(H 3.) Feme covert.

So a feme covert cannot make a will during her coverture. (k) 112. 1 Rol. 608. 1. 35. 609. 1. 40. 912. 1. 20. ()

By the st. 34 & 35 H. 8. 5. she cannot devise lands. (m) Nor can she make a will to dispose of her choses in action. 608. 1. 30. Semb. Cont. 1 Sal. 313.

Co. L.

1 Rol.

Or, things which she has as executrix. 1 Rol. 608. 1. 25. Cont. per Holt, 1 Sal. 313. Per North, 1 Mod. 211.

Yet she may make an executor for such choses in action. 1 Rol. 912. 1. 17. Cont. Off. Exr. 285. 289.

If she be an executrix, she may make an executor for things which she has as executrix. 1 Rol. 608. I. 30. 912. 1. 14. Off. Exr. 289. She may, with (n) the assent of her husband. 1 Mod. 211. R. Mo. 339.

2 And. 92.

But if an husband covenants or agrees before marriage, that his wife shall make a will; though it be a void will, the disposition by it shall be good. R. Cro. Car. 219. 376. 597. R. Cro. El. 27.

Per

But it is not properly a will, nor proveable by the ordinary. Holt, 1 Sal. 313. Semb. Cont. 2 Mod. 172. Pr. Ch. 84. Acc. 1 Mod.

211.

So, if a wife devises by will, and the husband assent to it after her death, it will be good. Semb. 1 Rol. 608. 1. 23. R. 1 Mod. 211.

And any approbation amounts to an assent. R. 2 Mod. 172.

An assent given before marriage shall be understood to be continuing, if a dissent does not appear. 2 Mod. 172.

And if an assent be once given after the death of the wife, he cannot afterwards dissent. 2 Mod. 172.

So by the custom of London, a feme covert may devise to her husband. Or to another, with the assent of her husband.

So, where the husband is banished for his life, by act of parliament, his wife may make a will: for she may in all things act as a feme sole. 2 Ver. 104, 105. (0)

Vide post, (M).

(H 4.) Person dead in law.

So a person dead in law cannot make a devise: as, an abbot, prior, &c. 1 Rol. 608. l. 16.

(k) And therefore a wife's will made during coverture, with her husband's consent, will not pass property acquired by her after his death. 2 East, 552.-2. For it was a nullity in its inception. 11 Mod. 157. -5. And it has been said by lord keeper Wright, that if a will is made by a feme covert of lands of inheritance to J. S., and the baron dies, and then the wife dies; though her intention be plain, and though after the decease of the baron, when she became sui juris, she might have devised the lands to J.S., or by a republication have made the former will good, yet it was not relievable in equity. 2 Vern. 475.-4. And where a married woman surrendered a copyhold to the use of her will, and afterwards married, it was held, that the surrender was suspended during the marriage, and that a devise by the wife of the copyhold so surrendered was void, notwithstanding that by articles previous to the marriage, her husband agreed that she should have power to devise. Amb. 627.

() Vide 7 T. R. 478.

(m) But a married woman may frequently dispose of lands by will, operating as an appointment under a power. Vide 4 Cruise, 181.

(n) Or without. 2 East, 552.

(0) 1 Inst. 133. a.

(H 5.) Corporation aggregate.

So a body politic aggregate cannot devise the lands or goods of the corporation.

(H 6.) Corporation sole.

So a sole corporation cannot devise lands, &c. which it has in its corporate capacity: as, a master or warden of an hospital cannot devise the lands or goods of his house. 1 Rol. 608. 1.20.

(H7.) Joint-tenant.

So a joint-tenant cannot devise lands which he holds jointly: (p) for the st. 32 & 34 H. 8. enables only persons seised solely, or in common,

or in parcenary.

So joint-tenants and to the heirs of one of them, he who has the fee cannot devise during the life of his companion. Per Windh., but Twisd. said, that there are opinions both ways. Ray. 40.

But, by the custom of London, a joint-tenant may devise.

(H 8.) Tenant in tail.

So tenant in tail cannot devise the lands intailed.

And, though he afterwards suffers a common recovery, it does not enure to the benefit of the devisee. R. 3 Lev. 108.

(H 9.) Tenant pur auter vie.

So, if tenant in tail, by indenture inrolled bargains and sells to A. and his heirs, by which he has an estate pur auter vie; A. cannot devise it for an estate pur auter vie was not devisable by the st. 32 & 34 H. 8. R. 1 Sand. 261. D. 1 Leo. 252. (q)

And, if A. had devised, and afterwards the tenant in tail levies a fine; this does not enure to the benefit of the devisee, but to the benefit of the heir of A. who takes the estate as special occupant. R. 1 Sand.

261.

Yet by the st. 29 Car. 2. 3. an estate pur auter vie is devisable by will in writing signed by the party devising the same, or by some other in his presence and by his express direction, attested and subscribed in the devisor's presence by three or more witnesses.

(I) Who may take by devise. Vide infra, (N 2.) Vide post, (K).

All

persons may take by devise, who can take by grant. (r) So a feme covert may take by the devise of her husband. 610. 1. 3. (s)

1 Rol.

So a person attainted, though the devise be to the next of blood. Per 2J. 2 Rol. 256, 257. (t)

So

(p) And a devise by a joint-tenant who afterwards severs the joint-tenancy is void. 3 Burr. 1488. 1 Blk. 476.

(q) Cro. Eliz. 804.

(r) A bastard may be a devisee, but he must have gained a name by reputation; and therefore a devise to a bastard in ventre matris is void, for he cannot have a name by reputation till he is born. 1 Inst. 3 b. 1 P. Wms. 529.

(s) Lit. s. 168. 1 Inst. 112. a.

(1) Lord Hardwicke has said, that there is no rule of law, or upon the statute of

So an infant en ventre sa mere may take by devise, and the land shall

descend to the heir, till its birth.
Acc. Mo. 177. R. 1 Sid. 153.
2 cont. 1 Lev. 135. Ray. 163.
So, if land be devised to his executors, and he makes A. and B. his
executors, who refuse; yet they may take the land. R. Mo. 594.

Dub. 11 H. 6. 13. Cont. Dy. 304.
R. 2 Mod. 9. Agreed per 4 J.
Semb. 2 Rol. 335. (u)

So every one shall take as a devisee, who is named with such certainty that the person may be known, though he does not take immediately upon the death of the testator (a): as, a devise to one of the daughters of B. who marries to a Norton within fifteen years; the first daughter, who so marries shall have it. R. Ray. 82. (y)

So a devise to a woman, when she marries, is good; and it shall descend to the heir till her marriage. R. 1 Sid. 153.

A devise to the heirs males of B. now living, and other heirs males and females of his body; a son of B. being godson to the devisor, shall take. R. 2 Jon. 100. 1 Vent. 334. 2 Vent. 313. 2 Lev. 232. Pol. 457. Carth. 155.

A man, having three daughters, devises to his wife till his heir be of full age, paying to his heir 101., to his other daughters 20s., and afterwards gives to B. and C. the younger daughter so much, and if A. his heir dies, &c. it shall be a good devise to the eldest daughter. R. 2 Lev. 162.

If A. having a son and seven daughters devises to a younger daughter for life, remainder to the son and the heirs of his body, (who dies without issue) remainder to two other younger daughters for life, remainder to the next of his blood; the son of the eldest daughter shall have it. Semb. Bridg. 15.

So, though some part of the description be mistaken: as, if a devise be, To Bevil Grandvill, second son of my second brother, who is my godson, and bears my father's name; B. G. who was godson to the testatrix; the daughter of Sir Bevil G. took, though he was second son of Bernard G. who was second son of the second brother of the testatrix. Per Master of the Rolls, H. 8 Ann., upon the will of Lady J. Thornhill.

So a devise to Eleanor daughter of B. who has several daughters, one named Hellen, but none Eleanor; Hellen shall take.

If a man devises to the heir of N. and it be found by verdict that P. his son is reputed his heir; P. shall take though N. be an alien. Semb. 1 Sid. 194. Vide post, (K).

If he devises to W. eldest son of Cha. W. of T. and the eldest son is named Andrew. R. Ch. R. 404. Per Weston, 3 Leo. 18.

So a devise to the mayor and governors of B. hospital; though it be not their corporate name. 3 Leo. 18.

wills, to prevent an alien from taking by devise; although it is a doubtful matter for whose benefit he is enabled to take. 2 Ves. 362.

(u) And may take by the description of a child living at the time of the decease. 2 H. Bl. 399.

6 Cruise, 208.

2. A

(x) Nihil facit error nominis, cum de corpore constat. (y) 1. A devise was to Margaret, the daughter of W. K.; the daughter's name was Margery; and held that she should take, quid constat de persona. person devised an estate to William Pitcairne, eldest son of Twickenham: who had an eldest son, but his name was Andrew. Andrew should take. Finch, 403.

Freem. 293.
Charles Pitcairne of
It was decreed that
So,

So, a devise to A. for life, and afterwards to the heirs male of the body of his grandfather; a son of the body of his grandfather shall take, though he be not heir general. R. 2 Ver. 729.

A devise to the issue of B. begotten; all the issues take, though born afterwards. R. 2 Ver. 545.

A devise to A. if he be known by that name; though his true name is W. Per And. Godb. 17.

So a devise to B. to the use of another, is good to the cestuy que use. 1 Leo. 254. Vide Uses, (C).

But it cannot be averred to be to the use of another. 4 Co. 4. And if the cestuy que use refuses, the devisee shall not have it. R. 1 Leo. 254.

Vide post, (K).

(K) Who not.

But a devise to (z) any tanquam in esse, when there is no such person in esse at the death of the testator, is void: as, a devise to such a chantry, and there is none such at his death, though it be afterwards erected, is void. 1 Rol. 609. 1. 50. Vide ante, (I).

A devise to the heir of B. who was an alien; for he cannot have an heir. R. 1 Lev. 59. 1 Sid. 194. Vide ante, (I).

So a devise to the heir of B. is void, if B. be living at the death of the devisor, for non est hæres viventis. R. 1 Lev. 59. Semb. 1 Sal. 230. Or, to the first son of B. when he has no son in esse at the death of the testator. 1 Sal. 229.

So a devise of lands or goods to B. is void, if B. dies in the life of the testator. Pl. Com. 345.

So, if a devise be to B. and his heirs; if B. dies, the heir shall not take, for he is named only by way of limitation. R. Pl. Com. 345. Or, to B. and the heirs of his body, and if he dies without issue, to another; if he dies in the life of the testator, his issue shall not have it. R. Cro. El. 423. Per 2 J. 2. cont. R. 2 Ver. 722. Eq. Ca. 115. Pr. Ch. 442. 452.

So, if a devise be to his four daughters and their heirs equally to be divided, and one has issue, and dies in the life of the testator; the devise shall be void for a fourth part. Eq. Ca. 116.

So, if a devise be to A. to the use of B, and B. dies before the testator; the devise will be void. (a) R. 1 Leo. 254. (b)

But

(z) 1. Bodies politic and corporate are expressly disabled by stat. 34 & 35 Hen. 8. c. 5. s. 14., from taking by devise. 2. It was held, however, in consequence of the st. 43 Eliz. c. 4., that a devise to a corporation, for a charitable use, was valid, as operating in the nature of an appointment. 3. But now the st. 9 G. 2. c. 36. has rendered all devises for charitable uses void, except such as shall be made to the two universities, and to the colleges of Eton, Winchester, and Westminter.-4. The king being both a body politic and corporate, is incapable of taking by devise. 6 Cruise, 20. (a) Pro non scriptis sunt iis relicta, qui vivo testatore decedunt. 2 Domat. 98. 6 Cruise, 163. (6) 1. 2 Vern. 722. 3 Bro. P. C. 95. 1 P. Wms. 397. 1 Str. 25. 10 Mod. 370. Dougl. 337. 3 Bro. P. C. 435.- 2. And a republication of a will after the death of a devisee in tail, will not give any estate to the issue of the devisee. 4 T. R. 601.3. Yet since a trust sufficiently created, will fasten itself upon the land, and will not become void by the incapacity or death of the trustee; where an estate is devised upon trust for a charity, the death of the devisee in the life-time of the testator, will not make the devise void. 6 Cruise, 168. Amb. 571.-4. In the case of copyholds, though the land passes by the surrender, and the will is only directory of the uses, yet VOL. IV.

L

it

But a devise to A. for life, remainder to B. shall be good to B. though A. dies before the testator. Pl. Com. 344. b. R. Dy. 122.

If it be to A. and the issue of his body, remainder to B., and A. dies before the testator, leaving issue, B. shall have it. Cro. El. 423. R. 2 Ver. 723.

If to A. and B. and their heirs, and A. dies in the life of testator, B. shall take the whole. R. Cart. 4. 1 Co. 100. b. Acc. 1 Sal. 238. 1 Ver. 425. F,g. 231.

So, a devise to the eldest son of A. remainder to B., and A. has no son; B. shall take. R. Mod. Ca. in Eq. 4. (c)

So a devise to A. in trust for B. shall be good, though A. dies before the testator. Dub. 2 Ver. 468.

A devise of 300l. to A. with a direction that he shall give it B. when he dies, or sooner, shall be good, though A. dies in the life of the testator. R. 2 Ver. 467.

If money be devised to A., B. and C., and if any of them die within age, his part to the survivor; it shall go to the survivor, though the person died before the testator. R. 2 Ver. 611.653.

If a devise be of lands, to trustees for A. and B. till full age, and then to convey to them; though A. dies before the time comes for the conveyance, the conveyance shall be to his heir. R. 2 Ver. 562.

If a devise be to A. and B. in common, and A. dies in the life of the testator; his moiety is void. Eq. Ca. 157. (d)

Or, to A. and B. jointly for life, and to their heirs in common; the inheritance to A. shall be void. R. Eq. Ca. 159. 160.

So a devise, so uncertain that it cannot be known who was intended as devisee, (e) is void: as, if a devise be to A. for life, and that it shall remain to his issue, when he has several; the remainder is void. R. Cro. El. 742. Denied, Ray. 83. Cont. Pol. 106. R. that bý a devise to the issue of B. all the issues take for life. 2 Ver. 545. So, a devise to his son, when he has several. Cro. El. 742. Ray. 82.

Semb.

So a devise to twenty of the poorest of his kin, shall be void; for it is not known who is poorest. 1 Rol. 609. l. 12.

So, a devise melioribus hominibus de B. Cro. El. 743.

So, a devise to his right heirs of his name and posterity; where a daughter, his heir, is not of his name, and his brother is not his heir. R. Mo. 860. Hob. 29.

So a devise to the heir at law, of the same estate which he would take by descent, is void; for the descent shall be preferred. 1 Rol. 626. 1. 30. Hob. 30. 1 Sal. 242. Vide Descent, (A). (ƒ)

Though

if the devisee dies in the life time of the devisor, the devise is void. 2 Ves. 77.5. And in the case of a lapsed devise in fee, the estate will not go to the residuary devisee of the real estate, but will descend to the heir at law of the testator. Fort. 182. 184. Vide Willes, 293.

(c) Second Part of 2 Mod. Ca.

(d) Second Part of 2 Mod. Ca.

(e) Or what was meant to be given. 5 Rep. 68. b. 6 T. R. 671. 3 East, 172. East, 299. 3 Smith, 291. 1 Taunt. 266.

2 M. & S. 165.

(f) 1. Where a testator makes the same disposition of his estate as the law would have done if he had been silent, the will being unnecessary is void. And therefore if a person devises his lands to his heir at law in fee, it is a nullity, and the heir will take by descent, as his better title; for the descent strengthens the title by taking away the entry