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
vlt. vol. lib. 11. tit 6. n. 9 Wherefore if the testator make thee his executor or giue thee an hundred pounde if he die without issue after which will made he dieth leauing his wife with child In this case he is reputed to die without issue and so thou art to be admitted to the executorship maist recouer thy legacie b) Mantic. d. tit 6. n. 9. post Bald. in d. L. qui. in vtero el. 2. vnlesse it be more beneficiall to the childe that his father shoulde haue beene reputed to haue died without issue for then thou art excluded c) L. iubemus §. pen. C. ad Trebel ibi Paul de Castr When †the childe dieth so soone as it is borne we must consider whether it were borne in due time or not if it were borne in due time so that by possibilitie of nature it might haue liued longer as in the vii ix or x. moneth d) L. septimo mense de stat hom L. Gallus in princ de lib. posthu L. intestat §. vlt. de suis legit ff the father is iudged to haue issue especially †if the childe were once heard to crie e) Mantic. de coniect. vlt. vol. lib. 11. tit 6. n. 10. Mascard Tract de probac. verb. Natus concl 1088. n. 9. 10. per L. quod certatum C. de posthu haered instituend Sichard in d. L. n. 4. for then also by the lawes of this realme that man whose wife was seased in fee simple or in fee taile generall or as heire in fee taile speciall shal be said to haue had issue and by reason thereof after the decease of his wife shall holde the same land during his life and shall be called tenant by the curtesie of England for that it is thought that the same law is not vsed in any other Countrey sauing onely in England f) Litleton tit curtesie d'engleterr But †if the childe which he had by his wife were not heard to crie it is thought that he cannot be tenaÌ„t by the curtesie g) Bract. de leg consuet Angl. lib. 5. tit de excep c. 30. n. 7. 8. Which opinion though auncient hath beene strongly encountered of late and shrewdly shaken by men of deepe iudgement and reuerent aucthoritie *) Dyer fol. 25. n. 159. post Fitzh and so the same not being free from contradiction cannot bee vtterly voide of doubt and therefore as it becommeth me I doo verie willingly referre the determination thereof to the lerned and expert in the studie and practise of the lawes temporall of this land Neuerthelesse to other purposes and testamentarie effectes determinable in the ecclesiasticall courts I suppose he shall not bee reputed to haue died without issue although his childe did neuer crie so that it did sensible breath or moue h) L. quod dicitur ff de lib. posthu L. 2. 3. C. de posthu Felin in c sicut de homicid exâ—r Mascard Tract de probac. verb. natus conclus 1088. sub fineÌ„ for what if the childe were borne dumbe i) d. L. quod dicitur d. L. 2. 3. DD. ibid. Therefore I say by the ciuill and ecclesiasticall lawes concerning testamentarie effectes the father shall not bee accounted to haue died without issue if the childe did but breath and though it did not nor coulde not crie but died in the handes of the midwife k) d. L. 3. C. de posthu for crying is not an onely proofe of life l) L. quod certatum C. de posthu ibi Sichar n. 4. Mascard de ê“bac conclus 1088 n. 10. since it may be prooued by other meanes as by motioÌ„ breathing and such like m) L. si magister C. de Instit sub Mascard d. concl 1088. sub fineÌ„ Sichard in d. L. quod certatum In deede †if the childe be borne deade n) L. qui mortui ff de verb. signif or being halfe borne aliue yet dieth before it be wholy borne o) Alciat in d. L. qui mortui Cui adde Tiraquel in rep L. si vnquam C. de reuoc donac verb. susceperit n. 132. vbi etiam disputat an talis baptizari possit cuius tantum caput in partu apparet hee shall not bee reputed to haue issue p) d. L. 3. in sin d. L. qui mortui DD. in LL. Likewise in the other case that is to say when the child is not brought forth in due time as perhappes before the seuenth moneth or in the eight moneth so that it is impossible for the same to liue the parents for and concerning testamentarie effectes shal not be accompted thereby to haue had issue howsoeuer the childe for a while after the birth did sensiblie breathe and moue q) L. 2. C. de posthu Socin sen cons 275. n. 20. vol. 2. Mantic. de coniect vlt. vol. lib. 11. tit 6. n. 10. Grass Thesaur com op §. fideicommissum q. 33. in fin If †the testator make thee his executor or do bequeath vnto thee any legacie conditionally if he shall haue no issue and afterwards his wife doe bring foorth a monster or misshapen creature hauing peraduenture a heade like vnto a dogges heade or to the head of an asse or of a Rauen or Ducke or of some other beast or birde such monstrous creature though it should liue as commonly none doo yet is it not accounted amongst the testators children r) L. non sunt ff de stat hom Olden in eand L. Sichard in d. L. 3. C. de posthu for the lawe doth not presume that creature to haue the soule of a man which hath a forme and shape so straunge and different from the shape of a man s) Bald. in d L. noÌ„ sunt Sichard in d L. 3. n. 5. But if the creature brought forth do not varie in shape from a man or woman but haue somewhat more then God by the ordinarie course of nature alloweth as hauing sixe fingers on either hand t) DD. in d. L. 3. C. de posthu in d. L. non sunt in L. ostentum in L. quaeret ff de verb. sig Idem quoque iuris est si quis habeat tres testes Alciat in d L. quaeret n. 9. or on the contrarie wanting some of the ordinarie members as hauing but one hande or one foote v) Bald. Aug. in L. quod dicitur ff de lib. posthu such creature is not excluded but is to be accounted for the testators childe What if there be duplication of notable members as to haue foure armes or two heades or disorder in the principall members as the face standing backwardes or in the breast In this case I suppose much to bee attributed to the discretion of the Iudge x) Sichard in d. L. 3. C. de postu n. 5. verb. cum autem And albeit the writers seeme rather to encline to this opinion
wards and liueries if the maister of the wards and liueries for the time beeing and the parties therunto can not otherwise agree vpon the same diuision And that the issues and profits of the two partes of the same manours lands tenements and hereditaments vpon euery such diuision to bee restored to them that shall haue right or title to the same frō the death of the owner or deuisour therof And further be it enacted and declared by authoritie aforesaid that all and singuler person and persons hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenary or in common in fee-simple of and in any manours lands tenements rents or other hereditaments in possession reuersion or remainder or of and in any rents or seruices incident to any reuersion or remainder holden of the king his heires or successours by knights seruice and not in cheefe or holden of any other person or persons by knights seruice shall haue full and free libertie power and authority to giue dispose will or deuise to any person or persons except bodies politike and corporate by his last will and testament in writing or otherwise by any act or acts lawfully executed in his life by himselfe solie or by himselfe and other iointly seuerally or particularly or by all those waies or any of them as much as in him of right is or shall bee two parts of all the saide manors lands tenements and hereditaments or any of them so holden by knights seruice or any rents common or other profits or commodities out of or to be perceiued of the same two parts or out of any parcell thereof in three parts to be deuided or as much thereof as shal amount to the full and cleere yeerely value of two parts thereof in three parts to be deuided at his free will pleasure And that the said will so declared by authority aforesaid shal be good and effectuall for two parts of the said manors lands tenements or hereditaments although the will so declared be or shal be made of the whole landes and tenementes so holden by knights seruice or of more than of two partes of the same And also for the whole of all other such manours lands tenements and hereditaments or any of them not holden of the kinge by knights seruice in cheefe or otherwise by knights seruice nor of anie other person by kinghts seruice and of any rents commons or other profits or commodities out of or to bee perceiued of the same or out of any parcell thereof at his free will and pleasure The same diuision to be made and set foorth by the owner of the said manours lands tenementes and hereditaments by his last will and testament in writing or otherwise in writing And in default thereof for as much of the same manors lands tenements and hereditaments as shall concerne the kings interest by commission to be directed out of the kings court of the wards and liueries in maner forme as is aforesaid if the master of the wardes and liueries for the time being and the parties thereunto can not otherwise agree vpon the same diuision And that restitution of the issues and profits of the two parts thereof shal be had and made in maner and fourme abouesaid And for such of the same manors lands tenementes and hereditaments as shall concerne the interest of any other lord or lords by commission to be graunted out of the kings court of the Chauncery to enquire thereof by the othes of 12. men if the same lord or lordes and the parties thereunto can not otherwise agree vpon the same diuisiō And be it further enacted and declared by authority aforesaid that the sauings reseruings and prouisions concerning sauing of the custodie wardship releefe and primer season to the king of such manors lands tenements and hereditaments or as much thereof as shall appertaine vnto him by vertue of the said former act and by the declaratiō and expositiō thereof declared by this present act during the kings interest therein And also of the custody and wardship to other lords of as much of such manours lands tenements and hereditaments holden of them as shall amounte and extende to the cleere yeerelie value of the third parte thereof ouer and aboue all charges without any diminution or abridgement of the thirde part or of the full profits thereof comprised and mencioned in diuers articles in the saide former act contained by the authority aforesaid be and shal be intended expounded and taken as hereafter ensueth that is to say that the king shall haue and take for his full thirde part of all such manours lands tenements and hereditaments where vnto he is or shall be intitled by the said former act and by this present act such manours lands and tenements as shal by any meanes discend or come by discent as well of the estate of inheritaunce in fee taile as in fee-simple or in fee taile onely to the heire of any such person or that shall make any will gifte disposition or deuise by his last will in writing or by any act or acts lawfully executed in his life immediately after the death of the same deuisour or owner thereof And that the will gift and deuise of euery such deuisour or owner of and for the two partes of the saide manours lands tenements and hereditaments residue shall by the authority aforesaid be and stand good and effectuall in the law albeit the same will gift or deuise be had and made of all his fee simple lands tenementes and hereditamentes and in case the same manours landes tenementes and hereditamentes which after the death of anie suche owner or deuisour which shall make any such gift disposition or deuise by his last will in writing or otherwise by any act or acts lawfully executed in his life to his wife children or otherwise as is aforesaid which shall immediatly after his death discend reuert remaine or come to his heire or heires as well of estate of inheritaunce in fee taile as of estate in fee simple or fee taile onely be not or shall not amount or extend to the full cleere yeerelie value of the full thirde part with the full profites thereof of all the said manours lands tenements or other hereditaments of the said deuisour or owner according to the true intent and meaning of the said former act and of this present acte that then the king shall and may haue take into his handes and possession to make vp his full third parte with the full profites thereof according to his interest therein as much of the other manours lands tenements or hereditaments willed giuen disposed or assigned by any such person to his wife children or otherwise as is aforesaid as with such of the same manours lands tenements and hereditaments discended or by any meanes come vnto the heire as heire of anie such deuisour or owner shall make vp the cleere yeerelie value of the said full third parte with
testmÌ„ q 31. Ego verò adhaereo Alex. Ias Decio Sichardo alijs in ead L. hac consultissima Tiraquel qui putarunt hanc solennitatem non esse necessariam in huiusmodi testamento sed sufficere probationem iuris gentium hanc opinionem recepit generalis regni nostri consuetudo But †he cannot make his testament in writing vnlesse the same be reade before the witnesses in their presence and acknowledged by the testator for his last will And therefore if a writing were deliuered to the testator and he acknowledged the same for his will this were not sufficieÌ„t for it may be that if he shold heare the same reade hee would not acknowledge the same for his will (b) DD. in d. L. hac consultissima C. qui testa fac poss Of Traitours 1 Traitours loose both their liues landes and goods and consequentlie are intestable 2 Traitours are intestable not onely from the time of their conuiction but from the time of the crime committed 3 A traitour pardoned and restored may make his testament §. xij OF those who are prohibited to make their testaments as malefactors who now are to make their appearance and to shew theÌ„selues in the course of this treatise traitours because they are most pernicious to the common wealth are most worthie the first place in punishments Vnderstand †therefore that whosoeuer is lawfully conuicted of high treason by verditte confessioÌ„ outlawrie or presentment besides the losse of his life shall forfeite to the prince all his goods and cattelles and all such landes tenements and hereditaments as he shal haue in his owne right vse or possession of any estate or inheritance at the time of such treason committed or at any time after a) Stat. Ed. 6. an 5. c. 11. and so consequentlie is intestable b) L. quisquis §. j. C. ad L. Iul. maiest L. si quis de iniust test L. nemo ff de leg 1. Vasq de succoss progress lib. 1. §. j. n. 165. qui multis ampli hanc concl ornat in so much †that traitours are not onely depriued of making any testament or other kinde of last will from the time of their conuiction but also the testament before made dooth by reason of the same conuiction become voide both in respect of goodes and also in respect of lands tenements and hereditaments c) Stat. Ed. 6. an 5. c. 11. DD. in d. L. nemo de leg 1. ff Vasq vbi sup Neuerthelesse if †any person being attainted of treason obtaine the princes pardon and be thereby restored to his former estate then may he make his testameÌ„t as if he had not been conuicted d) L. si quis § quatenus ff de iniust rupt irrit testa or if he made any before his conuiction and condemnation the same by reason of such pardon recouereth his former force and effect as hereafter is more fully declared e) Infr. 7. part §. xvij Of Felons 1 Felons loose life and goods and so be intestable 2 Who shal haue felons landes 3 Whether hee that is onely indited of felonie maie make his testament 4 Whether he that standeth mute may make his testament of his landes 5 Whether a man after he is apprehended for felonie may make his testament 6 Felons goods not to be seased before attainder 7 The testament of a Felon conuicted is void though he be neuer executed §. xiij IF any person †be condemned of felonie he ought to suffer death and †the Prince shall haue all his goods where so euer they bee found a) Stat. Eliz. an 5. c. 14. Termes of law verb. robberie and if he †haue any free holde it shall forthwith be seased into the Princes hands and the Prince shall haue the profite thereof by the space of a yeere and a day and also waste b) Praerog Reg. c. 16. Eliz. an 5. c. 14. and after the Prince haue had it the yeere and the day and waste the land shall be restored to the cheefe lord of the fee except in certaine places as in the countie of Glocester where after a yeere and a day the lands and tenements of felons shal reuert to the next heire to whom it ought to haue descended if the felonie had not beene committed c) Praerog reg c. 16. Or in Kent in Gauelkind whereas it dooth descend to al the heires males equally to be deuided or to the daughters where there be no sons to be deuided amongst theÌ„ for there it is said the father to the boughe and the son to the ploughe d) Eod. c. 16. Felons therfore lawfully conuicted can not make any testaments or other dispositions of anie goods or landes whereof as wee see the lawe hath disposed already e) Duplici ratione daÌ„natus ad mortem fit intestabilis nimirum bonorum publicatione damnatione ad mortem Damnatus autem ad mortem naturalem efficitur seruus poenae quod communi opinione nititur aduersus eos qui existimarunt ingenuum hodie non effici seruum poenae huiusmodi damnatione sed procedit prior opinio siuè quis damnatus sit secundum ius commune siuè etiam secundum statutum alicuius loci Iul. Clar. §. testmÌ„ q. 21. Couar in Rub. de testa extr 3. part n. 27. Michael Grass Thesaur com op §. testmÌ„ q. 26. But †if any man be indited onely of felony and die before he be conuicted or attainted he may make his testament of his goods and also of his lands f) Quia non condemnatus non reperitur prohibitus vide stat R. 3. an 1. c. 3. or if †he be indited at the Princes suite and so beeing arraigned vpon that inditement will not answer but standeth mute or dumbe whereupon he is to receiue paine as it is tearmed Forte Dure and bee pressed to death g) Do. Stu. lib. 2. c. 41. In this case his goods onely be confiscate but not his lands h) ibidem and therefore in this case I suppose he may make his testament of his landes i) Quia viz. non ê“hibetur qÌ„ non condeÌ„natur If a felon †bee indited and afterwards attainted by verdit or confession the time of the fact committed comprised in the inditement is to be regarded in respect of his lands but in respecte of his goodes in the time of his iudgement k) Perk. tit grants fol. 6 And therefore if before iudgement he doe sell giue or otherwise alienate his goodes such saile gift or alienation is good l) Perkins vbi supr coÌ„cordatius ciuile L. post contractum ff de donac cum distinctione tamen vt per Bar. in d. L. Grass §. testmÌ„ q. 26. Neither †may the Sherife or other person take or sease the goods of any person arrested and imprisoned before the same person be conuicted or attainted of felonie according to the law or that the goods bee otherwise lawfullie forfeited
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
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
own proper vse in or to any manors lands tenements rents or hereditaments wherof they be or hereafter shal be seized to anie other vse as if this present act had neuer beene had or made any thing conteined in this acte to the contrarie not withstanding And where also diuers persons stand and be seized of and in any lands tenements or hereditaments in fee simple or otherwise to the vse or intente that some other person or persons shall haue and perceiue yeerely to them and to his or their heires one annuall rent of tenne pounds or more or lesse out of the same lands and tenements and some other person one other annuall rent to him and his assignes for terme of life or yeeres or for some other speciall time according to such intent and vse as hath bin heretofore declared limited made thereof Be it therefore enacted by the authoritie aforesaid that in euery such case the same persons their heirs and assignes that haue such vse and interest to haue and perceiue any such annuall rents out of any lands tenements or hereditaments that they and euery of them their heires and assignes be adiudged and deemed to be in possession and seizon of the same rent of and in such like estate as they had in the title interest or vse of the said rent or profit and as if a sufficient grant or other lawful conueiance had bin made executed to them by such as were or shal be seized to the vse or entēt of any such rent to be had made or paied according to the very trust intent therof And that al euery such person or persons as haue or heereafter shall haue any title vse and interest in or to any such rent or profit shall lawfully distreine for non paiment of the said rent and in their owne names make aduouries or by their balifs or seruants make cognizances and iustifications and haue all other sutes entries and remedies for such rents as if the same rents had bin actually and really graunted to them with sufficient clauses of distresse reentree or otherwise according to such conditions paines or other things limited and appointed vpon the trust and intent for paiment of suretie of such rent And be it further enacted by the authority aforesaid that where as diuerse persons haue purchased or haue estate made and conueied of and in diuers lands tenements and hereditaments vnto them and to their wiues and to the heires of the husband or to the husband and to the wife and to the heires of their two bodies begotten or to the heirs of one of their bodies begotten or to the husband and to the wife for terme of their liues or for terme of life of the said wife or where any such estate or purchase of any lands tenements or hereditaments hath bin or hereafter shall bee made to any husband and to his wife in manner and forme aboue expressed or to any other person or persons and to their heires and assignes to the vse and behoofe of the said husband and wife or to the vse of the wife as is before rehearsed for the iointer of the wife that then in euery such case euery woman married hauing such iointer made or hereafter to be made shall not claime nor haue title to haue any dower of the residue of the lands tenemētes or hereditaments that at any time were her said husbands by whom she hath any such iointer nor shall demand nor claime her dower of and against them that haue the lands and inheritaunces of her said husband But if she haue no such iointer then she shall be admitted and inabled to pursue haue and demand her dower by write of dower after the due course and order of the common lawes of this realme this act or any law or prouision made to the contrarie thereof notwithstanding Prouided alway that if any such woman be lawfully expulsed or euicted from her said iointer or from any part therof without any fraud or couin by lawfull entree action or by discōtinuance of her husband then euery such woman shal be indowed of as much of the residue of her husbands tenements or hereditaments whereof she was before dowable as the same lands and tenements so euicted and expulsed shall amount or extend vnto Prouided also that this act nor any thinge therein conteined or expressed extend or be in any wise hurtfull or preiudiciall to any woman or women heretofore being married of for or concerning such right title vse interest or possession as they or any of them haue claime or pretēd to haue for her or their iointer or dower of in or to any manors lands tenementes or other hereditamentes of any of their late husbands being now dead or deceased any thing conteined in this act to the contrary notwithstanding Prouided also that if any wife haue or hereafter shall haue any manors lands tenements or hereditaments vnto her giuen or assured after mariage for terme of her life or otherwise in iointer except the same assurance be to her made by act of parliament and the said wife after that fortune to ouer-liue the same her husband in whose time the said iointer was made or assured vnto her that then the same wife so ouer liuing shall and may at their liberty after the death of her said husband refuse to haue take the lands and tenements so to her giuen appointed or assured during the couerture for terme of her life or otherwise in iointer except the same assurance be to her made by acte of parliament as is aforesaid and thereupon to haue aske demaund and take her dower by write of dower or otherwise according to the common law of and in all such landes tenements and hereditaments as her husband was and stood seized of any state of inheritance at any time during the couerture any thing conteined in this act to the contrary in any wise notwithstanding Prouided also that this present act nor anie thing therein conteined extend or be at anie time hereafter interpretated expounded or taken to extinct release discharge or suspend anie statute recognizance or other bond by the execution of any estate of or in any lands tenements or hereditaments by the authority of this act to any person or persons or bodies politike any thinge conteined in this acte to the contrary thereof notwithstanding And for as much as great ambiguities and doubts may arise of the validity and inualidity of wils heretofore made of any landes tenements hereditaments to the great trouble of the kings subiects the kings most roial maiesty minding the tranquillitie and rest of his louing subiects of his most excellent and accustomed goodnesse is pleased and contented that it be enacted by the authority of this present parliament that all maner true and iust willes and testaments heretofore made by any personne or persons deceased or that shall decease before the first day of May that shall be in the yeere of our
therof dieth his heire being within age that in euerie such case the king shall haue the warde and mariage of the bodie of such heire so being within age the life of the freeholder or freeholders of the said manors landes tenements or hereditaments so holden by knights seruice notwithstanding Sauing and reseruing to all and euerie woman and women all and euerie such right title interest of dower as they or any of them ought to haue or bee or shall be iustlie intituled to haue claime or demand of anie manors landes tenementes or hereditamentes by the lawes of this realme to be taken or assigned vnto them or anie of them out of the two partes of the said manors landes tenementes or hereditaments seuered and deuided from the third part as is aboue said and not otherwise And sauing also to the king our soueraigne lord his heires and successours the reuersions of all such tenauntes in ioyntenure and dower immediately after the death of such tenauntes if they shall happen to die duringe the minoritie of the kinges wardes An other acte for the Explanation of the former concerning willes and the deuise of landes WHether in the laste parliament begunne and holden at Westminster the 28. day of Aprill in the 31. yeere of the kinges most gratious raigne cap. primo willes 2. And there by diuers prorogations holden and contiued vnto the 24. daie of Iulie in the 32. yeere of his saide raigne It was by the kings most gratious and liberall disposition shewed toward his most hūble and obedient subiects ordeined and enacted howe and in what manner landes tenementes and hereditamentes might by will or testament in writing or otherwise by anie acte or actes lawfullie executed in the life of euerie person giuen diposed willed or deuised for the aduauncement of the wife prefermente of children paiment of debtes of euerie such person or otherwise at his wil or pleasure as in the same acte more plainelie is declared Sithen the making of estatute diuers doubtes questions and ambiguities haue risen beene moued and growen by diuersity of opinions taking in and vpon the exposition of the letter of the same estatute For a plaine declaration and explanacion whereof and to the intent and purpose that the kinges obedient and louing subiectes shall and may take the commoditie and aduantage of the kinges said gratious and liberall disposition the lordes spiritual and temporall and the commons in this present parliament assembled most humbly beseeching the kings maiestie that the meaning of the letter of the same estatute concerning such matters hereafter rehearsed may be by the authority of this presēt parliament enacted taken expounded iudged declared and explaned in manner and fourme following First where it is contained in the same former statute within diuers articles branches of the same that all and singuler person and persons hauing any manors lands tenements or hereditamentes of the estate of inheritance should haue full and free libertie power and authoritie to giue will dispose or assigne as well by last will and testament in writing or otherwise by anie act or actes lawfullie executed in his life his manours landes tenementes or hereditaments or anie of them in such manner and fourme as in the same former act more at large it dooth appeare Which wordes of estate of inheritaunce by the authority of this present parliament is and shall be declared expounded taken and iudged of estates in fee simple onelie And also that all and singuler person and persons hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenarie or in common in fee-simple of in anie manors lands tenements rents or other hereditaments in possession reuersion or remainder or of rents or seruices incident to anie reuersion or remainder and hauing no manors lands tenements or hereditaments holden of the king his heires or successors or of any other person or persons by knights seruice shall haue full and free liberty power and authority to giue dispose will or deuise to anie person or persons except bodies politike and corporate by his last wil and testament in writing or otherwise by any act or actes lawfullie executed in his life by him selfe soly or by himselfe and other iointly seuerally or particularlie or by al those waies or any of them as much as in him of right is or shall be all his said manors lands tenements rentes and hereditaments or any of them or any rents commons or other profits or commodities out of or to be perceiued of the same or out of any parcell thereof at his owne free will and pleasure any clause in the saide former acte notwithstanding And further be it declared enacted by the authority aforesaid that al singuler person persōs hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenery or in cōmon in fee-simple of or in anie manors lāds tenements rentes or other hereditamentes in possession reuersion or remainder or of in any rents or seruices incident to any reuersion or remainder holdē of the king by knights seruice in cheef or of the nature of knights seruice in cheefe hath by the authority of this present parliament shall haue full and free liberty power authoritie to giue dispose will or assigne to any persō or persōs except bodies politike corporate by his last will testament in writing or otherwise by any act or acts lawfully executed in his life by him selfe soly or by himself other iointly seuerally or particularly or by al those waies or any of them as much as in him of right is or shall be two parts aswell of al the said manors lands tenementes rents and hereditaments as of all and singuler his other rents hereditaments or of any of them or anie rents commons or other profits or cōmodities out of or to be perceiued of the same two parts or out of any parcell thereof in three partes to be deuided or as much therof as shal amount to the full and cleere yeerelie value of two parts thereof in three parts to be diuided of what person or persons so euer they be holden at his free will and pleasure And that by the authority aforesaid the said will so declared shal be good and effectuall for two parts of the said manours lands tenements and hereditaments although the will so declared be made of the whole or of more than of two parts of the same The same diuision to be made and set forth by the deuisour or owner of the same manours lands tenements and hereditaments by his last will in writing or otherwise in writing And in default therof by a commission to be graunted out of the kinges courte of the wards and liueries vpon the enquirie of the true value therof by the othes of 12. men and returne or certificate thereof had in the same court of the said manours lands tenementes and hereditaments diuision to be made by the master of the
the full profits thereof of all the said manours lands tenements hereditaments of euerie such owner or deuisour so to bee had to the king in the title of wardship or primer season as the case shall require And the deuision thereof to be had and made and with the restitution of the profits of the two partes of the said manours lands tenementes and hereditamentes in such maner and fourme as is aboue rehearsed And like benefit and aduantage to be giuen had and taken by the said authority to euerie Lord and Lordes of whom anie such manours lands tenements or hereditaments beene or shall be holden by knightes seruice in maner and fourme as is aboue said concerning onelie his or their third partes thereof according to their said interest therein And be it further enacted by the authoritie aforesaid that if it happen the same third parte or anie part thereof left willed or assigned to the king or other lord at anie time during their interestes therein to be lawfullie euicted or determined that than the king and the other lord shall haue as much of the two partes residue as shall accomplish and make vppe a full thirde part in cleere yeerelie value after the rate and portion of such manours landes tenementes and hereditamentes as shall then happen to remaine of the same third part not deuicted nor determined and of the other two parts of such manours landes tenementes and hereditamentes as the kinge or other lorde shoulde or ought to haue had by vertue of the said former act and this present act and the same to be deuided in maner and fourme aboue rehearsed anie clause in the said former acte notwithstanding And be it further enacted and declared by the authoritie aforesaid that the sauing and reseruing for fines for alienation by anie such last will and testament of such manours landes tenements or hereditaments holden of the king by knightes seruice in cheefe or of the nature of knightes seruice in cheefe or by socage in cheefe or of the nature of socage tenure in cheefe or for fines for alienation of such manours landes tenementes or hereditamentes whereof there shall be anie alteration of freeholde or of inheritance made by anie such last will comprised in diuers and sundrie articles mencioned in the said former acte be and shall be intended expounded taken deemed and iudged by the authoritie aforesaid that all such person or persons to whom the said manours landes tenementes or hereditamentes or anie of them be or shall be giuen disposed willed or deuised by anie such last will shall be exonerated acquited and discharged for euer against the king his heires and successours for all such fines for alienations by anie such last will or testament without licence by suing forth of the kinges pardon for alienation out of the kinges courte of Chauncerie paying to the king his heires or successours for the fine of euerie such alienation the third parte of the yeerelie value of the same manors landes tenementes or other hereditamentes to him or them willed or deuised and this acte from time to time shall be a sufficient warrant to the lord chauncellor of England or keeper of the great seale for the time being for the graunting out of the saide pardon or pardons vnder the kings great seale as heretofore hath beene vsed for pardons for alinations without anie further suite to bee made to the king for the same And it is further declared enacted by the authoritie aforesaid that willes or testamentes made of any manours lands tenements or other hereditaments by any woman couerte or person within the age of 21. yeeres idiote or by any person de non sane memorie shall not bee taken to be good or effectuall in the lawe And further be it enacted by the authoritie aforesaide that if anie person or persons hauing estate of inheritaunce of or in manours landes tenementes or hereditamentes holden of the king by knightes seruice in cheefe or otherwise of the kinge by knightes seruice or of anie other person or persons by knights seruice hath giuen at anie time sithen the 20. daie of the said month of Iulij 32. H. 8. An. do 1540. or hereafter shall giue wil deuise or assigne by will or other acte executed in his life his manours landes tenementes or hereditamentes or anie of them by fraude or couin to anie other person or persons for terme of yeeres life or liues with one remainder ouer in fee or with diuers remainders ouer for terme of yeeres life or in taile with a remainder ouer in fee simple to anie person or persons or to his or their right heires or at anie time sithen the said 20. daie of Iulie hath conueied or made or hereafter shall conueie or make by fraude or couin contrarie to the true intent of this act anie estates conditions menalties tenures or conueiaunces to the intent to defraud or disceiue the king of his praerogatiue primer seasō liuerie releef wardship mariages or rights or any other lord of their wardships releefs heriots or other profites which should or ought to accrue grow or come vnto thē or any of them by or after the death of his or their tenant by force and according to the former estatute and of this present acte and declaration and the same estates and other conueiaunces beeinge found by office to be so made or contriued by couin fraude or disceipt as is abouesaid contrarie to the true intent and meaning of the said former acte and of this act That then the king shall haue as well the wardshippe of the bodie and custodie of the landes tenementes and hereditamentes as liuerie primer season releefe and other profites which shoulde or ought to appertaine to the kinge according to the true intent and meaning of the said former acte and of this present acte as though no such estates or conueiaunces by couin had neuer beene had or made vntill the said office bee lawfullie vndon by trauers or otherwise And that the other lord and lordes of whom anie such manours landes tenementes or hereditamentes shal be holden by knightes seruice as is aforesaid shall haue their remedie in such cases for his or their wardships of bodies and landes by write of right of warde and shall distreine and make auowrie or cognisaunce by themselues or their balifes for their releefes heriots and other profits which should haue beene to them due by or after the death of their tenaunt as if no such estate or conueiaunce had bene had or made Sauing and reseruing alwaies by the authoritie aforesaid the right and title of the donees feoffees leassees and deuisees thereof against the said deuisour and his heires after the interest and title of the king or other lord therin ended and determined Prouided alwaies that this acte explanation and declaration or anie of them or anie thing in this said acte explanation or declaration contained shall not extend to the wil or deuise of sir Iohn Gaynsforde late of
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
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
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
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
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
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
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