what part of the testament he be appointed whether in the beginninge or in the middest or ending k) §. ante Instit de lega Grass Thesaur com op §. Institutio q. 1. The †effect of a pure and simple assignation of an executor is this that the executor maie immediatelie after the death of the testator vndertake the executorshippe and enter vpon the testators goodes and cattelles l) Wesemb in tit de acquir haered ff in tit de haered Instit Et hoc verum est etiam ante probationem testameÌ„ti Plowd lib. 1. in cas inter Greisbrook Fox Cagnol in L. si precibê° C. de impub. alijs sub n. 276. 277. 278. whereas on the contrarie the effect of a conditionall assignation dooth suspend his admission and execution of the testament as afterward more fullie dooth appeare m) Infr. ead part §. 6. 7. And †there note that if the testator say I make A. B. my executor according to the coÌ„ditions afterwards expressed if the testator afterwardes expresse no conditions it is in effecte as if the testator had made him his executor simplie n) L. pen. C. de Instit sub And so hee maie enter vpon the testators goodes presentlie after his death for the testator in not expressing anie conditions is presumed to haue altered and reuoked his purpose concerninge the adding of conditions o) DD. in d. L. Peâ— and consequentlie that he would haue the appointment of the executor to be pure and simple howbeit if the testator making his executor vpon conditions to be then expressed afterwardes in the meane time whiles he is in making his will be sodainlie preuented by death or insanitie of minde that he can not expresse those conditions according to his purpose and determination In this case the assignation is voide and he which is so appointed executor is not to be admitted to the executorship p) L. si quis destinauerat alià s si is qui. ff de testam Paul de Castr in L. iubemus C. de testa latiùs infr part 7. §. 12. Likewise if the testator doo make his executor after this maner I make A.B. my executor if I shall expresse anie conditions in this case no conditions beeing expressed he that is so appointed ought not to be admitted q) Dec. alij in d. L. Pen. C. de Instit sub It is †also to be noted that that assignation of an executor is in effect pure simple where the condition is impossible or vnhonest for such conditions are reputed as not written but omitted r) §. Impossibilis Instit de haered instituend L. obtinuit de cond demon L. conditiones de condic Instit ff and so the executor without accomplishment of anie such condition is forth with to be admitted to the executorship excepte in some cases as hereafter is declared s) Infr. ead part §. 6. 7. Furthermore †when it is certaine that the condition will necessarilie followe or bee extant the appointmente of the executor made vnder such condition is reputed pure and simple as if the testator make A.B. his executor if the sunne shall rise the next daie t) L si pupillus §. sub conditione ff de nouac Alex. consil 59. n. 14. vol. 4. vnlesse the time when the condition will be extant be vncertaine as I make A.B. my executor if my sonne shall die for though it be most certaine that he will die yet nothing is more vncertaine then the time when and therefore the assignation is in effect conditionall v) Sichard in Rub. de condic Instit C. fusiùs infr ead part §. 17. part 7. §. 23. And the like maie be said †when the condition is referred to that which is paste or present as if the testator saie I make A.B. my executor if he be bachelar of the ciuill lawe or if hee haue beene student in the vniuersitie of Oxforde for this kinde of condition is not properlie a condition x) L. si ita stipulatus ff de verb. ob Bar. in L 1. de cond demon ff but rather a finall cause wherefore the testator made his executor y) Ias in L. stichum de leg 1. ff And although the testator be vncertaine whether the executor be bachelar of lawe or haue beene student yet it is certaine in respect of the facte it selfe and is either true or false at that instant when it is made and so the condition worketh no delaie or suspension but is either a good or void assignatioÌ„ at that moment z) DD. in d. L. si ita stipulatus Finallie †that assignation of an executor is pure and simple when that condition is expressed which is necessarilie vnderstoode a) L. haec verba de leg 1. ff L. conditiones de cond demon ff as if the testator saide I make A.B. my executor if the lawe will b) Mantic. de coniect. vlt. vol. or if he will vndertake the executorship c) Grass Thesaur com op §. legatum q. 47. That †which hath beene spoken of the making of an executor accordinge to my former aduertisementes maie easilie bee applied to a legacie mutatis mutandis wherefore as that nomination or assignation of an executor is pure and simple which is made without condition so that legacie is pure and sure which is giuen without condition Secondlie by the like application it maie appeare that it is not materiall in what forme of wordes a legacie be bequeathed so that the testators meaning doo appeare which meaning is to be preferred before the proprietie of wordes d) §. nostra Instit de lega and that not onelie concerninge goodes and cattelles but also concerning lands and tenementes for further declaration whereof I haue added these examples following which I haue borrowed out of a little booke called the tearmes of lawe e) Verb. deuise First †therfore if a man doo by his will deuise to A.B. all his landes and tenementes In this case not onelie all his landes and tenementes which the testator hath in possession doo passe but those also which hee hath in reuersion by vertue of this word tenements Item if landes be deuised to a man to haue to him for euermore or to haue to him and his assignes in these two cases the deuise shall haue a fee-simple wheras if it be giuen by feoffemeÌ„t in such tearmes the feoffee hath but an estate for his life for a deuise made without expresse wordes of heires is good euen in fee-simple Item if a man deuise his lande to an other to giue or sell or doo therewith at his pleasure will this in fee-simple Item a deuise made to one and to his heires males dooth make an estate in taile but if suche wordes be put in deede of feoffement it shall be taken in fee-simple because it dooth not appeare of what bodie the heires males shall bee begotten Item
not conuenient for then also the condition is reiected s) Mantic. Peckius vbi supra The seuenth limitation is when †by the condition the executor or legatarie is not to marrie without the counsell or aduise of another person t) Castrens Alex. in L. Turpia §. si Titiae de leg 1. ff Bar. in L. 1. §. si plures de exercit action ff Mantic. de coniect vlt. vol. lib. 11. tit 18. ◠10. as for example the testator dooth make thee his executor or giue thee an hundred pound if thou doo marrie with the counsell or aduise of his brother for if thou do marie without his counsell or aduise thou art excluded v) Mātic vbi supr Ay◠Grauet cōsil 1. Couar de sponsal 2. part c. 3. §. 8. n 3. Neuerthelesse in this case thou art not bound to follow his counsell or aduise but to request the same x) Paul de Castr consil 300. vol. 1. Felin in c. ex part de constit extr col 2. Grass Thesaur com op §. legatū q. 50. n. 11. licèt impressio in illo loco sit corrupta The eight limitation is this where †it is said before that the condition of marying with the consent good will and arbitrament of an other is voide so that the executor or legatarie to whom the condition is imposed is neither bound to obteine nor yet to craue the cōsent good will or arbitrament of that other yet the person on whom the condition is imposed cannot be executor nor get the legacie vnlesse he doo marrie y) Alex. Paul Castrens in d. L. turpia §. 1. ff de leg 1. for though he need not so much as to craue the consent or good will of any third person in this case seeing that part of the condition is vnlawfull yet must he marie ere he can pretende anie title to the executorship or legacie seeing that part of the condition is not vnlawfull z) Mantic. de coniect. vlt. vol. lib. 11. tit 18. n. 8. post Alex. Castrens in d §. 1. The ninth limitation is when †the prohibition of mariage is not made conditionallie by this worde If as I make thee my executor if thou doost not marrie but by other wordes or aduerbes of time as when the testator willeth that his daughter or wife shall bee executrix or haue the vse of his goods so long as she shall remaine vnmaried a) L. legatum ita est de an leg ff Peckius de testa coniug lib. 1. c. 24. The tenth limitation is when †the person on whom the condition is imposed is simplie charged to restore the thing bequeathed b) L. non dubium ff de leg 3. As for example the testator doth bequeath to thee an hundred pound if thou doo not marry and hee dooth will thee to restore the same to his sonne when he shall come to lawfull yeares In which case thou art by lawe to restore the same accordingly c) d. L. non dubium Mantic. de coniect. vlt. vol. lib. 11. tit 19. n. 4. Grass Thesaur com op §. legatum q. 50. neither is this limitation contrarie to the former ampliation of the rule for here thou art charged with restitution simplie there conditionally d) Mantic. d. tit 19. n. 4. Whether the condition forbidding alienation of goodes bequeathed be lawfull or vnlawfull 1 Prohibition of alienation is sometimes to be obserued as lawfull sometimes not 2 Prohibition apparelled with a cause is lawfull 3 Naked prohibition dooth not binde the executor or legatarie 4 Whether the feoffee may be prohibited to alienate 5 Whether the dower of landes in taile may prohibite alienation 6 As it is lawfull to prohibite alienation in fauoure of some persones so in disfauoure of others 7 Of those causes wherewith the prohibition is saide to be apparelled 8 In what cases the executor or legatarie may alienate the thing deuised notwithstanding the apparelled prohibition 9 Bond ought to be put in where there is a condition prohibiting alienation §. xiij THe †prohibition of the testator forbidding the executor or legatarie to alienate the goods bequeathed is somtimes to bee obserued as lawfull sometimes not The prohibition is then †lawfull and to be obserued when it is made in fauour of some other person who is to enioy the thing disposed after the executor or legatarie or when there is some speciall a) L. filiussamilias §. diui de leg 1. ff cause whereuppon this restraint is grounded The †condition is not of any force when it is without cause or not made in fauor of any other person saue onely of the executor or legatarie b) d. §. diui In which case they may renounce this fauour and alienate the thinge deuised notwithstāding such single prohibition which is rather said to be a counsell then a commaundement c) Ias in d. §. diui n. 1. For the lawe dooth deeme it an absurde matter that a man should bee lorde and owner of a thing and yet shoulde not at pleasure alienate the same d) Ias in d. §. diui n. 9. Doct. Stud. lib. 1. c. 24 In which point also I suppose that †the temporall lawes of this realme haue the same effect in landes which the lawes ecclesiasticall ciuill haue in goods And therefore if a feofment be made of lands in fee simple vpon the condition that the feoffee shall not alienate or put away the same this condition is voide because the feoffee is without any cause wholye restrained of that power which the lawe yeeldeth vnto him in such a case e) Brook Abridg. tit cōdition n. 135. Fitzherb tit condition n 4. Principall grounds fol. 28. Doct. Stud. lib. 1. c. 24. Litleton tit estates vpō conditions But when the prohibition hath a cause annexed or the same is made in fauour of some other person who is afterwardes to enioy the landes then this condition of not alienating the same is good and effectuall in the lawe as may appeare by the gifts of lande in taile For if †landes be giuen to a man and to the heires of his bodie lawfully begotten vppon condition that neither he nor his heires shall alienate the landes to any other person this condition is good and effectuall In which case if hee or his heires to whome the land is giuen alienate the same then the giuer or his heires may lawfully enter and retain the lands for euer f) Fitzherb Abridg. tit condition n. 4. Litletō tit estates vpon conditions fol. 77. And †as it is not lawfull to alienate from particular persons in whose fauour the prohibition is made no more is it lawfull to alienate to those particular persons in whose disfauour the prohibition is made g) Alex. in d. L. filiussamilias §. diui ff de leg 1. n. 1. In which case also concerning landes the lawes of this realme doo not differ from the ciuill and
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
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
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
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
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
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
if landes be giuen by deede to A.B. and to the heires males of his bodie who hath issue a daughter which daughter hath issue a sonne and dieth there the lande shall returne to the donor and the sonne of the daughter shall not haue it because he cannot conueighe himselfe by heires males or his mother is a let thereunto But otherwise it is of suche a deuise giuen by will for there the sonne of the daughter shal haue it rather then the will shall be voide Item if one deuise to an infante in his mothers wombe it is a good deuise though such a feoffement graunt or gift be voide Item if one will that his sonne shall haue his lande after the death of his wife heere the wife of the deuisour shall haue the lande firste for tearme of her life So likewise if a man deuise his goodes to his wife and that after the decease of his wife his sonne and heire shall haue the house where the goodes are there the son shall not haue the house during the life of the wife for it is presumed that his intente was that his wife shoulde haue the house also for tearme of hir life notwithstanding it were not deuised vnto her by expresse wordes Item if a deuise of land be made to A.B. and to his heires males of his bodie begotten After the deuise hath issue a sonne and a daughter and dieth heere the daughter shall haue the lande and not the sonne howsoeuer he bee the more worthie person and heire to his father but because the will of the deade person is that the daughter shall haue it therefore lawe and equitie would that it should so be Thirdlie it maie appeare by that which hath beene saide of an executor that the legacie is voide where the testator hath not animum testandi f) Infr. part 7. § 13. Fourthlie that there bee diuers conditions which doe not make die legacie conditionall g) Infr. §. 5. 6. Lastlie †concerning the effect of the one the other albeit otherwise the appointinge of an executor and the bequeathing of a legacie doo agree in diuers thinges yet in this they do differ greatlie That is to saie an executor simplie instituted maie as soone as the testator is deade enter to the goodes and cattelles of the deceased h) L. cùm haeraedes ff de acquirend poss Bar. in L. ex facto ff de haered instituend Cagnol in L. precibus C. de imp alio subst n. 276. But †a legatarie or deuisee maie not of his owne authoritie take the legacie serue himselfe but muste receiue the same at the handes of the executor i) L. 1. quorum lega ff L. non dubium C. de lega Perkins tit testament c. 7. fol. 94. Brook tit deuise n. 3. the reason is for that the executor is charged with the paiment of all the testators debtes so farre as the goodes and cattelles will extend and the legacies are not to be paide but of the residue if anie thing remaine k) Perkins vbi supr in tit deuises vbi etiaÌ„ tradit aliam cautelam sed parum honestam frustrandi legata fraudandi testatorem Aliam rationem assignatius ciuile nempe ob detractionem falcidiae quae ratio quà m sit apud nos debilis facile est conijcere quandoquidem nulluâ— est falcidiae locus infra regni nostri limites And †the legatarie hath no remedie by the common lawes of this lande for anie legacie of goodes to him bequeathed if the executor will not deliuer the same But it behooueth the legatarie in this case to take a citation against the executor of the testamente to appeare before the ordinarie or other ecclesiasticall iudge competent to answer him in a cause of legacie l) Tract de repub Angl. lib. 3. c. 9. Fitzh Na. Br. breui de consultatione Brook tit deuise n. 3. 27. 44. Plowd in câ—s inter Paramor Yard Termes of law verb. deuise Notwithstandinge †in some cases the legatarie may be lawfullie possessed of his owne legacie without deliuerie thereof to be made by the executor for if there be sufficient goodes and cattelles in the handes of the executor to paie all the testators debtes and legacies the legatarie is possessed of the thinge bequethed at the time of the death of the testator in this case the legatarie doubtlesse by the ciuill lawe maie still retaine the same in his own handes m) Socin consil 11. vol. 1. Ripa in L. 1. ff quoruÌ„ lega n. 15. Olden de action clas 2. act 2. fol. 113. Neither is he to deliuer the same to the executor and afterwardes to receiue the same againe at his hands n) c. dolo de reg iur 6. Likewise if the testator giue licence to the legatarie to enter to his legacie In this case the legatarie maie without the priuitie or consent of the executor take his legacie and keepe the same so that there be sufficient besides to discharge the testators debts o) Ias in L. non dubiuÌ„ C. de lega Peraduenture also in case of such sufficiencie of goods a certain special thing being bequeathed as the testators riding horse his bookes or his signet though an other person then the executor detain the same the legatarie maie as wel by the laws of this realme p) Brook Abridg. tit deuise n. 6. 30. as by the ciuill lawe q) Sichard in L. 3. C. de lega n. 16. commence sute against the occupier therof and recouer the same legacie r) Ratio est quia dominium rei legatae statim post mortem testatoris transit in legatarium etiam nondum facta traditione gloss DD. in §. in nostra Instit de lega in L. à Titio ff de fur vnlesse this third persoÌ„ were able to iustify his possessioÌ„ euen against the executor or against the testator himselfe if he were liuing for that is a lawfull barre or exception against the legatarie also s) L. si rem legatum ff de excep praeiudic But if there bee not sufficient goodes to paie the testators debtes or if the legacie consiste in quantitie or be generall as if the testator bequeath twentie poundes or a horse the legatarie can not of his owne authoritie take so much of the testators monie nor anie horse which was the testators without licence giuen by the testator or permission of the executor t) Brook tit deuise n. â— n. 30. nor maie bring anie action against anie thirde person for the same legacie albeit he possesse all the testators goodes v) Quod autem diximê° iure ciuili triplicem concedi actionem legatario ê“ consequédo legato procedit specie relictâ sed si quantitas vel genus relinquatur non competit rei vendicatio Bar. in L. â— ff de leg 1. Sichard in I. noÌ„ dubium C. de lega nisi fortè quantitas noÌ„ vt
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
executorship three questions maie bee demaunded First whether hee that is named executor in the testament may be compelled to vndertake the executorship or that it is in his power to refuse the same a) De hac Q. consulas Henr. Boic in c. tua nos de testa extr Panor in c. Iohannes eo tit Bar. in L. 1. de leg 2. ff Secondlie what is to be considered of him that is named executor whereby he maie be resolued whether it were better to accept or refuse the executorship b) Infr. §. prox Thirdly how long time he that is named executor hath to deliberate and determine of accepting or refusing the executorshippe c) Infr. ead part §. 4. To the first it maie bee answered that hee †that is named executor maie bee cited to appeare before the Ordinarie or other hauing authoritie to proue the will and there either to accept the executorship or at least to refuse the same d) Boic Panor Bar. vbi supra Plowd in casu inter Greisb Fox And in case †either he will not appeare or appearing †refuse to proue the testament the Ordinarie or other Iudge maie commit the administration of the goods of the deceased as if hee had died intestate e) Brook Abridg. tit adm̄str n. 32. tit exec n. 49. 102. stat H. 8. an 31. c. 5. and the administrators haue action and may administer the goods of the deceased as if he had died intestate and their authoritie or act done is good and effectuall in the lawe f) Brook vbi supra Plowd vbi supra in the meane time vntill the executors vndertake the executorship g) Bald. in L. de beri C. de fidei commiss liberta Plowd in d. cas inter Greisb Fox for then the Ordinarie maie reuoke the administration before by him committed h) Brook Abridg. tit adm̄str n. 33. quod facilitis procedit cum administratio commissa fuerit vt sēper solet saluo iure cuiuscunque c. But he †that is named executor cannot be precisely compelled to stand to the will and vndertake i) Panor in c. Io. de testa extr n. 3. Olden de exec vlt. volunt tit 7. in fin the executorship vnlesse †hee haue alreadie medled with goodes of the testator as executor for then he is not only to be cōpelled to performe the office of an executor k) Panor Olden vbi supr Boic in c. tua de te sta extr Plowd in cas inter Greisb Fox but also if he should refuse and the Ordinarie commit the administration vnto him this refusall is void and he shall be charged as executor l) Fitzh Abridg. tit execut n. 35. Moreouer albeit †the executor named who hath not medled with the administration of the goodes of the deceased cannot be precisely or absolutely compelled yet if anie legacie bee left vnto him in the testament he maie be compelled to stand to the executorshippe or else to loose the legacie so that he shall not reape the benefite if being duely admonished he refuse the burthen m) Quae positio locum vendicat etiamsi executor sit coniuncta persona vt habet communis opinio Gribald Thesaur com op verb. tutor Rom. consil 235. Adde Io. de Canib d. Tract de executore vbi plures enumerat huius regulae limitationes nempè quod non est compellendus quarum firmitatem quia suspectam habeo eas silētio praetereo What is to be considered of the executor desirous to be resolued whether it were better to accept or to refuse the executorship 1 Diuerse things to be considered of him which would be resolued whether it were better to accept or to refuse the executorship 2 The first thing to bee inquired in this case concerning the testator 3 Of the aucthoritie and charge of the executor 4 The executor may not medle with the landes tenements or hereditamēts of the testator but the heire 5 The heire hath not to deale with the goods and cattels of the testator but the executor 6 The testator may giue power to his executor to sel his landes for paiment of his debts or other purpose 7 What if some of the executors named do refuse whether may the rest sell the lands according to the testament 8 Whether the executor of him that had lands in see simple fee taile or for tearme of life maie recouer the rents fee fermes or other arrerages against the tenant which ought to haue paied the same in the life of the testator 9 The second thing to be required concerning the testator 10 Of the authoritie and charge of the executor of an executor 11 Whether diuerse being assigned executors whereof some be dead the executor of the executor deceased may bee ioined in action with the executor suruiuing 12 Of the aucthoritie and charge of the executor of an Administrator 13 What is to be considered about the last will of the testator 14 Whether the executor maie conuert the residue to his owne vse 15 Whether he that is named executor shall lease his legacie if he do refuse the executorship 16 What is to be considered in the person of the executor 17 What is to be considered in a wise executrix 18 What is to be considered in the person of the coexecutor 19 Whether one executor maie preiudice another 20 Whether one executor maie sue another 21 VVhether one of the executors maie alone sell the goodes of the testator 22 VVhether the coexecutor after refusall maie meddle as executor 23 VVhat is to bee considered in other persons with whom the executor is to deale §. iij. HE †that is desirous to be resolued whether it were better for him to vndertake the executorship or to refuse the same muste consider diuers things whereof some concerne the testator some concerne the executor him selfe and some concerne the persons of others a) Haec alia quae ab executore deliberante consideranda sunt tradunturà Io de Canib in Tract de executor vlt. vol. 2 part q. 1. cum seq Cui si place at adiungas Sichar in Rub. de iure de lib. C. Of those things which concerne the testator the first and principall thing to be regarded in this consultation is his substance or wealth First of all therefore †it behoueth him that is named executor to enquire diligently and to learne certainly if he can what goodes and cattelles did belong to the testator at the time of his death b) Sichard in d. Rub. de iure de lib. C. and what debtes were then due vnto him And on the contrarie what debts he the said testator did owe vnto other men c) Cuius rei vtilitas statim subijcitur For †as the executor may enter to all the goodes and cattels which did belong vnto the testator d) L cùm haeredes de acquir post L. haereditas de reg iur ff
of a codicill 12 Definitions of a codicill and a testament how they agree or differ 12 Definition of a legacie or deuise fol. 14 Definition of a gift in consideration of death 16 Definition of a solemne testament 17 Definition of a testament mētioned in the Ciuil law whether it agree with our testaments in England 19 Definition of a testament comprehendeth both solemne and vnsolemne testaments 19 Definition of a testament is not of any speciall testament 21 Definition of a priuiledged testamēt 24 Definition of a testament amongst children 29 Definition of a testament ad pias causas 30 Definition of an idiot or naturall foole 39 Definition of a slaue 43 Definition of an Apostata 55 Definition of a famous libel 58 Definition of appointment of an executor 112 Defect in the testators meaning 261 Defect of solemnitie whether it doe make void the testament 257 Defect of will whether it destroy the testament 258 Degrees of consanguinitie prohibiting mariages here in Englande 57 Of Degrees of Executors 177 Debtes whether they ought to be put into the inuentarie 218 Debtes which are first to be payed 228 Debtes to the Prince are first to be payd 229 Of Debts due by recognisance and statute merchant 229 Of Debts vpon iudgementes folio 229 Of Debtes vpon obligation folio 229 Of Debts vpon billes and bookes 229 Of Debts without specialty 229 Debt due to the executor whether it is to be allowed 230 Debts due by the testator discharged by the executor with his own mony whether he may retain the testators goods 230 A Debt being bequeathed and afterwards receiued by the testator whether the legacie be extinguished 281 Difference betwixt a testament and all other kindes of last willes 7 The Difference betwixt a testament and other sentences 10 Difference betwixt the definition of a last will and the definition of a testament 11 Difference betwixt these two words Lawfull and Iust 11 Difference betwixt these two words Disposition and Sentence 11 Difference betwixt a legacie and a gift in case of death 14 Difference betwixt a slaue and a villeine 43 Difference betwixt the executor of an executor and the executor of an administrator 92 Differēce betwixt these two phrases if he do not marry and so long as he doth not marry 153 Difference betwixt these phrases Jf he die without issue and If he haue no issue 166 Difference whether the legacie be referred to the substance or execution of the disposition 173 Difference betwixt substituting by proper names and by names appellatiue 179 Difference betwixt obscuritie ambiguity 192 Difference betwixt the lawes Ciuill the lawes Ecclesiasticall about the education of bastards 200 Differēce betwixt the vulgar and legall forme of prouing testaments 224 Difference betwixt a proper name and a name appellatiue 246 Difference betwixt these wordes J geue and I bequeath 284 Different effects of a simple assignation of an executor and a simple legacie 119 Distinction of legacies confounded 15 Distribution of the residue of the testators goods 235 Diuers kinds of conditions 121 Deuise of landes not good without writing 23 Doctors of the law and cleargy mē what priuiledges testamentary they enioy 27 All Doctors or Diuines not priuiledged 28 Donor of lands in taile whether he may prohibite alienation 154 Doubt about the date of willes maketh both voyd 29 Dumbe but not deaffe whether such a person may make his testament 52 A Drunken person whether he may make a testament 42 E Of Ecclesiasticall persons some be regular some be secular 64 Ecclesiasticall persons are not simply prohibited to make their testaments 64 Ecclesiasticall persons may make their testamentes of all goods which they haue not in right of the Church 64 Ecclesiasticall persons cannot make their testaments of things immoueable which they posses in right of the Church 65 An Ecclesiasticall person may make his testament of the glebe by him sowen .. 65 An Ecclesiastical person whether he may make his testament of all mouable goods which he hath in right of the church 65 Effects of interlocutorie and definitiue sentences be contrary 9 The Effects of testaments and codicils contrarie 14 Efficacie of a nuncupatiue testamēt 24 The effect of dieng with or without a testament 112 Effect of a pure or simple nomination of an executor 116 Effects of conditions diuers and cōtrarie 123 The Effect of the disposition is not suspended by necessary or impossible conditions 124 The Effect of the disposition is suspended by possible conditions 124 Effects of substitution of executors 177 Effects of an inuentarie 220 Effects of a perfect account 236 Effects of a bare reuocatiō 169 Effectes of an vnperfect accoumpt 236 Effect of cancelling testamentes 270 Election whether it belong to the executor or legatarie 255 Election in what maner it ought to be made 255 Election belōging to the Legataries which of them ought to chuse first 256 In Election if the collegataries dissent what meanes is to be vsed 256 Emblements See corn on the groūd Encrease or decrease of solemnities doeth not make any disagreement betwixt our testamentes and the definition of a testament 20 In England testators are not tied to the obseruation of any other solemnities the such as bee Iuris Gentium 6 In England our testaments though vnsolemne haue the effectes of testaments properly so called 21 End of an account 236 Enimity a cause whereby the legatarie doeth lose his legacie 286 By Enimitie whether the legacie be lost if the testator were the cause thereof 286 By Enimitie the legacie is not alwayes lost 287 Errors detected about the definition of a testament 7 Error may happen diuers wayes 244 Error in the person of the executor or legatarie doth destroy the disposition 244 Error in the name of the executor or legatarie whether it hurte the disposition 244 Error in the qualitie of the executor or legatarie whether it destroy the disposition 245 Error in the thing bequeathed manifold 245 Error in the proper name of the thing bequeathed whether it destroy the legacie 245 Error in the name appellatiue of the thing bequeathed whether it destroy the legacie 245 Error in the substance of the legacy whether it make voyd the legacie 246 Error in the quantitie of the thing bequeathed whether it be hurtful 246 Error in the quality of the thing bequeathed whether it be hurtfull 248 Error in the forme of the disposition destroyeth the force therof 248 Essentiall forme of a testamēt is the naming of an executor 112 Examples out of the olde testament whereby it may seeme lawfull for kings to geue away their kingdomes 66 Examples out of prophane histories tending to the same ende 66 Examples of a pure or simple appointment of an executor 114 An Excommunicate person maye make his testament except in certaine cases 60 An Excommunicat person whether he may be executor 198 An Executor wherefore he cannot dispose the testators goods by legacie 49 An Executor made without expresse mention of this worde Executor
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