Narrationes modernæ, or, Modern reports begun in the now upper bench court at VVestminster in the beginning of Hillary term 21 Caroli, and continued to the end of Michaelmas term 1655 as well on the criminall, as on the pleas side : most of which time the late Lord Chief Justice Roll gave the rule there : with necessary tables for the ready finding out and making use of the matters contained in the whole book : and an addition of the number rolls to most of the remarkable cases / by William Style ...

Preston against Holmes.

Mich. 24 Car. Banc. Reg.

Trin. or Mich. 24 Car. rot. 2052.

VPon a special verdict found the Case in effect was this,* 1.1 one in see ha∣ving one Son by one venter, and another Son by a second venter, did by his last Will devise all his Lands to his wise for life, and after her death to I. his eldest Son, and to his Heirs and the question was whether the Son shall take these Lands by the devise or as Heir at Law, and so the devise to be of no effect to make him come to the Lands by purchase, Christopher Turner held, that the devise is void, because it sayes no more than the Law says, for if there had been no such devise, Iohn & his Heirs should have had the Land, and he cited Paramour and Yardlves Case in the Comentaries, and Hob. rep. Counden and Clarks case. But it is objected, that in this case the Law speaks one thing, and the devise another thing, and so the devise says not the same thing. To this I answer, there is no difference concer∣ning

the alteration of the Estate, between what the Law directs, and what the devise directs, all the difference is in the manner how his Son Iohn shall come to the Estate, 3 & 4 Phil. & Mar. Dyer, 134. & 37 Eliz. A man seised in fee had issue two Daughters, and devised the Lands to them, and to their Heirs, and it was questioned whether they were Ioynt tenants, and I conceive they are, and where one omits a thing in a conveyance which the Law supplies, this shall not hurt, and he cited Iennings and Pol∣lards Case, 6 Car. Hales on the other side argued, that the Son takes by purchase, and not by descent: for the devise is not to the Son in present, but after the death of the Testators wife, and if he had the Lands by descent, he should have them presently.* 1.2 It is true the Son might have waived the taking by purchase, and might have taken by descent: but here prima facie he shall be intended to be in by purchase, and not descent, for here doth not ap∣pear to be any actual waiver of the purchase, and the Son doth here as I conceive, take by way of remainder, and not by way of reversion. And as to the verdict I conceive it is not good, for it doth not shew how the lands are held, whether in Chivalry or Socage, and so it appears not whether the Testator had power to devise all of them or not, for if they be held in Chi∣valry, he can devise but two parts of them, as the Statute directs. 2ly. It appears not, that the Testator had but one Son by his first wife. 3ly. It is not shewed, that the Lands are parcel of the Mannor, 4ly. It doth not appear in whose possession the Lands are. Roll chief Iustice said, Lands that are given by Will shall be intended to be socage tenure,* 1.3 if the contra∣ry do not appear. And he held that the devise is void, and that it is not in the power of Iohn the Son, to make the election to take by descent or by purchase at his pleasure, but he must of necessity take the Land as the Law directs. which is by descent;* 1.4 and it is against a maxim in Law to give a thing to such a person to whom the Law gives it, if it had not been so given, 3 & 4 Phil. & Ma. Dyer, 134. and therefore the Plaintif ought to have Iudgement; And as to the verdict he hath primer possession,* 1.5 and therefore if the other make no title, the verdict is for him, and good enough. Bacon Iustice to the same intent, viz. that the Heir doth here take by descent, and not by purchase, for this the Law says, and he cannot alter it, and cited Foscues Case, 4 Car. and a Case in 7 Iac. And so judgement was given for the Plaintif.

Notes

• * 1.1

  Arguments upon a special verdict upon a Will.
• * 1.2

  VVaiver.
• * 1.3

  Intention.
• * 1.4

  Maxim.
• * 1.5

  Verdict.