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A93118 The touch-stone of common assurances. Or, A plain and familiar treatise, opening the learning of the common assurances or conveyances of the kingdome. By VVilliam Sheppard Esquire, sometimes of the Middle Temple. Sheppard, William, d. 1675? 1648 (1648) Wing S3214; Thomason E528_1; ESTC R203541 687,813 543

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end of their life viz. a Testament CAP. XXIII Of a Testament A Testament is the full and compleat declaration of a mans minde or last Will of that he would have to be done after his death 1. Testament Quid. Termes of the Law Lit. Broo. Sect. 300. Coo. super Lit. 111. Swinb of Wills 24. It is in Latin Testamentum i. Testatio mentis the witnesse of a mans minde and to devise by Testament is to speak by a mans Will what his minde is to have done after his death And this is sometimes called a Will or last Will for these words are Synonima and are as it seemes promiscuously used in our Law Howsoever by the Civill Law it is then only said to be a Testament when there is an Executor made and named in it and when there is none Codic●● Quid. but a Codicill only for a Codicill is the same that a Testament is but that it is without an Executor and a man can make but one Testament that shall take effect but he may make as many Codicills as he Will. And by the Common-Law where Lands or Tenements are devised in writing albeit there be no Executor named yet there it is properly called a last Will and where it doth concerne Chattels only a Testament He that doth make the Testament Testator ●●testate is called the Testator And when a man dyeth without Will he is said to die intestate Of Testaments there be two sorts namely a Testament in writing Quotupl●x Perk. Sect. 476. Coo. super Lit. ●11 or a written Testament which is where the minde of the Testator in his life time by himself or some other by his appointment is put in writing And a Testament by word or without writing which is where a man is sick and for feare least death or want of memory or speech should surprize him that he should be prevented if he stayed the writing of his Testament desireth his neighbours and friends to beare witnesse of his last Will and then declareth the same presently by words before them And this is called a Nuncupative or Nuncupatorie Testament And this being after his Nuncupative death proved by Witnesses and put in writing by the Ordinary is of a great force for any other thing but land as when at the first in the life of the Testator it is put in writing A Codicill also is in writing or by word as a Testament is The Civilians have other divisions of Wills and Testaments as solemn and unsolemn priviledged and unpriviledged whereof the Common Law maketh no mention The parts of every compleat Testament whereof it doth consist 〈◊〉 The 〈◊〉 of it Termes of the Law tit Devise Coo. super ●●tt 211. Swinb lib. 1. c. 7. are two 1. The making of Devises or giving of Legacies 2. The making and Ordination of an Executor for a Testament can bee no more without then a Codocill can be with an Executor A Devise or Legacy is where a man in his Testament doth give Devise or Legacy Quid. any thing to another the first of these termes is properly applied to the gift of lands and the last to the gift of goods or chattels and therefore a Devise strictly is said to be where a man in his Testament doth give his lands to another after his decease and a Legacy is said to be where a man in his Testament doth give any chattell to another to have after the death of the Testator but the word is promiscuous●y applied to the one and to the other And hee that gives by such a Will is called the Devisor and he to whom the thing Devisor Devisee or Legatee is given the Devisee or Legatee And a devise is sometimes simple and without condition as Dyer 317. 7● Coo. super Littl. 217. Swinb 132. 134. 136 where I give my land to another and his heires or I give 20l. to Quotuplex another without more words And sometimes it is with a condition which is when there is a quality added to the devise or legacy whereby the effect of it is suspended or hindred and it is thereby made to depend on some future event And this condition in this case may be made almost by any words as if I give to one Conditionall Devise my land if he pay 20l. to my daughter or so as he pay 20l. to my daughter or paying 20l. to my daughter or I give one 20l. if he marry my daughter or when he shall marry my daughter or I give my wife 20l. a yeare whiles she shall live unmarried or I give to him or to whomsoever shall marry my daughter 20l. or the like in all these cases the devise is conditionall The first kind of devise is called by the Civilians a simple assignation and the latter a conditionall assignation An Executor in a large sense s taken for any one that is appointed New Terms of the law Coo. 8. 135. Plow 288. Coo. super ●ittl 209. Coo. 9. 40. to have the disposition and ordering of the goods and chattels of a man that is dead And so there are three kinds of Executors Executor Quid. the first is à lege constitutus who is therefore called legitimus and such a one is the Ordinary of the Diocesse who hath ordinary Iurisdiction in matters Ecclesiasticall the second is à Testatore constitutus Ordinary who is therefore called Testamentarius and hee is strictly and properly called an Executor and is defined to be one appointed by a mans last Will and Testament to have the disposing and administration of all or part of a mans goods and chattels and to perform a mans last Will and Testament according to the contents thereof the third is ab Episcopo constitutus who is therefore said to be Dativus And such a one is an Administrator who is defined to be one that hath the goods and chattels of a man dying Administrator intestate committed to his charge by the Ordinary for want of an Executor And his power benefit and charge is in all things equall to the power benefit and charge of an Executor The Executor and Administrator also is sometimes universall or totall 〈◊〉 one that hath the power and disposition of the whole Dyer 4. Br● Executor 155. Coo. 6. 19. Quotuplex personall estate committed to him And sometimes he is particular or partiall i. one that hath the power and disposition of some part of the estate or of all the estate for a time only committed to him And sometimes he is absolute i. such a one that hath an absolute power of the estate as Executor or Administrator and sometimes he is conditionall i. one that hath a limited and conditionall Coo. super 〈◊〉 209. St. 81. E● 〈◊〉 c. 11. Coo 9. 40 8. 135. power of the estate only And in both cases he shall be Represent the person of the Testator charged and chargable for so much as is committed to him as the testator or intestate himselfe for this cause the
Executor is said to represent the person of the Testator for as to the estate committed to his trust he may charge others and be charged himself sue and be sued as the Testator himselfe might And the estate he hath by his Executorship is said to be in him to the use of the Testator and in his right and that he doth in the disposition of his estate is said to be in the right and to the use of the Testator also And the Administrator hath the same power and property over and in the goods and chattels the same remedy by Suit and so farr forth shall be charged as the Executor for they differ not in nature but in name only And yet the Administrator is but the Ordinaries deputy and he may revoke the Administration or call the Administrator to an account Swinb 12. D●er 143. Coo. super Littl. 112. Litt. Sect. 168. Coo. 〈◊〉 ●1 A Testament is of that nature that it doth much differ from 3. The nature and effect of a Testament and of a Codicill other acts and deeds that men doe and execute in their life times for albeit it be made sealed and published in never so solemn a manner yet it hath no life nor vertue in it untill the testators death for it is a Maxime in law Omne Testamentum morte consummatun● est Et voluntas ambulatoria usque a● extremum vitae exitum it is therefore resembled untill death to the interlocutory sentence and after death to the definitive sentence of a Iudge And hence it is said Sed legum servandafides suprema voluntas Quod mandat fieriqu jubet parere necesse est a 〈◊〉 〈◊〉 〈◊〉 Sect. 30● And for this cause a man may alter or make void his will at his pleasure and he may make as many new Wills and Testaments as he will and there is no meanes under the Sun to barre a man of this liberty b Lin. Sect. 168. Perk. Sect. ●7● And the latter Testament doth alwaies revoke and overthrow the former but otherwise it is of a codicill c Sw●●b 13. 14. for a man may make as many of these as he will and make no Testament at all d Broo. Testament 20. or if he make a Testament he may afterwards make as many codici●s as he will and one of them will not overthrow the other for in the first case they must be all annexed to the letters of administration and the Administrator must perform them and in the latter case they must be all annexed to the Testament and the Executor must take care to performe them e Plow 343 ●44 A Testament therefore is said to have three degrees 1. An Inception which is the making of it 2. A Progression which is the publication of it 3. A Consummation which is the death of the testator f Coo. super Litt. 112. In Grants therefore the first is of greatest force but in Testaments the last is of greatest force But when a Testament is perfect by the death of the party it doth as effectually give and transferre estates and alter the property of lands and goods as acts executed by deed in the life time of the parties 〈◊〉 for hereby discents of lands are prevented and a man may make estates in Fee-simple ●●itt Sect. 1●7 168. Fee-taile for life or yeares of lands tenements rents reversions or services as effectually as by deed and these estates also will be good without any Livery of Seisin or Attournement And hereby also rents and power to distraine for them may be reserved conditions created and annexed to e●●ates or things devised 〈◊〉 And therefore they that take by devises of lands are said to take 〈◊〉 Perk. Sec● 505. in the nature purchasors 〈◊〉 And if therefore a tenant in taile make a Feoffment to the use of himselfe in Fee and after devise the same 〈◊〉 Dyer 221. land to his wife in fee and die the sonne is not remitted though the Father die seised for the devise doth prevent the discent To the making of every good Testament these things are requisite Coo. 6. 23. 4. What shall ●e said a good and a sufficient Testament Or not 1. That the Testator be a person able to make a Testament and not disabled for any speciall cause either in respect of his person mind or condition or in respect of the thing whereof the Testament is to be made And for this it must be knowne k S●●t 32. 34 H. 8. c. 5. Coo 4. 51. Broo. Testament 13. That a woman that hath a husband cannot make a Testament of her land First in respect of the person that doth make it and the thing whereof it is made And what Persons may make a Testament And of what things or not And how or goods except it be in some speciall cases for of her lands shee can make no Testament with or without her husbands consent l 〈◊〉 H. 7. 14. Perk. Sect. ●0● Fitz. Executor 〈◊〉 of the goods and chattels she hath as Executrix to any other she may make an Executor without her husbands consent for if she do not so the Administration of them must be granted to the next of kin to the deceased Testator and shall not goe to the husband m Plow 526. Fitz. Executor 109. but of them she can make no devise with or without her husbands leave for they are not devisable and if shee doe devise them the devise is void And of the things due to the wife whereof she was not possessed during the marriage as things in action and the like it seemes she may make her Testament at least she may make her husband Executor n 12 H. 〈◊〉 24. 18 Ed. 4. 11. Perk. sect 501. Fit Executor 5. 28. 109. Broo Testament 〈◊〉 of her Paraphonalia viz. A Fame Covert her necessary wearing apparell being that which is fit for one of her rank some say shee may make a Testament without her husbands leave others doubt of this howbeit all agree that shee and not his Executor shall have this after her husbands death and that the husband cannot give it away from her And of the goods and chattels her husband hath either by her or otherwise shee may not make a Testament without the licence and consent of her husband first had so to do But with his leave and consent she may make a Testament of his goods and make him her Executor if shee will And it is said also that if shee do make a Testament of his goods in truth without his leave and consent and he after her death suffer the Will to bee proved and deliver the goods accordingly in this case the Testament is good And yet if the husband give his wife leave to make a Testament of his goods and she do so he may
discharge a rent before the day of paiment come By a release of all promises or Assumpsits without more Of promises Adjud Hil. 16 Jac. B. R. Briscoe vers Heires Co. 10. 51. words a man may barre himselfe of a contingent or future thing that by other words could not be released as if a man promise to me that if I S doe not pay me one hundred pound the tenth of March next that he will pay it me the twentieth of that moneth and before the time I release to him all actions and demands this will not discharge the promise But if I release to him all promises this will barre mee Et sic de similibus By a release of all Judgements without more words is he Lit. Sect. 507. Co 8. 151. super Lit. 290. that maketh it barred of the effect of any Judgement he hath Of Judgements Of Executions against the relessee for if execution be not taken out he is now barred of it And if the relessee or his land c. be in execution he and it shall be discharged thereof by Audita Querela And by a release of all executions without more words a man is barred of taking or having out of any execution upon any Judgement either before Scire facias or after But if after execution be made by Capias ad Stat. Elegit or fieri facias the Audita Querela plaintife release to the defendant all executions he cannot plead such a release but he must have an Audita Querela and that he may have to discharge him of execution By a release of all appeales are discharged all appeales of Co. super Lit. 287 288. felony of death of robbery of rape of burning of larceny Of Appeales depending and all causes not yet moved also By this release of all advantages it seems actions of debt upon Of Advantages account are discharged Co. 8. 150. By a release of all conspiracies all conspiracies past are discharged Kelw 113. Of Conspiracies and such also as are only begun and shall be prosecuted and perfected after the release are likewise hereby discharged By a release of all forgeries before publication the forgery is Of Forgeries Co. 10. 48. discharged but not the publication and therefore the relessor may take his remedy for that notwithstanding A release of all demands is the best release of all and this Of Demands or Cl●im●s Co. super Lit. 291. Co. 8. 54. Lit. Sect. 501 509 510. word is the most effectuall word of all and doth in deed include and comprehend within it most of all the releases before By a release therefore of all demands without more words are released all rights and titles to land warranties conditions annexed to estates before they be broken or performed and after they be broken Also by this release are released and discharged all Statutes Obligations Contracts Recognisances Covenants Rents Commons and the like Also all manner of actions reall and personall Appeales Debts duties Also all manner of Judgements Executions Also all Annuities and Arrearages of Annuities and Rents And therefore if a man have a title of entry by force of a condition c. or a right of entry into any lands by such a release the right and title is gone And if a man have a rent-service rent-charge estovers or other profit to be taken out of the land by such a release to the tenant of the land it is discharged and extinct And therefore if a termor for yeares grant the land by indenture to A rendring rent and at the end of the first yeare Adjudg B. R. pasc 17 Jac. Wottons case he release to the grantee all demands the rent is hereby extinct during all the time And a release of all claimes it seems is much of the same nature But by a release of all demands or of all claimes is not released Co. 5. 70. any such thing as whereof a release cannot be made as a meere possibility or the like Neither will this release discharge a covenant or promise that Hil. 4 Jac. B. R. Hancocks case adjudge is future and contingent before it be in being Nor a covenant before it is broken and therefore if the lessee of a house covenant to leave it as well in the end of his terme as it was in the beginning of his terme and before the end of the terme the lessor release to the lessee all demands this is no barre to an action brought for a breach of the covenant afterwards And if a man in consideration of a summe of money given to Hil. 6 Jac. B. R. Belcher Hudsons case him by a woman sole assume to her that if shee mary one M that he will pay to her after the death of M one hundred pound by the yeare if shee survive him and shee mary him and the husband release all demands and then die this is no barre to the duty So if one promise a woman that if shee will mary him that he will leave her worth one hundred pound if shee doe survive him and before the mariage shee release to him all actions and demands this doth not discharge the promise And note that all these words are of the same force when they are joined with other words as when they are alone Note If two tenants in common of land grant a rent-charge of Co. super Lit. 267. forty shillings out of it to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of law is severall If one have severall causes of action against two and make a joint release to them this shall be taken to be a release of all 19 H. 6. 4. joint and severall causes of action So if an executor have some cause of action for himselfe and Bro. Release 31. 29. some for his testator and he release all Actions indefinitly this release doth discharge both sorts of actions If the tenancy be given to the Lord and a stranger and to the heires of the stranger and the Lord release to his companion Co. super Lit. 280. all his right in the land this shall enure not only to passe his estate in the tenancy but also to extinguish his right in the Seigniory If there be Lord and tenant of two acres and the Lord release all his right in one of them to the tenant hereby the Perk. Sect. 71. Bro. Release 85. 9 E. 3. services are extinct for both So if one have a rent charge out of twenty acres and release all his right in one acre hereby all the rent is extinct And yet if A lease white acre to B for life rendring rent and afterwards doth release part of the rent this is good only for such part If I be seised of land in fee and I make a lease of it to one for life and after I
it it shall be deemed in earnest but if it bee by way of discourse only or of somewhat ●e would do hereafter or the like it shall be taken for nothing The third thing required in a good Testament is that the minde of the Testator in the making of it bee free and not moved by Thirdly in respect of the occasion or motive of it Swinb 283. 284. 285. 286. feare fraud or flattery for when a Testator is moved to make his Testament by feare or circu●vented by fraud or overcome by some immoderate flattery the sam● is void or at least voidable by exception And therefore if a man by occasion of some present fear or violence or threatning of future evils do at the same time or afterwards by the same motive make a Testament this Testament is void not only as to him that put him so in feare but as to all others albeit the testator confirm it with an arch But if the cause of feare be some vaine matter or being weighty is removed and the testator doth afterwards when the ●ea●e is past confirm the Testament in this case perhaps the Testament may be● good And if a man by occasion of some fraud or deceit bee moved to make a Testament if the deceit be such as may move a prudent man or woman and if it be evill also the Testament is void or voidable at the least but if the deceit be light and small or if it be to a good end as where a man is about to give all his estate to some lewd person from his wife and children and they perswade the Testator that the lewd fellow is dead or the like and thereby procure him to give his estate to them this is a good Testament And one may by honest intercessions and modest perswasions procure another to make himselfe or a stranger Executor to him or the like and this will not hurt the Testament Also a man may use fair and flattering speeches to move the Testator to make his Testament and to give his estate unto himself or some friend of his ex●●pt it be in case where the ●latterer doth first beate or ●hreaten him or put him in fear or to his ●lattery joineth fraud and deceit or the Testator is a person of weak judgement or under the danger or government of the ●latterer as when the Physician shall perswade his Patient under his hands to make his Testament and give his estate to himself or the wife attending on her husband in his sicknesse shall neglect him and continually provoke him to give her all or where the perswader is importunate and wil have no denial or when there is another Testament made before for in all these cases the Testament wil be in danger to be avoided And if I be much privi● to another mans minde and he tell me often in his health how hee doth intend to settle his estate and he being sick I doe of mine own head draw a Will according to his minde before declared to me and bring it to him and ask him whether this shall be his Will or no and he doth consider of it and then deliver it back to me and say yea this is a good Testament But if otherwise some friends of a sick man of their own heads shall make a Will and bring it to a man in extremity of sicknesse and read it to him and ask him whether this shall be his Will and he say yea yea Or if a man be in great extremity and his friends presse him much and so wrest words from him especially if it be in advantage of them or some friends of theirs in these cases the Testaments are very suspi●ious But as touching these two last things Qu●re how they shall avail in the Wills of land which are not regulated so much by the Civill Law The fourth thing required in the making of a good Testament is Swinb 112. Broo. Test 20. Fourthly in respect of the manner and form of the disposition that that form and order that the Law prescribeth be observed in the the disposition And therefore 1. that there be an Executor named in all Testaments of goods and chattels and that that Executor named be capable of the Executorship for this is said to be the head and foundation of the Testament for if there be never so many First naming of an Execu●or Legacies given and no Executor made this disposition is but a a Codicill and cannot properly bee called a Testament for in this case the party dead is said to die intestate and the Administration of his goods must be granted to the Widdow or next of kinne whereas on the other side if an Executor be appointed albeit there be no Legacy given yet this disposition is and is properly said to be a Testament 2. If the Testament be of lands or Tenements it must be Secondly if it be of lands it must be in writing in writing and it must be committed to writing at the time of the Stat. 32. 34 〈◊〉 8. Perk. Sect. 476 47● Dyer 72. Plow 345. Coo. 4. 60. Dyer 53. making thereof And it is not sufficient that it bee put in writing after the death of the Testator being first made by word of mouth only for then it is but Nuncupative still But if the Testament bee first made by word of mouth and be afterwards written and then brought to the Testator and he approve it for his Testament Or if the Testator when he doth declare his minde doth appoint that the same shall be written and thereupon the same is written accordingly in the life time of the Testator these are good Testaments of land and as good as if they be written at the first If therefore one be very sick and another come to him and ask him whether his wife shall have his land and he say yea and a Clerk being present doth put this in writing without any precedent commandement or subsequent allowance of the sick man this is no good Testament of the land So if one declare his whole minde before Witnesses and send for a Notary to write it and die before he come and he write it after his death this is no good Testament for his lands but a good Nuncupative Will for his goods and chattels except he declare his minde to be that it shall not be his Will unlesse it bee put in writing for then perhaps it may not be a good Will for his goods and chattels So if ●he that doth write the Will cannot hear Ad●udged Trin. 10. 〈◊〉 the party speak and another that stands by the sick man doth tell him what he doth say in this case if there be none others pr●sent to prove that he reported the very words of the sick man this will be no good Testament of the Land But if a Notary take direction from the sick man for his Will and after goe away and write it and then doth
appeare plainly to be the expresse Will of the Testator to revoke the former or unlesse the Testator himselfe did dictate the latter or in case the latter be in favour of the children of the Testator or others who are to have the Administration of his goods if he die intestate 2. When the Testator doth make two Testaments a former and a latter both being written and afterwards lying sick upon his death bed they are both presented unto him and he is desired to deliver to one of the standers by which of them he will have to stand for his last Will and he deliver the former 3. When the latter doth agree in all points with the former for then both of them are as one in divers writings 4. When in the latter Testament there is no Executor named for then it is but a Codicill or addition to the former 5. When the latter is made upon some sudden discontent against the Executor of the former Testament and afterwards he and the Executor are reconciled againe in these and such like cases the latter Testament is no Revocation of the former * Lit. Broo. 55. If the husband licence his wife to make a Testament and after her death he forbid the Probate this is a Countermaund of of the Testament But note here that Revocations in generall are not favoured in Law and therefore he that will a void a former Will by Revocation must see he prove it well 2. * Swinb 〈◊〉 7. part sect ●6 A good Secondly by cancelling o● it Testament may become void by cancelling or other destruction of it as where the Testator himself or some other by his commandement doth cut or teare it in p●eces deface it or cast it into the fire by this meanes the Testament is made void except it be in case where the Testator doth it unadvisedly or it be done by some other without his consent or by some casualty or when he doth willingly pull away the Seales and then he doth afterwards s●ale it againe or where the whole Testament is not cancelled or defaced but some or the chiefe part thereof as the naming of the Executor or the like for it is good still for the residue or where there be severall papers or writings of one ten or each of them containing the whole Testament the cancelling or defacing of some of them doth not hurt the Testament unlesse it can be proved that the Testators mind were to avoid it all or where the Testament is lost in the life time of the Testator or after for in this case so much as can be proved by Thirdly by ●●teration of the estate o● the Testa●●●● Witnesses is still in force 〈◊〉 A good Testament may become void by Swinb part 〈◊〉 Sect. 17. alteration of the estate of the Testator as when a man after the time of making the Testament and before his death is convicted or condemned of some great crime for the which the Law depriveth him of the making of a Testament as Treason Felony or the like And yet if the crime be pardoned and purged before his death the Testament may be good enough And if a man of sane and perfect ●●o 4. 62. memory make his Testament and after become inopsmentis as ●very man for the most part is before his death this doth not hurt the Testament 4. A good Testament may become void by an intention Fourthly by intention to al●●● it only to a●ter it when the Testator is hindered in his intention Swinb par● 7. sect 18. that it cannot take effect And therefore if when the Testator intendeth to alter his Testament or to make a new one he be by feare or fraud forbidden or letten that he dare not or cannot alter it or the Notary or Witnesses dare not or may not be suffered to come to him as when a wife or some other that is to have benefit by the former Will under pretence that she hath a charge from the Physitian that none shall come at him or under pretence that he is asleep or the like will not suffer any body to come at him or when the Notary and Witnesses are all present and they make such a noise or quarrelling that they hinder the effect of hi● intent or when the Testator is kept from doing it by importunate requests and flattering perswasions in all these cases and by these meanes the former Testament may become void But if it appear the Testator hath no purpose to alter the Testament when hee is let as as aforesaid the feare is a vaine feare the Testator is prohibited at another time and not the time when he doth intend to alter the Testament but he hath sundry opportunities after that time to doe it and doth it not or he is drawn only by the faire speeches of a wife or friend or by the weeping or other trouble arising from the griefe of the Legatary or Executor for the Testators sicknesse only he is disturbed in these cases perhaps it may not be void And where it is void by the prohibition of a Legatary only it is void for so much as doth concern him only and not for the rest of the Testament 5. A good Testament may become void by making Swinb pa●● 7. ●ect 11. Perk. Sect. 479. another of the same date for if two Testaments be found after the Fifthly by making another of the s●me date death of the Testator and it cannot be discerned or proved which was made former or latter the one of them doth overthrow the other and both of them are become void except they be both to the same purpose or one of them be made in favour to wife and children c. and the other to strangers And yet in the first case also the Testator by declaration of his minde which of them he will have to take effect may make either of them good 6. A good Sixthly by the declaration of the Testator Testament may be made void by the declaration of the Testators minde as if a man have two Testaments lying by him the one made after the other and they are both shewed or delivered to the Testator when he lyeth sick and hee by word or signe declare that he will have the former to stand this declaration doth revoke the latter and affirme the former And where a man would revoke a Will for any of these causes he must presently after the death of the Testator put in a Cave●t or exception in that Court where the Will is to be proved and thereupon proceed to question it or by a prohibition in some cases he may stay the Probate in the Spirituall Court See more infra at Numb 12. If a woman covert without the leave of her husband make a 6. Where a Testament void voidable in his Inception may become good by some matter or accident ex post ●acto And where not Perk. Sect. 501. Coo. 〈◊〉 99.
name But if it be such a cause of action as is altogether uncertain as where a man may have an action against another for taking away his goods or to compell him to make an account or the like this is such a cause of action as is not deviseable And yet possibilities and incertainties are in divers cases devisable Perk. Sect. 527. Litt. B100 Sect. 437. Dyer 272. Plow 520. And therefore if one have money to be paid him on a Mortgage he may devise this money when it comes as if I en●eosse a stranger of land upon condition that if he do not pay me 20l. such a day that I may reenter in this case I may devise this 20l. if it be paid and the Devise is good albeit it be made before the day of paiment come Childs case 17. Ia. B. R. And if a man be possessed of a Terme of yeares and devise all the residue of that Terme of yeares that shall be to come at the time of his death this Devise is good and yet such a Grant by deed is void Grant * But a meer possibility and a thing altogether incertain is no more devisable by will then it is grantable by deed 19. Emblements i. e. the Devise of Emblements Perk. Sect. 520. 521. c. See in grant● corne that is sowen and growing upon a mans ground at the time of his death and which himselfe should have reaped if he had lived to the harvest as in most cases he shall where he doth sowe it are devisable And therefore if a man have land in Fee simple Fee taile for life or yeares and sowe it with corne he may devise the corne at his death to whom he please And yet if Lessee for yeares sowe his land so little while before his Terme expire that it cannot be ●ipe before the end of the Terme and he die it seemes he cannot devise this corne for if he had lived he could not have reaped it after the end of the Terme 20. Obligations Counterpanes of Leases and Perk. Sect. 527. such like things also are devisable but in this case the Devisee cannot Devise of Obligations Counterpanes of Lease● c. sue upon the Obligation in his own name nor enter for the condition broken upon the Lease if there he cause but he may cancell give sell or deliver up the Obligation or Counterpane to the Obligor or Lessee And finally whatsoever shall come to the Executor See in●●● in Numb after the death of the Testator in the right of his Executorship may be devised by the last Will and Testament of the Testator 21. Devise of● the things a man hath in Iointure wi●h another Perk. Sect. 52. Litt. Sect. 287. Doct. St. 167. The goods and chattels that a man hath joyntly with another are not devisable And therefore if there be two Iointenants of goods or chattels as where such things are given to two or two do buy such things together and one of them devise his part of the things to a stranger this Devise is void Insomuch that if in this case the Testator make the other Ioyntenant his Executor the Will as to this is void and he shall not be charged as Executor for those goods but he shall have them altogether by right of survivorship 22. The Devise of the things a man hath in anoth●●s right Plow 525. B100 Administrator 7. 〈◊〉 Adm. 〈◊〉 goods and chattels that a man hath in anothers right are not devisable and therefore an Executor or Administrator cannot devise the goods and chattels he hath as Executor or Administrator for such a Devise is void Howbeit the Executor may appoint an Executor of the goods of the first Testator which the Administrator cannot do And of the profits that do arise by the goods and chattels the Executor or administrator hath during the time of his Administration he may make disposition The goods and chattels belonging to Colledges and Hospitals may not be devised by the Testaments of the Masters or governours thereof no● the goods and chattels belonging Doct. St. lib. 2. c. 39. Perk. Sect. 4●6 49● 49● to other Corporations by the Mayors Bayliffes or Heads thereof * And the goods and chattels that Churchwardens have in the right of the Church are not devisable * Perk. Sect. 560. Doct ●t c. 7. All the chattels reall that a man Husband and wife hath in the right of his wife by her means and all the Obligations that are made to her alone before or during the time of the Coverture and the chattels reall or personall that his wife hath as Executrix to any other are not devisable by the Testament of the husband But all the chattels personall that a man hath by his wife which she hath in her own right and the debts due upon Obligations made to the husband and wife both during the Coverture are devisable by the Testament of the husband 23. Such things as are annexed and incident Devise of things that are incident and annexed to some other thing to a Freehold or inheritance so that it cannot be severed from Perk. Sect. 526. Relw. 88. See before it by him that hath the propertie of them as wainscot and glasse to houses and the like are not devisable but in such cases where the thing it selfe to which it is annexed is devisable 24. The goods and chattels that are another mans are not devisable and therefore Plow Granthams case C●o. super Litt. 185. Coo. super Litt. 308 Devise of things that are not the Devisors or belong not unto his Executor if a man give another mans horse it is is a void Devise So if one devise the things that by speciall custome of some places as the heire loomes do belong to the heire this Devise is void for it is not devisable from him 25. If a Bishop have a Ward belonging to his Trin. 13. Ia. Curia B. R. Bishoprick fallen he may devise it but if a Church of his become void in his life time he cannot devise the Presentation If a Parson of a Church have the Advowson in Fee and he devise that his Executors Devise of a Pre●entation to a Church two or three of them shall present at the next avoydance this is a good Devise 26. All these things before that are devisable Swinb part 7. c. 5. Plow 525. Perk. Sect. 500. when they are devised must be named and devised either by their proper name or otherwise described by some other matter whereby Mistake or error in the 〈◊〉 devised the mind of the Testator may be known and discerned for if he erre and mistaken in the name or substance of the thing devised or it be so incertainly devised and described that it cannot be perceived what he intendeth the Devise is void And therefore if one devise a piece of ground by the name of a Mesuage
Administration of her goods and chattels And all these persons that may be Executors may be Executors by that name See before at Numb 7. Sw●b 29● as they may be Devisees And yet if there be two of one name and the Testator make one of that name his Executor and doth not say neither can it be discerned which of them he doth intend in this case neither of them shall bee Executor But it is said that an Heretick Aposta●e Traitor Felon Recu●ant Swinb 2●● 223. Coo. 9. 39. convict Sodomite Libeller Bastard begotten in Incest or a notorious Usurer cannot be an Executor And that if a man be for any of these causes uncapable at the time of the death of the Testator when the Executor is to take upon him the Executorship that hee is for ever uncapable but it hath beene held ●roo Non-ability 18. Fitz. Excomengment ●3 by the Common-Law that a person attaint may bee an Executor The most apt and proper words whereby to constitute an Executor 20. By what words a man may be made an Executor and what words in a Testament shall make a man full Executor or not but a Coadjutor or Supravisor and who shall be an Executor by such words Swinb part 4. Sect. 17. ●8 1● Dyer 〈◊〉 19 H. 8. 8. 21 H. 6. 6. Fit● Executor 43. ●roo Executor 98. 73. Fitz. Executors 113. 121. Briefe 999. are I make I S my Executor or I make I S the Executor of my Will c. But an Executor may be constituted by other words equivalent or by implication And therefore if a man say in his Will I will that I S shall be my generall Administrator or I will that I S shall administer all my goods or I will that I S shall dispose all my goods and chattels or I commit all my goods to I S or I commit all my goods to the disposition of I S or I make I S Lord of all my goods or I make I S Legatary of all my goods or I leave all my goods to I S or I give all my goods to I S and make no other Executor in all these cases I S by intendment of Law is made Executor of all the goods and chattels of the deceased So if a man say Of all my goods I make I S and say no more but omit the word Executor by these words I S is made Executor So if one say I will that I S shall dispose all the goods that are in his hands by these words I S as to those goods is made Executor So if I deliver goods to I S to keep untill my death and then to distribute ad pios usus or for my soule hereby I S shall be my Executor if I D will not by this I D is made Executor in the first place by implication and if he refuse then I S shall be Executor But if a man make A and B his Executors and say I will that I S shall be a Coadjutor or helper to A and B ad distribuendum or ad administrandum bona mea or I will that I S shall be Surveyor or Supravisor of my Will in these cases and by these words I S is not made Executor with A and B. And yet if he say I will that I S shall have Administration of my goods or bee Executor with A and B or be Administrator with A and B in these cases and by these words I S is made joynt Executor with A and B. And if one supposing I S to be dead say I will that I D shall be my Executor because I S is dead in this case and by these words I S if he be living is made Executor first and if he refuse I D shall be Executor If one make A B and C his Executors and 〈◊〉 6. 6 7. then saith afterwards And I will that B shall administer my goods alone or that B only shall administer my goods it seemes in these cases B only is made Executor and that A and C are not made joint Executors with him In all Cases where a man hath any goods or chattels to administer 〈◊〉 Where and in what ●ase an Administ●ation is grantable o● 〈◊〉 And to whom it doth belong to● 〈◊〉 to whom 〈◊〉 must 〈◊〉 Coo. 9. 〈◊〉 Plow 276. Doct. Stud 78. 132. Dyer 236. 〈◊〉 H. 7. 13. and he doth die a naturall or civill death and dyeth in●estate either in deed i. e. doth make no Will at all nor appoint any Executor or in Law i. e. that doth make one or more his Executor or Executors and he or they so appointed is or are such persons as are not in being or if they be in being is or are so incertainly named that it cannot be discerned whom the Testator doth intend or if he is or they be well named he is or they are all incapable by reason of some legall impediment or if otherwise they bee capable they doe all die before the Will be proved or if they live if being cited to come in before the Ordinary to prove the Will they either refuse to appear or if they doe appeare they refuse to prove the Will and to take upon them the Administration of the goods and chattels of the deceased in all these cases the Ordinary may and ought to grant the Administration of all the goods and chattels of the deceased to him that of right it doth belong unto according to his discretion And if a man make a Will and after the death of the Testator the Executor prove it and then die intestate the Ordinary must grant the Administration of the goods of the first Testator not administred in the hands of the Executor to some competent person or persons according to his discretion but where a man hath no goods and chattels to administer i. e. either he hath none or if hee have they are none of his or if they are there is an Executor named in rerum natura capable and well named and he doth accept or at least hath not refused the Executorship in these cases the Administration ought not to be granted or if it be granted it will be void or vo●dable at the least And where an Administration is grantable it is to be granted by and had from the Ordinary of Stat. 31 Ed. 3. chap. 11. 21 H. 8. c. 5. Fitz. Administration 7. Litt. B●oo Sect. 276. See infra Numb the Diocesse where the party whose goods are to be administred lived at the time of his death● for regularly he that shall have the Probate of a Will in case where a man doth make a Will shall have the granting of the Administration of his good and chattels in case he die intestate And therefore if all the goods and chattels of the party deceased be within the same Diocesse wherein the intestate lived and dyed the Ordinary of that Diocesse or his lawfull Deputy or Commissary or the Arch-deacon of the Diocesse