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land_n hold_v king_n tenant_n 4,936 5 10.1458 5 true
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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A51777 [An appendix to the office and duty of an executor.] Manley, Thomas, 1628-1690. 1676 (1676) Wing M442; ESTC R204050 25,140 71

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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 a●●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