Page:The English Reports v1 1900.pdf/1166

On the death of the testator, the defendants entered upon these lands; but Frances the widow, apprehending herself entitled thereto, under her husband's will, brought an ejectment to recover the possession; and the jury having found a special verdict, stating the above facts, and that by the custom of gavel-kind, any tenant being seised of lands in fee, may devise the same by will in writing; the single question upon this verdict was, Whether the lands in question, being purchased after the making of the will, could by law pass by the will, there having been no re-publication after the purchase And upon arguing this question in the Queen's Bench, the court were unanimously of opinion for the defendants, and gave judgment accordingly.

To reverse this judgment, the present writ of error was brought; but in the printed case on the part of the plaintiff, not a single reason is advanced why it should be reversed; it being only said (J. Montague), that all the Judges, when they gave judgment, declared their belief, that the said William Bokenham intended that the lands in question should go to his wife; and that if he had duly republished his will, after he had purchased the lands, the words in the will, without any other words added thereto, would have been sufficient to pass the lands to his said wife.

But on the other side it was contended (J. Jekyll, T. Parker), to be contrary to reason, and against the known rules of the common law of England, that a man should make any conveyance or disposition of land, which he had not at the time of making such conveyance or disposition. That the statute 32 Hen. VIII. which gives the power of disposing of lands by will, enables only persons having lands, to make such disposition thereof; but gives no power to persons not having lands, to make any disposition of such as they shall have. And the custom of gavel-kind was in effect the same; being expressly found by this special verdict to be, that tenants seised of lands may devise them by will. That therefore, to support a will, either upon the statute or the custom, it was necessary to show, that the devisor was seised of the lands devised, and being so seised, made his will; and so was the constant course of pleading, and not a precedent otherwise; so that this will could not pass the lands, because the party was not seised thereof when he made it. That the unanimous opinion of the Court of Queen's Bench upon this point, in the present case, was supported by a judgment given for the defendants in the Common Pleas, by the unanimous opinion of that court on a like special verdict, found upon the same will; and both of them by a former resolution of all the Judges of England, upon solemn argument in the Exchequer Chamber, 30 Eliz. upon the same point, in the case of Butler and Baker (Viner, vol. 8. p. 64. ca. 2.), with other concurrent judgments, and not one judgment or resolution to the contrary. And that it having been so solemnly settled, and so long received as a rule of property, that a man cannot make a will of any lands, before he has a title in them; to overthrow it now, might be to overthrow the titles of [21] many great and noble families, and would introduce infinite confusion, and a distrust of every other point of law how plain soever.

Accordingly, after hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in her Majesty's Court of Queen's Bench, should be affirmed; and that the record should be remitted, to the end execution might be had thereupon, as if no such writ of error had been brought into the house. (Jour. vol. 18. p. 479.)

Nathaniel Hawes had issue Thomas, his only son, who died in his life-time, and the appellant Ann Warner, widow, his only daughter; but he had several grandchildren by each of them. He was seised in fee of several messuages and tenements in Thames-