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 dif ferent estate than would have descended to him; the one being pure and absolute, the other not: 14. A difference in the quality of the estate will also have the same effect. 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. 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. It 1 Leon. 112. 15. In a formedon in the descender, brought by Beare's Case, 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. 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's which has been Fearne's published, he says, that a devise to the heir and Opin. 128. another, as tenants in common, will not prevent the heir's taking his moiety by descent. For suppose a infra, c. 15. Devises to Charitable Uses. 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 to two or more as tenants in common is in effect a 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. II. c. 36, which has been already stated, all devises and Tit. 32. c. 2. 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 declared void. 44. Where there has been Fraud. 18. Where any fraud or circumvention has been practised on a testator, or where he was incapable of disposing of his lands from any weakness of mind, Kerrick v. 7 Bro. Parl. his will is void. But where the validity of a will of lands is impeached on these grounds, a court of equity Bransby, will not set it aside, but will direct a trial at law on Ca. 437. the issue of devisavit vel non; for if the will be Webb v. obtained by fraud, or be made by a person incapable 2 Atk. 424. of devising, it is not in point of law the testator's will; and therefore these points are proper to be tried before a jury. Claverdon, 8 Term R. 147. 19. It was held in a modern case, that in order to Doe v. Allen, 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. before the 20. A devise may become void by an event subse- Where the quent to the making of a will. Thus it is a rule that Devisee dies if the devisee dies before the devisor, the devise Devisor. becomes void. This doctrine was probably adopted from the rule of the civil law-Pro non scriptis sunt Domat.vol.2. is relicta, qui vivo testatore decedunt. 21. A. devised lands to B. and his heirs. 98. B. died Brett v. in the lifetime of the testator. The question was, Plowd. 341. 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. 22. Henry Fuller, having issue four sons, John, Fuller v. Richard, Edward, and Henry, devised lands to his Fuller, Cro. Hutton v. Wynn v. Wynn, 3 Bro. Par.. Ca. 95 Goodright v. 1 P. Wms. 1 Stra. 25. 10 Mod. 370. 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. 23. 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 in the lifetime of the testator; and that her son could 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. 24. R. Wynn devised his estate to his brother M. Wynn, and the heirs male of his body, remainder to O. Wynn and the heirs male of his body. M. & Oi Wynn died in the lifetime of the testator; but Q. Wynn left an only son, who claimed under the devise. It was resolved that he took nothing. 25. 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. 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, ante, § 21. because as well 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 Greenslate, Busby v. issue mentioned for nothing else but to limit what infra, c. 14. estate the devisee should take. 26. Susan Jolland devised certain lands to the use Hodgson v. and behoof of her sister Elizabeth, the wife of John Ambrose, Doug. 337.. 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 limited 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 |