KIBBET VS. LEE. A covenant to stand seised to uses, contains a power of revocation by any writing sealed in presence of three witnesses; a last will, so executed, is a valid revocation; and the estate passes to the devisee by the will, as a will, and not as a declaration of new uses upon the old covenant. A power of revocation is to be construed liberally, and the execution of it favorably; but all the forms and circumstances prescribed must be observed. [312] Brownlow. THOMAS KIBBET brought an ejectione firma against Midd. George Lee, for certain lands in Huntington, of the de- 27 H. 8. cap. mise of Thomas Lee. Upon issue not guilty, the jury 10, Winch. 83. Post. 349. found that George Lee, father of the lessor and of the 3 East. 423. defendant, did, by indenture, covenant to stand seised of the lands in question, to the use of himself for life, and after his decease, to the use of George Lee, his son and heir, which is now the defendant, and the heirs of his body, the remainder to his own right heirs. Provided, nevertheless, that if George, the father, should at any time during his life, be minded upon any occasion to make void or change the uses, that then it should be lawful for him, being in perfect health and memory, by writing under his hand and seal, and by him delivered in the presence of three credible witnesses, to declare that his will and pleasure is, that the said uses, or any of them, should be altered or made void; and that then and from thenceforth the said uses shall be void, and the said George, the father, and all other, shall stand seised to such uses as by such writing shall be limited. And then they find, that George, the father, made his last will in writing, under his hand and seal, and thereby did devise the said tenements to Thomas Lee, the lessor, and the heirs of his body, and for want of such issue, to his son George, in tail, the renainder to his daughter in fee; and that the same last will was sealed and delivered in presence of four, (naming them,) being credible witnesses; and then George Lee, the father, died, and Thomas Lee, the younger son, entered, and made the lease, upon whom the defendant, George Lee, entered, and ejected : him et si, &c. And hereupon judgment was given for Judgment. the plaintiff, by myself, Warburton, and Winch; Hutton [312 a] only differing; the sole main question being, whether a revocation actual, or an act implying so much, may be The sole main made by will, by force and within the meaning of this 1 Cr. 376. question. Whether an actual revocation may be made by the aforesaid pro proviso. And it was agreed, first, that though the verdict did not find that George, the father, was in perfect health and memory, yet that was well enough; for it shall be viso, Dy. 314. presumed, except the contrary be showed. And so for the presence of sufficient and credible persons. Otherwise, if it were in the presence of sufficient subsidy men. p. 97. 10 Co. 143. b. 144. 1 Cr. 376. Co. L. 297. a. [313] Next, it was agreed, that all forms and circumstances prescribed must be observed; as here it must be by writing, signed, sealed and delivered in the presence of witnesses, ut supra; which, though they be not all requisite in a will, as it is a will, yet as it is a revocation within this proviso, it must have them. Scroop's case. Now, though this be true, it is to be understood of forms and circumstances that are expressed, and not imagined. Now then, here the will is a writing under hand and seal, and delivered in the presence, &c.; so all the express circumstances are observed. Against which it was said by my brother Hutton, that it is to be understood of a deed, according to vulgar speech, and the rather, because in such clauses the last will is especially mentioned. And lastly, that the clause is, that from henceforth, that is, (say they) from the sealing and delivering, the old uses shall be void, which cannot be in case of a will, which is ever revocable, and takes no effect till death, nor in this case, which was so far agreed. But it was answered by the court, and so resolved, though revocations must observe the circumstances that the owner imposeth upon himself, as hath been said, yet no more shall be imposed upon him, but his power shall be taken favorably, as agreeable to nature, that every man have free power over his own; which is the reason that the latter act, that cannot stand with the former uses, is construed a revocation, though according to the express word and vulgar sense it is none. 1 Co. 173. b. Co. L. 237. a. Scroope's and [313 a] Fitz Williams's case. Also, where a condition dispensed or extinct in part, extinguishes wholly, as being odious 6 Co. 32. a. in law, the case of revocation is clean contrary; for if 10 Co. 144. a the power extend to one hundred acres, and I make a 11 Co. 173. b; feoffment of ten, I may, nevertheless, revoke for the rest. So the power of revocation is to be taken liberally, and the execution of it favourably. Now then for the clauses then and henceforth,' they are surplusage, and of no force. For the power of revocation is perfect and complete before they come to those words, in these words, that if it be his pleasure to revoke them, he may, by his writing, &c. declare them void;' and then words needless shall not impeach a clause certain and perfect without them. And yet further, being truly considered, there is no repugnancy in them; for my meaning is, that he shall have power to declare them void, according to his pleasure, that is, according to the nature of his declaration in law, which, in case of a will, is from his death, or according as he shall expressly appoint the time. And therefore, if in this case, George Lee, the father, had made a simple writing of declaration, and not in the manner of a deed, to any certain person, that his uses shall be void, and had signed, sealed, and delivered it in the presence of three credible witnesses, and had either in the body of the deed, or verbally, declared, that it should take effect upon an hundred pounds paid, or at his death, and not before; that this revocation should be good, and yet shall not take effect from the making, but from the time appointed within these words, 'then and from henceforth;' whereof it follows, that the former estates being revoked, the will is good for the whole, working as a will, which maintains the judgment. But if the land had been holden by knight service, and the devise to a stranger, it could have 6 Co. 18. a. carried but two parts as a will, and by force of the deed of the covenants it could carry nothing to a stranger; and if the land had been so holden and devised to the son, as it is here, it can carry but two parts as a will, and I doubt it could not have carried all as a declaration of [313 b] Cr. El. 232. new uses, upon the power of the covenant; for since this devise (if it should work so) cannot take effect during the life of the devisor and covenantor, it amounts to no more, than as if a man should covenant that after his death, his heir should stand seised to the use of his younger son, which I hold to be void. (1) (1) See 3 East 410, Hawkins & als. v. Kemp. Where the nature of the instrument, by which a power is directed to be executed, is specified, it must be adopted. Therefore, where, in a declaration of uses in a common recovery, they were declared to be to such persons as A. and B., by any deed or deeds, sealed and delivered by them in the presence of two or more credible witnesses, should jointly appoint; and in case of the death of either of them, then as the survivor of them, by any deed or deeds, to be executed as aforesaid, should appoint; and the survivor, by his will duly executed, devised the land; it was held that this was not a valid execution of the power, because it was reserved to be executed by deed, which, in the understanding of the law, has a technical signification, to which a will is in no respect applicable. But if the term writing, instrument, or other term of general comprehensive meaning had been used, it might have been executed by will. Cowp. 260, Darlington v. Pultney. See also 5 T. R. 567, Doe v. Cavan. Cruise's Dig. tit. Deed. ch. 16. s. 11 & seq. Post 348, Earl of Ormond's case. Ejection. Hutt. 87, 88. R. 38. Cr. El. Ow. 38. Jon. 307, 310. Mo. 398. 2 Le. 1. Post. 314. Co. WINDSMORE vs. HOBART. Lands were demised by indenture to T. H., habendum to the said T. H. and three other persons, successively: held, that no one could take immediately but T. H. because he was the only party to the deed; and that the others could not take by way of joint remainder, on account of the word successively; nor in succession, on account of the uncertainty who should take first, and who should follow. THOMAS WINDSMORE, lessee of Edward Long, plaintiff, Godb. 51. Ow. and Nicholas Hobart, defendant, in ejectione firma, for 57. 2 Cr. 164. land in Polsholt, in Com. Wilts. Issue not guilty. It was found by a special verdict, that William Lord Sturton was seised in fee, and that 24 Maii, 8 H. 8. per quoddam scriptum suum indentatum, sigillo suo sigillatum, dimisit cuidam Thoma Hobart tenementa præd., habend. eidem Thoma, et præfato Nicolao Hobart, ac quibusdam Johanni Hobart et Henrico Hobart, filiis prædict. Thomæ, pro termino vitæ eorum et alterius eorum, successive, diutius viventium. William Lord Sturton granted the reversion to Thomas Long and his heirs, who devised the reversion to Edward Long, the lessor, in tail, and died; Thomas Hobart and Henry Hobart died, and Nicholas and John sur L. 7. a. 54 b. vived; and the lessor entered, and made the lease to the [313 c] plaintiff, and the defendant entered. deed Ant. 172. Co. 67, 68. 3 Cro. only 4 Le. 296. 58. 2 Leo. 1. Plowd. 34. b. accord. Vaugh. 26. Cr. Jac. 372. And in this case, judgment was given for the plaintiff, Judgment. after long debate, and upon great consideration; whereof L. 26. b. 2 Ro. the reasons were, first, that none could take by the immediately, but Thomas Hobart, because he was party to the deed, and the rest not named, but by the habend.; then they cannot take but by the way of rem., which cannot be joint, because of the words successive, &c. And in succession they cannot take, for the uncertainty who shall begin, and who shall follow; which, in the case 20 El. Dyer 163, is ascertained by the clause successive sicut nominantur in chartá. (1) (1) As to the office of the habendum in a deed, vide ante page 170, 171. Cruise's Dig. tit. 32. ch. 20. sec. 69, 70. Its, general office is to limit the certainty of the estate granted. Therefore no person can take an immediate estate by the habendum of a deed, where he is not named in the premises; for it is by the premises that the thing is really granted. A stranger to the deed may take by way of remainder, but he cannot If no name whattake any present estate in possession. Co. Lit. 231. a. ever be mentioned in the premises, then a person named in the habendum may take a present estate; but if the thing granted be only in the habendum and not in the premises, the deed will not pass it. Shep. Touch. 75. A use may be declared in the habendum to a person to whom no estate is granted in the premises. 13 Co. 54, Sammes case. 3 East 115, Spyve v. Topham. Where no estate is expressed in the premises, the habendum may frustrate and make it void; but if the habendum be repugnant and contrary to the premises, the habendum will be void, and the Com. Dig. Fait grantee will take the estate given in the premises. (E. 9.) A deed containing in the premises no words of grant, may be sufficient to pass an estate in fee, such appearing to be the intention from other parts of the deed. 1 Mass. 219, Bridge v. Wellington. Vaugh. 264. 637. Po. 314, Dy. 361. a. Mo. 315. Plowd. 32. GREENWOOD vs. TYLER. By indenture between A. and B. lands are demised to B. and C. his wife, and D. their daughter, habendum to them et eorum diutius viventi, successive, &c. The husband alone takes an estate for his life. Semb. Robert [314] Error. 2 Cro. 563. m. 2 Ro. R. 366. 32 H. S. cap. Palm. 29. Now this term, Mich. 18. Jacobi, by a writ of error out of the king's bench, came this cause before us. Greenwood brought an ejectione firmæ against John Tyler, 28. Ant. 313. of lands in Box in the said county; and upon issue not guilty, a special verdict was found, que Anthony Long et Alice sa femme fueront seisi in fee, in droit Alice, del dits |