Bunker v Cooke
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1732 |
| Date | 01 January 1732 |
| Court | Court of the King's Bench |
English Reports Citation: 94 E.R. 730
IN THE COURT OF KING'S BENCH
[225] the lord chief justice holt's argument in bogkenham's case. bunker versus cooke. B. E. Devise of all lands which shall belong to him at his death; after purchased lands, do not pass thereby. Ejectment brought for lands in Kent on the demise of Bockenham ; and on not guilty pleaded, there is a special verdict, wherein the jury find that William Bockenham, Esq; being commander of His Majesty's ship, "The Grafton," on the 3d of May, 1692, made his last will and testament in writing, and they find it in hfflc verba; he recites then, that he was bound to sea, and then goes on and says, I do hereby give and bequeath to my well-beloved wife, Frances Bockenham, the lessor of the plaintiff, all such sum or sums of money, which now is or shall become FITZ-G.2M, BUNKEB V. COOK.B, B. E. 731 due from Hia Majesty, for my own and servants wages, and all such sums of money, lands, tenements, goods, chattels aud estate whatsoever, wherewith at the time of my decease, I shall be possessed of, or invested with, or which shall belong to me; and I do appoint her my whole and sole executrix of this my last will. They find that the testator, at the time of making his will, was not seised of any lands in the county of Kent, but afterwards by deeds of lease and release, dated 20, 21 Ma. 1700, Sir Geo. Wheeler, and others, being seised in fee of the lands mention'd particularly in the declaration, conveyed the same to the said William Bockenham, the testator, and his heirs, by virtue whereof he became seised. They find the lands are held in socage, and are of the nature of gavelkind, and deviseable by the custom of Kent, and sometime afterwards the said William Bockenham died; the devisee enter'd, and the heir at law enters upon her; and so the question ia between them, whether these lands do pass, and are disposed of by Capt. William Bockenham, or not. Chief Justice Holt giving the opinion of the Court: We have considered of the case altogether, and we are all of opinion, that the will, as to these lands, is [226] void, and that the lands do not pass thereby, but that judgment ought to be for the heir at law. 1. We agree, that the words of the will are full and comprehensive, to pass all these lands, had he been seis'd of them at the time of making his will, in 1692, tho' perhaps it might be his intention and design to have them pass. The case is no more than this: A man makes his will, and devises all the lands that he shall have at the time of his death, and after that he purchased lands, and dies without republication ; we hold that it is a void devise; for a man cannot devise any lands but what he has at the time of making his will. Here is no act between the making of the will and the death of the testator, necessary to be done, to make this a perfect and compleat will; no writing, no publication, nor any other act whatsoever; it is subject, indeed, to a revocation during the testator's life, and is to take effect only from the time of his death; but it is a will, a disposition of the estate bequeathed from the time of the making thereof. Where there is a disability in the testator at the time of making the will, tho' that disability be actually removed before his death, yet the will will be absolutely void, because he had no ability at that time. Suppose an infant makes a will, and devises lands during his minority, or a feme covert in the life of her husband, tho' the...
To continue reading
Request your trial
-
Strode against Perryer
...345. Moor, 353, 47G. Cro. Eliz. 422. Dyer, 143. 5 Co. 68. Lutw. 735. 2 Leon. 70. Salk. 231. 8 Mod. 9,68,159. 10 Mod. 96, 371,467, 520. Fitzg. 225, 246, 314. 1 Vern. 30. 2 Vern. 106, 593, 624. Gilb. Eep. 4, 11. Free. Chan. 441. Abr. Eq. 406. Comyns, 381. 2 Peer. Wins. 136, 182. 3 Peer. Wins.......
-
Daniel Delacherois, - Plaintiff in Error; Nicholas Delacherois, - Defendant in Error
...was admitted in the Court below, that if they had reverted to the lord by escheat they would have passed, Bunker v. Cook (11 Mod. 121-129; Fitzg. 225, 231; nom. Ranter v. Coke, 1 Salk. 237-8 : nom. Broncker v. Coke, Holt, 247-8), Brett v. Eigden (Plowd. 340), Sheppard's Touchstone (Preston'......
-
Brunker against Cook
...be possessed or invested at the time of my decease," will not pass an estate purchased after the making of the will.-S. C. ante, 106. S. C. Fitzg. 225. S. C. Salk, 237. S. C. Holt, 236, 243, 246, 248, 746. S. C. 2 Eq. Ab. 295. S. C. 1 Bro. P. C. 199. Ejectment was brought for lands in Kent,......
-
St. George's Southwark against St. Margaret's, Westminster
...of, or invested with, at the time of ray decease," will not pass an estate purchased after the making of the will.-S. C. post, 121. S. C. Fitzg. 225. S. C. Salk. 237. S. C. Holt, 236, 243, 246, 248, 746. S. C. 2 Eq. Ab. 295. S. C. 1 Bro. P. C. 199. The question was, whether lands of which t......