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.

LVI. Sir Peter Philpots Case. Mich. 15 Eliz. In the Common Pleas.

THis Case was moved by Meade, Serjeant to the Iustices of the Court of Common Pleas, viz. That Sir Peter Philpot Knight, seised in Fee of divers Mannors and Lands, suffered a Recovery, and made a Feoffment thereof unto divers persons, To the use of himself for life, the remainder to his right Heirs: And after the Statute of 32 H. 8. of Wills, He devised all his said Mannors and Land to his Wife for life; and it was expressed in his Will, That he could not devise all his Lands, by reason of the Statute of 32 H. 8. that his Will was, That his Wife should have so much which might be devised by the Laws of the Land: And there was another Clause in the said Will, That his Feoffees should stand seised of the same Mannors and Lands after the death of his Wife, To the use of one Hurlock and others for years, for the payment of his Debts, and for the raising of Portions for the prefer∣ment of his Daughters in Marriage: And further by his said Will he willed, That if the Law would not bear it, That Hurlock and the others should have the Interest, Then he willed that his Son should have all his Mannors and Lands, and should pay his Debts, and should give certain sums of Monies for the Marriage Por∣tions of his Daughters; And the Question which was moved to the Court, was, Whether the first part of his Will, That is to say, That Hurlock and the others should have his Lands, &c. were void, or not, by the later words of his Will? Dyer, Iustice, said, That the last words of the Will did well expound the meaning of

the first words, and that the Will should be performed as it might be: And afterwards Harper said, That upon this matter, Hurlock and the others had had a Decree in the Court of Wards, to have the whole Lands during the years, and not two parts of the Lands only. Dyer, Iustice, said, That the Will of Sir Tho. Umpton, which was made mean between the Statutes of 32 H. 8. and 34 H. 8. and which is excepted by the same Statute, that it should not be construed in other form than according to the first Statute was, Of all his Lands. And upon a Demurrer argued, It was adjudged, That the Will was good of two parts, although that by the Will it was not divided: For where a Man hath a War∣rant to do a thing, and he doth it, and more, so as he exceeds his Warrant, yet it is good for that part for which it is warranted; and void for the rest: As if a Man makes a Warrant of Attorny to make Livery and Seisin of the Mannor of Dale, and he makes Livery of the Mannors of Dale and Sale; it is good for the Man∣nor of Dale, and void for the Mannor of Sale. The Case was, in a Writ of Partition: And afterwards the Record was removed by a Writ of Error, supposing that this Court had Erred; and the Iudgment was affirmed by three of the Iustices of the Kings Bench. But because there was a Discontinuance in the Record, which was erronious, for that the first Iudgment was reversed, but not for any other cause. And such was the meaning and intent of the Statute of 32 H. 8. before the making of the Statute of 34 H. 8. of Explanati∣on of Wills. And therefore here in the principal Case, it was holden, That the Will was good for two parts, both to the Wife, and also to Hurlock and the others. And it was holden, That by the Intent of the Will, that the Son was to pay such sums of Monies a Hur∣lock was to have paid, so as the Will was not for the advantage of the Heir, but to be construed according to the meaning of Philpot, That if Hurlock could not have the Lands, &c. that then the Son should have them, but with such charge as aforesaid; and it was no Intent to subvert the first part of the Will, if the same might stand with the Law. And so it was adjudged.