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A Devises Land to B. &c. to have, &c. till 800. l. shall be paid by them of the profits to marry his Daughters, and dyes, the Heire conceales the Will, takes all the profits, and dyes, the will is found by office, the Devisee enters, and hath leavyed 640. l. and imployes it accordingly; whither the profits ta∣ken
by the Heire shall be parcell of the 800. l. was the Question.
Resolved, that the words (shall be leavyed) shall be construed (shall or might be leavyed) and so 'twas holden of a Lease or limittation of a use, o∣therwise, he which is to leavy the Summe, by defer∣ring to doe it, may exclude the reversioner for ever: see the Booke at large. Resolved, when the heire or reversioner, &c. enters, and expulses him, to whom the Land is limitted, he hath election to recover the Mesne profits, in an action, or reentry, and retainer, till he leavyes the inteir Summe, and the other shall not have advantage of his owne wrong, and if a stran∣ger had entered, and occupied, the Devisee ought to have taken notice at his perill, for Vigilantibus & non, &c. and none is bound to give notice, but here the Heire himselfe concealed the will, and the De∣visee had no remedy, for the Mesne profits after the death of the heire. Resolved that a Gardian shall not ouste Tenant for life, nor yeares of the Tenement.
Resolved, that admitting the Gardian shall ouste Tenant for yeares yet he shall not hold over, because his terme is certaine in the commencement, conti∣nuance, and end; otherwise of Tenant by Elegit, Statute, &c. they shall hold over, because the terme is uncertaine.