Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	debt_n	executor_n	testator_n	1,390	5	12.7600	5	false

Text snippets containing the quad

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

is or shall be due and not paide at the time of his death shall and maie haue an action of debt for all such arrerages against the tenant or tenants that ought to haue paide the saide rent or fee ferme so being behind in the life time of their testator or against the executors and administrators of the said tenants And also furthermore it shall be lawfull to euerie such executor or administrator of any such person or persons to whom such rent or fee ferme is or shall be due and not paide at the time of his death as is aforesaid to distraine for the arrerages of all such rentes and fee fermes vpon the landes tenements or other hereditaments which were charged with the paiment of such rents or fee fermes and chargeable to the distresse of the saide testator so long as the saide landes tenements or hereditaments continue remaine and be in the seasin or possession of the said tenant in demaine who ought immediately to haue paide the saide rent or fee ferme so being behinde to the saide testator in his life time or in the seasin or possession of any other person or persons claiming the said lands tenements and hereditaments onely by and from the said tenant by purchase gift or discent in such like maner forme as their said testator might or ought to haue done in his life time And the saide executors and administrators shall for the same distresse lawfully make auowrie vpon their matter aforesaid Prouided alwaies that this act nor any thing therein conteined shall not extend to any such mannour lordship or dominion in Wales or in the marches of the same whereof the inhabitants haue vsed time without minde of man to pay vnto euerie Lord or owner of such lordship mannor or dominion at his or their first entrie into the same any summe or summes of money for the redemption and discharge of all duties forfaitures and penalties wherewith the same inhabitantes were chargeable vnto any of the saide lordes auncestors or predecessors before his said entrie And further be it c. that if any man which now hath or hereafter shall haue in the right of his wife any estate of fee simple or fee taile or fee ferme and the same rents or fee fermes now be or hereafter shall be due behinde and vnpaide in the wiues life then the said husbande after the death of his saide wife his executors and administrators shall haue an action of debt for the said arrerages against the tenant of the demaine that ought to haue paid the same his executors or administrators and also the saide husbande after the death of his saide wife may distraine for the saide arrerages in like maner and forme as he might haue done if his said wife had beene liuing and make auowrie vpon his matter as is aforesaid And likewise it is c. that if any person or persons which now hath or heereafter shall haue any rentes or fee fermes for tearme of life or liues of any other person or persons and the saide rent or fee ferme nowe or hereafter shall be due behinde and vnpaide in the life of such person or persons for whose life or liues the state of the saide rent or fee ferme did depende and continue And if the saide persons doo die then he vnto whome the saide rent or fee ferme was due in forme aforesaide his executors or administrators shall and may haue an action of debt against the tenant in demain that ought to haue paide the same when it was first due his executors and administrators also distraine for the same arrerages vpon such lands and tenements out of the which the saide rentes or fee fermes were issuing and paiable in such like maner and forme as he ought or might haue done if such person or persons by whose death the aforesaid estates in the said rents and fee fermes was determined and expired had been in full life and not deade and the auowrie for the taking of the same distresse to bee made in maner and forme aforesaid Secondly † concerning the testator it shall be behouefull for thee that art desirous to bee resolued whether it were better to accept or refuse the executorship to inquire learne whether the same testator were executor or administrator to anie other person If he were executor then by the statutes of this realme v) Stat. 4. Ed. 3. an 25. c. 5. Idem iure ciuili in haerede haeredis L. 2. 3. de petic haered ff Contrarium in haerede executoris tàm iure ciuili quàm canonico Bar. alij in L. à filio ff de alimen leg gloss in c. fin de testa 6. verb. mortuo thou † being executor of an executor shalt haue actions of debts accountes and of goodes caried away of the first testator and execution of recognizances made in court of recorde to the first testator in the same maner as the first testator shoulde haue if hee were in life aswel of actions of the time past as of the time to come in all cases where iudgement is not as yet giuen betwixt such executors but the iudgement giuen to the contrarie in times past ought to stand in their force And on the contrarie the executor of the executor shal answere to others to whom the first testator was indebted as much as he shall recouer of the goods of the first testator euē as the first executor should doo if he were in full life But the goods which did belong to the first testator shall not bee put in execution for the debt of the second testator which goods the executor of the executor shall haue by relation to the first testator as immediately executor vnto him and not by relation to the second testator executor to the first testator x) Plowd in casu inter Bransby Grantham Atque ita soluitur nodus de quo Bar. alij in L. veluti ff de petic haered vtrum videlicet haeres haeredis succe dat priori testatori ex testamēto vel ab intestato nobis enim intelligitur succedere ex testamento vtcunque●on fuit in primo testamēto nominatus id quod disputandi rationem praebuit and so the propertie which the second testator had by the saide relation is taken away and is in such case as if the second testator had neuer beene executor y) Plowd vbi supr Howbeit this is to bee vnderstoode with this limitation viz. if there bee no executor of the first testator suruiuing For † if the testator did make diuerse executors whereof some be yet liuing that executor of the first testator suruiuing and the executor of his coexecutor cannot be ioined both together in one action z) Brook Abridg. tit execut n. 99. Contrarium in haeredibus constituit ius ciuile quo si aliquis ex haeredibus decesserit pluribus relictis haeredibus hi omnes accipere debent illampartem quae ad

said Registers scribes praisers sūmoners apparators nor to any other their ministers for the probation insinuation or approbation of any testamēt or testaments or for the registring sealing writing praising making of inuentaries giuing of acquittances fines or any other thing concerning the same shall take or cause to bee taken of any person or persons but onely three shillings sixe pence and not aboue whereof to be to the Bishop Ordinarie or to any other person or persons hauing power and aucthoritie to take probation and approbation of any testament or testamentes for him or his ministers two shillings sixe pence and not aboue and twelue pence residue of the same three shillings sixe pence to the scribe for the registring of the same And where † the goods of the testator or person or persons so dying doo amount ouer and aboue the cleare value of fortie pound sterling that then the Bishop nor Ordinarie nor other person or persons nowe hauing or which hereafter shal haue power or aucthoritie to take probate of testaments as is aforesaid by him or themselues or any of his or their registers scribes praisers sūmoners apparators or anie other their ministers for the probation insinuation and approbation of any testament or testaments or for the registring sealing writing praising making of inuentaries fines giuing of acquittances or any thing concerning the same probate of testaments shall from the saide first day of Aprill take or cause to be taken of anie person or persons but onely fiue shillings and not aboue whereof to be to the saide Bishop Ordinarie or other person hauing power to take the probation of such testament or testaments for him and his ministers two shillings sixe pence and not aboue and two shillings six pence residue of the same fiue shillings to be to the scribe for registring of the same or else the same scribe to bee at his libertie to refuse two shillings sixe pence and to demaund and haue for writing of euerie ten lines of the same testament wherof euery line to containe ten inches in length one penie And in † case any person or persons at any time hereafter require a copie or copies of the said testamentes so proued or of the said inuentarie so made that then the saide Ordinarie or Ordinaries and the other persons hauing aucthoritie to take probate of testaments or their ministers shall from time to time with conuenient speede without any frustratarie delay deliuer or cause to be deliuered a true copie or copies of the same to the saide person so demaunding them or any of them taking for the serch for the making of the copy either of the said testament or inuentarie but only such fee as is before rehearsed for the registring of the said testament or else the said scribe or register to be at his election to demaund haue and take for euery ten lines thereof being full proportion before rehearsed one penie Prouided alwayes that where any person or persons hauing power or aucthoritie haue vsed to take lesse summes of mony then is abouesaid for the probate of testaments commissions or administrations or other cause concerning the same shall take or receiue such summe or summes of mony for the probate of testaments and commissions of the administrators and other causes concerning the same as they before the making of this acte haue vsed to take and aboue And it is enacted † that euerie Bishop Ordinarie Archdeacon Chancellor Commissarie Officiall other person and persons hauing or they which hereafter shall haue aucthoritie to take probate of testamēts their registers scribes praisers apparators and all other ministers what soeuer they be that shall do or attempt to bee done and attempted against this acte or ordinance in any thing shall forfaite for euery time so offending to the partie grieued in that behalfe so much mony as any such person abouesaide shall take contrarie to this present acte and ouer that shall loose and forfaite tenne pounde sterling whereof the one moitie shall bee to the king and the other moitie to the partie grieued in that behalfe that will sue in anie of the kings Courts for the recouerie of the same in which action no assoine shall be admitted or allowed Of the paiment of debts legacies and mortuaries 1 Many questions about the paiment of debts and legacies 2 What debts are first to be discharged 3 Of the debt due to the prince 4 Of debts due by recognizance and statute merchant 5 Of iudgements and condemnations 6 Of obligations 7 Of billes and bookes 8 Of debts without specialtie 9 Whether the executor may allow his owne debt 10 Of paying part and receiuing an acquittance for the whole debt 11 Of paying the testators debts with the executors owne money 12 Of Mortuaries 13 No Mortuarie to be taken but in certaine cases and that vnder a certaine paine 14 No Mortuarie due where the moueable goodes doo not extend to ten markes 15 No Mortuarie due but in those places where they haue bene vsed to be paied 16 One onely Mortuarie due and that in the place of the most abiding of the deceased 17 Three shillings foure pence due for a Mortuarie where the moueable cleare goodes doo exceede ten markes but doo not amount to thirtie pound 18 Sixe shillings viii pence due for a mortuarie where the cleare moueable goods extend to thirtie pounde or aboue and be vnder fortie pound 19 Ten shillings due for a Mortuarie the cleare moueable goods extending to fortie pound or aboue 20 Diuerse persons discharged of Mortuaries 21 Other interpretations extending and limiting this statute concerning Mortuaries §. xvi HOw † far the executor is bounde to pay debts and legacies a) Supr ead part §. 3. how the paiment of debts is to be preferred before legacies b) Supr part 3. §. 16. how legacies are to be paid out of the deathes part c) Eod. §. 16. howe the deathes part is sometimes the whole cleere goods some times halfe and some times but a thirde part d) Eod. §. 16. Also whether in case the legacies do exceed the deathes part it be in the election of the executor to preferre one legacie before another or what other order is to be taken e) Supr part 3. §. 17. Al these things are more fully heretofore declared and neede not here to be iterated It remaineth † therefore that in this place bee shewed which debts are first to be discharged in case there be not sufficient goods and cattels to pay all the testators debts or whether it be in the power of the executor to pay which debts he will and if any remaine cleere then whether Mortuaries are to be paied and how much is to be paid for Mortuaries First † of all therefore I suppose that the debt due by the testator to the Prince is to be discharged and that it is not in the choise of the executor to preferre any other debt due to anie subiect f)

Magna charta c. 18. quod verum est non solùm in actionibus personalibus sed etiam in hypothecarijs saltem iure quo nos vtimur vtcunque iure ciuili ex hypothecarijs creditoribus prior tempore potior iure Secondly † the debt due vpō statute merchāt recognizance is to be discharged if there be assets before any personal debt g) Quibꝰ enim res obligatae sunt sunt illi potires quàm creditores qui personali tantùm actioni incumbunt L. eos C. qui potiores in pig for that by force of the recognizance not only the person of the debtor is bounde but also after the day of payment be expired the moueables of the debtor may be apprehended and solde for the paiment of the debt h) Anno 13. Ed. 1. Thirdly † if yet there remaine sufficient goods and cattels before other personal debts whether they be due by obligation bill or otherwise iudgements and condemnations are to bee discharged i) Brook Abridg. tit execut n. 172. Do. Stu. lib. 2. c. 10. Fourthly † if the goods and cattels will suffice obligations are to be discharged k) Brook d. n. 172. And if there be diuerse obligations then it seemeth to be in the power of the executor to discharge which obligatiō to gratifie which of the creditors he wil l) Brook vbi supr Doct. Stud. lib. 2. c. 10. which being done the other creditors be without remedie if there be no assets vnlesse the day of paiment in the one obligatiō be expired and the day of paiment of the other obligatiō is not yet come in which case the former obligation is to be first satisfied m) Brook d. tit exec n. 172. or vnlesse there be suite commenced for some obligation for then it is not in the power of the executor to discharge an other obligation for the which no action is brought in preiudice of the former suite n) Brook d. n. 172. But if there be two obligations and the two seuerall creditors bring seuerall actions against the executor he that first obtaineth iudgment must be first satisfied o) Brook eod n. 172. Fiftly † after obligations supposing sufficiencie of goods debts due vpon simple billes or merchant bookes or other like specialties are to bee discharged p) Doct. Stud. lib. 2. c. 10. Finally † if the creditor haue no specialtie or writing it seemeth that the executor is not bounde by the lawes of this realme to pay the same albeit he had assets in his handes sauing seruāts wages q) Brook tit exec n. 87 163. because in euerie case where the testator might wage his lawe no action lieth against the executor r) Termes of law verb. executor Howbeit an action of the case may be brought against the executor vpon the promise or assumption made by the testator in his life time by worde onely without writing if there be assets s) Brook tit executor n. 171. But if there be no assets to satisfie all these aforesaide creditors then obseruing the order aforesaid beginning with the paiment of the debt due to the prince and so forward I suppose it is a discharge against the rest t) Quod facto inuentario sine impedimento procedit alias secus si respiciamus ius ciuile L. scimus §. si praefatam ídque ob praesumptam fraudem otherwise it is daungerous to the executor if hee pay debts without specialtie before those debts which are due vpon specialtie or if hee discharge obligations before iudgements v) Brook Doct. Stud. locis supradictis c. Bur here it may be demaunded what if the testator were indebted to the executor whether may † the executor allowe his owne debt in preiudice of other creditors By the ciuill x) L. scimus §. in computatione C. de iure delib and our ecclesiastical y) c. statutum §. statuimus de testa lib. 3. prouincial const Cant. lawes he is in the same case as other like creditors and I suppose also that by the lawes of this realme he may allow his owne debt in preiudice of other like creditors z) Plowd in cas inter Woodward Darcy licet contratium teneat Brook tit executor n. 57. 59. 112. 114. 118. cuius opinio communiter hodie reprobatur vt non semel mihi nunciarunt iurisperiti huius regni Angliae non pauci nec mediocriter docti in case he haue made an inuentarie Furthermore it is to be noted in this place that † if the executor pay to some of the creditors part of the debt due by the testator and receiue an acquittance for the whole as if the testator be indebted to one in fortie poūd wherof the executor paieth but ten pound and neuerthelesse taketh an acquittance of the whole fortie pounde this acquittance shall not preiudice anie other creditor but for ten pounde onely a) Brook tit assets n. 1. tit executor n. 6 Moreouer it is to be noted that this hath beene deliuered and receiued for lawe viz. that if † the executor did pay with his owne money so much of the testators debts as the value of the testators goods or cattels did arise vnto and retaine in his handes the testators goodes or cattels then such paiment should not preiudice the other creditors to whom the testator was indebted but should charge the executor as assets b) Brook Abridg. tit assets n. 6. 8. tit exec n. 116. 150. tit adm̄str n. 38. 37. 51. Lindw in c. ita quorundam verb. sibi de testa lib. 3. prouincial constit Cant. and therefore that it behoueth the executor to alienate the goods of the testator for the paiment of his debts if he would bee safe from paying any more debts then the goodes of the testator did extend vnto c) Brook Lindw vbi supra Quibus adiungas Sichard in L. vlt. §. si praefatam n. 11. 12. C. de iure delib Howbeit at this present the contrarie opinion seemeth to preuaile in this our realme namely that the executor paying the iust value of the testators goodes to the creditors maie retaine the same goodes in his hands which neuerthelesse shall not charge the executor as assets d) Dyer fol. 2. fol. 187 Concerning † Mortuaries it is enacted by authoritie of Parliament as followeth e) Stat. H. 8. an 21. c. 6. No † parson vicar curate parish priest ne any other spirituall person nor the fermers bailifes ne lessees take demaund or receiue of any person or persons within this realme for any person or persons dying within this Realme for anie Mortuarie or corse present ne any summe or summes of money ne any other thing for the same more then is hereafter mentioned ne also shall conuent or call any person or persons before the Iudge spirituall for the recouerie of any such Mortuaries or corse present or any other thing for the same more then

of a codicill 12 Definitions of a codicill and a testament how they agree or differ 12 Definition of a legacie or deuise fol. 14 Definition of a gift in consideration of death 16 Definition of a solemne testament 17 Definition of a testament mētioned in the Ciuil law whether it agree with our testaments in England 19 Definition of a testament comprehendeth both solemne and vnsolemne testaments 19 Definition of a testament is not of any speciall testament 21 Definition of a priuiledged testamēt 24 Definition of a testament amongst children 29 Definition of a testament ad pias causas 30 Definition of an idiot or naturall foole 39 Definition of a slaue 43 Definition of an Apostata 55 Definition of a famous libel 58 Definition of appointment of an executor 112 Defect in the testators meaning 261 Defect of solemnitie whether it doe make void the testament 257 Defect of will whether it destroy the testament 258 Degrees of consanguinitie prohibiting mariages here in Englande 57 Of Degrees of Executors 177 Debtes whether they ought to be put into the inuentarie 218 Debtes which are first to be payed 228 Debtes to the Prince are first to be payd 229 Of Debts due by recognisance and statute merchant 229 Of Debts vpon iudgementes folio 229 Of Debtes vpon obligation folio 229 Of Debts vpon billes and bookes 229 Of Debts without specialty 229 Debt due to the executor whether it is to be allowed 230 Debts due by the testator discharged by the executor with his own mony whether he may retain the testators goods 230 A Debt being bequeathed and afterwards receiued by the testator whether the legacie be extinguished 281 Difference betwixt a testament and all other kindes of last willes 7 The Difference betwixt a testament and other sentences 10 Difference betwixt the definition of a last will and the definition of a testament 11 Difference betwixt these two words Lawfull and Iust 11 Difference betwixt these two words Disposition and Sentence 11 Difference betwixt a legacie and a gift in case of death 14 Difference betwixt a slaue and a villeine 43 Difference betwixt the executor of an executor and the executor of an administrator 92 Differēce betwixt these two phrases if he do not marry and so long as he doth not marry 153 Difference betwixt these phrases Jf he die without issue and If he haue no issue 166 Difference whether the legacie be referred to the substance or execution of the disposition 173 Difference betwixt substituting by proper names and by names appellatiue 179 Difference betwixt obscuritie ambiguity 192 Difference betwixt the lawes Ciuill the lawes Ecclesiasticall about the education of bastards 200 Differēce betwixt the vulgar and legall forme of prouing testaments 224 Difference betwixt a proper name and a name appellatiue 246 Difference betwixt these wordes J geue and I bequeath 284 Different effects of a simple assignation of an executor and a simple legacie 119 Distinction of legacies confounded 15 Distribution of the residue of the testators goods 235 Diuers kinds of conditions 121 Deuise of landes not good without writing 23 Doctors of the law and cleargy mē what priuiledges testamentary they enioy 27 All Doctors or Diuines not priuiledged 28 Donor of lands in taile whether he may prohibite alienation 154 Doubt about the date of willes maketh both voyd 29 Dumbe but not deaffe whether such a person may make his testament 52 A Drunken person whether he may make a testament 42 E Of Ecclesiasticall persons some be regular some be secular 64 Ecclesiasticall persons are not simply prohibited to make their testaments 64 Ecclesiasticall persons may make their testamentes of all goods which they haue not in right of the Church 64 Ecclesiasticall persons cannot make their testaments of things immoueable which they posses in right of the Church 65 An Ecclesiasticall person may make his testament of the glebe by him sowen .. 65 An Ecclesiastical person whether he may make his testament of all mouable goods which he hath in right of the church 65 Effects of interlocutorie and definitiue sentences be contrary 9 The Effects of testaments and codicils contrarie 14 Efficacie of a nuncupatiue testamēt 24 The effect of dieng with or without a testament 112 Effect of a pure or simple nomination of an executor 116 Effects of conditions diuers and cōtrarie 123 The Effect of the disposition is not suspended by necessary or impossible conditions 124 The Effect of the disposition is suspended by possible conditions 124 Effects of substitution of executors 177 Effects of an inuentarie 220 Effects of a perfect account 236 Effects of a bare reuocatiō 169 Effectes of an vnperfect accoumpt 236 Effect of cancelling testamentes 270 Election whether it belong to the executor or legatarie 255 Election in what maner it ought to be made 255 Election belōging to the Legataries which of them ought to chuse first 256 In Election if the collegataries dissent what meanes is to be vsed 256 Emblements See corn on the groūd Encrease or decrease of solemnities doeth not make any disagreement betwixt our testamentes and the definition of a testament 20 In England testators are not tied to the obseruation of any other solemnities the such as bee Iuris Gentium 6 In England our testaments though vnsolemne haue the effectes of testaments properly so called 21 End of an account 236 Enimity a cause whereby the legatarie doeth lose his legacie 286 By Enimitie whether the legacie be lost if the testator were the cause thereof 286 By Enimitie the legacie is not alwayes lost 287 Errors detected about the definition of a testament 7 Error may happen diuers wayes 244 Error in the person of the executor or legatarie doth destroy the disposition 244 Error in the name of the executor or legatarie whether it hurte the disposition 244 Error in the qualitie of the executor or legatarie whether it destroy the disposition 245 Error in the thing bequeathed manifold 245 Error in the proper name of the thing bequeathed whether it destroy the legacie 245 Error in the name appellatiue of the thing bequeathed whether it destroy the legacie 245 Error in the substance of the legacy whether it make voyd the legacie 246 Error in the quantitie of the thing bequeathed whether it be hurtful 246 Error in the quality of the thing bequeathed whether it be hurtfull 248 Error in the forme of the disposition destroyeth the force therof 248 Essentiall forme of a testamēt is the naming of an executor 112 Examples out of the olde testament whereby it may seeme lawfull for kings to geue away their kingdomes 66 Examples out of prophane histories tending to the same ende 66 Examples of a pure or simple appointment of an executor 114 An Excommunicate person maye make his testament except in certaine cases 60 An Excommunicat person whether he may be executor 198 An Executor wherefore he cannot dispose the testators goods by legacie 49 An Executor made without expresse mention of this worde Executor

hurt being expressede which not expressede doe no harme r) d. L. nonnunquam An other case is this when † the testator doth not referre his will to the meere absolute will of another as if A. B. will but to his limited will s) Sichard in d. L. captatorias C. de mil. testo As for example the testator doth make thee executor or giueth thee a hundred poūd if A.B. shall esteeme it couenient In which case if A.B. shall esteeme it meete or conuenient that thou bee executor or haue the legacie of an hundred pound then thou art to be admitted to the one t) Sichard vbi supr quamuis quoad haeredis institutionē istud non procedit sine difficultate maiori iure ciuili Sarmient lib. 2. select interp c. 6. n. 4. or maist obteine the other v) L. si sic de leg 1. L. 1. de leg 2. L. fidei cōmissa de leg 3. ff The † testator is saide to referre his disposition to the meere absolute will of another when he committeth the same to his will to his lust to his appetite x) Menoch de Arb. Iud. sentent lib. 1. q. 7. to his limited will when he referreth the same to his discretion iudgement wisedome good pleasure disposition and conscience y) Ias in L. si sic de leg 1. ff Menoch d. lib. 1. q. 8 Thirdly when † the substance of the testators will is not referred but only a declaration or election z) L. vtrum §. cùm quidam ff de reb dub Bar. in L. quidam eod tit n. 8. Peckius de testa coniug lib. 1. c. 27. as for example the testator maketh one of his seruants his executor or giueth him an hundred pounde whome thou shalt choose In this case he whom thou shalt choose of the testators seruants shall be executor or recouer the legacie a) L. fidei commiss de fidei com lib. in fin ff Paris cons 38. lib. 3. Grass §. Institutio q. 18. n. 6. vbi ait hanc opinionem esse com Another † case is when the disposition is referred to the will of the executor touching the executorship or of the legatarie touching the legacie as for example the testator maketh thee his executor if thou wilt or doth giue thee a hūdred pound if thou wilt for this condition is not onely permitted but is necessarily required b) Supr ead part §. 6. Another case † is in fauour of libertie or freedome from bondage and therefore if the testator doe manumit his villeine if his executor will it is as effectuall as if he had referred the same to the discretion or wisedome or conscience of his executor c) L. fidei commissa de fidei commiss lib. ff Sichard in L. captatorias C. de mil. testō And further † when the disposition is made ad pias causas then it is also lawfull for the testator to commit the verie substance of his will to the free and absolute wil of another d) Paul de Castr Alex in d. L. captatorias Abb. cons 32. lib. 2. Boic Couar in d. c. cùm tibi Bald. in c. in causis de elect extr quorum opinio est com Grass §. Institutio q. 18. and therfore if the testator make the poore of the parish his executor or giue them an hūdred pound if A. B. will this is a good disposition e) Et hoc procedit iure Can. non solùm quo ad legata sed etiā quoad institutionem Couar in d c. cùm tibi n. 12. referens hanc op esse veriorem Tu adde Gabr. lib. 6. com conclus Tit. pia causa concl 3. vbi pulcherrimè hanc conclusionem ornat varijs ampl limitac Finally † if the testator commit the disposition of all his goods to another this is lawful and he to whom the disposition is committed is vnderstoode to bee made executor to distribute all the said goodes in pios vsus f c. cùm tibi de testa extr ibi Couar n. 10. Grass d. §. Institutio q. 18. Peckius de testa coniug lib. 1. c. 27. quorum testimonio haec opinio est communis so it is if the testator commit his soule and all his goods to the hands of another as hath beene heretofore delcared g) Supr ead part §. 4. Of those conditions vvhereby the libertie of mariage is restrained viz. howe far the same be lawfull or vnlawfull 1 Of conditions against the libertie of mariage some are lawfull some vnlawfull 2 Conditions against the libertie of mariage are all vnlawfull except in certaine cases 3 The reasons wherefore the conditions against the libertie of mariage are vnlawfull 4 The prohibition of the first mariage more odious then of the second 5 The condition of mariyng with the arbitrament will or consent of another is vnlawfull 6 The reason wherefore the former condition is vnlawfull 7 The condition prohibiting mariage for a short time is not vnlawfull 8 The condition prohibiting mariage with some persons is not vnlawfull 9 Whether the condition prohibiting mariage haue respect onely to the first mariage 10 An occasion of doubt whether the former conclusion be true 11 An answer to the same doubt distinguishing whether the conditions be affirmatiue or negatiue 12 The condition prohibiting mariage in some place is not vnlawfull 13 The condition hauing relation to the mariage of a third person is not lawfull sauing where that third person is of kinne 14 The condition prohibiting mariage is not reiected where pia causa is substituted 15 Affirmatiue conditions about mariage are not reiected but in some cases 16 Some affirmatiue conditions of marying harder then the negatiue of not marying 17 The condition of marying with the aduise or counsell of another is not vnlawfull 18 The condition of marying with the consent of an other is to be obserued in part 19 Difference betwixt these phrases If he doo not marrie and so long as he doth not marrie 20 The condition of not marying doth not hinder restitution simplie imposed §. xij ALbeit † all those conditions wherby the libertie of marying is wholy taken away are generally disliked a) L. quoties de cond demon L. seruo §. si testator Ad. Trebell ff neuerthelesse where the conditions be such whereby marriage is not altogether prohibited but in parte restrained as in respect of time place or person they are not to be vtterly reiected b) L. cùm ita L. hoc modo L. sed si §. cùm vir de cond demon ff infr hoc §. Wherefore that wee may the better knowe when these kinde of conditions be admitted or not I thought it best and the moste easie way to set downe a rule with ampliations and limitations of the same according to the diuersitie of cases incident to that purpose The † rule shall bee this that all conditions agaynst the libertie of marriage are vnlawfull c)

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