WILL. 



doth not extend to grand-children, or to a natural child, 

 and confequently not to any more diftant kindred. ( 2 Vez. 

 582. I Wilfon, 161. 6 Vez. 544.) And if a man, 

 ieifed of copyhold lands, furrenders the fame to the ule of 

 his will, and executes a will, not atteftcd by any witnefles, 

 yet it fhall dired the ufes of the furrender : for the claufe 

 in the llatutc, which requires the teftator's Ggnnig in the 

 prefence of three witnefTes, is confined only to fuch eftates 

 as pafs by the ftatute of wills of 34 & 35 Henry VIIT., 

 which doth not extend to copyhold. ( 2 Atk. 37. 7 Eall s 

 Rep. 299.) See Mortmain. • n h . 



By 29 Car. II. cap. 3. any ellate pur auter -vie (hall be 

 devifable by a will in writing, figned by the party fo de- 

 vifing the fame, or by fome other perfon in his prefence 

 and by his exprefs direftions, attefled and fubfcribed in the 

 prefence of the devifor by three or more witneffes ; and if 

 no fuch devife thereof be made, the fame fhall be chargeable 

 in the hands of the heir, if it (hall come to him by reafon of 

 a fpecial occupancy, as affets by defcent, as in cafe of lands 

 ia fee-fimple ; and in cafe there be no fpecial occupant 

 thereof, it (hall go to the executors or adminiftrators of the 

 party that had the eftate thereof by virtue of the grant, and 

 (hall be affets in their hands. 



One that hath money to be paid hina on a mortgage may 

 devife this money when it comes. God. O. L. 391. 



And if the feoffee in mortgaije, before the day of pay- 

 ment which (hould be made to him, maketh his executors 

 and die, and his heir entereth into the land as he ought ; it 

 feemeth in this cafe, that the feoffor ought to pay the money 

 at the day appointed to the executors, and not to the heir 

 of the feoffee : but yet the words of the condition may be 

 fuch, as the payment (hall be made to the heir ; as if the 

 condition were, that if the feoffor pay to the feoffee or to 

 his heirs fuch a fum at fucii a day, there after the death of 

 the feoffee, if he dieth before the day hmited, the payment 

 ought to be made to the heir at the day appointed. I Inft. 

 209, 210. 



And hereby it appearcth, that the executors do more re- 

 prefent the perfon of the teftator, than the heir doth that of 

 the anceffor ; for though the executor be not named, yet 

 the law appoints him to receive the money, but fo doth not 

 the law appoint the heir to receive the money unlefs he be 

 named, i Inft. 209, 210. 



A perfon may devife by his will the right of prefenting 

 to the next avoidance, or the inheritance of an advowfon. 

 And if fuch devife be made by the incumbent of the church, 

 the inheritance of the advowfon being in him, it is good, 

 though he die incumbent ; for though the teftament hath no 

 effea but by the death of the teftator, yet it hath an incep- 

 tion in his life-time : and fo it is, though he appoint by his 

 will who fhall be prefented by the executors, or that one 

 executor fhall prefent the other, or doth devife that his 

 executors (hall grant the advowfon to fuch a man. Watf. 



c. 10. 



But where an advowfon was devifed to the firft or other 

 fon of B, that (hould be bred a clergyman and be iu holy 

 orders, and if B (hould have no fuch fon, to C ; both de- 

 vifes were holden by the court of common pleas to be void, 

 as depending on too remote a contingency ; for the rule of 

 law is, that the contingency on which fuch an executory 

 devife'hinges muft take effed within fome life in being, or 

 21 years afterwards ; but it was uncertain that the fon of B, 

 if he ever (hould have any, would take, or be able to take 

 orders within 21 years of the death of his father. Proftor 

 V. the Bilhop of Bath and Wells, and others, 2 H. Bla. 



If upon articles for a purchafe, the purchafer die, having 



devifed the land before a conveyance executed, tlie land will 

 pafs in equity ; for the teftator had an equity to recover the 

 land, and the vendor ftood truftee for the teftator, and as he 

 (hould appoint, till a conveyance executed. i Chanc. 

 Caf. 39. 2 Vern. 679. 



For the vendor of the eftate is, from the time of his con- 

 traft, confidered as a truftee for the purchafer ; and the 

 vendee, as to the money, is confidered as a truftee for the 

 vendor. I Atkyns, 573. 



So if a man covenants to lay out a fum of money in the 

 purchafe of lands, generally ; and dcvifeth his real eftate 

 before he hath made fuch a purchafe ; the money to be laid 

 out will pafs to the devifee. Id. 



But if a man, having made his will, afterwards contrafts 

 for the purchafe of lands ; the lands contrafted for will not 

 pafs by the will, but defcend to the heir at law. Id. 



But if a good title cannot be made of the lands ; as the 

 heir in fuch cafe cannot have the lands, fo he fhall not have 

 the money intended to be laid out. Id. 



If a man have a leafe for ever fo many years, determin- 

 able upon life or lives, that is, if fuch or fuch live fo long ; 

 this eftate may well enough be given and difpofed by will, 

 becaufe it is but a chattel. Went. 19. 



A leafe for years may alfo be deviled to A for hfe, re- 

 mainder to B. And if the leafe be renewable, and A renew, 

 B fhall contribute to the fine fo partaking of the benefit of 

 the renewal. 



If the teftator, by his lail will and teftament, do give or 

 bequeath to another any debt due unto him, or a thing in 

 aftion belonging unto him, the legacy is good and effeftual 

 in the law, and may be recovered in this manner, that is to 

 fay, if the teftator do make the legatary executor of that 

 particular debt or thing in adtion bequeathed, then the lega- 

 tary as executor thereof may commence fuit in his own 

 name, and recover the fame to his own ufe, againft him by 

 whom it was due ; but if the teftator do not make the lega- 

 tary executor of the debt or thing in aftion bequeathed, then 

 his remedy lieth in the ecclefiaftical court, where he may 

 convent the executor, and compel him either to fue for that 

 debt in a court competent, and upon recovery and payment 

 thereof to pay it over to the legatary, or elfe to make a 

 letter of attorney to the legatary for the recovery of the 

 debt or thing in aftion bequeathed in the name of the exe- 

 cutor to the ufe of the legatary. Swin. 187, f88. 



Albeit the teftator have no fuch thing of his own as is 

 bequeathed, yet neverthelefs the legacy is good in law ; 

 therefore, if the teftator do bequeath a horfe or a yoke of 

 oxen, the legacy is good in law, though the teftator have 

 neither horfe nor ox of his own. But who (hall make 

 choice, in this cafe, of the thing fo bequeathed, is a quef- 

 tion not to be neglefted : and the folution is this ; that if 

 the words of the devife be direfted to the legatary, as if the 

 teftator ftiall thus fay, I will that A B fhall have a horfe, 

 the choice doth belong to the legatary ; but if the words 

 be direfted to the executor, as if the teftator fhall thus fay, 

 I will that my executor give to A B a horfe, the eleftion 

 doth belong to the executor. Provided neverthelefs, that 

 to vvhomfoever the eleftion doth belong, whether to the le- 

 gatary, or to the executor, they muft not be unreafonable 

 in their eleftion, but frame themfelves according to the 

 meaning of the teftator ; otherwife the legatary might make 

 choice of the beft horfe in the country, and the executor of 

 the worft, contrary to the meaning of the deceafed. Swin. 

 188. 



If there be two joint-tenants of lands, and one of them 

 devifeth that which to him belongs, and dieth ; this is no 

 good devife, and the devifee takes nothing, becaufe the de- 

 vife 



