Chattels are forfeited be the cause of Action just or unjust Doct. and Stud. Lib. 1. Cap. 6. in fine if one be outlawed for Felony he shall forfeit Goods and Lands but in Action personal the contrary if any Errour or discontinuance be in the suit or Process whereby the Outlawry becomes reversable as where the party is beyond the Seas where three proclamations are not made whereof one in open Court another at Quarter-Sessions and a third at the Church or Chappel-door where the Defendent dwelleth or lastly where the party hath obtained his pardon One at the very point of death In extreams if he be of good memory though you can scarce understand what he speaks yet may make his Will and it shall be good A written Will is brought to a sick Man and he is asked if that be his Will and he answers yea this Will if it were written by the sick Mans privity or directions it will be good otherwise it is held contrary Ecclesiastical persons are either Regular or Secular Relligions The Regular are Monks Friars c. And if such a Regular Clerk make his will at his entrance into Religion it must be then also proved and the Executor must enter as if he were actually dead for he is accounted dead in Law in respect of his Vow and therefore totally disabled to make a will afterwards The Secular are Bishops Vicars c. and these may make a will so as the Goods they dispose thereby be not held by them in right of their Church for they may not devise the Fruit of Trees growing on the glebe Howbeit Corn growing upon the glebe belongs to him his Executor or Administrator but of other Fruits Tythes Oblations and Emoluments the next Incumbent shall have them towards payment of his first-fruits and if he dye his Executor 28 H. 8.11 CHAP. III. What things may pass by Will and how much 1. Of Lands 2. Of Goods and Chattels And of the tuition of Children to whom and how it shall be granted or committed LAnds are devisable either by Custom or by Statute By Custom such are Gavel-kind Lands which are not contined only to Kent as hath been erroneously held from the Grant of William the Conquerour And one seized thereof may give or sell them at his own pleasure neither are they forfeitable for Felony according to the Adage The Father to the Bough The Son to the Plough 2. Lands held in Burgage-tenure by Custom devisable in divers Cities and Burroughs And such Land may be given in Fee-simple Fee-tail for Life or Years so as the Will be enrolled before the Mayor neither is it needful to have it written according to the form of the Statute of Hen. 8. for that the Land was devisable before that Statute and is a kind of a Socage-tenure Citizens Burgesses and Free. men may devise their Lands in Mortmain which others who have Burgage Lands may not do otherwise there is no difference But joyntenant of Burgage-Lands cannot devise his part for it will pass by survivourship The Custom of devising Lands to Feoffees reformed by 27 H. 8. which see at large As also the Stat. 32 H. 8. whereby Lands may be devised A. having Lands in Socage may devise all except he have Lands of the King or others in Knight-service but in such device there must be reserved primer seisin and fines for alienations such as should have been in case the Land had been altered or sold If one hold Lands in Socage and other Lands in Knight-service he may devise all his Socage Lands and two parts of those in Knight-service reserving three parts for the King or other Lords of the Knight-service Lands for Wardship and primer seisin c. but this is in effect now out of doors If there be two joyntenants or more of Land holden of the King and one die his Heir shall be in Wardship Lands Tenements Rents and other Hereditaments in possession reversion or remainder may be devised as before Of Goods and Chattels all may be devised yea as well things extant as things not in being at the time of the device or during the Testator 's Life as Corn annually growing in such Land all Lambs coming of such a flock depasturing in such a Field next Year but if no such Corn or Lambs be it is void By common Law If A. grant B. an annuity of 10 l. to be taken out of his Coffers and he have no Coffer or out of his Lands in Dale and he have none there in both these cases his person is chargeable By a deed of Gift made of all Goods and Chattels yet debts or things in action pass not Contrary it is of a devise by a Will for if a debt or thing in action be given to A. the Testator may make him Executor only to that and A. may recover it in his own name If a man bequeath another mans Goods by the Civil Law the Heir must either buy them or render so much in value to the Legatary But both by the Common Law and Law Ecclesiastical used in this Realm such a devise is judged void There are several sorts of Goods which are said not to be devisable as 1. Such as a man hath in the right of his wife viz. Debts due to her or things in action or Chattels real as Leases for after the Husbands death they return to the wife 2. One may not devise Goods which he has joyntly with another no though he make the other joynt Executor yet he shall not be chargeable for those Goods but adjudged to have them as survivor 3. Neither may one bequeath those things which he hath as Administrator to another for he ought not to convert those to his own use but therewith to pay the Debts and Legacies of the Deceased and to distribute the rest in pios usus and therefore bound to be accountable 4. Albeit the Executor of an Executor may administer Goods of the first Testator yet so may not the Executor of an Administrator but there must be a particular Administration of them granted Also an Executor may appoint an Executor of the first Testator 's Goods so may not an Administrator Howbeit an Executor cannot give away the Goods of a Testator no more than may an Administrator for they are not properly his but he must accompt for them 5. Goods of the Realm such are the Crown and the Jewels thereof are not devisable 6. The Master of a Colledge the Mayor of a City or Burrough may not devise things which belong to the Burrough City or Colledge so it is also of an Hospital and Church goods excepting upon the glebe growing 7. Goods de jure belonging to the Heir are not devisable as Trees growing the Heir-loom c. Tenant in right of his Wife sows Lands and bequeaths the Corn the Legatary shall have it and not the wife otherwise it is of Corn and Grass not separated Tenant in Tayl makes Lease for Life to A.
not avoid it for the first Will stands good And here note that every man and Woman is supposed to be of sound and perfect mind and memory unless positive proof be made to the contrary Words only are not a sufficient proof of sanity of mind or to set forth the reasonable faculty For a Parrot may be taught significant words yet none will aâ—â—r them to proceed from an instinct of reason no more than they can assert Balaams Ass a reasonable creature because by miracle it's mouth was opened to reason with it's Master An old Man who is so superannuated that he has forgot his own name Old Men. is held unfit to make a Will. So a Man in extremis The old Law of Slaves and Villains was this Villains their Lands Goods and Children gotten by themselves or given them by others were all in bondage For whatever such a bondslave getteth it is his Lords for if a Villain make a Will of his Lands or Tenements or Goods and the Lord enter before the Will proved the Will shall be void and the Lord shall have them But this Law is though not abrogated yet so long disused that it is of no force If a Man be condemned to perpetual Prisoners imprisonment upon a criminal account he cannot make a Will But a Prisoner for Debt may so it be not to defraud his Creditors A Woman Covert cannot devise Lands Tenements Feme Covert or Hereditaments neither to her Husband or any other 1. Not to her Husband for these reasons 1. For that may be in prejudice of the Heir 2. Albeit she did of feee will and without constraint for the tye is not apparently taken off 3. Although the Will were made before Marriage for the Testator must be in as good power at the time of death as of the making the Will 4. If the Wife make a Will during Coverture and then survive her Husband this is supposed void unless she confirm it after the Husbands death But if such Will were made before Marriage by her and she survive that will be good She may dot devise Goods and Chattels without consent of her Husband but by his licence peradventure she may In some few cases a Feme Covert may make a Will without her Husbands licence as first an Empress or Queen so it be not in prejudice of her Husband or his Regality 2. When any thing is due to the Wife whereof she was never possessed during the coverture neither may the Husband bequeath a chose in action as an Obligation c. which he hath only in the right of his Wife if he be not joyned with her or the property altered after Marriage 3. A Woman betrothed to a Man may before espousals make a Will. 4. If a Wife be Executrix to another she may dispose of those goods else might the next of Kin have administration de bonis non administratis of her Testator for where an Executor dyes intestate the Testator from that time is deemed to dye intestate A Wife may appoint her Husband her Executor but such Wife is restrained from making such a Will two ways 1. Unless she appoint an Executor her Will will be void 2. If such Wife have any Goods as Legatary from the Testator and which she receiveth as Legatary not as Executor they are her Husbands and so not by her devisable also increase of goods during the coverture which the Wife has as Executrix as Calves Lambs and the like the same redound to the Husband and not to her A Wife or other Executor and Legatary is deemed to accept Goods as Legatary not as Executor unless by Protestation or some other means the contrary appear for it is her better Title and more free yet this is according to the rule of the civil Law but not agreeable to the Law of the Land. If a Husband be bound or do voluntarily licence the Wife to make her Will before Marriage and she make two or three the last is that must stand A deaf and dumb person not knowing what a Testament is Deaf and Dumb. cannot make a Testament but if he were not deaf a partu naturaliter but he became afterwards deaf and dumb by accident or otherwise he may do it by signs but it will be better if he can write He that can speak could once hear Ergo he may make a will. Dumb and not deaf may make a will by signs so as the same be well known to witnesses A blind Man Blind may make a Nuncupative Will or a Testament in writing if it be read to him and he declare he heard and understood it A person convicted of High Treason Traitor cannot make a Will for that he hath forfeited all his Estate both real and personal whatsoever But if he obtain a Pardon Quaere what he may do Felons forfeit their lives Felons Goods and Chattels and the profit of their Lands for a Year Day and Waste and after the King hath had annum diem vastum the chief Lord of the Fee shall have it except in the County of Gloucester where the next Heir after the Year and Day shall inherit and in Gavel-kind Lands where they descend equally to Sons and for default of Sons to Daughters in like manner And there it is said The Father to the Bough The Son to the Plough So that Felons cannot make Testaments of what the Law hath made a prior disposition But if a Man be indicted of Felony and dye before conviction he may devise his Goods and Lands or if upon his arraignment he stand mute his Goods shall be confiscate but he may devise his Lands For a Felon attainted at the time of the Fact committed in such case it is to be regarded in respect of his Lands But for his Goods the time of Judgement must be respected for before Judgement he may give his Goods for neither the Sheriff nor other person can seize before conviction A Heretick doth not forfeit his Lands unless he be executed Heretick nor Goods unless he be convicted and delivered over to Lay-mens hands yet if he be but excommunicate he cannot make a Will. Apostatas are of three sorts Apostate 1. Such who having once been Christians renegue their profession and become Jews or Turks and such an Apostate was Julian the Emperour who from thence had the infamous Sirname of The Apostate 2. Such as being subject refuse to obey the command of the Ordinary or Superiour as our now Sectaries and Nonconformists 3. Such as have entred into Holy Orders and afterwards throw it off and become lay in habit or profession and these are all reputed as bad if not worse than Hereticks A Sodomite qui peccatum inter masculos contra naturam cum faemina Sodomite is barred to make a Will although he be not convicted An Outlawed person is out of the protection of the Law Outlaw and all his Goods and
by Act executed had been void Et sic de caeteris Co. Rep. Corbet's Case fo 86. CHAP. V. Of the Forms of Testaments THe substantial or essential form of a Testament is the naming of an Executor without which it is no Testament for the Executor is in the place of the Testator and compellable to pay Debts so long as he hath Assets without naming an Executor it is but a Codicil be there never so many Gifts or Legacies contained therein and Administration is to be granted as of one dying intestate unto the Wife or next of Kin. But be it solemn or unsolemn written or nuncupative priviledged or unpriviledged the naming or appointing of an Executor without more ado makes a good Testament An Executor may be appointed simply or conditionally from a time or to a time certain generally or particularly in the first second third or fourth degree Simple nomination as I make Institute or Will that or desire that A. be my Executor or A. shall or let A. be my Executor or I commit all my Goods to dispose of by A. or I will that A. dispose of those Goods in his possession in the first he shall be adjudged Executor of all In the second of so much as are in his possession only The word Executor needs not always to be expressed in a Will but circumlocutory words will serve so as the Testator 's meaning be certainly known but when it is doubtful whether the person named be a general Legatary or Executor great care must be taken to determine whether a Will or not a Will. A Testator makes his Will by entreaty or interrogation of another person as if one demand if he will make A. Executor and he answer yea or I do this is a good nomination so as he be then purposed and intended to make his Will for be the words never so plain if the Testator were in fear jest or drink though he say I make A. my Executor yet it is void because he had not then animum testandi As nomination of an Executor is pure and simple being without condition so of Legataries mutatis mutandis in all things always according to the Testator 's meaning Therefore if A. devise to B. all his Lands and Tenements all in possession and reversion pass by the word Tenements Land is devised to A. to have for evermore or to him and his Assigns there the devisee hath a Fee-simple but in a Feoffment such words create but an Estate for the Feoffee 's life A devise of Lands is made to A. thus to give or sell or do with at his pleasure this makes a Fee-simple A devise of Land is made to A. and his Heirs males this is an Estate Tayl but in a Feoffment the same words make only a Fee-simple because thereby it does not appear of what bodies the Heirs shall be begotten Lands are given by deed to A. and the Heirs males of his body he hath issue a Daughter who hath issue a Son and dies the Son of the Daughter shall not have it but it shall return to the Donor But if the same were so given by a devise in a Will he viz. the Son of the Daughter should have it A devise made to an Infant in the Mothers Womb is good but contrary of a deed Feoffment grant or gift for they being made to such are void A devise is to A. and his Heirs Females of Land the Devisee hath a Daughter and Son and dyes in this case the Daughter shall have the Land and not the Son though he be Heir A devise of Land is to A. charging him with payments of near the value of the profits during his Life though there be word of Heirs or Assigns or for ever yet this is a Fee-simple But a devise of Land to A. in Fee and if he dye without Heir then to B. in Fee this is a void remainder because one Fee-simple cannot depend upon another So Land was devised to the Prior and Covent of B. so as they paid to the Dean and Chapter of P. 10 l. per annum and in default thereof their Estate to cease and the Land to remain to the Dean and Chapter this is a void remainder for it could not be limited after an Estate in Fee and the Heir not the Dean and Chapter shall take advantage of the condition A Legatary may take his Legacy without delivery by the Executor But there is no remedy to recover a Legacy by the Common Law but only by citation before the ordinary But a Legatary possest of his Legacy at the Testator 's death may retain it if there be sufficient to pay debts beside Conditions some are 1. Necessary 2. Some impossible 3. And some possible or indifferent 1. Necessary in respect of Fact as if the Sun rise 2. Necessary in respect of Law as a condition to make one Executor or give 100 l. 2. Impossible conditions and these have four sorts of Impediments 1. Of Nature as to give one 100 l. if he touch the Sky with his hands or drink up the Sea. 2. Contrary to Law deemed impossible as if he murder a Man or deflower a Maid for id possumus quod de jure possumus 3. Hard to be performed as a base Subject to marry the King 's Daughter And 4 of contrariety and repugnancy 3. Possible conditions or indifferent of these 1. Some are casual as to give 100 l. if the King of Spain dye this year 2. Others are Arbitrary as if one go to Church But here note that conditions unlawful impossible and dishonest are absolutely void Every condition must be precisely performed for performance in part will not suffice for the whole meaning of the Testator therein must be performed A condition that one go to Church on Easter-day and he endeavours so to do but he is hindred by great floods or other lawful impediments the condition is performed But if in going to Church he commit an offence and be stayed for it this is not a performance of the condition when the condition cannot be performed by the Testator 's default this is no bar to the Legacy as a Legacy is given on condition that he bury the Testator 's body in St. Peter's Church in York and he dyes excommunicate Executor or Legatary under some possible condition admittable putting in caution to perform the condition or make restitution Condition is that A. marry the Testator 's Daughter he is ready and willing but she refuses this is doubtful for he must persevere if he will have the benefit for though it seem the condition be performed in Law yet is it not performed in fact according to the Testator 's meaning But it is contrary if the Testator remitteth to him a Debt upon such condition and he offereth to marry her or if he be possessed of the Executorship or Legacy in the mean time before she repent or if 100 l. in such a chest or a white horse be given
Tit. Exec. Dyer 35. fo 160. Divers Executors are named one getteth possession of Goods the other have no remedy against him for any part for one Executor may not sue another but in case the Testator give to one Executor the residue of his Goods he may retain them or sue any other that holds them but if he give all his Goods to his Executors they are to be divided and the Ordinary hath power to prevent fraud among them But if one Executor dye the survivour shall have his part unless the Testator appoint that the Goods shall be equally divided for those words equally divided in a Will do make a Tenancy in common Two Witnesses void of exception sufficient to prove a Will but if the Testator ordain that one Witness whom he nameth and trusteth shall prove the Will and he doth it this is good proof But a solemn Testament must be proved by seven Witnesses and every one must set his Hand and Seal to it Any Language Hand or Character is good for a Will so that it may be understood vitium Scriptoris will not hurt for as falsa Orthographia non vitiat Chartam Sic nec Testamentum In Nuncupative Wills and Testaments it is good to avoid obscurity and ambiguity CHAP. VI. What Persons may be capable of Executorship or Legacies A Testator may exclude his own Children and make a Stranger his Executor or Villain if he make a Villain of his own Executor it is a manumission but a Villain of another being named Executor may have an Action against his own Lord. A Woman sole is Executrix she marries her Husband alone may release a Debt due to the Testator An Infant Executor may release a Debt due to his Testator during his Minority so as he receive due satisfaction for the same If a Child be under 17 years he must have a Tutor and such Tutor may sell any of the Testator 's Goods but for necessity only A Testator making his Debtor Executor the Debt is extinguished if he prove the Will Also making a Creditor Executor when he makes an Inventory he may detain his own Debt first A. and B. bound to C. for Money C. makes A. Executor by this the Bond is released A. indebted to C. the said C. makes A. and F. Executors A. dies F. shall have no Action against the Executor of A. for that Debt But if the Testator be indebted to A. and makes him and B. Executors if A. refuse to prove the Will and B. prove it A. may have Action for his Debt against B so Debt by Testator is not extinguished by naming a Creditor Executor unless he Administers But Debtor refusing to Administer being named Executor the Debt is extinct unless there want Assets to pay Creditors A Colledge City or University may be appointed Executor but an Apostatae is incapable to take or make Executor So Felon attainted and excommunicate persons Church-Wardens are no lawful Corporation in every respect but in some respects they are such a Corporation as may sue for a Legacy given to the Parish Convict Recusant at the Death of the Testator or time of Administration granted disabled to be Executor Administrator or Guardian in Socage or Chivalry See the Stat. 3. Jacobi CHAP. VII Of the several kinds of Executors THere are three sorts of Executors 1. From the Law as the Bishop or Ordinary 2. The second is made by the Bishop or Ordinary 3. The third by the Testator himself If an Executor refuse or cannot prove the Will the Ordinary may grant Administration cum Testamento annexo and this Administrator is charged to perform that Will and is called Executor Dativus for he is the Ordinaries Deputy or Steward The Ordinary may call to an account and revoke his Authority and such revocation may be secret or implyed as Administration granted to A. and after to B. the grant of the later revoketh the first as a latter Will revokes a former yet all Acts done by A. before such revocation are good 27 H. 8.26 per. Fitz. 4 H. 7.14 per Tremaile Bro. Novel Cases 330. Executor Testamentarius being one so made by the Testator may without Authority from the Ordinary possess himself of his Testator 's Goods and Chattels and after probate of the Will may commence Actions But if he be a meer Executor he may not convert the residue of the Goods to his own use but be accountable for them neither is he to have any other benefit than what is appointed by the Will or allowed for his charges or pains by the Ordinary and if such Executor dye intestate from thenceforth his Testator shall be said to dye intestate and Administration de bonis non Administratis shall be granted An Executor some say is not compellable to prove the Testament before citation but if he be cited and refuse he shall lose his Legacy and the Ordinary may grant over Administration to another until he will accept c. but if he hath meddled with any of the Testator 's Goods he is compellable to stand to it If Administration be granted where a Will may or can be produced and the Executor hath not refused the Executor may bring an Action of Trespass against such Administrator if he meddled Vid. Br. Abridgement des cases edit 1599. Tit. Administ 112. fo 183. To him that is desirous to know whether it be better to accept or refuse Exccutorship it is to be known That Executor is chargeable to Creditors so far as the Goods do extend but for Debts due to the Testator he shall not be charged with Asseâ—s for they are things in Action and not in Possession yet he must use diligence to obtain and get them in The Heir shall have none of the Goods or Chattels of the Deceased nor shall the Executor have any of the Lands Tenements or Hereditaments unless the Will appoint them to sell Lands for which if two or three be appointed and some refuse to prove the Will the rest that prove it may sell notwithstanding If the Testator appoint his Executor to sell Land and to distribute the money in pios usus and they enter and convert the profits to their own use for two or three years the Heir may enter upon them and exclude them for the Franktenement is in him neither if one Executor dye before sale may the survivour sell but contrary if the limitation be for payment of the Testator 's Debts for then the surviving Executor may sell 39 Ass 17. And it seemeth by the issue in that Book that any one of the Executors may by himself sell the Land without his Companions though they be alive and notwithstanding that they have but a power and Authority given them which is joynt and in most cases must be performed according to the limitation but it seemeth that that is admitted for the special respect the Law hath to have the Debts of the Deceased paid Vid. Fitz. Tit. Ass 336. Et. Executors 117. An
AN APPENDIX TO THE OFFICE and DUTY OF AN EXECUTOR A Testament differs from a last Will in the naming an Executor Testament and it is thus defined Testamentum est voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri voluit If one demand of B who shall be his Executor and he name D or if B say I mean to make D my Executor yet D is not Executor unless it be probable that B had at that time animum testandi A is compelled by fear or menace or urged by Violence to make his Will this is void yet a modest request to one to make his Will is allowable If any person refer his Will to another to declare and name an Executor for him and he do it this is void A Codicil Codicil is like a Boat tied to a great Ship there is no Executor named therein it may be written or nuncupative made before or after the Testament or by one dying intestate and perhaps long before his death and yet it may be good for being made before a Testament it will be good unless it be revoked by a Testament or be contrary to it If two Testaments be found and no knowledge which was made first and they differ both in matter and circumstance both shall be void not so of a Codicil unless the one impugn the other Things given and delivered by a Testator in his life time Legacy are no Legacies A named B his Executor who cannot or will not intermeddle Administration must be granted by Statute cum testamento annexo which makes the Legacies thereby given due both by Law and the custom of England But the civil Law holds the contrary to this A bequeaths Corn growing or Goods unto one A Stranger will not suffer the Executor to perform the Will he shall sue him in the Spiritual Court. Contra if a Stranger take the Testator's Goods from the Executor there he may have an Action of Trespass at the Common Law. A Testament dated at Cane in Normandy and proved afterwards in England is good Legacies are to be recovered in Court Christian so if a Termor devise his Crop or Goods But of Franktenement or Inheritance the Legatee may enter without further Assignment A bequeaths Goods to repair the Fabrick of a Church if they be detained they must be recovered in the Ecclesiastical Court so must a Wardship and Chattels real when bequeathed be recovered A charges his Executor to pay his Debts the Creditor in respect of this charge may sue in the Ecclesiastical Court. So if an Executor be charged to build a Grammar School and he neglect it Among the Ancient Romans there was a Will Solemn Testament called a Solemn Testament which was proved by seven Witnesses and all their Seals affixed to it or else it was deemed void but now two sufficient and credible Witnesses suffice In a Devise of Lands it must be in the life time of the Testator and in writing But of Land devisable before the Statute the Testament is good if it be probable One dying intestate the Widow or next of Kin shall have Administration See the Stat. 21 H. 8.5 but see also 31 E. 3.11 but these are both altered by the late Statute made in his now Majestie 's Reign Testaments written by others being read and allowed before the Testator are good or if a Notary take brief Notes and write them in form at large and the Testator die before he hear it read yet it is good to pass Lands and Tenements Lands will not pass by a Nuncupative Will by the Stat. 32 H. 8. yet in Burgage tenure it may be the contrary A Testator writeth his Will with his own hand or causeth it to be written in his presence and after shews it to witnesses and then sealing it up says This is my last Will this will be a good Testament but it is necessary such witnesses write their names on the backside A Testator says such a one naming B hath his Will in keeping and after dies B produceth a Will and is sworn to it yet he must prove it at least communi formâ or if put to it per testes who can prove the hand and other circumstances Testaments Priviledged Besides them there are Military or Priviledged Testaments and those of three sorts 1. Among Souldiers they may have two and both good according to meaning these Souldiers were anciently divided into three Kinds 1. Milites armati 2. Milites Literarii 3. Milites coelestes that the Milites armati the active Souldiers had this priviledge is not to be doubted but the 2. Milites literarii who were Doctors of the Law and the 3. Milites coelestes who were Divines were but metaphorical Souldiers and it hath been a continued doubt whether they ought to have this Priviledge The second sort of Priviledged Testaments is called Testamentum in Liberos and in such case where two Testaments are found and the first is to the use of Children this will not easily be avoided by a latter Will giving Goods to strangers unless in the latter there be a special revocation or else it be made in pios usus or upon some great disagreement that had of late happened between the Father and Children But if two be found of one date and the one favours Children and the other hath a contrary face or design that that favours the Children shall have the more favourable allowance because it carries the Estate to the blood which the Law is very tender of The third sort of Priviledged Wills is Ad Pias causas whereby a Legacy being given to young Orphans Widows lame diseased poor needy and miserable persons or to Hospitals Churches repairing Bridges City-walls c. These priviledged Testaments may be written with any Characters Figures Language c. A Testament ad pios usus found cancelled unless there be a positive proof of cancelling the same shall be presumed to be done unadvisedly and so consequently good Two Testaments are found 1. Inter Liberos 2. Ad pios usus both of one date of these the first shall be judged good because the Children have a first right jure successionis shall be admitted CHAP. II. What Persons may make a Testament NOne under twenty one years of Age may devise Lands Children Tenements or other Hereditaments But of Goods a Boy at fourteen and a Girl at twelve may dispose but not before though ad pios usus nay in truth it is voidable being so made in Minority unless if when they come to full Age it be confirmed for then it will be good Mad and Lunatick Mad and Lunatick persons cannot dispose of any thing during their Madness and Lunacy though ad pios usus but if they have lucida intervalla it is held otherwise A being compos mentis makes his Will after he becomes non compos and during that incapacity would disannul it this will
Oath and greater sums by Witnesses And the residue ought to be disposed as heretofore in pios usus but the Executor hath usually deteined them upon pretence more Debts may appear But see what is now to be done by the new Stat. 22 23 Car. 2. Cap. 11. In this account all Funeral expences just payments and reasonable charges are to be allowed An Executor not being resolved to meddle as Executor then must not Administer the Goods as Executor for then he is compellable to undertake the burthen in the mean time he is subject to all suits of Creditors and cannot sue for want of the Will being under seal of the Ordinary If a Creditor take but so much of the Testator 's Goods as his own Debt amounts to yet he is Executor in his own wrong But to take the Testator 's goods to preserve them from perishing or to dispose of part thereof for the Funerals or to make an Inventory makes him not Executor in his own wrong CHAP. VIII How Testaments become void TEstaments become void by several means as when they are made through fear immoderate flattery fraud incertainty or imperfection or the Testator hath not animum testandi But if such a Testament after the fear is past be confirmed or ratified it will be good Errour in quality to avoid a Will is this as I make my Cousin J. my Executor or because thou hast lent me 100 l. I give thee 100 l. or for that my Son is dead thou shalt be my Executor when in truth there is no Cousin J. no Money lent nor his Son dead Errour in quantity is when a Testator meaning to bequeath a fourth part of his Goods it is set down half or intending to give 50 l. the Writer setteth down 100 l. or è contra or I give to A. all the Debts he or B. oweth and he owes nothing all these bequests will be void But if one give A. 10 l. which he owes him if the Testator be in good memory at the time of the gift this is good So if one give 10 l. being in such a chest and there are but 5 l. found yet it will be good for the 5 l. But if the Testator believed 10 l. to be there unless the Executor can prove that the Testator knew there was but 5 l. it shall be good for the whole 10 l. A Will may also be void for incertainty as I make one Man of the World my Executor unless there be plain proof whom the Testator meant it is absolutely void One made his Will and named J. S. his Executor whereas there were two or three of that name this shall be void to all unless the Testator 's meaning appear to one or one more familiar or friendly with him then he shall be admitted or if they be all of Kin the nearest of Kin shall be admitted If one give a Legacy to a Church his Parish Church shall be understood so a Legacy to the Poor shall be intended to the Poor of his own Parish but if he have any poor Kindred they are principally to be regarded It hath been held that the Mother is not a Kin to the Child and to that purpose it was long argued in the Duke of Suffolk's Case 39 H. 6. fo 31. but since hath been adjudged to the contrary 3 Rep. Ratcliff's Case and 21 H. 8.5 Or if one make the next of Kin Executor the Mother shall be admitted before any but his own Children viz. before either Brother or Sister according to the Stat. 21 H. 8. See Bro. Novel's Cases 5 E. 6. Num. 415. A Testator gives a Horse and hath none yet it is a good Legacy the contrary hath been held by some of Sheep or a gold Chain that if there be none the Legacy is void but the better opinion is that it is good A Legacy of Lead Money Wheat c. is uncertain and so naught but if it be added for building Bridges repairing High-wayes maintaining or relieving Poor then so much as by the Ordinaries appointment shall be thought fit shall go to perform the intent Bona animi corporis fortunae viz. Virtue Health Wealth are by the civil Law termed 1. Moral 2. Natural 3. Casual The first and second are not in our dispose and therefore the Law takes notice of the third viz. casual under which the civil Law takes in Lands Leases Obligations Debts and all other Goods his Debts paid But the Law of this Realm takes in only Houshold-Goods Chattels personal c. But nothing that is of the Nature of Free-hold nor Leases for years much less for life nor Choses in Action as Debt upon promise or Obligation Chattels signifie all Goods moveable and immoveable unless such as be of the nature of Free-hold Of Chattels some be real as Leases for years some personal as moveable Goods Money Plate Houshold-stuff c. but Hawks and Hounds are no such Goods Goods moveable are such as actively move of themselves or passively are moved by others Immoveable Goods are such as are not dependent upon the person but to some other things as Trees growing Fruit on Trees Lease or Rent for term of years But no Lands Tenements or Franktenement Admit four several persons make four several Wills wherein the first gives A. all his Goods the second gives A. all his Chattels the third gives A. all his moveable Goods and the fourth gives to A. all his immoveable Goods In this case A. is to have the first Testator 's whole Estate being in effect his Executor Heir or Universal successor Also he is to have all his Debts and pay all his Debts and all his Money of what Coyn or Mettal soever And so it is as to the second Testator in all things And if A. dye before he prove such Will Administration is to be granted to the next of Kin of A. not of the Testator But the Testator giving A. all his Goods or Chattels if he make B. his Executor B. must enter to all prove the Will pay the Debts and deliver over the residuum to A. being Universal Legatary But if the Testator have 100 l. and being indebted 20 l. bequeaths the one half of his goods to his Wife the whole to be be divided between her and A. his Executor here the Wife shall have 50 l. without defalcation and the Executor must pay the Debt out of the other half which are Assets in his Hands and this case was so adjudged by two chief Justices and others For the third Testator A. must have bona moventia mobilia all actively and passively moving or moveable as also Fruits growing by Industry as Corn c. but not Natural as Grass c. but if Land be appointed to be sold by Will the Money thence arising shall not be accounted as any of the Testator's Goods or Chattels Or if a Testator have bagged up Money ready shortly to be payed for Land bought this may not be disposed of in prejudice