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 ...

Kirman against Iohnson.

Trin. 1651. Banc. sup.

IN an ejectione firmae brought by Kirman against Iohnson a special verdict was found, and upon it the case sell out to be thus,* 1.1 A having lands in see simple, and also goods and chatels to the value of 5 l. only in Tavestock, made his Will, and devised to his wife totum statum suum, viz. his whole Estate paying his Debts, and Legacies, and his Debts and Legacies did amount to the value of 40 l. Hales made 2 questions, 1. Whether the lands passe to the wife by the Will or not. 2ly. If they do, what estate passeth to her in the Lands. For the first he argued, that the lands do passe to the wife. 1. Because the generality of the words do include the lands, as well as the goods, for the words are his whole Estate, so that nothing is excluded, 9 E. 4. a release of all Actions, is held a release of all Actions that the party had in all his capacities. 2ly. The ordinary maner of spéech doth shew that he intended to devise his lands, as well as his goods, Riches case, Mich. 45. Eliz. C. Banc. A devise of all his rents was held to passe all the partyes lands. Also the subject matter in fact doth prove this to be his intent, and although here is not a collateral averment to prove the intention, but a collateral proof to declare the Testators intent, this may be admitted to ascertain the Court of his meaning, as it is in the case of proving an Act of Parliament. In the Lord Cheneys case, an aver∣ment standing with a Will was accompted allowable, though an a∣verment against a Will be not; In Cooper and Lanes case, 35 Eliz. a de∣vise seigniori puero, where the Testator had a Son, and a Daughter, was held a good devise to the Son, although puer signifies as well a Daughter as a Son, and the Daughter there was elder than the Son, and Hill 8. Car. In Bartler and Rodes case in B. R. a devise of all his lands in Dale, if he had leases, as well as lands, there passed not the leases. For the 2d. point he argued that a fee simple passed. 1. Because his whole Estate is de∣vised, and that is to be applyed as well to the lands, as to the goods. 2ly. Because in regard that there is a consideration for it, to wit that the wife shall pay his Debts, and discharge his Legacies; and whereas it is object∣ed, that it is not said she shall pay all his Debts, I answer, that it shall be so intended. Here is land and goods mentioned, and not land only, and it is found that the goods only are not sufficient to pay the Debts, and also the goods were liable to the payment of the Debts, without this expression in the Will, and therefore the land must be intended to be devised. And for the verdict it is not material to find the lands to be held in socage, for they shall be intended to be so held, because it is the most antient Tenure, for where the Law creates a Tenure, it shall be socage Tenure. 2ly. Lands may possibly be deviseable, although they be not held in socage, for if they be neither held by socage, nor chivalry, yet they are deviseable, Dyer 307.

Neither is it material to find the Debts, and Legacies paid, for it is a con∣dition here, an not a limitation, and there is a person to take advantage if the condition be broken, & this is a special verdict, & the breaking of the con∣dition if it had béen broken, would have appeared upon evidence, & therefore it is not necessary to aver it, & it is in case of a Fee simple, which is an Estate intended to continue.* 1.2 Roll chief Iustice held, that the lands did passe, for so he said the common understanding imports, and the words do go to the value of the estate. 1. It comprehends the thing, to wit the land. 2ly. The extent of the Estate given, viz. Fee simple, and so it shall be here in∣tended, and the words paying his Debts and Legacies doth enforce this construction, for they are to be paid presently, which cannot be, if the lands passe not in Fee, and so the aberment it is but to supply the meaning of the Testator, and stands very well with the Will, and is not so collaterall, as it is in Cheyneys case. And for the verdict the lands shall be intended to be socage lands,* 1.3 as being the most Common Tenure, except the contra∣ry were shewed on the other part, Denham and Bakers case, Mich. 24 〈◊〉〈◊〉. entred Trin. 23. rot. 12.80. and the words paying his Debts, and Lega∣cies, are words of condition, and not of limitation. Ierman ad idem, and said,* 1.4 when we say a man is a man of a great Estate, we mean his Estate in lands, as well as goods. Nicholas and Ask Iustices to the same effect; but Ask said he doubted of the verdict, because no Legacies are found, and this is part of the case. Iudicium pro querente nisi, Antea.

Notes

• * 1.1

  Special ver∣dict in an e∣jectione fir∣mae.
• * 1.2

  Devise.
• * 1.3

  Intendment.
• * 1.4

  Condition̄. Limitation.