WILL. 



viie doth not take effeft until after the death of the devifor, 

 and then the furviving joint-tenant takes the whole by 

 prior title, to wit, from the firft feoffment. Gilbert on 

 Wills, 120. 



And although the jointure is fevered before the teftator's 

 death, yet if the will be made before the feverance, it will 

 have no effeft ; unlefs there is a republication of the will 

 after the partition. Bur. Mansf. 1496. 



So alfo a man cannot give or bequeath by will any of 

 thofe goods or chattels which he hath jointly with another : 

 for if he (hould bequeath his portion thereof to a third per- 

 fon, this bequeft is void by the laws of this realm ; and the 

 furvivor, which had thofe goods or chattels jointly with 

 another, Ihall have that portion fo bequeathed, notwith- 

 ftanding the faid will. Swin. 189. 



But otherwife it is with the tenants in common (God. O. 

 L. 131.) and coparceners. For there is no furvivor be- 

 tween coparceners, but the part of each is defcendible, and 

 confequently may be devifed. (Co. Lit. 185. i.) And a 

 deed of partition is not a revocation of a devife of his moiety 

 by tenant in common. Luther -v. Ridley, cited in 3 P. 

 Wms. 169. 



By 20 Hen. IIL cap. 2. widows may bequeath the crop 

 of their ground, as well of their dowers, as other their 

 lands and tenements ; faving to the lords of the fee all fuch 

 fervices as be due for their dowers and otlier tenements. 

 And this is only in affirmance of the common law. ( 2 Inil. 

 80.) But by 27 Hen. VIII. cap. lo. a married woman, 

 having a jointure made, (hall not have any dowry of the re- 

 fidue of her hulband's lands. 



By 28 Hen. VIII. cap. 11. if the incumbent before his 

 death hath caufed any of his glebe land to be manured and 

 fown, at his proper cofts and charges, with any corn or 

 grain ; he may make and declare his teftament of all the 

 profits of the corn growing upon the faid glebe land fo ma- 

 nured and fown. 



But if the teftator is leffee for years, and fow the land a 

 ftiort time before his leafe expires, and then dies, before the 

 corn can pofiibly be ripe within the term, in this cafe a de- 

 vife thereof is void, becaufe he himfelf could net. have 

 reaped it after the expiration of the term, if he had lived. 

 Swin. 191. 



Not only that thing may be devifed or bequeathed by the 

 teftator, which is truly extant, or hath an apparent being 

 at the time of the making of the will or death of the teftator ; 

 but that thing alfo which is not in ren/m natura, whilft the 

 teftator liveth : therefore, it is lawful for the teftator to be- 

 queath the corn which will be fown or grow in fuch foil 

 after his death, or the lambs which (lull come of his flock 

 of fheep the next year, depafturing in fuch a field. But if 

 there be no fuch corn growing in that foil, nor any lambs 

 arifing out of that flock, then the legacy is dcftitute of 

 effeft, becaufe no fuch thing is extant at all as was be- 

 queathed. But if the teftator devife a certain quantity of 

 grain or number of lambs, as for the purpofe, twenty quar- 

 ters of corn or twenty lambs, and doth will and devife, that 

 the fame ihall be paid out of the corn which fhall grow in 

 fuch a firld, or arife out of his flieep depafturing in fuch a 

 ground ; though not fo much or no corn at all there grow, 

 or not any or not fo many lambs there arife, yet neverthe- 

 lefs the executor is compellable by law to pay the whole 

 1-gacies entirely ; becaufe the mention of the foil and of the 

 flock was rather by way of demonftration than by way of 

 condition, rather fliewing how or by what means the faid 

 legacy might be paid, than whether it fhould be paid at all 

 yea or no. Swin. 186. 



Thofe things which after the death of the teftator defcend 

 6 



to the heir of the deceafed, and not to his executor, cannot 

 be devifed by teftament, except in fuch cafes wherein it is 

 lawfid to devife the lands, tenements, or hereditaments. 



If a man be feifed of a houfe, and poftefled of divers 

 heir-looms, that by cuftom have gone with the houfe from 

 heir to heir, and by his will devifeth away thefe heir-looms ; 

 this devife is void : for the will taketh effeft after his death ; 

 and by his death, the heir-looms by ancient cuftom are 

 vefted in the heir, and the law prefers the cuftom before the 

 devife. And fo it is, if the lord ought to have a heriot 

 againft his tenant, and the tenant devifeth away all his 

 goods ; yet the lord fliall have his heriot for the reafon 

 aforefaid. i Inft. 185. 



The teftator may devife all goods and chattels which he 

 hath in his own right, but not thofe which he hath in the 

 right of another as executor. Swin. 185. 



An adminiftrator cannot make a teftament of thofe goods 

 which he hath as adminiftrator to any perfon dying in- 

 teftate ; becaufe he hath not any fuch goods to his own 

 proper ufe, but ought therewithal to pay the debts of the 

 dead perfon, and to diftribute the reft according to law. 

 Swin. 189. 



The huftiand cannot devife fuch goods as his wife hath as 

 being executrix to another, nor fuch things as are in aftion, 

 as debts due to her before marriage by obligation or con- 

 tract, unlefs he and his wife recover the fame during mar- 

 riage, or that he renew the bonds, and take them in his 

 own name ; otherwife after his death they remain to her. 

 I Inft. 351. 



But the hufband may, at any time during the coverture, 

 releafe a bond given to his wife. And where the huftand 

 makes a fettlement, the bonds to his wife, being part of her 

 fortune, will notwithftanding his death in the life-time of 

 his wife, before the fecurity be changed, be decreed in 

 equity to his executor ; he being confidered in that cafe as 

 a purchafer for a valuable confideration. Cafes in the time 

 of L. Talb. 168. 



A man may by his will difpofe of his chattels and per- 

 fonal eftate that he (hall for the future acquire, any time 

 after the making his will, to the time of his death. And 

 this is neceflary from the reafon of the thing ; becaufe the 

 chattels and perfonal eftate are in a continual fluftuation ; 

 and if the law were not fo, it would create very great con- 

 fulion, or elfe would render it neceiTary for a man to make 

 a new will every day. Gilb. 122. 



But it is not fo with lands, for they are fixed and per- 

 manent : and, therefore, if a man raaketh his will, and de- 

 vifeth therein all the lands which he ftiall have at the time of 

 his death ; and after that, he purchafeth lands, and dieth 

 without republication or making a new will ; in this cafe, 

 though his intent to the contrary is very apparent, yet it is 

 a void devife : for a man cannot devife any lands but what 

 he hath at the time of making his will. And this was ad- 

 judged upon great deliberation, by Holt chief juftice and 

 the court, in the cafe of Bunker and Cook : and the judg- 

 ment was affirmed afterwards upon a writ of error in the 

 honfe of lords, Feb. 24, 1707. Gilb. 122. 



But, by Holt chief juftice : If he repubhlhed his will, in 

 fuch manner, and with Inch circumftances, as are neceffary 

 to complete execution of an original will ; then the pur- 

 chafed lands will pafs as by an original will. ( 1 1 Mod. 

 127.) And in truth this feemeth to make it a new will, 

 to all intents and purpofes ; and not a republication of the 

 old one. 



But a codicil, which concerneth only perfonal legacies, 

 will not amount to a republication of the will, fo as to pafs 

 lands purchafed after the making of the will. 2 Vern. 625. 



If 



