The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CLIX. Vincent Lee's Case. Trin. 26 Eliz. In the Exchequer.

* 1.1VIncent Lee seised of Lands in Fee, had Issue 3 Sons, F.G. and J: and by his last Will in writing Devised, That J. his Son should have the Land for the Term of 31 years, without im∣peachment of Waste, to the intent that he pay certain Debts and Legacies set down in his said Will, The remainder after the said Term expired to the Heirs Males of the Body of the said J. begot∣ten. And further willed, That if the said J. die within the Term aforesaid, that then G. his Son shall have such Term, &c. and then also shall be Executor; but made the said J. his present Executor, and died, J. entred by force of the Devise: F. died without Issue, by which the Feesimple descended upon J. who had Issue P. and died within the Term, P. entred; G. as Executor entred upon him; and he re-entred; upon which re-entry, G. brought Trespass. Pigott said, That the Term by the descent of the Fee from F. to J. being the second Son of Vincent, and Heir of F. is not extinct, but only suspended. It hath been Objected, that J. cannot be said to die within the Term, because by the descent of the Fee, the Term is extinct, or suspended, and so not in esse at the time of the death of J. therefore nothing did accrue to G. because J. did not die within the Term: but that is but a Conceit; for the intent of Vincent was, that the Heir should not meddle with the Land Devised as Heir, until the 31 years be expired: and words, Du∣ring, or Within the Term, extend unto the time of the Term, and not unto the Estate: And although, that the Term as to J. be extinct, yet the right or possession of G. shall stand, and shall be expectant upon the death of J. before the expiration of the said 31 years. As, A. leaseth for life to B. and afterwards granteth the Reversion with Warranty to C. who releaseth to B. in Fee, who is impleaded in a Praecipe: although now B. hath a Feesimple, yet during his life he shall not recover in value. And in the prin∣cipal Case, This further Interest limited to G. cannot be extinct or prevented. See Plow. Com. Welden and Elkingtons Case. Beau∣mont, contrary. And that the Term is extinct, because he hath the said Term in his own right, and not as Executor, but as a Man trusted with payment of Debts and Legacies; But the same Term which J. had, G. cannot have, for some of the years are ex∣pired; and the words of the Will are, He shall have such Term; but here the Term is utterly extinct: As where a Rent, Com∣mon, or Way, &c. descendeth upon the Ter-Tenant; 2 H. 4. A Prior had an Annuity out of a Parsonage, and afterwards he purchaseth the Advowson, which is afterwards appropriated to his House; now the Annuity is extinct; and although the Prior after∣wards presenteth to the Advowson, yet it is-not revived; Br.

Extinguishment, 54. A Man hath a Lease for years as Executor, and purchaseth the Inheritance, his Term is extinct, yet it is As∣sets, &c. And it is said in Bracebridges Case, Plow. Com. 419. 14 Eliz. that Parson, Patron and Ordinary, Lease for years the Glebe Lands of the Parsonage; the Parson dieth; the Les∣see for years becomes Parson and dieth, his Executors shall not have the residue of the said Term; for the Term is extinct,* 1.2 al∣though he had the Term in his own right, and the Freehold in the right of his Church; and so in several Capacities. And it was holden by some, that if the Term for years comes to the Lessor as Executor, who dieth, the Term is revived. Manwood, Chief Baron, asked this Case of those who Argued; A Lease is made for 21 years, Proviso, That the Lessee shall suffer the Lessor to enjoy the same, or to take the profits thereof during the life of the Lessor, or so long as the Lessor shall live; if the same were a good Proviso, or not? Pigot Conceived, that the Devise to G. was a new Devise, and not dependant upon the first Devise to J. nor any parcel of it; but this second Devise to G. did take away the abso∣lute Devise to J. before, and qualified it, so as it determined with his death. The words, Such Estate, shall be intended an Estate to G. to be granted from the death of the Testator. Land is Devi∣sed to A. and his Heirs, and he if dieth without Heir, that it shall remain to another; the same is no good Devise: But a Devise to one and his Heirs, and if J.S. dieth living the Devisee, B. shall have it; the same is good: for it is a new Devise, and an Estate created de Novo, and doth not depend as a Remainder upon the first Devise, or upon the first Estate devised; as the Case is, 29 Ass. 17. Br. Condition, 111. and Devise, 16. So here are seve∣ral Estates limited, one to J. and another to G. which Estate of G. cannot be extinct by unity of possession in J. These words, If he die within the Term, shall be construed for Effluxion of the time of 31 years, and not for the Termination of the Term. Cooper, Serjeant, to the contrary; J. took this Term as purchasor, and not as Executor, for that no Term was in the Testator. See 14 Eliz. Dyer, 309. Granmer's Case; G. shall have such Term and Interest as before I have willed unto J. Manwood, Such Term, that is to say, The Residue of the Term.

Now at another day, the Barons delivered their Opinions, that the Plaintiff should recover, and that was now G. to whom the second Term was devised: And by Manwood, in Constructi∣on of Wills, all the words of the Will are to be compared toge∣ther, so as there by not any repugnancy between all the parts of the Will, or between any of them, so that all may stand: And the Intent of the Testator was, That his Son J. should have the Lands for 31 years, if he so long lived, and if he died within the Term, That G. his Son should have such Term. And he held, That the same was in J. an Estate by Limitation, and he could not sell it, nor could it be extinct by Act in Law, or of the Law. It was a Lease

determinable by his death, and so shall be the Lease of G. deter∣minable upon his own death; and G. upon the death of J. within the Term, shall have the residue of the number of the years limit∣ed by the former Devise; scil. so many in number as were not ex∣pired in the life of J. who was first Executor to that special purpose. Gent, Baron, to the same intent; here he hath the same Term as Executor; and it is not like a-Term devised, which the party hath as Legatee; but in our Case, he hath only authority in this Lease as Executor, and the Land was tied to the time and the Authority; and when the same determines in his person, then the Land de∣parts from him to G. who was a special Executor to that purpose, as J. was before. And G. had not the same Term which J. had; but such a Term. Clerk, Baron, acc. And he said, that the Will was further, that if G. died before his Debts paid, and his Will performed; and the Iury finding all the special matter, con∣cluded, that if the Term limited to J. be extinct, then they find for the Defendant. And he held clearly, that J. had this Term of 21 years as Executor, and that by the discent of the Inheri∣tance to J. the Term as to himself was gone: But as to Cre∣ditors and to the Legatees, it shall be said in esse, and be Assets in his hands: And because that the Term as to that purpose shall be said in esse, he died within the Term, within the intent of the said Will. And this word, Term, is, Vox polysema, Terminus status, Terminus temporis, Terminus loci. And in our Case, the word, Term, hath reference to time, and not to estate; for the Testator did respect the time in which his Will might be performed, and that was 31 years; as if I make a Lease during the Term that J. S. hath in the Mannor of D. and J. S. hath 40 years in it; now although that J S. surrendreth or forfeiteth it, yet he shall hold over, but he shall have it for 40 years; for my Lease refers to the time, and not to the estate. In the like manner here, G. cannot have the same Term which J. had, nor for 31 years after the death of J. but so much of the said 31 years shall be cut off in the inter∣rest of it, as J. had enjoyed it; and G. shall have as many years as J. hath left; and G. shall perform so much of my Will as J. at his death within the Term aforesaid shall not have performed: As if I Lease my Land to one until he hath levied 100 l. and if he dieth before that he hath levied it, then J. S. shall have such Term for the levying of it: the first Lessee levieth 50 l. and dieth, J. S. may levy the residue, but not the whole. And although that the Iury saith, that if the Term be extinct, then they find for the De∣fendant; although that it be extinct, yet they are not to take Co∣nusance what the Law is thereupon: but that is the Office of the Iudges. As 13 E. 3. the Iury found, that the Son was born du∣ring the Elopement, and so Bastard; that Conclusion of the Ver∣dict is not to the purpose, but the Court ought to judge upon the premises of the Verdict, If upon the birth, during the Elopement, the party be Bastard or not? And afterwards, Manwood, with

the assent of his Companions the Barons, Commanded, That Iudgment should be entred for the Plaintiff; Which was done accordingly.

Notes

• * 1.1

  1 Inst. 138. b.
• * 1.2

  1 Inst. 338. b. 2 Roll. 472.