Selwin, 1 Black. R. 222. 251. 24. John Selwin being tenant for life, with re- Selwin v. mainder to his son John in tail; the father and son 2 Burr. 1131. joined in a deed of bargain and sale, dated 20th April 1751, to make a tenant to the præcipe, for the purpose of suffering a common recovery; the uses of which were declared to be to the father for life, remainder to the son in fee. Trinity term began that year on the 7th of June, and on the 8th, John the son made his will, whereby he disposed of all his real estates; in the same term a writ of entry was sued out, returnable quinden. trin. which was the 17th June, and the recovery was completed the said term. John Selwin the testator died soon after the return of the writ of entry; Tit. 36. c. 3. and the question was, whether the lands comprised in the recovery passed by the will, it having been made before the return-day of the writ of entry. It was contended that the testator had only a future exécutory use, at the time of making his will, not a present use; for the statute could not draw the estate to the use, till the possibility, that is, the completion of the recovery, had actually happened; and that this future executory use was not devisable. 606. The Court of King's Bench certified their opinion to the Court of Chancery, that the lands passed by the will; and Lord Mansfield, in a subsequent case, is re- 1 Black. R. ported to have said, that if the practice of the court allowed him to give his reasons, he was prepared to have shown, with the concurrence of his brethren, that all contingent, springing, and executory uses, where the person who was to take was certain, so that the same might be descendible, were devisable. 25. The doctrine laid down by Lord Mansfield, has been fully confirmed in the two following cases. Sir James Grubb devised all his real estates, in trust for his son James; and if he should die without issue, under age, then that all his estates should go to Cochran his heirs and assigns. Cochran devised all the estates whereof he was seised in possession, remainder, Moor v. Haw1 H. Black. kins, R. 33. 2 Eden, 342. Roe v. Jones, 1 Hen. Black. Rep. 30. or reversion, to the plaintiff, and died in the lifetime of age; On a bill brought by the devisee of Cochran, a question was made whether the possibility given to Cochran was devisable. Lord Northington." I never had any doubts, since I was twenty-five years old, but that these contingent interests were devisable, notwithstanding some old authorities to the contrary. I sent the question however into the King's Bench, in the case of Selwin v. Selwin, for the satisfaction of the parties; and the certificate of the Judges implies, I think, that they agreed with me in this opinion." Upon which the SolicitorGeneral De Grey and Mr. Skynner waived all further argument on the other side; and Lord Northington added" This argument is properly withdrawn, as the point is settled, and ought not to be shaken. It is a liberal and right determination." 26. A testator devised his dwelling-house, &c. to his brother T. L. till his (T. L.'s) youngest son I., or any other of his younger sons, should attain the of 21 years. And in case he should have no younger son who should attain that age, but only one son that should attain it, then till such only son should attain that age. And when his said nephew I., or any other of the younger sons of the said T. L., should attain the age of 21 years, then he gave his said dwelling-house, &c. untó his said nephew I., or unto such other son as for the time being should be a younger son of his said brother T. L., and should first attain his age of 21 years, and to the heirs and assigns of such younger son for ever. The testator left his said brother his heir at law, and T. and the said I. the sons, and only issue of his said brother. I. died under 21 years of age; and afterwards T., in the lifetime of his father T. L., made his will, and devised "all his worldly estate, of what nature or kind soever, whether in pos session, remainder, or reversion, that he should die seised or possessed of, interested in, or entitled to, invested in, or should belong to him at his decease, wheresoever or howsoever, in any manner or wise," unto his wife in fee. Upon this case three questions arose. First, whether there was a vested interest in T.: secondly, whether, if it was contingent, it was devisable: and thirdly, whether it passed by the will. Lord Loughborough said, the discussion of the first question was unnecessary; for taking it to be a springing contingent executory use in T., they were all of opinion that it was devisable, and passed by his will, 88. Upon a writ of error in the Court of King's Bench, 3 Tem Rep. the decision of the Court of Common Pleas was con- Jones v. Perry. firmed: and Lord Kenyon observed, that the statute for enabling persons having any manors, lands, &c. to devise, must mean, having an interest in the lands. He distinguished between such a contingent interest, and a mere possibility, like that which an heir has from his ancestor; which was nothing more than the hope of a succession, and was not subject to disposition; and he hoped that the point would be considered to be fully at rest, Ashurst, J. said, the plain meaning of the statute was, that every person who had a valuable interest in lands, should have the power of disposing of it by will. Buller J. observed, that if it was such an interest as was descendible, it seemed strange to say, it was not also devisable; that they must both be governed by the same principle; and that it was a sound distinction which had been taken by the Chief Justice, between a bare possibility, and a possibility accompanied with an interest. Grose, J. remarked, that the 4th section of 34 & 35 Hen. VIII. c. 5. which was explanatoy of 32 Hen. VIII, c. 1., declared that all persons having a sole estate or interest in lands, &c. might devise; which did not in Perry v. Philips, 1 Ves. Jun. 251. Joint tenancies not devisable. Tit. 18. c. 2. 3 Rep. 25. Poph. 87. Swift v. Roberts, 3 Burr. 1488. 1 Black. R. 476. clude a bare possibility or hope of succession, but a possibility accompanied with an interest. 27. Littleton says, if there be two joint tenants in fee of lands devisable by custom, and one of them devises his share, it is void; because no devise can take effect till after the death of the devisor; and by that event the lands become immediately vested in the other joint tenant by survivorship. 28. In conformity to this principle, the statute 34 & 35 Hen. VIII. only enables persons having a sole estate in fee simple, or seised in fee simple in coparcenary or in common, to devise, which excludes estates held in joint tenancy. And in Butler and Baker's case, in 35 Eliz. it was laid down, that the law only considers what estate the devisor had at the time of making his will, without regard to any subsequent event; from which it follows, and has been settled, that a devise by a joint tenant, who afterwards severs the joint tenancy is void; because the devisor was joint tenant when he made his will. 29. Richard Gilbert and Frances Sophia Gilbert were seised of the premises in question, as joint tenants in fee. Richard Gilbert, on the 20th January 1754, made his will, and thereby devised in these words: "Imprimis, I give and bequeath all my part, right, title, and interest, which I have in an estate jointly with my sister Frances Sophia Gilbert, to my wife Jane." Afterwards, by indentures of lease and release, Richard Gilbert and his sister made a partition, and severed the joint tenancy; and the estate in question was conveyed to Richard in fee. The question was, whether the will was good as to this estate. The Court was clearly and unanimously of opinion, that a will made by a joint tenant, during the continuance of the jointure, was not a good will, even as to a share of his estate, under the statute of wills, notwithstanding a subsequent severance of the joint tenancy, by a partition, unless there was a republica tion of it after the partition. entry. Tit.35. c. 12. 30. It has been stated, in a former title, that where Nor rights of there is a tenant for life, with a vested remainder, or a reversion immediately expectant thereon, in another person, and such tenant for life levies a fine, it devests the remainder or reversion, and turns it to a right, leaving only in the remainder-man or reversioner a mere right of entry, which is not devisable. 31. Thus in the case of Goodright v. Forrester, Lord Tit. 35 Ellenborough said, the second question was, whether a right of entry was devisable; and the Court was of opinion that it was not devisable, for such right was certainly not assignable by the common law, nor did it fall within the words of the statute 32 Hen. VIII. c. 1., which were, "having manors, lands, tenements, or hereditaments;" nor of the statute 34 & 35 Hen. VIII. c. 5. §4., which were, " having a sole estate or interest in fee simple of and in any manors, &c. in possession, reversion, or remainder." In Corbet's case, 1 Rep. 85. b. "For the construction of wills, this rule was taken by the justices in their arguments, that such an estate, which cannot by the rules of the common law be conveyed, by act executed in his life, by advice of counsel learned in the law, such estate cannot be devised by the will of a man who is intended by law to be inops consilii." From whence it might be inferred, that out of that interest, in which, by act executed in a man's life, it was not possible to create any estate, no estate could be created by his will. And in Butler "Without and Baker's case, 3 Rep. 32. a. it is said, question, that which a man cannot dispose of by any act in his life, shall not be taken for any of his manors, &c. whereof he may devise two parts, by authority given him by the statute." And in Lord Mountjoy's case, Godb. 17. it was laid down, "that the statute of wills, 32 Hen. VIII. that it shall be lawful, &c. to devise two parts, &c., respects only such |