that they agreed with me in this opinion." Upon which the Solicitor General De Grey and Mr. Skynner waved all further argument on the other side; and Lord Northington added-" This argument is pro

perly withdrawn, as the point is settled, and ought not to be shaken. It is a liberal and right determination."

25. 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 age 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. unto 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 possession, 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.

Jones v.

26. Upon a writ of error in the Court of King's 3 Term Rep. Bench, the decision of the Court of Common Pleas was confirmed: and Lord Kenyon observed, that the Perry. 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 explanatory of 32 Hen. VIII. c. 1., declared that all persons having a sole estate or interest in lands, &c. might devise; which did not include a bare possibility or hope of succession, 1 Ves. Jun. but a possibility accompanied with an interest.

Perry v.

Philips,

25.

27. When the feudal doctrine of non-alienation The Devisor began to subside, and some persons were allowed to dispose of their lands by will, a devise was considered

must be seisled.

ed or entit

Cowp. 305. to be in the nature of an appointment to uses.

The

courts of law therefore held, that a devise affecting lands could operate only on such real estates as the testator had at the time of executing his will, and not upon any lands acquired afterwards.

28. 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 3 Rep. 30 b. what he has not in him, then. And in Butler and Baker's case, the Judges commenting on the word hacing, 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.

Brunker v. Cook,

11 Mod. 121,

1 Salk. 237.

29. A person devised all such sums of money, lands, tenements, goods, chattels, and estates whatsoever, wherewith at the time of his decease he should be possessed 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.

Upon a writ of error in the House of Lords, this 3 Bro. Parl. judgment was affirmed.

30. 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.

Ca. 19.

Mr. Longford entered into articles with Governor Longford Pitt, for the sale of lands in Cornwall, Long 2 P. Wms. v. Pitt, before the execution of the articles, Governor Pitt 629. made his will; and the question was, whether the lands comprised in the articles passed by the will; and it was held that they did not.

seised or

11 Mod. 128. Holt's Rep.

31. The devisor must not only be actually seised, And must or well entitled to the lands, at the time of making continue his will; but must continue to be seised or entitled entitled. to them, 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, and is afterwards disseised, and dies before entry, Devise, pl.15. the devise is void. But if the devisor re-enters, the devise becomes again valid; according to the opinion

748.

Bro. Ab. tit.

of Lord Holt; because when a man is disseised, and 4 Burr. R. re-enters, the disseisin is purged, and the disseisee is 1961. considered as never having been out of possession.

Where the devise is of an estate in reversion, it must not be divested and turned to a right, of which an account will be given in a subsequent part of this chapter.

8 Ves. 282.

vide infra,

e. 6.

Exceptions.

Tenancies escheated.

1 Saik. 238.

32. There are a few cases in which it has been held that a devise should operate upon property which the devisor had not at the time of making his will.

33. Thus where a person devised his manor of A., and subsequent to the execution of his will, but 11 Mod. 129. before his decease, a tenancy escheated; it was admitted that it would pass to the devisee, as being part of the manor.

Copyholds purchased by the Lord.

Roe v. Wegg, 6 Term R. 708.

And Terms for Years.

1 P. Wms.

176.

34. It has also been determined, that where a person seised of a manor made his will, and afterwards purchased a copyhold held of the manor, the land passed by the will.

35. 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. 1

36. A term for years, purchased after the execution

of the will, passes by it, because it is only a chattel 575. 3 Atk. real; and the will in this instance operates as a tes tament, and not as a devise, either by custom or by the statutes of wills.