Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	bequeath_v	error_n	void_v	24	3	17.1369	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
a13252	A briefe treatise of testaments and last willes very profitable to be vnderstoode of all the subiects of this realme of England, (desirous to know, whether, whereof, and how, they may make their testaments: and by what meanes the same may be effected or hindered,) and no lesse delightfull, aswell for the rarenes of the worke, as for the easines of the stile, and method: compiled of such lawes ecclesiasticall and ciuill, as be not repugnant to the lawes, customes, or statutes of this realme, nor derogatorie to the prerogatiue royall. In which treatise also are inserted diuers statutes of this land, together with mention of sundrie customes, aswell general as particular, not impertinent thereunto: besides diuers marginall notes, and quotations not to be neglected, especially of Iustinianists, or young students of the ciuil law: vvith two tables, the one analyticall ... the other alphabeticall ... By the industrie of Henrie Swinburn, Bachelar of the Ciuill Lawe.	Swinburne, Henry, 1560?-1623.	1591 (1591)	STC 23547; ESTC S118058	497,477	642

Menoch de arb Iud. cas 395. n. 41. verb. hoc fortius The second case is † when vnto flatterie is ioyned fraude or deceit d) Sichard in d. L. vlt. n. 13. Olden de action class 5. fo 518. Menoch d. cas 395. n. 41. Afflict decif 69. The third case is when the testator is a person of weake iudgement and easie to be perswaded and the legacie great e) Molin in apostil ad Dec. consil 489. The fourth † case like vnto this is when the testator is vnder the gouernment of the perswader or in his daunger f) Molin in d. Apostil And therefore if the phisition during the time of sicknesse be instant with the testator to make him his executor or to giue him his goods this testament is not good g) Peckius de testam coniug lib. 1. c. 9 n. 6. Bar. in L. Archiatr de profess med lib. 10. C for the lawe presumeth that the testator did it least the phisition should forsake him or negligently cure him h) Peckius vbi supra in c. 17. eod lib. Lucas de penna in d. L. Archiatri iuxta illud Poetae Garrulus aegroto medicus si forte medetur Alter adest morbus continuusque dolor So it is if the testator being sicke his wife neglect to helpe him or to prouide remedie for the recouerie of his health and neuerthelesse in the meane time busily applie him with sweete and flattering speeches to make her his executrix or to bestow his goodes vpon her for in this case the disposition is vneffectuall i) Peckius d. lib. 1. de testa coniug c. 9. n. 5. Mathe. de afflict decis 69. The fift case is † when the perswader is verie importunate k) c. fin 20. q. 3. Abb. in c. praeterea de offic delega extr Menoch de Arbitr Iud. cas 395. n. 41. latiùs Peckius d. c. 9. n. 9. for an importunate begger is compared to an extortor l) ●mol in c. petitio de iureiur Peckius in d. c. 9. n 9. L. 1. §. persuadere ff de ser cor and it is an impudent part still to gape and crie vpon the testator and not to bee content with the first or seconde deniall m) Peckius vbi supra Rebuff Tract de rescrip ar 2. gloss 3. The sixt case is † when the testator hath made another testament before for then the later testament made at the instigation or request of another person is not good in preiudice of the former n) Socin Iun. consil 14 vol. 2. Peckius in d. c. 9. versic tertio as elsewhere is and shall be declared o) Supra part 2. §. 27. inf●a §. 14. limitac 4. Of errour 1 Error may happen in diuerse respects 2 Of error in the person of the executor or legatarie 3 Of error in the name of the executor or legatarie 4 Of error in the qualitie of the executor or legatarie 5 Whether a false cause make voide the disposition 6 Error in the thing bequeathed manifold 7 Of error in the proper name of the thing bequeathed 8 Of error in the name appellatiue of the thing bequeathed 9 Of the difference betwixt a proper name and a name appellatiue 10 An obiection with the answere 11 Certaine cases wherein error in the name appellatiue is not hurtfull 12 Error in the substance of the legacie dooth destroie the legacie 13 Error in the quantitie of the thing bequeathed is not hurtfull 14 Certaine cases wherein error in quantitie doth destroie the legacie 15 Certaine cases wherein the error in the quantitie of the thing bequeathed as a certaine bodie is not hurtfull 16 Error in the qualitie of the thing bequeathed doth not destroie the legacie 17 Error in the forme of the disposition doth destroie the force thereof §. v. ERror dooth sometimes ouerthrow the disposition of the testator somtimes not Therefore that we may vnderstande whether this errour hurt or not wee are to consider † whether the error dooth respect the executor or legatarie or the thing bequeathed or the forme of the disposition And if it doo respect the executor or legatarie then whether the testator doo erre in the person or in the name or in the qualitie of the executor or legatarie When † the testator doth erre in the person of the executor or legatarie supposing him whom he maketh executor or to whō he doth bequeath any legacie to bee another person then he is the disposition is voide a) L. quoties ff de haered instit for example the testator intending to make Iohn at Stile his executor or to giue to Iohn at Stile an hundred pound he saith I make Iohn at Noke my executor or giue I to Iohn at Noke an hundred pound In this case neither can Iohn at Stile nor Iohn at Noke be executors or obtaine the legacie b) DD. in d. L. quoties The reason is this Iohn at Noke is excluded because the testator neuer thought it Iohn at Stile is excluded because the testator neuer spoke it for meaning without speaking is nothing and speech without meaning is lesse c) d. L. quoties L. in ambiguo ff dereb dub When † the testator doth erre in the name of the executor or legatarie and not in the person such error doth not hurt d) L. si in nomine C. de testa but in certaine cases one is when the testator is blind for then it is suspected that the testator dooth mistake the person together with the name e) Ias Sichard in d. L. si in nomine Ripa in L. si quis in fund ff de leg 1. n. 9. quem vide Another is when the testator dooth erre in the name of his owne sonne f) Sicha in d. L. si in nomine n. 14. Ripa in L. si quis fundi ff de leg 1. vbi sublimitat hanc limitac quādo viz. natus educatus esset silius in loco remoto or of his father g) Ripa in d. L. si q̄s n. 8 the reason is for that this grosse error doth note the testator of follie h) Sichard alij in d. L. si in nomine But a foole or he that is not of sound memorie cannot make a testament i) Supra 2. part §. 1. much more is the disposition voide if the testator do erre in his owne name k) Ias in d. L. si in nomi as if the testator say I Peter make my testament where his name is Iohn for this is a plaine and euident proofe of his follie or lacke of sufficient memorie l) Bar. in L. cum in liberis C. de haered instit est communis opinio vt per Grass Thesaur com op §. Institutio q. 29. n. 2. When † the testator doth erre in the qualitie of the executor or legatarie this error is not hurtfull m) L. falsa demonstratio ff de cond demō c. 1.

rule of the deuise of landes is negatiue 2 The exceptions of this rule are of two sortes §. ij TRue it is that this matter of the deuise of landes tenementes and hereditamentes which in this realme of Englande with all questions incident thereunto is to be determined according to the lawes temporall of this realme and is not subiecte to the rules and decisions of the lawes ciuill or ecclesiasticall lest therefore whilest I would seeme a meere professor of the ciuill lawe I might seeme altogether to neglecte both lawe and ciuilitie by thrusting my sickle into an others haruest and setting my foote in an others possessions without licence first obtained for the auoiding of this offence before I go any further I am to craue this fauour learned professors and serious students of the laws temporal of this realm that for as much as this your fielde wherein groweth all these questions concerning the deuise of landes dooth lie so iust betwixt me and those other groundes wherein the marke whereat I aime is placed and wherein the fruite which I would gladlie vtter is planted so that I can not as nowe my iourney lieth haue readie accesse vnto the one but through the other It would therefore please you giue mee a little leaue to walke through a corner of your large dominions vnto those foresaid places more proper to them of mine own professiō Your territories I confesse are verie fertile and ful of hidden treasure the fruite also of that soile I meane the golden cases much like the golden fleece of Colchos the growing very pleasant profitable Howbeit you neede not be afraid of any preiudice for neither wil I disturbe your quiet possession with any long abode neither cā I if I wold cōueigh away the riches you should reape by disclosing of the mysteries of your gaineful arte to me vnknown vnles I would seeme to be more bold then blinde baiarde more arrogant then the ignoraunt Cobler who for his saucinesse receiued this admonition Ne sutor vltra crepidam And further that as a poore passenger I maie bee allowed to take a taste of those thinges which you haue set abroache to all the world and which by your sundrie bookes you haue made common to all trauellers the rather for that I am prepared in some sorte to requite the same This onelie I desire and this I hope you will not denie to the purpose therefore Touching the bequest or deuise of landes tenementes and hereditamentes this appeareth to be a true position and ground agreeable to the ciuill lawe a) c. imperialis de prohib feud alien lib. 2. Feud Bald. in c. 1. de success feud and also the laws of this realme b) Stat. H 8. an 27. c. 10. in princ Doct. Stud. lib. 1. c. 8. Perkins tit deuise 102. that landes tenementes or hereditamentes can not be disposed or deuised by will but in certaine cases of which some are approued by force of certaine customes c) Infr. §. prox within this realme and some by force of certaine statutes d) Infr. ead par §. 4. Certaine cases approoued by custome wherein it is lawfull to deuise landes tenementes or hereditaments 1 Gauelkinde landes may be deuised by will 2 The cause wherefore the custome of Gauelkinde did continue 3 Burgage lande deuiseable by will 4 To whom and after what manner Burgage landes be deuiseable 5 Whether anie other person maie deuise Burgage landes but a citizen 6 Burgage tenure a kinde of tenure in Soccage 7 Whether liuerie or seasin bee needefull where burgage land is deuised 8 Whether the Iointenaunt may bequeath his part of Burgage land otherwise deuiseable 9 Of landes deuised to certaine vses 10 The custome of deuising landes to feoffes reformed 11 The causes of this reformation 12 The statute or acte of reformation §. iii. THe first case wherein by custome of this realme of England it is lawfull for a man by his laste will or testament to deuise or bequeath landes tenements or hereditamēts is this namely whē lands tenements or hereditaments are holden in Gauel-kind for such † landes tenements or hereditaments by ancient custome maie be giuen or deuised by wil a) Dyer fol. 153 verb. deuise Termes of law verb. Grauelkind ita saepissimè accepi à nonnullis huius regni iurisperitis the same otherwise being duelie made For † after that William duke of Normandie had inuaded and conquered all England Kent onelie excepted at last also the kentish-men yeelded but vpon condition that they might enioy their auncient customes of Gauelkind which was graunted vnto them since hath continued b) Lambert perambulation of Kent fol. 23. amongest which customes being verie large and benificiall this is one that they which holde landes in Gauelkinde may giue and sell the same without licence asked of their lordes sauing vnto the lordes the rentes and seruices due out of the same tenementes c) Termes of law vbi supr Lambert vbi supr fol. 416. The † second cause is when the lands or tenementes be holden in Burgage tenure d) Fitzherb Nat. Bre. ex graui querela in prin Doct. Stud. lib. 1. c. 7. 10. For it is the custome of diuers Cities and Borroughes of this land as in London Yorke Oxford c. that such persons as are seased of landes tenementes or hereditamentes lyinge and being in such cities or boroughes and hold the same in burgage tenure maie by their testamentes or last willes giue or bequeath the same to whom they will e) Brook Abridg. tit deuise n. 22. 51. Fitzber in d. Br. ex graui querela Doct. Stud. d. c. 7. 10. Lindw in c. statut de testam lib. 3. prouincial constituc Cant. verb. de consuctudine verb. laicalis feodi eod c. to holde in fee simple or in fee taile or for life or yeeres or otherwise and such bequest or deuise is good f) Fitzherb in d. Breui ex graui querela the will being lawfullie made and prooued before the ordinarie as touching the goodes and cattelles bequeathed in the same and enrowled before the maior of the said citie or borough g) Fitzher in d. Bre. ex graui querela Howbeit it is not alwaies necessarie that the testament be proued before the ordinary or inrolled wherein landes onelie and no goodes and cattelles are bequeathed h) Brook Abridg. tit deuise n. 43. For in some places by the custome there vsed the deuisee maie enter to the landes deuised of his owne auctoritie without any probation or inrolment praecedent and in other places hee is to bee put in seasin or possession by the Balife i) Brook d. tit deuise n. 43. principall grounds tit burgage fol. 43. And it seemeth not to be needeful to the validitie of the deuise in this case that the testator should be a citizen or burgesse of that citie or boroughe where the landes or tenementes deuised doo lie but

if landes be giuen by deede to A.B. and to the heires males of his bodie who hath issue a daughter which daughter hath issue a sonne and dieth there the lande shall returne to the donor and the sonne of the daughter shall not haue it because he cannot conueighe himselfe by heires males or his mother is a let thereunto But otherwise it is of suche a deuise giuen by will for there the sonne of the daughter shal haue it rather then the will shall be voide Item if one deuise to an infante in his mothers wombe it is a good deuise though such a feoffement graunt or gift be voide Item if one will that his sonne shall haue his lande after the death of his wife heere the wife of the deuisour shall haue the lande firste for tearme of her life So likewise if a man deuise his goodes to his wife and that after the decease of his wife his sonne and heire shall haue the house where the goodes are there the son shall not haue the house during the life of the wife for it is presumed that his intente was that his wife shoulde haue the house also for tearme of hir life notwithstanding it were not deuised vnto her by expresse wordes Item if a deuise of land be made to A.B. and to his heires males of his bodie begotten After the deuise hath issue a sonne and a daughter and dieth heere the daughter shall haue the lande and not the sonne howsoeuer he bee the more worthie person and heire to his father but because the will of the deade person is that the daughter shall haue it therefore lawe and equitie would that it should so be Thirdlie it maie appeare by that which hath beene saide of an executor that the legacie is voide where the testator hath not animum testandi f) Infr. part 7. § 13. Fourthlie that there bee diuers conditions which doe not make die legacie conditionall g) Infr. §. 5. 6. Lastlie † concerning the effect of the one the other albeit otherwise the appointinge of an executor and the bequeathing of a legacie doo agree in diuers thinges yet in this they do differ greatlie That is to saie an executor simplie instituted maie as soone as the testator is deade enter to the goodes and cattelles of the deceased h) L. cùm haeraedes ff de acquirend poss Bar. in L. ex facto ff de haered instituend Cagnol in L. precibus C. de imp alio subst n. 276. But † a legatarie or deuisee maie not of his owne authoritie take the legacie serue himselfe but muste receiue the same at the handes of the executor i) L. 1. quorum lega ff L. non dubium C. de lega Perkins tit testament c. 7. fol. 94. Brook tit deuise n. 3. the reason is for that the executor is charged with the paiment of all the testators debtes so farre as the goodes and cattelles will extend and the legacies are not to be paide but of the residue if anie thing remaine k) Perkins vbi supr in tit deuises vbi etiā tradit aliam cautelam sed parum honestam frustrandi legata fraudandi testatorem Aliam rationem assignatius ciuile nempe ob detractionem falcidiae quae ratio quàm sit apud nos debilis facile est conijcere quandoquidem nullu● est falcidiae locus infra regni nostri limites And † the legatarie hath no remedie by the common lawes of this lande for anie legacie of goodes to him bequeathed if the executor will not deliuer the same But it behooueth the legatarie in this case to take a citation against the executor of the testamente to appeare before the ordinarie or other ecclesiasticall iudge competent to answer him in a cause of legacie l) Tract de repub Angl. lib. 3. c. 9. Fitzh Na. Br. breui de consultatione Brook tit deuise n. 3. 27. 44. Plowd in c●s inter Paramor Yard Termes of law verb. deuise Notwithstandinge † in some cases the legatarie may be lawfullie possessed of his owne legacie without deliuerie thereof to be made by the executor for if there be sufficient goodes and cattelles in the handes of the executor to paie all the testators debtes and legacies the legatarie is possessed of the thinge bequethed at the time of the death of the testator in this case the legatarie doubtlesse by the ciuill lawe maie still retaine the same in his own handes m) Socin consil 11. vol. 1. Ripa in L. 1. ff quorū lega n. 15. Olden de action clas 2. act 2. fol. 113. Neither is he to deliuer the same to the executor and afterwardes to receiue the same againe at his hands n) c. dolo de reg iur 6. Likewise if the testator giue licence to the legatarie to enter to his legacie In this case the legatarie maie without the priuitie or consent of the executor take his legacie and keepe the same so that there be sufficient besides to discharge the testators debts o) Ias in L. non dubiū C. de lega Peraduenture also in case of such sufficiencie of goods a certain special thing being bequeathed as the testators riding horse his bookes or his signet though an other person then the executor detain the same the legatarie maie as wel by the laws of this realme p) Brook Abridg. tit deuise n. 6. 30. as by the ciuill lawe q) Sichard in L. 3. C. de lega n. 16. commence sute against the occupier therof and recouer the same legacie r) Ratio est quia dominium rei legatae statim post mortem testatoris transit in legatarium etiam nondum facta traditione gloss DD. in §. in nostra Instit de lega in L. à Titio ff de fur vnlesse this third persō were able to iustify his possessiō euen against the executor or against the testator himselfe if he were liuing for that is a lawfull barre or exception against the legatarie also s) L. si rem legatum ff de excep praeiudic But if there bee not sufficient goodes to paie the testators debtes or if the legacie consiste in quantitie or be generall as if the testator bequeath twentie poundes or a horse the legatarie can not of his owne authoritie take so much of the testators monie nor anie horse which was the testators without licence giuen by the testator or permission of the executor t) Brook tit deuise n. ● n. 30. nor maie bring anie action against anie thirde person for the same legacie albeit he possesse all the testators goodes v) Quod autem diximꝰ iure ciuili triplicem concedi actionem legatario ꝓ consequédo legato procedit specie relictâ sed si quantitas vel genus relinquatur non competit rei vendicatio Bar. in L. ● ff de leg 1. Sichard in I. nō dubium C. de lega nisi fortè quantitas nō vt

not conuenient for then also the condition is reiected s) Mantic. Peckius vbi supra The seuenth limitation is when † by the condition the executor or legatarie is not to marrie without the counsell or aduise of another person t) Castrens Alex. in L. Turpia §. si Titiae de leg 1. ff Bar. in L. 1. §. si plures de exercit action ff Mantic. de coniect vlt. vol. lib. 11. tit 18. ● 10. as for example the testator dooth make thee his executor or giue thee an hundred pound if thou doo marrie with the counsell or aduise of his brother for if thou do marie without his counsell or aduise thou art excluded v) Mātic vbi supr Ay● Grauet cōsil 1. Couar de sponsal 2. part c. 3. §. 8. n 3. Neuerthelesse in this case thou art not bound to follow his counsell or aduise but to request the same x) Paul de Castr consil 300. vol. 1. Felin in c. ex part de constit extr col 2. Grass Thesaur com op §. legatū q. 50. n. 11. licèt impressio in illo loco sit corrupta The eight limitation is this where † it is said before that the condition of marying with the consent good will and arbitrament of an other is voide so that the executor or legatarie to whom the condition is imposed is neither bound to obteine nor yet to craue the cōsent good will or arbitrament of that other yet the person on whom the condition is imposed cannot be executor nor get the legacie vnlesse he doo marrie y) Alex. Paul Castrens in d. L. turpia §. 1. ff de leg 1. for though he need not so much as to craue the consent or good will of any third person in this case seeing that part of the condition is vnlawfull yet must he marie ere he can pretende anie title to the executorship or legacie seeing that part of the condition is not vnlawfull z) Mantic. de coniect. vlt. vol. lib. 11. tit 18. n. 8. post Alex. Castrens in d §. 1. The ninth limitation is when † the prohibition of mariage is not made conditionallie by this worde If as I make thee my executor if thou doost not marrie but by other wordes or aduerbes of time as when the testator willeth that his daughter or wife shall bee executrix or haue the vse of his goods so long as she shall remaine vnmaried a) L. legatum ita est de an leg ff Peckius de testa coniug lib. 1. c. 24. The tenth limitation is when † the person on whom the condition is imposed is simplie charged to restore the thing bequeathed b) L. non dubium ff de leg 3. As for example the testator doth bequeath to thee an hundred pound if thou doo not marry and hee dooth will thee to restore the same to his sonne when he shall come to lawfull yeares In which case thou art by lawe to restore the same accordingly c) d. L. non dubium Mantic. de coniect. vlt. vol. lib. 11. tit 19. n. 4. Grass Thesaur com op §. legatum q. 50. neither is this limitation contrarie to the former ampliation of the rule for here thou art charged with restitution simplie there conditionally d) Mantic. d. tit 19. n. 4. Whether the condition forbidding alienation of goodes bequeathed be lawfull or vnlawfull 1 Prohibition of alienation is sometimes to be obserued as lawfull sometimes not 2 Prohibition apparelled with a cause is lawfull 3 Naked prohibition dooth not binde the executor or legatarie 4 Whether the feoffee may be prohibited to alienate 5 Whether the dower of landes in taile may prohibite alienation 6 As it is lawfull to prohibite alienation in fauoure of some persones so in disfauoure of others 7 Of those causes wherewith the prohibition is saide to be apparelled 8 In what cases the executor or legatarie may alienate the thing deuised notwithstanding the apparelled prohibition 9 Bond ought to be put in where there is a condition prohibiting alienation §. xiij THe † prohibition of the testator forbidding the executor or legatarie to alienate the goods bequeathed is somtimes to bee obserued as lawfull sometimes not The prohibition is then † lawfull and to be obserued when it is made in fauour of some other person who is to enioy the thing disposed after the executor or legatarie or when there is some speciall a) L. filiussamilias §. diui de leg 1. ff cause whereuppon this restraint is grounded The † condition is not of any force when it is without cause or not made in fauor of any other person saue onely of the executor or legatarie b) d. §. diui In which case they may renounce this fauour and alienate the thinge deuised notwithstāding such single prohibition which is rather said to be a counsell then a commaundement c) Ias in d. §. diui n. 1. For the lawe dooth deeme it an absurde matter that a man should bee lorde and owner of a thing and yet shoulde not at pleasure alienate the same d) Ias in d. §. diui n. 9. Doct. Stud. lib. 1. c. 24 In which point also I suppose that † the temporall lawes of this realme haue the same effect in landes which the lawes ecclesiasticall ciuill haue in goods And therefore if a feofment be made of lands in fee simple vpon the condition that the feoffee shall not alienate or put away the same this condition is voide because the feoffee is without any cause wholye restrained of that power which the lawe yeeldeth vnto him in such a case e) Brook Abridg. tit cōdition n. 135. Fitzherb tit condition n 4. Principall grounds fol. 28. Doct. Stud. lib. 1. c. 24. Litleton tit estates vpō conditions But when the prohibition hath a cause annexed or the same is made in fauour of some other person who is afterwardes to enioy the landes then this condition of not alienating the same is good and effectuall in the lawe as may appeare by the gifts of lande in taile For if † landes be giuen to a man and to the heires of his bodie lawfully begotten vppon condition that neither he nor his heires shall alienate the landes to any other person this condition is good and effectuall In which case if hee or his heires to whome the land is giuen alienate the same then the giuer or his heires may lawfully enter and retain the lands for euer f) Fitzherb Abridg. tit condition n. 4. Litletō tit estates vpon conditions fol. 77. And † as it is not lawfull to alienate from particular persons in whose fauour the prohibition is made no more is it lawfull to alienate to those particular persons in whose disfauour the prohibition is made g) Alex. in d. L. filiussamilias §. diui ff de leg 1. n. 1. In which case also concerning landes the lawes of this realme doo not differ from the ciuill and

ecclesiasticall lawes concerning goodes for howsoeuer it is not lawfull for the feoffer to cutte off the whole power of the feoffee yet hee may abridge or restraine some part therof by condition that he shall not alienate his landes to such or such persons h) Brook Abridg. tit cond n. 135. Litleton tit estates vpon condition fol. libri mei 77. The † cause wherewith the prohibition is saide to bee apparelled besides these former respects of the fauour and disfauour of persons ariseth for the most part of the testators affection towards the thing bequeathed as when the testator dooth bequeath some cuppe of golde which was his ancestours forbidding the executor or legatarie to alienate the same but to keepe it for a memoriall i) L. si in emptione de Minor ff Paul de Castrens in d. §. diui or when he doth bequeath some iewell or other ornament being the gift of the prince k) Alex. Ripa in d. §. diui and for that cause dooth prohibite the alienation thereof or when hee dooth bequeath some prize by him gotten in the warres as a sworde or an helmet and therefore dooth forbid the alienation thereof l) Alex. Rip vbi supr Which prohibition in this sort is to bee obserued as well as if it were in regard of some other person m) d. L. filiusfa §. diui except it be in certaine cases for it is not perpetually true that the prohibition vpon a cause or made in respect of some person is to be obserued The first exception therefore of this rule is when the alienatiō is necessarie not voluntary that is to say whē the rest of the testators goods will not suffice to pay his debtes for then it is lawfull for the executor to sell the same goods prohibited to be solde n) d. §. diui in fin L. peto §. praedium ff de leg 2. Ias Ripa in d. §. diui The seconde when the alienation is momentanie or of a short time not perpetuall with a couenant to restore the thing alienated againe o) Angel in L. voluntas C. de fideicommiss Ripa in d. §. diui n. 10. vbi limitat hanc exceptionem duobꝰ modis The third exception is when the thing bequeathed is in place farre distant from him to whom it is bequeathed and who by reason thereof cannot haue any benefite thereby if he should not alienate the same for then the prohibition of alienation beeing made in his fauour it seemeth that he may alienate the same p) Bald. in L. voluntas C. de fideicommiss The fourth is when the alienation is made by him who is the last of the familie in whose fauour the testator did prohibite the thing bequeathed to be alienated q) Ias Ripa in d. §. diui The fift is when the executor being prohibited to alienate the thing bequeathed except to certaine persons and the offering to sell the same vnto them they refuse to buie it In which case hee maye sell the same to others notwithstanding the prohibition r) Ias in rep d. §. diui n. 8. per L. qui Romae §. cohaeredes ff de verb. ob The sixt is when the thing bequeathed was first sold to the person permitted by the testator for afterwardes it may be simplie sold to any other s) Ias in rep d. §. diui n. 76. per. L. pater §. quindecim ff de leg 3. The seuenth is when the executor or legatarie doth sell the fruites and commodities of the things bequeathed during his his life t) Ias in rep d. § diui n. 84. post Bar. in L. codicillis §. Institutio ff de leg 2. Diuers other exceptions there bee v) De quibus Ias Ripa in d. §. diui Vig. in sua methodo iur ciuil part 4 lib. 14. c. 11. in prin concerning this presente purpose because I doo not see howe there can bee any great vse thereof in the ecclesiasticall Court I haue omitted the same ayming especially at these cases wherof there is like to be most vse and most benefite to the reader Onely this thing I thought good to adde in this place that where † the testator dooth make an executor and giue him the residue of his goods conditionally if he do not alienate the saide residue of goodes the executor cannot be admitted to the executorship vnlesse hee first enter into bondes not to alienate the same x) L. 4. §. idem Iulianꝰ ff de cond Instit ibi Bald. Ias Ripa in d. §. diui quae sententia firmior erit existente cohaerede seu coexecutore Cui Mutiana praestari possit cautio Within vvhat time the condition maie or ought to be performed no certaine time being limited by the testator 1 In this question three times and three conditions are to be considered 2 Whether the condition may bee perfourmed before the making of the will 3 When the condition is arbitrarie the same must be performed after the death of the testator 4 What if the arbitrary condition be such as the same cannot be iterated 5 What if the arbitrarie condition haue relation to the time past 6 Casuall and mixt conditions may bee performed before the making of the testament if the testator were ignorant of the performance 7 If the testator did know of the former performance it must be performed againe if it be possible 8 Whether the condition may bee performed during the time betwixt the making of the testament and the death of the testator 9 Within what compasse of time may or ought the condition to bee performed after the death of the testator 10 The condition being arbitrarie it is materiall whether the condition bee imposed on the executor or legatarie 11 The executor may at any time accomplish the arbitrarie condition after the testators death 12 Whether the ordinarie may limit a certaine time for performance of the condition 13 The legatarie muste performe the arbitrarie condition so soone as he can 14 The reason wherefore the executor hath longer time of performing an arbitrarie condition then the legatarie 15 No time dooth preiudice the legatarie whiles hee is ignorant of the condition 16 If the condition be casuall it may be accomplished at any time 17 What if the condition bee extant after the death of the legatarie 18 If the condition bee mixt it may bee performed at any time 19 What if the condition do concerne mariage whether ought it to be performed within three yeares §. xiiij IF † wee will vnderstande within what compasse of time the condition whereuppon the executor is made or any legacie bequethed may be or ought to be performed where there is not anie certaine time limited by the testator we are to consider three seuerall times and three seuerall sorts of conditions Of the three times the first is the time before the making of the testament the seconde is the time betwixt the making of the testament and the death of the

haue spoken before d) Supra 3. part §. 9. cū sequen or whether the legacie were left conditionally viz. if he did vndertake the tutorship or simply e) L. sed haec ff de excus tut Gribald Thesaur com op verb. tutor or whether the tutor appointed be of kin or allied to the testator or no f) Gribald d. verb. tutor Bar. Ias Sichard alij in L. si legararius C. de lega Et ista opinio communis est iure Authent ꝑ §. his omnibus de haered falcid refragante Couar in c. Iohannes de testa extra sed distingue vt per Alex. alios in d. L. si legatarius But the said conclusion faileth when the legararie would be tutor but cannot g) DD. in d. L. si legatarius C. de lega or when it doth not stand by the legatarie that he is not admitted tutor h) L. cum filius §. non iure de leg 2 ff or if by other circumstances it may appeare that the testator would that he should haue the legacie albeit he did not vndertake the tutorship In which case the tutor not being monished to vndertake the tutorship dooth not loose his legacie i) Alex. Sichard in d. L. si legatarius C. de lega Item if † the legatarie after the death of the testator doo accuse the testament as a false testament he looseth his legacie therin bequeathed k) L. post legatū de his quibus vt indig ff vnles hee being tutor to the testators children or to some other hauing interest that the testament should not take place doth prosecute the cause against the testament not in his owne name but as tutor or for the behoofe of the pupill l) L. tutorem ff de his quib vt indig or vnlesse he accuse the testament not as a false testament but as vnlawfully made m) L. pen. eod tit Aetiologia est quia non tā iudicium defuncti impugnat quàm de iure disputat or vnlesse he desist from the sute before sentence be giuen n) Sichard in Rub de his quibus vt indignis C●n. 7. per L 2. per L. aliā causam eod tit In these and diuers like cases he doth not preiudice himselfe Item if † the legatarie cancell or destroy the testament he looseth his legacie p) L si quis cum falso §. diuus L. si quis patris Ad. L. Cornel. de falsis ff so it is though o) Doctores in c. ex eo de reg iur 6. Gabr lib com conclus lib. 6. tit de reg iur conclus 1. Vigel method iur ciuil lib. 12. c. 8. causa 17. he do not deface the testament but maliciously and fraudulently conceale the same q) L. si legatarius C. de lega Item if † the legatarie of his owne authoritie without the consent of the executor do apprehend and occupie the legacie to him bequeathed he looseth his right and interest thereunto r) L. 1. quorum legatorum ff L. non dubium C. de lega For he may not be his own caruer in this case but ought to receiue his legacie at the handes of the executor s) Sichard in d. L. non dubium Perkins tit testament fol. 94. which executor ought first to haue all the testators goods and cattels in his hands for the paiment and discharge of the testators debts t) Old de actione class 2. action 2 fol. 112. Perkins vbi supra Castrēs Sichard in d L. non dubium assignantes aliam rationem nempè ob detractionem falcidiae which debts ought to be paied before legacies v) L. scimus C. de iure de lib. Paul de Castro in d. L. non dubium Brook Abridg. tit deuise n. 6. The † limitations of this former conclusion are these First when the testator doth in his testament giue licence to the legatarie to take and occupie the same without deliuerie of the executor x) Bar. in L. Titia §. Lucius de leg 2. Rip in L. 1. quorum lega ff Sich. in d. L. non dubium C. de lega which licence may be granted either expresly or secretly y) Sichard in d. L. non dubium Ripa in d. L. 1. expresly when the testator saith I bequeath my horse to A.B. giuing him licence to take him and to possesse him of his owne authoritie without any deliuerie to be made by my executor z) Sichard in d. L. non dubium n. 11. Secretly when the testator saith I bequeath vnto him my horse which I will that he quietly enioy without trouble or molestation a) Sichard in d. L. non dubium n. 12. or by words of like importance b) Ripa in d. L. 1. ff quorum lega n. 10. 11. 12 13. 14. The second limitation is when the legatarie was in quiet possession of the thing bequeathed at the time of the death of the testator In which case if there be sufficient goodes to pay the testators debts he may still retaine the legacie c) Socin consil 11. lib. 1. Ripa in d. L. 1. n. 15. Olde n. de action class 2. action 2. fol. 113. The third limitation is when the executor dooth willingly permit the legatarie to take and occupie the legacie without contradiction d) L. 1. §. prodest ff quorum leg The fourth limitation is when the legatarie dooth apprehend his legacie before the executor haue prooued the will and vndertaken the executorship e) Paul de Castr in d. L non dubium Ratio est quia vacante haereditate legatarius non dicitur vitiose occupare or before administration be graunted f) Forte tamē censuri● ecclesiasticis puniendus est per Legatin vnic de bonis intestatorum The fift limitation is when the executor is negligent and the legacie like to perish as when certaine fruites or corne on the ground are giuen and the same readie for reaping g) Ias in d. L. non dubium in fin The sixt limitation is when the legatarie is ignorant that the thing by him apprehended and possessed was bequeathed vnto him h) Sichard in eand L. non dubium n 1. The seuenth limitation is when the legatarie is also executor i) Sichard ibi n. 13. In these and other cases the legatarie dooth not loose his legacie k) Old de action class 2. action interdicti quod legatorū fol. 109. albeit if neede be he may be compelled to restore the same l) d. L. 1. quorum legatorum ibi Zas Ripa d. L. non dubium ibi Ias Sichard Of the death of the legatarie before the legacie be due 1 If the legatarie die before the legacie be due the legacie is extinguished 2 A simple legacie beginneth to be due at the death of the testator 3 What if the legatarie die at the same instant when the testator dieth 4 If the prince die