die, and then she die, the devise will be void; because the consummation is founded on the first part, viz. the making and publishing, which are void; and therefore, although at the time of her death, she is discovert, yet her death cannot give effect to the will unless the commencement be good. So if a man be of non-sane memory at the time of making his will, though he afterwards, long before his death, become a man of understanding and sound judgment and memory; yet the will made during his insanity will be void, and cannot by any means be made valid c. III. WHO MAY TAKE BY DEVISE; AND BY WHAT THE custom of devising before the statute of wills being annexed to the land and not to the person of the devisee, it followed, that, if lands were devisable, the owner might have disposed of them ad libitum, and that even in mortmain as well as otherwise. But the power of devising given by the statute of the 32d Hen. 8, as explained by the 35th Hen. 8, was restrained to persons not being bodies politic or corporate, which excluded devises in mortmain; and although the 43d of Eliz. c. 4, was construed to authorize a devise to a corporation for a charitable use, as operating in nature of an appointment rather than of a devise; yet the 9th Geo. 2, c. 36, checked this practice by prohibiting such dispositions, as tending to defeat the political ends of the statutes of mortmain. Persons now, therefore, in order to their taking by devise, must be such natural or civil persons as are not expressly or by inference excepted out of these statutes, but all others may be devisees. Plowd. 343; S. C. 1 Eq. Ca. Abr. 171, pl. 3; 1 Salk. 238; Rep. temp. Holt, 240, 244, 747; 11 Mod. 123. • Arthur v. Bokinham, 11 Mod. 157; S. C. 2 Eq. Ca. Abr. 357, pl. 5. DEVISE. DEVISE. Aliens. Coverture, therefore, creates no disability in a woman to take as a devisee; and although at law, if her husband disagree, it will avoid the devise; yet equity would interpose in such case, and prevent a husband from prejudicing his wife, by dissenting to her taking a benefit under a devised. Nor is a wife disqualified by her coverture from being a devisee to her husband, either under the custom or the statute; for the reason that she cannot be a grantee under a grant from her husband, is, because the husband and wife are considered as one person in law, a principle which does not apply in case of a devise: because the husband has the estate' radically in him, and the devise does not take effect until after his death, and then they are no more one person". So an alien, it should seem, may take by devise, for an alien may take; and the only consideration will be, for whose benefit, i. e. whether for the benefit of the crown or himself. And in this respect, there appears to be no ground for distinguishing between the case of a devise or of any other conveyance; for when an alien takes by will, the estate, on the will's being consummate, vests in him, and he is in to all intents and purposes as any other devisee would have been, until something further be done to take the devised estate out of him again; for, as long as the alien lives, the inheritance is not vested in the king, nor shall he have the land, until office found: and thereforé, before office found, a recovery by an alien tenant in tail will bar the remainders, he being tenant of the land: but, if he die before office found, the law casts the freehold and d See Perkins, s. 43, 44; but note, Perkins relates only to a conveyance made to a wife: the principle, however, applies. 1 Eq. Ca. Abr. 173, pl.9; Fitzh. Dev. 285, pl. 13; Co. Eit. 112, b; 1 Rol. Abr. 610; Knight v. Du Plessis, 2 Ves. 360; and see Godfrey v. Dixon, Godb. 275; Noy, 137. inheritance upon the king for want of heirs, an alien having none. So that the title of the crown is collateral to the title by the devise, and has no retrospect to the time of its being consummate; nor does it affect the land in the hands of the devisee until another distinct thing is done to entitle the king, not under the devise, but by right of his prerogative, viz. office found; the tenant being an alien, and consequently, though of capacity to take lands in his own right, yet not of capacity to hold them. DEVISE. And since the statute of the 18th Geo. 3, c. 60, which Papist. repeals so much of the statute of the 11th & 12th Will. 3, as disables persons educated in the popish religion, or professing the same, under the circumstances therein mentioned, to inherit or take by descent, devise or limitation, in possession, reversion or remainder, within the kingdom of England, &c. provided such persons, within the time limited by the act of the 18th Geo. 3, take the oath thereby prescribed; papists complying with that oath are likewise capable of being devisees of real property. A bastard cannot be a devisee until he have gained a Bastard. name by reputation". But having gained a name by reputation, he may take by such description 1. A person may take as a devisee, not only where he is described in certain; as where a devise is to A., or B. or the like, accompanied with proper circumstances of identification; but also by any circumlocuitous description, that is sufficient to identify the person intended to take, for wills are always liberally construed. Thus, where a man by will devised his lands to one of his cousin's daughters, that should marry with a Norton within fifteen years. A. had three daughters, E. A. and M; E. married to a Norton, and on a question, whether she or the heirs at law should have the land, one objection taken by the heir at law was, that the devise was void for uncertainty as to Gouldsh. 102; 4 Leon. 84; 9 Co. 141. Dyer, 313; Noy, 35. Perk. s. 26; Noy, 35; DEVISE. Persons not in esse. the person, for two might marry with a Norton. But the court agreed that the devise was good, notwithstanding the uncertainty; for that, although the words were not, who should first marry with a Norton, yet the law would supply these words in a deed, where, if two constructions were made, and one made the grant void and the other not, the latter should stand; à fortiori in this case; and therefore it should not be presumed that more than one would marry a Norton, especially as the words of the will fixed in a single person; and they said there was a difference when there was uncertainty in the event and uncertainty in the person. So a devise may be to R. or B. which shall have issue first; or to the first son of A. that shall have issue1. But a Persons not in esse may likewise take by devise. distinction seems to have been formerly taken between a present devise to them, and a devise to them by way of remainder; for if there was a tenant for life in rerum natura at the time of the devise, but no person in remainder in rerum natura, yet the devise was good if he in remainder were in esse at the time when the remainder fell in ". Thus where there was a devise by a man to his wife for life, and, after her death, to I. a son of the testator, and to his heirs male of his body engendered, and for default of such issue to the next heir male of the devisor and the heirs male of his body; it was held that the devise to the next heir male of the devisor would have been good on the demise of the wife and I. without issue, if an heir male had been born previous to those events" (1). · (1) But no heir male having been born until after those events had happened, that limitation was held to have failed, and the estate to have vested irremoveably in the heir at law of the devisor. So where W. seised of a copyhold of inheritance, surrendered it to the use of his will, and, having a son born, and another in ventre sá mere, devised part of his land to his son or daughter with whom his wife was enseint et haredibus suis legitime procreatis, and the residue to his son born, to him and his heirs of his body, and, if he died without heirs of his body, the lands to remain to his child in ventre sa mere; and if both died without heirs, then over; the devisor died, and then the wife had a daughter and on a question, Whether the daughter in ventre sa mere could take by purchase a real estate, as a copyhold was, it was held by all the justices that she might take an estate in remainder° (1). On devises made to persons not in esse, a distinction seems likewise to have been formerly urged between the appointment of such devisee per verba de præsenti, or per verba de futuro: and although it be now clear, that a person not in esse may be a devisee per verba de futuro; yet it is not settled whether he may per verba de præsenti ¶. Thus, in the case of Snow v. Cutler, the court, consisting of Wyndham, Moreton, Twisden and Keeling, expressed themselves clearly of opinion, that a devise to an infant when it should be born would be good, and the land would descend to the heir in the mean time. So where W. devised messuages in London to his wife for life, and, after her decease, to such child as she was then supposed to be enseint of, and • Church v. Wyat, Moore, 637; et vide 2 Bulst. 273, 275, 276. P1 Eq. Ca. Abr. 173, pl. 12. ૧ 42 Bulst. 275; Mich. 12 Jac.; S. C. 1 Rol. Rep. 109. Snow v. Cutler, 1 Sid. 153; 1 Lev. 135; Salk. 229; Godb. 386. (1) It is proper to observe here, that it is stated in the last case, that the wife of the devisor entered and was admitted; from which circumstance, and from the judgment of the court, it seems reasonable to presume, that there was an estate for life limited to the wife previous to the estates to the children in tail. DEVISE. |