bunker versus cook b r devise of all land which shall belong to he at his  death after purchase land do not pass thereby ejectment bring for land in ken  on the demise of Bockenham and on not guilty plead there be a special verdict  wherein the jury find that William Bockenham Esq be commander of his majesty  ship the Grafton on the d of may make his last will and testament in write and  they find it in haec word he recite then that he be bind to sea and then go on  and say I do hereby give and bequeathe to my wellbeloved wife Frances  Bockenham the lessor of the plaintiff all such sum or sum of money which now  be or shall become FitzGibbon er p due from his majesty for my own and servant  wage and all such sum of money land tenement good chattel and estate  whatsoever wherewith at the time of my decease I shall be possess of or invest  with or which shall belong to I and I do appoint her my whole and sole  executrix of this my last will they find that the testator at the time of make  his will be not seize of any land in the county of ken but afterward by deed  of lease and release date man sir Geo Wheeler and other be seize in fee of the  land mention particular in the declaration convey the same to the say William  Bockenham the testator and his heir by virtue whereof he become seize they  find the land be hold in socage and be of the nature of gavelkind and  devisable by the custom of ken and sometime afterward the say William  Bockenham die the devisee enter and the heir at law enter upon her and so the  question be between they whether these land do pass and be dispose of by  captain William Bockenham or not chief justice holt give the opinion of the  court we have consider of the case altogether and we be all of opinion that  the will as to these land be Fitzherbert Gibbon void and that the land do not  pass thereby but that judgement ought to be for the heir at law we agree that  the word of the will be full and comprehensive to pass all these land have he  be seize of they at the time of make his will in though perhaps it may be his  intention and design to have they pass the case be no more than this a man  make his will and devise all the land that he shall have at the time of his  death and after that he purchase land and die without republication we hold  that it be a void devise for a man can devise any land but what he have at the  time of make his will here be no act between the make of the will and the  death of the testator necessary to be do to make this a perfect and complete  will no write no publication nor any other act whatsoever it be subject indeed  to a revocation during the testator life and be to take effect only from the  time of his death but it be a will a disposition of the estate bequeathe from  the time of the make thereof where there be a disability in the testator at  the time of make the will though that disability be actual remove before his  death yet the will will be absolute void because he have no ability at that  time suppose a infant make a will and devise land during his minority or a  feme covert in the life of her husband though the infancy or coverture be  afterward remove yet if either of the devisor die without new make a  publication of their will this be a void will because of their original  disability though they shall live many year after such disability remove yet  remove these disability will not do without a new publication or make a new  will now these be personal disability but this be a real one he have nothing  in this case to give or dispose of so here be a removal of a real disability  and shall the removal of that be of more effect to make it a good will than  remove a personal disability No sure Fitzherbert Gibbon it be say in force and  Homblings case in   that the make of the will be not the will but only the  commencement of it the meaning of that be only that it do not transfer the  interest and property of the thing devise but still it be his disposition till  he revoke it now what commencement have this will as to these land it can have  a commencement from the time of make the will because the testator have not  the estate at that time when then will you have this to be a will must you  stay till he have purchase to make this a will now this act of purchase these  land and his act of dispose of they be two different thing and be of different  nature you must suppose that eastern earnestness he purchase he make this will  which be absurd and repugnant the law of England be plain as to this point by  all precedent and the law be the same of land devise by custom as well as by  statute there be no will that I can find by any entry but it be say the  testator be seize in fee and be so seize he make his will and of this there be  multitude of authority I shall name a few FitzGibbon er p only   Ent raze  there be a precedent of a will of land devisable by custom that the testator  be seize in his demesne as of fee h a though the form of plead do not make the  law yet constant plead of a thing in such a manner be a great evidence of the  law and this argue the necessity of the testator be seize at the time of make  the will but it be object that land devisable by custom differ from land at  the commonlaw because they be devisable as good and chattel and appeal to the  custom it self set forth in the writ ex heavy complaint in Fitzherbert n b old  edition here it be say by this custom it be lawful to devise land and tenement  as chattel though the testator have not possession of they at the time of make  his will and that a man may dispose of his chattel and personal estate that he  shall for the future acquire any time after his will to the time of his death  and therefore shall dispose of the say customary land in the same manner  Fitzherbert Gibbon in answer to this I desire the custom in that writ set out  may be well consider and it will appear plain that the custom be not general  that a man so qualifed may devise land tenement as he may good and chattel but  it be tenement svan before he can dispose of they they must be svan they must  be his property and if they be not svan at the time of the devise then he be  out of the custom and his will can be affect by it it be true a personal  estate and chattel may be dispose of at commonlaw before he have purchase or  have possession of they and there be many case that make out this but there be  a great deal of difference between a real and personal estate for a personal  estate and chattel be transient and fleet and not at all fix and permanent as  land be perhaps the great part of a man estate be in good to day and he may  have a mind to turn these into money to morrow this the necessity of deal and  traffic in the world absolute require now then will it not be hard that a man  shall be oblige to make a new will every day which he must if he can not  dispose of his chattel because they have undergo some alteration this will be  the great perplexity in the world but on the other hand land continue the same  every day and will so to the end of the world and as to real estate there be  time and opportunity to make settlement when he think fit but as to a personal  estate that be under constant variation suppose the case be of a devise of a  real chattel and a man shall devise a term for year that he have not at the  time of the devise but have purchase some time before his death I doubt  whether that will be good though this be not the case nor necessary I shall  give my opinion in it yet I make a great doubt of it suppose for the purpose  one take a collegelease and then make his will and shall devise the lease away  to another and afterward the testator shall purchase a new collegelease  subsequent to the make of his will the question be whether this will be a good  devise and I be incline to think not there be a case of Ashby and lover  Gouldsb Fitzherbert Gibbon come up to this matter a man make his will have a  collegelease or other lease and devise his lease to I S after the make of  which will he surrender this lease and renew suppose he then die the question  be whether the devisee shall have this lease and it be hold in that case that  the renew of the lease be a revocation of the will and that the lease do not  pass this seem to be a very strong case as to this point and the reason be  plain because the estate be not in he at the time of make the will march the  question be there whether a term not assent unto by the executor and which  pass only as a executory devise can pass by the will of the devisee and there  it be hold that it be only a possibility and nothing passes by the will and  indeed how can he dispose of the term that be not his but another man it be  hard to imagine such a preposterous thing but I shall not give any positive  opinion herein this be not our case the executor must assent to a legacy else  nothing passes for nothing can pass immediate where a term be devise but this  be enough to show the difference between a real and a personal estate one be  permanent and last the other mutable and fleet to make a will to take effect  from the purchase of the estate be repugnant to the nature of a purchase for  the will give it to another and his heir and the purchase give it to himself  and heir the will give it to the wife in fee the purchase give it to himself  in fee so that here be a perfect contradiction FitzGibbon er p now it be to be  note here be no republication for if there have be a republication that will  have do and make these land pass provide that all the requisite and  circumstance necessary to the make a original will within the Act of fraud and  perjury have be observe suppose a man devise all his land in tail and  afterward purchase other land and die before republication those purchase  shall not pass but if he republish the will in such manner and with such  circumstance as be necessary to complete Fitzherbert Gibbon the execution of a  original will then the purchase land will pass as by a original will it be say  indeed in Brett and Rigdens case that where a man devise land uncertain as the  manor d or WhiteAcre and the devisor have nothing in the land at the time of  make the devise but do afterward purchase the same that such new purchase land  shall pass to the devisee because his intent be manifest to pass it away if  that be law I think it full against I but I think that case be not law it be  only the say of sergeant Lovelace and the case quote in the margin do not  warrant any such thing I think indeed before I look narrow into the case which  be h that it have be so but there be nothing in that book to warrant it nor be  there any thing like it in either of the abridgement in Fitzherbert title  devise or in bro the same title it be only a note of two judge opinion notam  say the book in the king bench per Yelverton and Markham if a man devise land  and be seize after that and then die this devise be void and can be make good  and the reason be because the seize turn it to a right and be then only a  choose in action and can be devise away and therefore say the book it be hold  a good plea against this devise that the devisor do not die seize of the same  land but the book go on further and say suppose a man be seize and then make  his will and devise the land and afterward reenter into the land it be make a  question there if it be a good plea to say that the devisor have nothing in  the land at the time of the devise this be the case put and the case mean  which be the ground of the precede opinion and it seem by that book that if he  do reenter the land shall pass and I be of opinion the land shall pass if he  do reenter and the reason be if a man be seize and he make a reentry such  reentry purge the seize so that by relation to all intent and purpose he be in  possession from the beginning and for that reason he shall have a action for  the mean profit between the time of the seize and bring the action and so be  the h h he may in such case be just say to be Fitzherbert Gibbon seize in fee  of such land and therefore may dispose and devise the same away because the  reentry revests the estate and he be now in consideration of law in possession  from the time of the seize and therefore be entitle to the mesne profit as if  he have be actual in possession all the while but that be not this case for  here the devisor have neither law in re nor law ad remember for the land be  here purchase eight year after make the will suppose a heir that have nothing  but a bare expectation during his father lifetime shall make a will and devise  all his land that he shall have at the time of his death will the land that  come to he by descent from his father pass by the devise No sure but then  suppose a man make his will of land in reversion expectant on a estatetail or  a estate for life and before his death tenant for life or tenant in tail die  without issue those land will pass though he have but a reversion only at the  time of make the will because he be seize at that time as much as he can be  and it be a certain present interest though to commence in going to be and all  the estate he can give he intend there be a case in my Lord Bridgmans time of  Davis and it be a devise to two person and their heir and one of they die  during the life of the testator and the question be whether the survivor shall  take the whole or not and it be hold he shall which show plain it be a will  and a disposition from the time of make it suppose a have a manor and make his  will and devise this manor and before his death a tenancy escheat and after  that the testator die the question be whether the escheat tenancy shall pass  because the manor be devise and that be part of it for this tenancy be not  devise as a distinct thing but as a part of the whole which he can devise  FitzGibbon er p I look upon it to be my Lord cook opinion in butler and baker  case Rep that a devise be a disposition and that case be adjudge in the  exchequerchamber by all the judge in England and Fitzherbert Gibbon that a  custom to devise ought to be construe the same as at commonlaw therefore for  these reason I hold that judgement ought to be give for the defendant in  regard it be a will at the time of the make in as much as the testator have  not power to give what he have not the constant manner of plead show the  necessity of the testator be seize a devise of land be not to be resemble to a  devise of a personal estate because a personal estate be alter every day  because the devise be repugnant to the nature of the purchase the purchase be  to the devisor and his heir and the devise to another and her heir and because  there be no case nor authority in law to warrant any contrary opinion indeed I  be very inclinable to make this a good devise if I can because the intent be  very strong and that will weigh a great deal in a will but when I consider  more of it I can find no opinion to favour it that of sergeant Lovelace be not  to be support I do not give my opinion so much on the word have in the statute  of will but that at the time of make the will he have not the land and so  agree by dyer that a man must be owner of the land at that time Powell I will  have make it good if I can but it be inconvenient it shall be so for when a  man be beyond sea or in foreign part or in prison and shall make his will in  this manner he may have many thousand a year descend to he from other relation  that he may know nothing of at the time of make the will powys gold the intent  be plain so judgement be give pro to ward off per totan curian this judgement  affirm upon a writ of error in the house of lord