said) he can devise no part of the residue, but yet be Leon. Lover'sease, may by his wil devise the reversin of the two pirs s0 conveyed to his wife: for tre inerti not the act is to give power to dispose of two paris enurely. 15 & Bauer's case, uit su, ra, (1 Sid. 56.) Leon. Lovey's case, usi supra, lol. 81. 8 Co. 84.85. 8ir Richard Pexhall's If the devisor leave a full third part of the land immediately to descend in fee-s niple or in tail, bheiras ceuse the other two par's in f. sen pie. I a third part be ct lef, it shal, be made up according to the act. Fathe rentar ents, that are not of any yearly value, as bona et catalla Selona et fugitivorum, waifs, estrays, and the I ke, can either be left to cescend for any part of the third part, or devised as part of the two pers Bat yet if such franchises uncertain value be tol en oft e king in capite, they sha'l restrain the devise of all his lands, and make it void for a third part. So it is, if a man hath a reversion expectant upon an estate-tai dry and fruitless holden of the king by knight-service in capite, yet that shall restrain him to devise but two per's of his lan's only. And where the statute speaks of a remainder, it is to be intended only of such a remainder as may draw ward and marriage by the common law. As if a reversion upon a state for life be granted to one for life, the remainder in fee, during the life of the grintee for life it is not within the statute; but if he dieth, this is such a remainder as is within the statute, although it be dry and fruitless. If a gift in tail or a lease for life be made, the remainder in fee, this remainder in fee is not within the statute. But if a man hath lands holden by knight service in capite in possession, reversion, or remain ler, and is also sesed of socage land, and devise by his will all his lands, and after he selleth away the capite land, or that land is recovered from him, the will is good for the whole socage land. The values both of the third part and the two parts of the lands shall be taken as they happen to be at the time of the death of the devisor; for then his will takes effect. He that holds by knight-service in chief, deviseth by case, 3 Co. 33. But his will a rent, common, or other profits as shall amount Jer and Baker's case. to the value of two parts out of all his lands: this rent issueth only out of the two parts, and the third part is free of it. And if he hath lands holaen by knight service, and not in capite, he may charge two parts of the kaight-service as is aforesaid, and all his socage land, (644)* &c And if he hath only socage land, he may by his 6 Co. 17, 18. In Sir will charge it at his pleasure, so as the king's and lord's Edward Clere's case, (8 Co. 173. Ante, third part is free, and the heir's two parts charged: and 271. Cro. Cha. 38.) this is only by force of the statute of 34 H. S. If a man make a feoffment in fee of his lands holden by knigi t-service to the use of such person and persons, and of such estate and estates, &c. as ne shall appoint by his will, in this case, by operation of law the use and state vests, in the feoffor, and he is seised of a qualified fee. In this case, if the feoffor limit estates by his will, by force and according to his poer, there the uses and estates growing out of the feoffment are good for the whole, and the last will is but directory (b). But in that case, if the feoffor had devised the land (as owner thereof) without any reference to the feoffment and power thereby given, then taking effect by the will, it is void for a third part. But if he had formerly conveyed two parts to the use of his wife, &c and after devised the residue by his will, without any reference to his power by the *feoffment, yet this will enure to declare the use upon the feoffinent, because he had no power as owner of the land to devise any part of it (7) But if the feoffment had been made to the use of his last will, although he deviseth the land with reference to the feoffment, yet it taketh effect only by the will, and not by the feoffinent (8). All which (6) Adjudged ace in Myllon and Lutwich, W. Jo. 7.-[Hargr. n. 5. 111 b.] (7 This was the point adjudged in Sir Edward Clere's case, and though, as the whole of the land is now devisable, the doctrine of that case is no longer of conse. que ice in respect to the extent and exercise of the power of devising, yet it may be material for other purposes; for it comprehends a general rule, settling how an act shall operate, where it may take effect in two ways, that is, either as the execution of a power derived from interest, or as the execution of a power not arising from anterest, but specially reserved. In the great case of Commendams the doctrine is well explained by Lord ilobart, and finely applied. Hob.160. -[Hargr. n. 1. 112a (141).] [See ante, p. 591, n. (B).]-[Ed.] (9) The distinctio here mie, between a feoffment to the use of a 112 a. (Mo. 280.) (045) 111 a. Orde ure 27 11 6.8 2.4. 4 Mar. Br. tit. Divre 49. (2) Regat, foA. 244. and many other points of intricate and abstruse learn- (e) lí a man deviseth, either by special name or genewww.the rally, goods or chattels, real or personal, accretc. the dev see cannot take them without the assert of the executors (9). But when a man is seised ca lands in fe, and deviseth the same in foe, in tail, for life, or for years, the devisee shall enter; for in that case tue executors have no meddling therewith. And in the case of a cevise by will of lands, whereof the deviser is seised la fee, the freehold or interest in law is in f, the devisee before he doth enter, and in that case nothing 'g) (ha34. p. 6.3.3. ving regard to the estate or interest devised deser Leth to the heir. But if the heir of the devisor entereth and holdeth the devisee out, he may enter as Litt eton sect 107) saith, or have his writ called ez gravi quzrila; and this writ (without any particular usage, is incident to the custom to devise; for otherwise, if a descent were cast before the devisee did enter, the devisee should have no remedy. After an actual possession this writ lieth not; for then the devisee may have his ordinary remedy by the common law (1). Dev.m. 12. 23 A. 31. 34 . 3. tit. Formelon. Po potr. 20 H. L. Devise 23. F. N. B. 19%, 109. &c. last udi, and one to such uses as the feoffor should appoint by last wall, seems extremely subtle. However, Lor 1 Coke reports it as adopted by the judges in Sir Edward Clere's case; and, according to Moore, the same point was adjudged in Battey and Trevilion, Mo. 278. But then as to the former of these cases, the opinion on this point must have been extra-judicial, the feoffment having been to such uses as should be oppointed by will, and not to the use of the will itself; and as to the lat ter case, it went off finally en an. [See ante, 271 b p. 500.-[Ed.] 1 (A) As to the writ of ex gravi quærela, see ante, vol. 1. p. 396. п. (Е). With respect to devises, it may be further remarked, that a devise imports a consideration in itself, and, therefore, cannot be averred to be to the use of any other but the devisee. Hence, a devise of lands cannot be averred at law to be in bar of dower, jointure, or any other right or interest to which the devisee is entitled; though in equity, we have seen, a devise is sometimes considered as a satisfaction. Ante, vol. 1. p. *Testamentum, is (as is said before) testatio mentis (10,) and is favourably to be expounded according to the meaning of the testator. In contractibus benigna, *in testamentis benignior, in restitutionibus benignissima interpretatio facienda est. Testamentum, i. e. testatio mentis, which is made nullo præsentis metu periculi, sed sola cogitatione mortalitatis. Omne testamentum morte consuтта tum. (646)* 112 a. Construction of devi ses. *112 b. 322 b. LITTLETON. [Sect. 168. 112a.] AND if a man at divers times makes divers testaments, and divers devises, &c. yet the last devise and will made by him shall stand, and the others are ral wills, or two inconvoid (11). Where there are seve sistent devises, the last "Divers testaments." For voluntas testatoris est 2 H. 5. 8. 2 R. 3. 22. ambulatoria usque ad mortem (as hath been said be- (Cro. Eliz. 9. Cro. fore) and the latter will doth countermand the first. And Jam. 49.290. 649.) it is truly said, that the first grant and the last will, is of the greatest force. "Divers devises, &c." Here by (&c.) is to be understood as well devises of chattels real or personal, as of (10) See the note on this sort of etymology in fol. 110 a. (ante, vol. 1. p. 58. n. 5.)-[Hargr. n. 7. 112 a.] (11) The words and the others are void are not in L. and M.-Roh.nor P. 611. п. 110. 6 Cru. Dig. 9. Devises are void against creditors; except devises for payment of debts or children's portions, pursuant to a marriage-settlement. Stat. 3 W. & M. c. 14. 8. 2, 3 & 4. Ante, vol. 2. p. 237-239. n. (O). Devisees are entitled to aid in equity, for a discovery of the deeds relating to the estate, and to have them delivered up as following the lands. Duchess of Newcastle v. Pelham, 3 Bro. P. C. 460. A devise need not be proved in the ecclesiastical court, although it is usually done. Cro. Car. 296. Where it relates to lands in Middlesex or Yorkshire, it may be registered. . With regard to the persons who may devise; it is observable, that all persons seised in fee-simple, and who are capable of disposing of their estates by any conveyance, inter vivos, may dispose of them by will. See ante, chap. 32. and the notes there. 6 Cru. Dig. 12-16. As to what persons may be devisees, see ante, vol. 1. p. 188-190. n. (G). 6 Cru. Dig. 16-18. And as to what property may be the subject of a devise, see ante, p. 636, 7. n. (2).-[Ed.] : freehold and inheritance: also that in one will where there be divers devises of one thing, the last devise taketh place. Cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est (12) (B) (C). (12) There is a great contrariety in the books, on the effect of two incontent devises in the same wall. Soma hold with Lori Coze, that the second devise revokes the first. Plowd, 541. Others think, that both devises are void on account of the rep iganey. Ow.34. Eat the opinion supported by the greatest sumber of authorities is, that the two levisees shall take in moieties. The authorities for and against Lord Coke's opinion are wed colleetel and arrogel in a note in the English edition of Powden. See page 511.-Aso amongst those who think that both levises shall operate, there is so ne Etference as to the manner in which the two devisees ought to take. In some of Site oll books it is said generally, that there shall be a joint-tena jey. But accor ling to the modern opinion, and as it (B That u will is not to be constrned by something dehors, as by the state of the property, where there is no latent ambiguity, see Page v. Lepingwell, 18 V es. 466. Emnerem v. Poyntz, 1 Br. C. C. 473, Vilby v. Wedy, 2 Ves. & B. 199. Doe, d. Orenden v Chichester, 4 Dow 65. Doc, d. Tyrrell v. Lafort, 4 Waul. & S.550: seeus wh re the subject of the devise is described by reference to some extrinsic fact; for then extrinsic evidence must be admitted to ascertain the fact, and so to ascert sin the subject of the avise. Sandford v. Chichester, 1 Meriv. 653. That no averment is allowed to explain wills, see Plowd. 545. Bertie v. Lord Foulkland, Salk. 231. Broughton v. Errington, 7 Bro. P. C. 461. Et vid. 3 Ves. jan. 22. But where there is a latent ambiguity, an averment supported by parol evidence is admissible; as, if a testator having two sons of the name of John, devises generally to his son John, there parol evidence will be admitted to prove which John the testator meant. 5 Co. 68 b. 2 Atk. 372. Harris v. Bishop of Lincoln, 2 P. Wms. 135. Et vid. Careless v Careless, 1 Meriv. 331. Doe, d. Oxendenv Chichester, suura, Ante, vol. 1. p. 149. n. (9) and (11), and cases there cited. Where parol averments are allowed to explain a will, they may be encountered by parol averments. Jones v. Nerpan. I BI Rep. 60 Thomas v. Thomas, 6. T. R. 671. Langham v. Son ford, 2 Meriv. 6. It is also a general rule, with regard to the construction of wills, "that the testator's meming is to be collected from the will itself; taking in aid the general rules of construction, established by decision; that the court is not to make a will, but to declare the p'ain meaning of the words," Per Plumer, V C. Noel v. Weston. 2 Ves & B. 271. Et vid. O'Dell v. Crane, 3 Dow 61. 68. To authorize the rejection of words in a will, there must be an absolute impossibility of construing the will, those words being retained. |