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32 Hen. 8.

the evidence of three witnesses. If not so proved, it
is nothing; it cannot receive notice. The intention
cannot be represented; for it cannot be presumed,
and there is no evidence : the will not being
executed with the solemnity prescribed by the
law, as to real estate, cannot be read : the Court
cannot see any devise of real estate ; and there-
fore, as the estate does not appear to be devised away
from the heir, no act appearing to be done, as in
this case the act does appear to be done by Mr.
Thelusson, the heir cannot in that case be put to
election.
“ The case of Hearle v. Greenbank stands

upon the same ground; an infant under the statute not having a right to dispose of real estate. The Court cannot look at the will. It is, from the incapacity of the person who frames it, considered as no instrument.

“ These are the only instances in which the principle has been limited. It cannot be argued that it does not reach an heir at law. Lord Hardwicke would not put the case of an heir at law, by way of illustration, if the heir could not under any circumstances be put to election. The principle of election is plain and intelligible; that if a person being about to dispose of his own property, includes in his disposition, either from mistake or not, property of another, an implication arises, that the benefit under that will shall be taken upon the terms of giving effect to the whole disposition. Mr. Thelusson's heir takes these estates, as if his father had not made a will; but my opinion is, that he cannot also take what is given to him by . Devise. Ch. ii. $ 32. 32. Mr. Vesey, in a note to this case, observes, that 9 Ves. 347. the case of a devise to the heir of an estate which he would have by descent, if no will was made, and to another person of an estate of which the heir is seised in his own right, is put by Sir S. Romilly as said to be a case of election, and that Mr. Sugden had found a precise decision of the point accordingly against the heir. Anon. Gilb. Eq. Rep. 15. And in that instance it might be observed, the heir took, not under the devise, but by his better title, descent. The devisor however devising the estate to him, must be conceived to be aware of his power to devise it away; and the condition was accordingly implied.

the will. He must therefore elect.” I Dow. 249. Upon an appeal to the House of Lords, the order

was confirmed.

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Estates in THE proper subject of a devise is real property ;
Fee Simple. and the words used in the statute of wills are,

“ manors, lands, tenements, rents, or other heredita-
ments, in possession, reversion, or remainder;" which
extend to every species of real property, whether

corporeal or incorporeal. 3 Buls. 184.

2. Not only estates in fee simple absolute, but also determinable fees, and base fees, are devisable under these statutes; the word fee simple being taken in its most extensive sense.

3. By the words of the statute 34 & 35 Hen. VIII. § 4. all persons seised in fee simple, in coparcenary,

1

Gawin v.

804.

Grantham,

or in common, may devise the estates which they hold in this manner. And all persons seised in fee simple may 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 Estates for

Lives. to estates in fee simple, and therefore did not enable persons to devise estates pur auter vie. But it was Ramtes, enacted by the statute 29 Cha. II. c. 3. § 12. that Cro. Eliz. any estate pur auter vie shall be devisable by will in writing. 5. As to chattels real, or terms for years, they Chattels

Real. might always have been disposed of by testament, because they were only considered as personal estate, But where a person acquires a term as executor, he Bransby v. cannot devise it; for immediately on his death it is to

Plowd, 525. 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 con- Wentw. sent of the executor is necessary to complete the c. 2 & 19. title of the devisee; and if a term be devised to A. for life, remainder to B., the assent of the executor 10 Rep. 47 b. 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 Trust were originally devisable ; so trust estates, which in Estates. fact are uses not executed by the statute, are now devisable ; but where a person has only an equitable 2 P. Wms. 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 articles are entered into for the purchase Lands con

tracted for. of lands, and before a conveyance of the legal estate is made, the purchaser devises the estates, and dies;

258.

Prec. in Cha. 320.

1 Cha. Ca. 39. such devise will be held good in equity : for although 9 Mod. 78. according to the strict of rules of law, the devisor

has not lands within the statute of wills, till a conveyance of the legal estate is executed ; yet, from the execution of the articles, 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 dispose of them.

9. Where an agreement for the purchase of land is not to be carried into execution till a future day, and previous to such day the purchaser makes his

will, yet the lands so agreed for pass by such will. Greenhill v. 10. By articles dated in April 1706, it was agreed Greenhill, between the vendors, and the agent of the purchaser,

that the possession of the lands, agreed to be purchased, should be delivered at the Michaelmas following, and proper conveyances to be 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

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