Att. Gen. v. Vigor, 8 Ves. 256. property at the time of making his will. Therefore, if The Court certified that the surrender did, by express reference to the uses declared by the will, adopt and apply the words of the will to the copyhold lands, as if the testator had been seised thereof at the time of making the said will; and therefore they were subject to the same uses, to which all the testator's copyhold lands were devised. DEVISES are in some cases void ab initio, as where the testator devises what the law already gives, or in mortmain; or where any fraud has been practised on the testator; and devises are also void where they are totally uncertain. heir at law. 2. With respect to the first sort of devises that are Devise to the void ab initio, it is a rule of law that where a testator makes the same disposition of his estate as the law would have done, if he had been silent, the will, being unnecessary, is void. If therefore a person devises his lands to his heir at law, in fee, it is a mere nullity, and the heir will take by descent, as his better title; for the descent strengthens the title by taking away the entry of those who may have a right to the lands: Tit. 29. c. 1. whereas if the heir takes by the devise, he is then only in by purchase. And this rule applies to wills made in Tit. 32. c. 16. | pursuance of powers, as well as to devises deriving their effect from the statute of wills. § 7. Baspool's case, 2 Leon. 101. 3. If a person devises lands to his wife for life, remainder in fee to I. S. who is his heir at law, it is a void devise as to the remainder; because the reversion Winchelsen, would have descended to I. S. after the determination 187. of the particular estate. 1 Black. K. Smith v. Trigg, 1 Stra. 487. Though charged with debts. Fearne's V. Haynworth 919. 4. The same rule is applied to copyholds; and therefore a surrender of a copyhold to the use of a will, and a devise thereof to the heir at law, will not give the devisee an estate by purchase. 5. Although the devisor charges his estate with the payment of his debts, or with portions to his younger children, yet he afterwards devises the estate to his heir at law in fee, the devise will be void, and the heir at law will take by descent. 6. A person devised to each of his younger children 201. when they attained the age of 21 years, and devised all his estates to his eldest son, to hold to him and his heirs, upon condition that he should pay to his other children the said sums appointed to them; and if he did not pay the same, then the lands to go to the 1 Ld. Raym. younger children and their heirs. Adjudged that the eldest son took by descent. Emerson v. 728. Clarke v. Com. R. 72. Allen v. Heber, 1 Black. R. 22. Chaplin v.. Leroux, 7. A person seised in fee, devised lands to his wife for life, and after her decease, to his next heir at law, and to his or her heirs; provided such heir should pay 1000l. to such person or persons as his wife should appoint. It was resolved that the heir took by descent, and not by the will. And it would be mischievous if every little legacy should alter the course of descent, upon which the heir might plead to the obligation of the ancestor, riens per descent. 8. In an action of debt on the bond of the father, to whom the defendant was heir, the plea was riens per descent; the fact was, that the father had devised his lands to the defendant, charged with debts; and the 5 Mau. & Sell. question was, whether this made him a purchaser. The 14. The devisee must be sole heir. Court said, that a charge on the estate did not alter the manner of the heir's taking the land. A devise was void where it gave the same estate as would be taken by descent. Judgment for the plaintiff. 9. The devisee must be sole heir to the lands devised; for if he is only one of the heirs, he will take under the devise. 10. A. B. having two daughters, one of them had issue a son, and died. A. B. devised all his estate to this son of his daughter in fee; and the question was, whether the son should take all by this devise, or one moiety by descent, and the other by devise; for there could not be a descent of a moiety to one coparcener as heir: one could not plead a descent uni filiæ et cohæredi; but it was a descent to all. It was resolved that the grandson took by devise. the estate ren good. 11. Where an estate is devised to an heir at law, A difference in different in point of quantity from that which he would ders the devise take by descent, the devise will prevail, and the devisee take under it as a purchaser. Thus it is laid down in Plowden, 545. that if a man devises his lands to his son and heir, to have to him and the heirs of his body, this is a good devise, because it is another estate than Infra, c. 12. he would have had by descent. Amb. 383. 12. A person devised to his eldest son, and to his Scott v. Scott, heirs and assigns, all other his real estate not before devised; nevertheless, in case he should die without 1 Eden, 54S. issue, not having attained twenty-one, then from and immediately after his death under age, and without issue, unto the testator's son William. Lord Keeper Henley was of opinion that the eldest son took by devise, as having under the will a different estate than would have descended to him; the one being pure and absolute, the other not. 13. In a late case, where there was a devise to the heir at law in fee, with an executory devise over, in case he did not attain twenty-one years; the Court of K. B. held that this did not alter the quality of the estate which he would otherwise have taken as heir, and that he therefore took by descent, and not by purchase. Doe v. Timins, 1 Barn, & Ald. 530. 14. A difference in the quality of the estate will also give effect to the devise. Thus in Mich. 37-38 Eliz. Cro. Eliz. 431. Lord Coke, who was then Attorney General, demanded of the Court of King's Bench their opinion on this case. Beare's Case, 1 Leon. 112. Fearne's Opin. 128. A man having two daughters, being his heirs, devised his lands to them and their heirs, and died. Whether they should take as joint tenants by the devise, or as coparceners by descent? And all the justices held clearly that they should have it as joint tenants; for the devise gave it to them in another degree than the common law would have given it. 15. In a formedon in the descender, brought by A. B. & C. of lands in gavelkind, the warranty of the ancestor was pleaded in bar against them, upon which they were at issue, if assets by descent. It was found by verdict that the father of the demandant was seised in fee of the lands, being of the nature of gavelkind, and devised the same to the demandants, being his heirs by the custom, and to their heirs, equally to be divided amongst them. And if the demandants should be accounted to be in of the lands by descent, or devise, was the question; for if by devise, then they should not be assets. The Court was of opinion that they were in by the devise; because they took as tenants in common. 16. In an opinion of Mr. Fearne, which has been printed, he says, that a devise to the heir and another, as tenants in common, will not prevent the heir's taking his moiety by descent. For suppose a testator devises a moiety, or any other undivided share of his real estate, to a stranger, making no disposition of all the remaining undivided share, such remaining share would of course descend to his heir at law, and he must hold it in common with the devisee of the undivided share devised. It was clear, therefore, that an heir might take by descent, as tenant in common with a devisee, an undivided part of the estate of which his ancestor was solely seised: and it appeared to be immaterial whether the share he so takes is expressly devised to him, or left unnoticed by the will: for if expressly devised, he takes it in common; and if not noticed, he takes it in the same manner: and a devise |