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death_n	alter_v	alteration_n	animal_n	49	3	10.8438	5	false

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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

altered is made voide b) L. 1. 2. ff si quis aliquem testari prohib Boss Tract de var. crim Tit. de his qui aliq testari ꝓhib Menoch de arb iud quaest cas 395. Socin l. in consil 148. vol. 2. qui omnes locupletissimè scripserunt de hac ●e Eos igitur videas vel●m The reason is because as those testaments are not found at the beginning which are made by feare or fraude c) Supr ead part §§ 2. 3. so that testament which for feare or by fraude the testator dare not or cannot alter is from hencefoorth infected with the same disease and so from henceforth to be esteemed of no more force or efficacie then these other d) Wesenb in tit si quis aliq c. ff n. 1. This conclusion † that the testament doth become voide when the testator is prohibited to alter the same doth proceed not onely when the testator himselfe is prohibited or put in feare but also when the † Notarie or witnesses be letted or stopped that they cannot haue accesse vnto the testator e) Bar. in L. fin ff si quia aliquem testari prohib Boss in d. tit de his qui prohib c. n. 2. Paris cons 67. lib. 3. for he that dooth not permit is said to prohibite f) Paris d. consil n. 13. And therefore if the wife being made executrix or any other person benefited by the testament vnderstanding that the testator is about to alter ●is will will not suffer his friends to come vnto him pretending peraduenture that hee is fast asleepe or in a slumber or the Phisition gaue in charge that none should come to him g) Peckius Tract de testa coniug lib. 1. c. 13 or pretending some other excuse or els all excuses set apart do for charities sake shut them forth of the doores h) Vt est apud Teren. prae amore exclusit cum soras In these cases the testament is void in detestation of such odious shiftes and practises i) Peckius vbi supra Secondly this conclusion hath place if † after the comming of the Notarie or witnesses preparation of all things necessarie for the alteration of the former testament some person of intent and purpose to hinder the altering of the same will doth make a noise and keepeth such a sturre exclaiming and quarrelling with such as seeke to haue the testament altered that the testator being therewith disturbed and offended did not then alter his will and shortly after died g) Anch. consil 337. Menoch de A●b●●r Iud. cas 395 n. ●8 39. Thirdly † this conclusion hath place not only where the testator is prohibited by threatnings or hindered by fraude but also when he is ouercome with importunate requests and fraudulent perswasions not to alter his former testament h) Afflict decis 69. n. 7. Menoch d. cas 395. n. 41. huc pertinet quod scripserunt Inno. in c. petitio de iureiur extr Rebuff Tract de rescript tom 2. art 2. gloss 3. Fourthly † this conclusion doth proceed albeit there bee no stronger proofe of violence or impediment offered to the testator in this case then the assertion of the testator himselfe i) Paris consil 66. n. 119 vol. 3. Socin Iun. consil 148. n. 14. Menoch d. cas 395. n. 40. In these cases following † the former conclusion doth not proceede The first case is when the testator had no purpose to alter his testament for if any doo forbid the testator to alter his testament when the testator hath not anie purpose to alter the same this prohibition dooth not hurt the force of the testament alreadie made k) L. 1. ff si quis aliquē Bar. in L. vlt. eod tit n. 13. Menoch d. cas 395. n. 31. est co op quod duo sunt probanda vz. voluntas mutandi testm̄ prohibitio Socin Iun. cōsil 148. vol. 2. The second case is when the feare which is vsed in the prohibition is vaine or but light such I meane as cannot moue a constant person l) Paris consil 97. n 41. vol. 3. Menoch d. cas 395. n. 32. nos diximus supr ead part §. 2 The third case is when the testator is prohibited but not at that present time when he intended to alter his former testament for such prohibition is not hurtfull m) Socin sen cōcil 105 vol. 3. Socin Iun. consil 148. n. 3. vol. 2. Paris consil 67. n. 33. vol. 3. Menoch d. cas 395. n. 32. Boss d. tit de his qui prohib c. n. 2. in fin The fourth case being like to the former is when the testator after the prohibition might verie well at sundrie times haue altred his testament and did not n) Mar. Socin Iun. con sil 148. n. 48. vol. 2. Paris consil 67. n. 62. vol. 3. Menoch d. cas 395. n. 25. for in not altering the testament when he might he seemeth to allowe it and confirme it o) Mascard de probac. conclus 1280. n. 54. Mantic. de coniect. vlt. vol. lib. 12. tit ● n. ●2 per L. tractabatur ff de testa mi● quod tamen se●●o con●ide●andum est vt per Mātic vbi supr Pe●kius Tract de testa coniug lib. 1. c. 11. The fift case is when the testator is not compelled by feare nor circumuented by fraud but induced with flattering speeches voide of deceite such as may become an honest wife or faithfull friend not to alter his testament p) Menoch d. cas 395. n 42. per L. vlt. ff si qui● aliquem testari ꝓhib The sixt case is when † all things necessarie for the alteration of a testament being prepared the executor or legatarie or other person with his noise or weeping dooth disturbe the testator that he cannot alter his testament not of purpose to hinder such alteratiō but being moued with compassion to see the testator grieuously afflicted with sicknes or being stricken with an vnfeigned sorrowe through feare of the testators death or otherwise ouercome with an honest or kinde care or griefe and not able to suppresse the force of this vehement passion dooth burst into teares and so with noise of his lamentations dooth disturbe the testator that he cannot proceed in the alteration of his will In this case the former testament is not made frustrate by such disturbance albeit after that the testator neuer had the like opportunitie of altering his testament q) Paris consil 67. vol. 3. n. 47. 48. Socin Iun. consil 148. vol. 2. n. 33. verb. nam dum primo c. Howbeit the iudge must be verie wary and learne by the circumstances of the fact whether this noise and exclamation be of policie or of simplicitie r) Menoch d. cas 395. n. 39. The seuenth † case is when the executor or legatarie dooth forbid or hinder the testator to alter his testament in which case the former testament is voide onely in

to say iust age for full and perfect age (d) L. Filius-familias de leg 3. ff Rebuss in L iusta de verb sig and so iuste waight iust measure iust number for full and perfect waight measure number (e) Couar in Rub. de test ext pri part n. 4 ciusd farinae estquod ibi dicitur Iustus exercitus iusta classis iusta pugna iustae stationes iustū volumen iustus error c. Adde quod scribit Minsing in Rub L. de testa lib 2. institu iur Ciuil The † word Iuste being thus vnderstoode that is to say for full and perfect all testamentarie defectes and imperfections are thereby excluded Wherfore the testament ought to be full compleate and perfect otherwise being an vnperfect testamēt it is said to be no testaments (f) §. Ex eo instit Quibus mod test infir The † testament is said to be imperfect in two respects vz. in respect of Solemnitie and in respect of Will or meaning (g) Bar. alij in L. hac consultissima §. ex imperfecto C de testa Boer decis 240. The † testament is imperfect in respect of solemnitie wherein some of the Legall requisites necessarie in the making of a testament be wanting (h) Sichard in d. §. ex imperfecto Hereupon diuers writers haue interpreted the worde Iust in this definition to signifie Solemne (i) Viglius in tit de testa ord inst n. 29. Mins eod n. 5. Sichard in Rub. de testa C. n. 2. that is to say furnished with such due rites and formalities as the law requireth Howbeit † all the superfluous solemnities of the Ciuill lawe are vanished out of this kingdome of Englande Onely those solemnities remaine which be Iuris Gentium (k) Infr. ead parte §. 9 So that with vs it is sufficient to the effect of executing the testament that the will and minde of the Testator doe appeare by two sufficient witnesses (l) ● Lindw in stat●●tum verb. proba de testa lib 3. prouincial constit cant Sauing where landes tenements and hereditaments are deuised for then the solemnitie of writing is also necessarie and that to be done in the life time of the testator (m) Stat H. 8. an 32. c. prim The † testament is saide to be imperfect in respect of will which the testator hath begun but cannot finish as he would (n) Bar. Sichard alij in L. Hac consultissima §. ex imperfecto C de testa L. si quis ita ff eod tit L. furios C. qui testa fac pos If therfore † whiles the testator is in making his will and whiles hee yet intendeth to proceede further at that present either by adding or diminishing any thing to or from his testament or by altering any thing therein as commonly men do vse to put in put out and change many things before they make an ende (o) Iul. Clar. §. testam q. 7. in fin he be sodainly stricken with sicknes insanity of mind or other impediment whereby he cannot then finish or perfect the same as he would and so die This his testament being imperfect in respect of will is therefore voyde euen touching that which was done which he did intend then to alter before he had made an end (p) d L. si is qui L. iuriosū Ias Sichard in L. pen. de Inst sub C. by reason of the defect of the testators consent without which the testament is not of any value (q) Sichard in d. L. hac consultissima § ex imperfecto de testa C. n. 2. Neuertheles not euery testamēt which is tearmed imperfect in respect of will is by and by wholy of no force for in many cases yea and for the most part such testaments are effectual for so much as is already doone as elswhere more aboundantly is confirmed (r) Infr. parte prim § ●● There is yet † also a further mysterie or secrete meaning included in this word Iuste in that it doeth signifie full or perfect which meaning is this That the testament ought to be compleate not onely in respect of solemnitie and of will as is aforesayd but also that it ought to be perfect in this respect especially that theris no want of any thing which is necessary to the constitution and denomination of a testament (s) Bar. in L. j. de testa ff Viglius Minsing in tit de testa ordin in princ Alciatus in L. Tabernae de verb. sig ff Couar in Rub. de test extr For if † it doe conteine onely a perfect declaration of the testators will and want that which is requisite to make it a testament it may well be tearmed a perfect will for a Codicill a Legacie a gifte in respect of death c. they are all perfect in their kinde (t) Paul de castr in d. L j. de testa ff Nec ideo Musca dicitur imperfectum animal quod sit minor Elephante inquit Couar in Rub. de test extr j part n 3. But it cannot be tearmed a testament much lesse a perfect testament (v) Bar. in d. L j. de testa ff Minsing in d. tit de testa ord This † singular sence and signification of the word iust because some interpreters did not perfectlie apprehend they did reprehend the definition as not perfecte nor conuertible with a testament that is to say not agreeable to a testament alone but common to euery kinde of last will (x) Accurs Paul de castr in d. L. j. de test ff for that they also were perfect euery of them in their seuerall kind (y) Paul de casti in d. L. pri Wherin neuerthelesse they were deceiued for the perfection that is here meant is an absolut perfection such as none other last will hath but onely a testament euen that perfection that giueth both name and nature to a testament (z) Bar. omniū Legistarum facillime princeps Bald. Ange. Imol. Aretin in d L. j. de test ff Porcus Viglius Minsing Inst de testa ordi Vasq de succes crea lib. j in prin n. 26. So that the defect was not in the definition but in their vnderstanding To conculde therfore this perfection specially being here vnderstood by this word iust which is proper and peculier to a testament the definition remaineth irreprehensible and is agreeable to a testament only excluding both Codicil Legacie gift in regard of death euery other kind of last will (a) Bar. in d. L. prim de testa ff Viglius Minsing in d. tit de tes a. ordin Instit Couar in Rub. de testa extr part prim hauing euery thing and wanting nothing which appertaineth to the essence of a testament (b) Mantic. de coniect. vlt vol. lib j. tit 4. n. 10 Grass Thesaur com op §. testa q. j. Couar in Rub de testa extr n. 14. 3. 4. sup §. in sin Now † if you

and alter diuerse things yet who is able to say that concerning this or that particular legacie alreadie giuen the testator would haue made any addition diminution or alteration The presumption is rather to the contrarie for perseuerance and not mutation of will is presumed c) L. cum qui volunta tem ff de probac. In deed if it can be prooued that the testator did meane at that present to alter those legacies before giuen ere he had finished his testament and could not being then suddenly preuented by death or otherwise then the former opinion hath place d) Paul de Castr in L. iubemus de testa DD. in L. pen. de Instit sub C. that the disposition is voide otherwise not e) Quia nemo praesumitur habere plus in corde quam in ore Bald. in L. si is qui. ff de testa By † this now which hath beene spoken of testaments ad pias causas we may iudge whether our testaments here in England bee good or not when they be inperfect by the first meanes viz. where the testator whiles he is in making his testament after he haue appointed an executor or giuen some legacies and intending to proceed further is euen then suddenly interrupted and hindered that he cannot finish the same accordingly When † the testament is imperfect by the second meanes of imperfection of will that is to say when the testator after he haue begun to make his testament doth put off or defer the finishing thereof vntill an other time and in the meane time dieth or is otherwise letted that he cannot make an end thereof as he meant howsoeuer by the rigour of the ciuill lawe the testamēt in this case may seeme to be void euē touching that which is alreadie done f) Paul de Castr consil 150. vol. 2. yet by that lawe which this realme of England doth admit in this case I meane ius gentium concerning those things alreadie disposed the testament is not voide by the reasons before alledged For as in the former case the legacies alreadie giuen are not voide where the testator cannot finish his testament as he woulde at that time so in this case the legacies before disposed or the constitution of the executor befor made dooth not become voide where the testator cannot finish his testament as he purposed at another time g) Cum igitur eadem ratio in vtroque casu militet idem etiam ius constitui oportet Nec casus diuersitas sed rationis identidas inspici debet Aymo Grauetta consil 190. Much lesse † is that testament voide where the testator hauing declared his whole will and intending to do no more at that present reserueth somewhat to be done at another time and in the meane time dieth For euen by the ciuill law in this case the testament is perfect notwithstanding such reseruations h) Aret. Ias Sichard in L. pen. C. de Instit sub Grass Thesaur com op §. testm̄ q. 12. n. 4. quam sententiam communiter receptam monstrat post Lud. Zant. Respons pro vx n. 302. Wherefore if the testator after that he hath made his will do say that he wil adde diminish or alter any thing in his will the next day and die in the meane time before any such additions detractions or alterations be made the testament is not to be noted of imperfection by any such reseruation of adding diminishing or altering his testament i) Simo. de Praetis de Interp. vlt. vol. lib. 1. fol. 195. Io. de Ana. cons 44 because these things may be don by way of codicill without the which the testament is sufficiently perfect k) Sichard in L. pen. de Instit sub C. in sin and especially the testament remaineth firme and effectuall where the testator dooth ouer-liue the time by him prescribed for such additions diminutions or alterations for then he is presumed to haue repented him of such additions by not dooing the same when he might l) Alex. cons 74. vol. 1. Olden de action class 5. fol. 498. Paul de Cast in L. iubemus C. de testa Hereunto † it may be added that where the testator hauing declared his whole will before witnesses causeth the a Notarie or Scribe to be called vnto him intending to haue the same committed to writing for a more sufficient proofe of his testament and before the comming of the Notarie dieth In this case the testament is good and ought to preuaile as a Nuncupatiue testament m) Alex. in L. hac consultissima §. ex imperfecto C. de testa Grass Thesaur com op q. 12. n. 6. Mantic. de coniec vlt. vol. lib. 1. tit 7. n. 6. vbi ostendit hanc op esse com neuerthelesse if it may be prooued that the testator did restraine himselfe to the written testament and that it was his will and meaning that the testament should not be of force vnlesse it were written then the testator dyeth in the meane time before it be written the testament shall not be allowed as a Nuncupatiue testament so not at all n) Bar. post Dyn in L. vlt. ff de iure codicill Oldrad consil 119. Castrens consil 75. vol. 1. cons 450. vol. 2. Peckius de testa coniug lib. 1. c. 18. Grass Thesaur com op §. testm̄ q. 11. el. 1. But it is not presumed by sending for a Notarie that otherwise the testator would that his testament should take no place vnlesse it were writtē o) Couar in c. relatum el. 1. de testa extra n. 11. ibi tertia conclusio Mantic. d. c. 7. n. 6. but rather for a more ready proofe of his will p) Grass d. §. testm̄ q. 12 in sin Of defect in the testators meaning 1 No testament good without a firme resolution of the minde to make a testament 2 Wordes vttered rashly or vnaduisedly done not import a firme purpose in the testator 3 It is the minde and not the words which giueth life to the testament 4 What is to be considered to prooue a firme intent of making a testament 5 Of the draught of a will in writing 6 If a writing be founde in manner of a will whether is it presumed the verie will or but a draught thereof §. xiij IF the † testator haue not animum testandi that is a firme resolution or aduised determination of making his testament his testament is voide or rather no testament a) L. Diuus ff de mil. testa §. plane Instit de mil. testa And therefore † if any man rashly vnaduisedly incidently ieastingly or boastingly and not seriously nor with a firme purpose to make his will do say and affirme as oftentimes it happeneth that he will make such a man his executor or will leaue vnto him all his goods this is no testament b) L. vlt. ff de testa DD. ibi in d. L. diuus §. plane Hottoman cons 5. vol.

preiudice of that person which doth prohibite or hinder the testator to alter the same but not in preiudice of another not cōsenting therunto s) L. 2. si quis aliquem testa prohib ff much lesse doth the prohibition of that person who is to reape no benefite by the testament hurt those executors which otherwise should be administrators in case the partie died intestate t) Menoch d. cas 395. n. 20. post Bar. in L. vltim si quis aliquem testari prohib ff n. 11. vnlesse it doth appeare that the testator would haue chaunged his whole testament and haue appointed newe executors for then this prohibition maketh voide the whole testament like as if the testator had beene compelled to make the same at the first v) Bar. in d. L. vlt. Menoch d. cas 395. n. 17. Paris consil 67. vol. 3. There is much adoo in the ciuill lawe about this question who ought to haue the testators goods when hee is compelled to make his testament or hindered that hee can not reuoke his testament the prince or the heires of the deade person x) De qua q. Menoch de arb iud cas 395. But with vs if any die intestate the administration of his goodes is to bee committed to the widow or next of kinne y) Stat. H. 8. an 21. c. 5. and doth not go to the prince though the executor or legatarie be vnworthie When he that is made executor can not or will not be executor 1 Though the executor be incapable the legacies are still due 2 The executor ought to be capable of the executorship at three seuerall times 3 It is sufficient for the legatarie if he be capable of the legacie at the testators death 4 What if the disposition be conditionall §. xix ALbeit † where he that is named executor in the testament either cannot or will not be executor by the lawes of this realme the legacies bequeathed in the same will are still due and to bee paied by such as shall haue the administration of the goodes of the deceased a) Brook Abridg. tit executor n. 20. dixi iure huius regni nàm secus est iure ciuili haereditate non adita L. 1. in fin de iniusto testō L. fidei commissum de leg 1. L. imperator de leg 2. ff L. hoc non sit indistinctè verum vt per Vigelij method iuris ciuil à quo tradita est regula cum plurimis limitationibus sublimitac lib. 12. c. 9. in which case the will is to bee annexed to the letters of administration as heretofore I haue declared b) Supr part 1. §. 6. n. 6 yet by reason of the incapacitie or refusall of the executor such disposition is thereby depriued both of the name and nature of the testament c) Instit tit de haeredit quae ab intestat def in princ Brook vbi supra and so the partie is said to die intestate I shall not neede to repeate here particularly by what means the executor may become incapable of the executorship This one thing I thought good to note in this place that by the ciuill lawe † hee which is named executor must be capable of the executorship at three seuerall times d) §. in extraneis Inst●t de haered qual differentia vide supra part 5. §. 2. quae in illo §. ad notaui First at the making of the testament for then the testamēt taketh his substance or being e) Christ Porcus in d. §. in extraneis Secondly at the time of the death of the testator for then the testament receiueth his strength confirmation f) Idem Porcus in eod §. Thirdly at the time of the probation of the will and vndertaking the executorship for then the testament entereth to his effect and execution g) Idem ibid. quamuis Ias hisce rationibus totus non acquiescat quippe qui alias meliores atque vt ille inquit fundamentaliores assignat in suis addic ad Christ Porcum in d §. Howbeit it is † sufficient in a legatarie if he be capable of the legacie or deuice at the time of the death of the testator h) Bar. in L. si alienū §. 1. ff de haered instit in fin Peckius Tract de testam coniug lib. 4. c. 31. n. 5. Grass Thesaur com op §. Institutio q. 28. n. 4. vnlesse the deuise be not pure and simple but conditionall for in conditionall dispositions both the executor and also the legatarie must be capable at the time of the performance or existence of the condition i) Bar. Grass Peckius vbi supra as for any other time whether it bee betwixt the making of the will and the testators death or betwixt his death and the probation of the will it skilleth not for though the executor be thē incapable it hurteth not k) §. in extraneis Instit de haered qual differentia especially if † the disposition be conditionall for then it is not required in the executor much lesse in the legatarie that he be capable at another time sauing onely at the time of existence or performance of the condition no not at the making of the will or death of the testator l) Alex. in L. 2. ff de vulg pup sub n. 11. Grass d. §. Institutio q. 28. n. 3. quae op com est Licèt non desint qui contrariam teneant If the executor doo refuse to vndergo the burthen or office of an executor then he looseth whatsoeuer legacie is left vnto him in the testament m) Bar. Sichar in L. si legatarius C. de legatis sauing as elsewhere is recited n) Supra part 6. §. 3. Of ademption of legacies 1 By what meanes legacies become voide 2 Ademption of legacies what it is 3 Ademption of legacies two fold 4 The testator may at any time alter his will either wholy or in part 5 Ademption of legacies not to be presumed 6 Corne in the barne being bequeathed whether the same being spent and other corne there at the death of the testator the legacie be extinguished 7 Whether the ship bequeathed being altered and renewed the legacie be extinguished 8 Whether the house bequeathed being by peecemeale reedisied and renued may be recouered 9 What if the testator do voluntarily pull downe the house and erect another in place thereof 10 What if the house bee burned or blowen downe and another erected whether may this newe house be recouered 11 An answere to an obiection 12 Whether by necessarie alienation of the thing bequeathed the legacie be adempted 13 What if the alienation be voluntarie the legacie is extinguished 14 What if the voluntarie alienation bee voide in lawe 15 What if the testator should redeeme the thing alienated 16 Whether lands deuised alienated and redeemed may be recouered 17 The reasons of either lawe being contrarie in this point 18 If the