Cap. 2.-If Part of the Land be sold, the Services shall be apportioned.

pro particula illa secunduin quan-tain to the said chief Lord for 27 H. 8. f. 26.

Cap. 3.-No Feoffment shall be made to assure Land

dictas venditiones seu emp- AND it is to be understood, 2 Inst. 504,

seu partis alicujus eorumdem nulloments, or any Parcels of them, modo possunt terre seu tenementa such Lands or Tenements shall illa in parte vel in toto ad manumin no wise come into Mortmain,

simpliciter tantum & quod se ex-tendeth but only to Lands holden

11 H. VII. e 20.

Hob. 289.

1 Leon. 261. 2 Leon. 169. 2 And. 44.

2 Roll. 417.

ceased Husbaud, shall be void.

No. 10.

11 Henry VII. c. 20.-Certain Alienations made by the Wife, of the Lands of her deceased Husband, shall be void.

FOR Cited by the King our Sovereign Lord, and by the Assent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by Authority of the same, That if any Woman which hath had, or hereafter shall have, any Estate in Dower, or for Term of Life, or in Tail, jointly with her Husband, or only to herself, or to her Use, in any Manors, Lands, Tenements, or 3 Co. 58. 5 Co. other Hereditaments of the Inheritance or Purchase of her Husband, 80. Bro. Judg. 148, 153. Co. or given to the said Husband and Wife in Tail, or for Term of Life, Lit. 326. b. 365. by any of the Ancestors of the said Husband, or by any other Person 366, 381. Cro. seised to the Use of the said Husband, or of his Ancestors, and have El. 2, 4, 24, or shall hereafter, being sole, or with any other after taken Husband, 131, 513, 514 discontinued or discontinue, alicned, released, or confirmed, aliene, C10. Jac. 174, release, or confirm with Warranty, or by Covin suffered or suffer any 624. 3 Mod. 33. Recovery of the same against them, or any of them, or any other 4 Mod. 85. seised to their Use, or to the Use of either of them, after the Form Alienation by the aforesaid, that all such Recoveries, Discontinuances, Alienations, Wife of the Inhe- Releases, Confirmations, and Warranties so had and made, and from ritance of her de henceforth to be had and made, be utterly void and of none Effect: And that it shall be lawful to every Person and Persons, to whom the Interest, Title, or Inheritance, after the Decease of the said Women, of the said Manors, Lands, and Tenements, or other Hereditaments, being discontinued, aliened, and suffered to be recovered, after the First Day of December next coming, in the Form aforesaid, should appertain, to enter into all and every of the Premises, and peaceably to possess and enjoy the same, in such Manner and Form as he or they should have done, if no such Discontinuance, Warranty, nor Recovery had been had nor made. And over this be it ordained and enacted in the Reversion by the said Authority, That if any of the said Husbands and Women, or any other seised, or that shall be seised, to the Use of them of the Estate afore specified, after the said first Day of December, do make or cause to be made, or suffer any such Discontinuance, Alienations, 3 Co. 50, 58. Warranties, or Recoveries in Form aforesaid, that then it shall be lawful to the Person or Persons to whom the said Manors, Lands, or Dyer 111, 146, 248, 540, 354, Tenements should or ought to belong after the Decease of the said 362. Hob. 341. Women, to enter into the same, and them to possess and enjoy, according to such Title and Interest as they should have had in the same, if the same Women had been dead, no Discontinuance, Warranty, nor Recovery had, as against the said Husband during his Life, if the said Discontinuance, Alienation, Warranties, and Recoveries be A Woman Co hereafter had by or against the same Husbands and Women during the vert bound but du Coverture and Espousal betwixt them. Provided alway, That the ring her Husband's said Women, after the Decease of their said Husbands, may re-enter into the same Manors, Lands, and Tenements, and them to enjoy according to their first Estate in the same. And over this be it ordained and enacted by the said Authority, That if the said Women at the Time of such Discontinuance, Alienations, Recoveries, Warranties, after the said first Day of December, in Form aforesaid, to be had and made of any of the Premises, be sole, that then she shall be barred and excluded of her Title and Interest in the same from thenceforth; and that the Person and Persons to whom the Title, Interest, and

OR certain reasonable Considerations be it ordained, enacted, and

Upon the Reco.

very or Alienation of the Woman, he

may enter.

2 And. $1.

1 Co. 102.

4 Co. 3.

Life.

2 Bulst. 42.

A Woman sole

aliening, or suffer

ing a Recovery.

No. 10.

A Proviso for a

Possession of the same should belong after the Decease of the said Woman, shall immediately after the said Discontinuances, Alienations, 11 H. VII. 6. 20. Warranties, and Recoveries, enter into the same Manors, Lands, Tenements, and other Hereditaments, and them to possess and enjoy according to his or their Title in the same. Provided also, That this Act extend not to avoid any Recovery, Discontinuance, or Warranty Recovery had beafter the Form aforesaid, afore this Time had, made, and suffered, but fore the Time of only where the said Husband and Woman, or either of them now the Statute. being alive, or any other to their Use, now have Entries and Title to the said Manors, Lands, Tenements, or other Hereditaments, aliened, discontinued, or suffered to be recovered after the Form aforesaid, and thereof now taking the Issues and Profits, or any other Person or Persons to their Use. Provided also, that this Act extend not to any A Woman doth such Recovery or Discontinuance to be had where the Heirs next in- discontinue or suffer Recovery with heritable to the said Woman, or he or they that next after the Death the Heir's Conof the same Woman should have Estate of Inheritance in the same sent. Manors, Lands, or Tenements, be assenting or agreeable to the said Recoveries, where the same Assent and Agreement is of Record, or A Woman may inrolled. Provided also, That it shall be lawful to every such Woman aliene her Land being sole, or married after the Death of her first Husband, to give, her Life only. sell, or make Discontinuance of any such Lands for Term of her Life only, after the Course and Use of the Common Law before the making of this present Act. (1)

(1) In Eyston v. Studde, Plowden 459, it was held, that where a Husband and Wife seised in Right of the Wife, levied a Fine to a third Person who rendered the Land to the Husband and Wife, and the Heirs of their Bodies, the Disposition of the Wife after the Death of the Husband was not within the Operation of the Statute, although within the Words as a Purchase by the Husband" for many Times, Things within the Words of a Statute are out of the Purview, for the Purview does not extend beyond the Intent of the Makers. And the Intent is more to be weighed than the Words of Acts, and the Intent here was that where Women have Jointures which proceed originally from their Husbands, or the Ancestors of their Husbands, to restrain them from causing Disherison or other Injury, to the Heirs of their Husbands, and therefore a Person ought not to rest on the Letter, or suppose that wherever he has the Letter, he has the Law in his Favour."-And a very valuable and elaborate Note is subjoined to the Case respecting the Principles on which a more enlarged or restricted Sense ought to be given to the Words of a Statute in Order to answer the Intent. For the general Exposition of this Statute, see Gilb. Uses and Trusts, 339, [157] with Mr. Sugden's Notes from which the following Summary is taken

Nor

The Statute does not extend to a Case where a Wife before Marriage conveys to the Ancestor of the intended Husband who reconveys to the Husband and Wife in Tail, Plowden, ibid. or to a Rent granted by the Conusee of a Fine of the Wife's Land, Foster v. Pitfall, Cro. Eliz. 2. will the Husband, paying a Sum of Money to the Wife's Father vary the Case. Semble Copland v. Pigot. Neither does the Statute extend to a Gift by a Stranger, although in Consideration of Services rendered by the Husband. Ward v. Walthew, Cro. Jac. 153. Mo. 683, by the Name of Ward v. Sudman. See Cro. Car. 244.

The Statute does extend to a Settlement by the Husband or his Ancestors in Consideration of Marriage, although Money is also paid. Anon Mo. 93 Villers v. Lincoln, Dyer 146 a 1 Rep. 176 a Bendl. Ked 208 a Kirkman v. Thompson, Cro. Jac. 474, to a Settlement made by the Husband by Way of Feoffment and Reinfeoffment, Mo. ab. supr. to the Husband's Moiety of Lands, whereof the Husband and Wife are seised as Joint Tenants, Laughter . Humphrey, Cro. Eliz. 524, and every Alienation contrary to the Spirit of the Statute is void, although not within the Letter of it, Piggot v. Palmer, Mo. 250. 3 Rep. 516. The Statute only applies to Cases where the Alienation necessarily tends to the Disherison of the Heirs of the Husband, and therefore not when the Remainder is limited to a Stranger with no Estate of Inheritance

for the Term of

No. 10.

to the Husband or his Heirs, Foster v. Pitfall, Cro. Eliz. 2. 1 Leon, 261, or to 11 H. VII. c. 20. the Wife in Fee. Dennis's Case, D. 248. R. v. Savage, mo. 715. or in Tail general. Hughs v. Clubb. 1 Com. 369. It does not extend to Cases where the Consent of the next Heir appears on Record, Lincoln Coll. Case 3 Co. 58. b. See Coates v. Price, 12 Vesey 89. A Trust or Equity of Redemption is within the Statute, Clifton v. Jackson, 2 Vem. 489, Copyholds are not. Harrington v. Smith, 2 Sid. 41-73, aliter of a Copyhold whereof Husband and Wife are seised, and which is enfranchised for a money Consideration paid by the Husband. Stockbridge's Case, Cro. Eliz. 24.

21 TT. VIII. c. 4.

2 Roll. 336.

Laud devised to

be sold by divers

Executors, cannot

by Common Law be sold by Part of

them.

4 Ed. S. c. 7.

9 Ed. 3. stat. 1.

c. 3. 25 Ed. 3. stat. 5. c. 5.

No. 11.

21 Henry VIII. c. 4.-The Sale of Lands by Part of the Executors lawful.

WHERE divers ir Use of and in Lands and other Here

THERE divers sundry Persons before this Time, having other

'ditaments to and for the Declaration of their Willa, have by their last Wills and Testaments willed and declared such their said Lands, Tenements, or other Hereditaments to be sold by their Executors, as well to and for the Payments of their Debts, Performance of their Legacies, necessary and convenient finding of their Wives, virtuous bringing up and Advancement of their Children to Marriage, as also for other charitable Deeds to be done and executed by their Executors for the Health of their Souls. And notwithstanding such Trust ⚫ and Confidence so by them put in their said Executors, it hath often'times been seen, where such last Wills and Testaments of such 'Lands, Tenements, and other Hereditaments have been declared, and in the same divers Executors named and made, that after the Decease of such Testators some of the same Executors, willing to accomplish the Trust and Confidence that they were put in by the said Testator, have accepted and taken upon them the Charge of the said Testa'ment, and have been ready to fulfil and perform all Things contained in the same; and the Residue of the same Executors, uncharitably 'contrary to the Trust that they were put in, have refused to inter'meddle in any wise with the Execution of the said Will and Testa'ment, or with the Sale of such Lands so willed to be sold by the Testator. And forasmuch as a Bargain and Sale of such Lands. Tenements, or other Hereditaments so willed by any Person to be 'sold by his Executors after his Decease, after the Opinion of divers • Persons, (1) can in no wise be good or effectual in the Law, unless the same Bargain and Sale be made by the whole Number of the Executors named to and for the same; by Reason whereof, as well the Debts of such Testators have rested unpaid and unsatisfied, to the great Danger and Peril of the Souls of such Testators, and to the great Hindrance, and many Times to the utter undoing of their Creditors: As also the Legacies and Bequests made by the Testator Part of the Exe to his Wife, Children, and for other charitable Deeds to be done for the Wealth of the Soul of the same Testator that made the same Testament, have been also unperformed, as well to the extream Misery of the Wife and Children of the said Testator, as also to the Let of Performance of either charitable Deeds for the Wealth of the Soul of the said Testator, to the Displeasure of Almighty God.' For Remedy whereof, be it enacted, ordained, and established by the Br. Devise, 10, Authority of this present Parliament, That where Part of the Execu31. Co. Lit. 113. 1. tors named in any such Testament of any such Person so making or (1) In Withnell v. Gartham, 6 T. R. 396. Lord Kenyon infers from this Expression that the Act was passed rather to remove Doubts than to make a new Law.

cutors, who take upon them the

Charge of a Will. may sell any Land

devised by the Testator to be

sold.

3 Cro. 80.

་

.

No. 11.

declaring any such Will of any Lands, Tenements, or other Hereditaments to be sold by his Executors, after the Death of any such Testa- 21 H. VIII. c 4. tor, do refuse to take upon him or them the Administration and Charge of the same Testament and last Will wherein they be so named to be Executors, and the Residue of the same Executors do accept and take upon them the Cure and Charge of the same Testament and last Will; that then all Bargains and Sales of such Lands, Tenements, or other Hereditaments, so willed to be sold by the Executors of any such Testator, as well heretofore made, as hereafter to be made by him or them only of the said Executors that so doth accept, or that heretofore hath accepted and taken upon him or them any such Cure or Charge of Administration of any such Will or Testament, shall be as good and as effectual in the Law, as if all the Residue of the same Executors named in the said Testament, so refusing the Administration of the same Testament, had joined with him or them in the making of the Bargain and Sale of such Lands, Tenements, or other Hereditaments so willed to be sold by the Executors of any such Testator, which heretofore hath made or declared, or that hereafter shall make or declare any such Will, of any such Lands, Tenements, or other Hereditaments after his Decease, to be sold by his Executors.

this Statute.

II Provided alway, That this Act shall not extend to give Power Wills made before or Authority to any Executor or Executors at any Time hereafter to Bargain or put to Sale any Lands, Tenements, or Hereditaments, by Virtue and Authority of any Will or Testament heretofore made, otherwise than they might do by the Course of the Common Law afore the making of this Act. (2)

(2) The Doctrine established respecting this Statute is contained in the following Note, by Mr. Sugden, to Gilbert's Uses and Trusts, 128. [67]

"The Statute does not apply to a Case of Death, nor was it necessary that it should. The Act was passed before the Statute of Uses, and only related to Devises by Persons having other Persons seised to their Use, and in Words it only provided for Cases where Lands are willed to be sold, that is, where a Power is given; but it was held, since the Statute of Uses, to extend to an absolute Devise by a Person seised in Fee of the legal Estate to sell, as well as to a Power; Bonifant v. Greenfield, Cro. Eliz. 80. See Bro. Devise, pl. 3; and Hawkins v. Kemp, 3. East, 410. The Devise must be to the Persons as Executors; or at least the Fund, when raised, must be distributable by them in that Character.-A mere Devise to Persons to sell, and afterwards an Appointment of them as Executors, will not, it is said, bring the Case within the Act. It was not, however, necessary to decide the Point, because a Refusal by the other Executors was not shewn. Denne v. Judge, 11. East, 288; see Bonilant v. Greenfield, ubi sup. There is an Observation of Lord Kenyon's on the Preamble of the Act, in 6. Term Rep. 396. (See the preceding Note.) It must be remembered, that it only applies where one of the Executors refuses to join; and even where that is the Case, a cautious Purchaser will not accept a Conveyance from one, because the other may have previously sold to some other Person. Whether the Receipt of the acting Executor will be a good Discharge under the usual Power to give Receipts.See Treat. of Purch. p. 387. s. 17."

And the following is the Result of Mr. Sugden's Examination of the Cases respecting Powers that do or do not survive. Treatise on Powers, Ch. 3. s. 2. pa. 140.

1st. That where the Power is given to two or more, by their proper Names, who are not made Executors, it will not survive without express Words. 2d. That where it is given to three or more, generally, as, to my Trustees, my Sons, &c. and not by their proper Names, the Authority will survive whilst the plural Number remains. 3d. That, where the Authority is given to Executors, and the Will does not expressly point to a joint Exercise of it, even a single surviving Executor may execute it. But 4th. That where it is given to them nominatim, although in the Character of Executors, yet it is at least doubtful whether it will survive.