not devisable. A right of er try and be afterwards disseized, and then die, the devise is void and cannot be made good; because the disseisin has turned the estate to a right, which is only a chose in action (8) and cannot be devised away; therefore, says the book, it was held a good plea against the devise, that the devisor did not die seised of those lands; but the book goes on further and (8) See the case of Goodright v. Forrester, 8 East, 552. The fine of a tenant for life displaces and divests the estate of the remainder man or reversioner, leaving in him only a right of entry, to be exercised either immediately for the forfeiture, or within five years after the natural determination of the preceding estate. And the effect of the statute 4 Hen. 7, is only to save to all the remainder men, their respective rights of entry within five years after their respective titles successively accrue, without being prejudiced, the one by the other's laches. But such right of entry is not devisable, though it may be released. Shep. Touchst. 325. Lit. Sect. 347. Co, Litt. 48, b. 214. a. 266. a. Perk. Sect. 86. [edit. 1642]. And see per Lord Eldon, 8 Vez. Jun. 282. Attorney General v. Vigor. That the fine divests the remainder, see Litt, Sect. 416, and Fowes v. Salisbury, Hard. 401-2. It is also clearly held that though the remainder man is at liberty to enter presently for the forfeiture, still he has a future right of entry unaffected by that present right, which may be exercised within five years after the determination of the antecedent interest, by the death of the tenant for life. The Court thought in the case above cited, that such right of entry did not come within the description of the word interest, in 34—35 H. 8. c. 514. the remainder man could not be considered as having an interest in the thing at the time of his devise; and an executory interest is a very different thing from a right of entry, for the purpose of revesting a divested estate. seisin an entry makes a question, whether if a man be disseised, and then make his will devising his lands, and afterwards re-enter into the lands, it be a good plea to say that the testator had nothing in the lands at the time of the devise. His Lordship then gave it as his opinion that in such a case the reentry (9) would purge the disseisin, and that the testator would to all intents and purposes, by relation, in from the beginning (10). His Lordship also further ob- pass by a will served, that a will was a disposition from the time of eisin. making it, and he looked upon this to be Lord Coke's opinion in Butler and Baker's case (11). be But if after disbe made, the disseisin is purged, the the title relates, and the lands prior to the dis (9) But if the testator had died out of the possession it seems clear that the will could have had no effect upon it, and see 11 Mod. 128, et 1 Bos. et Pull. 602, by Eyre C. J. (10) 38 Hen. 6, 27. and 19 Hen. 6. 17. Observe what is said of this doctrine by the present Chancellor in 8 Vez, Junr. 282. (11) To prove that a devise was a present disposition to take What operation effect in futuro Lord Holt instanced a case in Lord Bridgman's a will has at the time of making time, wherein, there having been a devise to two persons, and their it. heirs, and one of them dying in the testator's life-time, it was held that the survivor should take the whole. This point was also so Perhaps this view of the stated by Chambre J. 3 Bos. et Pull. 22. Thus too in Arthur v. Bokenham, in the Common Pleas, Lord Chief Justice Trevor held that the making of a will is the foundation, and an instant disposition, so that if the devisor have not the land (12) at the time, it will not pass (13). Rep. Temp. Holt, 750. Of the resem blance between wills and conveyances to uses. was not agreeable to the sentiments of Lord Redesdale, who observed that he could find no decision that at all warranted that opinion. His Lordship declared himself to think that on principle a will could not have that effect. But it is nevertheless to be observed that his Lordship seemed to ground his objection to the principle on a view of the nature and operation of a will a little different from that which was taken of it by Lord Holt, Lord Trevor, Lord Mansfield, and Lord Loughborough, as appears by the text. For Lord Redesdale does not seem so much to regard it as a disposition, or appointment of the lands in the nature of a conveyance to a particular devisee, as the mere designation of the special heir, against the right of the person to whom the property would otherwise devolve. (12) It has been observed in a former note, that it is not meant that the possession or an executed interest in the land should be in the testator, it is enough if he have a present interest, though to commence in futuro, or to depend upon a contingency; but a bare expectation as that of an heir, will not suffice, as was observed by Lord Holt, in the above cited case of Bunter v. Cooke: and, as appears by the above case of Goodright v. Forrester, a right of entry is not devisable. (13) Lord Trevor took notice of the resemblance between wills and conveyances to uses, and observed, that no one could raise a use in land which he had not at the time of the conveyance; as where a father covenanted to stand seised of land which he should afterwards purchase to the use of himself for life, and afterwards to the use of his youngest son and his heirs, and then purchased the land and died, Lord Difference as to lands, and same personal estate. Which turns up on the distinc nature of a will In the case of Harwood v. Goodright, Mansfield adopts and further illustrates the reason for the revocation of wills by a subsequent conveyance of the property. Though as to personal estate," said his Lordship, "the law of Eng- tion between the land has adopted the rules of the Roman testament, according to the yet a devise of lands in England is considered in a different light from a Roman will; for a will in the civil law was an institution of the heir; but a devise in England is an appointment of particular lands to a particular devisee, and is considered as being in the nature i Cowp. 90. 3 Burr. 1497. civil law, and the law of England. and the question was, whether the eldest or the youngest son should take, it was resolved that no use could arise to the youngest son, as the father had not the land at the time of making the conveyance; and his Lordship put the distinction well between that case and where a man covenants that he will purchase land by such a time, and then levy a fine thereof to such and such uses. When the land is purchased, and the fine levied, the uses arise upon the fine and not on the deed, and the deed is only evidence of his intention that such uses shall arise, if no uses are declared at the time of levying the fine, for at that time he might declare other uses. A very material distinction as to the force of the residuary clause in respect of personal and real estate, results from this doctrine of considering a will of land, as to its immediate effect, as a species of inchoate conveyance by way of appointment, viz. if a legacy of personalty lapses, the subject passes with the residue to the residuary legatee; but if a devise of real estate, which is always specific, lapses, it goes to the heir, and not to the residuary devisee. See 1 Vez. 481. 8 Vez. Jun. 25. of a conveyance by way of appointment; upon which principle it is that no man can devise lands which he has not at the date of such conveyance. It does not turn upon the construction of the statute of Henry 8th, which says, that any person having lands, &c. may devise.' For the same rule held before the statutė where lands were devisable by custom. It is upon the same principle that there have been revocations determined contrary to the intent of the testator, as where he has afterwards made a feoffment or the like, because that has been construed a new appointment." These decisions, said the late Lord Chancellor Loughborough, wesult from fair legal, that is, fair systematical reasoning, and do not depend upon any captious nicety. The objections to them arise from considering the disposition by testament of land, in the same view as the Roman testament was considered, or wills of personal estate, which is not a just manner of considering what the law of England permits to be a disposition of land by will. It is not an indefinite disposition of all a man may be possessed of at his death, as is the case of personal property. A disposition of land by will is no more than an appointment of the person who shall take the specific land at the death of the person making it. It is so far testamentary that it is fluctuating, ambulatory, and does not take effect till after the death; but it is in the nature of a conveyance, being an ap→ |