by Act executed had been void Et sic de caeteris Co. Rep. Corbet's Case fo 86. CHAP. V. Of the Forms of Testaments THe substantial or essential form of a Testament is the naming of an Executor without which it is no Testament for the Executor is in the place of the Testator and compellable to pay Debts so long as he hath Assets without naming an Executor it is but a Codicil be there never so many Gifts or Legacies contained therein and Administration is to be granted as of one dying intestate unto the Wife or next of Kin. But be it solemn or unsolemn written or nuncupative priviledged or unpriviledged the naming or appointing of an Executor without more ado makes a good Testament An Executor may be appointed simply or conditionally from a time or to a time certain generally or particularly in the first second third or fourth degree Simple nomination as I make Institute or Will that or desire that A. be my Executor or A. shall or let A. be my Executor or I commit all my Goods to dispose of by A. or I will that A. dispose of those Goods in his possession in the first he shall be adjudged Executor of all In the second of so much as are in his possession only The word Executor needs not always to be expressed in a Will but circumlocutory words will serve so as the Testator 's meaning be certainly known but when it is doubtful whether the person named be a general Legatary or Executor great care must be taken to determine whether a Will or not a Will. A Testator makes his Will by entreaty or interrogation of another person as if one demand if he will make A. Executor and he answer yea or I do this is a good nomination so as he be then purposed and intended to make his Will for be the words never so plain if the Testator were in fear jest or drink though he say I make A. my Executor yet it is void because he had not then animum testandi As nomination of an Executor is pure and simple being without condition so of Legataries mutatis mutandis in all things always according to the Testator 's meaning Therefore if A. devise to B. all his Lands and Tenements all in possession and reversion pass by the word Tenements Land is devised to A. to have for evermore or to him and his Assigns there the devisee hath a Fee-simple but in a Feoffment such words create but an Estate for the Feoffee 's life A devise of Lands is made to A. thus to give or sell or do with at his pleasure this makes a Fee-simple A devise of Land is made to A. and his Heirs males this is an Estate Tayl but in a Feoffment the same words make only a Fee-simple because thereby it does not appear of what bodies the Heirs shall be begotten Lands are given by deed to A. and the Heirs males of his body he hath issue a Daughter who hath issue a Son and dies the Son of the Daughter shall not have it but it shall return to the Donor But if the same were so given by a devise in a Will he viz. the Son of the Daughter should have it A devise made to an Infant in the Mothers Womb is good but contrary of a deed Feoffment grant or gift for they being made to such are void A devise is to A. and his Heirs Females of Land the Devisee hath a Daughter and Son and dyes in this case the Daughter shall have the Land and not the Son though he be Heir A devise of Land is to A. charging him with payments of near the value of the profits during his Life though there be word of Heirs or Assigns or for ever yet this is a Fee-simple But a devise of Land to A. in Fee and if he dye without Heir then to B. in Fee this is a void remainder because one Fee-simple cannot depend upon another So Land was devised to the Prior and Covent of B. so as they paid to the Dean and Chapter of P. 10 l. per annum and in default thereof their Estate to cease and the Land to remain to the Dean and Chapter this is a void remainder for it could not be limited after an Estate in Fee and the Heir not the Dean and Chapter shall take advantage of the condition A Legatary may take his Legacy without delivery by the Executor But there is no remedy to recover a Legacy by the Common Law but only by citation before the ordinary But a Legatary possest of his Legacy at the Testator 's death may retain it if there be sufficient to pay debts beside Conditions some are 1. Necessary 2. Some impossible 3. And some possible or indifferent 1. Necessary in respect of Fact as if the Sun rise 2. Necessary in respect of Law as a condition to make one Executor or give 100 l. 2. Impossible conditions and these have four sorts of Impediments 1. Of Nature as to give one 100 l. if he touch the Sky with his hands or drink up the Sea. 2. Contrary to Law deemed impossible as if he murder a Man or deflower a Maid for id possumus quod de jure possumus 3. Hard to be performed as a base Subject to marry the King 's Daughter And 4 of contrariety and repugnancy 3. Possible conditions or indifferent of these 1. Some are casual as to give 100 l. if the King of Spain dye this year 2. Others are Arbitrary as if one go to Church But here note that conditions unlawful impossible and dishonest are absolutely void Every condition must be precisely performed for performance in part will not suffice for the whole meaning of the Testator therein must be performed A condition that one go to Church on Easter-day and he endeavours so to do but he is hindred by great floods or other lawful impediments the condition is performed But if in going to Church he commit an offence and be stayed for it this is not a performance of the condition when the condition cannot be performed by the Testator 's default this is no bar to the Legacy as a Legacy is given on condition that he bury the Testator 's body in St. Peter's Church in York and he dyes excommunicate Executor or Legatary under some possible condition admittable putting in caution to perform the condition or make restitution Condition is that A. marry the Testator 's Daughter he is ready and willing but she refuses this is doubtful for he must persevere if he will have the benefit for though it seem the condition be performed in Law yet is it not performed in fact according to the Testator 's meaning But it is contrary if the Testator remitteth to him a Debt upon such condition and he offereth to marry her or if he be possessed of the Executorship or Legacy in the mean time before she repent or if 100 l. in such a chest or a white horse be given
not avoid it for the first Will stands good And here note that every man and Woman is supposed to be of sound and perfect mind and memory unless positive proof be made to the contrary Words only are not a sufficient proof of sanity of mind or to set forth the reasonable faculty For a Parrot may be taught significant words yet none will aâ—â—r them to proceed from an instinct of reason no more than they can assert Balaams Ass a reasonable creature because by miracle it's mouth was opened to reason with it's Master An old Man who is so superannuated that he has forgot his own name Old Men. is held unfit to make a Will. So a Man in extremis The old Law of Slaves and Villains was this Villains their Lands Goods and Children gotten by themselves or given them by others were all in bondage For whatever such a bondslave getteth it is his Lords for if a Villain make a Will of his Lands or Tenements or Goods and the Lord enter before the Will proved the Will shall be void and the Lord shall have them But this Law is though not abrogated yet so long disused that it is of no force If a Man be condemned to perpetual Prisoners imprisonment upon a criminal account he cannot make a Will But a Prisoner for Debt may so it be not to defraud his Creditors A Woman Covert cannot devise Lands Tenements Feme Covert or Hereditaments neither to her Husband or any other 1. Not to her Husband for these reasons 1. For that may be in prejudice of the Heir 2. Albeit she did of feee will and without constraint for the tye is not apparently taken off 3. Although the Will were made before Marriage for the Testator must be in as good power at the time of death as of the making the Will 4. If the Wife make a Will during Coverture and then survive her Husband this is supposed void unless she confirm it after the Husbands death But if such Will were made before Marriage by her and she survive that will be good She may dot devise Goods and Chattels without consent of her Husband but by his licence peradventure she may In some few cases a Feme Covert may make a Will without her Husbands licence as first an Empress or Queen so it be not in prejudice of her Husband or his Regality 2. When any thing is due to the Wife whereof she was never possessed during the coverture neither may the Husband bequeath a chose in action as an Obligation c. which he hath only in the right of his Wife if he be not joyned with her or the property altered after Marriage 3. A Woman betrothed to a Man may before espousals make a Will. 4. If a Wife be Executrix to another she may dispose of those goods else might the next of Kin have administration de bonis non administratis of her Testator for where an Executor dyes intestate the Testator from that time is deemed to dye intestate A Wife may appoint her Husband her Executor but such Wife is restrained from making such a Will two ways 1. Unless she appoint an Executor her Will will be void 2. If such Wife have any Goods as Legatary from the Testator and which she receiveth as Legatary not as Executor they are her Husbands and so not by her devisable also increase of goods during the coverture which the Wife has as Executrix as Calves Lambs and the like the same redound to the Husband and not to her A Wife or other Executor and Legatary is deemed to accept Goods as Legatary not as Executor unless by Protestation or some other means the contrary appear for it is her better Title and more free yet this is according to the rule of the civil Law but not agreeable to the Law of the Land. If a Husband be bound or do voluntarily licence the Wife to make her Will before Marriage and she make two or three the last is that must stand A deaf and dumb person not knowing what a Testament is Deaf and Dumb. cannot make a Testament but if he were not deaf a partu naturaliter but he became afterwards deaf and dumb by accident or otherwise he may do it by signs but it will be better if he can write He that can speak could once hear Ergo he may make a will. Dumb and not deaf may make a will by signs so as the same be well known to witnesses A blind Man Blind may make a Nuncupative Will or a Testament in writing if it be read to him and he declare he heard and understood it A person convicted of High Treason Traitor cannot make a Will for that he hath forfeited all his Estate both real and personal whatsoever But if he obtain a Pardon Quaere what he may do Felons forfeit their lives Felons Goods and Chattels and the profit of their Lands for a Year Day and Waste and after the King hath had annum diem vastum the chief Lord of the Fee shall have it except in the County of Gloucester where the next Heir after the Year and Day shall inherit and in Gavel-kind Lands where they descend equally to Sons and for default of Sons to Daughters in like manner And there it is said The Father to the Bough The Son to the Plough So that Felons cannot make Testaments of what the Law hath made a prior disposition But if a Man be indicted of Felony and dye before conviction he may devise his Goods and Lands or if upon his arraignment he stand mute his Goods shall be confiscate but he may devise his Lands For a Felon attainted at the time of the Fact committed in such case it is to be regarded in respect of his Lands But for his Goods the time of Judgement must be respected for before Judgement he may give his Goods for neither the Sheriff nor other person can seize before conviction A Heretick doth not forfeit his Lands unless he be executed Heretick nor Goods unless he be convicted and delivered over to Lay-mens hands yet if he be but excommunicate he cannot make a Will. Apostatas are of three sorts Apostate 1. Such who having once been Christians renegue their profession and become Jews or Turks and such an Apostate was Julian the Emperour who from thence had the infamous Sirname of The Apostate 2. Such as being subject refuse to obey the command of the Ordinary or Superiour as our now Sectaries and Nonconformists 3. Such as have entred into Holy Orders and afterwards throw it off and become lay in habit or profession and these are all reputed as bad if not worse than Hereticks A Sodomite qui peccatum inter masculos contra naturam cum faemina Sodomite is barred to make a Will although he be not convicted An Outlawed person is out of the protection of the Law Outlaw and all his Goods and
Chattels are forfeited be the cause of Action just or unjust Doct. and Stud. Lib. 1. Cap. 6. in fine if one be outlawed for Felony he shall forfeit Goods and Lands but in Action personal the contrary if any Errour or discontinuance be in the suit or Process whereby the Outlawry becomes reversable as where the party is beyond the Seas where three proclamations are not made whereof one in open Court another at Quarter-Sessions and a third at the Church or Chappel-door where the Defendent dwelleth or lastly where the party hath obtained his pardon One at the very point of death In extreams if he be of good memory though you can scarce understand what he speaks yet may make his Will and it shall be good A written Will is brought to a sick Man and he is asked if that be his Will and he answers yea this Will if it were written by the sick Mans privity or directions it will be good otherwise it is held contrary Ecclesiastical persons are either Regular or Secular Relligions The Regular are Monks Friars c. And if such a Regular Clerk make his will at his entrance into Religion it must be then also proved and the Executor must enter as if he were actually dead for he is accounted dead in Law in respect of his Vow and therefore totally disabled to make a will afterwards The Secular are Bishops Vicars c. and these may make a will so as the Goods they dispose thereby be not held by them in right of their Church for they may not devise the Fruit of Trees growing on the glebe Howbeit Corn growing upon the glebe belongs to him his Executor or Administrator but of other Fruits Tythes Oblations and Emoluments the next Incumbent shall have them towards payment of his first-fruits and if he dye his Executor 28 H. 8.11 CHAP. III. What things may pass by Will and how much 1. Of Lands 2. Of Goods and Chattels And of the tuition of Children to whom and how it shall be granted or committed LAnds are devisable either by Custom or by Statute By Custom such are Gavel-kind Lands which are not contined only to Kent as hath been erroneously held from the Grant of William the Conquerour And one seized thereof may give or sell them at his own pleasure neither are they forfeitable for Felony according to the Adage The Father to the Bough The Son to the Plough 2. Lands held in Burgage-tenure by Custom devisable in divers Cities and Burroughs And such Land may be given in Fee-simple Fee-tail for Life or Years so as the Will be enrolled before the Mayor neither is it needful to have it written according to the form of the Statute of Hen. 8. for that the Land was devisable before that Statute and is a kind of a Socage-tenure Citizens Burgesses and Free. men may devise their Lands in Mortmain which others who have Burgage Lands may not do otherwise there is no difference But joyntenant of Burgage-Lands cannot devise his part for it will pass by survivourship The Custom of devising Lands to Feoffees reformed by 27 H. 8. which see at large As also the Stat. 32 H. 8. whereby Lands may be devised A. having Lands in Socage may devise all except he have Lands of the King or others in Knight-service but in such device there must be reserved primer seisin and fines for alienations such as should have been in case the Land had been altered or sold If one hold Lands in Socage and other Lands in Knight-service he may devise all his Socage Lands and two parts of those in Knight-service reserving three parts for the King or other Lords of the Knight-service Lands for Wardship and primer seisin c. but this is in effect now out of doors If there be two joyntenants or more of Land holden of the King and one die his Heir shall be in Wardship Lands Tenements Rents and other Hereditaments in possession reversion or remainder may be devised as before Of Goods and Chattels all may be devised yea as well things extant as things not in being at the time of the device or during the Testator 's Life as Corn annually growing in such Land all Lambs coming of such a flock depasturing in such a Field next Year but if no such Corn or Lambs be it is void By common Law If A. grant B. an annuity of 10 l. to be taken out of his Coffers and he have no Coffer or out of his Lands in Dale and he have none there in both these cases his person is chargeable By a deed of Gift made of all Goods and Chattels yet debts or things in action pass not Contrary it is of a devise by a Will for if a debt or thing in action be given to A. the Testator may make him Executor only to that and A. may recover it in his own name If a man bequeath another mans Goods by the Civil Law the Heir must either buy them or render so much in value to the Legatary But both by the Common Law and Law Ecclesiastical used in this Realm such a devise is judged void There are several sorts of Goods which are said not to be devisable as 1. Such as a man hath in the right of his wife viz. Debts due to her or things in action or Chattels real as Leases for after the Husbands death they return to the wife 2. One may not devise Goods which he has joyntly with another no though he make the other joynt Executor yet he shall not be chargeable for those Goods but adjudged to have them as survivor 3. Neither may one bequeath those things which he hath as Administrator to another for he ought not to convert those to his own use but therewith to pay the Debts and Legacies of the Deceased and to distribute the rest in pios usus and therefore bound to be accountable 4. Albeit the Executor of an Executor may administer Goods of the first Testator yet so may not the Executor of an Administrator but there must be a particular Administration of them granted Also an Executor may appoint an Executor of the first Testator 's Goods so may not an Administrator Howbeit an Executor cannot give away the Goods of a Testator no more than may an Administrator for they are not properly his but he must accompt for them 5. Goods of the Realm such are the Crown and the Jewels thereof are not devisable 6. The Master of a Colledge the Mayor of a City or Burrough may not devise things which belong to the Burrough City or Colledge so it is also of an Hospital and Church goods excepting upon the glebe growing 7. Goods de jure belonging to the Heir are not devisable as Trees growing the Heir-loom c. Tenant in right of his Wife sows Lands and bequeaths the Corn the Legatary shall have it and not the wife otherwise it is of Corn and Grass not separated Tenant in Tayl makes Lease for Life to A.
and dyes the issue in Tayl recover Land against A. being second in formedon this is lost A. hath a Daughter and dyes his Wife great with child of a Son the Daughter enters and sows the Land shee shall reap though the Son be born before reaping time But if after the sowing of Corn and before the Son born the Mother recover Dower against the Daughter and ground sown be assigned to her in Dower she shall also have the Corn. Windows Tables wainscot Benches and the like Windows c. fixed or mortised in earth go not to the Executor but to the Heir for they are parcel of the Free-hold and to remove them is wast Also Furnaces and Ovens set in Mortar or Stone do belong to the Heir Concerning the assigning of Tutors or Guardians Guardian and the disposing of Childrens portions during minority Divers Customs are in England observed A Father hath a paternal power and may appoint a Tutor or Guardian to his Child for a time and the custody of his portion All but the Heir and such as are preferred in the life time of the Parents are to have filial portions of the Father 's goods But if there be no Testamentary Tutor or Guardian then the Ordinary may appoint the next of Kin demanding the same as in case of administration but if the Child be a Ward the Ordinary may not do it Neither can any one be a Tutor or Guardian who may not be an Executor A Tutor or Guardian may be assigned to a Boy till 14. to a Female Child till 12. and then they may have Curators of their own choosing If a Child be a Ward the Guardian shall have him and all his Lands and offering him a convenient marriage and at reasonable age if they refuse he shall have the value of their Marriage which shall be rated according to the value of the Land but this is now taken away But in Socage Tenure if the Land come by the Mother the Uncle on the Father 's side shall have the Guardianship sic è contra and as such shall account to the Pupil for the profits of his Land at his full age Of Fools and Ideot 's the King by his Prerogative Royal hath the tuition of the body and the profits of the Lands but after the Ideots death the Land shall return to the next Heir Copy-holder Heir under 14 years of Age shall have a Guardian appointed him till 14. as the Mother or next of Kin. A Tutor may be appointed for a time either simply or upon condition nay more than one may be appointed If the Testator say I commit my Children to the tuition of A. or I leave them to his hands or to his government or I desire my Wife to take care of my Children all these imply the Testators meaning to be so and they shall be confirmed Tutors The Office of a Tutor is to provide for the Infant faithfully to administer his Goods and Chattels and to account for all received by him and if any take away the Pupil or his Goods he may cite them and make them restore them in the Ecclesiastical Court. The Tutor may sell bona peritura but not Goods immoveable If a Testator Will that A. shall educate his Children and have the disposing setting and letting of his Lands yet he may not sell them for the words dispose set and let properly bear no such meaning As to the disposing of Goods we are to observe Distribution that moderate Funeral expences are to be paid out of the whole and then debts quaque suo ordine but if the Executor pay Legacies and there be not sufficient left to pay Debts he shall pay de bonis propriis it being a wast in him Cro. Eliz. 646. the 5 Report Duke and Littleton's Case Cheynyos Case 33 Eliz. B. R. If there be a Wife and no Child or a Child or Children and no Wife the Goods shall be divided into two parts and the Testator can but devise one half but now see the Stat. 22 Car. 2. Cap. 11. And if there be Wife and Children or Child which Child is Heir or which Children were advanced by his Father in his life time in such case the Wife shall have half and the Testator may dispose of the other moiety But see Ratcliff's Case 3. Rep. But it is also held that a Child preferred shall have as in Hotchpot if he will cast in his share See Fitzh and Brook. de rationabili parte bonorum Although the Law leaveth all to be disposed of by the Testator yet in many places he is restrained by Custom But note it seemeth he may disseize of Leases especially where it is customable for the Wife and Children to have a ratable part of moveable Goods and Debts Bro. Tit. Exec. Patrimonium patris munus because it is to prefer Matrimonium matris manus because she is to nourish and breed up the Child If A. be seized of 30 Acres and have issue 2 daughters and he bestow 10 Acres in Frank-marriage with one of them and dye seized of 20 the married Sister may cast up in Hotchpot and have a new division and moiety CHAP. IV. Exposition of Testaments TEstaments shall be favourably expounded and according to the intent and meaning of the Testator which intent ought to be manifest and not doubtful Co. 6. Wild's Case because he is supposed to be inops consilii Words in a Testament seeming to tend to a condition as if Provided and such like shall not be taken in Law for conditions where the intent of the Testator appeareth not to defeat the whole Estate devised thereby but for a limitation as for example A. seized of Lands in Fee hath issue B which Lands he deviseth to C. in Tayl the remainder to D. in Tayl with divers other remainders Provided that if any of the In-taylees bargain or sell the Land or any part thereof that from thenceforth such persons selling shall be utterly excluded and the Land to remain to the next in Tayl as if such person had not been named in the Testament in this case the exposition shall be until such Person in the In-tayl shall alien he shall have as before and so it is a limitation and not a condition For if it were taken for a condition then B. his Son should enter for he only is prius and none but priuses may enter for a condition broken and then all the Estates were determined which were contrary to the intent of the Testator But by limitation it is otherwise Plow so 412. Scholastica's Case Only such Estate as cannot be by the rules of the Common Law conveyed by an Act executed in the life of the Testator with advice of Counsell such Estate cannot be devised by Testament As if A. devise Land to B. in Fee and if B. do not such an Act that C. shall have the same to him and his Heirs this is void for such limitation if it had been