it is sufficient if the landes and tenementes be holden in burgage k) Brook tit deuise n. 22 For that not he onelie is said to holde in burgage who is a citizen or burgesse of the place where the lands or tenementes be and holdeth of the kinge or other lorde landes or tenementes lying in the citie or borough yeelding therfore to his said lord a certaine yeerelie rent but he also that is no citizen or burgesse which holdeth of anie lord landes or tenementes in burgage yeelding vnto him a certaine rente by the yeere l) Old tenures verb. burgage which tenor in burgage is but a kind of tenure in soccage m) Litleton tit burgage in princ Howbeit there is this difference betwixt citizens burgesses and freemen and those which be not citizens burgesses or freemen that is to saie citizens burgesses and freemen maie bequeath their burgage landes to Mortmain which others can not doe n) Brook Abridg. tit custome n. 7. 38. 41. tit deuise n. 22. 28. Doct. Stud. lib. 1. c. 10. And in some borough by the custome thereof a man may deuise by his testament lawfullie made his landes and tenementes which hee hath in fee-simple within the same borough at the time of his death and by force thereof the deuisee after the death of the testator maie enter into the tenementes to him deuised to haue and to holde to him after the forme and effect of the deuise without anie libertie of seasin thereof to be made vnto him o) Litleton tit burgage But if there be two iointe tenauntes in fee-simple within one borough where the landes and tenementes within the same be deuisable by testament if one of the said iointe tenauntes deuise that which to him belongeth by testament and die this deuise or legacie is voide p) Principall grounds fol. 20. b. The reason is for that no deuise can take effect till after the death of the testator who did bequeath and deuise the same but by his death all the lande dooth incontinentlie by the lawe of this realme come to the suruiuor who neither claimeth nor hath anie thing by deuise but of his owne right by the suruiuâ—ir according to the course of the lawe of this lande and for this cause such deuise is voide q) Principall grounds fol. 20. b. An other case there was also some-times vsed and practised of deuising lands tenements and hereditamentes by willes to certaine vses intentes and trustes which willes or testamentes of landes tenementes and hereditamentes in feoffees handes were for the time accompted and taken for good r) Stat. H. 8. an 27. c. 10. But this custome was reformed in manie things for diuers good considerations namelie because by the common law of this realme lands tenements hereditaments be not deuisable by testament and also for that such deuises were not onelie hurtfull to the heire of the testator beeing manie times thereby disinherited but also for that diuers other inconueniences did by reason thereof insue as that the lordes lost their wardes mariages reliefes harriots escheates aids Pur faire fitz chiualer pur file marier Furthermore by occasions of suche willes and other conueiaunces to secrete intentes vses and trustes men could not be certainelie assured of anie landes by them purchased nor knew not against whom they should vse their actions executions for their rights and titles Besides this men married lost their tenaÌ„ces by the curtesie women their dowries finally the prince himselfe lost the profits of the landes of persons attainted For reformation whereof a statute was made in the time of King Henrie the eight and enacted as followeth s) d. Stat. H. 8. an 27. c. 10. That is to say that where anie person or persons stand or be seized or at anie time hereafter shal happen to be seized of and in anie honors castels mannors landes tenementes rentes seruices reuersions remainders or other hereditamentes to the vse confidence or trust of anie other person or persons or of anie body politike by reason of anie bargaine saile or feofment fine recouery couenant contract agreement will or otherwise by anie maner meanes whatsoeuer it be that in euerie such case all euerie such persoÌ„ persons bodies politike that haue or hereafter shall haue anie such vse confidence or trust in fee simple fee taile for terme of life or of yeeres or otherwise or anie vse confidence or trust in remainder or reuerter shall from hence-foorth stand and bee seized deemed and adiudged in lawfull seizon estate and possession of and in the same honors castels manors lands tenements rentes seruices reuersions remainders and hereditaments with their appurtenances to all intents constructions and purposes in the lawe of and in such like estates as they had or shall haue in vse trust or confidence of or in the same And that the estate title right and possession that was in such person or persons that were or hereafter shall be seized of anie landes tenements or hereditaments to the vse confidence or trust of anie such person or persons or of anie bodie politike bee from hence-foorth cleerelie deemed and adiudged to be in him or them that haue or hereafter shall haue such vse confidence or trust after such qualitie maner forme and condition as they had before in or to the vse confidence or trust that was in them And bee it further enacted by the authoritie aforesaid that where diuers and many persons be or hereafter shall happen to be iointlie seized of and in anie landes tenements rents reuersions remainders or other hereditaments to the vse confidence or trust of anie of them that bee so iointlie seized that in euerie such case that those person or persons which haue or hereafter shall haue any such vses confidence or trust in anie such landes tenements reuersions remainders or hereditaments shall from hence foorth haue and bee deemed adiudged to haue only to him or them that haue or hereafter shall haue such vse confidence or trust such estate possession and seizon of and in the same lands tenements rents reuersions remainders or other hereditaments in like nature maner forme condition and course as he or they had before in the vse confidence or trust of the same landes tenements or hereditaments sauing and reseruing to all singular persons and bodies politike their heirs and successors other than those person or persons which be seized or hereafter shall be seized of anie landes tenementes or hereditaments to anie vse confidence or trust all such right title entree interest possession rents and action as they or anie of them had or might haue had before the making of this acte And also sauing to all and singuler those persons and to their heires which be or hereafter shall he seized to anie vse all such former right title entree interest possession rents customs seruices and action as they or anie of them might haue had to his or their
own proper vse in or to any manors lands tenements rents or hereditaments wherof they be or hereafter shal be seized to anie other vse as if this present act had neuer beene had or made any thing conteined in this acte to the contrarie not withstanding And where also diuers persons stand and be seized of and in any lands tenements or hereditaments in fee simple or otherwise to the vse or intente that some other person or persons shall haue and perceiue yeerely to them and to his or their heires one annuall rent of tenne pounds or more or lesse out of the same lands and tenements and some other person one other annuall rent to him and his assignes for terme of life or yeeres or for some other speciall time according to such intent and vse as hath bin heretofore declared limited made thereof Be it therefore enacted by the authoritie aforesaid that in euery such case the same persons their heirs and assignes that haue such vse and interest to haue and perceiue any such annuall rents out of any lands tenements or hereditaments that they and euery of them their heires and assignes be adiudged and deemed to be in possession and seizon of the same rent of and in such like estate as they had in the title interest or vse of the said rent or profit and as if a sufficient grant or other lawful conueiance had bin made executed to them by such as were or shal be seized to the vse or entēt of any such rent to be had made or paied according to the very trust intent therof And that al euery such person or persons as haue or heereafter shall haue any title vse and interest in or to any such rent or profit shall lawfully distreine for non paiment of the said rent and in their owne names make aduouries or by their balifs or seruants make cognizances and iustifications and haue all other sutes entries and remedies for such rents as if the same rents had bin actually and really graunted to them with sufficient clauses of distresse reentree or otherwise according to such conditions paines or other things limited and appointed vpon the trust and intent for paiment of suretie of such rent And be it further enacted by the authority aforesaid that where as diuerse persons haue purchased or haue estate made and conueied of and in diuers lands tenements and hereditaments vnto them and to their wiues and to the heires of the husband or to the husband and to the wife and to the heires of their two bodies begotten or to the heirs of one of their bodies begotten or to the husband and to the wife for terme of their liues or for terme of life of the said wife or where any such estate or purchase of any lands tenements or hereditaments hath bin or hereafter shall bee made to any husband and to his wife in manner and forme aboue expressed or to any other person or persons and to their heires and assignes to the vse and behoofe of the said husband and wife or to the vse of the wife as is before rehearsed for the iointer of the wife that then in euery such case euery woman married hauing such iointer made or hereafter to be made shall not claime nor haue title to haue any dower of the residue of the lands tenemētes or hereditaments that at any time were her said husbands by whom she hath any such iointer nor shall demand nor claime her dower of and against them that haue the lands and inheritaunces of her said husband But if she haue no such iointer then she shall be admitted and inabled to pursue haue and demand her dower by write of dower after the due course and order of the common lawes of this realme this act or any law or prouision made to the contrarie thereof notwithstanding Prouided alway that if any such woman be lawfully expulsed or euicted from her said iointer or from any part therof without any fraud or couin by lawfull entree action or by discōtinuance of her husband then euery such woman shal be indowed of as much of the residue of her husbands tenements or hereditaments whereof she was before dowable as the same lands and tenements so euicted and expulsed shall amount or extend vnto Prouided also that this act nor any thinge therein conteined or expressed extend or be in any wise hurtfull or preiudiciall to any woman or women heretofore being married of for or concerning such right title vse interest or possession as they or any of them haue claime or pretēd to haue for her or their iointer or dower of in or to any manors lands tenementes or other hereditamentes of any of their late husbands being now dead or deceased any thing conteined in this act to the contrary notwithstanding Prouided also that if any wife haue or hereafter shall haue any manors lands tenements or hereditaments vnto her giuen or assured after mariage for terme of her life or otherwise in iointer except the same assurance be to her made by act of parliament and the said wife after that fortune to ouer-liue the same her husband in whose time the said iointer was made or assured vnto her that then the same wife so ouer liuing shall and may at their liberty after the death of her said husband refuse to haue take the lands and tenements so to her giuen appointed or assured during the couerture for terme of her life or otherwise in iointer except the same assurance be to her made by acte of parliament as is aforesaid and thereupon to haue aske demaund and take her dower by write of dower or otherwise according to the common law of and in all such landes tenements and hereditaments as her husband was and stood seized of any state of inheritance at any time during the couerture any thing conteined in this act to the contrary in any wise notwithstanding Prouided also that this present act nor anie thing therein conteined extend or be at anie time hereafter interpretated expounded or taken to extinct release discharge or suspend anie statute recognizance or other bond by the execution of any estate of or in any lands tenements or hereditaments by the authority of this act to any person or persons or bodies politike any thinge conteined in this acte to the contrary thereof notwithstanding And for as much as great ambiguities and doubts may arise of the validity and inualidity of wils heretofore made of any landes tenements hereditaments to the great trouble of the kings subiects the kings most roial maiesty minding the tranquillitie and rest of his louing subiects of his most excellent and accustomed goodnesse is pleased and contented that it be enacted by the authority of this present parliament that all maner true and iust willes and testaments heretofore made by any personne or persons deceased or that shall decease before the first day of May that shall be in the yeere of our
Lord God 1536 of any lands tenements or other hereditaments shall be taken and accepted good and effectual in the law after such fashion maner and forme as they were commonly taken and vsed at any time within forty yeeres next afore the making of this acte anie thing conteined in this act or in the preamble thereof or any opinion of the common law to the contrarie thereof notwithstanding Prouided alwaies that the kinges highnesse shall not haue demand or take any aduantage or profit for or by occasion of the executing of any estate onely by authority of this act to any person or persons or bodies politike which now haue or on this side the said first day of Maie which shall be in the yeere of our Lorde God 1536 shall haue any vse or vses trustes or confidences in any manors lands tenements or hereditaments holden of the kinges highnesse by reason of primer seizon liuerie Ouster le maine fine for alienation releefe or hariotte but that fines for alienations releefes and hariots shal be paied to the kings highnesse And also liueries and Ouster le maines shall bee sued for vses trusts and confidences to be made and executed in possession by authority of this act after and from the said first day of May of lands and tenements and other hereditamentes holden of the king in such like maner and forme to all intents constructions and purposes as hath heretofore beene vsed or accustomed by the order of the laws of this realme Prouided also that no other person or persons or bodies politike of whom any lands tenements or hereditaments be or hereafter shal be holden mediat or immediat shal in any wise demand or take any fine releefe or harriot for or by occasion of the executing of any estate by the authority of this acte to any person or persons or bodies politike before the said first day of May which shall be in the yeere of our Lord God 1536. And bee it enacted by the authority aforesaid that all and singuler person and persons and bodies politike which at any time on this side the said first day of Maie which shall be in the yeere of our Lord God 1536 shall haue anie estate vnto them executed of and in anie lands tenements or hereditaments by the authority of this act shall and may haue and take the same or like aduantage benefit voucher aid praier remedy commoditie and profit by action entree condition or otherwise to all intents constructions purposes as the person or persons seized to their vse of or in any such lands tenements or hereditaments so executed had should might or ought to haue had at the time of the execution of the estate thereof by the authority of this act against any other person or persons of or for any wast disseizon trespasse condition broken or any other offence cause or thing concerning or touching the said lands or tenements so executed by the authority of this act Prouided also and be it enacted by the authority aforesaid that actions now depending against any person or persons seased of or in any lands tenements or hereditaments to any vse trust or confidence shal not abate ne be discharged for or by reason of executing of any estate therof by authority of this act before the said first day of May which shall be in the yeere of our lord God 1536. any thing conteined in this act to the contrarie notwithstanding Prouided also that this acte nor any thing therein conteined shall not bee preiudiciall to the kings highnes for wardships of heires now being within age nor for liueries or for Ouster le mains to be sued by any person or persons now being within age or of ful age of any landes or tenementes vnto the same heire or heires now all ready descended any thing in this act contained to the contrarie notwithstanding Prouided also and be it enacted by the authority aforesaid that all and singuler recognisances heretofore knowledged taken or made to the kinges vse for or concerning any recoueries of any landes tenementes or hereditaments heretofore vsed or had by write or writs of entree vpon disseizon in Le post shall from henceforth be vtterly voide and of none effect to all intents constructions purposes Prouided also that this act nor any thing therein conteined be in any wise preiudicial or hurtfull to anie person or persons borne in Wales or the marches of the same which shall haue any estate to them executed by authority of this act in any lands tenements or other hereditaments within this realme whereof any other person or persons now stand or be seized to the vse of any such person or persons borne in Wales or the marches of the same but that the same persō or persons borne in Wales or the marches of the same shall or may lawfullie haue reteine and keepe the same lands tenements or other hereditaments whereof estate shall be so vnto them executed by the authority of this act according to the tenor of the same any thing in this act conteined or any other acte or prouision heretofore had or made to the contrary notwithstanding Certaine cases wherein by the statutes of this realme it is lawfull to deuise landes tenementes or hereditaments §. iiij NOwe follow certaine other cases authorised by the statuts of this realme of England wherein it is lawfull to bequeath or deuise lands tenements and hereditamentes by will sometimes wholy and sometimes in part onely or rateably according to the nature of the tenure of such lands tenements and hereditamentes as in the same statuts which I haue here set downe at large doth appeare An Acte declaring how by the Kinges grant landes tenementes and hereditamentes may be by will testament or otherwise disposed and concerning wards and primer seasin c. Anno 32 II. 8. c. 1. WHere the kinges most roiall maiestie in all the time of his moste gratious and noble reigne hath euer beene mercifull louing and beneuolent and most gratious souereigne lord vnto all and singuler his louing and obedient subiectes and at many times past hath not onelie shewed and imparted to them generally by his manie and often great beneficial pardons heretofore by authority of his parlemēts granted but also by diuers other waies and meanes many great and ample grants and benignities in such wise as al his said subiects bin most bounden to the vttermost of all their powers and graces by them receiued of God to render and giue vnto his maiesty their most humble reuerence obedient thanks and seruices with their daily and continuall praier to almighty God for the continual preseruation of his most roiall estate in most kingly honour and prosperity yet alwaies his maiesty being repleat and endowed by God with grace goodnes and liberality most tenderly considering that his said obedient and louing subiects can not vse or exercise thēselues according to their estats degrees faculties and qualities or to beare themselues in such wise
wards and liueries if the maister of the wards and liueries for the time beeing and the parties therunto can not otherwise agree vpon the same diuision And that the issues and profits of the two partes of the same manours lands tenements and hereditaments vpon euery such diuision to bee restored to them that shall haue right or title to the same frō the death of the owner or deuisour therof And further be it enacted and declared by authoritie aforesaid that all and singuler person and persons hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenary or in common in fee-simple of and in any manours lands tenements rents or other hereditaments in possession reuersion or remainder or of and in any rents or seruices incident to any reuersion or remainder holden of the king his heires or successours by knights seruice and not in cheefe or holden of any other person or persons by knights seruice shall haue full and free libertie power and authority to giue dispose will or deuise to any person or persons except bodies politike and corporate by his last will and testament in writing or otherwise by any act or acts lawfully executed in his life by himselfe solie or by himselfe and other iointly seuerally or particularly or by all those waies or any of them as much as in him of right is or shall bee two parts of all the saide manors lands tenements and hereditaments or any of them so holden by knights seruice or any rents common or other profits or commodities out of or to be perceiued of the same two parts or out of any parcell thereof in three parts to be deuided or as much thereof as shal amount to the full and cleere yeerely value of two parts thereof in three parts to be deuided at his free will pleasure And that the said will so declared by authority aforesaid shal be good and effectuall for two parts of the said manors lands tenements or hereditaments although the will so declared be or shal be made of the whole landes and tenementes so holden by knights seruice or of more than of two partes of the same And also for the whole of all other such manours lands tenements and hereditaments or any of them not holden of the kinge by knights seruice in cheefe or otherwise by knights seruice nor of anie other person by kinghts seruice and of any rents commons or other profits or commodities out of or to bee perceiued of the same or out of any parcell thereof at his free will and pleasure The same diuision to be made and set foorth by the owner of the said manours lands tenementes and hereditaments by his last will and testament in writing or otherwise in writing And in default thereof for as much of the same manors lands tenements and hereditaments as shall concerne the kings interest by commission to be directed out of the kings court of the wards and liueries in maner forme as is aforesaid if the master of the wardes and liueries for the time being and the parties thereunto can not otherwise agree vpon the same diuision And that restitution of the issues and profits of the two parts thereof shal be had and made in maner and fourme abouesaid And for such of the same manors lands tenementes and hereditaments as shall concerne the interest of any other lord or lords by commission to be graunted out of the kings court of the Chauncery to enquire thereof by the othes of 12. men if the same lord or lordes and the parties thereunto can not otherwise agree vpon the same diuisiō And be it further enacted and declared by authority aforesaid that the sauings reseruings and prouisions concerning sauing of the custodie wardship releefe and primer season to the king of such manors lands tenements and hereditaments or as much thereof as shall appertaine vnto him by vertue of the said former act and by the declaratiō and expositiō thereof declared by this present act during the kings interest therein And also of the custody and wardship to other lords of as much of such manours lands tenements and hereditaments holden of them as shall amounte and extende to the cleere yeerelie value of the third parte thereof ouer and aboue all charges without any diminution or abridgement of the thirde part or of the full profits thereof comprised and mencioned in diuers articles in the saide former act contained by the authority aforesaid be and shal be intended expounded and taken as hereafter ensueth that is to say that the king shall haue and take for his full thirde part of all such manours lands tenements and hereditaments where vnto he is or shall be intitled by the said former act and by this present act such manours lands and tenements as shal by any meanes discend or come by discent as well of the estate of inheritaunce in fee taile as in fee-simple or in fee taile onely to the heire of any such person or that shall make any will gifte disposition or deuise by his last will in writing or by any act or acts lawfully executed in his life immediately after the death of the same deuisour or owner thereof And that the will gift and deuise of euery such deuisour or owner of and for the two partes of the saide manours lands tenements and hereditaments residue shall by the authority aforesaid be and stand good and effectuall in the law albeit the same will gift or deuise be had and made of all his fee simple lands tenementes and hereditamentes and in case the same manours landes tenementes and hereditamentes which after the death of anie suche owner or deuisour which shall make any such gift disposition or deuise by his last will in writing or otherwise by any act or acts lawfully executed in his life to his wife children or otherwise as is aforesaid which shall immediatly after his death discend reuert remaine or come to his heire or heires as well of estate of inheritaunce in fee taile as of estate in fee simple or fee taile onely be not or shall not amount or extend to the full cleere yeerelie value of the full thirde part with the full profites thereof of all the said manours lands tenements or other hereditaments of the said deuisour or owner according to the true intent and meaning of the said former act and of this present acte that then the king shall and may haue take into his handes and possession to make vp his full third parte with the full profites thereof according to his interest therein as much of the other manours lands tenements or hereditaments willed giuen disposed or assigned by any such person to his wife children or otherwise as is aforesaid as with such of the same manours lands tenements and hereditaments discended or by any meanes come vnto the heire as heire of anie such deuisour or owner shall make vp the cleere yeerelie value of the said full third parte with
By this thē it appeareth that the authority of an executor is greater then of an administrator for an executor maie appointe an executor to the first testator so can not an administrator Howe be it an executor can not giue awaie the goodes of the testator in his will by legacies no more then an administrator l) Plowd d. cas inter Bransby Grantham for those goodes are not the proper goodes of the executor but are to bee imploied for the behoofe of the testator m) c. stat de testa lib. 3. prouincial constit Cant. and in that respecte also is the executor accomptable to the ordinary as wel as th'administrator n) Eod. c. statutum I meane of a bare mere executor of whose diligence the testator made special choise to whō nothing is bequeathed in the said testament Thirdlie by the opinion of diuers iustices of this realme and doctors of the cannon and ciuill lawe the goodes of this realme that is to saie of the auncient crowne and iewelles cannot be disposed by will o) Fitzherb Abridg. tit exec n. 108. as is aforesaid p) Supr part 2. §. vlt. Fourthlie those thinges which belong to anie colledge or hospitall can not bee deuised by the testament or laste will of the maister of the sayde Colledge or Hospitall q) Perkins tit deuise◠fol. 96. Doct. Stud. lib. 2. c. 39. The same maie bee saide of a Maior of anie citie or borough for hee can not by his testament bequeath anie thing belonging to the citie borough or comminaltie r) Perkins tit deuise fol. 96. §. non solùm Instit de lega vers sed si no more then a master of a colledge or hospitall such thinges as he hath in right of the colledge or hospitall s) Perkins vbi supra Fiftlie the goodes of the church can not be deuised by testament t) c. 1. de testam extr But the corne growing vpon the glebe v) Stat. H. 8. an 28. c. 11 and certaine other goods may be bequeathed as hath beene before declared x) Supr part 2. §. penul Sixtlie those thinges which after the death of the testator descende to the heire of the deceased and not to his executor can not bee deuised by testament y) Perkins tit deuises à quo sequentes casus mutuatus sum except in such cases where it is lawfull to deuise landes tenementes or hereditaments And therefore if a man seased of landes in fee or fee taile bequeath his trees growing vpon the said lande at the time of his death this deuise is not good except as before but if hee deuise the corne growing vpon the same lande at the time of his death from the heire to some other person this deuise is good albeit the land whereupon it groweth bee not deuiseable the reason of the difference is because the trees are parcell of the free-hold and descend together with the lande to the heire and not to the executor but it is not so of corne for the same shall goe to the executor as parcell of the testators goodes And therefore if a man be seased of landes in the right of his wife and sowe the lande and deuise the corne growing vpon the same lande and die before the corne be reaped in this case the legatarie shall haue the corne and not the wife but it is otherwise of grasse and hearbes not separated from the ground at the time of the death of the testator If a man seased in fee in right of his wife doe let the same lande for yeeres to a straunger and the lessee soweth the grounde and afterwardes the wife dieth the corne not being ripe In this case the lessee may deuise the same corne notwithstanding his estate bee determined So is it if he that is tenaunt by curtesie of England of landes tenementes or hereditamentes for his life let the same lande to an other for yeeres and the leassor die within the tearme of those yeeres In this case the lessee maie deuise the corne which shall bee growing vpon the same lande not ripe at the time of the death of the testator Likewise if the tenante in dower sowe those landes which he hath in dower and make his executors and after dieth the corne not separated there the executors shall haue the corne notwithstanding the same be not seeded and so the tenant in dower may deuise the corne growing vpō that land which she holdeth in dower at the time of her death But it is not alwaies lawfull for a man or a woman to deuise the corne by them sowen for if a man seased of lande in fee doe infeoffee a straunger in morgage vpon paimente and not paiment made on the partie of the feoffer at a certaine daie and the feofee sowe the land and the feoffer paie the monie at the daie appointed and enter in this case it is thought that the feoffee cannot deuise the corne growing vpon the said lande Likewise if he that is tenaunte in taile of certaine land doe let the same lande for terme of life and the lessee doe sowe the same lande and the tenaunte in taile die and the issue do recouer the same in form don in the discent before the corn be separated it is thought in this case that the issue in taile maie bequeath the same by his testament Moreouer if a man seased in fee haue issue a daughter and die his wife being great with childe and the daughter enter and sowe the ground and afterwarde before the corne be seuered the wife is deliuered of a son and thereupon his next freind do enter for him yet the daughter maie deuise the corne growing vpon the same land but if after the sowing of the corne and before the birth of the son the mother hath recouered her dower against her daughter and the same land that is sowen is alotted or assigned vnto her by the Sherife for her dower in allowance of other lands there the mother may deuise the corne growing vpon the saide lande and not her daughter Finallie whereas by the ciuill law it was lawfull for the testator to bequeath not onelie his owne thinges but an other mans also a) §. Nō solum Instit de lega L. cùm alienum C. de lega in so much that the executor was compellable to redeeme the same thing and deliuer it to the legatarie or if the owner would not sell it then to paie the iuste value thereof to the same legatarie b) Eod. §. non solùm L. non dubium ff de lega 3. vnlesse the testator were ignorant that the same thing did belong to an other and did suppose it to be his owne In which case the legacie is void so that the executor is neither boūd to buie the thing nor to paie the value therof c) d. §. non solùm L. si vnum §. si rem ff de lega 2. because
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 tà m iure ciuili quà m 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 eueÌ„ 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 testameÌ„to vel ab intestato nobis enim intelligitur succedere ex testamento vtcunqueâ—on fuit in primo testameÌ„to 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
voco Tempore namque pacis bis tantùm in anno Testator conâ—ocato per cornicinem populo eóque praesente ac quasi teste vltimam suam voluntatem decla rare solebat Minsing in d. §. j. the other Procinctum c) Hoâ— testamentum fieri consueuit ab exitutis in praelum ob dubiam belâ—â— aleam In de procinctum dicitur noÌ„ quòd succincte sieret sed quòd procinâ—i dicuntur milites quaâ— praecincti expediti Viâ—â—ius in d. §. j. whereunto afterwardes a thirde kinde was added called Per aes libram (d) i. per imaginariam venditionem praesentibus enim testibus vnà cum libripende seâ— estimatore patrimonij is qui successor defuncti futurus erat moâ—â—turi bena emebat d. inde percutiés libram illud aeris quasi pretium dabat eâ—à quo haereditatem expectabat Minsing post Vigl in d. §. j. hath beene long since abolished (e) Text. in d. §. j. and worne not onely out of fashion but almost out of memory in so much that vnto some their very names may seeme straunge Vnwilling therefore to offer any thing more tedious then profitable I thought good to make reporte of some other kinde of testaments whereof happely we may haue some vse in England Vnderstand therefore that †of testamentes some be Solemne some vnsolemne some written some vnwritten or noncupatiue f) Iure ciuili testameÌ„tum scriptum non vocatur alia species a testamento solemni plerunque enim haec duo consunduntur indifferenter seu promiscue vâ—ui pantur Bar. in L. tabular ff Quemad testa app apertiùs Minsing in §. sed cum Instit de testa ord in §. fin ibid. Grass Thesaur com op §. testa q. 10. n. 1. At verò iure quo nos vtimur inspecto planc diuersa sunt Saepiùs etenim necessarium est vt testamenta nostra sint scripta sed vt sint solennia nunqÌ„ quinimo vel eod iure ciuili testamentum insolemne diuiditur in scriptum non scriptum Grass Thesaur com op §. testa q. 10. q. 11. n. 3. some Priuileged and some not priuileged g) Mantic. de contect vlt. vol. lib. 1. tit 7. Adde Iul. Clar. §. testm q 3. vbi tradit nobis aliam testamenâ— torum diuisionem Of Solemne Testaments 1 What is a solemne testament 2 No vse of solemne testaments here in England 3 The rigour of the ciuill lawe concerning testamentes 4 This rigour iustely reformed 5 What mooued Iustinian to exacte the number of seuen witnesses in testamentes 6 Two or three witnesses sufficient by the law of God §. ix SOlemne testamentes are they †wherin bee all those solemnities of the ciuill lawe as the presence of vij witnesses and required thereunto their subscription their subsignation the expedition of the act at one time c. a) â— Solemn paulatim 〈…〉 testa ordin 〈…〉 consulâ—â—s mâ— Câ—â—e testa But †of this kinde of testamentes we haue no vse in England b) Supr 〈…〉 1. Wherefore it shall suffise that I haue shewed as it were onely by the pointing of the finger that such a kinde of testament there is mentioned in the Ciuill lawe to the †obseruation whereof the Romane people were strictly tyed in the making of their testamentes Much like as were the Iewes to their Iewish ceremonies so that if any one of these solemnities were omitted the testament was voide c) L j. de Iniust rupt iâ—rit test ff Minsing in d. §. sed cum n. 12. Which thing was not onely hard to be performed but in some respectes also vngodly For that it was not sufficient for any man to prooue a testament by two or by three witnesses the lawe of God requireth no moe d) Deut. c. 18. Matth c. 18. Mantic. de conâ—ect vlâ— v l. lib. 6. tit 3. n. 18. but it must be prooued forsooth by seuen witnesses e) d. §. sed cuÌ„ paulatim Wherefore with †good reason was this excesse reformed First by the ecclesiastical law which did reduce the number of seuen witnesses to three the parochiall minister beeing one f) c. cum esses de testa extr in some cases to two g) Testa videlicet ad pâ—as causas condito caelatum elij de testa extr And then by the general custome of this realme which distinctly requireth no moe witnesses but two so they be free from any iust cause of exception h) Lindw in c. statut de testa lib. 3. prouincial constitu verb. probatis Peckius in c. priuilegiuÌ„ de reg iur lib. 6. n. 7. The reason †wherewith Iustinian was mooued to approoue of these solemnities and to adde thereunto as he did was as he doeth franckelie acknowledge Propter testamentorum sinceritatem vt nulla fraus adhibeatur i) d. § sed cum paulatim instit de testa ord For the sincerity of testamentes and that no fraude shoulde bee practised And I doubt not but before hee dyd set down so precise a law he had sufficient triall of great cunning and craft practised in the making and proouing of testamentes I woulde there were none in England which vrged him to goe from that rule †and lawe of Vlpian the famous lawyer the same also being most agreeble to the lawe of God Vbi numerus testium non adijcitur etiam duo sufficiunt pluralis enim elocutio duorum numero contenta est k) L. vbi de testibus ff Where the number of witnesses is not expressed euen two are sufficient for the plurall speach is content with two Where hee sayeth the plurall speach is content with two which is the reason of the lawe It hath this sence It was a thing very well knowne that one witnesse alone was not sufficient to decide a controuersie the testimony of one beeing as the testimonie of none l) c. licet c. veniens c. Iusiurandi de testibus extr c. admonere 33. q. 2. and therefore there were required witnesses but how many witnesses were sufficient was doubted of whereupon Vlpian answereth that albeit witnesses are required Yet that plural speach witnesses is satisfied with two and so two witnnesses are sufficient where a greater number is not required m) DD. in d. L. vbi Of vnsolemne testamentes and whether the aforesaid definition of a testament doe agree to our testaments in England 1 What is an vnsolemne testament 2 Of the freedome we enioye in England in makinge our testamentes 3 Writing required in the deuise of landes 4 Many thinges permitted which be not necessary 5 Whether it be needefull that witnesses bee required in a testament 6 Whether our testamentes in England doe agree with the former definition of a testament 7 Some reasons whereby it should seeme that the former definition and our testaments doe not agree 8 The former definition of a testament doeth comprehend both solemne and vnsolemne testaments 9 The reasons
non solum But it is not so with a villeine for the Lord hath no title to the goodes of his villeine before seasin nor any title to his landes before entrie nor anie title to any rent reuersion common or the aduowsement of a church belonging to the villeine but by clame n) Perkin tit Grant fol. 6. Brooke Abridg. tit villenage Doct. Stud. lib. 2. c. 43. And so the velleine in the meane time hath perfecte propertie therein o) Doct. Stud. d. c. 43. lib. 2. And therefore †a villeine is more like vnto him which in the ciuill lawe is called Ascriptitius Glebae p) Ascriptitius Glebae id est adscriptus praedio Spieg. Lexicon that is to say one that is ascribed or assigned to a ground or farme for the perpetuall tilling or manuring thereof q) Quemadmodum enim Ascriptitiê° verè ser uus non est sed serâ— li tantùm macula asâ—â—rsus Bald. in L. cuÌ„ precum C. de lib. causa sicut qui ascribitur glebae seu praedio perpetuò colendo nunquam inde recedere debet vel si aufugiat ad antiquos penates nempe vbi natus est redire coÌ„pellitur L. omnes de Agricul censit lib. 11. C. Eodem prorsus modo isti quos Villeins appellat vulgus Licet non sunt propriè serui perpetuae tamen praedij culturae astringuntur nunquam inde recessuri inuito vel ignoraÌ„te domino Quod si aufugiunt conceditur statim breue quod dicitur De natiuo habendo Fitzh Nat. Bre. then to a slaue If you will †vnderstand whether a villeine may make his testament or not we must †note that whatsoeuer villeines haue of their owne be it landes or goodes the lorde may by entrie or seasing take and enioye the same as his owne r) Brooke Abridg. tit villenage Perkins tit Graunts fol. 6. Litleton tit villenage Termes of law verb. Them onely he may not slay or maine his villeine s) Old tenurÌ„ tit villen And therefore †if the villeine make any deuise of landes or goodes the Lord may before the approbation of the will or apprehension of the goodes by the executor enter to those landes and sease those goodes or some parcell thereof in the name of the whole and by that meanes make voide the gifte or deuise of the villeine t) Doct. Stud. lib. 2. c. 43. The will is also voyd though the Lord doe not really sease any goods of his villeine in case he did claime the villeine in his life time and by wordes onely did sease his goodes for then the executor shall not haue them but the lord of the villeine v) Brooke tit villeine n. 50. But if †the will be prooued before the ordinarie and by him approoued and the executors by vertue of the same will or deuise enioie or possesse the same landes or goodes accordingly then I suppose the lord may not enter to such landes or sease those goodes no entrie seasing or claime being made before x) Brooke eodem titu num 73. Doct. Stud. lib. 2. c. 43. Adde quod Ascriptitius potest testmÌ„ facere Spec. de Instr edi §. compeÌ„diose Lindw in c. statutuÌ„ verb. AscriptitioruÌ„ de testa lib. 3. prouincial constit Cant. for if a villeine purchase landes and alieneth the same to an other before his lorde enter then the lord may not enter afterwardes but it shall be imputed to his owne follie that hee entred not when the lands was in the villeines hands y) Litleton tit villenage And so it is of other goodes which if the villeine sell or giue to an other before the Lorde doe sease them the sale or gift is good and the lord can not afterwardes haue the same z) Ibidem Neuerthelesse if the †prince haue anie villeine which purchaseth lands and alieneth the same before the prince doo enter yet maie the prince at any time after enter vnto the landes to whom so euer the same doe come a) Litleton vbi supr And likewise if the princes villeine sell or giue any goodes yet may the prince at any time after sease those goods in whose hands so euer they doo remaine b) Ibidem for the prince is not preiudized by any course of time And therefore I doe collect that if the princes villeine should by testament dispose either landes or goodes the prince notwithstanding the approbation of the same testament and execution thereof might enter to the lands and sease the goods so deuised or disposed in whose hands so euer the same were c) Arg. à contract ad vlt. vol. de quo Olden Topic. Legal loco à contract Note that †what I haue here spoken of villeines is not to be vnderstood of such persons as onely holde lands in villenage being themselues no bond-men but free for diuers persons holde by tenure in villenage and yet be no villeines themselues d) Brooke Littleton Old tenures tit villenage but of such as bothe hold by villenage and are villeines also For these are they whose testaments or last willes are voidable sauing as before where the will is prooued and the executor or legatary possessed of the thinges deuised And sauing where †the villeine is executor to an other person for being executor himselfe he may appoint an other executor who shall haue those goodes which the villeine had as executor and not the Lord of the villeine e) Brooke tit villenage n. 73. For if the †villeine himselfe were liuing the Lord could not take from him such goodes as hee hath as executor to an other man if he did his villeine might bring an action against him for the same and recouer both the goods and dammages f) Brooke d. tit villenage n. 68. the †reason is because that which the villeine hath as executor hee hath it not to his owne vse g) c. Statutum §. nullus de testa lib. 3. prouincial constituc Cant. infr part 6. §. j. but is to be imployed in the behalfe of the testator as to the paiment of his debtes and legacies and to other godlye vses as appeareth more at large in the office of an Executor h) Infr. 6. part §. j. §. iij. §. xvj §. xxj Of captiues and prisoners 1 A captiue during his captiuitie can not make a testament 2 If the captiue escape whether the testament made during his captiuitie be good 3 What if the testament were made before hee were captiue 4 What if the testator be taken captiue by some pirat Turke Insidle or christian when warre is not proclamed 5 Whether he may make a testament which is condemned to perpetuall prison 6 VVhat if the testator be imprisoned for dette §. viij HEe †that is taken captiue by the enemie during his captiuitie can not make a testament a) L. eius qui apud hostes ff de
testmÌ„ q 31. Ego verò adhaereo Alex. Ias Decio Sichardo alijs in ead L. hac consultissima Tiraquel qui putarunt hanc solennitatem non esse necessariam in huiusmodi testamento sed sufficere probationem iuris gentium hanc opinionem recepit generalis regni nostri consuetudo But †he cannot make his testament in writing vnlesse the same be reade before the witnesses in their presence and acknowledged by the testator for his last will And therefore if a writing were deliuered to the testator and he acknowledged the same for his will this were not sufficieÌ„t for it may be that if he shold heare the same reade hee would not acknowledge the same for his will (b) DD. in d. L. hac consultissima C. qui testa fac poss Of Traitours 1 Traitours loose both their liues landes and goods and consequentlie are intestable 2 Traitours are intestable not onely from the time of their conuiction but from the time of the crime committed 3 A traitour pardoned and restored may make his testament §. xij OF those who are prohibited to make their testaments as malefactors who now are to make their appearance and to shew theÌ„selues in the course of this treatise traitours because they are most pernicious to the common wealth are most worthie the first place in punishments Vnderstand †therefore that whosoeuer is lawfully conuicted of high treason by verditte confessioÌ„ outlawrie or presentment besides the losse of his life shall forfeite to the prince all his goods and cattelles and all such landes tenements and hereditaments as he shal haue in his owne right vse or possession of any estate or inheritance at the time of such treason committed or at any time after a) Stat. Ed. 6. an 5. c. 11. and so consequentlie is intestable b) L. quisquis §. j. C. ad L. Iul. maiest L. si quis de iniust test L. nemo ff de leg 1. Vasq de succoss progress lib. 1. §. j. n. 165. qui multis ampli hanc concl ornat in so much †that traitours are not onely depriued of making any testament or other kinde of last will from the time of their conuiction but also the testament before made dooth by reason of the same conuiction become voide both in respect of goodes and also in respect of lands tenements and hereditaments c) Stat. Ed. 6. an 5. c. 11. DD. in d. L. nemo de leg 1. ff Vasq vbi sup Neuerthelesse if †any person being attainted of treason obtaine the princes pardon and be thereby restored to his former estate then may he make his testameÌ„t as if he had not been conuicted d) L. si quis § quatenus ff de iniust rupt irrit testa or if he made any before his conuiction and condemnation the same by reason of such pardon recouereth his former force and effect as hereafter is more fully declared e) Infr. 7. part §. xvij Of Felons 1 Felons loose life and goods and so be intestable 2 Who shal haue felons landes 3 Whether hee that is onely indited of felonie maie make his testament 4 Whether he that standeth mute may make his testament of his landes 5 Whether a man after he is apprehended for felonie may make his testament 6 Felons goods not to be seased before attainder 7 The testament of a Felon conuicted is void though he be neuer executed §. xiij IF any person †be condemned of felonie he ought to suffer death and †the Prince shall haue all his goods where so euer they bee found a) Stat. Eliz. an 5. c. 14. Termes of law verb. robberie and if he †haue any free holde it shall forthwith be seased into the Princes hands and the Prince shall haue the profite thereof by the space of a yeere and a day and also waste b) Praerog Reg. c. 16. Eliz. an 5. c. 14. and after the Prince haue had it the yeere and the day and waste the land shall be restored to the cheefe lord of the fee except in certaine places as in the countie of Glocester where after a yeere and a day the lands and tenements of felons shal reuert to the next heire to whom it ought to haue descended if the felonie had not beene committed c) Praerog reg c. 16. Or in Kent in Gauelkind whereas it dooth descend to al the heires males equally to be deuided or to the daughters where there be no sons to be deuided amongst theÌ„ for there it is said the father to the boughe and the son to the ploughe d) Eod. c. 16. Felons therfore lawfully conuicted can not make any testaments or other dispositions of anie goods or landes whereof as wee see the lawe hath disposed already e) Duplici ratione daÌ„natus ad mortem fit intestabilis nimirum bonorum publicatione damnatione ad mortem Damnatus autem ad mortem naturalem efficitur seruus poenae quod communi opinione nititur aduersus eos qui existimarunt ingenuum hodie non effici seruum poenae huiusmodi damnatione sed procedit prior opinio siuè quis damnatus sit secundum ius commune siuè etiam secundum statutum alicuius loci Iul. Clar. §. testmÌ„ q. 21. Couar in Rub. de testa extr 3. part n. 27. Michael Grass Thesaur com op §. testmÌ„ q. 26. But †if any man be indited onely of felony and die before he be conuicted or attainted he may make his testament of his goods and also of his lands f) Quia non condemnatus non reperitur prohibitus vide stat R. 3. an 1. c. 3. or if †he be indited at the Princes suite and so beeing arraigned vpon that inditement will not answer but standeth mute or dumbe whereupon he is to receiue paine as it is tearmed Forte Dure and bee pressed to death g) Do. Stu. lib. 2. c. 41. In this case his goods onely be confiscate but not his lands h) ibidem and therefore in this case I suppose he may make his testament of his landes i) Quia viz. non ê“hibetur qÌ„ non condeÌ„natur If a felon †bee indited and afterwards attainted by verdit or confession the time of the fact committed comprised in the inditement is to be regarded in respect of his lands but in respecte of his goodes in the time of his iudgement k) Perk. tit grants fol. 6 And therefore if before iudgement he doe sell giue or otherwise alienate his goodes such saile gift or alienation is good l) Perkins vbi supr coÌ„cordatius ciuile L. post contractum ff de donac cum distinctione tamen vt per Bar. in d. L. Grass §. testmÌ„ q. 26. Neither †may the Sherife or other person take or sease the goods of any person arrested and imprisoned before the same person be conuicted or attainted of felonie according to the law or that the goods bee otherwise lawfullie forfeited
rule of the deuise of landes is negatiue 2 The exceptions of this rule are of two sortes §. ij TRue it is that this matter of the deuise of landes tenementes and hereditamentes which in this realme of Englande with all questions incident thereunto is to be determined according to the lawes temporall of this realme and is not subiecte to the rules and decisions of the lawes ciuill or ecclesiasticall lest therefore whilest I would seeme a meere professor of the ciuill lawe I might seeme altogether to neglecte both lawe and ciuilitie by thrusting my sickle into an others haruest and setting my foote in an others possessions without licence first obtained for the auoiding of this offence before I go any further I am to craue this fauour learned professors and serious students of the laws temporal of this realm that for as much as this your fielde wherein groweth all these questions concerning the deuise of landes dooth lie so iust betwixt me and those other groundes wherein the marke whereat I aime is placed and wherein the fruite which I would gladlie vtter is planted so that I can not as nowe my iourney lieth haue readie accesse vnto the one but through the other It would therefore please you giue mee a little leaue to walke through a corner of your large dominions vnto those foresaid places more proper to them of mine own professiō Your territories I confesse are verie fertile and ful of hidden treasure the fruite also of that soile I meane the golden cases much like the golden fleece of Colchos the growing very pleasant profitable Howbeit you neede not be afraid of any preiudice for neither wil I disturbe your quiet possession with any long abode neither cā I if I wold cōueigh away the riches you should reape by disclosing of the mysteries of your gaineful arte to me vnknown vnles I would seeme to be more bold then blinde baiarde more arrogant then the ignoraunt Cobler who for his saucinesse receiued this admonition Ne sutor vltra crepidam And further that as a poore passenger I maie bee allowed to take a taste of those thinges which you haue set abroache to all the world and which by your sundrie bookes you haue made common to all trauellers the rather for that I am prepared in some sorte to requite the same This onelie I desire and this I hope you will not denie to the purpose therefore Touching the bequest or deuise of landes tenementes and hereditamentes this appeareth to be a true position and ground agreeable to the ciuill lawe a) c. imperialis de prohib feud alien lib. 2. Feud Bald. in c. 1. de success feud and also the laws of this realme b) Stat. H 8. an 27. c. 10. in princ Doct. Stud. lib. 1. c. 8. Perkins tit deuise 102. that landes tenementes or hereditamentes can not be disposed or deuised by will but in certaine cases of which some are approued by force of certaine customes c) Infr. §. prox within this realme and some by force of certaine statutes d) Infr. ead par §. 4. Certaine cases approoued by custome wherein it is lawfull to deuise landes tenementes or hereditaments 1 Gauelkinde landes may be deuised by will 2 The cause wherefore the custome of Gauelkinde did continue 3 Burgage lande deuiseable by will 4 To whom and after what manner Burgage landes be deuiseable 5 Whether anie other person maie deuise Burgage landes but a citizen 6 Burgage tenure a kinde of tenure in Soccage 7 Whether liuerie or seasin bee needefull where burgage land is deuised 8 Whether the Iointenaunt may bequeath his part of Burgage land otherwise deuiseable 9 Of landes deuised to certaine vses 10 The custome of deuising landes to feoffes reformed 11 The causes of this reformation 12 The statute or acte of reformation §. iii. THe first case wherein by custome of this realme of England it is lawfull for a man by his laste will or testament to deuise or bequeath landes tenements or hereditamēts is this namely whē lands tenements or hereditaments are holden in Gauel-kind for such †landes tenements or hereditaments by ancient custome maie be giuen or deuised by wil a) Dyer fol. 153 verb. deuise Termes of law verb. Grauelkind ita saepissimè accepi à nonnullis huius regni iurisperitis the same otherwise being duelie made For †after that William duke of Normandie had inuaded and conquered all England Kent onelie excepted at last also the kentish-men yeelded but vpon condition that they might enioy their auncient customes of Gauelkind which was graunted vnto them since hath continued b) Lambert perambulation of Kent fol. 23. amongest which customes being verie large and benificiall this is one that they which holde landes in Gauelkinde may giue and sell the same without licence asked of their lordes sauing vnto the lordes the rentes and seruices due out of the same tenementes c) Termes of law vbi supr Lambert vbi supr fol. 416. The †second cause is when the lands or tenementes be holden in Burgage tenure d) Fitzherb Nat. Bre. ex graui querela in prin Doct. Stud. lib. 1. c. 7. 10. For it is the custome of diuers Cities and Borroughes of this land as in London Yorke Oxford c. that such persons as are seased of landes tenementes or hereditamentes lyinge and being in such cities or boroughes and hold the same in burgage tenure maie by their testamentes or last willes giue or bequeath the same to whom they will e) Brook Abridg. tit deuise n. 22. 51. Fitzber in d. Br. ex graui querela Doct. Stud. d. c. 7. 10. Lindw in c. statut de testam lib. 3. prouincial constituc Cant. verb. de consuctudine verb. laicalis feodi eod c. to holde in fee simple or in fee taile or for life or yeeres or otherwise and such bequest or deuise is good f) Fitzherb in d. Breui ex graui querela the will being lawfullie made and prooued before the ordinarie as touching the goodes and cattelles bequeathed in the same and enrowled before the maior of the said citie or borough g) Fitzher in d. Bre. ex graui querela Howbeit it is not alwaies necessarie that the testament be proued before the ordinary or inrolled wherein landes onelie and no goodes and cattelles are bequeathed h) Brook Abridg. tit deuise n. 43. For in some places by the custome there vsed the deuisee maie enter to the landes deuised of his owne auctoritie without any probation or inrolment praecedent and in other places hee is to bee put in seasin or possession by the Balife i) Brook d. tit deuise n. 43. principall grounds tit burgage fol. 43. And it seemeth not to be needeful to the validitie of the deuise in this case that the testator should be a citizen or burgesse of that citie or boroughe where the landes or tenementes deuised doo lie but
as that they may conuenientlie keep and maintaine their hospitalities and families nor the good educations and bringing vp of their lawfull generations which in this realme laude be to God is in all parts very great and abundant but that in maner of necessity as by daily experience is manifested and knowen they shal not be able of their proper goods cattelles and other moueable substāce to discharge their debtes and after their degrees set foorth and aduance their children posterities Wherefore our said soueraigne Lord most vertuously considering the mortality that is to euery person at Gods will and pleasure most common vncertaine of his most blessed disposition and liberality being willing to releeue help his said subiects in their said necessities and debility is contented and pleased that it be ordained and enacted by authority of this present parliament in manner and forme as hereafter followeth that is to say that all and euery person and persons hauing or which hereafter shall haue any manours landes tenements or hereditaments holden in socage or of the nature of socage tenure and not hauing any manours lands tenements or hereditaments holden of the king our soueraigne Lord by knights seruice by socage tenure in chefe or of the nature of socage tenure in cheef nor of any other person or persons by knights seruice from the 20. day of Iulie in the yeere of our Lord God 1500. forty shall haue ful and free liberty power and authority to giue dispose will and deuise as well by his last will and testament in writinge or otherwise by any acte or actes lawfully executed in his life all his said manours landes tenementes or hereditaments or any of them at his free will and pleasure any lawe statute or other thing heretofore had made or vsed to the contrary notwithstanding And that all and euery persone and persons hauing manours landes tenementes or hereditamentes holden of the king our soueraigne Lorde his heires or successours in socage or of the nature of socage tenure in cheefe and hauing any other manours lands tenementes or hereditamentes holden of any other person or persons in socage or of the nature of socage tenure and not hauing anie manours landes tenementes or hereditamentes holden of the king our soueraigne Lorde by knightes seruice nor of anie other Lorde or person by like seruice from the 20. daie of Iulie in the said yeere of our Lord God 1500 and fortie shal haue full and free liberty power and authority to giue will dispose and deuise as wel by his last wil or testament in writing or otherwise by any acte or actes lawfullie executed in his life all his said manors landes tenements and hereditaments or any of them at his free will and pleasure any law statute custome or other thing heretofore had made or vsed to the contrarie notwithstanding Sauing alway and reseruing to the king our soueraigne lord his heires and successors all his right title and interest of primer seizon releefes and also all other rights and duties for tenures in socage or of the nature of socage tenure in cheefe as heretofore hath beene vsed and accustomed the same manors lands tenements or hereditaments to be taken had and sued out of and from the hands of his highnesse his heires and successors by the person or persons to whome any such manors lands tenements or hereditaments shall be disposed willed or deuised in such and like manner and forme as hath beene vsed by any heire or heires before the makinge of this estatute And sauing and reseruing also fines for alienations of such manors landes tenements or hereditaments holden of the king our soueraigne lord in socage or of the nature of socage tenure in cheefe wherof there shal be any alteration of freehold or inheritance made by will or otherwise as is aforesaid And it is further enacted by the authority aforesaid that al and singuler person persons hauing any manors lands tenemēts or hereditaments of estate of inheritance holden of the kings highnesse in cheefe by knights seruice or of the nature of knights seruice in cheefe from the said twentie day of Iulie shall haue full power and authoritie by his last wil by writing or otherwise by anie act or acts lawfullie executed in his life to giue dispose will or assigne two partes of the same manors landes tenements or hereditaments in three partes to bee diuided or else as much of the saide manors lands tenements or hereditaments as shall extend or amounte to the yeerelie value of two parts of the same in three partes to be deuided in certentie and by speciall deuisions as it may be knowen in seueralty to and for the aduancement of his wife preferment of his children and paiment of his debtes or otherwise at his will and pleasure anie law statute custome or other thing to the contrarie thereof notwithstanding Sauing and reseruing to the king our souereigne lord the custodie wardship primer seizon or any of them as the case shall require of as much of the same manors lands tenements or hereditaments as shal amount and extende to the full and cleere yeerelie value of the third parte thereof without any diminution dower fraud couin charge or abridgment of anie of the same third part or of the full profits thereof Sauing also and reseruing to the king our said soueraigne lord all fines for alienations of all such manors lands tenementes and hereditamentes holden of the kinge by knights seruice in cheefe whereof there shal be any alteration of free-holde or inheritaunce made by will or otherwise as is abouesaide And be it enacted by authority aforesaide that all and singuler person and persons hauing manors lands tenementes or hereditaments of estate of inheritance holden of the king in cheefe by knights seruice and hauinge other manors lands tenements or hereditaments holden of the king or of any other person or persons by knights seruice or otherwise euerie such person and persons from the said twentie daie of Iulie shall haue full power and authoritie to giue dispose will or assigne by his last will in writing or otherwise by anie acte or acts lawfullie executed in his life two parts of same manors lands tenementes or hereditamentes in three partes to be deuided or else as much of the same manors lands tenemēts and hereditaments as shal extend or amount to the yeerelie value of two parts of the same in three partes to be deuided in certeintie and by speciall diuisions as it may be knowen in seueraltie to and for the aduancement of his wife preferment of his children and paiment of his debts or otherwise at his will and pleasure any lawe statute custome or other thing to the contrarie thereof notwithstanding Sauing alwaie and reseruing to the king our souereigne lorde the custodie wardship and primer seizon or any of them as the case shal require of as much of the same manors lands tenements or other hereditaments as shall amounte and extend to the
full and cleere yeerelie value of the third parte thereof without anie maner diminution dower fraud couin charge or subtraction of the same third parte or of the full profites thereof Sauing alwaie reseruing to our saide soueraigne lord the king all fines for alienation of anie such manors lands tenements or hereditaments holden of the king by knightes seruice in cheefe whereof there shall be anie alteration of freehold or inheritaunce made by will or otherwise as is abouesaid Be it further enacted by the authoritie abouesaid that if anie person or persons hold any manors lands tenementes or hereditaments onelie of any other lord or person than of the king our said souereigne lorde by knightes seruice and other lands and tenementes in socage or of the nature of socage tenure that then euerie such person shall or may giue dispose or assure by his last will or otherwise by anie act or actes lawfullie executed in his life two partes of the said manors lands and tenementes holden by knights seruice or of as much thereof as shall amount to the full yeerelie value of two partes in maner and forme as is aboue declared and also all the landes and tenementes holden by socage or of the nature of socage tenure at his will and pleasure as is aboue written sauinge and reseruing to the lord of the lands and tenements holden by knightes seruice for his custodie and wardship as much of the same lands and tenementes as shall extend or amounte to the full and cleere yeerelie value of the third part of the same landes and tenements holden by knights seruice without anie diminution dower fraud couin charge or subtraction of anie portion of that third part or of the cleere yeerelie value thereof in manner and forme aforesaid And be it further enacted by the authoritie abouesaid that if any person or persons hold anie manors landes tenementes or hereditamentes onelie of the king our soueraigne lord by knightes seruice and not in cheefe or hold anie manors landes tenementes or hereditamentes of our said soueraigne lord by knights seruice and not in cheefe and also holde other manors landes tenementes and other hereditamentes of anie other person or persons by knights seruice and also holde other manors landes tenementes or hereditamentes of anie other person or persons in socage or of the nature of socage tenure that then all and euerie such person and persons shall and maie giue dispose will deuise and assure by his last wil or otherwise by anie acte or acts lawfullie doone and executed in his life two partes of the same manors landes tenements and hereditaments holden of our said soueraigne lord the king by knights seruice and two partes of the manors landes tenements and hereditaments holden of anie other person or persons by knights seruice or as much of either of them as shall amount to the full yeerelie value of two partes in maner and forme as is aboue declared and also of all his lands and tenements so holden in socage or of the nature of socage tenure at his free will and pleasure Sauing and reseruing to the kings highnesse the custodie and wardship of as much of the same manors landes tenementes or other hereditaments as shal extend and amount to the ful and cleere yeerelie value of the third part of the said manors lands tenementes and hereditaments so holden of his highnesse by knightes seruice without anie diminution dower fraud couin charge and subtraction of anie portion of that third part or of the full profites thereof And also sauinge and reseruing to the lords of whom anie of the said manors landes tenementes or other hereditamentes beene holden by knightes seruice for custodie and wardship as much of the same manors lands tenementes or hereditamentes holden of them or anie of them by knights seruice as shall extend and amount to the full and cleere yeerelie value of the third parte of the same without anie diminution charge fraude couin or subtraction of anie portion of that third or of the cleere yeerelie value of the third part therof in maner forme aboue declared Prouided alwaie and it is further enacted by the authority aforesaid that if that third part of the manors landes tenementes or hereditaments of anie of the kings subiectes which in anie of the cases aboue said shal hereafter come to the kings highnesse his heires or successors by vertue of this acte as is abouesaid be not or doo not amount to the cleere yeerelie value of the third part of all the said manors lands tenementes or other hereditaments whereof the kings highnesse is or shall be intituled to haue the custodie or primer seizon as is aboue said that then our said soueraigne lorde and his heires shall and maie at his or their free libertie and pleasure take into his or their handes possessions as of the other two partes of the said manors landes tenementes and other hereditamentes as with that of the same manors lands tenementes or hereditamentes holden and remaining in the kings hands shal make vp the cleere yeerelie value of the full third parte of the said manors and tenementes so to bee had to the kinges highnesse in title of wardship and primer seizon or anie of them as the case shall require and like benefit and aduantage to be giuen to euerie lorde and lordes of whom anie such manors lands tenementes or hereditamentes beene or shall bee holden by knightes seruice as is abouesaid concerninge onelie his third part of or for title of wardship Prouided alwaie and bee it further enacted by the authoritie aforesaid that euerie person and persons shall sue their liueries for possessions reuersions or remainders and also paie releefes and heriots after such maner and forme as they should or ought to haue doone before the making of this acte and as if this acte had neuer beene made And that fines for alienations shall be paid in the kinges chancerie for and vpon writes of entree in the post to be obteined in the same courte of chancerie after the said twentie daie of Iulie for common recoueries to be had or suffered of anie manors landes tenementes or hereditamentes holden of the king in cheefe in like maner and forme as is vsed vpon alienations of such manors landes tenementes or hereditamentes so holden in cheefe by fine or feoffement Prouided also and be it enacted by the authoritie aforesaid that in such cases where fines for alienations shal be paied in the kings chācerie for writes of entree in post as is aforesaide that then none other fine shall bee paied in the same courte for anie such writes anie vsage or custome to the contrarie thereof notwithstanding And be it further enacted by the authoritie afore-saide that where two or more persons now holde or hereafter shall holde anie manors landes tenementes or hereditamentes of the king our soueraigne lorde by knightes seruice iointlie to them and to the heires of one of them and he that hath the inheritance
therof dieth his heire being within age that in euerie such case the king shall haue the warde and mariage of the bodie of such heire so being within age the life of the freeholder or freeholders of the said manors landes tenements or hereditaments so holden by knights seruice notwithstanding Sauing and reseruing to all and euerie woman and women all and euerie such right title interest of dower as they or any of them ought to haue or bee or shall be iustlie intituled to haue claime or demand of anie manors landes tenementes or hereditamentes by the lawes of this realme to be taken or assigned vnto them or anie of them out of the two partes of the said manors landes tenementes or hereditaments seuered and deuided from the third part as is aboue said and not otherwise And sauing also to the king our soueraigne lord his heires and successours the reuersions of all such tenauntes in ioyntenure and dower immediately after the death of such tenauntes if they shall happen to die duringe the minoritie of the kinges wardes An other acte for the Explanation of the former concerning willes and the deuise of landes WHether in the laste parliament begunne and holden at Westminster the 28. day of Aprill in the 31. yeere of the kinges most gratious raigne cap. primo willes 2. And there by diuers prorogations holden and contiued vnto the 24. daie of Iulie in the 32. yeere of his saide raigne It was by the kings most gratious and liberall disposition shewed toward his most hūble and obedient subiects ordeined and enacted howe and in what manner landes tenementes and hereditamentes might by will or testament in writing or otherwise by anie acte or actes lawfullie executed in the life of euerie person giuen diposed willed or deuised for the aduauncement of the wife prefermente of children paiment of debtes of euerie such person or otherwise at his wil or pleasure as in the same acte more plainelie is declared Sithen the making of estatute diuers doubtes questions and ambiguities haue risen beene moued and growen by diuersity of opinions taking in and vpon the exposition of the letter of the same estatute For a plaine declaration and explanacion whereof and to the intent and purpose that the kinges obedient and louing subiectes shall and may take the commoditie and aduantage of the kinges said gratious and liberall disposition the lordes spiritual and temporall and the commons in this present parliament assembled most humbly beseeching the kings maiestie that the meaning of the letter of the same estatute concerning such matters hereafter rehearsed may be by the authority of this presēt parliament enacted taken expounded iudged declared and explaned in manner and fourme following First where it is contained in the same former statute within diuers articles branches of the same that all and singuler person and persons hauing any manors lands tenements or hereditamentes of the estate of inheritance should haue full and free libertie power and authoritie to giue will dispose or assigne as well by last will and testament in writing or otherwise by anie act or actes lawfullie executed in his life his manours landes tenementes or hereditaments or anie of them in such manner and fourme as in the same former act more at large it dooth appeare Which wordes of estate of inheritaunce by the authority of this present parliament is and shall be declared expounded taken and iudged of estates in fee simple onelie And also that all and singuler person and persons hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenarie or in common in fee-simple of in anie manors lands tenements rents or other hereditaments in possession reuersion or remainder or of rents or seruices incident to anie reuersion or remainder and hauing no manors lands tenements or hereditaments holden of the king his heires or successors or of any other person or persons by knights seruice shall haue full and free liberty power and authority to giue dispose will or deuise to anie person or persons except bodies politike and corporate by his last wil and testament in writing or otherwise by any act or actes lawfullie executed in his life by him selfe soly or by himselfe and other iointly seuerally or particularlie or by al those waies or any of them as much as in him of right is or shall be all his said manors lands tenements rentes and hereditaments or any of them or any rents commons or other profits or commodities out of or to be perceiued of the same or out of any parcell thereof at his owne free will and pleasure any clause in the saide former acte notwithstanding And further be it declared enacted by the authority aforesaid that al singuler person persōs hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenery or in cōmon in fee-simple of or in anie manors lāds tenements rentes or other hereditamentes in possession reuersion or remainder or of in any rents or seruices incident to any reuersion or remainder holdē of the king by knights seruice in cheef or of the nature of knights seruice in cheefe hath by the authority of this present parliament shall haue full and free liberty power authoritie to giue dispose will or assigne to any persō or persōs except bodies politike corporate by his last will testament in writing or otherwise by any act or acts lawfully executed in his life by him selfe soly or by himself other iointly seuerally or particularly or by al those waies or any of them as much as in him of right is or shall be two parts aswell of al the said manors lands tenementes rents and hereditaments as of all and singuler his other rents hereditaments or of any of them or anie rents commons or other profits or cōmodities out of or to be perceiued of the same two parts or out of any parcell thereof in three partes to be deuided or as much therof as shal amount to the full and cleere yeerelie value of two parts thereof in three parts to be diuided of what person or persons so euer they be holden at his free will and pleasure And that by the authority aforesaid the said will so declared shal be good and effectuall for two parts of the said manours lands tenements and hereditaments although the will so declared be made of the whole or of more than of two parts of the same The same diuision to be made and set forth by the deuisour or owner of the same manours lands tenements and hereditaments by his last will in writing or otherwise in writing And in default therof by a commission to be graunted out of the kinges courte of the wards and liueries vpon the enquirie of the true value therof by the othes of 12. men and returne or certificate thereof had in the same court of the said manours lands tenementes and hereditaments diuision to be made by the master of the
the full profits thereof of all the said manours lands tenements hereditaments of euerie such owner or deuisour so to bee had to the king in the title of wardship or primer season as the case shall require And the deuision thereof to be had and made and with the restitution of the profits of the two partes of the said manours lands tenementes and hereditamentes in such maner and fourme as is aboue rehearsed And like benefit and aduantage to be giuen had and taken by the said authority to euerie Lord and Lordes of whom anie such manours lands tenements or hereditaments beene or shall be holden by knightes seruice in maner and fourme as is aboue said concerning onelie his or their third partes thereof according to their said interest therein And be it further enacted by the authoritie aforesaid that if it happen the same third parte or anie part thereof left willed or assigned to the king or other lord at anie time during their interestes therein to be lawfullie euicted or determined that than the king and the other lord shall haue as much of the two partes residue as shall accomplish and make vppe a full thirde part in cleere yeerelie value after the rate and portion of such manours landes tenementes and hereditamentes as shall then happen to remaine of the same third part not deuicted nor determined and of the other two parts of such manours landes tenementes and hereditamentes as the kinge or other lorde shoulde or ought to haue had by vertue of the said former act and this present act and the same to be deuided in maner and fourme aboue rehearsed anie clause in the said former acte notwithstanding And be it further enacted and declared by the authoritie aforesaid that the sauing and reseruing for fines for alienation by anie such last will and testament of such manours landes tenements or hereditaments holden of the king by knightes seruice in cheefe or of the nature of knightes seruice in cheefe or by socage in cheefe or of the nature of socage tenure in cheefe or for fines for alienation of such manours landes tenementes or hereditamentes whereof there shall be anie alteration of freeholde or of inheritance made by anie such last will comprised in diuers and sundrie articles mencioned in the said former acte be and shall be intended expounded taken deemed and iudged by the authoritie aforesaid that all such person or persons to whom the said manours landes tenementes or hereditamentes or anie of them be or shall be giuen disposed willed or deuised by anie such last will shall be exonerated acquited and discharged for euer against the king his heires and successours for all such fines for alienations by anie such last will or testament without licence by suing forth of the kinges pardon for alienation out of the kinges courte of Chauncerie paying to the king his heires or successours for the fine of euerie such alienation the third parte of the yeerelie value of the same manors landes tenementes or other hereditamentes to him or them willed or deuised and this acte from time to time shall be a sufficient warrant to the lord chauncellor of England or keeper of the great seale for the time being for the graunting out of the saide pardon or pardons vnder the kings great seale as heretofore hath beene vsed for pardons for alinations without anie further suite to bee made to the king for the same And it is further declared enacted by the authoritie aforesaid that willes or testamentes made of any manours lands tenements or other hereditaments by any woman couerte or person within the age of 21. yeeres idiote or by any person de non sane memorie shall not bee taken to be good or effectuall in the lawe And further be it enacted by the authoritie aforesaide that if anie person or persons hauing estate of inheritaunce of or in manours landes tenementes or hereditamentes holden of the king by knightes seruice in cheefe or otherwise of the kinge by knightes seruice or of anie other person or persons by knights seruice hath giuen at anie time sithen the 20. daie of the said month of Iulij 32. H. 8. An. do 1540. or hereafter shall giue wil deuise or assigne by will or other acte executed in his life his manours landes tenementes or hereditamentes or anie of them by fraude or couin to anie other person or persons for terme of yeeres life or liues with one remainder ouer in fee or with diuers remainders ouer for terme of yeeres life or in taile with a remainder ouer in fee simple to anie person or persons or to his or their right heires or at anie time sithen the said 20. daie of Iulie hath conueied or made or hereafter shall conueie or make by fraude or couin contrarie to the true intent of this act anie estates conditions menalties tenures or conueiaunces to the intent to defraud or disceiue the king of his praerogatiue primer seasō liuerie releef wardship mariages or rights or any other lord of their wardships releefs heriots or other profites which should or ought to accrue grow or come vnto thē or any of them by or after the death of his or their tenant by force and according to the former estatute and of this present acte and declaration and the same estates and other conueiaunces beeinge found by office to be so made or contriued by couin fraude or disceipt as is abouesaid contrarie to the true intent and meaning of the said former acte and of this act That then the king shall haue as well the wardshippe of the bodie and custodie of the landes tenementes and hereditamentes as liuerie primer season releefe and other profites which shoulde or ought to appertaine to the kinge according to the true intent and meaning of the said former acte and of this present acte as though no such estates or conueiaunces by couin had neuer beene had or made vntill the said office bee lawfullie vndon by trauers or otherwise And that the other lord and lordes of whom anie such manours landes tenementes or hereditamentes shal be holden by knightes seruice as is aforesaid shall haue their remedie in such cases for his or their wardships of bodies and landes by write of right of warde and shall distreine and make auowrie or cognisaunce by themselues or their balifes for their releefes heriots and other profits which should haue beene to them due by or after the death of their tenaunt as if no such estate or conueiaunce had bene had or made Sauing and reseruing alwaies by the authoritie aforesaid the right and title of the donees feoffees leassees and deuisees thereof against the said deuisour and his heires after the interest and title of the king or other lord therin ended and determined Prouided alwaies that this acte explanation and declaration or anie of them or anie thing in this said acte explanation or declaration contained shall not extend to the wil or deuise of sir Iohn Gaynsforde late of
Crowherst in the coūty of Surrie knight deceased Nor to the will or deuise of sir Peter Filpot knight deceased Nor the wil or deuise of Richard Creswel late of Mattingley in the countie of South gentleman deceased nor to the will or deuise of Thomas Vnton late of the countie of Berk. gentleman deceased sonne of sir Thomas Vnton knight also deceased or shal be in anie wise preiudiciall or hurtfull to anie person or persons for or concerning anie manours landes tenements or hereditaments conteyned or specified in the said willes or deuises or in any of them but that the said last willes and deuises and euery of them shall stande abide remaine and be in the same case force and effect in the law to all intents purposes and constructions as the said last willes and deuises and euerie of them were before the making of this act declaration and explanation and of none other effect or force this act declaration explanatiō or anie of them or anie thing therein contained to the contrarie thereof in anie wise notwithstanding Prouided alwaie and bee it enacted by the authoritie aforesaid that all and euerie person and persons from whom the king or other lord or lordes shall take anie manours landes tenementes or hereditamentes for his or their full thirde part or to make vp his or their third part shall and maie by authoritie of this present act in anie of the cases aforesaide vpon his or their bill exhibited in the kinges courte of Chauncerie against al and euerie such person and persons which shall be entitled by or vnder anie such will gifte disposition or deuise to the other two partes haue such contribution or recompence for the same as by the chancellour of England or by the keeper of the great seale of England for the time being shall be thought good and conuenient Of the deuise of goods and Chattelles 1 All manner of goods and chattelles may be deuised by will certaine cases excepted 2 The rule of the deuise of landes contrary to the rule of disposing of goodes §. v. COncerning the secōd kind of thinges deuiseable by testament namelie goods chattelles this may be deliuered for a rule That all manner of goods and chattelles maie be bequeathed or deuised by will or testament a. L. caetera ff de leg 1. §. tam corporales Inst de legat ibid. DD. Lindw in c. statutum de testa lib. 3. prouincial constituc Cant. Perkins tit deuise c. 8. fol. 99. certaine cases onelie excepted b) De quibus §. pro◠Which rule is cleane contrarie to the former of the deuise of lands tenementes and hereditamentes for they can not be deuised sauing where some custome or statute hath gained libertie of bequeathing or deuising of the same c) Vt supr ead part §§ 2 3 4. But here in steede of the Negatiue rule is set downe the Affirmatiue the exceptions of which rule are prosecuted in the next Paragraphe Diuers kindes of goodes not deuiseable by will 1 Goods which a man hath iointlie with an other can not be deuised by will 2 What if the other ioint-tenannt be made Executor whether is the bequest good 3 Goods which a man hath as administratour cannot be giuen by will 4 Euerie administrator accomptable to the ordinarie 5 Difference betwixt the executor and the executor of an administrator 6 Goods of the realme that is to saie of the auncient crowne and iewelles can not bee giuen by will 7 Goodes belonging to a church or hospitall can not be deuised 8 Goodes belonging to a citie boroughe or communaltie can not be deuised 9 Church goodes can not be deuised 10 Things which descend to the heire and not to the executor are not deuiseable by will 11 Whether the corne growinge vpon the grounde whereof a man is seased in right of his wife be deuiseable 12 Whether corne on the ground be deuiseable by the lessee the lessor being seased in right of his wife 13 Corne growing deuiseable by the tenaunt by the curtesie of England 14 Corne growing deuiseable by the tenaunt in dower 15 Whether corne growing on lande morgaged bee deuiseable 16 Whether corne growing maie be deuised by the testators daughter where a sonne and heire is afterwardes borne or wherein the mother dooth recouer her dower 17 The testator cannot bequeath that which is an other mans §. vj. FIrst a man can not giue or bequeath by wil any of those goods or catelles which he hath iointlie with an other for if he should bequeath his portion thereof to a third person this bequest is voide by the laws of this realme a) Perkins tit deuise fol. 101. Doct. Stud. lib. 1. c. 6. licet ius ciuile contrarium dictet L. cùm alienum C. de legatis and the suruiuor which had those goodes or cattelles iointlie with an other shal haue that portion so bequeathed notwithstanding the said will b) Hoc verum iure regni nostri Angliae Doct. Stud. lib. 2. c. 25. secùs iure ciuili vt latè per Olden de action class 4. action pro socio In so much that if the testator make the other iointenaunt his executor against the which executor an action is commenced in the ecclesiasticall courte in a cause of legacie neuerthelesse the executor is not to be adiudged to possesse the said goodes as executor or by right of the will but by the title and right of the suruiuor c) Doct. Stud. lib. 2. c. 25. and so the executor is to be dismissed and the will in that respect to be iudged voide d) Vide supr ead part §. 3. n. 8. Secondlie an administrator can not make a testament of those goods which he hath as administrator to anie person dying intestate e) Brook tit administrator n. 7. Fitzherb eod tit n. 3. because he hath not anie such goodes to his own proper vse f) Plowd in cas inter Bransby Grantham fol. 525. 526. but ought there withall to paie the debtes and legacies of the dead person and to distribute the rest if anie thing doe remaine in Godlie and charitable vses g) c ita quorundam de testam lib. 3. prouinci const Cant. stat Ed. 3. an 31. c. 11. and for that cause euerie administrator is accomptable to the ordinarie for such distribution of the goods of the deceased committed to his administration h) d. Stat. Ed. 3. an 31. c. 11. And albeit an executor of an executor maie administer the goodes of the former testator i) Stat. Ed. 3. an 31. c. 25. yet the executor of an administrator can not administer the goodes of the former deceased but a new administration is to be cōmitted by the ordinarie of all the goods vnadministred by the late administrator as if he had also died intestate any testamēt or assignatiō of an executor by him notwithstāding k) Brook Abridg. tit administ n. 7. Principall grounds fol. 61.
pe tut L. matris C. eod in fin quam op longaeuus approbauit vsus but if they doo not electanie other curator after their seuerall ages then hee that is assigned in the will is to bee confirmed curator to either of the said children albeit hee were aboue 14. yeeres and she aboue 12. when the wil was made c) L. tutelae C. de testa tut §. dantur Instit de cura A tutor maie also be assigned to a childe that is not borne d) §. cum autem Instit de tut likewise to an ideote or him that is lunatike e) §. furiosi Instit de cura licet huiusmodi personae maiores sint 25. annis erunt sub curatione d. §. furiosi an haec authoritas fit penes testatorem vel ordinarium an ad regem spectet iure praerogat Quaere vt inf in d. §. But all this which is here aforesaid is to bee restrained so that it be not to the preiudice of him that is a Gardian or hath the wardship of anie infant or minor f) Habenti tutorem tutor non est dandus §. interdum Inst de cura or of anie idiote by reason of anie landes tenementes or hereditaments belonging to such infant or idiote g) Stat. praerogatiuae regis c. 9. Fitzh Breâ—e de idiota inquirendo For by the common lawes of this realme of England the lorde of whom the infant dooth hold his landes so soone as the father dieth hath the wardship and keeping of the heire and thereby maie sease vpon the bodie of the warde and his landes h) Tract de repub Ang. lib. 3. c. 5. per stat de praerog regis an 17. Ed. 2. c. 1. 6. whereof also he maie take the profites without accompt so that he nourish and bring vp the warde i) d. tract de repub An. And not that onelie but also offering to his warde conuenable marriage without disparagement before 21. yeeres if it be a man or 14. if it be a woman if the ward refuse to take that mariage he or she must paie the value of the mariage k) Stat. West c. 22. which is commonlie rated accordinglie to the profites of his lands which is a thing vtterlie condemned of some greatlie lamented of manie both graue and godlie because of the insatiable couetousnesse of diuers in these daies l) Vide d. tract de repub Angl. lib. 3. c. 5. Termes of law verb. gardein for that therby it commeth to passe manie times that a free man and a gentleman whiles he is an infant of slender discretion and lesse experience destitute of his beste friende that is to saie his naturall father and consequentlie subiect to the subtilties and importunities of his craftie and couetous Gailor is bought and solde like a beast to such as seeke to make most aduantage of him and in the ende besides manie moe inconueniaunces matched to my maisters daughter sister cosin or some other female to whom for her vertues and gentle conditions if thine enimie shoulde be preferred in mariage thou couldest wishe him no greater tormeÌ„t if it were lawful forthee to wishe him anie torment hell excepted To these perils are these infants subiect which holde landes of other by knightes seruice called in french Garde noble m) d. tract eod c. 5. for there is an other kind of seruice called Gard Returier alias Gard in socage or tenure by the ploughe n) Eodem loco This wardship falleth to him that is next of kin and can not inherite the lande of the warde o) Stat. Marleb c. 17. an 52. H. 3. as the vnckle on the mothers side if the land descend by the father or the vnckle on the fathers side if the land descend by the mother p) Brook tit gardeins prochein amye n. 11 12. 13. Termes of law verb. prochein amye This Gardyan otherwise called prochein amie is accomptable for the profites and reuenues of the lande to the warde as the tutor for the goods and chattelles to the pupill when he is of full age q) d. stat Marleb c. 17. d. tract de repub Angl. lib. 3. c. 5. Concerning Idiottes such is the praerogatiue of the princes of this lande that they shall haue the custodie of all the landes of naturall fooles and maie take the profite thereof without waste or destruction of whose fee so euer the same be holden findinge to them necessaries r) Stat. Ed. 2. de praerog reg c. 9. And after the death of such Idiottes the lande must be restored to the right heires s) Eod. stat But in the meane time that is to saie during the nonage of the warde or during the life of the Idiote the tuition of the bodie of the warde or Idiote or of his landes can not bee deuised by testament to anie other person contrarie to the course of common lawe in preiudice of him to whom the wardship dooth belong t) Quia tutorem habeÌ„ti tutor non datur sauing the testator maie committe the custodie of suche goods and chattelles as he dooth bequeath to the said infant or ideot to whom hee will and during so long time as he will v) Siquidem vnusquisque potest rebus suis quam velit legem imponere Mantic. lib. 7. tit 1. nu 38. testatoris voluntas habetur pro lege L. seruus ff de manumiss licet alias videatur per Fitzherb Nat. Bre. de idiota inquirendo quòd bonaquae idiotae obueniunt suo gardiano accrescunt Quaere tamenper Stamford suê‘ d. praerog reg c. Idiot Of the manner of appointing Tutors 1 A tutor maie be appointed simplie or conditionally to a daie or from a daie 2 The condition depending what is to be doone in the meane time 3 Lawfull to appointe one or manie tutors 4 Whether where one tutor is appointed an other maie be receiued 5 Whether diuers being assigned one tutor alone may be admitted 6 By what wordes a tutor maie be appointed 7 What if the testator saie I committe my children to thy power or to thy handes 8 What if he saie I committe my children vnto the quicke and deade 9 What if he saie I desire thee to take care of my son 10 The testator maie vse anie language in the assignation of a tutor §. xij BY the saide generall custome it is obserued within the prouince of Yorke a) De qua per plurima acta testa in d. sacro existen that a tutor maie bee assigned either simplie or conditionallie b) §. ad certum Instit qui testa tutor dari poss and vntil a certaine time or from a certaine time c) Eod. §. ad certum L. tutor §. tutorem de testaria tut ff But no tutor maie intermeddle as tutor vntill he be confirmed by the ordinarie albeit he be assigned tutor simplie d) L. legitimus ibi Bar. ff de legit tutel much
parte the child or children an other parte and the third part which is called the deathes part remaineth to the testator by him to be giuen or bequeathed to whoÌ„ he thinketh good h) Lind. Bract. Fitzh in locis praed And here note that where the wife or children ought to haue a ratable parte of the goods of the deceased be it a third parte or halfe as the case yeeldeth there also they ought to haue a like parte of the debtes due vnto the testator after they be recouered by the executor or administrator for then they are numbred or accompted amongest the goodes of the testator but not before i) Brook Abridg. tit exec n. 112. Siquidem si ista ex coÌ„suetudiue tantum debentur hac non probâ—ta sine difficultate illud procedet quod est iuri recepto magis consonum But of leases the wife and children can not haue anie ratable parte within the prouince of Yorke or other places where they haue beene accustomed to haue their ratable parte of the moueable goodes and debtes recouered vnlesse the saide wife or children demaunding their ratable parts of leases do proue that by speciall custome of that place namelie of that citie countie deanrie or parishe where the testator dwelled and had such leases the wiues and children were accustomed to haue their ratable parte as well of the leases as of the mooueable goodes of the testator which speciall custome being prooued they maie recouer their ratable part as before k) Fitzh in Br. de rationab part in quo Breui fit mentio non solùm bonorum sed etiam cattallorum Atque huc facit quod habemus in Mag. Chart. c. 18. The fourth case is when there is no suche custome of deuiding the goodes of the testator into two partes or into three partes as is before mentioned in which case albeit some were of this opinion that euen by the coÌ„mon lawes of this realme the cleere mooue-able goodes were to be deuided into three parts or into two partes as before whereof the wife and children were to haue their partes l) In hac sententia stetit Glandeuile antiquus huius regni iurisconsultus motus per stat de Magna Chart. c. 18. vt refert Fitzh in d. Breui de rationab part bon Brook Et per de rationab part bo sic enim post multaÌ„ disputationem inquit Et fuit dit pue ley M. 31. Henr. 8. que ceo ad estre mise en vre come vn comÌ„en ley nunque demurr ideo videtur que ceo est le comÌ„en ley and consequentlie that the testator could not dispose anie more thereof then the halfe or third being the deathes part Neuerthelesse others whose opinion hath preuailed doo holde the contrarie to wit that there is no such deuision to bee made by force of the common lawes of this lande but onelie by force of custome m) Fitzh d. Br. de rationab part bonor Brac. de legib coÌ„suet Ang. lib. 2. 26. Tract de repub Angl. lib. 3. c. 6. and coÌ„sequentlie that it is lawfull for the testator by the lawes of this realme except in those places where the custome aforesaid is obserued to dispose all the whole residue of his goodes his funeralles and debtes deducted at his likinge and that the wife or childe can claime no more thereof but accordinge as the testator shall deuise by his testament And in the opinion of some the lawe of this lande which leaueth all the residue to the disposition of the testator funeralles and debts deducted seemeth to haue better grounde in reason then the custome whereby he is forced either to leaue two partes of three or at leaste the one halfe to his wife and children n) Bracton d. lib. 2. c. 26 For what if the sonne be an vnthrifte or naughtie person what if the wife be not onelie a sharpe shrowe but perhaps of worse conditions Is it not harde that the testator must leaue either the one halfe of his goods to that wife or child or more for the which also peraduenture hee had labored full sore all his life were it not more reason that it should be in the libertie of the father or husband to dispose thereof at his owne pleasure which when the wife and children vnderstood it might be a meanes whereby they might become more obedient liue more vertuouslie and contend with good desert to winne the good will and fauour of the testator o) Hisce rationibus vtitur Bracton in desensionem â—uâ— is huius regni d c. 26. cui adde Rebuff in L obuenire de verb. signif ff fol. 682. These reasons make for the testator and for the equitie of the common law which leaueth the whole residue to his disposition But the custome whereby the libertie of the testator is restrained is not without reason also Forwhere it is asked what if the child be an vnthrifte the wife worse then a shrowe So it maie be demaunded with like facilitie what if the childe be no vnthrifte but frugall and vertuous what if the wife be an honest and modest woman which thing is the rather to be presumed p) c. dudum c. vltim de praesump extr Mas card tract de probae conclus 222. But if it be not amisse to feare the worst then on the contrarie what if the testator be an vnnaturall father or vnkinde husband perhaps also greatly inriched by his wife wheras before he was but poore standeth it not with as great reason that such a wife and children should be prouided for and that it shoulde not be in the power of such a testator to giue all from them or to bestowe it vpon such as had not so well deserued it and by that meanes set his wife children a begging surelie the custome hath as good ground in reason against lewd husbands and vnkinde fathers as hath the lawe in meeting with disobedient wiues and vnthrifty children q) Mediam viam elegit Iustinianus tà m quoad vxorem quà m quoad liberos Nam quod ad vxorem attinet inbet imperator illa bona restitui quae marito vel ab ipsa vxore vel ab alio nuptiarum causa nempe ad sustinenda matrimonij oneradonata suere L. 2. fol. matr ff Bar. in Rub. solu mâ—iom ff n. 21. quod autem attinet ad liberos iure ciuili Assis nunc triens id est tertia pars totius patrimonij nunc semis seu dimidium assis pro legitima debetur Auth. nouissimo C. de inoffic testa quae quidem legitima gratis tantum liberis deberi intelligitur nam ingratis nihil habet parens pro legitima â—â—linquere Claud. Battandier tract de legitima c. 13. If the testator doo bequeath more then he maie which legacie is to bee preferred or what other course is to bee followed 1 If the testator bequeath more then the deaths parte whether one legacie is to be preferred before an
vndergo the executorship § 4. Of the office of an executor testamentarie vndertaking the executorship § 5. Of diuerse questions about the making of an inuentarie And first whether it be of necessitie that an inuentarie be made § 6. What things are to be put into the inuentarie § 7. Within what time the inuentarie is to be made § 8. Of the forme to bee obserued in the making of an inuentarie § 9. Of the effect and benefite of an inuentarie § 10. Of the probation and approbation of testaments and namelie before whom the same are to bee prooued § 11. By whom the testament is to be prooued § 12. When is the testament to be exhibited proued § 13 Of the maner or forme of prouing and approuing testaments § 14. What fees are due about the probation and approbation of testaments § 15. Of the paiment of debtes legacies and mortuaries § 16. Of the making of an account and first of the necessitie thereof § 17. To whom the account ought to be made § 18. Of the time of making the account § 19. Of the maner of making an account § 20. Of the ende and effect of an account § 21. Of the executor refusing the executorship and what he is to take heede of § 22. OF THE OFFICE OF an executor The sixt part 1 Three kindes of executors 2 Executor by the lawe 3 Executor by the Ordinarie 4 Executor by the testament 5 Diuerse kindes of executors testamentarie 6 The office of an executor testamentarie §. i. NOwe followeth the sixt principall parte of this Treatise wherein I promised to set foorth the office or duetie of an executor I meane of an executor Testamentarie that is to say of him that is appointed by the testator for the performance of the will For thou shalt vnderstand that there bee †three kindes of executors or persons which haue to deale with the execution of dead mens willes and disposition of their goodes a) Specul de Instr edit §. nunc vero aliqua in prin euerie of which haue their seuerall offices The first hath his auctoritie from the lawe the second from the Ordinarie the third from the testator b) De hac trimembri executoris diuisione in legitimum datiuum testamentarium Specul vbi supra Cui adiungas velim Io de Canibus Tract de executorib vlt. volunt part 1. q. 3. n. 22. fol. mihi 120. The †executor which deriueth his authoritie from the lawe is the Bishop or Ordinarie of euerie diocesse vnto whom the execution of testaments and last willes especiallie ad pias causas no executor being appointed by the testator hath apperteined and belonged c) L. nulli L. si quis ad declinand C. de episcopis cler c. tum nobis c. nos quidem c. Io de Testa extr c. statutū de testa lib. 3. prouincial cōstit Cant c. statuimus eod tit lib. constit prouinc Ebor. and that not of late time as some haue lately diuined or rather dreamed but euer since Christianitie was first receiued and established by emperiall aucthoritie or verie shortly after nor within this realme of England only where the bishops to whom the approbation of testaments apperteine d) Lindw in d. c. statutum in c. ita quorundam de testa lib. 3. prouincial constit Cant. Io de Athon in legatin libertatem de execut testa Doct. Stud. lib. 2. c. 28. haue continuallie by the roiall consent of the godly kings and princes of this realme e) c. accidit de immunitate ecclesiasticarū libertatum lib. 3. prouin constit Cant. Lindw in d. c. statutum verb. ecclesiasticarum libertatum exercised this office and executed this charge for and during so long time and so manie ages that if I be not deceiued there is not anie memorie or ancient recorde to the contrarie f) Lindw in d. c. accilit qui etsi antiquus sit non potuit tamē huius antiquitatis initiū inuestigatione assequi nempe cuius regis tem poribus istud primo fuerat concessum vt ille ingentiè fatetur I meane since Christianitie was first embraced and Paganisme abolished but also throughout all the kingdomes and nations within the Christian Empire For not onelie by the lawes ecclesiastical (g) c. tua c. nos c. Io. de testa extr vsed and obserued for many hundred of yeares but also by the ciuil law (h) L. nulli L. si quis ad declin C. de episcopis cleric composed aboue a full thousand yeares since (i) Anno viz. Christi 536. editus est ille Iustiniani codex in quo leges istae inter alias inseruntur this office and charge of executing the aforesaide testaments and last willes hath beene imposed vpon the reuerend Bishops in the sinceritie of whose consciences all Christian lawes and namely the lawe of this land hath reposed greater confidence then in other lay people about the performance of deade mens willes k) Perkins in tit de testamentis fol. 94. Hence it is that euerie Bishop is called Ordinarie as if other Iudges were in this behalf incompetent or extraordinarie l) Ordinarius verò dicitur qui lege vel consuetudine vel principis beneficio iurisdictionem vniuersaliter exercet DD. in L. more de iur om̄ iudic Hence also is it that the Bishop is called Executor legitimus Legall executor because he onely is appointed executor by lawe where no executor is appointed by the testator m) Specul in d. §. nunc verò aliqua de Instr edit Io. de Canib de exec vlt. vol. part 1. q. 3. Olden de execut vlt. vol. tit 2. The executor †which deriueth his authoritie from the Bishop or Ordinarie is he whome we call Administrator n) Specul vbi supra For when the executor named in the testament dooth refuse to be or cannot be executor or when no executor is named in the will it is lawfull for the Bishop or Ordinarie to commit administration o) Stat. Ed. 3. an 31. c. 21 stat H. 8. an 21. c. 5. and to annex the wil to the letters of administratiō p) Brook Abridg. tit testament n. 20. And this administrator hauing his aucthoritie from the Ordinarie is chargeable with the performāce of the will as if he had bene appointed by the testator q) Brook Abridg. tit deuise n. 35. stat Ed. 3. an 31. c. 11. and is called in lawe Executor datiuus r) Specul in d. §. nunc verò aliqua de instr edi Io. de Can. Oldē Tract de executore because he is giuen or assigned by the Ordinarie to whom originallie and by law this execution doth appertaine But with vs he is vsuallie called Administrator s) Stat. Ed. 3. an 31. c. 21. stat H. 8. an 21. c. 5. because hee is the Ordinaries deputie or as it were his steward or bailife to deale and
115 An Executor may bee made either by the proper motion of the testator or at the interrogation of an other 116 Executor when is he said to be appointed conditionally 120 An Executor may be made vniuersally or particularly 175 An Executor may be ordeyned eyther from a time or for a time 171 An Executor may bee made in the first second or third degree 176 The Executor of an executor may sometimes be sued as executor in his owne wrong 182 Executor euery one may be which is not forbidden 196 Executor by the law 205 Executor by the Ordinary 206 The Executor is not to meddle with lands tenements hereditamēts 210 The Executor may be cited to accept or refuse the executorshippe 208 The Executor being cited if he will not appeare the Ordinarie may commit administration 208 The Executor cannot be compelled to vndertake the Executorshippe 208 Executor of an executor whether he may ioyne with the executor suruiuing 213 The Executor punishable which doeth administer without an inuentarie first made 217 The Executor resolued to refuse the executorship must not meddle as executor 236 Executor when doeth he administer as executor 236 Executor ought to be capable of the executorshippe at three seuerall times 276 Expences to be allowed to the executor 235 Exposition of testaments fauorable 24 F False cause whether it destroy the disposition 245 A Famous libel what it is 58 The Father may by his will appoint a tutor to his childe 96 In Fauour of libertie the condition need not to be obserued precisely 130 Feare and Fraud make voyd the testament 10 Feare hindereth the effect of the testament 240 Feare whether it be preiudiciall to any other then vnto the author thereof 240 Feare whether it destroy the testament confirmed with an oath fol. 240 Feare of future hurte whether it destroy the testament 241 Feare whether it be proued by the protestation of the testator 242 Fees due about the probation of the testaments 225 Fees due for copies of testamentes or inuentaries 227 Felons intestable 53 Felons landes who shall haue 53 Whether he that is onely indited of Felony may make his testamēt 53 Whether he that is only apprehended for felonie may make his testament 54 Felons goods not to be seised before atteindure 54 A Felons testament conuicted is voide though he be neuer executed 53 Flatterie not alwayes vnlawful 243 Flattery mingled with feare doeth hurt the testament 243 Flatterie mingled with fraude destroyeth the testament 243 Flattery destroyeth the force of the testament whē the testator is vnder the gouernment of the flatterer 243 Flattery if it be immoderat hindereth the disposition 243 A Flock of sheep being bequeathed if all perish but one whether that one be due 281 Formes of testaments so many as there be kindes 111 Of Formes testamentary some be generall some particular 111 Forme essentiall of a testamēt is the appointment of an executor 112 The Forme of the bond called Mutiana cautio 140 The Forme of a solemne testament 188 The form of an vnsolemne testamēt 189 The Forme of a nuncupatiue testament 192 Forme to be obserued in making of an inuentary 219 Forme of prouing testaments twofolde 223 The former testamēt is not reuoked by the second made by flatterie 243 Former testament voyd where the testator is forbidden to alter the same 273 Former testament in some cases is not void although the testator be forbidden to alter the same 274 Forfeiture for extortion of fees 227 Foundation of the testament 112 Fraud as detestable as force folio 242 Fraud doeth not alwaies destroy the testament 242 Freedome requisite in the testator 10 Funerall expences to be deducted out of the whole goods 104 G Gardian see Wards Gauelkind lands may be deuised by will 70 Gauelkind lands by what occasion they were made deuisable 70 The Generall signification of this word testament 2 The Generall forme of testamentes twofolde essentiall accidentall 111 Generall legacie of all or the residue of the testators goods whether it make an executor 115 Generall legatarie is not alwais vnderstood to be the executor 115 A Gifte in consideration of death what it is 16 Three sorts of Gifts in consideratiō of death 16 Which Gift in case of death is compared to a legacie 16 Goods at what age they may be deuised 35 Goods of any kinde are deuiseable except in certain cases 91 Goods which a man hath ioyntly with another are not deuiseable 92 Goods which any hath as administrator are not deuisable 92 Goods of the Realm vz. of the auncient crown and iewels not deuisable 22 Goods belonging to a church or hospitall cannot be deuised 93 Goods belonging to a city borough or comminalty not deuisable 93 Goods conteined in the inuentary are presumed to be in the hands of the executor 220 Goods other then are described in the inuētary the executor is not presumed to haue 220 Grasse or trees growing are not to be inuentaried 218 H Hard conditions whether they suspēd the effect of the dispositiō 125 An Hereticke cannot make a testament 54 An Heretick whether and when he doth forfeite his landes or goods 54 An Hereticks testament not cōuicted whether it be good 54 An Heretick may be condēned after death 55 An Heretick reclaiming his heresie whether he may make a testamēt 55 An Heretick cannot be executor 197 An Heretick cannot be executor in a military testament 197 An Heretick reclaiming his heresie whether he may be executor 197 Heire hath not to deale with goods and cattels of the testator 210 An House bequeathed and afterwards reedified and renued whether the same may be recouered 278 The House bequeathed being burned or blowen downe and afterwardes another erected whether may this new house be recouered 279 Husbands licence necessary to the validity of the wiues testament 47 The Husbande whether hee may reuoke the licence graunted to his wife 47 I An Idiot or natural foole who 39 An Idiot cānot make a testamēt 39 An Idiot if he do make such a testament as seemeth reasonable and voyd of folly whether is the same good in law 39 That Idiotes haue giuen very wise sentences confirmed by exāples 40 Idiots in the custodie of the Prince 99 What Immunitie wee enioy in England concerning testaments 18 Imperfection testamentary twofold 6 Impossible conditions do not make the disposition conditionall 126 Of Impossible conditions there bee diuers kindes 122 Impossible conditions doe not suspende the disposition 124 Impossible conditions which the testator supposed to be possible whether they suspend the disposition 125 Impossible conditiōs negatiue make voyd the disposition 126 Incestuous mariages 57 Incestuous persons whether they may giue any thing by their testaments and to whom 57 Incestuous persons may in some cases bequeath something to their incestuous children 57 What Inconuenience would follow if vnsolemn testaments were not properly testaments 20 Indifferēt betwixt a wise man and an Idiote may make a testamēt 39 Indited of felony whether hee may