favour for whereas feoffments made amongst strangers if they be not cloathed with good and valuable consideration the use of the gift is not changed but the donee remaineth seised to the use of the donor for want of reciprocall exchange of gaine yet if the father infeoffeth his child the consideration of fatherly affection is prized recompence enough to change the use and this holds true of all consanguinity but the heire which is so called ab haerendo quia haereditas sibi haeret hath in law a more mutuall valuation with his father and a greater interest in the Inheritance then the younger sort for if the heire endoweth his wife by the consent of his father this endowment is good and if the sonne dyes the wife shall have her dower though the father liveth but this holdeth not of the younger sonnes by which it appeares that our law admits the heire an interest in his Inheritance during his fathers life but if this should seeme strange then may it bee more plainly proved out of Mr. Glauvile who putting some difference between quaestum haereditas saith that the Common law would not suffer the father to give any part of his Inheritance to his yonger sonnes without the consent of his heire his words to that purpose are these si quis plures habuerit filios mulieratos non poterit de facili praeter consensum haeredis sui filio suo post-nato de haereditate suâ quantamlibet partem donare If any man shal have divers sonnes lawfully begotten he may not easily without his heires consent give any part of his Inheritance to his yonger sonne and yet after he granteth that the father may give part to a stranger or to his bastard which might seeme hard if he had not shewed the reason thereof viz. quia si hoc esset permissum accideret inde frequens prius natorum filiorum exhaereditatio propter maiorem patrum affectionem quam saepe erga post-natos suos habere solent Thus may you see how much our law esteemeth and defendeth the birth-right of the heire not onely in giving him private power by the consent of his father to endow his wife but likewise in restraining the father from following his peculiar affection in bestowing his Inheritance contrary to the meaning of the law and this for ought I know remaineth law to this day neither is it unreasonable that the heire whom the law onely burdeneth with descents of warranties debts and such like should by the law reape onely the advantage of Inheritances Much more equally therefore hath our common law provided for our heires then these abortive estates taile and yet of entailes I confesse that some are more tollerable then others because they doe lesse manacle the pure and naturall course of Inheritances for when lands are given to the eldest sonne and to the heires of his body this varieth not much in the order of descent from fee-simple because the immediate heire male or female shall by this gift enjoy the Inheritance otherwise due and were it not for defrauding Creditors and abasing the price when a sale is enforced and some other inconveniences I should thinke it just but if lands be given to a man and to his wife and the heires of their two bodies if the wife dying leave but a daughter though afterwards the Husband marrying againe hath issue a sonne and dyes by this gift entaile the daughter shall dis-inherite the sonne against the expresse rule of all lawes Againe if lands bee given to the heire apparent and to the heires males of his body with remainder over to the heires male by this gift the heires generally are against all right robbed of the birth-right which fashion of restraining of Inheritances from their due forme doth seeme to me most unjust and this I affirme the rather because wee find no such gift expressed in the statute of West 2. though I confesse they are taken to be comprehended within the meaning thereof but because this word heires in his equivocate sence hath divers wayes to be understood it were meete I should discover my meaning thereby which principally intendeth the first begotten son who onely can bee heire according to master Glanvils primogenitus patri succedit in totum ita quod nullus suorum fratrum partem inde jure petere potest the first begotten sonne succeedeth the father in all so as none of his brethren can lawfully claime any part thereof in whose absence the second brother succeedeth and so in order and in want of brothers the sisters are heires for Mr. Glanvile likewise saith that si non reperiantur fratres vocandae sunt sorores quibus praemortuis eorum liberi vocantur And this hath not onely bin a continuall practise of the common law but it is likewise well warranted by the Commandement of Almighty God as may appeare by his Answer 23. Numbers when Moses delivered unto him the petition of the daughters of Salphaad when after their fathers death without sonnes they demanded possession of his Inheritance amongst their Cousens which was Iustam rem postulant filiae Salphaad da jis possessioneminter cognatos patris sui et ei in haereditatem succedant ad filios autem Israel loquêris haec homo cum mortuus fuerit absque filio ad filiam transibit haereditas si filiam non habuerit habebit successores fratres suos The daughters of Salphaad doe aske that which is just give them possession among their fathers kindred and let them succeed him in the Inheritance and to the children of Israel these things shalt thou speake when a man shall dye without a sonne the Inheritance shall passe to his daughter if hee hath never a daughter his brethren shall succeed and this hath not bin onely commanded but practised in all ages for women have succeeded in Kingdomes and in the greatest Inheritances If I have failed in the beginning of this discourse to prove that Inheritances at our common law doe follow to all purposes their true patterne set forth in the lawes Divine let this I pray serve for a full supply therein since hereby you may perceive they agree to all intents and least we should take this as a law limited to continue some short time it followeth eritque hoc filiis Israel sanctum lege perpetuum worthily therefore was lex Voconia in the civill law which excluded women from their Inheriting abrogated as unworthy of the reputation of a law since it swarveth from the forme of God his law and to this purpose hath St. Augustine lib 3. De Civitate dei lata est Romae lexilla Vocoium ne quis haeredem foeim eam faceret necunicam filiam qua lege quid iniquius dici aut cogitari possit ignoro The Voconian law is made at Rome by which it is prohibited that daughters or a daughter shall inherit then which law I know not what can bee said or devised more wicked who is he that understanding the high
A TREATISE Concerning Estates Tayle and Discents of Inheritance Written by N. N. and Published by I. SHERMAN of Lincolnes Inne Gen. LONDON Printed for Iohn Grove and are to be sold at his Shop in Chancery Lane over against the Subpaena Office 1641. A Treatise concerning Estates Tayle and discents of Inheritance YOu demand good Sir if Estates tayle may bee cut off whereto I may shortly answer that every Act for the lawfull execution thereof requires power and will without both which onely things casuall are accomplished the will naming the worke good or bad the power giving hability to finish what the will freely intendeth This power may truely bee called possibility inabled either by Nature or by Law for that which is unnaturall or against our natures is not judged possible or in our powers no more is that which is to be done against the Lawes for we have no due power to doe ought that is unlawfull all our powers being subject unto Law for illud possumus quod jure possumus Now touching the power and authority to avoyd estates taile it is plaine that as the making of them was authorized by the Stat. of West 2. so by the Stat. of 4. H. 7. cap. 24 and 32. H. 8. cap. 36. Tenent in taile may lawfully cut them off since therefore the power to create an estate taile and the power to barre the Issue in taile are equally warranted by Law for apari potestate par causatur effectus the next doubt will be if our wills or affections to cut them off doe sort to a lawfull end which end though it be last in execution yet ought it to be first Censured as the first part of all our actions and touching this point I must referre my selfe to every man his peculiar conscience who can best make answer in this behalfe what hee intendeth onely I must note by the way that such as avoyd and cut off these estates to none other purpose but to enlarge their wanton expences and to give them more scope to live licentiously as they unjustly spoile their Heires of their due Inheritances so shall not this my defence extend unto them since my purpose onely is to reduce estates taile to the most proper conveyance of the Common Law And because sometime the effects produced of our actions are taken for their ends whereby they are to be valued And since the frustrating of estates taile disposeth it selfe to none other end then to set at liberty these fettered Inheritances To prove therefore whether Inheritance at Common Law or these Statutes or conditionall gifts are to be preferred it behoveth me to shew you what an Inheritance is and what an estate taile is that so you may more easily conceive their differences In the Civill Law Inheritance is Successio in universum jus quod defunctus habebat which definition doth well agree with our Common Law which saith that an Inheritance is such an estate as may be inherited by the Heire which estate doth naturally descend to the Heire as if it were joyned and included in him by a violent motion of the Law and this discent is that which the Civilians call succession and our Common Lawyers Inheritance which so cleaveth to the Heire as if the Father disseiseth a stranger and dyeth seised this Land shall discend to the Heire against his will and he is Tenant to the precipe though hee never enters And in like manner shall Lands purchased discend except the Purchasor doth some Act to the contrary and except in cases of Attainder by this I gather that Inheritance is the Act of the Law for Nemo est haeres viventis no man is Heire of him that is living and dead men have no power to chuse their Heires therefore I say it must follow that this discent is the act of the Law and dis-inheriting or altering the course of Inheritances the act of the party The consultation now must be if the Act of the person may justly make voyd the Act of the Law wherein we must consider the force of the Lawes and the hability of persons first therefore Law as St. Thomas saith is Quaedam rationis ordinatio ad bonum commune a certaine disposition of reason to common good which disposition is by Frigius called a Coercion of things voluntary and not voluntary whereby it seemeth that if wee will be reasonable creatures we must submit our selves to the governance of the Law which as it is said is the disposition of reason and the Coercion of our wills offending reason the Law therefore as a mute Magistrate compelleth us to her obedience warranteth us safety under her Target and though Lawes were made for men yet were they not made to rule men by which I gather that Lawes are superiour to men and men inferiour to Lawes the Acts therefore of the Lawes are paramount or above the Acts of the party and to draw this my present purpose since the discent of Inheritance in Fee-simple is wrought onely by the Law and since these gifts entaile are the naturall issues of mens fantasies why might I not here conclude that our estimation of estates taile ought to be much inferiour to that estate which the Common Law createth howbeit since this hath bin spoken generally and confusedly of all Lawes and since wee are in this government subject to divers sorts of Lawes in divers respects it behooveth me to shew you what Lawes doe principally concerne this matter and how Inheritances are respected in either of them and since Fee-simples and estates taile are opposite in their natures and since likewise the Adage saith Ferro aperire viam qui per contraria transit I will prove unto you that the proper and naturall discent of Fee-simple is good and lawfull in all Lawes by which meanes it will follow that estates taile being contrary to Fee-simple are not good nor lawfull for contraries agree not Lawes therefore are either Divine or humane and divine Lawes are either Lawes of nature or Lawes deluded But before I speake of humane Lawes I shall first shew you that the forme of Inheritance which the Common Law supporteth agreeth with the Lawes of nature and so by consequence with the Lawes of God for proofe whereof it were enough considering the perspicuity of the Matter if I should use the authority of Plowden who saith that nothing in our Common Law is ordained against nature and yet our Common Law will that Inheritances shall descend to the Heire but to prove it more particularly the first Act that nature requires is to procreate the second to preserve the third to provide for sustenance which provision comprehendeth the whole effect of Inheritances and in the Civill law it is called haereditas legitima which is said to appertaine most properly to the Father his office as haereditas naturalis which consists in nourishing and education belongs to the Mother and though natures lawes which are onely written in our hearts have not expressed in
pleasure of Almighty God concerning the bestowing of his Inheritance but would fearefully alter a law so everlastingly hallowed and what sonne perceiving that his father through ignorance had offended this law and knowing that hee hath power to amend this fault but he will without feare and with all speed endeavour to settle his Inheritance in such course as hee undoubtedly knowes shall best please Almighty God But least I dwell too long on this point I must speake somewhat of the instrument or meanes whereby entailes are made which sometimes impaire sometimes amend that which is made Entailes therefore are either accomplished by feoffment by deed or by testament Feoffment is a gift or grant performed by delivery of seizin A deed is an instrument likewise constutitive conveying some estate by inrolement A testament is the just sentence of the mind All which do agree in one point viz. that our wills and consents are the causes without the which not any of them can be perfected for as the testament is onely the will of the testator so is neither a feoffment nor deed worth ought but by the consent and will of the feoffer or donor And as they agree in this which is all the substance of a testament so doe they differ in the solemnity or maner of accomplishing For our law preventing rashnes in passing so large an estate as a Lease for life or an estate of Inheritance have to feoffments and deeds knit a necessity of Livery and inrollment to remaine as pregnant witnesses that the feoffment or deed was made by good advice but to wills though they be of no force during the life of the Testator no other solemnity is required but the death of him that made them which prevents all possibility to amend ought that is amisse Another difference you may likewise note which I have though to another purpose touched before viz. deeds and feoffments require recompence to make the use change but wills doe passe the estate they containe and the use without regard of recompence these imperfections and differences were the cause why wills were not entertained in our common law or at most but in some customary places as in Burgh English where because the Inheritances by those customes descended to the youngest sonne the common law therefore in favour as I ghesse of the heire permitted there the use of wills as a meanes to reduce the customary lands to th' heire at common law and this I ghesse so because in the common law they were utterly disabled to convey Inheritances before the statute of 32. H. 8. cap. 1. except as I have said where custome had usurped on the common law And well was it considered in my judgment that Acts done at so unfit times as wills are usually made should not dispose of matters of so great weight as Inheritances for our forefathers thought it not lawfull in extreames of sicknes by feoffments to passe their Inheritances in extremis tamen agenti non est hoc cuiquam hactenus permissum quia possit tuncimmodica fieri hereditatis distributio si fuisset hoc permissum illiqui fervore passionis instantes et memoriam et rationem amittit But to a man in extremity of sicknes this is not permitted because then an immoderate distribution of the Inheritance might bee made if this were lawfull to him who looseth his memory and reason by the fervour of his present passion This was the common law in Mr. Glanvile his time and yet remaineth for ought I have read whose authority I doe often remember as most worthy being one of the most ancient Iudges of our law who as he hath delivered this of feoffments so of wills he saith possit tamen huju smodi donatio in ultima voluntate alicui facta ita tenere si cum consensu heredis ex suo consensu confirmaretur yet saith hee such a gift made by will to any man may hold so as it be made by the consent of the heire and confirmed by his consent most just therefore in my judgement is our common law herein which suffereth not the father in extremity of sicknes to dispose of his Inheritance since few men pinched with the messengers of death can afford reason his proper use Since therefore wills are for the most part made rather out of fervor of passion then by advised deliberation of the mind and since som are made by compulsion other by ignorance and some to content the importunity of others when yet they hope to live longer then they happen in all which cases they are esteemed as no wills for voluntas est que neque per vim neque per ignorantiam fit since I say all these inconveniences are likely to happen and may scarcely bee avoyded in wills as few estates taile are much to be regarded so none lesse then such as are composed by will unworthy therefore shall I esteeme this instrument to have power concerning Inheritances though it bee permitted by a late statute But since the Civill Law is the true mother and maintainer of wills it were not amisse to shew you that therein the power of wills is not absolute in disposing of Inheritances which any man that doubts may see in the Title of Querela inofficiosi which is said to be subsidiarium remedium à quo petitur a iudice ut testamentum contra pietatis officium ex suo officio rescindat et datur liberis et parentibus fratribus vero et sororibus si turpes personae scriptae sunt Thus you may see that even the Civill law hath compassion on Inheritances and giveth the Children power as it were to Cancell their fathers wills if they be against the office of piety and what almost can be more impiety on the fathers part then to dis-inherit his first begotten Sonne his issue for none other cause then for that Almighty God who onely maketh heires made his sonnes heire a daughter or daughters and rather to substitute another who can bee no more his heire then puer supposititius that is a Changling can bee Child to her that never bare him for nemo est heres viventis how therefore should one that liveth make an heire since there can bee no heire till the father be dead This act therefore as it is unnaturall so is it impious for all sinnes are most grievous that are most unnaturall but because it may here be alleadged that wills import a charge or Commandement of the division necessary to be observed it behooveth me to prevent that objection Which answer first therefore me thinkes it were absurd to say generally that all wills containe a necessity to bee performed since some wills are impossible other unlawfull and many doubtfull to all which if wee should tye a necessity of fulfilling we should force things unpossible things unlawfull and things doubtfull which were very unmeet but if some bind us and some leave us at liberty then must the difference proceed either of the