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.

CLXV. Brian and Cawsen's Case. Trin. 27 Eliz. In the Common Pleas.

IN Trespass by Brian and his Wife and others, against Cawsen; It was found by Special Verdict,* 1.1 That W. Gardiner was sei∣sed in Fee according to the Custom of the Mannor of C. of cer∣tain Lands, and surrendred them to the use of his last Will, by which he Devised them in this manner; scil. I Bequeath to Jo. Th. my House and Lands in M. called Lacks and Stone; To Ste. Th. my House and Lands called Stokes and Newmans; And to Roger Th. my House and Lands called Lakins and Brox. Moreover, If the said Jo. Ste. or Roger, live till they be of lawful age, and have Issue of their bodies lawfully begotten, Then I give the said Houses and Lands to them and their heirs in manner aforesaid, to give and sell at their pleasure. But if it fortune one of them to die without Issue of his body lawfully begotten, Then I will, that the other Bro∣thers or Brother have all the said Houses and Lands in manner afore∣said; And if it fortune the Three to die without Issue in like man∣ner; Then I Will, That all the said Houses and Lands be sold by my Executor or his Assignee, and the Mony to be given to the Poor. The Devisor dieth, Jo. Ste. and Roger are admitted according to the intent of the Will; Roger dieth within age without Issue; John and Ste. are admitted to his part; John comes of full age, and hath Issue J. and surrenders his part of the whole, and his estate therein, to the use of Ste. and his Heirs; who is admitted accord∣ingly. Ste. comes of full age, John the Father dieth; Ste. dieth without Issue; J. the Son as Cosen and Heir of Ste. is admitted according to the Will, and afterwards dieth without Issue; The Wives of the Plaintiffs are Heirs to him, and are admitted to the

Lands called Lacks and Stone, and to the moyety of the Lands cal∣led Lakins and Brox, parcel of the place where, &c. praetextu quo∣rum, they enter into all the Lands where the Trespass is done. And it was found, that A. the Executor died Intestate; And that Caw∣sen the Defendant is Cosen and Heir to the said Devisor, and that he as Heir entred and did the Trespass.

First, It was agreed by all, That by the first words of the Will, the 3. Devisees had but an Estate for life: But Fenner and Walmesley who argued for the Plaintiffs, Conceived, That by force of the later words, scil. If the said John, Stephen, and Roger, live till they be of lawful age, and have Issue of their body lawfully begotten, Then I give the said Lands and Houses to them and their Heirs in manner aforesaid, &c. They have Fee; and the words, In manner aforesaid, are to be referred not unto the Estate which was given by the first words which was but for life, but to make them hold in severalty as the first Devisor willed, and not joyntly, as the words of the second Devise purported. And Fenner said, It hath been Resolved by good Opinions, That where a Fine was levied unto the use of the Conusor and his Wife, and of the Heirs of the body of the Conusor, with divers Remainders over; Pro∣viso, That it shall be lawful to the Survivor of them to make Lea∣ses of the said Lands in such manner as Tenant in tail might do by the Statute of 32 H. 8. although those Lands were never De∣mised before the Fine, yet the Survivor might demise them by force of the Proviso, notwithstanding the words, In manner, &c. So if Lands be given to A. for life upon Condition, the Remain∣der to B. in manner aforesaid; these words, In manner aforesaid, refer unto the Estate for life limited unto A. and not unto the Condition, nor unto any other Collateral manner.

The words, If they live until they be of full age, and have Issue, are words of Condition, and shall not be construed to such purpose, to give to them by Implication an estate tail: For the words sub∣sequent are, That they shall have them to them and their Heirs, to give and sell at their pleasure. By which it appeareth, That his intent was not to make an estate tail; For Tenant in tail cannot alien or dispose of his estate, &c. And as unto the last words, And if it fortune they three to die without Issue, &c. these words can∣not make an estate tail, and the express Limitation of the Fee in the first part of the Will, shall not be controverted by Implication out of the words subsequent. As if Lessee for 40 years Deviseth his Lands to his Wife for 20 years, and if she dieth, the remnant of the Term unto another; although, that she survive the 20 years, she shall not hold over: and here the second sale appointed to be made by the Executor, shall not take away the power of the first sale allowed to the Devisee's after-Issue. Snagg and Shuttleworth, Serjeants, to the contrary; And they Conceived, That the De∣fendant hath right to two parts; for no express Inheritance vests in the Devisees until full age and issue; and because two of the

Devisees died without Issue, they never had any Inheritance in their two parts, and so those two parts descended to the Defen∣dant as Heir to the Devisor, no sale being made by the Executor. These words, If John, Stephen, and Roger, are to be taken distri∣butive; viz. If John live, &c. are to be taken distributive; If John live until, &c. he shall have the Inheritance in his part; and so of the rest. As if J. have right unto Land which A. B. and C. hold in Common, and J. by a Deed release to them all, the same shall enure to them severally, 19 H. 6. And here, these later words, If these three do die without Issue, by that they conceived, The same to be but an estate in tail. And see to that purpose, 35 Ass. 11. 37 Ass. 15. For a Man cannot declare his intent at once, but in several parts; all which make but one sentence. And so it is said by Persay, 37 Ass. 15. We ought to have regard upon the whole Deed, and not upon parcel. And see Clark's Case, 11 Eliz. Dyer, 330, 331. And it was said, If I give Lands to one and his Heirs so long as he hath Heirs of his body, it is a Feesimple deter∣minable, and not an estate in tail. Quaere of that. Then here the Feesimple is determined by the death of the Devisees without issue, and therefore the Land ought to revert to the Heir of the De∣visor, especially being no person in rerum natura, who can sell, for the Executor before sale by him made, died Intestate; and if he had made an Executor, yet the Executor of the Executor could not sell. Which see, 19 H. 8, 9 & 10. And afterwards Resolved, That no estate tail is created by this Will, but the Feesimple set∣led in them, when they came at their lawful age, and had Issue; so as the residue of the Devise was void, and Iudgment was given accordingly.

Notes

• * 1.1

  2 Len. 68.