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 Codicâ—â— 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 â—â—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 Quotuplâ—x Perk. Sect. 476. Coo. super Lit. â—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 â—â—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 promiscuousâ—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. 7â— 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 â—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. Brâ— 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
2. 55. Testament of her husbands goods and the husband doth after her death connive at the Probate and deliver the goods accordingly hereby the Testament of the wife is become good but if an Infant or mad man make a Testament in the time of his Infancy or madnesse and after the Infant or mad man become of full age or sober before his death it seemes these Testaments are void And yet if the Infant at his full age or the mad man when he is sober make a publication of this Testament it may perhaps bee good If a man make a former and a latter Will and by this latter the former is revoked and after the Testator declare himself that the Perk Sect. 479. Coo. 〈◊〉 61. Plow â—44 former shall stand by this the former that was void before is now become good againâ— And yet if a man make a Will that is void and it be proved after his death this Probate will not make it good but it doth remaine void as it was before If a Feme sole make a Will and then take a husband whereby the Will is countermanded and so become void if her husband die so that she become sole againe this accident will not make the Will good againe but it doth remaine void still but perhaps by a new publication after shee doth become sole it may become good againe See more infra at Numb 11. To the making of a good and sufficient Devise these things are 7. What shall be said a good and sufficient Devise or Legacy or not â—ee before at Numb 4. requsiite 1. That there be a devisor and that he be a person able to devise and that both in respect of the condition of his owne person and of the thing whereof the Devise is made 2. That there be a Devisee and that hee bee a Person capable and able to receive the thing devised either at the time when the Devise is made or at least when the Devise is to take effect 3. That the Devisor have at the time of the devise made animum tostandi i. a mind to make a devise 4. That the Will of the Devisor be free and not drawn or coacted by fraud slattery feare or the like 5. That the Devise be made in due manner and forme 6. That the thing devised be a thing devisable 7. That it be devised First in respect of matter touching the Devisor and who mâ—y be a Devâ—â—â—r upon lawfull termes and conditions 8. That there be words sufficient Perk. Sect. 40â— See before at Numb 4. and after at Numb 17. to make his mind known 9. That it bee proved after the death of the Devisor 10. And if it be a Devise of land it is further required that the Devisor be solely seised of the land and not jointly seised with another and that he be seised of an eâ—â—ate in â—eesâ—mple and that the Devise be in writing And for the first of these it is to be known that whosoever may make a Testament may make a devise of the same thing of which he may make a Testament Et sic è converso And whosoever is disabled to make a Tâ—stament is disabled to devise by such a Testament And therefore Inâ—ants may not devise their lands untill they be 21 yeares of age nor their goods and chattels untill they be 14 yeares of age or as some say untill they be 18 yeaâ—es of age a Coo. super Litt. 110. 4. 61. â—â—oo Devise 32. Women that have husbands cannot devise their lands to their own husbands or others either by or without their husbands consent albeit there be a custom to enable them thereunto but all such devises are void b Perk. Sect 496. And Spirituall persons as Archbishops Bishops Deanes Archdeacons Secondly in respect of the matter touching the Devisee And who may be a Devisee And by what name Prebends Persons Vicars or any member of a Corporation may not devise the lands or goods they have in the right of their churches and Corporations And for the second thing this is to bee known 1. that regularly whosoever may be a Grantee may be a Perk. Sect. 50â— 510. Swinb 212. see infra aâ— Numb 18 Devisee or Legaâ—ee And therefore a Devise made to any person or persons male or female children or strangers bondmen or freemen Lay men or clerks debtors or creditors Infants or men of full age women sole or covert Colledges Universities Corporations or the like are good But it is said that if any Legacy be given to an Heretick Apostate Traitor Felon Excommunicate person Out-lawed person Bastard unlawfull Colledge Libelier Sodomite Usurer Recusant convict it is void by the Civill Law except it be in some speciall cases And yet it seemes a Devise of lands to any such person is good within the Statute of Wills c Dâ—er 303. 304. B. R. Curia Mic. 13. 〈◊〉 A Devise to an Infant in the womb of its mother at the time of the death of the Testator is void d New Termes of the Law â—it Devise See infra Numb 11. And yet if a man devise to such an Infant and hee happen to bee borne before the death of the Testator it seemes in this case the Devise is good for it is a rule e 9. Ia. B. R. That the Devisee must be capable of the thing devised at the time of the death of the Devisor if it be then to take effect in possession or if it be a remainder he must be capable of it at the time when the remainder shall happen or otherwise the Devise is void f Litt. sect 168. Litt. Broo. sect 55. And a man may devise his lands goods or chattels to his own wife as well as to any other 2. But he that may be thus a Devisee and is capable of a thing devised must be certainly named and described â—ncertainty for if a Devise be to a person altogether incertaine the Devise is altogether void g M. 19. Iâ— Curia B. R. Crumpe versus Bodie And therefore if I give my land to my best friend or to my best friends these are void Devises So if I give my land to a Vicar and say not to what Vicar this Devise is void and no averment will help in this case h Coo. 6. 68. Swinb 293. 29â— 295. 296. If one have two Averment sonnes of one name called I S and he devise to his sonne I S without any distinction it seems this Devise is void for uncertainty but in this case perhaps an averment which son is meant may help So if one give to I S 20l. and there be two or more of that name this Devise is void except it may be proved by some thing which of them he meant So if one say in his Testament I give to one of the world 10l â—his Devise is void for incertainty So if one give him 10l whose name is written in a
if the feoffee shall Co. 5. 96. super Lit. 208. 207. pay to the feoffor tenne pound such a day that then he shall have By and to whom money shall be paid upon a condâ—tion the land to him and his heirs otherwise that the feoffor shall reenter or if it be made on condition that the feoffee shall pay tenne pound to the feoffor such a day and before the day the feoffee sell the land in this case the seller or the buyer either of them may tender the money at the day and this will be a good performance of the condition for he that hath interest in the land on the one side or in the condition as party or privy on the other side may tender and performe the condition to save the estate If lands be mortgaged or which is all one if a feoffement be Lit. Sect. 534. 537. 15 H. 7. 2. Co. super Lit. 206. made of lands on condition that if the mortgagor or feoffor pay tenne pound to the feoffee such a day that then the estate shall be void before the day the mortgagor or feoffor die in this case the heire or executor of the feoffor the Ordinary the Gardian in Chivalry or Socage of the heire of the feoffor or any other by either of their commandement precedent or assent subsequent may pay this money at the day and payment or tender of it by either of them at the day is a good performance of the condition * Lit. Bro. Sect. 12 5. And so also it seemes is the law upon a devise of land to I S paying to Testament I D twenty pound if I S die his heire or executor may pay the twenty pound and this is a good performance of the condition But in these cases if a stranger of his owne head without any such commandement or agreement pay the tenne pound this will be no good performance of the condition And yet perhaps if the party Lit. Sect. 337 that is to pay it be an Ideot the payment or tender by any one in his behalfe shall be a good performance of the condition And if a feoffement be made on condition that if the feoffor pay tenne pound to the feoffee that the estate shal be void no time is set for the payment of this mony the feoffor die before any payment or tender made in this case his heire cannot tender it and so perform the condition If a feoffement be made on condition that if the feoffor and Co. super Lit. 207. Bro. Condition 109. I S pay tenne pound such a day the feoffement to be void and the feoffor die before the day and I S alone pay it this is a good performance of the condition If a feoffement be made on condition that if the feoffor pay to the feoffee or his heires tenne pound such a day and before the day Co. super Lit. 210. 5. 96 Dier 181. 101. Co. 6. 69. Lit. Sect. 339. the feoffee doth grant the land away to another in this case the money may be paid to the feoffee himselfe or if he be dead to his heires and this payment is a good performance of the condition And if the words of the condition be That if he pay to the feoffee his heires or assignes c. in this case payment to either of them is a good performance of the condition so as if in this case the feoffee make a feoffement over it is in the election of the first feoffor to pay the money to the first or second feoffee and if the first feoffee die to pay it to his heire or the second feoffee But payment to an executor or administrator in this case is not a good performance And yet if the words of the condition be that if he pay to the feoffee without words heires executors c. tenne pound such a day in this case the payment may be made to the executor or adminstrator of the feoffee after his death and such a payment is a sufficient performance of the condition And if the words of the condition be that if the feoffor pay to the feoffee his heires executors or administrators c. in this case payment to either of them is a good performance of the condition But payment to an assignee in this case is not good And if the words be that if he pay to the feoffee and his heires c. in this case payment to his executors or to his assignes is not a good performance of the condition So that in all these cases it seemes for the person to whom payment is to be made the words of the condition are precisely to be pursued If a feoffement be made on condition that if the feoffor shall To tender money Pas 9 Jac. 5. Sir Richard Lees case tender twelve pence to the feoffee such a day the feoffement to be void and afterwards the feoffee is disseised of the land and after the feoffor doth tender the twelve pence to the feoffee at the day this is a good performance of the condition If a feoffement be made to two men on condition that they To reinfeoffe shall reinfeoffee the feoffor or make a lease to him by a day and before Dier 69. 41 E. 3. 25. the day one of them die and the survivor doth reinfeoffe or make the lease this is a good performance of the condition And so also it seemes the law is if both the feoffees be living for by his owne acceptance it seemes he hath dispensed with the condition and so cannot enter for the breach of it If a feoffement be made on condition that the feoffee shall infeoffe Plow 23. 3 H. 7. 4. 21 H. 6. 10 the feoffor of the Manor of Dale by such a time and before the time appointed the feoffee doth grant a rent charge out of the Manor to a stranger and then at the time appointed makes a feoffment of the Manor according to the condition in this case this is a good performance of the condition But if in this case the feoffee before the time appointed grant away to a stranger twenty acres parcell of the Manor and then doth make a feoffement of the Manor according to the condition this is no good performance of the condition And if a feoffement be made on condition that the feoffees or lessees in trust of such land shall grant an Annuity out of it and some of them only doe grant this Annuity this is no good performance of the condition If there be a feoffement made upon condition that the feoffee 44 E. 3. 22. To make a lease shall make a lease of land to the feoffor for life the remainder to I S in fee and the feoffee make a lease to the feoffor for life and after by another deed doth grant the reversion to I S this is a good performance of the condition If a feoffment be made upon condition
that hath no title and in the second case any person that shall claim under another and hath title or that shall claim under the lessor claim or enter or otherwise disturbe the lessee this is held to bee no breach of the covenant Sed quere of the first case for herein some conceive a difference Co. 4. 80. Dier 328. Per Furner at Lent Assise Glouc. 23 Car. betweene a covenant in deed and a covenant in law and that howsoever the covenant in law is extended only to evictions by title yet that the covenant in deed shall be extended further And therefore that if A make a lease for years to B and doth covenant that B shall quietly enjoy it during the term without the interruption of any person or persons that if a stranger in this case that hath no right doth interrupt B that he may have an action of covenant as when such a promise is by word an action of the case will lie upon it And if the lessor covenant with his lessee that he hath not done Curia Jervis versus Peade Mich. 40. 41 El. B. R. Action of the case any act to prejudice the lease but that the lessee shall enjoy it against all persons in this case these words against all persons shall refer to the first and be limited and restrained to any acts done by him and no breach shall be allowed but in such an act Co. 5. 17. 22 H. 6. 52. Co. 4. 80. Dier 257. The covenant in law upon the words Demise or Grant also for the quiet enjoying of the thing demised is generall against all persons that have title during the Terme and extendeth to the heir after the death of the lessor as against himself onely and shall charge the Executors or Administrators for any disturbance in the Executors life of the covenantor but not for any disturbance afterwards he that doth sue therefore upon this covenant must shew that he was molested or evicted by one that had an elder title If one doth covenant to enter into bond for the quiet enjoying of Co. 5. 78. land and doth not say what bond in this case it shall be taken to be a bond of so much as the land to be enjoyed is worth A warranty in a lease for years shall be taken for a covenant for Fitz. Covenant 21. â—ee before 7 E. 4. 6. Bro. Grant 164. quiet enjoying If one covenant with another to acquit him of all charges issuing out of the land and after by Parliament the tenth part of the To free from incumbrances and charges value not of the issues of all lands are given to the King in this case it seems the covenant shall not extend to this But if the Parliament had given the tenth part exituuÌ„ terre the covenant would have extended to this as well as to rents commons and such like things wherewith the land is charged If A covenant with B to make such assurance or such further assurance Co. 5. 19. of land as the Counsel learned in the law of B shall advise To make assurances of land in this case albeit B be learned in the law himself yet he may not devise this assurance but some other learned in the law must advise otherwise A is not bound to make it And if A covenant with B to make such assurance of land by Co. 5. 19 20. Dier 361. per Just Bridgeman a day as B or his heirs shall devise in this case B or his heires must first devise the assurance before A is bound to doe any thing And therefore if one sell land for money and the vendee doth covenant to make back to the vendor and his heirs such assurance of the land as the Counsell of the vendor shall devise within one yeare provided that if the vendee make default in the assurance then if he doe not pay twenty pound to the vendor that then the vendee shall stand seised to the use of him and his heires and the vendor tender no assurance the twenty pound is not paid in this case the land is in the vendee freed from the covenant And therefore in these and such like cases where a man is to make such assurance as A or his heirs or their Counsel shall devise A or his heirs must take care that in time they have an assurance reasonably drawn and ready to be sealed and to tender it to him that is to seale it for untill then there can be no breach of covenant But if A bee bound to make a feoffement lease or other assurance of land to B by a day in this case B need not to demand it or tender the assurance for A at his perill must doe it otherwise he doth breake his covenant a Trin. 20 Jac. B. R. Steed versus Spike And yet if in this case B doe get the assurance drawn and tender it to A it seemes A is bound to seale it or otherwise hee doth breake his covenant * Co. 5. 20. 22. And if the case bee so that A is bound to make such assurance to B by a day at the costs of B in this case A must doe the first act viz. notifie to B what manner of assurance he will make that he may know what money to tender and when the money is tendred A must see that hee doe make the assurance accordingly at his perill and if he fail in either of these the covenant is broken If A be bound to make such assurance to B as by the Counsell Co. 5. 20. learned of B upon request made shall be devised in this case it is sufficient if the advise be given to B and that he do make it known to A and it is not needfull it be given to A immediately And if Dier 338. Co. 2. 3. A covenant with B to make such assurance to B as I S shall devise and I S doth devise a reasonable deed of bargain and sale and hee tender it to A to seal in this case A is bound to seal it presently and he shall not have time to advise with his Counsell upon the deed but if he be illiterate and cannot read the deed he may refuse and delay to seal it untill he can get some body to reade it which he must doe as soon as he can And if one bee bound by Experientia covenant to make an assurance upon request the covenantee must request and tender an assurance also and he must tender such a one also as is reasonable otherwise the covenant will not bee broken by the refusull or neglect to doe it as if one be bound to make a feoffment to A upon request in this case A must get a naked deed of feoffment drawn without warranty or covenants and tender it And if the covenant be to make such a lease as the former in this case the second lease must not differ from the former
being made and taken by their atturnies or deputies that have a good authority and do well pursue it And therefore if the conveyance be made of divers lands and they lie in one county and a warrant of atturny is made to give livery generally and the atturny doth make it in one part of the land in the name of all the rest this is a good livery Et sic de similibus If a man be seised of black acre and white acre and he make a Co. super Litt. 52. deed of feoffment of both these acres and a letter of Atturney to enter into both these acres and to deliver seisin of both of them according to the form and effect of the deed and he doth enter into black acre and deliver seisin secundum formam cartae in this case the livery of seisin is good albeit he doe not enter into both the acres nor into one acre in the name of both And if the feoffment bee made to two or more and the warrant of Atturney is to make livery to them both and the Atturney doth make livery of seisin to one of the feoffees secundum formam effectum cartae in this case the livery is good to both and yet he that is absent may wave the livery And yet if a man be disseised of black acre and white and a warrant Co. super Litt. 52. 258 Perk. Sect. 187 188 189 of Atturney is made to one to enter into both these acres and to make livery and the Atturney doth enter into one acre onely and make livery of seisin there secundum formam cartae in this case the livery of seisin is void for all for in this case he doth lesse then his authority So if a man make a letter of Atturney to deliver seisin to I S upon condition and the Atturney doth deliver seisin absolutely this livery of seisin is void And so in all such like cases where the Atturney doth lesse then the authority and commandement all that he doth is void But for the most part where the Atturney doth that which he is authorised to doe and more also it is good for so much as is warranted and void for the rest And therefore if the letter of Atturney be to give livery of Perk. Sect. 109. Co. super Lit. 258. seisin to I S and the Atturney give it to I S and W S this livery is good to I S and void to W S. So if the letter of Atturney be to give livery of seisin of white acre only and he make livery of white acre and black acre also this livery is good for white acre and void for black acre So if the letter of Atturney be absolute and the Atturney give livery upon condition some hold this to be good and the condition to be void If a letter of Atturney be made to two jointly to make or take Co. super Litt. 49. livery of seisin and one of them alone doth it without the other this is a void livery But otherwise it is when it is made to two jointly or severally for there one of them alone may doe it If a letter of Atturney be to make livery of seisin after the death of another man and the Atturney doth make livery of seisin during that mans life this livery is void Litt. Sect. 359. Co. super Litt. 48. 122. Fitz. Estoppel 177. 7 Ed. 4. 25. Co. super Litt. 49. Fitz. feoffments faits 23. Livery of seisin is sometimes made single and without any relation to the deed whereby the estate upon which the livery is made is 11. How it shall enure and be taken and construed created at all and sometimes and most commonly it is made with reference to the deed in these or such like words secundum formam cartae In the first case the estate is oftentimes made upon the livery and then there may bee one estate contained in the deed and another made by the livery also there may passe more land by the livery then is in the deed and by this means when there is a fault in the deed so that the land will not passe by the deed it may perhaps passe by the livery but in this case then there must be apt words used in the making of the livery to create the estate also as well as to give the possession But where the livery of feisin is made with relation to the deed there it must take effect according to the deed or not at all for these words secundum formam cartae are to bee understood according to the quantity and quality of the effectuall estate contained in the deed And therefore if one make a deed of feoffment to another and in the deed there is contained no condition at all and when the feoffor doth make livery he doth make livery upon condition or if the deed contain an estate to him and his heirs and he maketh livery of an estate in taile or for life in these cases there doth passe nothing by the deed And yet if there be apt words used to create such an estate at the time of the livery made such an estate may be made by the livery without the deed and then the deed shall be void But if in these cases the feoffor say when he doth make livery on condition in taile or for life secundum formam cartae in this case there is a good feoffment made according to the deed and the additionall words are void So if a man make a lease for years and make livery secundum formam cartae this is but a lease for years still And if A give land to B To have and to hold after the death of A to B and his heires this is a void deed and therefore if the livery of seisin be made secundum formam cartae the livery of seisin is void also But if when he doth give livery of seisin he give it to him and his heires without these words secundum formam c. or if in the making of livery he say Here I deliver you seisin of this land To have and to hold to you and your heirs for ever or the like this may make a fee simple And so if one make a deed of feoffment of two acres and after make livery of feisin of four acres in this case if there bee words in the livery of seisin sufficient to make a new estate the other two acres may passe also If A by deed give land to B to have and to hold after the death Co. 2. 55. 5. 94. Greenewoods case B. R. Mich. 17 Jac. of A to B and his heirs this is a void deed and therefore if upon this deed livery of seisin be made before the day by the party himself or at or after the day by his Atturney secundum formam effectum cartae the livery is void also for it cannot enter so And yet if a lease be made for life
to come at the time of his death by this the whole estate and interest of the grantor into the land doth passe presently by these words in the premisses of the deed And if in this case the lessee for an hundred years make a lease of the land to have and to hold after his death for an hundred years this will bee a good lease for as many of the first hundred years as shall be to come at the time of his death If A make a lease to B for ninety years to begin after the death Per Justice Bridgeman of A on condition to be avoided upon the doing of divers acts by others and afterwards makes another lease of the land Habendum after the determination or redemption of the former lease it seems this is a good lease and certain enough But if a lease be made to A Co. 4. 153. Dier 253. for eighty years if he live so long and if he die within the said term or alien the premisses that then his estate shall cease and then he doth further by the same deed grant and let the premisses for so many years as shall then remain unexpired after the death of A or alienation to B for the residue of the said term of eighty years if he shall live so long in this case the lease to B is void for after the death of A the term is at end but if he say for the residue of the eighty years it is otherwise If A doth make a lease of land to B for so many years as B hath Plow 273. 523. 522. F. N. B. 6. N. 14 H. 8. 11. Co. 6. 35. in the Manor of Dale and B hath then a lease for ten years of the Manor of Dale in this case this is a good lease for ten years But if A make a lease of land to B for so many years as the land B hath in execution shal be in execution this lease is void for incertainty And if a lease be made during the minority of I S or untill I S shall come to the age of twenty one years these are good leases and if I S die before he come to his full age the lease is ended But if a lease be made to another until a child that is now in its mothers belly shal come to the age of twenty one years this lease is not good And if a lease be made for so many years as I S shall name in this case if I S do name a certain number of years in the life time of the party lessor this is a good lease But if a lease be made for so many years as the executor of the lessor or of the lessee shall name this lease is void If a man make a lease for twenty one years if I S live so long or Co. super Liâ— 45. Plow 27. if the coveroure between I S and D S shall so long continue or if I S shall continue to be Parson of Dale so long these and such like leases are good But if A make a lease to B for so many yeares as A and B or either of them shall live not naming any certain number of years this cannot be a good lease for years So if the Parson of Dale make a lease of his glebe for so many years as he shall be Parson there this is not certain neither can it be made so by any means And yet if a Parson shall make a lease from three years to three years so long as he shall be Parson this is a good lease for six years if he continue Parson so long and for the residue void for incertainty So if I make another a lease of land untill he be promoted to a Benefice this is no good lease for years but void for incertainty If I have a rent-charge of twenty pound per annum and let it to Co. 6. 35. 14 H. 8. 10. Plow 274. another untill he have levied an hundred pound this is a good lease for five years But if I have a peece of land of the value of twenty pound per annum and I make a lease of it to another untill he shall levy out of the profits thereof an hundred pound this is no good lease for years but void for incertainty But here note in all these cases of incertain leases made with such Note limitations as aforesaid as untill such a thing be done or so long Plow 27. Co. 6. 35. as such a thing continue c. that if livery of seisin be made upon them they may be good leases for life determinable on these contingents albeit they be no good leases for years And in some speciall cases a lease may be good notwithstanding Co. super Lit. 46. 10 Ed. 3. 26. some incertainty in the continuance of it for a lease may cease for a time and revive again as if tenant in tail make a lease for years reserving twenty shillings and after take a wife and die without issue in this case as to him in reversion the lease is meerly void but if he indow the wife of the tenant in tail of the land as to the wife it is revived again So if tenant in taile make a lease for yeares rendring rent and die without issue his wife enceint with a sonne and he in reversion enter in this case as against him the lease is void but after the sonne is born the lease is good again if it be within the Statute So if tenant in fee simple take a wife and then make a lease for years and dieth the wife is indowed in this case she shall avoid the lease but after her decease the lease shall be in force again If a lease be made for life or years to A and after the lessor doth 4 In respect of another lease then in being of the same thing Plow 433. â— 421. 273. Co. 1. 155. Bro. Leases 73. 10. Plow 521. Co. 4. 58. make a lease for years by word or in writing to B regularly this concurrent lease to B is a good lease at least for so many yeares of the second lease as shall be to come after the first lease is determined according to the agreement as if the first lease to A be for twenty years and the second lease to B be for thirty yeares and both begin at one time in this case the second lease is good for the last ten years And yet the reversion will not passe without the atturnment of the tenant and therefore if any rent be reserved on the first lease the second lessee shall not have it untill the first lessee doth atturn But if the second lease be for the same or for a lesse time as if the first lease be for twenty years and the second lease be for twenty or for ten years to begin at the same time these second leases are for the most part void And yet herein a difference Dier 58. 356
Lit. 276. them this shall enure to both But if the Kings tenant bee disseised by two and he release to one of them this shall not enure to the other So if two jointenants make a lease for life and then disseise the tenant for life and he release to one of them in this case his companion shall have no benefit by it If tenant in fee simple be disseised by two or two doe abate or Lit. Sect. 472. 522. intrude and he doth release to one of them the other shall have no benefit by this But if tenant for life doe after a disseisin done to him release to one of the disseisors this shall enure to both And if two disseisors be and they make a lease for life or Co. super Lit. 276. years and after the disseisee doth release to one of the disseisors this shall enure to them both and to the benefit of the lessee for life also And if lessee for years be ousted and he in reversion disseised and the lessee release to the disseisor the term of years is hereby extinct and the disseisee may take advantage of it and enter presently But if two jointenants in fee be disseised by two disseisors one of the disseisees release to one of the disseisors all his right this shall enure to the other for this extendeth but to a moity If a release be made by a woman of her dower to the guardian Co. super Lit. 266. in Chivalry this shall enure to the heir and he may take advantage of it If tenant for life be disseised by two and he in the reversion and the tenant for life join in a release to one of the disseisors Co. super Lit. 276. this shall not enure to the other But if they doe severally release their severall rights their severall releases shall enure to both the disseisors If mortgagee upon condition after the condition broken be Co. idem disseised by two and the mortgagor that hath the title of entry doth release to the one disseisor this shall enure to both And like law is for an entry for mortmain or a consent to ravishment c. If there be Lord and two jointenants and the Lord release to Co. super Lit. 269. one of them this shall avail his companion If tenant in fee simple make a feoffment in fee and after the Lord release to the feoffor this shall not enure to the feoffee to extinguish the seigniory But if he release to the feoffee this shall enure to the feoffor to extinguish the seigniory If there be Lord and tenant and the tenant make a lease for Co. super Lit. 279. life the remainder in fee and the Lord release to the tenant for life the rent is hereby wholly extinguished and he in remainder shall take advantage of it as when the heir of a disseisor is disseised and the disseisor makes a lease for life the remainder in fee and the first disseisee doth release to the tenant for life this shall enure by way of extinguishment to him in remainder viz. to the lessee for life first and after to him in remainder If two tenants in common of land grant a rent of forty shillings Co. super Lit. 267. out of it and the grantee release to one of them this shall not enure to the other But if one bee tenant for life of lands the reversion in fee to another and they join in the grant of a rent out of the lands and the grantee release either to the tenant for life or to him in reversion this shall enure to the other and extinct the whole rent If two men gain an advowson by usurpation and the right Co. super Lit. 276. Patron release to one of them this release shall enure to them both If two be bound jointly and severally in any obligation or Co. 5. 59. super Lit. 232. Lit. Sect. 376. other especialty and the obligee c. release to one of them this shall enure to discharge the other also if it be a good release as to him that makes it But otherwise it is in case of a release made by the King And if two do a trespasse to another together and he to whom Prerogative it is made doth release it to one of them this shall enure to discharge the other If husband and wife and I S purchase to them and the heirs To husband and wife Dier 319. Co. super Lit. 273. 276. 14 H. 8. 6. of the husband and after I S release all his right in the land to the husband the wife shall have no benefit by this but it shall enure to the husband alone And if there be two women joint disseiseresses the one take a husband and the disseisee release to the other in this case the husband wife shall take no benefit by this And if the disseisee release to the husband this shall enure to him and his wife and the other woman And if one that hath a rent out of my wives land release it to me and my heirs this shall enure by way of extinguishment and my wife will have advantage of it And yet if the words be grant and release the rent to the husband and his heirs in this case the husband may take as a grant if he will But here note in all these cases of releases when one man Co. super Lit. 232. Note will take advantage of a release made to another he must have the release to shew and plead If I bee disseised and I release to the disseisor all actions I Co. 10. 51. 22 H. 6. 1. have or may have against him this is but personall and shall not be expounded to bar my heir after my death of his remedy neither will it bar me of my remedy against his heir after his death So if I deliver goods to another and afterwards I release to him all actions and then he die by this I am not barred so but I may sue his executors See more in Confirmation chap. 18. Numb 7. A release of all actions without any more words is better Co. 8. 153. 5. 28. 70. Kelw. 113 Co. super Lit. 286. 290. 292. 289. Lit. sect 492. 505 506. 512 513. Bro. stat 39. 2. In respect of the thing released Of all actions then a release of all actions reall onely or a release of all actions personall onely for by a release of actions or a release of all manner of actions without more words are released and discharged all reall personall and mixt actions then depending and all causes of suit for any reall or personall thing as Appeals for the death of an ancestor conspiracies suits by Scire facias to have execution of a Judgement detinue for charters And if two conspire to indite me and I release to them all actions and after they goe on with their conspiracy by this release I am barred to
it it shall be deemed in earnest but if it bee by way of discourse only or of somewhat â—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 circuâ—vented by fraud or overcome by some immoderate flattery the samâ— 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 â—eaâ—e is past confirm the Testament in this case perhaps the Testament may beâ— 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 exâ—â—pt it be in case where the â—latterer doth first beate or â—hreaten him or put him in fear or to his â—lattery joineth fraud and deceit or the Testator is a person of weak judgement or under the danger or government of the â—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 priviâ— 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 suspiâ—ious But as touching these two last things Quâ—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 Execuâ—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 47â— 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 â—he that doth write the Will cannot hear Adâ—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 prâ—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 â—6 A good Secondly by cancelling oâ— 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 pâ—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 sâ—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 â—â—teration of the estate oâ— the Testaâ—â—â—â— 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 â—â—o 4. 62. memory make his Testament and after become inopsmentis as â—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 alâ—â—â— it only to aâ—ter it when the Testator is hindered in his intention Swinb parâ— 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 hiâ— 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 paâ—â— 7. â—ect 11. Perk. Sect. 479. another of the same date for if two Testaments be found after the Fifthly by making another of the sâ—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 Caveâ—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 â—acto And where not Perk. Sect. 501. Coo. 〈◊〉 99.
devises if the husband and wife have no children at the time of the devise is created an estate taile and if they have any children at the time of the devise then hereby is created an estate for all their lives onely in joyntenancie And if land be devised to A for life the remainder to B and the heires of his body the remainder to I S and his wife and after to their children by this devise I S and his wife have estates for their lives onely and their children after them estates for their lives joyntly And albeit they have no children at the time yet every child they shall have after may take by way of remainder And so also it seems is the law upon such a limitation by Deed Deed. If lands be devised to I S and his heires males or his heires females without saying of his body by this devise I S hath Deed Litt. Sect. 31. 9. H. 6. 25. 27. H. 8. 27. an estate taile But if such a limitation be by deed it is a Fee-simple If one have two sonnes and devise White Acre to his eldest sonne and his heires and Black acre to his youngest sonne and his heires Hill 22. Iac. B. R. Daniels case and if either of them dye without issue then that the other shall be his heire by this devise either of them hath an estate taile and no Fee-simple If one have land in Kent in W S and T and have one male child Adiudge M. 9. Iac. Wallops â—ase and a daughter and his brother hath three children B C and D and he devise his land thus Item I give my land in Kent to my male childe and his heires and if he dye without heires of his body that that the land in W shall go to B and his heires Item I will my land in S to C and his heires and my land in T to D and his heires in this case and by this devise the male child of the Devisor hath an estate taile in all the lands and after his death without heires it shall remaine according to the Will So that if one devise his land to his eldest sonne and his heires and if he dye without heires of his body that it shall remain to his youngest sonne and his heires by this devise the eldest sonne hath an estate taile and the youngest sonne the Fee-simple If one devise his land to his sonne W and if he marry and have any issue male begotten of the body of his wife then that issue to Coo. 9. 127 have it and if he have no issue male then to others in remainder by this devise it seems W hath an estate taile to him and the issues male begotten on the body of his wife If one devise White Acre to I S and the heirs of his body and then after saith thus and I will that I D shall have Black Acre in the same Perk. Sect. 561. 20. H. 6. 36. manner that I S hath White Acre by this devise I D hath an estate tail in Black Acre as I S hath in White Acre Et sic de similibus * Tr. 30. Eli. And if one devise White Acre to I S and then say Item Black Acre to I S and the heires of his body by this devise he hath an estate taile in both Acres If one devise his land to his wife for yeares the remainder to his younger sonne and his heires and if either of his two sonnes dye Dyer 122. without issue c. that it shall remaine to his daughter and her heires and the younger sonne dye in the life time of the Father and after the Father dyeth it seemeth by this devise the elder son shall have the land in taile If one devise his land to his wife for life and after to his sonne Adiudge Tri. 7. Iac. Co. B. Robinsons case and if his sonne dye without issue having no sonne or having no male then that it shall goe to another by this devise the sonne hath an Estate taile to him and the heires males of his body If lands be given to a man and woman unmarried and the heires of their two bodies or to the husband of A and wife of B and the Coo. super Litt. 20. 26. Plow 35. heires of their two bodies by these Devises are made estates in Taile If a man devise White acre to his three brothers and Black acre to C his brother so as he pay 10l to I S and otherwise that it shall remain Dyer 333. to the house provided that the same lands be not sold but go unto the next of name and blood that are males if it may be it seemes that by this devise C hath an estate tail in black acre and that if he die without issue it shall go to the three other brothers and their heires males in taile one after another and that white acre also is so entailed in every of their parts For the words shall remaine to the house shall be construed to the most worthy of the Family and the words that are males shall be construed in the future tense If land be devised to I S and the heires of his body and that if he die that it shall remain to I D by this Devise I S hath an estate Adiudg 14. Eliz. Coo. B. Trin. 9. Iac. B. R. Taile and the latter words do not qualify the former but I D must attend his death without heires of his body before he shall have the land If land be devised to I S and the heirs males of his body and if it Dyer 171. happen that he dye without heire of his body that it shall go to H and his heires by this Devise I S hath an estate to him and the heires males of his body and the subsequent words do not alter nor enlarge the estate If land be devised to I S and E his wife and to the heires of Coo. super Litt. 26. the body of the Survivor of them by this Devise the Survivor shall have a generall estate Taile If land be devised to I S and the heires he shall have by A his wife by this Devise I S hath a Fee Taile and not a Fee simple as Coo. super Litt. 26. Deed. he hath in case of such a limitation by deed If land be devised to I S and to the heires of the body of such a woman by this Devise I S hath an estate Taile and begotten Coo. super Litt. 26. shall be intended begotten by him If one devise land to his sonne and his heires and that if his sonne die within the age of 21 yeares or without issue that the land shall Adiudg M. 37. 38 Eliz. Sale versus Geâ—rard remain over and the son dieth within age having issue in this case and by this Devise the sonne hath an estate Taile and or in this place shall be taken for and If land
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. Swâ—b 29â— 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 Apostaâ—e Traitor Felon Recuâ—ant Swinb 2â—â— 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 â—roo Non-ability 18. Fitz. Excomengment â—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. â—8 1â— Dyer 〈◊〉 19 H. 8. 8. 21 H. 6. 6. Fitâ— Executor 43. â—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 â—ase an Administâ—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 inâ—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 voâ—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. Bâ—oo Sect. 276. See infra Numb the Diocesse where the party whose goods are to be administred lived at the time of his deathâ— 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
And the executor or administrator of the Lord shall have Fines assessed upon the Tenants upon their admittances in the Lords time c Stat. 32. H. 8. cap. 37. Coo. 4. 48. Dyeâ— 575. And if I make a Fcoffment in Fee gift in tail or lease for life rendring Rent and the rent is behind and then I dye in this case the arâ—erages of Rent due to me in my life time shall go to my executor or administrator in the nature of a chattell So if a Rent be granted out of land to me in Fee-simple Fee-tail for life or years and it be not paid to me in my life time these arrerages shall go to my executor or administrator and not to any other d â— N. B. 120. L. And so also if a Parson have an annuity in Fee in the right of his Church and it be behind and the Parson dye in this case the executor or administrator not the successor of the Parson shall have the arrerages e Dyer 275. And if I be seised of land and possessed of a stock of cattell and let it to another for years and he covenant by the Lease to pay me and my wife our heirs and assignes 100l by the year during the term in this case after my death and my wives surviving me her executor or administrator and not my heir shall have this payment f Coo. 4. 63. And if one seised of land in Fee make a Feoffment of it to me excepting the trees and after grant me the trees for years or if he make me a Lease of the land first for years and after doth grant me the trees for a number of years to begin after the end of the term of the land in both these cases I have the trees in the nature of a chattell and if I dye my executor or administrator shall have them g Dyer 283. 34 H. 6. 27. And if a man grant to me the next Presentation to the Church of D in this case if I dye my executor or administrator shall have it as a chattell h See supra at Numb 7. And my wife shall have so much of her wearing apparell as is necessary and convenient for one in her estate and condition and therefore that shall not go to my executor But so much of her wearing apparell as she hath superfluous and more then necessary for her shall go to my executor or administrator after my death And the charters and evidences that do concern any of my chattels which my Broo. chatâ—els 12. executor or administrator is to have shall go with the same chattels So also any Charters whatsoever if they be pledged to me for money shall go to my executor or administrator untill the money be paid But otherwise those deeds and evidences that do belong to the heir as incident to the Inheritance shall not go to my executor or administrator after my death But matters of trust and such things as are personall as offices of trust wardships by reason of a Tenure in Socage or Jure naturâ— or the like shall not go to the executor or administrator after the death oâ— him that hath them So an Plow 29â— Coo. 3. 39. 9. 99. executor or administrator shall not have the grasse and trees growing on the ground no more then the soile or ground it selfe whereon they grow So an executor or administrator shall not have the Incidents of a house as glasse doores wainscot and the like no Kelw. 118. See before at Numb 7. more then the house it selfe nor pales wals stauks fish in Ponds Deere or Conies in Parkes Pigeons in Pigeon houses or the like If a Lease for yeares of land be granted to me and my heires Secondly iâ— respect of the case or to me and my successors and I dye my executor or administrator Coo. 10. â—7 Litt. Sect. â—40 Fitz. Accompt 56 F. N. B. â—20 and not my heire shall have this terme The same law is if a wardship or the next advowson of a Church be granted unto me and my heires or if a Covenant or an Obligation be made to me and my heires for in all these cases this is still a chattell in me that shall go to my executor or administrator and hee onely shall take advantage by it And if my heire or successor happen to get the Deed the executor or administrator may recover it from him And if a Lease be made to me for 20 years without naming my executors or administrators or assignes in the Lease in this case if I dye my executor or administrator notwithstanding shall have it during the terme h Coo. super Litt. 46. And if a Lease for years be made New termes of the Law tit assignes to a Bishop and his successors and he dye his executor or admistrator not his successor shall have it And if a man be possessed of a terme of yeares of land and grant it by deed or give it by Will to me and my heires or to me and my heires males or devise Coo. 895. 10. 87. Plow 524. it by Will to A for life the remainder to me and my heires in these cases I shall have these terms of years as chattels and after my death my executor or administrator shall have them h Litt. Sect. 740. And if a man grant a rent out of his land to me and my heires for 20 yeares and I dye my executor or administrator not my heire shall have this rent i M. 7. Ia. Co. B. Wats case Litt. Sect. 739. And if a rent bee granted to me my heires and executors during the life of I S and for one halfe yeare after and I dye in this case the half yeares rent shall goe to my executor or administrator and not to my heire And if I be seised Dyer 5. of land in Fee and make a Lease for years of it rendring rent and then devise this rent to a stranger and the devisee dye in this case his executor or administrator shall have it And if Lessee for life make a Lease for yeares absolutely this in Law is a Lease for so Coo. 7. 12. many yeares if the life so long live and shall go to the executor or administrator after his death If I have a box chest or trunk wherein my writings that doe Broo. Executors 145. 9â— Fitz. Executors 111. concern my inheritance do lie and the same is open and not sealed or locked in this case my Executor shall have it but if it be locked or sealed contra for then it shall goe to him that is to have the writings as incident thereunto And yet if there be any money plate or any other such like thing in the chest also my Executor shall have that thing The Incidents of a house as glasse-windowes annexed with Coo 4. 63. 21 H. 9. 26â— nailes or otherwise to the windowes the wainscot fixed by nailes skrewes or irons put