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 parties, notwithstanding the statute of frauds, will Tit. 32. c. 3. vest such an interest in the purchaser, as he may devise by his will. Potter, Ves. 437. 12. In the year 1743 a parol agreement was made Potter v. 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 purchaser'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 circumstance 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 Tit. 32. c. 3. 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. Rose v. Cunninghame, 11 Ves. 550. Vide Longford v. Pitt, infra. Mortgages. Tit. 15. c. 2. Anon. 2 Cha. How v. 1 Cha. Rep. 13. If a mortgagee devises the lands mortgaged, before the condition is broken, it will be void; because 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. 14. An equity of redemption, being similar in some Equities of Redemption. respects to a trust estate, has always been considered Tit. 15. c. 3. as devisable and in 12 Cha. II. it was decreed by the Court of Chancery, that where a person seised Philips v. in fee, had mortgaged his estate, and afterwards Hele, 1 Cha Rep. 101. devised it, the equity should go to the devisee, and not to the heir. Tit. 21. Cro. Eliz. 15. An advowson appendant to a manor will of Advowsons. course pass by a devise of the manor; an advowson Cleer v. in gross being an hereditament, is also devisable Peacock, under the statute of wills; and the next or any number 359. of presentations may also be devised; in which case Epis. Linthe devisee may either present himself, or any other coln. Law v. 1240. Cro. Ja. 371. Harris, 2 Black R. person. 16. Where the incumbent of a church had the in- Penchyn v. heritance of the advowson in him, and devised the next presentation, it was held good; for though the will had no effect till the death of the devisor, yet it had an inception in his lifetime, and that made it good. 17. A rent charge is devisable by the words of Rents. the statute 34 & 35 Hen. VIII.; but it was formerly n. 5. doubted whether a rent charge in esse, issuing out of 1 Inst. 111. a. gavelkind lands, and having commenced within time of memory, was within the custom of devising; and Rob. Gav. 79. it was not settled to be so, till the time of Lord Hale. As to rent service, it of course followed the nature Idem. of the reversion or seigniory to which it was incident: nor was there any doubt as to the custom extending to other rents, if they had existed immemorially. 18. Tithes impropriate in lay hands are compre- Tithes. hended under the general word hereditaments, in the Tit. 22. § 76. statute of wills, and are therefore devisable. 19. Lord Coke says, that franchises which are not Franchises, 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 VOL. VI. D 3 Rep. 32 b. Contingent are not of an annual value, they are not devisable. But franchises of a certain value, and not restrained to the person of the grantee and his heirs, may be devised. 20. Franchises, though not of a certain value, will however pass by devise, as appurtenant to other things of an annual value. 21. Thus in Butler and Baker's case it is said, if a man seised of a manor, to which a 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. 22. Contingent remainders, and all other contingent estates and interests in land, are now held to be devisFearne Cont. able; though formerly an opinion prevailed that Ren. 537. they did not pass by a will made previous to their vesting. Selwin v. 1 Black R. 23. John Selwin being tenant for life, with remainder 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 same term. John Selwin the testator died soon after the Tit. 36. c. 3. return of the writ of entry; and the question was, whether the lands comprized 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 executory 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 reported to have said, that if the practice of the Court 1 Black. R. 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. 24. 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, or reversion, to the plaintiff, and died in the lifetime of James Grubb the son; who afterwards died under age; and without issue. 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, Moor v. H. Black. R. 33. |