Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	enter_v	lord_n	villain_n	1,438	5	12.5490	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
a13252	A briefe treatise of testaments and last willes very profitable to be vnderstoode of all the subiects of this realme of England, (desirous to know, whether, whereof, and how, they may make their testaments: and by what meanes the same may be effected or hindered,) and no lesse delightfull, aswell for the rarenes of the worke, as for the easines of the stile, and method: compiled of such lawes ecclesiasticall and ciuill, as be not repugnant to the lawes, customes, or statutes of this realme, nor derogatorie to the prerogatiue royall. In which treatise also are inserted diuers statutes of this land, together with mention of sundrie customes, aswell general as particular, not impertinent thereunto: besides diuers marginall notes, and quotations not to be neglected, especially of Iustinianists, or young students of the ciuil law: vvith two tables, the one analyticall ... the other alphabeticall ... By the industrie of Henrie Swinburn, Bachelar of the Ciuill Lawe.	Swinburne, Henry, 1560?-1623.	1591 (1591)	STC 23547; ESTC S118058	497,477	642

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 Ascriptitiꝰ verè ser uus non est sed ser● li tantùm macula as●●rsus Bald. in L. cū 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 cōpellitur 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 ignorāte 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 tenur̄ 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 testm̄ facere Spec. de Instr edi §. compēdiose Lindw in c. statutū verb. Ascriptitiorū 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

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

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 poūd 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 Iulianꝰ 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 dispositiō 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 conditiō 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 cōclusion 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 ōce accōplished 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 regulā tradidit sex fallentijs exornatam But because it woulde growe to an infinite matter to recite euerie particular case c)

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

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) ●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 c●lpa de regiur 6. quod si per cum st●tit quo minus ha●eat in eo casu est de iure ciuili et ●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 testamēt 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 takē vpō him or thē 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