to two or more as tenants in common is in effect a Infra, c. 15. devise of one undivided part to one, and of another undivided part to the other. So that under such a devise to an heir and a stranger, as tenants in common, the heir takes as if one undivided moiety were devised to the stranger, and the residue to himself; that is, in the same manner as if no disposition at all of such residue had been expressed in the will, in which case he would have taken by descent; and therefore the same estate being devised to him in such residue, as he would have taken by descent, the general rule respecting devises to an heir extends to it. 17. In consequence of the statute 9 Geo. 2. c. 36. which has been already stated, all devises and bequests of lands and tenements, or of any sums of money to be laid out in the purchase of lands and tenements, for any charitable uses whatsoever, are void. Devises to charitable uses. Tit. 32. c. 2. § 42. v. Pike, 18. A devise was held by Lord Northington to be Edwards void, being proved to be upon a secret trust for a cha- I Eden. R. 267. rity; conveyances having been made by the devisees, and the trust declared, though they denied by their answer having made any promise. Statham, 19. In another case before the same judge, where Boson v. there was a devise by will, attested by three witnesses 1 Eden. R. 508. to A. B. & C. and the heirs of the survivor; the bill stated that it was upon a secret trust for a charity, declared by an instrument executed at the same time as the will, but attested by two witnesses only, which was 9 Ves. R. 519. admitted by the answer; held that the devise was void under the statute of mortmain. has been fraud. 20. Where any fraud or circumvention has been Where there practised on a testator, or where he was incapable, by any weakness of mind, of disposing of his lands, the devise is void. But if the validity of a will of lands be impeached on these grounds, a court of equity will A devise accompanied with a desire that the devisee would convey to some charitable use (the will afterwards limiting an estate for life to the devisee) was held void in toto. Doe v. Wrighte, 2 B. & A. 710. Kerrick v. 7 Bro. Parl. Ca. 437. Webb v. Claverdon, 2 Atk. 424. Doe v. Allen, 8 Term R. 147. Where the de visee dies be sor. not set it aside, but will direct a trial at law, on the issue of devisavit vel non. For if the will be obtained by fraud, or be made by a person incapable of devising, it is not in point of law the testator's will; and therefore these points are proper to be tried by a jury. 21. It was held in a modern case, that in order to set aside a will for fraud, parol evidence might be given of questions asked by the testator, at the time of executing his will, whether the contents were the same as those of a former will. 22. A devise may become void by an event subsefore the devi- quent to the making of a will. Thus it is a rule that if the devisee dies before the devisor, the devise becomes void. A doctrine which was probably derived from the rule of the Roman law.-Pro non scriptis sunt iis relicta qui, vivo testatore, decedunt. Brett v. Rigden, Fuller v. Fuller, 23. A. devised lands to B. and his heirs. B. died in the lifetime of the testator. The question was, whether the heir of B. should take any thing by this devise. It was determined that he should not; for it was a principle of law, that in all gifts, whether by devise or otherwise, there ought to be a person in esse capable of taking at the time the gift vests; and as the thing devised cannot vest till the death of the devisor, at which time the devisee was dead, it followed that he could take nothing by the devise. As to the word heirs being inserted in the devise, it was only used as a word of limitation, to denote the quantity of estate which the devisor meant to give, and not with an intention to describe the heirs of B., or to give them any thing. 24. Henry Fuller, having issue four sons, John, Richard, Edward, and Henry, devised lands to his second son, and the heirs of his body, and after his death without issue, then to his third son. The second son died in the lifetime of his father, leaving issue. It was adjudged that the issue of the second son took nothing by the devise, it being lapsed; but that the third son might enter. Hutton v. Simpson, 2 Vern. 722. 25. T. Addison having two daughters, devised all his estates to his second daughter, and the heirs of her body begotten, and for want of such issue, to his eldest daughter. The second daughter died in the lifetime of the testator, leaving a son. Adjudged that the devise to the second daughter became void, by her dying Davy v. Kemp, in the lifetime of the testator; and that her son could 384. not take as heir of her body. It was also resolved that the eldest daughter should take immediately, by virtue of the devise, for when the first devise is void, the remainder shall take place as if no such devise had been made. Bridg. Rep. Wynn, 3 Bro. Par. Ca. 95. 26. R. Wynn devised his estate to his brother Wynn v. M. Wynn, and the heirs male of his body, remainder to O. Wynn and the heirs male of his body. M. & O. Wynn died in the lifetime of the testator; but O. Wynn left an only son, who claimed under the devise. It was resolved that he took nothing. 27. One seised in fee devised lands to A. and his issue, remainder to B. and his issue, remainder to the heirs of A. A. died without issue in the lifetime of the testator; and B. died in the lifetime of the testator, leaving issue the defendant, who was also the heir of A.; and the plaintiff was the heir of the testator. The question was, whether as the devisees A. and B. both died in the lifetime of the testator, the issue of B., who was born after the will was made, and so could not take jointly with the devisees, could take either as heir of the body of B. or as right heir of A. Goodright v. 10 Mod. 370. Lord Ch. J. Parker delivered the unanimous opinion of the court, that this case was exactly within the reason of the case of Brett v. Rigden. First, because as well Ante, § 23. in this case the word issue, as in that the word heirs, was clearly used as a word of limitation, viz. to measure out the quantity of estate that the devisee was to take; and not as a word of purchase; the devisee only being in the view and consideration of the testator, and the words heir or issue mentioned for nothing Busby v. Greenslate, Infra, c. 14. Hodgson v. Vide infra, c. 14. else but to limit what estate the devisee should take. 28. Susan Jolland devised certain lands to the use and behoof of her sister Elizabeth, the wife of John Belchier, and her assigns, for and during the term of her natural life; and after the determination of that estate, to the use of W. A. & J. P. and their heirs, during the life of the said Elizabeth, upon trust to preserve the contingent uses and estates therein-after Himited from being defeated or destroyed; and from and after her decease, then to the use of the heirs of the body of the said Elizabeth, lawfully issuing; and for want of such issue, to the use and behoof of her sister Catherine Jolland, in the same words as are used in the devise to Elizabeth. Elizabeth Belchier died in the lifetime of the testatrix, leaving issue one daughter, Catherine. Upon the death of the testatrix, Catherine Jolland, who married one Hodgson, suffered a recovery of the premises. A question having arisen in the Court of Chancery respecting the construction of this will, a case was made for the opinion of the Judges of the Court of King's Bench, upon the following question: "Whether Catherine Belchier, the daughter of Elizabeth Belchier, took any and what estate under the will of Susan Jolland." To which the Judges of the Court of King's Bench answered-" If Elizabeth Belchier would have taken an estate tail in case she had survived the testatrix, we think, by her dying before the testatrix, it is a lapsed devise, and Catherine, the daughter of Eizabeth, can take nothing." The Court of Chancery having decreed in conformity to this certificate, an appeal was brought in the House of Lords, and the following question was put to the Judges: "Whether Catherine Belchier, the daughter of Elizabeth Belchier, took any and what estate under the will of Susan Jolland." The Lord Ch. B. delivered the unanimous opinion of the Judges present, that Catherine Belchier took no estate under the will of Susan Jolland.* The decree was affirmed. 29. Rich. White having issue Simon his eldest son, and Hamilton his second son, devised all his lands in B. to his eldest son Simon, and the heirs of his body; and for default of issue of his said son Simon, then he devised his said estate to his son Hamilton, and the heirs of his body. Simon died in the lifetime of his father, leaving issue four sons and four daughters. The question was, whether the eldest son of Simon took any thing by this devise, or whether it lapsed to Hamilton, the person next in remainder. The Court of King's Bench in Ireland determined that the eldest son of Simon took under this devise. This judgment was reversed by the Court of King's Bench in England. A writ of error was then brought in the House of Lords; and it was contended on behalf of the eldest son of Simon, that he ought to take under this devise. 1. Because it was plain the testator did not mean to exclude the issue of his eldest son from the inheritance, the children of Simon being alive, and known to the testator, at the time he made the devise to Simon and the heirs of his body. 11. Because the remainder to Hamilton was expressly limited to take effect only in default of issue of the testator's son Simon; and no devise was made of the estate until such default should happen; and it was a principle in law, that the heir should take every thing which was not devised from him. III. Because courts of justice have been always anxious to effectuate the intentions of testators, where they are not contrary to the rules of law, or settled authorities; and there was no case to be found in which it had been adjudged that a devise to a man and the heirs of his body lapsed for the be It was also held that Catherine Jolland took an estate tail, infra, c. 14. |