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
therof dieth his heire being within age that in euerie such case the king shall haue the warde and mariage of the bodie of such heire so being within age the life of the freeholder or freeholders of the said manors landes tenements or hereditaments so holden by knights seruice notwithstanding Sauing and reseruing to all and euerie woman and women all and euerie such right title interest of dower as they or any of them ought to haue or bee or shall be iustlie intituled to haue claime or demand of anie manors landes tenementes or hereditamentes by the lawes of this realme to be taken or assigned vnto them or anie of them out of the two partes of the said manors landes tenementes or hereditaments seuered and deuided from the third part as is aboue said and not otherwise And sauing also to the king our soueraigne lord his heires and successours the reuersions of all such tenauntes in ioyntenure and dower immediately after the death of such tenauntes if they shall happen to die duringe the minoritie of the kinges wardes An other acte for the Explanation of the former concerning willes and the deuise of landes WHether in the laste parliament begunne and holden at Westminster the 28. day of Aprill in the 31. yeere of the kinges most gratious raigne cap. primo willes 2. And there by diuers prorogations holden and contiued vnto the 24. daie of Iulie in the 32. yeere of his saide raigne It was by the kings most gratious and liberall disposition shewed toward his most hūble and obedient subiects ordeined and enacted howe and in what manner landes tenementes and hereditamentes might by will or testament in writing or otherwise by anie acte or actes lawfullie executed in the life of euerie person giuen diposed willed or deuised for the aduauncement of the wife prefermente of children paiment of debtes of euerie such person or otherwise at his wil or pleasure as in the same acte more plainelie is declared Sithen the making of estatute diuers doubtes questions and ambiguities haue risen beene moued and growen by diuersity of opinions taking in and vpon the exposition of the letter of the same estatute For a plaine declaration and explanacion whereof and to the intent and purpose that the kinges obedient and louing subiectes shall and may take the commoditie and aduantage of the kinges said gratious and liberall disposition the lordes spiritual and temporall and the commons in this present parliament assembled most humbly beseeching the kings maiestie that the meaning of the letter of the same estatute concerning such matters hereafter rehearsed may be by the authority of this presēt parliament enacted taken expounded iudged declared and explaned in manner and fourme following First where it is contained in the same former statute within diuers articles branches of the same that all and singuler person and persons hauing any manors lands tenements or hereditamentes of the estate of inheritance should haue full and free libertie power and authoritie to giue will dispose or assigne as well by last will and testament in writing or otherwise by anie act or actes lawfullie executed in his life his manours landes tenementes or hereditaments or anie of them in such manner and fourme as in the same former act more at large it dooth appeare Which wordes of estate of inheritaunce by the authority of this present parliament is and shall be declared expounded taken and iudged of estates in fee simple onelie And also that all and singuler person and persons hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenarie or in common in fee-simple of in anie manors lands tenements rents or other hereditaments in possession reuersion or remainder or of rents or seruices incident to anie reuersion or remainder and hauing no manors lands tenements or hereditaments holden of the king his heires or successors or of any other person or persons by knights seruice shall haue full and free liberty power and authority to giue dispose will or deuise to anie person or persons except bodies politike and corporate by his last wil and testament in writing or otherwise by any act or actes lawfullie executed in his life by him selfe soly or by himselfe and other iointly seuerally or particularlie or by al those waies or any of them as much as in him of right is or shall be all his said manors lands tenements rentes and hereditaments or any of them or any rents commons or other profits or commodities out of or to be perceiued of the same or out of any parcell thereof at his owne free will and pleasure any clause in the saide former acte notwithstanding And further be it declared enacted by the authority aforesaid that al singuler person persōs hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenery or in cōmon in fee-simple of or in anie manors lāds tenements rentes or other hereditamentes in possession reuersion or remainder or of in any rents or seruices incident to any reuersion or remainder holdē of the king by knights seruice in cheef or of the nature of knights seruice in cheefe hath by the authority of this present parliament shall haue full and free liberty power authoritie to giue dispose will or assigne to any persō or persōs except bodies politike corporate by his last will testament in writing or otherwise by any act or acts lawfully executed in his life by him selfe soly or by himself other iointly seuerally or particularly or by al those waies or any of them as much as in him of right is or shall be two parts aswell of al the said manors lands tenementes rents and hereditaments as of all and singuler his other rents hereditaments or of any of them or anie rents commons or other profits or cōmodities out of or to be perceiued of the same two parts or out of any parcell thereof in three partes to be deuided or as much therof as shal amount to the full and cleere yeerelie value of two parts thereof in three parts to be diuided of what person or persons so euer they be holden at his free will and pleasure And that by the authority aforesaid the said will so declared shal be good and effectuall for two parts of the said manours lands tenements and hereditaments although the will so declared be made of the whole or of more than of two parts of the same The same diuision to be made and set forth by the deuisour or owner of the same manours lands tenements and hereditaments by his last will in writing or otherwise in writing And in default therof by a commission to be graunted out of the kinges courte of the wards and liueries vpon the enquirie of the true value therof by the othes of 12. men and returne or certificate thereof had in the same court of the said manours lands tenementes and hereditaments diuision to be made by the master of the
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
be demaunded so that he which maketh demaunde doo enter into bonde in manner as hereafter is described to performe that which is exacted by the testator or else to make full restitution p) L. quibus diebus §. Termilius ff de cond demon L. 1. 2. C. de his quae sub modo An other case is when †the testators will is not repugnant thereunto for then this bonde as it is affirmed hath place euen in affirmatiue conditions q) Bar. in d. L. Mutianae de cond demon ff n. 3. When the †condition is negatiue then wee are to regarde what kinde of negatiue condition it is that is to saie whether the same consist in not dooing or not giuing or not chauncing If †the condition consiste in not dooing then it is material whether the same maie be accomplished so long as he liueth on whom the same is imposed yea or no. If †the condition consistinge in not dooing can not be performed so longe as the person on whome it was imposed liueth then maie hee obtaine the bequest by puttinge in bondes to accomplishe the condition or else in defect thereof to make full restitution r) d. L. Mutianae ibi Bar Balâ— Paul dâ— Caâ—â—r Zas in L. dedi tibi ff de cond caus dor as for †example the testator maketh one his executor or giueth him a hundred pounde if he neuer plaie at the Cardes or Dice This condition we see is negatiue it coÌ„sisteth in not dooing and it is such a condition withall as can not be fullie performed so long as hee liueth on whom it is imposed because at anie time during his life hee maie infringe the same by playing at the Cardes or Dice s) Sâ—mâ— de Praetis de interp vlt. vol. lib. 5. inter 2. Iub 1. n. 23. for albeit he did abstaine this daie yet might hee plaie the next daie or if not the next daie yet some one daie or other so longe as hee had anie daies to liue t) Simo de Praetis vbi supr Paul de Castr in d. L. Mutianae and so in the meane time that is to saie all his life longe hee shoulde not reape anie commoditie by the testament if the full performaunce of the condition were first exacted Wherefore †leaste the testators will should be vneffectuall and leaste the executor or legatarie should reape no benefit therby if the full performaunce of the condition should bee expected ere the bequest coulde bee obtained one Mutius Sceuola did deuise this remedie that hee who is made executor or to whom anie legacie is bequeathed vpon a condition negatiue which coulde not bee fullie performed duringe his life shoulde enter into bonde to performe the condition that is to saie neuer to doo that which is prohibited or else to make a full restitution and by that meanes obtaine the executorshippe or legacie v) d. L. Mutianae cum gloss ibid. Simo de Praetis vbi supr Zas in L. dedâ— tibi de cond caus dot ff n. 7. 9. which bonde or caution is of Mutius the author thereof called Mutiana cautio x) Gloss in d. L. Mutianae and after a sorte hath the effecte of the full accomplishment of the condition y) â—ar Castr in d. L. Mutianae Yea in some cases †the legacie which is giuen vnder a condition negatiue consisting in not dooing maie be obtained without anie such bond albeit the same condition maie be infringed duringe the life of the legatarie namely in a legacie of libertie or free-dome from bondage z) L. libertatem L. libertas §. 1. de manumiss testa ff in a legacie ad pias causas a) Tiraquel de priuileg piae causae c. 48. The reason of the difference is because in these fauorable legacies the testator is presumed to haue meante onelie of the firste acte when the legatarie had oportunitie of doinge the thinge prohibited b) Tiraquel vbi supra So that if at that season or firste oportunitie the legatarie doo not infringe the condition by dooing contrarie to the disposition of the testator it is not hurtefull though after that first oportunitie past the legatarie goe against the condition c) Gloss in L. Titio §. fundus ff de cond demon Tiraquel d. c. 48. vnlesse the meaning of the testator doo appeare to bee contrarie viz. that the condition should be extended to euery act during the life of the legatarie d) L. vlt. de manumiss testa ff Tiraquel vbi supra But †if the negatiue condition bee suche as maie be performed during his life on whom it is imposed this aforesaide bonde or caution hath no place e) L. cum tale §. 1. ff de cond demon L. pater §. socrus eod and consequentlie the executorship or legacie disposed vnder such condition so long as the same dependeth not fullie performed can not be obtained f) L. cuÌ„ tale §. 1. gloss in d. L. Mutianae For example the testator maketh thee his executor or giueth thee a C. pound if thou neuer plaie at dice or cardes with A.B. or if thou do not at any time giue away thy lands to A.B. this coÌ„dition howsoeuer it be negatiue also coÌ„sisteth in not giuing or not doing Yet it may be fullie perfectly coÌ„plete and performed in thy life time For A. B. with whoÌ„ thou art forbidden to play or to whoÌ„ thou art forbiddeÌ„ to giue thy lands may die before thee then thou canst not play with him nor giue him thy lands when he is dead and so it is euident that this condition may be fullie performed accomplished in thy life time for a †negatiue condition is then said to bee fullie accomplished when it is brought to an impossibilitie g) Gloss DD. in d. L. Mutianae ff de cond demon and therefore in this case thou canst not be admitted executor nor obtaine the legacie vntill the condition bee brought into that state that it can not be infringed h) DD. in d. L. Mutianae d. L. cum tale §. 1. Simo de Praetis de inter vlt. vol. lib. 5. interp 2. dub 1. n. 23. Great †ods therefore there is betwixte those negatiue conditions which can not be performed in the life time of that persoÌ„ on whom they are imposed those negatiue coÌ„ditions which maie be performed during his life For there the executor or legatarie maie obtaine the executorship or legacie by putting in bondes but here he can not vnlesse it be †such a case as the euent thereof dooth bring greefe and sorrow to the partie on whom the condition is imposed for in such cases where the condition can not be infringed or become deficient without sorrowe or heauines it is lawfull for the executor or legatarie to enter into bondes for making restitution if the condition be not performed and so to be admitted to the executorship and to obtaine
vlt. vol. lib. 11. tit 6. n. 9 Wherefore if the testator make thee his executor or giue thee an hundred pounde if he die without issue after which will made he dieth leauing his wife with child In this case he is reputed to die without issue and so thou art to be admitted to the executorship maist recouer thy legacie b) Mantic. d. tit 6. n. 9. post Bald. in d. L. qui. in vtero el. 2. vnlesse it be more beneficiall to the childe that his father shoulde haue beene reputed to haue died without issue for then thou art excluded c) L. iubemus §. pen. C. ad Trebel ibi Paul de Castr When †the childe dieth so soone as it is borne we must consider whether it were borne in due time or not if it were borne in due time so that by possibilitie of nature it might haue liued longer as in the vii ix or x. moneth d) L. septimo mense de stat hom L. Gallus in princ de lib. posthu L. intestat §. vlt. de suis legit ff the father is iudged to haue issue especially †if the childe were once heard to crie e) Mantic. de coniect. vlt. vol. lib. 11. tit 6. n. 10. Mascard Tract de probac. verb. Natus concl 1088. n. 9. 10. per L. quod certatum C. de posthu haered instituend Sichard in d. L. n. 4. for then also by the lawes of this realme that man whose wife was seased in fee simple or in fee taile generall or as heire in fee taile speciall shal be said to haue had issue and by reason thereof after the decease of his wife shall holde the same land during his life and shall be called tenant by the curtesie of England for that it is thought that the same law is not vsed in any other Countrey sauing onely in England f) Litleton tit curtesie d'engleterr But †if the childe which he had by his wife were not heard to crie it is thought that he cannot be tenaÌ„t by the curtesie g) Bract. de leg consuet Angl. lib. 5. tit de excep c. 30. n. 7. 8. Which opinion though auncient hath beene strongly encountered of late and shrewdly shaken by men of deepe iudgement and reuerent aucthoritie *) Dyer fol. 25. n. 159. post Fitzh and so the same not being free from contradiction cannot bee vtterly voide of doubt and therefore as it becommeth me I doo verie willingly referre the determination thereof to the lerned and expert in the studie and practise of the lawes temporall of this land Neuerthelesse to other purposes and testamentarie effectes determinable in the ecclesiasticall courts I suppose he shall not bee reputed to haue died without issue although his childe did neuer crie so that it did sensible breath or moue h) L. quod dicitur ff de lib. posthu L. 2. 3. C. de posthu Felin in c sicut de homicid exâ—r Mascard Tract de probac. verb. natus conclus 1088. sub fineÌ„ for what if the childe were borne dumbe i) d. L. quod dicitur d. L. 2. 3. DD. ibid. Therefore I say by the ciuill and ecclesiasticall lawes concerning testamentarie effectes the father shall not bee accounted to haue died without issue if the childe did but breath and though it did not nor coulde not crie but died in the handes of the midwife k) d. L. 3. C. de posthu for crying is not an onely proofe of life l) L. quod certatum C. de posthu ibi Sichar n. 4. Mascard de ê“bac conclus 1088 n. 10. since it may be prooued by other meanes as by motioÌ„ breathing and such like m) L. si magister C. de Instit sub Mascard d. concl 1088. sub fineÌ„ Sichard in d. L. quod certatum In deede †if the childe be borne deade n) L. qui mortui ff de verb. signif or being halfe borne aliue yet dieth before it be wholy borne o) Alciat in d. L. qui mortui Cui adde Tiraquel in rep L. si vnquam C. de reuoc donac verb. susceperit n. 132. vbi etiam disputat an talis baptizari possit cuius tantum caput in partu apparet hee shall not bee reputed to haue issue p) d. L. 3. in sin d. L. qui mortui DD. in LL. Likewise in the other case that is to say when the child is not brought forth in due time as perhappes before the seuenth moneth or in the eight moneth so that it is impossible for the same to liue the parents for and concerning testamentarie effectes shal not be accompted thereby to haue had issue howsoeuer the childe for a while after the birth did sensiblie breathe and moue q) L. 2. C. de posthu Socin sen cons 275. n. 20. vol. 2. Mantic. de coniect vlt. vol. lib. 11. tit 6. n. 10. Grass Thesaur com op §. fideicommissum q. 33. in fin If †the testator make thee his executor or do bequeath vnto thee any legacie conditionally if he shall haue no issue and afterwards his wife doe bring foorth a monster or misshapen creature hauing peraduenture a heade like vnto a dogges heade or to the head of an asse or of a Rauen or Ducke or of some other beast or birde such monstrous creature though it should liue as commonly none doo yet is it not accounted amongst the testators children r) L. non sunt ff de stat hom Olden in eand L. Sichard in d. L. 3. C. de posthu for the lawe doth not presume that creature to haue the soule of a man which hath a forme and shape so straunge and different from the shape of a man s) Bald. in d L. noÌ„ sunt Sichard in d L. 3. n. 5. But if the creature brought forth do not varie in shape from a man or woman but haue somewhat more then God by the ordinarie course of nature alloweth as hauing sixe fingers on either hand t) DD. in d. L. 3. C. de posthu in d. L. non sunt in L. ostentum in L. quaeret ff de verb. sig Idem quoque iuris est si quis habeat tres testes Alciat in d L. quaeret n. 9. or on the contrarie wanting some of the ordinarie members as hauing but one hande or one foote v) Bald. Aug. in L. quod dicitur ff de lib. posthu such creature is not excluded but is to be accounted for the testators childe What if there be duplication of notable members as to haue foure armes or two heades or disorder in the principall members as the face standing backwardes or in the breast In this case I suppose much to bee attributed to the discretion of the Iudge x) Sichard in d. L. 3. C. de postu n. 5. verb. cum autem And albeit the writers seeme rather to encline to this opinion
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
is or shall be due and not paide at the time of his death shall and maie haue an action of debt for all such arrerages against the tenant or tenants that ought to haue paide the saide rent or fee ferme so being behind in the life time of their testator or against the executors and administrators of the said tenants And also furthermore it shall be lawfull to euerie such executor or administrator of any such person or persons to whom such rent or fee ferme is or shall be due and not paide at the time of his death as is aforesaid to distraine for the arrerages of all such rentes and fee fermes vpon the landes tenements or other hereditaments which were charged with the paiment of such rents or fee fermes and chargeable to the distresse of the saide testator so long as the saide landes tenements or hereditaments continue remaine and be in the seasin or possession of the said tenant in demaine who ought immediately to haue paide the saide rent or fee ferme so being behinde to the saide testator in his life time or in the seasin or possession of any other person or persons claiming the said lands tenements and hereditaments onely by and from the said tenant by purchase gift or discent in such like maner forme as their said testator might or ought to haue done in his life time And the saide executors and administrators shall for the same distresse lawfully make auowrie vpon their matter aforesaid Prouided alwaies that this act nor any thing therein conteined shall not extend to any such mannour lordship or dominion in Wales or in the marches of the same whereof the inhabitants haue vsed time without minde of man to pay vnto euerie Lord or owner of such lordship mannor or dominion at his or their first entrie into the same any summe or summes of money for the redemption and discharge of all duties forfaitures and penalties wherewith the same inhabitantes were chargeable vnto any of the saide lordes auncestors or predecessors before his said entrie And further be it c. that if any man which now hath or hereafter shall haue in the right of his wife any estate of fee simple or fee taile or fee ferme and the same rents or fee fermes now be or hereafter shall be due behinde and vnpaide in the wiues life then the said husbande after the death of his saide wife his executors and administrators shall haue an action of debt for the said arrerages against the tenant of the demaine that ought to haue paid the same his executors or administrators and also the saide husbande after the death of his saide wife may distraine for the saide arrerages in like maner and forme as he might haue done if his said wife had beene liuing and make auowrie vpon his matter as is aforesaid And likewise it is c. that if any person or persons which now hath or heereafter shall haue any rentes or fee fermes for tearme of life or liues of any other person or persons and the saide rent or fee ferme nowe or hereafter shall be due behinde and vnpaide in the life of such person or persons for whose life or liues the state of the saide rent or fee ferme did depende and continue And if the saide persons doo die then he vnto whome the saide rent or fee ferme was due in forme aforesaide his executors or administrators shall and may haue an action of debt against the tenant in demain that ought to haue paide the same when it was first due his executors and administrators also distraine for the same arrerages vpon such lands and tenements out of the which the saide rentes or fee fermes were issuing and paiable in such like maner and forme as he ought or might haue done if such person or persons by whose death the aforesaid estates in the said rents and fee fermes was determined and expired had been in full life and not deade and the auowrie for the taking of the same distresse to bee made in maner and forme aforesaid Secondly †concerning the testator it shall be behouefull for thee that art desirous to bee resolued whether it were better to accept or refuse the executorship to inquire learne whether the same testator were executor or administrator to anie other person If he were executor then by the statutes of this realme v) Stat. 4. Ed. 3. an 25. c. 5. Idem iure ciuili in haerede haeredis L. 2. 3. de petic haered ff Contrarium in haerede executoris tà m iure ciuili quà m canonico Bar. alij in L. à filio ff de alimen leg gloss in c. fin de testa 6. verb. mortuo thou †being executor of an executor shalt haue actions of debts accountes and of goodes caried away of the first testator and execution of recognizances made in court of recorde to the first testator in the same maner as the first testator shoulde haue if hee were in life aswel of actions of the time past as of the time to come in all cases where iudgement is not as yet giuen betwixt such executors but the iudgement giuen to the contrarie in times past ought to stand in their force And on the contrarie the executor of the executor shal answere to others to whom the first testator was indebted as much as he shall recouer of the goods of the first testator eueÌ„ as the first executor should doo if he were in full life But the goods which did belong to the first testator shall not bee put in execution for the debt of the second testator which goods the executor of the executor shall haue by relation to the first testator as immediately executor vnto him and not by relation to the second testator executor to the first testator x) Plowd in casu inter Bransby Grantham Atque ita soluitur nodus de quo Bar. alij in L. veluti ff de petic haered vtrum videlicet haeres haeredis succe dat priori testatori ex testameÌ„to vel ab intestato nobis enim intelligitur succedere ex testamento vtcunqueâ—on fuit in primo testameÌ„to nominatus id quod disputandi rationem praebuit and so the propertie which the second testator had by the saide relation is taken away and is in such case as if the second testator had neuer beene executor y) Plowd vbi supr Howbeit this is to bee vnderstoode with this limitation viz. if there bee no executor of the first testator suruiuing For †if the testator did make diuerse executors whereof some be yet liuing that executor of the first testator suruiuing and the executor of his coexecutor cannot be ioined both together in one action z) Brook Abridg. tit execut n. 99. Contrarium in haeredibus constituit ius ciuile quo si aliquis ex haeredibus decesserit pluribus relictis haeredibus hi omnes accipere debent illampartem quae ad
testmÌ„ q 31. Ego verò adhaereo Alex. Ias Decio Sichardo alijs in ead L. hac consultissima Tiraquel qui putarunt hanc solennitatem non esse necessariam in huiusmodi testamento sed sufficere probationem iuris gentium hanc opinionem recepit generalis regni nostri consuetudo But †he cannot make his testament in writing vnlesse the same be reade before the witnesses in their presence and acknowledged by the testator for his last will And therefore if a writing were deliuered to the testator and he acknowledged the same for his will this were not sufficieÌ„t for it may be that if he shold heare the same reade hee would not acknowledge the same for his will (b) DD. in d. L. hac consultissima C. qui testa fac poss Of Traitours 1 Traitours loose both their liues landes and goods and consequentlie are intestable 2 Traitours are intestable not onely from the time of their conuiction but from the time of the crime committed 3 A traitour pardoned and restored may make his testament §. xij OF those who are prohibited to make their testaments as malefactors who now are to make their appearance and to shew theÌ„selues in the course of this treatise traitours because they are most pernicious to the common wealth are most worthie the first place in punishments Vnderstand †therefore that whosoeuer is lawfully conuicted of high treason by verditte confessioÌ„ outlawrie or presentment besides the losse of his life shall forfeite to the prince all his goods and cattelles and all such landes tenements and hereditaments as he shal haue in his owne right vse or possession of any estate or inheritance at the time of such treason committed or at any time after a) Stat. Ed. 6. an 5. c. 11. and so consequentlie is intestable b) L. quisquis §. j. C. ad L. Iul. maiest L. si quis de iniust test L. nemo ff de leg 1. Vasq de succoss progress lib. 1. §. j. n. 165. qui multis ampli hanc concl ornat in so much †that traitours are not onely depriued of making any testament or other kinde of last will from the time of their conuiction but also the testament before made dooth by reason of the same conuiction become voide both in respect of goodes and also in respect of lands tenements and hereditaments c) Stat. Ed. 6. an 5. c. 11. DD. in d. L. nemo de leg 1. ff Vasq vbi sup Neuerthelesse if †any person being attainted of treason obtaine the princes pardon and be thereby restored to his former estate then may he make his testameÌ„t as if he had not been conuicted d) L. si quis § quatenus ff de iniust rupt irrit testa or if he made any before his conuiction and condemnation the same by reason of such pardon recouereth his former force and effect as hereafter is more fully declared e) Infr. 7. part §. xvij Of Felons 1 Felons loose life and goods and so be intestable 2 Who shal haue felons landes 3 Whether hee that is onely indited of felonie maie make his testament 4 Whether he that standeth mute may make his testament of his landes 5 Whether a man after he is apprehended for felonie may make his testament 6 Felons goods not to be seased before attainder 7 The testament of a Felon conuicted is void though he be neuer executed §. xiij IF any person †be condemned of felonie he ought to suffer death and †the Prince shall haue all his goods where so euer they bee found a) Stat. Eliz. an 5. c. 14. Termes of law verb. robberie and if he †haue any free holde it shall forthwith be seased into the Princes hands and the Prince shall haue the profite thereof by the space of a yeere and a day and also waste b) Praerog Reg. c. 16. Eliz. an 5. c. 14. and after the Prince haue had it the yeere and the day and waste the land shall be restored to the cheefe lord of the fee except in certaine places as in the countie of Glocester where after a yeere and a day the lands and tenements of felons shal reuert to the next heire to whom it ought to haue descended if the felonie had not beene committed c) Praerog reg c. 16. Or in Kent in Gauelkind whereas it dooth descend to al the heires males equally to be deuided or to the daughters where there be no sons to be deuided amongst theÌ„ for there it is said the father to the boughe and the son to the ploughe d) Eod. c. 16. Felons therfore lawfully conuicted can not make any testaments or other dispositions of anie goods or landes whereof as wee see the lawe hath disposed already e) Duplici ratione daÌ„natus ad mortem fit intestabilis nimirum bonorum publicatione damnatione ad mortem Damnatus autem ad mortem naturalem efficitur seruus poenae quod communi opinione nititur aduersus eos qui existimarunt ingenuum hodie non effici seruum poenae huiusmodi damnatione sed procedit prior opinio siuè quis damnatus sit secundum ius commune siuè etiam secundum statutum alicuius loci Iul. Clar. §. testmÌ„ q. 21. Couar in Rub. de testa extr 3. part n. 27. Michael Grass Thesaur com op §. testmÌ„ q. 26. But †if any man be indited onely of felony and die before he be conuicted or attainted he may make his testament of his goods and also of his lands f) Quia non condemnatus non reperitur prohibitus vide stat R. 3. an 1. c. 3. or if †he be indited at the Princes suite and so beeing arraigned vpon that inditement will not answer but standeth mute or dumbe whereupon he is to receiue paine as it is tearmed Forte Dure and bee pressed to death g) Do. Stu. lib. 2. c. 41. In this case his goods onely be confiscate but not his lands h) ibidem and therefore in this case I suppose he may make his testament of his landes i) Quia viz. non ê“hibetur qÌ„ non condeÌ„natur If a felon †bee indited and afterwards attainted by verdit or confession the time of the fact committed comprised in the inditement is to be regarded in respect of his lands but in respecte of his goodes in the time of his iudgement k) Perk. tit grants fol. 6 And therefore if before iudgement he doe sell giue or otherwise alienate his goodes such saile gift or alienation is good l) Perkins vbi supr coÌ„cordatius ciuile L. post contractum ff de donac cum distinctione tamen vt per Bar. in d. L. Grass §. testmÌ„ q. 26. Neither †may the Sherife or other person take or sease the goods of any person arrested and imprisoned before the same person be conuicted or attainted of felonie according to the law or that the goods bee otherwise lawfullie forfeited
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
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
pe tut L. matris C. eod in fin quam op longaeuus approbauit vsus but if they doo not electanie other curator after their seuerall ages then hee that is assigned in the will is to bee confirmed curator to either of the said children albeit hee were aboue 14. yeeres and she aboue 12. when the wil was made c) L. tutelae C. de testa tut §. dantur Instit de cura A tutor maie also be assigned to a childe that is not borne d) §. cum autem Instit de tut likewise to an ideote or him that is lunatike e) §. furiosi Instit de cura licet huiusmodi personae maiores sint 25. annis erunt sub curatione d. §. furiosi an haec authoritas fit penes testatorem vel ordinarium an ad regem spectet iure praerogat Quaere vt inf in d. §. But all this which is here aforesaid is to bee restrained so that it be not to the preiudice of him that is a Gardian or hath the wardship of anie infant or minor f) Habenti tutorem tutor non est dandus §. interdum Inst de cura or of anie idiote by reason of anie landes tenementes or hereditaments belonging to such infant or idiote g) Stat. praerogatiuae regis c. 9. Fitzh Breâ—e de idiota inquirendo For by the common lawes of this realme of England the lorde of whom the infant dooth hold his landes so soone as the father dieth hath the wardship and keeping of the heire and thereby maie sease vpon the bodie of the warde and his landes h) Tract de repub Ang. lib. 3. c. 5. per stat de praerog regis an 17. Ed. 2. c. 1. 6. whereof also he maie take the profites without accompt so that he nourish and bring vp the warde i) d. tract de repub An. And not that onelie but also offering to his warde conuenable marriage without disparagement before 21. yeeres if it be a man or 14. if it be a woman if the ward refuse to take that mariage he or she must paie the value of the mariage k) Stat. West c. 22. which is commonlie rated accordinglie to the profites of his lands which is a thing vtterlie condemned of some greatlie lamented of manie both graue and godlie because of the insatiable couetousnesse of diuers in these daies l) Vide d. tract de repub Angl. lib. 3. c. 5. Termes of law verb. gardein for that therby it commeth to passe manie times that a free man and a gentleman whiles he is an infant of slender discretion and lesse experience destitute of his beste friende that is to saie his naturall father and consequentlie subiect to the subtilties and importunities of his craftie and couetous Gailor is bought and solde like a beast to such as seeke to make most aduantage of him and in the ende besides manie moe inconueniaunces matched to my maisters daughter sister cosin or some other female to whom for her vertues and gentle conditions if thine enimie shoulde be preferred in mariage thou couldest wishe him no greater tormeÌ„t if it were lawful forthee to wishe him anie torment hell excepted To these perils are these infants subiect which holde landes of other by knightes seruice called in french Garde noble m) d. tract eod c. 5. for there is an other kind of seruice called Gard Returier alias Gard in socage or tenure by the ploughe n) Eodem loco This wardship falleth to him that is next of kin and can not inherite the lande of the warde o) Stat. Marleb c. 17. an 52. H. 3. as the vnckle on the mothers side if the land descend by the father or the vnckle on the fathers side if the land descend by the mother p) Brook tit gardeins prochein amye n. 11 12. 13. Termes of law verb. prochein amye This Gardyan otherwise called prochein amie is accomptable for the profites and reuenues of the lande to the warde as the tutor for the goods and chattelles to the pupill when he is of full age q) d. stat Marleb c. 17. d. tract de repub Angl. lib. 3. c. 5. Concerning Idiottes such is the praerogatiue of the princes of this lande that they shall haue the custodie of all the landes of naturall fooles and maie take the profite thereof without waste or destruction of whose fee so euer the same be holden findinge to them necessaries r) Stat. Ed. 2. de praerog reg c. 9. And after the death of such Idiottes the lande must be restored to the right heires s) Eod. stat But in the meane time that is to saie during the nonage of the warde or during the life of the Idiote the tuition of the bodie of the warde or Idiote or of his landes can not bee deuised by testament to anie other person contrarie to the course of common lawe in preiudice of him to whom the wardship dooth belong t) Quia tutorem habeÌ„ti tutor non datur sauing the testator maie committe the custodie of suche goods and chattelles as he dooth bequeath to the said infant or ideot to whom hee will and during so long time as he will v) Siquidem vnusquisque potest rebus suis quam velit legem imponere Mantic. lib. 7. tit 1. nu 38. testatoris voluntas habetur pro lege L. seruus ff de manumiss licet alias videatur per Fitzherb Nat. Bre. de idiota inquirendo quòd bonaquae idiotae obueniunt suo gardiano accrescunt Quaere tamenper Stamford suê‘ d. praerog reg c. Idiot Of the manner of appointing Tutors 1 A tutor maie be appointed simplie or conditionally to a daie or from a daie 2 The condition depending what is to be doone in the meane time 3 Lawfull to appointe one or manie tutors 4 Whether where one tutor is appointed an other maie be receiued 5 Whether diuers being assigned one tutor alone may be admitted 6 By what wordes a tutor maie be appointed 7 What if the testator saie I committe my children to thy power or to thy handes 8 What if he saie I committe my children vnto the quicke and deade 9 What if he saie I desire thee to take care of my son 10 The testator maie vse anie language in the assignation of a tutor §. xij BY the saide generall custome it is obserued within the prouince of Yorke a) De qua per plurima acta testa in d. sacro existen that a tutor maie bee assigned either simplie or conditionallie b) §. ad certum Instit qui testa tutor dari poss and vntil a certaine time or from a certaine time c) Eod. §. ad certum L. tutor §. tutorem de testaria tut ff But no tutor maie intermeddle as tutor vntill he be confirmed by the ordinarie albeit he be assigned tutor simplie d) L. legitimus ibi Bar. ff de legit tutel much
Diuers questions about the probation of testaments 2 Testaments are to be prooued before the Bishop or Ordinarie 3 Certaine cases wherein testaments are to be proued before others then before the Biâ—hop 4 Of the prerogatiue of either Archâ—ishop 5 What is ment by Notable goods §. xi COncerning †the probation and approbation of testaments these things are chiefly to bee enquired before whome the testament is prooued by whom when howe and what fees hee due in that behalfe The person †before whom the testament is to be proued is the Bishop of the Dioces where the testator dwelled a) Legatin libertatem de execut testam c. iteÌ„ quia c. statutum de testa lib. 3. prouincial const Cant. c. statuimê° lib. prouincial constit Ebor. Lindw in d. c. statutum Doct. Stu. lib. 2. c. 28. Perkins tit testament fol. 94. Trac de repub Angl. lib. 3. c. 7. stat H. 8. an 21. c. 5. or his officer b) Perkins vbi supra Fitzh Abridg. tit testament n. 3. Brook eod tit n. 12. c. fin de fide instr extr Sichard in L. 2. n. 3. C. de testa to whom by auncient custome obserued this many hundred yeares together with the roiall consent of the kings and princes of this land the probation and approbation of testaments haue apperteined c) Lindw in d. c. statutuÌ„ verb. ecclesiasticarum libertatum Qui in d. c. Item quia verb. insinuationem vbi existimat testamentorum insinuationem seu publicationem iure ciuili non pertinere ad episcopos sed iure tantùm authenticorum quo ius codicis corrigitur quod ius autheÌ„ticum sancitum fuit ab Imperatore Iustiniano vltra mille annos retro numerandos non solùm executio sed etiam ipsa insinuatio publicatio coram episcopis ordinariam iurisdictionem exerceÌ„tibus fieri potest vt firmat Sichard in L. 2. C. de testa n. 3. Sauinge †in certaine Signories or Lordships where the probation and approbation of testamentes of the tenaunts there dwelling dooth by prescription appertaine to the principall Lord d) Fitzh tit testament n. 2. Doct. Stud. lib. 2. c. 28. and sauing in certaine peculiar iurisdictions where by prescription or composition or other speciall title the probation and approbation of the testaments of such as dwell and die within those places dooth appertaine to the iudge of the peculiar e) Io. de Athon in legatin libertatem de exec testa verb. Ordinario And sauing where no goodes are bequeathed in the testament but onely landes tenements and hereditaments or other lay fee are deuised and that in such places where neither insinuatioÌ„ nor inrotulation is necessarie f) Supr part 3. §. 3. And sauing †where the partie deceased at the time of his death had notable goods extant in diuerse diocesses or iurisdictions for the probation approbation and insinuation or publication of the last willes and testaments of such persons doth appertaine to the Archbishop or metropolitan within whose prouince such notable goods be dispersed in diuerse diocesses or other inferior iurisdictions g) Lind. in d. c. statutuÌ„ verb. ad quos pertinet Perkins tit testament fol. 94. Fitzh Abridg. tit admÌ„str n. 7. Brook eod tit n. 48. whether it be within the prouince of Canterburie (h) Lindw in d. c. statutum verb. laicalis feodi stat H. 8. an 23. c. 9. pleniùs per Instrum Actorum libros Curiae praerogatiuae Archiepisc Cant. or within the prouince of Yorke (i) Perkins tit testament fo 94. pag. 2. stat H. 8. an 23. c. 9. euideÌ„tius per Instrum Actorum libros in archiuis Archiepiscopi Ebor. fideliter per plurimorum seculorum curricula conseruata What †is ment by Notable goods in this place or when they are so to be tearmed diuers authors haue bene of diuers opinions Some haue bene of this opinion that if the testator died possessed of goods or cattels to the value of fortie shillings in two seueral diocesses then he ought to be deemed to haue notable goodes k) Perkins tit testament fol. 94. Others haue beene of this minde that the testator is to be deemed to haue notable goodes though at the time of his death he had but one penie in another Diocesse l) Fitzh tit admÌ„str n. 7. Others do not only varie from the former opinions but are also at variance with them selues accounting those for notable goodes sometimes when they extend cleerely to a hundred shillinges sterling some times when they extend to ten pounde eleuen shillings vj. pence sometimes when they extend to xxiij pound three shillings farthing not vnder m) Lindw in d. c. statutum verb. laicis Finally others are of this iudgement that he is said to haue notable goods which hath goods to the value of ten pounde of currant money of England dispersed in diuers diocesses or iurisdictions and this opinion seemeth to me to be most commonly receiued n) Plowd in casu inter Greisb Fox fol. 281. By vvhome the testament is to be proued 1 The testament is to be proued by the executor 2 Any person hauing the testament may be compelled to exhibite the same §. xij THe †person by whome the testament is to be prooued is the executor named in the testament a) Perkins tit testament fol. 93. whom the Ordinarie or other person hauing aucthoritie for the probate of the testaments may conuent to the intent to proue the testament and to take vpon him the execution thereof or else to refuse the same b) Stat. H. 8. an 21. c. 5. This may the Ordinarie or other competent iudge doo †not onely ex officio c) L. 1. ff quemadmoduÌ„ testa app ibi Bar. n 1. but at the instaÌ„ce of any partie hauing interest d) Bald. Angel in d. L. 1. Opinor etiam quòd ad eius instantiam cui nihil est relictuÌ„ exhibendum testmÌ„ scilicet vt inde certior fiat Nunquid legatum aliquod sibi relictum sit a defuncto gloss Bald. in L. 2. ff quemadmodum testa app in princ which interest is proued by the othe of the partie e) Bar. Bald. in d. L. 1. If the executor haue not the testament in his custodie but some other person then may such person be compelled to exhibit the same f) L. 1. in prin §. hoc interdict ff de Tab. exhibend And it is sufficient to proue that once he had it for he is presumed still to haue the same vnlesse he affirme vpon his othe that the same is not in his possession g) Alex. in L. 2. C. de testa n. 3. verb. tamen When the testament is to be exhibited and prooued 1 The testament is not to bee proued whiles the testator liueth but after his death 2 If it be vnknowen whether the testator be dead or aliue whether may his testament
incestuous 57 Meaning or will of the testator chiefe gouernour of the testament 9 The Meaning of the testator diligently to be sought and faithfully to be kept 9 Meaning to be preferred before words 9 Meaning not wordes to be regarded 116 The meaning of the testator to be preferred before the proprietie of words in the deuise of lands proued by diuers examples 118 For the Means it skilleth not where the end is regarded 129 To medle as executor what it is 236 Mention of condition doth not alwaies make the disposition conditionall 116 Mention to be made in the later testament of the former amongest children 29 Militarie testaments vnsolemne yet properly testaments 20 In Minoritie whether a testament may be made with the authoritie of the tutor 35 In Minority whether a souldier may make his testament 35 Mind and memory presumed to be perfect 37 The mind of the testator giueth life to the testament 261 Mixt conditions whether they be reputed for accomplished when it dooth not stand by the partie wherefore the same is not performed 133 Modus conditio how they differ 137 A Monster being born whether shal the parēts be iudged to haue died without issue 168 Mony due for land whether the same ought to be put into the inuentarie 218 Of Mortuaries 230 Mortuaries to be taken but in certaine cases 230 Mortuaries not due where the moueable goods do not extend to ten marks 230 Mortuaries not due but in places where they haue bene vsed to be paid 231 Mothers whether they may appoint tutors to their children 97 Multitude or scarcitie of solemnities doth not make our testaments to disagree with the former definitiō of a testament 20 He that standeth Mute at the barre may make his testament of his lands 54 Mutiana Cautio why it is so tearmed 138 N Necessarie conditions whether they make the disposition conditionall 117 Necessarie conditions which they be 121 Of Necessarie conditions there be two sorts 121 Necessarie conditions doo not suspend the effect of the disposition 124 Necessarie conditions being otherwise expressed then vnderstoode suspend the disposition 124 The necessitie of an inuentarie 217 A Negatiue condition is then saide to be accomplished when it cannot be infringed 139 Notes vnaccustomed do not hurt a testament ad pias causas 30 Notes or characters of a written testament 190 Notable goods 222 Nuncupatiue testament what it is 24. Nuncupatiue wherefore so called 24 Nuncupatiue testament of what efficacie 24 Nuncupatiue testaments when they be commonly made and why then 24 Nuncupatiue testament made diuers wayes 24 A Nuncupatiue testament whether it lose his force by cancellation 270 Number of witnesses needfull or sufficient for the proofe of a testament 185 The number of witnesses doth somtimes supply the defect 186 O Obiections against the definition of our testaments in England 19 Obscuritie what it is and howe it may be auoided 192 The office of a tutor dooth principally respect the person of the pupill 101 The office of an executor testamentarie wherein it doth principally consist 217 Office of the ordinarie in an account 235 One onely vsurarie act whether it make a manifest vsurer 56 One alone or mo together may be appointed executors 181 One of the executors may execute when the rest refuse 183 One executor alone whether hee may sue or be sued without his fellowes 183 One executor cannot sue another 183 One witnesse sometimes sufficient for the proofe of a testament 186 One executor whether he may sue another 215 One executor whether he may preiudice an other 215 One of diuers executors may sell the testators goods 216 One onely mortuarie due 231 One and the same thing being bequeathed first to one and afterwards to another whether it may be wholy taken away from the former 283 The Ordinarie whether he may appoint a tutor 97 The office of a tutor secondarilie doth respect the good administration of the pupils goods 101 The Ordinary whether he may limit a certaine time for the performance of the condition 159 The Ordinary may commit administration vntill the executorship take place or after the executorship is ended 171 Oath about the inuentarie 220 Oath of the executor prouing the wil. 225 An other person cannot make my testament 10 Old age alone doth depriue no man of the libertie of making a testament 42 An Old man childish cannot make his testament 42 An Old man which hath lost his memory cannot make a testament 42 An Outlawed person looseth his goods and the benefite of the lawe 59 An Outlawed person whether hee may make his testament 59 An Outlawed person doth somtimes forfeit his lands as well as his goods 59 An Outlawed person may make his testament of his lands not forfeited 59 An Outlawed person may assigne tutors testamentary to his children 59 An Outlawed person may make his testament when there is some errour in the writ 59 An Outlawed person whether he may bee executor 198 P Of Paying part of the testators debts receauing an acquittāce for the whole 230 Peculiar to a written testament 23 A Perfect definitiō profitable to many purposes 5 Euery Perfect wil is not a perfect testamēt 7 Euery Person may make a testament which is not prohibited 34 What Persons are prohibited to make a testament 34 Perticular executor may meddle with no more then is alotted vnto him and therefore no further charged but according to that portion 175 Perticular formes of testaments be so many as there be seuerall kindes of testaments 188 Perticular persons of an vnlawfull colledge may be executors 202 At the Point of death whether a testament may be then made 61 A Poore man whether he may be a witnesse 188 Poore if the testator leaue any thing to bee giuen to the poore which poore are to haue the same 251 By Possessing the thing bequeathed of his owne authoritie whether the legatary doo loose his legacy 288 Of Possible conditions there bee diuerse kindes 122 Possible cōditions whether they do alwaies suspend the effect of the disposition 127 Posteriority presumed for that testament which is among children 29 The Power of parents in assigning tutors to their children 96 The Power of Gardians 99 Precise obseruation of the condition in a testament ad pias causas not necessary 31 Of the Prerogatiue of either Archbishop 221 If the Prince giue goods to the executor of an outlawed person whether he be therby chargeable with the paiment of legacies as hauing assets 59 The Prince though he die before the testator his successors may obtaine the legacie 290 The Prince may frustrate the gifte or testament of the villaine at any time 44 Priuiledged testaments what they be 24 Priueledged wherefore so called 24 Of Priuiledged testaments diuers kinds 25 What Priuiledges Diuines and Lawiers enioy concerning their testaments 28 What Priuiledges Souldiers enioy in making their testaments 25 What Priuiledges belong to the testament amongst testators children 29 Priuiledge of proofe whether it be