A

Of Uses, Trufts.

Ufe is the Profit of Lands or Tenements, or a Truft and Confidence repofed in fome other that is not iffuing out of the Land, but Colateral annexed in Privity to the Estate

And a Ufe is either exprefs by Deed, or implied by Law; as where a Bargain is made on good Confideration without mentioning to whofe Ufe, the Law gives it to the Bargainee; but if no Confideration be mentioned, it may in fome Cafes be otherwife.

And if a Fine or Recovery be levied or fuffered without any Confideration, and no Ufe is limited, the Law implies it to the Ufe of the Perfon ás Levies it.

In Ufes, there must be a Privity of Estate to create the Ufe upon, and they are not to be againft Law, or of a Thing incertain or impoffible, and must be of a Poffeffion: And a Ufe will not hinder a Wife from her Dower after the Decease of her Husband.

A Ufe may be created by Deed Poll, though it is beft by Deed indented; but a Ufe cannot arife out of a Ufe, for when once Lands are fold and fettled to Ufes, there may not be any further Ufes created. Dyer 169. Cromp. Jur. 53. Lit. Bro. Sect. 284.

In Bargains, and Sales, and Covenants to ftand feized to Uses, no Ufe will work as a Ufe without fome Confideration, as Money, &c. if it be to a Stranger; and Nature, Blood, Krdred, Marriage, &c. to ones felf, Wife, Children or Relations; but without any Confideration it wil be good to ones felf and Family. Dyer 169. Co. 7. II. 10. 143. Plow. 301. Co. 1. 154.

But Ufes on Condition, as if I marry fuch a one, &c. the Condition must first be performed, otherwile the Ufe will not take Effect: And Ufes may be made to a Man and the Wife he fhall afterwards marry, or to the Ufe of his firft, fecond or third Wife, &c. and are good. Co. 1. 13. Cudleigh's Cafe.

A Man may fettle Lands to Ufes, and referve Power to make further Ufes, as he shall think fit and direct.

Contingent Ufes and Remainders may be deftroyed, as where a Man Covenants by Feoffment to the Ufe of a Perfon, and the Wife he fhall marry, &c. and before fuch Marriage the Feoffee makes a Feoffment over, the Ufes are thereby deftroyed. Co. 1.

When the Eftate out of which the Ufes do arife is gone, the Ufes are gone alfo. Dyer 186.

And Ufes may be made void by. Release, or Power of Revocation mentioned in the Settlement of the Ufe, as provided, &c.

Lands conveyed to Perfons in Truft, or Money given in Truft to purchase Lands, or any Thing given or granted on Trust, or on Condi tion; if the Trustees do not perform their Truft according to the Intent, you must have your Remedy against them in the Chancery. Cromp. Fur. 48. 54. 58. 59. Dyer 160, &c.

Lands or Goods fettled on Truft, may not be fold by the Trustees, without fpecial Power.

Trustees may in Chancery recover their reafonable Expences laid out in any Thing for the Use and Benefit of the Truftors.

See more of Ufes, Page 150, 151. under Title Covenants to ftand feized to Ufes.

of

Of Wills and Teftaments, &c.

HE laft Conveyance, is a Will in Writing, firft ordained by the Statute of 32 H. 8. 1. And a Will or Teftament is the Declaration of a Man's Mind and Intent, what he would have done after his Death.

The Civil Law calls it a Teftament, when there is an Executor made and named in it; and when there is none, calls it a Codicil.

And a Man can make but one Teftament that shall take Effect; but he may make as many Codicils as he will; and by a Codicil, an Executor may be appointed, but not regularly.

The Common Law calls that a Will, by which Lands or Tenements are devised, though there be no Executor named; and when it concerns Chattels only, it is called a Teftament. Co. Lit. 111. Swinb. of Wills, 24.

The Stat. 29 Car. 2. for Pevention of Frauds, enacts, That all Devifes of Lands or Tenements, devisable either by the Statute of Wills, or by Force of the Custom of Kent. or any other particular Cuftom, fhall be in Writing, figned by the Devifor, or fome in his Prefence by his exprefs Directions, and fubfcribed in his Prefence by three or four creditable Witneffes, or elfe to be void. Alfo, that no Devife in Writing fhall be revocable, but by fome other Will, or Writing, declaring the fame; or by burning or cancelling the fame, by the Teftator himself, or by his Directions and Confent, in his Prefence.

And that no Will in Writing, concerning any Goods or Chattels, or perfonal Eftate, fhall be repealed; nor any Claufe, Devife or Bequeft therein,

0 3

therein, altered or changed by any other Will made by Word of Mouth only: Except the fame be committed to Writing in the Teftator's Life, and read to him, and allowed by him, and proved to be fo done by three Witneffes at the least.

Then there are other Wills befides those in Writing, as Nuncupative Wills.

A Nuncupative Teftament, is when the Teftator doth by Word, without Writing, declare his Will, before a fufficient Number of Witneffes, of his Chattels only; this may, for the better Continuance after the Making, be put in Writing and proved; but it is ftill a Teftament Nuncupative. Weft's Symb. Part 1. Lib. 2. Sec. 64.0.

And by the Statute 29 Car. 2. Where the Eftate given by a Nuncupative Will exceeds 30 l. it is not good, except made in the Prefence of three Witneffes, bid to bear Witness by the Teftator, in his laft Sickness in his own Houfe, or where he had refided ten Days, unless furprized by Sickness from home; and it must be proved within fix Months, unlefs committed to Writing in fix Days.

Perfons having Power to make Teftaments, and void of all natural and civil Imperfections, which may impeach their Teftimony, may be Witneffes to Wills and Teftaments.

In a Will of Goods there must be an Executor named; but 'tis otherwife of Lands, for an Executor has nothing to do with the Freehold: And where Lands are given, it is called a Devife; and where Goods or Chattels are given, it is called a Legacy.

An Executor is one that is appointed to have the Difpofition and Ordering of the Goods and Chattels

Chattels of the Deceased; and an Adminiftrator is one that hath the Goods and Chattels of a Man dying Inteftate, committed to his Charge by the Ordinary for want of an Executor, and his Pow-er and Charge is equal to that of an Executor: And the Executor reprefents the Perfon of the Teftator, as to the Eftate committed to his Truft, and he may charge others, and be charged himself; fue others, and be fued himself, as the Teftator might. Co. 8. 135. Plow. 288. Co. Lit. 209. 11 Co. 9. Co. 9. 40. 31 Ed. 3.

C. II.

No Will has Force 'till after the Teftator's Death; and when 'tis perfect by the Death of the Party, it doth without any further Grant, Livery, or Attornment, give and transfer Eftates, and alter the Property of Lands and Goods, as effectually as an A&t executed by Deed in the Life-time of the Party; for hereby Defcents of Lands may be prevented, and a Man may make Eftates in Fee-Simple, Fee-Tail, for Life or Years, of Lands, Tenements, Rents or Services, Rents and Power to diftrain, Conditions annexed to Eftates, &c. And they that take by Devises of Lands, are faid to be in the Nature of Purchasers. Lit. Sect. 167, 168. Perk. Sect. 505.

A Teftator must be capable to make a Will, and not difabled in Mind or Condition; or in respect of the Thing whereof the Teftament is to be made.

Therefore Perfons drunk, mad, &c. may not make a Will in their Fits; but when they are out of them, and of found Memory, they may. A Man deaf, dumb, or blind, may by Signs or Writing make a Will; but an Alien, a Man entred into Religion, Perfons attainted of Trea04

fon,