which may induce an operation of those idle words or acts. And therefore if a man devise land at this day to his son and heir, this is a void devise ; Brook, Tit. Tit. Devise, cast the pl. 41. same upon knight's service land, and the heir within age, if he take by the devise he shall have two parts of the profits to his own use, and the guardian shall have benefit but of the third. But if a man devise land to his two daughters, having no sons, then the devise is good; because he doth alter the disposition of law: for by the law they should take in coparcenary, but by the devise they shall take jointly; and this is not any foreign collateral purpose, but in point of taking of estate. So if a man make a feoffment in fee to the use of his last will and testament, these words of special Dy. f. 12. limitation are void, and the law reserveth the ancient use to the feoffor and his heirs and yet if the words might stand, then should it be authority by his will to declare and appoint uses, and then, though it were knight's service land, he might dispose the whole as if a man make a feoffment in fee to the use of the will and testament of a stranger; there the stranger may declare an use of the whole by his will, notwithstanding it be knight's service land. But the reason of the principal case is, because uses before the statute of 27 H. 8. were to have been disposed by will; and therefore before that statute an use limited in the form aforesaid was but a frivolous limitation, in regard that the old use which the law reserved was devisable; and the statute of 27 altereth the law as to the creating and limiting 19 H. 8. f. 11. not pl. 5. 5 Ed. 4. f. 8. of pl. 20. any use; and therefore, after that statute and before the statute of wills, when no land could have been devised, yet it was a void limitation as before, and so continueth at this day. But if I make a feoffment in fee to the use of my last will and testament, thereby to declare an estate tail and no greater estate, and after my death, and after such estate declared shall expire, or in default of such declaration, then to the use of I. S. and his heirs, this is a good limitation; and I may by my will declare an use of the whole land to a stranger, though it be held in knight's service; and yet I have an estate in fee simple by virtue of the old use during life. Dy. f. 237. pl. 31. So if I make a feoffment in fee to the use of my right heirs, this is a void limitation, and the use reserved by the law doth take place: and yet, if the limitation should be good, the heir should come in by way of purchase, who otherwise cometh in by descent but this is but a circumstance which the law respecteth not, as was proved before. But if I make a feoffment in fee to the use of my right heirs and the right heirs of I. S. this is a good use; because I have altered the disposition of law. Neither is it void for a moiety, but both our right heirs when they 30 Ass. pl. 47. come in being shall take by joint purchase ; 30 Ed. 3. f. 27, and he to whom it first falleth shall take the Fitz. Tit. De whole, subject nevertheless to his companion's title, so it have not descended from the first heir to the heir of the heir: for a man cannot be joint-tenant claiming by purchase, and the other by descent; because they be several titles. 28. vise, pl. 9. Bro. Tit. Don. & Rem. pl. 21. So if a man having land on the part of his mother make a feoffment in fee to the use of himself and his heirs; this use, though expressed, shall not go to him and the heirs on the part of his father as a new purchase, no more than it should have done if it had been a feoffment in fee nakedly without considera- Dyer, f. 184. tion; for the intendment is remote. But if baron and feme be, and they join in a fine of the feme's land, and express an use to the husband and wife and their heirs ; this limitation shall give a joint estate by entierties to them both; because the intendment of law would have conveyed the use to the feme alone. And thus much touching foreign intendments. For matter ex post facto: if a lease for life be made to two and the survivor of them, and they after make partition; now these words "and the survivor of them should seem to carry purpose as a limitation, that either of them should be estated of his part for both their lives severally but yet the law at the first 30 Ass. pl. 8. construeth the words but words of dilating to Partit. pl. 16. describe a joint estate; and if one of them 7 die after partition, there shall be no occupant, but his part shall revert. : Fitz. Tit. Dy. f. 46. pl. So if a man grant a rent charge out of ten acres, and grant further that the whole rent shall issue out of every acre, and distress accordingly, and afterwards the grantee purchase an acre: now this clause should seem to be material to uphold the rent; but yet nevertheless the law at the first accepteth of these words but as words of explanation, and, them notwithstanding, the whole rent is extinct. So if a gift in tail be made upon condition Plow. f. 33. that, if tenant in tail die without issue, it shall per Hinde. be lawful for the donor to enter; and the donee discon 1 Omitted in Camb. MS. tinue and die without issue: now this condition should seem material to give him benefit of entry; but because it did at the first limit the estate according to the limitation of law, it worketh nothing upon this matter emergent afterward. So if a gift in tail be made of lands held in knight's service, with an express reservation of the same service whereby the land is held over, and the gift is with warranty, and the land is evicted, and other land recovered in value against the donor held in socage: now the tenure which the law creates between the donor and donee shall be in socage, and not in knight's service; because the first reservation was according to owelty of service, which was no more than the law would have reserved. But if a gift in tail had been made of lands held in socage, with a reservation of knight's service tenure, and with warranty; then, because the intendment of law is altered, the new land shall be held by the same service the lost land was, without any regard at all to the tenure paramount. And thus much of matter ex post facto. This rule faileth where that the law saith as much as the party, but upon foreign matter not pregnant and appearing upon the same act and conveyance. As if lessee for life be, and he lets for twenty years, if he live so long; this limitation "if he live so long' is no more than the law saith; but it doth not appear upon the same conveyance or act that this limitation is nugatory, but it is foreign matter in respect of the truth of the estate whence the lease is derived; and therefore, if lessee for life make a feoffment in fee, yet the estate of the lessee for years is not enlarged against the feoffee: otherwise it had been if such limi tation had not been, but that it had been left only to the law. So if tenant after possibility make a lease for years, and the donor confirms to the lessee to hold without impeachment of waste during the life of tenant in tail; this is no more than the law saith: but the privilege of tenant after possibility is foreign matter as to the lease and confirmation; and therefore if tenant after possibility do surrender, yet the lessee shall hold dispunishable of waste: otherwise had it been if no such confirmation had been made. Also heed must be given that it be indeed the same thing, which the law intendeth, and which the party expresseth; and not only like or resembling, and such as may stand both together: for if I let land for life rendering rent, and by my deed warrant the same land; this warranty in law and warranty in deed are not the same thing, but may both stand together.1 There remaineth yet a great question on this rule : A principal reason whereupon this rule is built should seem to be, because such acts or clauses are thought to be but declaratory, and added upon ignorance of the law and ex consuetudine clericorum upon observing of a common form, and not upon purpose or meaning; and therefore whether by particular and precise words a man may not control the intendment of the law? To this I answer, that no precise nor express words will control this intendment of law; but as the general words are void, because they say that the law saith, so the particular words are void, because they 1 The Camb. MS. adds: "therefore if I release the rent, I shall warrant nevertheless upon the warranty in fact." |