character it be write so that  the meaning be sufficient apparent master v master I p wms and the will may be  write at several time and on different sheet of paper unconnected with each  other though this be not the proper mode post b I show d that it be sign by  the party himself or by some other in his presence and by his express  direction seal be not necessary to a will nor sufficient without sign wright v  Wakeford Ves if however the testator name be write by himself on any part of  the will either at the beginning or the end it will be a sufficient sign  within the statute Lemayne v Stanley lev Grayson v Atkinson ves Morrison v  turnour ves but the want of sign all the sheet of the will can be supply so  that if a testator sign the two first sheet of his will and be incapable of  sign the other from illness it can take effect right v price dougl but a  declaration of a testator before witness that a paper be his will be hold  equivalent to sign it before they Ellis v smith Ves jun Westbeech v Kennedy  Ves b rd that it be attest by three witness in the presence of the testator  where the testator own his handwriting before the witness it be sufficient  though they do not see he sign his name Stonehouse v Evelyn p wms Grayson v  Atkinson ves Ellis v smith sup Westbeech v Kennedy sup and a attestation by  the witness set their mark to the will be good within the statute Harrison v  Harrison Ves d it be former hold that will and codicil must be separate attest  by three witness for the attestation of two witness to a will and of a three  witness to a codicil thereto be not sufficient lea v Libb Rep tempt holt nor  can the attestation of a codicil annex to a will operate in any case as the  attestation of that will attorneygeneral v barn pale yellow Rep Pimphrase v  Lansdown cit Com Rep but in de bath v Fingall Ves it be hold that where a  codicil be write on the same sheet of paper with a will the attestation of the  codicil by three witness establish the will though such will be not duly  attest and where a unattested paper be clear refer to in a devise of real  estate it be consider part of the will if make previous though not if  subsequent Habergham v Vincent Ves j burr Wilkinson v Adam Ves and b and if it  appear that a will consist of several part make at different time and separate  sign by the testator be intend to constitute but one will a attestation of the  last part by three witness will be sufficient Carlton v griffin burr the  witness must see the whole will though the presumption be that all the sheet  on which a will be write be in the room where coke report b er p the death of  the devisor that be Finis well consummation he say that the beginning ought to  be plenum et a finishing or otherwise it be worth nought and therefore if the  witness attest unless the contrary be prove Mod bind v Leawell burr Bl Rep  Acherley v Vernon Com Rep and the witness must attest in the presence of the  testator Broderick v Broderick p wms and see Lord Rancliff v Parkins dow if  however there be a possibility of the testator see they attest it will be  sufficient unless the contrary be prove shire v Glascock salk Lord raym  Langford v Eyre I p wms casson v dade bro c c but where the attest witness  retire from the room where the testator have sign and subscribe their name in  a adjoin room and the jury find that from one part of the testator room a  person by incline himself forward with his head out at the door may have see  the witness but that the testator be not in such a situation in the room that  be may by so incline have see they it be hold that the will be not duly attest  do d wright v manifold maul and S the attestation shall record not mere that  the testator sign in the presence of the witness but that the latter also sign  in the testator presence both must equal be prove but if prove it seem the not  sufficient record it on the instrument will not vitiate Lord Rancliffe v  parkins above and see hand v James Com Rep will cross v paulet stram neither  be it requisite that they shall all attest at the same time anon Ch Rep cook v  parson Prec Ch Jones v lake atk n ves Westbeech v Kennedy Ves and b all person  capable of be witness in any other manner may also be witness to a will and by  stat Geo c devisees and legatee under a will be competent witness thereto the  devise so far as concern they or any claim under they be declare void and it  have be determine that a will be well attest though one of the subscribe  witness be executor in trust under the will Phipps v pitcher mad Rep SC taunt  Bettison v Bromley Bart east and by the same statute creditor may also be  witness to will charge with the payment of debt the credit of all such witness  be leave to the consideration of the court and jury where one of the witness  to a will have become insane it be hold that his handwriting may be prove as  he be to be consider as dead Bennett v tailor Ves jun n S that this statute  extend to will of personal estate lees v Summers Ves publication be also  necessary to a will that be the testator must do some act from which it can be  conclude that be intend the instrument to operate as his will atk but the word  sign and publish by the say a b as and for his last will and testament amount  to a publication and the delivery of a will as a deed have be hold sufficient  peak v Ougby Com Rep trim v Jackson burn ecclesiastical l with respect to what  devise be within the statute of Fraudsit be hold that will charge land as  where a testator create a term for year or give a suit of money out of land be  within the Act see atk ves except that where a will duly execute contain a  general charge on land in aid of the personal estate it will extend to legacy  give by a subsequent will or codicil not duly attest brudenell v Boughton at  burr Fearn Op Habergham v Vincent and Stansfield Ves jun Ves Wilkinson v Adam  Ves and b but the produce of the sale of a real estate can be direct dispose  of by a unattested paper S c nor can a person empower himself to give or  charge land by a will not duly attest smart v prujean Ves rise v Cunninqhame  Ves the statute extend to will of trust estate see Wagstaff v Wagstaff p wms  atk and to mortgage and equity of redemption Cru dig and Edward and will make  in a foreign country of land in England must be execute in the same manner as  if make in England coppin v coppin p wms will of customary freehold where  there be not a custom of surrender they to the use of a will must be execute  accord to the statute of fraud Hussey v grill but a will to direct the use of  a surrender of a copyhold or of a customary estate pass by surrender be not  within the statute and need not be coke report a er p one command another to  make his will and thereby to devise W acre to I S and his heir and b acre to I  n and his heir and he write the devise to I S in the life of the devisor and  before the other be write the devisor die yet it be a good will to I S f but  if he command one to make his will and to devise W acre to I S and his heir  upon condition and he write the devise to I S and his heir and before be write  the condition the devisor die this devise be void for in the one case the  devise be several and distinct and in such case the devise to I S be full and  perfect but in the latter case the devise be not full but maim and imperfect  for the whole devise as to I S be not full put in write and so beginning in  such case non to be full so it be resolve in the case at bar that neither the  beginning nor the end of the will be full or perfect for at the time of the  write of it and at the time of the death of the devisor he have not power in  respect of the joint estate g in Hinton to dispose of the manor of thobi coke  Report32a which amount to the value of two part of the whole a et all things  will death complete be and because by the death of the devisor Hinton survive  to the wife part of thobi present by the death of the devisor descend to the  heir and as the devise in this case take effect by the death of the devisor so  it shall continue the second reason out of the first branch be on the word  sole for the sign unless such signature be require by the term of the  surrender to the use of the will do d cook v Danvers east p wms caryi v askew  p wms l Tuffnell v page atk neither do the statute extend to will of term for  year already create unless they be attendant upon the inheritance Whitchurch v  Whitchurch p wms and see atk the execution of a will of land may be prove per  testes in chancery though this be not necessary to the validity of a title see  Colton v Wilson p wms Fearn Op as to the revocation of will see post p n f ib  ED skin Swinb part S wood Conv Fonbl Tr Eq sheep touch pow Dev f but at this  day the devise in the case propose will be void for not be execute accord to  the statute of fraud see the last note but it ha be determine that a paper of  instruction for a new will unattested will pass copyhold which have be  surrender for a copyhold estate be not within the that section of this statute  so as to require to a devise of it the signature of the party or the  attestation of witness nor be it within the that section as a declaration of  trust require to be prove by a write sign by the party which apply only to  case where the legal and equitable estate be separate or by a will in write  which must be understand only of such a will of land as the statute recognize  videlicet a will attest by three or four witness do d cook v Danvers east cite  in the last note and see Carew v askew bro c c with respect to personalty a  paper fair write complete as to disposition and evident intend to operate as a  will have be pronounce valid although neither subscribe nor execute nor  appoint a executor read v Phillips Phill and see bury v bury prer Campbell v  Campbell prer Wingrave v rye prer Simpson and another v temple prer hoar v hay  prer wood v wood l Phill Huntington v Huntington Phill ED burr Com dig devise  d sheep touch pow Dev g as the explanatory act of h only enable coparceners  and tenant in common to devise it do implicit exclude jointtenants where the  right of survivorship take place of the title under the will see Inst sect a I  wood and as the law only consider what estate the devisor have at the time of  make his will without regard to any subsequent event ante p b Poph it be hold  that a devise by a jointtenant be void notwithstanding a subsequent severance  of the jointtenancy by a partition unless there be a republication of it after  the partition swift v Robert burr Bl Rep Bac Abr legacy a ED a ante b post a    b   a sheep touch Cru dig coke report b er p testator ought to have a sole  estate as well in the land which he leaves to descend to the heir as in the  land which he devise but in the case at bar the devisor neither at the time of  the make of his will nor at the time of his death have any sole estate in the  manor of Hinton which he do intend shall descend to his heir but he have a  jointestate in tail with his wife and the wife have not any power to disagree  during the coverture but her time of disagreement come after the death of her  husband as it be hold Elizabeth dyer b so that without question the devisor  have not a sole estate in the manor of Hinton neither at the time of make of  his will nor at the time of his death and therefore the devisor have power by  the Act to devise but two part of the residue that be to say whereof he be  sole seize either at the time of the make of his will or at least of his death  the three reason on the first branch be upon these word shall have full and  free liberty power and authority by will to devise or dispose of two part of  the say manor by which word it appear that the intent of the maker of the Act  be to give liberty and authority to the party who peradventure have not time  to make disposition by act execute in his life to devise it by his will but  without question that which he c can dispose of by any act in his life shall  not be take for any of his manor c whereof he may devise two part by authority  give he by this statute but here in our case the devisor by reason of his  undivided estate with his wife can make any disposition of the manor of Hinton  but only during the coverture the four reason on the first branch on  consideration of both statute the devisor have liberty to devise two part of  the clear yearly value and the three part of the clear yearly value be save to  the king c in which it be note that the word as to two part and as to the  three part be all one as to the clear yearly value so that it appear full by  the letter and intention of the Act that the king shall have whole and equal  benefit for his three part as the devisee shall have for his two part yea the  statute add more special word for the value of the three part than for the two  part for he coke Report32b shall have the clear yearly value of the three part  without any diminution c or subtraction of the three part of the full c profit  thereof as the word of h be but in our case the king will not have equal  benefit yea the king will be in a worse case for the devisee will have his two  part absolute and the king will have but a possibility for his three part and  that will depend upon the will of the wife who will and pleasure be not  restrain to any time so that against the express letter and intent of the act  and against all reason the devisee will have two part present of the clear  yearly value and the king will not have the possession of Hinton but will have  a possibility to have it if the wife will disagree and that will be a  injurious and unequal construction for Cato say a Self etenin law to long for  ut jure to keep straight and this very statute have be so construe that equity  and equality shall be observe and inequality avoid h title testament Br if b a  man hold three manor of three several lord by knight service he can devise two  manor leave the three for that will not be equal to the two other lord but two  part of each manor and on these word clear yearly value it be say that of  inheritance which be not of any annual value some be devisable and some be not  devisable within this statute and therefore if the queen grant to one of his  heir c good et catalla felon et fugitivor or utlagatorum fine amerciamenta c  within such a town or manor in this case he can devise they to another nor  leave they to descend for a three part because they be not of any annual value  and therefore the say statute do not extend to they but if a man be seize of a  manor to which a leet or waif and stray or any b dyer pl   light b Leon c   b  Cru dig a   b   a   a   b   light a a b b b b   b   b   a Bulst Br n c stat  Charles c ante I p b n p c   a   light III a sheep touch sheep touch vin Abr  coke report a er p other hereditament which be not of any annual value be  appendant or appurtenant there by the devise of the manor with the  appurtenance these shall pass as incident to the manor for inasmuch as the  statute enable he by express word to devise the manor by consequence it enable  he to devise the manor with all incident and appurtenance to it and it be  never the intent or meaning of the parliament that when the devisor have power  to devise the principal that he shall not have power to devise that which be  incident and appendant to it or that the manor c shall be dismember and  fraction make of thing which by lawful prescription have be unite and annex  together and it be say that all this be resolve by Anderson chief justice of  the common plea and periam then one of the justice of the same court on a  conference have with diverse other justice pasch Elizabeth in baker case  concern coke Report33a diverse franchise and liberty within the manor of  Canford which report be make to the lord of the Council in the say term after  dinner in the starchamber and with their resolution agree the opinion of a  Prisot in h in the like case it be enact by the statute of b I h cap h that  those who ask of the king land or tenement office c make express mention of  the value of they but Prisot there hold that if the office be of a certain  value there he ought to make mention of the value but if it be of a casual  thing there he need not as if the king grant I a market I need not set the  value thereof because it be not yearly certain so when the law require that  the value be mention it be to be intend of a thing which be of a certain  yearly value but if a man have a hundred with the good of felon outlaw fine  amercement return of writ and such like casual hereditament within the hundred  and such hundred with the say casual hereditament have be accustomable let to  farm for a yearly rend then it may be devise within the purview of the say act  I because the uncertainty have be reduce to a annual value accord a h a   a b    a   light a rastal patent h as to the provision of this statute and the  construction of the king S grant in general see ante I p a n r ED ffl   a  sheep touch vin Abr devise I pl I with respect to what may be devise the word  of the statute be manor land tenement rend or other hereditament in possession  reversion or remainder which embrace every species of real property whether  corporeal or incorporeal and the statute extend not only to estate in  feesimple but to conditional and base fee Bulst though it do not authorize a  devise of estate pur autre vie gawen v ramles cro Elizabeth but this defect be  now supply by the Charles c which make they devisable in the same manner as  estate in feesimple chattel real or term for year be consider as personal  estate may always have be dispose of by testament except that a term which a  person have as executor be not revisable Bransby v Grantham Plowd and whenever  a term for year be devise the consent of the executor be necessary to complete  the title of the devisee Wentw c and post   b though we have see it be  otherwise on a devise of land ante I p b n oh as use be devisable before the  statute of use so trust estate which be but use not execute by the statute be  now devisable see Fearn Ch can vern atk Cox p W so where a person who have  contract for land by which he acquire a equitable interest in they devise the  estate and die such devise will be hold good in equity see Davy v Beadsham I  Ch can Prideaux v Gibbon Ch can Allen v Allen mose milner v mill mose potter v  potter ves Gibson v Lord Montfort ves Foley v Percival bro c c Holmes v Barker  mad and the circumstance of a day subsequent to the date of the will be agree  on for the execution of such contract will not vary the case Greenhill v  Greenhill Prec Ch but express article or a agreement bind within the statute  of fraud must have be enter into before the make of the will Langford v Pitt p  wms potter v potter ves Capel v girdler Ves and they must be such as a court  of equity will have enforce in specie potter v potter sup and it have be  determine that a devisee or heir entitle to the benefit of a contract coke  report b er p to the purview of the say act on which difference it be conclude  that the three part of the clear yearly value ought to be leave to the heir  and not any thing which depend on a uncertainty for if the franchise to have  the good and chattel of felon or person outlaw which be never demise for a  certain rend be leave to the heir for his three part in that the statute be  not pursue and yet it may be they a happen every year a strong in the case at  bar as to the manor of Hinton it depend on a uncertainty for it may be the  wife will refuse and it may be she will not refuse and no time be limit when  she shall refuse and therefore the statute be not pursue by reason of the  uncertainty also it be say that if a man be seize of three acre each of the  yearly value of d and he devise a rend of S out of all the three acre this  devise be void for the whole and shall not be good for two part because he  have not pursue the statute of h by which it be enact that he may devise any  rend common or other profit out of the same two part videlicet of his manor  land tenement and hereditament or out of any part thereof as much thereof as  shall amount to the clear yearly value of two part thereof so when he devise a  rend out of the hole he do not pursue the power and authority which the  statute prescribe but in such case if he devise a rend of S which be to the  value of the whole out of two part it be good for in this branch the value  extend to the land and not to the rend for the word be any rend king without  any restraint and it coke Report33b be observe on the statute of h that if a  man have devise all his land it have be good for a three part as it be adjudge  in a Hunton and hide case dyer because the land be severable and may be divide  either by the devisor during his life or by commission after his death but a  rend devise out of land be a entire thing and power to devise it be give only  by the statute of h for the Act of h do not extend to it and therefore when  the statute enable he to devise a rend out of two part if he devise it out of  the whole he do not pursue the statute and so it be conclude on the first  branch that the devisor in the case at bar at the for purchase of a estate the  title prove defective have no claim upon the personal estate either to have  the purchase money or another estate purchase or the purchase complete  notwithstanding the defect broom v monk Ves the power of devise under this  statute also extend to mortgage after the condition be break but not before  see anon Ch can how v Viqueres Ch Rep equity of redemption Philips v Hele Ch  Rep advowson or the next or any number of presentation clear v peacock cro  Elizabeth law v Episc Lincoln Bl Rep Pinchin v Harris cro James I tithe  impropriate in the hand of layman Cru dig franchise sup rend infra and n king  I and to all contingent estate and interest in land ante I p III b n a Fearn  Selwin v Selwin Bl Rep burr more v Hawkins I h Bl roe v Jones I h Bl t r but a  mere possibility not couple with a interest be not devisable ante I p III b n  a and case there cite and see very v Phillips Ves jun Jones v very t r nor can  a right of entry be devise Goodright v forester east taunt ED t hob   light    a stat Charles c ante I p b n p   a a king a rend charge be devisable by the  word of this statute but it be former doubt whether a rend charge in be issue  out of gavelkind land and have commence within time of memory be within the  custom of devise and it be not settle to be so till the time of Lord hale see  Randall v Jenkins Mod rob gay Inst three a I as to rentservice it of course  follow the nature of the reversion or seignory to which it be incident nor be  there any doubt as to the custom extend to other rend if they have exist  immemorially Id ib a rend grant pur autre vie be devisable by the statute of  fraud Charles c S ED a n Benl pl   a dyer pl Leon Leon and jenk cent vin Abr  devise I pl coke report a er p time of the make his will be not a person have  and have sole estate and who have power and authority to dispose two part of  the same land of clear yearly value and that the king c shall have the three  part of the clear yearly value without any diminution c but as to the manor of  Hinton he be joint seize with his wife as be before say their reason on the  second branch be that the devisor by any thing in his life can not assign the  manor of Hinton for the three part nor can it after his death by commission be  assign for the three part for during all the coverture the wife be joint seize  with he and after his death it survive to his wife and the word of the Act be  the same division to be set out by the devisor or owner c and in default  thereof by commission in which branch this word owner be also to be observe  which be add to show that every devisor ought to be owner and he who shall  make any division of the three part c ought to be owner which he be not in our  case of the manor of Hinton and therefore he can assign it to the king for his  three part their reason upon the three and four branch be on this word  immediate which for the enforce of the intent of the maker of the Act be twice  insert and by the word of the three branch it be enact that the three part  ought in two several clause immediate to descend after the death of the  devisor or owner immediate be as much as to say without any mean time but in  our case the manor of Hinton survive to the wife a f till disagreement nothing  thereof do descend c ergo it do not descend immediate and herein the judgement  of the law on this will and of the estate of these manor and land after the  death of the devisor and before the disagreement be to be consider and without  question in the mean time the manor of Hinton survive to the wife and  therefore of necessity in the mean time a part of the manor of thobi shall  descend for if before this disagreement a office have be find of all this  matter without question the queen will have have part of the manor of thobi c  coke Report34a then forasmuch as every devise ought to take effect by the  death of the devisor l as it be hold in h and many other book because a all  things will death complete be for this cause the devise be void at the time of  the death for part of thobi and lawful vest in the heir by descent it can be  make good and divest out of the heir by the subsequent disagreement of the  wife but this word immediate make it clear for add it to the word precedent  videlicet that the king shall have a three part of the clear yearly value  immediate after the death of the devisor or owner all these word and principal  this word immediate direct prove that the king ought to have the three part  present by the death and shall not stay or expect on any uncertainty as in our  case he shall do if he shall expect it on the refusal of the wife for  peradventure she will not refuse in a year peradventure two year c Littleton  say if a woman b disseizoress take a husband and have issue and die and  afterward the tenant by the courtesy die this die seize shall not toll a entry  for the issue come not to his land immediate after the death of his mother m  and it be agree that if a man be seize of three acre by knight service in  capite and make a lease of one acre for life and afterward devise the other  two acre and die and afterward tenant for life die yet the devise be void for  the three part of the two acre because the three acre do not descend immediate  after the l but on a devise of land to I S for five year to commence at the  next Michaelmas after the death of the testator remainder to c and his heir  the remainder be good as a executory devise though the testator die before the  Michaelmas follow pay case cro Elizabeth as to executory devise in general see  man case post   Lampets case   and the note there ante I p b n king Inst two  ED a ante b a   b   a b   light b   light sect h m Acc carter v Tash salk ED  saint Charles c ante I p b n p vin Abr descent I pl coke report b er p death  of the devisor to the heir as the statute say that be to say by descent  immediate after the death of the devisor in Elizabeth dyer the earl of c  arundel case where a gift in tail be make on condition that if the donee or  his issue aliquan remember to make c quo minus predict manner a saying  beforehand comit et heir nest c immediate see revertor  to withhold c in that  case they hold clear that if the donee do any act by which when he die without  issue the donor shall be put to suit or to entry so that the manor do not  immediate revert hoc be without any mean time c that the donor may reenter and  as to the case in e that be affirm for good law when a d man be to do a act  immediate after a award in that case inasmuch as the party be bind to do a act  of necessity he ought to have such time for the do thereof as the do of the  act require and therefore there of necessity there ought to be a mean time  between the award and the performance of the act but here in the case at bar  immediate by the death of the devisor land without any mean time may descend  and that be the intent ofthe maker of the Act for as the devisee shall have  the two part e immediate so the heir shall have coke Report34b his three part  immediate e and e it appear that he who S immediate heir exclude all mean heir  the same law of a immediate tenant and against the opinion of a Wray Ch  justice it be afterward object in the exchequer Chamber that the statute of h  have be construe by equity against the letter of it and to that purpose a case  Trin Elizabeth in the common plea rot between b I have and Stacie be cite the  effect of which case be that a man seize of land part hold in capite and part  III socage make a feoff of the land hold in capite to the use of himself and  his wife for life with diverse remainder over and afterward the say land in  capite be full two part devise the socage land it be adjudge that the devise  be void and yet it be say it be against the letter of the Act to which it be  answer and resolve that the reason of the say case be because it appear by the  word of the say Act that the statute give authority to one to make disposition  either by act execute or by his will of two part so that if he have execute  his authority by act execute of two part to the use of his wife be have no c  authority by the statute to make any devise of the three part for by the  conveyance in his life he have execute his power and authority which the  statute give he and therefore be can make any devise of the residue which be  apply to prove that he ought to pursue the authority which the statute give he  c another case be cite out of a read that the king grant certain laud to one  and his heir d during the life of the grantee by knight service in capite and  after his death in socage in that case he may devise all that land and yet it  be say it be against the letter of the say Act for at the time of the make of  his will and day of his death he hold by knight service which case be agree to  be good law for although the statute speak at the beginning general of land  hold by knight service yet there be a save of ware c to the lord so that it  appear full by the letter of the Act that there ought to be such a tenure by  knight service whereby the lord shall have ware c or otherwise it be not any  tenure within the Act but in the say case the lord be not to have any wardship  because the tenure determine by his death and the reason of wardship fail sure  that a e infant within age can do knight service as Littleton say fol a so e  turning if land be to hold in socage during his life and after his death by  knight service c   a a dyer pl   jenk cent d ante b e b Br arbitrement e    Litt III b a ante a b   Ent nu Brownl and more Leon c Cr Elizabeth Cr James  more   a   light III b sheep touch d b e light sect   light b b   b a Inst Cr  James e a coke report a er p there shall not be any wardship because the  tenure by knight service begin in the son and the father during his life hold  in socage and another case be cite out of a read also sure coke Report35a a  man a seize of land hold in capite and of other land hold in socage devise the  land in socage of land hold in capite and afterward alien n the land hold in  capite good fide this devise be good for all the land hold in socage which  case be also agree for good law for all the land in socage when no title of  the wardship c do accrue to the lord in respect of other land and it be object  that if the statute of h shall not be take by equity then the statute may be  easy defraud for if a man hold one acre of land by knight service in capite  and acre in socage and be seize of the acre hold in chief and then make his  will of all the land hold in socage and die ill that case accord to the letter  of the Act the devise will be good for all the land in socage and thereupon  they do infer you these word every person have a sole estate in feesimple c  hold by knight chief and in that case he have not any land hold in chief  either at the time of the make of his will or at the time of his death but  only a right to the land and so out of the letter of the Act of which he can  not make any disposition or devise oh and yet if that case shall not be take  by equity the whole Act will be to little or no purpose to which it be answer  that the say case be within the letter of the say Act for the b disseizee in  the judgement of law have the land to many purpose p for first he have the  land to forfeit and therefore if he be attaint of treason or felony be shall  forfeit the land Q and if he die without heir the land shall escheat to the  lord r h a h a h a h rd the disseizee shall compel the lord to c avow on he as  his very tenant S light release b and Littleton there say that the disseizee  be tenant in law that if he die his heir within age the lord shall have the  wardship and the lord shall have a writ of right of ware and the writ shall  say earth that to hold and therewith agree f n b in writ of escheat d and e  light Chap release a b e guard and so in judgement in law the disseizee have  the land hold in capite so that be can devise all his socage land and as to  the case in Phil mark dyer that if land in f London or land which be a   a    light b sheep touch n so if the capite land have be recover from he by title  paramount Inst b two ED oh that a disseizee have not any devisable interest  Goodright v forester east taunt p will I nor be the right of entry of a  disseizee asset till the seize be restore post   ED sheep touch Fitzherbert  escheat guard Br traverse Br Entre congeable p as to the different interest of  the seize and disseizee while the seize continue in force see ante   b and the  book there cite ED Q unless the land be in the possession of a tenant hold  under a lawful title ante   p and will f ib Inst hawk b c S Bac Abr forfeiture  a Com dig forfeiture b ED r for the lord be not oblige to accept his service  from the seize but may still treat the disseizee as his tenant and consequent  may claim the benefit of a escheat on the death of the disseizee without heir  Inst two but after the lord have once accept the seize for his tenant the  privity cease between the lord and the disseizee and the lord be bar of his  escheat on the death of the disseizee without heir during the seize Id ib and  see ante p I and the book cite in will d ib ED c ante b   light co light sect    a S see Inst sect a two and the note ib pale yellow tell ED d f n b c e  light sect   light a f   b die pl Dall in kelw b a Dall in ash coke report b  er p devisable by custom be hold in capite yet the whole be devise to that it  be answer that be not by force of the statute but because the land be  devisable by custom before the statute and the statute be in the affirmative  and do not g take away any custom but it be agree that in the say case the  save in the Act give in such case the three part to the king for wardship c  and yet the heir shall be bar by the custom t coke Report35b and after the  case have be argue twentyone time several sure pasch Elizabeth judgement be  give accord to the say resolution against the plaintiff you have good reader  many notable rule and case of relation put in this case whereby you will the  better understand your book which treat of relation to which I will add one  case now late sure Trin Elizabeth adjudge in the common plea in a ejection  strong between a Jennings and brag where on a special verdict find the case be  short thus a disseizee make a indenture purport a lease for year and deliver  it to a stranger off of the land as a escroll and command he to enter on the  land and to deliver it on the land as his deed to the lessee which he do  accord it be adjudge it be a good lease u and in that case saint this  difference be agree when the person at the first delivery have not power or  ability in law to make the lease and contract and before the second delivery  he attain to it there the lease or contract be void but when the person at the  first delivery have power and ability in law to contract but can perfect it  till a impediment be remove there if the impediment be remove before the  second delivery the contract be good as if at the time of the first delivery  the lessor be a infant or feme b covert and at the time of his second delivery  be be of full age or sole in both these case the deed shall not bind W for at  the time of the first delivery he be pl Dall pl Styl more Dall pl   light two  I b and Benl in kelw Benl in ash n be pl   Litt ill b a Ro m Cru dig t Acc  Matthew mean case post   side the Charles c require the same solemnities of  write sign and attestation to a devise by custom as to one under the statute  of will ante p b n e that a infant of the age of fourteen or a feme covert may  be enable to devise by custom though neither of they be capable of devise  under the statute h Perk S and Inst three b two as to devise by custom in  general see post   Inst three b two and n ib side Com dig devise a ED a Cr  Elizabeth   light b lane Bulst palm Bridgm Ro Acc sheep touch wood Conv Cru  dig vin Abr estate f pl faits X pl relation d pl Com dig faits b contra press  ab u but if a disseizee make a lease be out of possession and deliver it as  his deed not as a escrow to be afterward deliver as his deed as in the cite  case it can be a good lease by a new delivery after the possession recover  Inst b two so if a deed of confirmation of the estate of the lessee be deliver  before a lease execute it will not be render effectual by a delivery de to  make new after a lease make Com dig fait b and see n W infra ED sheep touch  Cru dig vin Abr faits n pl Com dig fait b b cro car Cr James Leon Yelv I Benl  Cr car sand sheep touch wood Conv vin Abr faits n pl Com dig fait b W with  regard to the redelivery of deed the true distinction appear to be this t if  the first delivery have any effect the second will be void otherwise if the  first be void thus if a infant or a person under duress of imprisonment seal  and deliver a bind in which case the deed S not void but only voidable and  after the infant be of full age or the person who be under duress be at large  do deliver the deed again such second delivery be void but where a feme covert  seal and deliver a deed and after her husband death deliver it again the  second delivery be good because the first be void sheep touch Goodright v  straphan Cowp coke report a er p not a person who have ability in law to make  a contract but in the case at bar the lessor be able to make a contract as  well in respect of his person as of his right and interest in the land but be  hinder only by the seize which be remove before the second delivery the lease  be good and it be resolve that to some intent the second delivery have c  relation to the first delivery and to some not and yet in truth the second  delivery have all its n execution and consummation force by the first delivery  and the second be but a of the first and therefore in case of necessity et ut  res to greater extent to be strong how to pass away it shall have relation by  fiction to be his deed ab beginning by force of the first delivery and  therefore if at the time of the first delivery the lessor be a feme sole and  before the second delivery she take husband or if before the second delivery  she die d in that case if the second delivery shall not have relation to this  intent to make it the deed of the lessor ab beginning but only from the second  delivery the deed in both case will be e void and therefore in such case for  necessity and ut res to greater extent to be strong to this intent by fiction  of law it shall be a deed ab beginning and yet in truth it be coke Report36a  not his deed till the second delivery X but in the case at bar if it shall  have relation by fiction of law a to the first delivery then that will avoid  the lease for then it will be make b one who be out of possession and as one  say b fashioning law inique service some damnum well in an unjust manner and  therefore to this intent it shall not have relation but accord to the truth to  be a deed from the time of the second delivery ut res to greater extent to be  strong how to pass away and hereby it appear that the reason of the law that  to some intent the second delivery shall have relation and to other intent no  relation be all one sure for necessity and ut res to greater extent to be  strong how to pass away rd it be resolve that as to c collateral act there  shall be no relation at all for if the obligee do release before the second  delivery such release be void vide h and h a note reader that if in the case  of the infant after the second delivery full age shall make the deed good then  it will be in the power of he to who it be deliver to make it bind or not at  his pleasure for if he will deliver it during the minority it will not bind  and if he shall deliver it after full age it shout bind which will be  inconvenient that he who to this purpose be but a servant shall have d to tie  et non to tie power Com dig fait where however a person who have not capacity  to make a deed deliver it as a escrow to be afterward deliver as his deed a  delivery de to make new when he have attain a capacity will not make it good  for this relate to the first deed infra cro Elizabeth roll Abr Com dig fait b  ED vin Abr faits n pl Com dig fait b c dyer pl Cr Elizabeth sheep touch Edward  press wood Conv cro James vin Abr faits n pl relation d pl I Com dig fait b  Com dig fait b d Styl e b sheep touch Edward press wood Conv n vin Abr estate  b b pl faits n pl e Cr el wood Conv n Cru dig vin Abr faits n pl X so it be of  a deed of feoff and letter of attorney therein to make livery by a man sound  memory which be deliver by the attorney when the feoff be non compos chin yet  it be good because it have relation to the authority before sheep touch n in  what case subsequent act shall bind by reason of their relation to precedent  one see vin Abr faits relation e Com dig bargain and sale b confirmation d ED  a Cr James wood Conv n vin Abr relation d pl b   light a roll Rep ante b   a  godb   vin Abr faits n pl c roll Perk sect Br relation Br non be factum  Gouldsb sheep touch Edward press wood Conv n vin Abr collateral a pl faits n  pl pl f salk d hard coke report b er p and touch e will whereof you have much  good matter in the say case of butler and baker you my advice to all who have  land be that you take care by the advice of learned counsel by act execute to  make assurance of your land accord to your true intent in full health and  memory to which assurance you may add such condition or proviso of revocation  as you please z for I find great doubt and controversy daily arise on devise  make by last will sometime in respect of tenor of land sometime by pretence of  revocation which may be make easy by word a also in respect of obscure and  insensible word and repugnant sentence the will be make in haste and some  pretend that the testator in respect of extreme pain be not compos chin b and  diverse other scruple and question be move upon will but if you please to  devise your land by will first make it by good advice in your perfect memory  andinform your counsel true of the estate and tenor of your land and by God  grace the resolution of the judge in this case will be a good direction to  learned counsel to make your will accord to law and thereby prevent question  and controversy and it be good if your will concern inheritance to make it  coke Report36b indent and to leave one part with a friend lest after your  death it be suppress e   Litt III b car cap Swinb you these rule be cite in  sheep touch and in wood Conv who add that if the will concern land in  Middlesex or Yorkshire care must be take that it be register in due time as to  the registry act ante p a n p ED z as to power of revocation in general see I  p n S and the book there cite ED a but see infra f b idiot and person of  nonsane memory be express disable from devise by the statute of will but the  proof of idiocy or nonsane memory lie on the other side for every person who  make a will be presume to be of sound understanding until the contrary be  prove Cru dig where however previous insanity be prove the burden lie on those  who set up the will to adduce most satisfactory proof of sanity at the time  the act be do the best evidence as to that arise from the act itself nor will  the court depend upon the opinion of the witness but upon the fact to which  they depose if it can be prove that it be a rational and sensible act rational  do the whole case be prove but there must be a complete and absolute proof  that the party who have so form the intention do it without any assistance a  mere acquiescence in the suggestion of other or formal execution only of a  instrument previous write be not sufficient Cartwright v Cartwright Phill and  see Swinb p S attorney general v Parnther bro c c clarke v Lear prer Coghlan v  Coghlan cit I Phill infant also unless by special custom Perk S be disable  from devise though a infant may devise the guardianship of his child by army  of the statute Charles see bedell v constable Vaugh so marry woman unless by  special custom be disable from devise their land but a woman who husband be  banish or have abjure the realm may devise Portland v Prodgers vern Inst a I  and the note ib and where a feme covert have a separate power over her estate  she may dispose of it by will wright v Englefield Ambl wright v Lord Cadogan  bro p c Ross v ewer atk Tappenden v Welsh Phill and see Fettiplace v gorge bro  c c Rolfe v budder bunb Rees v Rhodes bow v bow Richard v lea cit I Phill Inst  I n that the removal of disability do not establish a will unless it be  afterward republish Mod Hawe v Burton comb I salk but with the above exception  all person who have a power of dispose of their real estate by any conveyance  inter live may dispose of they by will as to devise by the king or queen  consort by virtue of the statute pound g c sacred scripture ante I p a n r as  to what person may be devisees see post     and the note there ED wood Conv  sheep touch coke report b er p rd at the time of the publication of the will  call credible witness to subscribe their name to it c that if it may be let  all the will be write with one and the same hand and in one and the same  parchment or paper d for fear of alteration addition or diminution that let  the band and seal of the devisor be set to it e that if it be in several part  let his band and seal be put and the name of the witness subscribe to each  part that if there be any interlining or rasure in the will let a memorandum  be make of it and sign by the testator that if you make any revocation of your  will or of any part of it make it by write by good advice for on a revocation  by word follow controversy some of the witness affirm it to be in one manner  some in another manner f c as to attestation and the other requisite to a  devise within the Charles c ante p b n e ED d ante p b n f e as to the seal of  will ante p b n e ED see the statute of fraud and perjury car c and W m c c  note to the former edition f and now by the statute of fraud car c S it be  enact that no devise in write of any land tenement or hereditament or any  clause thereof shall be revocable otherwise than by some other will or codicil  in write or other write declare the same or by burn cancel tear or obliterate  the same by the testator himself or in his presence or by his direction and  consent but all devise and bequest of land and tenement shall remain and  continue in force until the same be burn cancel tear or obliterate by the  testator or by his direction in manner aforesaid or unless the same be alter  by some other will or codicil in write or other write of the devisor sign in  the presence of three or four witness declare the same under this statute  there be three express mode of revoke a will saint by a subsequent will and a  codicil duly execute have the same effect in revoke a former devise as a  subsequent will atk ves Becket v Howden maul and S Rowley v Eyton mere duly  execute accord to the statute see Guttini v noble mere App revoke or  inconsistent with the former will and although the subsequent will be void  from the incapacity of the devisee itwill be a revocation if such appear to  have be the intention of the testator roll Abr roper v Batch t Mod but unless  the second will contain a clause of revocation of all former will or make some  disposition inconsistent with the former will it can operate as a revocation  thereof but both will be good coward v martial cro Elizabeth Hungerford v  Nosworthy hard hitch v Bassett Mod salk show p c Goodright v Harwood will Bl  Rep Cowp bro p c see also Carstairs v pottle Phill and where the content of a  subsequent will be unknown it be not a revocation Hungerford v Nosworthy sit  Hitchinq v Bassett sum p where there be two inconsistent will of the same date  and no subsequent act of the testator to explain they both be void Phipps v  anglesea bro p c ndly by a express declaration in write that the testator mean  to revoke his will which must be sign by he in the presence of three witness  Hilton v king lev and such declaration must be attest by three witness though  they need not subscribe in the presence of the testator I p wms but a second  will though contain a clause revoke all former will will not operate as a  revocation if it be not execute so as to operate as a devise Egglestone v  speak Mod show onion v tyrer I p wms vern it have however be determine that a  second unattested will or codicil revoke legacy giver by the first will hide v  hide I ab Eq brudenell v Boughton atk rdly by cancel tear or obliterate the  will but cancellation be a equivocal act and will not amount to a revocation  unless it appear that it be do mind cancelland Cowp hide v hide ab Eq onion v  tyrer l P Wms I Inst be made g more and another v more Phill and case cite in  hole ibidem and the coke report b er p will must be cancel by the testator or  by his direction for if a stranger tear it in piece it will not be thereby  revoke hanes v hains vern Trevelyan v Trevelyan Phill any act of a testator by  which he show his intention to cancel his will though it be not actual cancel  operate as a revocation bibb v Thomas Bl Rep but to effect a cancellation  within the statute the act of cancel by tear c must be complete do v perk barn  a a obliteration of part do not revoke the whole will but only pro tanto  Burkitt v Burkitt vern Sutton v Sutton Cowp Larkins v Larkins Bos and p short  v smith east where there be duplicate of a will and the testator cancel one  part it revoke the other vern p wms and see Richard v Humford Phill and  cancellation of a codicil be effectual notwithstanding a interlineation to the  same effect leave stand in the will Utterson v Utterson Ves beside these  express mode of revoke a will certain alteration in the situation of the  testator or in the estate devise will amount to imply revocation of a will  thus marriage and the birth of a child or of a posthumous child do v  Lancashire t r operate as a imply revocation of a will make during celibacy on  the presume change in the testator intention Christopher v Christopher Tr Eq b  p c burr sprag v stone dougl Ambl Holway v clarke Phill Emerson v boville  ibidem but if this presumption be rebut by other circumstance the rule will  not hold as where a by will provide a annuity for b with who he cohabit and  direct his trustee and executor out of his real estate in case he shall have  any child or child by b to raise to be pay to and among his say child and  devise the remainder of his estate over to several of his relation afterward  he marry b and have several child by her it be hold that such subsequent  marriage and birth do not revoke his will the object have be therein  contemplate and provide for Kenebel v scrafton east and see brown v Thompson I  ab Eq Brady v Cubitt dougl ex part Lord Ilchester Ves so where it be complete  establish that it be the testator intention that the will shall not be revoke  and that be do not believe the child bear in his lifetime to have be beget by  he the court pronounce for the will Thompson former myall v shepherd and  another cit Phill and it have be determine that neither of those circumstance  single as a subsequent marriage or the subsequent birth of a child will  operate as a imply revocation Jackson v hurlock Ambl Edward Rep and the case  cite in n a ib sheath v York Ves dud b do d white v Barford maul and S but it  seem that the birth of a child subsequent to the make of a will the effect of  which will leave the child whole destitute may if connect with other  circumstance be sufficient to raise a presumption of the testator intention to  revoke such will Johnston v Johnston Phill Rep and see well v Wilson cite ib  cod lib de revocation donation Fonb Eq d Edward marriage be a revocation of a  woman will force v Hembling post   do d Hodsden v staple t r but if she  survive her husband the will be revive and take effect as if she have never be  marry Hudson v Lloyd bro c c Plowd it be also a rule that whenever a person  who have devise a estate afterward make a alteration in it either by levy a  fine do v Dilmot n r Barker v Biscoe more suffer a common recovery dister v  dister lev Harwood v turner p wms parson v freeman atk Darley v Langworthy  Ambl will bro p c or by any other conveyance inconsistent with the precedent  devise or by which such estate become in any respect different from what it be  before such alienation will operate as a revocation of the prior devise bridge  v duchess of chandos Ves jun bro p c Goodtitle v Otway t r Ves bro p c do d  Dilnot v Dilnot n r do d lushington v bishop of Llandaff n r and a agreement  to convey revoke a devise in equity though not at law as well as a actual  conveyance Vawser v Jeffrey Ves cave v Holford Ves rider v wager p wms Cotter  v large p wms knoll v Alcock Ves Ves and in such case parole evidence be not  admissible to prove that the testator mean his will shall remain in force  Goodtitle v Otway Ves jun coke report b er p h Bl but a fraudulent conveyance  will not operate as a revocation haw v wall bro c c nor will a devise be  revoke by a alteration of the quality of the estate without vary the quantity  of the interest or the dispose power of the owner roll Abr pl hence the  acquisition of the legal estate alone Ambl atk William v Owen Ves jun ware v  more mad Rep unless the subsequent conveyance make a alteration in the quality  of the estate by subject to a previous estate with a view to bar dower or the  change of a trustee S C Watts v fullarton dougl parson v freeman atk donc v  pot dougl short d Gastrell v smith east or a partition though corroborate by a  fine Luther v Kirby vin p wms Risley v Baltinglass ld raym unless it extend to  other thing Tickner v Tickner cit atk will not operate as a revocation and  where the conveyance be but of part of the estate or a lease of the land  Hodgkinson v wood cro car vern unless make to the devisee himself coke v  bullock cro James or a mortgage in fee hall v Dunch vern atk p wms Harwood v  Oglander Ves Tucker v Thurston Ves unless make to the devisee which will be  inconsistent with the devise Harkness v Bayley Prec Ch or a conveyance for  payment of debt mere be for a particular purpose only Vernon v Jones Prec Ch  Ogle v cook cit bro c c it will only operate as a partial revocation or a  revocation pro tanto of the will so if a testator have execute a devise of  land in the presence of three witness to two person as jointtenants in fee  afterward strike out the name of one of the devisees and there be no  republication the erasure will only operate as a revocation of the will pro  tanto Larkins v Larkins Bos and p that a devise of a real estate be not revoke  by bankruptcy see charman v charman Ves with respect to leasehold estate it be  settle that a surrender of a lease for life and the take of a new lease will  operate as a revocation of a devise of the lease for the testator by the  surrender divest himself of his whole estate in the old lease and acquire a  new estate by the renewal Harwood v turner p wms so a purchase of a reversion  expectant on a lease for life operate as a revocation pro tanto of a devise of  such estate for life Galton v Hancock atk so when a term for year have be  specifical bequeathe a surrender and renewal of the lease be a revocation  Abney v miller atk Radstone v Anderson Ves hone v Medcraft bro c c James v  read Ves flatter v Norton Ves if however it appear to have be the testator  intention to dispose of all term whereof he shall be possess a renew term will  pass Stirling v Lydiard atk cart v cart atk Darley v Langworthy bro p c  flatter v Norton sup with respect to copyhold though in general a surrender  and admittance operate as a revocation yet it have be determine that a  admittance to a copyhold ground on a prior surrender do not operate as a  revocation of a immediate will roe v Griffiths burr Bl Rep Thrustout v  Cunningham Fearn count Rem as a will may be revoke by the testator at any time  during his life so it may be republish and this have a twofold effect saint to  give a will all the effect of a will make at the time of its republication and  ndly to set up and reestablish awill that have be revoke Reexecution of a will  be a republication of it but it be settle that a express republication of a  will must be attend with the same formality as be necessary to its first  publication Martin v savage Ves a estate contract for after a general devise  will pass by a republication and must be pay for out of the personal estate  broom v monk Ves and the devisee or heir will be entitle to the benefit of a  contract for purchase and to a application of the personal estate in payment  if a title can be make but not otherwise SC and see Blound v Bestland Ves  rumbold v rumbold Ves Wilson v mount ib Pettiward v Prescott Ves Sheddon v  Goodrich Ves rich v cockle Ves Andrew v Trinity hall Cambridge d blunt v  clitherow Ves rise v Cunningham Ves so a codicil duly attest and annex to a  will or refer to a will as to be take as part of the will Goodtitle d  Woodhouse v Meredith maul and S operate as a republication of such will so as  to pass land purchase or contract to be purchase between the date of the coke  report a er p will and codicil Acherley v Vernon Com Rep bro p c potter v  potter Ves barn v crow Ves jun bro oh c Piggott v Waller Ves Lord Walpole v  Lord Cholmondeley t r Holmes v Coghill Ves Hulme v Heygate Meriv by where the  effect of a codicil be confine to the land devise by the will to which it be  annex Strathmore v bow t r Bos and p Piggott v Waller Ves cancel a second will  republish a former cancel will Goodright v glazier burr but to revive a former  and revoke a latter will there must be either a second publication or very  unequivocal circumstance the animus to call again must be clear establish the  presumption of law be decide in favour of the last date will cancel stride v  Cooper Phill and see Burtenshaw v Gilbert Cowp Pemberton v Pemberton Ves  wright v Netherwood cit salk Phill a surrender of a copyhold to the use of a  will may operate as a republication of a former will so as to pass the  surrender copyhold see heylin v heylin Cowp and where a testator by will  charge all his estate with the payment of debt and make his son residuary  legatee and afterward purchase copyhold which be duly surrender to the use of  his will and by codicil devise those copyhold to his son in fee the codicil be  hold to be a republication of the will so as to subject those copyhold to the  payment of debt Rowley v Eyton Meriv that a republication after the death of a  devisee in tail will not give any estate to the issue of the devisee do v kett  t r for the construction of devise in general see ante       post              and the note ib Inst b two and n b ib as to what word in a will be sufficient  to pass a estate in feesimple ante     post       and the note ib Inst b I and  the note there a estate tail ante   post     and the note there Inst a I n a  estate for life ante   post     and the note there Inst I g p and estate in  jointtenancy and in common post   Inst b I with respect to void devise ante    b post   co and the note there Inst two b as to executory devise see ante I p  b n king post   ED