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
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
haeredem defunctum pertinuit familiae herciscundâ—e actione L. si familiae hercis eod tit but the executor of the first testator suruiuing he alone shall haue action against the debtors of the first testator and he alone shall be conuented by them to whom the first testator was indebted and not both iointly together a) Brook Abridg. tit exec n. 99. for the executor of an executor hath not to deale with the goodes of the first testator in this case that is to say where there is an other executor of the first testator suruiuing in so much that where there bee two executors whereof one maketh an executor and dieth his coexecutor suruiuing which coexecutor afterwardes dieth intestate yet in this case the executor of the executor may not medle with the goodes of the first testator b) Brook Abrid tit execut n. 149. for so soone as the executor which made his testament died the other suruiuing his power was determined or finished by his death and all the power did remaine in the coexecutor suruiuing who afterwardes dying intestate it is in the power of the Ordinarie to commit the administration of the goodes of the first testator not administred to the next of kinne to the first testator and not to the executor of that executor which died first c) Brook d. n. 149. in tit admÌ„str n. 45. Much lesse may the executor of the executor meddle with the goods of the first testator wheÌ„ the coexecutor is yet liuing And if he doo the executor suruiuing maie haue action against him for such goodes as he hath of the first testator d) Brook tit exec n. 99. And besides that the creditors of the first testator may haue action against the executor of the executor in this case as executor of his owne wrong e) Brook eod n. 99. Moreouer it is to be noted that the executor of an executor cannot sell the lande of the first testator who by his testament gaue power to his executor to sell the same f) Brook tit exec n. 3. for after the death of that executor the power ceaseth vnlesse diuers being appointed executors some of them die or refuse to prooue the will for then the others suruiuing or accepting maie sell the same as is aforesaide If †the partie deceased to whome thou art executor were not executor to another but administrator onely thou art not to succeede in his place in the adminâ—stration of the goodes g) Fitzh Abridg. tit admÌ„str n 3. but a newe administration is to be graunted of the goodes not administred by the administrator to the next of kinne not of the administrator but of him that died first h) Fitzh vbi supr principall grounds fol. 61. pag. 2. There is yet †a further consideration to be had of some thinges which seeme to concerne the testator not to be neglected by the executor desirous to bee resolued whether it were better to accept or refuse the executorshippe namely the consideration of the last wil and testament of the deceased of the legacies and deuises therein giuen Wherein the executor is not onely to consider whether the testator hath giuen more then the deathes part doth extend vnto in which case what course is to bee followed is alreadie elsewhere prescribed i) Supr part 3. §. 17. but also in case †any thing do remaine the funeral debts legacies discharged the executor may not thinke to conuert the same to his owne proper vse k) Magna charta c. 18. c. statutum §. statuimus de testa lib. 3. prouincial constit Cant. Dominic à S. Gem. in c. religiosus de testam 6. n. 9. Doct. Stud. lib. 2. c. 10. circa medium nor any more of the testators goods then is giuen to him by the testator in his life time or by his will or which the ordinarie shall allowe him for his labour or in lieu of some debts due vnto him by the testator or due by the testator to some other person and discharged by the executor l) Text. in d §. statuimê° Dyer fol. 2. fol. 310. And †if after due admonition to him giuen he refuse the executorship or to performe the will he shall lose his legacie bequeathed vnto him by the same testator although hee were of kinne or allied vnto the same testator m) Rom. cons 207 235. cuius opinio communis est vt per eand cons 235. ê‘ Gribald Thesaur com op verb. tutor the reason is because he is deemed vnworthie the benefite that refuseth the burthen n) c. qui sentit de reg iur 6. Moreouer lâ—â—re the executor dooth what in him lieth to make the partie deceased to die intestate o) Gribald Thesaur com op verb. tutor But if the executor be not admonished to vndertake the office then being the testators kinsman or such a person to whom the testator woulde haue giuen the legacie though he did not performe the will he dooth not loose that legacie in not vndertaking the executorship p) Ias Alex. Sichard in L. si legatarius C. de leg neither shall the wife loose her thirds nor the children their filiall portions in refusing the executorshippe q) Auth hoc amplius C. de fidei commis Nouel de haered falcid §. si quis autem much lesse shall the creditour loose his debt due by the testator After the consideration of the estate of the testator he †that is named executor must also consider his own person in whom many things ought to concurre but chiefly it is requisite that he be prudent diligent and faithful r) Io. de Canib Tract de execut vlt. volunt â— particula q. 1. wherein if there bee anie defecte I meane if either he be ignorant negligent or vnfaithful he is verie like to finde the office verie troublesome peruaduenture also discommodious s) Io. de Cani vbi supr vnlesse there be certaine hope that being ignorant hee will vse the aduise of those that be skilfull and that of a negligent person he will become diligent easinge himselfe also of such businesse as might hinder the expedition of this office and that howsoeuer hee had behaued himselfe in other affaires vnfaithfully yet in this office hee will haue an honest care well and truely to discharge that trust committed vnto him alwaies hauing before his eies not onely the forfeiture of his bonde by his vnfaithfull dealing together with the ignominie by deceiuing the dead mans expectation but also the daunger of his soule by the breach of his othe for he must bee sworne to execute the will and to administer the goods well faithfully t) Hoc viridi obseruantia passim fit notorium maxime infra prouinciam Ebor. If †a wife during the couerture be named executrix there is this further to be coÌ„sidered in her person that she alone cannot sue for any debt due to
accept or refuse the executorship Of the office of an executor testamentarie vndertaking the executorship 1 Wherein the office of an executor doth principallie consist §. v. 1IT †appertaineth to the office of an executor testamentarie heere in England accepting the executorship amoÌ„gst other things a) De quibus consulas velim Io. de Canib Tract de executor vlt. vol. part 2. q. 1. n. 26. vbi decem enumerat executoris officio incumbentia to cause an inuentarie to be made b) Vt infr ead part §§ 6. 7. 8. 9. 10. to procure the will to be proued and approued c) Vt infr ead part §§ 11. 12. 13. 14. 15. to pay the testators debts and legacies d) Infra §. 16. and finally to make an account e) De quo infr ead pat §§ 17. 18. 19. 20. 21. Of diuers questions about the making of an inuentarie and first whether it be of necessitie that an Inuentarie be made 1 By the lawes ecclesiasticall of this realme and statutes of the same an inuentarie is necessarie 2 The executor which presumeth to administer the goodes and refuseth to make an inuentarie may be punished 3 The reason of this necessitie §. vi COncerning the making of an inuentarie it is expedient to vnderstand whether it bee simplie necessarie that an inuentarie be made what things are to be put into the inuentarie within what time the inuentarie is to bee made in what maner and what be the effects of an inuentarie That †an inuentarie is necessarie to be made by an executor testamentarie is euident as well by the lawes ecclesiasticall of this realme a) Legatin libertatem tit de executor testam c. statutum §. inhibemus lib. 3. prouincial constit Cant. coÌ„firmed by continual vse as also by the statutes b) Stat. H. 8. an 21. c. 5. of the same neither †ought the executor to meddle with the goods of the deceased before hee make an inuentarie c) d. §. inhibemus And if any executor refuse to make an inuentarie neuerthelesse presume to administer the goodes of the deceased he may be punished at the discretion of the Bishop or Ordinarie d) Legatin libertatem de executor testa The †reason is least the executor being disposed to deale vnfaithfully shoulde defraude the creditors or legataries by concealing the goods of the deceased e) Francis Porcellin Tract de inuentario q. 1. per §. sancimus de haered fal in Auth. What things are to be put into the inuentarie 1 All goodes cattels wares merchandizes moueable and immoueable are to be put into the inuentarie 2 Leases are to be put into the inuentarie 3 Corne on the grounde is to bee put into the inuentarie 4 Grasse or trees growing are not to bee put into the inuentarie 5 Whether such things as are affixed to the freeholde ought to be inuentaried 6 Whether debts are to be put into the inuentarie 7 Whether money due for land is to bee put into the inuentarie §. vij THe †things that are to be put into the inuentarie are all the goods cattels and rights which were the testators or did beloÌ„g or were due vnto him at the time of his death whether they bee moueable or immoueable corporal or vncorporall a) Francis Porcellin Tract de inuentar q 3. Pract. Petr. de Ferrar. de forma libelli quo agitu◠〈…〉 tationem Tutel Sichard i◠§. sin autem L. fin C. de iure de lib. n. 9. wherunto also agreeth the statutes of this realme wherby it is enacted that a true and perfect inuentarie be made of the goods cattels wares merchandizes as well moueable as not moueable whatsoeuer that were of the person deceased b) Stat. H. 8. an 21. c. 5. and therefore †leases ought not to be omitted foorth of the inuentarie c) Cattalla etâ—nim sunâ— realia Termes of law verb. chattels how many soeuer they be Likewise †emblemetes or corne growing vpon the ground ought to be put into the inuentarie seeing they belong to the executor d) Perkins tit deuise fol. 99. hanc opinionem longaeuus comprobanit vsus quicquid dicat Sichard post Angel in d. §. sin autem but †not the grasse or trees so growing which beloÌ„g to the heire e) Parkins vbi supra nor †things that are affixed to the tenement and are made parcell of the free holde such I meane as belong likewise to the heire and not to the executor f) L. accessorium de reg iur 6. huc facit L. caetera de leg 1. ff in princ The †debts due to the testator are to bee put into the inuentarie g) Gloss in L. chi ographus ff de admÌ„str tut Quod verum quidem est si existant instrumenta alià s non requiritur vt inscribantur donec recuperentur in manibus tractentur vt quae inteâ—im non rectè dicantur reperta Lindw in d. c. statutum §. inhibemus verb. bonis Pract. Ferrar. forma libelli ad reddendaÌ„ rationem tut §. in suo n. 13. Aequum tamen est vt aliqua fiat commemoratio huiusmodi creditorum vtut incertorum ne sublata penitus corum memoria decepti maneant defuncti creditores liberi legatarij vel alij interesse habentes in ea parte But the debts due by the testator they need not to be put into the inuentarie h) Lind. in d. c. statutuÌ„ Ferrar. vbi supra and if any such debts be put into the inuentarie the Ordinarie shall do well to make diligent examination whether the testator did owe any such for many times debtes are thrust into the inuentarie which are not due by the testator and so the legataries and children of the deceased are often defrauded at least of some part of their due by the vnfaithfulnesse of the executor and negligence of the Ordinarie or his officer Landes †tenements and hereditamentes with their appurtenances such I meane as doe not belong to the executor but descend to the heire are not to be put into the inuentarie Insomuch that if the testator will by his testament or last will that the same lands be solde In this case by the statutes of this realme neither shall the money thereof comming nor the profites of the saide landes for any time be accounted as any of the goodes or cattelles of the person deceased i) Stat. H. 8. an 21. c. 5. and consequently are not to be put into the inuentarie Within vvhat time the inuentarie is to be made 1 The time for making and exhibiting the inuentarie is left to the moderation of the ordinarie 2 The inuentarie ought to bee made before the executor meddle with the testators goodes except in some cases §. viij THe †time appointed for the making and exhibiting of the inuentarie by the lawes ecclesiasticall of this realm is left to the discretion and moderation of the Ordinarie
time of the testator being written it were brought to the testator and by him approoued for his testament Or vnlesse the testator when he declared his testament did wil that the same should be written that thereupon the same was written accordingly during his life For then it is effectuall for the deuise of landes tenementes and hereditaments as if it had been written at the first d) Dier fol. 72. ita saepè audiui à nonnullis huius regni Angliae â—urisperitis A written †testament albeit it haue some thinges thereunto belonging which also belong to a nuncupatiue testament and so common to both as the appointing of an executor without the which there can be no testament at all neither written nor nuncupatiue e) Infr. part 4. §. 2. and as the deuising or disposing of goodes or cattelles which may be done indifferently eyther by word or by writing f) Supr §. 9. yet there bee †some thinges which be proper and peculier to a writen testament One is the †deuise or graunt of landes tenementes and hereditamentes which can not passe by a nuncupatiue testament or will without writing g) Stat. H. 8. an 32. c. â— As doeth afterwardes more fully appeare where is also shewed what landes and how much may bee deuised by will h) Infr. 3. part §. 4. An other thing peculier to a written testament is this In a written testament †the testator hath this benefit he maie conceale and keepe secreete the tenor or contentes of his will from the witnesses i) L. hac consultis C. de testa gloss ibidem Which he cannot doe when he maketh a nuncupatiue testament And therfore if the testator be loath to haue his will knowne which thing happeneth very often †either because the testator is afraid to offende such persones as doo gape for greater bequestes then either they haue deserued or the testator is willing to bestowe vpon them least they peraduenture vnderstanding thereof would not suffer him to liue in quiet or else because hee should ouer much encourage others to whom he meante to bee more beneficiall then they expected and so giue them occasion to be more negligent husbandes or stewards about their owne affaires then otherwise they would haue beene if they had not expected such a benefit at the testators hands or for some other considerations In these and like cases after the testator hath written his will with his owne hand or procured some other to write the same he may close vp the writing without making the witnesses priuie to the contents thereof and shewing the same to the witnesses he may say vnto them This is my last will and testament or herein is contained my wil and this is sufficient k) Authen Et non obseruato C. de testa DD. ibidem Neither is the testament therfore the lesse auailable because the witnesses doo not know what is contained in the same l) Minsing in §. sed cuÌ„ paulatim Instit de testa ord Cui accedit Kling in eund tit in 8. in case †the witnesses be able to prooue the Identity of the Writing that is to say that the writing nowe shewed is the very same writinge which the testator in his life time affirmed before them to bee his will or to containe his will m) DD. in d. L. Hac coÌ„sultiss in Auth. noÌ„ obseruato C de testa Couar in c. cum tibi de testa extr n. 5. inf par 4 §. 25. Otherwise the will can take no effect through the defect of sufficient proofe n) Bar. alij in L. si ita scripsero ff de cond demon Paris cons 19. vol. 3. n. 25. 26. And therefore †least the will should perishe for wante of due proofe when the testator would not haue the contents knowne it is not onely requisite that the witnesses be learned but expedient also that they write their names on the backside or some part of the testament o) Specul de Instr Edi. §. compendiose n. 10. Kling in tit de testa ordin Instit n. 8. 9. or vse some other like meanes that they may be able to depose and testifie vndoubtedly that the same is the very writing it selfe which the testator affirmed to be his will or to containe his will p) Sichard in Auth. quod sine C. de testa Couat in c. cum tibi de testa extr Specul vbi supr infr part 4. §. 25. Whether a testament may be written with notes or figures and whether it may be prooued without witnesses by the hand and seale of the testator with other like questions is declared afterward q) Infr. part 4 §. 25. Of a Nuncupatiue Testament 1 What is a nuncupatiue testament 2 Wherefore it is called nuncupatiue 3 Of the force and efficacie of a nuncupatiue testament 4 At what time commonly nuncupatiue testamentes are made and what is the reason 5 Testamentes fauorablie expounded 6 A nuncupatiue testament made diuers waies §. xij A Nuncupatiue testament †is when the testator without any writinge doeth declare his will before a sufficient number of witnesses a) §. Fin. Instit de testa ordin L. Haeredes palam ff de testa And it is called nuncupatiue †à nuncupando i. nominando of naming b) Minsing in d. §. fin Kling in d. tit de testa ordin n. 11. Because when a man maketh a nuncupatiue testament hee must name his executor and declare his whole minde before witnesses c) Minsing in d. §. fin And †a nuncupatiue testament is of as great force and effecacie except for his landes tenements and hereditaments as is a written testament d) L. Hac consultissima §. per nuncupationem C. de testa d. §. fin Instit de testa ordin This kind †of testament is commonly made when the testator is now very sicke weake and past all hope of recouerie e) Termes of law verb. deuise For †as one reporteth it is receiued for an opinion amongst the ruder and more ignorant people that if a man should chance to be so wise as to make his will in his good health when hee is strong and of good memorie hauing time and leasure and might aske counsell if any doubt were of the learned that then surely he should not liue long after And therfore they defer it vntill such time wheÌ„ it were more conuenient to applye themselues to the disposing of their soules then of their landes and goodes f) Ibidem And †in consideration hereof it is that testaments are so much fauored which be made in such perilous times namely for that the testator then cannot conueniently stay to aske counsell of such pointes as be doubtfull in lawe g) Infr. part 4. §. 4. A †nuncupatiue testament may bee made not onely by the proper motion of the tâ—stator but also
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
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)
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
no lesse profitable for this common wealth then it is vsuall to die Neuerthelesse because it more tendeth to the aduauncement of thy commendation to bee intreated then perswaded and more fitte for mine owne safetie to craue with humilitie then proudly to chalenge that which may be denied reiecting therfore these foresaid reasons I do wholy submit my selfe vnto thy courtesie beseeching thee to vse me friendly and either to pardon freely or to admonish charitablie so shall I haue iust cause to commend thy vertue and gladlie amend any fault committed H. S. Whereas there be sundrie escapes in the print I haue for thy ease caused those of greater consequence to be amended with a penne the rest I shal desire thy selfe to amend or to sustaine without griefe AN ALPHABETICALL TABLE of the particular contents of this treatise wherin is relation to the leafe A ACcount wherefore exacted of the executor fol. 232 Account whether it may be released by the testator 233 Account to bee made to the ordinarie 233 Account whether it is to bee made to the creditors or legataries 234 Account whether it is to bee made to the coexecutors 234 Account when it is to be made 234 Account generall and particular 234 In the Account what proofe is requisite 234 By accusing the testament of falsitie the legatarie doth loose his legacie 288 Ademption of legacies what it is 277 Ademption of legacies two fold 277 Ademption of legacies not presumed 278 Administrators to bee accountable to the ordinarie 92 Administration of the testators goodes to whom it is to be committed the condition of the executorship depending vnaccomplished 169 Administration of the testators goods may be committed to the ordinarie vntill the executorship take place after it is ended 171 Affirmatiue conditions about mariage are not reiected but in some cases 152 Affirmatiue conditions of marrying somtimes harder then the negatiue part 152 Age of testators wherein they may deuise their lands 35 Age of testators wherein they may deuise their goods 35 After the Age of fourteene yeeres a boy and after twelue a woman may make their testamentes of their goods 35 Age how old soeuer dooth not depriue a man of libertie to make his testament 42 Alienation of pupils goodes by the tutor whether it be good or not 102 Alienation of the things bequeathed whether it may be prohibited or no. 154 Alienation of the thinges bequeathed sometimes lawfull notwithstanding the testators prohibition 155 By Alienation of the thing bequeathed whether the legacie be extinguished 285 Alteration of the testators state whether it make voide the testament 272 Alter his will the testator may at any time 277 Ambiguitie what it is and how it may be auoyded 192 Analogie betwixt a testament and a iudiciall sentence 9 Animus testandi howe it is prooued 8 An Apostata cannot make a testament 55 Apostata worse then an heretike 55 Apostata what he is 55 Euery Apostata is not intestable 56 An Apostata cannot bee executor 197 Armed souldiers 26 Of Armed souldiers whether euerie one be equally priuiledged 27 Arguments of madnesse 38 Arbitrarie conditions accounted for accomplished when the let is not in the partie 132 Arbitrary conditions not accounted for accomplished wheÌ„ it doth stande by the partie 132 Arbitrarie conditions wheÌ„ the same must be performed no time being expressed by the testator 157 Arbitrarie conditions in what compasse of time it ought to bee performed after the testators death 158 Ascripâ—itius glebae 44 The authoritie and charge of an executor 209 The Authoritie charge of the executor of an executor 213 The Authoritie and charge of the executor of an administrator 214 Authoritie of the executor testameÌ„tarie in distributing to the poore 251 The Authoritie of a tutor 101 The Auncient forme of making inuentaries 220 B Of Bastards there bee three sortes 198 Bastards begotten in incest or adulterie whether they be capable of any testamentarie benefite 198 Bastards by whom they are to bee nourished by the lawes of this realme 200 Bastards how farre they be capable of any benefite by the lawes of this realme 200 Of Bastards begotten betwixt single persons 201 Benefite by the ministers of Gods worde 27 Benefite by the studie and practise of law 27 A Blind man may make a nuncupatiue testament 52 A Blind man whether he may make a written testament 52 Boasting words do not bind or dispose 8 The Bonde called Mutiana cautio whence it had the name 138 Bonde ought to bee put in where there is prohibition of alienation 155 A Bondslaue cannot make a testament 43 Bondmen as well as free may be executors 196 Burgage landes deuisable by will 71 Burgage lands to whom and after what maner are they deuisable 71 Burgage lands whether they be deuisable by any other but a citizen 71 Burgage tenure is a kinde of tenure in soccage 71 Burgage lands being deuised whether liuerie or seisin bee needfull 72 C Cancelling of a testament ad pias causas is presumed to be done vnaduisedly 31 By Cancellation the force of the testament is ouerthrowne 270 By Cancellation whether a nuncupatiue testameÌ„t lose his force 270 Cancelling of a testament somtimes is not hurtfull to the testameÌ„t 271 Cancelling of the testament to whom it is to be imputed when it is vnknowne who did it 271 By Cancelling the testament the legatarie doth loose his legacie 288 A Captiue during his captiuitie can not make a testament 45 If the Captiue escape whether the testament made during captiuitie be good or not 45 Captiuitie doth not make voide the testament made before 45 Captious conditions wherfore they be so tearmed 146 That Captious dispositions are void this position is diuersly extended 146 Captious conditions do not alwaies make void the disposition 147 Casuall conditions not accounted for accomplished before the euent 133 Casuall conditions sometime reputed for accomplished albeit the same be not indeed performed 133 Casuall and mixt conditions whether the same may be performed before the making of the will 157 A Casuall condition may be accomplished at any time 157 No Cautell can take away the libertie of making a testament 61 Children whose father or mother is in bondage whether they be free or bond 43 The childe begotten before mariage shal be the husbands though another got it 162 The Child begotten during mariage is deemed to be the husbandes though another man had to doo with the wife 162 The Child sometime like to the husband being begotten by the adulterer what is the reason 163 The Childe begotten during mariage in some cases is not adiudged the husbands 164 The Child whether shall it bee deemed the former or later husbaÌ„ds when it is vncertaine whether of them did beget the same 165 If the Child be heard to crie the father shall be tenant by the courtesie 167 The Child if it were not heard to crie whether shall the father bee tenant by the curtesie 167 The Childe in the mothers wombe being made
115 An Executor may bee made either by the proper motion of the testator or at the interrogation of an other 116 Executor when is he said to be appointed conditionally 120 An Executor may be made vniuersally or particularly 175 An Executor may be ordeyned eyther from a time or for a time 171 An Executor may bee made in the first second or third degree 176 The Executor of an executor may sometimes be sued as executor in his owne wrong 182 Executor euery one may be which is not forbidden 196 Executor by the law 205 Executor by the Ordinary 206 The Executor is not to meddle with lands tenements hereditamēts 210 The Executor may be cited to accept or refuse the executorshippe 208 The Executor being cited if he will not appeare the Ordinarie may commit administration 208 The Executor cannot be compelled to vndertake the Executorshippe 208 Executor of an executor whether he may ioyne with the executor suruiuing 213 The Executor punishable which doeth administer without an inuentarie first made 217 The Executor resolued to refuse the executorship must not meddle as executor 236 Executor when doeth he administer as executor 236 Executor ought to be capable of the executorshippe at three seuerall times 276 Expences to be allowed to the executor 235 Exposition of testaments fauorable 24 F False cause whether it destroy the disposition 245 A Famous libel what it is 58 The Father may by his will appoint a tutor to his childe 96 In Fauour of libertie the condition need not to be obserued precisely 130 Feare and Fraud make voyd the testament 10 Feare hindereth the effect of the testament 240 Feare whether it be preiudiciall to any other then vnto the author thereof 240 Feare whether it destroy the testament confirmed with an oath fol. 240 Feare of future hurte whether it destroy the testament 241 Feare whether it be proued by the protestation of the testator 242 Fees due about the probation of the testaments 225 Fees due for copies of testamentes or inuentaries 227 Felons intestable 53 Felons landes who shall haue 53 Whether he that is onely indited of Felony may make his testamēt 53 Whether he that is only apprehended for felonie may make his testament 54 Felons goods not to be seised before atteindure 54 A Felons testament conuicted is voide though he be neuer executed 53 Flatterie not alwayes vnlawful 243 Flattery mingled with feare doeth hurt the testament 243 Flatterie mingled with fraude destroyeth the testament 243 Flattery destroyeth the force of the testament whē the testator is vnder the gouernment of the flatterer 243 Flattery if it be immoderat hindereth the disposition 243 A Flock of sheep being bequeathed if all perish but one whether that one be due 281 Formes of testaments so many as there be kindes 111 Of Formes testamentary some be generall some particular 111 Forme essentiall of a testamēt is the appointment of an executor 112 The Forme of the bond called Mutiana cautio 140 The Forme of a solemne testament 188 The form of an vnsolemne testamēt 189 The Forme of a nuncupatiue testament 192 Forme to be obserued in making of an inuentary 219 Forme of prouing testaments twofolde 223 The former testamēt is not reuoked by the second made by flatterie 243 Former testament voyd where the testator is forbidden to alter the same 273 Former testament in some cases is not void although the testator be forbidden to alter the same 274 Forfeiture for extortion of fees 227 Foundation of the testament 112 Fraud as detestable as force folio 242 Fraud doeth not alwaies destroy the testament 242 Freedome requisite in the testator 10 Funerall expences to be deducted out of the whole goods 104 G Gardian see Wards Gauelkind lands may be deuised by will 70 Gauelkind lands by what occasion they were made deuisable 70 The Generall signification of this word testament 2 The Generall forme of testamentes twofolde essentiall accidentall 111 Generall legacie of all or the residue of the testators goods whether it make an executor 115 Generall legatarie is not alwais vnderstood to be the executor 115 A Gifte in consideration of death what it is 16 Three sorts of Gifts in consideratiō of death 16 Which Gift in case of death is compared to a legacie 16 Goods at what age they may be deuised 35 Goods of any kinde are deuiseable except in certain cases 91 Goods which a man hath ioyntly with another are not deuiseable 92 Goods which any hath as administrator are not deuisable 92 Goods of the Realm vz. of the auncient crown and iewels not deuisable 22 Goods belonging to a church or hospitall cannot be deuised 93 Goods belonging to a city borough or comminalty not deuisable 93 Goods conteined in the inuentary are presumed to be in the hands of the executor 220 Goods other then are described in the inuētary the executor is not presumed to haue 220 Grasse or trees growing are not to be inuentaried 218 H Hard conditions whether they suspēd the effect of the dispositiō 125 An Hereticke cannot make a testament 54 An Heretick whether and when he doth forfeite his landes or goods 54 An Hereticks testament not cōuicted whether it be good 54 An Heretick may be condēned after death 55 An Heretick reclaiming his heresie whether he may make a testamēt 55 An Heretick cannot be executor 197 An Heretick cannot be executor in a military testament 197 An Heretick reclaiming his heresie whether he may be executor 197 Heire hath not to deale with goods and cattels of the testator 210 An House bequeathed and afterwards reedified and renued whether the same may be recouered 278 The House bequeathed being burned or blowen downe and afterwardes another erected whether may this new house be recouered 279 Husbands licence necessary to the validity of the wiues testament 47 The Husbande whether hee may reuoke the licence graunted to his wife 47 I An Idiot or natural foole who 39 An Idiot cānot make a testamēt 39 An Idiot if he do make such a testament as seemeth reasonable and voyd of folly whether is the same good in law 39 That Idiotes haue giuen very wise sentences confirmed by exāples 40 Idiots in the custodie of the Prince 99 What Immunitie wee enioy in England concerning testaments 18 Imperfection testamentary twofold 6 Impossible conditions do not make the disposition conditionall 126 Of Impossible conditions there bee diuers kindes 122 Impossible conditions doe not suspende the disposition 124 Impossible conditions which the testator supposed to be possible whether they suspend the disposition 125 Impossible conditiōs negatiue make voyd the disposition 126 Incestuous mariages 57 Incestuous persons whether they may giue any thing by their testaments and to whom 57 Incestuous persons may in some cases bequeath something to their incestuous children 57 What Inconuenience would follow if vnsolemn testaments were not properly testaments 20 Indifferēt betwixt a wise man and an Idiote may make a testamēt 39 Indited of felony whether hee may
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 describing the generall order of the whole Treatise The other Alphabeticall disclosing the particular contents therof That in the beginning this in the end of the booke By the Industrie of Henrie Swinburn Bachelar of the Ciuill Lawe 2. Kings c. 20. Put thine house in order for thou shalt die and not liue LONDON Printed by Iohn Windet 1590. TO THE MOST REVEREND FATHER IN GOD IOHN BY GODS PROVIDENCE Archbishop of Yorke Primate of England and Metropolitane H. S. wisheth true felicitie now and euer WHen I had finished this briefe TestameÌ„tarie treatise bethinking vvith my selfe most reuerende Father vnto vvhose patronage I might dedicate the same In the end I did resolue to make an offer thereof vnto your Grace Being moued thereunto vvith the consideration partlie of mine ovvne duetie partlie of your Graces interest For being a member of your Graces Courts Ecclesiastical and hauing novve receiued sundrie good fauours at your honours handes This I thought might fitly serue for a probable argument of my thankfulnesse in that behalfe And on the other side forasmuch as before all others vvithin this prouincâ— of Yorke it apperteineth principally vnto your grace to prouide that testameÌ„ts lavvfully made be dulie executed being novve by Gods merciful prouideÌ„ce Metropolitane ordinarie of that sea I could not see a more vvorthie Patrone for a testameÌ„tary vvork Partly therefore by these former considerations but especially I vvas encouraged therunto vvith the coÌ„templation of those diuine graces of piety learning zeale grauitie bountie benignitie affabilitie and al maner not onely sufficiencie but excellencie of vertuous giftes vvherevvith the giuer of all goodnesse hath vvonderfullie enriched your honourable minde Wherefore as hitherto your vvisdome hath bene accustomed to entertaine vvith comfortable countenance such as be studious to benefite either the Church or the common vvealth though othervvise they bee of small reputation so novve most reuerend I am vvith all duetie to craue the continuance of the same in mine ovvn behalfe together vvith the fauourable protection of these my labors so farre as they bee agreeable to truth right and equitie vvhich thing I doo so much the more humblie desire by hovv much I may seem ouermuch aduenturous in making choise of so honourable a patrone for such a trifling treatise The Lorde of might and mercie multiplie his spirite vppon your grace to the aduauncement of his ovvne glorie and the good of his Church vvith encrease of manie yeares in health and happinesse Your Graces most readie at commaundement H. Swinburne A Table of the first part wherein is shewed what a Testament or last will is and how manie kindes of Testaments there bee A Testament beeing vnderstood in a generall Sence doth not differ from a last will◠§ 1. Wherein if An Executor be named it is more properly called a Testament § § 1. 2. 10. which is eyther 1. Solemne § 9. or vnsolemne § 10. 2. written § 11. or Nuncupatiue § 12. 3. priuiledged § 13. or vnpriuiledged § 17 Whereof some be 1. Military testaments § 14. 2. amongst the testators children § 15. 3. to charitable or godly vses § 16. No Executor be named theÌ„ it stil reteineth the name of a last will § 4. And dooth coÌ„prehend a 1. Codicill § 5. 2. Legacie or deuise § 6. 3. gifte in regard or because of death § 7. A Table of the second parte wherein is declared who may make a Testament and who may not Euerie person may make a Testament or last wil certein persons excepted § 1. Of whom some are prohibited by reason 1. They want discretion as Children § 2. Madfolkes § 3. Idiotes § 4. Oldmen childish § 5. He that is drunke § 6. 2. They waÌ„t freedome as Bondslaues and villeynes § 7. Captiues and prisoners § 8. Women couerte § 9. 3. They waÌ„t some of their principal senses as Dumbe and deafe § 10. Blinde § 11. 4. They haue coÌ„mitted some haynouse crime as Traytors § 12. Felons § 13. Heretickes § 14. Apostataes § 15. Manifest vsurers § 16. Incestuous persons § 17. Sodomites § 18. Libellers § 19. Wilful killers of themselfes § 20. Outlawed persons § 21. Excommunicate persons § 22. 5. Certein legall impediments as Prodigall persons § 23. He that sweareth not to make a Testament § 24. He that is at the very point of death § 25. Ecclesiasticall persons § 26. 〈◊〉 kinde of 〈◊〉 the greaâ—â— part are not vtterly intestable but in some cases onely 〈◊〉 second part 〈◊〉 Question also is briefly touched viz. Whether a King may bequeath his kingdome to whom he will § 27. A Table of the third part describing what things and how much may be disposed by will If we would know What thinges may be disposed by will If we regard 1. Lands tenements and hereditamentes they are not deuiseable but in certeine cases § 2. Whereof some are approued by 1. Custome viz. when the laÌ„ds are holden in 1. Gauelkinde § 2. 2. Burgage tenure § 2. 2. Statutes viz. when the laÌ„ds are holden in 1. Socage tenure § 3. 2. Knights seruice § 3. 2. Gâ—ods catâ—â—â—ey are 〈◊〉 â—le exâ—â—â— certein cases § 5. As when those things bequeathed ar such as 1. The testator hath iointly with an other § 6. 2. The testator hath as administrator § 6. 3. The goodes of the realme viz. of the auncient Crowne and Iewels § 6. 4. Which belong to anie Colledge § 6. Hospitall § 6. Citie § 6. Church § 6. 5. Descend to the heire and not to the executor § 6. 6. Belong not to the testator but to an other § 6. 3 CoÌ„mitting of the â—â—â—â—on of childreÌ„ especially within the prouince of Yorke Concerning which thing diuerse questions are examined viz. 1. Who may appoint a tutor § 9. 2. To whom a tutor may be appointed § 10. 3. Who may be appointed tutor § 11. 4. In what manner a tutor may bee appointed § 11. 5. What is the office of a tutor § 13. authoritie of a tutor § 13. 6. By what meanes the tutorship is ended § 14. How much may be disposed by will If we respect 1. Lands tenements hereditaments holdeÌ„ in 1. Socage tenure all is
to say iust age for full and perfect age (d) L. Filius-familias de leg 3. ff Rebuss in L iusta de verb sig and so iuste waight iust measure iust number for full and perfect waight measure number (e) Couar in Rub. de test ext pri part n. 4 ciusd farinae estquod ibi dicitur Iustus exercitus iusta classis iusta pugna iustae stationes iustuÌ„ volumen iustus error c. Adde quod scribit Minsing in Rub L. de testa lib 2. institu iur Ciuil The †word Iuste being thus vnderstoode that is to say for full and perfect all testamentarie defectes and imperfections are thereby excluded Wherfore the testament ought to be full compleate and perfect otherwise being an vnperfect testameÌ„t it is said to be no testaments (f) §. Ex eo instit Quibus mod test infir The †testament is said to be imperfect in two respects vz. in respect of Solemnitie and in respect of Will or meaning (g) Bar. alij in L. hac consultissima §. ex imperfecto C de testa Boer decis 240. The †testament is imperfect in respect of solemnitie wherein some of the Legall requisites necessarie in the making of a testament be wanting (h) Sichard in d. §. ex imperfecto Hereupon diuers writers haue interpreted the worde Iust in this definition to signifie Solemne (i) Viglius in tit de testa ord inst n. 29. Mins eod n. 5. Sichard in Rub. de testa C. n. 2. that is to say furnished with such due rites and formalities as the law requireth Howbeit †all the superfluous solemnities of the Ciuill lawe are vanished out of this kingdome of Englande Onely those solemnities remaine which be Iuris Gentium (k) Infr. ead parte §. 9 So that with vs it is sufficient to the effect of executing the testament that the will and minde of the Testator doe appeare by two sufficient witnesses (l) â— Lindw in statâ—â—tum verb. proba de testa lib 3. prouincial constit cant Sauing where landes tenements and hereditaments are deuised for then the solemnitie of writing is also necessarie and that to be done in the life time of the testator (m) Stat H. 8. an 32. c. prim The †testament is saide to be imperfect in respect of will which the testator hath begun but cannot finish as he would (n) Bar. Sichard alij in L. Hac consultissima §. ex imperfecto C de testa L. si quis ita ff eod tit L. furios C. qui testa fac pos If therfore †whiles the testator is in making his will and whiles hee yet intendeth to proceede further at that present either by adding or diminishing any thing to or from his testament or by altering any thing therein as commonly men do vse to put in put out and change many things before they make an ende (o) Iul. Clar. §. testam q. 7. in fin he be sodainly stricken with sicknes insanity of mind or other impediment whereby he cannot then finish or perfect the same as he would and so die This his testament being imperfect in respect of will is therefore voyde euen touching that which was done which he did intend then to alter before he had made an end (p) d L. si is qui L. iuriosuÌ„ Ias Sichard in L. pen. de Inst sub C. by reason of the defect of the testators consent without which the testament is not of any value (q) Sichard in d. L. hac consultissima § ex imperfecto de testa C. n. 2. Neuertheles not euery testameÌ„t which is tearmed imperfect in respect of will is by and by wholy of no force for in many cases yea and for the most part such testaments are effectual for so much as is already doone as elswhere more aboundantly is confirmed (r) Infr. parte prim § â—â— There is yet †also a further mysterie or secrete meaning included in this word Iuste in that it doeth signifie full or perfect which meaning is this That the testament ought to be compleate not onely in respect of solemnitie and of will as is aforesayd but also that it ought to be perfect in this respect especially that theris no want of any thing which is necessary to the constitution and denomination of a testament (s) Bar. in L. j. de testa ff Viglius Minsing in tit de testa ordin in princ Alciatus in L. Tabernae de verb. sig ff Couar in Rub. de test extr For if †it doe conteine onely a perfect declaration of the testators will and want that which is requisite to make it a testament it may well be tearmed a perfect will for a Codicill a Legacie a gifte in respect of death c. they are all perfect in their kinde (t) Paul de castr in d. L j. de testa ff Nec ideo Musca dicitur imperfectum animal quod sit minor Elephante inquit Couar in Rub. de test extr j part n 3. But it cannot be tearmed a testament much lesse a perfect testament (v) Bar. in d. L j. de testa ff Minsing in d. tit de testa ord This †singular sence and signification of the word iust because some interpreters did not perfectlie apprehend they did reprehend the definition as not perfecte nor conuertible with a testament that is to say not agreeable to a testament alone but common to euery kinde of last will (x) Accurs Paul de castr in d. L. j. de test ff for that they also were perfect euery of them in their seuerall kind (y) Paul de casti in d. L. pri Wherin neuerthelesse they were deceiued for the perfection that is here meant is an absolut perfection such as none other last will hath but onely a testament euen that perfection that giueth both name and nature to a testament (z) Bar. omniuÌ„ Legistarum facillime princeps Bald. Ange. Imol. Aretin in d L. j. de test ff Porcus Viglius Minsing Inst de testa ordi Vasq de succes crea lib. j in prin n. 26. So that the defect was not in the definition but in their vnderstanding To conculde therfore this perfection specially being here vnderstood by this word iust which is proper and peculier to a testament the definition remaineth irreprehensible and is agreeable to a testament only excluding both Codicil Legacie gift in regard of death euery other kind of last will (a) Bar. in d. L. prim de testa ff Viglius Minsing in d. tit de tes a. ordin Instit Couar in Rub. de testa extr part prim hauing euery thing and wanting nothing which appertaineth to the essence of a testament (b) Mantic. de coniect. vlt vol. lib j. tit 4. n. 10 Grass Thesaur com op §. testa q. j. Couar in Rub de testa extr n. 14. 3. 4. sup §. in sin Now †if you
which prooue that this foresaide desinition doeth comprehend both testamentes 10 Vlpian did floorishe before Iustinian 11 The encrease or decrease of solemnities doe not make the testament to swarue from the former definition 12 An vnsolemne mariage is a true mariage in respect of the knot or essence of matrimonie 13 A Military testament though vnsolemne is properly a testament 14 A testament amongest children is properly a testament though vnsolemne 15 A great inconuenience if an vnsolemne testament were not properly a testament 16 What is a testament properly so called 17 In England our testamentes though vnsolemne haue the effect of testamentes properly so called 18 An answer to those reasons which seeme to prooue our testamentes doe not agree with the former definition 19 The former definition is not of any speciall testament 20 The conclusion §. x. VNsolemne testamentes are †so tearmed whereas the solemnities of the Ciuil law aboue meÌ„tioned or any of them are omitted at the making of the testament a) L. j. de iniust rupt irrit testa ff Without the which by the Ciuil law the testaments were voyd b) d. L. j. I. Hac consultissima §. ex imperfect C. de testa Minsing in § sed cum paulatim Instit de testa ord n. 12. except in certaine cases But †with vs in England they are not void for that our testaments are not subiect to the ceremonies of the Ciuill law but are made with all libertie and freedome and as one reporteth Iure militari c) D. Smith tract de repub Ang. lib. 3. c. 7. Quod tameÌ„ indistinctè non admitterem quandoquidem multa priuilegia testamentis militaribus competere videantur qualia sunt cum duobus testameÌ„tis decedere id genus alia de quibus infr §. xiiij quae nostratibus non licet vendicare vt eod §. xiiij Et contra Rogatio testium quae pro solennitate in militari testo requiritur communi interpretum calculo ab Anglis testantibus non ita necessario obseruatur And so wee are no further tied then to the obseruation of those requisites that be necessary iure gentium d) Milites ad solennitates tantum iuris gentium astringi videre est apud Dec. in L. milites C. de testa mil. post Bar. in L. j. C. de sacrosan eccle DD. in L. j. ff de nul testa Quibus adde Tiraquel de priuileg piae causae c. 3. Which requireth but two witnesses e) Dec. in d. I. Milites Mantic. de coniect. vlt. vol. lib. 6. tit 3. n. 9. in fâ—n sauing that in †a legacie or deuise of lande writing is also necessarie and that to bee made in the life of the testator (f) Stat. H. 8. an 32. c. 1. How be it it is not to be doubted but that a man may make his testament in writing wherein he disposeth of his goodes onely and so hee may vse the testimonie of moe witnesses then two Also †if he will hee may procure the witnesses to subscribe their names to the testament yea to euery page of the testament if there be diuers and it is a good a safe course whereby many forgeries might be preuented or more easilie detected But no †man is tied to the obseruation of these cawtels (g) Lindw in c. statutum de testa lib. 3. prouincial constit Cant. verb. probat except as before no not so much as to require the witnesses h) Ratio est quia rogatio testium noÌ„ est iuris gentiuÌ„ aut diuini Ab. Couar alij in c. relatum el. j. detest a. extr Tiraquel de priuilegijs piae causae c. 3. quo posito constat Anglos pleniore libertate frui in condendis testamentis quaÌ„ quae vel ipsis militibus indulta fuit a iure ciuili quo si communi sit credenduÌ„ opinioni rogatio testium est necessaria Iul. Clar. §. testim q. 58 quamuis non desint qui contendunt rogationem huiusmodi non ad solennitatem exigi sed vt ex eo facilius diiudicari possit Militem proferendo verba quae sonant in testm ea deliberatè seriò animoque testandi non ioco non perfunctoriè protulisse vt saepè solent alià s Tiraquel de priuileg piae causae c. 3. Wesenb coÌ„sil 38. n. 65. Adde quod in testameÌ„to inter liberos vbi atteÌ„ditur solennitas iuris gentium noÌ„ est necessariuÌ„ vt testes sint rogati Grass Thesaur coÌ„ op §. testm q. 11. Clar. §. testm q. 18. Dec. consil 610. Denique nec in testo ad pias causas in cuius confectioneÌ„ adhibendaesunt iuris gentiuÌ„ solennitates requiritur vt testes sint rogati vt habet com op teste Couar in c. relatum el. j. de testa infr §. 16 so beneficial are the laws of this realme to the subiectes of the same But †here me thinkes a question doeth offer it selfe to be resolued If all our testamentes in England be vnsolemne and †if by the Ciuill lawe regularlie all vnsolemne testamentes bee voide in so much that if but one onely solemnity be omitted the testament is no testament i) L j. de iniusto rup irrit testo ff L. ex imperfect L. si vnus de testa C. Howe doeth the definition of a testament aboue mentioned borrowed out of the Ciuill lawe agree with our testamentes heere in England being al vnsolemne testamentes It should seeme we had need to seeke a new definition that I haue erred together with other our common and temporall lawyers of this realme in borrowing that definition which agreeth so iust with their testamentes with which testamentes our testamentes doe not agree For if the definition did agree with both testaments they should agree betwixt theÌ„selues but the testaments doe not agree betwixt themselues therfore the definition doth agree but with one alone If it agree but with the one and we confesse it doeth agree with their testaments how then can it agree with ours also To this question breefely my opinion is this that the †definition doeth comprehend both solemne and vnsolemne testaments and therefore is agreeable to our testaments The antecedent I prooue thus †The Definition as appeareth was made by Vlpian k) Vlp. in L. j. de testa ff this Vlpianus †is one of those auncient lawyers whose aunswers definitions rules and conclusions are contained in the digestes l and who florished no lesse then two hundereth yeeres before Iustinian m) Iustinianê° adeptuê° fuit Imperium an Christi nato 527. Vlpianus autem floruit loÌ„ge ante nimirum tempore Alex. Seueri Imp. Ro. paulo plus CC. annis post Christum natum Cagnol in L. vnic si quis ius diceÌ„ti ff Which Iustinian did adde certaine other solemnities without the which he ordained that the testament should be voide n) §. sed cùm paulatim verb. sed his Instit de
testameÌ„t is made being coÌ„tented with fewer solemnities then are requisit in other places g) Andr. Gail lib. 2. practic obseruac 123. Soarez lib. recep senten verb. testmÌ„ n. 72. Baptist Villabol lib. com op verb. testmÌ„ n. 57. Gabr. Rom. lib. 4. tit de testa conc 4. Vasq de success crea §. 21. n. 47. 48. Paris coÌ„sil 12. n. 45. vol. 3. quorum opinio est proculdubio communis licet aliter sentiat gloss in d. §. ex imperfecto Which †effect our vnsolemne testaments haue wherin an able willing executor is named For neither he is reputed to die intestat which appointeth such an executor h) Hoc nemo neseiâ— qui vel mediocriter in alterâ—tâ—o â—oro versatur but is plainely euen in laws of strict interpretatioÌ„ I meane the statuts of this realme tearmed a testator i) Stat. Ed. 3. an 4. c. 7. an 25. c. 5. stat H. 8. an 21. c. 5. alijs penè infinitis locis Nether is the administratioÌ„ of his goods coÌ„mitted to the widdow or next of kin by the auctoritie of the ordinarie according to the statute as in case of one dying intestat k) Id quod non semel dictum est sed saepius est dicendum But the executor deriuing his auctority froÌ„ the testator onely doth succeed in the place of the dead man by force of the testament according to the testators meaning and disposition l) Plowden in casu inter Greisbrook Fox fol. 280. his verbis Lez executores nosmes sount executores magnetent deuant probate del testament Car le probate nest que confirmation allowance de ceo que le testator fist c. lit ils poyent executeur deuant probate c. Wherefore an vnsolemne testament is euen properly a testament Which conclusion being true the definition is not more proper to the one then to the other Now for the answering of the argumentes obiected First †where it is obiected that al vnsolemne testamentes are voide although one onely solemnitie were omitted That is true onely by the Ciuill lawe But it doeth not therfore follow that an vnsolemne testament is no testament in respect of his definition m) Vasq de success crea §. 11. n. 48. how so euer it haue not the same effect to all intentes in lawe But if it bee therefore a testament because it taketh effect in lawe then are all our testamentes though vnsolemne good and sufficient testamentes because they haue as much force without those solemnities as if they had them al and C. more n) Soarez lib. recep sen verb. testmÌ„ n. 72. Grass d. §. testmÌ„ q. 11. Clar. §. testmÌ„ q. 13. And. Gail lib. 2. pract obser c. 123. Vasq de success crea §. 21. n. 47. Sichard in L. Hac consulâ—ss § ex imperfecto C. de testa Secondly where it is obiected that the definition dooth agree to their testamentes and that their testaments and ours doe not agree betwixt them selues I answere that the †definition is not of any speciall testament that is to say it is not of a solemne testament alone nor of an vnsolemne testament alone nor of a written testament alone nor of an nuncupatiue testament alone nor is conuertible with any speciall kinde of testament mencioned in any part of the Ciuill lawe from the which our testamentes made in England doo differ For indeede if the definition were made of any speciall testament alone mencioned in the lawe from the which our testamentes doe differ Then could not our testamentes differing from the testament defined agree with the definition o) Quod enim differt à definito differt à definitione vt quod non est homo non est animal rationale Euerard Olden loc à definicione lo. Casus Oxon. tract de dialect fo 225. But the definition is of a testament which is also common to all those or any other kinde of testamentes aswell solemne as vnsolemne as appeareth before and therefore the testament so defined although it bee speciall in respect of the definition yet is it generall in respecte of the seuerall kinde of testamentes aboue recited p) Testm superius definitum genus est subalternum Id quod potest esâ—e species genus diuerso tamen respectu nimirum species respectu superioris id est sententiae Genus respectu inferioris id est paganici militaris scripti nuncupatiui solennis insoleÌ„nis testamenti Huiusmodi autem testamenta differuÌ„t non numero sed specie sic testamenta cuius supra est definitio posita genus est quia praedicatur de pluribus differentibus specie and is verified of euery of them solemne or vnsolemne and so consequentlie is common aswel to our testaments as to theirs distributing both name and nature to euery speciall testament q) Id quod est generi proprium OldeÌ„ Topic Legal Loco a genere howe so euer they differ amongest them selues r) Species namque performaÌ„ discrepat à specie Conueniunt autem omnes species in suo genere Olden Eâ—erard vbi supra To †conclude therefore we neede not to seeke any newe definition but rather they themselues by reason of their newe solemnities deuised since the making of the olde definition s) Alciat in L. j. C. de sacrosanc eccle n. 12. Indeed we haue not these solemne testaments of the Ciuill law but that in respect we are the more happy and our law the more godly Of a written testament 1 What is a written testament 2 A testament nuncupatiue is not made a written testament by after writing except in certain cases 3 Some thinges common both to a written and to a nuncupatiue testament 4 Some thinges peculier to a written testament 5 Deuise of landes tenementes or hereditamentes is not good without writing 6 In a written testement it is not necessarye that the witnesses be priuy to the contentes 7 Causes wherefore testators many times would haue their willes secret 8 In what manner the testament is to be made when the witnesses know not the contentes 9 The witnesses must be learned and must write their names on the testament when they doe not know the contentes thereof §. xj A Written a) TestamentuÌ„ in scriptis ansit alia species à testo solenni examinaui supr §. 8. in margine testament is †that testament which at the time of the makinge thereof is committed to writing b) Minsing in §. sed cuÌ„ paulatim Instit de testa ordin By which wordes at the time of the making thereof are excluded †such testaments as are afterwardes put in writing For beeing made first by worde of mouth they doe still remaine nuncupatiue notwithstanding the reducing thereof to writing Minsing in §. fin Instit de testa ord Vnlesse the testament being first made by word and afterward in the life
alium patronum quaerat qÌ„ AugustinuÌ„ c. vlt. 17. q. 4 How bee it it seemeth that if the testament were not in fauour of his children but of some other of his kinne that then the testament ad pias causas were to bee preferred vnlesse they did prooue the testament made in their fauour to be the latter t) Mantic. de coniect. vlt. vol. lib. 6. tit â— n. 43. Of testamentes vnpriuileged 1 Vnpriuileged testaments what they are §. xvij VNpriuileged testamentes are they †which haue not any freedome or benefite contrarie to the common course of ordinarie lawe but are tied to such obseruations as the law requireth and hath appointed regularly for all testaments Of which formes wee shall discourse heereafter when oportunitie shall serue THE SECOND PART OF THIS TESTAMENTARIE TREATISE WHEREIN IS DECLARED what persons may make a Testament and who may not so doe The Paragraphs or Chapters of the second parte WHether euery person may make a testament § 1. Of Children § 2. Of madfolkes and lunaticke persons § 3. Of Idiots and fooles § 4. Of olde men § 5. Of him that is drunk § 6. Of Slaues and villaines § 7. Of Captiues and prisoners § 8. Of a woman couert § 9. Of those which be deafe and dumbe § 10. Of him that is blinde § 11. Of traitours § 12. Of Felons § 13. Of Heretikes § 41. Of an Apostata § 15. Of manifest vsurers § 16. Of incestuous persons § 17. Of Sodomites § 18. Of a libeller § 19. Of him that killeth himselfe § 20. Of him that is outlawed § 21. Of an excommunicate person § 22. Of prodigall persons § 24. Of him that hath sworde not to make a testament § 25. Of him that is at the very point of death § 26. Of ecclesiasticall persons § 27. Of Kinges § 28. WHETHER EVERIE PERSON MAY MAKE A TESTAMENT The second part 1 Euerie person may make a Testament which is not forbidden 2 Diuers persons forbidden to make their testaments 3 Some forbidden for want of discretion 4 Some forbidden for want of freedome 5 Some forbidden for want of their principall sences 6 Some forbidden by reason of some hainous crime §. j. IN the second part of this Testamentarie treatise shal be declared God willing what person maye make a testament who may not so do Wherein it maye be set downe for a rule that †euery person both man and woman Christian Iewe sound or sicke and generally of what state or condition so euer he or she be hath full power and liberty to make a testament or last will a) Instit Quibus non est permissam testa fac in prin gloss ibidem Suno de Praetis de inter vlt. vol. lib. 2. inter 1. sol 4. Vasq de success progress lib. 1. § j. Michael Grass Thesaur com op § testmÌ„ q. 20. and may therein dispose of his goods and cattelles b) Quibus enim permissum est testaâ— eisdem codicillari legata relinquere Roland tract de codicil n. 6 Michael Grass Thesaur com op §. Codicil n. 2. sauing such persons onely as be prohibited by law or by custome c) Est enim edictum de testameÌ„tis plubitoriuÌ„ certarum personarum gloss in §. j Instit Quibus non est permissum testa fac Grass Thesaur com op testmÌ„ q. 20. n. 1. Therefore if we shall diligentlye examine what persons are forbidden by lawe or by custome it will easely appeare who they are that can make a testament or dispose of their goods and cattelles And albeit †many persons are forbidden by lawe or custome to make testamentes yet they are reduced of some vnto fower or fiue sortes d) Bar. Bald in L. Si quaeramus ff de testa Lindw in c. cum viris de testa lib. 3. prouincial constit Cant. Amongest the first †are comprehended such as want discretion or iudgement as children e) Infr. ead part §. 2. madde folkes f) Infr. ead part §. 3. and idiots g) Infr. ead part §. 4. to whom also I may ioyne those persons who be so very olde that they become childishe againe h) Infr. ead part §. 5. and him that is drunke i) Infr. ead part §. 6. Amongest the second †sort are comprehended such as lacke freedome full liberty as bondslaue slaues and villeines k) Infr. ead part § 7. vnto whome may be added captiues and prisoners l) Infr. ead part §. 8. and women couert m) Infr. ead part § 9. In the third sort †are contained such as lacke some of their principall senses namely such as bee dombe and deafe n) Infr. ead part §. 10. and blinde o) Infr. ead part §. 11. Among the fourth sorte †are placed such as for some heinous crime are depriued of abilitie of making of testaments as traitors p) Infr. ead part §. 12. felons q) Infr. ead part §. 13. heretikes r) Infr. ead part §. 14. apostataes s) Infr. ead part §. 15. many others t) De quibus infr ead part §§ 16 17 18 19 20 21 22. And last of all others †for other causes hereafter specified v) Infr. ead part §§ 23. 24. cum sequentibus vide Io. ab Imol. in c. qua ingredieÌ„tibê° de testa extr vbi haec sunt carmina Testari nequeunt impubes religiosus Filius in sacris morti damnatus obses Crimme damnatus cum muto surdus ille Qui maiestatem laesit sit caecus ipse Of Children 1 At what age a testament may be made of landes 2 At what age a testament may be made of goods 3 What if the minor be doli capax or a souldier or the testament be ad pias causas 4 What if the testament be made with the auctoritie of the tutor 5 What if the testator doe liue vntill he come to lawfull age 6 A boye after 14. yeeres a woman after 12. maie make a testament of their goods 7 VVhat if the last day of the yeere be not finished 8 VVhat if the testament made during minority bee approoued by the testator after he be of full yeeres §. ij IF we wil vnderstand when a child may make his testament we must distinguish whether the testament be of landes or of goods If of landes †it is prouided by the statutes of this realme that willes or testamentes made of any mannours landes tenementes or other hereditaments by any person within the age of 21. yeeres shall not bee taken to be good or effectuall in law a) Stat. H. 8. an 34. c. 5. for vntill that time by the common laws of this realme they be accompted infantes b) Doct. Stud. lib. j. c. 21. lib. 12 c. 28. If †of goodes we must distinguish whether the child bee man or woman A boye cannot make his testament before hee haue accomplished the age of 14. yeeres nor a wench before
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
alibi ê‘ eundem intersuos casus an 24. Hen. 8. quem locum diligenter obserues cupio or vnlesse so much onely were lefte vnto their said children as would serue for their competent sustentation or nourishment h) Plad ita â—ure Can. c. cuÌ„ haberet de eo quit dax in vx ext quod c. locum habet non soluÌ„ in spurijs sed etiam in incestuosis vt est com op teste Decio in c. in patria de prob extr n 39. Gabr. lib. 6. de alimen concl 1. n. 5. or vnlesse the children were appointed bare executors without any other benefit In which cases the testamente is good i) Inf. 5. part §. 7 Petr. Duen reg 366. Limitae 9. verb. filius Simo de Praetis de interp vlt. vol. lib. 5. fol. 17. n. 27. as heereafter more at large k) Infr. part 5. §. 7. Of a Sodomite 1 VVho is a Sodomite 2 A Sodomite can not make a testament 3 VVhat if he were neuer condemned of Sodomitrie §. xviij A †Sodomite that is to say a) Sodomia autem dicitur non solùm illud nefandum peccatum inter masculos sed etiaÌ„ flagitium illud contra naturam cum faemina Et haec opinio communis est contra Socin contendentem istiusmodi peccatum non sodomiam sed extraordinariam quandam pollutionem dici debere quem DD. communiter reprobant vt refert Viuius lib. com op verb. sodomia Dec. in L. j. de secundis nuptijs n. 9. C. Card. in clem 1. de consang aff q. 13. he or she that dooth commit that wicked horrible sinne against nature as did the Sodomites whereof mentioÌ„ is made in the holy scripture b) Gen. c. 19. is †prohibited to make a testament c) Spec. de Instr edit §. compendioso n. 5. and to bequeath his goods and cattelles And albeit hee were neuer conuicted †or condemned thereof in his life time yet I suppose this exception may be obiected against the probate of the testament d) Dec. in L. 1. de secundis nup. C. Simo de Praetis de interp vlt. vol. lib. 2. dub 1. soluc 4. n. 97. for that he was intestate at the time of the fact committed e) Simo de Praetis Dec. vbi supra Adde Cardinal in clem eos de sepul q. 19. Of a Libeller 1 VVhat is a famous Libell 2 A Libeller intestable §. xix A †Famous a) Famosum quandoque in malam partem sumi multis exemplis osteÌ„dit Petrus à Placa epit delict c. 3. Libell is a writing made to the infamie of any man published abroad to that ende b) Summa Angel Summa Siluest verb. libellê° and he that †is condemned for deuising writing or publishing the same is thereby depriued of the abilitie of making a testament or disposing of any his goods or cattelles c) L. si cui §. si quis ff de testa L. vnic de famos libel C. Petr. á Pla. epit delict lib. 1. c. 3. Of him that killeth himselfe §. xx IF any maÌ„ do wittingly willingly kil himself his testameÌ„t if he made any is voyd a) L. si quis filio §. eius de testa ff L. 2. qui testa fac poss C. both concerning the appointment of the executor and also concerning the legacie or bequest of any goods for they are confiscate b) Vasq de success resoluc lib. 1. §. 3. n. 31. Of him that is outlavved 1 An outlawed person looseth his goods and benefite of the lawe 2 VVhat if the action be personall 3 VVhat if the action be vniust 4 VVhether an outlawed person may make his testament 5 VVhat if the prince giue the goods to the executor whether is he therefore chargeable with the paiment of legacies 6 He that is outlawed dooth some time forfeite not goods onely but lands also 7 An outlawed person may make his testament of landes not forfeited 8 An outlawed person may assigne tutors testamentarie to his thildren 9 Certaine other cases wherein hee that is outlawed may make his testament §. xxj AN †outlawed person is not onely out of the protectioÌ„ of the Prince out of the aid of the laws of this realme a) Fitzher Nat. Br. fol. 161. Termes of law verb. vt legarie but also all his goods and cattelles be forfeited to the Prince by meanes of the outlawrie b) Doct. Stu lib. 2. c. 3 although †hee were outlawed but in an action personall c) Termes vbi supr and although †also the action peraduenture were not iust neuerthelesse his goodes and catelles are forfeited by reason of his contempt in not appearing for it is a maxime in the common lawes of this realme that he that is outlawed doeth forfeite all his goods and cattelles to the Prince without distinction whether the action be iust or vniust d) Doct. Stu. lib. 2. c. 3 And therefore †it followeth that he that is outlawed can not make his testament of his goodes so forfeited e) Iul. Clar. §. testmÌ„ q. 19. In so much that †if the prince hauinge seased the forfeited goods of the testator should giue the same againe to the executor neuerthelesse the testament is voide in respect of such goods neither can the legatarie recouer the same at the hands of the executor f) Doc. Stu. lib. 1. c. 6. for by the forfeiture and seasin the propertie thereof is altered and so ceasing to bee the goodes of the testator doe not charge the executor as assets g) Doc. Stu. lib. 2. c. 3. lib. 1. c. 6 If †the testator be outlawed by an outlawrie for felonie then he doth not onely forfeite his goods and cattelles but also his landes and tenementes whether they be holden in fee simple or for terme of life h) Termes of law verb. vt legat And hee that is thus outlawed can neither make his testament of those goods nor of those landes for they are none of his Howbeit †I suppose that he that is outlawed in an action personall may make his testament of his landes for they are not forfeited i) Vide quae sequuntur hoc §. litera L. quo etiaÌ„ tendit quod scripseruÌ„t Brook Tit. Gard. n. 6. Perkins tit grants fol. 6. Or if †he doe assigne tutors to his children as within the prouince of Yorke and other places by custome there vsed parentes may doe k) Infr. part 3. § vij the same assignation is to be confirmed l) Is enim qui nostratibus dicitur vt legatus parùm differt à relegato Cùm relegatio sicut vtlegatio nihil aliud est quà m exilium temporarium L. relegati ff de paen Quinimo relegati quandoque prout etiam vtlegati bona confiscata sunt Iul. Clar. §. testmÌ„ q. 22. Attamen non amittit testmÌ„ factioneÌ„ relegatus quoad bona si quae sint non
per feder n. 14. psal 82. vers 6. and therfore what he commaundeth ought to be obeyed without resistaunce m) Bald. in auth hoc ampliê° C. de fidei com n. 10. quem velim videas if it doe not repugne the lawe of God immortall n) Act. Apost c. 4. vers 19. c. 5. vers 29. To be shorte if a king might not dispose of his owne kingdome at his owne pleasure then his state were not so good as the state of his subiect o) Oldrad consil 94 in fin for the meanest subiect may freelie dispose of his own p) Supr ead part in prin Besides which vrgent reasons whereby appeareth the roote and life of this humaine lawe there bee sundrie pregnant examples which as branches springing from that liuelie roote haue in sundrie ages and countries brought foorth faire and goodlie fruite whereby the force and efficacie of that lawe hath beene made manifest to all the world let these fewe suffice for a taste It is recorded that Attalus a king in Asia the lesse did in his testament institute the Romane people his heire who by vertue of that testament did enioie the kingdome q) Florus lib. 2. Hottoman illustr quaest c. 1. likewise that Alexander king of Aegypt did bequeath vnto the same Romaine people the kingdomes of Alexandria and Aegypt r) Cicero Ora. 1. pro lege agrar alià s lib. 2. c. 15. Ptolemaeus the king of Aegypt gaue away the kingdome of the Cyrens s) Hottoman d. c. 1. Vnguinus was king of the Gothes by the appointment of Haldanus t) Eodem loci To come neerer I meane in respect of place not of time we maie reade how Prasutagus one of the kinges of this realme of England a little after the death of Christ did make the Emperour Nero his heire v) Cornel. Tacitus lib. 14. Camden fol. 290. alià s fol. 355. And diuers other kinges haue doone the like x) Quorum meminit Gentilis disp 2 fol. 45. So that it is neither newe or straunge that kinges haue by their testamentes giuen away their kingdomes from those who otherwise should haue enioyed the same Notwithstanding †aswell by the ciuill law y) Bar. Angel in L. prohibere §. planè ff quod vi aut clam Ias in L. debitoâ—um C. de pactis Bald. in proem de feudis n. 32. Vasq de succes crea §. 26. lim 3. as by the cannon lawe z) Innocen Cardinal Imol. Panor Io. de Anan alij in c. intelecto de iureiur extr Felin in c. dilecti de maior ob extr with the which lawes the lawes of this our realme of England doe in this point seeme to ioyne hands a) Fitzherb Abridg. tit deuise n. 5. tit execut n. 108. hisce verbis L opinion de plus Iustices Doctors del cannon ciuil ley assembles in le Eschequer chambre quant Roy Henry quart morust fuit que il puit saier testmÌ„ legacy des biens que il auer mez dez biens de Royalme cest assauoyer ancient Corone Iuells il ne puit Eodem tendunt quae à Guiliel Lamberto viro doctissimo traÌ„scripta sunt sub hac verboruÌ„ serie Debet verò de iure rex onmes terras honores omnes dignitates iura libertates Coronae regni liuius in integrum cum omni integritate sine diminutione seruare defeÌ„dere c. lib. de priscis Angl. legib tit de reg offic fol. 130. It is vnlawfull for a king to giue awaie his kingdome from his lawfull heires for the confirmation whereof diuers writers vse diuers reasons b) De hac q. consulas FraÌ„c Hotto iurisconsultoruÌ„ omniuÌ„ quos ista peperit aetas celeberrimuÌ„ lib. 1. illustr quaest c. 1. But †amongest all their reasons I see no reason to induce me to aduenture anie further into the examination of this deepe and dangerous question much lesse to proceede to the conclusion not onelie because the same beeing so high an obiect dooth farre exceede the slender capacitie of a meane subiecte but also for that this princelie controuersie as it hath seldome receiued ordinarie triall heretofore so hereafter if the case were to be argued in verie deede verie likelie it is to bee vrged with more violent arguments and sharpe syllogismes then by the vnbloodie blowes of bare words or the weake weapons of instrumentes made of paper and parchment And on the other side to bee answered with flatte denials of greater force and distinctions of greater efficacie then can proceede from anie legall or logicall engine and in the end to be decided and ruled by the dead stroke of vnciuill and martial cannons rather then by anie rule of the ciuill or cannon lawe Videant quorum interest THE THIRD PART OF THIS TESTAMENTARIE TREATISE WHEREIN IS EXAMINED what thinges may be deuised by will The Paragraphes or Chapters of the third parte WHat thinges are examined in this third part § 1. Landes tenementes and hereditamentes can not passe by will but in certaine cases § 2. Certaine cases approoued by custome wherein it is lawfull to bequeath or deuise landes tenementes and hereditamentes § 3. Certain cases auctorized by the statuts of this realme whereby it is lawfull to deuise landes tenementes and hereditamentes § 4. Of the deuise of goods and cattelles § 5. Diuers kindes of goods and cattelles not deuisable by will § 6. Of the assigning of tutors and disposing of childrens portions § 7. Of committing the tuition of children and custodie of their portions within the prouince of Yorke § 8. Who may appoint a tutor § 9. Who may be appointed tutor § 10. To whom a tutor may be appointed § 11. Of the manner of appointing tutors § 12. Of the office and auctoritie of a tutor § 13. By what meanes the tutor-ship is ended § 14. What quantitie of landes may be deuised § 15. What quantitie of goods or cattelles may be deuised § 16. If the testator doe in fact bequeath more then he may by lawe which legacie is to be preferred or what other course is to be followed § 17. VVHAT THINGES ARE EXAMINED IN THE THIRD PART The third part 1 The thirde principall parte deuided into two members 2 The first member three-foulde §. j. IN the third parte of this Testamentarie treatise there is to bee shewed firste what thinges then how much the testator maie dispose or deuise by his testament Concerning the former of these it shall not be a misse to speake first of the bequeathing or deuising of landes tenementes and hereditaments a) Infr. ead part § §. 2 3 4. Secondlie of the bequeathing or deuising of goods and cattelles b) Infr. ead par §§ 5 6. and thirdlie of the committing of the tuition of children and custodie of their portions and rights during their minorities c) Infr. ead part §§ 7 8 c. Of the deuise of landes 1 The
it is sufficient if the landes and tenementes be holden in burgage k) Brook tit deuise n. 22 For that not he onelie is said to holde in burgage who is a citizen or burgesse of the place where the lands or tenementes be and holdeth of the kinge or other lorde landes or tenementes lying in the citie or borough yeelding therfore to his said lord a certaine yeerelie rent but he also that is no citizen or burgesse which holdeth of anie lord landes or tenementes in burgage yeelding vnto him a certaine rente by the yeere l) Old tenures verb. burgage which tenor in burgage is but a kind of tenure in soccage m) Litleton tit burgage in princ Howbeit there is this difference betwixt citizens burgesses and freemen and those which be not citizens burgesses or freemen that is to saie citizens burgesses and freemen maie bequeath their burgage landes to Mortmain which others can not doe n) Brook Abridg. tit custome n. 7. 38. 41. tit deuise n. 22. 28. Doct. Stud. lib. 1. c. 10. And in some borough by the custome thereof a man may deuise by his testament lawfullie made his landes and tenementes which hee hath in fee-simple within the same borough at the time of his death and by force thereof the deuisee after the death of the testator maie enter into the tenementes to him deuised to haue and to holde to him after the forme and effect of the deuise without anie libertie of seasin thereof to be made vnto him o) Litleton tit burgage But if there be two iointe tenauntes in fee-simple within one borough where the landes and tenementes within the same be deuisable by testament if one of the said iointe tenauntes deuise that which to him belongeth by testament and die this deuise or legacie is voide p) Principall grounds fol. 20. b. The reason is for that no deuise can take effect till after the death of the testator who did bequeath and deuise the same but by his death all the lande dooth incontinentlie by the lawe of this realme come to the suruiuor who neither claimeth nor hath anie thing by deuise but of his owne right by the suruiuâ—ir according to the course of the lawe of this lande and for this cause such deuise is voide q) Principall grounds fol. 20. b. An other case there was also some-times vsed and practised of deuising lands tenements and hereditamentes by willes to certaine vses intentes and trustes which willes or testamentes of landes tenementes and hereditamentes in feoffees handes were for the time accompted and taken for good r) Stat. H. 8. an 27. c. 10. But this custome was reformed in manie things for diuers good considerations namelie because by the common law of this realme lands tenements hereditaments be not deuisable by testament and also for that such deuises were not onelie hurtfull to the heire of the testator beeing manie times thereby disinherited but also for that diuers other inconueniences did by reason thereof insue as that the lordes lost their wardes mariages reliefes harriots escheates aids Pur faire fitz chiualer pur file marier Furthermore by occasions of suche willes and other conueiaunces to secrete intentes vses and trustes men could not be certainelie assured of anie landes by them purchased nor knew not against whom they should vse their actions executions for their rights and titles Besides this men married lost their tenaÌ„ces by the curtesie women their dowries finally the prince himselfe lost the profits of the landes of persons attainted For reformation whereof a statute was made in the time of King Henrie the eight and enacted as followeth s) d. Stat. H. 8. an 27. c. 10. That is to say that where anie person or persons stand or be seized or at anie time hereafter shal happen to be seized of and in anie honors castels mannors landes tenementes rentes seruices reuersions remainders or other hereditamentes to the vse confidence or trust of anie other person or persons or of anie body politike by reason of anie bargaine saile or feofment fine recouery couenant contract agreement will or otherwise by anie maner meanes whatsoeuer it be that in euerie such case all euerie such persoÌ„ persons bodies politike that haue or hereafter shall haue anie such vse confidence or trust in fee simple fee taile for terme of life or of yeeres or otherwise or anie vse confidence or trust in remainder or reuerter shall from hence-foorth stand and bee seized deemed and adiudged in lawfull seizon estate and possession of and in the same honors castels manors lands tenements rentes seruices reuersions remainders and hereditaments with their appurtenances to all intents constructions and purposes in the lawe of and in such like estates as they had or shall haue in vse trust or confidence of or in the same And that the estate title right and possession that was in such person or persons that were or hereafter shall be seized of anie landes tenements or hereditaments to the vse confidence or trust of anie such person or persons or of anie bodie politike bee from hence-foorth cleerelie deemed and adiudged to be in him or them that haue or hereafter shall haue such vse confidence or trust after such qualitie maner forme and condition as they had before in or to the vse confidence or trust that was in them And bee it further enacted by the authoritie aforesaid that where diuers and many persons be or hereafter shall happen to be iointlie seized of and in anie landes tenements rents reuersions remainders or other hereditaments to the vse confidence or trust of anie of them that bee so iointlie seized that in euerie such case that those person or persons which haue or hereafter shall haue any such vses confidence or trust in anie such landes tenements reuersions remainders or hereditaments shall from hence foorth haue and bee deemed adiudged to haue only to him or them that haue or hereafter shall haue such vse confidence or trust such estate possession and seizon of and in the same lands tenements rents reuersions remainders or other hereditaments in like nature maner forme condition and course as he or they had before in the vse confidence or trust of the same landes tenements or hereditaments sauing and reseruing to all singular persons and bodies politike their heirs and successors other than those person or persons which be seized or hereafter shall be seized of anie landes tenementes or hereditaments to anie vse confidence or trust all such right title entree interest possession rents and action as they or anie of them had or might haue had before the making of this acte And also sauing to all and singuler those persons and to their heires which be or hereafter shall he seized to anie vse all such former right title entree interest possession rents customs seruices and action as they or anie of them might haue had to his or their
Crowherst in the coūty of Surrie knight deceased Nor to the will or deuise of sir Peter Filpot knight deceased Nor the wil or deuise of Richard Creswel late of Mattingley in the countie of South gentleman deceased nor to the will or deuise of Thomas Vnton late of the countie of Berk. gentleman deceased sonne of sir Thomas Vnton knight also deceased or shal be in anie wise preiudiciall or hurtfull to anie person or persons for or concerning anie manours landes tenements or hereditaments conteyned or specified in the said willes or deuises or in any of them but that the said last willes and deuises and euery of them shall stande abide remaine and be in the same case force and effect in the law to all intents purposes and constructions as the said last willes and deuises and euerie of them were before the making of this act declaration and explanation and of none other effect or force this act declaration explanatiō or anie of them or anie thing therein contained to the contrarie thereof in anie wise notwithstanding Prouided alwaie and bee it enacted by the authoritie aforesaid that all and euerie person and persons from whom the king or other lord or lordes shall take anie manours landes tenementes or hereditamentes for his or their full thirde part or to make vp his or their third part shall and maie by authoritie of this present act in anie of the cases aforesaide vpon his or their bill exhibited in the kinges courte of Chauncerie against al and euerie such person and persons which shall be entitled by or vnder anie such will gifte disposition or deuise to the other two partes haue such contribution or recompence for the same as by the chancellour of England or by the keeper of the great seale of England for the time being shall be thought good and conuenient Of the deuise of goods and Chattelles 1 All manner of goods and chattelles may be deuised by will certaine cases excepted 2 The rule of the deuise of landes contrary to the rule of disposing of goodes §. v. COncerning the secōd kind of thinges deuiseable by testament namelie goods chattelles this may be deliuered for a rule That all manner of goods and chattelles maie be bequeathed or deuised by will or testament a. L. caetera ff de leg 1. §. tam corporales Inst de legat ibid. DD. Lindw in c. statutum de testa lib. 3. prouincial constituc Cant. Perkins tit deuise c. 8. fol. 99. certaine cases onelie excepted b) De quibus §. pro◠Which rule is cleane contrarie to the former of the deuise of lands tenementes and hereditamentes for they can not be deuised sauing where some custome or statute hath gained libertie of bequeathing or deuising of the same c) Vt supr ead part §§ 2 3 4. But here in steede of the Negatiue rule is set downe the Affirmatiue the exceptions of which rule are prosecuted in the next Paragraphe Diuers kindes of goodes not deuiseable by will 1 Goods which a man hath iointlie with an other can not be deuised by will 2 What if the other ioint-tenannt be made Executor whether is the bequest good 3 Goods which a man hath as administratour cannot be giuen by will 4 Euerie administrator accomptable to the ordinarie 5 Difference betwixt the executor and the executor of an administrator 6 Goods of the realme that is to saie of the auncient crowne and iewelles can not bee giuen by will 7 Goodes belonging to a church or hospitall can not be deuised 8 Goodes belonging to a citie boroughe or communaltie can not be deuised 9 Church goodes can not be deuised 10 Things which descend to the heire and not to the executor are not deuiseable by will 11 Whether the corne growinge vpon the grounde whereof a man is seased in right of his wife be deuiseable 12 Whether corne on the ground be deuiseable by the lessee the lessor being seased in right of his wife 13 Corne growing deuiseable by the tenaunt by the curtesie of England 14 Corne growing deuiseable by the tenaunt in dower 15 Whether corne growing on lande morgaged bee deuiseable 16 Whether corne growing maie be deuised by the testators daughter where a sonne and heire is afterwardes borne or wherein the mother dooth recouer her dower 17 The testator cannot bequeath that which is an other mans §. vj. FIrst a man can not giue or bequeath by wil any of those goods or catelles which he hath iointlie with an other for if he should bequeath his portion thereof to a third person this bequest is voide by the laws of this realme a) Perkins tit deuise fol. 101. Doct. Stud. lib. 1. c. 6. licet ius ciuile contrarium dictet L. cùm alienum C. de legatis and the suruiuor which had those goodes or cattelles iointlie with an other shal haue that portion so bequeathed notwithstanding the said will b) Hoc verum iure regni nostri Angliae Doct. Stud. lib. 2. c. 25. secùs iure ciuili vt latè per Olden de action class 4. action pro socio In so much that if the testator make the other iointenaunt his executor against the which executor an action is commenced in the ecclesiasticall courte in a cause of legacie neuerthelesse the executor is not to be adiudged to possesse the said goodes as executor or by right of the will but by the title and right of the suruiuor c) Doct. Stud. lib. 2. c. 25. and so the executor is to be dismissed and the will in that respect to be iudged voide d) Vide supr ead part §. 3. n. 8. Secondlie an administrator can not make a testament of those goods which he hath as administrator to anie person dying intestate e) Brook tit administrator n. 7. Fitzherb eod tit n. 3. because he hath not anie such goodes to his own proper vse f) Plowd in cas inter Bransby Grantham fol. 525. 526. but ought there withall to paie the debtes and legacies of the dead person and to distribute the rest if anie thing doe remaine in Godlie and charitable vses g) c ita quorundam de testam lib. 3. prouinci const Cant. stat Ed. 3. an 31. c. 11. and for that cause euerie administrator is accomptable to the ordinarie for such distribution of the goods of the deceased committed to his administration h) d. Stat. Ed. 3. an 31. c. 11. And albeit an executor of an executor maie administer the goodes of the former testator i) Stat. Ed. 3. an 31. c. 25. yet the executor of an administrator can not administer the goodes of the former deceased but a new administration is to be cōmitted by the ordinarie of all the goods vnadministred by the late administrator as if he had also died intestate any testamēt or assignatiō of an executor by him notwithstāding k) Brook Abridg. tit administ n. 7. Principall grounds fol. 61.
peradueÌ„ture if the testator had knowen that it had been an other maÌ„s he wold not haue bequeathed the same d) d. §. non soluÌ„ Instit de lega yet neuertheles both by the laws ecclesiastical e) c. filius de testa extr ibi Couar in fin Panor in repe c. cùm esses eod tit n. 18. Bar. tract de differentijs interius can ciuil n. 86. also by the laws of this realm f) Plowd in cas inter Bransby Grantham huc etiam pertinent quae superiùs scribuntur in initio huius §. de coemptore seu condomino disponente no maÌ„ can bequeath or deuise anything by his testament or laste will sauing onelie that which is his own and that which he hath to his proper vse g) Plowd vbi sup and if hee do bequeath anie other mans the bequest is void so that the executor is neither bound to redeeme the thing for the legatarie nor to pay the value thereof h) Couar Panor Sichard vbi supra and that without distinction whether the testator did know or not know whether the thing bequeathed were his own or an other mans i) Si enim ignorasset reÌ„ esse alienam tunc vel ciuili iure non valet legatum §. non solùm Instit de lega But what if the testator do bequeath some thing which at the time of the making of the testamente is not his but the testator afterwardes dooth buy the same Whether is this thinge due or recouerable by the legatarie yea or naie By the ciuill lawe it is not due k) L. 1. ff de regul CatoÌ„ but in some fewe cases l) Repertor Bertachni verb. regula Caton By the lawes of this realme it seemeth that we are to distinguish whether some speciall thing be deuised or not for if a special or certain thing be deuised as if the testator doo bequeath the manour of Dale then albeit the testator had no such manor when the wil was made yet by the purchase made afterwards the testator is presumed to haue had this meaning from the beginning to purchase the same for the benefit of the legatarie and so the deuise is good m) Plowd in cas inter Bret Rygden fol. 344 But if the legacie be not speciall but generall as if the testator doo bequeath all his landes then the testator hauing some lands at the time of making the testament and purchasing other lands afterwardes these landes purchased after the making of the testament shal not passe n) Plowd vbi supra But howsoeuer the lawes of this realme haue determined concerning the deuise of lands tenements and hereditaments purchased after the making of the testament yet concerning goods if the testator doo bequeath anie such thing in generall tearmes as a horse or an oxe although the testator haue neither horse nor oxe at the time of his testament made neither yet at the time of his death the legacie is not therefore voide o) Bar. Paul de Castr alâ—j in L. legat generaliter de leg 1. ff but the executor is bound to deliuer an horse or an oxe as else where is confirmed where also is shewed to whom the choice belongeth in this case and what manner thing is to be deliuered p) Infr. part 7. §. x. Of Assigning tutors and disposinge of childrens portions during their minorities generallie considered 1 Manie questions about the tuition of children 2 The matter of tuitions both large and vncertaine §. vij IF I should vndertake to speake fullie of the assignement or appointinge of tutors to children and custodie of their portions or other rightes during their nonage not onelie manie questions would offer themselues to be handled namelie who maie graunt the tuition of whom to whom after what manner what is the office and authoritie of a tutor when the tuition is finished what action the pupill hath against the tutor for the recouerie of his rightes or the tutor against the pupill for the charge of his education and conseruation of such thinges as are due to the childe and finallie if the tutor testamentarie excuse him selfe or refuse the tutorship what order is to be taken in the behalfe of the child which questions are so ample minister so great aboundance of matter that it is not possible to comprehend the same within anie compasse fitte for this breefe treatise And further the customes of this realme are so diuers and contrarie one to an other which doe concerne this matter that I might easilie fall into diuers errors Wherfore as well for that this matter should not exceed the proportion of a iust member as also for that I would be loath to play the blinde guide I thought it better and more safe to refer the Reader to the learned of euery place of whom he may be more sufficiently certified of their particular customes then to fill vp this volume with the multitude of different yea and contrarie obseruations of sundrie countries and places within this Realme whereof I can obteine no sounder warrant nor better assurance of the legalitie thereof then the bare reports and relations of others Howbeit forasmuch as within the Prouince of Yorke I my selfe haue had some reasonable experience in these affaires for many yeeres I thought it not amisse briefly to signifie what is there obserued Of the committing of the tuition of children and custodie of their portions within the prouince of York 1 No parents of any Countrey haue like power ouer their children as had the Romanes 2 Whence the authoritie of assigning children did descend 3 The customes of the North parts of this Realme doe very much resemble the Ciuill lawe §. viii ALbeit neither within this Realm of England nor within anie realme christian anie parents haue the like power ouer their childreÌ„ as had the Romans a) §. Ius auteÌ„ Instit de tutelis ibi glossa in qua enumeraÌ„tur septeÌ„ aut octo in quibus ius patriae potestatis consistit to whoÌ„ alone that patria potestas was proper and particular b) Eod. §. nec non tract de repub Angl lib. 3. c. 7. Intellige tamen vt in gloss in d. §. ius auteÌ„ which was the cheefe cause wherby they did might by their testamentes commit the bodies of their children and their portions at their pleasures to the custodie of others according to the ciuill lawe c) L. 1. ff de testa tutel §. permissum Instit de tutel yet in diuers places within this realme and namelie throughout the prouince of Yorke there dooth remaine a certaine resemblance of that power and determination of the ciuil law as in manie other things so also in the assigning or appointinge of tutors by their testaments or last wils d) Vt patet ex his quae subsequuntur §§ 9 10 11 12 13 14. whether we regard the person of the testator or of him that is assigned tutor or
of the children or the maner of assignation or the office and authoritie of the tutor or the meanes wherby the tuition is ended which I must onelie point at Who maie appoint a Tutor 1 The father maie appoint a tutor by his testamente or last will 2 Whether the mother maie appoint a tutor 3 Whether a straunger maie assigne a tutor 4 Whether the ordinarie maie assigne a tutor §. ix VNderstand therefore that by generall custome obserued within the prouince of Yorke a) De qua consuetudine apertissimè per indubitatae fidei acta instrumenta antiqua in archiuis Archiepiscopi Eâ—oâ—ac reposita constat the father by his last will or testament maie for a time commit the tuition of his childe and the custodie of his portion b) Fatâ—or quidem nostratium liberos ab illa prima potestate ferè solutos quasi emancipâ—tos esse vt refert D. Smith in suo tract de repub Angl. Quâ—â— tamen haec consuetudo quae vel praecipuè in partibus borealibus viget summa nitatur aequitate ratione negari non potest Quis enim diligentiùs de pupilli rebus cogitat quà m parentes aut cui maiori curae esse poterit vt ex eo maximè quantúms nulla alia subesset causa ijs liceret morientibus in testamentis suis designare liberis vice parentes cos quorum experta fide norunt futuros esse liberis suis tutores id est tuâ—ores siue defensores for within that prouince children haue their filial portions of their fathers goods according to the ciuill lawe (c) Et quidem debetur eadem prorsus quantitas nam vt quandoque triens quandoque semis competit auth nouissimo C. de inoffic testoÌ„ pro numero liberorum ita iure quo nos vtimur media pars debetur liberis nulla relicta vxâ—re quà superstite certia pars bonorum ijs competere dignoscitur infr ead part §. 16. except he be heire or aduaunced in the life time of his father d) Vide infr ead part §. 16. which testament and assignation is to be confirmed by the ordinarie e) Id quod iuri ciuili consonat sed si pater filio emancipato tutorem assignauerit omnino Iudicis sententia confirmandus est §. fin Instit de tutel who also is to prouide for the execution of the same testament f) Infr. part 6. § j. If the father die no tutor being by him assigned and the mother doo in her last will and testament appointe a tutor the same will is to be prooued and the assignation of the tutor confirmed g) Confirmatur quidê tutor à matre datus sed cum inquisitione propter fragile mulieris consilium Sufficit verò modica inquisitio filius si instituatur alias requiritur magna L. mater C. de testa tutel L. 2. ff de confir tut Bar. in L. naturali §. si quaeratur eod And if no tutor be assigned by either of the parents then maie a stranger if he make the Orphane his executor and giue him his goodes assigne a tutor vnto him h) L. patronus ff de consir tit nam qui instituit impuberem videtureum eligere quasi in filium Et ipse habetur loco patris Bald. in d. L. si patronus which tutor is by the ordinarie to be confirmed i) d. L. si patronus And if there be no tutor testamentarie at all then maie the ordinarie commit the tuition of the childe to his next kinse-man l) De hac potestate testimonium non obscurum perhibent omnia ferè acta instrumenta tùm recentia tùm antiqua quae in archiuis publicis Archiepiscopi Ebor. fideliter custodita demaunding the same according as in administratioÌ„s where anie dieth intestate (m) Nam vbi successionis emolumentum ibi residet tutelae onus L. 1. ff de tutel so that the childe be not warde for then the ordinarie maie not dispose of the custodie of his person as is hereafter declared (n) Infr. ead part §. xj Who maie be appointed Tutor 1 He that cannot be executor cannot be tutor 2 Whether he that is vnder age or lunatike maie bee appointed tutor 3 Whether a woman maie be tutrix §. x. ANie person maie bee assigned tutor which is not forbiddeÌ„ a) Quando excipiuntur aliqui reliqui proculdubio admittuntur Nam firmat exceptio regulam in non exceptis Dec. Cagnol in L. 1. de reg iui ff who is forbiddeÌ„ may appeare by that which is herafter spoken of an executor b) Infr. part 5. for hee that can not be an executor can not be tutor c) L. testa ff de testa tutel He that is not 21. yeeres olde or is not of perfect minde and memorie maie be assigned tutor but it is to be vnderstoode that hee shall be tutor when he is of ful age or when he doth returne to sanitie of minde d) § furiosus Instit qui tut testa dari poss By the ciuill lawe a woman the mother and grand-mother excepted can not bee assigned tutrix e) L. iure nostro de testa tuit ff but it is not obserued as a law within the prouince of Yorke where not onelie the mother and grand-mother are admitted but other women also albeit they bee married and vnder the gouernement of their husbands f) Vt per acta instrumeÌ„ta d. scacarij Archiepiscopi Ebor. To vvhom a tutor maie be appointed 1 A tutor may bee assigned to him that is not 14. yeeres olde and to her that hath not accomplished twelue 2 After 14. and 12. he and she maie chuse their curators 3 When the curator is to be confirmed 4 A tutor may be assigned to the childe vnborne 5 No tutor can be assigned vnto him that is warde by reason of his landes 6 Neither to infants or idiots wardes 7 Who shall haue the ward-ship of a childe that hath landes 8 What the Gardian maie doo 9 The hard estate of wardes 10 All infantes wards are not subiect to like conditions 11 Who shal be Gardian to the infante which hath landes in socage 12 Procheyn amie accomptable to the ward after his full age 13 Idiots in the custodie of the prince whether the custodie of an infant or ideote may be deuised by the testator §. xj BY the said custome generallie obserued within the prouince of Yorke a Tutor maie be assigned to a boie at anie time vntill hee haue accoÌ„plished the age of 14. yeeres and to a wench vntil she haue accomplished the age of twelue yeeres a) L. tutelae C. de testa tut §. permissum Instit de tutel tit quibus modis tut finitur Instit in prin But after those yeeres he or she respectiuelie maie chuse their owne curators notwithstandinge their fathers will b) §. Item inuiti Instit de curator L. diuus §. curatores ff qui
pe tut L. matris C. eod in fin quam op longaeuus approbauit vsus but if they doo not electanie other curator after their seuerall ages then hee that is assigned in the will is to bee confirmed curator to either of the said children albeit hee were aboue 14. yeeres and she aboue 12. when the wil was made c) L. tutelae C. de testa tut §. dantur Instit de cura A tutor maie also be assigned to a childe that is not borne d) §. cum autem Instit de tut likewise to an ideote or him that is lunatike e) §. furiosi Instit de cura licet huiusmodi personae maiores sint 25. annis erunt sub curatione d. §. furiosi an haec authoritas fit penes testatorem vel ordinarium an ad regem spectet iure praerogat Quaere vt inf in d. §. But all this which is here aforesaid is to bee restrained so that it be not to the preiudice of him that is a Gardian or hath the wardship of anie infant or minor f) Habenti tutorem tutor non est dandus §. interdum Inst de cura or of anie idiote by reason of anie landes tenementes or hereditaments belonging to such infant or idiote g) Stat. praerogatiuae regis c. 9. Fitzh Breâ—e de idiota inquirendo For by the common lawes of this realme of England the lorde of whom the infant dooth hold his landes so soone as the father dieth hath the wardship and keeping of the heire and thereby maie sease vpon the bodie of the warde and his landes h) Tract de repub Ang. lib. 3. c. 5. per stat de praerog regis an 17. Ed. 2. c. 1. 6. whereof also he maie take the profites without accompt so that he nourish and bring vp the warde i) d. tract de repub An. And not that onelie but also offering to his warde conuenable marriage without disparagement before 21. yeeres if it be a man or 14. if it be a woman if the ward refuse to take that mariage he or she must paie the value of the mariage k) Stat. West c. 22. which is commonlie rated accordinglie to the profites of his lands which is a thing vtterlie condemned of some greatlie lamented of manie both graue and godlie because of the insatiable couetousnesse of diuers in these daies l) Vide d. tract de repub Angl. lib. 3. c. 5. Termes of law verb. gardein for that therby it commeth to passe manie times that a free man and a gentleman whiles he is an infant of slender discretion and lesse experience destitute of his beste friende that is to saie his naturall father and consequentlie subiect to the subtilties and importunities of his craftie and couetous Gailor is bought and solde like a beast to such as seeke to make most aduantage of him and in the ende besides manie moe inconueniaunces matched to my maisters daughter sister cosin or some other female to whom for her vertues and gentle conditions if thine enimie shoulde be preferred in mariage thou couldest wishe him no greater tormeÌ„t if it were lawful forthee to wishe him anie torment hell excepted To these perils are these infants subiect which holde landes of other by knightes seruice called in french Garde noble m) d. tract eod c. 5. for there is an other kind of seruice called Gard Returier alias Gard in socage or tenure by the ploughe n) Eodem loco This wardship falleth to him that is next of kin and can not inherite the lande of the warde o) Stat. Marleb c. 17. an 52. H. 3. as the vnckle on the mothers side if the land descend by the father or the vnckle on the fathers side if the land descend by the mother p) Brook tit gardeins prochein amye n. 11 12. 13. Termes of law verb. prochein amye This Gardyan otherwise called prochein amie is accomptable for the profites and reuenues of the lande to the warde as the tutor for the goods and chattelles to the pupill when he is of full age q) d. stat Marleb c. 17. d. tract de repub Angl. lib. 3. c. 5. Concerning Idiottes such is the praerogatiue of the princes of this lande that they shall haue the custodie of all the landes of naturall fooles and maie take the profite thereof without waste or destruction of whose fee so euer the same be holden findinge to them necessaries r) Stat. Ed. 2. de praerog reg c. 9. And after the death of such Idiottes the lande must be restored to the right heires s) Eod. stat But in the meane time that is to saie during the nonage of the warde or during the life of the Idiote the tuition of the bodie of the warde or Idiote or of his landes can not bee deuised by testament to anie other person contrarie to the course of common lawe in preiudice of him to whom the wardship dooth belong t) Quia tutorem habeÌ„ti tutor non datur sauing the testator maie committe the custodie of suche goods and chattelles as he dooth bequeath to the said infant or ideot to whom hee will and during so long time as he will v) Siquidem vnusquisque potest rebus suis quam velit legem imponere Mantic. lib. 7. tit 1. nu 38. testatoris voluntas habetur pro lege L. seruus ff de manumiss licet alias videatur per Fitzherb Nat. Bre. de idiota inquirendo quòd bonaquae idiotae obueniunt suo gardiano accrescunt Quaere tamenper Stamford suê‘ d. praerog reg c. Idiot Of the manner of appointing Tutors 1 A tutor maie be appointed simplie or conditionally to a daie or from a daie 2 The condition depending what is to be doone in the meane time 3 Lawfull to appointe one or manie tutors 4 Whether where one tutor is appointed an other maie be receiued 5 Whether diuers being assigned one tutor alone may be admitted 6 By what wordes a tutor maie be appointed 7 What if the testator saie I committe my children to thy power or to thy handes 8 What if he saie I committe my children vnto the quicke and deade 9 What if he saie I desire thee to take care of my son 10 The testator maie vse anie language in the assignation of a tutor §. xij BY the saide generall custome it is obserued within the prouince of Yorke a) De qua per plurima acta testa in d. sacro existen that a tutor maie bee assigned either simplie or conditionallie b) §. ad certum Instit qui testa tutor dari poss and vntil a certaine time or from a certaine time c) Eod. §. ad certum L. tutor §. tutorem de testaria tut ff But no tutor maie intermeddle as tutor vntill he be confirmed by the ordinarie albeit he be assigned tutor simplie d) L. legitimus ibi Bar. ff de legit tutel much
parte the child or children an other parte and the third part which is called the deathes part remaineth to the testator by him to be giuen or bequeathed to whoÌ„ he thinketh good h) Lind. Bract. Fitzh in locis praed And here note that where the wife or children ought to haue a ratable parte of the goods of the deceased be it a third parte or halfe as the case yeeldeth there also they ought to haue a like parte of the debtes due vnto the testator after they be recouered by the executor or administrator for then they are numbred or accompted amongest the goodes of the testator but not before i) Brook Abridg. tit exec n. 112. Siquidem si ista ex coÌ„suetudiue tantum debentur hac non probâ—ta sine difficultate illud procedet quod est iuri recepto magis consonum But of leases the wife and children can not haue anie ratable parte within the prouince of Yorke or other places where they haue beene accustomed to haue their ratable parte of the moueable goodes and debtes recouered vnlesse the saide wife or children demaunding their ratable parts of leases do proue that by speciall custome of that place namelie of that citie countie deanrie or parishe where the testator dwelled and had such leases the wiues and children were accustomed to haue their ratable parte as well of the leases as of the mooueable goodes of the testator which speciall custome being prooued they maie recouer their ratable part as before k) Fitzh in Br. de rationab part in quo Breui fit mentio non solùm bonorum sed etiam cattallorum Atque huc facit quod habemus in Mag. Chart. c. 18. The fourth case is when there is no suche custome of deuiding the goodes of the testator into two partes or into three partes as is before mentioned in which case albeit some were of this opinion that euen by the coÌ„mon lawes of this realme the cleere mooue-able goodes were to be deuided into three parts or into two partes as before whereof the wife and children were to haue their partes l) In hac sententia stetit Glandeuile antiquus huius regni iurisconsultus motus per stat de Magna Chart. c. 18. vt refert Fitzh in d. Breui de rationab part bon Brook Et per de rationab part bo sic enim post multaÌ„ disputationem inquit Et fuit dit pue ley M. 31. Henr. 8. que ceo ad estre mise en vre come vn comÌ„en ley nunque demurr ideo videtur que ceo est le comÌ„en ley and consequentlie that the testator could not dispose anie more thereof then the halfe or third being the deathes part Neuerthelesse others whose opinion hath preuailed doo holde the contrarie to wit that there is no such deuision to bee made by force of the common lawes of this lande but onelie by force of custome m) Fitzh d. Br. de rationab part bonor Brac. de legib coÌ„suet Ang. lib. 2. 26. Tract de repub Angl. lib. 3. c. 6. and coÌ„sequentlie that it is lawfull for the testator by the lawes of this realme except in those places where the custome aforesaid is obserued to dispose all the whole residue of his goodes his funeralles and debtes deducted at his likinge and that the wife or childe can claime no more thereof but accordinge as the testator shall deuise by his testament And in the opinion of some the lawe of this lande which leaueth all the residue to the disposition of the testator funeralles and debts deducted seemeth to haue better grounde in reason then the custome whereby he is forced either to leaue two partes of three or at leaste the one halfe to his wife and children n) Bracton d. lib. 2. c. 26 For what if the sonne be an vnthrifte or naughtie person what if the wife be not onelie a sharpe shrowe but perhaps of worse conditions Is it not harde that the testator must leaue either the one halfe of his goods to that wife or child or more for the which also peraduenture hee had labored full sore all his life were it not more reason that it should be in the libertie of the father or husband to dispose thereof at his owne pleasure which when the wife and children vnderstood it might be a meanes whereby they might become more obedient liue more vertuouslie and contend with good desert to winne the good will and fauour of the testator o) Hisce rationibus vtitur Bracton in desensionem â—uâ— is huius regni d c. 26. cui adde Rebuff in L obuenire de verb. signif ff fol. 682. These reasons make for the testator and for the equitie of the common law which leaueth the whole residue to his disposition But the custome whereby the libertie of the testator is restrained is not without reason also Forwhere it is asked what if the child be an vnthrifte the wife worse then a shrowe So it maie be demaunded with like facilitie what if the childe be no vnthrifte but frugall and vertuous what if the wife be an honest and modest woman which thing is the rather to be presumed p) c. dudum c. vltim de praesump extr Mas card tract de probae conclus 222. But if it be not amisse to feare the worst then on the contrarie what if the testator be an vnnaturall father or vnkinde husband perhaps also greatly inriched by his wife wheras before he was but poore standeth it not with as great reason that such a wife and children should be prouided for and that it shoulde not be in the power of such a testator to giue all from them or to bestowe it vpon such as had not so well deserued it and by that meanes set his wife children a begging surelie the custome hath as good ground in reason against lewd husbands and vnkinde fathers as hath the lawe in meeting with disobedient wiues and vnthrifty children q) Mediam viam elegit Iustinianus tà m quoad vxorem quà m quoad liberos Nam quod ad vxorem attinet inbet imperator illa bona restitui quae marito vel ab ipsa vxore vel ab alio nuptiarum causa nempe ad sustinenda matrimonij oneradonata suere L. 2. fol. matr ff Bar. in Rub. solu mâ—iom ff n. 21. quod autem attinet ad liberos iure ciuili Assis nunc triens id est tertia pars totius patrimonij nunc semis seu dimidium assis pro legitima debetur Auth. nouissimo C. de inoffic testa quae quidem legitima gratis tantum liberis deberi intelligitur nam ingratis nihil habet parens pro legitima â—â—linquere Claud. Battandier tract de legitima c. 13. If the testator doo bequeath more then he maie which legacie is to bee preferred or what other course is to bee followed 1 If the testator bequeath more then the deaths parte whether one legacie is to be preferred before an
q) Infr. §. prox and what are the different effectes of euerie seuerall sorte or manner of appointing an executor r) Infr. ead part §. 4. After hovv manie sortes an Executor maie be made 1 An executor maie be appointed simplie or conditionallie from or vntill a time directlie or indirectlie vniuersallie or particularlie in the first degree second third c. and one alone maie be appointed executor or manie 2 After how manie sorts an executor maie bee made after so manie maie a legacie or deuise be giuen §. iij. AN †executor maie be appointed after diuers manners especiallie after these following First either simplie a) Infr. ead part §. 4. or conditionallie b) Infr. ead part §. 5. Secondlie either from a certaine time or to a certaine time c) Infr. ead part §. 17. Thirdlie either vniuersallie or particularlie d) Infr. ead part §. 18. Fourthlie either in the first degree or in the seconde degree or in the third degree or in the fourth c e) Infr. ead part §. 19. last of al either one maie be appointed sole executor or diuers maie be appointed executors together f) Infr. ead part §. 20. of which I meane to intreate seuerallie But by the waie I would haue the reader to obserue that †as an executor maie be made diuerslie so a legacie maie bee giuen or a deuise made accordinglie that is to saie simplie or coÌ„ditionallie from a time or for a time vniuersallie or particularlie in the first second or thirde degree c. and to one or manie which order of semblaunce or imitation if the diligent reader shall note which thing is verie easie to be performed for that which is said of the one maie also be said of the other in euerie respect almost sauinge where I haue noted the difference hee shall reape two benefites in one reading and case me of double labour Of a pure or simple assignation of an Executor 1 The cheefe pointes considerable about the simple assignation of an executor 2 What is a pure or simple assignation of an executor 3 Diuers examples of a simple appointment of an executor 4 Whether is hee vnderstood to be made executor to whoÌ„ the testator dooth giue all or the residue of his goodes 5 It is not alwaies needefull to expresse this word executor in making of an executor namelie when the testators meaning is knowen 6 Other examples of the former conclusion 7 The generall legatarie is not alwaies vnderstood to be executor 8 What if the words be indifferent either to make a testament or a codicill 9 An executor maie bee made either by the proper motion of the testator or at the interrogation of an other 10 The testator must haue a firme purpose of makinge his testament otherwise wordes are of no force 11 It skilleth not of wordes so that the meaninge appeare neither in what part of the testament the executor be appointed 12 Of the effect of a pure or simple nomination of an executor 13 Certaine cases wherein the mention of a condition dooth not make disposition conditionall 14 Whether impossible or vnhonest conditions doo make the disposition conditionall 15 Whether necessarie conditions make the disposition conditionall 16 Conditions referred to that which is paste or present are not properlie conditions 17 Conditions necessarilie vnderstoode doo not make the disposition condicionall 18 The application of that which hath beene spoken of the assignation of an executor to a legacie or deuise 19 Certaine cases of the deuise of landes wherein the meaning of the deuisour is preferred before the proprietie of wordes 20 The different effectes of a simple assignation of an executor and a simple legacie 21 A legatarie maie not of his owne authoritie take his legacie and what is the reason 22 What remedie a legatarie hath for the obtaining of his legacie 23 Certaine cases wherein the legtarie may of his own authoritie apprehend his legacie §. iiij COncerning †the pure and simple making of an executor I thought good to remember these points viz what it is in what forme of words it maie be made what is the effecte thereof finallie how a simple nomination of an executor and a simple legacie or deuise doo agree or differ A †simple nomination or appointinge of an executor is wheÌ„ the testator maketh his executor without anie condition a) §. haeres Instit de haered Instit Minsing ibidem Grass Thesaur com op §. legatum q. 43. n. 2. as if the †testator saie I make A.B. my executor or thus I institute A.B. my executor or thus I will that A.B. be my executor or thus I desire A.B. to bee my executor or thus A.B. shall be my executor or thus let A.B. be my executor b) L. quoniam indignum C. de testa DD. ibidem For the lawe regardeth not so much the wordes as the meaning of the testator c) d. L. quoniam Mantic de coniect. vlt. vol. lib. 4. tit 3. Grass Thesaur com op §. Institutio q. 14. And therefore if the testator saie I commit all my goodes to the disposition of A.B. it is in effect as if he say I make him my executor d) Cùm tibi de testa extr summa Rosella verb. testmÌ„ §. j. vers quibus verb. So it is if the testator saie I commit my soule and all my goodes to the handes or disposition of A.B. e) Io. de An. And. Barba in d. c. cùm tibi Brook Abridd tit executor n. 98. or I make A.B. Lord f) L. his verbis ff de haer Instit of all my goodes or I make my wife ladie of all my goods g) Bald. in d. L. his verb. or I leaue all my goodes to A.B. h) Gloss Bar. Bald. in d. L. his verbis Grass Thesaur com op Institutio q. 14. quem velim videas or I make A. B. legatarie of all my goodes i) Mantic. de coniect. vlt. vol. lib. 4. tit 3. n. 8. Bald. in L. id quod pauperibus C. de episcopis cler n. 1. verb. contrarium Or I leaue †the residue of all my goodes to A.B. k) Panor in c. Ranutius de testa ext n. 3. for in those cases he to whom all or the residue is bequeathed is thereby vnderstood to be made executor l) Rationem assignat Panor in d. c. Ranutius Quia inquit iuris imperiti nesciunt aptiùs loqui And this I suppose to bee true when it dooth sufficientlie appeare by other meanes also to be the meaning of the testator not to die intestate but that he to whoÌ„ all or the residue is bequeathed shold immediatelie by vertue of the will enter to all the testators goods and paying his debts and legacies retaine the residue to himselfe m) Quo câ—â—â— nihil reor interesse nâ—â—é testamétum solenne vel non solemne Nam quod quidam volunt verbum
what part of the testament he be appointed whether in the beginninge or in the middest or ending k) §. ante Instit de lega Grass Thesaur com op §. Institutio q. 1. The †effect of a pure and simple assignation of an executor is this that the executor maie immediatelie after the death of the testator vndertake the executorshippe and enter vpon the testators goodes and cattelles l) Wesemb in tit de acquir haered ff in tit de haered Instit Et hoc verum est etiam ante probationem testameÌ„ti Plowd lib. 1. in cas inter Greisbrook Fox Cagnol in L. si precibê° C. de impub. alijs sub n. 276. 277. 278. whereas on the contrarie the effect of a conditionall assignation dooth suspend his admission and execution of the testament as afterward more fullie dooth appeare m) Infr. ead part §. 6. 7. And †there note that if the testator say I make A. B. my executor according to the coÌ„ditions afterwards expressed if the testator afterwardes expresse no conditions it is in effecte as if the testator had made him his executor simplie n) L. pen. C. de Instit sub And so hee maie enter vpon the testators goodes presentlie after his death for the testator in not expressing anie conditions is presumed to haue altered and reuoked his purpose concerninge the adding of conditions o) DD. in d. L. Peâ— and consequentlie that he would haue the appointment of the executor to be pure and simple howbeit if the testator making his executor vpon conditions to be then expressed afterwardes in the meane time whiles he is in making his will be sodainlie preuented by death or insanitie of minde that he can not expresse those conditions according to his purpose and determination In this case the assignation is voide and he which is so appointed executor is not to be admitted to the executorship p) L. si quis destinauerat alià s si is qui. ff de testam Paul de Castr in L. iubemus C. de testa latiùs infr part 7. §. 12. Likewise if the testator doo make his executor after this maner I make A.B. my executor if I shall expresse anie conditions in this case no conditions beeing expressed he that is so appointed ought not to be admitted q) Dec. alij in d. L. Pen. C. de Instit sub It is †also to be noted that that assignation of an executor is in effect pure simple where the condition is impossible or vnhonest for such conditions are reputed as not written but omitted r) §. Impossibilis Instit de haered instituend L. obtinuit de cond demon L. conditiones de condic Instit ff and so the executor without accomplishment of anie such condition is forth with to be admitted to the executorship excepte in some cases as hereafter is declared s) Infr. ead part §. 6. 7. Furthermore †when it is certaine that the condition will necessarilie followe or bee extant the appointmente of the executor made vnder such condition is reputed pure and simple as if the testator make A.B. his executor if the sunne shall rise the next daie t) L si pupillus §. sub conditione ff de nouac Alex. consil 59. n. 14. vol. 4. vnlesse the time when the condition will be extant be vncertaine as I make A.B. my executor if my sonne shall die for though it be most certaine that he will die yet nothing is more vncertaine then the time when and therefore the assignation is in effect conditionall v) Sichard in Rub. de condic Instit C. fusiùs infr ead part §. 17. part 7. §. 23. And the like maie be said †when the condition is referred to that which is paste or present as if the testator saie I make A.B. my executor if he be bachelar of the ciuill lawe or if hee haue beene student in the vniuersitie of Oxforde for this kinde of condition is not properlie a condition x) L. si ita stipulatus ff de verb. ob Bar. in L 1. de cond demon ff but rather a finall cause wherefore the testator made his executor y) Ias in L. stichum de leg 1. ff And although the testator be vncertaine whether the executor be bachelar of lawe or haue beene student yet it is certaine in respect of the facte it selfe and is either true or false at that instant when it is made and so the condition worketh no delaie or suspension but is either a good or void assignatioÌ„ at that moment z) DD. in d. L. si ita stipulatus Finallie †that assignation of an executor is pure and simple when that condition is expressed which is necessarilie vnderstoode a) L. haec verba de leg 1. ff L. conditiones de cond demon ff as if the testator saide I make A.B. my executor if the lawe will b) Mantic. de coniect. vlt. vol. or if he will vndertake the executorship c) Grass Thesaur com op §. legatum q. 47. That †which hath beene spoken of the making of an executor accordinge to my former aduertisementes maie easilie bee applied to a legacie mutatis mutandis wherefore as that nomination or assignation of an executor is pure and simple which is made without condition so that legacie is pure and sure which is giuen without condition Secondlie by the like application it maie appeare that it is not materiall in what forme of wordes a legacie be bequeathed so that the testators meaning doo appeare which meaning is to be preferred before the proprietie of wordes d) §. nostra Instit de lega and that not onelie concerninge goodes and cattelles but also concerning lands and tenementes for further declaration whereof I haue added these examples following which I haue borrowed out of a little booke called the tearmes of lawe e) Verb. deuise First †therfore if a man doo by his will deuise to A.B. all his landes and tenementes In this case not onelie all his landes and tenementes which the testator hath in possession doo passe but those also which hee hath in reuersion by vertue of this word tenements Item if landes be deuised to a man to haue to him for euermore or to haue to him and his assignes in these two cases the deuise shall haue a fee-simple wheras if it be giuen by feoffemeÌ„t in such tearmes the feoffee hath but an estate for his life for a deuise made without expresse wordes of heires is good euen in fee-simple Item if a man deuise his lande to an other to giue or sell or doo therewith at his pleasure will this in fee-simple Item a deuise made to one and to his heires males dooth make an estate in taile but if suche wordes be put in deede of feoffement it shall be taken in fee-simple because it dooth not appeare of what bodie the heires males shall bee begotten Item
be demaunded so that he which maketh demaunde doo enter into bonde in manner as hereafter is described to performe that which is exacted by the testator or else to make full restitution p) L. quibus diebus §. Termilius ff de cond demon L. 1. 2. C. de his quae sub modo An other case is when †the testators will is not repugnant thereunto for then this bonde as it is affirmed hath place euen in affirmatiue conditions q) Bar. in d. L. Mutianae de cond demon ff n. 3. When the †condition is negatiue then wee are to regarde what kinde of negatiue condition it is that is to saie whether the same consist in not dooing or not giuing or not chauncing If †the condition consiste in not dooing then it is material whether the same maie be accomplished so long as he liueth on whom the same is imposed yea or no. If †the condition consistinge in not dooing can not be performed so longe as the person on whome it was imposed liueth then maie hee obtaine the bequest by puttinge in bondes to accomplishe the condition or else in defect thereof to make full restitution r) d. L. Mutianae ibi Bar Balâ— Paul dâ— Caâ—â—r Zas in L. dedi tibi ff de cond caus dor as for †example the testator maketh one his executor or giueth him a hundred pounde if he neuer plaie at the Cardes or Dice This condition we see is negatiue it coÌ„sisteth in not dooing and it is such a condition withall as can not be fullie performed so long as hee liueth on whom it is imposed because at anie time during his life hee maie infringe the same by playing at the Cardes or Dice s) Sâ—mâ— de Praetis de interp vlt. vol. lib. 5. inter 2. Iub 1. n. 23. for albeit he did abstaine this daie yet might hee plaie the next daie or if not the next daie yet some one daie or other so longe as hee had anie daies to liue t) Simo de Praetis vbi supr Paul de Castr in d. L. Mutianae and so in the meane time that is to saie all his life longe hee shoulde not reape anie commoditie by the testament if the full performaunce of the condition were first exacted Wherefore †leaste the testators will should be vneffectuall and leaste the executor or legatarie should reape no benefit therby if the full performaunce of the condition should bee expected ere the bequest coulde bee obtained one Mutius Sceuola did deuise this remedie that hee who is made executor or to whom anie legacie is bequeathed vpon a condition negatiue which coulde not bee fullie performed duringe his life shoulde enter into bonde to performe the condition that is to saie neuer to doo that which is prohibited or else to make a full restitution and by that meanes obtaine the executorshippe or legacie v) d. L. Mutianae cum gloss ibid. Simo de Praetis vbi supr Zas in L. dedâ— tibi de cond caus dot ff n. 7. 9. which bonde or caution is of Mutius the author thereof called Mutiana cautio x) Gloss in d. L. Mutianae and after a sorte hath the effecte of the full accomplishment of the condition y) â—ar Castr in d. L. Mutianae Yea in some cases †the legacie which is giuen vnder a condition negatiue consisting in not dooing maie be obtained without anie such bond albeit the same condition maie be infringed duringe the life of the legatarie namely in a legacie of libertie or free-dome from bondage z) L. libertatem L. libertas §. 1. de manumiss testa ff in a legacie ad pias causas a) Tiraquel de priuileg piae causae c. 48. The reason of the difference is because in these fauorable legacies the testator is presumed to haue meante onelie of the firste acte when the legatarie had oportunitie of doinge the thinge prohibited b) Tiraquel vbi supra So that if at that season or firste oportunitie the legatarie doo not infringe the condition by dooing contrarie to the disposition of the testator it is not hurtefull though after that first oportunitie past the legatarie goe against the condition c) Gloss in L. Titio §. fundus ff de cond demon Tiraquel d. c. 48. vnlesse the meaning of the testator doo appeare to bee contrarie viz. that the condition should be extended to euery act during the life of the legatarie d) L. vlt. de manumiss testa ff Tiraquel vbi supra But †if the negatiue condition bee suche as maie be performed during his life on whom it is imposed this aforesaide bonde or caution hath no place e) L. cum tale §. 1. ff de cond demon L. pater §. socrus eod and consequentlie the executorship or legacie disposed vnder such condition so long as the same dependeth not fullie performed can not be obtained f) L. cuÌ„ tale §. 1. gloss in d. L. Mutianae For example the testator maketh thee his executor or giueth thee a C. pound if thou neuer plaie at dice or cardes with A.B. or if thou do not at any time giue away thy lands to A.B. this coÌ„dition howsoeuer it be negatiue also coÌ„sisteth in not giuing or not doing Yet it may be fullie perfectly coÌ„plete and performed in thy life time For A. B. with whoÌ„ thou art forbidden to play or to whoÌ„ thou art forbiddeÌ„ to giue thy lands may die before thee then thou canst not play with him nor giue him thy lands when he is dead and so it is euident that this condition may be fullie performed accomplished in thy life time for a †negatiue condition is then said to bee fullie accomplished when it is brought to an impossibilitie g) Gloss DD. in d. L. Mutianae ff de cond demon and therefore in this case thou canst not be admitted executor nor obtaine the legacie vntill the condition bee brought into that state that it can not be infringed h) DD. in d. L. Mutianae d. L. cum tale §. 1. Simo de Praetis de inter vlt. vol. lib. 5. interp 2. dub 1. n. 23. Great †ods therefore there is betwixte those negatiue conditions which can not be performed in the life time of that persoÌ„ on whom they are imposed those negatiue coÌ„ditions which maie be performed during his life For there the executor or legatarie maie obtaine the executorship or legacie by putting in bondes but here he can not vnlesse it be †such a case as the euent thereof dooth bring greefe and sorrow to the partie on whom the condition is imposed for in such cases where the condition can not be infringed or become deficient without sorrowe or heauines it is lawfull for the executor or legatarie to enter into bondes for making restitution if the condition be not performed and so to be admitted to the executorship and to obtaine
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
L. singulos de testa ff Minsing in d. §. sed cum paulatim Fourthly it is requisite that the testator doo with his owne hande write his name whom he will shall succeede and haue all his goodes and if he cannot write that then he name him before those witnesses e) L. iubemus L. cum antiquitas C. de testa Non tamen ita necessaria est nominatio haeredis vt proprio testatoris ore fiat quin sufficit si testator alio interrogante an velit talem fore haeredem Respondeat ita DD. in d. L. iubemus Grass Thesaur com op §. Institutio q. 17. Fiftly it is requisite that the witnesses bee such as are not forbidden to beare testimonie in that behalfe f) §. testes Instir de testa ordin Sixtly it is necessarie that the witnesses do see and behold the testator and not heare him onely g) Menoch de arbitr Iud. q. lib. 2. cent 5. cas 475. n. 23. Minsing in d. 5. sed cum paulatim It is also necessarie that the witnesses doo seale the testament either with their owne seales or with the seale of another h) d §. sed cum paulatim Finally it is necessarie that the testament be made at one time without any intermission except naturall such as cannot be auoided i) Eod. §. ibi Minsing A will thus †made is called a solemne testament which forme if men would obserue but no man is necessarily tied therevnto heere in England k) Supr part 1. §. 9. it were a more safe way aswell against the forging of false willes as suppressing of true willes Of the forme of an vnsolemne testament 1 What is requisite in the making of an vnsolemne testament §. xxiiij IN the †making of an vnsolemne testament it is not precisely necessarie to vse any of the foresaide ceremonies This onely is needfull heer with vs in England that the testator do appoint his executor and declare his will before two or three witnesses whose testimonie partly by the lawes ecclesiasticall a) C. cum esses c. relatum el. 1. de testa ext and especially by the generall custom of this realm b) Lindw in c. statutuÌ„ verb. probatis lib. 3. ê“uincial constit Cant. Tract de repub Angl. lib. 3. c. 7. Peckius in c. priuileg de reg iur 6. is sufficient for the probation and approbation of the same will concerning the appointing of an executor or the disposing of goods and cattels c) Atque huc tendit quod scriptum reliquit Minsing in Rub. de mil. test n. 6. videlicet apud eas gentes quae iuris ciuilis obseruatione non tenentur quarum Anglia est praecipua ius militarâ—s tesâ—â—menti obtinere si nulla ê“pria lex extet Of the forme of a vvritten testament 1 Diuers things considerable in a written testament 2 In what matter or stuffe the testamente is to bee written 3 In what language the testament is to be written 4 In what hand may the testament be written 5 VVith what notes or characters is a testament to be written 6 Limitations of the former conclusion 7 Of the words and sentences of a written will 8 Whether it be necessarie that there be witnesses in a written will 9 How the witnesses are to depose in proouing the will to be written by the testator 10 What if the testament bee founde in the testators Chist §. xxv WE haue heard elsewhere in what cases it is needefull that the testament bee written a) Supr 1. part §. 11. namely where the testator doth deuise any lands tenements or hereditaments b) Stat. H. 8. an 32. c. 1. and also when the same ought to be written that is to say in the life time of the testator c) Eodem stat with diuerse other questions there absolued Now †let vs heare of some other things which may seeme to appertaine to the forme of a written testament namely in what matter or stuffe the testament is to bee written in what language with what hand letters notes or characters with what wordes or sentences and whether it bee alwayes necessarie that there be witnesses of a written testament For the †matter wherein the testament is written the law regardeth not whether it bee paper or parchment or other like stuffe apt for writing d) §. nihil Instir de testa ordi Spec. de Instr edit §. 8. n. 21. Sed quid si quis scripserit voluntatem suam in puluere numquid valebit testamentum vt scriptum Et videtur quod sic per L. milites C. de testa Hoc vno subaudito nimirum nostratiuÌ„ testamenta omni immunitate atque adeo iure militari gaudere vt scriptum reliquit D. Smitheus Tract de repub Angl lib. 3. c. 7. Contrarium tamen scilicet non valere huiusmodi testmÌ„ tanquam in scriptis conditum existimo Saltem ad effectum illum de quo sit mentio in d. stat H. 8. an 32. c. 1. id quod ex mente illius statuti sacile colligere licet Et huc ê‘tinet quod scriptum reliquit Molin in L. 1. §. eod ff de verb. ob n. 9. Neither is it material in what †language e) Minsing in d. §. nihil the same be written either Latine French or anie other tongue For the †hande or letters wherewith the testament is written the lawe is indifferent whether it be Secretarie hand Roman hand Court hand or any other hand either faire or otherwise so that the same may bee read and vnderstoode f) DD. in L. quoniam C. de testa For the †notes or characters it skilleth not whether the same be vsuall or vnaccustomed g) Hoc intelligant Iustinianistae ê‘cedere iure gentium quo nos vtimur Nam iure ciuili testmÌ„ in scriptis fieri non potest per notas aut zypheras inusitatas vt teneÌ„t Bar. Bald. Angâ—l alij in L. quoties §. 1. ff de haered instituend praeterquam in casibus exceptis veluti in testamento militis ad pias causas c. de quibus Vasq de success creat lib. 2. §. 15. requisit 16. Tiraquel de priuileg piae causae c. 13. Grass Thesaur com op §. testmÌ„ q. 10. Vsuall or accustomed notes bee these xx s. for twentie shillings Cl. li. for an hundred and fiftie pounds 1590. for a thousande fiue hundred fourescore and ten with such like whereof I might bring infinite examples vnaccustomed notes and characters bee as when the testator dooth vse the figure 1 in stead of the letter A the figure 2 in steade of the letter B the figure 3 in stead of C c. or perhaps some other more straunge characters then these in place of letters Howbeit †if the characters bee such as the same cannot be read or vnderstood the testament is as if it were not written h) L. 1. ff si Tabul testa
dissent aboute the election of the thing bequeathed this controuersie is to be decided by lot if it be not otherwise resolued who in that choise is to be preferred (g) §. optionis Instit de lega Of vncertaintie in respect of the time or date of the testament 1 When it is vncertaine whether of two testaments is later both are voide 2 The testament in fauour of children is presumed last 3 The testament ad pias causas is presumed last 4 The will once proued is not to be reproued by an other of the same date 5 A souldier may die with two testaments 6 Which of these two testaments is presumed later the testament ad pias causas or the testament inter liberos §. xj WHere †two testaments be founde but vncertaine whether of them is the later in this case neither testament is good a) Gloss in L. vlt. C. de edict â—i Adria toll Clar. §. testmÌ„ q. 100. for no man can die with two testaments b) L. quaerebatur ff de testoÌ„ mil. and so the one testament doth destroy the other c) Bar. in L. 1. §. 1. ff de bon poss secundum Tabul Neuerthelesse if the †one testament be made in fauour of the testators children or of those who are to haue the administration of his goods in case he had died intestate and the other testament in fauour of others then that testament shall preuaile which is made in fauour of the testators children or of them which otherwise are to haue the administration of his goods d) Bar. in d. §. 1. Sichar in L. vlt. C. de edicto Di. Adr. toll Mantic. dâ— coniect. vlt. vol. lib. 2. tit 15. n. 17. Or if †the one testament be made ad pias causas the other not then that testament ad pias causas is presumed last and so to take place e) Ias Sichard in d. L. vlt. Or if †the one testament be proued the other perhappes not as yet appearing and the executors in possession of the testators goods by vertue of the testament alreadie proued it is not afterwards to be reproued nor the executors dispossessed by meanes of the other testament of the same date f) Bar. in d. §. 1. Ias Sichard in d. L. vlt. Or if †the testaments be militarie testaments for then perhaps they are both good because a souldier may die with two testaments g) L. quaerebatur ff de mil. testa Where it is saide that that testament is presumed later which is made in fauour of them that are to haue the benefite of the administration of the testators goods or ad pias causas rather then those testaments which are not made ad pias causas nor in fauour of them which are to haue the administration What †if two testaments be found the one in fauour of the testators children or such as are to haue the administration of the goods of the deceased the other made ad pias causas and it dooth not appeare whether of them is former or later whether is to be presumed last and so of force I suppose that if they which are to haue the administration of the testators goods in whose fauour the testament is made be the testators children then that testament made in their fauour is to be presumed later rather then the testament ad pias causas h) Mantic. de coniect. vlt. vol. lib. 6. tit 3. n. 43. Vide supra 1. part §. pen. in sin quod ibi adnotaui ex Augustino otherwise the testament ad pias causas is to be presumed later rather then that testament made in fauour of collaterall kinsmen i) Mantic. vbi supr per L. sancimus C. de sacrosan ecclesia Of an vnperfect testament 1 Two sorts of vnperfect testaments 2 Whether a testament which is vnperfect in respect of solemnitie be voide 3 When a testament vnperfect in respect of will is voide 4 Two meanes whereby testaments are saide to be vnperfect in respect of will 5 Whether the testament be voide which is vnperfect by the former of these two meanes 6 By the ciuill lawe the testament vnperfect in respect of will is voide 7 Whether a testament ad pias causas being imperfect in respect of will be voide 8 That which hath place in testaments ad pias causas hath place also in our testaments 9 Whether a testament being vnperfect in respect of will by the second meanes be voide or not 10 What if the testator after hee haue declared his whole will reserue somewhat to be done at an other time 11 What if the testator hauing declared his testament doo sende for a Notarie to write and die in the meane time §. xij OF imperfect †testaments there be two sorts the one vnperfect in respect of solemnitie the other vnperfect in respect of will a) L. hac consultissima § ex imperfecto C. de testa ibi Paul de Castro Ias alij Boer decis 240. n. 4. 5. That testament is said to be vnperfect in respect of solemnitie which wanteth some of the legall requisites necessarie to the constitution and denomination of a solemne testament b) Sichard alij in d. §. ex imperfecto of which we haue alreadie spoken c) Supra 1. part §. 7. part 4 §. 23. That testament is said to be imperfect in respect of will which the testator hath begun but cannot finish as he would being preuented by death insanitie of minde or other impediments d) Ias Sichard alij in d. §. ex imperfecto L. si is qui de testa ff L. furiosus qui testa fac poss C. The †testament which is vnperfect in respect of solemnitie is vtterly voide by the ciuill lawe e) L. 1. de iniusto testoÌ„ ff L. hac consultissima §. ex imperfecto C. de testa DD. ibid. Minsing in §. sed cum paulatim Instit de testa ord n. 12. Iul. Clar. §. testmÌ„ q. 89. but by the lawes ecclesiasticall f) c. relatum el. 1. c. cuÌ„ esses de testa extra and especially by the generall custome of this realme g) Tract de repu Aug. lib. 3. c. 7. Lindw in c. statutum de testa lib. 3. prouinc const Cant. the testament is good without any such solemnities sauing that where lands tenements and hereditaments be deuised by will the solemnitie of a writing in the life time of the testator is precisely necessarie without the which the deuise of lands tenements and hereditaments is meerely void h) per Stat. H. 8. â—an 32. c. 1. vt refert D. Smith Tract vt supra Quod tamen quaere The †testanent which is vnperfect in respect of will is sometimes vtterly voide and sometimes it is good so farre forth as it is done which diuersitie of effects doth arise by the diuersitie of the meanes whereby the testament is vnperfect If
case namely when some speciall or certaine thing is bequeathed it is materiall whether the legacie be of lands tenements or hereditaments and so the question determinable in the temporall court according to the lawes temporall of this land are of goods and so the controuersie to be decided in the ecclesiasticall court according to the lawes ecclesiasticall of this realme If of lands tenements hereditamēts as when the testator for example doth in the former part of his wil deuise his lāds in such a place to one in fee and afterwards in the later part of the same will to another person in fee it seemeth by the lawes of this realm that the later part doth ouerthrow the former s) Plowd in cas inter Paramor Yardley fol. 541. And that as the later testament dooth destroy the former testament t) Eadē enim est ratio partis ad partem atque totius ad totum Euerard loc top à toto ad partem so the later part of a testament doth infringe the former part of the same testament when it is contrarie thereunto neuerthelesse I wil not presume to affirme that this conclusion is vndoubtedly certaine but with due submission surrender the same to be discussed by the learned in the lawes temporall vnto whom it rightly appertaineth If the deuise be of goods as when the testator dooth bequeath his signet his bookes or his horse c. First to one person and afterwards to another person then in case the second legacie be simple I meane without mention of the former the former legacie is not taken away but the two legataries concurring ought to diuide the legacie betwixt them v) Paul de Castro Ias Zas in L. si pluribus ff de leg 1. Ripa in L. re coniūcti n. 21. de leg 3. The reason and foundation whereupon this conclusion is builded is the testators constancie wherin the ciuill law dooth repose such confidence that whē he hath once bequeathed a thing he is not presumed to take the same away x) d. L. si pluribus verb. si quidem euidentissimè without euident presumption y) Raph. Cum. in d. L. si pluribus ibi Ias n. 12. 13. zas n. 14. qui omnes tenent sufficere coniecturalem probationem non obstante quod Textus exigat euidentissimam Quin imo probatio vel ex coniecturis emergens dicitur euidentissima in translatione legatorum Ias vbi supra post Bar. in L. si constante ff sol ma. n. 12. of the alteration of his former resolution Insomuch that if one and the same thing be left to one person in the testament and to another in the codicill yet is not the testator presumed so variable as vtterly to take away the former legacie but rather that both the legataries are to concurre and so to diuide the legacie betwixt them z) Bald. in L. cohaeredi §. cohaeres in fin de vulg pup sub ff Alex consil 169. vol. 5. Mantic. de coniect. vlt. vol. lib. 12. tit 2. n. 3. Where it is said that as the later testament doth destroy the former testament so likewise the later part of the testament dooth ouerthrow the former part thereof That is true when it is euident that the testator did meane it should be so a) d. L. si pluribus ibi DD. Mantic. de coniec vlt. vol. lib. 12. tit 2. n. 3. in fin But if it be doubtfull then without all doubt we ought to labour diligently to saue the testament from cōtradiction b) Mantic. de coniect. vlt. vol. lib. 3. tit 5. in fin Socin Iun. consil 125. vol. 1. n. 5. and not suffer one part to fight and brawle with another much lesse to permit one part to kill and destroy another in case there be any place for peace or hope of reconciliation to be had betwixt them Againe the argument is not of equall force à parte ad partem with the argumēt à toto ad totum in case there be inequalitie or diuersitie of reason betwixt the one and the other c) Euerard d. loco à toto ad partem n. 7. post Cyn. alios legû interpretes in L. cum notissimi §. in his C. de praescrip 30. ann as in this case For say that such is the force of posterioritie in testaments that the later dooth still destroy the former d) §. posteriore Instit quib mod testam infirm without any other reuocation e) Viglius Minsing in d. §. posteriore Say and thinke that the life of the later testament is euermore the death of the former testament euen because it is the later f) Grass Thesaur com op §. testm̄ q. 860. in prin supra eadem part §. 14. yet how can it be thereby iustified that the later part of a testament dooth destroy the former part whereas neither part doth receiue any life before the other g) Bar. in L. si quis ff de testa L. ex ea scriptura eod tit for vntill the whole testament be completed the partes thereof are as the sencelesse partes of an vnperfect creature or confused embrio h) d L ex ea scriptura Imo inquit Textus testamentum imperfectum est sine dubio nullum §. pen. Instit quib mod testa infir and doo receiue their life altogether at one instant namely when the testator hauing finished his testament dooth approue the same for his last wil and not before i) Iul. Clat. §. testm̄ q. 7. in fin Like as they do receiue their strength all at one moment namely at the death of the testator and not before at which time the foresaid Embrio being now growen to a perfect childe is then brought into the world when the testator doth depart out of the world k) Chrof Porcus in §. in extraneis Instit de haer qual different c. Marth de celebr miss extra If the second bequest be qualified with mentiō of the former for example the testator saith my signet which I bequeathed to A.B. I bequeath to C. D. whether in this case the former legacie be quite taken away or in part is a question wherin the writers do greatly vary l) Id quod patet per Mantic. de coniect. vlt. vol. lib. 12. tit 4 per Couar in Rub. de testa extra part 2. per Grass Thesaur com op §. legatum q. 8. per Vasq de success progress lib 3. §. 23. n. 96. c. per Doctores in L. plane L. si pluribus ff de leg 1. but the greater nūber incline to this opinion that the former legacie is not wholy taken away but that they are both ioint legataries m) Bar. in L. re coniuncti ff de leg 3. cuius opinionem frequentiori calculo receptam monstrat nobis Mantic. de coniect. vlt. vol. lib. 12. tit 4. n. 1. et refert Grass Thesaur com op §.
executor she deliuered of diuers children whether shal euery of thē be executors 168 Church goods cannot be deuised 93 Churchwardēs may sue for a legacy left vnto the Church 202 Church if any thing be left vnto the Church what Church is vnderstood 251 Citation whether it be necessarie in prouing of testamants 224 Citation whether it be necessarie in making of an account 235 By the Ciuill and Canon lawes a King cannot giue away his kingdome 67 Clause derogatorie manifold 265 Clause being derogatarie of the power of making testaments mention or reuocation thereof is not necessarie 265 Clause being derogatorie of the will of making testaments then it is needfull to make mention thereof 265 In clauses derogatory what is chiefly to be obserued 267 Clauses derogatory of small force in the testaments of simple persons 268. This worde Codicill what it is 12 Codicill rightly defined 12 Codicill called a little will testament a great will 12 The Codicill compared to a boate the testament to a ship 13 Codicils vpon what occasion they were deuised 13 Codicils may be made in writing or without 13 Codicils may bee made either by him who hath made a testament or which dieth intestate 13 Codicils part of the testament whether they be made before or after the testament 13 Codicils testaments agree in the efficient cause but they haue cōtrarie effects 14 Coexecutor not excluded by his refusall before the ordinarie 183 In the Coexecutor many thinges considerable 215 Condemned to perpetuall prison whether hee may make a testament 46 Condition in a testament ad pias causas neede not be obserued precisely 31 Conditions expressed in the disposition do not alwais make the same conditionall 116 Conditions impossible or vnhonest do not make the disposition conditionall 117 Conditions necessarie whether they make the disposition conditionall 117 Conditions being referred to that which is past are improperly conditions 117 Conditions necessarily vnderstood do not make the disposition conditionall 117 Of Conditions some be necessarie some impossible or indifferent 121 Conditions necessarie 121 Conditions impossible diuers 122 Conditions possible manifold 122 Conditions necessarie or impossible doo not suspende the effect of the disposition 124 Conditions possible do suspend the effect of the disposition 124 Conditions partly certaine partly vncertaine do suspend the effect of the disposition 124 Conditions first possible afterwards impossible whether they make void the disposition 126 That Cōdition which is both impossible and vnhonest maketh voide the disposition 126 Conditions impossible by reason of repugnancie whether they make void the disposition 126 Cōditions possible whether they do alwaies suspend the effect of the disposition 127 Conditions inducing a forme are to be obserued precisely 128 The Condition whether it may bee performed by an other person thē him that is therein named 130 The Condition whether it be reputed for accōplished when the impediment is not in the partie 131 Conditions arbitrarie are accoūted for accomplished if the let proceed not from the partie 132 The condition not performed by the impediment of the testator whether the same be reputed for accomplished in law 134 The Condition being affirmatiue it sufficeth not to put in bonds 137 The cōdition being negatiue whether it be sufficiēt to put in bōds 138 The condition if it cannot be accomplished during life then it sufficeth to put in bonds 138 The condition being negatiue if it may be performed during his life to whom it is imposed there the caution hath no place 139 A condition negatiue is then said to be accomplished when it cannot be infringed 139 The Condition being once accomplished whether it be sufficient though it doe not endure 141 The Conditiō being casuall it sufficeth if it were once accōplished 141 The Condition being arbitrarie it is sufficient that the same was once accomplished 142 The Condition being mixt then it is sufficient that the same was once accomplished 142 The Condition if it endure not by his fault by whom it is to be accomplished the thing bequethed cannot be obteyned 143 The Condition beeing of mariage whether it be reputed for accomplished if the executor were once willing though afterwards vnwilling 143 Conditions against the libertie of mariage vnlawfull except in certaine cases 150 Condition with the arbitrement will or consent of another vnlawfull 150 Condition of prohibiting mariage with some persons not vnlawfull 151 Condition hauing relation to the mariage of a thirde mariage whether the same be vnlawfull 151 Condition prohibiting mariage not reiected when pia causa is substituted 152 Conditions affirmatiue about mariage not vnlawful but in some cases 152 Condition of mariage with the aduise or counsell of another not vnlawfull 152 Condition of mariyng with the consent of another to be obserued in part 153 Condition of not marrying doeth not hinder restitution simply imposed 153 Conditions within what time the same ought to be performed no certaine time beeing expressed 156 The Condition whether it may be performed before the making of the will 157 Conditions arbitrarie whē the same ought to be performed 157 The Condition whether it may be performed betwixt the making of the will and the death of the testator 158 The Condition within what compasse of time it may or ought to be performed after the Testators death 158 Condition of mariage whē it ought to be performed 159 Condition of prohibiting mariage whether it bee meant of the first mariage onely 151 Condition prohibiting mariage in some place not vnlawfull 151 Conditionall legacie not due before the condition be extant 290 The Condition depending if the legatarie die whether the legacie be transferred 290 Corne on the ground wherof a man is seised in right of his wife whether the same be deuisable folio 93 Corne on the ground whether the same be deuisable by the lessee the lessor being seysed in right of his wife 93 Corne on the ground whether the same be deuisable by the tenant by the curtesie 93 Corne on the ground deuisable by the tenant in dower 93 Corn growing on lands morgaged whether the same be deuisable so 93 Corn on the ground whether the same may be deuised by the testators daughter where a sonne and heire is afterwards born or wherin her mother dooth recouer her dower 94 Corn on the ground to be inuentaried 218 Corn in the barn bequeathed the same being spent and other corn there at the testators death whether the legacie be good 278 Custome of Gauelkind whence it sprang 71 Custome of deuising lands to certain vses reformed 72 D He that is both Deaffe and Dumbe may make a testament 51 Deaffe but not dumbe whether he may make a testament 52 Declaration of a mans will may be referred to another 148 Definition of a testament 3 The Definition of a testament vnworthily reprehended 3 Definitions dangerous in law folio 4 Definitions wherfore dangerous fol. 4 A perfect Definition very profitable 5 Definition of a last wil. 11 Definition
of a codicill 12 Definitions of a codicill and a testament how they agree or differ 12 Definition of a legacie or deuise fol. 14 Definition of a gift in consideration of death 16 Definition of a solemne testament 17 Definition of a testament mētioned in the Ciuil law whether it agree with our testaments in England 19 Definition of a testament comprehendeth both solemne and vnsolemne testaments 19 Definition of a testament is not of any speciall testament 21 Definition of a priuiledged testamēt 24 Definition of a testament amongst children 29 Definition of a testament ad pias causas 30 Definition of an idiot or naturall foole 39 Definition of a slaue 43 Definition of an Apostata 55 Definition of a famous libel 58 Definition of appointment of an executor 112 Defect in the testators meaning 261 Defect of solemnitie whether it doe make void the testament 257 Defect of will whether it destroy the testament 258 Degrees of consanguinitie prohibiting mariages here in Englande 57 Of Degrees of Executors 177 Debtes whether they ought to be put into the inuentarie 218 Debtes which are first to be payed 228 Debtes to the Prince are first to be payd 229 Of Debts due by recognisance and statute merchant 229 Of Debts vpon iudgementes folio 229 Of Debtes vpon obligation folio 229 Of Debts vpon billes and bookes 229 Of Debts without specialty 229 Debt due to the executor whether it is to be allowed 230 Debts due by the testator discharged by the executor with his own mony whether he may retain the testators goods 230 A Debt being bequeathed and afterwards receiued by the testator whether the legacie be extinguished 281 Difference betwixt a testament and all other kindes of last willes 7 The Difference betwixt a testament and other sentences 10 Difference betwixt the definition of a last will and the definition of a testament 11 Difference betwixt these two words Lawfull and Iust 11 Difference betwixt these two words Disposition and Sentence 11 Difference betwixt a legacie and a gift in case of death 14 Difference betwixt a slaue and a villeine 43 Difference betwixt the executor of an executor and the executor of an administrator 92 Differēce betwixt these two phrases if he do not marry and so long as he doth not marry 153 Difference betwixt these phrases Jf he die without issue and If he haue no issue 166 Difference whether the legacie be referred to the substance or execution of the disposition 173 Difference betwixt substituting by proper names and by names appellatiue 179 Difference betwixt obscuritie ambiguity 192 Difference betwixt the lawes Ciuill the lawes Ecclesiasticall about the education of bastards 200 Differēce betwixt the vulgar and legall forme of prouing testaments 224 Difference betwixt a proper name and a name appellatiue 246 Difference betwixt these wordes J geue and I bequeath 284 Different effects of a simple assignation of an executor and a simple legacie 119 Distinction of legacies confounded 15 Distribution of the residue of the testators goods 235 Diuers kinds of conditions 121 Deuise of landes not good without writing 23 Doctors of the law and cleargy mē what priuiledges testamentary they enioy 27 All Doctors or Diuines not priuiledged 28 Donor of lands in taile whether he may prohibite alienation 154 Doubt about the date of willes maketh both voyd 29 Dumbe but not deaffe whether such a person may make his testament 52 A Drunken person whether he may make a testament 42 E Of Ecclesiasticall persons some be regular some be secular 64 Ecclesiasticall persons are not simply prohibited to make their testaments 64 Ecclesiasticall persons may make their testamentes of all goods which they haue not in right of the Church 64 Ecclesiasticall persons cannot make their testaments of things immoueable which they posses in right of the Church 65 An Ecclesiasticall person may make his testament of the glebe by him sowen .. 65 An Ecclesiastical person whether he may make his testament of all mouable goods which he hath in right of the church 65 Effects of interlocutorie and definitiue sentences be contrary 9 The Effects of testaments and codicils contrarie 14 Efficacie of a nuncupatiue testamēt 24 The effect of dieng with or without a testament 112 Effect of a pure or simple nomination of an executor 116 Effects of conditions diuers and cōtrarie 123 The Effect of the disposition is not suspended by necessary or impossible conditions 124 The Effect of the disposition is suspended by possible conditions 124 Effects of substitution of executors 177 Effects of an inuentarie 220 Effects of a perfect account 236 Effects of a bare reuocatiō 169 Effectes of an vnperfect accoumpt 236 Effect of cancelling testamentes 270 Election whether it belong to the executor or legatarie 255 Election in what maner it ought to be made 255 Election belōging to the Legataries which of them ought to chuse first 256 In Election if the collegataries dissent what meanes is to be vsed 256 Emblements See corn on the groūd Encrease or decrease of solemnities doeth not make any disagreement betwixt our testamentes and the definition of a testament 20 In England testators are not tied to the obseruation of any other solemnities the such as bee Iuris Gentium 6 In England our testaments though vnsolemne haue the effectes of testaments properly so called 21 End of an account 236 Enimity a cause whereby the legatarie doeth lose his legacie 286 By Enimitie whether the legacie be lost if the testator were the cause thereof 286 By Enimitie the legacie is not alwayes lost 287 Errors detected about the definition of a testament 7 Error may happen diuers wayes 244 Error in the person of the executor or legatarie doth destroy the disposition 244 Error in the name of the executor or legatarie whether it hurte the disposition 244 Error in the qualitie of the executor or legatarie whether it destroy the disposition 245 Error in the thing bequeathed manifold 245 Error in the proper name of the thing bequeathed whether it destroy the legacie 245 Error in the name appellatiue of the thing bequeathed whether it destroy the legacie 245 Error in the substance of the legacy whether it make voyd the legacie 246 Error in the quantitie of the thing bequeathed whether it be hurtful 246 Error in the quality of the thing bequeathed whether it be hurtfull 248 Error in the forme of the disposition destroyeth the force therof 248 Essentiall forme of a testamēt is the naming of an executor 112 Examples out of the olde testament whereby it may seeme lawfull for kings to geue away their kingdomes 66 Examples out of prophane histories tending to the same ende 66 Examples of a pure or simple appointment of an executor 114 An Excommunicate person maye make his testament except in certaine cases 60 An Excommunicat person whether he may be executor 198 An Executor wherefore he cannot dispose the testators goods by legacie 49 An Executor made without expresse mention of this worde Executor
make a testament 53 Infants as well as others of full age may be made executors 196 Infanitie of minde see Madnes Intestable actiuely by occasion of any crime is intestable also passiuely 203 Inuentary to be made by the tutor 101 An Inuentarie being made the executor need not to pay any legatarie his whole legacie where there is not sufficient to pay the rest 107 No Inuentary being made how far the executor is bounde to pay legacies 108 Inuentary necessary 217 Inuentarie wherefore necessarie 217 In the Inuentary what things are to be put 218 Inuentarie to bee made before the executor meddle with the testators goods 219 Inuentary indented 219 Ioyntenāt whether he may bequeath his part of Burgage land 71 Whos 's Issue is naturall not lawfull whether he is said to die without issue 161 Whos 's Issue is lawfull not naturall whether he be said to die without issue 261 The Issue whether it is the former or second husbands when it is doubted which of them did beget the same 165 Issue whether shall he be deemed to haue who had children but not at his death 166 Issue whether shall he be deemed to haue whose childe is vnborne when he dieth 167 The Issue if it die so soone as it is borne whether shall the father be deemed to haue died without issue 167 If the Issue be borne dead or die as it is borne whether shall the father be sayde to haue had Issue folio 168 This word Iust hath diuers significations 5 Iust opposed to that which is wicked 5 Iust taken for full and perfect 6 Iust what it signifieth in the definition of a codicill 12 K Hee that Killeth himselfe is intestable 58 Kin if the testator make his Kin executor which of his kin is to bee admitted 252 Many kindes of testaments 16 Two Kinds of iudiciall sentences 9 Diuers Kindes of legacies now confounded 15 Three Kindes of giftes in regarde of death 16 Diuers Kindes of priuiledged testaments 25 Three Kinds of Apostasie 55 Two Kindes of Ecclesiasticall persons regular and secular 64 Diuers Kinds of conditions 121 Diuers Kinds of Bastards 198 Diuers kinds of executors 205 Diuers Kindes of executors testamentarie 207 A King whether by his testament he may bestowe his kingdome at his pleasure 66 Knowne or vnknowne persons may be made executors 196 L Landes not deuisable without writing 23 Lands at what age they may be deuised 35 Lands are not deuisable but in certaine cases 70 Lands holden in gauel kind deuisable 70 Landes holden in burgage tenure deuisable 17 Lands deuisable to certaine vses 72 Lands in what cases they may be deuised by the lawes of this realm 77 Lands deuised alienated and redeemed whether the same may bee recouered 280 Last will is a generall worde 3 Last will how it is defined 11 Later testament doth infringe the former 263 By the lawes Ciuill and Canon a King can not giue away his kingdome 67 Whether by the lawes of this realm a King may giue away his kingdome 67 Leases are to be put into the inuentarie 218 Legacies bequeathed by him which dieth intestate by whom they are to be paied 13 Legacie what it is 14 Legacies proceede of liberalitie 14 Legacies payable as well by an administrator as by an executor 15 Legacies are to be payed out of the cleare goods 104 Which legacie is firste to bee paied whē there is not sufficient goods to pay euery legacie wholie 107 A Legacie may be giuen to or from a certain time or to or from an vncertaine time 172 The Legacie is not transmissible which is giuen from an vncertaine time 172 The Legacie whether it bee transmissible the vncertaintie being about the question whether not this question when 172 The Legacie is not transmissible if the question bee onely when not whether 173 The Legacie whether it be transmissible which is giuen after a certaine age 173 The Legacie sometimes transmissible albeit the age be ioined to the substance of the legacie 173 A Legacie being left to a bastarde whether the same bee presumed to bee left for his alimentation 202 A Legacie of wine or corne no quātitie being expressed whether the same be void 255 Legacie due though the executor cannot or will not vndertake the executorship 276 The legacie if it be referred to a certaine day whether it begin to be due at the death of the testator 291 The Legacie is extinguished if the thing bequeathed doo perish 292 The Legacie is not extinguished if the thing bequeathed do perish by the negligence of the executor 292 The Legacie which is generall or doth consist in quantitie cannot perish 293 The Legacie whether it be extinguished if the thing bequeathed be not destroied but the forme onely altered 293 The Legatarie may not take his Legacie of his owne authoritie 15. A Legatarie may not of his owne authoritie take his legacie and what is the reason 119 Legataries what remedie they haue for the obteining of their legacies 119 The Legatarie may sometimes take his legacie of his owne authoritie 119 A Legatarie whether hee may bee a witnesse 187 Legatarie ought to bee capable of the legacie at the testators death 276 Legataries by what meanes they may be made incapable of their legacies 286 A Legatarie whether he loose his legacie by reason of enimitie betwixt him and the testator 286 The Legatarie looseth his legacie by accusing the testament of falsitie 288 The Legatarie looseth his legacie by cancelling the testament 288 The Legatarie whether he loose his legacie by entring to the possession without authoritie 288 The Legatarie if he die at the same instant when the testator dieth whether the legacie be lost 289 A Libeller cannot make a testament 58 A libeller cannot bee executor 203 Licence of the husbande maketh good the wiues testament 47 Licence of the husband whether it must go before or may concurre or follow the wiues testament 48 Licence granted by the husband to the wife whether when it may be reuoked 48 M Mad folks cannot make their testaments 36 Madnes being past whether the testament be good 36 A mad man may make his testamēt betwixt his sits 37 Madnes to be proued by him which obiecteth the same 37 Madnes before the making of the testament whether it be presumed to continue 37 Madnes hard to be proued 38 Madnes how it may be proued 38 Madnes whether it may be proued by singular witnesse 38 Madnes whether it may be proued when the witnesses yeelde a generall reason of their knowledge 38 A Manifest vsurer cannot make a testament 56 A Manifest vsurer not to be buried in any Church or Churchyarde 57 Many being appointed executors whether one may be admitted without the rest 181 Manifest vsurers incapable of testamentarie benefite 203 Many things to bee considered of him that would be resolued whether it were better to accept or refuse the executorshippe folio 209 Mariage though it be vnsolemne yet it is a true mariage 20 Mariages
incestuous 57 Meaning or will of the testator chiefe gouernour of the testament 9 The Meaning of the testator diligently to be sought and faithfully to be kept 9 Meaning to be preferred before words 9 Meaning not wordes to be regarded 116 The meaning of the testator to be preferred before the proprietie of words in the deuise of lands proued by diuers examples 118 For the Means it skilleth not where the end is regarded 129 To medle as executor what it is 236 Mention of condition doth not alwaies make the disposition conditionall 116 Mention to be made in the later testament of the former amongest children 29 Militarie testaments vnsolemne yet properly testaments 20 In Minoritie whether a testament may be made with the authoritie of the tutor 35 In Minority whether a souldier may make his testament 35 Mind and memory presumed to be perfect 37 The mind of the testator giueth life to the testament 261 Mixt conditions whether they be reputed for accomplished when it dooth not stand by the partie wherefore the same is not performed 133 Modus conditio how they differ 137 A Monster being born whether shal the parēts be iudged to haue died without issue 168 Mony due for land whether the same ought to be put into the inuentarie 218 Of Mortuaries 230 Mortuaries to be taken but in certaine cases 230 Mortuaries not due where the moueable goods do not extend to ten marks 230 Mortuaries not due but in places where they haue bene vsed to be paid 231 Mothers whether they may appoint tutors to their children 97 Multitude or scarcitie of solemnities doth not make our testaments to disagree with the former definitiō of a testament 20 He that standeth Mute at the barre may make his testament of his lands 54 Mutiana Cautio why it is so tearmed 138 N Necessarie conditions whether they make the disposition conditionall 117 Necessarie conditions which they be 121 Of Necessarie conditions there be two sorts 121 Necessarie conditions doo not suspend the effect of the disposition 124 Necessarie conditions being otherwise expressed then vnderstoode suspend the disposition 124 The necessitie of an inuentarie 217 A Negatiue condition is then saide to be accomplished when it cannot be infringed 139 Notes vnaccustomed do not hurt a testament ad pias causas 30 Notes or characters of a written testament 190 Notable goods 222 Nuncupatiue testament what it is 24. Nuncupatiue wherefore so called 24 Nuncupatiue testament of what efficacie 24 Nuncupatiue testaments when they be commonly made and why then 24 Nuncupatiue testament made diuers wayes 24 A Nuncupatiue testament whether it lose his force by cancellation 270 Number of witnesses needfull or sufficient for the proofe of a testament 185 The number of witnesses doth somtimes supply the defect 186 O Obiections against the definition of our testaments in England 19 Obscuritie what it is and howe it may be auoided 192 The office of a tutor dooth principally respect the person of the pupill 101 The office of an executor testamentarie wherein it doth principally consist 217 Office of the ordinarie in an account 235 One onely vsurarie act whether it make a manifest vsurer 56 One alone or mo together may be appointed executors 181 One of the executors may execute when the rest refuse 183 One executor alone whether hee may sue or be sued without his fellowes 183 One executor cannot sue another 183 One witnesse sometimes sufficient for the proofe of a testament 186 One executor whether he may sue another 215 One executor whether he may preiudice an other 215 One of diuers executors may sell the testators goods 216 One onely mortuarie due 231 One and the same thing being bequeathed first to one and afterwards to another whether it may be wholy taken away from the former 283 The Ordinarie whether he may appoint a tutor 97 The office of a tutor secondarilie doth respect the good administration of the pupils goods 101 The Ordinary whether he may limit a certaine time for the performance of the condition 159 The Ordinary may commit administration vntill the executorship take place or after the executorship is ended 171 Oath about the inuentarie 220 Oath of the executor prouing the wil. 225 An other person cannot make my testament 10 Old age alone doth depriue no man of the libertie of making a testament 42 An Old man childish cannot make his testament 42 An Old man which hath lost his memory cannot make a testament 42 An Outlawed person looseth his goods and the benefite of the lawe 59 An Outlawed person whether hee may make his testament 59 An Outlawed person doth somtimes forfeit his lands as well as his goods 59 An Outlawed person may make his testament of his lands not forfeited 59 An Outlawed person may assigne tutors testamentary to his children 59 An Outlawed person may make his testament when there is some errour in the writ 59 An Outlawed person whether he may bee executor 198 P Of Paying part of the testators debts receauing an acquittāce for the whole 230 Peculiar to a written testament 23 A Perfect definitiō profitable to many purposes 5 Euery Perfect wil is not a perfect testamēt 7 Euery Person may make a testament which is not prohibited 34 What Persons are prohibited to make a testament 34 Perticular executor may meddle with no more then is alotted vnto him and therefore no further charged but according to that portion 175 Perticular formes of testaments be so many as there be seuerall kindes of testaments 188 Perticular persons of an vnlawfull colledge may be executors 202 At the Point of death whether a testament may be then made 61 A Poore man whether he may be a witnesse 188 Poore if the testator leaue any thing to bee giuen to the poore which poore are to haue the same 251 By Possessing the thing bequeathed of his owne authoritie whether the legatary doo loose his legacy 288 Of Possible conditions there bee diuerse kindes 122 Possible cōditions whether they do alwaies suspend the effect of the disposition 127 Posteriority presumed for that testament which is among children 29 The Power of parents in assigning tutors to their children 96 The Power of Gardians 99 Precise obseruation of the condition in a testament ad pias causas not necessary 31 Of the Prerogatiue of either Archbishop 221 If the Prince giue goods to the executor of an outlawed person whether he be therby chargeable with the paiment of legacies as hauing assets 59 The Prince though he die before the testator his successors may obtaine the legacie 290 The Prince may frustrate the gifte or testament of the villaine at any time 44 Priuiledged testaments what they be 24 Priueledged wherefore so called 24 Of Priuiledged testaments diuers kinds 25 What Priuiledges Diuines and Lawiers enioy concerning their testaments 28 What Priuiledges Souldiers enioy in making their testaments 25 What Priuiledges belong to the testament amongst testators children 29 Priuiledge of proofe whether it be
peculiar to the fathers testament amongst his children 29 Priuiledges of a testament ad pias causas what they be 30 Priuiledges belonging to a military testament or amōgst children whether they belong to a testament ad pias causas 31 Priuiledged testaments being soūd without date which is presumed to be later 31 A Prisoner whether hee may make a testament 46 Probation of testaments belongeth to the Bishop of the dioces where the testator dwelleth 221 Probation of testamentes sometime belongeth to other then to the Bishop 221 Probation of testaments to be made by the executor 222 Probation of the testaments to be made after the death of the testator not before 223 Prodigall persons whether they be intestable 60 Prochein Amie accomptable to the warde after his full age 99 Prohibition of the first mariage more odious then the second 150 Prohibition of alienation sometimes to be obserued as lawfull sometimes not 154 Prohibition with a cause lawfull 154 Proofe of making the testament to be made either by witnesses or by writing 185 Proofe requisite in making an accompt 234 Protestation of feare by the testator whether it be a sufficient proofe of feare or not 242 A Pure appointment of an executor what it is 114 Q Of the Quantitie of lands deuisable 103 Of the Quantitie of goods and cattels deuisable 104 What Quantitie of goods is due to the wife and children 104 A Quantitie bequeathed first to one and afterwards to an other whether this be an ademption or translation of the former legacy 285 Whether a Queene may make her testament 48 Questions about the tuition of children 95 Questions about conditions 126 Questions about accepting or refusing of the executorship 208 Questions about the making of an Inuentary 217 Questions about the probation of testaments 221 Questions about the paiment of debts and legacies 228 Questions about accompts 232 Questions about clauses derogatory 265 R Rare is that definition which can not be ouerthrowne 4 Of Reason destitute cannot make a testament 8 Reasons tending to this purpose that a King may by his testament make away his kingdome 66 A Resonable part whether it be due to the wife and children when there is no custome 105 The Reason of the lawe which leaueth all to the disposition of the testator 106 The Reason of the custome whereby the libertie of the testator is restrained 106 Reasons wherefore executors are accomptable 232 Referring of the testators will to an others will sometimes lawfull 148 By Refusal before the ordinary whether the coexecutor be excluded 183 By Refusall of the executorship the ordinary hath power to commit administration 208 By Refusall of the executorship whether the executor loose his legacy 208 After Refusall whether the executor may meddle as executor 216 Regular persons 64 Religious persons cōpared to dead men 64 Religious persons compared to bond mē 64 What Remedie the creditors legataries haue during the suspence of the condition of the executorship 169 Rentes whether they may be recouered by the executor 211 The Residue of the testators goods whether the executor may conuert to his owne vse 214 Residue of the testators goods to bee distributed 235 Resolued to refuse the executorship must not meddle as executor 236 Of Reuocations some be generall some speciall some singular 266 Reuocation generall what it worketh 266 Reuocation special what it worketh 266 Reuocation singular what it worketh 267 Reuoked by what means may that testament be wherein is a speciall clause derogatorie circūscribed with certein limits 267 Reuoke his testamēt may euery one 268 Reuocation of a mans testament is not presumed 268 Reuocation sometimes presumed 269 Rigor of the Ciuill lawe concerning testaments 17 The Rigor of the Ciuill lawe iustly reformed 17 S Secular clarkes 64 Sentence what it signifieth 7 Sentences iudiciall of two sortes 9 Sentence how it differeth from this word disposition 11 A simple legacy beginneth to be due at the death of the testator 289 Seuerall sortes of sentences haue seueral effects 7 How a testament differeth from other Sentences 10 A Slaue what he is 43 A Slaue cannot make a testament 43 A Slaue hath nothing of his owne 43 A Sodomite who 58 A Sodomite cannot make a testament 58 He that hath sworne not to make a testament whether hee may make a testament 60 Solemne testamentes not vsed in England 17 What Solemnities are requisite in our English testaments 6 Souldiers wherefore they enioy so great priuiledges about their testaments 25 Soldiers wherin are they priuiledged cōcerning their testaments 25 Souldiers priuiledged not onely in respect of their owne persons but others also 26 Souldiers priuiledged in respect of solemnities testamentary 26 Souldiers priuiledged in respect of the substance or forme of a testament 26 Three sortes of Souldiers 26 Souldiers armed 26 Souldier during minoritie whether he may make a testament 35 A Ship being bequeathed the same afterwards altered and renewed the legacy is extinguished 278 Studie practise of the law profitable to the common wealth 27 A Stranger whether he may appoint a tutor to an others child 97 Substitutions of diuers kindes 177 Substitutions haue sundry effects 177 The Substitute executor is not to be admitted so long as he which is instituted in the first degree may bee executor 178 The first Substitute being repelled whether the rest be repelled likewise 178 The Substitute is not alwaies excluded by the admission of the executor first instituted 178 The Substitute ought to succeede in that part and quantity which was assigned to the former executor 179 Sufficiency of goods whether it be presumed 221 T Testament and last will haue diuers definitions 2 This word Testament is sometimes taken in a generall signification sometimes in a speciall 2 This word Testament taken generally doth not differ from a last will 3 A Testament taken specially or according to definition is but one kinde of last will 3 A Testament what it is 3 Testaments must be iust 5 Testaments must be perfect 6 What maketh a Testament to differ from other kinds of last willes 7 The Testament not to be referred to an others will 10 The Testament of no force vntill the testator be dead 10 Testaments amongst children vnperfect yet properly testaments 20 Testaments whē they be properly so called 21 Testaments fauourably expounded 24 Testaments amongst children what it is 29 Testaments amongst children presumed to be last 29 Two Testamentes appearing and no proofe which is first or last both are void 29 Testament ad pias causas what it is 30 Two Testaments priuiledged found without date which is presumed to be the later 31 Testament may be made by any person which is not forbidden 34 Testament made in minority whether it be good if the testator liue vntill hee come to lawfull age 35 Testament made during the time of madnes whether it be good when the testator is come to himselfe 36 Testament made by a lunatike person whether it be presumed to haue bene
made during his lunacy or not 38 Testament whether it may be made by him which is at the very point of deth 61 Testaments to be prooued before the ordinary 221 Testaments loose their force 2. waies 239 Testaments by what means they be void from the beginning 239 Testaments being good at the first by what meanes they become void afterwards 239 Testament made by force whether it be void ipso iure 241 Testament confirmed after feare past whether it be good 241 Testament made by feare is good sauing in fauour of the author of his feare 241 Testament made in fauour of children is presumed to be later 256 Testament ad pias causas is presumed later then others to prophane vses 256 Which Testament is presumed later the one made ad pias Causas the other inter Liberos 257 The Testament improperly tearmed Captions which is referred to the will of an other 147 The Testator must be sui iuris 10 Testator at what age he may deuise laÌ„ds 35 Testator at what age he may make a testament of his goods 35 The Testators will may not depend of an other mans wil and what is the reason thereof 147 The Testator may referre his will to anothers will ioyned with a fact 148 The Testator whether he may die partly testate partly intestate 171 The Testator may omit or exclude his own child make others executors 195 The Testator may bequeath sometimes all sometimes halfe sometimes the third part of his goods 104 Things discending to the heire and not to the executor not deuiseable 93 Translation of legacies what it is 281 Whether euerie Translation do include an ademption of the legacie 28 Translation of legacies doth not alwaies include ademption 282 In Translation of legacies whether the charge imposed on the first legatarie be transferred to the secoÌ„d legatarie 282 Traitors or fellons cannot be executors 197 Traitors be intestable 52 Traitors intestable from the time of the crime committed 53 A Traitor pardoned and restored may may make a testament 53 Tutors by whom they may be appointed 96 Tutors who may be appointed 97 Tutors to whom they may be appointed 98 A Tutor cannot be assigned to him that is in ward 98 Tutors may be appointed simplie or conditionally 99 Tutors whether they ought to enter into bond for the performance of their office 101 Tutorship ended by diuers meanes 102 Tutorship ended in respect of sufficient age of the pupill 102 Tutorship ended sometimes in respect of the tutor himselfe 102 Tutorship ended in respect of the forme of the tuition 103 Two testaments priuiledged found without date which is presumed to be the later 31 Two witnesses needful and two sufficient for the proofe of a testament 185 Time of the crime committed 53 What time hath the executor to consult whether he will take or refuse the executorship 216 Time for making an inuentarie 219 V Vaine feare hindereth not the testament 241 Villaine compared to him that is Ascriptitius Glebae 44 A Villaine whether he may make a testament or no. 44 A Villaine whatsoeuer he hath his lord may take it from him 44 A Villaines testament whether it may be made void by his lord 44 A Villaine being executor may make his testament 45 A Villaine executor may maintain action against his lord 45 Vlpian liued long before Iustinian â—9 Volunâ—arie conditions are to be obserued precisely 129 Vnaduised speeches make not a testament 8 Vnaccustomed notes do not hurt a testament ad pias causas 30 An vncertaine person cannot be made executor 203 Vncertaintie manifold 248 Vncertaintie of the person whether it destroy the disposition 249 Vncertaintie by reason there be diuers persons of one name maketh void the disposition 250 Vncertaintie vnhurtfull if the testators meaning be certaine 250 Vncerteintie doth not hinder the disposition ad pias causas 251 Vncertaine by reason of alternatiue speech vnhurtfull 252 Vncertaintie by reason of generalitie in the thing bequeathed whether it destroy the disposition 254 Vncertaine testaments preserued from destruction by the equitie of the lawes Ecclesiasticall 255 Vncertaintie about the date of two testaments maketh both voide 256 Vniust things not to be commanded by the testator 5 Vniuersall executor may enter to all the testators goods and catâ—els and therefore chargeable with the payment of all his debts 175 An Vnlawfull Colledge cannot be executor 202 An Vnlawfull Colledge when it is so reputed 202 Vnperfecte is the testament by two meanes 6 Vnperfect in respect of solemnitie folio 6 Vnperfect in respect of will 6 Vnpriuiledged testaments what they are 32 Of Vnperfect testaments there be two sorts 257 Vnperfect in respect of solemnitie whether the testament be void 257 Vnperfect in respect of will whether the testament be void 258 Vnperfect in respect of will the testameÌ„t may be by diuers meanes 258 An Vnperfect testament is voide by the Ciuil law 258 An Vnperfect testament ad pias causas being vnperfect in respect of will whether it be voide 258 Vnperfect in respect of will the testament is not by reseruation of some thing to be added 2â—9 Vnsolemne testament what it is 18 An vnsolemne testament if it were not properly a testament what inconuenience would follow 20 Vsurer manifest cannot make a testament 56 Euery Vsurer is not intestable 56 A manifest Vsurer who is 56 Whether he be an Vsurer which lendeth for gaine but dooth not receiue any more then the principall 56 An Vsurer is not intestable in England vnlesse he take aboue ten in the hundred for a yeares forbearance or after that rate 56 Vsurie how it is punished in England 56 Vsurer manifest not to be buried in any Church or Churchyard 57 Vsurer manifest incapable of any testamentarie benefite 203 Vulgar forme of prouing testaments 223 W The wardship of a child that hath lands who shall haue 98 Of Wards the hard estate 98 All Wards are not subiect to the like conditions 99 The Wardship of an infant hauing lands in soccage to whom it belongeth 99 Wardship ended by diuers meanes 102 The Wife cannot make her testament of lands though her husband consent 47 The Wiues testament whether it bee good after the death of hir husbande 47 The Wiues testament of lands somtimes good in law notwithstanding the couerture 47 The Wife cannot make hir testament of goods without hir husbandes license and why 47 The Wife may in some cases make hir testament without hir husbandes license 48 The Wife may make hir testament of a thing in action whereof her husband was neuer possessed 48 A Wife executrix may make an executor without hir husbands license 48 A Wife executrix cannot giue away the testators goods by hir will 49 A VVife both executrix and legatarie cannot make a testament of that which she did accept not as executrix but as legatarie 49 A VVife executrix and legatarie whether shall she be deemed to haue accepted the testators goods as executrix or as legatarie 50 A wife wherefore may she not make hir testament of that which she did accept as legatarie 49 A VVife licensed to make hir testament whether she may make any mo willes but one 50 Of a Wife Executrix 215 The Will of the testator chiefe gouernor of the testament 9 Willes are to be fauourably interpreted 193 Witnesses to the number of seuen wherefore they were exacted rather in testaments then in other acts 17 Witnesses two or three sufficient by the law of God 18 Witnesses whether they are to be required in the making of a testament 19 Witnesses not priuy to the contents 23 Witnesses whether they be necessary in a testament amongst children 29 Witnesses must be learned when they do not know the contents of the wil. 23 Witnesses deposing that the testator was of sound minde and memory to be preferred before those which depose the contrary 38 A Witnes euery one may be which is not forbidden 186 The Witnesses not being greater then all exception whether the number may supply the defect 186 Witnesses no greater then all exception in three respects 186 Witnesses are sometimes excluded for their dishonesty 187 Witnesses sometimes excluded for want of iudgement 187 Witnesses sometime excluded for affectioÌ„ 187 Witnesses whether they be always necessary in a writen will 191 A Woman couert cannot make a testament of her lands 47 A Womans testament made before marriage whether it be good if she dy during the couerture 47 A Woman whether she may be a witnes 187 Women as wel as men may be executors 196 This word testament what it signifieth 2 This Word last will what it signifieth 3 This Word lust what it signfieth 5 This VVord lust taken for ful and perfect 6 This VVord Sentence hath many significations 7 VVords vnaduisedly spoken make not a testament 8 The VVordes of the testator are not so greatly to be regarded as his will and meaning 9 These VVords lawfull and iust how they differ 1â— These VVords disposition and sentence how they differ 11 This word codicill what it signifieth 12 This word lust what it signifieth in the definition of a codicill 12 VVords vvithout meaning are of no force 116 By vvhat VVords the disposition is made conditionall 121 Of the VVords and sentences of a vvritteÌ„ testament 190 VVriting necessary in the deuise of lands 19 VVritten testament vvhat it is 22 Writing after the making of the testameÌ„t vvhether it do make it a vvritten testament 23 A VVritten testament hath some things peculiar to it selfe 23 VVithout vvriting the deuise of lands is not good 23 A VVritten Testament may be proued though the vvitnesses be not priuy to the contents 23 VVhat is to be obserued in written testaments vvhere the vvitnesses are not priuy to the contents 23 A VVritten testament in vvhat manner of stuffe it ought to be written 190 A VVritten testament in vvhat language it ought to be vvritten 190 A VVritten testament in vvhat hand it ought to be vvritten 190 A VVriting being found in manner of a vvill vvhether it be presumed the very vvill or but a draught therof 262 Y Yeares 21. requisit for the deuise of lands 35 Yeares after fourteen a boy and a vvoman after tvvelue may make their testaments of goods 35 Yeares See age FINIS Printed at London by I. Windet 1591.
deuiseable § 15. 2. Knights seruice 2. parts of 3. is deuiseable § 15. 2. Goods then in case the debts due by the testator do 1. Exceede his goods and cattels The testator cannot bequeath any thing in preiudice of his creditors § 16. 2. Not exceede his goods cattels but that somewhat doth remain cleare the debts funerals deducted Of these cleare goods if there be 1. No custome all is deuiseable § 16. 2. Any custom as there is within the prouince of Yorke in diuerse other places If the testator haue 1. wife childreÌ„ the third part is â—â—â—â—â—â—able § â— 2. wife alone or child alone the one half is â—â—â—â—â—â—able § â— 3. neither wife nor child all is â—â—â—â—â—â—able § â— A Table of the fourth part decyphering the formes of Testaments 1. General to all Testaments § 1. And of these som do apperteine to the 1. Essence thereof as the naming of an Executor § 2. who may be appointed 1 Simplie § 4. or conditionally § 5. 2 To a certein time § 17 or froÌ„ a certein time 3 Vniuersally § 18 or particularly 4 In the first degree § 19 or in the 2. 3. c. 5 Alone § 20 or with others Concerning euerie which kinde or forme of making an Executor diuers thinges are considered especially coÌ„cerning the coÌ„ditionall assignation of an executour these things are examined viz. 1. What it is what woords do make the dispositioÌ„ to be conditionall 2. How many kinds of conditions there be 3. What is the effect of a condition § 6. 4. Whether euery possible coÌ„dition ought to be obserued precisely § 7. 5. Whether the condition be accompted for accoÌ„plished when it doth not stand by the executor or legatary wherefore the same is not accomplished § 8. 6. Whether he that is executor or to whom any legacy is bequethed coÌ„ditionally may in the meane time whiles the condition depeÌ„deth be admitted to the executorship or obteine the legacie by entring into bonds to perform the condition or els to make restitution § 9. 7. Whether it bee sufficient that the condition was once accomplished though the same doo not continue § 10. 8. How farre those conditions whereby the libertie of making testaments is hindred be lawfull or vnlawfull § 11. 9. How farre those conditions are lawfull or vnlawfull wherby the libertie of mariage is hindred § 12. 10. How far those conditions are lawfull which doo prohibite alienation § 13. 11. Within what time the coÌ„dition may or ought to be performed no certeine time being limited by the will § 14. 12. Of the vnderstanding of this condition If he die without out issue § 15. 13. What order is to be taken concerning the administration of the goods of the deceased whiles the condition of the executorship depeÌ„deth vnaccomplished § 16. 2. Apparance thereof that is to say due proofe which is to be made by witnesses § 21. writing § 21. 2. particular or peculiar to some kind of Testaments viz. Of a 1 Solemne testament § 23. vnsolemne testament § 24. 2 Written testament § 25. vnwritten testament § 26. Who maie be Executor and is capable of a Legacie Euerie person may bee Executor and is capable of a Legacie certeine persons excepted § 1. viz. Whosoeuer caÌ„not make a Testament by reason of some crime by him committed § 2. A Bastard § 7. An vnlawfull Colledge § 9. An vncerteine person § 10. Of which persons some are not vtterly incapable but in some cases onely A Table of the sixt parte viz. of the office of an Executor The office of an executor testameÌ„tarie is first to deliberate and resolue either to accept or to refuse the executorship § 1. wherein for his better instruction amongst other things vt in § 2. 4 he is to coÌ„sider the estate of 1. the testator and therin especially what goods and cattles did belong vnto him and what debts he did owe and whether he were executor or administrator to an other § 3. 2. Himself namely whether for his skil diligeÌ„ce fidelity he be able and fit to vndertake the office § 3. 3. Others with whom he is to deal chiefly of his coexecutor if any be which thinges coÌ„sidered if he resolue to 1. vndertake the executorship TheÌ„ it doth belong to his office to 1. Cause an inuentary to be made wherein these things are needful to be knoweÌ„ viz. 1. whether it he of necessitie that an InueÌ„tary be made § 6. 2. what things are to be put into the Inuentary § 7. 3. within what time the Inuentary is to be made § 8. 4. what forme is to be obserued in making of the Jnuentary § 9. 5. what are the benefits and effects of an InueÌ„tary § 10 2. Procure the will to be prooued wherin it behoueth the executor to know 1. Before whom the Testament is to bee prooued § 11. 2. By whom § 12. 3. When. § 13. 4. In what forme § 14. 5. What fees are due in this behalfe § 15. 3. Paie debts legacies Mortuaries And here he is to learne 1. How farre the executor is bound to pay debts and legacies § 16. 2. Which debts are first to bee discharged In case there be not sufficient to pay all § 16. 3. How muche is due for Mortuaries 4. Make an accoÌ„pt And here he is to be aduertised 1. How needfull it is § 17. 2. To whom it ought to be made § 18. 3. When. § 19. 4. In what manner § 20. 5. What is the end and effect thereof § 21. 2. Refuse the executorship TheÌ„ he must beware that he doo not administer as Executor viz. He must not do any act which is proper to an executor as to receiue the testators debts or to giue acquitances for the same c. But other actes of charitie or humanitie as to dispose of the testators goods about the funerals to feede his cattell least they perish to keepe his goods least they be stolen These things may bee done without danger A Table of the last parte shewing by what meanes Testaments or last willes become voide Sometimes the Testament 1. euen froÌ„ the beginning is ether void or voideable wholy or in parte by reason 1. The testator is such a person as cannot make a Testament § 1. 2. The things bequeathed are not deuiseable § 1. 3. The forme of the disposition is vnlawfull § 1. 4. The executor or legatarie is incapable of the executorship or Legacie § 1. 5. Of feare § 2. 6. Of fraude § 3. 7. Of immoderate flatterie § 4. 8. Of Errour In which case wee are to distinguish whether the Errour doo respect the person of the executor or legatarie § 5. name of the executor or legatarie § 5. qualitie of the executor or legatarie § 5. name of the thing bequeathed § 5. substance of the thing bequeathed § 5. quantitie of the thing bequeathed § 5. qualitie of the thing bequeathed § 5. 9. Of vncerteintie wherein it is materiall whether this vncerteintie haue relation to
preiudice of that person which doth prohibite or hinder the testator to alter the same but not in preiudice of another not coÌ„senting therunto s) L. 2. si quis aliquem testa prohib ff much lesse doth the prohibition of that person who is to reape no benefite by the testament hurt those executors which otherwise should be administrators in case the partie died intestate t) Menoch d. cas 395. n. 20. post Bar. in L. vltim si quis aliquem testari prohib ff n. 11. vnlesse it doth appeare that the testator would haue chaunged his whole testament and haue appointed newe executors for then this prohibition maketh voide the whole testament like as if the testator had beene compelled to make the same at the first v) Bar. in d. L. vlt. Menoch d. cas 395. n. 17. Paris consil 67. vol. 3. There is much adoo in the ciuill lawe about this question who ought to haue the testators goods when hee is compelled to make his testament or hindered that hee can not reuoke his testament the prince or the heires of the deade person x) De qua q. Menoch de arb iud cas 395. But with vs if any die intestate the administration of his goodes is to bee committed to the widow or next of kinne y) Stat. H. 8. an 21. c. 5. and doth not go to the prince though the executor or legatarie be vnworthie When he that is made executor can not or will not be executor 1 Though the executor be incapable the legacies are still due 2 The executor ought to be capable of the executorship at three seuerall times 3 It is sufficient for the legatarie if he be capable of the legacie at the testators death 4 What if the disposition be conditionall §. xix ALbeit †where he that is named executor in the testament either cannot or will not be executor by the lawes of this realme the legacies bequeathed in the same will are still due and to bee paied by such as shall haue the administration of the goodes of the deceased a) Brook Abridg. tit executor n. 20. dixi iure huius regni nà m secus est iure ciuili haereditate non adita L. 1. in fin de iniusto testoÌ„ L. fidei commissum de leg 1. L. imperator de leg 2. ff L. hoc non sit indistinctè verum vt per Vigelij method iuris ciuil à quo tradita est regula cum plurimis limitationibus sublimitac lib. 12. c. 9. in which case the will is to bee annexed to the letters of administration as heretofore I haue declared b) Supr part 1. §. 6. n. 6 yet by reason of the incapacitie or refusall of the executor such disposition is thereby depriued both of the name and nature of the testament c) Instit tit de haeredit quae ab intestat def in princ Brook vbi supra and so the partie is said to die intestate I shall not neede to repeate here particularly by what means the executor may become incapable of the executorship This one thing I thought good to note in this place that by the ciuill lawe †hee which is named executor must be capable of the executorship at three seuerall times d) §. in extraneis Instâ—t de haered qual differentia vide supra part 5. §. 2. quae in illo §. ad notaui First at the making of the testament for then the testameÌ„t taketh his substance or being e) Christ Porcus in d. §. in extraneis Secondly at the time of the death of the testator for then the testament receiueth his strength confirmation f) Idem Porcus in eod §. Thirdly at the time of the probation of the will and vndertaking the executorship for then the testament entereth to his effect and execution g) Idem ibid. quamuis Ias hisce rationibus totus non acquiescat quippe qui alias meliores atque vt ille inquit fundamentaliores assignat in suis addic ad Christ Porcum in d §. Howbeit it is †sufficient in a legatarie if he be capable of the legacie or deuice at the time of the death of the testator h) Bar. in L. si alienuÌ„ §. 1. ff de haered instit in fin Peckius Tract de testam coniug lib. 4. c. 31. n. 5. Grass Thesaur com op §. Institutio q. 28. n. 4. vnlesse the deuise be not pure and simple but conditionall for in conditionall dispositions both the executor and also the legatarie must be capable at the time of the performance or existence of the condition i) Bar. Grass Peckius vbi supra as for any other time whether it bee betwixt the making of the will and the testators death or betwixt his death and the probation of the will it skilleth not for though the executor be theÌ„ incapable it hurteth not k) §. in extraneis Instit de haered qual differentia especially if †the disposition be conditionall for then it is not required in the executor much lesse in the legatarie that he be capable at another time sauing onely at the time of existence or performance of the condition no not at the making of the will or death of the testator l) Alex. in L. 2. ff de vulg pup sub n. 11. Grass d. §. Institutio q. 28. n. 3. quae op com est Licèt non desint qui contrariam teneant If the executor doo refuse to vndergo the burthen or office of an executor then he looseth whatsoeuer legacie is left vnto him in the testament m) Bar. Sichar in L. si legatarius C. de legatis sauing as elsewhere is recited n) Supra part 6. §. 3. Of ademption of legacies 1 By what meanes legacies become voide 2 Ademption of legacies what it is 3 Ademption of legacies two fold 4 The testator may at any time alter his will either wholy or in part 5 Ademption of legacies not to be presumed 6 Corne in the barne being bequeathed whether the same being spent and other corne there at the death of the testator the legacie be extinguished 7 Whether the ship bequeathed being altered and renewed the legacie be extinguished 8 Whether the house bequeathed being by peecemeale reedisied and renued may be recouered 9 What if the testator do voluntarily pull downe the house and erect another in place thereof 10 What if the house bee burned or blowen downe and another erected whether may this newe house be recouered 11 An answere to an obiection 12 Whether by necessarie alienation of the thing bequeathed the legacie be adempted 13 What if the alienation be voluntarie the legacie is extinguished 14 What if the voluntarie alienation bee voide in lawe 15 What if the testator should redeeme the thing alienated 16 Whether lands deuised alienated and redeemed may be recouered 17 The reasons of either lawe being contrarie in this point 18 If the
thing bequeathed be pledged it is not thereby adempted 19 Whether the receiuing of the debt bequeathed by the testator be an ademption of the legacie 20 A flocke of sheepe being bequeathed whereof one alone is left whether that one be due §. xx MAny other †meanes there be whereby the testament which was good at the beginning becommeth void afterwards a) Centum penè casus quibê° resolouitur testmÌ„ commemorat Vasq de success resoluc lib. 1. but it were too long to rehearse them all let it suffice therefore that I haue spoken of such as happely may the ofter fall out in fact Now it remaineth that I speake of such meanes whereby legacies giuen and bequeathed by the testator become voide Of which meanes some do proceede from the fact of the testator b) Hoc ipso §. §. seq some haue relation to the fact or person of the legatarie c) Infra §§ 22. 23. some to the thing bequeathed d) Infra §. vlt. In respect of the fact of the testator are legacies made voide especially by ademption and by translation of the thing bequeathed e) Instit tit de ademp translac legatoruÌ„ tit de adimen vel transferend leg ff Ademption †is a taking away of the legacie before bequeathed f) DD. in d. Rub. de ademp translac leg Instit Translation is a bestowing of the legacy bequeathed vpon some other person g) Minsing in d. Rub. Ademption may be without translation but translation of a legacie cannot be without ademption h) Minsing vbi supra Wesenb in tit de adimen vel transfferend leg ff Ademption †of legacies is two folde expressed and secrete i) Wesenb in d. tit de adimen leg ff expressed when the testator doth by words take away the legacie before giuen k) L. 2. 3. de adimen leg ff secrete when the testator doth by deedes without words take away the legacie as wheÌ„ he doth giue away the thing bequeathed or doth voluntarily alienate the same before his death l) L. rem legatam de adimen leg ff It is †lawfull for euery testator m) L. 3. de re iud L. 3. de reg iur ff so long as he liueth to reuoke or alter his will n) L. 4. ff de adimen leg ff either wholy or in part o) L. vlt. de adimen leg ff either in the same will or in another either solemne or vnsolemne p) Quod si alio testamento insolenni fiat ademptio tunc non ipso iure sed ope exceptionis tollitur legatum Grass Thesau com â—◠§. legatum q. 78. simplie â—r conditionally q) L. datum C. de legatis When the testator dooth expresly reuoke the legacie it is not materiall whether he doo vse wordes direct contrarie as I doo not giue I do not bequeath or any other words whatsoeuer so that his meaning may appeare r) L. 2. 3. ff de adimé leg Insti tit de ademp legat Ademption †of legacies is no more to be presumed then the reuocation of the testaments s) Bald. in L. si pluribus ff de leg 1. Mantic. de coniect. vlt. vol. lib. 12. tit 2. n. 2. vnlesse it be prooued t) L. eum qui voluntateÌ„ ff de probac. And therefore †if the testator doo bequeath all the corne in his barne and after the making of his will the testator suruiueth vntil all the corne be spent and other corne put in the pleace thereof v) Secus si non sit repositum per modum surrogationis ait Angel in L. si seruus §. qui quinque ff de leg 1. Mascard de probac. conclus 1283. n. 33. this spending of the corne is no ademption of the legacie and therefore the legatarie shall haue such corne as is founde in the barne when the testator dieth x) Bar. in d. §. qui quinque Mantic. de coniect vlt. vol. lib. 12. tit 2. n. 9. vnlesse the corne found in the barne at the death of the testator bee greater in quantitie then was the corne at the time of the will making for so much is due but not a greater quantitie then was the first y) Paul de Castr in d. qui quinque Mascard de probac. d. coÌ„cl 1283. n. 33. 34. Likewise if †the testator do bequeath a ship and afterwardes dooth by peecemeale repaire and renue the same so that there remaineth nothing of the olde shippe but onely the bottome tree here is no ademption of the legacie and therefore the legatarie may recouer the whole shippe z) L. quod in rerum §. si nauem ff de leg 1. Spiegel Lexic verb. carina Mantic. de coniect vlt. vol. lib. 12. tit 2. n. 7. Or if the †testator doo bequeath a house and afterwards by peecemeale repaire the same so that there is no parte of the olde matter or stuffe remaining the will of the testator is not hereby presumed to be chaunged and thetfore the legatarie may recouer the house so repaired a) L. si ita legatum §. fi domus ff de leg 1. For it is deemed to bee the same house still in lawe as in the former case it is deemed to be the same ship b) Ias in d. §. si domus n. 1. Mascard de probac. conclus 1280. n. 21. Zas in d. §. si nauem But if the †testator did at once voluntarily pull downe all the whole house bequeathed did afterwards erect anew house in the same place then by the ciuill lawe the will of the testator is presumed to be changed and the legacie extinguished c) Paul de Castr in d. § si domus Mantic. de coniect. vlt. vol. lib. 12. tit 2. n. 6. And although by the lawes of this realme it may be otherwise in contracts and couenants amongst such as be liuing d) Id quod non semel mihi nunciatum fuit admit it were so as in some sort it is answerable to the ciuil law e) Intellige quoad iura realia quorum intuitu aedificiuÌ„ destructum restitutum cenâ—â—tur idem L. seruitutes §. sublatum ff de seruit verb. praed yet the reason of the difference is not obscure which is this In coÌ„tracts couenaÌ„ts and graunts made amongst such as be liuing he to whom this or that is lawfully graunted hath by and by a certaine right and interest therein f) Bar. alij in d. §. vlt. which without his consent ought not to bee impaired g) L. Id quod nostrum de reg iur ff and whatsoeuer is builded vpon anothers ground yeeldeth thereunto and thereby becommeth his which is the owner of the ground h) §. cum in suo solo Instit de rerum diuis But in a testament or last will there is no such right deriued to the legatarie in or to the thing bequeathed vntill the testator