Will only to Land and a Testament only to Chattels requiring Executors which a Will only for Land doth not require For it seems that by the Common Law where Lands or Tenements are only devised by writing albeit there be no Executor named yet that is properly called a Last Will and where it concerns only Chattels a Testament The truth is a Testament taken strictly according to the said definition differeth from a Last Will yet not as opposite thereto but only as the Special differeth from the General for every Testament is a Last Will but every Last Will is not a Testament In a word a Last Will is a general word and agrees with each several kind of Last Wills or Testaments But a Testament properly so called is only that kind of Last Will wherein an Executor is named or appointed Plowden in his Commentaries doth define a Testament to be the Witness of the mind and to be compounded of these two words viz. Testatio and Mentis But this is no adequate definition of a Testament neither is it a compound word but a single word such as is Calceamentum Paludamentum and the like And if it be demanded whether a Testament may be good in Law without a Seal it is Answered in the Affirmative for a Seal is not absolutely necessary to a Testament though it may be fit and expedient For a Will not being properly and legally a Deed may be good enough without a Seal which is one essential part of a Deed yet hath a Will the force and effect of a Deed. CHAP. II. Of the several Distinctions or kinds of Testaments A Testament is either Solemn or Vnsolemn This though the first and greatest distinction of Testaments yet of least force or use with us now in England 2. Testaments are either written or Nuncupative 3. They are either priviledged or unpriviledged Of Priviledged Testaments there are three sorts whereof some are called Militarie Testaments others are called Testaments only among the Testators own Children and others are Testaments to Charitable and Pious uses But if no Executor be named or appointed then it hath not the name of a Testament yet it shall retain the name of a Last Will and comprehends one of these three viz. either a Codicil or a Legacy and Devise or a Gift in regard or by reason of death CHAP. III. Of Testaments Solemn and Vnsolemn IN Solemn Testaments are comprehended the Solemnities of the Civil Law as the presence of seven Witnesses their subscription or subsignation the making or expediting the act of the Will it self at one and the same time with divers other Solemnities necessarily required by the Civil Law as Essential to a Testament whereof we have no use here in England being not obliged to such Ceremonies In Vnsolemn Testaments the said Ceremonies are omitted and such are our Testaments here in England wherein we are no further obliged than to the observation of such Requisites as are necessary Jure Gentium which requires but two Witnesses And saving in a Devise of Land wherein Writing is also necessary and that it be made in the Testators life time The Testator if he please may make use of more than two witnesses and procure their subscription yea for prevention of Forgery to every page of the Testament but no obligation hereto CHAP. IV. Of Testaments Written and Nuncupative 1. Testament Written what 2. Difference between Devise of Lands and Bequest of Goods 3. Lands of Burgage tenure and by Custome deviseable may pass Nuncupatively 4. Naming Executor not necessary in a Will only for devise of Lands 5. Notes taken in writing-sufficient for devise of Lands 6. Testament Nuncupative what 7. The Will whether Nuncupative or Written in case the Executors Name be omitted out of the writing 8. Law Cases relating to this subject § 1. A Written Testament is such as at the time of making thereof is committed to writing By which words are excluded such Testaments as are afterwards put into writing For being first made by word of mouth they still remain Nuncupative notwithstanding the reducing thereof into writing after the Testators death Among other advantages that a Testator hath by a written Will this is one that he may conceal the Contents thereof from the Witnesses which in a Nuncupative Will he cannot do And it is sufficient if taking his Will in his hand he say unto the Witnesses This is my Last Will and Testament or herein is contained my Last Will or other words to the like effect 2. As touching the disposition of Land of Inheritance by Will if it be not fully written before the Testators death so far at least as concerns the disposition of the said Land it may not be for that part made good by reducing it to writing after the Testators death but as touching Goods and Chattels it may Nevertheless if it be written before the Testators death though it be never brought nor read to him after the writing thereof yet is it good enough and that not only for Land but also for Goods and Chattels provided that there be an Executor named And this shall be a Will in writing and not verbal only yea though it want the subscription of the Testators Name For many cannot write at all and some want hands Nor is the subscribing the name of the Maker any essential part of a Deed much less of a Will which needs not sealing as a Deed doth 3. Lands and Tenements deviseable by Custome may pass by a Nuncupative Will for any time whatsoever for in a Devise of Lands Tenements and Hereditaments held in Burgage-tenure it is not necessary that the same should be written because such may pass sufficiently by Will Nuncupative because such Lands were deviseable before the making of the Statute of H. 8. enabling to devise Lands Tenements and Hereditaments by Will in writing in the Testators life-time which cannot pass by a Nuncupative Testament or Will without writing So that Lands of Burgage-tenure and by Custome deviseable may pass Nuncupatively though Lands of other tenures are not deviseable but by Will in writing 4. Though the naming or appointing of an Executor be essential to constitute a Testament or Last Will yet this properly refers only as to Goods and Chattels for a man may by his Last Will in writing devise his Lands Tenements and Hereditaments though he make no Executors because an Executor hath nothing to do with the freehold of Land 5. If the Writer doth only take Notes from the mouth of the Testator of his Last Will for the devise of Lands Tenements and Hereditaments and afterwards write the same but the Testator dies before it be shewed unto him yet this is sufficient for a Will in writing for the coveying of Lands Tenements and Hereditaments Likewise it is sufficient if Notes or Articles be made and read to
the Testator though the same be not ingrossed at large or in form of Law until after the Testators death 6. Testaments are called Nuncupative when the Testator without any writing doth declare his Will before a sufficient number of Witnesses and such Nuncupative Will is of as great force and efficacy except for Lands Tenements and Hereditaments as any written Testament Yea this verbal oral or Nuncupative Will being after the Testators death reduced to writing and having the Court Seal affixed thereunto is of as good validity touching the disposal of Goods and Chattels as if it had been written in the Testators life-time 7. Although many Legacies be made and written in a Will and many things expressed to be done yet if no Executor be named in the writing only A. and B. by word of mouth appointed to be Executors this shall not amount to a Will in writing but to a Nuncupative will only because one essential part of the Will viz. the appointing of an Executor is omitted out of the writing Nay the appointing of him Executor who is named in such a Note left with C. D. is no sufficient making of an Executor at all Nor is the appointing of any one by a doubtfull and uncertain Name a sufficient making either of an Executor or Legatary unless some other sufficient circumstance doth make it plainly appear whom the Testator meant so tender and cautious is the Law of fixing the interest of any upon meer doubts and uncertainties 8. A man took Notes of a Will of one who lay sick and afterwards he drew up the Will in writing but the sick person dyed before it was shewed to him Yet it was the opinion of the whole Court that the same was a good Will within the Statute of 32 H. 8. to convey Socage Land Trin. 6 E. 6. Dyer 72. So was it adjudged in 4 and 5 Eliz. in Hinton's Case where Articles were read to the Devisor concerning the disposition of his Lands and the Articles were written and engrossed after his death and yet it was a good Will within the said Statute of 32 H. 8. A man intended Land to J. S. for life the remainder to J. D. and before the remainder was written the Devisor dyed It was the opinion of the Court that the same was a void Devise for the whole Lands within the Statute of 32 H. 8. because that the one did depend upon the other But in that case it was holden that if a man seised of two Acres intends one of them to J. S. and the other to J. D. and the Devise to one is written but the Devisor dyeth before the Devise of the other Acre to the other is written It is a good Devise for the Acre which is written but not for the other Acre B. Brought Writ of Entry in nature of an Assize against his Fathers Wife The Case upon Evidence was this viz. H. B. the Plaintiffs Father and Husband of the said Wife being sick at London sends for A. desiring him to write the Last Will and Testament of his Lands A. desires B. to declare what he would have his Last Will and Testament to be and who to be his Executors whereupon A. wrote short Notes of his Last Will and every Legacy and who should be his Executors then return'd to his own House there wrote the said Will in Order and Form and therewith returning to the House of H. B. within half an hour after 12 intending to have read the same unto him was then told that the said H. B. dyed at twelve of the clock just before Whereupon A. delivered the same to the Executors that were therein named The Wife enters on the Testators Tenements and what was Devised to her the Son enters upon her the Wife re-enters whereupon the Plaintiff brought his Writ The Opinion of all the Justices was That it was a good Will in writing according to the Stat. of 32 H. 8. and declared their Opinion on the Evidence given whereupon it passed for the Wife and she enjoy'd the Land CHAP. V. Of Testaments Priviledged and Unpriviledged 1. Testaments Priviledged what and how many kinds thereof 2. Military Testaments their priviledges 3. Testaments made in favour of the Testators Children their priviledges 4. Testaments made for good and pious uses their priviledges 5. Testaments Vnpriviledged what § 1. TEstaments Priviledged are such as are qualified by some special freedome or benefit contrary to the common course of Law or by some special freedome are discharged from the usual Requisites and Observations of Common and General Law whereof there are as in the second Chapter chiefly these three kinds viz. 1. Military Testaments 2. Testaments made in favour of the Testators Children 3. Testaments for good and pious uses 2. The priviledges of Military Testaments or of a Testament made by a Souldier are many but chiefly these Four viz. 1. A Souldier is not disabled from making his Testament by any of those impediments which disable others unless for want of Reason or other like grand causes whereby he is disabled Jure Gentium 2. Whereas divers persons are prohibited from being Executors or Legataries to other persons yet the Law doth not so prohibite them from being Executors or Legataries to a Souldier save in some very few Cases specially limited in the Law 3. Souldiers are clearly acquitted from the observation of the Solemnities of the Civil Law in making of Testaments 4. Whereas no other person can dye with two valid Testaments yet a Souldier may and both Testaments shall stand good according to the intent or meaning of the Testator Other priviledges there are peculiar to Souldiers in making their Testaments but they being many it would not answer the design of a Compendium to make a specification thereof Only let it not here escape our Observation that these Priviledges belong only to such Souldiers as are in expedition or actual Service of war and not to such as lye safely and securely in some Castle Garrison or other like place of defence 3. The priviledges of Testaments made in favour of the Testators Children are chiefly these three viz. 1. If two Testaments be found after the Testators death of divers tenures and it appear not which of them is the latter Testament In this Case that shall be presumed the latter and so prevail which is made in favour of the Testators Children 2. The Testament made in favour of the Testators Children is not so easily revoked as possibly other Testaments may be 3. A Fathers Testament among his Children shall take effect though there be no Witnesses to prove the same being written or subscribed by the Testators hand or by him procured to be written by some other Howbeit these two last Priviledges by the Custome of England the latter of them especially are common to all English mens Testaments so also are all
live or die still remain in and to her only whereof she may make her Will without her Husbands consent and him if she please Executor for otherwise he may not have them after his Wifes decease because of such goods the Wife dying without will the next of Kin to the Wifes Testator may take the Administration as de bonis non Administratis And here Note that though the Wife being Executrix to another may without her Husbands License make her Testament of such Testators Goods yet she may not bequeath them by Legacy without making an Executor But if the Wife be made as well Legatary as Executrix and she accept of the Testators Goods not as Executrix but as Legatary in this case she cannot dispose of the said Goods by Will or otherwise without the Husbands consent for by accepting them as Legatary she makes them her own and consequently her Husbands And Note further that although the Wife being Executrix may without her Husbands License make her Testament of such Goods whereof she is possessed as Executrix yet the fruit and profit arising during the Marriage out of such Goods shall accrew to her Husband and not unto her self as Executrix so that without her Husbands approbation she can make no Testament of such fruits and profits so arising And if it doth not appear whether the Wife accepted the same as Executrix or as Legatary she shall by the Laws of this Land herein not agreeable to the Civil Law be deemed and presumed to have accepted the same as Executrix Q. The ground or reason of such presumption 4. A Wife without her Husbands Licence or Consent may make her Testament of such Goods and Chattels whereof she was not possessed during marriage and as to such things she may make her Husband Executor if she please And the Husband cannot by Will bequeath or make an Executor of an Obligation which he hath in right of his Wife nor of any other thing meerly in Action For debts or things in Action are not devested out of the Woman into the Husband by marriage yet she cannot make an Executor thereof without her Husbands assent for during her life he may receive them or release them though after her death he shall not be entitled to them unless his Wife make him Executor thereof or after her death he take the Administration of her Goods whereby he then becomes lyable for her debts out of the same when he shall have received them And thus also Chattels real are not so devested out of the Woman into the Husband by marriage but that she surviving him and no alteration made of the property in her life-time by her Husband who had then power to dispose thereof though not by Will they continue to her and remain in her as before marriage yet such a Woman in her Husbands life-time could not without his consent make her Will touching such Real Chattels but he surviving her they would by the operation of Law accrew unto him 5. As without the Husbands consent the Wife may not make her Will so likewise without his consent she may not take upon her the Office of an Executrix But if once the Will be proved and the Execution thereof committed to the Wife though against the Husbands mind and consent probably it may stand good Also the Wives Administring without the Husbands privity though no Will be proved will probably barr the Husband as well as her self from pleading in any Suit commenced against them That she neither was Executrix nor ever Administred as Executrix On the other side if a married Woman named Executrix refuse the Execution of the Will against her Husbands mind and desire it is supposed the Law will not fix the Executrixship upon her against her Will yet the Husband may Administer and Prove the Will for his Wife Also if the Husband no Will being Proved doth Administer in his Wifes right but against her Will This notwithstanding her dissent will so bind her that during her Husbands life she can hardly decline the Executrixship for that by the Law of the Land she cannot be sued alone as Executrix and being sued with her Husband she must joyn in Plea with him whereby the Administration by her Husband will conclude her also but not so after his death for then she may refuse 6. If a Feme Sole make a Will and after take a Husband the same is a Revocation thereof For the making of a Will is but the inchoation or inception thereof which hath no effect till the Testators death Because Omne Testamentum morte consummatum est voluntas est ambulatoria usque ad extremum vitae exitum And therefore it being no perfect Will when she takes a Husband and after marriage her Will being her Husbands and subject to it by her taking a Husband she hath wholly revoked the Will formerly made by her Debt upon an Obligation the Condition was Whereas the Defendant had taken A. S. to Wife who was a Widow being possess'd of divers Goods if he would permit his said Wife to make a Will and to dispose in Legacies so much as she would not exceeding fifty pound and perform what she appointed That then c. The Defendant pleaded that she did not make a Will whereupon Issue was joyned it was found that she made a Will and thereby disposed of divers Legacies not exceeding fifty pound but that she was a Feme Covert at the time of the making of the Will In this Case it was adjudged for the Plaintiff For although she being a Feme Covert could not in Law be permitted to make a Will to dispose of any Goods without the Husbands assent yet it is a Will within the intent of the Condition for it was in the intent of the Condition That she should make a Will to that purpose notwithstanding the Coverture and it is but her appointment which the Husband by his Obligation is bound to perform and the finding that she was a Feme Covert was not in this Case material If a Feme Covert make a Testament and Devise Goods to another and the Husband after her death deliver the Goods to the Devisee accordingly it will bind him A Defendant Covenanted by Indenture with the Plaintiff That whereas he intended to marry E. S. a Widow That he would pay all the Legacies which she by her Last Will in writing bearing date 1 May 20 Eliz. did give and bequeath and was bound by Obligation to perform the Covenants in the Indenture In Debt upon the Obligation the Defendant pleaded that after the making of the Will and the Obligation he intermarried with the said E. S. which marriage continued till her death so the Will and Devise of E. S. was void and demanded Judgement c. And it was adjudged that the Plaintiff shall recover For notwithstanding it was not a Will
of Wills and Testaments afterwards to be made as if the Testator sayes Whatsoever Testament I shall hereafter make I will the same to be void and of no force In this case it is not infringed by a later Testament unless in that later there be mention thereof sufficiently made to amount unto a legal revocation of that former Testament or clause derogatory 5. If a man saith that he will revoke his Will hereafter which he hath made that is not any revocation without the doing of some other Act. Likewise if one saith that he will make a Feoffment thereof to another that is no revocation before it be done But if a man Devise Land to another by his Will in writing and after Devise it unto another per paroll albeit that is void as a Will yet it is a revocation of the former Will If a Devisor alien the Land Devised and afterwards repurchase the same Land yet the Will is revoked as to that Land 44 Ed. 3. 33. 44. Ass D. 3 4 P. M. 143. 55. Contra. 2 R. 3. 3. b. Trespass upon evidence where one hath made his Will in writing and devised his Land to A. and her heirs and afterwards being sick and lying upon his death-bed because A. did not come to visit him affirmed that A. should not have any part of his Lands or Goods It was held by all the Court that it was not any revocation of his Will being but by way of discourse and not mentioning his Will But the revocation ought to be by express words that he did revoke his Will and that she should not have his Lands given unto her by his Will or such like words which might shew his intent to make an express revocation thereof Ejectione Firmae Upon evidence to a Jury it was resolved by the Court and so delivered to the Jury that if one makes his Will in writing of Land and afterwards upon Communication saith That he hath made his Will but it shall not stand or I will alter my Will c. These words are not any revocation of the Will for they are words but in futuro and a declaration what he intends to do but if he saith I do revoke it and bear witness thereof he doth hereby absolutely declare his purpose to revoke it in praesenti and it is then a revocation Also Mountague said to the Jury and it was not denied by any other of the Justices That as one ought to be of a good and sane memorie at the disposing so ought he to be of as good and sane memory when he revokes it And as he ought to make a Will by his own Directions and not by Questions so ought he to revoke it of himself and not by Questions CHAP. XIX Of a Reviver of a Will Revoked 1. How a Will Revoked may be Revived 2. How an Executor Revoked may be Revived 3. How one may dye both Testate and Intestate 1. OF a Will Revoked there may be a Reviver by a new publication of that revoked Will also a Will revoked may without making a New Will be revived and set on foot again by annexing a Codicil thereunto or by adding any thing to the Will or by making a new Executor or by express speech and word that it shall stand good and be his Will yea and sometimes without either of these as thus A man makes his Will many years after he makes another then in his sickness both these Wills are put into his hands and being demanded which of these Two he will have to stand for his Last Will and Testament and being required to deliver back that which he will have to stand and to detain the other in his hands he delivers back the Will he first made possibly many years before the later In this case the former Will though once made void by the later is now revived again and shall stand as the parties Last Will and Testament 2. If one of the Executors Names be stricken out of the Will and afterwards a stet be written over it by the Testator or by his appointment he is then a revived Executor but then Note that if the stet shall stand good the Executors Name over which it is written ought not to be so blotted out but that it may be read and discerned otherwise the stet is over nothing at all Or if the Testator express by word in the presence of witnesses that the party put out shall yet be Executor he is then also a revived Executor Lastly if the verbal re-affirmance renew the Executorship then is the Will partly in Writing partly Nuncupative his Name not being to be found in the written Will for the appointing of the Executor doth create the Will though it hath not life till the Testators death which is Divinity as well as Law 3. If a man seized of Lands in Fee-simple dispose of the same or part thereof by his Will in writing it shall stand good for the whole or part according to the difference of Tenure though no Executor be named or appointed so that the party shall die Intestate as touching his Goods whereof Administration is to be committed yet shall have a Will as touching his Lands because Land is not properly Testamentary And so a Will may be good in part only But where the strictness of the Civil Law is observed there a man cannot die partly Testate and partly Intestate though here in England where that Ceremonial strictness is not observed but all immunities enjoyed being not obliged to any other observance in making of Testaments than what is Juris Gentium a man may thus and several other wayes die partly Testate and partly Intestate CHAP. XX. Of the Probate of Testaments 1. Where and before whom the Will is to be proved 2. By whom and at whose instance the Will is to be proved 3. When is the Will to be proved 4. How and in what manner is a Will to be proved 5. What are the Fees upon Probate of a Testament 6. Touching refusal to prove the Will 1. EVery Last Will and Testament after the Testators death ought to be duly Proved before a Competent Judge in the Ecclesiastical Jurisdiction A Testament or Last Will is to be Proved before the Bishop of that Diocess within which the Testator had his Domicil or Habitation or before his Official unless by Custome or Prescription within certain Lordships or Mannors it appertains to the Chief Lord or unless the Testator died within some peculiar Jurisdiction in which case the Probation of the Testament may be Prescription or Composition belong to the Judge of the peculiar or unless the Testament be such as wherein only Lands Tenements and Hereditaments and no Goods be devised or unless the Testator had Bona Notabilia at his death in divers Diocesses in which Case the Probation of the Testament appertains to that Arch-Bishop within whose
Province such Bona Notabilia are Or unless by Custome it appertains to the Major of some Borough for ordinarily and regularly though Wills and Testaments are to be Proved before the Judge of that Jurisdiction within which the Testator died or rather within which he had his usual habitation and made his last aboad yet some Testaments may be Proved in some Boroughs before the Major thereof by Custome where it shall be understood to be only in respect of the Burgages within such places deviseable but in respect of their Goods they shall be Proved according to the Law Communi Formā and there only where the Lands are bequeathed which is nothing strange when as aforesaid in some Mannors by Prescription Testaments may be Proved before the Stewards thereof yea though no Lands be bequeathed therein The Probate of Testaments did belong to Ordinaries but of later Times de Consuetudine Angliae non de Communi Jure and the power to grant Administration was granted to the Ordinary by the Stat. of 31 Ed. 3. cap. 11. And before that time the King was accustomed to seize the Goods of the Intestate to the intent they might be bestowed for the burial of the dead and the payment of the Intestates Debts and the advancement of his Wife and Children and the Ordinary himself hath not power to sell the Goods of the Intestate though they be in danger of perishing nor release a Debt due to the Intestate by the Stat. of 31 Ed. 3. The Commissary of the Bishop of the Diocess granted Letters ad colligendum ad vendendum ea quae peritura essent inde computum reddere the Grantee sold Goods which would not keep but perished and an action of Debt was brought against him as Executor in his own wrong and it was adjudged maintainable because the Ordinary himself had not such power and therefore he could not give it to another 7 Eliz. Dyer 256. Again the practice hath been when Testaments have been Proved before other than such as are mentioned in the Premises as appears by this Case A Testament is disproved in the Ecclesiastical Court and the party appeals to the Metropolitan and it is there disproved and afterwards there is an Appeal to the Court of Delegates and it is there disproved also and at last the party appealed to the Queen in Chancery by the Stat. 25 H. 8. and there also it was disproved before the Commissioners And if the Queen ex Authoritate sua Regali might grant Letters of Administration was the Question The Opinion of the Justices of the Common Pleas was That she might because the said Court of Chancery is the Highest Court and the matter being once there it cannot be determined in any Inferiour Court and then the party may shew in his Declaration generally the matter and that Administration was granted to him by the Queen Ex sua Regali Authoritate under the Seal of the Court of Delegates Mich. 24 Eliz. in C. B. See after 10 Jae in B. R. Stephenson's Contrary That the Court of Delegates cannot grant Letters of Administration A Lessee for years of Lands by his Last Will Devised his Term to one whom he made his Executor and died the Devisee entered before any Probate of the Will and held the Land for a year and more without any Probate and then died The Question was whether his Executor or Administrator should have the Term or that the Ordinary should commit Administration of the Goods of the first Testator It was the Opinion of the Court That the property of the Term was lawfully in the Executor by his Entry and the Devise well executed without any Probate In Debt against Executors it was Resolved That if any of the Exccutors refuse before the Ordinary yet he that refused may Administer the Testators Goods at his pleasure and Prove the Will but if all the Exccutors do refuse before the Ordinary there Administration shall be granted and they cannot after Administer 2. That in Debt brought against an Executor it is a good Plea That the Testator made him and another Executor who is alive not named without saying that the Testament is Proved 3. Resolved That the Lords of Mannors in former times had the Probate of Wills in their Courts and in ancient time when a man died Intestate and had made no disposition of his Goods the trust of them was committed to the King who was and is Parens Patriae And the Ordinary was Constituted by the King in loco Parentis and his Power was given to him by the Stat. of 31 E. 3. cap. 11. 4. Resolved that although the Ordinary had the Power given to him as before yet no Power thereby is given to the Ordinary to sell or dispose of the Goods either to his own use or to the use of any other and that he hath not any absolute property in the Goods but a property only secundum quid 2. The Testament is to be Proved by the Executor whom the competent Judge either ex Officio or at the instance of the interessed may call before him to Prove the same and to declare his acceptance or refusal of the Execution thereof yea some think it may be done at the instance of such as have no interest to the intent that thereby they may be certified whether the Testator left them a Legacy And because it often happens that a Last Will or Testament is left in the Custody of some other Friend than the Executor the Law hath provided that in whose hands soever it remains he is compellable to produce the same and to exhibite such Testament And if he once had it the Law presumes him to have it still untill he prove the contrary by good evidence or by his own oath at least Also an Executor dying before he hath Proved his Testators Will his Executor that is the Executors Executor may not Prove both the Wills and so become Executor to both the Testators but in case the Goods of the first Testator were after Debts paid bequeathed to the first Executor then may his Executor take Administration of the first Testators Goods with the Will annexed 3. The time when the Will is to be Proved is somewhat uncertain and left to the discretion of the Judge according to the distance of the place the weight of the Will the quality of the Executors the absence of the Witnesses the importunity of Creditors and Legataries and other circumstances incident hereunto Yet regularly Testaments ought to be insinuated to the Official or Commissary of the Bishop of the Diocess within four months next after the Testators death And the Ordinary may sequester the Goods of the deceased untill the Executors have Proved the Testament so may the Metropolitan if the Goods be in divers Diocesses Also the Ordinary may compell the Executor to Prove the Will and to accept or refuse
England Two Witnesses without exception are requisite for the due Proof of a Testament and Two such are sufficient So that it is not necessary to have any more than Two and it may be in vain to have no more but One for a Nuncupative Testament must be proved by at least Two Witnesses without exception But 2. A Testament written by the Testators own hand Proves it self without the help of such Witnesses yea though it hath not his Name subscribed to it nor his Seal affixed to it nor witnesses present to it Provided it be undoubtedly known to be his writing or can be sufficiently proved so to be yet shall it have the more Authority if so be it be subscribed by himself and Witnesses and Sealed Nor is it necessary to the Proof of a written Will that the Witnesses hear it read or subscribe it so as they can depose that the Testator declared before them that the self-same writing now produced is was or should be his Last Will and Testament For in a written Will or Testament it is not necessary that there be any Testimony of Witnesses where it is certain and undoubted that the Testament is written or subscribed with the Testators own hand or that the Testator caused the same to be written by another but if these be doubtful then the testimony of Witnesses is necessary Also the Witnesses ought to prove the very identity of the writing that is that the writing now shewed is the very same writing which the Testator in his life-time affirmed before them to be his Last Will or to contain his Will or other words full to this purpose so that it is not sufficient for the Witnesses to say this is the Testators own hand for or because we know his hand neither is it sufficient by comparing other writings of the Testators own hand with the Testament for hands may be counterfeited therefore proof by similitude of hands is not full proof except where the style and practice of the Court runs otherwise Nevertheless if the Witnesses depose that they saw the Testator write or subscribe the Testament and know the same to be his Testament and Hand or that they had heard the Testator to confess that he had made his Testament and that the same was in such a mans Custody or if the Testament were found in the Testators Chest among other his writings in these Cases the proof made by comparing of hands is a full and sufficient proof yea though there appear not any of those helps by probable circumstances yet if there be no suspicion of fraud nor fear of subornation proof made by comparing of hands may be allowed for full and sufficient proof Likewise if it be proved that the Testator in his life-time did acknowledge that his Testament was contained in a writing left in such a mans hands or custody and that man produce a writing deposing it to be the same which the Testator left in his custody such proof is sufficient without any further comparing of hands But if the Testator did also acknowledge that his Testament contained in such a writing left in the custody of such a person was written with his own hand then such proof is not sufficient without comparing of hands whereby it may appear to have been written by the Testator himself 3. Regularly all persons are held competent Witnesses to prove a Controverted Will save such as the Law holds incompetent such are such as are parties interessed or presumed in Law to be byassed in affection or the like also infamous persons as perjured or the like also such as for want of judgement and understanding the Law rejects And if it cannot be proved whether it be a Testament or a Codicil the circumstances being so indifferent to either then is it most safe in regard of the Statute to commit the Administration to the Widow or next of Kin demanding the fame to avoid the forfeiture of Ten pounds in case the Judge before whom such penalty is demandable should adjudge the party to have died Intestate or without a Will 4. A Legatary may be a competent witness for the proof of a Will in all parts thereof saving for what concerns the Legacy therein bequeathed to himself So that suppose never so many Witnesses to a Will wherein each of them hath a Legacy they cannot sufficiently prove the Will as to their own Legacies but for the rest of the Will they may 5. It is very observable that the most considerable Requisite the Law aimes at to the constituting of an Executor and making of a Testament is to be proved more by Circumstances than by Witnesses and that is Animus Testandi or the intent or purpose of the Testator to make his Will For it is the mind purpose and intent of the Testator more than his words that giveth life and being to the Testament The circumstances that prove the intent or purpose must also themselves be proved by Witnesses These Circumstances proving such a purpose in the Testator are many as when the Testator is in any more than ordinary danger of death or that he orderly composeth himself for such a work or that he required the Witnesses to bear witness thereof with many other the like circumstances as to the person time place occasion manner of speech deportment and in whose presence All which the circumspect Judge is to take into consideration for since the mind and intention of the Testator is the essential qualification of every Testament and not capable of a Being otherwise than by such intention and the mind and intention of man not so much as conjecturable otherwise than by outward circumstances it is most necessary that they fall under a due proof by sufficient Witnesses CHAP. XXII Bona Notabilia 1. What shall be accounted as Bona Notabilia 2. Where the Will is to be Proved in case there be Bona Notabilia 3. How or when Debts and Bonds may make Bona Notabilia 4. Law-Cases touching this Subject 1. IT is agreed by all that Five Pounds is the summ or value of Bona Notabilia provided that where by composition or custome in any County Bona Notabilia are rated at a greater summ the same is to continue unaltered as in the Diocess of London it is Ten Pounds by composition Provided also that if any man die in itinere or in a journey the Goods that he hath then about him or with him shall not be as Bona Notabilia to cause Administration to be committed or the Will to be Proved in the Prerogative Nor is it necessary that the party must have five pounds in each and every of the several Counties where his Goods are dispersed but it is sufficient if the party deceased were possessed of Goods and Chattels in some other County than that wherein he lived and
of Succession distinguish thus viz. Either he hath only Brothers of the whole Blood or only such Brothers Children or he hath Brothers by the half Blood or such Brothers Children In the first case the Brothers only succeed in the second case only the Brothers Children in the third case the half Brothers and such Brothers Children succeed equally according to their Stock or Root not according to the number of their persons Likewise if one dye leaving one Brother and three Children of another Brother deceased of the whole Blood the Brother alone shall have as formerly declared as much as the said three Children and these do succeed exclusively to all other collateral Kindred Also Brothers of the half Blood do exclude other collaterals Ascendent as Uncles Aunts whether by the Father or the Mothers side and that without distinction of Sex But put case a man dies without Children or Parents leaving one Brother by the Fathers side only another Brother by the Mothers side only for instance A man having had two Wives and a Son by each dies and the second Wife takes another Husband having a Son by him then if the Son by the second Wife of the first Husband dies he leaves a Brother of the half Blood by the Father and a Brother of the half Blood by the Mother In this case the Civil Law sayes that the Brother by the Fathers side shall succeed in the Goods that came by the Father and he by the Mothers side in the Goods which came by the Mother and both of them equally as to all Goods otherwise acquired but our Law knows no such distinction for they shall succeed equally being equal in degree and equal in Blood because by Marriage all was invested in the Father THE Orphans Legacy The Third Part. OF Legacies and Devises THE CONTENTS OF THE CHAPTERS of the Third Part. Â Chap. OF Legacies and Devises in General 1. Of Devisors and Devises or Legataries 2. Of Words and Expressions sufficient for Legacies 3. Of Conditions and their Resemblances incident unto Legacies 4. Of the several Marks and Kinds of Conditions and Questions in Law touching the same 5. What things are Devisables by Will and whether a Testator may Bequeath what is not his own 6. Of Lands Devisable by Will 7. Certain cases touching Devises of Lands void or not void 8. Certain Cases touching Devises of Land in Fee-simple 9. Certain Cases touching Devises of Land by way of Entail 10. Certain Cases in Law touching Devises of Land for Life only 11. Certain Cases in the Law touching Devises of Leases or for a Term of Years 12. Law Cases touching Devises of Reversions or Remainders 13. Touching Devises of Lands with Limitations and upon Conditions 14. Touching Devises of Rents 15. Of Devises touching the Sale of Lands by Executors or others 16. Of Legacies and Devises in respect of Marriages as also between Husband and Wife 17. Of Legacies and Devises to a Child in the Womb. 18. Certain Cases of Devises touching Lands and Real Chattels 19. Cases in the Law touching Legacies of Chattels Personall 20. Of Legacies touching Goods in Generall also what is to be understood under that Notion of Goods and what by Moveables and Immoveables 21. Law Cases touching Money Bequeathed by the Testator 22. Of Legacies relating to Debts with certain cases in the Law touching the same 23. Touching Election in point of Legacies to whom The Election of a Legacy expressed with too much Generality or Dubiety belongs whether to the Executor or to the Legatary with certain cases in the Law touching the same 24. When and how Legacies are null or become void or voidable with certain cases in the Law touching the same 25. Certain Positions or Assertions of Law for the better understanding of this Subject of Legacies and Devises with certain mixt cases touching the same 26. THE ORPHANS LEGACY The THIRD PART OF Legacies Devises CHAP. I. Of Legacies and Devises in General 1. What a Legacie or Devise is 2. What are the Requisites to the making of a good Devise 3. Whether is more Considerable as to Legacies the Time of making the Testament or of the Testators death 4. In what Court Legacies and Devises are properly Recoverable 1. A Legacy called a Devise at the Common Law is some particular thing or things given or left either by a Testator in his Testament wherein an Executor is appointed to be paid or performed by his Executor or by an Intestate in a Codicil or Last Will wherein no Executor is appointed to be paid or performed by an Administrator The Word Devise is specially appropriated to a Gift of Lands The Word Legacy to a Gift of Chattels though both are used promiscuously For a Devise is said to be where a Man in his Testament giveth or bequeatheth his Goods or his Lands to another after his decease Observe it is formerly said That a Legacy is a particular thing given by last Will and Testament For if a man dispose or transfer his whole Right or Estate upon another That according to the Civil Law is called Haereditas and he to whom it is so transferr'd is termed Haeres but at Common Law he is the Heir to whom all a mans Lands and Herediditaments do descend by right of Blood And by the same Law the Word Devise from the French Deviser is properly attributed to him that bequeaths his Goods by his last Will or Testament in writing the Reason being for that those Goods that now appertain only to the Devisour are by this act distributed and divided into many parts 2. To the giving of Legacies or to the making of a good and sufficient Devise there are several things Required The Person of the Devisor must be Legally qualified to Devise the thing Devised must be such as is Legally Devisable The Devisor at the time of making the Devise must have Animum Testandi That the Devisee or Legatary be in his Person such as is capable of taking by way of Devise That there be no Co-action on the Testator but that his Will be free and independent without fear force or flattery or other Sinister Contrivances That the Devise be made in that due manner and form as it ought to be That the thing Devised be Devised upon none other then if any Lawful Terms and Conditions That the words of the Devise be such as do clearly declare the Mind and Intention of the Devisor That Probate be made of the Testament after the Devisors death And in case it be of Land then that the Devisor be solely seized thereof in a Fee-simple Estate and not joyntly with another and that the Testament wherein such Devise of Land is be made in writing 3. To find out the Testators mind and meaning which is the very Index of the Testament the time of making thereof is regularly more considerable in point of Legacies then the Time of the Testators death