Estates for lives. Gawin v. lamtes, §4., all persons seised in fee simple, in coparcenary, or in common, may devise the estates which they hold in this manner. And all persons seised in fee simple may also devise any rents, commons, or other profits, out of, or to be perceived of the same, or out of any parcel thereof. 4. The statute 34 & 35 Hen. VIII. only extends to estates in fee simple, and therefore did not enable persons to devise estates which they held pour auter vie. Cro. Eliz. 801. This was remedied by the statute 29 Cha. II. c. 3. § 12., by which it was enacted, that any estate pour auter vie shall be devisable by will in writing. (hattels real. Bransby v. Wentw. Ex. c. 2. 19. 5. As to chattels real, or terms for years, they might always have been disposed of by testament, because they were only considered as personal estate. But where a person acquires a term for years as executor, he cannot devise it; for immediately on his death it is to the use of the first testator, and his executors have it as executors of the first testator, and to his use. 6. Whenever a term for years is devised, the consent of the executor is necessary to complete the title 10 Rep. 47. b. of the devisee. But if a term be devised to A. for life, Trust estates. Tit. 12, c. 1. 2 P. Wms. 258. Lands contracted for. remainder to B., the assent of the executor to the devise to A. will operate as an assent to the devise over to B. and vest an interest in him accordingly. 7. As uses were the medium through which lands were originally devisable; so trust estates, which in fact are uses not executed by the statutes, are now devisable; but where a person has only an equitable interest in lands, his devise of them amounts to no more than a direction to those who have the legal estate in trust for him, to convey it according to the devise. 8. Where an argument is entered into in writing for the purchase of lands, and, before a conveyance of the legal estate is executed, the purchaser devises the lands so contracted for, and dies, such devise will be held good in equity: for although, according to the strict 1 Cha. Ca. 39. rules of law, the devisor has not lands within the 9 Mod. 78. statute of wills till a conveyance of the legal estate is executed; yet, from the time when the agreement was signed, the vendor is considered to be seised only in trust for the purchaser, who in equity is deemed the real owner of the lands, and therefore is allowed to devise them. 9. Where an agreement for the purchase of land is not to be carried into execution till a future day, and before that day the purchaser makes his will, the lands so agreed for pass by such will. Greenhill, 320. 10. By articles dated in April 1706, it was agreed Greenhill v. between the vendors, and the agent of the purchaser, Prec. in Cha. that the possession of the lands, agreed to be purchased, should be delivered at the Michaelmas following, and proper conveyances executed; and the agent covenanted that the purchase money should be paid, when possession was delivered. In June following the purchaser made his will; and the question was, whether these lands passed by it. Lord Cowper decreed that they did; and upon an appeal to Lord Keeper Harcourt, it was argued by Sir Joseph Jekyll and Mr. Howe, that this decree ought to be reversed. They took a distinction between an agreement for the immediate purchase of lands, and such an agreement for the future purchase thereof, as this was; they agreed, that if the articles had been for the present purchase of the lands, the vendor would immediately have become a trustee for the purchaser; and then a devise of them would have been good in equity: but here the possession was not to be delivered till Michaelmas following, nor was. any money to be paid before that time; and then the purchaser had no power to devise them sooner. On the other side it was said, in support of the decree, that these lands were bound immediately from the execution of the articles; that the possession not being to be delivered till a future time, made no difference in equity. That if the purchaser had died before Michaelmas, the equity would have descended to the heir; and he might have brought a bill against the executors to compel the payment of the purchase money out of the personal estate. Lord Keeper Harcourt said he saw no reason to vary the decree: he thought that such future interest was devisable, as well as if it had been in possession: that the lands and money were mutually bound by the articles; and affirmed the decree. 11. Even a parol agreement for the purchase of lands, which is admitted, so as to be binding on the parTit. 32. c. 3. ties, notwithstanding the statute of frauds, will vest such an interest in the purchaser, as he may devise by will. Potter v. 1 Ves. 437. Longford v. Cave v. Cave, 2 Eden, 139. 12. In the year 1743 a parol agreement was made between Mr. Brown, as agent for Mrs. Hughes, and Messrs. Potter and Westley, as agents for the Archbishop of Canterbury, for the purchase of an estate in the Isle of Wight. The plan and particulars of the estate were delivered to Westley, and on the 7th June 1744 the parties met; a price was fixed, and it was agreed by parol that the purchase should be completed the Christmas following. In July 1744 the title deeds were delivered to Westley to abstract, and deliver to the pur chaser's counsel, which was done in April 1745. The further proceeding was interrupted by a claim of one Huxley to part of the estate; a bill was filed, and it was referred to the Master to inquire into the contract, who reported, in February 1746, that it was a beneficial one: and the next day Westley received-instructions from the archbishop to draw the conveyances, which he did, and which were approved of on behalf of the archbishop; on the 17th September 1746 they were carried to the archbishop, who returned them to be engrossed, and they were actually engrossed in his lifetime, but were not executed, as intended. The archbishop had made his will in 1745, and on the 10th April 1747, long after this agreement, he made a codicil, ratifying and confirming his will; and the question was, whether the estate thus agreed for, should pass by his will and codicil. The Master of the Rolls (Sir J. Strange) said, one eircumstance was wanting; the reducing the agreement into writing, according to the statute of frauds; which if done in 1744, the estate would certainly be considered as the archbishop's, in equity, from that time. But though an agreement was not reduced into writing, and signed by the party, yet it was well known that if confessed, or in part carried into execution, it would be binding on the parties, and here was the fullest admission thereof. And as the will was: republished by the codicil, it would pass this estate.. 13. If a mortgagee devises the lands mortgaged, Mortgages. before the condition is broken, it will be void; because Tit. 15. c. 2. a condition is not devisable. But an estate in mortgage may be devised after the condition is broken; and in such a case, if the devisee exhibits his bill against the mortgagor, to foreclose him, a decree will be made accordingly. demption. 14. An equity of redemption, being in some respects Equities of resimilar to a trust estate, has always been considered as devisable. And in 12 Cha. II. it was determined by Tit. 15. c. 3. the Court of Chancery, that where a person seised in: Philips v. Hill, fee had mortgaged his estate, and afterwards devised it, the equity of redemption should go to the devisee,. not to the heir. 1 Cha. R. 101. Tit. 21. cock, 15, An advowson appendant to a manor will of Advowsons. course pass by a devise of the manor. An advowson: Cleer v. Peain gross being an hereditament, is also devisable under Cro. Eliz. 359. the statute of wills; and: the next or any number, Law v. Epis. of presentations may also be devised; in which case 2 Black. R. the devisee may either present himself, or any other person. London, 1240. 16. Where the incumbent of a church had the in. Penchyn v. Harris, heritance of the advowson in him, and devised the Cro. Ja, 371. next presentation, it was held good for though the will had no effect till the death of the devisor, yet Rents. n. 5. 1 Mod. 112. it had an inception in his lifetime, and that made it good. 17. A rent charge is devisable by the words of the statute 34 & 35 Hen. VIII.; but it was formerly 1 Inst. 111. a. doubted whether a rent charge in esse, issuing out of gavelkind lands, and having commenced within time of memory, was within the custom of devising; nor was it settled to be so till the time of Lord Hale. Rob. Gav. 79. Idem. Tithes. Tit. 22. Franchises. 1 Inst. 111. b 3 Rep. 32. b. 3 Rep. 32. b. Contingent estates and in- Fearne, Cont. 18. As to a rent service, it of course followed the nature of the reversion or seigniory to which it was incident; nor was there any doubt as to the custom of gavelkind extending to other rents, if they had existed immemorially. 19. Tithes impropriate in lay hands are comprehended under the general word hereditaments, in the statute of wills, and are therefore devisable. 20. Lord Coke says, that franchises, which are not of an annual yearly value, cannot be devised; and therefore if the King grants bona et catalla felonum, waifs, estrays, or any other kind of franchises which are not of an annual value, they are not devisable. But that franchises of a certain value, and not restrained to the person of the grantee and his heirs, may be devised. 21. Franchises, though not of an annual value, will however pass by a devise, as appurtenant to other things of an annual value. 22. Thus in Butler and Baker's case it is said, if a man seised of a manor, to which court-leet, waif, estray, or any other hereditament which is not of any annual value, is appendant or appurtenant, devises the manor with the appurtenances, these shall pass as incidents to the manor. 23. An opinion formerly prevailed that neither contingent remainders, nor any other contingent estates, or interests in land, could pass by a will made previous to their vesting; but in the following cases they have been held to be devisable. |