Plowd in cas inter Greisb Fox and were in his possession at the time of his death e) Cagnol in L. in precibus C. de impub. alijs sub n. 278. and hath action against euerie debtor of his testator f) â—nstit de perpet temp action Terms of law verb. executor So shall euerie one to whom the testator was indebted haue action against the executor especially hauing an obligation or other specialtie so farre as the goods of the testator will extend g) L. fin sin de iure de lib. C. and so long as the executor hath assets in his hands h) Terms of Law verb. executor howbeit where anie debt is due to the testator this shall not charge the executor as assettes because it is a thing in action not in possession i) Brook Abridg. tit executor n. 112. which conclusion is very reasonable when as the executor hath vsed such diligence for the recouerie thereof that he cannot be iustly charged or woorthily blamed for not hauing the same in his owne hands k) c. sine câ—lpa de regiur 6. quod si per cum stâ—tit quo minus haâ—eat in eo casu est de iure ciuili et â—an ac si in manibus retineret L. iure ciuili ff de cond demon Peckius in c. cùm non stat de reg lib. 3. c. 6. 7. As †for landes tenements and hereditaments of the testator they shall descende to his heire and shall not come to the executor For by the lawes of this realme as †the heire hath not to deale with the goods and chattels of the deceased l) Doct. Stud. lib. 1. c. 7. c. 24 Idem lib. 2. c. 10. c. 12. termes of law verb. executor no more hath the executor to doo with his lands tenements and hereditaments m) Doct. Stud. vbi supra Tract de repub Angl. lib. 3. c. 6. 7. Albeit where lands be deuisable by wil wherof we haue spoken before n) Supr part 3. §. 1. cum sequentibus the †testator maie giue power and authoritie to his executor to sell the same landes either for the paiment of his debts or for some other purpose o) Perkins tit deuise fol 104. 105. and the sale made thereof by the said executor is good and lawfull p) Perkins eod loco insomuch that diuers persons being named executors by the testator though †part of the executors named in any such testameÌ„t of any such person making or declaring any such will of any landes tenemens or other hereditaments to be solde by his executors after the death of any such testator doo refuse to take vpon him or them the administration charge of the same testament and last wil wherein they be so named to be executors and the residue of the same executors doo accept and take vppon them the care and charge of the same testament and last will it is enacted by the statutes of this realme q) Stat. H. 8. an 21. c. 4. that then all bargaines and sales of such landes tenements and hereditaments so willed to bee solde by the executors of anie such testator as well before the making of that statute as after made or to be made by him or them onely of the same executors that so doth accept or hath accepted or takeÌ„ vpoÌ„ him or theÌ„ any such cure or administration of any such will and testament shall be as good and effectuall in lawe as if all the residue of the same executors named in the saide testament so refusing the administration of the same testament had ioined with him or them in making of the bargaine and sale of such landes tenements or other hereditaments so willed to be solde by the executors of any such testator which before that time had made or declared or that after should make or declare any will of any such landes tenements or other hereditaments after his decease to be solde by his executors as may appeare by the statute in that behalfe made Howbeit it is prouided that the said statute shal not extend to giue power and aucthoritie to anie executor or executors at anie time after to bargaine or to put to sale anie landes tenements and hereditaments by vertue and aucthoritie of anie will or testament made before the saide statute otherwise then they might doo by the course of the common lawe afore the making of the same Besides that supposing the case were such as the landes being deuisable the executors had power by testament to sell the same lande and to distribute the profits in pios vsus yet after the death of the testator the inheritaunce shall descende vnto the heire and shall remaine in him vntill the executor haue solde the same r) Perkins tit deuises fol. 104. 105. And if the executors themselues doo enter into the landes after which entrie some man offereth a summe of money or price of the same land and the executors refuse to take the money offered because the money offered is vnder the value of the lande and the executors intende to sell the same dearer and so keepe the lande in their owne handes by the space of one two or three yeares conuerting in the meane time the profites arising forth of the same land to their own proper vse In this case the heire of the testator deceased may enter to the landes and put out the executor s) Perkins vbi supra Brook Abridg. tit deuise n. 19. As †for rents due to the testator by the order of the common law of this realme t) Vide stat H. 8. an 32 c. 37. the executors or administrators of tenants in fee simple tenantes in fee taile and tenants for tearme of life of rent seruices rent charges rent secks and fee fermes haue no remedy to recouer such arrerages of the said rentes or fee fermes as were due vnto those testators in their liues nor yet the heires of any such testator nor any person hauing the reuersion of his estate after his decease may distraine or haue any lawfull action to leaue any such arrerages of rentes or fee fermes due vnto him in his life by reason wherof the tenantes of the demaine of such landes tenements or hereditaments out of the which such rents were due and paiable who of right ought to pay their rents fermes at such daies terms as they were due did many times keep holde and retaine such arrerages in their owne handes so that the executors and administrators of the persons to whom any such rents or fee ferms were due could not haue or come by the arrerages of the same towards the paiment of the debts and performance of the will of the said testator For remedie wherof it is enacted by the statutes of this realme as followeth viz. that the executors and administrators of euery such person or persons vnto whome anie such rents or fee fermes
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
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
non solum But it is not so with a villeine for the Lord hath no title to the goodes of his villeine before seasin nor any title to his landes before entrie nor anie title to any rent reuersion common or the aduowsement of a church belonging to the villeine but by clame n) Perkin tit Grant fol. 6. Brooke Abridg. tit villenage Doct. Stud. lib. 2. c. 43. And so the velleine in the meane time hath perfecte propertie therein o) Doct. Stud. d. c. 43. lib. 2. And therefore †a villeine is more like vnto him which in the ciuill lawe is called Ascriptitius Glebae p) Ascriptitius Glebae id est adscriptus praedio Spieg. Lexicon that is to say one that is ascribed or assigned to a ground or farme for the perpetuall tilling or manuring thereof q) Quemadmodum enim Ascriptitiê° verè ser uus non est sed serâ— li tantùm macula asâ—â—rsus Bald. in L. cuÌ„ precum C. de lib. causa sicut qui ascribitur glebae seu praedio perpetuò colendo nunquam inde recedere debet vel si aufugiat ad antiquos penates nempe vbi natus est redire coÌ„pellitur L. omnes de Agricul censit lib. 11. C. Eodem prorsus modo isti quos Villeins appellat vulgus Licet non sunt propriè serui perpetuae tamen praedij culturae astringuntur nunquam inde recessuri inuito vel ignoraÌ„te domino Quod si aufugiunt conceditur statim breue quod dicitur De natiuo habendo Fitzh Nat. Bre. then to a slaue If you will †vnderstand whether a villeine may make his testament or not we must †note that whatsoeuer villeines haue of their owne be it landes or goodes the lorde may by entrie or seasing take and enioye the same as his owne r) Brooke Abridg. tit villenage Perkins tit Graunts fol. 6. Litleton tit villenage Termes of law verb. Them onely he may not slay or maine his villeine s) Old tenurÌ„ tit villen And therefore †if the villeine make any deuise of landes or goodes the Lord may before the approbation of the will or apprehension of the goodes by the executor enter to those landes and sease those goodes or some parcell thereof in the name of the whole and by that meanes make voide the gifte or deuise of the villeine t) Doct. Stud. lib. 2. c. 43. The will is also voyd though the Lord doe not really sease any goods of his villeine in case he did claime the villeine in his life time and by wordes onely did sease his goodes for then the executor shall not haue them but the lord of the villeine v) Brooke tit villeine n. 50. But if †the will be prooued before the ordinarie and by him approoued and the executors by vertue of the same will or deuise enioie or possesse the same landes or goodes accordingly then I suppose the lord may not enter to such landes or sease those goodes no entrie seasing or claime being made before x) Brooke eodem titu num 73. Doct. Stud. lib. 2. c. 43. Adde quod Ascriptitius potest testmÌ„ facere Spec. de Instr edi §. compeÌ„diose Lindw in c. statutuÌ„ verb. AscriptitioruÌ„ de testa lib. 3. prouincial constit Cant. for if a villeine purchase landes and alieneth the same to an other before his lorde enter then the lord may not enter afterwardes but it shall be imputed to his owne follie that hee entred not when the lands was in the villeines hands y) Litleton tit villenage And so it is of other goodes which if the villeine sell or giue to an other before the Lorde doe sease them the sale or gift is good and the lord can not afterwardes haue the same z) Ibidem Neuerthelesse if the †prince haue anie villeine which purchaseth lands and alieneth the same before the prince doo enter yet maie the prince at any time after enter vnto the landes to whom so euer the same doe come a) Litleton vbi supr And likewise if the princes villeine sell or giue any goodes yet may the prince at any time after sease those goods in whose hands so euer they doo remaine b) Ibidem for the prince is not preiudized by any course of time And therefore I doe collect that if the princes villeine should by testament dispose either landes or goodes the prince notwithstanding the approbation of the same testament and execution thereof might enter to the lands and sease the goods so deuised or disposed in whose hands so euer the same were c) Arg. à contract ad vlt. vol. de quo Olden Topic. Legal loco à contract Note that †what I haue here spoken of villeines is not to be vnderstood of such persons as onely holde lands in villenage being themselues no bond-men but free for diuers persons holde by tenure in villenage and yet be no villeines themselues d) Brooke Littleton Old tenures tit villenage but of such as bothe hold by villenage and are villeines also For these are they whose testaments or last willes are voidable sauing as before where the will is prooued and the executor or legatary possessed of the thinges deuised And sauing where †the villeine is executor to an other person for being executor himselfe he may appoint an other executor who shall haue those goodes which the villeine had as executor and not the Lord of the villeine e) Brooke tit villenage n. 73. For if the †villeine himselfe were liuing the Lord could not take from him such goodes as hee hath as executor to an other man if he did his villeine might bring an action against him for the same and recouer both the goods and dammages f) Brooke d. tit villenage n. 68. the †reason is because that which the villeine hath as executor hee hath it not to his owne vse g) c. Statutum §. nullus de testa lib. 3. prouincial constituc Cant. infr part 6. §. j. but is to be imployed in the behalfe of the testator as to the paiment of his debtes and legacies and to other godlye vses as appeareth more at large in the office of an Executor h) Infr. 6. part §. j. §. iij. §. xvj §. xxj Of captiues and prisoners 1 A captiue during his captiuitie can not make a testament 2 If the captiue escape whether the testament made during his captiuitie be good 3 What if the testament were made before hee were captiue 4 What if the testator be taken captiue by some pirat Turke Insidle or christian when warre is not proclamed 5 Whether he may make a testament which is condemned to perpetuall prison 6 VVhat if the testator be imprisoned for dette §. viij HEe †that is taken captiue by the enemie during his captiuitie can not make a testament a) L. eius qui apud hostes ff de
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
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
lesse where he is assigned conditionallie or from a certaine time maie hee intermeddle as tutor vntill the condition be extant e) L. qui sub conditione ff de testa tutel or the time limited be expired f) d. L. qui sub conditione but the ordinarie maie in the meane time commit the tuition and hee that is so appointed by the ordinarie maie for that time administer g) Bar. alij in d. L. qui sub conditione Moreouer it is lawfull to appoint either one tutor alone or manie together h) L. si plures ff de testa tut Where one alone is appointed tutor by the testator the ordinarie ought not to ioine an other tutor i) §. interdum Instit de cura vnlesse he that is named tutor be lunatike k) L. non solùm §. vlt. ff de excus tut gloss in d. §. interdum Instit de curator or bee absent about the affaires of the cōmon wealth l) L. tutor §. si quis abfuturus ff de suspect tut for in these and other like cases an other tutor maie be ioined m) Gloss Minsing in d. §. interdum Instit de cur at leaste duringe the impediment Where diuers are appointed there one alone may administer n) L. 3. de administ tut ff which conclusion doth proceede with lesse difficultie when cotutors can not or wil not meddle o) L. legitimos §. in legitimis ff de legit tut L. 47. de administ tut or transferre their authoritie to him which dealeth p) Bald. in L. qui pupille C. de negotijs gest for they maie doo that and so also be his sureties q) L. Romanus ff de tutor vel curator dat ab his It skilleth not by what wordes the tutor bee appointed so that the testators meāing doo appeare for they are neuerthelesse to bee confirmed tutors r) L. 1. de confir tut ff ibi Bar. L. quoniam C. de testa Socin consil 83. vol. 1. Wherefore if the testator saie I commit my children to the power of A.B. or I leaue them in his hands it is in effect as if the testator had said I make A.B. tutor to my children s) Ias in L. manumissionis ff de Iustit iure Boer decis 124. vbi attestatur hanc opinionem tutiorem veriorem esse so it is if he saie I leaue them to his gouernement regiment administration c t) Molin in addic ad Decium in c. ex parte de app extr Socin consil 83. vol. 1. If the testator saie I commit my sonne to A. B. both quicke and dead with all his legacies by me giuen by these wordes it is presumed that the testator meant that A.B. should be tutor to his child if he liued and if he died then to haue those legacies v) Socin d. consil 83. If the testator saie I desire my wife to take care of my children during their minorities albeit those wordes doo not necessarilie infer or conclude a tuition of their owne nature but rather that she should chastice them when they deserued to be corrected x) Dec. in d. c. ex parte de app extr Boer decis 124 in princ for to haue tuition of children is a greater thinge and extendeth further then to haue a care of them onelie y) Dec. in d. c. ex parte Neuerthelesse for as much as the ruder sorte of people doe not know the difference of termes nor the naturall force of wordes z) Socin d. consil 83. vol. 1. Therefore if any be assigned tutor by these foresaid words he is to be confirmed a) L. 1. de confir tut ff ita limitatur §. quāquam in L. qui aliena ff de neg gest vt per Ias in L. manumissiones ff de Iustit iur The same also maie be saide where the testator dooth commit his childe to the custodie of an other For albeit it be a greater thinge to haue the tuition of a childe then to haue the bare custodie of a child committed vnto him b) Rom. Sing 164. Dec. in c. ex parte de app extr Yet in all thinges the will and meaninge of the testator c) d. L. 1. de confir tut DD. in eand L. molin in addic ad lect Decij in d. c. ex parte M. is to be obserued and preferred before the propertie of the wordes d) L. quoniam indignū C. de testam whereof perhaps he is ignorant which meaning is to be collected by that which went before or folleweth after in the will and by other circumstances which the discreete iudge ought to enquire e) Boer decis 124. Finallie it skilleth not in what language the tutor be assigned whether in English Latine Greeke or anie other tongue f) L. vlt. C. de testa tur Of the office and auctoritie of a Tutor 1 The office of a tutor dooth principallie respect the person of the pupill 2 The office of a tutor dooth secondarilie respecte the good administration of the pupilles goods 3 The tutor ought to make an inuentarie and is chargeable with an accompt 4 Whether a tutor ought to enter into bondes for the performaunce of his office 5 Of the authoritie of a tutor 6 Whether the tutor maie alienate the goodes of the pupill §. xiij THe office and authoritie of the Gardyan or him that hath the wardship of any infant by reason of anie lands tenements or hereditamēts whether the same be holdē by knights seruice or by soccage tenure is alreadie declared a) Supra ead part §. x n. 8. 9. wherefore in this place I shall onelie touch the office and authoritie of a tutor according to the custome obserued within the prouince of Yorke not greatlie differing from the disposition of the ciuill lawe This therfore is the office of a tutor Firste and principally to defend the person of his pupill b) Inde rutores quasi tuitotes id est defensores à tuendo defendendo appellantur sicut aeditui dicuntur qui aedes tuentur §. tutores Instit de tutel L. 1. ff eod that is to saie to prouide that hee bee honestlie and vertuouslie brought vp and to prouide for him meate drinke cloth lodging and other necessaries according to the childs estate or condition and abilitie c) Nec tantùm alimēta praestari debent pupillo sed etiam in studia impensae debent impédi pro facultate patrimonij dignitate natalium Wigand Happel tract de tutel tit 138. n. 44. fol. 350. Secondarilie the office of a tutor consisteth in the good and faithfull administring or disposing of the goodes and cattelles of the saide pupill d) §. datus Instit de excus tut Minsing ibidem that is to saie the tutor maie not commit anie thinge that maie bee hurtfull nor omit anie that maie be profitable to his pupill e) Latiùs de offic
the legacie in the meane time i) d. L. cum tale L. pater §. socrus ff de cond demon as for example the testator maketh his wife executrix or giueth her a hundred pouÌ„d if she depart not from her children This condition maie be extant in the life time of the mother for it maie happen the children to die the mother to ouerliue and then the condition must needes be extant for after their death she cannot infring the condition by departing from them that are not neuerthelesse because the death of the childe is a harde and heauie thing to the mother therfore the lawe is not so hard but that in this case the condition depending the mother is to bee admitted to the executorship and maie recouer the legacie vpon bondes to accomplishe the condition or else to make restitution k) d. L. cum tale gloss in d. L. Mutianae When †the condition dooth consist in not giuing then as before we are to enquire whether the condition be such as the same can not be accomplished during his life on whom it is imposed for if it bee suche a condition that which is disposed vnder such a condition maie be obtained by entring bonde as before l) d. L. Mutianae ff de condic demon for example the testator dooth make thee his executor or dooth bequeath vnto thee a hundred pounde if thou doo not giue awaie thy lands m) L. 4. §. idem Iulianê° ff de condic instit this condition can not bee fullie performed but by thy death because so longe as thou liuest thou maiest giue awaie thy landes and so infringe the condition n) DD. in d. §. idem Iulianus wherefore least the testators will shoulde be deluded or thy selfe defrauded thou maiest be admitted to the executorship or obteine the legacie in the mean time so that thou becom bounden as before to performe the condition or els to make full restitution o) d. L. Mutianae Simo de Praetis de interp vlt. vol. lib. 5. Interp. 2. dub 1. n. 23. When †the condition dooth consist in not chauncing then this bond or condition can not be admitted neither can the thing disposed vnder such condition be obtained before the condition be performed p) d. L. Mutianae ibi Bar. alij And therefore for example if the testator make thee his executor or giue thee a hundred pounde if thy ship doo not returne from Spaine in this case the euent of the condition is to be expected And if it so come to passe that thy ship dooth returne then is the condition deficient and so thou canst not be admitted to the executorshippe nor obtaine the legacie by vertue of the saide disposition q) Bar. Paul Castr in d. L. Mutianae L. vnic §. sin autem C. de cad tol But if the Shippe can not returne which thinge maie happen by ship-wracke or by some other accident and so all hope or possibilitie taken awaie then the condition is said to be accomplished or extant and so thou art to be admitted to the executorship or maiest recouer the legacie as if the dispositioÌ„ had been simple r) Idem Paul de Castr in d. L. Mutianae d. §. sin autem Nowe †that wee haue seene in what cases the aforesaide bonde hath place and in what case it hath no place it shall not be amisse in worde to shewe the manner and forme of the bonde and to whom it must be made and whether sureties be required The forme therof is this not to doo that thing which is contained in the condition or else to restore the thinges disposed together with all the meane fruites and profites therof s) L. cùm filius §. qui Mutianam ff de leg 2. the bonde is to bee made by the executor vnto the substitute t) Bald. in Auth. cui relictum C. de Indict viduitat n. 20. or him that is appointed executor in place of him that is bounde if the condition be not obserued v) Bald. in d. Auth. and if there be no such substitute then to the executor x) Idem Bald. ibid. and if there be no executor then to the ordinarie because he dooth as it were succeede where anie dieth intestate y) Stat. Ed. 3. an 18. c. 19 vel forte praestanda est huiusmodi cautio Mutiana administratoribus casu quo administratio sit concessa likewise the legatarie must enter bonde to him that is substituted vnto him if there be no substitute then to the collegatarie if there be none such then to the executor if there be no executor then to the ordinarie z) Bald. in d. Auth. cui relictum C. de Indict vid. there neede no suretie neither for anie thing immoueable nor for a thing mooueable vnlesse the party be not fit or sufficient a) d. Auth. cui relictum Whether it be sufficient that the condition was once accomplished though the same doo not continue 1 Manie cases wherein it is sufficient that the condition was once accomplished though it doo not so continue and contrariwise manie cases wherein it is not sufficient that the conditioÌ„ was once accomplished vnlesse it doo continue 2 The order to be obserued in this diuersitie of cases 3 If the condition be casuall then it is sufficient that the condition was once accomplished 4 Diuers examples of this conclusion 5 If the condition be arbitrarie then it is not sufficient that the condition was once accomplished 6 Diuers examples of this conclusion 7 If the condition be mixt then it is sufficient that the same was once accomplished 8 Example of this conclusion 9 What if the condition endure not by the faulte of the partie by whom it is to be accomplished 10 What if the partie be alreadie maried to whom anie thinge is bequeathed conditionallie If hee shall marrie 11 What if the executor or legatarie were once willing and afterwardes vnwilling whether shall the condition be reputed for accomplished 12 In this last Q. either hath diuers authors 13 The opinion of the author of this booke 14 An answer to an obiection 15 Diuers limitations of the former coÌ„clusion whereunto the author of this booke did subscribe §. x. MAnie †cases there be wherein it is sufficient for the performaunce of the condition that the same was oÌ„ce accoÌ„plished albeit the same do not still endure in the same estate a) Ias in L. si quis haeredem C. de Instit sub vbi tradita est regula non paucis ampliationibus limitationibus illustrata other cases there be wherein it is not sufficient once to haue performed the condition vnlesse there be a continuance of the performance b) Ias in L. in substitutione ff de vulg pupil sub vbi regulaÌ„ tradidit sex fallentijs exornatam But because it woulde growe to an infinite matter to recite euerie particular case c)
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