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
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
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.
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
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
time of the testator being written it were brought to the testator and by him approoued for his testament Or vnlesse the testator when he declared his testament did wil that the same should be written that thereupon the same was written accordingly during his life For then it is effectuall for the deuise of landes tenementes and hereditaments as if it had been written at the first d) Dier fol. 72. ita saepè audiui à nonnullis huius regni Angliae â—urisperitis A written †testament albeit it haue some thinges thereunto belonging which also belong to a nuncupatiue testament and so common to both as the appointing of an executor without the which there can be no testament at all neither written nor nuncupatiue e) Infr. part 4. §. 2. and as the deuising or disposing of goodes or cattelles which may be done indifferently eyther by word or by writing f) Supr §. 9. yet there bee †some thinges which be proper and peculier to a writen testament One is the †deuise or graunt of landes tenementes and hereditamentes which can not passe by a nuncupatiue testament or will without writing g) Stat. H. 8. an 32. c. â— As doeth afterwardes more fully appeare where is also shewed what landes and how much may bee deuised by will h) Infr. 3. part §. 4. An other thing peculier to a written testament is this In a written testament †the testator hath this benefit he maie conceale and keepe secreete the tenor or contentes of his will from the witnesses i) L. hac consultis C. de testa gloss ibidem Which he cannot doe when he maketh a nuncupatiue testament And therfore if the testator be loath to haue his will knowne which thing happeneth very often †either because the testator is afraid to offende such persones as doo gape for greater bequestes then either they haue deserued or the testator is willing to bestowe vpon them least they peraduenture vnderstanding thereof would not suffer him to liue in quiet or else because hee should ouer much encourage others to whom he meante to bee more beneficiall then they expected and so giue them occasion to be more negligent husbandes or stewards about their owne affaires then otherwise they would haue beene if they had not expected such a benefit at the testators hands or for some other considerations In these and like cases after the testator hath written his will with his owne hand or procured some other to write the same he may close vp the writing without making the witnesses priuie to the contents thereof and shewing the same to the witnesses he may say vnto them This is my last will and testament or herein is contained my wil and this is sufficient k) Authen Et non obseruato C. de testa DD. ibidem Neither is the testament therfore the lesse auailable because the witnesses doo not know what is contained in the same l) Minsing in §. sed cuÌ„ paulatim Instit de testa ord Cui accedit Kling in eund tit in 8. in case †the witnesses be able to prooue the Identity of the Writing that is to say that the writing nowe shewed is the very same writinge which the testator in his life time affirmed before them to bee his will or to containe his will m) DD. in d. L. Hac coÌ„sultiss in Auth. noÌ„ obseruato C de testa Couar in c. cum tibi de testa extr n. 5. inf par 4 §. 25. Otherwise the will can take no effect through the defect of sufficient proofe n) Bar. alij in L. si ita scripsero ff de cond demon Paris cons 19. vol. 3. n. 25. 26. And therefore †least the will should perishe for wante of due proofe when the testator would not haue the contents knowne it is not onely requisite that the witnesses be learned but expedient also that they write their names on the backside or some part of the testament o) Specul de Instr Edi. §. compendiose n. 10. Kling in tit de testa ordin Instit n. 8. 9. or vse some other like meanes that they may be able to depose and testifie vndoubtedly that the same is the very writing it selfe which the testator affirmed to be his will or to containe his will p) Sichard in Auth. quod sine C. de testa Couat in c. cum tibi de testa extr Specul vbi supr infr part 4. §. 25. Whether a testament may be written with notes or figures and whether it may be prooued without witnesses by the hand and seale of the testator with other like questions is declared afterward q) Infr. part 4 §. 25. Of a Nuncupatiue Testament 1 What is a nuncupatiue testament 2 Wherefore it is called nuncupatiue 3 Of the force and efficacie of a nuncupatiue testament 4 At what time commonly nuncupatiue testamentes are made and what is the reason 5 Testamentes fauorablie expounded 6 A nuncupatiue testament made diuers waies §. xij A Nuncupatiue testament †is when the testator without any writinge doeth declare his will before a sufficient number of witnesses a) §. Fin. Instit de testa ordin L. Haeredes palam ff de testa And it is called nuncupatiue †à nuncupando i. nominando of naming b) Minsing in d. §. fin Kling in d. tit de testa ordin n. 11. Because when a man maketh a nuncupatiue testament hee must name his executor and declare his whole minde before witnesses c) Minsing in d. §. fin And †a nuncupatiue testament is of as great force and effecacie except for his landes tenements and hereditaments as is a written testament d) L. Hac consultissima §. per nuncupationem C. de testa d. §. fin Instit de testa ordin This kind †of testament is commonly made when the testator is now very sicke weake and past all hope of recouerie e) Termes of law verb. deuise For †as one reporteth it is receiued for an opinion amongst the ruder and more ignorant people that if a man should chance to be so wise as to make his will in his good health when hee is strong and of good memorie hauing time and leasure and might aske counsell if any doubt were of the learned that then surely he should not liue long after And therfore they defer it vntill such time wheÌ„ it were more conuenient to applye themselues to the disposing of their soules then of their landes and goodes f) Ibidem And †in consideration hereof it is that testaments are so much fauored which be made in such perilous times namely for that the testator then cannot conueniently stay to aske counsell of such pointes as be doubtfull in lawe g) Infr. part 4. §. 4. A †nuncupatiue testament may bee made not onely by the proper motion of the tâ—stator but also
testa In so much that †if afterwardes hee doo escape yet the testament made whiles he was with the enemie is voyd b) Ead. L. eius But if †his testament were made before his captiuitie then after his escape the testament is of like force as if he had not beene captiue c) L. ratio ff de captiuis Grass Thesaur coÌ„ op §. testmÌ„ q. 25. vbi haÌ„c opinionem communiter approbatam oftendit Likewise if the testament were made before he were apprehended and the testator die in captiuitie yet is the testament allowed and the executor by force therof is to haue all his goodes here within this realme of England as if he had died the day before his captiuitie d) L. lege Cornelia ff de testa Likewise †if any person be taken as captiue by any Piratte Turke Infidell or Christian where warre is not proclamed hee that is so taken remaineth still a free man and therefore if hee make his testament whiles he is so deteined the testament is good and lawfull e) L. qui à latronibus ff de resta If a †lay man be condemned to perpetuall prison for some offence it seemeth that he can not make a testament f) Panor in Rub. de testmÌ„ extr Grass Thesaur com op §. testmÌ„ q. 28. cui tameÌ„ opinioni quantumuis communi non acquiescit Clar. §. testmÌ„ q. 23. but if †any person be imprisoned for dette such imprisonment being ordained for safety not for punishment he is not thereby disabled to make his testament g) Bald. in L. 1. C. si quis aliq testari prohib n. 5. sauing that the testameÌ„t is not good when it is made in his fauour at whose suite the testator is imprisoned of intent to extorte the same h) L. qui carcerem ff quod me caus Mantic. de coniect. vlt. vol. lib. 2. tit 7. n. 2. Of a vvoman couert 1 A maried woman cannot make her testament of lands 2 Especially not to her husband and wherefore 3 What if she be not constrained but doeth deuise the same freely of her owne accord 4 What if the testament be made before mariage 5 What if the testament being made during mariage she ouer liue her husband 6 Certain cases wherin the deuise of lands is good not withstanding the couerture of the testatrix 7 A wife cannot make her â—â—â—â—nent of goods without her husbands licence 〈◊〉 â—â—â—sent 8 The reason wherefore the wife cannot make her testament of goods without the husbands licence or consent 9 Whether it be necessarie that this licence or consent should goe before the making of the will or concur or may follow 10 Whether and when the husband may reuoke the licence giuen to his wife 11 Certaine cases wherein the wife may make her testament without her husbandes consent 12 Whether an Emperesse or a Queene may make a testament without the consent of the King or Emperour 13 Of that which is due to the wife whereof the husband was neuer possessed she may make her testament without his consent 14 A woman contracted in matrimony if the mariage be not solemnized may make her testament 15 A wife being executrix may make an executor to the former testator without her husbands consent 16 The reason of the former position 17 Whether a wife being executrix may make her husband executor in her place 18 A wife executrix may not giue away the testators goods by her will 19 A wife both executrix and legatarie cannot make a testament of that which she did accept not as executrix but as legatarie 20 The reason wherefore an executor can not dispose the testators goods by legacies 21 The reason wherefore a wife executrix and legatarie may not make her testament of that which she did accept as legatarie 22 Whether shall the wife which is bothe executrix and legatarie bee deemed to haue accepted of the testators goods as executrix or legatarie 23 Whether the wife being licenced to make her testament may make any moe willes but one §. ix A Maried †woman by the lawes and statutes of this realme can not make her testament of any maÌ„nors lands tenementes or hereditaments a) Stat. H. 8. an 34. c. 5. This conclusion is diuersly enlarged And first shee †cannot deuise the same to her husband b) Brooke Abridg. tit deuise n. 32. 34. the equitie of which prohibition If I may be so bolde with the good fauour of our temporall lawyers to insert the reason consideration of the ciuill lawe is not obscure For if this gappe were lefte open fewe children should succeede in the mothers inheritaunce c) L. 1. 2. 3. ff de donac inter vir vx But by howe much the husband were more cruel the wife more timerous he crafty she credulous by so much the more were the lawfull heire in daÌ„ger to be disherited and the cruel deceitfull husband in hope to be vnworthilye enriched and aduaunced Wherefore if the wife should deuise any her mannors lands tenements or hereditaments or any part therof to her husband this deuise were voide because the same is presumed to haue beene made by constrainte of the husband or other sinister meanes d) Brooke vbi supra SecoÌ„dly albeit †it did appeare by due proofe that the husband did not constraine his wife therevnto but that she of her owne accorde or free motion did make any such deuise either to her husband or to any other person by his consent yet is not the deuise good e) Ita saepius accepi à nonnullis huius regni iurisperitis non vulgaribus quos ipse velim consulas as well because the words of the statute are generall and where the lawe dooth not distinguish there may not we distinguish f) L. p. ecio ff de public in rem action as for diuers other reasons grounded in the common laws of this realme Thirdly albeit †the testament be made before the mariage yet she being intestable at the time of her death by reason her husband is theÌ„ liuing the testameÌ„t is voyd g) Arg. §. alio Institu quib mod testa infir for it is necessarie to the validity of a testament that the testator haue ability to make a testament not onelie at the time of the making thereof when the testament receiueth his essence or being but also at the time of the testators death when the testament receiueth his strength and confirmation h) d. §. alio §. non tamen Instit quib mod testa infir L. 1. §. exigit ff de bon poss secunduÌ„ tab Porcê° in §. in extra neis Instit de haered qual drÌ„ia Fourthly albeit †the wife doo ouerliue the husband yet the testament made duringe the mariage is not good i) c. Non firmatur de reg iur 6. L. 1. § j. de leg 3. the reason is yeelded before because she
per feder n. 14. psal 82. vers 6. and therfore what he commaundeth ought to be obeyed without resistaunce m) Bald. in auth hoc ampliê° C. de fidei com n. 10. quem velim videas if it doe not repugne the lawe of God immortall n) Act. Apost c. 4. vers 19. c. 5. vers 29. To be shorte if a king might not dispose of his owne kingdome at his owne pleasure then his state were not so good as the state of his subiect o) Oldrad consil 94 in fin for the meanest subiect may freelie dispose of his own p) Supr ead part in prin Besides which vrgent reasons whereby appeareth the roote and life of this humaine lawe there bee sundrie pregnant examples which as branches springing from that liuelie roote haue in sundrie ages and countries brought foorth faire and goodlie fruite whereby the force and efficacie of that lawe hath beene made manifest to all the world let these fewe suffice for a taste It is recorded that Attalus a king in Asia the lesse did in his testament institute the Romane people his heire who by vertue of that testament did enioie the kingdome q) Florus lib. 2. Hottoman illustr quaest c. 1. likewise that Alexander king of Aegypt did bequeath vnto the same Romaine people the kingdomes of Alexandria and Aegypt r) Cicero Ora. 1. pro lege agrar alià s lib. 2. c. 15. Ptolemaeus the king of Aegypt gaue away the kingdome of the Cyrens s) Hottoman d. c. 1. Vnguinus was king of the Gothes by the appointment of Haldanus t) Eodem loci To come neerer I meane in respect of place not of time we maie reade how Prasutagus one of the kinges of this realme of England a little after the death of Christ did make the Emperour Nero his heire v) Cornel. Tacitus lib. 14. Camden fol. 290. alià s fol. 355. And diuers other kinges haue doone the like x) Quorum meminit Gentilis disp 2 fol. 45. So that it is neither newe or straunge that kinges haue by their testamentes giuen away their kingdomes from those who otherwise should haue enioyed the same Notwithstanding †aswell by the ciuill law y) Bar. Angel in L. prohibere §. planè ff quod vi aut clam Ias in L. debitoâ—um C. de pactis Bald. in proem de feudis n. 32. Vasq de succes crea §. 26. lim 3. as by the cannon lawe z) Innocen Cardinal Imol. Panor Io. de Anan alij in c. intelecto de iureiur extr Felin in c. dilecti de maior ob extr with the which lawes the lawes of this our realme of England doe in this point seeme to ioyne hands a) Fitzherb Abridg. tit deuise n. 5. tit execut n. 108. hisce verbis L opinion de plus Iustices Doctors del cannon ciuil ley assembles in le Eschequer chambre quant Roy Henry quart morust fuit que il puit saier testmÌ„ legacy des biens que il auer mez dez biens de Royalme cest assauoyer ancient Corone Iuells il ne puit Eodem tendunt quae à Guiliel Lamberto viro doctissimo traÌ„scripta sunt sub hac verboruÌ„ serie Debet verò de iure rex onmes terras honores omnes dignitates iura libertates Coronae regni liuius in integrum cum omni integritate sine diminutione seruare defeÌ„dere c. lib. de priscis Angl. legib tit de reg offic fol. 130. It is vnlawfull for a king to giue awaie his kingdome from his lawfull heires for the confirmation whereof diuers writers vse diuers reasons b) De hac q. consulas FraÌ„c Hotto iurisconsultoruÌ„ omniuÌ„ quos ista peperit aetas celeberrimuÌ„ lib. 1. illustr quaest c. 1. But †amongest all their reasons I see no reason to induce me to aduenture anie further into the examination of this deepe and dangerous question much lesse to proceede to the conclusion not onelie because the same beeing so high an obiect dooth farre exceede the slender capacitie of a meane subiecte but also for that this princelie controuersie as it hath seldome receiued ordinarie triall heretofore so hereafter if the case were to be argued in verie deede verie likelie it is to bee vrged with more violent arguments and sharpe syllogismes then by the vnbloodie blowes of bare words or the weake weapons of instrumentes made of paper and parchment And on the other side to bee answered with flatte denials of greater force and distinctions of greater efficacie then can proceede from anie legall or logicall engine and in the end to be decided and ruled by the dead stroke of vnciuill and martial cannons rather then by anie rule of the ciuill or cannon lawe Videant quorum interest THE THIRD PART OF THIS TESTAMENTARIE TREATISE WHEREIN IS EXAMINED what thinges may be deuised by will The Paragraphes or Chapters of the third parte WHat thinges are examined in this third part § 1. Landes tenementes and hereditamentes can not passe by will but in certaine cases § 2. Certaine cases approoued by custome wherein it is lawfull to bequeath or deuise landes tenementes and hereditamentes § 3. Certain cases auctorized by the statuts of this realme whereby it is lawfull to deuise landes tenementes and hereditamentes § 4. Of the deuise of goods and cattelles § 5. Diuers kindes of goods and cattelles not deuisable by will § 6. Of the assigning of tutors and disposing of childrens portions § 7. Of committing the tuition of children and custodie of their portions within the prouince of Yorke § 8. Who may appoint a tutor § 9. Who may be appointed tutor § 10. To whom a tutor may be appointed § 11. Of the manner of appointing tutors § 12. Of the office and auctoritie of a tutor § 13. By what meanes the tutor-ship is ended § 14. What quantitie of landes may be deuised § 15. What quantitie of goods or cattelles may be deuised § 16. If the testator doe in fact bequeath more then he may by lawe which legacie is to be preferred or what other course is to be followed § 17. VVHAT THINGES ARE EXAMINED IN THE THIRD PART The third part 1 The thirde principall parte deuided into two members 2 The first member three-foulde §. j. IN the third parte of this Testamentarie treatise there is to bee shewed firste what thinges then how much the testator maie dispose or deuise by his testament Concerning the former of these it shall not be a misse to speake first of the bequeathing or deuising of landes tenementes and hereditaments a) Infr. ead part § §. 2 3 4. Secondlie of the bequeathing or deuising of goods and cattelles b) Infr. ead par §§ 5 6. and thirdlie of the committing of the tuition of children and custodie of their portions and rights during their minorities c) Infr. ead part §§ 7 8 c. Of the deuise of landes 1 The
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
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
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
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
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
he die t) L. Cuius bonis C. de curator furios or is absent being taken of the enemie v) L. si arrogati ff de tutel In respect of the manner and forme of the tuition the office and authoritie of the tutor is determined as if the tutor bee appointed vpon condition which condition is broken or if the tutor bee appointed duringe a certaine time which time is finished x) § praetereà Instit quib mod tut fin L. si adrogati §. sed etsi §. fin ff de tut in these and manie other respectes which for breuitie I omitte the tutor-ship is determined y) VideaÌ„t Iustinianistae Vigelij methodum iuris ciuilis vbi perplures traduntur causae finiendi tutelam Of the quantitie of landes deuiseable by will 1 Of landes tenementes and hereditamentes sometimes all sometimes but two partes of three is deuiseable §. xv NOwe that I haue shewed what kinde of thinges maie be deuised by will it remaineth to shew how much is deuiseable of landes or goodes And first concerning landes tenements and hereditamentes sometimes they maie be deuised wholie as landes tenementes and hereditamentes holden in socage or of the nature of socage tenure a) Supâ— ead part §. 4. sometimes two partes of three maie be deuised namelie of landes tenements and hereditaments holden in cheef by knights seruice or of the nature of knightes seruice in cheefe b) Eod. § 4. as appeareth more fullie heretofore where I haue set downe the statutes at large What quantitie of goods or chattels maie be deuised by testament 1 Legacies to be paid out of the cleere debtlesse goods 2 The executor compellable to paie dettes out of his owne purse if he paie legacies first 3 Funerall expenses to be deducted out of the whole goodes 4 The testator maie sometime bequeath all his detlesse goodes sometimes halfe and sometimes but a third part 5 When halfe the testators goodes is due to the wife or children 6 When the wife and children ought to haue either of them a third part 7 Whether the wife and children ought to haue anie part of the dettes due to the testator 8 Whether the wife and children maie claime anie reasonable part of leases 9 Whether the wife and children maie claime a reasonable part of goodes where there is no custome 10 The reason of the lawe which leaueth all to the disposing of the testator 11 The reason of the custome wherby the power of the testator is restrained §. xvj COncerning the quaÌ„titie of goods and chattelles to be disposed this is first to be noted that the testator can not bequeath anie parte of the goodes but where something remaineth cleere the moderate funerals and the debtes due by the testator first discharged a) Bracton de legib coÌ„s Angl. lib. 2. c. 26. n. 2 L. scimus §. si praesatam C. de iure de lib. In qua lege assignatur ratio quare legatarijs praeferuntur creditores neÌ„pe legatarij de lucro captando creditores autem de damno vitaÌ„do contendunt d. L. scimus Et licet haeres qui inueÌ„tario legitimè confecto leg atarijs satisfaciat securus sit iure ciuili aduersus creditores quibus eodem iure concessum estactionem intentare non contra haeredem sed contra legatarios Longè tamen aliter iure nostro cautum est quo non legatarios sed ipsum executorem conuenire permittitur vt statim subijcitur And therefore if the testator doo bequeath any legacies by his testament where his goodes and chattelles will not suffice to discharge his funeralles and debts and the executor paie anie of those legacies before hee haue discharged the debts by meanes wherof there is not sufficient goodes lefte wherewith to pay the testators debtes in this case the executor shall be charged with the payment thereof out of his owne purse b) Fitzherb Abridg. tit deuise n 1. Brook tit admÌ„str n. 37. Perkins tit deuise fol. 109. as one that had otherwise wasted the goodes of the testator c) Doc. Stud. lib. 2. c. 11. quam conclusioneÌ„ facile admitterem coÌ„scio executore aeris alieni Sichard in d. §. si praefatam verb. 3. vtilitas Minsing in §. sed nostra Instit de haered qual diff n. 12. Ca terùm quod nonnulli ex nostratibus eandem conclusionem extendunt vt locum habeat vel ignorante executore alios esse creditores An istud verun sit dubito durum esse non inficior Et quidem summus Iusticiarius Brook oppositam sententiam tenet nisi vbi principi quid sit debitum quia regia debita suo periculo scire debet Brook tit exec n. 116. This then being vnderstood that no legacie is due but where there cleerlie remaine some goodes and cattelles the funeralles and debtes first deducted for funeral expeÌ„ces are to be deducted foorth of the whole goods both by the ciuill lawe d) L. scimus §. in computatione C. de iure delib and by the lawes of this realme e) Fitzh Na. Br. fol. 121 Doct. Stud. lib. 2. c. 10. Brook Abridg. tit exec n 172. Thou shalt vnderstande that of that which remaineth sometimes the whole sometimes the halfe and sometimes the third part maie be bequeathed or deuised by the testator according to the diuersitie of these cases following The first case is when the testator hath neither wife nor childe at the time of his death for then hee maie dispose all the residue of his cleare goodes and cattels at his pleasure f) Lindw in c. statut de testam lib. 3. ê“uincial constit Cant. verb. defunctum Bracton de legib consuetu Ang. lib. 2. c. 26. Tract de repub Angl. lib. 3. c 6. Fitzherb Bre. de rationabil parte bon The second case is when the testator at the time of his death hath a wife and no childe or else some child or childreÌ„ but no wife In which case by a custome obserued not onely throughout the prouince of Yorke but in manie other places besides within this realme of England the goodes are to be deuided into two partes and the testator can not bequeath anie more then his part that is to say the one halfe for the other halfe is due to the wife or else to the children by vertue of the said custome g) Lindw Bracton Fitzherb vbi supr The third case is where the testator leaueth behinde him bothe a wife and also a childe or children In which case by the custome obserued in diuers places of this realme of England and namelie within the prouince of Yorke the testator can not bequeath anie more of his goods then the third part of the cleere goods h) Act. computat in scaccario Archiepiscopi Ebor. Lindw Bract. Fitzher vbi supr for in this case the said cleere goodes are to be deuided into three partes whereof the wife ought to haue one
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
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
L. singulos de testa ff Minsing in d. §. sed cum paulatim Fourthly it is requisite that the testator doo with his owne hande write his name whom he will shall succeede and haue all his goodes and if he cannot write that then he name him before those witnesses e) L. iubemus L. cum antiquitas C. de testa Non tamen ita necessaria est nominatio haeredis vt proprio testatoris ore fiat quin sufficit si testator alio interrogante an velit talem fore haeredem Respondeat ita DD. in d. L. iubemus Grass Thesaur com op §. Institutio q. 17. Fiftly it is requisite that the witnesses bee such as are not forbidden to beare testimonie in that behalfe f) §. testes Instir de testa ordin Sixtly it is necessarie that the witnesses do see and behold the testator and not heare him onely g) Menoch de arbitr Iud. q. lib. 2. cent 5. cas 475. n. 23. Minsing in d. 5. sed cum paulatim It is also necessarie that the witnesses doo seale the testament either with their owne seales or with the seale of another h) d §. sed cum paulatim Finally it is necessarie that the testament be made at one time without any intermission except naturall such as cannot be auoided i) Eod. §. ibi Minsing A will thus †made is called a solemne testament which forme if men would obserue but no man is necessarily tied therevnto heere in England k) Supr part 1. §. 9. it were a more safe way aswell against the forging of false willes as suppressing of true willes Of the forme of an vnsolemne testament 1 What is requisite in the making of an vnsolemne testament §. xxiiij IN the †making of an vnsolemne testament it is not precisely necessarie to vse any of the foresaide ceremonies This onely is needfull heer with vs in England that the testator do appoint his executor and declare his will before two or three witnesses whose testimonie partly by the lawes ecclesiasticall a) C. cum esses c. relatum el. 1. de testa ext and especially by the generall custom of this realm b) Lindw in c. statutuÌ„ verb. probatis lib. 3. ê“uincial constit Cant. Tract de repub Angl. lib. 3. c. 7. Peckius in c. priuileg de reg iur 6. is sufficient for the probation and approbation of the same will concerning the appointing of an executor or the disposing of goods and cattels c) Atque huc tendit quod scriptum reliquit Minsing in Rub. de mil. test n. 6. videlicet apud eas gentes quae iuris ciuilis obseruatione non tenentur quarum Anglia est praecipua ius militarâ—s tesâ—â—menti obtinere si nulla ê“pria lex extet Of the forme of a vvritten testament 1 Diuers things considerable in a written testament 2 In what matter or stuffe the testamente is to bee written 3 In what language the testament is to be written 4 In what hand may the testament be written 5 VVith what notes or characters is a testament to be written 6 Limitations of the former conclusion 7 Of the words and sentences of a written will 8 Whether it be necessarie that there be witnesses in a written will 9 How the witnesses are to depose in proouing the will to be written by the testator 10 What if the testament bee founde in the testators Chist §. xxv WE haue heard elsewhere in what cases it is needefull that the testament bee written a) Supr 1. part §. 11. namely where the testator doth deuise any lands tenements or hereditaments b) Stat. H. 8. an 32. c. 1. and also when the same ought to be written that is to say in the life time of the testator c) Eodem stat with diuerse other questions there absolued Now †let vs heare of some other things which may seeme to appertaine to the forme of a written testament namely in what matter or stuffe the testament is to bee written in what language with what hand letters notes or characters with what wordes or sentences and whether it bee alwayes necessarie that there be witnesses of a written testament For the †matter wherein the testament is written the law regardeth not whether it bee paper or parchment or other like stuffe apt for writing d) §. nihil Instir de testa ordi Spec. de Instr edit §. 8. n. 21. Sed quid si quis scripserit voluntatem suam in puluere numquid valebit testamentum vt scriptum Et videtur quod sic per L. milites C. de testa Hoc vno subaudito nimirum nostratiuÌ„ testamenta omni immunitate atque adeo iure militari gaudere vt scriptum reliquit D. Smitheus Tract de repub Angl lib. 3. c. 7. Contrarium tamen scilicet non valere huiusmodi testmÌ„ tanquam in scriptis conditum existimo Saltem ad effectum illum de quo sit mentio in d. stat H. 8. an 32. c. 1. id quod ex mente illius statuti sacile colligere licet Et huc ê‘tinet quod scriptum reliquit Molin in L. 1. §. eod ff de verb. ob n. 9. Neither is it material in what †language e) Minsing in d. §. nihil the same be written either Latine French or anie other tongue For the †hande or letters wherewith the testament is written the lawe is indifferent whether it be Secretarie hand Roman hand Court hand or any other hand either faire or otherwise so that the same may bee read and vnderstoode f) DD. in L. quoniam C. de testa For the †notes or characters it skilleth not whether the same be vsuall or vnaccustomed g) Hoc intelligant Iustinianistae ê‘cedere iure gentium quo nos vtimur Nam iure ciuili testmÌ„ in scriptis fieri non potest per notas aut zypheras inusitatas vt teneÌ„t Bar. Bald. Angâ—l alij in L. quoties §. 1. ff de haered instituend praeterquam in casibus exceptis veluti in testamento militis ad pias causas c. de quibus Vasq de success creat lib. 2. §. 15. requisit 16. Tiraquel de priuileg piae causae c. 13. Grass Thesaur com op §. testmÌ„ q. 10. Vsuall or accustomed notes bee these xx s. for twentie shillings Cl. li. for an hundred and fiftie pounds 1590. for a thousande fiue hundred fourescore and ten with such like whereof I might bring infinite examples vnaccustomed notes and characters bee as when the testator dooth vse the figure 1 in stead of the letter A the figure 2 in steade of the letter B the figure 3 in stead of C c. or perhaps some other more straunge characters then these in place of letters Howbeit †if the characters bee such as the same cannot be read or vnderstood the testament is as if it were not written h) L. 1. ff si Tabul testa
c. in praesentia de probac. extr n. 39. Gabr. vbi supra n. 5. quae opinio communis est contra Bald. in d. Auth. ex complexu issue also is made capable of so much as is sufficient for needfull and conuenient sustentation hath preuailed against the rigour of the ciuill lawe and is to be obserued especially in the ecclesiasticall Court h) Idem iuris est in terris imperij gloss Panor in d. c. cùm haberet Bar. in â— Auth. ex complexu Decis Neap 164. n. 2. Dec. vbi supra Duen verb. filius reg 367. as more agreeable to nature equitie and humanitie And in this respect the lawes and statutes of this realme in prouiding aswell for the conuenient reliefe and keeping of poore and miserable children begotten born out of lawful matrimonie at the charges of the reputed father or mother i) Stat. Eliz. an 18. c. 3. without distinctioÌ„ whether such infantes were begotten in incest and adulterie or fornication k) Vbi enim lex non distinguit nec nos distinguere debemus L. de precio ff de pub in rem action as for the punishment of the mother and reputed father of such vnlawfull issue are worthily commended although in respect of the next limitation following they may seeme not altogether so worthie commendation The fourth limitation is grounded in the lawes of this realme which doo permit euerie man both by deede made and executed during their liues l) Perkins tit graunts fol. 11. Bract. lib. 2. c. 7. and also by their last willes and testaments to be executed after their deathes m) Perkins tit deuise fol. 98. to giue to deuise vnto anie their bastards without distinction all their lands tenements or hereditaments without restraint at the least more then wil suffice for their sustentation and much more then they are worthie of Which thing cannot but redounde to the great preiudice of right heires considering the daunger whereunto lawfull children are subiect and which they doo manie times sustaine through forcible â—latteries of vile dissembling harlots no lesse voide of all modestie then full fraught with all kinde of subtiltie with whose sweete poison and pleasant sting manie men are so charmed and inchaunted n) Videas c. 5. Prouerb Salom. that they haue neither power to hearken to the iust petitions of a vertuous wife praying and crauing for her children nor grace to denie the vniust demaunds of a vicious and a shamelesse whoore prating and grating for her bastardes neuer remembring that when Sara said to Abraham Cast out this bonde woman and her sonne for the sonne of this bond woman shall not be heire with my sonne Isaak Abraham by the commaundement of God hearkened to the voice of Sara o) Gen. c. 19. neuer once regarding that which diuers haue diligently noted that the brood of bastardes are commonly infected with the leprosie of the Sires disease p) c. si gens Anglorum ibi praepos distinct 56. Hinc est ait Peckius quod SodomitaruÌ„ vnà cum parentibus paruulos etiam coelesti igne consumpsit Dominus nempe quòd prospexerat paruulos hos idem flagitium admissuros Pec. in c. non decet de reg iur 6. and being encouraged with the example and patterne of their fathers filthinesse they are not onely prone to follow their sinfull steppes q) Mali corâ—â— maluÌ„ ouum metueÌ„da sunt paterni criminis exeÌ„pla L. quisquis C. ad L. Iul. maiest §. 1. but do sometimes exceede both them and others in all kinde of wickednesse The fift limitation is in the bastardes of kings and princes for a king may ex plenitudine potestatis make his vnlawfull issue capable of whatsoeuer by will deuisable hee dooth giue or bequeath vnto him r) Boer Decis 127 n. 17. Duen d. reg 366. lim 7. The sixt limitation is this the adulterous grandfather may bequeath anie thing to the lawfull children of his owne vnlawful sons or daughters or make them his executors s) Ias in L. haereditas C. de his quibus vt indig n 7. 8. Cui opinioni locum concedereÌ„ etiamsi hic Auê° habeat legitimos filios Cùm apud nos nulla sit necessitas instituendi suos vt supra ead part §. 1 but so cannot the incestuous grandfather t) Bald. in L. si quis incestus C. de incest nup. Couar in d c. 8. de spoÌ„sal 2. part §. 5. n. 13. The seuenth limitation is this that the testator may bequeath vnto his incestuous or adulterous daughter a competent portion for her dowrie or preferment in mariage for this is accounted all one as if he did bequeath it vnto hir for hir alimentation v) Panor in d. c. cuÌ„ haberet n. 5. Bar. in d. Auth. ex complexu quae conclusio ampliatur per Petr. Duen verb. filius reg 367. ampl 3. The eight limitation is this that an executor may make the testators bastard his executor x) Bar. in L. si his ff de vulg sub Bald. in L. eaÌ„ qua C. de fidei commis n. 4. Clar. § testium q. 31. Intellige tamen nisi coniecturae interuenerint ex quibus fraus praesumatur Grass §. Institutio q. 7. n. 13. The ninth limitation is when the adulterous parents doo solemnize lawful matrimonie together before the birth of the childe y) Praepos in c. tanta vis Qui filij sunt legitimi extra n. 10. Card. eod c n. 7. Melch. Kling Tract de caus inrÌ„ion fol. 85. 86. for example A married man doth beget a single woman with childe for this is adulterie by the laws ecclesiastical of this realme z) Card. praepos alij in d. c tanta vis Kling vbi supra c. nemo 32 q. 4. Panor in c. transmissae de eo qui cog consang vx extra Clar. §. adulterium n. 2. although by the ciuill lawe it is but fornication a) L. 1. C. de adul L. inter liberos ff ead Clar. vbi supra immediatelie after his wife dieth after whose death he marieth the woman for so he maie b) Nisi praeter copulam mortis machinatio interuenisset vel fides data fuisset quia tunc non valet inter eos matrimonium iure caÌ„ c. super hoc c. significasti de eo qui dux in matr quam poll per adul extr sed an dissolui possint hodie nuptiae huiusmodi multum dubito occasione statuti H. 8. an 32. c. 38. after the mariage the child is borne In this case the childe is not onely capable of anie testamentarie benefite but is reputed a lawfull childe and not a bastarde c) d. c. tanta vis DD. ibidem as heeretofore hath beene disputed more fullie d) Supr part 4. §. 15. Concerning those bastards which are begotten of single persons such I meane as may lawfullie marrie together then in case the mother were a maide or an honest widdow immediatelie
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
dissent aboute the election of the thing bequeathed this controuersie is to be decided by lot if it be not otherwise resolued who in that choise is to be preferred (g) §. optionis Instit de lega Of vncertaintie in respect of the time or date of the testament 1 When it is vncertaine whether of two testaments is later both are voide 2 The testament in fauour of children is presumed last 3 The testament ad pias causas is presumed last 4 The will once proued is not to be reproued by an other of the same date 5 A souldier may die with two testaments 6 Which of these two testaments is presumed later the testament ad pias causas or the testament inter liberos §. xj WHere †two testaments be founde but vncertaine whether of them is the later in this case neither testament is good a) Gloss in L. vlt. C. de edict â—i Adria toll Clar. §. testmÌ„ q. 100. for no man can die with two testaments b) L. quaerebatur ff de testoÌ„ mil. and so the one testament doth destroy the other c) Bar. in L. 1. §. 1. ff de bon poss secundum Tabul Neuerthelesse if the †one testament be made in fauour of the testators children or of those who are to haue the administration of his goods in case he had died intestate and the other testament in fauour of others then that testament shall preuaile which is made in fauour of the testators children or of them which otherwise are to haue the administration of his goods d) Bar. in d. §. 1. Sichar in L. vlt. C. de edicto Di. Adr. toll Mantic. dâ— coniect. vlt. vol. lib. 2. tit 15. n. 17. Or if †the one testament be made ad pias causas the other not then that testament ad pias causas is presumed last and so to take place e) Ias Sichard in d. L. vlt. Or if †the one testament be proued the other perhappes not as yet appearing and the executors in possession of the testators goods by vertue of the testament alreadie proued it is not afterwards to be reproued nor the executors dispossessed by meanes of the other testament of the same date f) Bar. in d. §. 1. Ias Sichard in d. L. vlt. Or if †the testaments be militarie testaments for then perhaps they are both good because a souldier may die with two testaments g) L. quaerebatur ff de mil. testa Where it is saide that that testament is presumed later which is made in fauour of them that are to haue the benefite of the administration of the testators goods or ad pias causas rather then those testaments which are not made ad pias causas nor in fauour of them which are to haue the administration What †if two testaments be found the one in fauour of the testators children or such as are to haue the administration of the goods of the deceased the other made ad pias causas and it dooth not appeare whether of them is former or later whether is to be presumed last and so of force I suppose that if they which are to haue the administration of the testators goods in whose fauour the testament is made be the testators children then that testament made in their fauour is to be presumed later rather then the testament ad pias causas h) Mantic. de coniect. vlt. vol. lib. 6. tit 3. n. 43. Vide supra 1. part §. pen. in sin quod ibi adnotaui ex Augustino otherwise the testament ad pias causas is to be presumed later rather then that testament made in fauour of collaterall kinsmen i) Mantic. vbi supr per L. sancimus C. de sacrosan ecclesia Of an vnperfect testament 1 Two sorts of vnperfect testaments 2 Whether a testament which is vnperfect in respect of solemnitie be voide 3 When a testament vnperfect in respect of will is voide 4 Two meanes whereby testaments are saide to be vnperfect in respect of will 5 Whether the testament be voide which is vnperfect by the former of these two meanes 6 By the ciuill lawe the testament vnperfect in respect of will is voide 7 Whether a testament ad pias causas being imperfect in respect of will be voide 8 That which hath place in testaments ad pias causas hath place also in our testaments 9 Whether a testament being vnperfect in respect of will by the second meanes be voide or not 10 What if the testator after hee haue declared his whole will reserue somewhat to be done at an other time 11 What if the testator hauing declared his testament doo sende for a Notarie to write and die in the meane time §. xij OF imperfect †testaments there be two sorts the one vnperfect in respect of solemnitie the other vnperfect in respect of will a) L. hac consultissima § ex imperfecto C. de testa ibi Paul de Castro Ias alij Boer decis 240. n. 4. 5. That testament is said to be vnperfect in respect of solemnitie which wanteth some of the legall requisites necessarie to the constitution and denomination of a solemne testament b) Sichard alij in d. §. ex imperfecto of which we haue alreadie spoken c) Supra 1. part §. 7. part 4 §. 23. That testament is said to be imperfect in respect of will which the testator hath begun but cannot finish as he would being preuented by death insanitie of minde or other impediments d) Ias Sichard alij in d. §. ex imperfecto L. si is qui de testa ff L. furiosus qui testa fac poss C. The †testament which is vnperfect in respect of solemnitie is vtterly voide by the ciuill lawe e) L. 1. de iniusto testoÌ„ ff L. hac consultissima §. ex imperfecto C. de testa DD. ibid. Minsing in §. sed cum paulatim Instit de testa ord n. 12. Iul. Clar. §. testmÌ„ q. 89. but by the lawes ecclesiasticall f) c. relatum el. 1. c. cuÌ„ esses de testa extra and especially by the generall custome of this realme g) Tract de repu Aug. lib. 3. c. 7. Lindw in c. statutum de testa lib. 3. prouinc const Cant. the testament is good without any such solemnities sauing that where lands tenements and hereditaments be deuised by will the solemnitie of a writing in the life time of the testator is precisely necessarie without the which the deuise of lands tenements and hereditaments is meerely void h) per Stat. H. 8. â—an 32. c. 1. vt refert D. Smith Tract vt supra Quod tamen quaere The †testanent which is vnperfect in respect of will is sometimes vtterly voide and sometimes it is good so farre forth as it is done which diuersitie of effects doth arise by the diuersitie of the meanes whereby the testament is vnperfect If
case namely when some speciall or certaine thing is bequeathed it is materiall whether the legacie be of lands tenements or hereditaments and so the question determinable in the temporall court according to the lawes temporall of this land are of goods and so the controuersie to be decided in the ecclesiasticall court according to the lawes ecclesiasticall of this realme If of lands tenements hereditamēts as when the testator for example doth in the former part of his wil deuise his lāds in such a place to one in fee and afterwards in the later part of the same will to another person in fee it seemeth by the lawes of this realm that the later part doth ouerthrow the former s) Plowd in cas inter Paramor Yardley fol. 541. And that as the later testament dooth destroy the former testament t) Eadē enim est ratio partis ad partem atque totius ad totum Euerard loc top à toto ad partem so the later part of a testament doth infringe the former part of the same testament when it is contrarie thereunto neuerthelesse I wil not presume to affirme that this conclusion is vndoubtedly certaine but with due submission surrender the same to be discussed by the learned in the lawes temporall vnto whom it rightly appertaineth If the deuise be of goods as when the testator dooth bequeath his signet his bookes or his horse c. First to one person and afterwards to another person then in case the second legacie be simple I meane without mention of the former the former legacie is not taken away but the two legataries concurring ought to diuide the legacie betwixt them v) Paul de Castro Ias Zas in L. si pluribus ff de leg 1. Ripa in L. re coniūcti n. 21. de leg 3. The reason and foundation whereupon this conclusion is builded is the testators constancie wherin the ciuill law dooth repose such confidence that whē he hath once bequeathed a thing he is not presumed to take the same away x) d. L. si pluribus verb. si quidem euidentissimè without euident presumption y) Raph. Cum. in d. L. si pluribus ibi Ias n. 12. 13. zas n. 14. qui omnes tenent sufficere coniecturalem probationem non obstante quod Textus exigat euidentissimam Quin imo probatio vel ex coniecturis emergens dicitur euidentissima in translatione legatorum Ias vbi supra post Bar. in L. si constante ff sol ma. n. 12. of the alteration of his former resolution Insomuch that if one and the same thing be left to one person in the testament and to another in the codicill yet is not the testator presumed so variable as vtterly to take away the former legacie but rather that both the legataries are to concurre and so to diuide the legacie betwixt them z) Bald. in L. cohaeredi §. cohaeres in fin de vulg pup sub ff Alex consil 169. vol. 5. Mantic. de coniect. vlt. vol. lib. 12. tit 2. n. 3. Where it is said that as the later testament doth destroy the former testament so likewise the later part of the testament dooth ouerthrow the former part thereof That is true when it is euident that the testator did meane it should be so a) d. L. si pluribus ibi DD. Mantic. de coniec vlt. vol. lib. 12. tit 2. n. 3. in fin But if it be doubtfull then without all doubt we ought to labour diligently to saue the testament from cōtradiction b) Mantic. de coniect. vlt. vol. lib. 3. tit 5. in fin Socin Iun. consil 125. vol. 1. n. 5. and not suffer one part to fight and brawle with another much lesse to permit one part to kill and destroy another in case there be any place for peace or hope of reconciliation to be had betwixt them Againe the argument is not of equall force à parte ad partem with the argumēt à toto ad totum in case there be inequalitie or diuersitie of reason betwixt the one and the other c) Euerard d. loco à toto ad partem n. 7. post Cyn. alios legû interpretes in L. cum notissimi §. in his C. de praescrip 30. ann as in this case For say that such is the force of posterioritie in testaments that the later dooth still destroy the former d) §. posteriore Instit quib mod testam infirm without any other reuocation e) Viglius Minsing in d. §. posteriore Say and thinke that the life of the later testament is euermore the death of the former testament euen because it is the later f) Grass Thesaur com op §. testm̄ q. 860. in prin supra eadem part §. 14. yet how can it be thereby iustified that the later part of a testament dooth destroy the former part whereas neither part doth receiue any life before the other g) Bar. in L. si quis ff de testa L. ex ea scriptura eod tit for vntill the whole testament be completed the partes thereof are as the sencelesse partes of an vnperfect creature or confused embrio h) d L ex ea scriptura Imo inquit Textus testamentum imperfectum est sine dubio nullum §. pen. Instit quib mod testa infir and doo receiue their life altogether at one instant namely when the testator hauing finished his testament dooth approue the same for his last wil and not before i) Iul. Clat. §. testm̄ q. 7. in fin Like as they do receiue their strength all at one moment namely at the death of the testator and not before at which time the foresaid Embrio being now growen to a perfect childe is then brought into the world when the testator doth depart out of the world k) Chrof Porcus in §. in extraneis Instit de haer qual different c. Marth de celebr miss extra If the second bequest be qualified with mentiō of the former for example the testator saith my signet which I bequeathed to A.B. I bequeath to C. D. whether in this case the former legacie be quite taken away or in part is a question wherin the writers do greatly vary l) Id quod patet per Mantic. de coniect. vlt. vol. lib. 12. tit 4 per Couar in Rub. de testa extra part 2. per Grass Thesaur com op §. legatum q. 8. per Vasq de success progress lib 3. §. 23. n. 96. c. per Doctores in L. plane L. si pluribus ff de leg 1. but the greater nūber incline to this opinion that the former legacie is not wholy taken away but that they are both ioint legataries m) Bar. in L. re coniuncti ff de leg 3. cuius opinionem frequentiori calculo receptam monstrat nobis Mantic. de coniect. vlt. vol. lib. 12. tit 4. n. 1. et refert Grass Thesaur com op §.
no lesse profitable for this common wealth then it is vsuall to die Neuerthelesse because it more tendeth to the aduauncement of thy commendation to bee intreated then perswaded and more fitte for mine owne safetie to craue with humilitie then proudly to chalenge that which may be denied reiecting therfore these foresaid reasons I do wholy submit my selfe vnto thy courtesie beseeching thee to vse me friendly and either to pardon freely or to admonish charitablie so shall I haue iust cause to commend thy vertue and gladlie amend any fault committed H. S. Whereas there be sundrie escapes in the print I haue for thy ease caused those of greater consequence to be amended with a penne the rest I shal desire thy selfe to amend or to sustaine without griefe AN ALPHABETICALL TABLE of the particular contents of this treatise wherin is relation to the leafe A ACcount wherefore exacted of the executor fol. 232 Account whether it may be released by the testator 233 Account to bee made to the ordinarie 233 Account whether it is to bee made to the creditors or legataries 234 Account whether it is to bee made to the coexecutors 234 Account when it is to be made 234 Account generall and particular 234 In the Account what proofe is requisite 234 By accusing the testament of falsitie the legatarie doth loose his legacie 288 Ademption of legacies what it is 277 Ademption of legacies two fold 277 Ademption of legacies not presumed 278 Administrators to bee accountable to the ordinarie 92 Administration of the testators goodes to whom it is to be committed the condition of the executorship depending vnaccomplished 169 Administration of the testators goods may be committed to the ordinarie vntill the executorship take place after it is ended 171 Affirmatiue conditions about mariage are not reiected but in some cases 152 Affirmatiue conditions of marrying somtimes harder then the negatiue part 152 Age of testators wherein they may deuise their lands 35 Age of testators wherein they may deuise their goods 35 After the Age of fourteene yeeres a boy and after twelue a woman may make their testamentes of their goods 35 Age how old soeuer dooth not depriue a man of libertie to make his testament 42 Alienation of pupils goodes by the tutor whether it be good or not 102 Alienation of the things bequeathed whether it may be prohibited or no. 154 Alienation of the thinges bequeathed sometimes lawfull notwithstanding the testators prohibition 155 By Alienation of the thing bequeathed whether the legacie be extinguished 285 Alteration of the testators state whether it make voide the testament 272 Alter his will the testator may at any time 277 Ambiguitie what it is and how it may be auoyded 192 Analogie betwixt a testament and a iudiciall sentence 9 Animus testandi howe it is prooued 8 An Apostata cannot make a testament 55 Apostata worse then an heretike 55 Apostata what he is 55 Euery Apostata is not intestable 56 An Apostata cannot bee executor 197 Armed souldiers 26 Of Armed souldiers whether euerie one be equally priuiledged 27 Arguments of madnesse 38 Arbitrarie conditions accounted for accomplished when the let is not in the partie 132 Arbitrary conditions not accounted for accomplished wheÌ„ it doth stande by the partie 132 Arbitrarie conditions wheÌ„ the same must be performed no time being expressed by the testator 157 Arbitrarie conditions in what compasse of time it ought to bee performed after the testators death 158 Ascripâ—itius glebae 44 The authoritie and charge of an executor 209 The Authoritie charge of the executor of an executor 213 The Authoritie and charge of the executor of an administrator 214 Authoritie of the executor testameÌ„tarie in distributing to the poore 251 The Authoritie of a tutor 101 The Auncient forme of making inuentaries 220 B Of Bastards there bee three sortes 198 Bastards begotten in incest or adulterie whether they be capable of any testamentarie benefite 198 Bastards by whom they are to bee nourished by the lawes of this realme 200 Bastards how farre they be capable of any benefite by the lawes of this realme 200 Of Bastards begotten betwixt single persons 201 Benefite by the ministers of Gods worde 27 Benefite by the studie and practise of law 27 A Blind man may make a nuncupatiue testament 52 A Blind man whether he may make a written testament 52 Boasting words do not bind or dispose 8 The Bonde called Mutiana cautio whence it had the name 138 Bonde ought to bee put in where there is prohibition of alienation 155 A Bondslaue cannot make a testament 43 Bondmen as well as free may be executors 196 Burgage landes deuisable by will 71 Burgage lands to whom and after what maner are they deuisable 71 Burgage lands whether they be deuisable by any other but a citizen 71 Burgage tenure is a kinde of tenure in soccage 71 Burgage lands being deuised whether liuerie or seisin bee needfull 72 C Cancelling of a testament ad pias causas is presumed to be done vnaduisedly 31 By Cancellation the force of the testament is ouerthrowne 270 By Cancellation whether a nuncupatiue testameÌ„t lose his force 270 Cancelling of a testament somtimes is not hurtfull to the testameÌ„t 271 Cancelling of the testament to whom it is to be imputed when it is vnknowne who did it 271 By Cancelling the testament the legatarie doth loose his legacie 288 A Captiue during his captiuitie can not make a testament 45 If the Captiue escape whether the testament made during captiuitie be good or not 45 Captiuitie doth not make voide the testament made before 45 Captious conditions wherfore they be so tearmed 146 That Captious dispositions are void this position is diuersly extended 146 Captious conditions do not alwaies make void the disposition 147 Casuall conditions not accounted for accomplished before the euent 133 Casuall conditions sometime reputed for accomplished albeit the same be not indeed performed 133 Casuall and mixt conditions whether the same may be performed before the making of the will 157 A Casuall condition may be accomplished at any time 157 No Cautell can take away the libertie of making a testament 61 Children whose father or mother is in bondage whether they be free or bond 43 The childe begotten before mariage shal be the husbands though another got it 162 The Child begotten during mariage is deemed to be the husbandes though another man had to doo with the wife 162 The Child sometime like to the husband being begotten by the adulterer what is the reason 163 The Childe begotten during mariage in some cases is not adiudged the husbands 164 The Child whether shall it bee deemed the former or later husbaÌ„ds when it is vncertaine whether of them did beget the same 165 If the Child be heard to crie the father shall be tenant by the courtesie 167 The Child if it were not heard to crie whether shall the father bee tenant by the curtesie 167 The Childe in the mothers wombe being made
executor she deliuered of diuers children whether shal euery of thē be executors 168 Church goods cannot be deuised 93 Churchwardēs may sue for a legacy left vnto the Church 202 Church if any thing be left vnto the Church what Church is vnderstood 251 Citation whether it be necessarie in prouing of testamants 224 Citation whether it be necessarie in making of an account 235 By the Ciuill and Canon lawes a King cannot giue away his kingdome 67 Clause derogatorie manifold 265 Clause being derogatarie of the power of making testaments mention or reuocation thereof is not necessarie 265 Clause being derogatorie of the will of making testaments then it is needfull to make mention thereof 265 In clauses derogatory what is chiefly to be obserued 267 Clauses derogatory of small force in the testaments of simple persons 268. This worde Codicill what it is 12 Codicill rightly defined 12 Codicill called a little will testament a great will 12 The Codicill compared to a boate the testament to a ship 13 Codicils vpon what occasion they were deuised 13 Codicils may be made in writing or without 13 Codicils may bee made either by him who hath made a testament or which dieth intestate 13 Codicils part of the testament whether they be made before or after the testament 13 Codicils testaments agree in the efficient cause but they haue cōtrarie effects 14 Coexecutor not excluded by his refusall before the ordinarie 183 In the Coexecutor many thinges considerable 215 Condemned to perpetuall prison whether hee may make a testament 46 Condition in a testament ad pias causas neede not be obserued precisely 31 Conditions expressed in the disposition do not alwais make the same conditionall 116 Conditions impossible or vnhonest do not make the disposition conditionall 117 Conditions necessarie whether they make the disposition conditionall 117 Conditions being referred to that which is past are improperly conditions 117 Conditions necessarily vnderstood do not make the disposition conditionall 117 Of Conditions some be necessarie some impossible or indifferent 121 Conditions necessarie 121 Conditions impossible diuers 122 Conditions possible manifold 122 Conditions necessarie or impossible doo not suspende the effect of the disposition 124 Conditions possible do suspend the effect of the disposition 124 Conditions partly certaine partly vncertaine do suspend the effect of the disposition 124 Conditions first possible afterwards impossible whether they make void the disposition 126 That Cōdition which is both impossible and vnhonest maketh voide the disposition 126 Conditions impossible by reason of repugnancie whether they make void the disposition 126 Cōditions possible whether they do alwaies suspend the effect of the disposition 127 Conditions inducing a forme are to be obserued precisely 128 The Condition whether it may bee performed by an other person thē him that is therein named 130 The Condition whether it be reputed for accōplished when the impediment is not in the partie 131 Conditions arbitrarie are accoūted for accomplished if the let proceed not from the partie 132 The condition not performed by the impediment of the testator whether the same be reputed for accomplished in law 134 The Condition being affirmatiue it sufficeth not to put in bonds 137 The cōdition being negatiue whether it be sufficiēt to put in bōds 138 The condition if it cannot be accomplished during life then it sufficeth to put in bonds 138 The condition being negatiue if it may be performed during his life to whom it is imposed there the caution hath no place 139 A condition negatiue is then said to be accomplished when it cannot be infringed 139 The Condition being once accomplished whether it be sufficient though it doe not endure 141 The Conditiō being casuall it sufficeth if it were once accōplished 141 The Condition being arbitrarie it is sufficient that the same was once accomplished 142 The Condition being mixt then it is sufficient that the same was once accomplished 142 The Condition if it endure not by his fault by whom it is to be accomplished the thing bequethed cannot be obteyned 143 The Condition beeing of mariage whether it be reputed for accomplished if the executor were once willing though afterwards vnwilling 143 Conditions against the libertie of mariage vnlawfull except in certaine cases 150 Condition with the arbitrement will or consent of another vnlawfull 150 Condition of prohibiting mariage with some persons not vnlawfull 151 Condition hauing relation to the mariage of a thirde mariage whether the same be vnlawfull 151 Condition prohibiting mariage not reiected when pia causa is substituted 152 Conditions affirmatiue about mariage not vnlawful but in some cases 152 Condition of mariage with the aduise or counsell of another not vnlawfull 152 Condition of mariyng with the consent of another to be obserued in part 153 Condition of not marrying doeth not hinder restitution simply imposed 153 Conditions within what time the same ought to be performed no certaine time beeing expressed 156 The Condition whether it may be performed before the making of the will 157 Conditions arbitrarie whē the same ought to be performed 157 The Condition whether it may be performed betwixt the making of the will and the death of the testator 158 The Condition within what compasse of time it may or ought to be performed after the Testators death 158 Condition of mariage whē it ought to be performed 159 Condition of prohibiting mariage whether it bee meant of the first mariage onely 151 Condition prohibiting mariage in some place not vnlawfull 151 Conditionall legacie not due before the condition be extant 290 The Condition depending if the legatarie die whether the legacie be transferred 290 Corne on the ground wherof a man is seised in right of his wife whether the same be deuisable folio 93 Corne on the ground whether the same be deuisable by the lessee the lessor being seysed in right of his wife 93 Corne on the ground whether the same be deuisable by the tenant by the curtesie 93 Corne on the ground deuisable by the tenant in dower 93 Corn growing on lands morgaged whether the same be deuisable so 93 Corn on the ground whether the same may be deuised by the testators daughter where a sonne and heire is afterwards born or wherin her mother dooth recouer her dower 94 Corn on the ground to be inuentaried 218 Corn in the barn bequeathed the same being spent and other corn there at the testators death whether the legacie be good 278 Custome of Gauelkind whence it sprang 71 Custome of deuising lands to certain vses reformed 72 D He that is both Deaffe and Dumbe may make a testament 51 Deaffe but not dumbe whether he may make a testament 52 Declaration of a mans will may be referred to another 148 Definition of a testament 3 The Definition of a testament vnworthily reprehended 3 Definitions dangerous in law folio 4 Definitions wherfore dangerous fol. 4 A perfect Definition very profitable 5 Definition of a last wil. 11 Definition
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
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
make a testament 53 Infants as well as others of full age may be made executors 196 Infanitie of minde see Madnes Intestable actiuely by occasion of any crime is intestable also passiuely 203 Inuentary to be made by the tutor 101 An Inuentarie being made the executor need not to pay any legatarie his whole legacie where there is not sufficient to pay the rest 107 No Inuentary being made how far the executor is bounde to pay legacies 108 Inuentary necessary 217 Inuentarie wherefore necessarie 217 In the Inuentary what things are to be put 218 Inuentarie to bee made before the executor meddle with the testators goods 219 Inuentary indented 219 Ioyntenāt whether he may bequeath his part of Burgage land 71 Whos 's Issue is naturall not lawfull whether he is said to die without issue 161 Whos 's Issue is lawfull not naturall whether he be said to die without issue 261 The Issue whether it is the former or second husbands when it is doubted which of them did beget the same 165 Issue whether shall he be deemed to haue who had children but not at his death 166 Issue whether shall he be deemed to haue whose childe is vnborne when he dieth 167 The Issue if it die so soone as it is borne whether shall the father be deemed to haue died without issue 167 If the Issue be borne dead or die as it is borne whether shall the father be sayde to haue had Issue folio 168 This word Iust hath diuers significations 5 Iust opposed to that which is wicked 5 Iust taken for full and perfect 6 Iust what it signifieth in the definition of a codicill 12 K Hee that Killeth himselfe is intestable 58 Kin if the testator make his Kin executor which of his kin is to bee admitted 252 Many kindes of testaments 16 Two Kinds of iudiciall sentences 9 Diuers Kindes of legacies now confounded 15 Three Kindes of giftes in regarde of death 16 Diuers Kindes of priuiledged testaments 25 Three Kinds of Apostasie 55 Two Kindes of Ecclesiasticall persons regular and secular 64 Diuers Kinds of conditions 121 Diuers Kinds of Bastards 198 Diuers kinds of executors 205 Diuers Kindes of executors testamentarie 207 A King whether by his testament he may bestowe his kingdome at his pleasure 66 Knowne or vnknowne persons may be made executors 196 L Landes not deuisable without writing 23 Lands at what age they may be deuised 35 Lands are not deuisable but in certaine cases 70 Lands holden in gauel kind deuisable 70 Landes holden in burgage tenure deuisable 17 Lands deuisable to certaine vses 72 Lands in what cases they may be deuised by the lawes of this realm 77 Lands deuised alienated and redeemed whether the same may bee recouered 280 Last will is a generall worde 3 Last will how it is defined 11 Later testament doth infringe the former 263 By the lawes Ciuill and Canon a King can not giue away his kingdome 67 Whether by the lawes of this realm a King may giue away his kingdome 67 Leases are to be put into the inuentarie 218 Legacies bequeathed by him which dieth intestate by whom they are to be paied 13 Legacie what it is 14 Legacies proceede of liberalitie 14 Legacies payable as well by an administrator as by an executor 15 Legacies are to be payed out of the cleare goods 104 Which legacie is firste to bee paied whē there is not sufficient goods to pay euery legacie wholie 107 A Legacie may be giuen to or from a certain time or to or from an vncertaine time 172 The Legacie is not transmissible which is giuen from an vncertaine time 172 The Legacie whether it bee transmissible the vncertaintie being about the question whether not this question when 172 The Legacie is not transmissible if the question bee onely when not whether 173 The Legacie whether it be transmissible which is giuen after a certaine age 173 The Legacie sometimes transmissible albeit the age be ioined to the substance of the legacie 173 A Legacie being left to a bastarde whether the same bee presumed to bee left for his alimentation 202 A Legacie of wine or corne no quātitie being expressed whether the same be void 255 Legacie due though the executor cannot or will not vndertake the executorship 276 The legacie if it be referred to a certaine day whether it begin to be due at the death of the testator 291 The Legacie is extinguished if the thing bequeathed doo perish 292 The Legacie is not extinguished if the thing bequeathed do perish by the negligence of the executor 292 The Legacie which is generall or doth consist in quantitie cannot perish 293 The Legacie whether it be extinguished if the thing bequeathed be not destroied but the forme onely altered 293 The Legatarie may not take his Legacie of his owne authoritie 15. A Legatarie may not of his owne authoritie take his legacie and what is the reason 119 Legataries what remedie they haue for the obteining of their legacies 119 The Legatarie may sometimes take his legacie of his owne authoritie 119 A Legatarie whether hee may bee a witnesse 187 Legatarie ought to bee capable of the legacie at the testators death 276 Legataries by what meanes they may be made incapable of their legacies 286 A Legatarie whether he loose his legacie by reason of enimitie betwixt him and the testator 286 The Legatarie looseth his legacie by accusing the testament of falsitie 288 The Legatarie looseth his legacie by cancelling the testament 288 The Legatarie whether he loose his legacie by entring to the possession without authoritie 288 The Legatarie if he die at the same instant when the testator dieth whether the legacie be lost 289 A Libeller cannot make a testament 58 A libeller cannot bee executor 203 Licence of the husbande maketh good the wiues testament 47 Licence of the husband whether it must go before or may concurre or follow the wiues testament 48 Licence granted by the husband to the wife whether when it may be reuoked 48 M Mad folks cannot make their testaments 36 Madnes being past whether the testament be good 36 A mad man may make his testamēt betwixt his sits 37 Madnes to be proued by him which obiecteth the same 37 Madnes before the making of the testament whether it be presumed to continue 37 Madnes hard to be proued 38 Madnes how it may be proued 38 Madnes whether it may be proued by singular witnesse 38 Madnes whether it may be proued when the witnesses yeelde a generall reason of their knowledge 38 A Manifest vsurer cannot make a testament 56 A Manifest vsurer not to be buried in any Church or Churchyarde 57 Many being appointed executors whether one may be admitted without the rest 181 Manifest vsurers incapable of testamentarie benefite 203 Many things to bee considered of him that would be resolued whether it were better to accept or refuse the executorshippe folio 209 Mariage though it be vnsolemne yet it is a true mariage 20 Mariages
made during his lunacy or not 38 Testament whether it may be made by him which is at the very point of deth 61 Testaments to be prooued before the ordinary 221 Testaments loose their force 2. waies 239 Testaments by what means they be void from the beginning 239 Testaments being good at the first by what meanes they become void afterwards 239 Testament made by force whether it be void ipso iure 241 Testament confirmed after feare past whether it be good 241 Testament made by feare is good sauing in fauour of the author of his feare 241 Testament made in fauour of children is presumed to be later 256 Testament ad pias causas is presumed later then others to prophane vses 256 Which Testament is presumed later the one made ad pias Causas the other inter Liberos 257 The Testament improperly tearmed Captions which is referred to the will of an other 147 The Testator must be sui iuris 10 Testator at what age he may deuise laÌ„ds 35 Testator at what age he may make a testament of his goods 35 The Testators will may not depend of an other mans wil and what is the reason thereof 147 The Testator may referre his will to anothers will ioyned with a fact 148 The Testator whether he may die partly testate partly intestate 171 The Testator may omit or exclude his own child make others executors 195 The Testator may bequeath sometimes all sometimes halfe sometimes the third part of his goods 104 Things discending to the heire and not to the executor not deuiseable 93 Translation of legacies what it is 281 Whether euerie Translation do include an ademption of the legacie 28 Translation of legacies doth not alwaies include ademption 282 In Translation of legacies whether the charge imposed on the first legatarie be transferred to the secoÌ„d legatarie 282 Traitors or fellons cannot be executors 197 Traitors be intestable 52 Traitors intestable from the time of the crime committed 53 A Traitor pardoned and restored may may make a testament 53 Tutors by whom they may be appointed 96 Tutors who may be appointed 97 Tutors to whom they may be appointed 98 A Tutor cannot be assigned to him that is in ward 98 Tutors may be appointed simplie or conditionally 99 Tutors whether they ought to enter into bond for the performance of their office 101 Tutorship ended by diuers meanes 102 Tutorship ended in respect of sufficient age of the pupill 102 Tutorship ended sometimes in respect of the tutor himselfe 102 Tutorship ended in respect of the forme of the tuition 103 Two testaments priuiledged found without date which is presumed to be the later 31 Two witnesses needful and two sufficient for the proofe of a testament 185 Time of the crime committed 53 What time hath the executor to consult whether he will take or refuse the executorship 216 Time for making an inuentarie 219 V Vaine feare hindereth not the testament 241 Villaine compared to him that is Ascriptitius Glebae 44 A Villaine whether he may make a testament or no. 44 A Villaine whatsoeuer he hath his lord may take it from him 44 A Villaines testament whether it may be made void by his lord 44 A Villaine being executor may make his testament 45 A Villaine executor may maintain action against his lord 45 Vlpian liued long before Iustinian â—9 Volunâ—arie conditions are to be obserued precisely 129 Vnaduised speeches make not a testament 8 Vnaccustomed notes do not hurt a testament ad pias causas 30 An vncertaine person cannot be made executor 203 Vncertaintie manifold 248 Vncertaintie of the person whether it destroy the disposition 249 Vncertaintie by reason there be diuers persons of one name maketh void the disposition 250 Vncertaintie vnhurtfull if the testators meaning be certaine 250 Vncerteintie doth not hinder the disposition ad pias causas 251 Vncertaine by reason of alternatiue speech vnhurtfull 252 Vncertaintie by reason of generalitie in the thing bequeathed whether it destroy the disposition 254 Vncertaine testaments preserued from destruction by the equitie of the lawes Ecclesiasticall 255 Vncertaintie about the date of two testaments maketh both voide 256 Vniust things not to be commanded by the testator 5 Vniuersall executor may enter to all the testators goods and catâ—els and therefore chargeable with the payment of all his debts 175 An Vnlawfull Colledge cannot be executor 202 An Vnlawfull Colledge when it is so reputed 202 Vnperfecte is the testament by two meanes 6 Vnperfect in respect of solemnitie folio 6 Vnperfect in respect of will 6 Vnpriuiledged testaments what they are 32 Of Vnperfect testaments there be two sorts 257 Vnperfect in respect of solemnitie whether the testament be void 257 Vnperfect in respect of will whether the testament be void 258 Vnperfect in respect of will the testameÌ„t may be by diuers meanes 258 An Vnperfect testament is voide by the Ciuil law 258 An Vnperfect testament ad pias causas being vnperfect in respect of will whether it be voide 258 Vnperfect in respect of will the testament is not by reseruation of some thing to be added 2â—9 Vnsolemne testament what it is 18 An vnsolemne testament if it were not properly a testament what inconuenience would follow 20 Vsurer manifest cannot make a testament 56 Euery Vsurer is not intestable 56 A manifest Vsurer who is 56 Whether he be an Vsurer which lendeth for gaine but dooth not receiue any more then the principall 56 An Vsurer is not intestable in England vnlesse he take aboue ten in the hundred for a yeares forbearance or after that rate 56 Vsurie how it is punished in England 56 Vsurer manifest not to be buried in any Church or Churchyard 57 Vsurer manifest incapable of any testamentarie benefite 203 Vulgar forme of prouing testaments 223 W The wardship of a child that hath lands who shall haue 98 Of Wards the hard estate 98 All Wards are not subiect to the like conditions 99 The Wardship of an infant hauing lands in soccage to whom it belongeth 99 Wardship ended by diuers meanes 102 The Wife cannot make her testament of lands though her husband consent 47 The Wiues testament whether it bee good after the death of hir husbande 47 The Wiues testament of lands somtimes good in law notwithstanding the couerture 47 The Wife cannot make hir testament of goods without hir husbandes license and why 47 The Wife may in some cases make hir testament without hir husbandes license 48 The Wife may make hir testament of a thing in action whereof her husband was neuer possessed 48 A Wife executrix may make an executor without hir husbands license 48 A Wife executrix cannot giue away the testators goods by hir will 49 A VVife both executrix and legatarie cannot make a testament of that which she did accept not as executrix but as legatarie 49 A VVife executrix and legatarie whether shall she be deemed to haue accepted the testators goods as executrix or as legatarie 50 A wife wherefore may she not make hir testament of that which she did accept as legatarie 49 A VVife licensed to make hir testament whether she may make any mo willes but one 50 Of a Wife Executrix 215 The Will of the testator chiefe gouernor of the testament 9 Willes are to be fauourably interpreted 193 Witnesses to the number of seuen wherefore they were exacted rather in testaments then in other acts 17 Witnesses two or three sufficient by the law of God 18 Witnesses whether they are to be required in the making of a testament 19 Witnesses not priuy to the contents 23 Witnesses whether they be necessary in a testament amongst children 29 Witnesses must be learned when they do not know the contents of the wil. 23 Witnesses deposing that the testator was of sound minde and memory to be preferred before those which depose the contrary 38 A Witnes euery one may be which is not forbidden 186 The Witnesses not being greater then all exception whether the number may supply the defect 186 Witnesses no greater then all exception in three respects 186 Witnesses are sometimes excluded for their dishonesty 187 Witnesses sometimes excluded for want of iudgement 187 Witnesses sometime excluded for affectioÌ„ 187 Witnesses whether they be always necessary in a writen will 191 A Woman couert cannot make a testament of her lands 47 A Womans testament made before marriage whether it be good if she dy during the couerture 47 A Woman whether she may be a witnes 187 Women as wel as men may be executors 196 This word testament what it signifieth 2 This Word last will what it signifieth 3 This Word lust what it signfieth 5 This VVord lust taken for ful and perfect 6 This VVord Sentence hath many significations 7 VVords vnaduisedly spoken make not a testament 8 The VVordes of the testator are not so greatly to be regarded as his will and meaning 9 These VVords lawfull and iust how they differ 1â— These VVords disposition and sentence how they differ 11 This word codicill what it signifieth 12 This word lust what it signifieth in the definition of a codicill 12 VVords vvithout meaning are of no force 116 By vvhat VVords the disposition is made conditionall 121 Of the VVords and sentences of a vvritteÌ„ testament 190 VVriting necessary in the deuise of lands 19 VVritten testament vvhat it is 22 Writing after the making of the testameÌ„t vvhether it do make it a vvritten testament 23 A VVritten testament hath some things peculiar to it selfe 23 VVithout vvriting the deuise of lands is not good 23 A VVritten Testament may be proued though the vvitnesses be not priuy to the contents 23 VVhat is to be obserued in written testaments vvhere the vvitnesses are not priuy to the contents 23 A VVritten testament in vvhat manner of stuffe it ought to be written 190 A VVritten testament in vvhat language it ought to be vvritten 190 A VVritten testament in vvhat hand it ought to be vvritten 190 A VVriting being found in manner of a vvill vvhether it be presumed the very vvill or but a draught therof 262 Y Yeares 21. requisit for the deuise of lands 35 Yeares after fourteen a boy and a vvoman after tvvelue may make their testaments of goods 35 Yeares See age FINIS Printed at London by I. Windet 1591.