8 Vin. 61. pl. 21. The devisor must be seised or entitled. things as are devisable; but a right of entry was not devisable, and therefore, according to the terms of the statute, and the authority of that case, was not devisable. For these reasons, the Court was of opinion that there must be judgment for the defendant. And whatever mischief or hardship might attend the decision of this case, or might be expected to arise from the application of the same rule to other cases, it was an inconvenience which could only be remedied by positive law; and the propriety of applying such a remedy, whereby the same rights of entry and action which belong to the heir, might be extended to the devisee, was a question particularly fit for the consideration of the legislature." 32. When the feudal doctrine of non-alienation began to subside, and some persons were allowed to dispose of their lands by will, a devise was considered to Cowp. R. 305. be in the nature of an appointment to uses. The courts 3 Rep. 30. b. of law, therefore, held that a devise affecting lands could operate on those only of which the testator was possessed at the time of executing his will; and not on any lands acquired afterwards. 33. The statutes of wills adopt the same principle, the words being, all and every person and persons having manors, &c. or having a sole estate, &c.; from which it follows that the devisor must have the estate at the time of making his will, for he cannot devise what he has not in him, then. And in Butler and Baker's case, the Judges commenting on the word having, in the statutes of wills, say,-If it be asked, quis potest legare; the makers of the act answer, every person having manors, &c.; not every person generally. 34. A person devised all such sums of money, lands, li Mod. 121. tenements, goods, chattels, and estates whatsoever, v. Cook, 1 Salk. 237. * A writ of error was brought in the Exchequer Chamber, but judgment was given on another point. 1 Taunton's Rep. 578. pos wherewith at the time of his decease he should be sessed or invested, to his wife. Nine years after, the testator received a sum of money in right of his wife, which he laid out in the purchase of an estate in Kent, of the nature of gavelkind, and died without having republished his will. The heir at law of the testator entered, and his widow brought an ejectment to recover the possession. The jury found a special verdict, stating the above facts; and that by the custom of gavelkind any tenant, being seised of lands in fee, might devise the same by will in writing. The Court was of opinion that the lands did not pass and Lord Holt said, the lands purchased after the execution of the will did not pass by it, because the law of England was plain as to this point, by all the precedents; and the law was the same of lands devised by custom, as of lands devised by statute: and whenever a will was pleaded, it was always said that the testator was seised in fee, and being so seised made his will; which plainly showed, that it was absolutely necessary he should be seised in fee at the time of making his will. Ca. 19. Upon a writ of error in the House of Lords, this 3 Bro. Parl. judgment was affirmed. 35. It has been stated that lands contracted for may be devised: there must, however, be express articles, or a positive agreement, binding within the statute of frauds, for the purchase of an estate, entered into and completed before the execution of the will; otherwise such estate will not pass by it. v. Pitt, 629. 36. Mr. Longford entered into articles with Gover- Longford nor Pitt, for the sale of lands in Cornwall. Long before 2 P. Wms. the execution of the articles, Governor Pitt made his will; and the question was, whether the lands com- 11 Ves, Jun, prised in the articles passed by the will; and it was held that they did not. 550. And must con 37. The devisor must not only be actually seised, or tinue seised or well entitled to the lands, at the time of making his entitled. Holt's R. 748. Bro. Ab. Tit. 11 Mod. 128. will, but must also continue to be so seised or entitled till the time of his death; for, in the case of a devise of a legal estate, the will cannot take effect unless the devisor dies seised; so that if a person devises his lands, Devise, pl. 15. and is afterwards disseised, and dies before entry, the devise is void; but if the devisor re-enters, the devise becomes again valid, according to the opinion of Lord Holt; because when a man is disseised, and re-enters, the disseisin is purged, and the disseisee is considered as never having been out of possession. 4 Burr. R. Ante, § 30. Exceptions. Tenancies es- Copyholds sur rendered to the lord. Tit. 10. c. 6. § 5. Roe v. Wegg, 6 Term R. 708. 38. In the case of lands contracted for, or a trust estate, the equitable right must continue undisturbed. And where the devise is of an estate in remainder or reversion, it must not be devested or turned to a right, as has been already stated. 39. There are a few cases in which it has been held that a devise should operate upon property of which the devisor was not possessed at the time of making his will. 40. Thus where a person devised his manor of A., and subsequent to the execution of his will, but before his decease, a tenancy escheated; it was admitted that the land comprised in the tenancy would pass to the devisee. 41. It has been stated, in a former title, that where a copyholder surrenders to the lord, the land continues to be part of the manor, freed from the customary right of occupation of the copyholder; and would pass by any conveyance of the manor. In consequence of this principle, it has been determined, that where a person seised of a manor, made his will, and afterwards purchased a copyhold held of the manor, and took a surrender of it to himself, it passed by the will. 42. Mr. Hale devised the manor of King's Walden with the appurtenances, and all his messuages, lands, tenements, and hereditaments in the parish of King's Walden, to W. Hale, esq. Mr. Hale, after making his will, purchased a copyhold, parcel of the said manor, and held of himself, as lord of the manor, and the same was surrendered to the use of Mr. Hale and his heirs. It was determined that this copyhold passed by the will of Mr. Hale; because, in the eye of the law, the copyholders of the manor are only tenants at will to the lord, who is seised of the freehold and inheritance of the whole. Now, when the lord in this case made his will, it operated upon the whole manor, including the demesnes and services; and when the copyhold was purchased by the lord, it was still part of the manor, and passed by a devise of the manor. 43. A term for years purchased by a testator after the execution of his will, passes by it; because it is only a chattel real; and the will in this case operates as a testament, and not as a devise, either by the custom or by the statutes of wills. As the statutes of wills only mention lands held by Copyholds derender, visable by sur Gilb. Ten. 322. knight service, and in socage, they do not extend to copyhold estates; but a power of devising this kind of 1 Inst. 111. 6. property has long been indirectly exercised by an appli- n. 1. cation of the doctrine of uses, similar to that which was anciently resorted to, in respect to freehold lands. For this purpose the copyholder surrenders his estate to the use of his last will, and then disposes of it by his will; which operates as a declaration of the uses of the surrender, and not as a devise under the statutes of wills. 2. By the general custom of all manors, every copyholder has a right to surrender his estate to the use of Pike v. White, his will; and in a modern case it was held, that if there was a custom in a manor that copyholds should not be surrendered to the use of a will, such a custom would be deemed void. 3 Bro. R. 286, 15 Ves. 403. Com. Dig. Tit. Cop. F. 10. Doe v. Tofield, 3. A surrender to the use of a will must be presented; but by special custom such presentment may be made at the next Court after the death of the surrenderor, though it be not the next after the surrender made; and, it is said, that it would be good without any special custom. 4. A surrender to the use of a will cannot be made 11 East, 246. before the admittance of the devisor; for till then he has no estate or interest in the copyhold. Effect of such surrenders. 4 Rep. 23. a. Gilb. Ten. 195. Fitch v. Thrustout v. Cunningham, 2 Black. R. 1046. 5. Where a copyholder surrenders to the use of his will, the estate still remains in him, and does not vest in the lord; for all the design of the surrender is, that the surrenderor may dispose of it by his will; not to vest an interest in any one, or to give away the power of disposing of it. 6. Thus where a copyholder surrendered to the use of himself for life, then to his son for life, then to the use of his will; the son died, and the father surrendered to the use of another in fee: it was held by Anderson and Walmsley, that the copyholder might dispose of it in his lifetime, notwithstanding the surrender to the use of his will. 7. A copyholder having surrendered to the use of his will, and afterwards surrendering to new particular uses, with reversion to himself in fee; it was held that he was in of the old use, and might devise the reversion, without any admittance or fresh surrender to the use of his will. 8. Where a copyholder makes a surrender of a copy |